The Oxford History of the Laws of England Volume II: 871-1216 9780191630033, 0191630039

Table of contents :
Frontmatter
Preface (page xiii)
Abbreviations (page xv)
INTRODUCTORY
1. The History of Law and the History of Disputes (page 3)
PART I: LATE ANGLO-SAXON ENGLAND
2. Kings and Law (page 17)
3. Courts (page 43)
4. Procedure (page 66)
5. Land (page 93)
6. Movables (page 149)
7. Theft and Violence (page 161)
8. Status (page 200)
9. Marriage and Family (page 225)
10. Conclusion (page 244)
PART II: ANGLO-NORMAN ENGLAND
11. Kings and Law (page 255)
12. Courts (page 273)
13. Procedure (page 303)
14. Land (page 333)
15. Movables (page 376)
16. Theft and Violence (page 384)
17. Status (page 416)
18. Marriage and Family (page 435)
19. Forest Laws from Anglo-Saxon England to the Early Thirteenth Century (page 455)
20. Conclusion (page 487)
PART III: ANGEVIN ENGLAND
21. Kings and Law (page 497)
22. Courts (page 537)
23. Procedure in Land Cases (page 574)
24. Land (page 627)
25. Movables (page 678)
26. Agreements and Debt (page 691)
27. Theft and Violence (page 709)
28. Status (page 750)
29. Marriage and Family (page 776)
30. Borough Law (page 812)
31. Magna Carta and the Common Law (page 844)
Appendix: The Sources (page 865)
Bibliography of Works Cited (page 881)
Index of Names, Places, and Non-legal texts (page 913)
Index of Subjects (page 927)

Citation preview

The Oxford History of the Laws of England

THE OXFORD HISTORY OF THE LAWS OF ENGLAND General Editor: Sir John Baker, Q.C., LL.D., F.B.A., Downing Professor of the Laws of England, and Fellow of St Catharine’s College, Cambridge The Oxford History of the Laws of England will provide a detailed survey of the development of English law and its institutions from the earliest times until the twentieth century, drawing heavily upon recent research using unpublished materials.

Volume I: The Canon Law and Ecclesiastical Jurisdiction

from 597 to the 1640s Helmholz ISBN 978-0-19-825897-1

Volume II: 871-1216 Hudson ISBN 978-0-19-826030-1

Volume III: 1216-1307 Brand ISBN 978-0-19-825866-7

Volume IV: 1307-1377 Donahue ISBN 978-0-19-926951-8

Volume V: 1399-1483 ISBN 978-0-19-926599-2

Volume VI: 1483-1558 Baker ISBN 978-0-19-825817-9

Volume VII: 1558-1625 Ibbetson ISBN 978-0-19-825802-5

Volume VIII: 1625-1689 Brooks ISBN 978-0-19-826031-8

Volume IX: 1689-1760 ISBN 978-0-19-826100-1

Volume X: 1760-1820 Oldham ISBN 978-0-19-826494-1

Volume XI: 1820-1914, English Legal System Cornish, Anderson, Cocks, Lobban, Polden, and Smith ISBN 978-0-19-925881-9

Volume XII: 1820-1914, Private Law Cornish, Anderson, Cocks, Lobban, Polden, and Smith ISBN 978-0-19-925882-6

Volume XIII: 1820-1914, Fields of Development Cornish, Anderson, Cocks, Lobban, Polden, and Smith ISBN 979-0-19-923975-7

(Three-volume set of Volumes XI, XII, and XIII: ISBN 978-0-19-925883-3)

The Oxford History of the Laws of England VOLUME II 871-1216 John Hudson Professor of Legal History at the University of St Andrews and William W. Cook Global Law Professor at University of Michigan Law School

OXFORD

UNIVERSITY PRESS

Great Clarendon Street, Oxford ox2 6pP United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © John Hudson, 2012 The moral rights of the author have been asserted First published 2012 Impression: 1

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CONTENTS

Preface xiii Abbreviations XV INTRODUCTORY

1. The History of Law and the History of Disputes 3

1 Approaches to the history of law 4

2 The conduct of disputes 5 PART I: LATE ANGLO-SAXON ENGLAND

2.1 Law Kings and Law 17 and kingship 18 2 Legislation and law in practice 26 3 Royal officials 29 4 Communication with royal servants 41

5 Conclusion 42

3. Courts 43 1 The king’s court 43

3 Lords’ courts 56 4 Ecclesiastical courts 63 2 Regional and district courts 46

5 Relations between courts 64

4.1 Two Procedure 66 cases 67 2 Bringing an accusation or claim 69

3 Ensuring attendance 72 4 Further pleading and argument 76

6 Proof 79 5 Mesne judgment 78

v1 CONTENTS

78 Final judgment 87 Enforcement 9]

5. Land 93 1 Types of land 94

Security 120 43 Inheritance 122 67 Church Alienability 136 lands 143 8 Conclusion 147 6.1 Ownership Movables 149 150 2 Control of movables 150 3 Alienability, succession, and bequest 152 5 Conclusion 160 2 Landholding, lordship, and dependent tenure 115

5 Bequests of land and the Anglo-Saxon will 126

4 Sale 152

7. Theft and Violence 161

1 Vocabulary and categorisation 161

23 Responsibility Types of offence 164 and liability 168

45 Prevention and police 169 Compensation 177

67 Banishment Punishment 180 and outlawry 196 8 Conclusion 198 8. Status 200 1 Hierarchies 201 2 Men of higher status 202

45 Clergy Slaves 212 218

3 Men of lesser status 207

6 Lordship and commendation 220

9. Marriage and Family 225

1 Marriage 226 2 Illegitimacy 236

CONTENTS vil

465 Spiritual Minors 241 kinship243 242 Conclusion

3 Husband and wife 237

10. Conclusion 244

1 Continuity and change from Alfred to 1066 244

2 Diversity and uniformity 247

of English law 250

3 ‘The place of the late Anglo-Saxon period in the development

PART Il: ANGLO-NORMAN ENGLAND

11. Kings and Law 255 1 Norman law and Anglo-Norman England 255 23 Law and kingship 256 Royal officials 260

4 Communication with royal servants 270

5 Income from justice 271 6 Conclusion 271

12. Courts 273 1 The king's court 274

23 Hundred County courts 276 and wapentake courts 280 45 Ecclesiastical Lords’ courts 284 courts 297

7 Conclusion 302 13. Procedure 303 1 Two cases 304

6 Transfer of cases between secular courts 300

2 Bringing an accusation or claim 307 3 Ensuring attendance 310 4 Further pleading and argument 314

judgment 317 6578 Mesne Proof 318 Final judgment 331 329 Enforcement

9 Conclusion 332

14. Land 333

vill CONTENTS

1 Landholding and lordship 334

2 Types of lay free tenure 338

of tenure347 341 435 Security Inheritance Alienability 357 6 Unfree tenure 367 8 Conclusion 372 15. Movables 376 Ownership 376 231 Sale Succession 377 and grant383 379 4 Conclusion 7 Ecclesiastical landholding and alms tenure 369

16. Theft and Violence 384

1 Vocabulary and categorisation 384

23 Responsibility Types of offence 389 and liability 390

45Prevention and police 391 Punishment 399

6 Conclusion 415 17. Status 416 1 Hierarchies 416 2 Men of higher status 416

45 Clergy 428 Jews 430

3 Men of lesser status 418

6 Lordship in Anglo-Norman and Angevin England 431

18. Marriage and Family 435

1 Marriage 435 23 Husband Ilegitimacy 444 and wife 445

4 Minors 452

5 Conclusion: ‘Feudal incidents’ 454

CONTENTS 1X

Thirteenth Century 455 1 Anglo-Saxon England 456 2 Anglo-Norman England 457 England484 467 43 Angevin Conclusion

19. Forest Laws from Anglo-Saxon England to the Early

20. Conclusion 487 1 Continuity and change across 1066 487 2 Diversity and uniformity by 1135 490

3 The reign of Stephen (1135-54) 492 PART III: ANGEVIN ENGLAND

21. Kings and Law 497 1 Law and kingship 497

23 Angevin Royal officials 500 reform: a chronological survey 509

4 Reforms and reformers 528

22. Courts 537 1 The king’s court 537

23 Hundred County courts 550 courts 554 45 The sheriff's tourn 555 Lords’ courts 556 6 Ecclesiastical courts 565 7 Transfer of cases between secular courts 569

23. Procedure in Land Cases 574

23 Cases Litigants 978 concerning right 580 1 Richard of Anstey’s account 574

4 Cases concerning only seisins 603 5 Enforcement and settlements 621

67 Change Reopening cases 622 and continuity 624

24. Land 627

x CONTENTS 1 The Cockfield case 627 2 Landholding and lordship 630 3 Types of lay free tenure 632 45 Security of tenure645 636 Inheritance

67 Alienability 653 Leases 662

8 Villeinage tenure 663 9 Ecclesiastical landholding and alms tenure 667

11 Conclusion 676

10 Seisin and right, possession and property 670

25. Movables 678 1 Ownership 678 23 Succession 680 Bailment 686 45 Sale and grant 687 Conclusion 689 26. Agreements and Debt 691

1 Agreements 691 2 Usury 694 3. Debt in Anglo-Saxon and Norman England 695

4 Private debt in Angevin England 696

6 Jews and debt 706

5 Debt to the king in Angevin England 703

27. Theft and Violence 709 1 Vocabulary and categorisation 710

23 Prevention Types of and offence 712 police 716

45 Procedure: Procedure: (i) Appeal 721 (ii) Presentment 735

6 Punishment of serious offences 740

7 Lesser offences and trespass 743

8 Amercements 745 9 Conclusion 746

28. Status 750 1 Men of higher status 750

CONTENTS Xl

23 Lesser free men 751 The unfree 752

5 Clergy 768 67 Lepers 772 Jews 773

4 Actions concerning status 763

29. Marriage and Family 776

1 Marriage 776 23. Husband Illegitimacy 784 and wife 786

45 Conclusion Minors 805 811

30. Borough Law 812 1 The borough 813

3 Procedure 824 45 Movables Land law 833 838 6 Status 839

2 Courts and jurisdictional privileges 818

78 Conclusion Family law 841 842

31. Magna Carta and the Common Law 844 1 Criticism of justice under Angevin kings 844

23 Magna Carta and law 847 Common law 853

4 Conclusion: legal knowledge, law, and norms 857

Appendix: The Sources 865 1 Laws and law-books 867 2 Writs and charters 873

3 Narratives 877 4 Official records 878

Bibliography of Works Cited 881 Index of Names, Places, and Non-legal texts 913

Index of Subjects 927

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PREFACE

ve long book could be much longer. It has deliberate limits. Canon law is left

to Professor Helmholz’s volume, but more in particular could be written about

Roman law; some will certainly think that their influence on the development of English law is underestimated here. Further comparison, in part with the ius commune but especially with developments elsewhere in the lands of the postConquest kings, will have to be the focus of a future study. In geographical terms, the book also omits legal developments in the Marches of South Wales. And in chronological terms, one might go back as far as #thelberht'’s laws in c. 600, but

I start with Alfred, in part because of his role in the political development of England, but also because his reign marks the beginning of greater continuity in the available evidence.

Historians, at least initially, probably tend to emphasise the importance of their own particular period in longer-term developments. I too, in my monograph Land, Law, and Lordship in Anglo-Norman England, stressed the importance of the century after 1066 in legal development. This book lays less emphasis on that century. Rather,

it attributes considerable importance to the Anglo-Saxon contribution, powerful royal government, significant elements of a durable court structure, and important aspects of law relating to theft and violence. The Norman contribution was the maintenance of these elements, and the development of aspects of land law with lasting effects. Under the Angevin kings royal administration of justice became more routine, and this had major effects not just on procedural but also substantive aspects of law. Finally, the later twelfth and earlier thirteenth century saw changes in legal expertise, changes that underlie the later development of the legal profession. The book thus examines the importance of the period for the development of the common law in later centuries. At the same time, it emphasises both the limits of the contribution of the period and continuing flexibility of aspects of law even at the end of the reign of King John. Thinking about the paths not taken has been one of the fascinations of working on the book.

The book has largely been written in the wonderful environment of the Department of Mediaeval History at the University of St Andrews. Two ‘homes away from home’ have brought great intellectual stimulation—the University of Michigan Law School at Ann Arbor and the CSIC in Madrid. Librarians at St Andrews and Ann Arbor have been ever helpful, as have secretarial staff, notably Berta Wales, Audrey Wishart, Dorothy Christie, and Mary Lebert. The

XIV PREFACE book could never have been written without a British Academy Readership, and IJ have also received financial support from the AHRC and from the School of History at St Andrews. My thinking has been clarified, and my days always brightened, by my students at St Andrews and latterly at Ann Arbor. I have benefited from the unpublished work of, in particular, the Angevin Acta project, Lorna Walker, Sarah Tullis, and the late Patrick Wormald. Patrick's inspiration should be readily apparent from the text, as should that of years of thinking about the works of Toby Milsom. The Series editor John Baker has been a constant help, and read and commented on a near final draft. I was further aided by George Molyneaux’s incisive and learned comments on the Anglo-Saxon chapters, and the incomparable expertise of Paul Brand's reading of the Anglo-Norman and Angevin chapters. Both George Garnett and Bill Miller read the entire typescript in their very different ways, and produced a perhaps surprising number of comments in common. The book is immensely improved by all of these, and I am glad to say that the friendships have survived both the reading and the comments. In addition, Ros Faith read and commented on the chapters concerning status, David Crook, Hugh Doherty, and Judith Green that concerning the Forest, Steve White the Introduction. Rob Bartlett has been a constant source of books, advice, and answers. Sally Crumplin did an immense amount of initial photocopying and bibliographical work, Susanne Jenks vital last minute checking of manuscripts. Amongst the many who have answered specific queries or given other help are Stephen Baxter, John Blair, Bruce Brasington, Martin Brett, Jose Cerda, Julia Crick, David Crouch, Anne Duggan, Judith Everard, Sarah Foot, Dick Helmholz, Carole Hough, Caroline Humfress, Paul Hyams, Susan Kelly, Simon Keynes, Dan Klerman, Janet Loengard, Katie Lowe, Simon MacLean, James Masschaele, Mia Munster-Swendsen, Bruce O’Brien, Dan Power, Christine Rauer, Magnus Ryan, Elina Screen, Richard Sharpe, Clive Sneddon, Rick Sowerby, Bob Stacey, Pauline Stafford, Liesbeth van Houts, Nick Vincent, and Alex Woolf. What is correct in the book owes much to them. My family put up with a finishing-the-book process that lasted as long as the writing of a book normally takes, and my elder daughter Ella provided last-second computing help. Our two labradors, Benson and his successor (not heir) Bertie,

heard more than any human would stand about law in this period, the former giving advice in his best dog-Latin on what to include, the latter on what, most importantly, to trim. JH St Andrews 11.X1.11

ABBREVIATIONS

Abt laws of ZAthelberht, printed in Gesetze, ed. Liebermann, i. 3-8

Acta of William I Regesta regum Anglo-Normannorum: the Acta of William I, (1066-1087), ed. D. Bates (Oxford, 1998)

Af laws of Alfred, printed in Gesetze, ed. Liebermann, i. 16-88

AGu Treaty of Alfred and Guthrum, printed in Gesetze, ed. Liebermann, i. 126-8 AJLH American Journal of Legal History Anglo-Saxon Charters, ed. Robertson Anglo-Saxon Charters, ed. and trans. A. J. Robertson (2nd edn, Cambridge, 1956)

Anglo-Saxon Wills Anglo-Saxon Wills, ed. and trans. D. Whitelock (Cambridge, 1930)

Anglo-Saxon Writs Anglo-Saxon Writs, ed. and trans. F. E. Harmer (Manchester, 1952)

ANS Anglo-Norman Studies

App. AGu appendix to Treaty of Alfred and Guthrum, printed in Gesetze, ed. Liebermann, i. 394-5

Articles of the Barons Articles of the Barons, 1215, printed in Select Charters, 285-91

As laws of AEthelstan, printed in Gesetze, ed. Liebermann, i. 146-83 ASC Anglo-Saxon Chronicle, cited by dates in Anglo-Saxon Chronicle, trans. D. Whitelock et al. (London, 1961)

ASE Anglo-Saxon England

Asser, Life of Alfred Asser's Life of Alfred, together with the Annals of St Neots erroneously ascribed to Asser, ed. W. H. Stevenson (Oxford, 1904)

Assize of Arms Assize of Arms, 1181, printed in Select Charters, 183-4

Assize of Clarendon Assize of Clarendon, 1166, printed in Select Charters, 170-3

Assize of the Forest Assize of the Forest, 1184, printed in Select Charters, 186-8

XV1 ABBREVIATIONS Assizes of Northampton Assizes of Northampton, 1176, printed in Select Charters, 179-81

Ado AO, printed in Gesetze, ed. Liebermann, i. 464-5

Atr laws of ZEthelred II, printed in Gesetze, ed. Liebermann, i. 216-70

Battle Chronicle The Chronicle of Battle Abbey, ed. and trans. E. Searle (Oxford, 1980)

Becweo Hit becwed, printed in Gesetze, ed. Liebermann, i. 400

BIHR Bulletin of the Institute of Historical Research

Blas Blaseras, printed in Gesetze, ed. Liebermann, i. 388-9

BNB Bracton’s Note Book, ed. F. W. Maitland (3 vols; London, 1887)

Book of Fees The Book of Fees. Liber Feodorum: The Book of Fees commonly called Testa de Nevill (1198-1293) (2 vols in 3; 1920-31)

Book of Seals Sir Christopher Hatton’s Book of Seals, ed. L. C. Loyd and D. M. Stenton (Northamptonshire Record Soc. and Oxford, 1950)

Borough Customs Borough Customs, ed. and trans. M. Bateson (18, 21 Selden Soc., 1904, 1906)

Bracton ‘Bracton, Henry de’, De legibus et consuetudinibus regni Anglie, ed. and trans. S. E. Thorne (4 vols; Cambridge, MA, 1968-77)

British Borough Charters British Borough Charters, 1042-1216, ed. A. Ballard (Cambridge, 1913)

Carte antique, 1-10 Carte antique, Rolls 1-10, ed. L. Landon (NS 17 PRS, 1939)

CCR Calendar of the Close Rolls preserved in the Public Record Office (62 vols; 1900-63)

Charter of Forest Charter of the Forest, 1217, printed in Select Charters, 344-8.

Chronicles of Stephen etc. Chronicles of the Reigns of Stephen, Henry IT, and Richard I, ed. R. Howlett (4 vols; RS, 1884-9)

CL] Cambridge Law Journal

Cn laws of Cnut, printed in Gesetze, ed. Liebermann, i. 273-371

ABBREVIATIONS XV Cons Cn Consiliatio Cnuti, printed in Gesetze, ed. Liebermann, i. 618-19

Constitutions of Clarendon Constitutions of Clarendon, 1164, printed in Councils and Synods, I, no. 159

Councils and Synods, I Councils and Synods with other Documents relating to the English Church, I: A.D. 871-1204, ed. D. Whitelock, M. Brett, and C. N. L. Brooke (2 vols; Oxford, 1981)

CRR Curia Regis Rolls (in progress, 1922-present)

DB Domesday Book seu Liber censualis

Wilhelmi primi Regis Angliae, ed. A Farley and H. Ellis (4 vols; vols i.-ii. 1783, vols ili.—iv. 1816)

Dialogus Richard fitzNigel, Dialogus de Scaccario, ed. and trans. E. Amt (Oxford, 2007)

Diceto, ed. Stubbs Ralph de Diceto, Opera historica, ed. W. Stubbs (2 vols; RS, 1876)

DMLBS Dictionary of Medieval Latin from British Sources, ed. R. E. Latham et al. (London and Oxford, 1975-present)

Duns Dunseete, printed in Gesetze, ed. Liebermann, i. 374-9

Early Registers of Writs Early Registers of Writs, ed. E. de Haas and G. D. G. Hall (87 Selden Soc., 1970)

ECf Leges Edwardi Confessoris, ed. O’Brien, God’s Peace, 158-203; also printed, with revised versions, in Gesetze, ed. Liebermann, i. 627-72

Eg laws of Edgar, printed in Gesetze, ed. Liebermann, i. 194-215

EGu ‘Treaty between Edward and Guthrum, printed in Gesetze, ed. Liebermann, i. 128-35

EHR English Historical Review

Em laws of Edmund, printed in Gesetze, ed. Liebermann, i. 184-91

EPNS English Place Name Society

Episc Episcopus, printed in Gesetze, ed. Liebermann, i. 477-9

Ew laws of Edward the Elder, printed in Gesetze, ed. Liebermann, i. 138-45

EYC Early Yorkshire Charters, i.-iii. ed. W. Farrer (Edinburgh, 1914-16); index to

XVII ABBREVIATIONS vols. i.-iii., ed. C. T. and E. M. Clay, iv—xii, ed. C. T. Clay (Yorkshire Archaeological Soc. Record Ser., Extra Series,1935—65)

Feet of Fines, Henry II and Richard I Feet of Fines, Henry II and Richard I (17 PRS, 1894)

Foedera Foedera, i. ed. T. Rymer (London, 1816). Geoffrey of Burton, Modwenna Geoffrey of Burton, Life and Miracles of St Modwenna, ed. and trans. R. J. Bartlett (Oxford, 2002)

Ger Gerefa, printed in Gesetze, ed. Liebermann, 1. 453-5

Gesetze, ed. Liebermann Die Gesetze der Angelsachsen, ed. F. Liebermann (3 vols; Halle, 1903-16)

Gesta regis Henrici secundi ‘Benedict of Peterborough’, Gesta regis Henrici secundi Benedicti abbatis, ed. W. Stubbs (2 vols; RS, 1867)

GePyncodo Gebyncoo, printed in Gesetze, ed. Liebermann, i. 456-9

Glanvill Tractatus de legibus et consuetudinibus regni Anglie qui Glanvilla vocatur, ed. and trans. G. D. G. Hall, with a guide to extra reading by M. T. Clanchy (Oxford, 1993).

Glastonbury Surveys of the Estates of Glastonbury Abbey c. 1135-1201, ed. N. E. Stacy (NS 33 British

Academy Records of Social and Economic History of England and Wales, Oxford, 2001)

Historia ecclesie Abbendonensis Historia ecclesie Abbendonensis, ed. and trans. J. G. H. Hudson (2 vols; Oxford, 2002, 2007)

Hl laws of Hlothere and Eadric, printed in Gesetze, ed. Liebermann, i. 9-11

Howden, Chronica Roger of Howden, Chronica, ed. W. Stubbs (4 vols; RS, 1868-71)

HS] Haskins Society Journal

Hu the Hundred Ordinance, printed in Gesetze, ed. Liebermann, i. 192-5 In Cn Instituta Cnuti, printed in Gesetze, ed. Liebermann, i. 612-17

Ine laws of Ine, printed in Gesetze, ed. Liebermann, i. 89-123

Inquest of Sheriffs articles of the Inquest of Sheriffs, 1170, printed in Select Charters, 175-8

J Journal

ABBREVIATIONS X1X

JEcclH Journal of Ecclesiastical History

JLH Journal of Legal History

JMedH Journal of Medieval History Jocelin of Brakelond, Chronicle Jocelin of Brakelond, Chronicle, ed. and trans. H. E. Butler (London, 1949)

John of Worcester John of Worcester, Chronicle, ed. and trans. R. R. Darlington et al. (3 vols; Oxford, 1995-)

Lawsuits English Lawsuits from William I to Richard I, ed. R. C. van Caenegem (2 vols; 106, 107 Selden Soc., 1990-1)

Leis WI Leis Willelme, printed in Gesetze, ed. Liebermann, i. 492-520

LHP Leges Henrici Primi, ed. and trans. L. J. Downer, (Oxford, 1972)

LHR Law and History Review

Liber Eliensis Liber Eliensis, ed. E. O. Blake (3rd Ser. 92 Camden Soc., 1962)

Lincs. The Earliest Lincolnshire Assize Rolls, 1202-1209, ed. D. M. Stenton (22 Lincoln Record Soc.,

LJ Law Journal LOR Law Quarterly Review 1926)

LR Law Review m. a mark, 13s. 4d. or two-thirds of a pound Magna vita sancti Hugonis Magna vita sancti Hugonis, ed. and trans. D. L. Douie and H. Farmer (2 vols; 1961-2)

MGH Monumenta Germaniae Historica Mirce Mircna laga, printed in Gesetze, ed. Liebermann, i. 462-3

Nor Grid Nordhymbra cyricgrid, printed in Gesetze, ed. Liebermann, i. 473

Northamptonshire Charters Facsimiles of Early Charters from Northamptonshire Collections, ed. F, M. Stenton (4 Northamptonshire Record Soc., 1930)

Northants. The Earliest Northamptonshire Assize Rolls, A.D. 1202 and 1203, ed. D. M. Stenton (5 Northamptonshire Record Soc., 1930)

XX ABBREVIATIONS Noroleod Nordoleoda laga, printed in Gesetze, ed. Liebermann, i. 458-61

Northu Northumbrian Priests’ law, printed in Gesetze, ed. Liebermann, i. 380-5

MTB Materials for the History of Thomas Becket,

NS New Series ODNB Oxford Dictionary of National Biography ed. J. C. Robertson (7 vols; RS, 1875-85)

(Oxford, 2004-present)

Orderic, Ecclesiastical History Orderic Vitalis, The Ecclesiastical History of Orderic Vitalis, ed. and trans. M. Chibnall (6 vols; Oxford, 1969-80)

Oxford Charters Facsimiles of Early Charters in Oxford Muniment Rooms, ed. H. E. Salter (Oxford, 1929)

P&P Past and Present

PK] Pleas before the King or his Justices, 1189-1212, ed. and trans. D. M. Stenton (67, 68, 83, 84 Selden Soc., 1952-67)

PR Pipe Roll (year indicated by regnal year of king)

‘Prima assisa ‘Prima assisa@ concerning Forest, printed in Gesta regis Henrici secondi, i. 323-4

PRS Pipe Roll Society

Ps Cn For Pseudo-Cnut de foresta, printed in Gesetze, ed. Liebermann, i. 620-6

Ramsey Chronicle Chronicon abbatic Rameseiensis, ed. W. D. Macray (RS, 1886)

RCR Rotuli curiae regis, ed. F. Palgrave (2 vols; Record Commission, 1835)

Reading Reading Abbey Cartularies, ed. B. R. Kemp (2 vols; ath Ser. 31, 33 Camden Soc., 1986, 1987)

Rect Rectitudines singularum personarum, printed in Gesetze, ed. Liebermann, i. 444-53

Red Book Liber rubeus de Scaccario, ed. H. Hall (3 vols; RS, 1896)

Redvers Charters of the Redvers Family and the Earldom of Devon, 1090-1217, ed. R. Bearman (NS 37 Devon and Cornwall Record Soc., 1994)

ABBREVIATIONS XX1 Rot. chart. Rotuli chartarum in Turri Londinensi asservati, ed. T. D. Hardy (Record Commission, 1837)

Rot. de ob. et fin. Rotuli de oblatis et finibus in turri Londinensi asservati, ed. T. D. Hardy (Record Commission, 1835)

Rot. lit. cl. Rotuli literarum clausarum in turri Londinensi asservati, ed. T. D. Hardy (2 vols; Record Commission, 1833-44)

Rot. lit. pat. Rotuli literarum patentium in turri Londinensi asservati, ed. T. D. Hardy (Record Commission, 1835)

Rotuli de dominabus Rotuli de dominabus, printed in Widows, Heirs, and Heiresses in the late Twelfth Century: the Rotuli de dominabus et pueris et puellis, ed. and trans. J. Walmsley (Tempe, 2006)

Royal Writs Royal Writs in England from the Conquest to Glanvill, ed. and trans. R. C. van Caenegem (77 Selden Soc., 1958-9)

RRAN Regesta regum Anglo-Normannorum

RS Rolls Series S Anglo-Saxon Charters: an Annotated List and Bibliography, ed. P. H. Sawyer (London, 1968), rev. S. E. Kelly, adapted S. M. Miller

Sacr cor royal promise, printed in Gesetze, ed. Liebermann, i. 214-17

Select Charters Select Charters and other Illustrations of English Constitutional History from the Earliest Times to the Reign of Edward I, ed. W. Stubbs (9th edn, Oxford, 1913)

Select Cases of Procedure without Writ Select Cases of Procedure without Writ under Henry III, ed. H. G. Richardson and G. O. Sayles (60 Selden Soc., 1941)

Simeon Simeon of Durham, Opera Omnia, ed.

Soc. Society Surrey The 1235 Surrey Eyre, ed. C. A. F. Meekings T. Arnold (2 vols; RS, 1882-5)

and D. Crook (3 vols; 31, 32, 37 Surrey Record Soc., 1979-2002)

XXil ABBREVIATIONS Swer Swerian, printed in Gesetze, ed. Liebermann, i. 396-9

TAC Trés ancien coutumier, in Coutumiers de Normandie, i. Le Trés ancien coutumier de Normandie; ii. La Summa de legibus Normannie in curia laicali, ed. E.-J. Tardif (Société de histoire de Normandie, Rouen and Paris, 1881, 1896)

Thomas of Marlborough, Evesham Thomas of Marlborough, History of the Abbey of Evesham, ed. and trans. J. E. Sayers and L. Watkiss (Oxford, 2003)

Three Rolls Three Rolls of the King’s Court in the Reign of King Richard the First, A.D. 1194-1195, ed. F. W. Maitland (14 PRS, 1891)

TRE Tempore regis Edwardi, ‘in the time of king Edward’

TRHS Transactions of the Royal Historical Society

TVR Tijdschrift voor Rechtsgeschiedenis

Unknown Charter the ‘Unknown Charter’, printed in Holt, Magna Carta, 427-8

VCH Victoria County History

Wal Walreaf, printed in Gesetze, ed. Liebermann, i. 392-3 Wer Wergeld, printed in Gesetze, ed. Liebermann, i. 392-5

Wi laws of Wihtreed, printed in Gesetze, ed. Liebermann, i. 12-14 Wif Wifmannes beweddung, printed in Gesetze, ed. Liebermann, i. 442-5

William of Malmesbury, Gesta regum William of Malmesbury, Gesta regum Anglorum, ed. and trans. R. A. B. Mynors et al. (2 vols; Oxford, 1998-9)

Wlart Ten articles of William I, printed in Gesetze, ed. Liebermann, i. 486-8

WL art Lond. retr. Willelmi articuli Londoniis retractati, printed in Gesetze, ed. Liebermann, i. 489-91

Wulfstan, Canon Law Collection Wulfstan’s Canon Law Collection, ed. and trans. J. E. Cross and A. Hamer (Cambridge, 1999) Note:

Money: Sums of money from 1066 onwards are stated in pounds (£), shillings (s.), and pence/pennies (d.), with 12d. to the shilling and 20s. to the pound. Those prior to 1066 are

ABBREVIATIONS XXlil stated in pounds (as a word), shillings (s.), and pence/pennies (d). The number of pennies to the shilling was not standardised across England; see below, 201 n. 11, 202 n. 13, 408. Dates: Dates in the form 1066 x 1100 signify a specific but unknown date within that date range, e.g. a charter issued at some point between those dates.

Canon law references: References to Gratian’s Decretum give the largest unit first (Distinctio or Causa), and then the subdivision (questio, capitulum, or dictum) in diminishing order of size. References to post-Gratian canons are to the Liber extra, and are in the form X 1.18.5.

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INTRODUCTORY

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1

The History of Law and the History of Disputes Rw in the reign of King John (1199-1216), Simon ‘Clericus’ accused Thomas son of William, along with several associates, of killing Simons father John ‘Cusin’ or ‘Monachus. Finding him at his meal, they dragged him by his feet to a chamber, placed him on a bed, set fire to his face and beard, and pulled out his tongue. Next they broke into his strongboxes, removed charters of Henry II, Richard I, and an unnamed archbishop, placed the latter two charters on Johns face, and then—'‘to the dishonour of the lord king’—burnt them. Finally they chopped off Johns head. The violence appears not to have been gratuitous, but linked to a

dispute over rights, concerning which the incinerated charters provided telling proof.’ Besides the dramatic violence, moreover, the record also shows the technicality of pleading within court; Simon accuses Thomas not simply of killing his father but of killing him ‘wickedly and in felony and in the peace of the lord king and at night and in murder. He offered to prove it against him ‘through his body, that is through trial by battle, ‘as of his own sight and hearing, as someone who was in that house, having hidden for fear of his life. Thomas responded that he should answer as one who was not yet of age. He also stated that three years had passed since the event, and the king’s justices had been visited in that time but no ‘appeal’ (i.e. accusation) had been made. Simon replied that he had not dared to stay in the area [patria] nor prosecute the appeal, out of fear, and because of the strength of Thomas, who was more or less lord in the area. Thomas then sought that a jury give a verdict on the case. Another day was set for them, and Thomas was meanwhile placed in the custody of his father. Despite the obvious animosity, the two parties were eventually brought to an agreement by licence of the king: Thomas would give Simon 10 marks, and also make a monk for Johns soul; Simon gave up any claim against Thomas and his men concerning the death. The case thus illustrates combinations of the extra-curial and the legal, of the violent and the technical, which are the central theme of this introductory chapter.’ * RCR, ii. 245, CRR, i. 395, PR3J, 31-2.

* Some readers may prefer at this point to begin by reading the Appendix, which introduces the sources used in this book.

4 INTRODUCTORY 1 APPROACHES TO THE HISTORY OF LAW The present volume is very consciously a history of law. It deals with many functions of law: not just that which may spring most readily to mind, the punishment of offences and the prevention and settlement of disputes, but also others such as attempting to increase the predictability of the future; giving ideological underpinning to authority and social order; controlling allocation of resources; facilitating and legitimising certain acts or states, and thereby concealing the exercise of power.

It does so for a period when legal and other social and cultural norms and practices were tightly intermeshed, but nevertheless some distinction of the legal

could be made, and during which that distinctiveness grew? It does not treat law as a set of rules best seen in contrast to the reality of social practice. Rather it regards law as shaping and being shaped by social practices and by the aims and acts of individual participants. At the same time it sees law as treating social

actions in a particular way, fitting a vast variety of situations into a restricted number of abstract forms.* Legal norms might not be so distinct from other social practices nor so decisive in disputes as suggested by some models of law. They might not always prescribe a single form of conduct or a single solution to a dispute. Rather they might be used to give force to arguments within a considerably more fluid process of dispute and settlement.’ However, they did rule out many possible courses of action and many possible decisions. The book therefore engages with various approaches to the history of law. Some, especially historians, have concentrated primarily on royal ideology, legislation, and administration of justice.° Others, in part in reaction to such an approach, have concentrated on processes of disputing’ Others still have focused on working out legal customs and their development, most notably with regard to landholding. Such studies tend to emphasise the conscious ideas of those involved, as revealed

by language and practice. A fourth approach, generally associated with those > See esp. below, 862-4; S. E C. Milsom, The Natural History of the Common Law (New York, 2003). * See e.g. Y. Thomas, ‘Présentation’ (2002) 57 Annales 1425-8.

> See e.g. J. G. H. Hudson, ‘Court cases and legal arguments in England, c. 1066-1166’ (2000) 6th Ser. 10 TRHS 91-115, including comments relating to positivist models of law; J. L. Comaroff and S. Roberts, Rules and Processes: the Cultural Logic of Dispute in an African Context (Chicago, 1981). Notealsoe.g. A. Boureau, La loi du royaume: les moines, le droit et la construction de la nation anglaise (XTe-XIITe siécles) (Paris, 2001), 14.

° See esp. P. Wormald, The Making of English Law: King Alfred to the Twelfth Century: I Legislation and its Limits (Oxford, 1999).

” See e.g. the essays in Conflict in Medieval Europe, ed. W. C. Brown and P. Gorecki (Aldershot, 2003).

. see esp. the essays collected in J.C. Holt, Conquered England 1066-1215 (London, 1997).

1 THE HISTORY OF LAW AND THE HISTORY OF DISPUTES 5

from a legal background, has been the uncovering of elementary legal ideas and their transformation, often over periods longer than those treated by historians interested in matters involving law. This study is written with an awareness of the value of all four approaches, as well as of the tendency of approach to shape conclusion on subjects as broad as the chronology of the emergence of the English common law or the causes and nature of legal change.

2 THE CONDUCT OF DISPUTES If the book's focus, therefore, is law in all its aspects, it remains necessary to provide some initial remarks on contemporary practices of disputing, taking in the extra-judicial, the extra-curial, the extra-legal, and indeed the illegal. As we have already seen, much disputing could take place through direct action, rather than through the courts or other elements of legal process.’° Direct action might involve violence against the person of the opponent. Many local acts of limited violence, for example brawling, may have been settled at a local level without formal court proceedings. Even a quarrel between an abbot and his monks at the start of the thirteenth century involved the monks marching off, staffs in hand, to confront the abbot and his friends mounted on horseback, bearing weapons and cudgels.” Evidence for long-running feuds involving reciprocal killings is very limited, but certainly at the start of our period, properly pursued vengeance was an accepted response in some circumstances.” Property disputes might also lead to the killing of rivals.’ Such homicides risked prosecution, but more limited assault on the person of an opponent might be accepted, given sympathetic observers.’* On other

> This formulation concerning elementary legal ideas comes from S. F. C. Milsom, The Legal Framework of English Feudalism (Cambridge, 1976), 37; see also that entire volume, as well as e.g. Milsom, Natural History; and note e.g. D. J. Ibbetson, A Historical Introduction to the Law of Obligations (Oxford, 1999), 1-12.

*° The following analysis concentrates on the conduct of disputes, but many of the same practices were used to deter challenges and thus prevent disputes from arising; for protection, see e.g. Abbot Geoffrey of Burton’s grant of land to Robert de Ferrers in return for rent and the obligation ‘to love and maintain us and our church, both through himself and his men, as friend and protector of that church’; Geoffrey of Burton, Modwenna, ed. Bartlett, xlvii (no. 4); see also e.g. Redvers, no. 37. ** Thomas of Marlborough, Evesham, iii. 395-6, ed. Sayers and Watkiss, 380-2. The staffs of the ‘unarmed’ defeated the swords of the ‘armed’. "2 See below, 172-4.

** See e.g. S 877, and note Ramsey Chronicle, 25, ed. Macray, 50-1; below, 493, on the killing of Stephen de Dammartin. Note also the deaths reported in Lawsuits, no. 173. For killing arising from a theft, see S 883.

** See e.g. Lawsuits, no. 12. For assault on a royal official leading to arrests, see J. C. Holt, Magna Carta (2nd edn, Cambridge, 1992), 125 n. 14.

6 INTRODUCTORY occasions, violence was directed against the opponent's men or supporters.” There are again signs of restraint being exercised as to violence, as when knights and men of Count Roger the Poitevin confronted knights of the abbot of Burton in c. 1090.

Although the text from which we learn of the confrontation talks in terms of battle, we find that the worst injuries were a broken leg and a tumble into a muddy stream.’° More common than clashes between knights may have been attacks on a rival’s peasants, probably regarded as less of an escalation of a dispute and closer to attacks on property.” Seizure of movable goods or land was a frequent method of asserting pressure, which might be considered proper or improper according to circumstance, procedure, and viewpoint.”

Property might also be seized to establish the disputant’s hold on what he claimed to be his.’® In general we hear of such seizing of land when the other party complained that the action was violent or unjust; however, the party who carried out the seizure may well have believed the action to be just.*° The twelfth-

century writer Geoffrey of Monmouth has King Arthur state that ‘nothing that is acquired by force and violence is justly possessed by whoever did the violence’,

but then use Roman oppressions as justification for his own counter-attacks.” Property retaliation might be seen as appropriate in other circumstances, for example when towns came into dispute over the taking of tolls.”

Aside from force, disputants might seek to achieve their aims through influence. Divine and saintly help might be requested.» Churchmen could

*? See e.g. the harassment of William of St Calais’ men during his dispute with William Rufus; Lawsuits, no. 134. Note also e.g. the seizing of burgesses in Lawsuits, no. 163D. *® Geoffrey of Burton, Modwenna, 47, ed. Bartlett, 192-4. *” See e.g. Lawsuits, no. 415.

"® See below, e.g. 341-3, on distraint. For attack on property, see also e.g. Jocelin of Brakelond, Chronicle, ed. Butler, 133-4.

*? For land, see e.g. Thomas of Marlborough, Evesham, ii. 70, ed. Sayers and Watkiss, 82, from the late Anglo-Saxon period; also below, 342-3, on Lawsuits, no. 272. For recapture of chattels, see e.g. S 886; Sir Frederick Pollock and F. W. Maitland, The History of English Law before the Time of Edward I (2 vols; 2nd edn reissued with a new introduction by S. F. C. Milsom, Cambridge, 1968), 11. 168-9.

*° See e.g. Ramsey Chronicle, 90, ed. Macray, 153-4; Lawsuits, nos 193, 223, 253.

*" Geoffrey of Monmouth, The History of the Kings of Britain, ix. 159, ed. M. D. Reeve, trans. N. Wright (Woodbridge, 2007), 217. *? See Borough Customs, ii. lv; for another dispute concerning tolls, see Jocelin of Brakelond, Chronicle, ed. Butler, 76: ‘the men of London threatened with one voice that they would raze to the ground the stone houses that the abbot had built that year, or else distrain one hundredfold the men of St Edmund’. On treatment of stray beasts, see below, 150-1. *° For a saintly response to prayer, see below, 307, on Bricstan’s case; note also e.g. Historia ecclesie Abbendonensis, i. B63, ed. Hudson, i. 284-6; Thomas of Marlborough, Evesham, ii. 73-5, ed. Sayers and Watkiss, 86-8. On curses being used to defend land grants and agreements, see also below, 359, and e.g. Lawsuits, no. 271. Note also charms being used in trying to retrieve stolen goods; see e.g. A. Rabin, “Ritual magic or legal performance? Reconsidering an Old English charm against theft’, in

1 THE HISTORY OF LAW AND THE HISTORY OF DISPUTES 7

use excommunication, for example against violators of their property.’* The instillation of purely worldly fear could also be a powerful weapon in successfully

maintaining claims or deterring challenges.* A lesser disputant could benefit from the support of an active lord, who would back him up, ‘maintain’ him in his disputes.” He might also solicit help from other influential people, be they aristocrats, the locally powerful, or royal officials.” Friends might bring help, friendship sometimes being formally reinforced by land grant and documentation.”* Those with connections to both parties might seek their reconciliation or some other solution to the dispute.”? Gifts would be used to gain support, or obtain a desired outcome.” For example, parties might seek to outbid one another in order to get the king to award them disputed land.’ However, expensively purchased support of the powerful might be lost through circumstances beyond the disputant’s control, for example through changes in local or national politics.” Cases could be brought to a decision out of court, be it by successful direct action, by decree of a powerful person, or by agreement, mediation, or arbitration*’ During Henry I’s reign, William Peverel and the abbey of Thorney were

English Law before Magna Carta, ed. S. Jurasinski et al. (Leiden, 2010), 177-95. See also below, 167, on

witchcraft.

** See e.g. Liber Eliensis, ii. 96, ed. Blake, 165-6; Historia ecclesie Abbendonensis, ii. 47-8, ed. Hudson, ii. 56-8; Lawsuits, no. 311 (quoted below, 331). For spiritual penalties, see further Wormald, Making of English Law, 211-2; J. G. H. Hudson, Land, Law, and Lordship in Anglo-Norman England (Oxford, 1994), 167-71. Excommunication excluded the person subjected to it from the communion

of the faithful, preventing them from receiving the sacraments, and imposing other deprivations and penalties; see e.g. E. Vodola, Excommunication in the Middle Ages (Berkeley, 1986). Note also the prayer for vengeance against opponents in Facsimiles of Horae de Beata Maria virgine, ed. E. S. Dewick (21 Henry Bradshaw Soc., 1902), cols 1-2. *° See e.g. Liber Eliensis, ii. 142, ed. Blake, 226-7; Lawsuits, no. 395. *° For the importance to a church of the physical presence of a protector, see Lawsuits, no. 323. For

maintenance, see also P. R. Hyams, “Warranty and good lordship in twelfth century England’ (1987) 5 LHR 437-503, at 449-51; and see e.g. S 1445 (the Fonthill letter), Charters of the Honour of Mowbray 1107-1191, ed. D. E. Greenway (NS 1 British Academy Records of the Social and Economic History of England and Wales, 1972), no. 313, and—for reference to maintenance by men at a lower social level— note e.g. Glastonbury, ed. Stacy, 89, 236. Note also the problems of monasteries when, during vacancies, they lacked a head; e.g. Lawsuits, no. 222. Churches might look to the pope for help, including the threat of spiritual penalties; see e.g. Councils and Synods, I, no. 36 (the only letter from a pope toa lay noble to survive from the Anglo-Saxon period), and below, 493. *” See e.g. Lawsuits, no. 323. See also below, 845, and note Hyams, ‘Warranty’, 450. *® See above, n. 5.

? See e.g. Lawsuits, no. 324; note also Lawsuits, no. 242. °° See e.g. Liber Eliensis, ii. 33, ed. Blake, 107-8; Jocelin of Brakelond, Chronicle, ed. Butler, 98, 116; and below, 845. *" E.g. Lawsuits, no. 146. *? See e.g. Lawsuits, no. 641.

°° For mediation by a bishop, see e.g. Lawsuits, no. 139; for relics bringing reconciliation, see Thomas of Marlborough, Evesham, ii. 101-2, ed. Sayers and Watkiss, 114-16; for parties agreeing to arbitration on ‘a day of settlement’, see Jocelin of Brakelond, Chronicle, ed. Butler, 61.

8 INTRODUCTORY in dispute over a church, but one day William, Abbot Robert, and Earl David of Huntingdon met. The abbot asked William to give up the above dispute for the salvation of his soul and for the souls of his ancestors. Through the intervention of the earl and a further multitude of great men who were present, he promptly surrendered and handed over the disputed church to the abbot by a rod. For this Earl David kissed his hand and then the hand of the abbot, and thus William, as well as the earl, was made a joint recipient of all the benefits of the church of Thorney.

Just as the Leges Henrici Primi early in the twelfth century tells us that ‘agreement trumps law, and love trumps judgment’, friendship is here presented as preferable to litigation.“ So far the focus has been on activities that might be considered not just extrajudicial or extra-curial but also extra-legal. However, their separation from legal proceedings was not a sharp one. For example, elements of self-help were brought within accepted legal procedures. Action to limit vengeance killing in late AngloSaxon England involved directing violence through royal and local command-® An essential way of dealing with thieves was to allow their pursuit, capture, and execution after summary judgment.® Pressure to obtain services or to force men to answer claims in court relied upon direct action relating to their possessions, although again it was regulated direct action.”

In addition, the extra-legal could be combined with proceedings that must certainly be defined as legal. Parties exercised self-help and also sought justice through royal writs and court processes2* A party might seize the object of the dispute, calculating that it was better to fight as possessor.? The balance of support in court might determine the success of a claim, or suggest the tactics that a party might pursue.*° A party might appear with an intimidating band of supporters.” At least in the eyes of the defeated party, fear felt by court or jury

** Lawsuits, no. 235; LHP, 49. 5a, ed. Downer, 164. See also e.g. below, 90-1.

°° See also P. R. Hyams, ‘Feud and the state in late Anglo-Saxon England’ (2001) 40 J of British Studies 1-43; J. G. H. Hudson, “Faide, vengeance et violence en Angleterre (ca 900-1200)’, in La vengeance, 400-1200, ed. D. Barthélemy et al. (357 Collection de P’école Frangaise de Rome, 2006), 341-82. °° See below, 59, 291, 562, on infangentheof; note also 171, on hue and cry. Such procedure came increasingly under the review of royal officials; below, 565, 723. °” See below, 341-3, 636-9, on the process known as distraint. °® See e.g. Lawsuits, nos 272, 641. *? See below, 10, on Lawsuits, no. 581; also below, 158, for IT Atr, 9. *° See e.g. Lawsuits, nos 246, 581; also below, 629, on the Cockfield case.

“ See e.g. Lawsuits, no. 634. For the role of supporters in Anglo-Saxon cases, see e.g. Liber Eliensis, ii. 19, 32, ed. Blake, 95, 105-7; Ramsey Chronicle, 75, ed. Macray, 135-40.

1 THE HISTORY OF LAW AND THE HISTORY OF DISPUTES 9

may have determined an unfavourable judgment or verdict.” Gifts were made to ensure support in a specific case or continuing favour in a particular court.” Likewise, access to justice might be a matter of favour or of payment, and at the end of our period we have particularly full records of the payments that great men had to make to the king in pursuit of their rights.+ Gifts might be seen as, or at least argued to be, legitimate in certain forms and circumstances. In the late 1170s the royal treasurer responded to arguments that payments to the king amounted to the selling of justice by stating that the payments were only to ensure that justice was done without delay.** However, what one disputant, and the recipient, might argue was a legitimate gift, the other disputant would view as bribery. Corruption of officials and those responsible for judging is apparent from many cases, and was the subject of intermittent crackdowns.‘ Court hearings did not necessarily reach judgments, but might share some

characteristics with extra-curial settlements.” Intercession by neighbours might lead to settlement in court,** or parties in court might agree to arbitration.*? Even following a judgment, a case might often end with the losing party being given some mercy, some sweetener, or some interest in the object of the dispute, for example life-tenure of contested rights. Henry of Blois, in his account of his abbacy of Glastonbury (1126-71), presents himself as a fierce pursuer of the abbey’s rights, but also tells us that once an opponent had been defeated, ‘it rang in my ears that a bruised reed should not be broken’*° The honour as well as the material interests of the parties could be of importance in the origin, the conduct, and the settlement of disputes, both outside and within

court” * Seee.g. Lawsuits, no. 19. Note also Canterbury Cases, A.12, for witness intimidation. *° See e.g. IT As, 17, Ramsey Chronicle, 103, ed. Macray, 170, Lawsuits, nos 3, 317, 390, 641 (p. 678).

** See Holt, Magna Carta, ch. 5. From earlier, see e.g. Lawsuits, nos 138A, 246, 363. See Howden, Chronica, s.a. 1198, ed. Stubbs, iv. 66, on the king favouring laymen against clergy. See also below, 574-6, on the Anstey case. *° Dialogus, ii. 23, ed. Amt, 178-80; cf. e.g. the use of gifts in Lawsuits, no. 641. See also Lawsuits, no. 662, for the chronicler Jocelin of Brakelond commenting that he had seen Abbot Samson take money, ‘so that, by the intervention of his authority, suits and pleas might reach their due end’. *° See below, 17, for Asser, 516-17, for the Inquest of Sheriffs. *” Note the mixture of forms in Lawsuits, no. 641. ** See e.g. Lawsuits, no. 272; for mediation, note also Lawsuits, no. 448; for agreement being made in an assembly, see e.g. Lawsuits, no. 368.

* For arbitration or mediation, see e.g. CRR, iv. 145; v. 59; Thomas of Marlborough, Evesham, iii. 238-9, ed. Sayers and Watkiss, 238-40. °° Lawsuits, no. 257; the biblical allusion is Isa. 42:3. See also e.g. Lawsuits, no. 258. >" Note e.g. CRR, vi. 156, 255, where one party states that he would not have suffered for 200m. the shame and harm of a man having taken the daughter of one of his knights to marry. Note that the dispute also involved forceful confrontation over the knight’s land following his death. However, in the end 10m. sufficed to satisfy his claims. See below, 627, for a dramatic gesture made by Abbot Samson

10 INTRODUCTORY Continuities and change, c. 871-1216 So far we have not considered chronology, but the forms of conduct discussed above can be found throughout our period. Continuity of methods of pursuing disputes can clearly be illustrated by individual cases, which show the combination of approaches taken. In the late 1180s, a man was killed in a manor of the monks of Canterbury that lay in a hundred belonging to the abbey of Bury St Edmunds.” The archbishop’s men did not allow the court of Bury to try the accused. Abbot Samson of Bury—a man who shall appear often in our discussions—then resorted to direct action, but action that had a tactical purpose within the context of litigation. According to the abbey chronicler Jocelin of Brakelond, Samson stated that ‘it is wiser counsel that the archbishop make complaint about me than I about the archbishop. I wish to place myself in seisin [i.e. take possession] of this liberty, and afterwards defend myself with the aid of St Edmund, to whose right in this matter our charters witness. He therefore dispatched an armed band of about eighty men who seized the three killers at the place where the killing had occurred. As predicted, the archbishop of Canterbury complained of this, the king’s chief justiciar ordered that the killers be bound by gage and pledge to stand justice in the court where they ought to stand, and the abbot was summoned to the king’s court to answer concerning the force and wrong that he was said to have done to the archbishop. When eventually both parties appeared before the king in the chapterhouse at Canterbury, their charters were read out and found both to have been issued by Edward the Confessor (1042-66); in the king’s opinion, they had simply to be considered contradictory. The abbot then made his seemingly neutral plea, but one that was clearly the product of considerable calculation and preparation: “Whatever may be said of the charters, we are in seisin and have been so up to this time, and on this matter I desire to place myself on the verdict of two counties, that is Norfolk and Suffolk, that they grant this.’ The archbishop consulted, and then refused to stand by the opinion of the men of Norfolk and Suffolk because of their love for St Edmund and the abbot’s control over the greater part of the counties. Rather than passing

through a series of procedures, the stand-off simply remained as the king lost patience and departed saying ‘Let him take who can.

during the conduct of a dispute; 743-5, on trespass; P. R. Hyams, Rancor and Reconcilation in Medieval England (Ithaca, 2003), 193, on the treatment of sexual offences. For rituals and settlements, see also Hyams, Rancor, 199-208. >? Lawsuits, no. 581; no. 641 is another excellent example of the employment of in and out-of-court

activities. Note also the case with which this chapter opens; above, 3. On the administrative unit known as the hundred, see below, 50-5.

1 THE HISTORY OF LAW AND THE HISTORY OF DISPUTES iat

So much for continuities in forms of disputing; what of change? On various broad questions the sources do not permit an answer. For example, one cannot tell whether there was an increase in the proportion of disputes that ended by judgment for one party rather than by compromise. Likewise it is impossible to tell whether the balance between in and out-of-court activity shifted.* It may, however, be tentatively suggested that there was an increase in the amount of litigation. Late twelfth and early thirteenth-century reforms may not only have increased the importance of the royal courts but also generated litigation. Economic development may also have provoked disputes, arising from competition over resources and from greater market activity, for example land sales. Increased litigation may have been the cause of complaints about litigiousness, a development not confined to England.** Henry II's justiciar, Richard de Lucy, was perhaps reflecting on real change rather than suffering from nostalgia when he stated that ‘in times of old, malice did not, as now, render men pleaders or sceptics [causidicos vel incredulos] ©

If quantifying overall changes in behaviour is impossible, some suggestions may be ventured on more specific aspects. Let us begin with the use of violence. Change was not consistent, and there certainly was an increase in the reign of Stephen (1135-54)°° Revenge slaying in the context of homicide, implicitly accepted in the late ninth-century laws of Alfred, was significantly restricted in the tenth.” The impulse for revenge killing was still apparent after 1066, but certainly by the later twelfth century and quite possibly considerably earlier, homicide was a plea

under royal jurisdiction, leaving only some residual claims to compensation on the part of the victim’s family.*® There was also pressure to exclude other uses of violence in disputes, and the chronicler Orderic Vitalis, writing in Normandy in the second quarter of the twelfth century, famously commented that for an aristocrat to wage war and burn crops was an almost unheard of wrong in England, and could only be atoned by a very heavy penalty.° A problem arises because

of certain passages in the late twelfth-century law-book Glanvill, including

°* For example, the huge number of final concords from the end of the twelfth and the early thirteenth centuries could reflect greater concentration on royal courts and a new form of record, rather than an increase in the proportion of activity taking place in court; see below, 880. °* See e.g. B. Smalley, The Study of the Bible in the Middle Ages (3rd edn, Oxford, 1983), 50.

°° Battle Chronicle, ed. Searle, 214; note that Richard’s preceding statement, concerning the spread of seals down society, seems to match real change. °° See below, 492-4. Increases in violence may have occurred in other periods, for example the reign of Edward the martyr (975-8; see e.g. Liber Eliensis, ii. 34, ed. Blake, 109) and parts of that of /Ethelred II (978-1016). °” See below, 172-4. °® See below, 278-9, 553, 714. For continuing use of compensation for wounds, see e.g. below, 832. °° Lawsuits, no. 190; cf. LHP, 59. 12a, ed. Downer, 186.

12 INTRODUCTORY one where the author asked whether lords might demand reasonable aids (i.e. monetary payments) from their men ‘to maintain their own war [werram]’.°° That such a statement should indicate a right to wage private war in England is hard to reconcile with, for example, the prohibition of such war in the equivalent Norman legal text.” The most likely explanation may be that the wars concerned were not in England, but perhaps in Wales or Ireland.” Violent conduct of disputes persisted, but could be opposed by use of criminal charges, the clearest possible way of classifying deeds as illegal.* In general the

powerful preferred to rely on men of lower status to carry out their violence, although it is unclear whether this practice was merely now better revealed by increased evidence or whether it reflects real change, linked perhaps to greater social differentiation. Even forceful direct action without violence to the person could lead to criminal charges. In 1189, when men occupied a marsh claimed by the abbey of Crowland and did harm to Crowland’s property, the abbot and his men accused them of breach of the king’s peace, and violence and wrong.” As we saw in the case of Abbot Samson, resort to action that might be classified illegal could be a matter of calculation as to the profit obtainable, at least temporarily or tactically, as well as the possibility that the action might simply not be challenged.® Use of force was permitted in the execution of justice, as in exercise of the right

to execute thieves caught red-handed or in the enforcement of royal orders. Lords, particularly privileged lords, were still allowed some exercise of force in assertion of their rights,” but increasingly had to act within a context set by royal judicial actions.® Thus the disseised man had some opportunity to seize back the land concerned without the prospect of losing through a royal action concerning

°° Glanvill, ix. 8, ed. Hall, 112; note also Glanvill, ix. 1, ed. Hall, 104. °* TAC, 31, ed. Tardif, 27.

°* For further discussion of these problematic passages, see Hudson, ‘Faide’, 369-71. °° See e.g. CRR, i. 101.

°* Lawsuits, no. 641 (pp. 673-5). Note again how behaviour that did not involve physical harm to the person was categorised as violence. °° See above, 10. Note also Holt, Magna Carta, 102-3, on lords acting in ways similar to the Angevin kings. °° For infangentheof, see above, 8, below, 59, 291, 562. For the execution of royal orders, see e.g. Lawsuits, no. 173.

°” See e.g. Jocelin of Brakelond, Chronicle, ed. Butler, 59-60.

°° See also G. Rosser, ‘Sanctuary and social negotiation in medieval England’, in The Cloister and the World: Essays in Medieval History in Honour of Barbara Harvey, ed. J. Blair and B. Golding (Oxford, 1996), 57-79, at 69, for continuing self-help, but within the context of rules relating to the administration of criminal justice. See below, 422, on the greater freedom allowed to lords in their dealings with the unfree.

1 THE HISTORY OF LAW AND THE HISTORY OF DISPUTES 13

disseisin, but there were restrictions on his freedom to use self-help, and he may have had to choose between self-help and litigation.”

Men continued to pursue vengeance but increasingly did so through the courts.” Court procedures could be manipulated for homicidal purposes. The chronicler and former royal justice Roger of Howden wrote about Henry II’s chief justiciar, Ranulf de Glanville, having a man put on trial for abducting a girl who

was in the king’s gift. Glanville wanted the man dead, so that he himself could give the girl to another, and he therefore urged those judging to sentence the man to death.” Increasing focus on royal courts led to a greater emphasis on cultivating support among royal officials, especially justices.” Gifts were also used to influence, or were requested by, those providing the verdicts required by new royal actions.” It is possible, though, that there were developments in attitudes to gifts and payments. For example, by the last decades of our periods certain royal actions were now normally available at a fixed low charge. Similarly, certain set reliefs for inheritances had developed by the latter part of the twelfth century.“ Such routine payments may have encouraged the perception of arbitrary and high demands as improper.” Likewise the focus of gifts on influencing those responsible for deciding cases may have maintained and indeed hardened an association of incorruptibility with refusal of gifts. Interestingly, Jocelin of Brakelond, in his portrayal of Abbot Samson, couples this issue with the acquisition of specialised legal knowledge. When Samson was first appointed a papal judge delegate (that is a local ecclesiastic appointed by the pope as judge for a specific case) he relied on counsel from two clerks experienced in law. However, he also studied the decrees and decretal letters, whenever he had time, so that within a short time by studying books and consideration of cases, he came to be regarded as a wise judge, acting in legal matters according to the form of law [secundum formam juris in jure

°° See D. W. Sutherland, The Assize of Novel Disseisin (Oxford, 1973), 97-125; on choosing between litigation and self-help, see Sutherland, Novel Disseisin, 105; CRR, v. 44, 70.

© This is a core argument of Hyams, Rancor. See e.g. CRR, vi. 264-5, and below, 725, on cases brought through hatred and spite. ” Lawsuits, no. 553. ” See esp. PKJ, i. no. 3475; also e.g. Lawsuits, no. 446, and note no. 653. See also R. V. Turner, The English Judiciary in the Age of Glanvill and Bracton, c. 1176-1239 (Cambridge, 1985), esp. 121-2, and 181 on baronial patronage of royal justices. Note also from earlier in the twelfth century, the bishop of Norwich writing to Roger of Salisbury on matters relating to pleas; Epistole Herberti de Losinga, ed. R. Anstruther (Caxton Soc., 1846), no. 26 (part of which appears as Lawsuits, no. 211). ”* See e.g. Lawsuits, no. 641; Jocelin of Brakelond, Chronicle, ed. Butler, 60-1. ”* On reliefs, heirs’ payments for inheritances, see below, 349. ”” See below, 850.

14 INTRODUCTORY procedens]|; therefore someone said “Cursed be the court of that abbot, where neither gold not silver profits me for confounding my opponent.”°

Such possible developments regarding violence, influence, and payments, show participants in disputes distinguishing various extra-legal means of obtaining their ends from the norms and processes of law. It is the latter that are the primary concern of the present book. In England in this period, a key element shaping the development of law distinguishable from other social norms and practices was the strength of the royal regime. Even in the late twelfth century, men consciously turned to other methods of disputing when the king was reported to

have died and no successor had been crowned.” A theme of the book is the connections between aspects of legal development; however, for practical purposes one must somehow divide the seamless web of legal history, and it is fitting to start each chronological section of the volume with an analysis of kingship and its relationship to law.

”° Lawsuits, no. 661; note also his unwillingness to show lenience regarding amercements, reported later in the passage. On payments to royal officials, note also F. Lachaud, L’Ethique du pouvoir au Moyen Age (Paris, 2010), 606-21. Cf. the development of a code of professional practice among canon lawyers; J. A. Brundage, The Medieval Origins of the Legal Profession (Chicago, 2008), esp. ch. ll, and note e.g. Battle Chronicle, ed. Searle, 322-4, for canon lawyers excluding themselves from a case on grounds of conflict of interest. ”” In Lawsuits, no. 641 note at p. 673 the resort to direct action when it was rumoured, albeit falsely, that the king had died; cf. the degree of obedience to law and royal justice displayed at other points in the dispute, e.g. at pp. 674, 680. On interregna, see G. S. Garnett, Conquered England (Oxford, 2007).

Part I

LATE ANGLO-SAXON ENGLAND

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2

Kings and Law “Trenares the end of Alfred’s reign (871-99), a Life of the king was written by

his close supporter and churchman, Asser.’ According to Asser's last chapter, Alfred was active with regard to judgments for the benefit of both nobles and nonnobles. Disagreements arising in assemblies of ealdormen and reeves meant that

scarcely anyone would accept as correct what ealdormen and reeves adjudged. The parties therefore turned to the king if they thought their case good, or avoided judgment if they thought it flawed. They feared exposure by the king, who was ‘an extremely astute investigator in reaching judgments, as in everything else. Alfred would carefully look into nearly all the judgments that were made in his absence anywhere in his realm, to see whether they were just or unjust; and if he could identify any iniquity

in those judgments, he would ask the judges concerned politely, as is his wont, either in person or through certain of his other loyal men, why they had judged so unfairly, whether through ignorance or because of some other wrongful desire (that is, whether for love or fear of the one party or hatred of the other, or even through greed for money).

If the judges explained their judgment by the limits of their knowledge in these matters, the king would admonish them in restrained fashion, telling them that they had neglected the study and application of wisdom, despite having been appointed to office ‘by God's gift and my own. He would say that ‘I command you either to relinquish immediately the offices of worldly power that you possess, or else to apply yourself much more attentively to the pursuit of wisdom: To gain such wisdom, the ealdormen, reeves, and thegns, previously illiterate, applied themselves to learning to read, rather than relinquish their offices. If any could not do so, his son, his relative, or—failing those—his man, was to read out books to him in English. Asser's account, idealised as it may be, is very significant. The key characteristic

of the king in a legal context was as judge; his role as legislator is not mentioned. The basis of good judgment was wisdom rather than specialist legal knowledge. The king was the focus of justice within his realm, dealing with hard cases, failures of justice, and problematic judges. At the same time, demand for justice meant ' Asser, Life of Alfred, 106, ed. Stevenson, 92-5. Note also the analysis in Wormald, Making of English Law, 118-25.

18 PART I: LATE ANGLO-SAXON ENGLAND that he had to delegate judicial administration, to ealdormen, reeves, and thegns.

Literacy was important, but for the general formation of a good office-holder rather than the specific conveyance of information. This history of the laws of England begins before England was a political entity. King

Alfred, of whom we have just been hearing, defeated the Danes who were invading his kingdom of Wessex in the last decades of the ninth century. In the first half of the tenth, his successors, through military and other means, asserted their control over the rest of England. They therefore brought under their power a population upon which Scandinavian settlement had had considerable influence, although it remains uncertain how numerous the Scandinavian settlers were. Then, particularly in the reign of King Edgar (d. 975), king and leading churchmen co-operated in a movement of Church reform, particularly characterised by the promotion of Benedictine monasticism. Kingship was also notable for its administrative power, in judicial matters, as we will see, and in financial ones. Yet despite such administrative power, internal political divisions continued and the realm was conquered twice by external invaders, Swein and Cnut of Denmark in 1013-16 and William of Normandy in 1066.

1 LAW AND KINGSHIP Wulfstan

Our perception of the place of law in the ideals of Anglo-Saxon kingship is strongly influenced by the ecclesiastical origin of the vast majority of sources. This problem is clearly illustrated by the extensive and significant writings associated with Wulfstan, archbishop of York between 1002 and 1023. His works included homilies, canon law, and legislation in the names of Kings /Athelred and Cnut. Differentiation between types of work was limited, and particularly in the laws of Cnut he recycled extracts from his homiletic and other writings. He was pro-

foundly influenced by the prospect of a millennial apocalypse, although by the time of Cnut he may have been more willing to recognise the possibility of a fresh start. The proper response was to strengthen the Church, a view encouraged by his examination of canon law. Associated necessities were political loyalty, pursuit of a Christian life based on prayer, and fear of the Last Judgement. The law of God, as revealed by the Bible and ecclesiastical authority, was to be followed, the divinely ordained social order secured. The predominant agents in this process were to be bishops, but kings and lay officials were also to act properly.’

* See Wormald, Making of English Law, esp. 353-4, 365, 455, 464.

2 KINGS AND LAW 19 Were the views of Wulfstan as expressed in laws under the name of A:thelred or Cnut more widely held? Wulfstan’s legislative texts survive almost entirely in the context of manuscripts with a particular association to him. However, there is also a lesser channel that has no link to him; there must have been some external audience for his ideas Furthermore, Wulfstan was an important royal adviser, and the kings and their counsellors must to some extent have accepted his ideas.* The real difficulty is that other ideas may have co-existed with Wulfstan’s, but were never written down or have not survived.

Kingship, law, and justice The coronation ritual in late tenth-century England contained three precepts, to which the king swore: Firstly, that the Church of God and all Christian people keep true peace, by my command. Secondly, I forbid robbery and all unrighteous deeds by all ranks. Thirdly, I promise and order justice and mercy in all judgments, so that compassionate and merciful God, who lives and reigns, may forgive us all through his own mercy?

The core themes of peace, protection of the Church and of Christians, prevention of wrongdoing, provision of justice and mercy, and conduct proper in God's eyes, will recur as we examine the ideals of kingship, law, and justice in this and later periods. A powerful king was to maintain peace and provide protection against wrongdoing. Justice and law could therefore be paired with military success, sometimes with the first characterising good peace-time, the latter good war-time kingship. The chronicle of Ealdorman Athelweard, written in the later tenth century, is useful in providing a lay aristocrat'’s view. His obituary for King Alfred, for which there is no equivalent in the surviving versions of his main source, the Anglo-Saxon Chronicle, states that Alfred was ‘a man full of justice, keen in weapons, learned in speech, and above all imbued with divine teachings.° Law-codes likewise show a concern with

> See VII Atr; Wormald, Making of English Law, 330-1. * See M. K. Lawson, ‘Archbishop Wulfstan and the homiletic element in the laws of /Athelred II and Cnut’ (1992) 107 EHR 565-86, at 582-3. See also Wormald, Making of English Law, 459, for parallels to Continental thought. > Sacr cor. The phraseology reflects the earliest surviving version of the coronation liturgy, in which the king orders the people subject to him to follow three precepts. For comments on the precepts and the development of the coronation ritual, see Wormald, Making of English Law, 447-8; G. S. Garnett, ‘Coronation, in The Blackwell Encylopaedia of Anglo-Saxon England, ed. M. Lapidge (Oxford, 1999), 122-4; J. L. Nelson, “The first use of the second Anglo-Saxon ordo, in Myth, Rulership, Church and Charters: Essays in Honour of Nicholas Brooks, ed. J. Barrow and A. Wareham (Aldershot, 2008), 117-26. ° The Chronicle of Athelweard, iv. 3, ed. and trans. A. Campbell (London, 1962), 51. For the pairing of laws and arms in Glanvill, and also in Justinian’s Institutes, see below, 497.

20 PART I: LATE ANGLO-SAXON ENGLAND protection and with peace, both in a general sense and in the more particular one of peace or protection imposed by the king. Thus the Prologue of III 4thelred states that ‘these are the laws which King AAthelred and his witan [counsellors or council] have decided at Wantage for the improvement of the peace [to frides béte]; whilst its first clause specifies ‘that his peace [grid] shall continue to be maintained as firmly as it was maintained in the days of his ancestors, so that breach of that which he establishes with his own hand shall be uncompensatable [b6tleas]’7 In addition, the king was to bea judge. In so doing, he would display the Christian and Biblical virtues of justice and wisdom. Justice might involve the proper punishment of wrongdoing, but, when appropriate, mercy should be displayed.* The prominence of the king as judge is neatly encapsulated in another text that may have been composed by a layman, the Fonthill Letter from early in Edward the Elder's reign (899-924): the writer asks ‘if one wishes to change every judgment which King Alfred gave, when shall we have finished disputing [gemotad]?’ Law emphasised the position of the king in other ways. Some texts attributed to him the highest of wergelds (payments to kin in compensation for death), with an additional payment being made in compensation to the people.® Offences regarding the king were particularly severely punished. For example, Alfred's laws state that ‘the fine for breaking into the king’s fortified premises is 120s.; into those of an archbishop 9os.; into those of another bishop or of an ealdorman, 60s.;... The fine for breaking through a ceorls enclosure 5s."° The laws also emphasise the oath and pledge that all free men were to maintain towards the king, a topic positioned prominently in Alfred's text." The king was the possessor of particular legal rights; if others possessed any of them it was only by special royal grant. The terms mundbryce (breach of protection), hamsocn (assault on a person in a house, or perhaps on the house), and forsteal (obstruction, particularly of royal officials), first appear in Edmund's laws. All are offences that might arise in the pursuit of feuds, the limitation of which was the main concern of the laws referred to as II Edmund. The association of the rights with the king may indicate an increasing emphasis on the king's role as maintainer of the realm’s peace, as its personification, who answered for it to God. As well as the victim receiving compensation, the king now asserted the power to punish these offences.” A set of Cnuts laws, known

” See also e.g. I Atr, Prol. For the king’s peace and discussion of the Old English terms grid and frid, see below, 162.

* See also below, 32-3, on bishops and mercy. > See below, 201. 10 AF 40.

‘' Af, 1; see further, below, 163-4. ‘? II Em, 6, II Em, 6; Wormald, Making of English Law, 310, 312; T. B. Lambert, ‘Protection, feud and royal power. Violence and its regulation in English law c. 850-c. 1250’ (unpublished PhD thesis, University of Durham, 2009), esp. 40-6, 79-81, 93-102; also below, 172-3.

2 KINGS AND LAW 21 as IT Cnut, further stated that, unless he had granted them away, the king had various rights including the above three, throughout Wessex and Mercia, and a related list of rights in the area of Danish law.?

Law and judicial rights could also be used to exemplify the unity of the realm. This might be in relation to practical matters, as when III Edgar specified that the standards of weights and measures used in London and Winchester should extend across the realm, and when II Cnut stated that ‘one law concerning exculpation is to exist within the burhs [boroughs, that is fortified places].’* Or it could be more general, emphasising the reach of law and justice, as when a law of Edgar stated that ‘in the first place I wish that every man, rich or poor, be worthy of folcriht and just judgments are to be judged for him’* Or it could be a matter of the ideology of Christian kingship: ‘the first provision is that, above all else, they would ever love and honour one God, and unanimously uphold one Christian faith, and love King Cnut with due loyalty.”°

In addition, it must be the case that kings drew important income from justice,

although no indication of amounts can be obtained until the twelfth century.” Administration of justice also offered possibilities for patronage through favour and forgiveness,"* and later evidence suggests that regulation of weights and measures could be developed into a profitable system of licensing exemptions.”

King as legislator Such provisions take us on to royal legislation. Whilst respect was paid to longestablished practice,” this did not prevent kings from legislating. They might claim to be acting in accordance with Biblical and Christian law, or simply to be selecting from the laws of their predecessors, but on other occasions they were explicit that they were changing practice.” The image of king as legislator was of considerable importance, and we can again start with Alfred. Alfred is unique amongst the English kings in our period

in his recorded interest in the production of works in the vernacular; these include his laws as well as translations into English of ‘certain books that are the ** II Cn, 12, 14, 15.

** TIT Eg, 8.1, I Cn, 34.

*° TIT Eg, 1.1; note also e.g. IV Eg, 2a. For discussion of the meaning of folcriht, see below, 247-8. © TCny,1. *” See below, 271.

*® See e.g. S 1445 (the Fonthill Letter). *? See below, 523-4. *° See E Kern, Kingship and Law in the Middle Ages, trans. S. B. Chrimes (Oxford, 1939), M. T. Clanchy, ‘Remembering the past and the good old law’ (1970) 55 History 165-76.

*" See below, 29, on Athelstan; see also e.g. IV Eg, 2. la, on adding to predecessors’ laws.

22 PART I: LATE ANGLO-SAXON ENGLAND most necessary for all men to know.” His law-code can be split into two parts, a lengthy Prologue and a set of clauses presented as laws acceptable to Alfred and his counsellors. In the manuscripts these conclude with the laws of an earlier king of Wessex, Ine (688-726). Ine and Alfred’s laws are further integrated by their division, very probably from Alfred's own time, into 120 chapters, forty-three for Alfred, the remainder for Ine.” The Prologue opens with Exodus 20, the words of God to Moses including the Ten Commandments. The archetypal laws and lawmakers are thus immediately present, the influence of the Old Testament on ideas of kingship very apparent. Further extracts from Exodus 21-3 follow, before a passage states that these are the laws [domas] that the Almighty God himself spoke to Moses, and commanded him to keep; and after the only begotten son of the Lord, our God, that is, our saviour Christ, came on earth, he said that he came not to break nor to forbid these commandments, but with all good to increase them; and mercy and humility he taught.

The idea of an additional, new law, incorporating mercy, is thus introduced. The passage goes on to state that following the Passion of Christ, messengers were sent to Antioch and Syria to teach Christ's law [@]. A letter from the Apostles sent to Antioch, Syria, and Cilicia is then quoted, somewhat modified from Acts 15:23-9. It is made to close with the ‘Golden Rule drawn from Matthew 7:12, ‘that which ye will that other men do not unto you, do ye not that to other men. The letter is followed by the statement that from this one law a man may remember that he judge every one righteously; he need heed no other law-book [dom-boca]. Let him remember that he adjudge to no man that which he would not that he should adjudge to him, if he sought judgment against him.

This passage is given particular prominence in the manuscripts as the beginning of the first numbered chapter. Possibly providing a reminder of an assembly of the Apostles mentioned in the earlier letter, the Prologue goes on: When it came about that many peoples had received the faith of Christ, many synods of holy bishops and also of other distinguished counsellors were assembled throughout all the earth, and also throughout all the English people (after they had received the

*? King Alfred’s Version of Gregory’s Pastoral Care, ed. and trans. H. Sweet (45 Early English Text Soc., 1871), 6; Wormald, Making of English Law, 272-7; cf. M. R. Godden, “Did King Alfred write anything?’ (2007) 76 Medium Avum 1-23. *° Wormald, Making of English Law, 267; D. Pratt, The Political Thought of King Alfred the Great (Cambridge, 2007), 219-20; below, 23.

2 KINGS AND LAW 23 faith of Christ). They then established, through that mercy which Christ had taught, that for almost every misdeed at the first offence secular lords [woruld hlafordas| might with their permission receive without sin the monetary compensation [fiohbote], which they then fixed; only for treachery to a lord did they not declare any mercy, since Almighty God adjudged none for those who despised Him, nor did Christ, the Son of God, adjudge any for the one who betrayed Him to death; and He commanded everyone to love his lord as Himself. They then, in many synods, ordained a compensation [bot] for many human misdeeds, and they wrote them in many synod-books, here one law [dom], there another.

Thus further central themes are developed, those of law-making assemblies, notably involving bishops; of mercy; of payments resulting from offences, significantly specified as first offences; of treason; and of the writing down of law. Then I, King Alfred, gathered [the dispersed laws] together and ordered to be written many of the ones that our forefathers observed—those that pleased me; and many of the ones that did not please me I rejected with the advice of my counsellors, and commanded them to be observed in a different way. For I dared not to presume to set down in writing at all many of my own, since it is unknown to me what would please those who should come after us. But those which I found either in the days of Ine my kinsman, or of Offa, king of the Mercians, or of /Ethelberht (who first among the English people received baptism), and which seemed to me most just, I collected herein, and omitted these others. Then I, Alfred, king of the West Saxons, showed these to all my counsellors, and they then said that it pleased them all to observe them.

This marks the end of the first numbered chapter. Again the role of counsellors is made very clear, as is the importance of the laws of predecessors.” In practice, however, Alfred was willing to adapt rather than just reproduce what he found in earlier texts.” It is also interesting that, although he drew on laws associated with kings of Mercia and Kent, he did not present himself as king of the English; rather it was as ‘king of the West Saxons’ that he showed his collection of laws to his counsellors.” As well as the Prologue, the division into 120 chapters suggests the underlying ideology of Alfred's laws.” The number was particularly associated with Moses who died aged 120. In addition, it was associated with the relationship between Old Testament, Mosaic law, and the law of the new dispensation and ** The laws of Offa are probably the decrees ofa Church council of 786, but may be royal legislation deriving therefrom; see P. Wormald, ‘In search of King Offa’s “law-code”’, in his Legal Culture in the Early Medieval West (London, 1999), 201-23. *° See also Wormald, Making of English Law, 279. *° Cf. AGu, Prol. *? This division may well be there from the time of the original writing of the laws; see Wormald, Making of English Law, 267-9.

24 PART I: LATE ANGLO-SAXON ENGLAND New Testament, a relationship mentioned in the Prologue.” Similarly, the manuscript context in which Alfred’s domboc is first preserved is significant, perhaps

of its conception, certainly of its reception. In early manuscripts it circulated in an essentially historical context, with the Anglo-Saxon Chronicle. The Old Testament parallel of a combination of law and history is clear.” Both in detailed provision and in ideals presented, Alfred’s laws also had the effect of making West Saxon rule look more Carolingian, that is more like that of late eighth and ninth-century Francia. With regard to detailed provision, this is apparent, for example, concerning sanctuary. It may indeed be that the author had access to written sources from outside England, as might be suggested by the

statement in his Prologue that synods of bishops and counsellors ‘throughout the earth’ established and wrote down laws. Moreover, there are clear parallels between Alfred and the Carolingian Hincmar of Reims in terms of their views of the ideals and development of laws. It was Hincmar’s successor, Archbishop Fulk of Reims, who sent to Alfred one of the West Saxon king’s main advisers, Grimbald of St Bertin. The letter that Fulk sent with Grimbald had echoes of Hincmar, and may have influenced Alfred’s Prologue.*° Carolingian thought and practice provide at least context and quite possibly a model for Alfred’s laws. Overall, an essential purpose of Alfred’s laws, including the Prologue, was to instil wisdom in those who read them. This wisdom had a scriptural basis and was to produce men capable of exercising justice. As with the educational process mentioned in Asser’s final chapter, the laws were to help produce the wisdom of Solomon, a perceptiveness of the will of God, who was the supreme judge and would judge the earthly judges. The laws therefore can be seen as a companion piece to another manual for those in positions of authority, Alfred’s translation of Gregory the Great's Pastoral Care. Let us now look more widely at legislation and the ideals of kingship.” The emphasis on Christian kingship can be seen emerging in laws before the time of Alfred and was further asserted afterwards, notably in laws of Athelstan and Edgar, and in those produced by Wulfstan.* It may be significant too that some

*® See Wormald, Making of English Law, 417.

*° On the key manuscripts, see Wormald, Making of English Law, 162-81. °° Wormald, Making of English Law, 280, 425; Pratt, Political Thought, 223-30.

** See also Wormald, Making of English Law, 121-2; see below, 27-8, on the possible practical application of the laws.

*? On the geographical range of legislation, see below, 248-9. °° See e.g. I As, 5; above, 18-19, on Wulfstan. See also e.g. II Eg, Prol, which states that the king made the ordinance ‘for the praise of God and for his own royal dignity and for the benefit of all his people.’ J. Campbell, “Placing King Alfred’, in Alfred the Great, ed. T. Reuter (Aldershot, 2003), 3-23, at 11-12, argues that the change in terms of promoting a quasi-theocratic state comes with Wihtred and Ine’s laws, rather than Alfred’s.

2 KINGS AND LAW 25 codes were issued at councils held at great religious festivals4 Even when written legislation was specifically said to be woruldcunde gercednes, a secular ordinance,

such matters were still manifestations of Christian kingship. Emphasis on Christian kingship further brought out parallels with Continental, especially Carolingian, legislation.** Peaks of legislation, perhaps with the exception of that of 7thelred (978-1016), match peaks of royal aspiration. Legislation of thelstan

(924-39) coincides with the production of a particularly grandiloquent style of royal charter, and his laws contain parallels with Carolingian law.” Cnuts great code for England was produced around 1020 when he ruled unprecedentedly wide dominions.

Yet it was not only the individual authority of the king that legislative texts promoted. Rather, as in Alfred’s Prologue, legislation was often presented as a collaborative activity, with kings taking advice from their bishops and other leading men. Such statements are common, although not universal, in the legislative texts2° Occasionally, slightly more detail was provided: I, King #thelstan, declare that I have learnt that our peace [frid] has been kept worse than is pleasing to me or was laid down at Grately. And my counsellors say that I have suffered this too long. Now I have decided with the counsellors who have been with me at Exeter at midwinter that...%

In other texts the focus is on the counsellors. The Latin version of one of /Ethelstan’s sets of laws begins ‘these are the ordinances [judicia] which the wise men established at Exeter, by the counsel of King Athelstan’, whilst the Old English text of a set of Athelred’s laws begins ‘these are the ordinances that

the counsellors [redgifan|] of England decided and agreed upon and earnestly enjoined be maintained ’.*°

In the early eleventh century we may see the clearer emergence of legislation not as expression of royal will but as royal concession. Letters of 1020 and 1027 written in Cnut’s name were promises of good kingship: ‘I declare to you that I will be a gracious lord, and faithful to God's rights and just worldly law.”

** See Wormald, Making of English Law, 448. °° See IIT Eg, 1, IT Cn, Prol; in both cases these secular decrees have ecclesiastical partners. °° See also e.g. Wormald, Making of English Law, 306, on Athelstan’s legislation, 363 on Cnut’s. °” See Wormald, Making of English Law, 444-8. *® See esp. the prologues of IT Ew; I Em; II Em; III Em; II Eg; I Atr; IT Atr; III Atr; V Atr; VI Atr; IX Atr; I Cn, II Cn. See also below, 31 n. 65, on J As and As Alm. Occasionally, as in I Ew, the emphasis is

solely on the king’s wish, but this need not indicate that the king’s advisers had not been involved. °° VAs, Prol. *° IV As, 1, VI Atr, Prol. On the latter text, see Wormald, Making of English Law, 333-5; Lawson, ‘Wulfstan’, 573-4. “* Cn 1020, 2.

26 PART I: LATE ANGLO-SAXON ENGLAND His main law-code contains a set of clauses that may form a group. They begin ‘now this is the mitigation by means of which I desire to secure the whole people against what has hitherto oppressed them far too much’ and they deal with issues such as royal exactions, heriots, and marriages. Such issues would be central to royal legislative concessions in the post-Norman Conquest period. The clauses could derive from a separate document of Cnut, or from concessions made by King Athelred when he was allowed to return to England in 1014 on the undertaking to his people that “he would be a gracious lord to them, and reform all the things that they had hated’.** Whether earlier kings made such concessions, not preserved in writing, remains uncertain.

2 LEGISLATION AND LAW IN PRACTICE Thus far legislative texts have been treated as indicators of the ideals of kingship. Were their provisions to be enforced in practice? There is no evidence for written law being cited in Anglo-Saxon courts. The legislative texts are not set out in a

way that would make them easy to use,* and the form in which they survive can show significant variation.*4 Moreover, before 1066 the texts were preserved

in contexts, notably of history, homily, or penitential, which do not indicate administrative use. It can be argued that they were sources of wisdom, rather than specific legal rules. The contents of the written laws could still be indicative of the type of measures that kings took, but the essence of those measures was the spoken word of the king, acting on the advice of his counsellors. The written text was an ecclesiastical record of this oral act, as is clearly suggested by the close of a Latin version of one of A:thelred’s sets of laws, where Wulfstan, archbishop of York, attributes to himself responsibility for recording in writing the decrees that the king had made.* Upsurges of written legislation may well reflect royal assertiveness, but it was the actions of king and officials, rather than the written records of oral initiatives, that affected the people of the realm. * II Cn, 69-83; ASC, 1014. See further P. Stafford, “The laws of Cnut and the history of Anglo-Saxon royal promises (1981) 10 ASE 173-90, at 176-82; Wormald, Making of English Law, 361-2. Note that the abuses mentioned are not only royal ones.

** E.g. cf. the mass of cross references to other legislation in Charles the Bald’s Edict of Pitres; Wormald, Making of English Law, 51.

** Wormald, Making of English Law, 177, notes that even Alfred’s laws picked up an extra clause in manuscript transmission. At 415, he comments that ‘if the law of the pre-conquest kingdom was made only in writing and only by writing, scribes were remarkably cavalier in reporting it, and were frankly blasé about its preservation’. *° VI Atr, 40. 2; see further Wormald, Making of English Law, 191. Wulfstan’s hand has inserted /Ethelred and his own names in the text.

2 KINGS AND LAW 27 It is possible, however, to suggest a more practical role for written legislation. The lack of evidence for written laws being cited in court need not be significant, being a product of our records not of practice.*° The prologue to I Edward instructed his reeves to give such just judgments as they ‘know to be most just and as it stands in their law-books [dombec], that is copies of Alfred's law-code, and the domboc is also mentioned in laws of A:thelstan and Edgar. This might suggest that Alfred's code, incorporating that of Ine, was used in court.” Likewise, a late Anglo-Saxon version of the Legend of the Seven Sleepers has a portreeve (i.e. reeve of a recognised trading-place) tell an accused that ‘I will give orders that they shall bind you very fast, both hands and feet, and scourge you often and repeatedly, just as the domboc teaches concerning such men, and afflict you with every sorrow.* This is not a reference to Alfred's laws and obviously is in the context of a retelling of a legend, but this addition in the Old English version does indicate that, at least in an urban context, a reeve making reference to a law-book could be imagined. Moreover, other written texts look less aspirational, more practical, than does Alfred's, for example laws of Edgar concerned with witnessing, a decree concerning arrangements for the local unit known as the hundred, or a set of arrangements for peacekeeping in London.’ This is also true of some of the anonymous legal texts that in several cases survive only in fragmentary form.® It is arguable that these were practical documents, or that they at least suggest what type of written administrative decrees may once have existed.

The laws known as IV Edgar instructed ‘let many texts [gewrita] be made concerning this and sent both to Ealdorman A7lfhere and Ealdorman A:thelwine, and they shall send them in all directions, so that this measure be made known

*° See Hudson, ‘Court cases and legal arguments. However, note R. H. Helmholz, The Oxford History of the Laws of England, volume I: The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s (Oxford,

2004), 29-30, on the absence of citation of canons in arguments concerning disputed points of ecclesiastical discipline in Anglo-Saxon England. Wormald, e.g. Making of English Law, 479, is of course correct to argue that pre-Conquest England was not a pays du droit écrit, and, 480, to argue for the markedly greater importance of written law further south in Europe. *” T Ew, Prol, and see also IT Ew, 5, 5. 2; IT As, 5 (cf. Af, 6), I Eg, 3 (cf. Ine, 4), and see also II Eg, 5

(cf. Ine, 3). See further S. D. Keynes, ‘Royal government and the written word in late Anglo-Saxon England’, in The Uses of Literacy in Early Medieval Europe, ed. R. McKitterick (Cambridge, 1990), 226-57, at 231-3.

*° The Anonymous Old English Legend of the Seven Sleepers, 655-7, ed. H. Magennis (7 Durham Medieval Texts, 1994), 54; C. Cubitt, ““As the lawbook teaches”: reeves, lawbooks and urban life inthe anonymous Old English Legend of the Seven Sleepers’ (2009) 124 EHR 1021-49, at 1030. * IV Eg, Hu, VI As; on the composite nature of the latter text see Keynes, ‘Royal government; 239, Wormald, Making of English Law, 297-8. See also e.g. J. L. Nelson, “Literacy in Carolingian government, in Uses of Literacy, ed. McKitterick, 258-96, on Carolingian capitularies. °° See Wormald, Making of English Law, 366-97.

28 PART I: LATE ANGLO-SAXON ENGLAND both to poor and rich.” This reference to multiple distribution, unique in the Anglo-Saxon laws, could reveal common procedure. Interestingly, the text in fact has a particularly limited manuscript transmission. This might suggest that the copying process was never carried out, but much more likely that many copies have been lost without trace.”

It is also possible that kings issued their own legislative texts in forms different from those preserved by churchmen.? One form may have been writs, royal administrative letters, conveying instructions to the shire and perhaps the hundred courts, as is suggested by the phrasing of some laws as injunctions to royal reeves. Such writs, certainly used for legislative purposes after 1066, had less chance of survival than more solemn law-codes, or the lengthy and solemn letters issued by Cnut.4 Overall, it remains the case that writing does not appear to have been essential to the legislative act. Rather it might be used to communicate or to record oral legislation, in texts that might be official or unofficial. The surviving written texts concerning legislation therefore are both ideological documents and indicators of practical royal efforts.* In addition, though, the evidence, for example the references

>" IV Eg, 15. 1; gewrita might be translated as copies, but later evidence, below, 868-9, may warn against the assumption that identical copies of legislation were issued. Wormald, Making of English

Law, 430, notes that Archbishop Oswald seems to have retained a text of the Danelaw version of the legislation but that the version for English law areas slipped through the grasp of Archbishop Dunstan’s Canterbury and Bishop thelwold’s Winchester. For possible survival of fragments of such a text, see below, 157 n. 44. °? This would be particularly the case if the legislation was especially targeted at Danish areas, from which fewest texts survive. Cf. Wormald, Making of English Law, 317-20. Losses of legislation sent to Danish areas might be particularly great. For the role of Carolingian counts in the publishing and enforcing of legislation, see EF L. Ganshof, Frankish Institutions under Charlemagne, trans. B. and M. Lyon

(Providence, RI, 1968), 23-6, and M. Innes, “What was Charlemagne’ government?; in Charlemagne: Empire and Society, ed. J. Story (Manchester, 2005), 71-89. For argument that there was centralised dissemination of Alfred’s laws, see Pratt, Political Thought, 239.

°° For example, Wormald, Making of English Law, 300, notes that Athelstan’s Grately code was divided into clauses ‘so early in its transmission as to suggest that this was an “official” feature’, whereas the rubrics ‘are too inconsistent to have been provided at source.’ The surviving texts are therefore not copies of a single official original, but a royally issued document may once have existed. See also his comment on Wergeld in Making of English Law, 377. For arguments against the likelihood that much written legislation from before 1066 has been lost, see Wormald, Making of English Law, 414-15. For the possibility of lost legislation by Edgar concerning crime, see Wormald, Making of English Law, 125-6, and below, 187.

>* See Keynes, ‘Royal government’, 234-8, 240 (on VI As, 11), 241-2; also Wormald, Making of English Law, 347-8, 414; Cn 1020, Cn 1027. I follow common practice in using the term ‘shire’ when discussing the period before 1066, ‘county’ when discussing that after, even though this usage may suggest change rather than the continuity that in fact existed. °° The emphasis of the written laws in A:thelstan’s name on measures against thieves coincides perhaps significantly with the earliest charter (S 443) describing thieves suffering execution as well

2 KINGS AND LAW 29 to reeves acting in accordance with law-books, does indicate that judicial actions might on occasion be informed by written texts. Very occasionally we have sufficient evidence to suggest how legislation was developed and implemented.° Under King Athelstan, it seems that royal councils at Grately, Exeter, and Faversham made decrees concerning the peace. A council was then held at Thunderfield from which the king appears to have been absent and over which Archbishop Wulfhelm of Canterbury presided. A:lfheah Stybb and Brihtnoth son of Odda joined the meeting at the king’s command, possibly bringing royal instructions. Those attending the council gave their pledge to the

archbishop that every reeve would take the pledge in his own shire that they would keep the peace as /Ethelstan and his wise men had previously decreed and as it was again decreed at Thunderfield. Instructions to this effect were then sent to the bishops, ealdormen, and reeves of the realm. The product of these instructions included peacekeeping measures in Kent and in London, of which we have

written records. The king then held a further council at Whittlebury where he ordered some mitigation as to the killing of young offenders. The interaction of king, advisers, and local implementation is very clear.

3 ROYAL OFFICIALS Chief administrators and regents Was there in Anglo-Saxon England an equivalent to the justiciar whose role as the king’s deputy in judicial matters emerges in the twelfth century?” One key element in the development of the justiciarship was the king’s need for a deputy when he was absent overseas, and this specific requirement did not exist for the great majority of the Anglo-Saxon period. It may be that Earl Thorkell acted as some form of regent during Cnut’s absences, and he is the only person mentioned by name in the address of the king's letter of 1020. The letter also states that if anyone defied ‘the law of God and my royal authority or secular law, and will not make amends and desist, according to the instructions of my bishops, then I pray

as forfeiture; Wormald, Making of English Law, 305-7. However, as Wormald notes, the charter is not

authentic in its current form. °° For what follows, see Keynes, ‘Royal government’, 235-41, Wormald, Making of English Law, 298-300. Note also the ways in Ordal and Wergeld expanded upon issues treated in legislation of /Ethelstan and Edmund; see further Wormald, Making of English Law, 373-8. These texts surely were composed for practical purposes. °” See below, 261-3, 500-2.

30 PART I: LATE ANGLO-SAXON ENGLAND and likewise enjoin upon Earl Thorkell to bring the evil-doer to justice, if he can’* However, there is no indication of any other special judicial role for Thorkell. Another possibility is that often the archbishop of Canterbury, or another prominent bishop, took a leading role in judicial administration. This role might be the reason for, or the result of, their prominent position in the Church. Whereas between 631 and 923 only one archbishop of Canterbury had been appointed by translation (that is, by transfer from another bishopric), all further appointments until 1020 were made in this way. The king was obtaining trusted and proven men, and possibly often trusted administrators, at the head of the Church. Some archbishops of Canterbury may be linked to the production of royal legislation, for example Wulfhelm in the reign of Athelstan and Oda in that of Edmund (939-46).°° We know that Dunstan was entrusted with royal documents when he was abbot of Glastonbury in the 940s and 950s;" did his administrative responsibilities end before he became archbishop of Canterbury (959)? An Old English text written by Bishop Athelwold tells us that King Edgar ‘availed himself continually of the counsel of his archbishop, Dunstan; through his admonition he constantly inquired about the salvation of his soul, and not that alone but likewise about all the religion and welfare of his dominion:® Royal need for administrative capacity may also explain the rise of Stigand to the bishopric of Winchester in 1047 and then the archbishopric of Canterbury in 1052. Moreover, after the Norman Conquest, Eadmer states that matters that could not be settled in the hundred, shire, or king’s court ought, according to the laws of the ancient kings, to be determined at the south door of Canterbury cathedral, ‘as in the court of the highest king? His statement may suggest a general jurisdiction, perhaps especially regarding cases of default of justice in a lower court.”

Overall, it cannot be established whether the archbishop of Canterbury routinely held some sort of vice-regal position. It could be that the archbishop’s administrative importance depended on the individual concerned and on his relations with the king. In addition, it may be that administrative prominence was the route to the archbishopric, rather than being derived from the office. However

°® Cn 1020, 9. See also S. D. Keynes, ‘Cnut’s earls, in The Reign of Cnut, ed. A. R. Rumble (Leicester, 1994), 43-88, at 82-4. °°? Campbell, ‘Placing King Alfred’, 10. °° Wormald, Making of English Law, 299-300, 310; above, 18-19, on Wulfstan. °* ‘B’, Vita sancti Dunstani, 19, Memorials of St Dunstan, ed. W. Stubbs (RS, 1874), 29.

°* Councils and Synods, I, no. 33 (pp. 149-50). It is also possible that Eadsige, archbishop from 1038 to 1050, had considerable worldly responsibilities, perhaps extending beyond the affairs of Canterbury; note the account of his illness in ASC, versions ‘C’ and ‘E’, 1044, Historia ecclesie Abbendonensis, i. 112, 119, ed. Hudson, i. 178, 186-8. °° See J. Campbell, ‘Some agents and agencies of the late Anglo-Saxon State, in his The Anglo-Saxon State (London, 2000), 201-25, at 225. °* See below, 294-5.

2 KINGS AND LAW 31 the evidence just assembled does emphasise the importance of ecclesiastics in late Anglo-Saxon royal administration and law. Bishops

Bishops too were crucial to the ruling of the realm. We have already seen their importance to the king as advisers on legislation.® The division between canons of synods and royal legislation is not always clear, and royal legislation may some-

times have encapsulated synodal decrees. Furthermore, the secular and the religious were closely interwoven in the administration of justice, as one might expect given the emphasis laid upon Christian kingship.” The offender was likely to have to do penance as well as face punishment, whilst in the tenth century we also find decrees specifying that offenders were to be buried in unconsecrated sround.® There were efforts in legislative texts to separate matters particularly relating to God from those concerning the world, God’s law from the world’s law.®? The former were of particular ecclesiastical concern, and included the protection of churches, behaviour of the clergy, moral offences such as sacrilege or adultery, feasts and fasts, and renders owed to the Church.” With regard to some of these, for example the exactions of tithe, legislation often demanded that bishops enjoy the co-operation of the royal reeves; such collaboration ensured that tithe came to be enforced as a general obligation in the course of the tenth century.” However, our main concern here is bishops’ administrative role in secular affairs.

Their importance is reflected in both the recommendations and criticisms put forward by clerics. Wulfstan, in his Institutes of Polity, recommended that bishops should go and frequently give Godly instruction to the people in courts [on gemote].” Wulfstan of Winchester's Life of thelwold tells of Bishop lfheah of Winchester (984-1006) having ‘a thief, who was guilty on many counts, whipped and sent to the

°° Above, 25. Note that J As and As Alm mention the advice only of churchmen. °° See above, 23 n. 24, on Offa’s laws. Note also Lawson, ‘Wulfstan’, 569, on I Em. °” See also e.g. VI Atr, 51, on monetary compensation for religious offences, as set by secular counsellors, being used to pay for prayers and other religious matters, in accordance with the direction of the bishops. °° See below, 196. See also IT Cn, 36, on perjury: if anyone swore a false oath on relics and was convicted, he was to lose his hand or half his wergeld, to be divided between the lord and the bishop. °° See e.g. 1 Cnand II Cn; III Eg, 5. 2. © See F. Barlow, The English Church 1000-1066 (2nd edn, London, 1979), 139-41. For behaviour of the clergy, see below, 219; for adultery, see e.g. IT Cn, 42, 50, 53, 54. ™ See e.g. I As; II Eg, 1. 1-3. 1; Cn 1027, 16; I Cn, 8. 2.

” Wulfstan, Institutes of Polity, 81, Die ‘Institutes of Polity, Civil and Ecclesiastical’, ed. K. Jost (Bern, 1959), 76. On bishops within Alfred’s regime, see Pratt, Political Thought, 52-4.

32 PART I: LATE ANGLO-SAXON ENGLAND stocks for harsher punishments’? On the other hand, the scholar Afric of Eynsham wrote to Wulfstan that bishops should not act as judges concerning thieves and robbers. Bishops today, he said, were too interested in secular matters.” Bishops were involved in legal and judicial matters in many ways. A tract known as Episcopus states that a bishop was not to allow any unjust weight or measure.” Alfred's laws lay down that special arrangements concerning the descent of certain lands were to be witnessed by the king and the bishop.”° A major role in setting up arrangements

for the maintenance of peace is suggested by two texts from ®thelstans reign, the first being measures of the bishops and thegns of Kent, the second of the bishops and reeves who belong to London. Bishops were to be present in the principal local courts, as spelt out in a law of Edgar: the burh court was to be held three times a year, the shire

twice. The bishop and the ealdorman were to be present, and to expound there the law of God and the law of the world.” Involvement in such courts, the supervision of ordeals and oaths, and the giving of judgments along with secular judges, placed the bishop routinely at the heart of the administration of justice.”*

The laws reveal further, more general roles for bishops. Cnut’s letter of 1020 stressed collaboration between ealdormen and bishops.’ Both in texts associated with Wulfstan and in others, the bishop is given a supervisory role above reeves or other laymen in authority. A law of 4thelstan stated that if any of my reeves will not carry out this and is less zealous about it than we have pronounced, he is then to pay the fine for disobedience to me, and I will find another who shall. And the bishop in whose diocese it lies is to exact the fine for disobedience from the reeve.*°

A law of Edgar made a similar provision concerning the judge who pronounced a wrong judgment.” Bishops might also be important in the exercise of mercy towards criminals. Cnut’s letter of 1020 instructed all my reeves, under pain of losing my friendship and all that they possess and their own lives, that they everywhere are to govern my people justly and to pronounce just ’”* Wulfstan of Winchester, The Life of St £thelwold, 46, ed. and trans. M. Lapidge and M. Winterbottom (Oxford, 1991), 68.

” Letter from Afric to Wulfstan, 15, Councils and Synods, I, no. 45. A particular concern may have been the danger of a bishop or cleric agreeing to the death of a man who in fact was innocent; Wulfstans Canon Law Collection, Recension A, 79, ed. Cross and Hamer, 99, with which cf. below, 49. ’”° Episc, 6,12 (Councils and Synods, I, no. 56). The tract was probably by Wulfstan, dating from the early eleventh century. Its title is the Latin word for bishop. ’° Af, 41; see below, 136-7. ”” TIT As; VI As; UI Eg, 5.1, 2; also I Cn, 18. ”® See e.g. Episc, 5, 9. See also below, 250-1.

” Cn 1020, 8. °° IT As, 25. Notealso As alm, 2. 81 TTT Eg, 3.

2 KINGS AND LAW 33 judgments with the witness of the bishops of the dioceses [scira], and to practice such mercy as the bishop of the diocese thinks just, and as can be supported.”

Meanwhile bishops were to encourage reconciliation and settlement in disputes, presumably both in and out of court.®

Ealdormen and earls Paired with the bishop in legislation concerning court attendance, and elsewhere, was the ealdorman, a title increasingly replaced in the last century of Anglo-Saxon England by that of earl, a word easily shared by English and Danes.*4 The importance of their role is emphasised, for example, by Asser, while Wulfstan

insisted that, in order to propitiate God, earls should cherish justice, shun bad judgment and bribery, condemn thieves and plunderers, protect the poor, and honour and defend the Church.*®

The numbers of ealdormen and the size of their districts varied. It seems that in ninth-century Wessex each shire had its own ealdorman. By the time of /Ethelstan, as the authority of the kings of Wessex extended through England, ealdormen’s districts appear to have grown larger, with no more than fifteen ealdormen attesting any single royal charter. Some major ealdormen, such as /Ethelstan “Half-king, whose region of authority in the 930s and 940s extended over East Anglia and adjoining areas, may have had subordinate ealdormen.*® Further changes in the size of district occurred, and it was rare in @thelred’s reign for more than five or six ealdormen to witness a single charter, in Cnut’s for more than six or seven. In both cases some large earldoms may have contained subordinate earls.*”

The administrative role played by at least some ealdormen is clear in the laws even before our period. King Ine of Wessex had laid down that an ealdorman who let a captured thief escape should forfeit his scir, his area of authority, unless the

** Cn 1020, 11. See also below, 187, on EGu, 10.

°° See e.g. Episc, 3, 4. Note also the franchises enjoyed by some bishops and also by certain abbots, notably in East Anglia; below, 61, 295. Certainly when loyal such franchise holders might be seen as contributing to royal control of the realm. °* See below, 203.

°° For Asser, see above, 17; Wulfstan, Institutes of Polity, 57-61/85-9, ed. Jost, 78-9. Note also H.R. Loyn, “The term Ealdorman in the translations prepared at the time of King Alfred’ (1953) 68 EAR 513-25. °° See A. Williams, Kingship and Government in pre-Conquest England, c. 500-1066 (London, 1999), 89-90. °” §. D. Keynes, An Atlas of Attestations in Anglo-Saxon Charters, c. 670-1066 (Dept of Anglo-Saxon, Norse and Celtic, Cambridge, 1998), Tables LXII, LXIX; Keynes, “Cnut’s earls.

34 PART I: LATE ANGLO-SAXON ENGLAND king pardoned him.** Alfred's laws specified, for example, that if a man was not powerful enough to besiege his adversary in his house, ‘he shall ride to the ealdor-

man and ask him for help. If he is not willing to help him, he shall ride to the king before having recourse to fighting:*? Laws continue to show the importance

attached to the ealdorman, as in Cnuts letter of 1020 insisting that ealdormen help bishops ‘in furthering God's rights and my royal dignity and the benefit of all the people, and Edgar's specification that Ealdormen A7lfhere and Athelwine distribute legislation.°*°

The earl of Northumbria may have been of particular importance, given the distance from the king’s usual area of physical presence. From late in Edgar's reign

the ealdorman of Northumbria regularly witnessed royal charters.’ Moreover, the same set of Edgar's laws just cited stated that “Earl Oslac [of Northumbria] and all the host [here] living in his earldom shall promote observance of this: According to the Life of Edward the Confessor, Tostig, earl of Northumbria in the second half of the 1050s and first half of the 1060s, ‘so reduced the number of robbers and cleared the country of them by mutilating or killing them and by sparing no-one, however noble, who was caught in the crime, that any man, with any of his goods, could travel at will even alone without fear of attack. Those who rebelled against him claimed, on the contrary, that Tostig was excessively cruel

and acted more out of desire for property that would be confiscated than out of love of justice.”

What powers and responsibilities did ealdormen have? In some areas they could establish a peace, breach of which would result in payment of a fine. Thus a law of AAthelred specified that ‘for the peace that the ealdorman and the king’s reeve shall establish in the Five Boroughs, that is to be compensated with twelve hundred [probably £96]’2 Domesday Book specified for the city of York that ‘when peace is given by the earl and broken by anyone, the earl receives emends

°° Ine, 36.1. °° Af, 42. 3. See also Af, 37, for a man only being allowed to move from one district to another with cognisance of ealdorman. °° See above, 27, 29.

°" See D. Whitelock, “The dealings of the kings of England with Northumbria in the tenth and eleventh centuries’, in The Anglo-Saxons: Studies in some Aspects of their History and Culture presented to Bruce Dickins, ed. P. Clemoes (London, 1959), 70-88, at 77-9. °2 TV Eg, 15.

°° ‘The Life of King Edward, i.7, ed. and trans. F. Barlow (2nd edn, Oxford, 1992), 76-8. For Tostig’s

actions against criminals, note also De miraculis et translationibus S. Cuthberti, 5, in Simeon of Durham, Opera omnia, i. 243-5. °* ‘TIT Atr, 1. 1. The Five Boroughs were Leicester, Nottingham, Derby, Stamford, and Lincoln, with

associated territories.

2 KINGS AND LAW 35 through six hundreds, each one £8°.°* Concerning York, Domesday also recorded that if the earl or sheriff sent anyone from the region, they could recall him and

give him peace if they wished. Such establishment of peace was probably made in a court, and ealdormen together with bishops were to attend shire and possibly burh courts as they were established throughout most of the realm. Writs were addressed to the earl and thegns of the shire concerned.” The ealdorman was recorded as consenting to many of the leases granted by the church of Worcester, and these may have been made in the shire court.®* Some earls had residences close to shire or burh meeting

places, for example in Nottingham.*® How regularly they attended, particularly when there were few earls and large earldoms, must be uncertain; a deputy may have taken their place.’°° Accounts of law cases, however, do show the presence of earls.’ The Ely text known as the Libellus 4thelwoldi has Ealdorman Athelwine of East Anglia (962-92) present in shire and hundred courts, at courts of three and eight hundreds, and possibly at a burh court.’” Some of these are said to have been attended by ‘the leading men of East Anglia’, and may effectively have been gatherings of the leading men of his earldom.'*? However, it is notable that they are represented as standard courts afforced by a particularly broad attendance. There were no earldom courts in late Anglo-Saxon England. Asser refers to ealdormen and reeves making judgments, and other evidence points to ealdormen deciding cases, although there is also much evidence that decisions were made by the suitors of the court or a select group of judgment makers, rather than by the great man or men presiding over the court.’** Ealdormen and earls received profits from justice, particularly what is known as the earl’s third

°° DB, i. fo. 298v. In York, the peace given by the earl is distinguished from that given by the king; see also DB, i. fo. 262v, on Chester. For such fines, and the nature of the ‘hundreds’ that paid them, see below, 409.

°° DB, i. fo. 298v; cf. the king’s authority over outlawry, below, 196-8. °” E.g.S 1063, 1064, 1067, 1404. °® See e.g. S 1320, 1322, 1323.

°° See S. Baxter, The Earls of Mercia (Oxford, 2007), esp. 104. *°° See below, 49. *°' For the ealdorman in the shire court, see e.g. S 1460, 1462, 1474; also the role of Harold in the dis-

pute concerning Leckhampstead, below, 102. Note the importance of Ealdorman Brihtferth in S 1447. ‘Liber Eliensis, ii. 11, la, 12, 24, 27, 34, ed. Blake, 85, 90, 91, 97, 100-1, 109-10. See below, 57, on the possibility of Ealdorman Byrhtnoth having a private court. "°° Liber Eliensis, ii. 11, la, ed. Blake, 85, 90. *°* See above, 17, on Asser, below, 39 n. 122, on Wulfstan’s comments in the Institutes of Polity. Old English glosses equate ealdormen with judges; see e.g. Anglo-Saxon and Old English Vocabularies, ed. T. Wright and R. P. Wicker (2 vols; 2nd edn, London, 1884), i. col. 170, Old English Glosses, ed. A. S. Napier (Oxford, 1900), 92. On suitors and ‘doomsmen; see below, 88.

36 PART I: LATE ANGLO-SAXON ENGLAND penny.’® The idea of diverting one-third of particular royal revenues to royal agents may well date back at least to the late ninth century, and could derive from Francia, where Carolingian counts received a third of judicial profits owed to the ruler. However, our only clear source for Anglo-Saxon practice is Domesday Book.

In the most detailed relevant section, Domesday for Cheshire records various revenues being shared with two-thirds going to the king, one-third to the earl. These included the earl's pleas in the shire and hundreds. In addition fines paid by townsmen of Chester for various offences were shared between king and earl: breach of king’s peace, murder, assault, breaking and entering, highway robbery, theft, collusion with a thief, unlawful intercourse. Such fines were collected by the king's and the earl’s reeves, who may have paid a farm, a fixed amount, to their respective masters.’°° Although Cheshire was unusual, for example containing no royal demesne at the time of Domesday, it may well be that here we have just an unusually full record of a system that operated in many other parts of the realm. For example, Earl Eadwine of Mercia held an estate in Warwickshire with the third penny of the pleas of the shire.’””

Earls thus had a financial incentive for their part in important aspects of ruling the realm. This raises the question of how far ealdormen should be seen as part of royal government, how far a threat to royal power, especially given that ealdormen might be not just royal office-holders but extensive landowners in their own right. It is notable, for example, how small a role the king himself played in the disputes involving Ely after the death of King Edgar, how large a one was played by Ealdorman A:thelwine. This could be taken as a sign of royal weakness.'°’ However, two points must be made. First, this was a period of royal weakness, linked to the youth of the ruler and the disputed succession. Second, reliance on A:thelwine could be seen as the proper working of royal government rather than a sign of kingly weakness. The relationship of the powers of king and ealdormen or earls therefore varied according to circumstance and individual.’ What ealdormen and earls did provide towards the end of the Anglo-Saxon period was an authority above the level of the shire. It is conceivable that this brought some pressure for consistency of custom and procedure between shires.

*°° See esp. Baxter, Earls of Mercia, 88-97; also A. Williams, The World before Domesday (London, 2008), 22-3. Baxter, Earls of Mercia, 140, suggests that the ‘earl’s third penny’ probably gave the earl the right to a third of any land forfeited to the king. ‘°° DB, i. fo. 262v: the earl also received a share of the fine paid by the twelve judices of the city for failure to attend the hundred court, and various other fines. *°7 DB, i. fo. 238r; and note Baxter, Earls of Mercia, 99; see also below, 111-12, on comital manors.

*°8 See A. G. Kennedy, ‘Law and litigation in the Libellus Athelwoldi episcopi’ (1995) 24 ASE 131-83, at 135-7.

*°? See also below, 39-40, on conflict and co-operation between ealdorman and sheriff.

2 KINGS AND LAW 37 At the same time, it is important that the supra-shire authority never became institutionalised, for example through earldom courts. Such a situation differs markedly from that in France at the time, where central royal power was very significantly more limited.

Reeves and sheriffs There were in late Anglo-Saxon England a wide variety of administrative officials known as reeves, serving the king or other lords, or with administrative roles in burhs."° Sometimes distinctions are clear, for example with reference, as we have seen, to portreeves.’’ On other occasions, the type of official is unclear, and this

hinders interpretation. Our main concern here is royal reeves operating at the kinds of level described from the second half of the tenth century as the shire and the hundred. The laws make clear the variety of activities that reeves undertook. They were to render tithes from royal property or help in the exaction of ecclesiastical dues.”* They were addressees or recipients of legislation, and responsible for the carrying out of royal decrees."3 Court-holding was a further responsibility. Here the vagueness of the laws as to the type of reeve or court involved becomes problematic. In the early tenth century a law of Edward the Elder specifies that if a person withheld from another rights concerning ‘folkland, the plaintiff shall appoint for the defendant a day to do him justice in presence of the reeve. This may, but need not, be in a shire court or the equivalent in areas not yet divided into shires."* The laws also refer to reeves holding courts at a level below the shire. Thus Edward the Elder specified that every reeve was to hold a court every four weeks, and see to it that every man obtained the benefit of folcriht, that is, of common justice. Every plea was to have a day assigned for it to proceed.”

The reeve had an essential role in the witnessing of sales: ‘no-one is to buy goods over 20d. outside a recognized trading-place [porte], but in the witness of

‘'® See e.g. III As, 7, for lords’ reeves, VI As for the reeves of London. Royal reeves, certainly those of any substance, might also be described as king’s thegns, on whom see below, 204-5. *“’ On portreeves, see above, 27, Cubitt, ‘As the lawbook teaches’, 1034-8. *™ Seee.g. I As, Prol, 4; IT Eg, 3.1; VIII Atr, 8; Cn 1027, 16; I Cn, 8.2. Note As Alm on reeves providing

food for the poor; VIII Atr, 32, for the king enjoining all his reeves to support abbots in all their temporal needs. > See e.g. I Ew, Prol (above, 27), As Alm, Prol, VI As, 10, 11. ** T Ew, 2; see below, 48-50, on the development of shire courts; 102-8, on the nature of ‘folkland’,

108, on the lack of procedural detail concerning ‘bookland’. *!° II Ew, 8; on the meaning of folcriht, see below, 247-8. See also e.g. Af, 34, laying down that traders were to bring before the king’s reeve at a public court [folcgemote] the men whom they were taking with them into the country. On such courts and the appearance of the hundred court, see below, 47-8, 50-2.

38 PART I: LATE ANGLO-SAXON ENGLAND the portreeve or of another trustworthy man, or, again, in the witness of the reeves in a public court [folcegemote]’."° Reeves were central to the maintenance of the peace and the carrying out of police duties that functioned through assemblies” Accounts of cases show reeves apprehending the accused and bringing prosecutions against them,”* and the laws have them witnessing payments arising from accusations."° The importance of reeves is emphasised by the laws’ great concern with their abuses, themselves a sign of the limits of the king’s control: reeves might take bribes, aid thieves, or fail to carry out legislative measures.’”° By the end of the Anglo-Saxon period, one particular type of reeve, the shire reeve or sheriff, had come to the prominence he was to continue to enjoy after the Conquest. Shires existed at the start of our period in Wessex, and were imposed on much of the rest of the country following its conquest by the kings of Wessex.

Many of the new shires were based on burhs, fortified places, established by Edward the Elder and his sister Ethelflzed, ruler of the Mercians. Although most

midland shires are named only for the first time in the eleventh century, they are likely to go back to the tenth; the first reference to a non-Wessex shire may be from the early 970s, when Lantfred of Winchester mentioned Bedfordshire, whilst the laws of Edgar may refer to shires as if they extended throughout, or almost throughout, the realm south of the Humber.” Further north the process of establishment of shires continued, only being completed beyond the Norman Conquest.

Compound words probably with the same meaning as sheriff emerge in the surviving evidence from the second half of the tenth century. We hear of a scirigman, who was a priest, presiding over a shire court and of a sciresman

*'® IT As, 12. See also e.g. I Ew, 1. 2 (quoted below, 156), IT As, 10; III Em, 5.

7 See below, 53, 169-71; above, 34, on III Atr, 1. 1, concerning the ealdorman and king’s reeve establishing peace in the court of the Five Boroughs. *"® See below, 53, 68-9, for Flodoald’s case, and on III Atr, 3. See also Lantfred of Winchester, Translatio et miracula S. Swithuni, 27, M. Lapidge, The Cult of St Swithun (Oxford, 2003), 314-16.

'? T Atr, 1.14. ‘2° See above, 32, for IT As, 25. See also e.g. IT Ew, 2; As Alm, 2, on failure to provide food for the poor; IT As, 3.2;IV As,7; V As, 1. 2-3; VI As, 11; IV Eg, 1.5; IV Atr, 7. 3, on the portreeve being accessory

to coining fraud (on which see further IT Cn, 8. 2). For royal insistence on good behaviour by reeves, see also Cn 1027, 12. Note also Wulfstan, Institutes of Polity, 94-101, ed. Jost, 81-2. VII Atr, 6. 3, deals with a reeve committing theft, but it is not clear what sort of reeve this is. ‘2! Lantfred of Winchester, Translatio et miracula S. Swithuni, 8, Lapidge, Cult of St Swithun, 290; III Eg, 5.1, the alternative possibility being that some areas were divided into shires and had shire courts, other areas were not yet shired and had borough courts. Lincolnshire and Nottinghamshire are first mentioned in 1016, Derbyshire in 1048, Leicestershire by 1066; Williams, Kingship, 109-10.

For arguments that East Anglia only was divided into the separate shires of Norfolk and Suffolk under Cnut, see L. Marten, “The shiring of East Anglia: an alternative hypothesis’ (2008) 81 Historical Research 1-27.

2 KINGS AND LAW 39 attending a suit at Canterbury.’” A scirman also appears in the address of a writ of Cnut,'?? but the term drops out of use and in the same reign appears the word scirgerefa, shire-reeve or sheriff.’*4

The administrative roles of the sheriff fit with those of the other royal reeves already examined.”> Domesday Book records relevant customs. For example, it was specified that if a man broke into Wallingford at night he had to pay a fine to the king, not the sheriff; the need for this explicit statement indicates that some other fines were paid to the sheriff.’”° In Worcestershire, a man breaking the peace given with the king’s own hand was outlawed, but if anyone knowingly broke the king’s peace given by the sheriff he was to pay 100s. as a fine.”” Accounts of cases also show sheriffs closely involved in the proceedings of courts,”* and suggest that they may have presided over shire courts.’” Sheriffs appear in the addresses of writs sometimes in conjunction with the ealdorman, sometimes without him.”° There was clearly overlap in the responsibilities of royal reeves and ealdormen.™ The tensions between the two have often been emphasised by historians, who note,

for example, Ealdorman Leofsige’s killing of the king's high-reeve fic in 1002.” A late tenth-century lawsuit makes clear the contention between ealdorman and reeve. Two brothers, whose man had committed theft, were killed in a consequent skirmish.’ The king’s reeves of Buckingham and Oxford, men who probably later would have been referred to as sheriffs of Buckinghamshire and Oxfordshire, gave the brothers Christian burial. Ealdorman Leofsige heard of this, and went to the king with an accusation against the reeves, that they had wrongly buried the brothers among Christians. However, King Athelred, because the reeve of Buckingham was dear to him, did not reverse the Christian burial, and granted

"?* $1456, 1458. Wulfstan, Institutes of Polity, 106/211, ed. Jost, 144, uses the phrase ‘Cristes scirger-

efa’ with reference to a bishop judging. Note that words such as scirman could be used not just of sheriffs but of others exercising authority; see e.g. Ger, 5, 12. See also VI As, 10, referring to a reeve having a scir, and sounding as if each scir has a reeve; the scir in this case need not be the same as a later shire. Note also VI As, 8. 3, 4. "°° § 985, from 1017 x 1020. Note also S 1461.

'4 $1462. "°° See also W. A. Morris, The English Sheriff to 1300 (Manchester, 1927), ch. 2, esp. 31. "2° DB, i. fo. 56v. "27 DB, i. fo. 172r.

78 Seee.g.S 1458. "29 See S 1456. Note also S 1454, where the ‘king’s reeve’ appears as the first witness. See DB, i. fo. 179r, for the sheriff summoning men to the shire court.

“°° For the sheriff appearing without the ealdorman in probably authentic writs, see S 985, 1131, 1427.

"5! See also Baxter, Earls of Mercia, 121-3.

2 ASC, 1002. "2? § 883.

40 PART I: LATE ANGLO-SAXON ENGLAND the reeve an estate that the brothers had held. Here we have an interesting instance not merely of apparent conflict between reeve and ealdorman, but of an ealdorman reviewing the actions of reeves, yet feeling he had to go to the king in order

to reverse them. Although the king favoured his reeve, there was no invariable hierarchy of delegated authority in operation. However, we also have evidence of ealdormen and reeves co-operating in cases.%4 Moreover, it was not necessarily the case that the sheriff's first loyalty was to the king, just as the earl need not naturally have been inclined to be the enemy of royal power. Some shrieval families had close relations with earls, as in the case of the family of Beorhtwine with the Leofwineson earls of Mercia.” Such closeness would only weaken royal power if the king and ealdorman were in conflict. If good relations were maintained between king and earl, the sheriff could be both king’s man and earl's deputy. Like the lack of development of earls’ courts, the co-operation of king, ealdorman, and sheriff maintained much greater royal control of justice than existed across the Channel at this time."°

Other royal officials The lack of evidence makes it hard to discover what other royal officials participated in the administration of justice. There is little evidence in Anglo-Saxon England for the equivalent of the Carolingian missi, royal officials appointed to travel on imperial business in the localities, or for precursors of the itinerant justices found in twelfth-century England. There is an isolated instance from Cnut’s reign where an important man named Tofi the Proud came to a meeting of the court of Herefordshire ‘on the king’s business’. However, it is not clear what this

business was, and any such arrangement with regard to the administration of justice was probably ad hoc.” It is likewise possible that certain men derived local power in matters of justice through their personal link with the king. This would explain the prominence of Wulfstan of Dalham in East Anglian affairs from the 950s, particularly as recorded in the Libellus £thelwoldi.** *°* Ramsey Chronicle, 49, ed. Macray, 79, shows ealdorman and king’s reeve presiding together in court. Note that the emergence of sheriffs may plausibly be linked to a diminution in the number of ealdormen; see above, 33. **° Baxter, Earls of Mercia, 245-50. "°° See also P. Wormald, ‘Charters, law, and the settlement of disputes in Anglo-Saxon England’, in his Legal Culture, 289-311, at 304-5. "7 § 1462. On missi, see Innes, ‘Charlemagne’s government’, esp. 83-5. "8 See Kennedy, ‘Law and litigation’, 146; Williams, World before Domesday, 33-6. Wulfstan, Life of A:thelwold, 18, ed. Lapidge and Winterbottom, 32, refers to Wulfstan of Dalham as one of Edgar’s best known servants, whom the king sent to Winchester to secure the church for monks; see also Lapidge and Winterbottom’s note at 32.

2 KINGS AND LAW 41 It also seems possible that there were many minor local officials involved in judicial matters whose role is largely hidden by the sources."° Domesday reveals just a little, for example, of the role of village reeves and of radknights whose duties may have included distraining for the king’s debts.*° Reeves of royal vills must have been of considerable local importance, and both in royal vills and elsewhere there

were also the hundredmen and tithingmen to whom the laws attribute important police duties, but whom we never see in action.” All were crucial, however, to the effective exercise of kingship in the localities that seems to have characterised much of the late Anglo-Saxon period.

4 COMMUNICATION WITH ROYAL SERVANTS The limits to the surviving evidence make it very hard to establish how important

was written communication with royal servants. Much may have been oral. However, there are also clear indications that a considerable amount of ephemeral written communication has been lost.’ AElfric, in one of his homilies, produces a parallel for the neglect of God's law, by mentioning royal anger if a thegn refused to hear or look at a royal writ.’ It seems probable that such letters were written by priests in the king’s household, or sometimes in royal churches and monasteries, and under Edward the Confessor it is possible to identify one priest, Regenbald, as the king's chancellor or seal-keeper.'*

Written communication might be in a judicial context. For example, two records of cases tell of King Athelred sending his seal or his writ and seal with

"°° Note the references to under-gerefa, subordinate to a higher official, in £lfric’s Lives of Saints, ed. W. W. Skeat (76 Early English Text Society, 1881), 108, 182.

‘4° See Campbell, ‘Agents and agencies’, 207-11, on local reeves, and especially the reeve in West Derby hundred. This reeve appears to have been the equivalent of the later sergeant of the peace; the geo-

graphical distribution of such officials in the late Anglo-Saxon period is uncertain. Note the reference to satellites regii in Vita S. Edithae virginis, ii. 5, in A. Wilmart, “La legende de Sainte Edith en prose et vers par le moine Goscelin’ (1938) 56 Analecta Bollandiana 5-101, 265-307, at 272-3, although this is a post-Conquest text. *4" See below, 171.

“J. G. H. Hudson, ‘Vécrit, les archives et le droit en Angleterre (ixe-xiie siécle)’ (2006) 315 Revue Historique 3-35, at 16-17. See also T. A. Heslop, ‘English seals from the mid-ninth century to 1100’ (1980) 133 J of the British Archaeological Association 1-16.

‘4S ZElfric, “De populo Israhel’, lines 406-10, Homilies of Alfric: a Supplementary Collection, ed. J. C. Pope (2 vols; 259-60 Early English Text Society, 1967-8), ii. 659. “48 See S. Keynes, ‘Regenbald the chancellor (sic)’ (1988) 10 ANS 185-222. How far such clerks were

responsible for the writing of the diplomas that recorded royal land grants is a matter of considerable controversy; see below, 875.

42 PART I: LATE ANGLO-SAXON ENGLAND orders that shire courts settle disputes.’ A writ of Edith, widow of Edward the Confessor, requested that the hundred of Wedmore, Somerset, ‘pronounce for me a just judgment concerning Wudumann to whom I entrusted my horse and who for six years has withheld my rent, both honey and money also’."4° Writs concerning justice had Anglo-Saxon roots.

5 CONCLUSION The establishment of considerable royal administrative control, particularly south of the Humber, was a major triumph of the late Anglo-Saxon kings. It was achieved in part by simple assertion of power, but also by co-operation with and co-optation of local interests. The degree of uniformity of practice remains somewhat obscure, as does the extent of Scandinavian influence, a subject to which we will return. Likewise establishing a chronology of administrative development is very difficult. It is clear, however, that a crucial feature of the late Anglo-Saxon regime was its reliance on the shires and the hundreds that it established as its fundamental administrative units. Their importance becomes clearer as we turn to the courts of late Anglo-Saxon England.

45 § 1454, 1456. 4° § 1241; the writ can be dated to 6 Jan. 1066 x 18 Dec. 1075.

3

Courts Te assemblies to be considered in the following chapter were not specialist

law-courts, the primary purpose of which was the deciding of disputes; rather they had many functions. Their legal activities themselves included many that were not judicial: issuing legislation or more specific decrees, organising or performing police duties, witnessing transactions.’ It is possible that certain types of business were concentrated in certain meetings at fixed points in the year, for example the reviewing of peace-keeping activities.” It is also possible that additional sessions were specially summoned to deal with particular judicial business? It might be considered best to avoid the term ‘court to refer to such assemblies, thereby distinguishing them from the type of specialised law-courts that emerged in the Angevin period.‘ However, use of the word ‘court’ is retained in the discussions that follow. In part, this reflects the vocabulary of the time. The Latin sources of the Anglo-Norman period frequently use the Latin word curia, most obviously translated ‘court. The pre-1066 sources often use the Old English word gemot for very much the same type of assembly; to change the modern term at the Conquest would

be misleading. In addition, retaining the word ‘court reflects the willingness of historians to use it with reference to the best documented of these multi-functional gatherings, the king’s own court.’

1 THE KING'S COURT Kings heard some cases in person, and Asser emphasised the king’s judicial role at the end of his Life of Alfred. Our knowledge is very largely confined to the * See e.g. III Atr, 1. 1-2, on grants of peace in assemblies. * See below, 281, on the sheriff’s tourn; also below, 476, on Forest courts; 819, on London courts. > Note II Cn, 18, below, 49. * See below, ch. 22. > See DMLBS, s.v. ‘curia’; note also the evidence of the glossaries, e.g. Anglo-Saxon and Old English

Vocabularies, i. col. 216 (curia = gemothus). Use of the word curia is very rare before 1066; for one example probably from 1061, see S 1102. Note further how the same words, such as shire or hundred, could be used to refer to an administrative or geographical unit, a group of people, ora court.

44 PART I: LATE ANGLO-SAXON ENGLAND kings of Wessex and then to the rulers of England, although we do have mention of a Mercian council [witan] deciding a case when Edgar had succeeded to that part of England but not yet to Wessex (957-9).° A text of Edward the Elder’s reign, the Fonthill Letter, gives a vivid account of Alfred hearing a complaint, apparently outside any formal court context: We went in to the king, and told him fully how we had decided it and why we had decided it; and A:thelhelm himself [the obdurate opponent] stood in there with us. And the king stood, washing his hands, in the chamber at Wardour. When he had finished, he asked “Ethelhelm why what we had decided for him did not seem just to him, saying that he could not think of nothing more just than that he [Helmstan] should produce the oath if he could. Then I [Ealdorman Ordlaf] said that he wished to attempt it, and asked the king to appoint a day for it, and he did so’

Here the king acts alone, to take a dispute on to its next stage, rather than presiding in court to decide a case. Various sources reveal the types of case heard before the Anglo-Saxon king. There were matters directly concerning the king and his property. King Alfred’s will records that, following many disputes about the royal inheritance, he brought his father’s will to our meeting at Langandene, and it was read before all the counsellors of the West Saxons. When it had been read, I asked them all for love of me...that none of them should hesitate, either for love or fear of me, to expound the folcriht, lest any man should say that I treated my young kinsmen wrongly, the older or the younger.’

In addition, there were cases of disloyalty or treason, for example that of the Godwine family in the early 1050s. These might be heard before the largest gathering possible, amounting to a great council.’° In Athelred’s reign, the ealdorman /Elfric Cild was exiled and forfeited his lands for treason, following a decision that one charter attributes to the counsel and judgment of the bishops, ealdormen, and all the leading men of the realm, another to the decree of all the king’s leading men in a ‘synodal council’."

° $1447. ” $1445.

° For another very informal hearing of a complaint, this time concerning a royal action, see S 1467, where King Harold Harefoot lay in his sickbed, believing himself close to death. > § 1507.

*° See ASC, 1051-2, concerning the Godwine family; also 1055, concerning Earl 4lfgar, 1065, concerning Tostig; note also Life of King Edward, i. 3, 4, 7, ed. and trans. F. Barlow (2nd edn, Oxford, 1992), 28-46, 74-82. All these involved great councils. See also S 916, 926, concerning an ealdorman being exiled for killing a high reeve. Note also e.g. S 939; Liber Eliensis, ii. 19, ed. Blake, 95.

‘ § 896, 937. Cf. above, 32 n. 74, on bishops and clerics not participating in capital judgments.

3 COURTS 45 The king heard land disputes. According to the twelfth-century Ramsey chronicle, Abbot Alfwine decided that the power of his opponent, a certain fElfric, would render a lawsuit risky. He therefore obtained the attention of King Edward the Confessor, in part by words, in part by payment of 20m. of gold. For a further 5m. he acquired the queen's intercession. His investment was well made:

‘when ALlfric again brought his claim to the king’s decision, Abbot 4lfwine received lordship of the estates, delivered by the king’s hand, witnessed by the many and great men who were present.” The king could also be personally involved in ways apart from making the initial judgment. A petitioner might persuade the king to issue an order to a court to decide the case.* Or a complaint to the king might concern failings of justice or enforcement.’ Asser tells us that the king heard complaints from people who believed they had not received justice from his ealdormen or reeves.” Preservation of the royal right of hearing cases of false judgment and default of justice would have a crucial role in legal development."

The laws also contain specifications that a plaintiff should seek justice ‘at home’ or ‘within his hundred’ before turning to the king, or that he might be fined if he applied to the king before he pleaded as often as was required for justice.” Such provisions suggest that justice was frequently sought from the king directly. However, the parties need not have been seeking that the case be decided in the king’s own court but rather that he provide backing for a claim or instruct another court, perhaps the shire, to deal with the case. In addition there were certain cases or rights that the laws say were reserved to the king. For example, a law of AAthelred states that ‘no-one shall have any soke over a king’s thegn except the king himself.’* It may well be that the king

himself did hear cases involving leading men, but the law just cited may be more concerned with the payments arising from a case than from the actual hearing of cases. This certainly is suggested by another, similar law of Athelred:

‘the king shall be entitled to all the fines that are incurred by men who have bookland, and no-one [of these] shall pay compensation following any charge, unless in the presence of the king’s reeve’.” Likewise other royal rights listed *? Ramsey Chronicle, 103, ed. Macray, 170, on which see Wormald, Making of English Law, 157. The case can be dated to 1049 x 1065. For other land cases before the king, see e.g. S 1447; Ramsey Chronicle, 75, ed. Macray, 135-40. ** Note Ramsey Chronicle, 97-8, ed. Macray, 163-4. ** See e.g. S 1211. See also below, 92, on enforcement. *? Asser, Life of Alfred, 106, ed. Stevenson, 92-3; see also e.g. IT As, 3. *® See below, chs 22, 23.

'” IT As, 3 (drawing a parallel to the lord who refused justice), IT Eg, 2; II Cn, 17. *® TIT Atr, 11. Soke means jurisdictional and possibly other rights; see below, 59. ? T Atr, 1.14.

46 PART I: LATE ANGLO-SAXON ENGLAND in the laws and in Domesday Book should not be taken as a clear indication of cases heard by the king in person, but normally were reserved for him or his officials.*°

2 REGIONAL AND DISTRICT COURTS We saw in the previous chapter that ealdormen and earls did not have regular courts for their whole areas of authority." However, in Mercia King Alfred's son Ealdorman &thelred did hold assemblies that were probably successors to those of the Mercian kings. This practice would fit with other signs of his status,

for example his issuing of charters in his own name.” A Worcester document describes a general Mercian council. In 896 Ealdorman Athelred summoned together at Gloucester all the Mercian counsellors [alle Mercna weotan], bishops and ealdormen and all his nobility; and this he did with the knowledge and permission of King Alfred. And then they deliberated there how they could most justly govern their people, both in spiritual and temporal matters, and also do justice to many men, both clerical and lay, with regard to lands and other things in which they had been wronged.”

However, these Mercian arrangements were exceptional. The only other regular court for an area between the shire and the kingdom was that of the Five Boroughs: Derby, Leicester, Lincoln, Nottingham, and Stamford. These boroughs had been bases of Danish armies, but the exact form of the confederation is uncertain. The court presumably was for the region concerned, not simply for the five places. However, we do not have any accounts of cases heard before it.?4

*° See esp. IT Cn, 12-15, 59, 61-4. See e.g. DB, i. fos Lr, 10v, 1791, 252r, for three forfeitures; i. fo. 238v, for four forfeitures; ii. fos 155v, 178r, 179v, 223r, 384v, 414v, for six forfeitures. See also below, 58-62.

*" There are some suggestions of joint meetings of more than one shire in the Anglo-Saxon period. A reference in a somewhat dubious Westminster writ to a meeting of nine shires possibly at Wandlebury, Cambridgeshire, may be an error for a meeting of nine hundreds at that place; S 1123, and see Lawsuits, no. 287, for a post-Conquest meeting of nine hundreds there. A marriage agreement states that ‘every trustworthy man in Kent and in Sussex, thegn and ceorl, knows these terms’, although this need not indicate a joint meeting of the shires; S 1461. Note also S 1497. *? § 217-223. See also the reference in the ASC, 893, to Ethelred’s responsibility for part of Alfred’s kingdom. *° § 1441. See also S 1446.

** See above, 34, for III Atr, 1. 1, on the peace established in the Five Boroughs.

3 COURTS AZ Reeves’ courts to the mid-tenth century A clear division of courts appears in the laws of Edgar. The hundred court was to meet as previously decreed, that is every four weeks, the borough court three times a year, the shire court twice a year.” Earlier, the laws were generally not specific as to what courts they were mentioning or where certain cases should be heard.’® Some laws refer to a folcgemot or folces gemot, a public court or meeting, but without specifying the extent of the folc concerned.” Some of these assemblies, certainly in Wessex, may have been what would later be called shire courts.” At least in the portion of the country that only came to be divided into shires in the tenth century, reeves probably held meetings in burhs, that is in fortified places.”? Further courts may have been for areas of a size intermediate between later hundreds and shires.*° Some of these would survive as groups of hundreds that regularly or occasionally met together, or are suggested by groups of hundreds owing certain revenues to a royal vill. For example, Domesday Book records that the soke of four and a half hundreds belonged to the royal manor of Benson, Oxfordshire.”

Other meetings still were probably for smaller units. Again, certainly in Wessex, there may have been meetings for areas associated with a royal vill and presided over by a royal reeve.” A law of Alfred prescribes that traders are to bring before the king’s reeve in a public court [on folcgemote] the men whom they take up into the country with them, and it is to be established how many of them

25 TIT Eg, 5.

*° See above, 37, on I Ew, 2; see also e.g. Ine, 35. 1 (warranty concerning cattle), 46 (theft), 75 (warranty

concerning stolen goods), AGu, 3 (exculpation concerning homicide), IT As, 9 (claims concerning livestock). *” Seee.g. Af, 22, IT As, 2, VAs, 1.1. *® See below, 48-9; above, 38, on the spread of shires across England. *? See IT As, 20; also below, 820.

°° See H. M. Cam, ‘Manerium cum hundredo: the hundred and the hundredal manor’, and ‘Early groups of hundreds’, in her Liberties and Communities in Medieval England (Cambridge, 1944), 64-90, 91-106. See also below, 60, on areas of franchises. *" DB, i. fo. 154v. See P. H. Sawyer, “The royal tun in pre-Conquest England’, in Ideal and Reality in Frankish and Anglo-Saxon Society: Studies presented to J. M. Wallace-Hadrill, ed. P. Wormald et al. (Oxford, 1983), 273-99, at 281-3; E. B. Demarest, “The hundred-pennies’ (1918) 33 EHR 62-72.

*? For possible precursors of the hundred, see Cam, ‘Manerium cum hundredo’, 87-90. See also below, 50-1, and H. Adams, “The Anglo-Saxon courts of law’, in Essays in Anglo-Saxon Law, ed. H. Adams et al. (Boston, 1876), 1-54, at 17-19. It is possible, however, that such courts only covered areas centred on a royal tun and associated with a royal reeve; if so, the pattern is distinct from that of later hundreds and wapentakes. Note also the possibility of regular local assemblies having taken place through local need and initiative rather than through order from above; e.g. the suggestions in C. Wickham, Framing the Early Middle Ages (Oxford, 2005), 428-33. Such assemblies, or some of them, might come to be integrated into royal arrangements as hundred courts, another example of the development of royal administration through co-optation.

48 PART I: LATE ANGLO-SAXON ENGLAND there are to be; and they are to take with them men whom they can afterwards bring to justice at a public court.®

A law of Alfred’s son, Edward the Elder, specified that ‘it is my will that every reeve shall hold a court every four weeks’+ The laws surviving from the reign of /Ethelstan also seem to assume the regular meeting of district courts. The provision that ‘if anyone fails to attend a court three times, he shall pay the king the fine for insubordination’, may best fit an assembly meeting monthly rather than less frequently,»

Shire courts We saw in the previous chapter that the system of shires was extended from Wessex to most of England north of the Thames as part of the process of conquest and control by the West Saxon kings in the tenth century.*° It is possible although not certain that shires in Wessex earlier had regular assemblies that had judicial as well as other functions. Asser’s reference to the judgments given by ealdormen and reeves likewise may hint at such meetings, although the location of their judgments is not specified.” A law of Alfred states that ‘if anyone fights at a court in the presence of an ealdorman of the king, he shall pay as compensation wergeld and fine as is due, and previous to this a fine of 120s. to the ealdorman.* The presence of an ealdorman would later be specified for shire but not hundred courts, and may suggest courts meeting in the Wessex shires.*? Only as late as the reign of Edgar, however, is the scirgemot, shire court or meeting, explicitly

mentioned.‘

33 Af 34, °* II Ew, 8; see above, 37-8; below, 51, on the relationship of such courts to hundred courts. °° TIT As, 20. See also e.g. IT As, 2, on the kin finding lordless men a lord at the folcgemote. I use the term

‘district court’ for meetings of local administrative districts, particularly the shires and hundreds that would extend across most of the realm by the end of the tenth century. °° See above, 38.

*” Asser, Life of Alfred, 106, ed. Stevenson, 92. III As was the product of a meeting of the bishops and thegns of Kent, although both the particular assembly and Kent in general may have been exceptional. °° Af, 38; cf. Af, 38. 2, which specified that if anything of this kind took place before a subordinate of the king’s ealdorman or before a king’s priest, the offender was to pay a 30s. fine. It is not clear if this involved a lesser court, or if the penalty was lower because, although the court was the same, the offence took place only before the ealdorman’s subordinate. °° See below, 52.

*° Surviving uses of the term in the documentary sources start only at the end of the tenth century; see S 1454; however, S 1458 (from 964 x 988) almost certainly records a meeting of the court of Kent.

3 COURTS AQ According to King Edgar, the shire was to meet twice a year, a provision repeated by Cnut with the addition that more frequent meetings might occur if needed. The same laws laid down that ‘the bishop of the diocese [scire] and the ealdorman are to be present, and there to expound both the ecclesiastical and the secular law [ge Godes riht ge woruldright]|’.“ Other sources show that the sheriff might be present in addition to or in place of the ealdorman.*” Information as to who else attended the court in the Anglo-Saxon period is very restricted. Writs were generally addressed to the thegns of the shire, although any classification here may be somewhat circular, men attending because they were classified as thegns, those at court being classified as thegns because they were attending.” Also present, although not necessarily as suitors involved in making judgments, would be supporters of litigants, including those such as oath-helpers who were directly involved in judicial procedures.** We have some witness lists arising from shire meetings, for example concerning future arrangements for land, but it cannot be told whether unidentifiable men were of relatively low status or simply ones who do not appear elsewhere in the records.” The shire court had a wide range of business. In 7thelstan’s reign we see Kent drawing up measures to maintain the peace.** It may well be that more serious crimes, notably those carrying the death penalty and perhaps those involving ordeal, were usually treated in the shire.” A law of Cnut refers to a man failing to clear himself of an accusation of open murder and the bishop then pronouncing 4. TIT Eg, 5. 1-2, II Cn, 18-18. 1.

** See above, 39. It is possible that another royal official, the staller, sometimes took the place of the sheriff in the court, as he did in the address of various writs for the church of Westminster. However, most of the writs thus addressed are problematic, and it is possible that the staller mentioned in the one probably authentic example (S 1119) was also a sheriff; see S 1119, 1128-9, 1135, 1137, 1142. Harmer,

in Anglo-Saxon Writs, 51, rejects the argument that these men may have been sheriffs, on the grounds that they are not referred to as such in the sources. *° See Harmer, in Anglo-Saxon Writs, 46-53, on addresses to the shire. Some writs contain references to the king’s ‘loyal friends [holde freond]’, but none appear to be entirely genuine and the phrase may be a post-Conquest attempt to find an Old English equivalent to the Latin fideles; $ 1121, 1129, 1135, 1142, 1146. A writ of Cnut, S 985, addresses ‘all my thegns, 1200 [shilling] and 200 [shilling]’ in Kent; on the status of the 200s. thegn, see below, 201-2. See below, 277-8, for the evidence of the Leges Henrici Primi. ** See e.g. S$ 1454.

* See e.g. S 1474. See also S 1456 (which includes the communities of Christ Church and St Augustine's, Canterbury, and the citizens of that town). For general mention of the thegns of the shire attending, see e.g. S 1462. Note also C. P. Lewis, “The Domesday jurors’ (1993) 5 HSJ 17-44.

*° See IIT As; note also VI As, 10. It is unclear whether the shire thereafter retained responsibility for over-seeing these arrangements, or whether they were carried out at a lower level.

*” See below, ch 7. Grants to lords of rights most probably equivalent to those of the hundred included infangentheof, the execution of thieves caught in or immediately after act; see below, 59. This may well indicate that other offences carrying the death penalty belonged to a higher court. See below, 215, on the hundred witnessing a master’s killing of his slave.

50 PART I: LATE ANGLO-SAXON ENGLAND judgment; the presence of the bishop may suggest a shire court.** It is possible that the type of pleas from which, according to Cnut’s laws, dues normally went to the king unless he especially honoured someone with a grant, were usually heard in the shire: for Wessex the text lists mundbryce, hamsocn, forsteal, and fyrdwite, that is breach of the king’s protection; assault on a person in a house, or perhaps on the house; assaults on royal roads, particularly of royal officials; the fine for failure to perform military service.” Shire courts witnessed land transactions, including purchases and leases.*° Accounts of cases show land disputes being decided in shire courts.’ Business probably extended to all types of land, including the specially privileged form known as bookland.” In some bookland cases the king may have specifically instructed the shire to decide the dispute? However, such specific delegation cannot be shown to have been either a regular or a necessary precondition for hearings concerning bookland. Shire courts were royal, presided over by the ealdorman or sheriff and the bishop as the king’s representatives; it would be

wrong to draw too sharp a jurisdictional distinction between the king’s own court and the shire.

Hundred and wapentake courts For most inhabitants of England at the end of the Anglo-Saxon period their main contact with judicial processes was probably through the hundred or its northern Danelaw equivalent, the wapentake. Many hundreds met at traditional places, for example an ancient barrow or tree, and some hundred names referred to these

features. Assembly sites might be associated with a combination of features, some of which, for example a mound, may have been specially constructed for

*® II Cn, 56; on the meaning of murder, see below, 183-4. Note also Cn 1020, 11, above, 32-3, on the

bishop mitigating capital punishment; this may, but need not, indicate that serious offences were treated at a level above the hundred. * N. D. Hurnard, “The Anglo-Norman franchises’ (1949) 64 EHR 289-327, 433-60, at 302-10. For further discussion of these pleas, see below, 173. See also above, 46, for lists of pleas in Domesday Book.

°° Purchase: e.g. Liber Eliensis, ii. 8, ed. Blake, 81 (which also shows the witnesses later proving vital in the settlement of a dispute over the land concerned). Lease: e.g. S 1394, 1409, from Worcester, S 1402-3, 1476 (bequest and lease), from Winchester. >" See e.g. S 1462, 1474; Liber Eliensis, ii. 10, 11, ed. Blake, 82-3 (possibly a borough court), 85; Ramsey Chronicle, 90, ed. Macray, 154. >? See esp. S 1460, and also Liber Eliensis, 25, ed. Blake, 99; A. G. Kennedy, ‘Disputes about bocland: the forum for their adjudication’ (1985) 14 ASE 175-95. See below, 93, on the difficulty of knowing what estates actually were bookland, and 94-8, on the nature of bookland. ”* See e.g. S 1456, discussed below, 80.

3 COURTS 51 the site.‘ The meetings were often but perhaps not invariably held in the open air. The presence of the place-name element sceamol, meaning bench, in some Kent, Essex, and Cambridgeshire hundred names may imply a covered structure with indoor seating, although it could simply refer to the arrangement of benches outdoors. Hundreds were variable in size, the smallest being in Sussex and Kent with some consisting of only two or three villages, whereas the hundred of Holt in Norfolk covered about sixty-five square miles.» When were hundred courts established and when did they extend across the realm? As we have seen, there is evidence from the time of Edward the Elder for royal reeves holding courts every four weeks. At least within the old area of authority of the Wessex kings these may have been the equivalent of hundred courts, or indeed have been hundred courts without the name appearing in the evidence.” Hundredal organisation had parallels with Frankish practices under the Merovingian kings, and it is possible that arrangements in pre-Alfredian Wessex had derived from these’* In the tenth century such characteristics of Wessex organisation may have been extended to other areas of the realm, perhaps again under Frankish inspiration, this time from the Carolingians. Such a view is speculative, and one may wish to rely more cautiously upon the texts. In London in Athelstan’s reign, men were grouped together in tens for policing purposes, and these then gathered in groups of a hundred, with a chief official.° The relationship of this grouping to the hundred court is uncertain, but given the later provisions on the police functions of the hundred and its court, it

>* See A. Pantos, “The location and form of Anglo-Saxon assembly places: some “moot points” ’, in Assembly Places and Practices in Medieval Europe, ed. A. Pantos and S. Semple (Dublin, 2004), 155-80. On hundred names, see O. S. Anderson, English Hundred-Names (3 vols; Lund, 1934-41), P. Hunter Blair, An Introduction to Anglo-Saxon England (3rd edn, Cambridge, 2003), 236-9. Fora linear earthwork in Surrey called Nutshambles, apparently derived from the Old English (ge)motsceamol, i.e. assembly-bench, see Pantos, ‘Location and form’, 158. On the association of wapentake almost entirely with the northern part of the Danelaw, see Anderson, English Hundred Names, XXI1-ll.

°° H.R. Loyn, “The hundred in England in the tenth and early eleventh centuries’, in British Government and Administration: Studies presented to S. B. Chrimes, ed. H. Hearder and H. R. Loyn (Cardiff, 1974), 1-15, at 1-2. In the 1270s there were 628 hundreds or wapentakes in England; H. M. Cam, The Hundred and the Hundred Rolls (London, 1930), 137. For the background to administrative units in Kent and Sussex, see also Cam, ‘Manerium cum hundredo’, 87-8. °° See above, 48. °” See also Loyn, ‘Hundred’, 4. Another possibility is that the name emerged with the deliberate establishment of such units and assemblies in areas of conquered Mercia, and was then adopted for their pre-existing equivalents in Wessex. °° On Francia, see A. C. Murray, ‘From Roman to Frankish Gaul: “centenarii” and “centenae” in the administration of the Merovingian kingdom’ (1988) 44 Traditio 59-100. °° VIAs, 3, 8.1.

52 PART I: LATE ANGLO-SAXON ENGLAND seems unlikely that there was no connection.®° Matters become clearer with the so-called ‘Hundred Ordinance’ although the exact date and official status of the document are uncertain. It has been attributed to Edgar, although it could have been issued earlier, in the time of Edmund, Eadred, or Eadwig.” The document states that the hundred is to assemble every four weeks, and each man is to do justice to the others. Then, in a clause reminiscent of the administrative structure recorded in the London text from Athelstan’s reign, it specifies that ‘if the need is pressing, the man in charge of the hundred is to be told, and he then is to tell the men in charge of the tithings; and all are to go forth, where God guides them, that they may reach [the thief]. Justice is to be done on the thief as Edmund decreed previously.®** None of Edmund’s laws corresponds clearly to this reference; the provision may have been lost or never written down.® The text goes on to deal

with further police matters, particularly with regard to cattle and the flight of criminals. Only towards the end does it move onto judicial aspects: in the hundred, as in any other court, we wish that folcriht be enjoined in every suit, and the day appointed when it be carried out. And he who fails to appear on the appointed day—unless it is through his lord’s summons—is to pay 30s. compensation, and on a fixed day perform what he should have done before.

An Ely account suggests that a meeting of two hundreds took place in c. 950, and certainly before the reign of Edgar.* In Cnut’s laws there are several references to proceedings in the hundred, hinting that it was the most commonly used court,

whilst many of the references to unspecified courts in the laws later than the Ordinance may also to refer to the hundred. The hundred was to meet every four weeks. A royal reeve would preside, unless perhaps a grant had been made to an individual.” We know little of the suitors. According to a law of Cnut, every free man over the age of twelve was to be in a

hundred and tithing.** However, the emphasis here is upon peacekeeping, and °° See also III Em, 2, for reference to a hundred. Unfortunately the text only survives in an early twelfth-century Latin version, and it is also unclear whether hundred here refers to a court or simply a group with police duties; see Wormald, Making of English Law, 311-12. °t See Wormald, Making of English Law, 378-9. °? Hu, 2.

°° Another possibility is that the reference is to III Em, 2.

°* Hu, 7. The remaining clauses in the existing text were probably not part of the original; see Wormald, Making of English Law, 379. °° Liber Eliensis, ii. 18, 24, ed. Blake, 93-4, 97.

°° Note esp. II Cn, 17, 22; also 27, 30, 31a. See below, 54, on IT Cn, 19, concerning distraint. For instances where the hundred is not specified, see e.g. IT Cn, 25 on failure to appear in court three times. °” See below, 60. °° II Cn, 20.

3 COURTS 53 it is not certain that all free men would attend the hundred meeting, or they might do so only when the arrangements for peacekeeping were being reviewed.

Likewise, the statement in Cnut’s laws that ‘people shall attend the hundred court under pain of fine, whenever it is proper to attend’ does not really help to reveal upon whom the obligation rested. According to the twelfth-century Ramsey chronicle, Edward the Confessor gave the Clacklose hundred, Norfolk, to Ramsey, with the sixty-four sokemen of that hundred; those sixty-four may have been the suitors of the court.”°

The hundred was central to the establishment of a person’s standing in legal and judicial matters.” A law of Cnut specified that ‘if any man is so suspect to the hundred and so frequently accused, and three men together then accuse him, there is then to be nothing for it but that he is to go to the threefold ordeal’” Personal trustworthiness clearly relates to the police functions of the hundred

already mentioned, notably with regard to tithing’? Laws of Athelred also emphasised the active exercise of police duties: A court is to be held in each wapentake, and the twelve leading thegns, and with them the reeve, are to come forward and swear on the relics that are put into their hands that they shall accuse no guiltless man nor conceal any guilty one. And they are then to seize frequently accused men who are in a dispute involving the reeve.”

It is not clear, however, that this particular type of meeting was the same as the regular assembling of the hundred or wapentake every four weeks. It is possible that it was an additional meeting, or a larger meeting held on regular basis; such meetings might review arrangements for peacekeeping, notably tithings, in a fashion similar to the post-Conquest sheriff's tourn, twice-yearly meetings of the hundred to be attended by all free men. °° 11Cn, 17.1.

”° Ramsey Chronicle, 160. See below, 554, for the linking of suit of court to particular tenements. ” For the possible military functions of the hundred, see e.g. DB, i. fo. 208r; E. John, Land Tenure in Early England (Leicester, 1960), ch. 6; N. Hooper, “Some observations on the navy in late AngloSaxon England’, in Studies in Medieval History presented to R. Allen Brown, ed. C. Harper-Bill et al. (Woodbridge, 1989), 203-13; Williams, Kingship, 89; and note Murray, ‘Centenarii’. ” II Cn, 30; cf. below, 81, for IT Cn, 22. ”> See below, 74-5. * III Atr, 3. 1-2. III Atr, is explicitly concerned with the region of the Five Boroughs, but it is pos-

sible that this practice also existed elsewhere in the realm. Neff, “Scandinavian elements’, 293-300, accepts that there are closer parallels in Danish than in English laws. However, her argument, at 297, that ‘there is no complete parallel in the English laws to the thegns of the Wantage Code, although many elements are present which would suggest that they could have developed within the AngloSaxon system’, seems to over-estimate the completeness of the description of procedure provided by the English laws; instances such as I As, 20. 1 (cited below, 72) suggest that action by twelve leading thegns may have been taken in a variety of circumstances, including that in II Atr, 3. 1. For emphasis on matters of police in Frankish arrangements, see Murray, ‘Centenarii’.

54 PART I: LATE ANGLO-SAXON ENGLAND A second core element of the hundred’s business was the witnessing of transactions. Laws of Edgar required that at least thirty-six witnesses be chosen in every borough, twelve in small boroughs and hundreds, before whom all sales and purchases should take place, either in a borough or a wapentake.”* Villagers were to inform the head of the hundred [hundrodes ealdre] of certain improper aspects of the conduct of cattle purchases, and the hundred was to receive a portion of the fine arising from such purchases.”° The hundred might also witness land transactions” and the manumission of slaves.’* The hundred in addition dealt with disputes. The statement in Cnut’s laws that ‘no-one shall look to the king unless he be unable to obtain justice in his hundred’ need not be a sign that the hundred was omnicompetent; the law may simply have been referring to cases that were known to fall within its competence.”? We have instead to look for positive evidence as to the cases heard by the hundred. Another law of Cnut laid down that no-one shall take distraint either within or outside the shire until he has requested his rights three times in the hundred. If on the third occasion he does not obtain justice, then he shall go on the fourth occasion to the shire court, and the shire shall appoint a fourth day [for him to request his rights].°°

The measure thus seems to be aimed at preventing either self-help or immediate resort to the shire court in the process of seizing back possessions that another had removed in distraint. We have some evidence for the hundred hearing cases of withholding of rent. It may also have dealt with some accusations of theft, particularly such as would not lead to the death penalty. In addition, the hundred may have had some role in over-seeing the execution of thieves caught in the act or seized soon thereafter in possession of the stolen goods,* but in general the judgment of more serious offences was probably the business of the shire.* In such cases, the hundred or ’”° TV Eg, 4-6, quoted in full below, 154. ’° IV Eg, 8.1. Note also e.g. IV Eg, 10. ”” Seee.g. Liber Eliensis, ii. 11a, 12, ed. Blake, 89-91; note also Anglo-Saxon Charters, ed. Robertson,

no. 40, for witnessing and for suretyship. ”® For such manumissions after the Norman Conquest, see below, 426. ” II Cn, 17; Leis Will, 43, changes the clause to include the shire as well as the hundred. III Eg, 2, had referred to the obtaining of justice ‘eet ham’, ‘at home’ or ‘in his locality’, rather than specifically in the hundred. °° 11Cn, 19.

°*" See S 1241 (detention of goods and rent); below, 155. On theft, see also below, ch. 7. Note also Hurnard, ‘Franchises’, 447, on some later holders of private hundreds not having the right of major criminal jurisdiction. *? See below, 59, on infangentheof. °° See above, 49.

3 COURTS 55 several hundreds may have been responsible for various non-judicial tasks, such as the finding of oath-helpers.* The Libellus Athelwoldi also tells us of a land case being heard in a hundred. In King Edgar’s reign, Abbot Byrhtnoth of Ely had bought 200 acres at Witchford, a transaction witnessed by the whole hundred. In the disturbances that followed Edgar’s death, the vendor annulled the agreement, claiming that he had acted under compulsion and had many times desired to return the money that he had received. Ealdorman Athelwine then came to Ely and held a plea with the whole hundred within the churchyard at the northern gate of the monastery, and there brought the case to an end, with the abbot having to make a further payment of 30s. to the vendor, bringing the total purchase price to 12 pounds.** How far this should

be taken as an indication of more widespread hearing of land cases in hundred courts is uncertain. The presence of the ealdorman makes it an unusual meeting. On the other hand, it is very plausible that disputes arising from land transactions witnessed by a hundred were sometimes settled within that hundred.

Courts of groups of hundreds Even after the clear development of shire and hundred courts, meetings of several hundreds in a single location continued.*° Some may have been specially summoned to deal with important business.*” Others, particularly if they met with any regularity, may reflect earlier administrative arrangements.** Meetings of several hundreds or wapentakes witnessed land transactions,*® whilst the Libellus

Zuthelwoldi shows land cases being held before such courts”° A particularly impressive gathering, which decided various cases in 975 x 984, is described as fol-

lows: ‘the blessed Ethelwold and Athelwine, styled ealdorman, and the leading men of Northamptonshire and the most prominent men of the East Angles, held at Wansford a judicial hearing in eight hundreds’” It may also be that some such groups of hundreds could hear more serious criminal pleas.”

** See below, 81.

°° Liber Eliensis, ii. 12, ed. Blake, 91; for the Libellus £thelwoldi, see below, 877. °° See Cam, ‘Early groups of hundreds’. *” See also below, 282, for the Leges Henrici Primi on courts of more than one hundred. °® See above, 47.

°° See e.g. Anglo-Saxon Charters, ed. Robertson, no. 40, mentioning a gathering of eight hundreds at Wansford (Northants), another instance of which appears later in the present paragraph. This suggests that the eight hundreds may have met regularly, or at least been a recognised unit. °° Liber Eliensis, ii. 11a, 18, ed. Blake, 90, 93-4, for three hundreds gathered at Hinton (Cambs) and two hundreds at Ely. °" Liber Eliensis, ii. 11, ed. Blake, 85; see Kennedy, ‘Law and litigation’, 137-8. *? See below, 60.

56 PART I: LATE ANGLO-SAXON ENGLAND Borough courts The third type of court mentioned in Edgar’s law is that of the borough, which was to meet three times a year; a burh was a fortified place, which need not in every instance have had urban characteristics. Was this a court for the borough itself, or also for the surrounding area? It may be that Edgar’s law referred only to courts based in the major borough in regions where shire courts were not yet functioning. However, the specification also appears in Cnut’s laws, when most regions had been shired. That the relevant clause had been modified in other aspects shows that it was not the product of uncritical copying.** Edgar's law may

then refer to courts for the boroughs themselves, but only major boroughs, the type that another law of Edgar specified was to have a standing body of thirty-six witnesses, as opposed to the twelve who were to be chosen for small boroughs and hundreds.”

3 LORDS’ COURTS So far we have concentrated on courts presided over by the king, bishops and ealdormen, and royal reeves. Were there courts presided over by lords or their reeves? Such courts might not have been explicitly mentioned in the laws. Silence in case reports may not be significant. Such reports are not numerous, and most concern matters particularly closely associated with the king, be it serious crime

or disputes over bookland, rather than the less serious offences that may have been heard in seignorial courts. It is helpful to distinguish two types of seignorial jurisdiction. One would derive from a lord’s relationship to his men and lands, the other from a grant of powers normally exercised by the king or his officials. Let us begin with those deriving simply from lordship. Lords certainly had responsibility for the good behaviour of their men.®° This surely involved the settling of disputes in at least an informal fashion. However, it is far less certain that it involved formal and regular meetings of a lord’s court. A law of Cnut specifies that ‘every lord is to have his household men under his own surety’ but goes on to state that if one of

°° Note also J. Tait, The Medieval English Borough (Manchester, 1936), 60. °* IT Cn, 18.

°° IV Eg, 4-5. See also J. Campbell, ‘Power and authority 600-1300’, in The Cambridge Urban History of Britain: I 600-1540, ed. D. M. Palliser (Cambridge, 2000), 51-78, at 57. On the later development of borough courts, see below, ch. 30. °° See e.g. III As, 7, III Em, 7. On lordship, see also below, 220-4.

3 COURTS 57 the men ‘is accused of anything, he is to answer within the hundred where he is charged, as the law is’»” The hundred thus retained responsibility. What of cases involving land? One might think that leases could be a matter for a lord’s court. However, many leases were recorded as being made in the shire* Nor do we have positive evidence for lessors’ courts treating disputes concerning leases.”° A law of Edgar draws an analogy between the wrath of God towards those who do not pay their tithe and that of the landlord towards a tenant who does not pay his rent; the lord might grow so angry that he grant the tenant neither property nor life.*°° One may wonder whether an earthly lord would have had to seek judgment before such an action, and—if so—whether judgment might come from a court of his own. However, the analogy drawn in this law is very far from sufficient evidence for the existence of seignorial courts in Edgar’s England. One case in the Libellus Athelwoldi may reveal Ealdorman Byrhtnoth holding a court of his own in the last quarter of the tenth century.’” A dispute over two hides of land arose between Byrhtnoth and a priest named Leofsige. The ealdorman ordered that Leofsige be summoned. At Fen Ditton, probably a possession of his wife, Byrhtnoth proceeded to set out and tell the cases and claims, agreements and broken compacts that he had against Leofsige, through the testimony of many lawful men. As Leofsige denied and contradicted all that was brought against him, they decided that he might clear himself by swearing an oath. Since he could neither do this nor could he produce those who ought to swear with him, it was decided that he should be evicted and Ealdorman Byrhtnoth should enjoy both hides. ... This was decreed a second time on another occasion, at Cambridge.

The exact nature of the court at Fen Ditton is uncertain, but it cannot be established that it was either a hundred ora shire and the possibility remains that it was the ealdorman’s own. That the judgment was repeated at Cambridge, presumably in a shire meeting, is noteworthy but need not indicate that such repetition was necessary as opposed to prudent. If one accepts that the meeting at Ditton should be classified as a lord’s court, it may have been summoned on an ad hoc basis, rather than being a body that met regularly. There is further evidence for gatherings that fulfilled at least some functions of courts, but may have lacked their formality, regularity, and judicial

°” ‘IT Cn, 31.

°® See above, 50.

°° See e.g. below, 100-2, for the Leckhampstead case. *°° TV Eg, 1.2; quoted below, 117.

‘Liber Eliensis, ii. 33, ed. Blake, 107-8; Kennedy, ‘Law and litigation’, 142.

58 PART I: LATE ANGLO-SAXON ENGLAND aspects. Thus an agreement between Athelnoth, archbishop of Canterbury 1020-38, and a certain Toki concerning land at Halton, Buckinghamshire, was witnessed by three named laymen, many other good retainers [cnihtas], and all the archbishop’s household, both ecclesiastics and laymen. It was later renewed, with the witness of many trustworthy men, and all of the archbishop’s household, both ecclesiastics and lay.’ Although there is no indication that such a gathering could make judgments, it might be seen as the type of body from which seignorial courts could have emerged.

Franchisal courts What of courts that may have been established by the grant of royal rights? There are three main issues. First, did royal grants allow the establishment of courts, or did they simply pass the profits of justice to lords? Secondly, how extensive were the rights granted by the king? Thirdly, how do such grants relate to royal control of justice in late Anglo-Saxon England? There are difficulties with the evidence for all these issues. Because of the later desirability of judicial privileges, important charters are likely to have been forged or have had clauses concerning franchises interpolated.’°? However, demonstrable forgery or interpolation need not prove that the stated privileges were not enjoyed at the time of the supposed grant, only that the privileges were not preserved in writing. Oral grants or even exercise of privilege might precede any written record. Anglo-Saxon charters in their characteristic diploma form, moreover, were singularly reticent on judicial privileges, whereas the writs that survive from the reign of Cnut onwards spelt them out. Domesday Book provides only limited help. At least the Book and possibly the preceding survey took restricted interest in judicial privileges. Domesday may further distort the situation because of the imposition of Norman assumptions and Continental Latin. Moreover, some of its information, notably concerning the privileges of the bishop of Worcester, was produced by acceptance of ex parte statements.’

Cnut’s laws indicate that the king sometimes gave what were regarded as significant rights to some lords, in stating that mundbryce, hamsocn, forsteal, and fyrdwite were to belong to the king unless he explicitly granted them to

10? § 1464, 1466.

*°° E.g. the Worcester Altinonantis charter, S 731, on which see e.g. John, Land Tenure, 80-112, 162-7; P. Wormald, ‘Lordship and justice in the early English kingdom: Oswaldslow revisited’, in his Legal Culture, 313-32, at 324-5. In some cases, one can show the expansion of claims over time, for example in the accounts of the trial at Penenden Heath shortly after the Norman Conquest; see D. R. Bates, “The land pleas of William I’s reign: Penenden Heath revisited’ (1978) 51 BIHR 1-19. *°4 See S. Baxter, “The representation of lordship and land tenure in Domesday Book’, in Domesday Book, ed. E. Hallam and D. Bates (Stroud, 2001), 73-102, 203-8, at 82-92.

3 COURTS 59 someone.’ However, these rights do not appear to have covered the entirety of the king’s criminal jurisdiction but rather those too serious to be granted automatically by sake and soke yet less serious than the major, unemendable crimes such as arson, open theft, murder, and treachery.’ The most common phrases in royal writs granting rights relating to justice are ‘sake and soke’ and ‘sake and soke, toll and team, and infangentheof’. Such rights might be recorded as granted over the beneficiary's men or over an area of land.’” The last three terms can be defined as follows. Toll had its modern sense of payment relating to commerce and for goods passing through a place. Team granted

the fines arising from warranty procedure in sales, that is proof of title through

demonstration that goods had been acquired from another in good faith.’ Infangentheof was the right to summary trial and execution of thieves taken in the act or very soon thereafter. More problematic are sake and soke. Soke was a general term, covering a variety of customs. For example, the lord’s right to have his men’s sheep graze in a particular place, thereby obtaining valuable manure, was known as ‘foldsoke’.. When coupled with sake, soke relates to rights concerning justice. It seems that sake and soke involved some but not all emendable offences, since it was necessary on occasion to specify others in a grant, notably those referred to as gridbryce or mundbryce, forsteal, and hamsocn. Most probably, the offences covered simply by sake and soke were those within the jurisdiction of the hundred.'” Holders of sake and soke could also grant the rights to another.”°

*°? See above, 50, below, 173, for the importance of these offences. *°° See Hurnard, ‘Franchises’, esp. 289-310, criticising F. W. Maitland, Domesday Book and Beyond

(Cambridge, 1897), 282-3; note also J. Goebel, Felony and Misdemeanor: a Study in the History of English Criminal Procedure (New York, 1937), 361-409. Hurnard, at 295, argues that these are the borderline, not the core pleas of the Crown, and that as some lords had them, the king had to be especially careful about further usurpation; cf. the emphasis on the importance of the offences suggested by T. B. Lambert, “Royal protection and private justice: a reassessment of Cnut’s “reserved pleas”’, in English Law before Magna Carta, ed. Jurasinski et al., 157-75. On the emendability of the offences in IT Cn, 12-15, see I Cn, 3a, 3. 2; II Cn, 58, 62, 65. IT Em, 6, stated that both hamsocn and grithbryce were

to lead to complete loss of property, and the offender’s life being in the king’s mercy, but Hurnard, ‘Franchises’, 301 n. 2, argues that this was not the terms’ normal use, but seems rather to refer to cases of homicide aggravated thus. For unemendable offences, see esp. II Cn, 64, and below, 181. *°” §1071, 1072. For grants of sake and soke, see esp. S 945, 986, 997, 1065, 1068, 1069 (eight anda half hundreds), 1071-2, 1077, 1080, 1082-3, 1088-91, 1096-7, 1101-5, 1107, 1111-12, 1115-16, 1125-31, 1139-41,

1143, 1151, 1156-7, 1159-61, 1163, 1241. See below, 114, for sokeland, 210, for sokemen. Historians and

some medieval documents also refer to ‘sokes’, that is large estates composed of groups of dependent settlements and a central place, to which pertained various rights, including ones relating to justice; for a more detailed description, see e.g. Baxter, Earls of Mercia, 257-61. *°8 For team being a financial rather than judicial right, see esp. IT Cn, 24. 1; this is also the implication of e.g. $1423. On warranty procedure, see below, 155-9. *°? See also Goebel, Felony and Misdemeanor, 371-2, Wormald, ‘Lordship and justice’, 317. **9 See esp. S 1219, 1225, 1243.

60 PART I: LATE ANGLO-SAXON ENGLAND Later evidence suggests that possession of sake and soke might derive from status rather than royal grant, but this is not clear in the Anglo-Saxon period.” One possibility is association with the status of king’s thegn, but it is in fact very hard to show that all king’s thegns had sake and soke; that king’s thegns who had sake and soke did so as a result of being king’s thegns; and that only king’s thegns, not some other thegns, had sake and soke. More likely is that a significant number of king’s thegns were important men and prominent landholders, and that such men often had rights of sake and soke. At the same time, it is possible that what kings, and in particular royal writs, sometimes presented as royal grants were in fact acknowledgments of an existing situation, where a local power took the payment arising from the offence.’” Besides grants of sake and soke and sometimes of other rights over a portion

of land smaller than a hundred, entire hundreds or even larger areas might pass to individual lords. By the end of the Conqueror’s reign, as many as 130 hundreds may have been in lords’ hands.’? These included, in ecclesiastical hands, some large areas that may have been pre-hundredal in origin. In some of these, notably for example the eight and a half hundreds granted by Edward

the Confessor to Bury St Edmunds, the rights involved were equivalent to those exercised by a shire or borough court rather than a hundred.* There were also extensive privileged areas in the north of the realm, privileges later associated with King AAthelstan. These may have derived from local conditions or special powers enjoyed by the bishops, rather than grants of sake and soke.’®

Their importance is further suggested by the more extensive post-Conquest evidence."®

Overall, there is plentiful evidence for lords receiving profits from justice in the form of fines and ofa share of forfeited property.’” Such profit appears to have

“™’ See below, 289-91, on the Leges Henrici Primi and sake and soke. See below, 175 n. 19, on suggestions of a link between sake and soke and bookland. Cf. the connection between the status of king’s thegn and possession of sake and soke in the Anglo-Saxon period suggested esp. in R. R. Reid, ‘Barony and thanage’ (1920) 35 EHR 161-99, and D. Roffe, ‘From thegnage to barony: sake and soke, title and tenants-in-chief’ (1990) 12 ANS 157-76. ‘See e.g. IT As, 1.5; for kings presenting local situations as privileges, see also below, 466, 563. “SH. M. Cam, “The “private” hundred in England before the Norman Conquest’, in her LawFinders and Law-Makers in Medieval England (London, 1962), 59-70, esp. 67-70; cf. the cautions provided by Wormald, ‘Lordship and justice’, 327. *“ Hurnard, ‘Franchises’, 319-20, 324-7, Anglo-Saxon Writs, 437; on Bury, note that Marten, ‘Shiring of East Anglia’, 21-2, questions the antiquity of the territorial arrangement; Hurnard, ‘Franchises’, 316-19 on Ely, Glastonbury, and Ramsey. “? Hurnard, ‘Franchises’, 314-16. *t© See below, 292-3. "7 Seee.g.S 223, 1506; VI As, 1, Hu, 2.1, IT Eg, 3.1, HI Eg,7.1, I Atr,1.7, 0 Cn, 25.1; Wormald, ‘Lordship

and justice’, 328-9. For the meaning of landhlaford, and comments as to its possible link to soke, see

3 COURTS 61 been linked to the possession of soke; it is instructive that one manuscript of Cnut’s laws contains additions in three places where a lord receives such profits, spelling out that he possessed soke."* Whether grants of sake and soke or of hundreds, or

indeed of rights such as hamsocn or gridbryce, also gave rights of court-holding has been hotly contested.’ The evidence is extremely limited. Post-Conquest claims of privileges must be treated with caution.’° It may be significant that no genuine pre-Conquest writ granting judicial rights excludes intervention by royal officials in the area concerned. Rather, such exclusion clauses start to survive from after the Conquest. Possibly this is because matters previously assumed or stated orally came to be written down after 1066. However, it remains notable that the Anglo-Saxon laws lack the type of reference to immunities, exclusions of external officials, which appear in Carolingian capitularies.’” Dispute evidence too is minimal. We do hear of the abbot of Peterborough pronouncing outlawry [utlage] on a man, but this could have been done on the king's behalf or with his permission. That a case of horse theft may have come to a hundred court even though the abbey of Bury had sake and soke over the place and over one of the parties concerned may bea sign that franchise holders did not actually judge cases.’ Likewise, we have evidence of, for example, Ealdorman /Ethelwine hearing cases in a hundred court in the churchyard at Ely’s north gate in a fashion that apparently did not occur after the Conquest; this suggests that the abbey’s franchise was limited in the late tenth century.’** It may be that a case such as this, joined to the accumulation of silences in the laws, writs, and accounts of cases, does indicate that lords who were granted privileges such as sake and soke enjoyed financial rather than judicial rights before 1066. However,

Baxter, Earls of Mercia, 238-40 and S. Baxter, ‘Lordship and justice in late Anglo-Saxon England’, in Early Medieval Studies in Memory of Patrick Wormald, ed. Baxter et al., 382-419, esp. 405-6. **® See IT Cn, 37, 63, 73. 1; Goebel, Felony and Misdemeanor, 371-2; on the manuscript, British Library, Cotton MS Nero A. I, see Wormald, Making of English Law, 224-8, 349-50, who dates it to 1066 or soon after. It is of course, possible that the changes were derived from an earlier manuscript. ‘™? See esp. Maitland, Domesday Book and Beyond; Goebel, Felony and Misdemeanor; Hurnard, ‘Franchises; Wormald, ‘Lordship and justice’. **° See Wormald, ‘Lordship and justice’; Baxter, ‘Representation of lordship’. 2! Wormald, ‘Lordship and justice’, 324-6.

*?2 Wormald, ‘Lordship and justice’, 329. Likewise there is no equivalent in England to the Continental advocates of monasteries; Wormald, ‘Lordship and justice’, 331. Note the arguments of Lambert, ‘Protection, feud and royal power’, ch. 3, which suggest modifications to Wormald’s arguments. "23 DB, ii. fos 401v—402r; it should be noted that the text does not say definitively that the placitum about the horse theft took place in the hundred, and it should also be noted that the case was settled amicably, without judgment. ‘24 Anglo-Saxon Charters, ed. Robertson, no. 40; Liber Eliensis, ii. 12, ed. Blake, 91; see also Wormald, Making of English Law, 156.

62 PART I: LATE ANGLO-SAXON ENGLAND the pre-Conquest sources remain silent on many important issues, for example court-holding in the north of England. Moreover, it is again important not to see lords and kings as naturally tending to confrontation. In practice, royal officials may have accepted that a lord who possessed an entire hundred could control the appointment of the hundred reeve, and therefore in a sense exercise jurisdiction over the hundred.’* Furthermore, decisions might be made by the suitors, not the person presiding over the court; if all the suitors were men of one lord, his influence clearly would be very considerable, even if a royal reeve presided.° One could even conceive of a lord who had sake and soke over a limited area temporarily taking over the chair of a hundred court, the case still being decided by the suitors of the hundred but the profits of justice passing to the privileged lord.’”” Local and royal interests would thus be

integrated, as we see in other matters, such as the taking of pledges in criminal procedure.’”® As emphasised in the previous chapter, such integration of the royal

and the seignorial distinguishes late Anglo-Saxon judicial administration from developments in many areas of contemporary France.

Vill and manor courts Scarcity of evidence makes it very hard to tell whether courts were held at a level below that of the hundred. The word ‘hallmoot’ is a post-Conquest one, at least in terms of written survival, although it is notable that the word itself is Old English. A Domesday entry might indicate that lords’ vill courts had soke over the men with the smallest amounts of land, but again it need not be assumed that soke indicates the existence of a separate court.*° A law of Edgar shows the men of a tun having a role in witnessing cattle sales, and reporting to the head of the hundred [hundrodes ealdre], but this need not indicate a vill court.’ A law of Ethelred, which included fines for breach of the peace of the borough and wapentake, specified that ‘in breach of the peace in an alehouse, 6m. shall be paid if a man is slain and twelve ores if no-one is slain. ‘> Note also Cam, ‘Private hundred’, 67, Wormald, ‘Lordship and justice’, 317. "°° See below, 87-8. "°7 See below, 284 n. 91, for private hearings on the fringe of public courts. "28 See e.g. III Atr, 7. See also VIII Atr, 8, I Cn, 8. 2, on the involvement of a lord’s reeve in the exaction of tithe; cf. IT Eg, 3.1.

2° DMLBS, s.v. ‘halimotum’. Assemblies must have been involved in agricultural matters, including agrarian and pastoral arrangements and the laying out of planned settlements; some such matters may have been treated in the type of local assemblies already discussed, others possibly in assemblies without any judicial function and perhaps meeting on an ad hoc basis. "9 DB, ii. fo. 130v; note the comments of Maitland, Domesday Book and Beyond, 90-1. 'S* IV Eg, 7-8.

3 COURTS 63 It is conceivable that this concerns a meeting at a level below the wapentake, perhaps a meeting of tithing or vill, rather than a pub-brawl. Athelred’s law may be specific to the region of the Five Boroughs, but other evidence may suggest such meetings taking place elsewhere in England. In Athelstan’s reign it had been specified that the hundredmen and tithingmen of London were to meet monthly ‘when the butts are being filled’. The analogy with the peace in the alehouse may be significant.

Other lay courts There is mention of compensations being paid between gild members, particularly arising from insults, perhaps indicating gild assemblies that heard quarrels." There were also probably courts summoned to hear particular disputes, not fitting clearly into any of the categories already discussed.‘ In other instances, settlements were made at gatherings that had taken place for other reasons, such as the dedication of a church.”®

4 ECCLESIASTICAL COURTS Large church gatherings or synods, like lay courts, dealt with a variety of matters,

including disputes.¥° Unfortunately we lack records of routine matters of litigation.” It is possible that before our period synods heard all cases involving bookland, perhaps because bookland had originally been an ecclesiastical form of tenure.** The case evidence suggests that such jurisdiction extended to bookland cases between laymen, although the sources’ silence about bookland cases in other courts at this time need not be significant. In our period, too, some

‘2 VI As, 8.1, III Atr, 1. 2; note also LHP, 81, ed. Downer, 252-4. Cf. the discussion in C. Neff, ‘Scandinavian elements in the Wantage code of thelred IT’ (1989) 10 JLH 285-316, at 307. ‘°° Note esp. Codex diplomaticus aevi Saxonici, ed. J. M. Kemble (6 vols; 1839-48), no. 942 (the Abbotsbury guild). *°* For possible examples, see Liber Eliensis, ii. 27, 33, ed. Blake, 100-1, 107-8. Ramsey Chronicle, 25, ed. Macray, 50, involves the men ofa shire but need not have been a formal shire court. "°° Liber Eliensis, ii. 30, ed. Blake, 104.

"°° Note that the introduction to Alfred’s code, before describing Alfred’s own selecting of laws that pleased him, stated that after the conversion to Christianity ‘many synods of holy bishops and also other distinguished counsellors’ assembled and established compensations for wrongs, and had them written in ‘synod-books’; Af, El. 49. 7-8. "87 Helmholz, Canon Law and Ecclesiastical Jurisdiction, 16-17. *8 C, Cubitt, Anglo-Saxon Church Councils c. 650-c. 850 (London, 1995), esp. 65-76, and also 21, 24-5, 238-9; Campbell, ‘Placing Alfred’, 7, 10; Kennedy, “Disputes about bocland’, 178 and n. 15.

64 PART I: LATE ANGLO-SAXON ENGLAND gatherings called synods heard secular cases, but the evidence suggests that these were not purely ecclesiastical meetings. Prescriptive texts raise the possibility of lesser ecclesiastical courts. A Wulfstan

text known as the ‘Canons of Edgar’ states that ‘it is right that every priest announce in a synod if he knows in his parish [scriftscyre] any man disobedient to God, or evilly fallen into deadly sins, whom he cannot turn to repentance or dare not because of worldly power’.'4° However, it is far from clear that there were separate ecclesiastical courts on a local level in Anglo-Saxon England, and bishops may well have heard relevant cases in the shire and perhaps the borough or hundred court, and have received profits therefrom. Dealing with spiritual matters was above all part of the office of the bishop; the location might be a secondary consideration.”

5 RELATIONS BETWEEN COURTS We have dealt with different courts without asking how far they formed a hierarchy with clearly distinguished jurisdictions. A law of Cnut, already cited, insisted that a man demand his rights three times in the hundred court before taking distraint of property. If on the third occasion he did not obtain his right, he was to go to the shire court. The law thus makes the hundred subordinate to the shire within matter of distraint.’** However, such evidence for cases passing from hundred to shire is exceptional. The shire court probably dealt with more serious criminal cases, but land cases were heard in both hundred and shire. It may be that the choice of court was affected by the site of the original transaction or by the choice of the parties. Other factors might also have come into play, for example convenience, political pressure, or the desire for neutral ground.’ Distinctions between the jurisdiction of hundred and shire are further blurred by the existence of courts of groups of hundreds and by men not from the administrative unit being present in court. Thus the Libellus £thelwoldi records that ‘all *** Note S 877. The problems of identifying types of court are also illustrated by the two probably authentic charters of King thelred concerning the forfeiture of Ealdorman Alfric; see above, 45. *° ‘Canons of Edgar’, 6, Councils and Synods, I, no. 48; note also c. 7. See also Helmholz, Canon Law and Ecclesiastical Jurisdiction, 57. II Cn, 43, states that ifa man in orders committed an offence that might lead to him incurring the death penalty, his case went to the bishop’s judgment; the location for the judgment is not specified; see also EGu, 4. 2. “See IIT Eg, 5. 2, II Cn, 18.1. On the possibility of hearings taking place in the hundred, see below, 298. See further Barlow, English Church 1000-1066, 146-52; C. Morris, “William I and the church courts’ (1967) 82 EHR 449-63, at 453-5; below, 235. *“* IIT Cn, 19; see above, 54.

*° See Kennedy, ‘Law and litigation’, 142-4.

3 COURTS 65 the leading men born in East Anglia and Cambridge’ attended a meeting of three hundreds at Hinton.'4* Likewise in shire courts, men from outside the shire may sometimes have been present.’ We have already suggested that the distinction between lords’ courts, if they

existed in this period, and royal courts, and between royal and district courts, may have been less important to contemporaries than it has been to some historians. The mixture of the royal and the local or popular is epitomised in the naming of hundreds. In Domesday Book some share their names with a royal vill in the hundred, others probably take their names from a traditional assembly site, often a tree, a burial mound, a ford, or a cross.’*° Courts were places where local and royal interests in matters of peacekeeping and justice met. If late AngloSaxon England had a peculiarly powerful monarchy, that power stemmed in part from the co-opting of local practices and pressures.

*** For this and other instances see Kennedy, ‘Law and litigation’, 148. **° See S 1460 for laymen from Gloucestershire and possibly Northamptonshire attending a shire court at Worcester; S 1474 for men from Somerset and possibly Dorset being present at a shire court at Exeter.

“4° Sawyer, ‘Royal tun’, 483; see also Anderson, English Hundred Names, xxvi-xxxii. For some hundreds, there is evidence for vacillation between traditional assembly site names and vill names, and for change from the former to the latter; see Anderson, English Hundred Names, xxix-xxx.

Procedure ihe Anglo-Saxon laws do not lay out the stages through which cases passed. Accounts of disputes too have their problems. They do not provide a representative sample of cases. They are ex parte accounts, very largely from the successful parties. There is a danger of conflating sources to produce a set pattern of lawsuit, exaggerating standardisation and formalisation, neglecting differences between types of case as well as between individual disputes.’ The limits of the

sources make uncovering chronological change particularly difficult, and the picture that this chapter provides is likely to be excessively static. Furthermore, although many elements of procedure appear to have been common

throughout the realm, there were probably also differences between regions of England.* Some may have been at the level of the shire or lower.’ However, the most

important may have been between areas that had been under Danish control in the ninth century and those that had remained under Anglo-Saxon kings. One of Edgar's laws distinguishes between the ‘good laws’ that the Danes chose in certain matters and, on the other hand, Edgar's additions to the decrees [domum|] of his ancestors, applying to the English.* The prologue to a set of laws issued by 7thelred at Woodstock specifies that they were enacted for the improvement of peace for all people, according to English [Engla, i.e. ‘Angle’] law.’ His code issued at Wantage appears to be a parallel set of measures for Danish areas, containing a significant amount of Scandinavian vocabulary and also mentioning the Five Boroughs, for which area it may have been drawn up.° Another law of Athelred specifies that a

* For example, considerable flexibility might exist in selecting a method of proof; see e.g. Ramsey Chronicle, 49, ed. Macray, 78-80. * See also below, 201-2, for wergelds; 188, for fines. * See below, 313, on LHP, 64. 1; 855 on Glanvill.

* IV Eg, 2. 1; cf. IV Eg, 2. 2, for a measure applying to Danes, English, and Britons alike. For distinction between practices among the Danes and the English, see also IV Eg, 12-14. On this code, see Wormald, Making of English Law, 126, 132 n. 61. For law and legislation regarding English and Danes, see also below, 248-9. > I Atr, Prol; this is the first such reference to Engla lage. ° See Wormald, Making of English Law, 322-30; he emphasises that this does not make the laws a simple record of local custom. See also Neff, ‘Scandinavian elements’.

4 PROCEDURE 67 person who sought to clear himself of an accusation of plotting against the king's life was to do so by most solemn oath or threefold ordeal ‘in English [Engle] law, and ‘in Dane law according to their law.” It seems likely that such ‘Dane law’ or ‘law of the Danes’ refers to the law of an area, not of individual persons. Such an interpretation certainly fits with the reference in Cnut'’s laws to rights that the king enjoyed in Wessex, in Mercia, and ‘in Dane law:*

In this chapter, I outline the main stages through which court cases might proceed, whilst noting flexibility and variation. Certain topics are discussed much more fully in other chapters, notably warranty and witnessing of sales, particularly cattle sales; methods for dealing with offenders caught red-handed; and punishment. Let us begin, though, by describing two cases in detail.

1 TWO CASES Our first case comes from the Libellus Athelwoldi, which recounts Bishop /Ethelwold’s land dealings in relation to the abbey of Ely.’ During the reign of Edgar (957/9-75), Athelwold bought Bluntisham (Hunts) from a man named Wulfnoth. However, following the king’s death, the sons of Boga of Hemingford claimed that land, saying that their uncle Tope ought to possess it by hereditary right. They made

the claim on the grounds that Tope’s grandmother had crossed from Bluntisham and submitted to King Edward the Elder at Cambridge at the time when Ear! Toli had held Huntingdonshire against the king by force, and therefore she should have rightly had that land herself. Their argument seems to be that their predecessors had forfeited the land but should not have done so. On these grounds, Wulfnoth should never have held the land that he sold to Athelwold. The wise and old men of that shire [provincia] could recall when Earl Toli had been killed, and said that the case presented was false. King Edward had taken control of Huntingdonshire before Cambridgeshire.” They also said that no land in Huntingdonshire was so free that it could not be forfeited, except for two hides at Bluntisham that Alfsige Cild held and another two near Spaldwick. They laid down that Wulfnoth should either cause Bishop Athelwold to have the land at Bluntisham in peace, or give back the money that he had received. They thus seem to have given a twofold

7 VIAtr, 37. * II Cn, 12, 14-15. For other references in this code distinguishing between ‘on Engla lage’ and ‘on Dena lage’, see IT Cn, 62, 65. See also below, 248.

” Liber Eliensis, ii. 25, ed. Blake, 98-9. '° For these events, see ASC, version ‘A’, 917 (s.a. 920). The recollection of ‘the wise and old men’ matches the ASC, even though the events took place about sixty years before the case.

638 PART I: LATE ANGLO-SAXON ENGLAND judgment, rejecting the arguments of the sons of Boga, but still demanding that Wulfnoth either show that the land had been his to give, or accept that it had not been and therefore restore the money that he had received for its sale.

Then Ealdorman Byrhtnoth and Alfwold and Eadric called together the whole shire of Huntingdon. Wulfnoth and the sons of Boga were summoned to a plea at this great meeting. Wulfnoth brought with him very many men of good faith [fideles], that is all the better men of six hundreds. Leofsige, monk of Ely, brought a document [cirographum] concerning Bluntisham. They explained the claim and discussed the case. When the truth of the matter had been established, Bluntisham was by judgment taken away from the sons of Boga, for two reasons: first, because they had lied about Tope and his grandmother; second, because he who had the document was closer to having the land than he who did not. This may mean that the party with the charter should be allowed to prove their right to the land by oath. Certainly Wulfnoth produced more than 1000 men of good faith, so that he might establish his claim to the land through their oath. The sons of Boga, however, would not accept the oath. Then all decided that Wulfnoth was to have Bluntisham, and they promised in good faith that they would be his supporters and witnesses that they had done this, if ever he or any of his heirs had need. When this had been done, /Ethelwold gave Wulfnoth 4os. and a horse worth 3m., since he had laboured hard on this case, and since he was about to cross the sea in the service of his lord. It may well be that Wulfnoth, having established his right to the land against the sons of Boga, immediately restored it to Ely, and certainly the abbey held Bluntisham in the eleventh century." Our second case comes from Lantfred’s Miracles of St Swithun. A merchant named Flodoald—his name indicates that he was not English—had a household servant [ famulus], whom he liked greatly. The man was seized by the king's reeve, Eadric of Calne, for a certain offence.” It was ordered that he be held by certain king’s thegns [a regalibus clientibus] until his lord came and the man went to trial by hot iron. If cleared, he was to go free, if found guilty, to suffer capital punishment. Hearing that his servant [servus] was being held in chains, Flodoald went swiftly to ask Eadric to waive the ordeal and keep the aforesaid household servant

*' See esp. Liber Eliensis, ii. 84, ed. Blake, 153; DB, i. fo. 204r, the land being assessed at six anda half hides. The abbey of Ramsey had halfa hide there, DB, i. fo. 204v. ‘? Lantfred of Winchester, Translatio et miracula S. Swithuni, 25, Lapidge, Cult of St Swithun, 308-10. For a tentative suggestion as to the identity of Eadric, and a dating of the events to 971 x 972, see Lapidge, Cult of St Swithun, 308 n. 229. The Translatio et miracula were written probably between 972 and 974, and not later than c. 975; Lapidge, Cult of St Swithun, 235-7. Calne, Wilts, was a royal estate. See also D. Whitelock, “Wulfstan Cantor and Anglo-Saxon law, in her History, Law and Literature in 10th-11th Century England (London, 1981), no. V.

'* See Lapidge, Cult of St Swithun, 309 n. 232, on the phrase capite aliquem plectere.

4 PROCEDURE 69 on servile terms [servili... condicione]|. The reeve nevertheless ordered the servant

to carry the hot iron. The servant's lord, grieving that he would certainly perish, made another promise to Eadric, to give him a pound of silver as well as the servant, and begged him to waive the unjust judgment [judicium].’* He did not wish to suffer the shame involved in his slave [mancipium] being executed for such an offence. Eadric was also promised great gifts by the accused’s friends and relations, who hoped to save him from death.” The reeve nevertheless forced the accused to carry an especially heavy iron, glowing red-hot from a large amount of coal. The man took it fearfully ‘and immediately an immense burn filled the entire palm of his scorched hand with its swelling’. His hand was then bound up

in the accustomed fashion until the third day. On that day the dressing would be unsealed, and if the hand was clean, he would be found innocent. On the second day, however, Flodoald called the man to him and somehow found him condemned and guilty; how is unclear, given that the hand was presumably still sealed at this stage. Greatly upset, the merchant called his brother and other companions, and prepared to go home, being unwilling to see his man suffer the death sentence. Flodoald and his retinue prayed through the intercession of St Swithun that the man be freed. He would then be given to the saint. On the third day, the accused was taken to the reeve, so that the thegns present could see if he was innocent of that crime. When they had arrived before the judges, the man’s enemies judged him to be blameless and unharmed. His friends’ sorrow turned to joy, for it was a marvel beyond belief that his supporters saw the blistering and swelling whereas his accusers [criminatores] saw the hand to be healed as if it had never been burnt. The accused’s companions gave thanks for the divine intervention and for St Swithun’s intercession, whilst Flodoald kept his promise and gave the man to the saint.

2 BRINGING AN ACCUSATION OR CLAIM Before a dispute came to court, the parties might pursue it in many ways.”° One possibility was to take a grievance directly to one’s opponent, a practice that may have

been frequent yet rarely mentioned in accounts of court proceedings.” Another possibility was to bring the claim to a person in authority, most commonly in

“ Lapidge, Cult of St Swithun, 309 n. 233, following Whitelock, suggests that this may have been a fine or compensation. '° The offer suggests perhaps surprising wealth on the part ofa slave’s friends and relations. "© See above, ch. 1.

'” See e.g. Liber Eliensis, ii. 19, ed. Blake, 95.

70 PART I: LATE ANGLO-SAXON ENGLAND our sources the king.’* He might decide the case, arrange a settlement, or initiate a court hearing.’ Sometimes he would issue a written judicial instruction, to be read out in a court.”° Other accounts mention the king sending his seal, which may indicate a written instruction or an oral order authenticated by the seal being in the messenger’s possession.” Cases can be fitted within a broad categorisation. The party bringing the plea was claiming that a wrong had been done to him, or that the other party was in possession of something that belonged to the claimant. The two might be closely

combined, as in a charge of theft: the opponent had wronged the claimant by taking something that belonged to the latter. Or they might be more separable, as in a claim that the opponent was in possession of something that belonged to the claimant, but was not himself the taker. The initiator might choose by which of the two forms to bring his claim according to the facts of the case, the redress he sought—restoration, compensation, or punishment of the offender—or the type of proof that he wished to bring. Either form might apply to immovables or movables.” The form of claim might determine procedure, but did not necessarily do so; one accused of wrongfully taking land might vouch a third party as having given it to him, just as might one accused of holding but not personally having taken the land that was claimed.*? We seem far from the situation that existed by the end of the twelfth century, when claims regarding free tenements needed to be brought by royal writ, a method very different from accusations of felony, and when the form of claim would have a close relationship to the form of proof.”*

In court, the bringing of a case by the wronged individual—or, in the case of homicide, by a kinsman—was probably the normal process. Bringing a charge was a serious business. There was considerable danger of malicious accusation, and false accusation was punished. Laws of Edgar and Cnut laid down that ‘if anyone seeks to accuse another man falsely, so that he is injured either in property or in life, and if the second man can refute what the first has sought *® § 1383 shows a bishop stating his claim probably to an ealdorman, but it is not clear whether this was early in the dispute. *? See e.g. S 1077, 1241; DB, i. fo. 252v. S 996, 1084, 1106, 1112, 1240, could also result from the king

hearing complaints. *® On the reading of writs, see S 1124. On writs and disputes, see also Wormald, Making of English

Law, 157-8. Such written judicial instructions need not, of course, always have been issued at the start of the dispute; see e.g. S 1456. *" Seee.g. $1454.

*? The term reaflac, meaning unjust and possibly violent taking, was applied to land or to goods such as books; see e.g. S 1211, 1457; Anglo-Saxon Charters, ed. Robertson, no. 24. °° See below, 77. ** See below, 576, and for qualification below, 576 n. 10; see also Hyams, Rancor, 145-54.

4 PROCEDURE 71 to bring against him, the first shall forfeit his tongue, unless he redeem himself with his wergeld’.* The party was to state his charge or claim formally, with a fore-oath, normally but not invariably sworn in person, and sometimes needing the support of others: In cases where a simple oath of exculpation is involved, the case shall begin with a simple fore-oath, but where a triple oath of exculpation is involved, it shall be begun with a triple fore-oath. And if a thegn has a trustworthy man to give his fore-oath for him, he may be allowed to make use of him; if he has not, he must begin his case in person. And no fore-oath is ever to be remitted.”

The form of the oath was likely to vary with the type of charge or claim, but one example runs as follows: “by the Lord, I accuse N. neither for hatred nor for calumny nor for unjust gain; nor do I know anything more true, except as my informant told me and I myself truly relate [talige] that he was the thief of my cattle’.””7 Occasionally particular types of charge were said to require more elaborate procedures, for example swearing the fore-oath in four or even twelve churches.”* However, if particularly strong evidence, notably the trail of stolen cattle, pointed to the guilt of the accused, that evidence might take the place of the fore-oath.”® The accusation and oath, like other court proceedings, appear routinely to have been in English.° It seems possible that an accusation could be withdrawn, but only if it related to a real offence and could then be redirected: ‘if a man sets forth an offence at the public court [folces gemote], in the presence of the king’s reeve, and afterwards wishes to withdraw it, he shall make the accusation, if he can, against a more likely person. If he cannot, he shall lose his angild’* The angild was the value of the property concerned in a case of theft, perhaps suggesting that this process was of restricted application.

*° TIT Eg, 4 (note that some manuscripts read ‘in reputation’ rather than ‘in life’); also IJ Cn, 16. On malicious accusations, see also below, 725. *° II Cn, 22. 1a-3; see also IT As, 23. The ‘Canons of Edgar’, 64, Councils and Synods, I, no. 48, state

that ‘it is right that a priest not defend himself against a thegn without the thegn’s fore-oath’. Fora subordinate thegn swearing on his lord’s behalf if necessary, see also GePyncdo, 3. On the need of additional swearers, see e.g. II As, 9, 11. A fore-oath was an initial swearing, as opposed to the final oath of exculpation required as proof. *” Swer, 4. See also e.g. Swer, 2. On this text, see Wormald, Making of English Law, 383-4. 28 Af 33, *° V As, 2, II Em, 6.2. Accusers may sometimes have been required to give surety that they would pursue their accusation; see below, 723.

°° See also e.g. S. L. Keefer, ‘Donne se cirlisca man ordales weddiged: the Anglo-Saxon lay ordeal’, in Early Medieval Studies in Memory of Patrick Wormald, ed. S. Baxter et al. (Farnham, 2009), 353-67. 31 Af 22.

72 PART I: LATE ANGLO-SAXON ENGLAND Some accusations of wrongdoing may have been brought by royal officials, certainly concerning infringement of royal rights, and it is possible that it was Eadric of Calne who brought the charge against Flodoald’s servant.” Other accusations were brought by groups of court members, for example the twelve leading thegns of a wapentake mentioned in a law of Athelred quoted in the previous chapter.’ It is also possible that tithing groups were responsible for presenting members who had committed offences.*

3 ENSURING ATTENDANCE It appears that the presence of the other party was not essential for the preliminary bringing of the charge or claim. Judgments in absentia and by default were possible.?> However, it was at least desirable for him to be present

if the case were to proceed. He might be present in court, have to be summoned, placed under surety, or even seized. These various practices had to work together: for example, even if the accused were present in court, sureties might be needed to ensure that he did not flee thereafter. According to a law of AEthelstan, if anyone failed to attend a court three times, presumably following summons, he was to pay the king the fine for disobedience of a royal order [oferhyrnesse]. If he did not comply and did not pay the fine, all the chief men belonging to the ‘borough [byrig]’ were to ride and take all that he owned, and place him under surety [on borh].*° Accounts of land cases also record multiple summonses, although not the procedure that followed disobedience.’

*? Above, 68-9. See also e.g. IV Atr, 3, 8, concerning tolls and coining. Note III Atr, 3. 2, and the action of the landrican at III Atr, 4. 2.

°° III Atr, 3. 1, quoted above, 53. See further N. D. Hurnard, “The jury of presentment and the Assize of Clarendon’ (1941) 56 EHR 374-410; cf. below, 735-6. ** See below, 393. °° See e.g. Liber Eliensis, ii. 24, ed. Blake, 97; also II Cn, 19. 2. See below, 196-8, on outlawry. °° TI As, 20-20. 1. This seems to refer to those accused rather than simply those owing suit to a court. Tait, Medieval English Borough, 35-6, argues that ‘borough [byrig = burh]’ is here used in the sense of the king’s fortified house, and the court concerned was the precursor of the hundred; see also below, 85 n. 23. See also III Eg, 7, II Cn, 25.

°” See Liber Eliensis, ii. 24, ed. Blake, 97. Little is known of the acceptable excuses that might be made for non-attendance at court, but later evidence suggests that such excuses would have been common; below, 588-91.

4 PROCEDURE 73 Crucial in ensuring attendance was the use of sureties, sometimes material gages but in particular people standing as pledges.* Sureties might be found for a specific case. According to a law of Edward the Elder, if anyone is accused of theft, those who have found him a lord shall stand surety [| borh] for him, that he shall clear himself from this; or if he has any other friends, then they may do that. If he knows no-one who will stand surety for him, those concerned may

take surety [inborh] from his property. If he has neither property nor other surety, then he shall be held for judgment [to dome].*

The clause may indicate that the earliest responsibility for finding a surety had lain with an offender’s kinsmen, who would also have been those responsible for finding him a lord.*° Alternatively, rather than finding pledges after being accused of an offence, men might have standing sureties who would act if they committed an offence. From the time of A:thelstan, and possibly considerably earlier, come requirements that lords should stand as pledges for their men, notably regarding theft.” No lord was to dismiss his man when the latter had been accused until the man had rendered justice.** A particular focus was men of the lord’s household. According to a law of Cnut, ‘every lord is to have his household men on his own surety. And if one is accused of anything, he is to answer as the true law is, within the hundred in which he is accused. And if he is accused and escapes, the lord is to pay the man’s wergeld to the king.’ ‘Ethelstan’s laws likewise reveal efforts to counter the problem of lordless men, a particular target presumably being roaming offenders who were difficult to catch, convict, and punish. Such men’s relatives [m@gd] were to bring them back for justice [folcriht], and find them a lord at a public court. Failure to do so meant that the men were henceforth to be considered fugitives, and could be killed like thieves. Anyone thereafter harbouring such a man had to pay for him with his wergeld, or clear himself with an oath of that amount.*4 Kings were thus using lords to help to reduce lawlessness. Similar concerns are shown with

°® On gages and pledges, note also V As, Prol. 3. On the possibility that money gages were of particular importance in the Danelaw, see below, 249. For what follows, see also W. A. Morris, The Frankpledge System (New York, 1910), 16-29. °° TT Ew, 3.

*° See below on IT As, 2; note also ITI As, 7. 2.

“ See esp. III As, 7, III Em, 7; and note Ine, 22. ** IT As, 22. 2; note also Ine, 39, II Ew, 7, IIT As, 4, IV As, 4-5, VAs, 1.1, IT Cn, 28. 1.

*° II Cn, 31; see also III As, 7, I Atr, 1. 2. On a lord’s liability for their slaves’ wrongdoings, see below, 214.

“* IT As, 2. Note also above for the concern with lords who dismissed a man before the latter had rendered justice.

74 PART I: LATE ANGLO-SAXON ENGLAND respect to the receipt of visitors: Cnut’s laws lay down that ‘no-one shall entertain any man for more than three days, unless he is committed to his charge by the man whom he hitherto served’.*

Also from the time of Athelstan onwards we hear specifically of men of ill-repute needing to have standing pledges. Arrangements for London in AEthelstan’s reign state that the thief who has frequently and openly done wrong, and who goes to the ordeal and is there found guilty, is to be slain, unless his kin or lord are willing to redeem him by his wergeld and the full value of the [stolen] goods, and in addition stand surety for him henceforth, that he desist from every wrongdoing.

If he then stole again, his kinsmen were to return him to the reeve and he was to be put to death.*® A law of AEthelred places upon the reeve the responsibility of finding pledges for those of ill-repute: ‘if anyone is regarded with suspicion by all people, the king’s reeve shall go and place him under surety, so that he may be brought to do justice to those who have made charges against him. If he has no surety, he shall be slain and buried in unconsecrated ground.” In addition, from the time of Edgar, we have evidence of other men besides

the notorious having to choose for themselves a standing pledge outside the context of a specific offence: Every man is to see that he has a surety [borh], and this surety is to bring and keep him in all matters of law [rihte]. And if anyone does wrong and escapes, his surety shall incur what the other should have incurred. If the case be that of a thief and his surety can lay hold of him within twelve months, he shall give him over to justice, and what he has previously paid shall be given over to him.”

Laws of 7thelred and Cnut state that if the accused fled ordeal, his surety was to pay his wergeld to the king or to the person entitled.*? Finally, in terms of Anglo-Saxon legislation, Cnut stated: We wish that every free man who wishes to be entitled to exculpation and to wergeld if anyone slays him, be brought into hundred or tithing, if he is over twelve years old; otherwise he is not to be entitled to any free rights. Whether he has his own dwelling or is a follower, each is to be brought into a hundred and surety, and the surety is to

* IT Cn, 28; cf. HI, 15.

*° VIAs,1.4. See also III Eg, 7. For similar treatment of perjurers, see VIII Atr, 27, II Cn, 36. 1. 47 I Atr, 4 (= 11 Cn, 33). *S IIT Eg, 6. See also IV Eg, 3; I Atr, 1; Northu, 2. 3.

*° TAtr,1.7, IIT Atr, 6. 2, I Cn, 30. 6. In the case of a thief, the surety was also to pay the value of the

goods to the plaintiff.

4 PROCEDURE 75 hold him and bring him in all matters of law.... And it is our will that every man over twelve years of age is to give an oath that he will not be a thief or accessory to theft.*°

This may well mark the combination of suretyship and the obligation to pursue criminals that characterised frankpledge.* A situation where pledges were found only for specific cases, and probably came from those with a family or lordship relationship, thus seems to have shifted to one where all free men were routinely to have a group of pledges composed of their neighbours. As we saw in the case of Flodoald’s servant, prisons or chains could be used to ensure that the accused did not flee. Imprisonment also appears in the laws, as in a law of Cnut concerning ‘a friendless man or one come from afar, so afflicted by friendlessness that he has no surety.” In court, the person against whom a charge or claim had just been formally stated had to make a denial. Again this seems to have involved a formal oath,

in words such as: ‘by the Lord, I am guiltless, both in deed and counsel, of the accusation of which N. accuses me’? It is possible that a slip in the formal statement of claim or denial led to loss of the case, but it may well be that such slips were redeemable for payment that would allow another attempt. Usually the denial was made in person, but some needed a representative.»

This group seems to have included women. Hints of this appear in a case heard in the court of Herefordshire in Cnut’s reign. A certain Edwin brought a charge [spec] against his own mother for a piece of land.” The bishop asked who was to represent the mother, and Thurkill the White replied that he should, if he knew the plea. In fact, he did not know the plea, and three thegns were appointed to go to her. This discussion may have taken place before the formal denial. Alternatively, Thurkill may have already undertaken the formal denial,

°° II Cn, 20-1. An alternative manuscript reading in the first sentence of the quotation is ‘if anyone accuses him, rather than ‘if anyone slays him’. >" For frankpledge, and its geographical limits, see below, 391-2. Cf. e.g. VI As, where the group obligation to pursue offenders co-exists with an assumption that sureties of a convicted thief would be his kinsmen. >? IIT Cn, 35; see also e.g. IT As, 1.3; IT As, 7; VI As, 12. 1-2. A. Reynolds, Anglo-Saxon Deviant Burial

Customs (Oxford, 2009), 12-18, discusses imprisonment.

°° Swer, 5; it is possible that this is the final oath to be sworn as proof, rather than the initial formal denial, or that the two oaths may have used similar words. °>* See below, 313, on miskenning.

°° Note also Af, 14: ‘If anyone is born dumb or deaf, so that he can neither deny nor confess his wrong, his father shall pay compensation for his misdeeds.’ It is unclear whether the thegn’s right to have a representative provide his fore-oath of accusation, above, 71, was paralleled by a similar right to have a representative provide an oath of denial. °° See also below, ch. 27. >” $1462. Thurkill was related by marriage to Edwin’s mother.

76 PART I: LATE ANGLO-SAXON ENGLAND and was seeking information for further pleading, or undertook the denial once the information had been received. Sometimes the formal denial may have been elaborated, to take in a statement that the disputed goods, land, or rights were his or her own, or a statement of how possession had been gained, that is vouching to warranty the person from whom the subject of dispute had been obtained. In addition, there may have been the opportunity to state some other reason why the accusation or claim should not carry weight, what would later be called an exception. These three methods seem to be listed in a document recording a land case of the late tenth century, referring to ahnung (ownership), team (warranty), and talu (statement).** A formula for an oath regarding cattle [pecus] shows how the elements might be combined: the swearer denied taking the cattle by injustice or crime, but had it as justly acquired. He might vouch the man who sold it to him, or say he had reared it himself.

4 FURTHER PLEADING AND ARGUMENT Once formal claim and denial had been made there was room for further argument.

Such argument was put forward by the parties themselves, or by supporters, amongst whom might be some men particularly skilled or experienced in the conduct of cases. Their expertise was likely to rest on knowledge of procedures and rights, on memory of facts and past cases, and on eloquence and an ability to construct persuasive arguments, to call on appropriate maxims, to find the appropriate and compelling custom.® The party bringing the charge or claim might tell a version of the story to which the opponent might respond.” Alternatively, the claimant might ask the opponent for an explanation of the action that led to the dispute.” The laws suggest that there were certain constraints, although how far these were enforced in practice is hard to tell. A law of Cnut laid down that ‘he who defends himself or his man in court by a counter-accusation shall have spoken this °® § 1457. It appears here that the word talu is used to refer to a response to a claim, whereas it would later be reserved for the plaintiff’s statement. °° Swer, 3; on warranty of goods, see below, 155-9. Note also Cubitt, ‘As the lawbook teaches; 1029.

°° Note the emphasis on discussion, and the presence of causidici, in Liber Eliensis, ii. 11, ed. Blake, 85. For possible legal maxims, see below, 78. Note also the poem Gods Gifts to Humankind, lines 72-3:

‘One knows laws, where men debate counsel’ [Sum domas con, ber dryhtguman/reed eahtiad]; The Exeter Anthology of Old English Poetry, ed. B. J. Muir (2 vols; 2nd edn, Exeter, 2000), i. 222. °* Note the use of the verb ‘narravit’ in Liber Eliensis, ii. 24, ed. Blake, 97. S 1456 refers to the court

being ordered to consider both ontale and oftale, claim and counter-claim. These sound as if they could be technical terms, but this is their only appearance in the Old English corpus. For explanation of justified possession, note also Becwed. ° See Liber Eliensis, ii. 19, ed. Blake, 95.

4 PROCEDURE 77 all in vain, and is to answer the other as seems right to the hundred:® The person answering the claim or charge might produce a warrantor, who might have to take on the answering of a claim, or the defendant might tell his or her own story.

The stories that the parties told might consist simply of their version of the facts. These could be supported in various ways, notably through witnesses or written evidence.** The most famous example of the latter is the Fonthill Letter, apparently submitted by Ealdorman Ordlaf in a land case to which he was a party.® Likewise, Alfthryth, probably the second wife of King Edgar, sent a letter to Archbishop A#lfric and Ealdorman Athelweard, explicitly giving testimony concerning lands at Taunton and Ruishton.®° Some of the facts included in the parties’ stories could have a normative underpinning. Thus in the Bluntisham case, recounted earlier in this chapter, the sons

of Boga argued that their uncle should have the land by right of inheritance because of [hac ratione] his grandmother's earlier submission to Edward the Elder at Cambridge. This is a factual argument, but with reference to some sort of norm, as indicated by use of the words ‘hac ratione. However, the argument was rejected not by their opponents but by the old and wise men of the area on purely factual grounds, that the story of the submission was chronologically flawed.”

In other cases, certain arguments more explicitly based on norms might be put forward.®* Appeal might be made to a norm that the possessor of charters should be able to make the oath proving his or her claim to the land.® Lengthy and unchallenged tenure is mentioned in the laws as defeating claims: ‘if a man dwells on his property free from claims and charges during his lifetime, no-one shall plead against his heirs after his death’”° Such a norm may also have been cited in court.” Similarly, failure to challenge at the time of purchase might be argued to preclude later claims.” Those seizing back land might claim that it had

°° IT Cn, 27.

°* For use of witnesses, see e.g. Liber Eliensis, ii. 33, ed. Blake, 108. °° SeeS. D. Keynes, ‘The Fonthill Letter’, in Words, Texts and Manuscripts. Studies in Anglo-Saxon

Culture presented to Helmut Gneuss, ed. M. Korhammer et al. (Cambridge, 1992), 53-97, at 55-6. Other accounts of disputes may have been written in similar circumstances, rather than at the time of the settlement that the document records; see e.g. S 1447, 1457. °° $1242; see also S 1454, and below, 96. °” See above, 67-8. °° On folcriht, see also below, 247-8. °° See above, 68, below, 80. See also IT Atr, 9. 4. ”° TIT Atr, 14. See also V Atr, 32. 3 (Cambridge, Corpus Christi College, MS 201), which mentions,

in a list of unjust practices that were to stop, the bringing against heirs, after long silence, of claims that had never been made against predecessors. Cf. II Cn, 72. ” Note also Liber Eliensis, ii. 7, ed. Blake, 79. ” See e.g. Liber Eliensis, ii. 30, ed. Blake, 104; the outcome of the dispute is not stated. See also Becwed.

78 PART I: LATE ANGLO-SAXON ENGLAND been bought from them under duress.” It may well be that norms also underlay arguments in criminal cases, for example concerning wounding or killing in self-defence, or the removal of goods not amounting to theft.4 Some of the more general norms may have amounted to legal maxims, which could carry considerable weight even if they were not always decisive and would not become invalid if they were outweighed in specific cases: for example, “denial is always stronger than accusation.”

5 MESNE JUDGMENT Following such arguments, the court might come to a decision as to the formal proof that would decide the case, and as to the time and place where the proof was to be made if not at the present meeting; legal historians sometimes refer to this decision as a mesne—i.e. intermediate—judgment. The decision might be as to which party should make an oath.” Another possibility was for a group of people to be selected to decide the case. In a dispute at the end of the tenth century between Ramsey Abbey and A‘lfnoth son of Goding, the court heard the arguments [rationes] of both parties, and then ‘by the counsel of the great men present thirty-six thegns [barones] from the friends of each side were chosen in equal numbers and constituted as judges, who would decide the case between them by judicial sentence’ In some cases the reason for deciding which party should make proof was stated in normative terms, possibly reflecting arguments put forward by the party concerned. One such norm may be that the person in possession of a charter should be able to make the oath proving his right to the land.”* This is suggested in the Fonthill Letter: each of [the parties] gave his account, and then we all thought that Helmstan should be allowed to come forward with the title-deeds and prove his right to [geagnigean] the land, that he had it as Athelthryth had sold it into Oswulf’s possession at a suitable price; and she had told Oswulf that she was entitled to sell it to him because it was

’* This was repeatedly used as a justification for taking back land that Bishop A:thelwold had acquired; see e.g. Liber Eliensis, ii. 10, ed. Blake, 83. ™ See below, 716; note also e.g. IT Atr, 9. 4. ” IT Atr, 9. 3. © See e.g. S 1445 (Fonthill Letter); Liber Eliensis, ii. 33, ed. Blake, 108; below, 84, for a case from

the Vita et miracula sancti Kenelmi. ”” Ramsey Chronicle, 49, ed. Macray, 79; for this case, see also below, 89. ”® See above, 77. Note J. E. A. Jolliffe, ‘English Book-right’ (1935) 50 EHR 1-21, at 14, on continental laws giving an advantage to the charter-holder; the parallels to the norm cited here are not exact.

4 PROCEDURE 79 her ‘morning-gift when she married /thelwulf. And Helmstan included all this in the oath.... And when we were reconciling them at Wardour, the deed was produced and read, and the witness signs [hondseton] were all present on it. Then all of us who were at that arbitration [some] thought that Helmstan was nearer to the oath on that account.”

Thus, at least in this case, possession of a document alone did not suffice as proof of title, but did give a major advantage by ensuring a favourable mesne judgment. In many accounts of disputes, however, a mesne judgment is not mentioned with any such clarity. Sometimes it may have been missed out of the account, perhaps as not essential for purposes of record.*° In other cases, there may not have been a mesne judgment, in the sense of the court formally demanding proof of one party. An Ely account tells how Beahmund of Holland (Essex) and kinsmen of the widow who had given Stonea (Cambs) to Ely deprived the abbey of that land. The dispute was concluded when Ealdorman Atthelwine held a great court [grande placitum| of citizens and hundredmen before twenty-four judges. The abbot recounted the wrong that Ely had suffered, and the failure of Beahmund and his allies to answer summons to court. Those passing judgment then decided in the abbey’s favour. There is no sign that further proof was required, or any mesne judgment given.” In the case over Bluntisham, both parties proceeded to bring proof to court.” Even in the case of Ramsey Abbey and Alfnoth son of Goding, the parties to the case and one of the men presiding over the court continued to lead proceedings after the mesne judgment appointed men to decide the case.*

6 PROOF Evidence

It is likely that in many cases common knowledge was enough to establish whether or not a man had committed an offence of which he was accused. Such knowledge, as well as the production of other forms of evidence, may have cur-

tailed the formal part of proceedings, for example ending a case before any mesne judgment was needed. ” § 1445. The norm is not quite spelt out here; however, see the Bluntisham case, above, 68. Note also S 1433, for a bishop in possession of charters making the oath of proof. On morning-gifts, see below, 238-40. °° See e.g. Liber Eliensis, ii. 1la, ed. Blake, 89-91. *" Liber Eliensis, ii. 24, ed. Blake, 97-8. *? See above, 68. °° Ramsey Chronicle, 49, ed. Macray, 79-80; see above, 78.

80 PART I: LATE ANGLO-SAXON ENGLAND Both the laws and accounts of cases show the importance of witnessing as a method of proof in disputes concerning movable possessions and land.* The parties might bring the witnesses.** Alternatively, the person or persons presiding over the court might look for witnesses either present in the court itself or subsequently brought in from outside.** The witnesses might be those before whom a sale or grant had originally been made.” Even when swearing is not specifically mentioned, it is likely that testimony was supported by an oath: ‘by the name of Almighty God, as I stand here in true witness for N., unbidden and unbought, so with my eyes I observed and with my ears I heard that which I say with him’.** False witness was a considerable danger.

A law of Cnut states that ‘if anyone notoriously takes part in false testimony, and he is convicted, his testimony is afterwards to be worthless, but he is to compensate the king or the estate-lord with his healsfang’, that is the equivalent of the first portion of a wergeld.* Documents were used as proof in some land cases. When Bishop Godwine

succeeded to the see of Rochester he found documents [swutelunga] that supported a claim to the estate of Snodland. It seems that when the dispute came to court the documents sufliced to prove the bishops right, although his opponent was allowed to enjoy the land for life.°° Establishment of a prior judgment on the subject of the dispute may also have acted as proof in some circumstances: as Ealdorman Ordlaf stated in the Fonthill Letter, ‘if one wishes to change every judgment that King Alfred gave, when will we have finished disputing?’ In this

** See below, e.g. 131, 153-5; note also Af, Intro 28. See also Liber Eliensis, ii. 7, ed. Blake, 80, for a

husband and wife being convicted of a crime ‘by witness of the people: It is very hard to know how far the scarcity of evidence of the use of inquests, particularly in land cases, is simply a product of the limits of the sources; see Wormald, ‘Charters, law, and the settlement of disputes, 305. Warranty could be used by the accused to answer a claim rather by the accuser as a form of proof to establish his title; above, 76, below, 155-9.

°° See e.g. S 1029 (although the document is probably a post-Conquest forgery), 1454. °° See e.g. Liber Eliensis, ii. 34, ed. Blake, 109. °” E.g. Liber Eliensis, ii. 8, ed. Blake, 81. For the witnesses of a transaction later riding the bounds

of the estate during a dispute, see below, 142-3. For standing witnesses for cattle sales, see below, 153-5, and note also V As, 1.5. °° Swer, 8; cf. II Cn, 23, cited below, 158. See also III Atr, 2. Note V Atr, 32. 2 (Cambridge, Corpus Christi College, MS 201), listing amongst various abuses ‘that the testimony of witnesses was not allowed to be valid, although they were thoroughly trustworthy and were willing to swear to their statements.

°° II Cn, 37; see also VIII Atr, 27, on the priest who was a false witness or perjurer. On healsfang, see below, 179.

°° § 1456; see Wormald, ‘Charters, law, and the settlement of disputes, 298-300. S 884. For the close association of possession of a charter and possession of land, see above, 77, and below, 97. On writing and proof, note also S 1442; Liber Eliensis, ii. 96, ed. Blake, 166. It is probably the limited surviving evidence that prevents us from knowing of the use of charters as proof regarding rights other than land. °! $1445.

4 PROCEDURE 81 letter Ordlaf presented his own report of earlier proceedings. We do not know whether, in other instances, representatives of a court might be summoned to present their ‘record’ of an earlier hearing or decision.” Other forms of evidence might be decisive too. The Fonthill Letter recounts that Helmstan stole the untended oxen at Fonthill (whereby he was completely ruined) and drove them to Cricklade, and there he was discovered, and the man who tracked him rescued the traced cattle. When he fled, a bramble scratched him in the face, and when he wished to deny it, that was brought as evidence against him.”

It may well be that the surviving evidence under-represents cases ended by common knowledge or clear physical evidence, perhaps because they were less likely to be reopened but also because many of them were disputes not affecting the future tenure of land.

Oaths A further form of proof was the oath taken by one of the parties, normally supported by oath-helpers.®* Cnut’s laws state that a free man had to be in hundred and tithing if he desired to have the right of the oath of exculpation, and that ‘every trustworthy man, who has not been frequently accused, and has failed neither oath nor ordeal, is to be entitled to simple exculpation within his hundred.%* Cnut also laid down that there was to be one law regarding exculpation common to boroughs.®®

The process of swearing with oath-helpers is referred to as compurgation or wager of law. Oath-helpers may have sworn an oath such as: ‘by the Lord, the oath

that N. swore is clean and unperjured.” In criminal cases, the untrustworthy needed a larger number of oath-helpers, who might not be of his choosing but rather selected for him. The law of Cnut just quoted continues: “for an untrustworthy man one is to select a simple oath within three hundreds, and threefold oath from as far as belongs to the borough, or he is to go to ordeal’* It is not clear if there were changes over time in the use of compurgation.

Twelve oaths, including that of the party, appears to have been a common number but fewer or more might be specified for particular offences, cir-

** See below, 572.

°3 $1445,

°* For the possibility in certain circumstances of oaths without oath-helpers, note Wi, 20-1, 23; Duns, 8. 2; below, 323, on LHP, 64. 7, 67.2, ed. Downer, 206, 214.

°° II Cn, 20, 22. By implication, slaves could not take oaths. For clerics taking oaths, see esp. VIII Atr, 20-23, 27, I Cn, 5. 1-3, IT Cn, 41.1, 44.1. °° IT Cn, 34.

°” Swer, 6; again it is possible that this oath was sworn in support of an initial denial. °® IIT Cn, 22.1. Note also II Atr, 13, IT Cn, 65, Northu, 51-3.

82 PART I: LATE ANGLO-SAXON ENGLAND cumstances, or ranks.®° The short tenth-century text known as Be Blaserum (Concerning incendiaries’) lays down the threefold oath, ie. thirty-six swearers, for incendiaries and murderers.'°° Cnuts laws specify the threefold oath for a reeve accused of having granted permission to a man who coined false money.’ Walreaf, a single sentence text on corpse robbery, probably from AAthelred’s reign, states that if anyone wished to deny corpse robbery, the charge was to be refuted by an oath of forty-eight thegns [fulborenra begena], reflecting the seriousness

of the offence.’” In contrast, a law of Athelred stated that anyone accused by an official of having withheld toll was to swear with six others in support of his

denial.’ Particular reinforcement of an oath might also be needed because of the status of one of the parties involved: ‘if anyone accuses a king’s thegn of homicide, if he ventures to clear himself, he shall do so with twelve king’s thegns. If anyone accuses a man who is less powerful than a king’s thegn, he shall clear himself with eleven of his equals and one king’s thegn.’™ Alfred’s laws required that anyone wishing to clear himself of plotting against his king or his lord had to do so by an oath equal to that of the king’s or the lord’s wergeld, that is with a group of supporters whose total wergelds equalled that of the king or lord involved.’

Oaths were also used in land cases. A certain Goda refused to restore to Eadgifu, third wife of Edward the Elder, land that he had received as security for a loan of 30 pounds to her father. Her father repaid the money but went on to die in battle, having bequeathed the land to Eadgifu and given her the landboc. Goda then denied that the money had been repaid and withheld the estate. Six years later a certain Byrhtsige Dyring, possibly a relative of Eadgifu, made repeated protests concerning this, until the counsellors [witan] directed Eadgifu to clear her father by an oath equivalent to the sum involved. She thereupon produced the oath at Aylesford in the presence of the whole assembly, and there cleared her

»? Note IV As (Frag), 6. 2b; IT Cn, 48, 65. See also I Atr, 1. 2-3, ona lord seeking to prove that his man had not failed in oath or ordeal since an assembly at Bromdun (quoted below, 223); see also III Atr, 4, IT Cn, 30. 1. See also below for oaths calculated according to the amount of a relevant wergeld or another monetary sum. Cf. earlier evidence of calculation by the number of hides needed to make an oath; Ine, 14, 19, 46, 52-4, Af, 11. 4; on the number of hides each person swearing might represent, and on oaths generally, see H. M. Chadwick, Studies on Anglo-Saxon Institutions (Cambridge, 1905), 134-53. "°° Blas; on murder, see below, 166. ‘8! II Cn, 8. 2. "°* Wal. This text may be connected to III Atr; see Wormald, Making of English Law, 371-2. °° TV Atr, 3. Note also I Atr, 1.8, 1.12, IT Atr, 4, IT Cn, 44.1.

*°* AGu, 3; the provision probably applied only to suits on amounts greater than four mancuses. The mancus was equivalent to thirty silver pennies. "°° Af, 4.1-2. Cf. V Atr, 30, VI Atr, 37. For oaths calculated in relation to wergelds, see also II As, 1. 1, 2.2, 20. 8; Ad.

4 PROCEDURE 83 father with respect to the repayment by an oath of 30 pounds, probably, that is, by the oath of people whose wergelds totalled 30 pounds.'°° Women as well as men might swear in support of a party, certainly if the party was a woman.’” It may have been desirable but not necessary for the opposing party to accept

the oath as a method of proof. A certain Leofsunu, on the grounds of having married a previous holder's widow, seized land at Wouldham, Kent, although it had been bequeathed to the church of Rochester, in the presence of Archbishop Dunstan.”*® When the archbishop was informed of this, he proved his right to the whole of the bequest, before the shire court of Kent: And it was known in Sussex and in Wessex and in Middlesex and in Essex that the archbishop with his own oath had secured possession of the estates, which Leofsunu had usurped, on behalf of God and St Andrew [the patron of Rochester], with the charters on the cross of Christ. And Wulfsige the sheriff, as the king’s representative, accepted the oath when Leofsunu refused it. And there were in addition a good thousand men who gave the oath.

It is impossible to tell what proportion of disputes was decided by oath. It is plausible that the method was mainly used to decide cases to which there was no more obvious solution, or to bring a formal end to litigation.’” A man’s ability to assemble oath-helpers must have been related to his reputation and his powers of persuasion and coercion."° Perjury, according to the laws, was to be severely punished: If anyone swears a false oath and it becomes manifest that he has done so, he shall never again have the right to swear an oath; and he shall not be buried in consecrated burial ground when he dies, unless he has the testimony of the bishop in whose diocese he is, that he has made such amends as his confessor has prescribed to him.

In texts associated with Archbishop Wulfstan, perjurers were equated with murderers and other particularly serious wrongdoers."” Through his own or his potential supporters’ fear of perjury, a party might therefore fail to make the oath needed to win the case. A court decided that a priest named Leofsige could

*°° $1211; the account goes on that in order for her to gain possession, her friends had to persuade

King Edward to order Goda to restore the land, ‘if he wished to possess any land at all’. It is likely that the progress Eadgifu made at different stages of the dispute was closely connected to her relations with the current king. *°7 See S 1454, below, 91.

*°8 S$ 1458; the land had a complicated earlier history. *°? Note also Wormald, ‘Charters, law, and the settlement of disputes’, 294. *t° See also above, 71, on malicious accusations. ‘'' IT As, 26. See also e.g. I Em, 6. Note below, 91, on the setting aside of an oath in S 1454. "See VI Atr, 36, Cnut 1020, 15, II Cn, 6, EGu, 11.

84 PART I: LATE ANGLO-SAXON ENGLAND clear himself by swearing. He could not do this, nor have the people who should swear with him, so it was decided that he should be expelled from the land, and his opponent, Ealdorman Byrhtnoth, enjoy it.’’ Given the disparity of the power of the parties in the dispute, and the ealdorman’s likely influence over the court, it is unclear whether it was any perceived weakness in Leofsige’s case or other factors that made men unwilling to swear on his behalf. As the specification for the burial in unconsecrated grounds shows, there were eternal as well as earthly penalties for perjurers. The religious aspects of oaths are revealed in other ways too. Texts associated with Wulfstan specified that no oaths or ordeals should be held on feast days or appointed fast days."* God or saint might intervene in the context of oaths. According to the Life of St Kenelm, in the time of Cnut a certain Osgot strove to add to his possession at Toddington a portion of land adjacent to an estate in Naunton, which belonged to the abbey of St Kenelm, Winchcombe.”* At what was probably a shire court, Abbot Godwine of Winchcombe brought relics of St Kenelm there in judgment. It was judged that Osgot, with twenty-four equally powerful men, should prove his right by swearing an oath over the holy body of Kenelm. When Osgot rushed to the abbot to swear the oath, he was suddenly repulsed by the manifest strength of God, retreated backwards and, as if overwhelmed by a massive blow, tumbled over onto his back. Then all that gathering prostrated themselves on the ground before the holy bier, begged forgiveness, and without hesitation adjudged to the saint his portion of land. The opponent, meanwhile, as if out of his mind, was taken home, and did not long survive, and he who attempted unjustly to take away one little possession of the saint rightly lost all that he possessed, along with his life."°

Ordeal Divine judgment was also present in trial by ordeal. The most common ordeals appear to have been by cold water or hot iron; there is no evidence for trial by battle in Anglo-Saxon England.” Early English evidence concerning ordeal is very

'!* Liber Eliensis, ii. 33, ed. Blake, 108. ™ See ‘Canons of Edgar’, 24, Councils and Synods, I, no. 48; EGu, 9; V Atr, 18; VI Atr, 25; I Cn, 17.

‘'° Vita et miracula sancti Kenelmi, 17, in Three Eleventh-Century Anglo-Latin Saints’ Lives, ed. R. Love (Oxford, 1996), 72-4. The Life dates from 1066 x 1075; Three Eleventh-Century Lives, xci.

‘'® For miraculous interventions in the context of oaths, see also e.g. Vita et miracula sancti Kenelmi, 19, in Three Eleventh-Century Lives, 74, Thomas of Marlborough, Evesham, ii. 69, ed. Sayers and Watkiss, 80-2.

"'” For ordeal by bread and cheese, see Iud. Dei III, Iud. Dei XIV; S. L. Keefer, ‘Ut in omnibus honorificetur Deus: the corsned ordeal in Anglo-Saxon England’, in The Community, the Family

4 PROCEDURE 85 tentative, resting on a textual emendation to a single passage in Ines laws. However, it seems plausible that the only ordeal known in England before Alfred's time was trial by cauldron. The accused plucked an object from a cauldron of boiling water,

his hand was then bound up and examined three days later; if the wound was clean, he was innocent, if foul, guilty."* Evidence for ordeal only becomes more plentiful in the tenth century. A law of Edward the Elder specifies that proven perjurers were never again to be oath-worthy, but only ordeal-worthy. It is, therefore,

possible that Alfred or his son introduced such use of ordeal to counter a major problem in a system resting on oaths."° Appeal to God in judgment might also be regarded as fitting well with Alfred’s views on rule and justice.”° The need for ordeal procedure to be spelt out at some length in Athelstan’s laws may reinforce the argument that the process was then quite new.” In what courts were ordeals held?” A law of Athelred states that every ordeal was to take place in the king's burh. The meaning of this word is not certain, and it could indicate a royal estate or dwelling as well as a larger fortified place.” It is unclear whether ordeals could be carried out in hundred courts. Ordeal should take place at a church, probably an important church, and in the presence of a priest.4 In the case of ordeal by cold water a deep pit was required. This might not be available at a remote meeting-place of a hundred.’* It may therefore be that ordeals were limited to courts of groups of hundreds or the shire, and to the precursors of these courts. This is congruous with the evidence of the rituals that ordeal was used for serious offences, notably theft, homicide, adultery, and witchcraft. However, the regulations also raise the possibility of ordeals having been used more widely, to the displeasure of the authorities.

and the Saint: Patterns of Power in Early Medieval Europe, ed. J. Hilland M. Swan (Turnhout, 1998), 237-64. Note also the guilt of accused priests being assessed through their having to say mass and clear themselves by the eucharist; below, 220.

*® See R. J. Bartlett, Trial by Fire and Water: the Medieval Judicial Ordeal (Oxford, 1986), 4-9; Wormald, Making of English Law, 172. Pre-Charlemagne Frankish evidence concerns trial by cauldron; Bartlett, Trial by Fire and Water, 4-5. On ordeal, see also P. R. Hyams, “Trial by ordeal: the key to proof in the early common law, in On the Laws and Customs of England: Essays in Honor of S. E. Thorne, ed. M.S. Arnold et al. (Chapel Hill, NC, 1981), 90-126. ‘See esp. Campbell, ‘Placing Alfred} 17-18; Campbell suggests that guidance for the new procedure most probably needed the issue of something like a capitulary. **° See above, 17-24. "2" See esp. IT As, 23, quoted below, 86.

'** The type of court that dealt with the case of Flodoald’s servant is not specified.

"*° TIT Atr, 6. 1; Quadripartitus translates ‘on bes kyninges byrig’ as ‘in curia regis’. On the meanings of burh, note also the comments in The Defence of Wessex, ed. D. Hill and A. R. Rumble (Manchester, 1996), 3. '** See also below, 325-7.

°° Tait, Medieval English Borough, 37-8; Reynolds, Deviant Burial Customs, 21-3.

86 PART I: LATE ANGLO-SAXON ENGLAND We know more about ordeal than about oath-swearing rituals.’ A law of /Ethelstan lays down that if anyone engages to undergo an ordeal, he is to come three days before to the mass-priest who is to consecrate it, and is to feed himself on bread and water and salt and herbs before he proceeds thither, and he is to attend mass on each of the three days. And on the day he has to go to the ordeal, he is to make an offering and attend communion; and then before he goes to the ordeal, he shall swear an oath that according to folcriht he is innocent of the accusation. And if the ordeal is by water he is to sink to a depth of one and a half ells on the rope; if it is iron, let there be three nights before the hand is undone.’””

A possibly related text gives further details: We enjoin by command of God, and of the archbishop, and of all the bishops: that no man come within the church after the fire with which the ordeal [iron] is to be heated has been brought in, except the mass-priest and him who is to go to judgment. And let nine feet be measured from the stake to the mark, by the feet of him who is to be tried.... And when the ordeal instrument is ready, let two men from each side go in and certify that it is as hot as we have directed it to be. And let an equal number from each side enter and stand along the church on both sides of the ordeal, and let them all be fasting and abstinent from their wives on the preceding night. And let the mass-priest sprinkle holy water over them all and let them each bow to the holy water, and let the Gospel and Christ's cross be given them all to kiss. And no-one shall make up the fire any longer after the consecration has begun, but let the iron lie on the coals until the last Collect. Afterwards let it be placed on a frame, and let no-one speak except to pray diligently to Almighty God, that he manifest the truth.’* And so let him go to the ordeal. Then let his hand be sealed up, and on the third day let examination be made whether it is foul or clean within the wrapper.’

As with oaths, some accused persons might be subject to a tougher, threefold ordeal, in which the ordeal iron would weigh not the usual one but rather three pounds.”° This was used in relation to particularly serious crimes, such as plotting

**° See the ordeal rituals in Gesetze, i. 401-429. These have close resemblances to Carolingian rituals, and Wormald (unpublished typescript) suggested that Grimbald of St Bertin may have brought such rituals to Alfred’s court from Rheims. '?7 IT As, 23. Anellis 45 inches. "*S The version in Quadripartitus here contains an extra clause: the accused was to drink blessed water, and his hand that would bear the ordeal was to be sprinkled with it. Then he was to go to ordeal. Nine feet were to be measured, in three groups of three. Each marked one of the three steps he was to take. Having completed the three paces, he cast down the iron and rushed to the altar. **° Ordal, 1-5. 2; on Ordal, see Wormald, Making of English Law, 373-4. "°° See e.g. Hu, 9; Iud. Dei IT, 1.

4 PROCEDURE 87 against ones lord or committing an under-hand form of killing.” It was also used for men of ill-repute.’* Although God could have given judgment whatever the weight of iron, it was clearly considered that such men deserved the more daunting, difficult, and painful test. Trial by ordeal appears not to have been employed for land cases before 1066,

but rather for the more serious of the offences against the person or against movables. The laws, for example, mention ordeal in cases of theft and of false coining.’* A slave might undergo trial by ordeal, perhaps because unlike a free man he did not enjoy the right of exculpation by oath.*4 Ordeal, as already suggested, was also particularly used against those who had already shown themselves untrustworthy.” As with oaths, it is likely that ordeal was used primarily in cases that were difficult to decide in any other way."° There might be no alternative form of proof, or at least one party might be particularly resistant to any other form of settlement or judgment, as in the case of Flodoald’s servant.” The lengthy rituals may well

have caused some of those facing imminent ordeal to confess or to come to a compromise settlement.** The completed ordeal might bring a difficult case to a spectacular end, focused on God's decision, and thereby ensuring that the dispute was ended. However, such an outcome was not assured, as the ordeal need not produce a generally accepted result.”

7 FINAL JUDGMENT Whether the proof was by ordeal, oath, witnesses, or another method, the final

judgment was to be agreed by the suitors of the court, and in particular its leading members, often referred to as the thegns. A possibly eleventh-century text purporting to be a charter of 938 records a case of theft. The thieves’ lands ** See IT As, 4; IT Cn, 57; Blas, 1. *** See I Atr, 1.1, 1. 4; HI Atr, 3. 4; II Cn, 30.

"°° IT As, 14. 1, IV As, 6. However, see below, 325-6, on Domesday references to English parties offering ordeal in land disputes. "4 TT As, 19.

"°° See above, 81; also IT As, 7, VI As, 1. 4.

"°° See also below, 749. "°7 See above, 68-9. "8 See IT As, 21, for settlement in the context of an ordeal.

"°° See ‘Canons of Edgar’, 63, Councils and Synods, I, i. no. 48, stating that a priest should never validate a disputed ordeal by his oath. Evidence for acceptance or scepticism concerning ordeal in general is completely lacking for the Anglo-Saxon period; the matter is discussed below, 326-7, 749. Cf. the awareness that ordeal procedure might be subject to human manipulation; above, 69.

88 PART I: LATE ANGLO-SAXON ENGLAND were taken from them ‘by the just judgment of all the people and of the senior and leading men."*° At least within the Danelaw, judgments might be made by groups of ‘doomsmen, that is judgment men or lawmen. Domesday Book mentions lawmen in Cambridge,

Lincoln, and Stamford.’” Regarding Chester, which was not in the Danelaw but had undergone definite Scandinavian influence, it records that ‘there were twelve judges [judices] in the city. They were from the men of the king, the bishop, and the earl. If any of them without a clear excuse stayed away from the hundred on the day on which it sat, he paid a fine of 10s., divided between the king and the earl." The Libellus 4thelwoldi mentions Ealdorman Athelwine holding a great plea at Cambridge, the court consisting of ‘citizens and hundred-men in the presence of twenty-four judges.'* How far the existence of such groups shows significant borrowing of Scandinavian practice is uncertain. It could be that what we have is a Scandinavian-influenced name for groups of leading men in the borough, groups that may also have existed elsewhere in the realm.** Nevertheless, the evidence for such duodecimal groups of lawmen is concentrated in areas of Danish influence, outside the area that had been ruled by Alfred.’

Despite such emphasis on collective or group judgments, other evidence presents judgments being given by kings, great men, or officials, that is by those presiding over the court.*° This seems to amount to more than a declaration of the result of an ordeal or oath, or of the judgment found by the suitors, or of a compromise settlement, for the declaring of a false judgment might be seen as a wrong committed by the great man or official. Furthermore, even when not presented as the person deciding the case, the person or persons presiding could have very considerable influence over judgment. They controlled proceedings and could bring pressure on the parties and the suitors. On occasion they presented themselves as deciding what was proper practice, at least with regard to procedure, and such interventions might decide the outcome of disputes. In the case between Alfnoth son of Goding and the abbey of Ramsey in the 990s, the parties and the court agreed that Prior Eadnoth of Ramsey should prove by an

49 § 443. ‘DB, i. fos 189r, 336r, 336v. Note also III Atr, 13. 2. ‘* DB, i. fo. 262v; the hundred is that of Chester itself. Note also the mention of judices in York; DB, i. fo. 298r.

‘*S Liber Eliensis, ii. 24, ed. Blake, 97. Note also the twenty-four judices mentioned in Liber Eliensis, ii. 11, ed. Blake, 88. “** Note Duns, 3. 2.

> Wormald, ‘Charters, law, and the settlement of disputes’, 305, argues for the connection to areas of Danish influence. Cf. Kennedy, ‘Law and litigation’, 158-60. "4° See above, ch. 3, and 69 on Flodoald’s case; I Ew, Prol, IT Eg, 3, Cn 1020, 11, IT Cn, 15.1.

4 PROCEDURE 89 oath his account of how the lands had come to the church.” However, Ealdorman /Ethelwine, who was presiding over the court, as well as being the brother of the donor of the land to Ramsey, intervened. He said that men of monastic profession ought not to present an oath in the presence of the secular power [coram potestate seculari]. He put himself forward as advocate of Ramsey and protector of the possession, saying that it pertained to him to present an oath. The court recognised his constancy and good faith, and out of reverence for him and the truth waived the need of the oath. 4lfnoth, on account of his false claim and vexation of the monks, was adjudged in the king’s mercy for his lands and chattels, that is his lands and chattels were forfeit to the king unless the king chose to relent. Some judgments are presented in the texts as being based on a process of reasoning involving norms, although it must remain uncertain whether this was the reasoning of the court or of the composer of the text. The types of norm invoked are those that

we have already seen in arguments in court and in mesne judgments. The Libellus fEthelwoldi records a judgment given against a certain Uvi in a claim that he had brought against Ely regarding land that his kinsman Ogga had given the church ‘in front of all, free of all claims. Ely enjoyed it for many years while Ogga was alive, but

following Oggas death Uvi claimed the land. His claim was rejected on one occasion on the grounds that he had never claimed it while Ogga was alive, on a second because Ogga had lawfully bought the land from Uvi and held it without claim while he lived."* It could be that such judgments were in fact made for other reasons, the norms being used as a retrospective justification.“°? However, this seems to be to understate the influence of norms. That the norms appearing in the Libellus are the same as or similar to those mentioned elsewhere is in itself significant. Norms may not have decided by any means every case—political conflict or complexities of issue may have been amongst the factors preventing this—but their presence in accounts of court arguments, mesne judgments, and final judgments does suggest that they had at least persuasive and at times decisive force.’ The judgment following proof might take various forms. Land or movables might be taken from the defeated party, restored to the successful claimant.’ A

“7 Ramsey Chronicle, 49, ed. Macray, 79-80; on this case, see also above, 78. The text is from the twelfth-century history of Ramsey, and it is hard to tell how far twelfth-century ideas have entered the substance and language, notably the reference to monks not swearing in the presence of ‘the secular power. See below, 219 n. 140, on priests and oaths. See also e.g. $ 1454. “8 Liber Eliensis, ii. 18, ed. Blake, 93-4. “* Kennedy, ‘Law and litigation’, 179-83.

°° Note also the reasoning in the Bluntisham case, above, 68; the reference to following the domboc, above, 27; S 1460; Liber Eliensis, ii. 34, ed. Blake, 109.

*°? For procedure in carrying out judgment concerning land, including the role of the royal reeve and the surrender of charters, see S 1457.

90 PART I: LATE ANGLO-SAXON ENGLAND punishment, forfeiture, fine, or compensation might be ordered, and possibly in addition a spiritual penalty or a penance.” Some laws give guidance as to ideals in these matters, although their statements may also be taken as indications of contrary practice. Particularly informative is one of the texts in King /Ethelred’s name, but bearing all the marks of Archbishop Wulfstan: Every deed shall be carefully distinguished and judgment meted out in proportion to the offence, as shall be justifiable in the sight of God and acceptable in the sight of men.

The mightier a man in the present world or the higher the status of his rank, the more fully shall he make amends for his sins and the more dearly pay for every misdeed; for the strong and the weak are not alike nor can they bear a like burden, any more than the sick can be treated like the sound. And therefore, in measuring judgment, careful discrimination must be made between old and young, wealthy and poor, healthy and sick, and every status, both in spiritual penalties and in worldly

punishments."

Often judgments included an element of compromise, and indeed compromise settlements, whether made in or out of court, by judgment or by mutual agreement of the parties, were frequent. A preference for compromise, for ‘love, is indicated by a law of AEthelred: ‘where a thegn has two choices, love [lufe] or law [lage], and he chooses love, that is to remain as binding as a judgment [dom]. If the compromise came about in court, on some occasions a mesne judgment had been made, but the proof then waived.’* On others, final judgment was followed by mitigation.*° Ealdorman AAthelwine, as Ramsey's protector, gave 80 mancuses of gold to a man who was making an inheritance claim to a piece of Ramsey’s land,

in return for the claim being dropped.’” A party who had to surrender a claim might be allowed a life-tenure of the disputed property.’*®

Compromise aimed to leave all parties with something, in the hope of preventing further dispute. Avoiding final proof might also ensure that neither party lost honour and legal standing. Thus in a dispute at the end of the tenth

*°? See below, ch. 7.

"°° VI Atr, 10. 2, 52, noting the contradictory ideals of punishment fitting the offence or punishment fitting the offender; see also VI Atr, 52. 1 (distinguishing between voluntary and involuntary actions), 53. 4 TIT Atr, 13. 3. "°° See e.g. $1454. "°° See e.g. Liber Eliensis, ii. 11, ed. Blake, 90-1. *°7 Ramsey Chronicle, 25, ed. Macray, 49-50. The generosity of the settlement hints that the man’s claim had some justification. For another claim being given up in return for money, see S 1408. Note also Liber Eliensis, ii. 10, ed. Blake, 83; Ramsey Chronicle, 47, ed. Macray, 76-8. 8 See e.g. S 1242, 1441.

4 PROCEDURE 91 century between a certain Wynflzd and Leofwine over lands in Berkshire, the shire court decided that Wynfleed might prove her ownership with the help of Elfthryth the king’s mother, other named supporters, and many good thegns and good women, all of whom we cannot enumerate, so that

the full number were produced, both in men and in women. Then the wise men [witan] who were there declared that it would be better for the oath to be dispensed with rather than sworn, because there would be no friendship afterwards; and he [Leofwine] would be asked to return what he had seized [bes reaflaces] and pay compensation and his wer to the king.’

The case was recorded in a chirograph, a single sheet of parchment with the text written out more than once, and then cut to produce copies for the various parties.

8 ENFORCEMENT Compromise was in part intended to ensure that a settlement remained secure.

Other methods of achieving such security included the use of witnesses, guarantors, pledges, and oaths.’®° King Alfred’s will concluded its account of a dispute over his father’s bequest with the statement that the members of the assembly ‘all gave me their surety [wedd] and their witness sign [handsetene] that no man, for as long as they lived, would ever change it in any way other than as I declare it myself at my last day’..’" Sometimes the oath seems to have

been taken by the defeated party on his or her own.’ On other occasions a group swore.’ Very occasionally there is a hint of the form of the oath. Thus, probably in 1023, it was agreed that, in return for a certain Wulfstan giving up disputed land, Leofric should give Wulfstan and his son one pound and take an oath, along with two thegns, that he would have been satisfied with this if the case had turned out for him as it had for Wulfstan.’* It is possible that oaths °° § 1454; see Wormald, Making of English Law, 151-3. It should be noted that this is in a sense a compromise between the parties, but not between Leofwine and the king, in view of the amount Leofwine was obliged to pay. The account leaves the final outcome of the settlement rather unclear. "°° See e.g. $1442, Liber Eliensis, ii. 7, ed. Blake, 80.

"8! § 1507. It is unclear whether handsetene here indicates that a document recorded the decision; see Alfred the Great: Asser’s Life of Alfred and other Contemporary Sources, trans. S. D Keynes and M. Lapidge (Harmondsworth, 1983), 316. "°* See e.g. Liber Eliensis, ii. 32, ed. Blake, 107. "°° See e.g. $1211.

*°* § 1460. Such a formula is reminiscent of oaths taken in certain settlements in Icelandic saga literature.

92 PART I: LATE ANGLO-SAXON ENGLAND were so frequently used to reinforce settlements that they often were omitted from accounts.'® Further methods of ensuring that disputes did not reopen included the riding of the boundaries of the land after the judgment had been made.’® Spiritual penalties

might be laid against those infringing the judgment or agreement.’” Disputed lands might be given to the Church.’ And the settlement might be recorded in writing. This could be in the form of a chirograph, with each party taking a copy, and a further copy or copies sometimes being taken to a safe and perhaps holy place.'*? Another possibility was for the outcome to be written into a Gospel book, as in a dispute heard in the court of Herefordshire in Cnut’s reign.’”° Despite all these methods, disputes did reopen.”’ The renewed dispute might require a further assertion of authority from an outside authority, for example the king. He might issue a writ, ordering that the judgment of the court be upheld.”

A threat of forfeiture might be used, as when Edward the Elder declared that a man must restore a disputed estate ‘if he wished to hold anything at all’.” However, even further royal action was not always effective, as when Asgar the Staller, “fearing neither God nor man’, ignored Edward the Confessor’s orders to restore Pleshey to the abbey of Ely.” Once more, the interplay of law, court proceedings, and other aspects of disputing is clear.”

“°° See Wormald, ‘Charters, law and the settlement of disputes’, 295, cf. Kennedy, “Law and litigation, 172.

"°° See S 1441 (note the reading out of the boundaries from a charter), Liber Eliensis, ii. 24, ed. Blake, 97-8; also below, 143. "7 See e.g. $1211.

*8® See S 1211, 1445 (the Fonthill Letter; an exchange that, to modern eyes, may appear to be an example of land-laundering). "8° See K. A. Lowe, ‘Lay literacy in Anglo-Saxon England and the development of the chirograph’,

in Anglo-Saxon Manuscripts and their Heritage, ed. P. Pulsiano and E. M. Treharne (Aldershot, 1998), 161-204.

7° $1462. 7" See e.g. Ramsey Chronicle, 49, ed. Macray, 80. Note also e.g. the concern about the reopening of disputes expressed in the Fonthill Letter; above, 20. ‘”? See e.g. S 1090. The writ of Edward the Confessor mentioned in DB, i. fo. 78v, may be another example, although it does not mention an earlier judgment. *7° $1211, above, 83 n. 106.

'’* Liber Eliensis, ii. 96, ed. Blake, 165. Note also the ignoring of royal authority in S 877. *7° See above, ch. 1.

Land

p {HROUGHOUT the period covered by this book, control of land underlay the exercise of royal and aristocratic power. The extent of that control was related to the degree of security of possession of the land enjoyed, its heritability, and its alienability. However, the sources from which one can uncover the norms of Anglo-Saxon landholding are both limited and problematic. There is little of relevance in the written laws. The Latin diplomas are in general formulaic in their dispositive sections, although those of A:thelred II’s reign include some significant accounts of cases. Other documents, notably wills and leases, are more informative, but surviving leases are largely the product of a few grantors. Moreover, a large number of documents are lost. The place name Buckland derives from the Old English bocland, bookland, but for only a very small pro-

portion of Bucklands does a charter, a boc, survive. Assuming that there was once a charter relevant to any bookland, this indicates considerable loss.’ It is therefore difficult to tell whether a particular piece of land was bookland, and whether transactions involving it illustrate law only relating to bookland. We also lack materials to produce accurate estate histories that might indicate landholding practices. Domesday Book does provide a large amount of information with reference to pre-Conquest landholding. However, it often uses terminology that is rare or non-existent in pre-Conquest documents, for example alodium, allod. It is hard to interpret the precise meaning of these terms.” In addition, it

* See A. R. Rumble, ‘Old English Boc-land as an Anglo-Saxon estate-name’ (1987) NS 18 Leeds Studies in English 219-29, at 220: of the twenty-nine places for which Domesday Book or earlier documentation gives evidence for Buckland as place-name, there are charters only for four. Note also that the will of Ealdorman Alfred, dating from 871 x 889, mentions bookland in seven places, for none of which is there an earlier surviving charter; S 1508. For questioning of the assumption that all bocland required mention in a charter, see below, 95. * On alodium, see Maitland, Domesday Book and Beyond, 153-4; P. Vinogradoff, English Society in the Eleventh Century (Oxford, 1908), 236-8; C. Stephenson, ‘Commendation and related problems in Domesday’ (1944) 59 EHR 289-310, at 295-6; G. S. Garnett, Conquered England (Oxford, 2007), 28 and n. 212.

94 PART I: LATE ANGLO-SAXON ENGLAND is possible that Domesday, both through the assumptions of the commissioners and the process of the Book’s composition, misinterprets or distorts Anglo-Saxon practices. Whilst attempts will be made to identify chronological change and regional variation, the limits of the evidence almost certainly produce an excessively generalised and schematised picture? It remains very hard, for example, to answer questions such as ‘what was the impact on land law of the conquest of the rest of England by the kings of Wessex?’ The length of the discussion that follows must not lead us to forget the extent of our ignorance.

1 TYPES OF LAND Historians of the Anglo-Saxon period have often divided land into three types—

bookland, loanland, and folkland. The following analysis is organised partly around this categorisation, but also considers whether these categories of landholding were mutually exclusive, whether they exhaust the forms of landholding, and whether their use changed over time.‘

Bookland

Bookland was the product of royal grant, and royal bocs, that is charters, survive from the seventh century onwards. The word bocland first appears in ninth-century evidence.° It could be used to refer to physical pieces of land or to a category of land, As far as can be told, at first bookland was granted only to religious houses, although Bede’s Letter to Egbert (734) shows laymen setting up dubious monasteries and thereby benefiting from the advantages of bookland. From the late eighth century, bookland grants were also made to laymen.

* The situation in towns may also have differed; see below, ch. 30. * See also S. M. G. Reynolds, Fiefs and Vassals (Oxford, 1994), 325.

> For the early history of bookland, see C. P. Wormald, “Bede and the conversion of England’, in his The Times of Bede (Oxford, 2006), 135-66; ‘On ba wepnedhealfe: kingship and royal property from A&thelwulf to Edward the Elder’, in Edward the Elder, ed. N. J. Higham and D. H. Hill (London, 2001), 264-79, at 265; John, Land Tenure; T. M. Charles-Edwards, ‘Anglo-Saxon kinship revisited’, in The Anglo-Saxons from the Migration Period to the Eighth Century ed. J. Hines (Woodbridge, 1997), 171-204, at 195.

° See S 1622, a problematic text of the 830s; S 1508, a will of 871 x 889. For comparative purposes, note K. Leyser, “The crisis of medieval Germany’, in his Communications and Power in Medieval Europe: The Gregorian Revolution and Beyond, ed. T. Reuter (London, 1994), 21-49, at 37-41. ” See e.g. S 1507, 1508, the late ninth-century wills of King Alfred and Ealdorman Alfred.

5 LAND 95 Clearly the notion of bookland was closely connected to the boc. It is possible that bookland by the late Anglo-Saxon period was associated with personal status, particularly that of thegns,® and that the essential association with the boc was no longer necessary but only habitual and perhaps diminishing,’ A specific term could develop a more general meaning, distanced from its root.’? However, association of bookland with a particular status, especially thegnly status, is not clear. For example, Domesday suggests that free disposition of land, perhaps a sign of bookland, was enjoyed by a large number of men below the rank of thegn.” Analternative possibility is that the amount of land actually covered by charters was greater than such arguments suppose. The possibility of a large number of lost charters for the laity has already been mentioned. Surviving documents suggest that in the tenth and eleventh centuries there were increasing numbers of royal

confirmations for churches covering a number of estates rather than just one specific piece of land.” If such estates had not been bookland before, the charters ensured that they now were, thereby expanding the amount of bookland.

What exactly did a gift of bookland transfer? Concentrating largely on the earlier Anglo-Saxon period, Maitland argued that the grant was of superiority, that is fiscal and judicial rights, rather than ownership. Particularly notable was the perpetual diversion of renders normally paid to the king, the king’s feorm, to the grantee and those to whom the land passed.* Others have argued that the transfer was of ownership of royal land. This would explain the bookland holder’s right to manumit slaves, a key element of the work-force of the inland, that is the directly exploited area of the estate. Whereas taking the feorm did not affect the lasting value of the estate, the manumission of slaves certainly did so, and therefore might be seen as an exercise of ownership.’ A solution to this controversy may be to consider ownership as a bundle of rights that can be

° T Atr,1.14, III Atr, 11, Rect, 1, might be used to support this argument.

> See G. J. Turner, ‘Bookland and folkland} in Historical Essays in Honour of James Tait, ed. J. G. Edwards et al. (Manchester, 1933), 357-86, at 374, 385-6; also Reynolds, Fiefs and Vassals, 333-5.

One of our best sources for tenth-century landholding, the account of Athelwold’s acquisitions for his monastery of Ely in the Libellus Zthelwoldi, does not use a Latin equivalent for the term bookland, nor does it distinguish landholding practices peculiar to bookland. Note, however, e.g. the transfer of a document and the reference to the advantage of possessing documentary proof at Liber Eliensis, ii. 25, ed. Blake, 98-9. *° See below, 129, on cwide coming to mean a written will, despite its root meaning as oral speech. ‘' Note below, 118. *? Seee.g.S 911.

** Maitland, Domesday Book and Beyond, 231-42. See also John, Land Tenure, esp. 29, 38; R. J. Faith, The English Peasantry and the Growth of Lordship (London, 1997), 104.

* Note e.g. T. H. Aston, “The origins of the manor in England’ (1958) 5th Ser. 8 TRHS 59-83, at 63-5; Chadwick, Studies, 372-4. On manumission, see also John, Land Tenure, 14-17.

96 PART I: LATE ANGLO-SAXON ENGLAND distributed in various ways amongst various holders.” By a grant of bookland the king conveyed what rights were his and these might vary by individual grant and perhaps more generally by period. A later Anglo-Saxon grant of bookland might convey a much wider range of rights in a more manorialised economy than had an earlier conveyance. Lesser men might retain rights within the area of bookland granted, but have to accept the new owner of the land. A letter from /Elfthryth, probably the second wife of King Edgar and mother of Athelred II, to Archbishop Alfric of Canterbury and Ealdorman Athelweard of western Wessex in c. 1000, states that I inform you both that I bear witness that Archbishop Dunstan assigned Taunton to Bishop thelwold, just as the bishop's charters say. And King Edgar then relinquished it, and instructed all his thegns who had any land in that estate that they should hold it in conformity with the bishop’s wish, or else give it up.

It appears that, in the circumstances of Church reform in the latter part of the tenth century, even thegnly tenants on a very large estate such as Taunton might not be secure in their holding unless they were willing to accept the authority of the reformers over their lands.” If one takes the ‘booking’ of land to involve the transfer of the rights that the king currently held therein, it is notable that land could be granted to an individual by one king, then booked to that individual by another, as in the following midtenth-century account of a grant to a layman named /lfstan: 7Elfstan, Heahstan's son, bought it from the king [Edmund, 940-6] for 120 mancuses of gold and 30 pounds [of silver], and nearly all that sum was given him by his son Alfheah. After

King Edmund, King Eadred booked it to 4lfstan in perpetual inheritance:” In other cases, a royal charter that appears to make a gift seems in fact to confirm a non-royal gift.’* The booking of the land added to the conveyance at the very least written evidence, but probably also an emphasis on permanence, and possibly additional privileges. Thus a gift recorded in a charter in some instances may have conveyed a wide variety of rights over land, a sufficient proportion of the bundle of rights to allow us to talk of a transfer of ownership; in others, the booking is better seen as a grant of privileges. *? See e.g. A. M. Honoré, ‘Ownership’, in Oxford Essays in Jurisprudence, ed. A. G. Guest (Oxford, 1961), 107-47; A. Reeve, Property (London, 1986). *® $1242, discussed by John, Land Tenure, 135-6. See also S 806. On Church reform, see above, 18.

‘7 § 1458. See also e.g. L. Abrams, Anglo-Saxon Glastonbury: Church and Endowment (Woodbridge, 1996), 322, on S 626, a grant by King Eadwig to Glastonbury; Abrams suggests that the charter may well have been granted to free from all secular obligations an estate that the abbey already had on different terms. Note further Abrams, Glastonbury, 322-3, on Athelwulf’s “decimation charters. "® See e.g. S 1460. See also Abrams, Glastonbury, 324-5; below, 143-7, on ecclesiastical lands.

5 LAND 97 What characteristics made bookland desirable? Not only the limits of the sources concerning bookland, but our lack of information about other forms of landholding make this a difficult question to answer. Rights characteristic of bookland need not be peculiar to it. Thus bookland owed military service, but so too did other land. Such shared characteristics were probably the more numerous.”’ Nevertheless, the following desirable aspects of bookland can be identified.

First is the evidential value of the document itself. Anglo-Saxon diplomas, that is solemn charters, were large, impressive documents, and many contained emphatic religious language.”° At the same time, they were of clear practical value in court cases. Sometimes possession of written evidence would decide a case; on

other occasions it at least put the possessor ‘closer to the oath’ to prove their right.** Churches were careful to preserve charters, and there is some evidence for similar care and interest among the laity.” Disputes reveal the problems that arose when charter and land were separated, and documents might be stolen to establish title to land.” The second desirable feature was that land that was ‘booked’, that is granted by charter, was routinely stated to owe only the trinoda necessitas, that is military service, fortress work, and bridge work, indicating that it was less burdened than

at least some other lands. Third, charters emphasised that bookland was held perpetually or heritably, and commonly that it could be freely alienated by the grantee.**

It is also clear that bookland was closely associated with the king. The king had a particular interest in, if not a monopoly of, jurisdiction over bookland disputes.” Alienation of bookland at least sometimes involved the king’s consent or confirmation.”® Penalties for serious offences, too, reveal the connection between king and

*? See also S. Baxter and J. Blair, ‘Land tenure and royal patronage in the early English kingdom: a model and a case study’ (2006) 28 ANS 19-46, at 21. Baxter, Earls of Mercia, 238-40, provides a convincing critique of suggestions that ‘sake and soke’ was synonymous with bookland tenure.

*® For a large example, see e.g. S 884, Aithelred II for Muchelney abbey, which is 370mm. by 480mm. See further Facsimiles of Anglo-Saxon Charters, ed. S. D. Keynes (Supplementary volume 1 Anglo-Saxon Charters, Oxford, 1991). *1 See above, 68. On documents as proof, see also above, 79. Note, however, the statement attributed to Archbishop Lyfing in a writ of Cnut, S 985: ‘he told me that he had charters of freedom in plenty, if only they were good for anything’. *? See Abrams, Glastonbury, 332-3. Note also Liber Eliensis, ii. 27, ed. Blake, 101: when in the late tenth century the monks of Ely were seeking to obtain from 4lfwold, brother of Eadric the long, chirographs that they wanted, they offered him a different chirograph that he had greatly needed. *° See S 1447, for the separation of land and charter; S 1457 for the theft of charters. See also S 1242. ** See below, 136-7. *° See above, 50; also below, 104, on I Ew, 2. *° See below, 137.

98 PART I: LATE ANGLO-SAXON ENGLAND bookland. Cnut’s laws specify that if a man committed a deed of outlawry, and he had bookland, it was forfeited to the king no matter whose man the offender was, and, likewise, if a man deserted his lord, any bookland he possessed passed to the king.” Control of bookland was thus an important element in royal power.

Loanland If permanence was one purpose of the creation of bookland, restricting the duration of alienation was an important aim of the leasing, or ‘loaning’, of land. When the Old English version of the St Augustine's Soliloquies wanted to illus-

trate the contrast between the limited nature of temporal life and the lasting nature of eternal life it used the analogy of the lease and bookland: Every man likes, when he has built up a hamlet [cotlyf] on his lord’s lease [lene] with his help, to stay there some time...and to work for himself on the lease both on sea and on land, until the time when he shall earn bookland and eternal inheritance through his lord’s kindness.”

Most of our Anglo-Saxon material concerns leases from religious houses, but Domesday Book shows that kings, reeves, and lay lords leased property.” It may be the ecclesiastical bias of our evidence that ensures that most surviving leases are from bookland, but there is no reason to believe that only bookland could be leased. Some leases use the verb bocian, ‘to grant by charter’, in describing the transaction they record.*° The surviving instances probably all concern bookland, but it may be doubted whether the verb in itself indicates particular characteristics in the terms of the lease.

Unrecorded negotiation must lie behind many leases. The income from leased

land may have been the interest or repayment for a monetary loan, the latter recorded in the lease as a lump sum: Here is stated...the agreement that was made between the community at Worcester and Fulder, namely that he should have the land at Luddington for three years in

*” II Cn, 13, 77. 1. Note also that I Atr, 1. 14, laid down that the king was to have all wites incurred by men having bookland, and none of these pay bot following any accusation unless in presence of king’s reeve. *® King Alfred’s Version of St. Augustine’s Soliloquies, ed. T. A. Carnicelli (Cambridge, MA, 1969),

48. Godden, ‘Did King Alfred write anything?’, questions the association with Alfred or his reign. *° See e.g DB, i. fos 2v, 80v, 97r, 100r, 1671, 179v; see also below, 118, on the significance of Domesday

references to men not being able to give away lands. Domesday may not mention some pre-Conquest leases; see e.g. Historia ecclesie Abbendonensis, i. 143, ed. Hudson, i. 224. For leases by lay persons, see also e.g. S 1458, 1521. Note further Williams, World before Domesday, 76-8. °° E.g. S 1299, 1304, 1305, 1310, 1311, 1316, 1336, 1350, 1362, 1363. See e.g. S 1311 for the documents recording leases being referred to as ‘bec’.

5 LAND 99 return for three pounds that he lent, and that he should have the enjoyment [bryce] of that land for three years, and by the end of the three years should return the land to the community.”

This lease is unusual within the existing evidence in being for only three years and for making the monetary loan explicit, but longer leases may have been a useful means of obtaining lump sums. A grant of life-tenure, presumably to be classified as loanland, might also be made as part of a dispute settlement.*

Leases survive recorded in documents sometimes in Latin, often in the vernacular, and sometimes in a mixture of the two.* These documents lack the formality of the diploma, although they might, for example, include a cross at the start, an opening invocation, and a malediction.> Some were in the form of chirographs, and it is possible that the portion issued to the lay lessees was

written in Old English, the portion retained by the ecclesiastical lessor in Latin.® It is uncertain whether churches arranged leases without recording them in writing; it is certainly possible that laymen did so. Documentary evidence was a supplement to witnessing as a means of ensuring observation of the terms of the lease. Often we see the shire court witnessing, sometimes in addition to other witnesses who possibly were present on a different occasion or occasions.” The most common duration of ecclesiastical leases was three lives, although we have examples of, for instance, one, two, and four lives2* Surviving leases for terms of years are extremely rare, but it could well be that short-term leases were less likely to be recorded in writing or to be preserved2® Lessees holding lands leased for more than one life may often have enjoyed some choice regarding their

successor, as is suggested by phrases such as ‘he shall have it and make good ** § 1421; the lease specifies what had been on the land when granted and was to be restored to the community by Fulder. For land being used as security for a monetary loan, see S 1211, discussed above, 82-3. ** Note the arrangements in S 1417; see also e.g. S 1362, 1363. ** See e.g. S 1456; note also S 1457.

** Lowe, ‘Lay literacy’, 178: “When we consider the 77 leases surviving from Bishop Oswald’s episcopate (AD 961 x 992), for example, we find that, although boundary clauses (which occur in almost half of the leases) are always in English, the body of the leases themselves display considerable variation in language: 13% are in English, 56% are in Latin and 31% are in a mixture of English and Latin. Choice of language seems to have been an arbitrary decision.’ °° See e.g. $1394. °° Lowe, ‘Lay literacy’, 177-8. °” See e.g. S 1394, 1399, 1402, 1403, 1406, 1409. °® E.g. one life: S 1287, 1349, 1371, 1391; two lives: S 1328, 1344, 1366, 1402, 1403; three lives: S 1281, 1283,

1288, 1297, 1300-6, etc.; four lives: S 1290 (a cartulary copy, so mis-transcription cannot be ruled out). °° For an exceptional instance, see S 1421, cited above.

100 PART I: LATE ANGLO-SAXON ENGLAND use of it in his lifetime, and after his lifetime [leave it] to one heir who is most agreeable to him and who is willing to earn it from him’.*° From the tenth century at least monasteries seem to have taken the grant for three lives to cover the original grantee, his widow if she survived him, and a further heir, although some grantees possibly took a conflicting view, excluding the widow and including two heirs.** Some documents record arrangements in greater detail. Whereas a Worcester lease of 963 simply says that after the end of the grantee A£lfric’s life “he shall leave it unburdened to two heirs only, an associated vernacular note states that ‘I, 4lfric, inform my dear lord that I grant the land that I have acquired from you to Athelsige, my son, after my lifetime, to have during his lifetime, and at his death to grant to whomsoever he pleases, as long as it remains on the male side. It may be that this was a special inheritance arrangement, hence making the additional note desirable. Alternatively, the planned direct succession of A:thelsige to his father may simply be the result of FElfric’s wife having predeceased him.*?

The purpose of a lease clearly was to retain control over the land and prevent inheritance. It is anomalous that perpetuity language, or similar phraseology, sometimes appears in leases for a set number of lives.** However, we have clear evidence that leases were extended beyond their original term, for example when at Worcester the rubric to a copy of a lease for two lives gives the names of four holders of the land.*4 Such cases may be the result of friendly negotiation, but the termination of leases could be a matter of dispute. The twelfth-century Abingdon History recounts the following mid-eleventh-century dispute concerning the abbey’s Berkshire estate of Leckhampstead.* A certain rich man named Brihtwine was saying that he received that land by gift of [Abbot] Siward to be possessed hereditarily as his own property, in that he might dispose what he wished according to the power of lordship. But he claimed this falsely. For in the time of King Cnut, his father—called Brihtmund—acquired this from the convent of the Abingdon monks by request, on this specification, that thereafter it be enjoyed for the lives of three people, that is of Brihtmund himself and of two whom he would specify. When this time had passed, it would be freely restored into the monks’

*° $1366; see also S 1394, 1406. ** See below, 101. Note also S 1348, a lease explicitly to a man and his wife. * § 1303. Note also S 1326. *° E.g. $1301, 1303, 1306, 1310, 1314. “* § 1353; see also e.g. S 1365.

*° See Historia ecclesie Abbendonensis, i.120, ed. Hudson, i. 188-190. It is uncertain when Abingdon first obtained Leckhampstead, although it was claimed as part of the early endowment. In the midtenth century it was granted to the thegn Eadric. See Historia ecclesie Abbendonensis, i. 10-11, 137, ed. Hudson, i. 16-20, 210-12.

5 LAND 101 hands. So when he died, the second permission to enjoy the land passed to his wife, the third to their son Brihtnoth. After his death Siward wished to assign that land to the monks’ use, since now the total of three holders was exhausted, but the aforesaid Brihtwine brother of Brihtnoth came to Abingdon with a band of noblemen and asked the abbot that he might be tenant of that land as long as he lived.

One may perhaps here wonder whether Brihtwine counted three lives in a different way from the abbey, not including the tenure of his mother.** However, he did not rely solely on argument but also on his powerful supporters. At length he was successful, but when Abbot Siward moved away to take up the responsibilities of the ailing archbishop of Canterbury (1044), Brihtwine saw a further opportunity. He claimed the land by hereditary right. Siward therefore wrote to Earl Godwine of Wessex and the shire court: Bishop Siward to Earl Godwine, and Bishop Hereman, and Kineweard, and all other noble men of Berkshire, greeting. I have heard that Brihtwine is entirely appropriating the land of Leckhampstead to himself. However, he does this unjustly. For, with my permission, he gained possession of it on this condition, that after his death it is to return freely to the hands of the monks. This was set down by agreement

in the presence of very many illustrious men, on the day on which Brihtnoth, his late brother, was buried at Abingdon. Brihtnoth was the third from the father (for in between himself and his father his mother enjoyed possession of that land) to whom alone it had, in the time of King Cnut, been granted by the monks of Abingdon to be possessors thereof for the space of the lives of three men. Having pledged the faith that I owe to God and my lord king, I swear that these things did not happen in any other fashion. But if anyone still disbelieves these things, I will be prepared to prove what I have testified, by a judicial method whereby your judgment can rightly be

determined.”

Brihtwine, however, managed to retain the land until the time of Abbot Ordric (1052-66).** The History then reveals that Brihtwine ‘was behaving in particularly

loud-mouthed fashion since he had the charter [/andboc]’. This is probably the charter of King Eadwig granting ten hides at Leckhampstead to his thegn Eadric; the charter follows this section in the History. The charter may never have passed *° Note the following rather elusive passage from Historia ecclesie Abbendonensis, i. 141, ed. Hudson, i. 218-20: “Besides, a custom in those days got out of control, to considerable future damage:

anyone offering plenty of gold or silver would receive by purchase a portion of land amounting to three or five hides, or a whole village, in various places of the abbey, under the cover that permission to possess this land was to extend for the lives of three, or two, men.’ “7 § 1404. Charters of Abingdon Abbey, 558, states that the writ that follows ‘is almost certainly a Latin translation of a genuine Old English writ’. The writ can be dated to 1045 x 1048. Godwine’s earldom of Wessex included Berkshire. Kineweard was probably the sheriff of Berkshire, witnessing various charters as prepositus or prefectus. *° Historia ecclesie Abbendonensis, i. 136, ed. Hudson, i. 208-10.

102 PART I: LATE ANGLO-SAXON ENGLAND to Abingdon, or Brihtwine may have obtained it from the monastery, directly or indirectly, by some unrecorded means.’ Abbot Ordric first sought return of the document “by prudent argument’. Then, according to the History, this afterwards happened, through Earl Harold, whose favour the abbot enjoyed in this matter. It was decreed that, when the opposing pleas brought by the disputants concerning that land had been weighed in an assembly of high-ranking men, it would be decided to whom the ownership of that land belonged more justly for the future. And so when the matter was debated on the specified day, the pleaders, to whom in that place it had been delegated to set down the equitable right, got to know the facts in both sides’ arguments and decided that the abbot’s case was the more just. Therefore the land was freely restored to him and the monks.

Soon afterwards, the diocesan bishop reinforced the decision by threatening any violators with perpetual anathema. Despite the victorious tone of this account,

Domesday Book indicates that Brihtwine was one of Abingdon’s tenants at Leckhampstead at the Confessor’s death.*° The case thus illustrates most clearly the purpose of loanland, and the pressures from the laity for heritability.

Folkland During the nineteenth century, it was often assumed that folkland was the land of the ‘folk’, in some sense land belonging to the nation.” An alternative interpretation has been that it was land of the crown, distinct from the king’s private property, and intended for ‘the maintenance of its dignity, the expenses of government and the normal defence of the realm’. It ‘might be leased to the king's servants for life, but could not be alienated in perpetuity at his pleasure without constitutional impropriety.’ A third view is that folkland was a residual category for all land bar bookland. The word may appear rarely in the records precisely because it was unnecessary for men to use a particular term for the standard form of landholding.’ A further, compatible, suggestion is that folkland was

* Charters of Abingdon Abbey, 559, suggests as an alternative possibility ‘that Brihtwine simply approached the king (? Harold Harefoot or Harthacnut) and acquired a charter for the property. The full version of Eadwig’s charter is dated 943. °° DB, i. fo. 58v. >" See P. Vinogradoff, ‘Folkland’ (1893) 8 EHR 1-17, esp. 1-3.

°? Turner, ‘Bookland and Folkland’, 375, 380. See also H. Vollrath-Reichelt, Kénigsgedanke und Kénigtum bei den Angelsachsen (Cologne, 1971), 204-25.

>> Wormald, ‘Kingship and royal property’, 267, takes folkland to refer to ‘any kind of property that was “customary” or “traditional”, as opposed to bookland’. See also Baxter and Blair, ‘Land tenure’, 18-23.

5 LAND 103 distinguished from the privileged bookland by the nature of the customs associ-

ated with it. The word folcland itself does not provide an obvious answer as to its sense, since the word folc did not have a single and precise meaning. It could have a military sense of troops or army, or refer to a whole people, such as the Israelites or the English. It might also mean the common people, and perhaps be used in a more general sense of the normal or routine as opposed to the special or privileged ©

A fundamental difficulty is the scarcity of surviving references to folkland. There are only four instances that can help analysis.° Certainly three and possibly all four are from the second half of the ninth century or the first quarter of the tenth, so it is even uncertain that the word had lasting currency.” Given their small number, they can usefully be set out individually:

(1) A charter of Ethelbert, ruler of Kent, dated 858, and recording the exchange of five sulungs at Wassingwell for five sulungs at Mersham (both places being in Kent)5* The boundary clause for the Wassingwell estate refers to a neighbouring estate ‘the king’s folkland, which Wighelm and Wulflaf have’. A contemporary endorsement states that ‘the king gave and booked five sulungs at Wassingwell to Wulflaf in exchange for five sulungs

at Mersham, and the king made that land at Mersham into folkland for himself [se cyning dyde det land et Mersaham him to folclande| when they

exchanged the estates’ (2) The will of Ealdorman Alfred, from 871 x 889: ‘I gave to my son Athelwald

three hides of bookland, two hides at Whaddon and one hide at Gatton, and with it 100 pigs. And if the king shall grant him the folkland as well as the bookland, then let him have it and enjoy it; if that may not be, she [my widow] is to give to him whichever she pleases, either that land at Horsley or that at Lingfield.*° The will makes clear that Horsley and Lingfield were bookland. Athelwald was probably the ealdorman’s illegitimate son. The will refers to the daughter as ‘the child of us both’ and expresses hope for a >“ Note Vinogradoff, ‘Folkland’. °° Particular helpful here is Patrick Wormald’s unpublished paper “Thinking about Olde Inglysshe Folke’.

°° For a fifth, poetic reference, probably with a general sense such as ‘country’, see Reynolds, Fiefs and Vassals, 325.

°” For suggestions as to the lack of earlier appearances of the word, see E. John, Orbis Britanniae (Leicester, 1966), 74. However, see below, 108 n. 80, on S 168.

°® The sulung was the ordinary land measure in Kent, as the hide was in many other areas. °° § 328; for problems interpreting the passage cited in Old English, see below, 104-5. °° $1508.

104 PART I: LATE ANGLO-SAXON ENGLAND closer heir: if God ‘grant that a nearer heir be born to me on the male side, then I will give him all my property [erfes] after my lifetime, to use as best

pleases him.’ (3) A law of Edward the Elder datable to 900 x 924: ‘we have declared what he

is liable to who withholds from another his rights in either bookland or folkland. And with regard to folkland, that he [the plaintiff] shall appoint a day when he [the defendant] shall do him justice in the presence of the reeve. If, however, he does not obtain his rights either in bookland or folkland, he who withholds the rights shall forfeit a fine of 30s. to the king, and also thirty shillings on the second occasion, and on the third occasion the

fine for insubordination to the king, that is 120s., unless he has already desisted [from wrongdoing].’” (4) “Ymb AEwbricas, probably from the tenth century, a passage appended to the laws of Alfred and Ine ina version surviving in a mid-sixteenth-century transcript, but not originating there. The passage answers a question concerning adulterers: “Ihe woman who has done wrong [se forworhta wifmon|

always goes to the bishopric with her third part, and the man [wepned] to the lord - be it bookland or folkland, be it of the king himself or of any man. And the man [wer] goes with his two parts to the lord if he has wicked intercourse and they have both done wrong. ® Let us look at each of these texts in turn. (1) The boundary clause makes two points very clearly: first, the king could have

folkland, second, others could hold his folkland. The endorsement is less clear in its implications. It may indicate that Mersham was converted from another form of landholding, probably bookland, into folkland. Another possible reading simply emphasises that the king converted Mersham into his folkland, rather than changing the form of landholding.®* The charter does state that ‘I free Wassingwell eternally from all servitude of royal work, just as that aforementioned land Mersham had been before’, and if Mersham enjoyed this privilege eternally it should probably be considered bookland. However, the word ‘eternally’ could just refer to the future tenure

°* See also below, 134 n. 236. An alternative view is that Ethelwald was not illegitimate but the son of Alfred and an earlier wife; see e.g. SEHD, 90-1.

°? IEw,2. °° Wormald, Making of English Law, 372; R. Flower, “The text of the Burghal Hidage’ (1937) 1 London Medieval Studies 60-4, at 62. °* See John, Land Tenure, 37, Orbis Britanniae, 106-7.

5 LAND 105 of Wassingwell, not to Mersham.® Furthermore, it is unclear what might persuade the king to convert Mersham from bookland, as this would have limited his control of it.°°

(2) The will distinguishes folkland from bookland, but does not make clear

whether these two categories covered all forms of land, and refers to some other estates simply as ‘land’, which could, although need not, be in contrast to bookland. The will does strongly suggest that, at least in this instance, folkland was less freely bequeathable than Ealdorman Alfred’s inheritance and his bookland, thelwald’s possible enjoyment of the folkland resting on the king’s grant.

(3) The law of Edward the Elder again certainly distinguishes between bookland and folkland. Again, however, the significance of the clause could be clearer. The nature of the withholding of rights is not specified. Nor is the jurisdiction with regard to bookland, although the clause is sometimes taken to imply that bookland cases were the preserve of the king.” One of the three manuscripts of Edward’s laws, Cambridge, Corpus Christi College, MS 383, omits the phrase ‘and with regard to folkland’ before stating that the plaintiff ‘shall appoint a day when he [the defendant] shall do him justice in the presence of the reeve’. This would leave the reeve as the person to hear both bookland and folkland cases, although the passage may bea simple error in the early twelfth-century manuscript.® It remains notable that the law makes no distinction in the fines paid for the offence according to whether folkland or bookland was involved, and that in both situations the fines were paid to the king.

(4) The strongest evidence for bookland and folkland together covering all land may be “Ymb Awbricas. However, we do not know the question to which the surviving passage is the answer, and the sense of the answer in itself is not entirely clear, for example whether the references to a wepned and a wer are to the same person involved in the same case of adultery. Moreover, after the Conquest, Domesday evidence and the Leges Henrici indicate that, in cases of adultery, the king normally had the forfeiture of the man, the bishop or archbishop the forfeiture of the woman.” It may be, therefore, that “Ymb Ewbricas’ is indicating the position of a privileged lord, who would get what normally went to the king. Again, therefore, both °° Note also the loose employment of perpetuity language in leases; see above, 100. °° Cf. below, 109-10, on kings booking land to themselves. °” See e.g. Vinogradoff, ‘Folkland’, 6. °° Wormald, Making of English Law, 233-4, comments on errors in the manuscript. °°” See below, 440. Note also EGu, 4, on incest.

106 PART I: LATE ANGLO-SAXON ENGLAND bookland and folkland may be forms of land particularly associated with the king.

A first general conclusion must be the scarcity of references to folkland. This

is particularly notable because bookland, folkland, and loanland were not the only compound nouns formed with land. Almost as many documents use the word gafolland as use folkland.”°? We also find earningaland or erninglond (‘land held for services’), fre lond (‘free land’), and heregeatland (heriot land’).” As we will see, there are also compounds linked to the status of the landholder, for example geneatsland, thegnland, bisceopa land, and preostaland.” This multiplicity of infrequently surviving compounds suggests that it is dangerous to take the scarcity of references to folkland as a sign of its import-

ance. Rather, folkland would be one of a variety of forms of landholding, to each of which fewer than half a dozen documents refer. This conclusion could then be combined with admission that we actually know rather little for certain about folkland, except some characteristics suggested by the few references. It is also, for example, not known whether folkland existed only in Wessex or at least the older lands of the Wessex kings, or throughout England.” It is certainly possible to argue that folkland was a broad category, taking in all,

or perhaps most, land that was not bookland. Lands falling outside either category might include certain ecclesiastical estates, as all the references to folkland may concern lay landholders. However, it is not clear from Edward’s laws or even

from “Ymb Awbricas’ that the categories bookland and folkland exhaust all or even most forms of land, any more than the passage of the Old English version of St Augustine’s Soliloquies quoted earlier proves that all land was either bookland or loanland.”4

Another possibility is that folkland was land that had passed into the hands of an individual but which had once been some form of more communal land. Its special status would then explain the pairing in the above references with bookland,

”° § 1539, 1555; AGu, 2. The word means rent- or due-paying land. ” Respectively Anglo-Saxon Charters, ed. Robertson, no. 104, S 1519; S 1519; S 1536. Anglo-Saxon

Wills, 157-8, comments that the last word might mean land on which the holder had right to receive heriot of thegns or land he had received in payment of heriot. ” See below, 112-14. Also below, 194 n. 292, on beodland. ”* See below, 108 n. 80, on S 168.

”* See above, 98; also VI As, 1. 1, distinguishing between bookland and bishop’s land. Cf. writs utrum, below, 607-9, which distinguish between two categories of land whilst certainly not indicating that those categories cover all land.

5 LAND 107 another special form of land. Occasional transactions suggest communal land, although without use of the word folkland: These are the terms that Abbot lfweard and the community at Evesham had made with Aithelmzr when they granted him for three pounds the land at Norton for three lives—it consists of three hides for home service (inware) and one and a half hides for external service (utware)—just as he bought it, when it was lying waste, et Hakon and et Leofric and et the whole shire.”°

Hakon may well have been the earl, Leofric the sheriff. A difficulty here is the meaning of the word et: it can mean both ‘from and ‘in the presence of’; the last clause could therefore mean that the purchase was made ‘from Hakon, Leofric, and the whole shire; or ‘in the presence of Hakon, Leofric, and the whole shire, or even perhaps ‘from Hakon and Leofric, in the presence of the whole shire. Certainly the first reading might hint that folkland could have been a limited category of land once held in common.”

It remains arguable, however, that folkland refers to the lands associated with the king but distinct from other lands under his more complete personal disposal; they would thus also be associated with his kingship, the kingdom, and its people.” Such lands, unlike bookland, would not be permanently alienable and would owe a wider range of burdens/* The former point might explain the rarity of surviving mentions of folkland, as most of our documents concern permanent alienation, with a substantial number of others recording leases by churches. The statement in the endorsement of the 858 charter of King /thelwulf that ‘the king made the land at Mersham into folkland for himself’ would show that the land returned to the holdings associated with the royal office, rather than becoming royal bookland. The reference in the boundary clause to ‘the king’s folkland that Wighelm and Wulflaf hold’ would indicate royal land that the tenants held temporarily. The same explanation would fit the reference to the king’s permission being required for Athelwald, son of Ealdorman Alfred, to succeed to folkland. Likewise, if folkland were a restricted category of land, not a catch-all, it would explain why the amount of compensatory bookland specified by the will is quite

”* $1423, and see the comments of Anglo-Saxon Charters, ed. Robertson, 404. ’”° Note DB, i. fo. 127r, referring to 12.5 acres “de nanesmaneslande’. Vinogradoff, English Society, 238, takes the name to mean ‘no man’s land’, and notes the significance of Domesday placing it under royal lordship. See also EPNS, Middlesex, 102-3. ”” See below, 108 n. 80.

”® See e.g. Turner, ‘Bookland and folkland’, 377, 384. At 384-5 Turner tentatively suggested that lands of king’s thegns in Domesday Book should be reckoned as folkland. Note the parallels to the division of ecclesiastical lands into the personal lands of a prelate, those associated with the office of prelate, and the lands of the church, which should not be permanently alienated; below, 144, 370-1, 667.

108 PART I: LATE ANGLO-SAXON ENGLAND small. The law of Edward the Elder would, according to this interpretation, treat

bookland and folkland as two types of land particularly associated with the king—hence the insistence that folkland cases should take place in the presence of the reeve. Again it must be noted that no different procedure is spelt out for bookland. In addition, it is notable that the penalties that the clause specifies for withholding rights are the same for bookland and folkland, and that the penalty in both cases goes to the king. Such a pattern would better fit folkland and bookland as in some sense associated rather than contrasting categories. And in the same way the clause referred to as “‘Ymb A:wbricas’ does not in a clear fashion differentiate the treatment of bookland and folkland. It could be significant that uses of the terms folkland come from a period when kings of Wessex, certainly from Alfred’s reign but possibly before, were intent on presenting themselves as leaders of a people, a folc. It may also be notable that the four references to folkland occur in the same period as examples of kings booking land to themselves.”? However, it must still be remembered how limited the evidence

is. Given the rarity of its usage even in the late ninth and early tenth centuries, it remains unclear whether the disappearance of the term folkland is of significance.

Lands associated with office or status ROYAL LANDS

Whatever the meaning of folkland, it does appear that there were certain royal lands particularly associated with the office of king, and distinct from bookland and other personal lands.*° It was with bookland and other personal or family lands that royal wills appear to have been concerned. King Eadred left his mother ‘land at Amesbury and Wantage and Basing, and all my booklands that I have in Sussex and Surrey and Kent, and all those that she had before’.* A similar or at ” See below, 109-10.

°° A distinction between royal lands and the king’s personal lands may be drawn in S 937, cited below, 110. When Edward the martyr died, Athelred received lordship of not only the lands belonging to the king’s sons, but also the royal lands. When he gave compensation to Abingdon, he did it from his own proper inheritance, perhaps distinguishing this from the royal lands. See S 168, for a charter recording Coenwulf, king of Mercia, in 811 giving lands ‘of his own public right [sui propriae puplicae juris] with the consent of the council. See also references in Little Domesday to land or a manor ‘of the kingdom [de regno]’; DB, ii. fos 119v, 289v; and in Exon, fo. 83r, to ‘the king’s demesne belonging to

the kingdom in Devonshire [dominicatus regis ad regnum pertinens in Devenescira]’. Note the comments of G. S. Garnett, “The origins of the Crown’, in The History of English Law: Centenary Essays on ‘Pollock and Maitland’, ed. J. G. H. Hudson (89 Proceedings of the British Academy, 1996), 171-214, at 184-7. Earls had held these lands, perhaps as comital manors; see Baxter, Earls of Mercia, 144, 304, 310 n. 87, and below, 111-12. °* $1515; note also S 1050.

5 LAND 109 least related distinction appears in Asser’s account of the will of Alfred’s father, 7Ethelwulf, who ordered then to be written a testamentary, or rather an advisory letter, so that his sons should not dispute unduly among themselves after their father’s death; in this he took care to command in writing in due form a division of the kingdom between his sons, that is to say the two elder; of his inheritance between his sons and his daughter and his relations also; and of the money that he should leave between the needs of his soul, and his sons, and also his nobles.*

The distinction between kingdom, presumably including lands associated with the royal office, and inheritance, is thus explicit. Alfred’s own will does not deal with all royal estates, and few of the burhs mentioned in the document known as Burghal Hidage appear in the will. These estates may have been excluded because they could not be bequeathed.** A desire to grant lands freely probably explains the phenomenon, peculiar at

first sight, of kings booking lands to themselves. The earliest instance is from 847 when King Athelwulf of Wessex ordered that twenty hides at South Hams, Devon, be booked to himself in his own inheritance [mihi in hereditatem propriam describere], to have and enjoy, and to leave eternally as might be pleasing to him. It was to be free of burdens except military service and bridge work.* The boundary clause then begins: ‘these are the bounds of those twenty hides that his counsellors [senatores] granted to King thelwulf at Hams’. Then in 963 a charter of Edgar stated that he had five hides at Patney, Wiltshire, to possess for life and leave in eternal inheritance to whatsoever heir he wished. The land was to be free of worldly burdens except the trinoda necessitas. The diploma is witnessed by leading men, but there is no separate mention of them making the grant.’° Another diploma of Edgar states that by the counsel [conciliabulo| of his leading men, he took land at Steeple Aston, Wiltshire, for the use of those following him by hereditary right, so that he might possess it for life and at his death leave it to whomsoever he wished. The land was to be free except for the trinoda necessitas. It may again be notable that the participation of leading men

*? Asser, Life of Alfred, 16, ed. Stevenson, 14-15.

°° See esp. Wormald, ‘Kingship and royal property’, 268-71; Alfred the Great, trans. Keynes and Lapidge, 325 n. 103; Sawyer, ‘Tun’, 288; John, Orbis Britannie, 40-4; D. N. Dumville, “The ztheling: a study in Anglo-Saxon constitutional history’ (1979) 8 ASE 1-33, at 21-4. °** At the same time, Alfred attempted to keep the alienable estates in royal hands, and in this he succeeded to a notable degree; see Wormald, “Kingship and royal property’, 271-4. °° § 298. On the production of this charter, see S. D. Keynes, “The West Saxon charters of King /Ethelwulf and his sons’ (1994) 109 EHR 1109-49, at 1116-18. 86 S715.

110 PART I: LATE ANGLO-SAXON ENGLAND is explicitly mentioned.*’ Finally, a vernacular document of c. 900 is primarily concerned with an acquisition by Edward the Elder from the bishop and community at Winchester. However, it also records that ‘all the West Saxon counsellors [witan] have in addition booked to me the following in perpetual inheritance’, going on to specify the lands.** Whilst participation of the council is sometimes mentioned in straightforward royal grants of bookland to churches or laymen,*® the regularity with which it appears in these documents concerning the booking of land to the king is striking. Its prevalence may be linked to the importance of turning royal estates into privileged, more freely disposable, bookland. In addition there were lands associated with the royal family, most notably the king’s sons.*° A charter of Athelred II states that when King Edgar died, and /Ethelred himself was still a child, ‘all leading men of both orders unanimously chose my brother Edward to guide the governance of the realm, and handed over to me for my use the lands pertaining to kings’ sons’. Edgar had given lands at Bedwyn, Hurstbourne, and Burbage to the monastery of Abingdon, but on his death these lands were forthwith violently taken away from the aforementioned holy monastery according to the decision and order of all the leading men, and at their command were subjected to my power. Whether they did this justly or unjustly, they themselves may know. Then, when [Edward died], I, with Christ’s assent, received lordship both of the royal lands and at the same time those pertaining to kings’ sons.

/Ethelred decided to give Abingdon other lands in compensation, making reference to ‘my children who consider taking these aforesaid lands for themselves and subjecting them to their control’. °7 $727. °° § 1443. Note also S 1286 for Edward the Elder obtaining what appears to be bookland from the

bishop and familia of Winchester; the grant presumably reiterates the terms on which Winchester was holding the land. °° E.g.S 342, 682, 924.

°° Some lands may have been particularly associated with the queen, but arrangements appear to have been flexible; see also P. Stafford, Queen Emma and Queen Edith (Oxford, 1997), 123-42. Alfred’s

will left Lambourn to his wife, Ealhswith, and it later belonged to Athelfled, wife of Edmund. However, it returned to the king after her death and was a substantial royal estate in 1066; S 1494, 1507, DB, i. fo. 57v, and see also fos 6lv, 63r. Note also the varied history of Dean, Sussex: S 904, Alfred

the Great, trans. Keynes and Lapidge, 319 n. 41; S. D. Keynes, The Diplomas of King A:thelred ‘the Unready 978-1016 (Cambridge, 1980), 187 n. 117.

°" § 937. King Alfred’s will (S 1507) had granted that after his death his son Edward have both Bedwyn and Hurstbourne Tarrant; Burbage is next to Bedwyn, and could perhaps be included under the name of Bedwyn. Given that after Alfred’s death Edward would be king, this allocation differs

from the association of the estates with the reigning king’s sons specified by thelred. However, it is possible that at the time Alfred made this will Edward already enjoyed Hurstbourne and Bedwyn

5 LAND 111 COMITAL LAND

Certain other estates may have been associated with the office of ealdorman or earl.’ The Domesday-related information preserved in the so-called Exon Domesday refers to ‘manors of the earldom [mansiones de comitatu]’, whilst the Domesday entry for Thetford, Norfolk, states the following: Of the king’s land in Thetford on the Norfolk side of the river there is one league of land in length and half [a league] in breadth of which the king has two parts but a third part of these two parts lies in the earldom [in consulatu jacet]....On the other, Suffolk, side there is a half league of land in length and half [a league] in breadth; of this land a third part belongs to the earldom [est ad comitatum] with four acres of

meadow.

The twelfth-century text known as the Instituta Cnuti refers to an earl having ‘comital vills that pertain to his earldom’.** Place-names may also be suggestive. Aldermaston, Berkshire, means ‘ealdorman’s tun’ and was held by Earl Harold in the time of King Edward.® Many of the estates held by earls were assigned

the earl’s third penny from justice, or received renders otherwise associated with royal vills, suggesting that earls held them because of their office.°° Many were ancient centres of authority or, indeed, former royal vills. Tenure of some by royal officials can be traced back beyond Domesday entries concerned with the time of King Edward. Such evidence is not definitive proof that these lands were associated with office rather than with individual earls or officials, but the cumulative effect is suggestive. Particularly significant is the fate of the Midland earls and their lands in the reign of the Confessor. Control of these Midlands

shires changed frequently, and the capacity of the king to move some shires between earldoms and also earldoms between men is much easier to explain if

as the king’s son and that the will confirmed them to him after his father’s death, perhaps with the expectation that he would pass them to a son of his own.

°* See Maitland, Domesday Book and Beyond, 168; P. A. Clarke, The English Nobility under Edward the Confessor (Oxford, 1994), 20-3, who at 21 argues that ‘in the south the comital manors which Harold held only appear to have made up about 10 per cent of his entire estate, and although a number of comital manors may not have been recognized, it does not seem likely that the bulk of Harold’s estate came directly through his tenure of comital manors’; and esp. Baxter and Blair, ‘Land tenure’, 23-7, Baxter, Earls of Mercia, 141-50. Comital manors may have been considered folkland, characterised by the limitation of the earl’s rights; note Baxter and Blair, ‘Land tenure’, 27. See also above, 108 n. 80, on Domesday references to lands ‘de regno’. °° Exon Domesday, fo. 107r, DB, ii. fo. 118v. See also DB, i. fo. 246r, concerning twenty-two messuages ‘from the honour of the earls’. °* In Cn, iii. 55. ”° EPNS, Berkshire, i. 198. °° See e.g. DB, i. fos 86v, 101r.

112 PART I: LATE ANGLO-SAXON ENGLAND comital property could be transferred to particular earls.” In this sense, comital lands were a type of loanland, assigned for a period of office. In practice, such a restriction was likely to be challenged and indeed eroded, particularly by an earl or comital family well endowed with other lands. The earl might pass comital lands to another member of his family, or seek to retain them, at least for life, after his removal from office. Yet such erosion does not weaken the case for the existence of comital manors, any more than hereditary tendencies contradict the existence of loanland. OTHER LANDS ASSOCIATED WITH OFFICE

A late twelfth-century source, the Waltham Chronicle, records that Ethelstan, son of Tofi the Proud and father of Asgar the staller, did not succeed to all his father's property, but ‘only that which related to the stallership’** There are also various references to ‘reeveland’, in contexts that suggest it means more than simply ‘the reeve’s land’. Thus the will of Leofgifu in 1035 x 1044 granted A:thelmeer an estate ‘that I have let him as reeveland [to reflande]’°° Here it most likely means land held by the reeve in return for the performance of his duties. Domesday Book on occasion uses the word in similar fashion.’°° Elsewhere Domesday seems to employ it in a different way, the sense of which is not entirely clear. Thus the Book states of Gayton, Herefordshire, that ‘this land was thegnland in the time of King Edward but afterwards was converted into reeveland and thus the king’s commissioners say that that land and the revenue that comes from it was stolen from the king [furtim aufertur regi]’’°' OTHER LAY LAND

If we take folkland as a relatively limited category rather than signifying all non-bookland, we still have to analyse the characteristics of lands that were not bookland, loanland, folkland, nor associated with a particular office. Alternatively the following lands may have been grouped under the catch-all term folkland. These lands may have been held in many different ways, varying, for example,

°” Baxter and Blair, ‘Land tenure’ 26; A. Williams, “The king’s nephew: the family and career of Ralph, earl of Hereford’, in Studies in Medieval History, ed. Harper-Bill et al., 327-43, esp. 339-40, World before Domesday, 23-4. °° The Waltham Chronicle, 14, ed. and trans. L. Watkiss and M. Chibnall (Oxford, 1994), 24. His succession may have taken place in the 1040s. °° § 1521. See also S 1403 for ‘the meadow belonging to the reeveland [gereflande]’; Anglo-Saxon Charters, ed. Robertson, 450, comments that this is ‘land held by the reeve in return for his services’. *°° See esp. DB, i. fo. 69r; also fos 57v, 179v. ‘8! DB, i. fo. 181r.

5 LAND 113 according to level of society and according to region, and it is very difficult to make general statements about characteristics. The term thegnland was used to refer either to a category or a physical piece of land.’” Thegnlands seem to have been associated with the status rather than the office aspect of thegnship.’? Certainly some lands that would later become serjeanties were recorded in Domesday as held by king’s thegns in the time of King Edward, but Domesday does not refer to them as thegnlands.’” In general, the surviving evidence uses the word for lands that thegns held from the king or from a church. Such lands were probably loanlands, and a contrast is drawn with a church’s demesne. It is sometimes stated that the land could not be separated from the church, that is the holder could not alienate the thegnland.’* We also have very occasional reference to geneatland, the land of a geneat, or to neatland.’°° The former appears in a post-conquest Old English record of the dues owed to the church at Lambourn, and is distinguished from thegnland.’” The latter appears in a law of Edgar: ‘people shall give all tithes to the old minster to which obedience belongs, and it is to be rendered both from the thegn’s inland and from the geneatland, according as it is brought under the plough’. The distinction here must be between the thegn’s demesne and the land of his tenants. This distinction may have been primarily organisational and economic rather than legal. Other types of land, too, probably took their names from estate organisation and socio-economic relations; they may have been characterised by the types of renders that they owed, but need not have been clearly categorisable with regard

*°* For use referring to physical pieces of land, see e.g. Exon Domesday, fo. 518v: Hubert holds these two thegnlands for one manor; cf. above, 93, on bocland.

3 See below, 203-6. *°* See below, 372; also Baxter and Blair, ‘Land tenure’, 41; Campbell, ‘Agents and agencies’, 214-17; above, 107 n. 98. *°° Note DB, i. fos 66v, 90r, 911, 941, 95v; see also Exon Domesday, fos 36r, 38r, 106r, 113v, 147v. It is of

course possible that statements such as ‘this land was thegnland and could not be separated from the

church’ indicate that other thegnlands could be separated. On thegnland, see further Vinogradoff, English Society, 86-7, 370-2, 406; E. Miller, The Abbey and Bishopric of Ely (Cambridge, 1951), 50-3; for words of caution see Abrams, Glastonbury, 291-311; Williams, World before Domesday, 81. For

post-Conquest evidence, see Inquisitio comitatus Cantabrigiensis, subjicitur Inquisitio Eliensis, ed. N.E.S.A. Hamilton (London, 1876), 123-4, on thegnlands of the church of Ely; DB, i. fo. 262v (Robert of Rhuddlan claiming land ‘ad teinland’, which the county said pertained to the borough of Chester, and always paid customary dues to the king and earl); Lawsuits, no. 132, a writ of William Rufus to William de Cahagnes, distinguished thegnland from land that rendered farm to the monks of Ramsey; the latter was to be in the abbot of Ramsey’s demesne. *°° See also below, 206. *°7 Anglo-Saxon Charters, ed. Robertson, Appx no. 5.

8 IT Eg, 1.1.

114 PART I: LATE ANGLO-SAXON ENGLAND to issues such as heritability."°° One such form was sokeland, which we find in the north and east of the realm; such land was held by men who owed renders to a lord who had over them soke, that is jurisdictional and other rights."° On

occasion sokeland may have been synonymous with geneatland or utland.” A contrast might be drawn between these lands and the inland or the land of geburs. The latter would owe more intensive, probably less honourable services, and the tenants might be less secure.”

Women and land It is clear that women in late Anglo-Saxon England could possess and dispose of land. They appear in Domesday Book as landholders, they issued documents, and some place-names have as one element a woman’s name, suggesting that woman’s ownership of the land.’? Women received lands in the context of marriage, to be considered later, but could probably also do so by non-testamentary inheritance and certainly by bequest."4 Laywomen and religious women also received grants of bookland from the king.” They held loanland, although it should be noted that only very rarely was a woman the first lessee of a lease for three lives."° However,

what control even an aristocratic woman had over such lands during her husband’s lifetime is obscure.'” The London regulations regarding peacekeeping from Athelstan’s reign specify that everyone who had property [yrfe] worth 30d.

should make the common monetary contribution, ‘except poor widows who

*°? Note the variety of compound words in S 146la: inland, weorcland, agenland, socnland, weste land, preostaland. In addition there are the units of land called ‘ploughlands’. "T° See Stephenson, ‘Commendation’, 307-8, Baxter, Earls of Mercia, 234-5 (where he comments on the alienability of sokeland), 240; Faith, Peasantry, ch. 4; Williams, World before Domesday, 83. On soke, see above, 59, below, 210. *™ See above, 113.

*™* See below, 210-11; Faith, Peasantry, chs 2-3. ‘'® Faith, Peasantry, 161.

‘™ See e.g. S 1520; note the provision that one daughter, Leofwaru, was to receive a piece of land on the condition that she keep herself chaste or lawfully received a husband, ‘lest she and our progeny be marked by the infamy of the contagion of a brothel’. Note also S 1485, 1496, 1501, 1534. For lands received in the context of marriage, see below, ch. 9. "© See e.g. S 860, for a charter of Athelred II in favour of Wulfrun, a member of a prominent Staffordshire family; S 464, 465, 474, 482, 485, 487, 493, for grants by King Edmund to religious women. T° See e.g. S$ 1385; J. Crick, “Women, posthumous benefaction, and family strategy in pre-Conquest England’ (1999) 38 J of British Studies 399-422, at 414 n. 84. “'” Note Ramsey Chronicle, 75, ed. Macray, 135-40, on alienation of land that awoman had brought

to her second marriage; however, the incident is from a twelfth-century account of a transaction in Cnut’s reign. Note also the woman’s independence in DB, i. fo. 373r.

5 LAND 115 have...no land’."* This indicates the possibility of widows with land being treated like male property holders, at least in one particular context.

2 LANDHOLDING, LORDSHIP, AND DEPENDENT TENURE Dependent tenure involves a tenant holding land from a lord in return for services or other dues. Failure to fulfil these obligations may lead to the termination of the tenurial relationship, as may other breaches of the relationship between tenant and lord. The lord may also exercise control in other ways, for example over the tenant's capacity to alienate the land. Alienations in turn may create additional dependent tenures and lordship ties. Whereas dependent tenure was a clear characteristic of post-1066 England, before 1066 its extent and importance, outside loanland, is considerably harder to assess."° In part this is a matter of evidence. There are two main sources, Anglo-Saxon leases and Domesday entries concerning the time of King Edward. Documents recording leases demonstrate the existence of a lordship bond between lessor and lessee. Sometimes this is put very briefly, as in a Worcester lease when the bishop specifies that the lessee was ‘to have the lands and make good use of them under me for three lives, in return for due obedience to the holy foundation at Worcester, unless he forfeit it’.° Others are more detailed: for example a lease of c. 1050 lays down that the recipients ‘shall always be submissive and obedient and acknowledge the lordship of whoever is bishop at the time, and if they are guilty of any default [ frambyge], they shall forfeit the property.” Many leases specify dues, often payments of rent or of labour service, and the very performance of service reiterated the bond between lessee and lessor.’ The services varied, perhaps as a result of the type of land leased, certainly as a result of the social and economic standing of those involved, and of individual negotiation and arrangement. However, the services need not be specified in the document recording the lease. Here an important text is the so-called Worcester Indiculum, preserved in Worcester’s late eleventh-century cartulary.’* This purports to be a memorandum of Bishop Oswald of Worcester (961-92) concerning the services owed by those to whom he had leased lands for three lives. Given its absence

8 VI As, 2. ‘For Ine, 63-8, see below, 209 n. 64. 17° $1399. "2! $1409. See also e.g. S 1354. 22 See e.g. S 1305, 1426.

75 $1368.

116 PART I: LATE ANGLO-SAXON ENGLAND from an early eleventh-century Worcester collection, the text may be treated with suspicion. In addition the type of services that the Indiculum specified may not have been imposed on the privileged grants of land in return only for the trinoda necessitas that appear in Oswald’s leases; we do not know precisely to what grants the Indiculum was referring. Nevertheless, the Indiculum may still give some indication of some types of service that rested on some loanland, for example the payment of church-scot and the performance of riding and hunting duties.

It remains notable, however, that some leases, presumably of bookland, mention only fortress and bridge work and military service.’*4 Furthermore, there are indications especially outside the Worcester evidence, that leases of land need not always create such obvious lordship ties. Edward the Elder extracted a life-

grant from the bishop and community of Winchester.’* In Alfred’s reign, with the permission of the community [familia] of the church, the bishop of Worcester arranged a lease for himself and two subsequent lives.’® Neither transaction suggests strong lordship on the part of the lessor. It may well be that at least some such leases were made primarily in return for loans or initial lump sum payments, rather than for the services that would be done. If so, they need not suggest that lordship over land was of significant importance.’”” Anglo-Saxon evidence on dependent tenure, apart from leases, is very sparse, even regarding services. Rarely is it made clear whether the land concerned was bookland, loanland, folkland, or another form.’ It is also difficult to distinguish

references to tenurial from those to personal or jurisdictional dependency, and similarly to determine whether services had more than a personal basis.”° Some documents do definitely imply dependent tenure, although generally with little background or detail."° For example, a probably authentic writ of Edward the Confessor for Westminster, granting the estate of Eversley to the abbey, expresses the royal wish that Payn my meadwright, and Wulfnoth my housecarl, and Alfric Hort and Frebeorn my free sokemen, who hold the estate, henceforth, with land and with pasture,

4 See e.g. S 1326, 1369. Others indicate still greater freedom from obligations; e.g. S 1374. 125 $1444,

7° $1415. 27 See esp. $1211, discussed above, 83.

"8 Note also Baxter, Earls of Mercia, 209-10. "2° See also below, 220-4. *°° § 1136 is a writ of the Confessor granting that Westminster have four hides at Tooting ‘as fully and completely as Swein my kinsman held of me [of me firmest held] and gave it to the holy foundation; and I gave my full consent to that’. However, the document is of dubious authenticity.

5 LAND 117 each of them with his part, be in the power of St Peter and obey and be subject to community of monastery.”

Anglo-Saxon evidence on tenure still lower in society, below the level for which leases survive, is very limited indeed. A law of King Edgar draws an analogy between divine and human actions.” It concerns a geneatmanna, perhaps a lesser thegn or other tenant: if any geneatmanna neglects the payment [ gafol] due to his lord and does not render it to him on the set day, if the lord is merciful he shall forgive the negligence and take his payment without penalty. If, however, through his bailiffs [bydelas] he repeatedly claims his payment, and the man is obstinate and thinks to withhold it, it is to be expected that the lord’s anger shall grow so great that he shall grant him neither property nor life [ne ehta ne lifes).

If the idea that a tenant could be put to death for failure to pay dues seems far-fetched, the clause does at least give some indication of dependent tenure. As for the land of the peasantry, a tract called GePyncthdo states that one of the qualifications a ceorl needed in order to flourish to thegn-right was to have fully five hides of land of his own.”* A wealthy ceorl is thus presented as a landowner. We also know of ceorls who were rent payers, and of lesser men such as geburs who dwelt on gafolland, rent-paying land."4 What, then, of the Domesday evidence? Here too there are numerous problems.

Domesday does not use words such as bookland or folkland, preventing con-

clusions concerning dependency in relationship to different categories of landholding. The commissioners and others responsible for collecting information and forming it into Domesday Book may have brought their own assumptions to their picture of pre-Conquest tenure, assumptions appropriate for the conquered Anglo-Norman England of 1086 rather than for the Confessor’s realm. ‘There is, for example, reference to holding ‘in fee’ in the time of King Edward, although

the phrase is never used in Anglo-Saxon documents."° The Norman compilers of Domesday may have transformed personal relationships into tenurial ones. The Domesday record is variable, with notable differences between the circuits within which the information was collected. In addition, most Domesday entries for the time of King Edward only give the name of the holder, with no further

*S! $1129. *%* TV Eg, 1. 1-2; see also above, 57.

"°° GePyncéo, 2. 84 AGu, 2, S$ 1539. On geburs, see below, 210-11. "°° E.g. DB, i. fo. 23r.

118 PART I: LATE ANGLO-SAXON ENGLAND information. It was generally only the most important landholders who are recorded as having had dependents."° In using Domesday Book, therefore, one is left heavily reliant on the formulae used to denote dependency. Two questions immediately arise. First, do different formulae indicate different types of relationship? In Kent, Sussex, Hampshire,

Worcestershire, Herefordshire, and Gloucestershire, the usual formula denoting dependency is ‘x held from [tenuit de] y’. In Middlesex, Hertfordshire, Buckinghamshire, Cambridgeshire, Bedfordshire, Huntingdonshire, and Essex, a variety of formulae are used. The most common is that the landholder was the man of another, but land is also said to be held “from [de]’ or ‘under [sub]’ another. Further documentation associated with the Domesday survey suggests that these

variations of formulae cannot be equated with distinct types of dependency. Contemporary with Domesday is the Inquisition of the County of Cambridge. The writing out of the two surveys is differently structured, Domesday by tenantin-chief, the Inquisitio by hundred and village. At the same time, they provide closely related information. It is therefore significant that individual dependent

relationships are described differently in the two texts, with Domesday using ‘under’ where the Inquisitio uses ‘from’, or ‘man of x’ where the Inquisitio uses ‘held from, or vice versa. The terms presumably, therefore, were considered equivalent. Given the tenurial assumptions of the commissioners, it may be that Domesday exaggerates instances of tenurial as opposed to personal dependence in the time of King Edward. Although there may have been different forms of dependent relationship, these Domesday formulae cannot be taken as evidence for them.” The second question is whether all instances of dependency refer to loanland. Another repeated formula states whether or not a man could give or sell his land without the permission of his lord.%* This is most commonly provided for the circuit comprised of Bedfordshire, Buckinghamshire, Cambridgeshire, Hertfordshire, and Middlesex. Where it is recorded, it is more usual that the man could, rather than could not, alienate the land. It may be notable that most of the men who could not alienate their land freely were relatively poor. Certainly when the land that could not be alienated was held of a church, it seems to have been a lease, and this may also be true of lands held from laymen.

"°° Clarke, English Nobility, 61-2, 73, 75-6; note also P. Sawyer, ‘1066-1086: a tenurial revolution?’, in Domesday Book: a Reassessment, ed. P. Sawyer (London, 1985), 71-85, esp. at 76-8. "7 See Clarke, English Nobility, 74-5, 85; cf. Maitland, Domesday Book and Beyond, 154-5.

*°8 For this paragraph, see also Clarke, English Nobility, 85-9, and esp. Baxter, Earls of Mercia, 227-30.

5 LAND 119 In other instances, the restriction may arise from a man for some reason submitting himself and his land to a lord, and then receiving the land back, either heritably or for a fixed term. Definite instances of such a transaction are very rare, but the Domesday entry for Tewkesbury may be revealing. It ends by stating that “Beorhtric son of lfgar held this manor in the time of King Edward, and he held in his power at that time these lands of other thegns listed below. There follow entries concerning those lands and their holders, concluding with the statement that ‘those men held these lands in the time of King Edward and submitted themselves and their lands under the power of Beorhtric’.¥9 Such relationships would seem not to have involved dependents holding bookland, and again might be seen to involve loanland or some less honourable tenure involving agricultural services. In contrast, in the cases of some leases for which no services are mentioned, Domesday may suggest that at least the Normans perceived the lessor as having transferred the land fully to the lessee, retaining only the reversion: Ralph [de Mortimer] himself holds Headbourne Worthy [Hampshire]. Cypping held it from King Edward.... This manor was bought out of (extra) the church in the time of King Edward, by these terms and agreement, that after the third heir the episcopal church of St Peter [i.e. Old Minster, Winchester] would receive the manor with all the stock. Now Ralph who holds is the third heir.

The land is thus said to have been taken outside the church for three lives, and the earlier tenant to have held from the king.’*° Another exceptional entry, again concerning lands of Ralph de Mortimer, specifies that Toti bought the land from the church of Malmesbury in the time of King Edward, ‘for the lives of three men, and within that term could go with it to what lord he wished’." The typicality of such an arrangement is uncertain; rarity might explain the need to spell it out in detail. Alternatively, the scribe may have accidentally omitted a negative in the last clause. What of geographical variation? The Domesday evidence for Essex, Suffolk, and Norfolk is preserved in the so-called ‘Little Domesday in a less compressed form than that for the much larger number of counties covered by “Great Domesday. It suggests that dependent relations, perhaps including tenurial relations, in Suffolk "°° DB, i. fo. 163v. Note also e.g. S 1455; cf. Historia ecclesie Abbendonensis, i. 143, ed. Hudson, i. 222, on Thorkell of Arden doing homage to Abingdon ‘concerning himself together with his land that is called Kingston. Indeed, it was then permitted to any free man to do so, so that the lordship of the aforesaid village would be dependent on the perpetual right of this church.’ The History’s account resembles post- rather than pre-1066 practice. ‘4° DB, i. fo. 46v; the statement that the land had been held from the king may again involve an imposition of Norman ideas. See also Clarke, English Nobility, 70-2. "4! DB, i. fo. 72r.

120 PART I: LATE ANGLO-SAXON ENGLAND and Norfolk may have differed from those in the rest of the realm. Mentions of commendation, of personal lordship relations, are much more common than elsewhere. These relations need not have rested on land tenure, but some tenurial links may have existed and certainly many commended men held land in the same village as their lord. In the case of the lordship of Bury St Edmunds, many men are shown as tied to the abbot by commendation, jurisdiction, and land tenure. However, it is very possible that this was a distortion of the actual situation, of which Abbot Baldwin managed to convince the Domesday legation.’” Quite possibly even in East Anglia, the widespread unifying of commendatory, jurisdictional, and tenurial elements of lordship would only occur after 1066.

3 SECURITY The owner of bookland appears to have been secure in his land provided he did not forfeit for any serious offence and provided he fulfilled the royal services owed for the land.'# Indeed, in the eleventh century, payment of royal geld appears to have established title to land—including bookland—and prior to the introduction of the geld, fulfilment of royal dues may have established title in similar fashion. This may be suggested by a law of Cnut—obviously post-dating the introduction of geld—which states that “he who has performed the obligations on an estate [land] with the witness of the shire is to have it uncontested for his lifetime and to give it to whom he pleases after his lifetime’.’4 Documents recording leases show that lessees were to be secure in their tenure so long as they fulfilled the conditions of the lease. If they failed to do so, they would incur penalties including forfeiture to the lessor. A lease, unusual in that it records a grant by Edward the Elder and the community at Winchester to Bishop Denewulf for three lives, specifies services in detail and goes on to state that ‘if it happens...that he who has that land neglects [to pay renders] twice of his own

free will, unless it arise through stress caused by a raid, then I pray the community for the love of God...to take possession of the estate. A more typical lease for three lives, by the community [familia] of New Minster, Winchester, to

““* Baxter, ‘Lordship and justice’, 415-16; cf. Clarke, English Nobility, 94-6. ““S On forfeiture, see below, ch. 7. “4 II Cn, 79; note that one version adds after ‘of the shire’ the phrase ‘and he who owned it before

would not or could not’, whilst another specifies the services of ship-fyrd and land-fyrd. See M. K. Lawson, “The collection of Danegeld and Heregeld in the reigns of Aethelred II and Cnut’ (1984) 99 EHR 721-38, at 723-5; see also Faith, Peasantry, 115. For possible earlier links between service and title, see e.g. Ine, 51.

"9 § 385.

5 LAND 121 Alfred the thegn of King #thelstan, required an annual payment of 80s. If one of the lessee’s heirs did not pay the rent when due, he was to make amends with an extra 60d.; if he failed again, he was to pay an extra 3os.; if a third time ‘let him know that he shall be dismissed from the land unless he again acquire it from the aforesaid brethren of the monastery of the Holy Saviour by a satisfactory recompense and payment’.’*°

Such forfeiture of land to the lessor for failure to do service might seem to contradict passages in leases stating that the land could not be forfeited or that it was to return to the lessor unforfeited.” However, these specifications seem to refer to forfeiture to the king as a result of commission of an offence. According

to the Fonthill Letter, the criminal Helmstan received Fonthill back from his patron Ealdorman Ordlaf, who promised Helmstan ‘that he might enjoy the land as long as he lived, if he would keep himself out of disgrace [gif he hine wolde butan bysmore gehealdan]’. However, Helmstan committed another theft and was brought to trial. Then Eanwulf Penearding, who was reeve, intervened, and took from him all the property that he owned at Tisbury. Then I asked him why he did so, and he said that Helmstan was a thief, and the property [yrfe] was adjudged to the king, because he was the king’s man. And Ordlaf took his land; because it was his lease of which Helmstan was in possession, he could not forfeit it [fordon hit wes his leen det he on set, he ne meahte na his forwyrcan].'*

Thus forfeiture for commission of a wrong was to lead to land returning to the lessor, not the king; in that sense it was land that could not be forfeited.'49 It may well be that the lessor then had to come to terms with the king concerning his lessee’s offence, but this is not spelt out in the leases. In practice, ensuring that the land was not seized by the king may have required considerable effort.’ It might therefore be prudent to obtain the king’s consent to the relevant grant, as is recorded in a Worcester lease of land to a certain thelm: ‘the whole of this land, therefore, is two and a half hides that Bishop Oswald books to Athelm, with his lord’s leave, for three lives, on condition that, whatever he does, that land shall return unforfeited to the holy foundation.

“4° $1417; see also e.g. S 509. “87 See e.g. S 1310, 1313, 1316. See above, 67, for lands in Huntingdonshire that could not be forfeited;

the precise nature of these lands is unclear. **8 § 1445; see Keynes, ‘Fonthill letter’, 80-8, for detailed comment.

Note also S 1536. *°° See also Keynes, ‘Fonthill letter’, 86.

*°! § 1299. This obligation on the lessor to make recompense may also have applied where it was specified that the lessee was not to lose the land by lawsuit or forfeiture: S 981, 1224.

122 PART I: LATE ANGLO-SAXON ENGLAND There were other threats to the lessee’s security of tenure. Transfer of land from the lessor to another might cause problems. When, in 1048 x 1050, /thelric Bigga

bequeathed lands to St Augustine’s, Canterbury, he felt it necessary to specify that the men who were presumably his tenants were to remain on the land for life.»* Occasional evidence also indicates that lessors may not always have honoured the security of their lessees’ tenure. A lease by the bishop and community of Winchester to the bishop’s kinsman Beornwulf specified a rent of 45s. to be paid at the autumn equinox, ‘on condition that no-one be permitted by offering a higher rent to turn him out, or his children after his lifetime, so long as they can produce the dues’. Such a prospect of lessees being turned out in favour of those offering a higher rent is reminiscent of some post-Conquest statements concerning land going to the highest bidder.'* It suggests that if lessors always had to worry that their lessees might aspire to be hereditary holders of the land, lessees had to worry that lessors might treat them as tenants at will.» Not surprisingly given the limits of the evidence it is very hard to come to any firm conclusions about the security enjoyed by the holder of lands other than bookland and loans for a life or lives. From 1020 x 1038 comes an unusually phrased Canterbury lease, written by a foreign scribe.** The lease was made to two thegns, by the consent of Guichard, deacon of St Mary’s abbey, Reculver, in such a way ‘that they would have that land no longer than it pleased the deacon or his successor. When it seemed to the deacon or his successor that they could enjoy that land in their own lordship [ut illam terram possit fructifare dominicatui suo], the thegns were to leave without any dispute, since it was the demesne land of St Mary, and they could not in any way claim [defendere] it for themselves or their successors [posteris]. This unusual document shows both the possibility of tenure at will and expectations of more secure possession.

4 INHERITANCE One of the original purposes of bookland was to establish the perpetuity of ecclesiastical endowments, and such lasting tenure made it desirable for the laity.°”7 Occasionally charters to laymen expand the normal use of inheritance ** $1502.

3 $1285. *°* See below, 347.

“°° On tenure at will, see also below.

° $1390. *°” Cf. the restrictions on heritability of Ottonian grants in proprietatem suggested by Leyser, ‘Crisis of medieval Germany’, 38-41.

5 LAND 123 language to emphasise heritability. For example, King Edgar made a grant of seven hides to his thegn Alfric ‘by hereditary right from heir to heir’.** In addition, at least some land apart from bookland in our period was surely heritable.’ Lay pressure for heritability is necessary to explain ecclesiastical use of leases, and disputes arising from their termination.’ Positive evidence is necessarily sparse, with the lack of estate histories and the scarcity of documents that can be proved not to concern bookland, but hints exist. Alfred’s laws may be referring to land as well as movable possessions when they state that if an abducted nun lived longer than her abductor, she was to be allowed nothing of his inheritance. If she bore a child, the child was to have no more of the inheritance than did the mother.’ Domesday Book shows sons succeeding to their father’s holdings in the time of King Edward, although the nature of the father’s tenure cannot generally be demonstrated.’” However, even setting aside loanland, some other lands were not heritable. The tract known as the Rectitudines singularum personarum, concerning status and duties, may have been referring to land as well as movables in its statements that ‘when death befalls [a gebur] let the lord take charge of what he leaves’, and ‘when death befalls [a bee-keeper] let his lord obtain what he leaves unless there

is anything free." No such statement appears concerning a thegn, geneat, or cottar, perhaps suggesting that their possessions were considered free and therefore heritable. It certainly seems plausible that inheritance of land was less secure lower in society.

Heriot Inheritance of land was marked by payment of heriot, mention of which appears in wills from the mid-tenth century. The custom may be linked to the practice of weapons that had been given by a lord to a follower reverting to the lord on the follower’s death, apparent for example in Beowulf.°* How far the obligation to pay heriot should be seen as weakening the right of inheritance is questionable. There 8 $790. ‘°° For King Alfred’s will, when listing components of his inheritance, describing some as booklands, other just as land, see below, 127.

*°° See above, 100-2; note also the lay pressure for inheritance conflicting with the unusual ecclesiastical specification in S 1446. The same lay assumption also helped produce challenges by disappointed kinsmen to alienations and bequests to the Church, not all of which need have involved bookland; see e.g. Ramsey Chronicle, 103, ed. Macray, 169-70. 161 ALS 1, “© See below, 125. "8° Rect, 4. 3a, 5. 5.

*°* See Anglo-Saxon Wills, 100; note also John, Land Tenure, 57.

124 PART I: LATE ANGLO-SAXON ENGLAND is no evidence—although this may simply be the result of limited sources—for heritable land temporarily reverting to a lord on the death of a holder until the heriot was received.'®> Landholders made provision for payment, although the heirs might actually pay. It is presumably to heriot that the will of Leofgifu in 1035 x 1044 is referring when she states that ‘I grant to the king two marks of gold; let my heirs inherit and pay the gold.’** In Cnut’s laws it is stated that if a man died intestate, be it through negligence or sudden death, his lord should take no more from his property [@hte] than his proper [rihtan] heriot. Appropriate reliefs were set for various ranks in various areas: Earl: ‘eight horses, four saddled and four unsaddled, and four helmets and four mail coats and eight spears and as many shields and four swords and 200 mancuses of gold?

King’s thegns who stand in immediate relation to the king: “four horses, two saddled and two unsaddled, and two swords and four spears and as many shields and helmets and mail coats and 50 mancuses of gold. Lesser thegn: ‘a horse and its trappings, and his weapons or his healfsang in Wessex; and two pounds in Mercia and two pounds in East Anglia.”

Whilst heriots recorded in wills show that this scale of payments was not strictly imposed or followed, the existence of a notion of reasonable heriot suggests both

widespread feeling that heriot should not be used as a method of preventing inheritance, and some actual demands for heriot that were excessive and might block succession.’®

Patterns of non-testamentary succession Lack of information makes it very hard to uncover the customary patterns of non-testamentary inheritance in the late Anglo-Saxon period, let alone to know how standardised such patterns were across England or between bookland and other lands. Both Anglo-Saxon evidence and the mass of material in Domesday

“°° Cf. below, 349-50, on relief. The significance of the non-payment of heriot [relevatio] in two instances in the Libellus £thelwoldi is not entirely clear; Liber Eliensis, ii. 27, 49a, ed. Blake, 100-1, 117.

ree $1521.

“8” IIT Cn, 71. Information on heriot for men below the level of thegn is very scarce but see DB, i. fo.

30v, for a 20s. relief being paid by a villanus. For healsfang, the first portion of the wergeld, paid to close relatives, see below, 179. *°8 See e.g. S 1483, 1485, 1487, 1490, 1498, 1501, 1505, 1531, 1534, 1536, 1537. See also Anglo-Saxon

Wills, 100. For Domesday customs concerning heriot, note DB, i. fos lr, 56v, 179r, 181r, 252r, 280v, 298v.

5 LAND 125 Book indicate a preference for males, without there being a prohibition of female inheritance." There are suggestions of partible inheritance between sons of the dead landholder. At least some of the Domesday instances where groups of thegns

held land in common may result from non-testamentary succession. How far inheritance by more than one kinsperson involved joint holding, how far division, and the basis on which such division was made, may have varied.’”° In certain cases it is specified that one of the men, possibly the eldest, was responsible for the services resting on the land, the others for helping him.” A similar arrangement may be indicated when a single man is stated to have held ‘in parage’.”” It is also possible that there were examples of primogeniture. Take the account of the dispute involving Wouldham, Kent. We have already seen the land there pass to the church of Rochester, back to the king, and then from King Edmund to /Elfstan, in return for a large payment, largely given by Alfstan’s son Alfheah.”? Then King Eadred booked it to 4lfstan as a perpetual inheritance: after Elfstan’s lifetime 4Alfheah, his son, was his heir, and he plainly established and refused his brother 4lfric both lands and possessions, except for what he acquired from him. Then because of their relationship as brothers, he granted him Erith and Cray and Eynsford and Wouldham for life.’”

Certainly the land at Wouldham was bookland but the other lands may not have been. Here we seem to have a clash between a son, probably the eldest, asserting a right to the whole inheritance, and another son with an expectation that he would receive at least something, by inheritance or by grant from the elder brother. There are also extremely numerous instances in Domesday Book of land being held by only one man in the time of King Edward, but it cannot be definitively established that these indicate widespread primogeniture rather than being the product of partible inheritance, testamentary bequest, or the survival of only one legitimate son. Likewise, evidence of inheritance amongst the peasantry *®° See also below, 135-6, on arrangements for the later descent of bequeathed lands. For succession

to the position of king in the later Anglo-Saxon period, see A. Williams, “Some notes and considerations on problems connected with the English royal succession, 860-1066 (1979) 1 ANS 144-67, 225-33. "7° See also Faith, Peasantry, 135.

7) See e.g. DB, i. fos 291r, 354r, 375v; also Maitland, Domesday Book and Beyond, 145. See also

Faith, Peasantry, 135-7, on the possibility that Kentish gavelkind and also non-Kentish peasant inheritance customs, notably socage, may in many ways have preserved Anglo-Saxon practices into the later Middle Ages. In the first half of the eighth century, a parental preference for the eldest son when sharing out the inheritance had been noted by Bede, Historia abbatum, 11, Venerabilis Baedae opera historica, ed. C. Plummer (2 vols; Oxford, 1896), i. 375-6. ‘7? See e.g. DB, i. fos 40r, 96v; also Vinogradoff, English Society, 245-50. "7° See above, 96. '7* § 1458. See also S 1497, the will of Athelgifu.

126 PART I: LATE ANGLO-SAXON ENGLAND and in towns is much too sparse to allow confident conclusions as to patterns of succession.”>

Whether inheritance was to be by one kinsperson or several, there are statements that indicate an expectation that the closest heir or heirs would be identifiable. As usual, it is uncertain whether such statements refer to bookland, and also whether bookland patterns of inheritance differed from those for other lands. The will of Athelgifu in c. 1000 lays down that one beneficiary was to pass a specified piece of land to his child; if he had no child born in wedlock, he was to give the land to St Albans. Thus legitimate birth affected succession.”* The will of Wulfgeat of Donington, of roughly the same date, granted three estates to his wife for life, ‘and after her lifetime the land is thereafter to go to my kin, those who are nearest.” Such statements suggest the existence of customary norms on the matter, although the norms might vary according to status, region, or perhaps even family, and be limited in their precision and in their extent, for example as to the claims of more distant relatives in the absence of close ones.

5 BEQUESTS OF LAND AND THE ANGLO-SAXON WILL Testamentary succession concerns both the heritability and the alienability of land, and I deal with it here, before moving on to other forms of alienation.

Bookland and bequest of land The charters make it clear that one purpose of the creation of bookland was to allow alienation by the beneficiary, and this included testamentary succession, be the disposition oral or written.”* The twelfth-century text known as the Quadripartitus translated the statement in the Rectitudines singularum personarum that ‘the thegn’s law is that he be worthy of his book-right’”? with the phrase ‘the thegn’s law is that he be worthy by right of his testament [rectitudine testamenti sui]. There are certainly significant references to bookland ‘7° See Faith, Peasantry, 130, 135-7, on the possible relationship between inheritance and settlement patterns. Maitland, Domesday Book and Beyond, 198-9, saw heritability as a characteristic of urban tenure. "7° § 1497. See also above, 103, on the will of Ealdorman Alfred.

77 § 1534. Of these estates, it is most likely from the surviving evidence that Evenlode was bookland. Note also e.g. S 1530, from 1042 x 1043, and S 1200, 1440, from the mid-ninth century. 78 See e.g. S558. 7? Rect, 1.

5 LAND 127 within Anglo-Saxon wills,*° but it is less certain that only bookland could be bequeathed.’ The late ninth-century will of Ealdorman Alfred referred to ‘my inheritance and my bookland’.*’ As in the Soliloquies’ reference to “‘bookland and

eternal inheritance’, the two terms may here simply be reinforcing one another, and certainly the Old English words for inheritance were used in contexts where they did refer to bookland."*’ Yet this need not indicate that they could only refer to bookland. The will of King Alfred contains references to both bocland and land. The king’s powers of bequest may of course be exceptional, and some of the references to land may concern bocland, but again the will warns against an assumption that only bookland could be bequeathed.’** It has also been suggested that wills were primarily or indeed wholly concerned with the disposition of acquired land, with bookland being treated as a special category of acquired land.'* Given the impossibility of constructing estate histories for this period, one cannot be certain that non-bookland estates in wills were acquired rather than inherited lands; this would be contradicted by one possible reading of the reference in Ealdorman Alfred’s will to ‘my inheritance and my bookland’.’** The argument that, despite the lack of explicit statement, acquisitions were more readily alienable than inherited land is plausible, but the possibility remains that at least some part of the testator’s inherited land could be alienated, including by testamentary means.

A modified position might be that only bookland could be bequeathed heritably or in perpetuity without royal permission, that permission having been granted as part of the original gift recorded in the charter. Such a view might be supported by Ealdorman Alfred’s will, with its concentration on bookland, and its specification concerning royal permission for folkland passing to the son /Ethelwald, quoted earlier.'*” Even for bookland, the testator might desire the king’s consent out of a sense of propriety, particularly if the testator had a close connection to the king: “here it is declared in this document how King Cnut and the Lady Alfgifu allowed

"°° E.g. S 1508 (the will of Ealdorman Alfred). Note also additions or endorsements to charters from before our period, recording bequests; esp. S 41, 1500, and also S 153, 315, 1514. See also S 296, 1510, the will of Badanoth Beotting. "5! See also above, 99-100, on S 1366, allowing a lessee to leave land to another after his death. "8? $1508. “8° See Wormald, ‘Kingship and royal property’, 265-7; also e.g. S 1510. 184 $1507.

*®° See Wormald, ‘Kingship and royal property, 267-8; K. A. Lowe, “The nature and effect of the Anglo-Saxon vernacular will’ (1998) 19 JLH 23-61, at 38. Other lands, notably those associated with an office, might not be bequeathable or alienable; see above, 111-12. On acquired lands, see below, 138. "8° See above. "87 See above, 103-4.

128 PART I: LATE ANGLO-SAXON ENGLAND Eadsige their priest, when he became a monk, to dispose of the land at Appledore as pleased him best’.** Likewise, both testator and grantees might desire royal consent or confirmation out of prudence, the grantees seeking security against possible forfeiture by the testator and potential help against a testator’s change

of mind or a future challenge by the testator’s kin.*° A bequest of land without royal consent therefore would be less secure but not in itself invalid. This might contrast with bequests of other types of land, over which, as is suggested by Ealdorman Alfred's will, the king would have had real discretion.

There is no evidence for restriction as to the type of landowner who could bequeath property.’° Certainly women made wills,’ and the twelfth-century Abingdon History may indicate that monks at the end of the Anglo-Saxon period could bequeath ‘goods and patrimonies’.’”

Bequeathing land Some bequests were made at the point of death, others earlier, with provision that they take full effect on death.’* It may well be that earlier provisions were rehearsed, sometimes recorded, and then concluded at the death-bed.* A dan-

gerous journey might also prompt will-making: ‘this is the will that Alfric [Modercope] made before he went across the sea’. In other cases we have no explanation for the occasion of will-making. It is unclear whether King Alfred feared for his life at the time of making either his extant will or the earlier arrangements that he ordered to be burnt. That some testators foresaw the possibility of altering their dispositions shows that they could conceive of further life.’%°

Women could make wills. In some cases they did so as co-grantors with their husbands. This could indicate that the wife had some legal claim to at "88 § 1465; the king is also recorded first amongst the witnesses in the document.

*®° For the possibility of problems arising because of forfeiture by the testator, see S 939, 1501. It is unclear whether it is significant that the original will of Athelric did not mention royal consent; however, see S 1218 for a document mentioning royal confirmation of part of the bequest, and note the comments of C. R. Hart, The Early Charters of Essex (rev. edn, Leicester, 1971), 18, on the documentation. "°° See also M. M. Sheehan, The Will in Medieval England (Toronto, 1963), 67-74. *! See below, 128-9. *°* Historia ecclesie Abbendonensis, i. 138, ed. Hudson, i. 212. *?° See Sheehan, Will, 20, for a distinction between post obit gifts, made some time before death,

and verba novissima or deathbed gifts; see also Anglo-Saxon Wills, viii. My own arguments play down the importance of these as distinct categories in the Anglo-Saxon period whilst maintaining that the timing of the gift remained of practical consequence. 4 See also Sheehan, Will, 32. %° $1490. °° See below, 133.

5 LAND 129 least some of the property involved, but might also arise for example from a desire that the wife receive spiritual benefits from the endowments made. Of the wills with just a testatrix, only in one case can the woman be proved to have had a husband at the time of her death.” The Ramsey chronicle mentions a woman making a deathbed gift to the monastery ‘with her husband

permitting’, but it should be noted that this is not a translation of an Old English will, but a later Latin account of the gift, and is therefore to be treated with caution.’** As we will see, a widow might dispose of her morgengifu in a will, and she could do similarly with her inheritance.? Nevertheless, women may have held only temporarily much of the land that they bequeathed, for example land that was to revert to a religious house at the widow’s death.”°° Very prominent, for example, in the will of 4lffleed in 1000 x 1002 are confirmations of her predecessors’ grants, that is presumably of their bequests that were to pass to the Church after her death.*” The prominence of women as makers of wills in Anglo-Saxon England cannot in a simple way be taken to indicate their prominence as landowners or their extensive legal control of lands in other contexts. Bequests could be made orally, as is suggested by the use of the word cwide to mean the written will; cwide’s basic sense is speech or discourse, and from that must have developed the word’s use to mean the written record of the oral disposition.”” Like other grants, oral bequests may have involved formal pronouncement, for example of the donor’s right to dispose of the property concerned, but such pronouncements are generally hidden in the records.”*? Domesday Book provides an interesting example of the oral process: Wulfwine bought this manor [of Selly Oak, Warw.] from the bishop of Chester for three lives in the time of King Edward. When he was ill and had come to the end of his life, he called his son, Bishop Li[...], and his wife and several of his friends, and said: ‘Hear, my friends. I wish that my wife hold this land, which I bought from the church, so long as she lives, and after her death, let the church from which I had it

7 Crick, ‘Posthumous benefaction’, 407-9. °° Ramsey Chronicle, 107, ed. Macray, 175. *? See S 1538. On morgengifu, see below, 238-40. *°° See Crick, ‘Posthumous benefaction’, 412-18; at 418 she concludes that ‘it remains clear that the

key to this peculiar crop of female wills lies not in women’s property rights, as argued for so many years, but in the channeling of property across the generations by both sexes. Bequests to the church, particularly by women, may mark a single stage in a complex series of transactions involving both men and women. 701 $1486.

*9? See also Anglo-Saxon Wills, viii, xii-xiii. *°* See e.g. S 1503; also Sheehan, Will, 51; note Becwe@d.

130 PART I: LATE ANGLO-SAXON ENGLAND take it back; and let him who takes it thence be excommunicated.’ The better men of

the whole shire testify that this was so.

Other bequests survive in documents sharing a distinctive form, often using the term cwide, will: “here in this document it is declared how Ealdorman A:lfheah has declared his will with his royal lord’s consent’.’® Still others are preserved as written agreements.*°° Knowledge of other bequests comes only from later cartularies or chronicles; these may give only a very limited indication of the contents of the will, omitting detailed arrangements concerning the specific gift and excluding grants to beneficiaries other than the church that produced the chronicle or cartulary. Written wills at least on occasion were read out, as in the case of the will of the zetheling Athelstan, which can be dated to 1015: ‘Now I pray all the counsellors [witan], both ecclesiastical and lay, who hear my will read, that they shall help to secure that my will may stand, as my father’s permission is stated in my will.” Written wills recording multiple grants may best be seen as summaries of several earlier, probably oral, promises of bequests, which might also be repeated or supplemented later and finally gone through on the death-bed.’* Specific elements of a will might also need reiteration at various later points, for example when a life-tenure came to an end and the land was to pass to a new owner.**”

It is clear that bequests might face challenges at a later date, for example from a son disappointed in his expectation of succeeding to land that his father had

bequeathed to the Church.” Testators and beneficiaries would therefore wish that arrangements be secure. One method was the obtaining of royal permission or confirmation of the grant: ‘I Wulfwaru pray my dear lord King Athelred, of his charity, that I may be entitled to make my will. I make it known to you, sire, here in this document, what I grant to....’*' Protection might be sought from others too. The will of Athelric, from the second half of the tenth century, closes as follows: “Now I pray Bishop 4:lfstan that he shall protect my widow and the things that I leave her, and, if God grant him longer life than us, that he help to secure that each of the bequests that I have made may stand.”

*°4 DB, i. fo. 177r.

*°° § 1485. The form appears to have been well known by the mid-ninth century, as in the case of the will of the reeve Abba; S 1482. *°° See e.g. $1200, 1202, 1224, 1234, 1455, 1471; Lowe, ‘Nature and effect’, 28. *°7 § 1503.

*°® Lowe, ‘Nature and effect’, 38; Sheehan, Will, 51-2. *°° Note e.g. S 1464. **9 See e.g. S 1408, although the text is questionable; Ramsey Chronicle, 103, ed. Macray, 169-70.

71 $1538. *** $1501. See also S 1490, 1491; Sheehan, Will, 43-4.

5 LAND 131 Bequests were made before witnesses, who might later testify to the dispositions or—particularly in the case of a deathbed gift—to the soundness of mind of the grantor.”" In some cases the terms of a will appear to have been rehearsed successively before various groups of witnesses.”* It may well have been both customary and prudent to make dispositions in the presence of one’s family, important potential supporters or challengers of bequests: ‘This is the last will of Brihtric and his wife Alfswith, which they declared at Meopham, in the presence of their relations.” Perhaps particularly in the case of deathbed gifts it was advantageous to appoint specific individuals to complete the bequests, even sometimes transferring the grant to them to be passed to the intended beneficiary.”* At the same time, such temporary holders might seek to retain the bequests, increasing the need for other protectors and protections. Spiritual rewards were promised for those who upheld bequests, more often, and sometimes at length, spiritual penalties for those who infringed them. Let my children do what they may, they may never set aside the will that I have declared for my soul’s sake.

And whoever shall rightly observe and perform these benefactions and gifts and these written and verbal statements, may the king of Heaven preserve him in the present life and also in the life to come; and whoever shall lessen or infringe them, may God Almighty lessen his worldly possessions and also the glory of his soul for ever and ever.

And whoever shall alter this bequest, may he be a companion in the torment of hell of Judas who betrayed our lord.””

Finally, the very act of writing a will strengthened the bequests. Multiple copies of the will could be made and distributed, as in the case of Thurstan son of Wine: ‘there are three of these documents: one shall go to St Edmund's, and one to Ely, and one shall be in my own household’.”*

*** For a bequest possibly made by witness of a town court, see S 1234. For a charter mentioning deathbed giving with no special further comment, see S 911. Note that S 1389 emphasised that the archbishop of Canterbury was alive and well when he made a grant to the community at Christ Church. *™ This seems the best interpretation of, for example, S 1531, which had witnesses in Norfolk, Suffolk, Cambridgeshire, and Essex. 19 § 1511.

**° Sheehan, Will, 35-7; see also below, 683-4. **7 $1483, 1508, 1495; see also e.g. S 1487, 1535. **8 § 1531. See also e.g. S 939, 1224, 1465, 1471, 1510, 1516, 1520 and 1521 (one copy of each of which went to the king’s treasury), 1527, 1528, 1530.

132 PART I: LATE ANGLO-SAXON ENGLAND Ties between testator and specific beneficiary could be strengthened in further ways. Ecclesiastical beneficiaries might make promises of burial or other spiritual services.” In addition, title deeds to an estate might be handed over to the beneficiary, presumably as a sign of the conveyance of title.””° Brihtric Grim presented to the Old Minster, Winchester, the charter granted by King Eadred for the estate of Rimpton, Somerset, as a supplement for the old charter, which King Athelstan granted. He was to enjoy the estate for life but afterwards it was to go to the Old Minster.” Thus there were various ways of securing bequests. Some, such as the transfer of deeds, might be more binding than others, for example the promise of future spiritual benefits, but the wise donor was likely to combine different methods to maximise their impact. Grants recorded in a will could take various forms.” Some might be simple

gifts, to take effect after the testator’s death. Our sources may exaggerate the proportion of such bequests, as both wills and cartularies or chronicles on occasion omitted more complex arrangements.’*? Other grants could be made that explicitly allowed the holder life-tenure, before the land reverted to the grantee. On occasion it is stated that the life-tenant was to pay rent to the grantee, and obtaining such a life-tenure might also involve a lump payment.”** The grantee profited not only financially but also through evidence of title: Here in this document it is made known that Thurstan grants the land at Wimbish to Christ Church [Canterbury], for his soul and for Leofwaru’s and for #thelgyth’s, for the sustenance of the community after Thurstan’s death and after Ethelgyth’s; and each year, as long as we live, one pound [shall be paid] as sufficient evidence [to fulre sutelunge].>»

If testators and beneficiaries used various methods to ensure the fulfilment of the terms of a will, flexibility might be allowed or negotiated in the application of those terms.”** The fortunate survival of the wills of an Ealdorman Alfgar and

*™ See e.g. S 1523.

*2° See also Lowe, “Nature and effect’, 30; S. E. Kelly, ‘Anglo-Saxon lay society and the written word, in The Uses of Literacy, ed. McKitterick, 36-62, at 44-6. *2" § 1512. See also S 1471, 1506, 1539. Cf. S 1514, where the boc goes first to the widow as life-tenant

of the land and then passes with the land to the church of Rochester. S 1524 allows for the temporary return of the charter to the grantors in certain circumstances. *22' See also Lowe, ‘Nature and effect’, 26.

*2° Lowe, ‘Nature and effect’, 30, notes that of the ten examples of such bequests, only two survive as contemporary single sheets; see also her comments at 33, 35. 224 $1465. *2° § 1530; note also e.g. S 1455.

**° A possible example is S 1464; see also Lowe, ‘Nature and effect’, 42, 46.

5 LAND 133 his daughters, Athelfleed and Alffled, demonstrates this. lfgar left an estate at Cockfield to his daughter A:thelflaed, which after their lifetimes was to pass to Bury St Edmunds.” However, /Ethelflzed’s will reveals her granting Cockfield to her sister Alfflad and Alfflaeed’s husband Ealdorman Byrhtnoth for life, to pass to Bury after Alffled’s death.” Finally Alffled’s will records her granting Cockfield to Bury, “just as my ancestors have granted [it]’.°”°

Certain wills explicitly allowed testators to alter them later: “he who wishes to alter this will, unless it be I myself, may God destroy him now and on the day of Judgment.’”° In other cases, change seems to be associated with the death of beneficiaries, as in the will of King Alfred: Now I had earlier written different arrangements concerning my inheritance, when [had more property and more kinsmen, and had committed the documents to many men, in whose witness they had been drawn up. Therefore I have now burnt the old ones, which I could discover. If any of these is found, it stands for nothing, since I desire that it shall be as now stated, with God’s help.”

It is possible that some of the more general statements that the testator could alter the will should be seen as restricted to the circumstance of a beneficiary’s death or a change in property available for bequest. Another possibility is that alteration could only be made with the consent of the beneficiary. However, documents in the form of bequest agreements suggest an element of revocability concealed

by the wills recorded in other forms. Thus in the early 1030s the king’s priest Eadsige grants this will to the community [of Christ Church] on the agreement that they always give him staunch support and are loyal to him during his life and after his life. And if by any folly they break this agreement with him, it shall be in his own power to decide how he will then dispose of his property.”

It may be that for at least some bequests revocation was possible, maybe depending

on timing, on justification, and on the relative power and support of the parties concerned. On the other hand, in the cases, for example, when a charter had been transferred, the grant would be seen as irrevocable.

*27 $1483 (946 xc. 951). *28 $1494 (962 x 991). *2° $1486 (1000 x 1002). For the later history of Cockfield, see below, ch. 24. *°° § 1531; see also S 1483, 1491, 1499, 1521. See further Anglo-Saxon Wills, xiand n. 2; Sheehan, Will,

45-6; Lowe, ‘Nature and effect’, 36. *°! $1507; see also the will of Athelgifu, S 1497. *92 $1465.

134 PART I: LATE ANGLO-SAXON ENGLAND Patterns of testamentary succession

Finally in dealing with wills, let us return to the question of succession patterns. Some wills may be the product of childless couples, and indeed the lack of obvious heirs may have been one reason for producing a will.** The opening of the will of the reeve Abba, datable to 833 x 839, may be significant here: In the first place, with regard to the land I have, and that God gave me, and that I received from my lords, it is my desire that if God shall give me a child, he shall have the land after me, and enjoy it with my wife; and similarly, that after him my descendants, as long as it is God's will that there be any of them able and qualified to hold the land. If, however, it is my lot not to have a child....”3

The purpose of this will, therefore, is to make provision in case the testator died childless, whilst ensuring that if a child was born, that child’s rights should not be over-ridden. The opening of Abbas will suggests that it concerned all his land. However, it is likely that in many cases wills were not intended to deal with the main portion of the inheritance, and that this helps to explain the pattern of distribution of property. It was not unknown for wills to privilege a son, presumably the eldest. The mid-eleventh-century will of Eadwine of Caddington left various lands, including Caddington, to his son Leofwine.*® It may be that the will was required because Leofwine was a minor, and one of Eadwine’s purposes was to ensure that his son was not brought up by a stepfather. Overall, though, only a minority of lay wills mention sons. One of these concerns only a younger son and in several others sons are not the most prominent beneficiaries. Sons presumably, therefore, were provided for in some other way.”°

*°°" See Sheehan, Will, 78 n. 55; Crick, ‘Posthumous benefaction’, 406-7. *9* $1482.

*°° $1517. Domesday Book shows him holding some but not all of the bequeathed estates.

*°° Provision for younger son: S 1518; son not main beneficiary: e.g. S 1503a (it is, of course, possible that the son was not legitimate). See also Wormald, ‘Kingship and royal property’, 267. Wormald’s argument remains persuasive even setting aside his use of provision for thelwald in the will of Ealdorman Alfred, S 1508. The main provisions were for Alfred’s wife and their daughter. Wormald suggests that Ethelwald was given such limited bookland because he would anyway receive a large amount of other heritable land, that is, folkland. However, the compensatory bookland estates that he was to receive if the king did not allow him the folkland were only of six or ten hides, suggesting that the folkland was not extensive. One possibility is that folkland did not make up all the other land that thelwald was to receive. More likely is that Aithelwald was illegitimate; see above, 103-4.

5 LAND 135 A preference for male successors appears in other wills, particularly when looking beyond the initial beneficiaries.” King Alfred’s will states such a preference, whilst noting the power of the testator to choose female or male: I desire that the persons to whom I have bequeathed my bookland should not dispose of it outside my kindred after their lifetime, and I desire that after their lifetime it should pass to my nearest kin, unless any of them have children; then I prefer that it should pass to the child in the male line as long as any is worthy of it. My grandfather had bequeathed his land on the spear side and not on the spindle side. If, then, I have given to anyone on the female side what he acquired, my kinsmen are to pay for it, if they wish to have it during the lifetime [of the holders]. Otherwise it should go after their lifetime as we have previously stated. For this reason I say that they are to pay for it, because they are receiving my property, which I may give on the female side as well as on the male side, whichever I please.”

It seems likely that such restrictions on bequests were one in a range of strategies used to control the descent of lands and to shape family landholding. Our surviving records may provide only a hint of what once existed; if the strategy were successful, and if sufficient children were born, the lands would not pass to the Church and hence the documents detailing the family arrangements would not survive. Other elements of control of future descent appear in wills. Good behaviour might be specified, as in the will of Athelgifu: the land at Thrupp she [probably Leofrun, A:thelgifu’s kinswoman] is to give after her lifetime within her own kindred on condition that she gives her a pledge and lays aside all anger and she does not ask for anything more. If she is not willing, it is to be divided among her children.”

Complicated provision might be made for more than one generation ahead, as in the mid-tenth-century will of Alfgar: I grant the land at Eleigh to my younger daughter for her lifetime, and after her lifetime to Byrhtnoth for his lifetime ifhe lives longer than she. Ifthey should have children, then I grant it to them. If they have none, then I grant it to my daughter /Ethefleed after their lifetime, and after her lifetime to Christ Church at Canterbury for the use of the community.”“°

At the same time, flexibility might be retained to incentivise good behaviour within the family. The will of Wulfgar in the 930s recorded that he would ‘verbally [on wordum] bequeath Ascmere to such of my young kinsmen as obey me best’.**"

These aspirations for future control can be set alongside both the disputes that *°7 Note e.g. S 1482, 1508, 1517. 798 § 1507. 799 § 1497.

749 $1483. *** § 1533. For another instance, see S 1522.

136 PART I: LATE ANGLO-SAXON ENGLAND arose from wills and the evidence of flexibility in the carrying out of testamentary provisions. Such attempts at control of the future descent of lands are one notable contrast of the Anglo-Saxon with the Anglo-Norman documentation.

6 ALIENABILITY Much of our evidence for Anglo-Saxon land law comes from gifts or sales of land, recorded instances of the latter being significant in number before and during our period.”” Such alienation would normally be preceded by negotiation and possibly more formal agreement; misrepresentation of title to sell or non-fulfilment of the agreement might require compensatory payment.’ Next would come conveyance, which itself might be followed by further payments.*** Such points are well illustrated by an example from the Libellus £thelwoldi. /lfwold Grossus and his wife offered to sell to Abbot Byrhtnoth of Ely all their land in Chippenham.”* They came to him at Horningsea, and when they were there, the abbot asked them how many hides they had in Chippenham and at what amount they valued them. Accordingly, they said and affirmed that they

had three hides there. At length, therefore, they agreed that the abbot would give them 1oos. for each hide, and they arranged a set time, namely eight days later at Chippenham, when the wife of 4lfwold would go there to receive 15 pounds and hand over to the abbot the three hides, entire and free from claim, for it was she who had the greater right in that land, through her marriage to another husband.

Freedom of alienation was a characteristic of bookland, quite probably in distinction to the kin’s claim to other forms of inherited land.*4° Such general alienability is suggested by efforts to restrict it, notably in the use of bookland for the pursuit of family strategies; to render such strategies effective, and perhaps to counter kin concern about freedom to alienate, specific limitations on alienability were laid down with regard to particular pieces of bookland. This is most clearly illustrated in a rare mention of land law within a legislative text, in Alfred’s laws: The man who holds bookland, which his kinsmen left to him—then we establish that he may not alienate it from his kindred if there is a document or witness that he *" See J. Campbell, “The sale of land and the economics of power in early England: problems and possibilities’, in his Anglo-Saxon State, 227-45. **°" See Kennedy, ‘Law and litigation’, 154-6. *** For problems arising from such arrangements, see e.g. Liber Eliensis, ii. 11, ed. Blake, 84-6.

*4° Liber Eliensis, ii. lla, ed. Blake, 89-91; as usual, it is possible that the land concerned was bookland. **° See below, 138-9. See also above, 135, below, 139, on restrictions imposed on alienation of bookland.

5 LAND 137 was prohibited from doing so by those men who originally acquired it and by those who gave it to him; and it is then to be declared in the witness of the king and of the bishop, in the presence of his kinsmen.“”

Unless such specific reservation was made, the kin should not have control of

alienation of bookland, although it might be prudent to make grants in the presence of kin.*4* Various documents record the defeat of challenges by kin to alienations that included bookland, a notable and not necessarily atypical example being King Alfred’s will.’4? It may also be to the alienation of bookland and the danger of kin challenges that a clause in Athelred’s Wantage laws is referring when it states that ‘the purchase of land, and the lord’s gift that he has the right to give...are to stand, so that no-one may pervert them’. As we have seen in our discussion of wills, royal consent is sometimes recorded

for bequests of bookland. Similar consent may have been obtained for grants between living parties, although again it is frequently difficult to tell whether a grant involved bookland. One possible instance from 918 x 924 is a grant by the royal thegn Goda of four hides by hereditary right to Wiohstan, “because he had married his daughter’. The grant was made ‘with the counsel and permission of King Edward’. Wiohstan later set out for Rome with his wife and son, and, having received permission from King Athelstan, sold ‘that land of heritable hides’ ‘in perpetual inheritance’ to Bishop Wulfhun of Selsey. To secure the purchase, the bishop asked Athelstan that the king’s and his leading men’s inscription be placed on the document recording the transactions. The king did so, and laid down the rewards for those adding to the gift, the dreadful penalties for those harming it. As with royal consent in wills, this desire for royal consent may have less to do with the validity of the gift than with reinforcing the effectiveness of the grantor’s wishes. An alternative possibility is that the king was agreeing or confirming that the land was in fact bookland and therefore freely alienable.*”

*“7" Af, 41. The declaration in the presence of king and bishop is presumably being made by whoever

is contesting the alienation. It is possible that the clause derives from a particular case, or could even be related to the bequests, dispositions, and disputes mentioned in Alfred’s will, S 1507, on which see above, 135.

48 Eig. S511. **° § 1507; see also S 1497, the will of Athelgifu. Note also cases where the kin took direct action to reverse an alienation, which may indicate a clash of perception regarding the alienability of land between donor and disappointed heir; e.g. S 1457. *°° III Atr, 3; see also Northu, 67. 1. The term for purchase of land is the Scandinavian term landcop. *°" $1206; see further the comments in Charters of Selsey, ed. S. E. Kelly (6 Anglo-Saxon Charters, Oxford, 1998), no. 16.

*°* Note S 1187 (dating from 804): ‘there Archbishop Athelheard directed me and judged with the witness of King Cenwulf and with his great men in the presence of the whole synod when they

138 PART I: LATE ANGLO-SAXON ENGLAND Could lessees make grants from loanland? The danger from the lessor’s point of view was that this might effectively extend the lease, as well as producing undesired tenants. Very occasional evidence suggests that the lessee could transfer the land. In 889 Bishop Weerferth of Worcester obtained from the community of his church a lease of the land at Elmstone Hardwicke for three lives. Some years later he himself leased it to a kinswoman, again for three lives.”* It should be noted, however, that the bishop is careful to state that he did so ‘with the permission of the community of Worcester’. Effectively he was being allowed to establish a new lease. Domesday contains no instance where a leaseholder is recorded as having power of alienation, and on occasion spells out that a man could not alienate land because it was held as a lease.” Leases were often also clear in their specification that the movables on the leased land should not be alienated or lost in some other way. Lands are to return to the lessor ‘stocked as they are’, or ‘with produce and men and everything as it stands, just as when they let it to him’.”® This no doubt contrasted with the control over movables granted by a transfer of bookland.

The alienability of bookland need not mean that other types of land were always inalienable. Two wills refer to frescet or freschot, apparently meaning free

land, in the context of lands alienated to the Church. The term could refer to certain lands one characteristic of which was alienability, but which were not booklands; however, such a suggestion must be very tentative.”*°

Another possibility is that acquired land was more freely alienable than inherited land. Such a distinction would fit Continental practice.”” There is no clear pre-1066 evidence for the existence of such a norm in England, although the general distinction between inheritance and acquisition was made. Thus Alfred’s will refers to land held by King AAthelberht, “both that inheritance and what he had obtained from the use of our [i.e. Alfred and his brother A4thelred] joint property, as well as that which he had himself acquired’.** It could therefore be significant that documents with some frequency state how lands now

perused my documents, that I was free to give my land and title-deeds wherever I wished’. See also Maitland, Domesday Book and Beyond, 299. 53 § 1283, 1415.

*°* See e.g. DB, i. fo. 257r; cf. above, 119, on DB, i. fo. 72r; Baxter, Earls of Mercia, 232-4, ‘Lordship and justice’, 396-8. *°° $1391, 1420; see also e.g. S 1426, 1468, 1476.

*°° § 1516, 1525; note Whitelock’s comments in Anglo-Saxon Wills, 200.

*°7 For arguments in favour of the relevance of the distinction, based largely on Continental practice, see Wormald, “Bede and Conversion’, 22; for words of caution, see Reynolds, Fiefs and Vassals, 328. *°8 $1507.

5 LAND 139 being granted had been acquired.” We also have one reference to ceaplond, that is purchased or acquired land, in the context of a bequest to a wife.”*° On the other hand, such statements may only indicate title, just like statements that the possession had belonged to or been acquired by the donor’s father.*” The closest to a statement that acquired lands were more alienable appears in the will of ACthelgifu, although it should be noted that at least some of the lands concerned were bookland: ‘all the manumissions and all the almsgiving that is stated here she wishes to be her alms because they were her lord’s acquisitions [begeto].*® This still does not amount to a statement that the grants were permissible on the grounds that they were from acquisitions. Greater freedom to alienate acquisitions rather than inheritance remains plausible but unproveable. If land other than bookland or loanland was being alienated, was consent of other parties required? This probably varied with circumstances, notably the relationships in which grantor and land were involved. Royal consent may have been particularly necessary for the non-royal holder of lands closely associated with the king, which we have suggested above may have constituted folkland as well as, for example, comital lands.” Also, Domesday Book records that ‘if anyone wished to depart from the city [of Hereford], he could, with the consent of the reeve, sell his house to another man who was willing to owe service for it. The reeve had the third penny of this sale’.”% As for seignorial consent, Domesday sometimes states that a man could sell or give land with the permission of his lord.** On other occasions it states that a man could not give or sell land, and this may relate to leased lands and also other types.” It may be that such simple statements of prohibition conceal the possibility of alienation with seignorial consent. The extent and the circumstances of such seignorial control must remain uncertain. What of consent by kin? The freedom of alienation stressed by charters may

indicate that non-bookland faced restrictions on alienation rather than being completely inalienable, let alone being property owned by the family. The type of limitation on grants of bookland mentioned in Alfred's laws may indicate assumptions that derive partly from non-bookland practices. Potential later challenges °° Note e.g. S 1465, 1498, 1503, 1504, 1509. We cannot tell which of these lands were bookland. *°9 § 1527.

7°" See e.g. $1491, 1501; again it cannot be told if the property was bookland. Note that S 1538 states

that the grant was made for the souls of the grantor’s ancestors, from whom the property came. See also Becwed. *°? § 1497. Begeto is an otherwise unrecorded noun, from begietan ‘to acquire’. *°2 See above, 107. *°4 DB, i. fo. 179r.

*°° See e.g. DB, ii. fo. 260r: ‘and seven men who can sell their land if first they offer it to their lord. *°° See also above, 115-20, on dependent tenure; Maitland, Domesday Book and Beyond, 46-7.

140 PART I: LATE ANGLO-SAXON ENGLAND by kin might encourage the obtaining of kin consent—or at least testimony—for a grant, or allowing kin to make a claim when the grant was made or at least the grantor still alive: A certain widow called scwyn of Stonea came to Wulfstan of Dalham, and with her came many of her relatives and neighbours. In the presence of them all, she gave Stonea and the fishery that she had there to Wulfstan. Similarly, Ogga of Mildenhall arose and, when silence had fallen, said “Most dear people, I want you to know that after my death I give to St Ethelthryth [i.e. Ely] one hide of land in Cambridge. On hearing this, Wulfstan got up and, in the presence of them all, gave to St Ethelthryth the land and the fishery of Stonea, which the aforementioned widow had given him.

Wulfstan then persuaded Ogga to give the hide in Cambridge to St Athelthryth immediately, in the presence of everyone and free of claim. Moreover, the church of Ely was vested or seised of that land free from claim for many years, that is, so long as Ogga was alive. But when he died a relative of his, called Uvi, claimed that land. Therefore people came from all over the place to Cambridge, and

Wulfstan of Dalham was present there. When the claim that Uvi made had been heard, they discussed the case this way and that, and judged that Uvi give 4m. as penalty [pro forisfactura], because he was claiming land to which he had never made a claim when Ogga was alive.”

What we do not have, however, are documents recording land grants and explicitly mentioning the kin’s consent, or evidence for a practice that allowed kin pre-emptive purchase of alienations. The late Anglo-Saxon evidence places less emphasis on kin participation in alienation than does that from, for example, contemporary France.”® Besides the obtaining of consent, there were further ways of securing alienations.

Grants often were made in courts or other gatherings. A vernacular document recording a grant of swine-pasture in Kent ended as follows: ‘the witnesses of this

are Bishop Lyfing and Abbot Alfmzr and the community at Christ Church and the community at St Augustine's and Sired and Elfsige cild and Ethelric and many other good men within the city and outside it’.°? Other witness lists mention all the thegns of a specified shire, probably indicating a transaction taking place in

*°7 Liber Eliensis, ii. 18, ed. Blake, 94. There is no evidence as to whether the hide at Cambridge was bookland. Also S 1497, the will of £thelgifu.

*°® Note the comments of Wormald, ‘Kingship and royal property’, 277, Reynolds, Fiefs and Vassals, 334-5. Evidence on alienability at lower social levels is too limited to allow any firm conclusions, but see Faith, Peasantry, 160, on the retrait lignager (i.e. the kin’s pre-emptive purchase) among the peasantry. 7°? § 1220; see also S 1400, 1478.

5 LAND 141 a shire court, and on occasion that is specified as the venue.’”° It may well be that some particularly diverse witness lists demonstrate not particularly diverse gatherings but rather a series of occasions on which a transaction was witnessed.”

A crucial element for bookland appears to have been the transfer of the charter itself.” Such transfer at least on occasion involved ceremony. Following a dispute, Eadgifu, with the leave and witness of the king and all his bishops, took the charters and gave the lands to Christ Church, and with her own hands laid them on the altar for the perpetual benefit of the community and for the repose of her soul; and declared that Christ Himself with all the heavenly host would curse to all eternity whoever should divert or curtail this gift.’”

Whether some other form of ceremonial livery was needed for a valid grant in addition to, or rather than, a ceremonial transfer of the document is not clear from the evidence.” On other occasions, less formal records of a grant were made. A diploma of Edward the Elder granting land to a certain &thelwulf is preserved in a twelfthcentury Winchester cartulary. In its surviving form it includes a vernacular passage stating that this writing makes known the agreement between Deormod and A:thelwulf about the land at Wylye, that is, that Athelwulf gave it to Deorswith into her own possession to deal with as was most pleasing to her both in her life and after her life, and gave her the charters on the same day on which they were given to him, in the witness of these men.

If the vernacular passage formed part of the original document, the charters to which it refers must be earlier texts relating to the estate. On the other hand, the passage may have had a separate existence, and have been inserted into the charter in the process of copying, in which case the charters would include Edward’s.””

27° See e.g. S 1469, 1473. Note also the marriage agreement, S 1461, discussed below, 231. *7" See e.g. S 1478. As in transactions concerning bookland, sureties may also have played a part in

securing grants of other lands, as may the tracing of boundaries. *72 See also above, 132, on transfers of charters in the context of bequests; 97, on the evidential desirability of charters. See S 1456 for the surrender of a charter as part of a dispute settlement. *78' § 1211 (on which see also above, 82-3). S 553 also links the placing on the altar with the pro-

nouncement of spiritual penalties for those infringing; on the difficulties of this document, see Abrams, Glastonbury, 10-12, 211-14. Note also DB, i. fo. 177v. *7* Turner, ‘Bookland and folkland’, 374, argued that livery of seisin was the essence of the transfer

of bookland. For the placing of symbolic turfs on the altar of the recipient church, see e.g. Ramsey Chronicle, 44, ed. Macray, 74-5. *79 § 362; Keynes, “West Saxon charters’, 1145-6; the agreement may have related to a marriage. See also e.g. $ 1216, 1292, 1418.

142 PART I: LATE ANGLO-SAXON ENGLAND It anyway gives a sense of the type of record, less formal than a diploma, which might exist. We also have royal writs announcing to the shire court transactions such as a sale of land by a layman to a bishop in the king’s presence.”” For greater security, and to supply solemnity, documents might be preserved in a sacred place: “Here in this Gospel book is the declaration relating to the half hide at Potton [Beds.] which Alfhelm gave to Leofsige, his goldsmith, to dispose of during his life and after his life as pleased him best.’””7 Sometimes the very form of the document

could increase security. The following was probably a tripartite chirograph: ‘Here it is declared in this document how Godric of Bourne acquired the land at Offham [Kent].... There are three of these documents: one is at Christ Church and the second at St Augustine's and Godric had the third in his possession.”

A further element in conveying land, at least at the time of the first grant, may have been the tracing of the bounds, as recorded in the boundary clause of a charter. Late in the reign of Athelred II, Bishop Athelstan of Hereford bought five hides of land from Leofric of Blackwell, with the king’s permission and by witness of the two archbishops and all the counsellors. He did so ‘unopposed and uncontested, to give and grant them before or after his lifetime to kinsmen

or strangers, whichever he preferred. And the king commanded Archbishop Wulfstan to draw up a charter concerning this, and gladly entrusted charter and land to Bishop Athelstan.’ However, a claim was later brought concerning part of the estate, and the case came to the shire court at Worcester. The shire decided for the bishop as he had bought it unopposed and uncontested, and set a day for him for going to the land, and the same people who had traced the boundaries for him [should do so again’”], and they said that if the boundaries were the same as when they were first traced, the bishop rightfully owned [rihtful ahte] the land. Then the bishop and the man who sold him the estate and those who had been his witnesses came to the appointed place, and [the claimants] Wulfstan and his son and their companions came, and they all rode around the boundaries, as they had been first traced for the

276 Bg $1116.

*77 § 1218a; land at Potton was disposed of by will, S 1487, which could indicate that it was bookland. See also S 455, 813, 1464, 1466; Anglo-Saxon Charters, ed. Robertson, no. 84; D. N. Dumville, Liturgy and the Ecclesiastical History of Late Anglo-Saxon England: Four Studies (Woodbridge, 1992), 119-27.

*78 § 1473 (although note that DB, i. fo. 1r, refers to the purchaser as an alodiarius, so the transaction may well concern bookland); see also above, 99, and e.g. S 1469. Some of the documents display a degree of common form, for example an opening phrase such as ‘here is declared in this document’. Note also e.g. S 1456, a vernacular record of a dispute settlement using this opening. On chirographs, see Lowe, ‘Lay literacy’.

*” There is a lacuna in the surviving text at this point.

5 LAND 143 bishop, and all who were there said that the bishop rightfully owned that land, and the man who sold him the land acknowledged it to be so.?*°

The case therefore makes clear that a tracing of boundaries had accompanied the original grant of the fives hides at Inkberrow. It also appears that opportunity was offered for parties to raise an objection at the time of the transfer.”** During negotiations about a grant, but then perhaps more formally at the time of the grant itself, conditions might be specified, notably on alienation of the land.**” Also important were the witnesses to the grant, as is revealed by their role in the settlement of the Inkberrow dispute. Royal writs provide written announcement of grants to officials and shire courts.”® In addition, we have some mentions and lists of people acting as sureties (festermen or anburge) for land transactions, often in the context of sales.**4 Overall, the case concerning Stonea mentioned above illustrates well many

of the ways in which grants were secured.** The initial grant took place in a gathering of the people of two hundreds, at the entrance to the monastery of Ely, where Wulfstan of Dalham was holding a plea. The widow brought with her many kin and neighbours and made her grant before everyone. Ogga followed

with his grant, and silence was obtained so that his words could be properly heard. Wulfstan made his gift and carried out further negotiation with Ogga in the same public fashion. The desire for publicity and ceremony is clear.

7 CHURCH LANDS Churches held and granted most of the various types of lands described above. Here we are concerned with any peculiarities of ecclesiastical control of land. The language used in charters to describe ecclesiastical landholding was not distinctive in the way it would be in the twelfth century. Whilst there are some genuine

early diplomas describing churches holding land, for example ‘in ever-lasting

78° $1460. See also e.g. Liber Eliensis, ii. lla, ed. Blake, 89-90. *8" See e.g. Liber Eliensis, ii. lla, ed. Blake, 89. *8* See above, 136-7. 78°" § 988, 1105, 1115 (the latter two also providing for the drawing up of a charter).

*8* See e.g. S 1448 (Peterborough); for Yaxley and Farcet being bookland, see S 595, and note the comments in Anglo-Saxon Charters, ed. Robertson, 329-30. See also S 1452 (Devon), and AngloSaxon Charters, ed. Robertson, no. 40 (Peterborough), of which certainly the former may concern bookland (note S 389); Liber Eliensis, ii. 7, 19, ed. Blake, 80, 95.

“8° See also above, 141-2, on methods of securing grants of bookland that may also have been applicable to other forms of landholding.

144 PART I: LATE ANGLO-SAXON ENGLAND alms’,”*° those in our period show no regular distinction between churches holding in alms or in perpetuity and laymen holding heritably.’*”

A distinction was certainly made between the personal land of a bishop or abbot and the land of his church. Grants were made to great churchmen, to leave to an heir, or to give to whom he wished after his death.”** A charter of King Edmund granted to Alfred, bishop of Selsey, a portion of land of his episcopate

that Alfred and his predecessors had possessed ‘by episcopal right’. Edmund now granted it ‘to possess as an inheritance’.**® Alfred was to hold for life, and afterwards could leave it to whom he wished. Here we seem to have a distinction between land associated with the office of bishop and that which was fully

under the bishop’s control as an individual. We also see lands being granted to lesser churchmen, even monks, as individuals. Bishop Oswald of Worcester leased lands for three lives to a monk named Wynsige, lands that Wynsige’s father had had.”°°

In contrast, there were also lands especially associated with the church or the monastic community, as opposed to the bishop or abbot. The community of Worcester ‘booked’ five hides at Elmstone to Bishop Weerferth for three lives.*™ Some lands were said to be held for a specific purpose, as when grants were made to the refectory. In the 1050s Earl Leofric of Mercia and his wife granted two estates to the refectory of the monastery of Worcester. The gift was to belong freely to the refectory for all time, and no-one was to alienate it.” If there was not yet the type of strict division of property between prelate and community that would emerge from the late eleventh century, the idea of certain lands being particularly associated with one or other was already present in late Anglo-Saxon

England.” Earl Leofric’s charter specifies that his grant should not be alienated from Worcester. The inalienability of Church property was laid down in the canons,

78° See e.g. S 206 (from 855), 1438 (from 838). *87 See e.g. S 1292; cf. below, 369. “88 See esp. S 418a, 695, 934, 950, 994, 1050.

78° $506. Note also VI As, 1.1, distinguishing ‘bishop’s land’ from “bookland’. 7° S$ 1336. See also above, 133, on S 1465, the will of the priest Eadsige, who was to have life-tenure of an estate even though he had become a monk. 79" $1283.

*°? $1232. The document may in fact record a restoration rather than a new gift; see Anglo-Saxon Charters, ed. Robertson, 461. See also e.g. S 1289, 1389. Note also e.g. S 991, 1033, 1427,1465, 1471, gifts

for the food and/or clothing of the church community. S 427 records a grant by King Athelstan to the Old Minster, Winchester, for food and clothing. It refers to beodland, land providing for the table, i.e. food. For beodland, see also S 1440.

*°° On the later development of the division between prelate and community, see below, 370-1.

5 LAND 145 for example in Wulfstan’s collection, drawing on a decree of the ninth council of Toledo: If any bishop or priest or servant [ministrorum|] takes away anything from the possessions

[rebus] of the church, which have been bestowed in any place by the faithful, he shall both restore with shame what was wickedly seized and undergo the sentence of a year’s excommunication.”

The reform leader Athelwold, in an account of monasticism in England, addressed his successors, stating that nor is any one of them to presume through the devil’s prompting or through any avarice to diminish God’s patrimony or with any ill-will to seek how it may be diminished, either in estates or in any other possessions, lest through poverty and penury the fire of holy religion should become lukewarm and completely cold.

Likewise he instructed abbesses ‘that none of them presume senselessly to give Gods estates either to their kinsfolk or to secular great persons, neither for money nor for flattery.” Many Anglo-Saxon documents, including diplomas, wills, and writs, specify inalienability, sometimes cursing those who did grant away lands.”° Some qualifications were made to such a prohibition of alienation. In 900

a woman named Ceolwynn bequeathed land at Alton to the community at Winchester. The community was ‘never to give it away from their refectory for money, unless they give it in return for other land that is nearer and more convenient for them’.”” Thus exchange may well have been more acceptable than outright alienation, and have been justifiable in terms of convenience. At other

times, necessity might justify alienation. A charter of Ethelred II seems to legitimise Archbishop Sigeric of Canterbury's sale of land to Bishop Aiscwig of Dorchester through the archbishop’s need to obtain money to pay off the Danish raiders who had been threatening to burn down Canterbury cathedral.’ A second qualification was that lands could be temporarily granted; hence the attraction of leases. A writ of Edward the Confessor for Giso bishop of Wells may well be referring to some sort of leasing arrangement when it states that ‘if any land here has been taken away from the bishopric, I wish that it be restored or that someone obtain it on such terms as may be arranged with him’.° However,

*°* Wulfstan’s Canon Law Collection, Recension A, 42, ed. Cross and Hamer, 84. °° Councils and Synods, I, no. 33 (at pp. 152, 153). 7° See e.g. S 997, 1067, 1073, 1092, 1105, 1116, 1496, 1509, 1533; note also S 1102. 297 § 1513.

*°8 § 882; the land returned to the archbishopric, see S 1378, DB, i. fo. 143v. See also S 933, a document of questionable authenticity, for alienation because of necessity arising from Danish attack. 299 S111.

146 PART I: LATE ANGLO-SAXON ENGLAND at times doubts seem to have been expressed as to the acceptability even of temporary grants. Take the following lease of about 900: I, Bishop Denewulf, inform King Edward my lord about that land at Beddington, which you desired that I lease it to you. I have then, my dear lord, now procured from the community in Winchester...that they grant it to me with good will, that I may give it to you by charter for as long as you live, whether to possess yourself or to lease

to whomsoever you prefer.... Then the bishop and the community at Winchester beseech that in charity for the love of God and for the holy church you desire no more

land of that foundation, for it seems to them an unwelcome demand; so that God need blame neither you nor us for the diminishing in our days, for there was very great injunction of God about that when men gave those lands to the foundation3°°

Here at least resort to a life-lease apparently was not seen as a solution for the constraint of inalienability.

If Church lands were alienated, the prelate often obtained the consent or participation of the community of the church. Around 900, Bishop Weerferth of Worcester leased lands for three lives to a certain Cyneswith, and the lease states that ‘all members of the community went to my room in Worcester and gave me their signature [hondsetene] to this agreement.” In addition, documents sometimes record the king's consent to grants of Church lands, including exchanges,” and leases.3® Indeed, many Worcester leases mention the consent of the king, the earl, and the church community. As already discussed in the context of the alienation of bookland, royal consent strengthened the gift, even if it was not required to make it valid.3”4

On other occasions, royal charters record churches granting lands or indeed present the king as the grantor2° A document probably of 961 states that Bishop Brihthelm and all the community in Winchester in the Old Minster lease the land at Kilmeston to &thelwulf, with the permission of King Edgar and the witness of all the counsellors whose names are recorded above, and likewise of each of the communities both of priests and of nuns here in the town.

*°° § 1444 (the first part being in Latin, the latter in Old English). Communities may have been particularly concerned about their heads making grants to relatives or other favoured people in return for low or no dues, or in return for payment that went only to the head not the community. °°" $1283. For further instances in leases, see e.g. S 1280, 1281, 1299, 1362, 1366, 1372, 1423, 1426. $1286

records a gift by the bishop and familia of Winchester to King Edward the Elder, to leave to whatever heir he wished. Particularly given that the texts only survive in copies, it is unclear how significant is, for example, the omission of explicit mention of the consent of the church familia in e.g. S 1300 and 1302. °°? $1292, 1376, 1377; note also S 1449. °°? See S 1297, 1299, 1300, 1302, 1303, 1305, 1310, 1326, 1332, 1369, 1372-4.

°°* See above, 137; S 1422 is an unusual but interesting case. Note the arguments of Campbell, ‘Place of Alfred’, 11, concerning changes starting in the time of Alfred’s grandfather that increased royal power over Church lands. °°? See S 385, 445, 882.

5 LAND 147 This Old English text, which goes on to specify that the lease was to last for two lives after Ethelwulf, was probably an addition to a royal diploma concerning the same transaction: I, Edgar, king, governor and ruler of the whole of Britain, have given to a certain faithful thegn of mine,... thelwulf, ten hides in the place to which the inhabitants of that region assigned of old the name of Kilmeston, with the permission of Bishop Brihthelm and of the community of the church,...so that he may have and possess it as long as he lives, and may leave it to two heirs after him, and after the lives of the three of them he shall leave it to the church of St Peter, by which it was granted before3°°

In the diploma, the king has presented a lease by a church as a lease of his own.

8 CONCLUSION Much remains obscure in the history of late Anglo-Saxon land law, particularly outside the best-documented aspects of bookland and loanland. The degree of regional or, particularly at lower social levels, more local variation in custom is impossible to establish. It seems certain that the origins of northern tenures such as drengage are pre-Conquest’”” However, it is far from clear, for example, that folkland existed throughout England or even outside Wessex and Kent. The

terms on which Scandinavian settlers distributed lands amongst themselves remain obscure.” It is important to avoid a picture of late Anglo-Saxon landholding that overemphasises abstract and distinct rules of law. For example, involvement of both husband and wife in the making of a will may not have been a matter of legal requirement but of the desire that both receive spiritual benefits3° Likewise, it may be misleading to seek universally applicable rules, for instance in relation to kings’ powers in relation to Church lands; the king may, for example, have had a special relationship to the lands of the Old Minster, Winchester.° Furthermore, practical pressures may have brought different forms of land-

holding closer together. We have seen the pressures from the laity to ensure continuing succession to loanland, and indeed efforts to prove that the lands °° $ 693. °°” See below, 340; for a pre-Conquest reference to drengs, see S 1243. For northern landholding, see also S 146la. °° However, see above, 108 n. 80, on S 168.

°°? See above, 128-9. See also above, 127-8, on the obtaining of royal consent for bequests. **° See above, 110, 116, 146.

148 PART I: LATE ANGLO-SAXON ENGLAND concerned were in fact not leased but heritable. Likewise we have seen the likelihood that documentation was increasingly used for land other than bookland or loanland. Other pressures, however, may have refined and strengthened definition of different types of landholding. One may have been an increasing distinction between the position of king and the specific occupier of that posi-

tion. Another may have been the tenth-century monastic reform movement, for example emphasising that Church lands should not be permanently alienated. The ecclesiastical acquisitions, and the disputes that followed, may have forced parties to make explicit their assumptions concerning landholding, just as would the Church reform movement of the later eleventh and the early twelfth centuries. We have also seen that there were elements of dependent tenure in Anglo-Saxon England. This would certainly have been the case at lower social levels, and also existed more widely through leases. However, it also appears that any hierarchy of tenure was limited, perhaps at most covering lessor, lessee, and peasant holder of land. This situation the Norman Conquest would crucially change.

Movables

A NGLO-SAXONS made a distinction between movables and land.‘ Both, in differing ways, were clearly very important in the economy and in social relations. However, because of both the shortage and the nature of the evidence, the sketch put together in this chapter is once again likely to hide geographical variation and chronological change. Narrative material for law regarding movables is extremely limited. The laws themselves largely concentrate on sales and theft.” Even regarding sales, it is often hard to tell whether laws of different kings can be conflated to give a general picture or should be taken to indicate changes in procedure. The prime concern of these laws was probably theft of a significant number of livestock, and their removal and possibly their disposal in a quite distant place. Local people might find individual animals distinguishable by natural features or artificial marks. Such local knowledge might be significant when dealing with a dispute between neighbours, but was unlikely to deter the larger-scale team of cattle rustlers’ This is not to say that theft on a lesser and local scale was not a considerable worry; loss of goods might lead to grave hardship or even death when margins above subsistence were small. However, such offences may have been the focus not so much of the laws on sales of movables but of the oaths against theft and the severe punishment of offenders.‘

* See T. M. Charles-Edwards, “The distinction between land and moveable wealth in Anglo-Saxon England’, in Medieval Settlement, ed. P. H. Sawyer (London, 1976), 180-7, at 180: ‘féoh and sceatt stand

for moveable wealth, or particular kinds of moveable wealth, whereas land has much the same range of meaning as in modern English’. * See also below, ch. 7. For matters that would later come under the classification ‘contract’, see below, ch. 26. * Cf. above, ch. 4, on the use of writing to record at least some transactions; there is no evidence for

the use of writing to record livestock transactions, and the emphasis is very much on testimony that might subsequently be presented orally. * See below, ch. 7.

150 PART I: LATE ANGLO-SAXON ENGLAND

1 OWNERSHIP Various objections can be raised to applying the term ownership for movables in the Anglo-Saxon period and later’ It has been suggested that the posses-

sor of movables had only a right in personam, against another who gained possession from him, lawfully or unlawfully, not a right in rem, to the thing good against the world. If the movable then passed to a third party, the original possessor had no action against that party whereby he could immediately obtain the disputed goods. Not the original accuser but the accused looked to the person from whom he had obtained the goods, regarding his right to them. In addition, the second, third, and subsequent parties possessing goods originally obtained unlawfully would have protection against all but the person from whom the goods had been unlawfully taken, who would have to proceed

in the fashion just outlined. In this sense rights to movables were not good against the world. However, there are strong reasons to refer to ownership of movables. First, not to do so is to neglect the conceptions of people at the time. Not only did they hold in a simple sense that movables belonged to someone, but they could also distinguish the extent of the rights of an owner from those of one in possession as servant, bailee (one temporarily entrusted with goods), or distrainor. Second, such questioning of ownership concentrates on one of a putative owner's various rights, the right to recover the property by action. He might enjoy other rights associated with ownership, for example sale or waste. Third, even if the person unlawfully dispossessed had to start a process potentially involving a series of claims between successive possessors, he might view this as a single if lengthy process of proof. Therefore he can again be seen as an owner with a right to recover.

2 CONTROL OF MOVABLES Owners had responsibility for the control of their movables. Issues of valuable grazing resources and the potential harm to crops, animals, or even people,

> Note the discussion in Pollock and Maitland, ii. 152-83, some but not all of which points are touched upon in what follows. Note also Pollock and Maitland, ii. 151-2, 178-9, on the pecuniary nature of chattels.

6 MOVABLES 151 made stray or uncontrolled beasts a significant problem. Some straying beasts might, according to Ine’s laws in the late seventh century, be slain by the person who found them on his land, although later law allowed only seizure of the beast until compensation was paid.® Dogs might need to be fierce for protection, pursuit, or hunt, but also required control. Alfred’s laws contain the provisions that if a dog tears or bites a man, 6s. shall be paid for the first offence. If its owner continues to keep it, 12s. shall be paid for the second offence, and 30s. for the third. If the dog disappears in any of these offences, this compensation must nevertheless be paid. If the dog commits more offences and he still keeps it, he must pay compensation for whatsoever wounds that the dog causes, according to the full wergeld.’

There was also concern about a man’s weapons being used by another in a wrong.

Alfred's laws’ main target was the accessory who provided a weapon, but they also mention the possible liability of sword-polishers and smiths who took in other men’s weapons and tools: if anyone lends his weapon to another that he may kill a man with it, they may, if they wish, join to pay the wergeld. If they do not join, he who lent the weapon is to pay a third part of the wergeld and a third part of the fine. If he wishes to clear himself, that in making the loan he was aware of no evil intent, he may do so. If a sword-polisher receives another man’s weapon to polish it, or a smith a mans tool, they are both to give it back unstained [i.e. without having been used to commit a wrong] just as either of them received it; unless either of them had stipulated that he need not be liable to compensation [angylde] for it.’

It is conceivable, although unproveable, that such decrees, or elements within them, may have arisen from specific cases. The exceptional appearance of such specific issues in the laws highlights our ignorance of many other aspects of the law relating to movables.

° Ine, 42.1; see F. A. Enever, History of the Law of Distress for Rent and Damage Feasant (London, 1931), esp. 29-31, 77, 118, 120. Note also concern about fraudulent claims of theft arising from cattle straying; VI As, 8. 7-8. ” Af, 23. See also Af, 24.

° Af, 19. This, together with Ine, 29, and IT Cn 75, is the basis of LHP, 87. 1-3, ed. Downer, 264. For the angild, see below, 180.

152 PART I: LATE ANGLO-SAXON ENGLAND

3 ALIENABILITY, SUCCESSION, AND BEQUEST The owner of movables normally had full rights of use and disposition.’ This was true of women owners, generally widows, as well as men.'° We have very little evidence on the actual process of conveyance, but it is likely that transfer of the movable itself was necessary for the transaction to be valid.” Such actual transfer would help to prevent disputes, for example over contested promises, and might help to publicise the transaction.

We have no clear statements as to normal non-testamentary succession to movables. However, it may be significant that the London peacekeeping regulations in Athelstan’s reign allowed the widow of a thief to have one-third of his movables.” This may back up an isolated reference in Bede, where a man's substantia—possibly lands as well as movables—was divided into three, with one-third going to his widow, one-third to his sons, and one-third being retained for himself, which he immediately distributed to the poor.” A division of movables into thirds, distributed in this way, was later to be customary in at least some parts of England." Movables could be granted by will, although it is unclear whether this was limited to a set proportion. Wills mention both livestock and inanimate objects, for example jewellery.” In some instances a testator left the residue of the estate, or specific movables or money, to be distributed by a third party.”

4 SALE Regulation of trading was one of the main concerns of the written laws. The laws

of Edgar mention standardisation of weights and measures, and of the cost of > See below, 690, on the significance of the difficulty of dividing rights in movables compared to rights in land. *° See IT Cn, 76. 1a, ona woman’s possession of a storeroom, chest, and coffer, to all of which she has keys; also women’s wills, e.g. S 1525, 1535.

‘* See below, 687-8, on Glanvill.

2 VIAs,1.1. ** Bede, Historia ecclesiastica, v. 12, Ecclesiastical History of the English People, ed. and trans. B. Colgrave and R. A. B. Mynors (Oxford, 1969), 488.

“ Helmholz, Canon Law and Ecclesiastical Jurisdiction, 54; below, 378.

*° Note e.g. the references to livestock in the will of Ealdorman Alfred, S 1508. See Sheehan, Will, 100, for consideration of the practical problem of post obit gifts of livestock and farm produce. *® See e.g. S 1484, 1511.

6 MOVABLES 153 wool.” Laws of Athelstan, or possibly Edward the Elder, prohibited the sending

of horses overseas, except as gifts.* The exact motive for this prohibition is not known, whereas there were clear religious reasons for prohibiting sale of Christians as slaves overseas, especially in non-Christian lands: ‘that the souls which Christ bought with his own life be not destroyed.” There were also provisions that trading should not take place on a Sunday. /Ethelstan made such a prohibition and laid down a penalty of 30s., although this law was changed later in his reign.*? One of Athelred’s laws ordered that Sunday trading be prohibited under ‘full worldly fine’." However, regulations for London decreed that tolls for cloth should be paid on three days of the week, Sunday, Tuesday and Thursday, perhaps indicating transactions taking place on Sundays.”

Location and witnessing The laws laid down that transactions, at least transactions over a certain monetary value, should take place before witnesses in specific locations.” In the first half of the tenth century, in the laws of Edward and a text associated with the laws of 7thelstan issued at Grately, this location was a port, perhaps best translated as ‘recognised trading-place. Failure to observe, according to Edward's law, led to the offender forfeiting the fine for insubordination to the king. The sale was to be witnessed by the portreeve or other trustworthy men, or, according to the Athelstan text, the reeves at the public court.** However, this provision was not confirmed in A@:thelstan’s later laws.” In the third quarter of the century, 17 TITEg, 8.1.

‘® IT As, 18. For the suggestion that a portion of IT As, including this clause, may date from Edward the Elder’s reign, see G. Molyneaux, “The formation of the English kingdom, c. 871-c. 1016’ (D. Phil., Oxford University, 2010), 112-25. *? V Atr, 2, VI Atr, 9, IT Cn, 3. See also Ine, 11, VII Atr, 5. *° ITAs, 24.1, IV As, 2, VI As, 10. See also Wormald, Making of English Law, 291 n. 130. *" VIII Atr, 17; see also V Atr, 13.1, VI Atr, 22.1, I Cn, 15.

*? IV Atr, 2. 3 (although note D. Keene, ‘Text, visualisation and politics: London, 1150-1250’ (2008) 6th Ser. 18 TRHS 69-99, at 93-4, on this text). *° II As, 12, refers to goods worth more than 20d. Insistence on certain locations clearly had advan-

tages for the king not only in terms of keeping track of transactions in order to prevent dealing in stolen goods, but also in ensuring that tolls could be taken; note also I As 10 (quoted below, 154), on the presence of the ‘treasurer’. ** T Ew, 1, IT As, 12. See also IT As, 13. 1: ‘all trading shall be within a port’. See above, n. 18, for the possibility that this section of Athelstan’s laws originated in Edward the Elder’s reign. On the fine for insubordination, see below, 189-90. *° IV As, 2: ‘All the decrees that were established at Grately shall be observed, except those about trading ina town [mercatum civitatis] and on Sunday. See also VI As, 10.

154 PART I: LATE ANGLO-SAXON ENGLAND laws of Edgar, in their surviving written form perhaps referring to the Danelaw, specified that thirty-six persons shall be chosen as witnesses for every burh; twelve for small burhs and for every hundred, unless you desire more. And every man shall buy or sell in the presence of these witnesses all the goods that he buys or sells either in a burh or in a wapentake. And each of them, when first chosen as a witness, shall swear an oath that he shall never, for money or favour or fear, deny any of the things of which he has been witness, or declare in his testimony anything except only what he has seen or heard. And two or three men who have taken the oath in this manner shall be present at every transaction.”

The sense may again be that all transactions above a certain level should take place in burh or hundred, possibly a new responsibility for the hundred. The word burh may signify a borough, fortified place, vill, or even hall or residence, but the emphasis on the royal location is notable. The meaning of the final sentence of the passage quoted is not entirely clear. Possibly only two or three of the group of witnesses needed to be present at any particular transaction, or—perhaps more likely—that two or three sufficed for minor transactions. Other laws give further information on the witnessing of sales, the personnel involved suggesting locations similar to those mentioned above.” Thus Athelstan’s Grately laws specify that ‘no-one shall exchange [hwyrfe] any cattle unless he has as witness the reeve or the mass-priest or the landlord or the treasurer or some other trustworthy man. If anyone does so, he shall pay a fine of 30s. and the landowner shall take what has been exchanged.” In perhaps less restrictive fashion, Cnut laid

down that no-one was to buy anything worth more than 4d., be it livestock or other goods, unless he had the trustworthy witness of four men, whether in a borough or in the countryside.” In addition, laws of AEthelred require that the purchaser of cattle have a surety: ‘no-one shall either buy or exchange anything, unless he has a surety and witness. If anyone do so, the landlord shall seize and keep the stock, until it is known who is the rightful owner-*° The transfer of cattle, which constituted a major element of many owners capital, was thus highly regulated, a crucial aim being the prevention

*° IV Eg, 4-6. See also IV Eg, 7-11, on purchases, especially unexpected purchases; IV Eg, 10, indi-

cates the expectation that purchases should take place in a burh or hundred. On the surviving text referring to the Danelaw, see Wormald, Making of English Law, 317.

*? Witnesses were also required for other actions involving cattle, for example slaughtering; III Atr, 9. Note also Hu, 4. *® IT As, 10. See also II Em, 5.

*° ITCn, 24. °° I Atr, 3; see also III Atr, 5.

6 MOVABLES 155 of disposal of stolen animals, of other fraudulent transactions, and of future disputes. As suggested at the start of the chapter, such measures may have been particularly

important for larger-scale transactions, occurring at a distance from the animals place of origin.”

Warranty and proof Witnessing ensured widespread knowledge of transactions and their proper conduct. This knowledge became very important when accusations of unlawful possession of movables arose. If the wronged party was confident as to who had taken the goods, and that the wrongdoer was still in possession, he might proceed with an accusation of theft, leaving the accused open to punishment by death.” In general this would occur when the thief was pursued and seized following commission of the theft. However, there might be a longer delay or

the accusation might even be that the possessor had knowingly received the stolen goods from the thief, and in that sense was an accessory.* If he was not caught red-handed, the accused might simply deny the charge and the issue would go to proof, or he might defend himself by promising to show that the goods were his, most commonly giving surety to produce the person from whom he said that he had obtained them legitimately.*‘ If he failed he faced the death penalty, just as he would if proof went against him following his simple denial. Alternatively the victim might accuse a man of having his movables, but not explicitly of being the thief.** The accused in this case might lose the goods and possibly be obliged to pay further compensation, but did not himself face death. Again the accused should show why his possession was just,

most commonly by producing the person from whom he had obtained the disputed goods. This form of procedure is known as vouching to warranty, and is described at length in certain of the laws.*° A late seventh-century Kentish law had stated that ‘if any man steals property from another, and the owner afterwards attaches *" See above, 149. *? See above, 70.

** These possibilities are in part suggested by later evidence; see Bracton, fo. 150b, ed. Thorne, ii. 426, but see also below, 167-8. °* See esp. IT Atr, 8. Alternative methods included proving that the stock were born and reared his; see above, 76, below, 156. °° Note the parallels to Glanvill, x. 15, and Bracton, fo. 150b, discussed below, 688-9.

°° Note also e.g. HI, 16, Hu, 4. 1. For the type of argument that might arise between accused and warrantor, see e.g. Ine, 75, where the warrantor states that he sold the accused something other than the disputed goods.

156 PART I: LATE ANGLO-SAXON ENGLAND it [i.e. formally seizes it], [the accused] is to vouch to warranty at the king’s hall [geteme to cynges sele], if he can, and produce him who sold it to him; if he cannot do that, he is to relinquish it, and the owner shall take it?27 Such regulation continued in our period and extended to new areas of the realm. AAthelred specified, at least for the Danelaw, that not only every ordeal but every vouching to warranty was to take place in the king’s burh.** The text known as Swerian includes various relevant formulae, which would also require the support of oath-helpers. Particularly notable are the oaths of the accused claiming rightful possession, setting out possible circumstances of just acquisition: By the Lord, I was not in advice or action, nor counsellor nor doer, when N.’s cattle were unlawfully led away. But the cattle that I have I lawfully obtained. And: as I vouch it to warranty, so did he sell it to me into whose hand I now set it. And: as cattle I have, so did he sell it to me who had it to sell. And: as I have cattle, so did it come of my own property, and so it is by folcriht my own possession, and my rearing.

When the warrantor appeared, the possessor would swear: ‘In the name of Almighty God, you did promise to me that what you sold me was sound and clean, and full security against after-claim, on the witness of N., who then was

with us. The warrantor could in turn deny this accusation: ‘In the name of Almighty God, I knew not, in the things of which you speak, foulness or fraud or infirmity or blemish, up to that time that I sold it to you, but it was both sound and clean, without any deceit.’

The fullest accounts of warranty in the laws survive in texts in the name of Edward the Elder, Athelred, and Cnut. In the early tenth century Edward the Elder laid down that every man shall have his warrantor |geteaman], and that no-one shall buy except in a trading-place [porte]; but he shall have the witness of the portreeve or of other truthful men who can be trusted. And if anyone buys outside a market, he is to forfeit the fine for insubordination to the king; but the production of warrantors shall nevertheless continue, until it is known that they cease.*°

°” HI, 7; see also HI, 16. 1.

°° III Atr, 6.1; for the meaning of burh, see above, 85 n. 123. °° Swer, 3, 7, 9; see also above, 76. Note also esp. IT As, 9, and Ine, 25, 46, LHP, 64. 6, ed. Downer, 204. *° TEw,1. Note also AGu, 4, ‘that every man is to know his warrantor when he buys men, or horses, or oxen’.

6 MOVABLES 157 Vouching to warranty should not be a method of simply passing responsibility to another person, but rather had to be done in good faith: ‘further, we have declared that he who has to vouch to warranty shall have truthful witness that he is doing so justly, or he shall produce an oath in which he who brings the accusation may place confidence:” The process of warranty could pass on from the first warrantor to another whom he warranted, and so on until a person was prepared to prove his ownership by another method. That person shall produce truthful witness to this effect, or he shall produce such an oath—an unselected oath if he can—as the plaintiff shall be bound to accept. If, however, he cannot do so, then six men from the same locality in which he is resident shall be nominated for him, and he shall choose one of these six for each cow or for livestock of equivalent value. Afterwards, if more are necessary, they shall be increased in proportion to the value of the property.”

The witnesses presumably testified as to how he had obtained the cattle concerned. At each stage the cattle concerned may have passed from the current possessor to the person successfully vouched to warranty.”

The next extended treatment of warranty survives as an appendix to /Ethelred’s 994 treaty with the Danes, but may be from an otherwise lost text of legislation by Edgar.*+ These specifications add detail to the procedure just outlined, although it is unclear whether the following clauses involve innovation. If anyone attaches what he has lost, the man in whose possession it is attached shall declare whence it came to him. He shall give pledges and furnish surety that he shall produce his warrantor, when it is pleaded. If he vouches a living person to warranty and the man whom he vouches is in another shire, he shall be granted as long adjournment as is necessary for the purpose. He shall set it in the hands of the man who sold it to him, and request him to provide justification if he can. If the latter accepts, he provides justification for the man in whose possession it has been attached. He himself shall afterwards declare whence it came to him.*

“* I Ew, 1.2. Note also IT Atr, 9. 1.

* TEw,1.3-4. Note also I Ew, 1.5. *° See IT As, 24. On slaves being vouched to warranty, see below, 214. Following successful vouch-

ing, there may have been a case between the person vouching and the person vouched so that the former could regain the purchase price. The witnesses and sureties involved in the sales would have had an essential role in such cases. “* See Wormald, Making of English Law, 321, who suggests that the appendix and the text known as Forfang ‘may be parts of a code for “English England” parallel with “TV Edgar” *

*° II Atr, 8; for adjournment see II Atr, 8. 3.

158 PART I: LATE ANGLO-SAXON ENGLAND The decrees then go on to make an explicit change, which was to help the less prosperous by ensuring that the process of warranty did not compel them to visit a long series of possibly distant courts: Formerly it was that vouching for the first three times should take place where the goods were attached, and afterwards the vouching should be transferred to the locality indicated [by the evidence of the last person who had been called upon to warrant]. Then the counsellors [witan] decided that it would be better for the vouching always to take place where the property was first attached, until it should appear where the process would end, lest a man of small means should be burdened by long and distant journeys in order to recover his property. The burden should rather be borne by him

who has in his possession property to which he is not entitled, than by him who is putting forward a just claim to it.*°

The same set of laws goes on to spell out what was to happen if the warrantor had died and did not have an heir who could answer the charge. The person was to clear himself through witnesses. Then the dead man would be held guilty,

unless he had friends who, in his place, could clear him. If they did so, the vouching to warranty had failed and the person in possession was held guilty of theft, “because denial is always stronger than accusation’. The normal process of vouching to warranty could likewise be stopped if anyone proved his ownership through witnesses, ‘since the owning is always closer to the possessor than to the claimant.” Cnut’s laws add some further details, although again it cannot be told whether any were innovations. The link between witnessing and warranty is re-emphasised. The person vouching must have witnesses that he acquired the stock found in his possession, the witnesses must declare that ‘they are speaking the truth, in

accordance with what they saw with their eyes and heard with their ears, in witnessing that he acquired it lawfully.** As we have already seen, there were to be four trustworthy men as witnesses for purchases of over 4d. in value.#? Lack of witnesses led not just to loss of the disputed property but also to further penalties: ‘if, however, any property is attached, and he has no such witnesses, there is to be no vouching to warranty, but the property shall be given up to its rightful owner and also the supplementary payment [@ftergild], and the fine to whom it belongs.

“© IT Atr,9.

*” II Atr, 9. 2-4. Cf. the process of vouching a dead man to warranty concerning possession of a slave, outlined in Ine, 53. *8 II Cn, 23; cf. Swer, 8, quoted above, 80. * IT Cn, 24, above, 154. °° ‘II Cn, 24.1. Aftergild is too rare a word to be certain of its precise meaning.

6 MOVABLES 159 A further clause probably limited the number of occasions of vouching to warranty, although its sense is not entirely clear: And if he has witnesses in accordance with what we have declared above, vouching to warranty shall take place three times. On the fourth occasion he shall prove his ownership [ahnige] or give it back to its owner. And we regard it as unjust that anyone should claim ownership where there is testimony, and it can be recognised that there is deceit; so that no-one ought to claim ownership of it sooner than at least six months from when it was stolen.”

Despite the prominence of warranty in the laws, we have only one account

of a case in which the procedure was used. Here it concerns the theft of a woman, indicating how a slave might be regarded as a form of movable good: A woman was stolen at Yaxley, from Alfsige, Brihtsige’s son. The woman’s name was Thurwif. Then Alfsige attached the woman in the possession of Wulfstan, Wulfgar’s

father. Then Wulfstan vouched Athelstan of Sunbury to warranty for her. Then /Ethelstan declared that he would carry on the process; but he let it go by default, and failed to appear on the appointed day. After that lfsige asked for the return of the woman, and A:thelstan gave her up and compensated [forgeald] him with two pounds. Then Ealdorman Brihtferth asked Athelstan for his wergeld, because of the failure of warranty.”

The case complements our knowledge derived from the laws. It is notable that /Ethelstan’s failure to warrant led him not merely to return the woman but also to pay compensation, just as Cnut’s law required payment of eftergild. In addition, the ealdorman demanded that A:thelstan pay his wergeld, presumably because his failure to warrant was in this case considered to make him at least an accessory to theft; Cnut’s law had required payment of a fine to the appropriate person. Payment of the wergeld suggests the possibility of the death penalty for the failed warrantor in such cases. Meanwhile the person who had been found with stolen property lost possession but, as far as we know, was not punished in any way.

>" IT Cn, 24. 2 and 3; cf. I Ew, 1, above, 156-7. It is not certain whether the three vouchings were all of the same person, whose failure to appear meant that the possessor had to prove his ownership, or the vouchings were of different people who had in turn been in possession; see J. L. Laughlin, “The Anglo-Saxon legal procedure’, in Adams et al., Essays in Anglo-Saxon Law, 183-305, at 224, Pollock and Maitland, ii. 158. For warranty, see also Duns, 8. >? § 1447.

°* See also below, 185. Cf. the Leis WI, 21. 2, below, 381.

160 PART I: LATE ANGLO-SAXON ENGLAND

5 CONCLUSION Although perhaps in some ways simpler than matters concerning land, those concerning movables take up much more space within the laws and probably constituted much more of the business of courts. As we also saw when considering the role of kings and the procedures of courts, dealing with theft of movables was

central to ideas of the maintenance of order in Anglo-Saxon England, and this significance will be apparent again in the next chapter.

Theft and Violence 1 VOCABULARY AND CATEGORISATION The concern of this chapter is offences committed by individuals or small groups primarily against the victim’s person or movable goods. This may lead the modern reader to think immediately in terms of the category ‘crime’. However, this categorisation only became prominent towards the end of the period covered by this book.’ The word crimen, when used, rather referred to the general category of sin.” The Old English vocabulary, for example misded, does not indicate sharp distinction between types of wrong, what in Latin would be referred to as injuria. Similarly, there were common elements of procedure regarding a wide variety of

wrongs. However, there were differentiations between types of wrong, even if not a sharp classification with strict procedural and other legal consequences, as between later crime and tort. Although during the Anglo-Saxon period, as considerably later, the offences discussed in this chapter were clearly considered sins,‘ nevertheless, types of sin and offence were distinguished; our concern here is primarily with offences mentioned in what Edgar and Cnut’s laws categorise as

woruldcunde geredne, decrees concerning worldly matters’ Moreover, as we have already seen, cases might be divided between those where a party claimed that the accused has done him a wrong and those where a party claimed only that his opponent was in possession of what belonged to the claimant.° Further

* See below, ch. 27. This chapter benefits from access to a chapter of the unpublished second volume of Patrick Wormald’s Making of English Law, entitled “The Pursuit of Crime’. * See DMLBS, s.v. ‘crimen’.

> See above, ch. 4; also P. R. Hyams, ‘Does it matter when the English began to distinguish between crime and tort?’, in Violence in Medieval Society, ed. R. W. Kaeuper (Woodbridge, 2000), 107-28. * Note J. G. H. Hudson, ‘Kings and crime: ideology and practice in the tenth and twelfth centuries; in Droit et société en France et en Grande Bretagne (XIIe-XXe siécles), ed. P. Chassaigne and J.-P. Genet (Paris, 2003), 15-38, at 18-21. > See IIT Eg, 1,5. 2; II Cn, Prol, 18.1.

° See above, 70.

162 PART I: LATE ANGLO-SAXON ENGLAND distinctions were drawn, for example regarding the seriousness of offences.” By the eleventh century, the laws categorised some offences as unemendable and punishable by death.

Moreover, kings and their circle promoted the idea that serious wrongs were not merely against an individual but against God, king, realm, or people. Edmund's laws concerning feud began by stating that ‘first it has seemed to us all most necessary that we should keep most firmly our friendship and concord among ourselves throughout my dominion. The unjust and manifold conflicts that take place among us distress me and all of us greatly.* At least some offences

could be prosecuted not only by individuals but also by organised local groups and possibly by royal officials. Notions of peace are prominent in the Anglo-Saxon laws.’° Some are referred to by the word frid, which was used with respect to treaties, but normally concerned general peace or security. Such frid might be associated with a source of protection, be it, for example, a church or a king." The other significant notion was that of the king's special protection, or his peace given specifically to an individual, individuals, or a community. These might be referred to by the word mund or the Scandinavian loan word grid. Cnut’s laws list mundbryce amongst the king's rights in Wessex and Mercia, gridbryce among his rights in the Danelaw; it is far from clear that the distinction is other than linguistic.’* Such special grants of peace made consequent offences of particular concern to the king. However, they do not in this period seem to have underlain any more general conception that all serious offences were against not just an individual but also the king and the community, as in the later sense of ‘breaches of the king’s peace." Rather, the king’s peace, his mund or grid, was one of a variety of peaces that might be granted to or enjoyed by

” See also above, 155, on different forms of accusation of unlawful possession. * II Em, Prol.; see also e.g. II Ew, Prol, V As, Prol., VI As, 11, 12.

> See above, 74-5, below, 170, concerning tithing. " See e.g. II Ew, Prol, VAs, Prol. "* See e.g. Af, 5. 4 (church), IT Ew, 1, V As, Prol. (our peace), VI As, 10, 12.3 (our peace), II Atr, Prol.; AGu, Prol.; Gesetze, ed. Liebermann, ii. 82, s.v. “frid’; Goebel, Felony and Misdemeanor, 423-5.

‘2 II Cn, 12, 14, 15. On the degree of distinction between mund and grid, see Goebel, Felony and Misdemeanor, 426-8, Anglo-Saxon Writs, 80, and note Neff, “Scandinavian elements’, 289. /Ethelred’s Wantage code, which certainly concerned the Danelaw, laid down the following: ‘that his peace [grid] may remain as firm as it best was in his ancestors’ days, that that [peace] which he gives with his own hand shall be uncompensatable’; II Atr, 1. See also IT Em, 6; II Cn, 61, on gridbryce

committed while in the army. Note also Af, 7 on fighting or the drawing of a weapon in the king’s hall; Af, 3, and II Cn, 58, for the payment of five pounds for violation of the king’s borh or protection. See below, 409, for Domesday evidence. ** See below, 713-14.

7 THEFT AND VIOLENCE 163 a place, individual, or group, providing them with protection.’ Such protections supplemented and reinforced more general prohibitions of wrongdoing. The idea of offences being against the king as well as the victim may have come from another direction, from an oath of loyalty owed by all free men to the king. It is possible that such an oath, with specific consequences for offenders, was introduced by King Alfred, as recorded in his laws: ‘First we direct, what is most necessary, that each man keep carefully his oath and pledge [wed]. This clause may simply refer to a general moral, religious, and legal duty to keep one’s word, or more specifically to an oath of loyalty with definite legal consequence. A charter records Ealdorman Wulfhere forfeiting his property for deserting King

Alfred and the fatherland, contrary to the oath that he had sworn to the king and leading men." This is particularly notable because, prior to Alfred’s reign, charters do not record such forfeitures, whereas thereafter they occurred for a variety of serious offences, not just for desertion or plotting against the king.” However, there are difficulties in associating with Alfred a general oath, carrying consequences for serious offenders. Ealdorman Wulfhere’s oath may not have been a general one taken by a wide range of people, but a specific one taken by the ealdorman. Furthermore, the Introduction to Alfred’s laws distinguishes

treachery in a quite narrow sense from other serious offences. It recounts that many synods of bishops and other wise men established, through that mercy which Christ taught, that with their permission for almost every misdeed at the first offence worldly lords might receive without sin the monetary compensation, which they then established; only for treachery to a lord did they not declare any mercy, since Almighty God adjudged none for those who despised him, nor did Christ, the Son of God, adjudge any for the one who betrayed him to death; and he commanded everyone to love his lord as himself.

In the reign of Alfred’s son, Edward the Elder, the connection between oath and pledge and more specific legal responsibilities does seem to be established; a law states that if anyone sheltered a thief, ‘and breaks his oath and his pledge, which

See e.g. Af, 3, II Cn, 42. Offences committed at particular times may also have been treated as particularly serious, although evidence is limited; note esp. IJ Cn, 38. Note further Lambert, ‘Protection, feud and royal power’, esp. 70-104.

*° Af, 1. The phraseology of the law does not in itself indicate that this was an innovation rather than reinforcement of an existing practice. *© § 362.

‘7 P. Wormald, ‘A handlist of Anglo-Saxon lawsuits’, in his Legal Culture, 253-87, at 284; cf. Hyams, Rancor, 100. '® Af, Intro. 49. 7.

164 PART I: LATE ANGLO-SAXON ENGLAND the whole people has given, he shall make amends as the domboc instructs’. The ‘oath and pledge’ may be the same as that mentioned in Alfred’s laws, the legal implications having been there from the start, or the legal implications may have developed, or there may have been some change in the form of the oath. A similar difficulty is involved in interpreting the development of oaths in the Carolingian empire, where a general oath of loyalty certainly existed under Charlemagne. Only under Charles the Bald in the mid-ninth century, however, did it make absolutely explicit that fidelity encompassed not assisting thieves [latrones], who might be killed without feud or wergeld.”° In England in the later

tenth century the notion of the parallel between the treatment of traitors and thieves is very clear; their misdeeds were to be the business not just of victims or their kin but also of the king and his officials, and were to result not just in com-

pensation but also punishment, including capital punishment." Whether such ideas extended to other offences is much less clear; Cnut’s laws mention only an oath from everyone over twelve that they would not be thieves or thieves’ accomplices.”

2 TYPES OF OFFENCE The laws and accounts of cases allow us some sense of the major problems of law

and order in late Anglo-Saxon England, although they have a restricted royal and ecclesiastical viewpoint. For example, they concentrate on the more serious offences, those that were of particular concern to the royal lawmakers or that led to forfeiture of land as recorded in charters. Treason against the king and against other lords is prominent in the laws. Treason might involve plotting against the lord's life, or taking other actions.” There are various accounts of desertion and treason by nobles, for example Ealdorman Wulfhere deserting King Alfred, AAthelric Bocking planning to receive the Viking Swein when he first came with his fleet in the 990s, and the

*? IT Ew, 5; domboc almost certainly refers to Alfred’s laws, above, 27. Note also Pratt, Political Thought, 239-40. *® See esp. Capitularia regum Francorum, ed. A. Boretius and V. Krause (2 vols; MGH, Legum sectio II; Hanover, 1883-97), nos 33, 260. *" See e.g. IIT Eg, 7. 3, II Cn, 26; also V As, Prol. 3. *? 1ICn, 21.

** See Af, 4: Tf anyone plots against the life of the king, either on his own account or by harbouring outlaws, or men belonging to himself, he shall forfeit his life and all he owns.’ See also IT As, 4, HI Eg, 7.3, V Atr, 30, VI Atr, 35, 37, II Cn, 57, 77.

7 THEFT AND VIOLENCE 165 thegn Leofric rebelling whilst in King Athelred’s military service.** Most such accounts appear in royal charters, and we know much less about treason against other lords.

Theft was the other central concern of the laws. We have already seen the importance of witnessing and warranty.* The laws seem most concerned with theft of livestock, even when they do not make this explicit, but also mention other types of theft, for example from churches.”® An Ely account tells us that certain people stole innumerable goods belonging to Thorth, son of Earl Oslac. They broke open his chests and took out a very fine dagger, decorated with gold and silver, and also many garments of very precious cloth. They entrusted these to a priest named A:thelstan, who put them in chests belonging to his kinsman Herewulf, a priest at the royal minster of Horningsea.”” Other accounts mention thefts of oxen, pigs, and a woman, presumably a slave, as well as inanimate objects—sheaves of wheat, a bridle, a belt, cloaks, and relics.”* It is hard to tell whether a clear distinction was drawn between simple theft and the offences of burglary and robbery. A clause in Athelstan’s laws uses the terms deof and reafere, perhaps translatable as thief and robber, but does not differentiate the treatment of the two.” The Latin terms fur and latro, furtum and latrocinium, do not seem to have been used to mark a sharp distinction between, for example, the furtive thief and the open or violent robber. A single charter might refer to the same man in the context of the same offence as both fur and latro.*° Words based on latro could also be used to refer to what we would call burglary, for example breaking into a church by night.*: The more specific offences referred to as hamsocn and husbryce (house-breaking) involved violence against people

** § 362, 927, 939. See also S 414-15, 896; ASC, 1051-2, 1055.

*° Above, ch. 6. *° See Af, 6, and note IT As, 5. *” Liber Eliensis, ii. 32, ed. Blake, 106; see also below, 220.

*® S 883, 886, 1445, 1447; DB, ii. 401v-402r; Liber Eliensis, ii. 32, ed. Blake, 107; Thomas of Marlborough, Evesham, iii. i. 165, ed. Sayers and Watkiss, 170; Lantfred, Translatio et miracula S. Swithuni, 27, Lapidge, Cult of St Swithun, 314-16. For theft, see also S 443, 753, 792; Liber Eliensis, ii. 34, ed. Blake, 109; Wulfstan of Winchester, Life of St Zthelwold, 46, ed. Lapidge and Winterbottom, 68; Vita S. Edithae virginis, ii. 5, Wilmart, ‘La legende de Sainte Edith’, 272-3; De miraculis et translationibus S. Cuthberti, 5, in Simeon of Durham, Opera Omnia, i. 243-5. *° IV As (Frag), 6. 1. Note also V Atr, 25, VI Atr, 28. 3 (‘on stalan 7 on strudungan’), IT Cn, 4. 2 (‘deofas 7 deofsceadan), 7. See also below, 183, on types of theft. °° § 883.

*" Seee.g. Passio sancti Edmundi, 15, Three Lives of English Saints, ed. M. Winterbottom (Toronto, 1972), 83.

166 PART I: LATE ANGLO-SAXON ENGLAND within the building or perhaps against the building itself, not simply breaking in and removing goods.” The laws suggest that dealing with homicide was less central to royal concerns than was theft, but this may reflect attitudes to offences rather than the frequency of killing. Mord is distinguished from other forms of homicide. It is

often taken to refer to secret slaying, but may rather signify various forms of killing for which there could be no compensation, including killing linked to betrayal of one’s lord and killing where the victim’s body, or perhaps the deed more generally, was concealed? Many other homicides probably resulted from quarrels, either spontaneous or long-standing. However, we have details of only a few killings, some politically inspired,** others linked to land cases.> A back-

ground of feud has to be extricated from other evidence, most clearly royal efforts against vengeance.*®

Violence short of homicide is also mentioned in the laws, sometimes with reference to payment to the king or another whose peace or protection might be seen as having been broken, and sometimes with reference to compensation to the victim who had suffered physical or material harm: fighting in assemblies or elsewhere,** wounding when resisting the collection of Church dues,® disarming,*° and beating or binding men in holy orders.” Alfred’s laws mention sexual assault on women.” They also include payments to be made in amends

*? See IT Cn, 62, 64; Pollock and Maitland, ii. 492-3; Anglo-Saxon Writs, 79-80; see below, 173, on their relationship to the limitation of feud. °° Note e.g. IT As, 6, Blas, Cn 1020, 15, II Cn, 56, 64. See B. R. O’Brien, ‘From mordor to murdrum: the preconquest origin and Norman revival of the Murder fine’ (1996) 71 Speculum 321-57, at 336-7, 345-9,

who emphasises the importance of Wulfstan in the vocabulary choices in this context. The notion of secret killing may have come from the Old French ‘mordre’; O’Brien, 351. O’Brien’s explanation has the advantage of rendering much more comprehensible the notion of ‘open mord, on which see below, 184 n. 163. On concealment of the body, see S. Jurasinki, “Reddatur parentibus: the vengeance of the family in Cnut’s homicide legislation (2002) 20 LHR 157-80, who takes this to be the defining characteristic of mord. A related contrast may be between the killing to which the perpetrator is willing to own up in honourable fashion, and that to which he is not willing to own up. °** Note S 916, 926, for an ealdorman killing a high reeve; see also ASC, version ‘C’, 1049. °° See S 877; note also Ramsey Chronicle, 25, ed. Macray, 50. °° See below, 172.

°” See below, 177-80, 188-94, on monetary penalties and compensation. °° Af, 38, 39; note also 38. 1, on drawn weapons at assemblies. °° EGu, 6.5, II Cn, 48. 1. 4° 11 Cn, 60.

“ II Cn, 42. See also II Cn, 49. ** Af, 11, 25, 26; note also IT Cn, 52. See C. E. Fell, Women in Anglo-Saxon England (London, 1984),

62-4; J. Coleman, “Rape in Anglo-Saxon England’, Violence and Society in the Early Medieval West, ed. G. Halsall (Woodbridge, 1998), 193-204. For offences against nuns, see Af, 18, I Em, 4. For other sexual offences, see below, 232-3.

7 THEFT AND VIOLENCE 167 for a wide range of other injuries,* and for laying bonds on an unoffending ceorl,

scourging him, or cutting his hair or beard.“ Arson was likely to be a particular problem, given the building materials employed, and was especially disliked because of its surreptitious nature. The tract known as Be blaserum treated arsonists alongside those who committed mord.* Specific accounts are lacking, although we have an instance of a man guilty of frequent ‘thefts, rapines, homicides and arsons’.*® False coining, use of false coin, and collusion of reeves with false coining, were mentioned both in the

laws and the narrative sources,” whilst use of false weights and measures was also a serious offence.‘ Laws, particularly those written by Wulfstan, refer to heathen practices, and sometimes include those guilty of witchcraft in clauses also mentioning

prostitutes and perjurers. Witchcraft in various forms is a subject of laws, and a charter mentions a woman driving iron pins into an image of a man, a practice that also appeared in penitentials.*® Alfred’s laws mention public slander | folcleasunge]°° Occasionally offences less serious to our eyes make an appearance, for example the burning or felling of another's tree without his permission.” Offenders might need support to profit from their offences. We have already seen the priest Athelstan receiving stolen goods, and a law of /Ethelred mentions the possibility of a priest being ‘the accessory and accomplice of thieves’ A law of Cnut envisaged some wives placing stolen goods under their lock and key? A further concern was the harbouring of killers, outlaws, thieves, and

43 Af, 44-77. 44 Af 35,

*° Blas; note use of the threefold oath or ordeal and the possibility of the death penalty. Note also IT As, 6.2, IT Cn, 64.

*° De miraculis et translationibus S. Cuthberti, 5, Simeon of Durham, Opera Omnia, i. 243. *7 See esp. IV Atr, 5-7, II Cn, 8; see also II As, 14. 1, III Eg, 8, III Atr, 8, 16, VI Atr, 32. 1; Osbern, Vita sancti Dunstani, i. 31, Memorials of St Dunstan, ed. Stubbs, 106, much expanded in Eadmer,

Vita S. Dunstani, 46, Lives and Miracles of Saints Oda, Dunstan, and Oswald, ed. and trans. A.J. Turner and B. J. Muir (Oxford, 2006), 118-22; Cubitt, ‘As the lawbook teaches’. *° V Atr, 24, VI Atr, 28. 2, 32. 2, II Cn, 9; see also III Eg, 8. See also Cubitt, ‘As the lawbook teaches’, 1028, on treasure trove. * IT As, 6; 1 Em, 6; EGu, Prol. 1, 2; 1; V Atr, 1, 34; VI Atr, 1, 6, 7; II Cn, 4a, 5; S 1377; Anglo-Saxon Charters, ed. Robertson, 324. On perjury, see above, 83-4. 50 Af 32. 51 AF 12.

°? Above, 165; VIII Atr, 27. Note also e.g. IV Eg, 2. 2. °° ‘II Cn, 76.

168 PART I: LATE ANGLO-SAXON ENGLAND those failing to answer charges in assemblies®+ Lords might take the part of an offender, offering protection or advising escape.’ Accused offenders might seek to serve another, presumably in the hope of escaping the charges or enjoying protection against them.* Support for an offender might be still more active, for example standing by a thief and fighting alongside him, or seeking to rescue him after he had been convicted at ordeal.”

3 RESPONSIBILITY AND LIABILITY A law of AEthelstan specified that ‘no thief shall be spared, who is seized in the

act, if he is over twelve years old, and [the property stolen worth] more than 8d’2* The king later had his mind changed and laid down that ‘no man younger

than fifteen should be killed unless he tried to defend himself or fled, and would not surrender’. Cnut specified that every free man over twelve should be brought into hundred and tithing, if he wished to have the right of exculpation and wergeld, and that every man over twelve should swear not to be a thief or an accessory.°°

The laws indicate that women were not to be assumed to be accessories to their husbands’ thefts. Cnut laid down that unless the stolen property has been put under the wife’s lock and key, she shall be clear. But she must look after the keys of the following: namely her storeroom, her chest, and her coffer; if it has been brought inside any of these, she is then guilty. And no wife can forbid her husband to place inside his cottage what he pleases.”

Significantly, this clause appears in a section concerned with malpractices, implying that some were treating women as blameworthy for their husband's offences.

°4 ‘TI Ew, 4, 5. 2; I As, 2. 2, 20. 8; IV As, 6; V As, Prol. 3; VI As, 1. 2; IT Em, 1. 2; II Cn, 13. 2, 15. Note

also e.g. I Atr, 4. 2, on the supporting of a man regarded with general suspicion. °° ‘IT As, 3; 1 Atr, 1. 2, 1. 8; II Cn, 30. 7-9, 31. la. °° TIT Em, 3.

>” VI As, 1. 3-4. See also Cn 1020, 12. °° IT As, 1; the same regulation appears in VI As, 1. 1. According to Ine, 7. 2, a ten-year-old could be

regarded as an accessory to a theft. °° VIAs, 12. °° IT Cn, 20, 21; see below, 169-71.

°! II Cn, 76. 1. See also Ine, 7, VI As, 1. 1; cf. Ine, 57: ‘If a husband steals a beast and carries it into his dwelling, and it is seized therein, he is guilty for his part, but without his wife, for she must obey her lord.’

7 THEFT AND VIOLENCE 169 The laws suggest concern with the offender’s intentions. The Introduction to Alfred's laws modifies a passage of Exodus sufficiently to indicate real concern rather than simple copying: Let the man who slays another wilfully perish by death. Let him who slays another out of necessity or unwillingly or unwilfully, as God may have sent him into his hands, and for whom he has not lain in wait, be worthy of his life and of making lawful compensation [folcrytre bote], if he seeks sanctuary. If, however, anyone presumptuously and wilfully slay his neighbour through guile, pluck him from my altar, so that he may perish by death.”

More specific concerns were unintentional killings with weapons, and the use of one’s own weapons by another for the purpose of killing.® Various motives were attributed to offenders. There was probably awareness that offences might be committed through poverty.** Motives more apparent in the surviving sources included greed and the persuasion of the devil, anger and vengeance.® Evidence for long-standing feuds is almost non-existent, particularly in the heartland of the Old English kingdom.** However, there is plenty of evidence for direct action by parties in disputes, indicating a strong impulse for vengeance. This is clear, for example, in the provisions against relatives killing the slayer of a thief.” Similarly there was concern expressed, perhaps especially under AEthelstan, about kindreds so powerful that their members could not be punished through the normal means.*

4 PREVENTION AND POLICE Hundred and tithing A wide variety of methods were used to prevent or discourage offending. Some such as ecclesiastical teaching are outside the concerns of this book. Others are

°? Af, Intro. 13; cf. Exodus, 21. 12-14. Cf. below, 195-6, on penance and intention. °° See esp. Af, 19, 36, IT Cn, 75.

°* Note Gregory the Great’s letter to Augustine included in Bede, Historia Ecclesiastica, i. 27, ed. Colgrave and Mynors, 82; discussed by L. Oliver, The Beginnings of English Law (Toronto, 2002), 47 °° For the prompting of the devil, see e.g. S 883; for vengeance, see e.g. IT Em. See also above, 74, 81, on men of ill-repute, untrustworthy men, and the often accused. °° See Hudson, ‘Faide’. °” See II As, 6. 3, 11, VI As, 1.5 (which makes it clear that the prohibition extended beyond slaying to other forms of help for thieves), IIT Em, 2; S 883. The problem of the slain thief continued later in the middle ages; see N. D. Hurnard, The Kings Pardon for Homicide before A.D. 1307 (Oxford, 1969), 89-90. °° See IIT As, 6, IV As, 3, VIAs, 8. 2.

170 PART I: LATE ANGLO-SAXON ENGLAND closely related to disputing, for example the threat of violent response to an act. Others still are central to the law of this period, for example the practices of individual suretyship discussed earlier. By the time of Cnut, such practices had probably developed into a more general system of groups of sureties, which complemented responsibilities of kindred and also of lords for members of their

households. All free men over twelve years old who wished to be entitled to exculpation and wergeld were to be brought into hundred and tithing, with surety regarding all matters of law. In addition, every man over twelve was to swear that he would not be a thief or accessory to theft. The word tithing emphasises the unit ten, as in a group of ten men or possibly a district of ten hides, and certainly by the twelfth century tithings were normally composed of ten or twelve men or sometimes all the men of a village. How far back did tithings go as groups obliged to pursue thieves? According to the twelfth-century historian, William of Malmesbury, hundreds and tithings were a response by King Alfred to the insecurity in his realm/° Nevertheless, despite the wide range of William’s legal knowledge, he may well be attributing to a particularly prominent law-giver a practice of unknown origin. In the surviving Anglo-Saxon texts tithings first appear in the regulations of the London peace gild from the time of King Athelstan, and they are also mentioned in the Hundred Ordinance in the mid-tenth century. It is possible that such arrange-

ments began in London and perhaps some other places, and were extended throughout most of the realm in the time of King Edmund or Edgar.” Then, perhaps in the later tenth or the early eleventh century the pursuit role of the tithing came to be combined with suretyship.” The uniting of the oath not to be a thief or accessory, the police functions, and the surety functions of tithing is a characteristic of ‘frankpledge’ after the Norman Conquest. The term frankpledge first appears in the early twelfth century, in the Latin form plegium liberale, free pledge.7? However, the evidence of Cnut'’s laws may connect the elements as closely as might be expected of such a text, William of Malmesbury’s views suggest at least a pre-Conquest origin, and geographical variations in tithing organisation resemble those of hundreds, which certainly

°° II Cn, 20-21, quoted above, 74-5, where earlier arrangements are also discussed; below, 391-3. See below, 208 n. 56, on the possibility that ‘inland’ workers were not in tithing, and 214, on lords’ liability for their slaves’ offences.

7° William of Malmesbury, Gesta regum, ii. 122, ed. Mynors et al., i. 188-90, on which see Wormald, Making of English Law, 137. ” See VI As, 3, 8, III Em, 2 (quoted below, 171), Hu, 2.

” See above, 74-5. ”* LHP, 8.2, ed. Downer, 102.

7 THEFT AND VIOLENCE 171 were of late Anglo-Saxon origin.” It is therefore likely that frankpledge was a prerather than a post-Conquest creation. The members were mutually responsible for their performance of legal duties, and the possibility of collective fines if the peace was breached provided an added incentive to prevent offending.”

Police, self-help, and vengeance Much responsibility lay on victims and their neighbours. Victims of theft were to make known the wrong that they had suffered and to track the stolen goods.” General participation in the pursuit of offenders would supplement the activities of the victim and his or her family and friends. Edmund’s laws stated that, “when a man is known for certain to be a thief’ men of both high and lesser status shall unite and seize him, alive or dead, whichever they can. He who takes vengeance on [infaidiabit] any of those involved in this pursuit shall be the enemy of the king and all his friends. And if anyone refuses to come and is unwilling to help, he is to pay 120s. amends to the king—or deny that he knew, according to this amount—and 30s. to the hundred.”

Those pursuing a thief were to announce their activity by raising the hue and cry. Anyone convicted of failing to do so was ‘to make amends at the rate of the thief’s wergeld. Anyone convicted of hearing but failing to respond to the hue was ‘to pay the fine for disobedience to the king’”* In addition, there was the positive incentive of reward for those successful in pursuit of what had been stolen. Thus the king looked to local groupings, and their headmen, for policing duties. One of the essential roles of the tithing was the seizing of those who had committed offences, and the hundred and other local organisations such as the London peace gild could also be involved.”? Such arrangements from the second quarter of the tenth century onwards seem to be a further organisation, or a further spelling out, of arrangements for a general obligation to pursue offenders. The groups of twelve

“* Note the absence of frankpledge from the later, northern, shires. Cf. Morris, Frankpledge, 5-35, who argues that the elements only came together after 1066, surety for the trustworthy having formerly been on an individual basis. ’”° See FE. W. Maitland, “The criminal liability of the hundred’, in his Collected Papers, i. 230-46, at 243, 246, for the possibility of the tithing being subject to a collective fine if the peace was breached. His argument was based on III Atr, 1. 2, concerning the peace proclaimed in an alehouse; see above, 62-3. ’® See esp. III Atr, 15, II Cn, 76; also II Ew, 4; note V As, 2, III Em, 6. See also below, 193, for S 886, and note also S 883. ”” TIT Em, 2.On pursuit of stolen cattle, see also Duns, 1-3. ”® II Cn, 29. On the ‘fine for disobedience’, see below, 189.

” See Hu, 2, 3. It may be that the thinking behind IT Cn, 25-25a, envisaged the pursuit and prosecution of the tyhtbysig or frequently accused man to be organised through the tithing.

172 PART I: LATE ANGLO-SAXON ENGLAND thegns to whom A*thelred, at least in the Danelaw, looked to seize the frequently accused man, may have supplemented such routine methods.*° Kings sought to channel self-help, and to regulate it, in order to prevent abuse and perhaps in order to limit the escalation of disputes. A law of Ethelstan laid

down that ‘he who attaches livestock is to have nominated for him five men among his neighbours, and from those five get one who shall swear with him that he is attaching according to folcriht’." The problem may have been malicious

attachment of livestock as much as failure to observe due procedure: like the kindred who sought revenge against the justly slain thief, the man who sought to harm his enemy by unjustified accusations of theft was a threat to the peace. Closely related to self-help was vengeance, and kings sought to direct and to control this impulse. The main effort in Alfred’s laws was to delay the outbreak of violence for as long as possible: The man who knows his opponent to be dwelling at home is not to fight before he asks justice for himself. And if he has the power to surround his opponent and besiege him therein, he is to keep him seven days inside and not fight him, if he wishes to remain inside; and then after seven days, if he will surrender and give up his weapons, he is to keep him unharmed for thirty days, and send notice about him to his kinsmen and friends. ... Likewise, if a man meets his opponent, and did not previously know him to be at home, if he is willing to give up his weapons, he is to be kept for thirty days and his friends told; if he is not willing to give up his weapons, then he may fight against him. If he is willing to surrender, and to give up his weapons, and after that anyone fights against him, he [who does so] is to pay wergeld or penalty for wounds according to what he has done, and a fine, and is to have forfeited [the right to avenge] his kinsman.”

Delay might allow the arrangement of a compromise settlement, the payment of compensation, or the obtaining of justice through the courts, as well as provision for the endangered mans soul. Alfred's laws do not present the king or his officials as impartial judges. Rather, if the attacker ‘has not sufficient power to besiege [his opponent] in his house, he is to ride to the ealdorman and ask him for support; if he is not willing to support him, he is to ride to the king, before he fights.’ Vengeful violence, following proper procedure, thus was accepted and might be actively supported. However,

°° See above, 53. °" IT As, 9.

*? Af, 42 (the sense of the closing clause is not entirely clear); note the comments of P. Wormald, ‘Giving God and King their due: conflict and its regulation in the early English state’, in his Legal Culture, 333-57, at 336. 83 Af 42.3.

7 THEFT AND VIOLENCE 173 as the earlier quotation indicates, violence against those willing to surrender was not permitted, and resulted not just in compensation to the victim but also payment of a fine; this indicates that the deed was considered a wrong not only against the victim but also against a concerned authority, presumably the king or someone to whom he had delegated the right to the fine.** Alfred also laid down that some actions should not lead to vengeance. These included killing by the man who found another ‘with his lawful wife, within closed doors or under the same blanket, or with his legitimate daughter or his legitimate sister, or with his mother who was given as a lawful wife to his father.® Such were seen as killings so justified that no vengeance was merited. Likewise excluded from subjection to vengeance were to be a man fighting on behalf of his lord when his lord was attacked; a lord doing likewise for his man; a man fighting on behalf of his born kinsman, except against his lord. In these cases such men were to be excluded from vengeance because they were only fulfilling their expected obligations, but the exclusion of vengeance also had the effect of limiting the spread of feud. Laws issued by King Edmund provided a much stronger challenge to feud,

a practice that Alfred's laws implicitly accepted. Edmund sought to limit the feud to the actual slayer. His kindred, if they abandoned him and would not pay compensation, were exempt from feud. Any kinsman going back on this decision was not only to bear the feud but also forfeit all he owned to the king. If a kinsman of the victim took vengeance on anyone other than the slayer, he was likewise to forfeit all he owned, and incur the enmity of the king and all his friends. Edmund encouraged payment of compensation and also settlement of disputes by wise men [witan]. Fines due to king and lord were to be enforced, and given priority over the payment of full wergeld. Violation of the king’s protection and hamsocn (assault on a person in a house, or perhaps on the house) were removed from the field of feud in that their perpetrators’ lives were to be in the king’s hands, their goods forfeited to him. The relationship of these offences to the feud is clear. The king’s protection was vital to processes for payment of compensation, whilst hamsocn strongly supplemented any protection a man was to enjoy within his house.*® Edmund's laws thus aimed to constrain disputes from developing into extended

feuds, and emphasised the king’s rights in such serious disputes. At the same ** Tt may be that those who were willing to surrender and give up their weapons were in some sense considered to have the king’s protection, just as the king’s protection covered those who were to pay wergeld; below, 179. 85 Af 42. 5-7; cf. Af 10.

°° II Em, 1,3, 6,7; Lambert, ‘Protection, feud and royal power’, esp. 40-6, 79-81, 93-102. See also below, 179-80, on compensation procedures. Cf. the royal reinforcement of ecclesiastical sanctuary, below, 175-7.

174 PART I: LATE ANGLO-SAXON ENGLAND time, the laws reveal the counter-pressure from a culture in which vengeance was important. The same mixture of pressures can be seen in legislation against those

who sought to avenge a slain thief.” The avengers might not believe the man was a thief, perhaps rather accused of a deed he had not committed or wrongly condemned for taking what was his.** They might suspect the slayer’s motives, or view the slaying as a disproportionate response, or they might be reacting to growing royal intrusiveness in disputes.*?

Perhaps the clearest example of the channelling of impulses of self-help and vengeance to royal ends are the London peacekeeping measures, which were written down in response to legislation of A:thelstan. They state that “we have declared, whoever did the deeds that avenged the wrong done to us all, that

we are all to stand in one friendship and in one enmity, whichever should result.°° Not set in the context of royal legislation but perhaps also indicating royal acceptance are the regulations of the thegns’ gild in Cambridge. These specify that if anyone kills a gild-brother, nothing other than eight pounds is to be accepted as compensation. If the slayer scorns to pay the compensation, all the gildship is to avenge the gild-brother and all bear [the feud]. If then one avenges him, all are to bear [the feud] alike.... If, however, a gild-brother kills anyone foolishly and wantonly, he is himself to be responsible for what he has done. And if a gild-brother slays a gild-brother through his own folly, he is himself to be responsible towards the kindred for the offence he has committed, and to buy back his gild membership with eight pounds, or to forfeit forever fellowship and friendship.

Police measures, like those for the prevention of crime, thus rested on a number of impulses, potentially conflicting but also potentially mutually supporting. Crucial elements were local. There was self-help by the parties, permitted within certain narrowing limits by the king. There was also local self-help, notably through groups such

as the tithing or gilds, co-opted and channelled by the king.” Royal backing could also tackle problems arising from reliance on the local. Thus the London peacekeeping regulations emphasised that the tracking of stolen cattle should not be abandoned at the boundaries of the gild’s area, but rather that there was to be co-operation with reeves of other districts [scir].% The local groups and also the king might provide

*” See Ine, 28, 35; IT As, 6. 2-3; VI As, 1. 5; IIT Em, 2. °° See IT As, 11.

*° Note esp. II As, 20. 7, for resistance to royal action. °° VIAs,7; see also VI As, 8. 2-3. °" Diplomatarium Anglicum evi Saxonici, ed. B. Thorpe (London, 1865), 611-12. °? See also above, 153-5, on the witnessing of sales. °° VIAs, 4,5, 8.

7 THEFT AND VIOLENCE 175 financial incentives for those who caught offenders,®* penalties for individuals or communities who failed to do so. Finally there were measures introduced by the king and operating through royal officials, for example that earls, ealdormen, and reeves were to watch for those coining base metal and spreading such coin.”

Sanctuary A person who had committed an offence or who feared accusation might flee to protection. Flight could be to a powerful layman or ecclesiastic, or to a church in order to gain sanctuary.®° Ecclesiastical sanctuary is mentioned in narratives, in the laws, and in other texts such as Wulfstan’s collection of canons: It is not proper that those who have fled for refuge in a church should be dragged out, but their lords are to persuade them to come out by promising intercession. For if the lord inflicts any punishment on those coming out of the church, he is to be excommunicated and regarded as an enemy of the Church. The Church protects those whom she receives into her bosom in the manner of a hen that rears and protects both its own chickens and those of others; the Church should in this way protect all those fleeing to her.”

On reaching the sanctuary the fugitive obtained a period of respite: we determine this peace [frid] for every church that a bishop has consecrated: if any foe reaches it running or riding, no-one is to drag him out for seven days, if he can live in spite of hunger, unless he himself fights his way out. If then anyone does so, he is liable to [pay for breach of] the king’s protection and of the church’s peace—more, if he seizes more from there. If the community has more need of their church, he is to be kept in another building, and it is to have no more doors than the church. The head of that church is to take care that no-one gives him food during that period. If he himself will hand over his weapons to his foes, they are to keep him for thirty days, and inform his kinsmen about him.%*

°* See VI As, 7; note also Ine, 28. °° IV Atr, 8.

°° See also Grid, esp. 4-17. On the possibility that sanctuary was only available for serious offences, see below, 397. See also T. B. Lambert, “Spiritual protection and secular power: the evolution of sanctuary and legal privilege in Ripon and Beverley, 900-1300’, in Peace and Protection in the Middle Ages, ed. T. B. Lambert and D. Rollason (Durham, 2009), 121-40. Note further K. Shoemaker, Sanctuary and Crime in the Middle Ages (New York, 2011).

°” Wulfstan, Canon Law Collection, Recension A, 45, 46, ed. Cross and Hamer, 85-6. Hyams, Rancor, 95-6, argues for the existence of concentric bands of sanctuary, ‘each one a little less holy and thus less stringently protected than the last, until they opened out into the general banleuca of the church’. At the centre, he suggests, was the peace stool, on which see below, 177 n. 104. °° Af, 5; see also e.g. Af, 2. D. Hall, “The sanctuary of St Cuthbert’, in Saint Cuthbert, his Cult and his Community, ed. G. Bonner et al. (Woodbridge, 1989), 425-36, at 430-1, points out that later Durham’s historians said that Alfred confirmed to Durham the right of asylum for thirty-seven

176 PART I: LATE ANGLO-SAXON ENGLAND Some laws establish similar periods of respite for flight to the king or his leading men: ‘we declared in the assembly at Thunderfield that if any thief or robber fled to the king or to any church and to the bishop he should have a respite of nine days. If he flees to an ealdorman or an abbot or a thegn, he shall have a respite of three days.

The man fleeing might have various motives. He might think that temporary sanctuary would give him further opportunity to escape. He may simply have hoped to delay the fate that was awaiting him, perhaps giving him an opportunity to provide for his soul. He may have hoped to avoid direct vengeance by those pursuing him, and perhaps to be allowed the opportunity to establish that he had not committed the offence of which he was accused. Even if he knew that he had committed the offence, he may have gambled on obtaining some sort of court hearing, with the chance of a fate less drastic than that planned by his pursuers. There are also limited suggestions that flight to a church in itself might lead to a reduction in any penalty imposed. Thus Alfred’s laws state that ‘if any man has recourse to a church on account of any wrong that has not yet been discovered, and there confesses himself in God’s name, it is to be half remitted’’°° Probably most important of all, however, was that the respite should allow a cooling down period, and permit or encourage a negotiated settlement, possibly involving intermediaries." However, should escape not be achieved or settlement not be arranged, at the end of the period of sanctuary the fugitive faced death.’” It was necessary that the place of sanctuary not be violated; for churchmen,

an essential point of sanctuary was protecting the peace of the church. Privileges could conflict with the enthusiasm of those seeking to administer justice, and not just the immediate parties who felt that they had suffered a wrong. The Life of St Edith recounts that a thief fled to the nunnery of Wilton for sanctuary. The doors were closed behind him, and the royal servants [satellites] were immediately struck blind, presumably for their efforts to violate the sanctuary. The abbess allowed the robber to go in peace, through the favour of King Athelred.' Against such violations, kings and earls might rely on their

days for anyone fleeing to the body of St Cuthbert; Alfred’s law mentions periods of seven and thirty days, although it is not clear if they were to run concurrently or successively. °° IV As (Frag), 6. Note also IT Em, 2, on flight to a church ora royal burh. °° Af, 5.4; note Af, 42. 2. See also Ine, 5.

°" See e.g. Af, 2, mentioning the fugitive coming to terms with his pursuers. *°* See esp. IV As (Frag), 6. 2c. There is no evidence from this period for an alternative of exile, by permission of victim or of ecclesiastical or secular authority, although this may simply be a silence of the sources; see below, 398-9, 719-20, on abjuration. "°° Vita S. Edithae virginis, ii. 5, Wilmart, ‘La legende de Sainte Edith, 272-3; see also De miraculis et translationibus S. Cuthberti, 5, Simeon of Durham, Opera Omnia, i. 244; Hermann, De miraculis S. Edmundi, 2, Memorials of St Edmund's Abbey, ed. T. Arnold (3 vols; RS, 1864-9), 31-2.

7 THEFT AND VIOLENCE 177 own power, but churches were in particular need of protection. Take a law of /Ethelred, composed by Wulfstan: that all God's churches be entitled to full protection [fulles grides]. And if henceforth any man so violates the protection of God's church that he commits homicide within

the church walls, that then is unemendable, and each of those who are friends of God are to pursue him, unless it happen that he escapes from there and reaches so important a sanctuary [swa deope fridsocne] that the king grants him his life on that account, in return for full compensation both to God and to men.’”

Lesser violations might be compensated, by an amount increasing with the importance of the church concerned: violation of the protection of a chief minster...is to be atoned for at the rate of the [breach of the] king’s protection, that is with five pounds in English law; and that of a medium minster with 120s., that is, at the rate of the king’s fine; and that of a lesser, with 6os.; and that of a field-church with 30s.'%

Such laws suggest that ecclesiastical sanctuary rights too were co-opted and developed by kings.’°* The date at which this began is hard to discover,

but later association with King Athelstan may suggest that his reign was important.’ Problems could still arise, as in the Wilton case above, but it is also noteworthy that the king himself was involved in the solution of that dispute.

5 COMPENSATION Key methods of bringing accusations against offenders and of the conduct of trials have been considered in earlier chapters, on court procedure and on movables.’*

We therefore now move on to settlement and punishment. A distinction can

*0* VIII Atr, 1; Hyams, Rancor, 95-6, takes the phrase ‘swa deope fridsocne’ to refer to the ‘frith stool’ or ‘peace stool’ at the centre of the sanctuary. See also I Cn, 2.

"°° VIII Atr, 5; note also I Cn, 3. See Nor Grid, on the fines for violation of the cyricfrid of the churches of St Peter, York, St Wilfrid, Ripon, and St John, Beverley. See also VIII Atr, 3, 4.1.

"°° For this paragraph, see also Hyams, Rancor, 95. It could be that the equation of penalties for breach of sanctuary and of the king’s special peace arise from royal confirmations of sanctuary rights; see IJ Em, 2, EGu, 1, VI Atr, 14, I Cn, 2. 1-2. However, note that Wi, 2, from late seventhcentury Kent, already had the same mundbyrd for church and king, that is the same payment for breach of protection. "7 See e.g. Lawsuits, no. 172; also S 450, 451, 457.

*°8 See above, chs 4, 6. Note also Af, 13, 24, for trees and animals that in certain circumstances caused death or injury passing to the victim or victim’s family.

178 PART I: LATE ANGLO-SAXON ENGLAND be drawn between compensation, paid by offender to victim, and punishment, exacted from or inflicted upon the offender by those in authority. The distinction may in some circumstances be less obvious. For example, a victim might see the inflicting of a physical punishment as compensation or revenge for the offence, particularly if he himself performs the punishing.’°? He might likewise see the exaction of compensation as a monetary punishment inflicted on the offender, who might share this perception rather than distinguishing such payment from a fine to authority. Meanwhile, a fine for breach of the king's specially given peace could be seen as a punishment or as compensation for a wrong done to the king. Word usage is significant: the Old English bot or Latin emendatio could refer to payments to victim or to authority, vindictio could refer to revenge exacted by victim or punishment by authority."° Nevertheless, although care is required, the distinction remains of considerable analytical importance, both in considering long-term legal developments, such as the division between crime and tort, and in reflecting contemporary views; if bot could refer both to compensation and to penal exactions, the Old English wite was certainly a fine, distinct from compensation to victim. Compensation and punishment co-existed, the balance between them a matter of considerable significance. Compensation was crucial to the prevention of the development and escalation of feuds, and played a major role in the settlement of many cases of theft and violence. Such payments could be arranged both in and out of court. Inability to raise the money to pay the requisite amount might lead to temporary or permanent enslavement of the offender to the victim or kin, to be discussed later.” The present section looks first at compensation to the victim or kin, leaving until the end compensation to a lord. Compensation could be paid for many forms of homicide. This is apparent

in Alfred’s laws, both in clauses that specify the payment of compensation’’ and in the statement of an exception, that if anyone who had failed regarding oath and pledge was slain, he was to remain unpaid for [ocgilde]."® Compensation was apparently to be paid even when the death resulted from negligence rather than from clear intention."* Compensation for some forms

of killing continues to be mentioned in later laws, although others were declared unemendable.’® *°” See below, 791. *t° See below, 198. "™ See below, 194-5.

See Af, 2.1, 9, 19, 21, 29-31; offenders paid a fine as well compensation. M3 ALLS, ‘™* Af, 36, and above, 169; in contrast, obligation to pay a fine was linked to intention in this law. ? See e.g. AGu, 2, IT Em, 4, I Atr, 5. 2; below, 181.

7 THEFT AND VIOLENCE 179 The compensation to be paid to the victim’s kin for emendable homicide was his wergeld. The laws specify wergelds according to the status of the man slain."® We do not have case evidence to show whether these exact amounts were paid, or whether there was some variation.'’” The amounts were very large, amounting to several or many years’ income of an individual, and therefore requiring the assembly of resources from family, friends, and other potential supporters.’* The fullest guidelines on the payment of wergeld appear in the mid-tenth-century laws of Edmund that deal with feud and in the associated tract known as Wer. Edmundss laws gave a man and his friends twelve months to pay the full amount of the slain man’s wergeld, if the killer was to avoid bearing the feud [fa@hde]. He was not to have access to the king’s household until, amongst other things, he had made, or set about making, compensation to the kin. Certain stages were set. Contact between the parties had to be made safe through intermediaries so that the killer could come and pledge the wergeld.”” It is just that the killer, after he has pledged for the wergeld, is to find wer sureties [weerborh] thereto; that is for a 1200s. wergeld, twelve men are to be wer sureties, eight of the paternal kin and four of the maternal. When that is done, then let the king’s protection [mund] be established, that is that all of either kindred are to give a common promise on one weapon to the conciliator [semende] that the king’s protection shall stand.

Three weeks later, the healsfang was to be paid. The healsfang was 120s. of a 1,200s. wergeld, and belonged only to the closest kin, children, brothers, and uncles. After a further three weeks the manbot, the compensation to the slain man’s lord, was to be paid, after another three the fyhtwite, the fine for fighting normally paid to the king. After another three weeks the first payment of the wergeld was to be paid, and so on ‘until it is fully paid within the time the wise men [witan] arranged’. Then the parties might “depart with love, if they wish to have full friendship’.*° Compensation to the victim was paid for offences less serious than homicide,

although we know very little about processes of paying.’ Alfred's laws in particular give various compensations for sexual offences and a long list of *t® See below, 201-2; also Wer, 2.

“7 Cf. above, 123-4, on heriots.

‘'® This can be demonstrated by comparing levels of wergeld with estimates of income from Domesday Book. '? IT Em, 1, 4, 7. "2° Wer, 3-6. Note also the provisions in Af, 30. On healsfang, see The Laws of the Kings of England

from Edmund to Henry I, ed. and trans. A. J. Robertson (Cambridge, 1925), 297-8. ‘2! Note the provision in V Atr, 20, VI Atr, 25. 2, I Cn, 17. 3, that payment of bot should be made before or after a festival.

180 PART I: LATE ANGLO-SAXON ENGLAND compensations for wounds.’” The final clause suggests that there was some flexibility, setting an amount for compensation but allowing that the wise men [witan] might award the victim ‘a more just and greater sum.” Specifications of compensation are much less frequent in later laws, although Cnut did lay down

that if a man unjustly disarmed another he was to compensate him with his healsfang, and if he bound him, the compensation was to be half the wergeld.’” Compensation was also paid in cases of theft. The London peacekeeping regulations specify amounts to be paid for different types of animal and for slaves.’

From the property of a captured thief the Hundred Ordinance allotted to the owner the value of their stolen livestock. Such equivalent value is sometimes referred to as the angild, the ‘single value’.** On occasion double compensation was specified, as in laws of Ethelred concerning offenders of ill-repute.’”” In cases of killing, as we have seen, compensation or manbot was also paid to the victim’s lord. Such a payment had been mentioned in Ine’s laws in the late

seventh century.”* Edmund insisted that no manbot should be remitted, and that manbot should be paid after the healsfgang but before the fyhtwite or the wergeld.’° The order of priority for payment was thus given as close kin, lord, king, further payment to kin.

6 PUNISHMENT A single offence could lead to both compensation and punishment.*° A law of Alfred concerning theft from a church mentions compensation in the form of angild, a wite or monetary fine, and physical punishment that might be allowed to be commuted to a monetary payment in proportion to the perpetrator’s wergeld.*

"°?” Af, 10, 11, 18, 25, 26, 44-77. Such compensations had also been prominent in Athelberht’s laws

from Kent inc. 600.

23 ALT, 4 TI Cn, 60. °° VI As, 6; see also e.g. Af, 16. °° Hu, 2.1. For angild, see e.g. III Eg, 7.1, IT Atr, 4.1. "27 T Atr, 1.5, IIT Atr, 4. 2. "*8" Ine, 70, 76.

"2° IT Em, 3, 7. 3; above, 179, on Wer. Note also VIII Atr, 3, I Cn, 2.5, for the payment of manbot in

cases of killing within the sanctuary ofa church. "°° Cf. above, 178, and above, 161, on historians associating the distinction between compensation and punishment with that between crime and tort. 131 Af, 6.

7 THEFT AND VIOLENCE 181 Such redemption was probably seen as a royal act of mercy, fitting for a just king.” In addition it was at times emphasised that punishment should be appropriate for the offence,’* although the fierceness of some laws also indicates a strong emphasis both upon the offender deserving punishment and upon deterrence.

Death penalty

The death penalty was important, possibly increasingly so, in the late Anglo-Saxon period. Its frequent use is implied by statements in /Ethelred and Cnut’s laws that death was not appropriate for trivial offences.%4 From the time of Ethelred, the laws describe certain especially serious offences as botleas, unemendable."® In Cnut’s laws it was specified that “husbryce, arson, open theft, murder that cannot be denied, treachery towards a lord, are botleas according to worldly law.*° This seems to mean that they were to be punished by death.” It cannot be told whether the term botleas was new or simply making its first appearance in the surviving sources, still less whether it represented a new concept.** The term botwyrde, suitable for compensation, had already appeared in the laws of Edgar, possibly implying a contrast with the botleas.? Still earlier, in the 890s, a grant was made to the bishop of Worcester of fines for all offences that involved emendation, probably again implying that some offences were

unemendable.° The laws specify death as the penalty for treason, against the king but also against other lords: “We have declared concerning treachery to a lord [hlafordwearwe], that he is to forfeit his life if he cannot deny it or is afterwards

convicted at the threefold ordeal." In practice, lesser penalties or negotiated settlements might be preferred. A:thelric of Bocking’s plan to receive Swein

**? For royal exercise of mercy, see also e.g. II Em, 6, VI As, 1. 5; for analysis of royal pardoning, see below, 412-14; also Hurnard, King’s Pardon, 1-2. Note also Blas. "°° See esp. IT Cn, 2. '°4 V Atr, 3, VI Atr, 10, II Cn, 2.1. "8° TIT Atr,1, VII Atr, 1.1. "5° TT Cn, 64.

"°” See e.g. the provisions for treachery against a lord in II As, 4 (life to be forfeit), IT Cn, 64 (botleas).

°° Hyams, Rancor, 84-6, argues for the emergence of botleas offences in the time of #thelred, ‘under Wulfstan’s tutelage’. "°° TIT Eg, 2.2; see also VIII Atr, 5. 1, I Cn, 3. 2.

40 § 223. “’ IT As, 4; see also below, 183 n. 155. Against the king: Af, 4, V Atr, 30, VI Atr, 37. See IT Cn, 64, for

treachery towards a lord being a botleas offence.

182 PART I: LATE ANGLO-SAXON ENGLAND of Denmark in Essex led to forfeiture rather than death, AElfric Cild’s actions against King /Athelred to exile and forfeiture.” Thieves seized in the act might be killed, although they might also redeem their lives by finding sufficient resources to pay their wergeld or by enslavement if they could not pay.'* The death penalty is clear in West Saxon laws before Alfred,'44 and was re-emphasised, notably in /thelstan’s laws: ‘first no thief shall be spared who is seized in the act, if he is over twelve years old and [the value of the stolen goods] more than 8d’.'4 Even younger thieves, or those stealing lesser amounts, could be struck down if they defended themselves or sought to escape.’° The London peace gild offered a reward of 12d. from its common property for a person who was before others in killing a thief.” We have only very limited case evidence to complement the laws. An account in the miracles of St Swithun by Lantfred tells of a man accepting four sheaves of wheat from the king’s reapers, without the permission of the king’s steward."* As he was bearing the sheaves to his house, the steward met him and asked him who had given him the sheaves. The man refused to reveal the information, preferring to suffer death rather than harm a friend. The steward was extremely angry and ordered that the man be shackled and watched by guards until he could be flogged almost to death and then beheaded. Early West Saxon law seems to have punished thieves not caught in the act by a fine and a requirement that the goods be restored.’*° However, with /Athelstan’s

laws appears the use of the death penalty even for those not caught in the act. The general tenor of his efforts is shown by the statement in his Grately laws that ‘it shall be proclaimed in the assembly that everyone is to be at peace with everything that the king wishes to be at peace, and to refrain from theft on pain of his life and all that he owns’. Such efforts may have been particularly aimed at the habitual thief, the notorious man.*' However, it remained possible for the guilty man’s kin or lord to redeem him by paying his wergeld and the full value of the

stolen goods, and by standing surety for him thereafter. Any further offence

See S 896, 937, for Alfric Cild; above, 164-5, for Athelric and other treason cases. “*° On enslavement, see below, 194-5. “* See Wi, 25, 26, Ine, 12. Reynolds, Deviant Burials, 153-5, 235-40, also shows the importance of the seventh and eighth centuries in the development of the use of the death penalty. “° ITAs, 1; see also VI As, 1.1. “° IT As, 1.2, VIAs, 12.1. Seealso VI As, 12. 3. "47 VI As,7. “8 Lantfred, Translatio et miracula S. Swithuni, 27, Lapidge, Cult of St Swithun, 314.

“Ine, 7. "°° TI As, 20. 3.

*°! Seee.g. IV As, 6; see also IT As, 2.1, V As, Prol. 3.

7 THEFT AND VIOLENCE 183 would lead to the death penalty.’ In addition, harbourers of thieves and those who killed in avenging a thief might suffer death.’ Later laws too specify the death penalty for at least some thefts even when the perpetrator was not caught in the act. Edgar's laws specified that the man who claimed that he had bought cattle in the presence of witnesses, and whose claim proved false, was to be regarded as a thief and forfeit his head and all that he possessed." The same king's laws and those of Cnut specify that the manifest [@bera] thief was not to be able to save his life, whatever refuge he sought, unless—according to one version of Edgar's laws—the king granted that his life be spared.** Any distinction between the ‘manifest thief’ and the perpetrator of ‘open theft, which is also mentioned in Cnutss laws, is unclear. Both were botleas offences, and both may refer to proven theft, perhaps theft proved in particularly definitive fashion, notably the thief still in possession of the stolen goods even if not caught in the act. The open or manifest thief might contrast with the person who was accused of being in possession of the claimants goods, but not specifically of having been the person who stole them.’*

Given the use of the death penalty for thieves, it may come as a surprise that some forms of homicide were emendable: compensation of the victim or victim’s family was primary, royal penalty less significant. However, this balance fits with the clear emphasis of the laws on the prohibition of theft, the rather more varied treatment of killing.“” Contrary to common present day views, homicide was not necessarily considered the most serious of offences. Rather, some killings could be regarded as at least explicable or defensible, or indeed appropriate or honourable, in ways that thefts could not be.

However, some homicides did lead to the death penalty. The proportion and range of killings treated as unemendable, or at least as offences where the royal penalty was primary, may have been quite extensive and growing. The Introduction to Alfred’s Laws, developing Exodus, stated that the wilful killer, who might be characterised by lying in wait or other forms of guile, was to ‘perish by death.’* Then there were the types of killing referred to by the word '°? VI As, 1. 4, 9. Note also the death penalty for reoffending by young offenders, VI As, 12. 2.

°° VI As, 1.2,1.5. 154 TV Eg, 11.

°° TIT Eg, 7.3, I Cn, 26; these laws equate such theft with treason against one’s lord, possibly simply in terms of the penalty but perhaps more significantly through a shared association with breach of oath and pledge. Edward the Confessor granted the abbey of Bury rights regarding ebere Peof; S 1078, 1084.

°° IT Cn, 26.1, 64; note Pollock and Maitland, ii. 494-7. See also above, 165-6, 181, on husbryce. "°7 See also above, 164, for ‘oath and pledge’ focusing on theft. *°8 See above, 166; cf. the passage from Wulfstan’s canon law collection, below, 195-6, which suggests that killers motivated by hatred might not be executed but rather live to do penance. According to Af, 7,

184 PART I: LATE ANGLO-SAXON ENGLAND mord.'® /Ethelstan pronounced that those who could not deny killing through witchcraft and sorcery, and through mord-deeds, were to suffer the death penalty, as were incendiaries and those who avenged thieves.’®° Statements that some killings were unemendable begin in the reign of Athelred, with reference to homicide in a church.’ Another law probably specified the death penalty for those who killed the innocent on the king’s road.” Laws of Cnut stated that if a man, in resisting payment of ecclesiastical dues, killed another, he was ‘to be an outlaw, and each of those who wish to uphold justice are to pursue him with hostility’; and that if particularly serious killing was uncovered [@bere mord], the offence was considered unemendable.’® In addition, Edmund's laws indicate that killings involving the offences of hamsocn or mundbryce could lead to the death penalty, and under Cnut these offences required at least a heavy monetary penalty to the king.’* Even in the absence of a general reservation to the king of pleas of homicide, therefore, a wide range of killings could be seen as offences against the king and meriting the death penalty. The laws also specify the death penalty for various other types of offender.’® There were men of ill-repute or harbourers of expelled disturbers of the peace,

possibly although not certainly thieves.*°° Edmund laid down that those who committed mundbryce or hamsocn were to forfeit all they had, and the king was to decide if their lives be preserved.’” Athelred’s laws specified that moneyers who carried on their business in woods or worked in other such places were to forfeit their lives, unless the king wished to show mercy to them.’ Cnut included arson amongst the botleas offence.’ Other forms of evidence also reveal the death penalty. Literature included execution scenes.”° We have seen a royal

if a man fought or drew his weapon in the king’s hall, and was seized, the king was to judge whether he should be put to death or permitted to live. "°° See above, 166. "°° IT As, 6, 6. 2; see also Blas. Cf. II As, 6.1 (those proved guilty by ordeal), 6. 3. ‘8! VIII Atr, 1.1; see above, 177, for the possibility of mercy.

"©? TV Atr, 4. This may have been the most serious form of the offence known as forsteal, which in other instances might be emendable; see e.g. V Afr, 31, I Cn, 12. "°° IT Cn, 48. 2 (cf. EGu, 6.5), 64; see also IT Cn, 56, open mor. *°* See also above, 173.

"°° Note also I Atr, 2. 1, on the death penalty for a slave’s second offence. "°° T Atr, 1.2, II Atr, 4. '°7 IT Em, 6; see also IV Atr, 4. *°8 TIT Atr, 16, IV Atr, 5. 4. See also III Atr, 8: every moneyer accused of striking false coins after it

was forbidden was to go to triple ordeal; if found guilty, they were to be put to death. “°° IIT Cn, 64; also Blas.

‘7° See e.g. The Fates of Mortals, lines 33-42, Exeter Anthology, i. 245.

7 THEFT AND VIOLENCE 185 reeve enthusiastic that the slave of Flodoald be put to death.”* Domesday Book

records a smith having been killed for theft [latrocinium], although the circumstances of his death are not explained.'’” Homicide cases are quite unusual in the narrative sources, but Asser’s Life of Alfred tells of the killers of John abbot of Athelney being put to ‘a terrible death through various tortures,’ and a charter tells of a woman being drowned at London Bridge for driving an iron pin into an image of a man.’* Another charter shows the king having discretion over the life of a man who repeatedly ignored royal orders.” Some further case narratives show the death penalty not being applied in cases

where it might be expected.’ In the case cited at the end of the last chapter, /Ethelstan of Sunbury's default when vouched to warranty concerning possession of a woman left him owing his wergeld, but he was not put to death when he did not pay.’”” He may have enjoyed protection, or his forfeiture of property may have satisfied the authorities, perhaps being considered equivalent to his wergeld, or he may have benefited from his status. Another account tells of a thief, guilty on many counts, being whipped and sent to the stocks for sterner tortures.’”* Unless the thefts were very small, according to the laws one would have expected such a persistent offender to be put to death. Archaeology and place-name evidence both indicate use of the death penalty.”

A significant number of cemeteries have characteristics suggesting judicial execution sites. They are distinguished by features such as prominent position, use of pre-existing barrows or earthworks, and proximity to boundaries. Some skeletons show evidence of penal decapitation, whilst others have characteristics of hanging, for example the hands being tied behind the back. The evidence of place-names and charter boundaries support the archaeological evidence, for example with references to ‘the thorn where the thieves lie. They again suggest that boundaries, particularly boundaries between hundreds, were the usual place for offenders to be buried. We know little else of the procedure of putting men to death, or of any ceremony involved. Laws associated with Wulfstan specified that, if possible, no offender *”" See above, 68-9. ‘7? DB, ii. fo. 2v.

'’° Asser, Life of Alfred, 97, ed. Stevenson, 83-5. 7% § 1377.

75 § 877. ‘7° See also Liber Eliensis, ii. 32, ed. Blake, 106-7; De miraculis et translationibus S. Cuthberti, 5,

Simeon of Durham, Opera Omnia, i. 243-5. ‘7 See above, 159. 78 Wulfstan, Life of Athelwold, 46. ‘7? For this paragraph, see Reynolds, Deviant Burials.

186 PART I: LATE ANGLO-SAXON ENGLAND should be put to death on a Sunday.'*° The laws of Athelstan mention drowning or throwing from a cliff for free women, stoning for male slaves, burning for female slaves: In the case of a male slave, sixty and twenty slaves shall go and stone him. And if any of them fails three times to hit him, he shall himself be scourged three times. When a slave guilty of theft has been put to death, each of those slaves shall give three pennies to his lord. In the case of a female slave who commits an act of theft anywhere except against her master or mistress, sixty and twenty female slaves shall go and bring three logs each and burn that one slave; and they shall pay as many pennies as male slaves would have to pay, or suffer scourging as has been stated above with references to male slaves."

However, the literary and archaeological evidence just cited suggests that hanging and beheading were the most common methods.”

Other physical punishment Besides the death penalty, other forms of physical punishment were used. Anyone proved guilty of public slander was to have his tongue cut out, again unless redeemed with a payment in proportion to his wergeld.*’ A woman who committed adultery was to lose her nose and ears.'** Cnut’s laws specified that a man who wounded another whilst refusing to render Church dues must redeem his hands from the bishop, or lose them.’* Loss of a hand was also the punishment for coiners of false money, and—according to Cnut'’s laws—for reeves who colluded with such moneyers.'*° Cnut may have reduced the penalty for the untrustworthy man who was convicted a second time from death to mutilation by the cutting off of hands, feet, or both, according to the nature of the offence.’*” If the crime was particularly serious, the convicted man was to have ‘his eyes put

out, and his nose, ears, and upper lip cut off, or his scalp removed...and thus punishment shall be inflicted, while, at the same time, the soul is preserved’; the

"8° EGu, 9.1, II Cn, 45. "8! IV As, 6. 4-5, 7; VI As, 6. 3.

"S* Note also Anonymous Old English Legend of Seven Sleepers, 66-7, ed. Magennis, 34, on the heads of thieves being displayed on stakes outside city walls. 183 Af 32. 84 11. Cn, 53. 185 TT.Cn, 48. 1; cf. Af 6.

"S° ITAs, 14.1, 1V Atr, 5. 3, IT Cn, 8.1-2. Cf. above, 184, for the death penalty for moneyers operating

in woods. The distinctive penalty of loss of a hand also appears in Carolingian legislation; see e.g. the Edict of Pitres (864), 13, 16, 17, MGH, Capit., ii. 315, 317. "87 IT Cn, 30. 4, cf. TAtr, 1. 6.

7 THEFT AND VIOLENCE 187 last phrase suggests that mutilation was presented as merciful in that it gave the offender a chance of future penance and hence a possibility of salvation.”

The possibility that mutilation would lead to death is clear in one of the laws composed by Wulfstan, specifying that if a mutilated criminal had been abandoned, but was still alive three days later, ‘after this time he who wishes to have regard to his wounds and his soul may help him with the permission of the bishop’.“° An account by Lantfred tells that, at the command of the glorious King Edgar, a law was promulgated throughout England to deter all sorts of evil by horrible punishment; that if any thief or robber (cleptes...uel predo) was found anywhere in the country, he would be tortured at great length by having his eyes blinded, his hands amputated, his ears torn off, his nostrils carved open, and his feet removed; finally, with the skin and hair of his head flayed off, he would be abandoned in the open fields, dead in respect of nearly all his limbs, to be devoured by wild beasts and birds and hounds of the night.

A blameless man was charged with theft, seized, condemned and mutilated thus. Only his feet were left with life and the skin of his head not stripped off. Nevertheless, through the help of St Swithun, he was restored both in sight and hearing.° Many others must have died of their wounds. The laws mention physical punishment particularly for slaves. Most common was whipping, although some of the laws permitted a payment in lieu of the corporal punishment.” The slave's master might be responsible for carrying out the scourging.'” The slave who raped a slave woman was to be castrated.'’* Ethelred specified branding for the slave on the first occasion that he was convicted by

ordeal.'** Other laws, particularly in the time of Athelstan and Edmund, lay down especially brutal punishment for slaves. We have already noted stoning and

burning for theft, and the scourging of those who refused to participate in the execution,’ whilst according to a law of Edmund, if a group of slaves committed

"88 II Cn, 30. 5. "8° EGu, 10.

°° Lantfred, Translatio et miracula S. Swithuni, 26, Lapidge, Cult of St Swithun, 310-14; see Wormald, Making of English Law, 125-8, 370, 414-15. ? TI As, 19; IV As, 6. 5, 6. 7; EGu, 7.1; VII Atr (Latin), 2. 3-4; VII Atr (OE), 3; II Cn, 45. 2, 46. 2; Northu, 56.

IT As, 19. °° Af, 25. 1; if anyone else raped the slave of a ceorl, he was to pay 5s. to the ceorl and a fine of 60s. °* T Atr, 2, see also IT Cn, 32. Ona second failure, the slave was not to be able to make any amends

except by his head. Maitland, Domesday Book and Beyond, 29, points out a problem in dealing with slaves who had committed offences: ‘if the slave be punished by death or mutilation, his master shall suffer, and a pecuniary mulct exacted from the slave is exacted from his master’. °° See above, 186.

188 PART I: LATE ANGLO-SAXON ENGLAND theft, all but the leader were to be whipped three times, scalped, and have their little finger mutilated as a sign of their guilt; their leader was put to death.’

Fines

Various words were used to refer to monetary penalties, a law of Athelred listing wite, wergeld, healsfang, and lahslit.2” Wergeld and healsfang we have

already come across, and wergeld in particular was used as an amount of a fine, as well as of compensation. Wite was the usual word for a fine outside the Danelaw, Iahslit its Danelaw equivalent.’* Such fines, and the word wite, appear even in the earliest laws in c. 600, in addition to compensations.’”? Later evidence, notably Domesday Book, suggests that substantial fines for certain

offences may have been imposed on localities or groups, on tithings and on wapentake sub-divisions referred to as ‘hundreds.”*° Such fines may well have existed before 1066, certainly in the Danelaw, and it is possible that the opening of a set of Aithelred’s laws refers to such payments for breach of specifically established peace.” For fines on individuals, complicated calculations may have been necessary.

These might have to take into account the nature of the offence, the status of offender and victim, the place and time of the deed, and further considerations, although it is also possible that often the sums arrived at were so high that the outcome was physical punishment of the offender.*°? There were compound words used to indicate the type of fine, for example fyhtwite paid for fighting and fyrdwite for failure to serve in the army. These are not accompanied in the laws of our period by specific amounts, perhaps because they could vary according to the offender or other circumstances.*°? However, there is also evidence that

° TIT Em, 4.

7 VI Atr, 51. 8 See e.g. IT Cn, 45. 3, 46, 48. Lahslit does not seem always to indicate one standard amount, although the level of lahslit could be set in some contexts; see e.g. EGu, 3. 2, Northu, 51-3. Lahslit is also mentioned e.g. in EGu, 2, 3, 4. 1, 6, 9; V Atr, 31 (also mentioning wite and wer); II Cn, 49. For possible differences of level of penalty in Danelaw and in areas of English law, see e.g. I Atr, 1.7, III Atr, 4. 2.

"See e.g. Abt, 9. *°° See below, 409. 9 TIT Atr, 1. 2. *0? See the imagined example in Pollock and Maitland, i. 106-7. *°° See e.g. II Em, 3; IT Cn, 12, 15; S 1084, 1100; Anglo-Saxon Charters, ed. Robertson, Appx I no. 4; ASC, versions °C’, ‘D’, ‘E’, 1016. Ine, 51, had laid down the following penalties for neglect of military

service: for the gesidcund man holding land, 120s. and forfeiture of land; for the gesid not holding land, 60s.; for the ceorl 30s. DB, i. fo. 56v, specified that if anyone in Berkshire was summoned for military service, and did not go, he forfeited all his land to the king; fo. 154v, that if anyone in

7 THEFT AND VIOLENCE 189 fines might have a customary level perhaps less variable by circumstance: “he who refuses just laws and just judgments shall forfeit, in districts under English law [as opposed to Danelaw], to the party who is entitled thereto, either 120s. to the king, or 6os. to the earl, or 30s. to the hundred, or to all of them, if they are all concerned.’*4 If other customary levels of fines were well known, this may explain why the laws often do not specify sums payable.?* There are occasional references to payments of a fine of 60s., as in Alfred's laws for the rape of a ceorl’s slave,*°° and in Edgar's for selling and buying wool at cheaper than the specified rate.*’” 30s. may have been the regular fine payable to hundred.*°* However, three levels of fine payable to the king predominate, 120s., five pounds, and the offender's wergeld. Alfred's laws state that ‘formerly the fines to be paid for stealing gold and horses and bees, and many other fines were more than others; now all are alike, except that for stealing men: 120s.”°? A law of Athelred refers to the 120s. fine as ‘the king's fine.”° It was employed in various circumstances, for example for the thief who was not to be slain but rather was placed in prison for forty days and then released with his relatives standing surety that he not reoffend. A fine of 120s. could also be called the fine for oferhyrnesse, that is disobedience. Laws of Edward the Elder specify such a fine for offences including repeated withholding of another's right in bookland or folkland, and failure by the reeve to exact an appropriate monetary penalty.” Elsewhere the amount of the fine for oferhyrnesse is not specified, but is for similar wrongdoing.” Further offences constituting oferhyrnesse included

the buying of goods outside a recognised trading-place [port], the taking of a

Oxfordshire was summoned to go on military service, and did not go, he gave the king 100s. Note also VIII Atr, 17, for worldwite. Also Anglo-Saxon Writs, 83-4, for blodwite and weardwite. *°* II Cn, 15. 2. Note also Af, 40, quoted above, 20, on varying penalties for burgbryce; VIII Atr, 5, concerning the violation of sanctuary, for which the rate of penalty varied according to the status of the church. For variation according to circumstance, see also Af, 40. 1, where double compensation is specified when the army was in the field or during Lent. *°° See e.g. Af, 29-31; IT Cn, 17.1. 206 AF 25,

*°? III Eg, 8. 3; in this case, however, the fine may have been of 120s., divided between the parties. *°8 See III Em, 2; IT Cn, 15. 2. 209 AFO 2.

*"° VIII Atr, 5. 1. Note also the references to the ‘full fine’ in the context of failure to render ecclesiastical dues, for which the penalty elsewhere is set at 120s.; see esp. I Eg, 3, VII Atr, 7, VII Atr, 11, I Cn, 10, IT Cn, 48. This may have been one of the penalties that Alfred changed; cf. Ine, 4. *"" IT As, 1.3. See also IT As, 1.5, 3, VI As, 1.5, for use of the fine for those aiding offenders or seeking to avenge thieves without actually committing a killing. Note also HI Em, 6. 2, 7. 2. *"? T Ew, 2.1, I Ew, 2.

13 Bg IT As, 25, VI As, 8.4.

190 PART I: LATE ANGLO-SAXON ENGLAND man into service who had been in the service of another, without the latter's permission, and failure to attend court three times.”* The range of offences covered, and thus the range of offences considered as in some sense against the king, is again notable. Sometimes a fine is specified as 120s. but not described as for oferhyrnesse, even though that term is used in other laws concerning a related matter.”* This suggests the possibility that all 120s. fines were for failure to show due obedience

to the king, for oferhyrnesse; this would increase the possible parallels to the Frankish bannum.’” References to the fine specifically for oferhyrnesse are considerably less frequent in the laws after the time of A:thelstan, although there are instances, for example for neglect of the hue and cry.”” This decline in use of the term may be because the fine was sufficiently established that oferhyrnesse did not need explicit mention.

A heavier fine, of five pounds, probably double the 120s. fine, is also mentioned.”* A law of Alfred specifies that breach of the king’s security [borg] was to be paid for with five pounds.” Likewise, a law of Athelred refers to this as the fine for breach of the king’s mund or protection.” A:thelstan specified that five pounds was the penalty for first violation of decrees issued at Grately.”” It is possible, therefore, that just as the 120s fine for insubordination was used increasingly extensively, so too was the payment for breach of royal protection. /Ethelred’s laws specified five pounds as the payment for failure to pay toll, whilst Cnut’s laws mention it in relation to hamsocn and harbouring of fugitives. This may mark a relaxation of earlier provision of the death penalty for hamsocn.?”

A still higher monetary payment might be that of the offender’s wergeld, but this would depend on his status: the 200s. wergeld in Wessex amounted to only 1,000d., if the shilling was made up of five pennies. Such a wergeld *™* T Ew, 1.1; IT Ew, 7; I As, 22.1; IT As, 20. Note also VI As, 7, 8. 4. *"? See IT Ew, 7, IT As, 22.1, V As, 1;and note IV As, 7, VAs, 1. 2.

**° However, note the qualifications to the importance of the Frankish bannum in M. Innes, State and Society in the Early Middle Ages (Cambridge, 2000), 5, 143; cf. Ganshof, Frankish Institutions, esp. 11-12.

*"7 II Cn, 29.1. Note also IV Atr, 6, concerning coinage. See 189, on VIII Atr, 5.1, calling 120s. ‘the king’s fine’.

**8 This calculation works on the not entirely secure premise that the pound was equivalent to 240d., and therefore five pounds amounted to 1,200d.; 120s. at 5d. to the shilling amounted to 600d.; see Chadwick, Anglo-Saxon Institutions, 12-20, 26-31. 19 Af, 3, *29 VIII Atr, 5.1. *2" IT As, 25. 2; see below, 191, for punishment for subsequent offences. *22 IV Atr, 3. 2, II Cn, 13. 2, 62. Note also the 100s. (i.e. 1,200d. or five pounds) fine mentioned in Kent Domesday, i. fo. lr; however, it also mentions a higher, eight pound fine for breach of the peace. See above, 184; it is possible that the provision of the death penalty for husbryce, above, 181, continued to cover some of the offences previously included as hamsocn.

7 THEFT AND VIOLENCE 191 was therefore less than the five pound fine, assuming that this amounted to 1,200d.’% Nevertheless, the wergeld payment is presented as greater than the five pound fine in various contexts. Whereas refusal to pay ecclesiastical dues

normally resulted in a fine of 120s., the Wulfstan text known as the treaty between Edward and Guthrum specifies forfeiture of wergeld if the person refusing to pay fought and wounded anyone.” In Athelstan’s laws a second violation of the Grately decrees was to be paid for by the wergeld, compared with the five pounds payment for the first violation.** It is possible that this clause was concerned not with simple offenders but with reeves and perhaps others who were to enforce the decrees, and who would have been of higher wergeld. A similar concern with men of higher status failing to enforce justice may be apparent elsewhere in laws of Athelstan. These specify that anyone sparing a thief seized in the act was to pay for him [forgylde] to the amount of his wergeld and that anyone who took a bribe from a thief and frustrated the just claims of another was to forfeit his wergeld.**° Cases show payment of wer as part of court procedure, as part of a compromise in a land case, as a way of avoiding forfeiture of land, and as punishment for rapine and for disobedience of a royal order.’” Being allowed to pay wergeld may have been regarded as a merciful escape

from the death penalty, and some laws present the two as alternatives. An increase in references in Athelred and Cnut’s laws to payment of wergeld as a fine by first time thieves or by those letting thieves escape may reflect ideas on mercy or indicate an increased emphasis on profit from justice. Alternatively, a lack of clear consistency within the laws may hide continuity of practice, with those who could raise the money obtaining mercy, others being liable to death, or at best to penal enslavement.?”*

*25 See above, 190 n. 218.

*2* EGu, 6.5; cf. IT Cn, 48. 1. Note also EGu, 2, 3, V Atr, 31, VI Atr, 38, on payment of wer or wite or

lahslit according to the nature of the offence. *2° TI As, 25. 2. Cf. II Cn, 83, on violation of the king’s laws: a first offence led to forfeiture of wergeld to the king, a second to a double payment of wergeld, a third to forfeiture of all the offender owned. See also II Cn, 69. 2. *2° II As, 1.1,17; note also IT As, 20. 8, on harbourers. *27 See S 877, 1447, 1454, Liber Eliensis, ii. 11, ed. Blake, 85, all from the period 968 x 996. *28 Note esp. VI As, 1.1, 1. 4; I Atr, 1.5, 1. 7, 1.13, IT Atr, 6. 2, II Cn, 30. 3b, 30. 6; also above, 190, on

the fine for hamsocn. It is also possible that changes in treatment of those who allowed thieves to escape may relate to changes in surety practices. For the exercise of mercy with regard to those who may have been considered worthy of death, see also above, 186-7, on mutilation. On penal enslavement, see below, 194-5.

192 PART I: LATE ANGLO-SAXON ENGLAND Forfeiture /Ethelstan’s laws presented a still higher level of penalty. If the first time a reeve violated his Grately ordinances he was to pay five pounds, on the second his wergeld, on the third occasion he was to lose all that he owned, as well as ‘the friendship of us all’.’”? Such forfeiture probably covered both movable property and land. For some serious offences forfeiture of all property was in addition to possible death.¥° According to the London peacekeeping regulations, after the value of the stolen goods had been subtracted, what was left was divided in three: one-third went to the thief’s wife if she was not an accessory; one-third

went to the king; one-third to the slain man’s associates. If the property was bookland or bishop’s land, the lord of the land was to share it equally with the man’s associates. In possible contrast, a law of Cnut specified that if a man forfeited for deserting his lord or comrades on expedition, his lord was to take back

the property and land that he had given him, but bookland was to pass to the king.” The close connection of bookland to king is very clear.’ Some further laws associate forfeiture of goods with outlawry. In the mid-tenth century, it was laid down that a person who four times failed in his obligations to the hundred concerning pursuit of thieves was to suffer loss of all that he possessed and be outlawed, unless the king allowed him to remain in the land.*® Cnut specified that a man who did a deed involving outlawry should forfeit his bookland.”#+

In other instances there is no mention of the death penalty or of outlawry, for example in Alfred’s laws concerning breach of oath and pledge,*® in Edmund’s concerning the taking of revenge on anyone other than the actual offender,”° or in Edgar’s concerning repeated refusal to pay the ecclesiastical due known

*2° TI As, 25.2. Note also IT As, 3.1.

75° See Af, 4, VI Atr, 37, II Cn, 77 on treason; VI As, 1. 1, on theft; VI As, 1. 5, on slaying in vengeance fora thief; IJ Em, 6 on mundbryce and hamsocn; IV Eg, 11,ona man making a false statement concerning a cattle purchase, who was to be regarded as a thief and forfeit his head and all that he possessed; I Cn, 2. 2, on violation of Church protection leading to loss of land and life, unless the king pardoned the offender. *2" VI As, 1. 1; II Cn, 77. It is possible that the two provisions are reconcilable, with landhlaford in the Athelstan law referring to the king in relation to bookland, the bishop in relation to bishop’s land. Alternatively, the situation may have differed in London from elsewhere; the provision for the dead man’s associates suggests a London privilege. *°? See above, 97-8. *°° Hu, 3.1. *°* 11Cn, 13.1. *2° See Af 1. 4; note also IT Ew, 5.1.

*°° TI Em, 1.3; the offender also incurred the hostility of the king and his friends.

7 THEFT AND VIOLENCE 193 as Peter’s Pence.”” It may well be that the death penalty was sometimes just assumed; AAthelstan’s provisions concerning those who harboured thieves mentioned forfeiture in one instance, in another death and forfeiture.** Elsewhere, however, silence on the death penalty is harder to explain.”

Accounts of cases mention lands being forfeited, both by great men and by lesser.”4° The offences include treason," theft,’” killing,’ and other violence.”*4 A charter of 995 records that a certain Athelsige forfeited Dumbleton to King /Ethelred: ‘it was because he stole the pigs of Athelwine, the son of Ealdorman /Ethelmeer; then his men rode thither and brought the bacon from Athelsige’s house, and he escaped to the wood. And he was then outlawed [aflumde] and his land and possessions assigned to King A:thelred.’*** Because such accounts appear in charters recording land grants, there is less information concerning forfeiture of movable goods, and the texts did not need to mention whether the person forfeiting was put to death or outlawed.”*° No authentic charter recording forfeiture for an offence survives from before the time of Alfred, and the first clear instance is from 901. It is possible, therefore, that forfeiture was new as a penalty at this time, and may have been linked to the oath of loyalty to the king.*” Thereafter, it is hard to tell whether the geo-

graphical distribution of known cases of forfeiture reflects royal power or the survival of evidence.

Likewise it is hard to tell whether there was an increased emphasis on royal profit from justice. A law of Edgar laid down that no man was to forfeit [forwyrce]

more than his wer for any botworthy offence.”** This suggests that large and perhaps arbitrary exactions were made, a practice that certainly produced protests after the Norman Conquest.” There are also other signs of oppressive use

*°7 TI Eg, 4.3. See also Hu, 2.1, Cn 1020, 17.

*°8 IV As, 3.1 (which survives only in the Quadripartitus version), V As, Prol. 3. *5° E.g. VI Atr, 35, 36, with V Atr, 28, 29; VI Atr, 37, and V Atr, 30, both mention death, but only the

former mentions forfeiture. **° For lands amounting to a hide and a half or less being forfeited, see S 753, 792, DB, ii. fo. 2v. For lands of which it was said that they could not be forfeited, see above, 67. **" See e.g. S 362, 414-15, 896, 918, 927, 934, 937. *4 See e.g. S 752; Liber Eliensis, ii. 34, 49b, ed. Blake, 109, 117.

45 § 892 (‘mid unrihtu monslihte’). *4*" Liber Eliensis, ii. 49b, ed. Blake, 117. For forfeiture of land for unspecified offences, note also S 842, 869; DB, i. fo. 376r; Liber Eliensis, ii. 7, ed. Blake, 80. “2° § 886. **° Tn S 1457, the person forfeiting, a widow, was not put to death. *“7 Wormald, ‘Charters, law and the settlement of disputes’, 308. 248 TIT Eg, 2.2.

**° See below, 403-4.

194 PART I: LATE ANGLO-SAXON ENGLAND of property penalties.**° However, evidence is not sufficient to reveal variation between reigns and or even a more general pattern of change over the period. Most of our evidence is for fines and forfeitures going to the king. However,

some went to others because of their office or because the peace that they or their place of residence should have enjoyed had been broken. Thus Alfred's laws specified that “if anyone fights in an assembly in the presence of the king's ealdorman, he is to make amends with wer and wite, as is just, and before that 120s to the ealdorman as a wite.” If anyone fought in the dwelling of a ceorl, an ordinary free man, he was to pay the ceorl 6s., more if the dwelling was that

of a man of higher status.** Further payments straddled the border of fine and compensation, as in the case of the manbot paid to a slain man’s lord.” In addition, kings might allow to favoured individuals fines and forfeitures arising

from offences, as has already been discussed in the context of jurisdictional rights.**4

Enslavement The possibility of men being enslaved as a punishment was mentioned both in penitentials and in laws, and such men also featured in wills. A law of Edward the Elder laid down that if anyone, on account of an accusation of theft, forfeited his freedom and submitted to a lord, and his kinsmen forsook him, and if no-one would make amends for him, he was to do fitting ‘slave labour [beoweorces], and his kin lost right to wergeld if he was slain.”® It is possible that the servile labour was taken to be the equivalent of the fine the offender would have had to pay. Certainly it may be that some men were enslaved because they could not afford to pay the fines or compensations that their offences required. Such enslavement may often have been the fate of the wrongdoer who fled to a church for asylum. The tract Grid stated that if a homicide reached sanctuary, he could save his life by paying his wergeld, by imprisonment, or by entering life-long servitude.”° In some cases the enslavement may have been permanent, in others the reduced

*°° See II Cn, 76. 2, on babies in cradles being treated as guilty of cognisance of theft. *°" Af, 38; see also Af, 38. 1-2. 252 AF 39,

*°° See above, 179. *°* See e.g. I Atr, 1.7, II Cn, 73. 1; above, 58-61. Note also the forfeitures of land in S 1453 (archbishop

obtaining lands forfeited for an illicit union). Lords may previously have received some such payments

as their own entitlement; kings then asserted some control by presenting the lords’ enjoyment as a matter of royally granted privilege. *°° IT Ew, 6; on ceremonies of submission, see below, 221. For penal slaves who had been born of

gebur status [burberde] being distinguished from men who had been born as slaves, see $ 1285. *°° Grith, 16; on this tract see Wormald, Making of English Law, 394-5.

7 THEFT AND VIOLENCE 195 position may have lasted only until the service performed amounted to the debt

owed.”

Imprisonment Imprisonment, or confinement in stocks or shackles, was in general a temporary measure for those awaiting trial or punishment, particularly those who could not be secured through sureties.** However, in the laws of Alfred and Athelstan, there are signs of imprisonment for forty or 120 days having a penitential function. Alfred specified that the man who swore his oath and pledge, but left his duty unfulfilled, was to be imprisoned for forty days at a royal estate and undergo there what the bishop prescribed as penance.*® AEthelstan laid down 120 days in prison for a person convicted by the threefold ordeal for witchcraft or similar offences, as well as for arsonists and those who avenged thieves; the offender’s kin might then take him, pay 120s. to the king and wergeld to the dead man’s relatives, and act as sureties that the offender would henceforth desist from such deeds.*®

Penance Secular penalties co-existed with ecclesiastical, penitential ones, for example for theft, homicide, and perjury. Penance is sometimes mentioned in the laws: ‘if anyone sheds the blood of a Christian man, he shall not come anywhere near the king until he goes to atonement, as the bishop instructs or his confessor directs him-?* Wulfstan’s collection of canons included a long section on penances for homicide: He who has killed a monk or cleric is to give up his arms and serve God in a monastery, or do penance as an exile for seven years.... He who has killed a layman

*°7 See C. H. Riggs, Criminal Asylum in Anglo-Saxon Law (Gainesville, 1963), esp. 13-16, 20-1; VI As, 12. 2; below, 216 n. 121. See also S 1503, the will of the ztheling Athelstan: ‘First I grant that every witefeestne man whom | acquired in the course of pleas [ic on spreece ahte] be freed’ Anglo-Saxon Wills,

168, comments that such witefestne men could be the profits of jurisdiction, or have been obtained through their failure to pay compensation due to the etheling after he had won a suit against them. *°8 See e.g. EGu, 3, IT Cn, 35; Reynolds, Deviant Burials, 12-18. *°° Af, 1.2; see also IT As, 1. 3; note further IT As, 7.

°° TI As 6. *°" I Em, 3; see also e.g. Af, 1, 2; II Em, 4; also above, 83, on II As, 26. Note T. P. Oakley, English Penitential Discipline and Anglo-Saxon Law in their Joint Influence (New York, 1923), esp. 144-8, on penitential matter in the Anglo-Saxon laws. See also S. Jurasinki, “The Old English penitentials and the law of slavery’, English Law before Magna Carta, ed. Jurasinski et al., 97-118; S. Hamilton, ‘Remedies for “great transgressions”: penance and excommunication in late Anglo-Saxon England’, in Pastoral Care in Late Anglo-Saxon England, ed. F. Tinti (Woodbridge, 2005), 83-105, ‘Rites for public penance in late Anglo-Saxon England’, in The Liturgy of the Late Anglo-Saxon Church, ed. H. Gittos and M. B. Bedingfield (5 Subsidia Henry Bradshaw Soc., 2005), 65-103, and The Practice of Penance, 900-1050 (Woodbridge, 2001).

196 PART I: LATE ANGLO-SAXON ENGLAND in thoughts of enmity, or of taking possession of his inheritance, three, or five, or seven years. He who has killed in vengeance for a brother, one year and, in the two following, three periods of Lent and proper [legitimas] festivals.*®

Penance might involve fasting, vigils, prayers, and pilgrimages. It benefited the offender’s soul, would warn against reoffending, and might deter other sinners.

Burial in unconsecrated ground From the tenth century the laws start to mention that serious offenders should be buried in unconsecrated ground. Laws of Athelstan and Edmund specify such burial for perjurers and sexual offenders as well as for homicides, unless they made due amends.*® Laws of AAthelred include those regarded with general

suspicion and unable to have surety, as well as various other types of offenders.”** In an earlier chapter we saw a dispute involving king, ealdorman and reeves concerning the burial of slain robbers in consecrated land.** As well as demonstrating the exclusion of wrongdoers from the community, such burial would ensure their ever-lasting punishment.

7 BANISHMENT AND OUTLAWRY ‘Ethelstan’s legislation shows a particular concern with banishing powerful wrongdoers, with their wives, children, and property, wherever the king chose. If they returned to their native district, they were to be treated like thieves caught in the act, that is to be slain. Such people may have been sufficiently powerful to await their sentence of exile. Later evidence suggests that the majority of offenders, at least serious offenders,

would flee rather than face trial in person and subsequent punishment.*” Such

*°?, Wulfstan, Canon Law Collection, Recension A, 102, ed. Cross and Hamer, 108-11; see also Recension B, 21, ed. Cross and Hamer, 120-1. Note also the penitential letters probably collected by Wulfstan; Councils and Synods, I, no. 43. *°° TI As, 26, I Em, 1, 4, 6. Amends here probably means penance, as is suggested by the involvement ofa confessor in the arrangements laid down in £thelstan’s law. See further Reynolds, Deviant Burials, esp. 24-6, 219-27, who also discusses place-name evidence. *°* See I Atr, 4.1, III Atr, 7.1, IV Atr, 4, I Cn, 33.1.

*°° See above, 39. See also S 414-15, concerning burial in Rome; S 1447, for payment of wergeld perhaps being enough to obtain burial in consecrated land. *°° TIT As, 6;1V As, 3, V As, Prol. 1-3; note Reynolds, Deviant Burials, 14-15. *°7 See below, 719.

7 THEFT AND VIOLENCE 197 persons were put outside the protection of the law, and at least in some cases might be expected to have left the area in which they lived, or even the realm. Outcast, fugitive, and outlaw, wrecca, flyma, and utlaga, all appear as terms for such people.?®

The laws indicate the types of offences for which a person might be put outside the protection of the law.’ A:thelstan laid down that the lordless man for whom his relatives would not or could not find a lord was henceforth to be a fugitive, and anyone who met him might take him to be a thief and kill him.” The Hundred Ordinance specified that the man who four times ignored the authority of the hundred was to lose all that he possessed and be an outlaw, unless the king allowed him to remain in the land.”” If a lord failed to clear himself of aiding the escape of his man who was facing an accusation, the lord was to pay his wergeld to the king, and the man to be an outlaw.’ Accounts of cases show outlawry for killing, for theft, and in political disputes.” As the laws of thelstan just cited suggest, outlaws who were captured should face death. Laws of A:thelred state that anyone who was a fugitive in one district should be a fugitive everywhere, and that Danes outlawed for killing eight Englishmen were to be entitled to no wergeld.*“ In addition, the outlaw was to forfeit his property; according to Cnut, if he had bookland, it was to be forfeited to the king, no matter whose man the offender was.”° According to Cnut’s laws, ‘if anyone does the deed of an outlaw, the king alone controls that peace [frid]’.””° Likewise Domesday Book for Lincoln stated that ‘if any one for any crime [reatu] is outlawed by the king and by the earl and by the men of the shire, no-one but the king can give him peace’.”””7 Domesday

*°® See E. M. C. van Houts, “The vocabulary of exile and outlawry in the North Sea area around the first Millennium, in Exile in the Middle Ages, ed. L. Napran and E. M. C. van Houts (Turnhout,

2004), 13-28; at 28 she concludes that use of the Scandinavian loanword utlah in England and Normandy from the late tenth century was a linguistic rather than a legal change. II Cn, 13, shows that flyma and utlaga could be used of the same person. It is possible that the terms were sometimes used more narrowly, e.g. wrecca in Af, 4. *°? See also EGu, 6. 6, IT Cn, 48. 2, on the person who resists payment of Church dues and kills a man; IT Cn, 39, on the killing ofa priest; IT Cn, 41. 2, on the priest who committed a serious offence. *7° IT As, 2.1.

*7) Hu, 3.1. *72 See! Atr, 1. 9a, 1.13, IT Cn, 30. 9, 31. 2.

*75 See S 886; Anglo-Saxon Charters, ed. Robertson, no. 40; ASC, 1020, 1065; DB, ii. fos 310v-311r. *74 III Atr, 10, II Atr, 7.

*7° IT Cn, 13. 1; see also above, 98. Those knowingly harbouring or aiding fugitives or outlaws might have to pay a fine, or perhaps even risk their lives and property; see I Cn, 13. 2, 15a, 66; S 926. *7° TI Cn, 13.

*77" DB, i. fo. 336v; see also i. fos 262v (Chester), 280v (Nottinghamshire and Derbyshire).

198 PART I: LATE ANGLO-SAXON ENGLAND Book for York, however, mentions the possibility of the earl or sheriff expelling a man from the region [regio], and being able to recall him and give him peace if they wished.”’* However, this was a form of regional banishment, a more limited sentence than royally declared outlawry.

8 CONCLUSION In dealing with serious offences various ideals met. Kings and at least their ecclesiastical advisers promoted ideals of peace, for the preservation of which the king was primarily responsible. At times, notably in 4thelstan’s reign, they seem to have sought to achieve their aims through the savagery of a wrathful ruler, at others they were persuaded that such savagery had gone too far, notably in the execution of young offenders.””? Peace might be promoted directly through the actions of royal officials, extending royal administrative control. Such ideals and practices might conflict with impulses to self-help and vengeance on the part of those involved in disputes. At the same time the king's own actions might be presented as vengeance,”*° and he also sought to co-opt, direct, and control others’ desire to take vengeance or regain their property.” The local remained essential in any effective tackling of theft and violence, and this must have been still more true in relation to lesser offences.

Likewise compensation remained significant throughout the Anglo-Saxon

period, but there may have been an increase in the relative importance of punishment for serious offences.*” The usual Old English word for compensation was bot, but from Alfred’s time bot was also increasingly used for payments

to God, the Church, men in general, or the king.”* In the Introduction to

*78 DB, i.fo. 298v.

*”? On Atthelstan, see above, 186; see also above, 187, on possible legislation of Edgar. For /Ethelstan, however, note also the amnesty in II As, 3, and arrangements for compensation for theft in V As, 3. 1. For the age of execution, see above, 168; for legislation against the imposition of the death penalty for trivial offences, see VI Atr, 10, IT Cn, 2.1. Cnut may have replaced the death penalty with mutilation for some offences; see above, 186, on II Cn, 30. 4; cf. I Atr,1. 6. *8° See above, 192 n. 236; also e.g. IT Ew, 5.1, EGu, 12, VIII Atr, 2.1, 34.

*8" See above, 174. See also above, 194, on the possible presentation of local situations as the product of royal privilege.

*°? Note also that whereas Alfred’s code dealt with sexual offences through compensation or revenge (above, 166, 173), possibly from the mid-tenth century and certainly from the time of Wulfstan, there was a new emphasis on penalties owed to the king, bishop, or lord; see e.g. EGu, 4; also below, 440, on Domesday Book. *8° For bot being used to mean amends laid down by the Church (godcunde bot), see esp. II Em 4, V Atr, 29, II Cn, 38. 2; see also IT As, 26.1. For bot to God and men, see I Cn, 2. 3, II Cn, 39. 1, 41. 2; to God and world, see VI Atr, 36, II Cn, 38. 1; to Christ and king, see VIII Atr, 36, Northu, 54. 1, 59.

7 THEFT AND VIOLENCE 199 Alfred’s laws, it referred to payments to secular lords rather than victim or kin.”*4 In AAthelred’s laws, the untrustworthy man twice found guilty by ordeal

was not able to make any bot except by his head, that is by suffering death.’* Such usage suggests that, at least in the eyes of those composing the laws, theft and violence were increasingly matters for the king, but in terms shaped by previous practice. The extent of royal success in actually establishing good order and catching offenders is extremely hard to determine. Edmund's laws are very unusual in containing a passage celebrating the diminution of theft.*° There was no doubt geographical variation, perhaps particularly across the Humber, and also variation over time. The evidence may exaggerate the degree of royal control. We know of cases where lands were forfeited to the king because of offences committed, as these appear in charters concerning those lands; we are less likely to know of cases where offenders escaped unpunished. Likewise it is very difficult to tell whether the lack of surviving accounts of feuds is an indication of royal success in maintaining

peace. Legislation concerning vengeance occasionally re-emerges in the later tenth century, for example concerning the involvement of monks or men in holy orders.”*” Powerful men or kindred, who posed a threat to the peace, continued to be a problem. A theft might still escalate to a deadly outbreak of violence.”** Yet the achievements of the late Anglo-Saxon kings do seem to have been considerable, not least in exercising their control over a much more extensive kingdom. The heightened aspiration of royal action to limit feud may be evidence of a reduction in the role of self-help, an increased use of judicial routes.”*? The very

fact that some men pursued their animosities through the courts, for example by bringing false accusations, can be taken as a sign of the importance of royal justice.”° The association of offences, certainly of theft, with disloyalty, and the consequent use of forfeiture, distinguished law in late Anglo-Saxon England from that of contemporary Francia. These developments underlie the appearance in the Angevin period of notions of felony and of crime. The strength of royal justice and its punishing of offences were a crucial contribution of the Anglo-Saxon period to the development of English law.

*8* Af, Intro. 49. 7. *8° T Atr,1. 6; see also I Atr, 2. 1, II Cn, 32.1. *8° TI Em, 5.

*87 VIII Atr, 23, 25, I Cn, 5. 2b, 2d. Note also the passage from Wulfstan’s canon law collection, cited above, 195-6. 78° See above, 39. 78° See above, 172-4.

*°° See e.g. ITI Eg, 4; note also the emphasis in Swer on oaths not being brought through hatred.

Status

[’ is often difficult and sometimes misleading to separate the legal from the

social and economic aspects of personal status in Anglo-Saxon and indeed in post-Conquest England. For example, notable indicators of status might be how honourable were any services owed and whether services of a less honourable kind had to be performed in person.’ In addition, aspects of status can overlap with aspects of what might better be referred to as office, most notably in the case of thegnship.” Nevertheless, the notion of legal status remains analytically useful, focusing attention on contexts in which status could be of legal consequence, notably jurisdiction, procedure in court, penalties suffered, relationship to movables and land, lordship. A law of Cnut also reveals how the legal consequences of status could be manipulated for advantage, with lords representing their men as either free or slave, the better to protect them.‘ Analysis of legal status rests primarily on laws and treatises, most notably the Rectitudines singularum personarum, possibly originating in the mid-tenth century, and the Wulfstan text GePyncdo, supported by some case evidence-

Domesday Book provides a mass of material, but the fact that it is in continental Latin makes more difficult its assimilation with the Anglo-Saxon texts. Furthermore, Domesday evidence may reflect the assumptions of those responsible for the compilation of the survey and the Book. Whilst the Domesday material is so important and from so close to 1066 that it must be used, I have deliberately

avoided drawing on the post-Conquest collections of Leges. Such exclusion reduces our evidence, but helps to avoid anachronism and distortion.°® " Note e.g. the references to services at DB, i. fos 172v (‘et reddebat inde omnes consuetudines firme sicuti reddebant antecessores sui excepto rustico opere sicut deprecari poterat a preposito’), 173v (‘sicut rusticus serviens ). * See below, 203-6; also above, 17. > See above, chs 3, 4, 5, 7. * II Cn, 20.1.

> On these treatises see, respectively, P. D. A. Harvey, ‘Rectitudines Singularum Personarum and Gerefa’ (1993) 108 EHR 1-22, Wormald, Making of English Law, 391-4. ° See e.g. LHP, 70, ed. Downer, 218-20, on slaves, as used in Maitland, Domesday Book and Beyond, 30-3.

8 STATUS 201 1 HIERARCHIES The laws and other texts provide various hierarchies of status. Some involve wergelds, the amount to be paid in compensation for a man’s death and also used as a level for fines’ Alfred’s laws give as the main categories those with 1,200s. wergelds, those with 600s., and ceorls with 200s.° Probably above these categories were the king, archbishops, bishops, and ealdormen.’ The later laws only mention the 1,200s. and 200s. categories.”

We also have evidence for wergelds from Northumbria, Mercia, and Kent. Although the texts concerning Northumbria and Mercia come from the eleventh century, their references to kings of those regions probably indicate an earlier origin: there was no Mercian king after the 880s, no Northumbrian after 952. The Nordleoda Laga (The Law of the North People) specifies a payment of 30,000 thrymsas for the king, half being the wergeld that belonged to the kinsmen, half being the ‘royal compensation [cynebot]’ to the people. The wergeld of the archbishop and the ztheling was 15,000 thrymsas, that of the bishop and ealdorman 8,000, that of a hold (probably a royal representative) and a king’s high-reeve 4,000, of a mass thegn (i.e. a priest) and a secular thegn 2,000, of a ceorl 266, which, the text states, was 200s. according to the law of the Mercians. The text also specified wergelds for Welshmen of various categories.” The Mercian Law, contained in the same compilation, specified 30,000 sceattas, that is 120 pounds, as the king’s wergeld, and a second equal sum to belong to

the people as royal compensation. The royal wergeld was six times that of a thegn, specified as 1,200s., which in turn was six times the 200s. wergeld of a ceorl.’* We have no such tracts concerning status in Kent, but a writ of Cnut was addressed to the shire’s thegns, ‘1,200 and 200’. It may therefore be that there ” See above, 190-1. 8 Af 29-31, 39. ” See Af, 40. Ealdorman Alfred’s will instructed his daughter to take ‘min twa wergeld’ to St Peter’s,

presumably in Rome; S 1508. Harmer, in SEHD, 89, argued that the phrase did not mean ‘twice my wergeld’ but rather ‘my two wergelds, on the analogy with king’s twofold wergeld in Mercian and Northumbrian laws. See VI As, 8. 2, III Em, 2, Cn 1020, 1. *" Nordleod, 1-12. The calculation must be that the thrymsa is 3d., the Mercian shilling 4d. On coins, units of account, and variations over time and region, see Chadwick, Studies, 1-31; S. Lyon, ‘Some problems in interpreting Anglo-Saxon coinage’ (1976) 5 Anglo-Saxon England 173-224. See Wormald, Making of English Law, 393, for the background to Nordleod and Mirce. ‘? Mirce, 1-2. The calculation must be based on Mercian shillings of 4d., so the ceorl’s wergeld was 800d., the thegn’s 4,800d., the king’s 28,800d. The tract known as Ad, 1, similarly specified that the oath of a 1,200 wergeld man was equal to the oath of six ceorls, for if a 1,200 wergeld man was to be avenged, he would be fully avenged on six ceorls, and his wergeld was that of six ceorls. Sceatta here means coin or penny.

202 PART I: LATE ANGLO-SAXON ENGLAND was a group of men in Kent with a wergeld of 200s. yet who were considered in some sense thegns.” If we move from wergelds to other forms of hierarchy, a bipartite division is prominent, resembling that between the 1,200s. and 200s. people. Law-codes refer to men ‘eorlisce ge ceorlisce’,, the former term perhaps indicating aristocratic status generally.’* Superior to thegns, in terms for example of fines for the violation of their protection, were the king, archbishops, bishops, and ealdormen, the last two being equated. The treatise on status known as GePyncdo has as its main categories ceorl, thegn, and earl. Finally we have various other diverse hierarchies, not necessarily made up of distinct legal categories. The laws known as VII Athelred distinguish, for example, between the slave, the poor free man, and the king’s thegn; or the householder [bunda], the slave, and the thegn.”° The Rectitudines singularum personarum distinguishes thegn, geneat, cottar, gebur, and slave, whilst the tract known as the Northumbrian Priests Law, probably from the first half of the eleventh century, distinguishes king’s thegn, landowner [landagende man], and peasant | feerbenal| or ceorl.”

2 MEN OF HIGHER STATUS fEtheling Below the king the laypersons given the highest status in legal contexts were the ethelings. For example, Cnut’s laws give the penalty for the violation of the king’s protection as five pounds, for that of the archbishop or an etheling three pounds,

** § 985. Cf. the reference in the address of III As to ‘omnes Cantescyre thaini, comites et villani’. If this means something like ‘all the thegns of Kent, noble and common, it may be taken asa parallel to Cnut’s writ. S 1482, the will of Abba the reeve, specifies that his wergeld was 2,000. Harmer, in SEHD,

78, takes this to be 2,000 pennies, the penny being the only monetary unit apart from the mancus mentioned in the document. This would be the 100 Kentish shillings of 20d. (Chadwick, Studies, 18-20), the free man’s wergeld in the early Kentish laws; Abt, 21, HI, 3. The only other possibility is that

the word thrymsa needs to be supplied, making the amount 300 Kentish shillings, that is the wergeld of Kentish noble in the early laws. Seee.g. VIAs, Prol; also Af, 4. 2. *? See Af, 3; note also Af, 15, 40.

'© VII Atr (Latin), 2. 4, (OE) 3; see also (OE) 5.

‘7 Northu, 48-53; I take Northu, 53 to show that the ferbena mentioned in Northu, 50, is of ceorlish status. For matters of definition, see also Williams, World before Domesday, Introduction.

8 STATUS 203 for that of a bishop or ealdorman two pounds.” The term etheling in this period seems to have had a fairly general sense of prince, rather than of heir apparent or designated heir, although zthelings may well have shared with the reigning king at least descent from a common grandfather.”

Ealdorman and earl During the last century of Anglo-Saxon England the term ealdorman was being replaced by the term eorl, earl. Both terms appear in Cnut’s laws, with no distinction being made between them.”® Such men combined aristocratic status with the holding of a major administrative office, and by the end of the Anglo-Saxon period there was very clear pressure for the position to be hereditary.” We have already examined their role in courts and the administration of justice.” Were there other legal aspects to their status? Only the Nordleoda Laga provides a distinct wergeld for an ealdorman, although the silence of the other laws need not be significant. IT Cnut details a specific heriot for an earl.” In matters such as the violation of protection, the ealdorman was equated with a bishop.** However, there is no evidence of different treatment of ealdormen or earls in matters such as trial procedure or punishment.

Thegns and king's thegns Thegn was a word of changing and diverse meanings, rendering it more difficult to analyse as an indicator of legal status. Its etymology suggests humble origins,

as a servant. However, in the late Anglo-Saxon period it was used to mean a

*® II Cn, 58. The ztheling has been added to the people specified in Af, 3. See also Nordleod, 2, Grith, 11.

*? See Dumville, ‘Atheling’. Athel- means noble, -ing indicates son, although it can, in a more extended sense, signify descendant or family member. *° II Cn, 15.1, 18. 1, 58. 2, 71a; the appearances of ealdorman may reflect similar clauses in earlier codes. See IV Atr, 8, for a reference to ‘comitibus et aldremannis’. See also above, 33-7. *" See C. P. Lewis, “The early earls of Norman England’ (1991) 13 ANS 207-23, at 208-9, emphasising ‘the duality of ancestral claim and royal commission; Baxter, Earls of Mercia, 119-20, who also notes the insecurity of tenure of the office. Note also Williams, World before Domesday, ch. 1, who at 24 notes the limits to heritability of the rank of earl. *? See above, chs 2-4. °° Nordleod, 3; II Cn, 71a.

4 Eg. Af, 3,15, 40; I Cn, 58. 2.

*° See H. R. Loyn, ‘Gesiths and thegns in Anglo-Saxon England from the seventh to the tenth century (1955) 70 EHR 529-49. The word gesid is not used in the laws after Ine, except for one mention of gesidcund in Nordleod, 11. It is replaced by the term thegn, in the sense of both retainer and landholder. I therefore do not consider the status gesith here.

204 PART I: LATE ANGLO-SAXON ENGLAND man of high status, in contrast to a ceorl, and the thegn-born could be contrasted with the ceorl-born.”® Laws refer to thegns’ men, indicating that a thegn, like a king, could have men under his lordship.” At the same time thegnship could still be associated with service and perhaps be seen as a form of office-holding.”* /Ethelstan’s laws equated the fines taken from thegns and from reeves who took bribes and therefore set aside just claims.*® More generally thegns, or at least some thegns, had an essential part to play in legal and judicial matters, forming the core of shire courts, witnessing transactions, making accusations, seizing the accused, and making judgments.°

Were such activities characteristic of all thegns, and were there clear sub-divisions within the category? The sources sometimes use the term thegn by itself to refer to men serving the king, including the type elsewhere specifically called king’s thegns.* Such king’s thegns may have been clearly distinguished from other thegns and have performed the type of duties just mentioned. They might be distinguished by a particular heriot and by other aspects of legal status3* The late ninth-century treaty between Alfred and Guthrum laid down that if anyone accuses a king’s thegn of homicide, if he dares clear himself, he is to do so with [the oaths of] twelve king’s thegns. If anyone accuses a man who is less mighty than a king’s thegn, he shall clear himself with [the oaths of] eleven of his equals and one king’s thegn2®

A law of Athelred specifies that no-one was to have soke over a thegn of the king

except the king himself. Alternatively, the distinction between king’s thegns and other thegns may be less sharp, with all men of thegnly status potentially serving the king, but only

*° See above, 46 n. 21; Duns, 5. Note the list in ASC, 896, of the ‘best king’s thegns’ who had died in the past three years; it included two bishops and three ealdormen. *” See IT Eg, 3.1, VIII Atr, 8, I Cn, 8. 2a.

*® On services, and particularly hunting services, see J. Gillingham, “Thegns and knights in eleventh-century England: who was then the gentleman?’ (1995) 6th Ser. 5 TRHS 129-53, at 141-2. Northu, 57. 2, specifies that two trustworthy thegns and one priest in each wapentake were to collect and hand over Peter’s Pence. See also e.g. VI As, 11, IV Eg, 1.8.

*° V As, 1.3-4. Note also II Em, 7. 2. °° See above, esp. 49, 53, 87.

*" See e.g. III Eg, 3: a judge who gave false judgment was to lose his rank as thegn, unless he redeemed it from the king on terms that the king would allow him; see also II Cn, 15a. 1. Note also III Atr, 3. 1-2, 12.

°* On heriot, see IT Cn, 71. 1. Note also IV Eg, 2a, stating his wish that ‘my thegns keep their rank [scipe] in my lifetime as they did in my father’s’. °° AGu, 3. On this text see Wormald, Making of English Law, 285-6. °* TIT Atr, 11.

8 STATUS 205 some being referred to as king’s thegns.* Such an interpretation can be supported

from treatises such as the Rectitudines and GePyncdo, neither of which has a separate category of ‘king’s thegn’. The latter mentions the thegn who prospered, that he served the king and rode in his retinue on his missions, if he himself then had a thegn who served him, possessing five hides on which he discharged the king’s dues [utware], and who attended his lord in the king’s hall, and had thrice gone on his errand to the king...*°

The idea of a variety of gradations, rather than a single sharp division between thegn and king’s thegn, may be supported by the list of heriots in Cnut’s laws, with its reference to the king’s thegn among the Danes who, as opposed to some other such king’s thegns, had ‘greater friendship with the king” Domesday and other evidence also suggest flexibility of terminology. The thegn Ketel in his will left as his heriot a single set of arms to his lord, Bishop Stigand. By the criteria of Cnut’s laws, therefore, he was certainly not a king’s thegn. However, in Domesday for Suffolk he is so described3* Meanwhile a Norfolk entry mentions land being held in 1066 by ‘a certain free man [who was] also a thegn [quidam liber homo teinnus etiam]’°

Having noted such complexities, it remains clear that a specific legal status was associated with the term thegn.*° Payment of heriot might require it to be established definitively whether or not a man was a thegn.” So too might aspects of court procedure. A law of Athelred stated that if a lord was accused of advising a free man of ill-repute to escape after doing wrong, he was to ‘choose five thegns, and shall himself make a sixth, and shall clear himself of the accusation. And if he succeeds in clearing himself, he shall be entitled to the wergeld.*? Presumably

in such circumstances it was generally known who was a thegn, but it is easy to envisage occasional situations in which a decision was needed over disputed status.

°° See also above, 60, on the lack of strict association between status and holding of sake and soke. °° GePyncéo, 3 (such a thegn could swear a preliminary oath on his lord’s behalf; see above, 71 n. 26); see also Rect, 1.

°” II Cn, 71. 3-4. Cf. the Domesday customs for Derbyshire and Nottinghamshire, which state that a thegn with six or fewer manors paid a relief of 3m. to the sheriff, one who had more than six manors paid £8 to king; DB, i. fo. 280v. °° $1519; DB, ii. fo. 416v. °° DB, ii. 204v.

*° Note the reference to a priest having Pegenlage (thegn law, or the rights ofa thegn) in I Cn, 6. 2a. See also V Atr, 9.1, VI Atr, 5. 3, VII Atr, 28.

* ITCn, 71. ** T Atr, 1. 8; see also I Atr, 1. 2, quoted below, 223.

206 PART I: LATE ANGLO-SAXON ENGLAND There was clearly a hereditary element in the status of a thegn. A peace treaty between English and Welsh referred to men ‘thegnborn or ceorlborn’.* Similarly, whilst an increase in possession of land may have been necessary to rise to thegnly status, diminution of landholding by partible inheritance need not result in its loss. In Domesday Book all brothers in groups of thegns holding by parage were referred to as thegns, even if their share of the holding was less than the five hides that may have been needed for the acquisition of thegnly status.*4

Geneat The term geneat is rarely used in the laws. It seems to refer to a man of status lower

than a thegn, who owed services to a lord.** The Rectitudines present his duties immediately after those of a thegn and before those of lesser men: Geneat-right is various according to what is set for the estate: in some he must pay rent and a pasturage-swine a year, ride and perform carrying service and furnish means of carriage, work and entertain his lord, reap and mow, cut deer hedges and maintain hunting enclosures, build and fence the lord’s house [burh], bring strangers to the village, pay church dues and alms money, guard his lord and the horses, and carry messages near and far wherever he is instructed.*°

The duties may well resemble those of lesser thegns, but given the Rectitudines

separation of the geneat from the thegn, it may be that the geneat should be considered as at the top end of the 200s. men, not the bottom of the 1,200s.””

** Duns, 5; see Wormald, Making of English Law, 232-3, 381-2. The text may be later than the date of c. 930 normally attributed to it; see G. Molyneaux, “The Ordinance concerning the Dunsete and contacts across the Anglo-Welsh frontier in the late tenth and eleventh centuries’ (forthcoming). ** See Maitland, Domesday Book and Beyond, 165.

*° Note also II Eg, 1. 1, for geneatland, land in the hands of geneats, being distinguished from the lord’s inland. See also above, 117, on IV Eg, 1. 1, on a geneatman failing to pay rent to his lord.

However, neither that text nor the Rectitudines indicate that all geneats would be rent-paying tenants; rather the emphasis of the Rectitudines is on duties associated with the personal status of the geneat.

*° Rect, 2. See also S 1555, a survey of the manor of Tidenham, Glos: ‘the geneat shall work either on or off the estate, whichever he is instructed, and ride and furnish carrying service and supply transport and drive herds and do many other things’. Note S 1441; Gillingham, “Thegns and knights’, 140-1. *” App. AGu, 3, as it survives in the Latin of the Quadripartitus, contains the phrase ‘geneat (id est villanus)’. On this text, see Wormald, Making of English Law, 379-80.

8 STATUS 207 There were also other groups of a status above that of the free peasant, for example

the thegns and drengs of the northern counties.** Domesday states of the land between the Ribble and the Mersey (i.e. what became southern Lancashire) that all those thegns had the custom of rendering two oras of pennies [i.e. 32d.] from each carucate of land, and by custom made the king’s houses and what pertained there, just like villagers [villani], and fisheries, and deer-hays and hunting enclosures in the wood; and he who did not go for these purposes when he ought paid two shillings in emends, and afterwards went to the work and worked until it was completed. Each of them sent his reapers to cut the king’s corn for one day in August.’

The Scandinavian loanword dreng is also used in a list of benefactors to Bury St Edmunds with reference to a donor of land in Suffolk.

3 MEN OF LESSER STATUS Current analysis of agrarian arrangements in Anglo-Saxon England emphasises the distinction between inland, closely associated with a lord and cultivated directly for his benefit, and utland, land less closely tied to the lord although owing some dues. Likewise the cultivators of the inland, primarily geburs, freedmen, and slaves, were much more tightly connected to the lord than those of the utland.” Such relations with lords were one but not the sole determinant of legal status, as we will now see.

The essential contrast regarding personal freedom made in the Anglo-Saxon laws was between free and slave.” Ifa freeman works during a Church festival, he shall make amends for doing so with his healsfang, and especially he shall zealously make amends to God, according to

*® See below, 418.

* DB, i. fo. 269v. °° Anglo-Saxon Charters, ed. Robertson, 426, in the phrase ‘dreing inclitus’. See also E. Bjorkman, Scandinavian Loan-words in Middle English (2 vols; Halle, 1900-2), ii. 208, for references to dreng in other contexts, with meanings including warrior. DMLBS, s.v. “drengus’, has no pre-1086 references

to drengus. A late twelfth-century Canterbury letter stated that in the Conqueror’s reign there had been no knights in England but rather ‘threngs’, and therefore Lanfranc made such men knights. This, however, seems insufficient evidence on which to base arguments for the existence of drengs in Kent; see Epistolae Cantuarienses, in Chronicles and Memorials of the Reign of Richard I, ed. W. Stubbs (2 vols; RS, 1864-5), ii. no. 243; F. M. Stenton, The First Century of English Feudalism (2nd edn, Oxford, 1961), 145-9; R. W. Southern, Saint Anselm and his Biographer (Cambridge, 1963), 159 n. 2. One may, indeed, wonder, whether some confusion with ‘thegns’ has occurred. >" See below, 210-11.

°* On town dwellers, see below, ch. 30.

208 PART I: LATE ANGLO-SAXON ENGLAND the directions given him. Ifa slave [beowman] works, he shall be scourged or pay the fine in lieu thereof, according to the nature of the offence.

A man might be considered a free man in relation to the world at large, for example in relation to the wergeld paid in compensation for his death’* He might also have free status in terms of his obligations to the king and others, for example participation in courts and perhaps responsibility for the payment of taxation from land.* Here the extension of royal government in the period may have sharpened the distinction between freedom and unfreedom. For example, the obligation that every free man be in tithing may well have forced the public acknowledgment of freedom and unfreedom.*

However, in a mans relations to a lord, matters of freedom become more complicated.” Unlike in relation to the king and the world, the division of status of the peasantry in relation to a lord is not a simple one between free and slave.* Men who were not slaves could enjoy or be denied various elements of freedom in relation to their lord. Some of these were linked to tenure, as is clear from statements in Domesday, for example that two Essex men ‘were free, so the hundred testifies, thus that they could sell the land with soke and sake wherever they would.** Other elements were more directly tied to personal status, as we shall now see.

Ceorl The most common word in the laws of kings up to Athelstan for a man of lesser status was ceorl. This word may have been used in a variety of ways, but in a broad sense it covered all free men below the status of thegn, that is all the men

of 200s. wergeld. It would therefore cover men elsewhere referred to as, for example, geburs or cottars.®° Such a general use seems to resemble the Domesday

°° II Cn. 45. 1-2; see also Ine, 3, 11, 50, 74. 2, AGu, 5, IV As, 6, EGu, 7, 8, IT Atr, 5, VII Atr, 2. 4, II Cn.

20. 1, 46, 68. 1b, Northu, 56. Note also e.g. Asser, Life of Alfred, 106, ed. Stevenson, 94, for a division between liber and servus. >* See e.g. IT Atr, 5.

°° See below, 421.

°° See e.g. II Cn, 20, quoted above, 74-5. Faith, Peasantry, 118, raises the possibility that ‘inland tenants and workers were not members of tithings. °” See also Maitland, Domesday Book and Beyond, 42-3, 49-50, on the various standards for the measurement of freedom; below, 220-4, for further discussion of lordship. °° Note also the discussion of The Old English Orosius, iv. 3, ed. J. Bateley (2nd Ser. 6 Early English Text Soc., 1980), 87,in D. A. E. Pelteret, Slavery in Early Mediaeval England (Woodbridge, 1995), 54-5. °° DB, ii. fo. 59r.

°° Note that a list of dues concerning Hurstbourne, in Hampshire, (S 359) uses only the word ceorl, whereas the Tidenham survey (S 1555) and the Rectitudines use other words but not ceorl.

8 STATUS 209 employment of villanus, to include types of men whom the same text elsewhere called bordars and cottars.” The legal status of a ceorl had various characteristics. In relation to the world, we have already noted the 200s. wergeld. The ceorl could act as a lawful witness, as in a marriage agreement ending ‘every trustworthy man in Kent and in Sussex, thegn and ceorl, knows these terms’.” In relation to the king he had the obligations and rights of a free man, in contrast to a slave. Some ceorls may have been lordless apart from the king and have had substantial landholdings. Thus AAthelred II granted to his thegn Brihtric eight hides that had belonged to a rusticus, presumably a ceorl, named Atheric. Many ceorls, however, would have had lords.” Relationships might vary, and will now be considered as we look at various categories of men whom the general category ceorl might include.

Free man and Sokeman The laws in the names of kings after Ethelstan ceased to use the word ceorl, except with reference to a husband,® but the word ‘freoman’, that is freeman or free man, continued in use. Some instances of its use may have made explicit what had once been assumed. Alfred had enjoined that ‘every man shall abide carefully by his oath and his pledge’.® It is clear that this clause was not intended to cover slaves.

By the later tenth century, Ethelred was spelling out status more clearly: ‘that every free man shall have a trustworthy surety, who shall hold him to every legal duty, if he faces accusation.” Such clauses deal with general obligations of free men, but the laws also deal with a free man’s position in relation to his lord. A lord was not to ‘prohibit a freeman from seeking a [new] lord [hlafordsoknam] if he has conducted himself rightly [si eum recte custodierit]’.®°

°t See e.g. Maitland, Domesday Book and Beyond, 39; Faith, Peasantry, 86, 125. °* $1461. °3 $855. °* See e.g. the Hurstbourne list of renders, S 359. For the possible significance of the lord’s grant of a house to a ceorl, based on analysis of Ine, 63-8, but arguably relevant later, see Charles-Edwards, ‘Distinction’, 184-7. °° IT Cn, 53, 73. 2.

°° Af, 1. Legal historians have taken no consistent line as to whether to use ‘free man’ or the single word ‘freeman’. The former might be preferred when referring to all the free, whatever their rank, the latter when also differentiating freemen from knights and others of higher rank. However, an undifferentiated form is preferable, to reflect the practice of the sources, and the present book follows Maitland in using ‘free man’. °” I Atr, 1; see above, 74-5, on II Cn, 20. °° See also e.g. II Eg, 2.2, 1Cn, 11.2. °° TIT As, 4.1; IV As, 5; see also below, 156. These laws are only known in twelfth-century Latin ver-

sions in the Quadripartitus.

210 PART I: LATE ANGLO-SAXON ENGLAND A writ in the name of Edward the Confessor refers, in a passage that may be authentic, to his “free soke men [fre socne men]’7° However, it is Domesday rather than the Anglo-Saxon documents that provides our mass of references to sokemen. It is uncertain whether the term generally had a technical meaning, although it is notable that sokemen could at least in some cases be distinguished from free men.” The basis for any such distinction is unclear, although it may have involved wealth, tenure, or jurisdiction.”

Gebur Various words were used of men of lesser status, words that may not have been used

as defined legal categories but rather as indications of economic position. Some men were referred to as geburs, although the term does not appear in the laws after Ine.” This shortage of evidence makes it hard to determine such mens legal status, but it may well have been the same as that of other ceorls in relation to the world and to the king. From their lords they probably received land, equipment, and livestock,

in return for which they owed services. According to the Rectitudines the duties of geburs were middling in some places, heavy in others.” A survey of Tidenham (Gloucestershire) shows geburs owing heavier and probably less honourable obligations than those of geneats.”> Lands and movables probably returned to the lord on the gebur's death, although they may have been regranted to an heir. At least some geburs were tied to their land, as is suggested by two mid-tenth century entries in a Gospel book, recording the permission granted to two women to leave (gedon ut) the geburland on which they were living in Great Bedwyn, Wiltshire.”° A tie to the place of birth is also suggested by the use of the Latin innati ["born in] and the Old English inbyrde in relation to people apparently of the status of gebur.”

© § 1129, on the authenticity of which see Anglo-Saxon Writs, 309-10. There is no reason to think that the phrase indicates a distinction from a category of unfree soke men. ™ See DB, ii. fo. 28v.

” See e.g. Maitland, Domesday Book and Beyond, 104-5; R. V. Lennard, Rural England, 1066-1135

(Oxford, 1959), 225-6; H. C. Darby, Domesday England (Cambridge, 1977), 61-4; J. Scammell, ‘Freedom and marriage in medieval England’ (1974) 2nd Ser. 27 EcHR 523-37, at 524-6; also above, 114, on sokeland. Such sokemen presumably were men over whom a lord enjoyed rights known as soke, but lords enjoyed such rights over others too; see e.g. P. Vinogradoff, English Society in the Eleventh Century (Oxford, 1908), 124-6, 431-46. On soke, see above, 59. ”* Ine, 6.3. On geburs, see Faith, Peasantry, 76-84; D. A. E. Pelteret, “Two Old English lists of serfs’ (1986) 48 Medieval Studies 470-513, esp. 474-5, 491-2.

Rect, 4. 75 § 1555.

’° H. Meritt, ‘Old English entries in a manuscript at Bern’ (1934) 33 J of English and Germanic Philology 343-51, at 346-7. The right to leave was described as ‘feerfrige’. ’” Pelteret, “Two lists’, 488-90.

8 STATUS 211 Anglo-Saxon users of Isidore of Seville’s Etymologies took the Old English

gebur to be the equivalent of the Latin colonus’* The Latin word appears occasionally in charters, normally in a non-specific sense, for the local people who gave a name to a place.”” However, it also is used in a charter supposedly of 909 to refer to ‘land cultivated by the bishop and which coloni inhabit’. This seems an excellent description of inland, although the charter is of dubious

authenticity.*° Overall the evidence points to distinct restrictions on the freedoms of geburs in relation to their lord, whilst not assimilating them to the status of slave.

Coliberti and freed men The clerks who wrote Domesday Book appear uncertain whether to describe as geburs those known as coliberti.* These were freed slaves, and their name may suggest that they had been freed as a group. There were also other terms for freed men, freotmann and the Scandinavian-derived lising.* The latter words may indicate Scandinavian-derived practices in the Danelaw. Freed men were still dependent in various ways upon their lord, who retained

rights over their property and their children. They may in effect have had to pay through labour obligations for their freedom and for any land that they were given. Wills show that those lords who manumitted slaves could impose conditions of where and for whom the freed could work, as well as shifting them round an estate or bequeathing them.® In relation to people other than their lord, however, the freed man appears to have enjoyed the same position as other ceorls; for example the Danish freed man, according to the Treaty between Alfred and Guthrum, was entitled to the same 200s. wergeld as the ceorl who lived on gafolland.™

”® Faith, Peasantry, 81.

” $478, 865. °° § 376; Faith, Peasantry, 34. See also below, 216, for a Gospel book entry concerning coloni. °" See DB, i. fos 38r, 38v, 174v; Maitland, Domesday Book and Beyond, 36, Faith, Peasantry, 64. Colibertus or collibertus was a term derived ultimately from Roman law.

** For these words, see Pelteret, Slavery, 46, 288-92, 297-8. For lising, see S 1529, which also mentions slaves and men described as ‘half-free’; see Anglo-Saxon Wills, 206. For freotmann, see S 1534, 1538. On the term /et, which occurs only in A:thelberht’s laws, see Oliver, Beginnings of English Law, 91-3. She takes the term to mean freed man. See Faith, Peasantry, 74, on the bordar as a freed person, provided first with cottage and toft, and then with small service holdings on the inland. °° See e.g. $1534. °* AGu, 2. For gafolland, rent- or due-paying land, see above, 117.

212 PART I: LATE ANGLO-SAXON ENGLAND Free men changing status Some Anglo-Saxon tracts deal with change of status, for example from ceorl to thegn, or thegn to earl.* There are also references in the laws to loss of status for offences, for example a thegn losing his thegnship for giving false judgment.* It is unclear whether either formal gaining or loss of legal status involved some particular ceremony.

4 SLAVES The rightful existence of slaves was accepted in the late Anglo-Saxon period.” For example, the tract known as Episcopus, probably written by Archbishop Wulfstan in the early eleventh century, contains the following statements: It is right and fitting that the slaves work for the lords by the direction of the confessor and his own measurement throughout the district in which he hears confession. It is to every lord’s own advantage that he protect his slaves as best he can, because they and those who are free are equally dear to God, and he bought us all at the same price.

The majority of male slaves may have been involved in agricultural work, females in household work.*? However, whilst legally unfree, some slaves may have enjoyed higher status in other respects, for example as skilled workers. Slaves could be sold within the country, and certainly a girl might be sold into

slavery, although her status might differ from the born slave.’ At the same time, the freeing of a slave could be seen as a meritorious act,” and there were

prohibitions of selling slaves, or others, overseas, particularly to heathens: ‘we forbid the all too prevalent practice of selling Christian people out of the country, and especially of conveying them into heathen lands, but care shall be zealously taken that the souls that Christ bought with his own life be not destroyed’.

°° See esp. Gebyncdo, 2-6; also Nordleod, 9-12. Whether such texts indicate increasing or decreasing social mobility is unclear. °° TIT Eg, 3, I Cn, 15.1.

°” See above, 194-5, on penal slavery. °° Episc, U, 13.

°° See Alfric, Colloquy, Il. 22-35, ed. G. N. Garmonsway (rev. edn, Exeter, 1991), 20-1, on the ploughman. On urban slaves, see J.S. Moore, ‘Domesday slavery (1989) 11 ANS 191-220, at 213. °° See e.g. Faith, Peasantry, 64.

°" Af Intro. 12. On sale in markets, see below, 424-5. °? See below, 216.

°° II Cn, 3; see also Ine, 11, V Atr, 2 and VI Atr, 9 (both of which specified that it was innocent men who were not to be sold abroad), VII Atr (Latin), 5.

8 STATUS 213 Terminology Various terms were used to refer to slaves. The most common was the Old English Beow.* The Scandinavian loanword Prel only appears in the laws in /Ethelred’s reign. Another law of Aithelred uses wealh to mean slave, with no sign that such slaves were specifically of foreign, particularly Celtic, origin.°* More problematic is the term esne, which appears mainly in the early Kentish codes but also in those of Ine and Alfred. Alfred specified which days were to be granted as holidays ‘to all free men, but not to slaves [beowum monnum] and esnewyrhtan. The question here is whether the esnewyrhtan should be considered to be distinct from slaves or to be a particular type of slave. Given the lack of other references, the question may be unanswerable.”

The legal position of slaves Slaves were able to marry, and there is clear evidence of inter-marriage between free and unfree.®* It is not certain whether the status of their offspring would then derive from the mother or the father. The late Anglo-Saxon penitential known as the Scriftboc said that status derived from the woman, the twelfth-century Leges Henrici that status derived from the man. An Ely case mentions a man who certainly seems to have been free but whose wife and sons were innati, presumably slaves, on the lands of the abbey. This again suggests that the status of the sons derived from the wife.%

Slaves could own some movable property.’ Wulfstan in his Sermo lupi bemoaned the fact that ‘slaves are not allowed to keep what they have gained by toil in their own free time, or what food men have granted them in God’s favour, and given them in charity for the love of God’.” A law of Alfred laid down that ‘the four Wednesdays in the four Ember weeks shall be granted to all slaves to °* See Pelteret, Slavery, 41, 305-16. See also Pelteret, Slavery, 42, 261-2, Faith, Peasantry, 83, on words based on eht, that is, something owned. °° ‘TI Atr, 5. 1; Pelteret, Slavery, 46, 316-17.

°° TI Atr, 6. 2; see Pelteret, Slavery, 43, 319-22. The term wealh, also meaning foreigner, Briton, or Welshman, must derive from a prevalent source of slaves, just as the modern ‘slave’ is linked to ‘Slav’. °” Wi, 22-4, Ine, 29, Af, 43. Oliver, Beginnings of English Law, 114, argues that an esne was of a status between a slave and a free man. Pelteret, Slavery, 44, 84, 271-4, suggests that the earliest sense of

esne seems to have been hired labourer, but that the word then acquired the sense of slave, presumably via an unattested sense of ‘one who labours’. °® Moore, ‘Domesday slavery’, 217-19. On problems arising if one party should change status from unfree to free or vice versa, note Wulfstans Canon Law Collection, Recension B, 135, ed. Cross and Hamer, 151-2. °° Das altenglische Bussbuch, 13, ed. R. Spindler (Leipzig, 1934), 182; LHP, 77. 1-2, ed. Downer, 242, below, 423; Liber Eliensis, ii. 10, ed. Blake, 83. See Pelteret, Slavery, 103-4, 114, 181.

*9° See e.g. Oliver, Beginnings of English Law, 94; Pelteret, Slavery, 82-4, on changes that the Introduction to Alfred’s laws made to statements in Exodus; Faith, Peasantry, 75. *°! Sermo lupi ad Anglos, ed. D. Whitelock (rev. edn, Exeter, 1976), 52-3.

214 PART I: LATE ANGLO-SAXON ENGLAND sell to whomsoever they choose anything that anyone has allotted to them in God’s name or which they are able to earn in any moments of their own’. A law of /Ethelstan may indicate that slaves could own and sell cattle: ‘if anyone buys cattle in the presence of a witness, and afterwards has to vouch to warranty, then he from whom he has bought it is to take it back, whether he be free or slave’. However, it cannot be entirely certain that the slave was the owner of the cattle, rather than acting on behalf of his lord. Other aspects of a slave's legal position distinguished him from a free man. The laws often prescribed physical punishment for a slave where a free man paid a fine and compensation. Such punishments included scourging, scalping, and stoning. Lords were held particularly liable for their slaves’ actions. For example, a law of /Ethelstan states that ‘the lord who is accessory to a theft by his slave, and this becomes known about him, is to forfeit the slave and be liable to his wergeld on the first occasion. If he does it more often, he is to be liable to pay all that he owns." There is no indication in the laws that the slave had a wergeld that would be paid to his relatives in compensation for his death.’ Wulfstan, in his Sermo lupi, complained that slaves became Vikings and acquired a thegn’s wergeld, whereas thegns were enslaved and therefore had no wergeld.’°° A law of Athelred states that if an Englishman killed a Danish slave or a Dane killed an English one, he was to pay one pound, probably to the slave’s master.’”” What, then, of the position of the slave relative to his master?'°* Slaves were not the only people whom a lord could grant to another, but it may be significant

that they sometimes appear along with livestock in documents recording their transfer.’°? Likewise Domesday Book sometimes lists slaves among other non-human sources of wealth, often between the church and the mill."° A law of Alfred may suggest a distancing of the association of slave and animal: ‘if a betrothed maiden commits fornication, if she is of ceorl birth, 60s. compensation 102 AF 43.

*°° IT As, 24; cf. Ine, 47: ‘if a stolen chattel is attached, a slave may not be vouched to warranty for it’. See also Pelteret, Slavery, 244-5.

°* IT As, 3. 1. See also above, 186-8. S. Jurasinski, “The Old English penitentials and the law of slavery , in English Law before Magna Carta, ed. Jurasinski et al., 97-118, esp. 106-9, notes that the Old English penitentials provided less protection for slaves than did their Latin sources.

“°° Note also that Ine, 74, indicates that at least Welsh slaves were excluded from the normal practices of feud and wergeld in Wessex. °° Sermo lupi, 104-8, 120-1, ed. Whitelock, 58-60. *°7 TT Atr, 5. 1; cf. the 240 pennies that a law of 4thelstan ordered to be paid to the master by the eighty slaves responsible for stoning a slave to death, above, 186. See also LHP, 70. 4, ed. Downer, 218. *°8 See also below, 230, on marriage. *°? See S 1421, 1461; S 1423 and 1448 do not specify that the men or women given along with stock were slaves. *t® See Maitland, Domesday Book and Beyond, 26.

8 STATUS 215 is to be paid to the surety; and it is to be paid in livestock, cattle, and no-one is to allot a person in it’.’" However, this is an isolated piece of evidence, and there may have been some more specific reason for the exclusion of slaves here. In Athelstan’s reign there is reference to the theft of slaves, in a way that does not occur in relation to other categories of men.’” Slaves are thus presented as in certain ways their lord’s property.

This did not, however, mean that owners had absolute power. Penitentials included penances for owners who arbitrarily killed their slaves. An Old English penitential laid down a seven-year fast for a woman who beat to death her innocent female slave, three years if the slave was guilty. It also prescribed a two-year fast for the master who killed a slave without witnesses, a provision that the translator of the text from Latin interpreted as meaning that the slave's master should take him to the hundred court.”? What we seem to have, then, is concern regarding owners imposing capital justice improperly. Less clear is what protection or retribution secular authorities might provide against the owner who harmed his slave." If lords did not have complete power over their slaves’ lives and bodies, they did have particularly extensive control over their slaves’ time, labour, and possessions. The will of Ketel, from the last years of the Anglo-Saxon period, indicates the weakness of the hold a slave had on any land that his lord might allow him: ‘I wish that all the men to whom I grant freedom shall have all things that are in their possession, except the land." The Rectitudines present geneats, cottars, and geburs as owing services to their lord, but also implicitly as landholders who supported themselves from land. In contrast the slave received merely an allowance from his lord to help to support him: Every slave [esne] ought to have as provisions twelve pounds of good corn and two carcases of sheep and one good cow for food, wood-cutting according to the custom of the estate.... All slaves belonging to the estate [ehtemannum] ought to have food at Christmas and Easter, a strip of land for ploughing, and a harvest handful besides their dues.

The text gives no specification as to the times at which slaves should serve their lord, suggesting that unlike free men their time was normally at their owner's disposal."° ‘™" Af, 18.1; see the comments of Pelteret, Slavery, 84-5. It may be notable that the law only uses the word mon, without the word Peow which Af, 25. 1 and 43, employ when referring to slaves. ‘2 VIAs, 6. 3; cf. Ine, 53.

“'® Old English Penitential of Pseudo-Ecgbert, ii. 3, 4, Die altenglische Version des Halitgar’schen Bussbuches (sog. Poenitentiale Pseudo-Ecgberti), ed. J. Raith (Hamburg, 1933), 17. ‘™* Note also Af, Intro. 17, 20.

$1519.

'® Rect, 8, 9.1. See also Pelteret, Slavery, 174-5, 242-3.

216 PART I: LATE ANGLO-SAXON ENGLAND Given the restrictions brought by slavery, it is not surprising that men sought to defend their free status. We have a small amount of case evidence on this matter, although not enough for any firm conclusions concerning procedure. In one instance the record, preserved in a Gospel book, states that a group of men ‘defended themselves by oath with the permission of King Edgar’ against the accusation that their fathers had been the king’s coloni. The witnesses of the record, and perhaps of the case, included the bishop and ealdorman."”

Manumission We hear occasional reservations about the manumitting of slaves. Wulfstan’s collection of canons stated that ‘it is not permitted for an abbot or monk to set free the slave of a monastery. It is impious that he who has not conferred goods on the church should bring it loss."* The worry here presumably is that an individual might diminish the house's resources. So long as circumstances were appropriate, however, manumission was seen as virtuous. An ordinance from /Ethelstan’s reign instructed his reeves to make free each year one penal slave, for God's mercy and for love of the king."° A synod early in the eleventh century decided that every bishop should free a man on the death of a fellow bishop.”°

Manumissions are also mentioned in wills.’* Particularly prominent are manumissions of penally enslaved men. Around the year 1000 A:lfwold, bishop of Crediton, in his will promised freedom to every man on every episcopal estate who was a penal slave or who had been purchased with his money.’ Wills sometimes also made specifications as to the property of those freed: they might be granted their toft, cow, and corn for food, or all their possessions except the land.

“'” Codex Diplomaticus, ed. Kemble, no. 981 (iv. 316), on which see Pelteret, Slavery, 157, Faith, Peasantry, 81. See also Codex Diplomaticus, ed. Kemble, no. 981 (iv. 314), for a man defending his free status. 8 Wulfstan’s Canon Law Collection, Recension A, 41, ed. Cross and Hamer, 83-4.

As Alm, 1. **° Councils and Synods, I, no. 53 (c. 5). "** See also § 1521, 1525. King Alfred’s will, S 1507, states that ‘I pray in the name of God and of his

saints that none of my kinsmen or heirs oppress any of the cyrelif among those whom I have supported; and the councillors of the West Saxons pronounce it right for me that I could leave them free or servile, whichever I should choose. But I desire for the love of God and the needs of my soul that they be entitled to their freedom and their free choice.’ Cyrelif is a very rare word, which only appears on one other occasion in the surviving corpus of Old English texts. Cyre means choice, lif life. The compound may signify one who has chosen to enslave himself to another. This could arise, for example, from indebtedness; see Pelteret, Slavery, 110-11, 267-8. However, the meaning of the word is very uncertain; see Alfred the Great, trans. Keynes and Lapidge, 326 n. 104. "22 § 1492; see also S 1484, 1485, 1488, 1491, 1503, 1539. Note S 1528 ‘my men [are to be] free, those who shall work for [ihernen] it’, although the sense of ihernen is uncertain.

8 STATUS 217 Specification might also be made as to whom the freed should serve in future.” This can be related to the occasional statement in a manumission document that the freed man had the right to depart [f@rewyrde], perhaps in contrast to others who were freed but without that right.* Thus manumission could lead to free status in relation to the rest of the world, but retain ties that connected the freed man to his former owner. It is not entirely clear whether manumission automatically freed descendants of the person manumitted. King /Athelstan’s manumission of Eadhelm closed with the statement that ‘I grant the children the same that I grant the father.’ This specification may indicate that other manumissions need not confer freedom on descendants.’ Alternatively, the document may simply spell out what was elsewhere assumed. We know most about manumissions carried out in church, or at another sacred place.’ A Bodmin Gospel book records that These are the names of the men—Sulleisoc, Ourduydal—whom the clerics of St Petroc’s freed for the soul of King Edgar on the altar of St Petroc on the festival of St Michael, before these witnesses: Brihtsige the priest, Osian the priest, Austius the lector, Riol the deacon.’

The ceremony, and certainly the record of it, might include a curse against those infringing the manumission: ‘he who overturns this, may he have the disfavour of God and of all the relics that I, by God’s mercy, have obtained in England’.’”* There is also evidence for manumission taking place at a crossroads.’® Four examples come from Devon, whilst another appears in the Ramsey chronicle’s

Latin version of an Old English will. Athelstan Mannessune manumitted thirteen of every thirty men throughout his lands, ‘so that, placed at the crossroads, they might proceed wherever they wished’.8° Manumissions, whether in

73 § 1539.

‘24 Diplomatarium, ed. Thorpe, 623. ‘°° Diplomatarium, ed. Thorpe, 622. See Pelteret, Slavery, 161. ‘°° Pelteret, Slavery, 142-3. Manumissions recorded in the Exeter Gospel book do not mention the altar in the same way, but did take place on festival days and were witnessed by churchmen. "7 Codex Diplomaticus, ed. Kemble, no. 981 (iv. 310). For mention of the altar see also e.g. Codex Diplomaticus, ed. Kemble, no. 981 (iv. 310, 311-12, in the latter of which the freeing involved two ceremonies, the first ‘on the bell of St Petroc in the residence [villa] that is called Liskeard’, the second on the altar of St Petroc); see also no. 981 (iv. 313), for mention of relics.

78 Diplomatarium, ed. Thorpe, 622, See e.g. also Codex Diplomaticus, ed. Kemble, no. 981 (iv. 313).

"29 See Pelteret, Slavery, 143-5. *°° Ramsey Chronicle, 33, ed. Macray, 59. See Codex Diplomaticus, ed. Kemble, no. 981 (iv. 312), for

another instance apparently outside a church and conceivably at a crossroads. See below, 282 n. 69, 426 for manumissions in district courts.

218 PART I: LATE ANGLO-SAXON ENGLAND church or outside, could be secured further by being written down in a religious setting, notably in a Gospel book.

Change regarding freedom and unfreedom

Limitations of the evidence make it impossible to be certain regarding chronological change with respect to legal or indeed socio-economic status. Two major causes of change have been proposed. The first, still having an effect in the

early part of our period, was Scandinavian invasion and immigration, which, it has been suggested, produced a freer population in the Danelaw area, in particular East Anglia. Certainly Domesday indicates that free men and sokemen were more common in areas affected by Scandinavian settlement, the inland population less numerous than elsewhere. These patterns may be influenced by the nature of Domesday statistics, but together they are suggestive. What is much less clear is that they are a direct result of Scandinavian conquest, let alone immigration. Indeed, it could be that it was the military efforts of the kings of Wessex that led to a new imposition of heavier burdens on the non-Danelaw areas of the realm. Alternatively, or additionally, the differences may reflect developments in economic organisation rather than population origin.™ The second suggested cause of change, therefore, is economic. At least some

lords’ control of their utland and its inhabitants may have tightened, part of the development of the manorial structure typical of much of England in the high middle ages. Such change may have affected the position of people within existing legal categorisations and also produced some redistribution of the population between categories." These changes in the relationship of man to lord need not be apparent in the continuity of classification presented by the laws, which are primarily concerned with peoples’ relationship to the king or others.

5 CLERGY We have limited evidence on the legal status of monks and clergy.’ The will of Athelgifu records the freeing of a priest named Edwin, but we cannot tell

"5! See Faith, Peasantry, esp. 87-8, and the summary in D. M. Hadley, The Vikings in England (Manchester, 2006), 84-9.

**? Note the possibility of increased manumission of slaves; Faith, Peasantry, 59-70. Pelteret, Slavery, 85-6, argues for a possible amelioration in the position of the slave. "> See above, 143-7, for landholding by churches and churchmen; also S 1489, for monks owning mills and movables, or at least receiving them as bequests.

8 STATUS 219 if Edwin’s previous status had been highly exceptional." The laws do not in general specify clerical wergelds, although one law of A:thelred states that ‘if a priest orders his own life aright according to the teaching of books, he shall be entitled to the full wergeld and privileges of a thegn, both during his life and after his death’.* Other evidence suggests an equation between a bishop and an ealdorman."° Various texts lay down penalties for offences committed by clerics. A letter from Alfric to Wulfstan stated that ‘canons teach that no adulterer, no homicide, no-one given over to capital crimes is to be received into holy orders [sanctum

gradum|, and if a deacon or priest commits adultery or homicide, he is to be degraded’.” Wulfstan in turn stated that ‘it is right that no priest take part in false witness, or be the accessory of thieves’, and his collection of canons included penances for clerical as well as other killers.%*

As for jurisdiction over clerics, information is again limited. Alfred's laws state that if a priest committed homicide, ‘the bishop shall unfrock him when he is delivered up from the minster, unless his lord is willing to arrange for the wergeld on his behalf’.“° Wulfstan’s collection includes the statement that ‘no priest is permitted to be a surety [fideiussorem esse] nor go to secular judgments,

abandoning his own law’.'4° Wulfstan also specified that no dispute between priests was to be allotted to laymen, but rather to fellow priests or to the bishop if necessary." The group of laws known as VIII Athelred are also associated with Wulfstan. They specify, for example, that if a priest who lived according to a rule

4 $1497. ° VIII Atr, 28. *° See above, 203.

**” Letter from Alfric to Wulfstan, 4, Councils and Synods I, no. 45. Wulfstan’s Canon Law Collection, Recension A, 83, ed. Cross and Hamer, 101, states that ‘a priest or deacon who is seized in fornication or perjury or theft or homicide is to be deposed’. Wulfstan’s Canon Law Collection, Recension B, 166, ed. Cross and Hamer, 171, states that ‘if a priest or deacon has committed homicide, he is to be degraded and do penance until the end of his life’. *°® “Canons of Edgar’, 62, Councils and Synods, I, no. 48; see above, 165, on a priest receiving stolen goods. See also Wulfstan’s Canon Law Collection, Recension A, 102, Recension B, 167, ed. Cross and Hamer, 108-11, 171-2. "°° Af, 21. See also EGu, 4. 2: “ifa man in orders places his life in jeopardy by a capital crime, he shall be seized and held for the bishop’s judgment’. Note also IV Eg, 1. 8.

“*° Wulfstan’s Canon Law Collection, Recension B, 17, ed. Cross and Hamer, 119. Recension B, 20, ed. Cross and Hamer, 120, states that ‘no priest is to swear anything with an oath, but is to say

everything straightforwardly with purity and truth’. Clearly if priests could not swear oaths, their participation in ordinary judicial proceedings, for example as compurgators, would be severely restricted. Note also above, 89, for Ealdorman Athelwine stating that professed monks should not take an oath in secular court. Note, however, that all others had thought it appropriate for a monk to take an oath. ‘ “Canons of Edgar’, 7, Councils and Synods, I, no. 48.

220 PART I: LATE ANGLO-SAXON ENGLAND was charged with a simple accusation, he was to say mass if he dared, and alone clear himself on the host itself.’ Other clauses concern clerics and vengeance: Ifa man in holy orders is charged with feud [ fehde], and accused of having committed or instigated homicide, he shall clear himself with the help of his kin, who with him must bear the feud, or pay compensation.

No monk who belongs to a monastery anywhere may lawfully either demand or pay any feud-compensation. He leaves his kin-law behind when he accepts the [monastic] rule-law.’*

It also contains provisions on subjects similar to ones that we have seen in other Wulfstan texts, for example on a priest committing perjury.’

What remains unclear is whether in practice clerics were brought before ecclesiastical tribunals for their offences. Case evidence is very limited, but suggests at least that clerics might encounter the ordinary mechanisms of police and justice and face secular punishments such as death. A story in the Libellus Athelwoldi records a priest stealing cloaks from Irish merchants at Cambridge. When this was revealed, he sought the intercession of the citizens of Cambridge and settlement was reached, ensuring that his life was not endangered. The priest thelstan, about whom we heard in the previous chapter as a receiver of stolen goods, was brought to justice by the usual secular methods, that is action by the wronged party and by local officials. He had to appear before the bishop, but it is unclear whether this was a purely ecclesiastical hearing or a more general court held in the bishop’s presence.'* It may well be that a system of separate ecclesiastical courts only came into existence after the Norman Conquest."*°

6 LORDSHIP AND COMMENDATION Aspects of Anglo-Saxon lordship have already been considered in the context of land tenure and of jurisdiction. However, a third element remains to be examined, that of personal lordship. Domesday sometimes makes explicit the distinction between different types of lordship. Thus in Suffolk it was stated that in the time of King Edward the abbot of Bury had the sake and soke over the land of a free

“* VIII Atr, 19; see also VIII Atr, 20, I Cn, 5.

43 VII Atr, 23, 25. “* VIII Atr, 27; see also VIII Atr, 26 on homicide, and above, 64 n. 140, for II Cn, 43. “° Liber Eliensis, ii. 32, ed. Blake, 105-7; above, 165.

“° See above, 63-4, below, 297-300.

8 STATUS 221 man named Brungar, whilst Robert fitzWimarc had commendation over him.’” Historians generally follow Domesday Book in using the term commendation for personal lordship in pre-Conquest England. Nevertheless, for some estates the word commendation is not used in Domesday and it does not appear in the pre-Conquest evidence. Perhaps members of the lord’s household need not have been explicitly commended to him, and therefore formed an additional group of followers, but this is far from certain. Domesday shows that holders of small amounts of land might be commended

men, and a law of Athelstan suggests that even the landless should not be lordless.** The Old English Dialogue of Solomon and Saturn stated that ‘a prosperous noble [eorl] may, according to his own inclination, easily choose a mild lord, perhaps a prince; the poor man has no such choice’.49 As this quotation suggests, personal lordship could cover a considerable variety of relationships. We know little about the ceremony or ceremonies that created personal lordship. However, the poem The Wanderer may give a brief description. The man ‘Clasps and kisses his lord [monryhten] and lays hands and head on his knee’.*° An oath taken to a lord is preserved in the text known as Swerian: By the Lord, before whom these relics are holy, I will be loyal and true to N., and love all that he loves, and hate all that he hates, in accordance with God’s justice and worldly custom; and never, willingly and intentionally, in word or deed, do anything that is hateful to him; on condition that he keeps me as I will deserve, and carries out all that was our agreement, when I submitted [gebeah; literally, bowed] myself to him and chose his favour.’

A writ of Edward the Confessor granted Alfric Modercope permission to submit himself to the abbots of Bury and Ely, and here too the verb used was bugan, to bow, suggesting a ceremony involving bowing.’” Other evidence hints at rituals involving the hands of man and lord.’** Such ceremonies of submission would have been before audiences, and a law of A:thelstan lays down that the relatives of lordless men were to find them lords at a public court [folcgemote].'*

“7 DB, ii. fo. 401v. See also e.g. DB, ii. fo. 187v. For this tripartite distinction, see also Maitland, Domesday Book and Beyond, 67, and the diagram in Baxter, Earls of Mercia, 212. M8 IT As, 2.

**° Solomon and Saturn IT, lines 212-14, The Old English Dialogues of Solomon and Saturn, ed. and trans. D. Anlezark (Woodbridge, 2009), 90. *°° Lines 41-3, Exeter Anthology, ed. Muir, i. 216. *°! Swer, 1. Note that Af Intro. 49. 7, has Christ order that people love their lords as they love Him. *°* § 1081; Anglo-Saxon Wills, 186, suggests that 4lfric had been the king’s man who could not go where wished, hence the need for permission. "°° See IT Ew, 6. "4 TT As, 2.

222 PART I: LATE ANGLO-SAXON ENGLAND It is hard to tell if personal lordship was always to last the parties’ entire lives. The references in Domesday to men in the time of King Edward who ‘could go

where they would’ might seem to demonstrate the weakness of any bond of commendation. However, this phrase seems to refer to landholding rather than commendation, the issue being whether or not the man could go where he wished with his land.’* That commendation was a lasting bond is made the more likely by the signs that rights over commended men were heritable and alienable. Such is the most probable explanation for at least some of the instances in East Anglia when a man was commended half to one lord and half to another. Domesday Book records that before the Conquest Eadric of Laxfield had been outlawed and King Edward seized all his land. Following reconciliation, the king restored his land. The king also gave Eadric a writ and seal, so that whichever of

his free commended men wished to return to him could do so with the king’s consent; the lordship bond had clearly been broken by Eadric’s outlawry. One of Eadric’s men, Stanwine, became a man of Harold and, according to the hundred, was such on the day of King Edward's death. Stanwine alone said that he was

then Eadric’s man by Harold’s consent, and offered ordeal concerning this.’” That restoration to Eadric’s commendation required the king or the new lord’s consent suggests that normally the bond could not be broken. Laws of Edward the Elder and &thelstan likewise state that a lord’s permission was needed for a man to enter the service of another. This permission may have

consisted, at least in large part, in agreement that the man had hitherto conducted himself properly, and the permission may have been given in return for payment.** However, there are also signs of lords seeking firmer control of their

men. In his Sermo lupi, Wulfstan complained that ‘free men are not allowed to keep their independence, nor go where they wish, nor deal with their own property as they wish’.’° We appear, therefore, to have conflicting views, for and against the terminability of the commendatory relationship.

What were the effects of personal lordship? Crucial was protection, what Domesday calls defensio, tuitio, or protectio.°° Such protection would provide a disincentive for any offences or forcible action against the man. The perpetrator

*°° See Maitland, Domesday Book and Beyond, 48-9; Stephenson, ‘Commendation’, 294-5; Baxter, ‘Lordship and justice’, 389-98; Williams, World before Domesday, 69-70. °° Maitland, Domesday Book and Beyond, 74. *°7 DB, ii. fos 310v, 313r. Note the comments of Clarke, English Nobility, 96-8.

*°8 See II Ew, 7, II As, 22; IV As, 5 (above, 209). The implication seems to be that the second was an alternative lord not an additional one. See also III As, 4. 1; Baxter, “Lordship and justice’, 403-4. °° Sermo lupi, ed. Whitelock, 52. "°° See e.g. DB, i. fos 36r, 581, 137Vv.

8 STATUS 223 of a killing would have to pay not just the man’s wergeld but also the manbot due to his lord.’* The lord should back his man in disputes, in or out of court.’ Indeed, in some cases a man submitted himself to a lord in return for support in a dispute.’* The lord might help the man in recruiting oath-helpers. If a man was accused of theft and was of bad reputation, he was to go to the triple ordeal. However, according to a law of @thelred, if his lord asserts that he [the accused] has failed neither in oath nor in ordeal since

the assembly was held at Bromdune, the lord shall choose him two trustworthy thegns within the hundred, and they shall swear that neither has his oath ever failed nor has he been convicted of stealing—unless the lord had a reeve who is qualified to discharge this duty.’

A personal lord was also a potential protector against another lord who had soke over the man and therefore a financial interest through any profits arising from cases brought. At the same time the lord had some responsibility for controlling his men, at least those of his household.’® Of course not all lords behaved well, and penalties in the laws for lords obstructing justice are an indication of seignorial assertiveness.’°°

What did lords get in return for such duties and activities? The oath in Swerian makes clear that he was to receive his man’s loyalty and service. An impressive

following and a wide range of supporters increased honour and status. Lords received heriots on the death of their followers, as was promised to Archbishop Stigand ‘his lord’ in the will of Ketel.’” According to a law of Cnut, a man who fell before his lord in battle was to be quit of heriot.’®* This may also indicate that

at least men owed their lords military service, although it is not clear that this was based on personal lordship.’ The Hundred Ordinance excepted from the penalty for non-appearance at the hundred court one absent ‘through his lord’s

“8! See above, 179.

"©? See e.g. S 1445 (Fonthill Letter); also Baxter, Earls of Mercia, 173-7, for commended men acquiring land from the church of Worcester in disputes in which they were supported by their lord, Earl Leofric; Baxter, ‘Lordship and justice’, esp. 406-11. "°° See e.g. Liber Eliensis, ii. 32, ed. Blake, 107.

*°* T Atr, 1. 2. For the unidentified council at Bromdune, see Wormald, Making of English Law, 326, 328. "8° See above, 73. "°° See e.g. IT As, 3.

*°7 § 1519. The estates do not seem to have been held from Stigand so the heriot must have resulted from personal lordship. See also Leis Will, 20. 2. *e8 TI Cn, 78.

“©? Note also military service being provided to the king’s host by the free man ofa lord according to the Worcestershire customs in DB, i. fo. 172r. See below, 230, for marriage payments.

224 PART I: LATE ANGLO-SAXON ENGLAND command’, presumably for some sort of service, although again this lordship need not have rested on commendation.” In most of the country in Domesday there is not evidence for individuals being commended to more than one lay lord. The situation as recorded in East Anglia is somewhat different. Mentions of commendation in Norfolk and Suffolk are much more frequent than elsewhere.” Most men with land producing even a few pounds had other free men commended to them. Commendation of an individual was sometimes divided between more than one lay lord. There are also mentions of sub-commendation or of men commended to the commended man of another.”” It could be that these differences are a product of differences between procedures followed on the different circuits that assembled information, or of differences in the nature of the record preserved in Great and Little Domesday, the latter being markedly more extensive. However, it is significant that the situation in Essex, surveyed in the same circuit as Norfolk and Suffolk and recorded in Little Domesday, resembles counties such as Cambridgeshire rather than Norfolk and Suffolk. This may well suggest that social structure and lordship in Suffolk and Norfolk really was somewhat different.” How far did commendation coincide with other forms of lordship? Analysis of Domesday for Suffolk reveals at least there a pattern of men being commended to

lords other than those who had soke over them.’ Elsewhere the pattern may be for the dominant figure or institution in an area to build up the largest number of commended men.” In such instances those tied by dependent tenure might well also be bound by commendation, but others bound by commendation would not be tenants.” On occasion the act of commendation may have coincided with the establishment of a tenurial relationship or with surrender of land to the new lord. Nevertheless, it remains the case that Anglo-Saxon lordship relations show a variety that would be markedly changed by the Conquest of 1066.

‘7° Hu, 7.1. See also above, 205, on GePyncdéo, 3.

‘7 See Clarke, English Nobility, 62-3. Baxter, Earls of Mercia, 205 n. 8, suggests that these Domesday entries may draw on earlier lists of commended men. "7? DB, ii. fos 296r, 344r, 376r. *’> See Clarke, English Nobility, 94-6.

‘* For this paragraph, see Baxter, ‘Lordship and justice’, esp. 412-17 on Suffolk. Note also B. Dodwell, “East Anglian commendation’ (1948) 63 EHR 289-306, especially on the extent to which commendation and tenure coincided. ”° Clarke, English Nobility, 77. Domesday Book, however, also reveals some important landholders who seem not to have been able to attract significant numbers of dependent men; see also Clarke, English Nobility, 160-1.

‘7° Note also e.g. Abrams, Glastonbury, 298-300.

Marriage and Family

INSHIP was a crucial bond in Anglo-Saxon society. Kin had rights and claims

and also duties. Some were matters of explicit decree, with penalties likely to be imposed by judgment in court, for example in relation to suretyship; others were matters of more general convention, although still of importance regarding law, for example provision of support in disputes.’ Kinship was bilateral, taking in both paternal and maternal lines, although for many purposes prioritising the paternal.” However, the sources very rarely provide definition on matters such as the extent of kinship with respect to the rights and obligations just mentioned.’ The extent of kinship probably varied with circumstance, and perhaps with level of society. Further, kinship and friendship were very closely related, and could become formally linked through marriage.* Rather than attempt generalisations on the extent of kinship, or its role in disputes or other areas of law already covered, the concerns in this chapter are more specific, and concentrate primarily on marriage.

* See above, ch. 4, on suretyship, including the obligations of the head of the household; ch. 5, on inheritance and on alienation of land; ch. 7, on feud, providing food for the imprisoned, and clearing a slain kinsman’s name.

* Note e.g. II As, 11, specifying that two paternal kin, one maternal, were to participate in the clearing ofa slain thief. > See above, 179, on healsfang.

* See T. M. Charles-Edwards, ‘Anglo-Saxon kinship revisited’, in The Anglo-Saxons from the Migration Period to the Eighth Century, ed. J. Hines (Woodbridge, 1997), 171-210, esp. 172-3, who sees the basic division as being between friend and enemy.

> For broader coverage, note L. Lancaster, “Kinship in Anglo-Saxon society (1958) 9 British J of Sociology 230-50, 359-77. It may well be that there were methods of terminating kinship relationships, but these are not apparent in the pre-Conquest materials, except in the refusal to back a family member in feud, on which see above, 173; note also LHP, 88. 15, ed. Downer, 274-6.

226 PART I: LATE ANGLO-SAXON ENGLAND

1 MARRIAGE We have many indications that the Church was intent on regulating marital and sexual practices. Collections of canons contain recommendations concerning marriage: Augustine says: He who chooses to take a wife, just as he desires to find her a virgin, so he as well is to keep his virginity until his marriage.

Paul says: The wife hath not power of her own body, but the husband: and likewise also the husband hath not power of his own body, but the wife. [I Cor. 7: 4]°

Saints’ Lives mention the rigour of reformers such as Dunstan concerning unlawful marriages.’ Well before our period, the early laws and related texts included prohibitions against unlawful unions.* Some from our period are very general: ‘all Christian men shall carefully avoid unlawful unions, and properly observe the divine laws’? Others are somewhat more specific: “by God’s prohibition, we prohibit that any man should have more wives than one; and she is to be rightly

betrothed and married’. Prohibited degrees General concern about marriage and sexual relations within the kin is expressed

throughout our period, for example, in the late ninth century in letters from Pope John VIII to Burgred, king of the Mercians, and to Athelred, archbishop of Canterbury, and another from Fulk, archbishop of Reims, to King Alfred." In the 9508, according to the Anglo-Saxon Chronicle, ‘Archbishop Oda separated King Eadwig and A:lfgifu because they were too closely related’. They may have shared a great-great-grandfather, King /Ethelwulf of Wessex.” A tract on betrothal, probably from the early eleventh century, closes by stating that ‘it is also well to

° Wulfstan’s Canon Law Collection, Recension B, 123, 126, ed. Cross and Hamer, 145, 146; see also e.g. Recension B, 125, 128, ed. Cross and Hamer, 145-6. ” ‘B’, Vita sancti Dunstani, 37, Memorials of St Dunstan, ed. Stubbs, 49. * See Wi, 3-6; Oliver, Beginnings of English Law, 167-8. > V Atr, 10, VI Atr, 11, Cn, 6. 3; see also e.g. I Cn, 24, II. Cn, 55. *° Northu, 61. For the prohibition of having more than one wife, see also e.g. VI Atr, 12. 2; note also

the abstract from a letter of Fulk, archbishop of Reims, to King Alfred, Councils and Synods, I, no. 5, ona married man having a concubine. ** Councils and Synods, I, nos 1, 3,5. On the possible extent of the prohibited degrees suggested by Pope John’s reference to a decree of St Gregory, see Councils and Synods I, 1 n. 3.

"2 ASC, version ‘D’, 957 (s.a. 958); for some of the circumstances, see P. Stafford, “The king’s wife in Wessex 800-1066° (1981) 91 PeP 3-27, at 15, and S. Jayakumar, ‘Eadwig and Edgar: politics, propaganda and faction, in Edgar, King of the English 959-975: New Interpretations, ed. D. Scragg

9 MARRIAGE AND FAMILY 227 take care that one knows that they are not too closely related, lest one afterwards put asunder what was previously wrongly joined together’.* There is particular concern and precision in the laws associated with Wulfstan: “if anyone commits

incest, he is to pay compensation according to the degree of the relationship, whether by wergeld or by fine or by all his possessions. It is not equal whether a man has intercourse with his sister, or with a more distant relation.* Laws composed by Wulfstan prohibited marriage ‘within the sixth degree of relationship, that is within the fourth knee [cneowe]’, thus prohibiting marriage to fourth cousins, or marriage ‘with the widow of a man as nearly related to him as this’.

Another text associated with Wulfstan, the “Treaty of Edward and Guthrum, states that in cases of incest, the councillors have decided that the king shall take possession of the male offender, and the bishop the female offender, unless they make amends before God and the world as the bishop shall prescribe, in accordance with the gravity of the offence.”

However, it would be wrong to take Wulfstan’s views as constituting the settled and enforced law regarding prohibited degrees. Other texts, such as the penitential known as the Scrifboc, contain different views, and also display flexibility concerning enforcement: ‘in the fifth degree [cneorisse] faithful people are allowed to marry; and in the fourth if they are found [married], they are not to be separated; at the third degree [cneowe] they are to be separated’.” The prohibitions concerned family not just by blood but also by spiritual or marital kinship. For example, the eleventh-century Northumbrian Priest’s Law, influenced by Wulfstan, states that ‘no man is to marry his God-relative. And (Woodbridge, 2008), 83-103, at 88-90. The relationship was distant and there were political reasons for the separation. "> Wif, 9; on the text, see below, 229.

“* IT Cn, 51, 51. 1. For earlier concern with the same subject, see e.g. the ‘Constitutions’ of Archbishop Oda, 7, Councils and Synods, I, no. 20. '? VI Atr, 12, I Cn, 7; see also Northu, 61. 1; for calculation of the extent of the prohibition and use of the term ‘knee’, see T. M. Charles-Edwards, ‘Kinship, status and the origin of the hide’ (1972) 56 Pe&P 3-33, at 23-4. Note further, e.g. Wulfstan’s Canon Law Collection, Recension B, 137, 140-3, 146,

148-50, ed. Cross and Hamer, 153-63. See above, 226, on Archbishop Oda’s concerns stretching at least nearly as extensively. A degree consisted of a generation or an act of generation. Calculations might seem clear, with, for example, parent and child being related in the first degree, grandparent and grandchild in the second. However, matters are more complex; for example, there were different systems of counting, notably those that just counted back to the common ancestor, and those that counted back to the common ancestor and down again to the other party; see below, 436, and also Helmholz, Canon Law and Ecclesiastical Jurisdiction, 47-8. © EGu, 4. ‘” Das altenglische Bussbuch (sog. Confessionale Pseudo-Egberti), ed. R. Spindler (Leipzig, 1934), 183-4; cf. 180-1.

228 PART I: LATE ANGLO-SAXON ENGLAND if anyone does so, may he not have God's mercy, unless he desists and atones as the bishop directs. If, however, he dies in that sin, he is to forfeit Christian burial and God’s mercy."* The “Treaty of Edward and Guthrum’ specifies that ‘if two brothers or near relatives lie with one woman, they are to pay as compensation and with all promptness whatever sum may be approved—whether as fine or lahslit—as appropriate for the offence’? Wulfstan’s collection of canons includes the specification that a man was not to marry the widow of his deceased brother.”° For once we have case material relevant to this subject. A document of Archbishop Oswald, probably dating from soon after 972, states that certain land had been given to Archbishop Oscytel “because of an wrongful union—two brothers had one wife’. It is unclear whether the marriages were concurrent or successive.”

As well as kinship, there were other prohibitions. Men were not to marry professed nuns or women who had taken religious vows. According to a general letter of Cnut from 1020, anyone who did so was to be excommunicated and forfeit all his possessions to the king, unless he desisted from the relationship as quickly as possible and made the most thorough amends towards God.” Clergy were not to marry: Those in holy orders who ought to teach God’s people by example of life should maintain the celibacy befitting their estate, whether they be men or women in orders. And if they fail to do so, they shall incur what is said in the canon, and they shall forfeit their worldly possessions and burial in consecrated ground, unless they make amends.”

Betrothal The key stage in marriage arrangement was the betrothal.** Here the most important text is a tract known as Wifmannes Beweddung, probably from the

‘® Northu, 61-2. The text was probably from after Wulfstan’s time; Wormald, Making of English Law, 208-10, 396-7.

EGu, 4.1. °° Wulfstan’s Canon Law Collection, Recension B, 139, ed. Cross and Hamer, 153-4. ** § 1453.

*? Cn 1020, 16-17. See also e.g. Councils and Synods, I, no. 1; VI Atr, 12.1, 1 Cn, 7.1.

*° T Em, 1. See also e.g. Councils and Synods, I, no. 5, a letter of Fulk, archbishop of Reims, to King Alfred; V Atr, 9, VIII Atr, 30. The reference to a ‘canon’ may have been to a decree of the Council of Nicaea (325) against clerical marriage; Helmholz, Canon Law and Ecclesiastical Jurisdiction, 48. See also Wulfstan, Institutes of Polity, 69-77, 106 / 145-69, 211, ed. Jost, 110-21, 144.

** For a study of vocabulary concerning betrothal and marriage, see A. Fischer, Engagement, Wedding and Marriage in Old English (176 Altenglische Forschungen, Heidelberg, 1986).

9 MARRIAGE AND FAMILY 229 early eleventh century.” It begins with the precondition that the betrothal is desirable to the man, the prospective bride—be she maiden or widow-, and her ‘friends [freondan]’, a group that would have included her kin. There follows a series of promises by the man, which he guarantees by a pledge and his friends guarantee by surety: it is right that the bridegroom first according to God’s laws and proper secular custom should promise and pledge [on wedde sylle| those who are her advocates [forsprecan] that he desires her in such a way that he shall maintain her according to God’s law as a man should maintain his wife; and his friends are to stand surety [aborgian] for it. Next it must be known to whom belongs the payment for her support [fosterlean]. The bridegroom is then to pledge this, and his friends are to stand surety for it. Then afterwards the bridegroom is to announce what he grants her because she has accepted his desire, and what he grants her if she should live longer than he.”®

Next, if full agreement had been reached, the woman’s kin [magas] were ‘to set about betrothing their kinswoman as wife and in lawful matrimony to him who has asked for her’. If she was to be taken to the estate of another thegn, ‘then it is to her interest that her friends have the assurance that no wrong shall be done to her, and that if she commits an offence, they may be allowed to stand next in paying compensation, if she has not possessions with which she can pay.””

Various points are of interest within this text. One is the large part played, especially on the bridegroom's side, by people referred to as freond, ‘friend’, rather than the more specific meg, ‘kinsman’. ‘Friends’ probably included kin and others, and were particularly important in giving surety. The narrower group, the meg, were mentioned in the particular context of betrothing the woman to

the man. A second point is the emphasis on pledge and surety. A third is the reference to the actual marriage in the presence of a priest as a gift, that is the giving of the woman to the man. However, unlike in the laws of Ine, the groom is not referred to as buying the wife or making a payment [feoh].** A fourth is the emphasis on the betrothal being a shared choice of man, woman, and her kin or friends. A fifth is the predominant concern to protect the woman's interests. Finally there is the continuing link of the woman to her ‘friends’ should she suffer or commit wrong.

*° Wormald, Making of English Law, 386-7, dates the text to “‘Wulfstan’s era’, and suggests that it provided guidance on procedures that local officials would oversee. *° Wif, 1-3; on the last clause, see also below, 238. 27 Wif, 6-7. 8 Wir, 8, cf. Ine, 31.

230 PART I: LATE ANGLO-SAXON ENGLAND Other evidence too indicates the need for the consent of bride and groom. A law of Cnut states that ‘no woman or maiden shall ever be forced to marry a man whom she dislikes, nor shall she be given for money, unless he wishes of his own free will to give something.” Quite what was the substance of the freedom of consent is unclear. Its limitations may be suggested by the statement in Wulfstan’s collection of canons that ‘if anyone has seduced a virgin not yet betrothed, and has slept with her, he shall endow her and have her as wife’3° On the other hand, a woman of high social standing, presumably with the backing of her family, might exercise real choice. The twelfth-century Liber Eliensis tells that Wulfric, abbot of Ely c. 1044-66, had a brother, Guthmund, whom he planned to have marry the daughter of a very powerful man. However,

Guthmund, although ‘noble’, could not be counted amongst the greatest men [proceres] as he did not hold forty hides. The daughter therefore rejected him." As for the ages at which betrothal and marriage were permitted, the sources provide little information, although the penitential of Theodore state that the father of a girl aged over sixteen or seventeen could not give her in marriage contrary to her will.” Besides bride, groom, and their kin, did others exercise control over marriage? We will deal later with remarriage of widows, but did lords exercise any control over first marriages??? Wulfstan’s collection of canons speaks in terms of a master joining only two slaves [servum et ancillam] in marriage.‘ It is certainly plausible that lords took payments from peasants at the time of marriage, what was later called merchet.*® It is also possible that Cnut’s laws indicate at least some royal exercise of influence over first marriages, but there is no clear evidence for seignorial control, at least above the peasant level.*°

*° 11. Cn, 74.

°° Wulfstan’s Canon Law Collection, Recension B, 122, ed. Cross and Hamer, 145. Note also Af, 18. 1-3, on the betrothed woman who committed fornication. °" Liber Eliensis, ii. 97, ed. Blake, 167. Guthmund proceeded to request further lands from the abbey so that he could pursue his marital plans.

** Theodore’s Penitential, ii. 12.37, Die Canones Theodori Cantuariensis und _ ihre Uberlieferungsformen, ed. P. W. Finsterwalder (Weimar, 1929), 330-1; see also the Old English Scriftboc, 15, ed. Spindler, 183.

°° Note also legerwite, the fine payable by a woman, or her family, for fornication, perhaps in a limited range of circumstances; e.g. DB, i. fo. 204r. °** Wulfstan’s Canon Law Collection, Recension B, 135, ed. Cross and Hamer, 151-2. °° See below, 422. Note the record of gebur marriages in Pelteret, “Two lists’, 473-4; DB, i. fo. 252r, customs of Shrewsbury in 1066, for an unmarried woman paying 10s., a widow 20s., to the king when she took a husband.

°° Note II Cn, 74, quoted above, although this has generally been taken to refer to family rather than royal or seignorial pressure. DB, i. fo. 173r, has the bishop of Worcester giving the daughter of the TRE tenant in marriage, but the logic of the entry is that the marriage was after the Conquest.

9 MARRIAGE AND FAMILY 231 Marriage agreements should be public, and might be recorded in writing. Of the two surviving pre-1066 agreements, one concerns the marriage of Wulfric to the sister of Archbishop Wulfstan. It was made in the presence of the archbishop, Ealdorman Leofwine, Bishop Athelstan of Hereford, Abbot /Elfweard of Evesham, the monk Brihtheah—who may have been Wulfstan’s nephew—‘and many other good men in addition to them, both ecclesiastics and laymen. Two copies of the agreement were written, one placed in the posses-

sion of the archbishop at Worcester, the other in that of Bishop Athelstan at Hereford.” The second agreement, between Godwine and Brihtric, states that it was made at Kingston before King Cnut and others. It continues by naming various men who acted as surety [on borh] for all this “when the maiden was brought from Brightling’. It closes: ‘every trustworthy man in Kent and in Sussex, thegn and ceorl, knows these terms. There are three of these documents: one is at Christ Church, another at St Augustine's, and Brihtric himself has the

third.3 Ceremony The Church sought to oversee the marriage ceremony. Wifmannes Beweddung states that at the marriage ‘there should by rights [mid rihte] be a priest, who shall unite them together with God’s blessing in all prosperity’2? Wulfstan’s collection of canons includes the following: ‘a canon of Carthage: the bridegroom and bride, when they are to be blessed by the priest, are to be brought forward by their parents or by the bridal attendants; and when they have received the blessing, that same night, they are to remain in the state of virginity, out of respect for that blessing.’ Blessings for conjugal rites, including blessing of the ring and marriage bed, appear in English pontificals of around 1000." Evidence does not exist as to the success of the Church’s efforts.‘* However, it is notable that Wulfstan and Alfric felt it necessary to prohibit priests from blessing

second marriages, suggesting concern beyond inadequate priestly involvement

57 § 1459,

°° $1461. 2° Wif 8. *° Wulfstan’s Canon Law Collection, Recension A, 59, ed. Cross and Hamer, 91. “ Two Anglo-Saxon Pontificals, ed. H. M. J. Banting (104 Henry Bradshaw Soc., 1989), 133-4, 140; The Claudius Pontificals, ed. D. H. Turner (97 Henry Bradshaw Soc., 1971), 72-3.

** VI Atr, 25, prohibited marriages, along with oaths and ordeals, during festivals, although it cannot be told exactly how this related to priestly participation; only ordeal and oath appear in the similar clauses in EGu, 9, V Atr, 18, I Cn, 17.

232 PART I: LATE ANGLO-SAXON ENGLAND in marriage ceremonies; sometimes priests were present even though it was improper.”

Adultery There were various pieces of legislation against adultery, although it is difficult to build a consistent picture from them.*4 Some were very general, some more specific. A law of Edmund stated that “he who has intercourse with a nun, unless he makes amends, shall not be allowed burial in consecrated ground any more than a homicide. We have decreed the same regarding adultery [e@wbrice]’.*° A law of Cnut may seem less fierce: ‘if anyone commits adultery, he is to pay compensation for it in proportion to the deed’, although it goes on to state that ‘it is wicked

adultery that a married man should commit fornication with a single woman, and much worse if with another’s wife or with a woman consecrated [to God].’4 Cnut’s code also specifies that ‘if a married man commits fornication [forlicge] with his own slave-woman, he is to lose her and make amends for himself with God and with men.’** Treatment of female adulterers in Cnut’s laws was tougher than that of men: if a woman during her husband ’s lifetime commits fornication with another man, and it becomes known, she shall bring disgrace [woruldsceame] upon herself, and her lawful husband is to have all that she owns, and she is to lose her nose and ears. And if an accusation is brought, and the exculpation fails, the bishop is then to take control and to judge sternly.”

Domesday Book suggests that forfeitures of female adulterers went to the bishop, those of men to the king.° The case material is very limited but mentions a man

** /Elfric, Pastoral Letter for Wulfsige III, 26, 28, First Old English Pastoral Letter for Wulfstan, 156, Councils and Synods, I, nos 40, 46; Wulfstan, Institutes of Polity, 193, ed. Jost, 132-3. Note also Wulfstan’s Canon Law Collection, Recension A, 60, ed. Cross and Hamer, 91-2: ‘a canon says: A priest ought not to be present at a feast for a second marriage, especially when he is being requested to mete

out penance ona second marriage. ** Note also above, 173, on Af, 10, and 42. 7. Note also II Cn, 54.1, stating that ‘if anyone has a lawful

wife and also a concubine, no priest shall perform for him any of the offices that must be performed for a Christian man, until he desists and makes amends as thoroughly as the bishop directs him, and evermore desists therefrom’.

* E.g.ICn, 24. *° T Em, 4. *7 11Cn, 50. *8 11 Cn, 54.

* IT Cn, 53. °° See below, 440; also above, 104-6, on “‘Ymb Awbricas’.

9 MARRIAGE AND FAMILY 233 forfeiting land on account of adultery [pro stupro] and a woman forfeiting land to the king on account of fornication [| fornicaria prevaricatione]*

Divorce and separation Earlier penitential literature appears not to have seen remarriage after separation as invalid’* However, a letter from Pope John VIII to 4thelred, archbishop of Canterbury, dating from 877-8, states that those whom you affirm to leave their own wives, against the precept of the Lord, we command, that no man leave his wife, nor wife her husband, ‘saving for the cause of fornication’. If anyone separates for this cause, he or she is to remain unmarried, or they are to be mutually reconciled, since, as our Lord says, ‘what God hath joined together, let no man put asunder.’ Thus, as no-one can leave a previous wife joined to him in lawful matrimony, by no reason is it allowed him on any account to marry another while the former is alive. If he does it, and is not eager to make amends by due penance, let him remain separated from the fellowship of the Church?

Concern about such issues grows in texts from the last part of our period. A law in Athelred’s name, in a text by Wulfstan, forbade a man to marry a woman who had been renounced.* Wulfstan’s collection included some canons allowing a woman to be set aside for adultery without permitting remarriage of the man thereafter, but also others allowing remarriage in certain circumstances.® The Northumbrian Priest's Law specified that “if anyone abandons his lawful living wife, and wrongfully takes another woman to wife, let him not have God’s mercy, unless he atones for it. But each is to keep rightly his legal wife as long as she lives; unless it comes about that they both choose to separate with the bishop's advice, and wish thenceforth to preserve chastity.” A similar exception appears in Wulfstan’s collection of canons: ‘if a husband or wife shall, with agreement, take up the religious life, the other, if a young woman or young man, is permitted to undertake a new marriage. ’*® >" § 375 (document of questionable authenticity), 901; note also S 927, for forfeiture as a result of numerous offences committed, including adultery. °* Helmholz, Canon Law and Ecclesiastical Jurisdiction, 45. Note also Abt, 79-80. °* Councils and Synods, I, no. 3. >* See also Wulfstan’s Canon Law Collection, Recension B, 135, ed. Cross and Hamer, 151-2, on the question of remarriage by a slave who has been freed. °° VI Atr, 12.1. °° Wulfstan’s Canon Law Collection, Recension A, 90-2, Recension B, 130-4, ed. Cross and Hamer, 103-4, 149-51.

°” Northu, 64-5. °° Wulfstan’s Canon Law Collection, Recension A, 93, see also Recension B, 129, ed. Cross and Hamer, 105, 147.

234 PART I: LATE ANGLO-SAXON ENGLAND Remarriage of widows Remarriage after the death of one party was permitted, although some churchmen stated that it required penance and should not be blessed by a priest.*° We hear

very little of the regulation of remarriage by widowers, although Wulfstan’s collection of canons includes the statement that ‘his wife being dead, a man is permitted to take another after a month’. Reference to remarriage of widows is much more common. A law associated with Wulfstan, in King Athelred’s name, states that a widow ‘is to remain without a husband for a year, after which she may decide as she herself wishes.” The second part of this law reflects the canonical position,” and is repeated in Cnut’s code, with additional specifications: And if within the space of a year she chooses a husband, she is then to forfeit the morning-gift and all the possessions [@htan] that she had through her former husband; and the nearest kinsmen [frynd] are to take the lands and the possessions that she had before. And he [the second husband] is to be liable to pay his wergeld to the king or to whom it has been granted. And even if she was taken by force, she is to forfeit those possessions, unless she wishes to leave the man and return home and never afterwards become his.®

Through forfeiture and payment of wergeld, the new couple were thus treated as if they were responsible for the first husband’s death. The norm against remarriage within a year was enforced, at least on occasion. Domesday Book states of

land in Norfolk that after the Norman Conquest Bishop /thelmeer seized the land as forfeit, since the woman who held it married within a year of the death of her husband. Thus whilst the marital endowment provided resources for the widow, it might also be used to control her behaviour.

°° Seee.g. Wulfstan, Institutes of Polity, 189-95, ed. Jost, 132-5. °° Wulfstan’s Canon Law Collection, Recension A, 87, ed. Cross and Hamer, 102-3; note also A 86: ‘the canons teach that if anyone has married a widow or divorced woman, or has married twice, he may never become a deacon, never a priest’. Depending primarily on the relative risk of death through violence or accident and of death in childbirth, it is possible that there were fewer widowers than widows. °* V Atr, 21, VI Atr, 26.

°* Wulfstan’s Canon Law Collection, Recension A, 87, ed. Cross and Hamer, 102-3. Note also Theodore’s Penitential, ii. 12.10, Die Canones Theodori Cantuariensis, ed. Finsterwalder, 327. °° II Cn, 73; see S. Hollis, ‘“The protection of God and the king”: Wulfstan’s legislation on widows’, in Wulfstan, Archbishop of York, ed. M. Townend (Turnhout, 2004), 443-60. The apparent contradic-

tion between the woman’s freedom to choose and the penalties even if the second marriage was by force could refer to abductions in which the woman colluded. The woman was given the opportunity to prove her unwillingness by leaving the man. °* DB, ii. fo.199r. Cf. below, 241 n. 102, on S 1482. One may suspect that the norm was most likely to

be enforced when a person of sufficient power had an interest in its imposition.

9 MARRIAGE AND FAMILY 235 There are signs that some sought further to extend their control over widows. Wills include grants for wives to hold provided they did not remarry. In 983 Archbishop Oswald leased five hides of land to his kinsman, for three lives.®° The second holder was to be the kinsman’s wife, if she survived him, so long as she decided to remain a widow or married a husband who was subject to the ‘episcopal dignity’ of the church of Worcester. Choice of husband is here restricted through consequences for landholding. The Ramsey chronicle mentions a man marrying a widow with King Cnut’s permission.” This appears contradictory to Cnut’s law allowing a widow, after a year, to choose the husband she desired. It is possible the widow’s husband in this case had been dead for less than a year, or that the king was unwilling to give up control of widows’ marriages as fully as his laws suggest.®* Alternatively, the text may reflect practices of the time of its writing, in the twelfth century, rather than those of Cnut’s reign.

Jurisdiction The lack of case evidence makes it impossible to tell whether churchmen sought to exercise a particular jurisdiction over marriage cases.®° Bishops, and perhaps

other clerics, certainly brought accusations. A marginal entry made in the eleventh century in a Gospel book records that “Godwine son of Earwig made full exculpation regarding the unlawful consort [unrihtwife] concerning whom Bishop Leofgar [of Lichfield] accused him’’°

Clerical and lay views The prescriptive texts do suggest changes in the law of marriage, for example the increasing emphasis on a priest blessing the marriage. However, on some points,

such as the rigorous definition of the prohibited degrees, it is hard to tell how far such attitudes extended beyond Wulfstan and other reformers of his time and earlier’ Also unclear is the effect of Church attitudes on secular law and

°° See below, 242. °° § 1345. °” Ramsey Chronicle, 75, ed. Macray, 135. °° Cf. below, 447, on Henry I’s coronation decree.

°° See above, 63-4. ’”° Codex diplomaticus, ed. Kemble, no. 803. ”* See above, 226, on Archbishop Oda.

236 PART I: LATE ANGLO-SAXON ENGLAND practices regarding marriage and other matters such as landholding.” Penitential literature may suggest that concubinage was to some degree tolerated: [Concerning] the man who has a lawful wife and also a concubine [cyfese], let no priest give him the eucharist nor any of the rites that are performed for Christian men, unless he turns to repentance. And if he has a concubine and no lawful wife, he has to do as seems [best] to him about that; however, let him see to it that he keeps to one, whether it be the concubine or the wife.”

Furthermore, there is from the highest levels of society strong evidence for serial monogamy, the relationships not necessarily involving a marriage fitting ecclesiastical prescriptions. King Edward the Elder had as his spouses Ecgwyna, A:lffleed and

Eadgifu. Alffled appears to have outlived Edward, as a nun at Wilton, so the king may have repudiated her in order to marry Eadgifu. King Edgar repudiated at least one of his three spouses. A later source has Uhtred, earl of Bamburgh, marrying and repudiating the daughter of the bishop of Durham and the daughter of a local aristocrat before finally marrying the daughter of King Athelred II.“ Kings Cnut and Harold II each appear to have had a recognised relationship with one woman before they entered into an ecclesiastically blessed marriage with another.”

2 ILLEGITIMACY Questions of valid marriage are closely tied to those of the legitimacy of children.

There is evidence for a distinction being drawn between acknowledged and unacknowledged children born outside marriage. A law of Ine had stated at the end of the seventh century that “he who secretly begets and conceals a child shall not have the wergeld at its death, but its lord and the king shall’. The clear implication is that some illegitimate children were recognised, and the father would receive the wergeld. It may be that such acknowledged children could inherit, but as we saw in our discussion of land law, non-testamentary inheritance patterns are very hard to determine.” It is notable that the will of Athelgifu makes a grant 72 See also Helmholz, Canon Law and Ecclesiastical Jurisdiction, 46.

”* Old English Penitential of Pseudo-Ecgbert, ii. 9, Die altenglische Version des Halitgar’schen Bussbuches, ed. Raith, 21. This is based on Continental legislation, but seems to fit Old English views; M. C. Ross, ‘Concubinage in Anglo-Saxon England’ (1985) 108 PeP 3-34, at 23-4. Stafford, ‘King’s wife’, 13-14; De obsessione Dunelmi, 1-2, in Simeon of Durham, Opera Omnia, 215-16. Note The Life of King Edward, i. 3, ed. Barlow, 36, for the archbishop of Canterbury, Robert of Jumiéges, allegedly seeking to separate Edward the Confessor and his wife. 7° M. K. Lawson, Cnut (London, 1983), 131-2; F. Barlow, The Godwins (Harlow, 2002), 55-6. ’° See Ine, 27; Ross, ‘Concubinage’, 13-18; Charles-Edwards, ‘Anglo-Saxon kinship revisited’, 181; above, 124-8, 134, especially on the problem of the will of Ealdorman Alfred. Af, 8. 2, prohibited that the child of a nun should inherit.

9 MARRIAGE AND FAMILY 237 to Leofsige that was to pass to his child, if he had one born in wedlock, but to pass to a church if he had no such child.”

Again it is possible that there was a clash between views promoted by some churchmen and perhaps accepted by some of the laity, and other values, perhaps primarily associated with the laity. A decree of a Church council of 786 had laid down that kings are not to be those begotten by adultery or incest; because just as in our times according to the canons a bastard cannot attain the priesthood, so neither can he who was not born of legitimate marriage be the Lord’s anointed and king of the whole kingdom and heir of the land”®

However, royal succession disputes took place between issue of different liaisons, for example between Harold Harefoot, son of Cnut and Alfgifu of Northampton, and Harthacnut, son of Cnut and Emma; A2lfgifu was his acknowledged consort, whereas Emma was his wife.”? A story in the Worcester cartulary has Earl Swegn

preferring to be considered the illegitimate son of the line of Cnut [de stirpe Cnuti], rather than the son of Earl Godwine, a claim denied by his mother.*° As with marriage, the reforming clerical view was yet to prevail.

3 HUSBAND AND WIFE We have already considered some ways in which women might receive and dispose of lands, and noted the very limited evidence on women’s control of chattels.** Here our focus is on property tied to marriage.

Gifts from wife's kin to bridegroom There is some evidence for gifts from the wife's kin to the bridegroom, that is for dowry. Near its end, the marriage agreement between Godwine and Brihtric states that ‘whichever of them lives the longer shall succeed to all the property both in land and everything else that I have given them’; the ‘I’ in the text may be the bride's father.” The will of Thurketel mentions that he gave to his wife

"7 $1497.

”® Report of legates on council of Chelsea, 12, Councils and Ecclesiastical Documents relating to Great Britain and Ireland, ed. A. W. Haddan and W. Stubbs (3 vols; Oxford, 1869-78), iii. 453. ” On these relationships, see Lawson, Cnut, 131-2. °° Hemmingi chartularium ecclesie Wigorniensis, ed. T. Hearne (2 vols; Oxford, 1723), i. 275-6. ** See above, 114-5, 152. ** $1461.

238 PART I: LATE ANGLO-SAXON ENGLAND land including some that he had ‘received with her [mid hire nam]’.® A late tenth-century bishop of Durham was later recorded as having given lands with his daughter in marriage.*t Domesday Book makes occasional mentions of men taking lands with their wives before 1066.** Such evidence suffices to suggest that dowry was neither a Norman nor a Scandinavian import.

Gifts for acceptance of husband's suit Wifmannes Beweddung states that the bridegroom is to announce what he grants her because she has accepted his desire, and what he grants her if she should live longer than he. If it is thus agreed, then it is right that she should be entitled to half the goods [healfes yrfes|—and to all, if they have a child together—unless she remarries.*°

The first sentence thus mentions both a gift for agreement to marry and the grant for her support as a widow. Likewise, the agreement between Godwine and Brihtric opened ‘here is declared in this document the agreement that Godwine made with Brihtric when he wooed [awogode] his daughter. In the first place he gave her one pound’s weight of gold, to induce her to accept his proposal.” As

already noted, care seems to be taken to avoid suggestion that the marriage is a sale, rather than a set of willing agreements between the parties, marked by voluntary proffers.**

Gifts from bridegroom to bride The quotation from Wifmannes Beweddung also mentions a grant to the wife for her later support if widowed. This can be indentified with the type of grant that various documents refer to as a morgengifu, a morning-gift from husband to wife.*® According to Cnut’s laws, the morning-gift remained with the woman °° § 1527.

** De obsessione Dunelmi, 1, in Simeon of Durham, Opera Omnia, 215-16. °° DB, ii. fos 195r (Aithelmeer, before he became bishop of Elmham), 431v (a priest); DB, i. fo. 252v, a gift to a son-in-law, may be another instance. °° Wif, 3-4. The second sentence may only refer to movables; in the twelfth century Quadripartitus translated ‘healfes yrfes’ as ‘dimidiam pecuniam’. °7 § 1461.

°° See above, 229; also II Cn, 74; note also Charles-Edwards, ‘Anglo-Saxon kinship revisited’, 180-1.

°° In addition to the documents cited below, see S 939 for the widow of Athelric of Bocking using her morning-gift to clear her husband posthumously of an accusation of treachery. On morgengifu, see also P. Stafford, “Women and the Norman Conquest’ (1994) 6th Ser. 4 TRHS 221-49, esp. 237-9; Fell, Women in Anglo-Saxon England, 57; Fell also notes place-names deriving from morgengifu, for

9 MARRIAGE AND FAMILY 239 to support her after her husband's death, unless she remarried too swiftly.°° We cannot be certain what proportion of land was to remain to the woman if a specific grant was not made by the husband; there may have been regional variation, perhaps between one-half and one-third. Evidence as to the degree of the woman's control of such property whilst her husband was alive is scarce. That morninggifts are mentioned in husbands’ wills may indicate that the husband retained some control over the land during his lifetime, or may simply be intended for clarity, confirming the earlier gift to his widow.”

Widows exercised greater control over their marriage endowment. Their control of some estates might be restricted, for example to the widow's lifetime, that of other estates be considerably greater.” Such distinctions are apparent in an agreement between Wulfric and Archbishop Wulfstan concerning Wulfric’s marriage to Wulfstan’s sister: Wulfric promised her the land at Orleton and at Ribbesford for her lifetime, and promised her the land at Knightwick, that he would obtain it for her for three lives from the community at Winchcombe, and gave her the land at Alton to give and to bestow upon whomsoever she pleased during her lifetime or after her lifetime, as she pleased.”

The Fonthill Letter reveals that Helmstan’s claim to land at Fonthill was ‘that he had it as Athelthryth had sold it into Oswulf’s possession at a suitable price; and she had told Oswulf that she was entitled to sell it to him because it was her morning-gift when she married AAthelwulf’ King Alfred and others had witnessed the sale. It is unclear whether Athelwulf was still alive at the time of sale, but the essential point was the woman’s right to alienate. A charter of thelred II refers to his reeve Elfgar unjustly acquiring Moredon, which should have belonged to the abbey of Abingdon, and giving it to his wife Elfgifu ‘as a hereditary gift of dower [sub hereditario datalicii dono]’, the last words presumably being a Latin rendering of morgengifu.> If a woman who example Morgay Farm Sussex. See S 1539 for a woman bequeathing her morning-gift, probably to her son with reversion to her daughter and then her son’s son. °° See above, 234. °" See e.g. S 1487; note also S 1531, below, 240. See also S 1486 for a woman giving to a church an

estate that had been her morning-gift, just as she and her husband had promised and her husband and her sister had granted. °? Note S 1458.

°° § 1459; for another grant of land in a marriage agreement, see S 1461. °* $1445. °° § 918. See S 1503a for a reference to a gift to a wife ‘in dotem’, the document being from Ramsey and a twelfth-century Latin version of an Old English text; note also S 1236. Dos and morgengifu are

equated in A:lfric’s glossary; Anglo-Saxon and Old English Vocabularies, ed. Wright and Wilcker, i. 115. On the relationship of the morning-gift to later dower, note Stafford, “Women and the Norman Conquest’, 238.

240 PART I: LATE ANGLO-SAXON ENGLAND had received such an endowment died childless, to whom did it pass? A law of /Ethelberht, in c. 600, had stated that if a woman did not bear a child, her father’s relatives were to have her goods and morning-gift.*° It is unclear whether such a custom still applied in our period, or whether the morning-gift was still of the same nature. Cnut, as we have seen, specified that the morning-gift of a widow who remarried precipitously was to go to the first husband’s kin; this may be an acceleration of a reversion that would normally have occurred if the widow died without heir and without having bequeathed the land.” Further agreements could be made between man and wife after their marriage. The will of Ealdorman /Ethelmeer closes by stating that ‘all that I grant to my wife, in lands or in goods, I grant according to the terms that we settled between us with pledges.** The widow of /Ethelstan Mannessune was partially successful in challenging a grant in his will to Ramsey by claiming an agreement that she and her husband had made during his lifetime.*® In both cases these may be agreements made after rather than prior to or at the time of marriage.

The practice of the gift as part of the marriage agreement also existed in areas of England where law or at the very least the language of law had undergone Scandinavian influence. The will of Thurstan, son of Wine, left his wife ‘thelgyth ‘everything that I have in Norfolk, as I gave it to her as a marriage payment and in accordance with our contract [to mund and to maldage]’. These last words seem to be a Scandinavian expression, with maldaga referring to an agreement concerning succession to property.’°° Widows Widows might be provided with a protector.’ A will from the start of the eleventh

century records Alffled, widow of Ealdorman Byrhtnoth, making a grant to Ealdorman Athelmeer ‘on condition that during my life he shall be a true friend and advocate [forespreca] to me and to my men, and after my lifetime be a true friend and advocate of the holy foundation at Stoke, where my ancestors lie buried, and of its property’. She also made a grant to another 7thelmeer, with the humble prayer ‘that he shall be my true friend and protector [mundiend] during my lifetime, and after my lifetime shall help to secure that my will and my ancestors’ °° Abt, 81. °” See above, 234.

°° $1498. The will had earlier stated that ‘I grant the land at Tidworth to my wife for her lifetime, and after her lifetime it is to go at her funeral to the place where I will be buried, for the souls of both of us.’ °° Ramsey Chronicle, 33, ed. Macray, 60-1. *° $1531; Anglo-Saxon Wills, 195. *°! See also above, 75.

9 MARRIAGE AND FAMILY 241 wills may stand’. The arrangements supplemented the general provision, expressed, for example, in a law of Athelred, that ‘all widows who lead a respectable life shall enjoy the special protection [grid] of God and of the king’

4 MINORS Age of majority The laws give no standard age of majority for boys or girls. However, as we have seen, they do specify ages at which a person was considered responsible for their offences or was liable to the death penalty; twelve and fifteen were the prominent ages.'°4 It is unclear whether these should be taken as ages of majority for other

purposes, for example the point at which an heir could take direct control of land that he had inherited; a will specifies that Eadmeer, probably the testatrix’s son, was to pass land to Eadwold, probably Eadmeer’s son, ‘if it is God’s will that Eadwold be old enough in his father’s lifetime to hold land’.°> The penitential of Theodore stated that a girl of sixteen or seventeen was in the power of her father; after that age, as we have heard, he could not give her in matrimony against her will.°° A boy was in his father’s power up to the age of fifteen, after which he

could make himself a monk if he so wished.’ It cannot be told how far such ages applied in practice, or, again, whether they were ages of majority in other matters.

Wardship Certain people were considered in need of special protection or representation.'® We have already looked at widows, and the other main group was minors. Earlier ** § 1486. Early in the ninth century, the reeve Abba had laid down that if he and his wife had a child, the child should have the father’s land after the father died, and enjoy it with the widow. If they did not have a child, the widow was to have it as long as she was willing to keep it without remarrying. The testator’s brother was to support [fultume] her and see that she had the profits from the land. If she contracted another marriage, the testator’s kinsmen were to take the land and restore her own property [hire agen] to her; S 1482. Here the testator’s kin provide both protection and control. °° V Atr, 21, VI Atr, 26. On widows and land, see above, 114-15, 128-9, 140. *°* See above, 168.

*°° § 1539; the will cannot be dated with any great precision. See also below, 242, for S 1517. "°° See above, 230.

*°7 Theodore’s Penitential, ii. 12.37, Die Canones Theodori Cantuariensis, ed. Finsterwalder, 330; Old English Scriftboc, 15, ed. Spindler, 183.

*°8 Af, 14, states that ‘if anyone is born dumb or deaf, so that he can neither deny nor confess his wrongdoings, his father shall pay compensation for his misdeeds’.

242 PART I: LATE ANGLO-SAXON ENGLAND laws had made provision concerning the custody of minors following the death of their father.”°° From our period, we have a few examples of grants of custody. A man named Ecgferth committed various previously contested lands and the charters concerning them, with the knowledge of King Edgar, to Archbishop Dunstan, ‘in order that he might act as protector [mundgenne] to his widow and child’."° A testator made arrangements that, should his widow remarry, custody of their son and all the property bequeathed to him should pass to another man, ‘until the child himself is capable’. It is possible that the guardian in this case

was a kinsman, bringing the arrangement in line with that suggested by the early laws.

5 SPIRITUAL KINSHIP A further important tie was that of spiritual kinship, created particularly at baptism, but also at the catechumenate and confirmation.’” It seems that in England, unlike the Continent, there was only one sponsor, of the same sex as the person undergoing the ceremony.’? This is one reason for the relatively limited emphasis in England on the need for the group of godparents and their godchild to avoid sexual relations or marriage within the group."* According to a clause that appears at the end of the text of Ine’s laws, the slaying of a godson or godfather was to bring to the slain man’s godfather or godson compensation for the relationship the same as that to the man’s lord.”’ Spiritual kin could be called upon in other legal situations, as when Helmstan, having committed a

*°? HI, 6, stated that a child should accompany his widowed mother, with one of the father’s relatives agreeing to act as guardian and to take care of property until the child was ten; Ine, 38, that the widow should have the child, that there should be an allowance for the child’s maintenance, and that relatives should keep the ancestral home [frumstol] until the child came of age. *'° § 1447. The arrangement proved ineffective. When Ecgferth died, and the archbishop went to the king and reminded him of the protection [munde] and the king’s knowledge, the king stated that his councillors had declared all of Ecgferth’s property forfeit. Edgar took possession of the property, and gave it to Ealdorman Alfheah. *™ § 1517, above, 241.

‘A further occasion for sponsorship may have been the crismlysing, the ‘loosing of the chrism [cloth]’; see J. H. Lynch, Christianizing Kinship: Ritual Sponsorship in Anglo-Saxon England (Ithaca, 1998), 128-34.

“> Lynch, Christianizing Kinship, 123-4. *™ See Lynch, Christianizing Kinship, ch. 9.

“? Ine, 76; see Lynch, Christianizing Kinship, 196-9, who at 199 suggests that the clause may have been added to the end of Ine’s laws before Alfred acquired them. See the comments of Charles-Edwards, ‘Anglo-Saxon kinship revisited’, 177, on the parallel here drawn between spiritual kinship and lordship,

rather than spiritual and natural kinship.

9 MARRIAGE AND FAMILY 243 theft, begged Ealdorman Ordlaf to intercede for him, as Ordlaf had stood sponsor to him at his confirmation, before he had committed the crime. However, there is no sign that spiritual kin were under an enforceable obligation to act in this way."° Likewise, spiritual relationships did not create rights of inheritance, although spiritual kin do appear as beneficiaries of wills.”

6 CONCLUSION We have thus seen Church reformers, most volubly Wulfstan but notably also Archbishop Oda earlier in the tenth century, seeking to modify lay kinship practices. Their success seems limited in comparison with their successors after the Norman Conquest. In part this may be because they only represent one stance amongst ecclesiastics, in part because of the strength of lay positions. At times the reformers clashed with kings, at times they sought royal help. Kings, meanwhile, continued to make use of kinship ties for a wide variety of purposes relating to law. However, they were well aware of the threat of powerful families, and sought on occasion to reduce the influence of kinship within disputes, most notably in Edmund's legislation concerning feud.”

6 $1445, “7 See S 1485 (on which see Lynch, Christianizing Kinship, 145-6), 1497, 1536. Note also the appearance ina will of a foster-mother; S 1503. "t® See above, 173.

10

Conclusion Te late Anglo-Saxon period gave us our word ‘law, in the form of the

Scandinavian loanword lagu.’ This made its first appearance for human law in legislation of Edgar, with reference to the Danes in England. It then comes into wider use from AXthelred’s reign, for instance with reference to English as well as Danish areas.” Various Old English words predated this. 4 and also beaw generally referred to established law or custom. Dom could mean judgment, and might have the sense of a legislative innovation, which in turn could become custom. Gerceednes meant decree. Yet it was the Scandinavian word that would take over, especially from the very late tenth century. It was to the laga Edwardi, the laws of Edward the Confessor, that the Normans would look back.

1 CONTINUITY AND CHANGE FROM ALFRED TO 1066 The most obvious and the most important change affecting legal development in the later Anglo-Saxon period was the extension of authority by the kings of Wessex over the whole of England? Royal control may have been less standardised in this more diverse realm; the type of personal royal control and ease of access to the king suggested by the Fonthill Letter and the last chapter of Asser’s Life of Alfred was no longer so available.‘ Instead, greater reliance on regional powers, on royal officials, and on developing institutions was required.

Beyond this obvious change, analysis of development, and in particular the provision of a chronology, is difficult because of the limits of the sources. * See A. Fischer, “Lexical change in late Old English: from & to lagu’, in The History and the Dialects of English: Festschrift for Eduard Kolb, ed. A. Fischer (Heidelberg, 1989), 103-14; Wormald, Making of

English Law, 93-5. The plural of OE lagu is laga, laws, as below in the phrase laga Edwardi. It is possible that the resemblance of lagu and /aga to the Latin lex and leges added to the attractiveness of the Scandinavian-derived words. * IV Eg, 2.1, 12, 13. 1; I Atr, Prol. > See above, chs 2, 3. * See above, 17-18, 20.

10 CONCLUSION 245 The impact of any economic and social change on aspects of law including landholding, status, and theft, must largely be a matter of speculation. Even the effect of the conquest of England by Swein and Cnut early in the eleventh century is very hard to assess.’ The very vocabulary shift with which this chapter started, clear in itself, illustrates many difficulties in analysing late Anglo-Saxon legal development. How much Danish influence was there? Change in vocabulary might be more extensive than change in practice. How much regional variation was there? Instances of lagu in laws of Edgar and Athelred may indicate initial use with reference to Danish areas of the realm. What was the chronology of change? The first use of the word lagu is probably in a law of AAthelstan, to refer to God's law.® Does this isolated instance from the first half of the tenth century suggest limited usage, or reveal something of spoken language?

Persuasive arguments can often be made for dating the beginning of a procedure or institution to its first mention in the sources or to a considerably earlier unrecorded but certainly plausible point of origin’ The relationship of the evidence of the law to any changes in the wider role of norms and legal learning

in argument and decision-making is extremely hard to establish.’ thelstan’s legislation does introduce a more technical vocabulary, perhaps suggesting efforts at thinking in terms of legal categories.° The opening portion of Athelred’s

Woodstock code shows a real effort to think through various possible circumstances that might arise with an accusation.’® Such evidence indicates the extent of capacity for legal thought, but not whether that capacity was changing. Nevertheless, some further suggestions may be made. The regime revealed in particular by the laws from the time of Alfred onwards is one with many Carolingian characteristics." It is possible that in some respects this may be earlier Carolingian influence on Wessex, Kent, or perhaps Mercia only now becoming

> Cnut’s code deliberately emphasised continuity with earlier legislation, whereas sources that might clarify change are less extensive or accessible. ° TAs, 2. Note, though, the possibility of later influence from Archbishop Wulfstan on the surviving text; Wormald, Making of English Law, 302. An alternative possibility is that the phrase reflects the influence of Oda, who was bishop of Ramsbury in Athelstan’s reign, and had a Danish father. ” Compare e.g. the different conclusions drawn from an identical body of evidence by Wormald,

Legal Culture and Making of English Law and by Molyneaux, ‘Formation’. Note also how the geographical spread and chronological duration of even such phenomena as folkland must remain uncertain because of lack of references; above, 102-8. * See above, 77-8, 89, on these issues. > Wormald, Making of English Law, 301-2. *° T Atr, 1-2.1, analysed by Wormald, Making of English Law, 324-5. ** See esp. J. Campbell, ‘Observations on English government from the tenth to the twelfth century; in his Essays in Anglo-Saxon History (London, 1995), 155-70, at 159-66; Wormald, Making of English Law, esp. 29-92, 430-65. See also above, 24, on personal contacts of Alfred’s court; 164, 186 n. 186, on moneyers and on the maintenance of oath and pledge; 51, on the hundred; 36, on the earl’s third penny.

246 PART I: LATE ANGLO-SAXON ENGLAND apparent in the sources. However, there are also reasons for believing that at least the extent of influence was new. The considerable volume of legislation starting

with Alfred, often with a strong moral reform message, is perhaps the most obvious instance; influence here may have come from personal contacts, notably in the court of Alfred, but also through manuscripts. The latter may explain parallels in specific measures, for example the use of the rather unusual punishment of the loss of a hand for those guilty of false coining, although it should also be noted that Frankish moneyers were active in the Danelaw in the late ninth and early tenth centuries. There is also the general oath of loyalty, involving or coming to involve the promise not to be a thief or accessory to theft. The hundred, and certainly the term ‘hundred, has Frankish parallels and probably roots. And further evidence, from outside the laws, also suggests Carolingian influence, for example earls’ enjoyment of the third penny from profits of justice. Other general developments are clear too. Church reform, particularly from

the time of Archbishop Oda (941-58) and after, probably had an effect on the regulation of marriage. It may also have influenced developments in land law, affecting both bookland and loanland.” The reformers may also have taken an increased interest in canonical learning, and we have a collection associated with Wulfstan, which shows knowledge of Book IV of the Frankish collection Quadripartitus, Ansegisus’s Capitularium collection, and the Irish Collectio canonum Hibernensis.% A record of gifts made by Bishop Leofric to his church of Exeter between 1069 and 1072 mentions one book of canons in Latin and one penitential in English.’ As for administration and procedure, some features, such as witness and warranty of sale of goods, had significant prior histories.* Archaeological evidence suggests that an increase in the use of the death penalty can also be dated to earlier centuries.”° There were, though, considerable developments in the late AngloSaxon period, particularly in the inter-related fields of royal activity, courts, and the prevention and punishment of theft and violence. Without a conscious and explicit shift in categorisation and vocabulary, there was an increasing emphasis ‘* See above, 96, 145, 148.

"> Wulfstan’s Canon Law Collection, ed. Cross and Hamer, 32-9; other sources include Gerbald of Liége’s Statuta, decrees of councils, scripture, and penitentials. Note also Oxford, Bodleian Library, MS Bodley 718, which C. Cubitt, ‘Bishops, priests and penance in late Saxon England’ (2006) 14 Early Medieval Europe 41-63, at 62, tentatively links to Archbishop Dunstan. ** Anglo-Saxon Charters, ed. Robertson, Appx I no. 1; Robertson, 478, suggests that the penitential should be identified with Cambridge, Corpus Christi College, MS 190. A further source of legal learning would have been Book V of the Etymologies of Isidore of Seville. Note also brief phrases such as ‘maiestatis reum’ in S 937; these need not indicate any deep Roman learning. *? See e.g. Ine, 25.

*® Reynolds, Deviant Burials.

10 CONCLUSION 247 on royal actions against theft and certain forms of violence, and on theft in par-

ticular being an offence not just against the victim but also against the king, demanding punishment as well as the payment of compensation. At least by the reign of Edward the Elder, the general oath of loyalty to the king probably included a promise not to participate in theft. Aithelstan’s reign saw legislation of especial ferocity, the effectiveness of which was acknowledged by King Edmund when he turned his attention to the limitation of violent vengeance.” Police measures and witnessing of transactions, crucial to efforts against theft and violence, were the business of local courts of shire and hundred, the extension of which throughout most of the realm may have been an achievement of Edgar's reign.’* Developments regarding the termination of land disputes are much harder to trace, but the king’s role had probably increased significantly by the end of Edgar’s reign compared with half a century earlier. How far such developments continued thereafter is harder to establish; before 1066 there may have been times of significant diminution of royal authority.”

2 DIVERSITY AND UNIFORMITY The great majority of our sources for the Anglo-Saxon period derive from Wessex, Kent, East Anglia, and Worcester, and concern the upper levels of society. This increases the difficulty of assessing the degree of regional and local variation in law.”° Administrative variation certainly existed, most obviously between areas

north and south of the Humber.” Ealdormen whose authority extended beyond a single shire may have encouraged uniformity within their regions but it is uncertain whether they saw this as a desirable ideal.” Even south of the Humber much exercise of royal power rested on the co-opting of local practices and desires, which again may have allowed continuing diversity.” Various sources mention folcriht, for example the ordinances of the London peace-gild under AAthelstan referring to a person being found guilty according to folcriht, an early eleventh-century list recording the soke that belonged by folcriht

to Sherburn in Elmet (Yorkshire), the tract Becwed speaking of a man owning

‘7 See above, ch. 7. *S See above, ch. 3. *? See e.g. above, 11 n. 56, on Athelred’s reign. Note though, above, 38-9, on the emergence of the sheriff.

*° On royal ideals of uniformity, see above, 21. *" See above, 38. *2 See also below, 250, on bishops. ** See above, 65.

248 PART I: LATE ANGLO-SAXON ENGLAND something ‘by full folcriht.** The word clearly relates to the law or justice or right of

the folc, the people, but it need not indicate complete uniformity; rather its sense often appears to be ‘good custom, or ‘justice, ‘justice in court, ‘justly, ‘lawfully.” Explicit statement that English law was divided into three parts, that of Wessex, Mercian law, and the Danelaw, first survives from the twelfth century.” The statement simplifies the pre-Conquest situation; Cnut’s laws do distinguish between Wessex, Mercia, and the Danelaw, but this is with regard to royal rights. Regarding heriots, the same laws distinguish between Wessex, Mercia, East Anglia, and the Danelaw.” Kent may have had some particular customs, and texts record aspects of law in Northumbria.’ Whilst the terminology is of customs ‘among the West Saxons’ or ‘among the Danes, these seem to be geographical expressions, not indications of personal law whereby a persons origins determined the law by which he or she was treated.” What, then, of the degree of Scandinavian influence? And, secondarily, what of peculiarities of legislation for the Danelaw?*° Legislation may reveal Danish custom, but could also involve innovation. The statement in one of Edgar's sets of laws that ‘I wish that worldly rights among the Danes be maintained according to as good laws as they can best decide’ suggests the possibility either of the continuation of custom in the area or of regional development, although the same set of laws goes on to make an innovation primarily concerning witnessing of sales which was to apply ‘to the whole people, English and Danes and Britons in every region of my power.” Athelred’s Wantage laws were concerned with the area of the Five Boroughs, but are best interpreted as the English king imposing measures at least some of which resembled those applied elsewhere in the kingdom.”

** VI As, 1.1; Anglo-Saxon Charters, ed. Robertson, no. 84; Becw@d, 1. See also e.g. Af, Intro. 13, I Ew, Prol., 1.5 (note the variant reading); IT Ew, 8; IJ As, 2 (note the variant reading), 8, 9, 23; II Em, 7; Hu, 7; II Eg, 1.1; VI Atr, 8. 1; IT Cn, 1.1; Swer, 2; Duns, 1. 2; Ger, 7; Iudex, 3. References such as that at Rect, 20.1, seem very unlikely to refer to some specific national custom. *° Cf. the use in King Alfred’s will, S 1507; note also Mirce, 3. *° See below, 491. *7 II Cn,71.

*° Nordéleod, Nor Grid, Northu. For Kent, see above, 125 n. 171; also IT Cn 62, in Cotton Nero MSAL. *° See above, 67. Cf. e.g. F. Bougard, ‘La loi: perception et usages’, in Hommes et societies dans l’Europe de lan mil, ed. P. Bonnassie and P. Toubert (Toulouse, 2004), 291-306, at 298-300. °° See Wormald, Making of English Law, 320-30, Neff, ‘Scandinavian elements, 287-90. For a more

confident assertion of Danelaw characteristics than that put forward here, see FE M. Stenton, AngloSaxon England (3rd edn, Oxford, 1971), 506-13; cf. J. M. Kaye, “The sacrabar’ (1968) 83 EHR 744-58. °* IV Eg, 2. 1-2, on which see also above, 66; see also IV Eg, 12, 13. 1. Note that the version of the legislation for English areas may have differed in some respects, and does not survive; above, 157 n. 44.

*? See! Atr, III Atr, Neff, ‘Scandinavian elements’, 308-10, above, 66-7.

10 CONCLUSION 249 Evidence of Danish influence upon terminology is clear, as noted at the start of this chapter regarding the word ‘law’. In Danish areas the word grid was used for peace or protection, which in earlier texts and in English areas was called mund* Concerning substantive customs about land, for example inheritance patterns, we can drawno firm conclusions, but particular practices may have existed in land transfer and litigation, notably a significant role for sureties3+ In terms of court procedure, we hear of Athelred II stopping an abuse in the north involving unjust accusations of homicide, but it is unclear whether this abuse amounted to customary practice. Duodecimal groups of lawmen may have been especially important in deciding cases in Danelaw areas,° There may also have been particular customs concerning proof, although assertion of the peculiarity of these is based on the dangerous assumption that silence in non-Danelaw evidence is significant.” The use of money, as opposed to people, as surety for court attendance or other forms of obedience was not unique to the Danelaw, but may have been more common there. This might arise from imported Danish practice, but alternatively might stem from social circumstances in the Danelaw.** Nor need the large communal fines characteristic of Danelaw areas represent the influence of Danish practice but rather could arise from the assertion of royal authority upon areas of actual or potential disorder.” Thus, despite the limits of the evidence, we do see that Danelaw peculiarities extended beyond terminology. What is hard to determine is how far the differences derive from practices prior to Danish settlement, from the process of settlement, from importation of Danish custom, from tenth-century

developments within the region, or from deliberate impositions by the Anglo-Saxon kings.

°° See above, 162. °** See above, 143, but note S 1452 from Devon. Note also the references to landcép (land-purchase) in III Atr, 3, discussed in Neff, ‘Scandinavian elements’, 289-90. °° V Atr, 32.4. °° See above, 88.

°” See Neff, ‘Scandinavian elements’, 292-3, on witword, mentioned in III Atr, 3; and Wormald, ‘Charters, law and the settlement of disputes’, 305, on the inquest procedure in a land case mentioned in Ramsey Chronicle, 101, ed. Macray, 166 (a late account). °® See Neff, ‘Scandinavian elements’, 291-2; see also Neff, 290, on lahcop.

°° See above, 188; also the discussions in Wormald, Making of English Law, 328-30, Neff, ‘Scandinavian elements’, 303-5. See also below, 405-9, on the murdrum fine, again a form of communal punishment used after conquest.

250 PART I: LATE ANGLO-SAXON ENGLAND

3 THE PLACE OF THE LATE ANGLO-SAXON PERIOD IN THE DEVELOPMENT OF ENGLISH LAW If one compares law and the administration of justice in England at the death of Edgar in 975 with the situation exactly 200 years later, when the Angevin reforms were about to gather pace, there are definite continuities and definite differences. To begin with continuities: royal control under Edgar was increasing, in contrast to contemporary France; despite later reverses, there was no long-lasting breakdown parallel to that of Carolingian power. Shire and hundred courts remained

largely under royal control, and would be crucial to the implementation of Angevin reform. Kings may have dealt with only a small proportion of disputes, but they retained the right to hear cases of failure of justice, and, as Asser had made clear, were active in their exercise of that right. In both 975 and 1175 local surety arrangements, monitored by royal officials, were essential to the prevention of theft and inter-personal violence. This administrative framework ensured a significant degree of royal control, even though it was the individual victim or claimant who normally was responsible for initiating cases both in 975 and 1175.

In contrast, the terms on which many laymen and the Church held lands

altered radically, with the disappearance of bookland after the Norman Conquest.’ As for the administration of justice, England in 1175 was still shaken by the aftermath of the Becket dispute, in which the king’s appointment of his leading administrator as archbishop of Canterbury had dramatically backfired. At the end of Edgar’s reign, bishops were playing a vital role in the running of the realm as part of their episcopal duty.” They helped to control local officials, had an influential role at the shire court, and perhaps were of great importance in ensuring that such courts remained royal assemblies, rather than becoming the equivalent of French comital courts, associated with aristocrat not king.”

Bishops had other important specific duties, for example concerning trial by ordeal or oath, where they again operated in association with royal administration.* Bishops may also have had a more general significance in encouraging unity in law and custom.** Notably, they were important in the creation, recording, execution, and preservation of legislation.* They might also be appointed *° See above, ch. 5, below, ch. 14.

“ This is not to say that some did not rise to be bishops because of connection to the king and his administration; see above, ch. 2. On the role of bishops, see also above, 31-3. * On control of royal officials, see above, 32. See also above, 60, below, 295-7, on grants of judicial privileges to abbeys being used to restrict aristocratic power. * See also below, 325-6. ** See also above, 32, for their responsibility concerning weights and measures. *° See above, ch. 2.

10 CONCLUSION 251 to regions different from their origin or their previous office, whilst dioceses stretched across shire boundaries. Such links perhaps encouraged uniformity of procedure and custom; leading churchmen sought standardisation of ecclesiastical practices, and may well have been at least aware of the ideal of uniformity of law, for example within ecclesiastical provinces and indeed more widely.“ Whereas the last chapter of Asser gives the impression of a judicial world dominated by king, ealdormen, and reeves, tenth-century secular law and justice was, or became, a world in which the bishop was an essential figure. This world disappeared in the century after the Conquest, even though kings and prelates would continue to hanker after such arrangements, particularly in relation to the archbishopric of Canterbury and the bishopric of Durham.” Thus even if there was much law common to all of Anglo-Saxon England, many of its ideas, rules, and practices were notably different from those of the common law as it emerged under the Angevins. Such differences render highly questionable the giving of a pre-eminent position to the Anglo-Saxon period in the making of English law. Yet distinctive features of Anglo-Saxon law, such as bookland under royal control or the influential ex officio role of bishops, were crucial to the kingly authority that was of great long-term significance. That these features did not persist to the late twelfth or early thirteenth centuries does not exclude them from the processes that would produce the common law. To talk only in terms of continuing lines and dead-ends is to present legal development as metaphorical genealogy rather than plausible history.

“© For uniformity of practice, see esp. Regularis Concordia, ed. and trans. T. Symonds (Edinburgh, 1953).

“7 See above, 31-3, below, 263-4, 503.

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Part I]

ANGLO-NORMAN ENGLAND

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11

Kings and Law 1 NORMAN LAW AND ANGLO-NORMAN ENGLAND Much of the law familiar to the Norman conquerors in 1066 is obscure to us.’

There is uncertainty even about fundamental matters such as the importance of seignorial courts, although there are indications of some lords in Normandy having significant jurisdiction over theft and violence.” A document of 1091, which states that it recorded the most important aspects of jurisdiction [justicia] exercised by William the Conqueror in the duchy, lists various offences belonging solely to the duke, such as violation of coinage and assault

on those coming to and from his court, and prohibits further offences such as arson and rape. Punishments include mutilation and forfeiture? Other evidence suggests that homicide might lead to vengeance, although after 1066 William prohibited this except by fathers or sons of victims.‘ Chronicles hint that theft was to be punished by hanging. In such matters Anglo-Saxon and Norman practices probably had significant similarities and would have been

* Seee.g. J. Yver, ‘Les premiéres institutions du duché de Normandie’ (1969) 16 Settimane di Centro Italiano di Studi sull‘alto Medioevo 299-366, at 344.

* See e.g. C. H. Haskins, Norman Institutions (Cambridge, MA, 1918), 29-30. Note also the discussions of vicomtes, the equivalent of English sheriffs, in D. Bates, Normandy before 1066 (London, 1982), 117-18, 156-9, and M. Hagger, “The Norman vicomte, c. 1035-1135: what did he do?’ (2007) 29 ANS 65-83. See further M. Hagger, ‘Secular law and custom in ducal Normandy, c. 1000-1144 (2010) 85 Speculum 827-67.

> Haskins, Norman Institutions, appx D. * For a useful summary on the treatment of offences, with full references, see E. Z. Tabuteau, ‘Punishments in eleventh-century Normandy, in Conflict in Medieval Europe, ed. Brown and Gorecki, 131-49, at 134-7. See also the rights granted to the abbey of Saint-Pierre de Préaux inc. 1050; Recueil des actes des ducs de Normandie, ed. M. Fauroux (Caen, 1961), no. 121. Note also Peace and Truce of God legislation in Normandy, on which see Goebel, Felony and Misdemeanor, ch. 5; O’Brien, God's Peace, 20.

256 PART II: ANGLO-NORMAN ENGLAND mutually comprehensible. In matters of landholding and lordship, differences

were greater. In particular, it appears that from the second quarter of the eleventh century landholding became much more closely tied to lordship than it previously had been in Normandy or still largely remained in Anglo-Saxon England.® Such were the customs and assumptions that the Norman invaders brought to England. The Normans victory at Hastings in October 1066 was decisive, but their territorial takeover more gradual. Considerable disruption and disputes occurred, and may have provided impetus for royal control of justice and for clarification of ideas on landholding.’ Certainly the process of distribution reinforced the connection of landholding and lordship.’ The Anglo-Norman kings faced further challenges from the papal reformers, regarding religious aspects of kingship, the relative authority of ecclesiastical and lay powers, and the acceptability of many clerical and lay practices.° Meanwhile, the degree of political stability was closely associated with royal succession; England and Normandy were divided in 1087 and 1100, before Henry I added control of Normandy to that of England in 1106. His reign in England was one of notable peace, and probably of administrative developments in various fields.’° However, following Henry's death, succession was again disputed and the reign of King Stephen was marked by civil war."

2 LAW AND KINGSHIP The outstanding historian of the Anglo-Norman kings, William of Malmesbury, wrote as follows of Henry I: By the rigour of justice he restrained his countrymen peacefully, his nobles with appropriate dignity. He showed the greatest diligence in seeking out thieves and forgers in their dens, and punishing them when found. Nor did he neglect details;

> Note also Scandinavian influence on Norman law, for which see e.g. L. Musset, ‘Les apports scandinaves dans le plus ancien droit normand’, in Droit privé et institutions régionales: Etudes historiques offertes a Jean Yver (Paris, 1976), 559-75. ° See E. Z. Tabuteau, Transfers of Property in Eleventh-Century Norman Law (Chapel Hill, 1988), esp. ch. 5.

” Note R. Fleming, Domesday Book and the Law (Cambridge, 1998). For disputes, see e.g. Lawsuits, no. 18.

° See Garnett, Conquered England. ° C. Harper-Bill, The Anglo-Norman Church (Bangor, 1992), provides a useful introduction. *’ From his reign survives the earliest of the Pipe Rolls, the first continuous run of governmental records, for revenues rendered by sherifts. ‘* See below, 492-4.

11 KINGS AND LAW 257 having heard that broken coins, although made of good silver, were not being accepted by those making sales, he ordered that all coins should be broken or cut. He punished the false ell in use among merchants, introducing his own forearm as a standard measure for all throughout England.... At the beginning of his reign, so that by fearful example he might make a lasting impression on evildoers, he was more inclined to mutilation of limbs, later to require monetary payments.”

Only William refers to the king’s decision concerning correct measure of cloth.’ Likewise, Henry’s shift in preferred form of punishment is not mentioned elsewhere.’ However, other writers tell us that Henry was just, and he is clearly identifiable with the ‘Lion of Justice’ whom Geoffrey of Monmouth mentioned in the ‘Prophecies of Merlin’.’ Likewise, his actions against thieves and moneyers appear in other sources.’® Overall, the royal qualities, such as justice and prudence, and the outcomes, especially peace, remain those lauded in Anglo-Saxon England and elsewhere before 1066.

Kingship, law, and justice The Anglo-Norman kings made the same form of coronation promises as had their Anglo-Saxon predecessors, emphasising peace, protection of Church and Christians, prevention of wrongdoing, the exercise of justice and mercy.” Justice and law continued to be paired with military success, for example in the Argumentum of the legal collection known as the Quadripartitus, composed in 1106 or soon after.* The king was to be a just judge, his virtue contrasted with the injustices committed by some other judges.” He might also act as a peacemaker, reconciling parties rather than deciding between them.” The king's

‘2 William of Malmesbury, Gesta regum, v. 411, ed. Mynors et al., i. 742-4. An ell seems to have been five spans, that is about 45 inches, 115 cm; Surrey, i. 101. "> See above, 21, below, 523-4, on regulation of weights and measures.

* See below, 400. "° Geoffrey of Monmouth, History, Prophecies 113, ed. Reeve and Wright, 147. "© See below, 258, 260.

‘7 See above, 19; The Benedictional of Archbishop Robert, ed. H. A. Wilson (24 Henry Bradshaw Soc.,

1903), 140 (king), and note also 158 (duke); the former is part of the original tenth-century English manuscript, the latter a later Norman addition (see Benedictional, ed. Wilson, xvii); G. S. Garnett, “The third recension of the English coronation ordo’ (2003 for 1998) 11 HS] 43-71, at 68. *® Quadr, Arg. 16-25, trans. R. Sharpe, “The prefaces of “Quadripartitus”’ in Law and Government

in Medieval England and Normandy: Essays in Honour of Sir James Holt, ed. G. S. Garnett and J. G. H. Hudson (Cambridge, 1994), 148-72, at 165-8; R. Sharpe, “The dating of Quadripartitus again, in English Law before Magna Carta, ed. Jurasinski et al., 81-93. *’ E.g. Quadr, Ded. 25, trans. Sharpe, ‘Prefaces’, 159. *° See e.g. Lawsuits, nos 138, 263.

258 PART II: ANGLO-NORMAN ENGLAND special position was emphasised by his enjoyment of special rights, for example concerning serious offences and the royal highways.”

The continuing Christian and Biblical bases of such images and ideals are obvious. There is no clear sign that the challenges from papal reformers significantly changed the Anglo-Norman rulers’ views of the place of law and justice within kingship, except, gradually, in relation to the rights of the Church and churchmen.” If eventually a more secular law emerged, this was not as a direct response to ecclesiastical reform but the product of a much more complicated process of administrative and intellectual change.”

King as legislator As in Anglo-Saxon England, and elsewhere in Europe, considerable emphasis remained upon custom and upon good old law. This was particularly important to the Norman kings, seeking to present themselves as the legitimate successors of Edward the Confessor.** At the same time, old law could be improved, as was stated by the author of the Quadripartitus with reference to Henry I: “Not only has he given us back the law of King Edward, which we received with every delight of rejoicing, but strengthened as it was by the reforms introduced by his blessed father, he has improved it with his own laws in everything that belongs to God and life and truth.* Furthermore, royal decisions in some individual cases may on occasion have effected general modifications of law.”° Whilst the Norman kings appear not to have produced the types of legislative text that survive for their Anglo-Saxon predecessors up to Cnut, we can identify

various pieces of legislation that they issued. These include legislation of William I concerning court procedure and the hearing of spiritual cases, and of Henry I concerning courts, thieves, coinage, shipwreck, and possibly female inheritance.” However, particularly the surviving form and to an extent the content of this legislation are less closely tied to notions of Christian kingship than were the Anglo-Saxon laws. Anglo-Norman legislation survives in the *" See below, 387. *? See below, 297-300, 435-7. *® See below, chs 20, 31.

** See Garnett, Conquered England. *° Quadr, Arg. 27, trans. Sharpe, ‘Prefaces’, 167.

*° See Historia et cartularium monasterii Sancti Petri Gloucestriw, ed. W. H. Hart (3 vols; RS, 1863-7), i. 14, where a decision in a particular burial dispute was followed by the statement that ‘in

future everyone was to have the free power of being buried after death where they had specified when alive’. Another possibility is the statutum decretum on female succession, discussed below, 353-4, although that may rather have been a decree. *7 See above, 257, below, 259-60, 273, 322, 353-4.

11 KINGS AND LAW 259 form of writs, addressed either generally to the realm or to particular counties; indeed both types of writ may have been issued for a single piece of legislation. The reasons for this shift of form are hard to discover, and may not be linked to the Conquest; the last Old English law-codes had been issued by Cnut, decades before 1066. That chronology also renders inappropriate any close link to papal or wider Church reform. If lawmaking was a particular right of the king, texts emphasise that rulers took counsel.”* William I stated that by the common council and counsel of the archbishops, bishops, abbots, and of all the leading men [principum|] of my realm, I have adjudged that the episcopal laws, which did not exist well nor according to the precepts of the holy canons up to my time in the kingdom of England, should be amended. Therefore I order and by my

royal authority command...°

William of Malmesbury saw matters of law and justice as a particular concern for Henry I’s closest adviser, Robert, count of Meulan: ‘a champion of justice in law-cases, in wars an architect of victory; inspiring his lord the king to maintain the severity of the laws, and himself not merely following but proposing them’° Taking advice was no doubt customary practice, but there are hints that it may have amounted to a requirement if legal change were to last beyond the king's own life. The crucial text here is from the Battle Abbey Chronicle, written in the later twelfth century but looking back to the times of Henry I and Stephen: It should be known that from of old it has been observed as law along the seacoast that in the case of shipwreck, if the survivors have not repaired the ship within an established boundary and time, the ship and whatever may have been landed falls without challenge under the lordship of that land as ‘wreck’. However, King Henry

was averse to this custom and promulgated an ordinance for his own time and throughout the area of his power, that if even one person escaped alive out of the wrecked ship he should have everything. But new king, new law. For after Henry’s death the great men of the realm did away with the recent ordinance and exercised the ancient custom for themselves."

A case then arose when a ship from Romney, a place belonging to the archbishop of Canterbury, was wrecked at Denge Marsh, belonging to Battle Abbey. Its crew *® Note also conciliar settings in the Leges, esp. ECf, Prol, ed. O’Brien, 158; see also ECf, 34, ed. O’Brien, 192-4; Quadr, Arg. 3-4, trans. Sharpe, ‘Prefaces’, 163; Wl art, Inscr., cf. Wl art, 7. *° Acta of William I, no. 128. There is no mention of counsel in Henry I’s writ concerning county

and hundred courts, which presents itself very much as a restoration of practice of the time of Edward the Confessor; RRAN, ii. no. 892. °° William of Malmesbury, Gesta regum, v. 407, ed. Mynors et al., i. 736. *" Lawsuits, no. 303.

260 PART II: ANGLO-NORMAN ENGLAND barely survived. The men of Denge Marsh seized the wreck on behalf of the abbey, leading the archbishop to take the case to King Stephen. The archbishop accused the abbot of breaching the peace since he had acted against a decree of King Henry. After much argument from both sides, the court at length was calmed in the following way. Using an argument planned beforehand, the abbot solemnly asserted [testificatus est] that King Henry could at will change the ancient rights of the country for his own time, but nothing would be established for posterity except by the common consent of the barons of the realm.

The abbot had the backing of the barons, and so King Henry's decree no longer carried any weight. This case suggests a clear requirement of consent to any legislation that was to last beyond the legislating king's own lifetime. However, some caution must be exercised. The account of the case comes from one party, the party whom this principle came to favour. In addition, the requirement for consent is presented not as a common assumption but as an argument brought forward after some consideration. Yet the idea that consent was required for making lasting changes to the law receives some support from elsewhere. Henry I's coronation decree stated that ‘I give back to you the law of King Edward with those emendations with which my father emended it by the counsel of his barons’;* perhaps Henry was indicating that his father had made various changes to the law, but only those made by the counsel of his barons were binding on himself, the newly succeeding king.

Legislation and practice The practical intent of legislation by writ is emphasised by the fact that at least some were issued bilingually, in Latin and English.*? Whilst we do not know if written texts of legislation were ever cited in Anglo-Norman courts, actions announced in writs certainly led to practical action, as many moneyers found to their particular cost.*

3 ROYAL OFFICIALS Chief administrators and regents In the Angevin period, chief justiciars combined the roles of regent when the king was out of the realm, and of head of administration whether or not the king was in *? RRAN, ii. no. 488. °° See esp. Acta of William I, no. 130; note also no. 128. ** See below, 389.

11 KINGS AND LAW 261 the realm. This position may have been a response to the cross-Channel nature of the king’s dominions and the increasing complexity of royal administration. What solutions to the problems of cross-Channel rule and of administration of justice were found in the Anglo-Norman period? Family members sometimes acted as regents in the king’s absence. Odo of Bayeux served thus at times in the reign of his half-brother, the Conqueror, and Henry I’s queen and son did so after 11002° It was to them that officials owed obedience in the king’s absence. Odo in particular may also have had extensive administrative involvement when the king was in the realm. Domesday Book

shows him distributing property and settling disputes in large areas of the country, and other sources too testify to his high-level judicial activities?” Henry I’s wife Matilda also heard cases in her husband’s absence.

Archbishops of Canterbury too might play a very important role in the running of the realm. Archbishop Lanfranc seems to have been crucial in dealing with the rebellion of 1075 in England. He acted at the very least as a conduit for royal orders, but this may be to underestimate his role in dealing with royal instructions from the king in Normandy, instructions for which Lanfranc always appears as the principal addressee2* How regularly he was involved in the details of judicial administration is unclear, but he certainly fulfilled some of the tasks of a later chief justiciar2° Conflicts with the king, and possibly the nature of his abilities, restricted Archbishop Anselm’s capacity to fulfil a similar role. His successors as archbishop did not have Lanfranc’s

prominence in worldly affairs, but the possibility of combining a leading position in royal administration with the archbishopric would re-emerge later in the twelfth century.*° What of men other than members of the king's immediate family and archbishops of Canterbury? There were some parallels to Odo in the activities of William fitzOsbern in the early years of William I, for example in the distribution of lands to Norman settlers. The Anglo-Saxon Chronicle suggests that he shared responsibility for England on the Conquerors first departure from England: ‘Bishop Odo

°° See below, 500-3. Following usual practice, I refer to such men as justiciars rather than justices, although the words justiciar and justice were not clearly distinguished in the period. °° For Henry I’s wife Matilda hearing cases in his absence, see below, 274, and note also below, 307. For his son, note esp. RRAN, ii. no. 1201, Lawsuits, no. 226. °” FJ. West, The Justiciarship in England 1066-1232 (Cambridge, 1966), 4-6, 14-15; D. Bates, “The origins of the justiciarship’ (1982) 4 ANS 1-12, 167-71, at 2-4, 10. °* Note Bates, ‘Origins’, 5-6.

°° On judicial rights of the archbishop, see also below, 294-5. *° See below, 500-3.

262 PART II: ANGLO-NORMAN ENGLAND and Earl William stayed behind and built castles far and wide throughout this country, and distressed the wretched people.” In general, however, duties seem to have been shared between various royal servants. When William I wanted to ensure that his sheriffs should return to his bishoprics and abbeys all the demesnes and demesne lands that the sheriffs had acquired, the writ was sent to Archbishop Lanfranc, Geoffrey bishop of Coutances, Robert count of Eu, Richard son of Count Gilbert, Hugh de Montfort, ‘and his other leading men of the realm of England’. The bishop of Coutances, in particular, was prominent in the hearing of land pleas in the Conqueror’s reign,

but not as head of judicial administration or as regent. Nevertheless, from such groups, an individual leading figure might emerge. Particularly prominent under William Rufus was Ranulf Flambard, who appears to have been the chief administrator of royal justice and finance. It is, however, unclear whether he was seen as filling a particular office, or was simply the de facto leading figure in the administrative regime. Possibly because of the increase

in the sources, still more prominent is the role of Roger, bishop of Salisbury, under Henry I. Roger, although not he alone, was referred to as ‘justiciar of the whole of England. According to William of Malmesbury, ‘the king entrusted to his judgment the administration of justice throughout the realm, whether he himself was in England or detained in Normandy.** Roger issued writs in his own name to deal with the king’s business, although almost invariably the writs referred to the king's authority. In addition, after 1120, when Henry’s son and first wife had both died, Roger acted in a position amounting to that of regent in the king’s absence. The Anglo-Saxon Chronicle states that in 1123, Henry ‘went over to Normandy and committed all England to the care and government of Bishop

Roger of Salisbury. Although Henry did not run his administration entirely through Roger in the 1120s and 1130s, the bishop had achieved a position of very great prominence. After Henry I died in 1135, Roger appears to have continued to enjoy such prominence until his fall in 1139. Thereafter no such leading figure emerged until, perhaps, Richard de Lucy late in Stephen's reign.” Overall, there does not seem to have been a continuing office of chief administrator under the Norman kings, let alone one routinely combined with regency

“ ASC, version ‘D’, 1066; Bates, ‘Origins’, 4-5. * Acta of William I, no. 129; Bates, ‘Origins’, 5.

** Henry of Huntingdon, Historia Anglorum, vii. 35, ed. and trans. D. E. Greenway (Oxford, 1996), 470; also below, 263, for Lawsuits, no. 271.

*“* William of Malmesbury, Gesta regum, v. 408, ed. Mynors et al., i. 738; West, Justiciarship, 16-23, Bates, ‘Origins’, 11; R. J. Kealey, Roger of Salisbury (Berkeley, 1972).

*° See below, 500-1; also H. G. Richardson and G. O. Sayles, The Governance of Mediaeval England from the Conquest to Magna Carta (Edinburgh, 1963), 166.

11 KINGS AND LAW 263 in the king’s absence. Rather, there were various arrangements, differing over time. Kings sometimes placed heavy reliance on one figure, most clearly Roger of Salisbury. However, arrangements were often characterised by the sharing of responsibilities amongst various parties, including royal family members, archbishops, and administrators. This sharing of responsibilities is illustrated in a charter preserved at Ramsey Abbey, which refers to a plea made ‘by order of Henry king of England and the command of David king of Scotland, who is head of this land after the king of England, and at the command of [Roger] the bishop of Salisbury, who was justice of the whole of England, and by grant of William de Houghton, of whose fee that land was’.*°

Justices of the whole realm Various men were named in contemporary sources as justiciars or justices ‘of the whole realm’, or some equivalent title. Henry of Huntingdon gives the title of ‘justiciar [justiciarius| of all England’ not only to Roger of Salisbury but also to Geoffrey Ridel, Robert Bloet, and Ralph and Richard Basset.” Orderic Vitalis describes Richard Basset as ‘chief [capitalis| justiciar’** Others too may have enjoyed similar status, although not being mentioned as such in contemporary sources.’ All had close connections to the king. How precisely defined was their position is uncertain, but probably they were characterised by being the king’s leading judicial officials and by not having a geographical limitation upon their judicial activities within England. Like Roger of Salisbury, they may also have been important figures at the Exchequer, the biennial royal accounting meetings, which heard cases at least on financial matters during Henry’s reign° Bishops Bishops continued to play a significant part in the royal administration of law, although perhaps not quite as important as in the late Anglo-Saxon period. We have seen them mentioned as advisors concerning legislation.” They had particular responsibility for dealing with cases involving spiritual matters, cases *° Lawsuits, no. 271.

*” Henry of Huntingdon, De contemptu mundi, 17, Historia Anglorum, ed. Greenway, 614. Historia ecclesie Abbendonensis, ii. 248, ed. Hudson, ii. 246, describes Ralph Basset as ‘having the dignity of justice |justicie...dignitatem] in all the realm of England’. “8 Orderic Ecclesiastical History, xiii. 26, ed. Chibnall, vi. 468. * Note e.g. Lawsuits, no. 215. °° See below, 275. >" See above, 259.

264 PART II: ANGLO-NORMAN ENGLAND that came to be the business of ecclesiastical courts.” Bishops seem to have con-

tinued to attend the county court and were important in the administration of ordeal, although Church councils sought to prevent ecclesiastics from adjudging

the death penalty.’ Further, some bishops as individuals had particular judicial duties, for instance Geoffrey of Coutances and Roger of Salisbury. Finally, the bishop of Durham had particular responsibilities for the administration of justice within his extensive lands in the north of the realm.*4

Earls William I may initially have continued the very extensive earldoms that were a feature of the Confessor’s reign.® Thereafter, the extent of earldoms was considerably reduced, and until 1135 their number and range of authority carefully controlled. Given the limited royal control of peripheral regions, it is particularly notable that the earldom of Northumbria lapsed after the unsuccessful rebellion of Robert de Mowbray in 1095. Although sometimes writs to county courts included an earl in the address, this was far from routine,” and it is clear that the sheriff now had prime responsibility for presiding. Domesday Book on various occasions mentions a third penny of certain revenues being attributed to the earl. However, it is unclear that all earls regularly received the third penny, and it may have come to require a special grant. Occasionally the king may have granted a favoured person all his rights in a particular county, although this

>? See below, 297-300. °° See below, 277, 325. See also a document printed in Henry of Huntingdon, Historia, ed. Greenway,

830, implying that archdeacons were normally responsible for the collection of profits from ordeals. For prohibition of participation in judgments of death, see Council at London 1074 x 1075, 9, Councils and Synods, I, no. 92 (also prohibiting them from judgments of mutilation), Council at Westminster 1102, 9, Councils and Synods, I, no. 113 (also prohibiting them from being reeves [prepositi] or procuratores of secular men). °* See above, 262, below, 292. °° Lewis, ‘Early earls’, 216-18.

°° See e.g. R. J. Bartlett, England under the Norman and Angevin Kings 1075-1225 (Oxford, 2000), 208, for the number of earldoms being limited to around seven until the death of Henry I; on Stephen’s reign, see below, 492-4. °” Note the variation in e.g. RRAN, ii. nos 1438, 1659, 1666, for Huntingdonshire.

°® See e.g. DB, i. fos 262v (Cheshire), 280r (boroughs of Derby and Nottingham), 280v (Derbyshire and Nottinghamshire), 336v (Lincoln), 376r (Yorkshire, WR). PR31HI, 77, records the earl of Gloucester receiving £20 for his part of the county; it is not clear whether this was an arrangement peculiar to Gloucestershire. See further J. H. Round, Geoffrey de Mandeville (London, 1892), 287-96; The Complete Peerage, ed. G. E. C[okayne], rev. V. Gibbs et al. (12 vols in 13; London 1910-59),

iv. 657-60; G. Ellis, Earldoms in Fee: a Study in Peerage Law and History (London, 1963), 80-4.

11 KINGS AND LAW 265 seems to have been a matter of transferring income rather than administrative responsibilities. Sheriffs The key royal official in the county was the sheriff, whose increasing importance in the late Anglo-Saxon period has already been discussed. Following the Conquest

there was a short transitional period, with men linked to the pre-1066 regime holding office. However, there was soon a shift to sheriffs drawn from amongst the

conquerors, several of whom had connections to William fitzOsbern or Odo of Bayeux. They were men of varied status, only one from the peak of the aristocracy,

but several more with very considerable estates. A nucleus of key men can be identified, but changes in holders of shrievalties were quite frequent. Such features continued to characterise the shrievalty under the Conqueror’s sons. Some became rich partly through exercise of office, although perhaps not as rich as some of the Conquerors sheriffs, but the majority probably started as ‘new men. Some,

but far from the majority, had close connections to the royal household. Others had ties to leading nobles.” Clerics as well as laymen could be sheriffs, for instance Richard de Belmeis who became bishop of London in 1108.”

Particular arrangements might be made, for example the entrusting of numerous counties to one man, as when Hugh of Buckland was said to be sheriff of eight counties in 1110, or when Aubrey de Vere and Richard Basset jointly held eleven counties at the end of the 1120s.% Such arrangements may characterise times of particular financial pressure or of administrative rearrangement. Financial pressure may also explain a move apparent in the 1120s towards limited terms for sheriffs and higher turnover of office. The sheriff was responsible for holding the county court, at its routine times and at others when the king ordered. He, and the court, received royal writs, for example announcing land grants or conveying a multiplicity of other orders. He also had a crucial role in policing, sometimes directly involved in the seizing

of offenders, but also being responsible for the maintenance of tithing and frankpledge through a routine process of inspection.” >? See P. Latimer, ‘Grants of “totus comitatus” in twelfth century England: their origins and meaning’ (1986) 59 BIHR 137-45. °° J. A. Green, “The sheriffs of William the Conqueror’ (1983) 5 ANS 129-45.

°" J. A. Green, The Government of England under Henry I (Cambridge, 1986), ch. 8. See also Morris, Sheriff, esp. 76-82 on status. °? J. A. Green, English Sheriffs to 1154 (24 PRO Handbooks, 1990), 71-2. °° Green, Government, 196, 231, 276. °* Morris, Sheriff, esp. 28, 61-2.

266 PART II: ANGLO-NORMAN ENGLAND The sheriff had his own officials. The under-sheriff of Norfolk and Suffolk was present together with the sheriff at a plea involving the abbey of Ramsey in Henry I's reign.® There were also officials responsible for making summonses and distraints, some of whom may have held serjeanties.°° Domesday Book records a certain Humphrey holding half a hide of land in Hertfordshire from Eudo fitzHubert, which had been held by Leofsige, King Edward’s reeve. The bishop of Bayeux took this land from the same Leofsige and gave it Eudo, and it was occupied against the king. With this when Humphrey received it from Eudo he got 68 oxen and 350 sheep and 150 pigs and 150 goats and one mare and 13s. 4d. of the king’s rent, and between cloths and vessels 20s.”

The extreme concentration of animals and other goods in a small piece of land suggests that Humphrey, and perhaps Eudo, like Leofsige before them, were reeves, perhaps with responsibilities to the sheriff, and that this land contained a pound for distrained goods.

Local justices At least in some counties, the sheriff came to be supplemented by a justice or justiciar responsible for the king’s pleas in the county.® A charter in Henry I’s name

for London allows the citizens to choose, from amongst themselves, a justice ‘for keeping the pleas of my crown, and for pleading these; and no-one else shall be justice over those men of London’. In 1154 King Stephen granted to Bishop Robert of Lincoln ‘that he have my justice of Lincoln... [as well as] Robert Bloet

and Alexander bishops of Lincoln, his predecessors, best had it’. Summonses issued by the bishop’s officials for the holding of the king’s pleas and the making

of his judgments were to be obeyed as under Henry I, on pain of distraint by chattels° Justices are mentioned in addresses of Henry I’s writs," and more °° Lawsuits, no. 256; see also Morris, Sheriff, 53-4. °° See Morris, Sheriff, 190; also below, 339-40. °” DB, i. fo. 139r; discussed by Campbell, ‘Agents and agencies’, 220-1.

°° J will refer to such men as justices rather than justiciars, except in quotations when the Latin justiciarius was used. °° RRAN, ii. no. 1645; the authenticity of this text is disputed, but that issue is more significant for the means of choosing the justice than for the existence of the office. ” RRAN, iii. no. 490; Hurnard, ‘Franchises’, 458-9. Bishop Alexander may have lost these rights at the time of his fall in 1139. It is possible that the privilege continued for some time after King Stephen’s death; see PR2-4HII, 26, although the meaning of that entry is not certain. See RRAN, iii. no. 472, for William de Roumare, earl of Lincoln, being described as the king’s justice in a writ concerning a Lincolnshire case at some point in the 1140s. ”™ Note esp. RRAN, ii. no. 866, addressed to the bishop of Exeter and the king’s justice of Devon; no. 1036 to W. Bigod, Ralph Passelew and the justice(s) of Norfolk.

11 KINGS AND LAW 267 frequently in those of Stephen. Writs might also, for example, specify that if the addressee did not carry out the order, ‘my justice of Suffolk is to make it be done, lest I may hear complaint concerning this for want of right or justice’ How early such county justices appear is uncertain, although the address of a writ of Henry I at the start of his reign referred to the ‘justiciars of London’? In a case datable to the 1110s or 11208, there is a reference to Ralph Passelew having been justice of Norfolk and Suffolk in the time of Abbot Aldwin of Ramsey (1091-1102, 1107-12). A writ of Rufus refers to Ralph Passelew having made a plea concerning 100s., in a way that suggests he may have held some royal position.”

However, the evidence that men were designated as the royal justice of a certain county does not prove that there was an office of county justice in every county, just as the mentions of earls in the addresses of some writs to county courts does not indicate an earl in every county.”* Moreover, quite often the references to justices appear to be in the plural rather than the singular,” both in writ addresses and, for example, in clauses ordering that unless the addressees carried out the royal order, the king’s justices were to do so.* This suggests the possible existence of various men with judicial responsibilities, rather than just a single holder of the office of county justice.” On occasion we hear of lesser justices. A writ of King Stephen was addressed to the justices of the hundreds of Northgreenhoe and Holt, in Norfolk.*° Seisin of a gift in Henry I’s reign was made ‘in full portmannmoot and before Robert de Yaxley, who was then justiciar of that vill’.* Such lesser justices merge with those responsible for keeping the king’s pleas, such as Benjamin, a serjeant of the king, whom the 1130 Pipe Roll records as making a payment ‘that he may keep

” RRAN, iii. no. 201; see also no. 269, referring to ‘my justice of Cambridgeshire’. Cf. nos 212, 719, which simply refer to ‘my justice’. ”* RRAN, ii. no. 556, includes the justices of London in the address, after the sheriff.

” Lawsuits, no. 256. ”° Lawsuits, no. 155. There is also a reference in another writ of Rufus to a case being heard “before my justice’, which could refer to a county justice; RRAN, i. no. 371; note that the surviving text of the writ is not without its problems. ’® Statements in the Leges can only be taken with certainty to refer to a position of county justice if itis already assumed that such an office existed; see e.g. LHP, 53. 1, 59. 10, 60, 91.1, 92. 4, ed. Downer, 168, 186, 192, 284, 288; ECf, 20. la, 20. 6, ed. O’Brien, 178, 180.

”” Seee.g. RRAN, ii. no. 1111, although it should be noted that the writ survives only as a copy.

”® See RRAN, iii. no. 84; this survives only as a cartulary copy. Note also RRAN, ii. no. 1541, which names three men in such a clause, although it does not call them royal justices. ”” Some indeed may resemble lawmen, in the sense of those regularly responsible for making court judgments; see RRAN, i. no. 455, for a reference to ‘baronibus justificatoribus’. On the relationship of the various types of local justice to the coroners who appear from 1194, see below, 507-9. °° RRAN, iii. no. 105. °* Lawsuits, no. 251.

268 PART II: ANGLO-NORMAN ENGLAND the pleas that pertain to the king’s crown’. These officials might be identical with others, for example those called hundredmen.”

A cautious conclusion on local justices seems well advised. It does appear that on occasion under Henry I a person was appointed to be the justice of a specific county. It may also be that on occasion one amongst several men with judicial responsibilities emerged as the leading figure and could be referred to as the king’s justice of the county, just as leading figures emerged at a national level. The position appears to have become more attractive, leading to men such as Geoffrey de Mandeville seeking it on a hereditary basis in the reign of Stephen. Writ addresses from that reign may also suggest that their draftsmen expected there to be a justice or justices in a county. Earlier, however, the county justice was just one of various possible ways of dealing with the royal interests. A single man might be given responsibilities extending beyond a single county, as appears to have been the case with Athelwig of Evesham under William I.*4

Or there might be a variety of men acting at county level and below. Or reliance might remain upon the sheriff. Indeed, it is possible that contemporaries were less precise than some modern historians in distinguishing between sheriffs and justices. Henry of Huntingdon may not have been distinguishing carefully between sheriffs and local justices when he wrote that ‘those who were called justiciars were the head of all injustice. Sheriffs and reeves, whose duty was justice and judgment, were more frightful than thieves and robbers, and more savage than the most savage.”*

Why were county justices used? They have often been seen as a means of increasing royal control, decreasing the power of the sheriff. County justices would deal with pleas of the crown and could also become involved in other matters, such as land pleas.*° It has even been argued that the county justice’s court should be distinguished from the routine county court.” The local justice might then require a separate staff of ministers. Stephen’s writ granting the justice of Lincoln and Lincolnshire to the bishop stated that summonses were to °? PR31HI, 91. See also Epistolae Herberti de Losinga, ed. Anstruther, no. 30; below, 306, 308, for the activities of Robert Malarteis. Such officials may also merge with the sheriff’s officials discussed above, 266, and the hundredmen mentioned below, 283, n. 81. °° RRAN, iii. nos 274, 276; J. C. Holt, ‘Review’ of RRAN, iii., in (1971) NS 24 Economic History Review 480-3, at 481-2, casts doubt on the authenticity of no. 274, a charter of the Empress Matilda. ** Thomas of Marlborough, Evesham, iii. 156, ed. Sayers, 162. °° Henry of Huntingdon, Historia Anglorum, vi. 38, ed. Greenway, 402.

*° On pleas of the crown, see below, 384-5; for Magna Carta prohibiting sheriffs from hearing such pleas, below, 507. °*” D. M. Stenton, English Justice between the Norman Conquest and the Great Charter 1066-1215 (London, 1965), 67; see also H. A. Cronne, “The office of local justiciar in England under the Norman kings’ (1958) 6 University of Birmingham Historical J 18-38, at 34.

11 KINGS AND LAW 269 be made through his officials.** However, whilst there may have been times when

justices were meant to control or weaken sheriffs, such a distinction of courts or staffs may not have been usual. An 1108 writ of Henry I only distinguishes those of ‘my counties’ that were routine from those summoned at his will for his “demesne business’.*® Furthermore, sheriff and justice could collaborate, as in clauses ordering that if the writ addressee did not obey the king’s order, the sheriff and justice were to make it be done.*° There were other possible reasons for using local justices. Certainly men such as the serjeant Benjamin were to ensure that no offence that could be seen as an

infringement of royal rights should go unprosecuted. The purpose was partly maintenance of the peace and of the dignity of the king, but also profit. Use of local

justices may have related to the farming of revenue from royal pleas, that is the payment of an annual lump sum to the king beyond the county farm owed by the sheriff, with the justice-farmer keeping any additional profit. Profit as well as power explains why Geoffrey de Mandeville sought to gain control of local justiciarships.

And the fact that men sought such positions, and the associated revenues, meant that the position of local justice gave the king a further form of patronage that he could offer.

Itinerant justices Effective administration of royal justice in the localities could also be pursued by the dispatch of officials for set purposes. They might be sent either for a specific case or cases, or to a particular county, or on circuit to several counties, that is

on an ‘eyre.’ Commissions to deal with specific disputes may have existed in the Anglo-Saxon period,” and certainly can be found in the Conqueror’s reign, for example to deal with disputes over the lands of the abbey of Ely.® Specific commissions probably continued into the twelfth century, although our reliance on records of individual pleas makes it hard to discover whether a named justice was acting just in one dispute, a series of disputes at a single court, or with a

°° RRAN, iii. no. 490. °° RRAN, ii. no. 892, on which see also below, 273, 283-4. See also below, 306, on the ‘men of the county being ‘assembled at Huntingdon, according to English custom, for a plea before a royal justice. °° RRAN, iii. no. 84. Note also RRAN, iii. no. 953.

°" The word derives from the Old French eire, eire, oirre, meaning a journey or a roaming, wandering, or straying. *? See above, 40. °° Lawsuits, no. 18; E. Miller, “The Ely land pleas in the reign of William I (1947) 62 EHR 438-56. See also e.g. the witness-list of the chirograph printed in Geoffrey of Burton, Modwenna, ed. Bartlett, liv (no. 10).

270 PART II: ANGLO-NORMAN ENGLAND wider remit. This is so when we hear of Ralph Basset for example holding a court with ‘the king’s thegns’ in Leicestershire and ‘hanging there more thieves than

had ever been hanged before’. However, the 1130 Pipe Roll indicates activities by justices over wider areas, hearing a multiplicity of cases of concern to the king.** In the past year Geoffrey de Clinton had heard pleas in Nottinghamshire, Derbyshire, and Essex, Richard

Basset in Leicestershire, Sussex, Norfolk, and Suffolk and also with William d'Aubigny in Lincolnshire, whilst Walter Espec and Eustace fitzJohn had been active in the north. The Pipe Roll also gives evidence of earlier hearings, notably with Geoffrey de Clinton and Ralph Basset visiting more than ten counties each. The men acting as justices were often working in counties where they held land, probably deriving authority from their local powerbase as well as their royal appointment. For how long before the 1120s itinerant justices existed must be uncertain in the absence of evidence like the 1130 Pipe Roll. The judicial activities of the Domesday commissioners were extensive, particularly with regard to landholding, but at least in their national coverage should probably be viewed as a one-off before Henry I’s reign.” It cannot be established definitively whether the visitations of itinerant justices recorded in the 1130 Pipe Roll formed part of a scheme to cover the whole country. Certainly there was no effort to cover the whole realm in a year. Moreover, some counties contain no references at all to justices holding pleas, either amongst the new payments for 1129-30 or amongst old debts.” However, it is possible that those counties were to receive visits in subsequent years. Alternatively, visita-

tions took place on a rather more ad hoc basis, with no planned scheme for circuits to cover the whole country in a set time period.*

4 COMMUNICATION WITH ROYAL SERVANTS Much communication with royal servants must have been oral, but we also know that a large amount of written communication by writ has been lost. Writs were issued from the royal chancery, headed by the chancellor and

°* ASC, 1124. For possible commissions, see also e.g. W. T. Reedy, “The origin of the General Eyre in the reign of Henryl’ (1966) 41 Speculum 688-724, at 702-3. °° See esp. PR31HI, 8-10, 17, 19, 26-36, 47, 49, 50, 55, 59, 65, 69, 70, 73, 83, 88, 92, 94, 96, 98, 101, 103, 106, 110, 116-21, 123-4, 145; Reedy, ‘Eyre’. For Forest pleas, see below, ch. 19.

°° Cf. e.g. the Ely land pleas, above, 269. °” Reedy, ‘Eyre’, 715: Oxfordshire, Cambridgeshire, Rutland, Cornwall, Dorset, Hampshire. °® See Reedy, ‘Eyre’, esp. 690, 715.

11 KINGS AND LAW 271 consisting of a small group of scribes. They were authenticated with the king’s seal. Some were judicial orders, written in response to complaints—and payments—from parties.°® On occasion these could give rise to problems, for example conflicting orders being issued or parties obtaining royal support on dubious grounds.'°° However, royal orders also increasingly made explicit that the recipients should act justly, and such orders were at least sometimes taken

as reason to institute court proceedings.” Such practice was an important if limited precursor to the much more precise writs introduced in the Angevin

period.’

5 INCOME FROM JUSTICE The 1130 Pipe Roll provides for the first time a substantial indication of royal profits from justice and from other matters relating to law, for example payment of relief by heirs to lands. Pleas arising in 1129-30 for which specific account was made contributed approximately 8 per cent of the total amount paid at the Exchequer, and other payments were made, for example for help in judicial matters, wardships, and reliefs.’ In addition royal officials profited from royal judicial administration; they owed a farm, a set amount, to the king, but maximising their revenue from pleas contributed to them profiting by the amount by which their income exceeded the farm.

6 CONCLUSION This chapter has demonstrated major continuities from the Anglo-Saxon period

both in terms of the royal ideology of law and justice and of administrative practice. The preservation of the system of district courts would have crucial importance for the later development of the common law. At the same time, there were innovations, probably including extensive use of itinerant justices by late in Henry I’s reign. In general, the administration of justice continued

°°? On the chancery, see e.g. Green, Government, 27-30; Royal Writs, 138-9; T. A. M. Bishop, Scriptores regis (Oxford, 1961). On the level of payment, see Green, Government, 103. °° See e.g. Lawsuits, nos 218, 257. *°* See below, 309. See also below, 301, on failure to obey royal orders. *°? See below, ch. 23.

"°° Tf one includes items arising in earlier years, it has been calculated that the proportion from pleas rises above 10 per cent; Green Government, 80-1, 83-6, 223, 225.

272 PART II: ANGLO-NORMAN ENGLAND to be entrusted to some who were appointed to long-standing and continuing offices, such as the shrievalty, to others who were appointed on an ad hoc basis, for example to hear a specific plea, and to others still whose position was somewhere in between, for example Roger of Salisbury in the 1120s and 1130s. At the

same time, the king relied not just on those who might be described as royal officials. Rulers recognised the role of lords in dealing with their own men and their own lands, and this will be apparent as we move on to the subject of the courts of Anglo-Norman England.

12

Courts Te strength of royal justice in Anglo-Saxon England must have been a wel-

come acquisition for the Norman kings, and they sought to retain control of the courts through which such justice was exercised. In 1108 Henry I issued the following instruction: Know that I grant and order that henceforth my counties and my hundreds are to sit in those places and at the same times as they sat in the time of King Edward, and not otherwise... And I wish and order that all of the county go to the county and hundred as they did in the time of King Edward....'

However, there was significant change in the court framework after the Conquest, most notably the appearance of courts held by lords for their tenants and dealing with matters of landholding. The 1108 writ also stated that, if in future there should arise a dispute concerning the delimitation [divisione] or seizure [preoccupatione] of land, let this plea be treated in my court if it be between my demesne barons. But if it is between the vavasours of any baron of my honour, let the plea be treated in the court of their lord.” But if it is between the vavasours of two lords, let it be treated in the county.

The interplay of the royal and the seignorial in matters of justice and landholding was a crucial feature of legal development in the Norman and Angevin periods. Courts continued to be assemblies with a considerable variety of functions, not all concerning law and far from all judicial. However, in some court meetings

* RRAN, ii. no. 892; for the date of this writ, see Sharpe, ‘Prefaces’, 150 n. 10. Note also the reference

to this ordinance in LHP, 7. 1, ed. Downer, 98. The maintenance of old obligation to attend the county and hundred is also mentioned in W/ art, 8. 1. See below, e.g. 383, on the significance of the continuing presence of English personnel in some courts. I follow common practice in using the term ‘county rather than shire when discussing the period after 1066, even though this usage may suggest change rather than the continuity that in fact existed. * A vavasour here is the tenant of a tenant-in-chief; the word probably derives from ‘vassal of a vassal’

274 PART II: ANGLO-NORMAN ENGLAND there would be a considerable legal concentration? These occasions might include meetings specifically summoned to deal with a particular case or cases; special sessions of the county held in the presence of visiting royal justices and dealing with a considerable number of cases; and regularly scheduled meetings, for example of the hundred when the sheriff reviewed frankpledge arrangements.‘

1 THE KING’S COURT The Conqueror and his successors, like the earlier rulers of England and Normandy, held their own courts for judicial as well as for other purposes.’ Given such variety of purpose, it is hard to make firm statements about the size of the court that might hear cases in the king's presence, or about obligation for attendance. Cases might be taken to the king, be it at a considerable distance® or when his travels brought him close to one or both of the parties.” Informal hearings probably continued, although we have no example with such vivid circumstantial detail as the Fonthill Letter.’ The king heard cases between himself and other parties, or between great men

or churches.? These might concern a variety of issues, but those over land are prominent, as in the 1108 writ. Some cases between lords and tenants too were determined in the king’s presence.’ The amounts of land concerned need not always have been very large, whilst the issues were diverse." Other disputes concerned jurisdiction. Thus a case concerning hundredal jurisdiction over Lewknor, Oxfordshire, was heard in the presence of Henry I’s Queen Matilda, “because the king was then in Normandy’.* King Stephen heard Battle Abbey's claim of

> For use of the word curia with reference to a place where legal proceedings took place, see e.g. writs of Henry I for Abingdon Abbey: RRAN, ii. nos 654 and esp. 1516. RRAN, ii. no. 892, just quoted,

does not use the word curia with reference to the hundred or county, but does for the king’s court and lords’ courts. The second of the passages quoted above does not imply a distinction in the type of assembly indicated by ‘in the county as opposed to ‘in my court’ or ‘in the court of their lord’. * See below, 276, 280 (although the eyre did not deal only with judicial business), 281.

> For Anglo-Saxon England, see above, ch. 3; for Normandy, see Haskins, Norman Institutions, 54-8, Bates, Normandy before 1066, 160-1. ° E.g. a case between the bishop of Norwich and the monks of Thetford was settled before the king at Nottingham; Lawsuits, no. 180. Note also parties taking their claims to the king in Lawsuits, no. 246. ” See e.g. Lawsuits, no. 219B. * See above, esp. 78-9.

> See e.g. the trial of William of St Calais, bishop of Durham, for his failure to support William Rufus against the rebellion of 1088; Lawsuits, no. 134. *° E.g. Lawsuits, no. 228. * Seee.g. Lawsuits, no. 220, for a dispute over the end ofa lease. ‘2 Lawsuits, no. 189. Cf. ECf, 13, ed. O’Brien, 170-2: “The boundaries of the king’s counties prop-

erly belong with the judgment of the four royal roads [presumably meaning that they belong to the

12 COURTS 275 exemption from the authority of the bishop of Chichester.’ The king also heard other ecclesiastical cases, for example a dispute between the abbot of Gloucester and the bishop of Hereford over the burial of Ralph son of Asketill.4 Further disputes came to the king when justice was sought but not received from the court of another.* In addition, the king might give a special privilege that a plea or certain types of plea should only be heard by him in person, as when King Stephen issued a writ to Oxfordshire and Berkshire in favour of Abingdon Abbey: ‘know that I warrant to the abbot of Abingdon that neither he nor his men are to plead concerning any plea that pertains to my crown, except in my presence and when I will be at Oxford."®

Other cases were heard by a court that clearly was considered the king’s but where he was not present in person. On some occasions this might be because he was abroad.” In addition, however, the barons of the Exchequer acted as a court: Know that Herbert, abbot of Westminster, has deraigned in the presence of my barons at the Exchequer by their judgment the land of Parham and Mapleford

against Herbert fitzHerbert, so that Herbert can claim nothing further in it and that the abbot can have it in his demesne, if he wishes, and do with it as he likes."

It seems likely, though, that the Exchequer only rarely acted as a court on nonfinancial matters before the later twelfth century.” king’s court]. The boundaries of the hundreds, of the wapentakes, to the earls and the sheriffs with the judgment of the county.

** Lawsuits, no. 320; the king, of course, had a further interest in hearing this case because it concerned Battle Abbey, very much a royal foundation. ** Lawsuits, no. 179; see also no. 180. For ecclesiastical cases in the king’s court, see also F. Barlow, The English Church 1066-1154 (London, 1979), 172-3. *? See below, 301.

© RRAN, iii. no. 3; the intended duration of this privilege is unclear. *” See above, 262, on the role of the justiciar; above, 274, on the royal court meeting in the queen’s

presence when the king was across the Channel. Lawsuits, no. 205, looks like another instance where the court was referred to as the king’s despite his being absent. Roger of Salisbury was the first witness. The document is dated 1116, in which year the king was in Normandy from soon after Easter; ASC, 1116.

*® Lawsuits, no. 277; the sole witness was Roger of Salisbury. Note also the instruction to the bishop

of London that if he failed to do justice to the abbot of Westminster who broke into his church of Wenington, the barons of the Exchequer were to make it be done; RRAN,, ii. no. 1538. On the Exchequer,

see above, 263. To ‘deraign means to prove, maintain, justify, or establish a claim or right; there may have been some association with trial by battle, but see e.g. Glanvill, ii. 20, ed. Hall, 36, for a man having deraigned land in the king’s court ‘through a recognition.

*? P. A. Brand, ‘“Multis vigiliis excogitatam et inventam”: Henry II and the creation of the English common law’, in his The Making of the Common Law (London, 1992), 77-102, at 86-7. Note also that the cases cited in the preceding footnote both involved the abbot of Westminster.

276 PART II: ANGLO-NORMAN ENGLAND

2 COUNTY COURTS The shire court, so important in Anglo-Saxon England, continued to function after 1066, when historians normally refer to it as the county court.”° Unfortunately, a considerable portion of our evidence on county, and also hundred, courts may concern not routine meetings but assemblies specially summoned by the king. Such special sessions are mentioned in Henry I’s writ of 1108: ‘I do not wish that my sheriff make them sit otherwise because of any necessity of his own that pertains to him; for I, when I wish, may make to summon them sufficiently because of my own necessities as lord [dominica necessaria| according to my will” The earliest account of a great trial at Penenden Heath in 1072 refers to such a session

when stating that ‘it was ordered by the king's command at the request of the archbishop that the whole county convene without delay.” We must therefore be careful in drawing general conclusions about routine meetings from some of our fullest accounts.

Before 1066 routine meetings of the county probably occurred twice a year, and the same provision appears in the early twelfth-century legal text known as the Leges Henrici Primi.” By the thirteenth century most counties met every four weeks, with a few exceptions meeting every forty days.”* How, when, and why the frequency of meetings increased is uncertain, although pressure from the sheriff may be one cause.” According to the Leges Henrici, the meetings of county were

to be summoned seven days in advance; for this statement there is no known Anglo-Saxon source.”° Meetings were normally completed within a single day, exceptions provoking special notice. An account of the Penenden Heath trial states that ‘as conflict arose between royal and archiepiscopal customs, which could not be dealt with quickly on the first day, the whole county was detained there for three days’.”” Meetings might take place outdoors—we hear of one

*° See below, 306, on the county gathering ‘according to English custom’. *" See also above, 49, on II Cn, 18, allowing more frequent meetings if need arose; it is not made clear at whose initiative the extra meetings were to be summoned. *? Lawsuits, no. 5A. ** See above, 49; LHP, 7. 4, 51. 2, ed. Downer, 100, 166. The Leges Henrici is of course not a source independent of the Anglo-Saxon laws; see also below, 869-70. ** See below, 550. *° See RRAN, ii. no. 892; LHP, 7. 1, Downer, 98. *° LHP, 51. 2a, ed. Downer, 166; see also LHP, 7. 4, ed. Downer, 100.

*” Lawsuits, no. 5A; on the various accounts of the trial, see Acta of William I, no. 69, and also Bates, ‘Penenden Heath revisited’.

12 COURTS 277 specially summoned session taking place in the bishop of Norwich’s garden— but we also have later evidence for indoor meetings.”* A few early writs of William I are addressed to the earl, bishop, and specific county or counties, and earls are also occasionally included in addresses of Henry I writs to counties, but it seems likely that earls were rarely present in post-Conquest county courts.” Exceptions may be the special case of Cheshire and, in Stephen’s reign, Cornwall, where Earl Reginald in the 1140s announced the result of a plea ‘in the full county court before me at the castle of Dunhevet’° There is some narrative evidence for the presence of bishops, who continue to appear in the addresses of some royal writs." William of Malmesbury recounts that if necessity ever made Bishop Wulfstan of Worcester attend the county, he began by pronouncing ‘a curse on evil judges, a blessing on upright ones’” Local justices must also have attended,* and occasionally another royal official, for example the king’s steward, presided over a specially summoned meeting.“ However, it was the sheriff who routinely organised and presided, as is clear from Henry I's 1108 writ, Whilst the sheriff was of very considerable influence, cases were to be decided by those attending the court, and on occasion they might make a decision against the sheriff3° The obligation to attend may well have varied between counties, but seems to have been linked to landholding. A writ of William Rufus for the abbey of Bury stated that none of its men were to be forced to attend county or hundred courts apart from those ‘who held so much land that they were worthy in the time of King Edward to go to counties and to hundreds’” According to the Leges Henrici, ‘bishops, earls, sheriffs, deputies, hundredmen, aldermen, stewards,

*® Lawsuits, no. 331.

*? See Acta of William I, nos 12, 34-8, 66, 73, 80, 98, 184, 191, 223, 292, 295, 337-8, 351; for Henry I see e.g. RRAN, ii. nos 639, 743-4, 1151, 1359, 1845; see also above, 264. *° Lawsuits, no. 322; see also J. A. Green, The Aristocracy of Norman England (Cambridge, 1997), 248. ** See e.g. RRAN, ii. nos 1359, 1551, 1860b, iii. nos 247, 251. See Stenton, First Century, no. 28, for a bishop’s probable presence in the county court of Buckinghamshire in c. 1160. See also above, 264, and note Lawsuits, no. 331, although this was a special session of the court, the bishop not presiding.

*? William of Malmesbury, Gesta pontificum, iv. 140, ed. and trans. M. Winterbottom and R. M. Thomson (2 vols; Oxford, 2007), i. 428. William’s statement could indicate that episcopal attend-

ance at the county was not routine, although he may also be seeking to emphasise Wulfstan’s special desire to separate himself from worldly affairs. See above, 264 n. 53, on prohibitions of clerics from adjudging the death penalty. °° See above, 266-7, on writ addresses. ** Lawsuits, no. 331. °° See above, 276.

°° See e.g. Lawsuits, no. 340, noting the part played by royal officials against the sheriff; see also e.g. RRAN, iii. no. 490. °” RRAN, i. no. 393. For unjust imposition of suit, see e.g. RRAN, ii. no. 806, and note also no. 892.

278 PART II: ANGLO-NORMAN ENGLAND reeves, barons, vavasours, village reeves, and other lords of lands’ should be present at the county court.* The Leges Henrici allowed lords to be represented by their stewards. If the steward too was unavoidably absent, ‘the reeve and priest and four of the best men of the vill should attend on behalf of all those who have

not been summoned by name to the court’? Unfortunately, case records do not provide sufficiently extensive lists of those attending to check the trustworthiness of the Leges’ account, nor to estimate the number of suitors.*° Not all suitors would have been of equal importance, some gaining added influence from their wealth or power, others from their experience. An account of a special meeting of the court of Norfolk and Suffolk in c. 1150 has Hervey de Glanville state that ‘fifty years have passed since I began to attend hundreds and counties with my father, before I was given a holding [casatus]’.“ Hervey’s youthful attendance therefore appears not to have rested on any landed obligation; whether he yet had any influence on judgments is not clear. He may simply have been one of those who attended in the following of his father, or may have had or developed some early enthusiasm for court activity. Others may have been less enthusiastic about attending, regarding suit as a burden from which exemption was desirable.” The Leges Henrici state that the county court was to hear ‘first the due rights of Christianity, second pleas of the king, finally cases of individuals to be settled with suitable amends.* We cannot tell whether such an order was followed in practice,

nor the exact content of the three categories. We learn of cases concerning taxation and other royal dues being heard by the county court, on occasion by special order although not necessarily at a specially summoned session.** Some of the more serious wrongs may have required the presence of a royal justice, either at a routine or a specially summoned session. A case concerning a certain Bricstan, accused of theft, taking of treasure trove, and usury was heard before ‘all the men of the county gathered at Huntingdon, as the custom is in England, with Ralph Basset sitting as president [pro tribunali]**° It is unclear whether the presence of a royal justice was required in cases of homicide, particularly those

°° LHP, 7.2, ed. Downer, 98. See also LHP, 29, 31. 3, ed. Downer, 130, 134. °° LHP, 7.7-7b, ed. Downer, 100. *° See below, 551, for an estimate for the later middle ages. “ Lawsuits, no. 331. See below, 551, on buzones. ** See e.g. the concerns in Henry I’s writ regarding courts, RRAN, ii. no. 892. *° LHP, 7. 3, ed. Downer, 100. Note also ECf, 12. 9-11, ed. O’Brien, 170-2, on roads and waterways; also above, 274 n. 12, on ECf, 13. See RRAN, i. no. 448, for the county determining the right to profits of justice. ** See below, 297-8 on ecclesiastical or spiritual cases. * See esp. Lawsuits, nos 215, 243, 247, 340. *° Lawsuits, no. 204; see further, below, 305-7.

12 COURTS 279 homicides that might be settled by compensation.” Other, lesser, offences might be heard, for example breaches of the sheriff’s peace.** The county might also deal with the activities of royal officials, as when a writ of Henry I to Berkshire stated that ‘I order that the claim that Godric reeve of Windsor makes on the land [of Winkfield] concerning a hedge shall be stayed completely and perpetually. Land cases were heard, as one would expect from the 1108 writ’s attribution to the county of cases between vavasours of different lords*° However, some were between tenants-in-chief: Henry, king of the English, to Aubrey de Ver, sheriff, greeting. Make the county court of Essex sit on the land of Alestan that is at issue between the archbishop of Canterbury and the abbot of Westminster, and make it be recognised through the county which of them has right [rectum] in that land. And let him whose it ought justly to be, be seised thereof"

In terms of the 1108 writ, such a case between tenants-in-chief should have been heard in the king's court, but instead it went to the county. Perhaps the initial claim may have been between tenants of the archbishop and abbot. Perhaps the terms of the 1108 writ were not strictly applied. Or perhaps this was a specially summoned session of the county court to deal with the king's business. Certainly other land cases were heard at the king’s command, either at a routine or a specially summoned session of the county.” The following is a case between lord and tenant: “William [Rufus], king of the English, to William de Cahagnes, greeting. I order you to make

convene the county of Northampton and to find out by its judgment if the land of Isham paid a farm to the monks of St Benedict in the time of my father:

The county court witnessed agreements and land transactions. Thus in the 1120s Aldred son of Siward refused to allow Shrewsbury Abbey to continue to enjoy Cheney Longville, earlier given by his father. Instead he kept the aforesaid vill for himself and by the force and power of Richard de Belmeis, who was then the steward of this county and was afterwards made bishop of London,

“” See below, 409-10. On homicide becoming the preserve of the king’s court, see below, 714. *8 See Stenton, English Justice, 79.

* Lawsuits, no. 171; the case may have concerned village obligation to maintain an enclosure or fence. Such an order might simply have been put into effect, or the official may have been given opportunity to respond. °° See Hudson, Land, Law, and Lordship, 40-1, on the county and replevin, that is the receiving back of distrained goods. >" Lawsuits, no. 245. *? See e.g. Lawsuits, nos 18, 160, 267.

°° Lawsuits, no. 132. It is possible that the tenant was claiming to hold of a different lord. See also e.g. Lawsuits, no. 272. See also below, 301, on cases passing to the county if a seignorial court failed to do justice.

280 PART II: ANGLO-NORMAN ENGLAND he possessed it for some time, wasting everything which his father had left in it. Seeing this, Abbot Fulchered of pious memory attempted to regain the aforesaid vill through friendship rather than through a plea. Following the advice of friends and of the aforesaid Richard he gave £15 to Aldred and donations to his brothers so that they would

render the vill to him without retaining anything. When this had been granted and confirmed before numerous witnesses, the church received what it had unjustly lost. It should also be known that at that time that vill was so poor that it could not have been sold to strangers for that price. Witnesses of this matter were: the aforesaid Richard, Roger Corbet and his brother Robert, Hamo Peverel, and the whole county.*

Cases before itinerant justices When royal justices went on eyre, they presided over cases in the presence of the county.® It is not clear whether sessions before itinerant justices were larger than normal. Nor is it certain whether the justices visited routinely scheduled county meetings or specially summoned courts. Possibly the simple presence of the royal justices, and certainly special meetings, may have produced a concentration on judicial business. The 1130 Pipe Roll does not routinely specify the nature of the pleas heard,*® but it seems likely that the justices heard a wide range of pleas of the crown, investigated other aspects of royal administration,” and dealt with some land pleas.

Pleas of the crown may have been brought by presentment and possibly by other methods, land cases by writ, plaint, or a process of transfer from another court.* Whether the meetings before itinerant justices were considered, as later, forms of the king’s court as opposed to the county cannot be established.» However, it is clear that at least in the latter part of Henry I’s reign eyres increased the integration of the county into processes of royally administered and centrally controlled justice.®

3 HUNDRED AND WAPENTAKE COURTS Hundreds, or wapentakes in formerly Danish areas, extended throughout the realm, except the very northernmost counties and some of Lancashire.” Henry

>* Lawsuits, no. 242.

°° On itinerant justices, see above, 269-70. °° See also Reedy, ‘Eyre’, 716-19.

°? See Green, Government, 81. °® For suggestions concerning presentment, see Richardson and Sayles, Governance, 181-2. °° See below, 537.

°° See also below, 300-2. °' Green, Government, 132-3.

12 COURTS 281 I’s 1108 writ ordered that the hundred was to meet as in the time of King Edward,

that the sheriff was not to summon it in any other way for his own business, but that the king could summon it at will for his business. Again, some of our fullest accounts of meetings of hundred courts may concern the exceptional, royally summoned sessions.” The Anglo-Saxon evidence and the Leges Henrici indicate that the meetings were normally every month or four weeks, but by the early thirteenth century they seem to have been more frequent; how, when, and why the change occurred is again unclear, as is any possible impact on numbers attending each session. As with the county court, each meeting seems to have been completed within a day at most.® Over the court normally presided a bailiff, appointed by the sheriff or by a

lord if the hundred was in his possession; alternatively in the latter case the lord's steward might preside. On occasion we hear of the sheriff being present in a hundred court for a case involving land, although he may have been there for a specific purpose rather than presiding over all the litigation.°* The suitors of the court again were responsible for making the judgment. They were likely to be the larger landholders of the hundred. Henry I sent a writ to all barons and vavasours and all lords who hold lands within the wapentake of Well. I order that you all come to the pleas and wapentake of the bishop of Lincoln, which he holds from me, by summons of his officials, and do him all rights and customs in all things that you owe him from your lands to that wapentake [ad illud wapentac].°°

Later evidence suggests that a court might have between twelve and seventy or eighty suitors, and it has been speculated that as many as five per cent of the adult male population attended the hundred.” At two special sessions each year the functioning of frankpledge was inspected; all who should participate in frankpledge were obliged to attend, and hence these meetings were likely to be markedly larger than ordinary sessions of the hundred. °? See e.g. Lawsuits, no. 167. The discussion in the following section may be taken to apply to wapentakes as well as hundreds.

°° See above, 52; LHP, 7. 4, ed. Downer, 100; below, 554. For meeting places, see above, 50-1, below, 554. °* Lawsuits, no. 334. °° See above, 277, on RRAN, i. no. 393. See above, 52-3, for suggestion that even before 1066 attendance at the hundred was not simply an obligation on all free men. See also LHP, 7. 8, ed. Downer, 100, stating that ‘we have laid down that the same rules [as about the county] are to be followed in the hundred...about

the attendance of the lord and his steward or the priest and the reeve and the most substantial men; Maitland, Domesday Book and Beyond, 148-9. See below, 554, on the link to particular tenements.

°° Lawsuits, no. 279. °” Hudson, Formation, 39; note also above, 53, on Clacklose hundred. °° See below, 391-3. Morris, Frankpledge, 113, suggests that such meetings may go back at least to the time of Cnut.

282 PART II: ANGLO-NORMAN ENGLAND As in the Anglo-Saxon period, local policing arrangements and the witnessing of transactions may well have been the core business of the hundred. The hundred probably also heard accusations that did not lead to the death penalty, the more serious offences being left to the county and royal justices; a likely excep-

tion is proceedings in the hundred against thieves caught in possession of the stolen goods in the immediate aftermath of the act.” Otherwise, it is not easy to distinguish the jurisdiction of county and hundred. In the 1090s, William Rufus addressed a writ to Hamo the steward. He commanded him to cause to be restored to the prior and monks of St Augustine's, Canterbury, all their rights [rectitudines|] concerning Newington, ‘as it was deraigned in the county in the time of my father, before my barons without delay. And he who may wish to prevent [interdici] this, let him make a plea concerning this in the hundred of Milton or in the county.”!

The venues seem to be given simply as alternatives, not affected by the nature of the plea brought. A dispute in which men of a royal vill removed turfs from Abingdon Abbey’s land at Culham was dealt with by a court of three counties; a similar and related case, where the offender was a local miller, was heard in a hundred court, on the sheriff’s order.” In some cases, the determining factor may have been whether disputants were inhabitants of a single hundred.

Other local courts As in the pre-Conquest period, some counties and some hundreds met jointly on a regular basis.” In other instances, joint meetings may have been a matter of short or medium term necessity, caused by lack of suitors.‘ In others still, groups of hundreds or counties might meet to hear particularly serious cases.” In 1122 a claim to land by the monks of St Etienne, Caen, was heard before seven hundreds who had assembled on [the disputed land] from neighbouring and more remote vills, in the presence of Warin, sheriff of Dorset °° Note also the witnessing of manumissions; Diplomatarium, ed. Thorpe, 632, 634, 637, 645; cf. G. Hickes, De antiquae litteraturae septentrionalis utilitate (Oxford, 1703), 14, ‘in the hundred of the citizens of Exeter’, a borough court; also Diplomatarium, ed. Thorpe, 636. ’° See above, 53-5, below, 554. See Lawsuits, no. 199, for a case concerning a mare, heard ina private hundred; unfortunately the writ gives no details. See below, 289-91, on infangentheof.

”* Lawsuits, no. 157. Note, though, that Milton was later a specially privileged hundred, for example with its own coroners; R. F. Hunnisett, The Medieval Coroner (Cambridge, 1961), 147. Fora case concerning a marsh being heard in a hundred, see Lawsuits, no. 334. See also e.g. RRAN, ii. no. 1185, a specially summoned session. ”* Lawsuits, no. 185. ”* See above, 55; e.g. Lawsuits, no. 331 (Suffolk and Norfolk); Cam, ‘Early groups of hundreds’. ™* See LHP, 7.5, ed. Downer, 100. ”° See also LHP, 31. 1, ed. Downer, 132.

12 COURTS 283 and Somerset, who had been specially entrusted with the matter, and oaths were sworn there according to the king’s decree.”®

There may have been further courts, ad hoc or regular.”” Units such as the ridings of Yorkshire, the trithings of Lincolnshire, and the lathes of Kent may have held courts.”* Another twelfth-century legal text, the Leges Edwardi Confessoris, states, using the past tense, that ‘there were also other jurisdictions [potestates] above wapentakes, which they called trehings, namely the third part of the region. And those who presided over it were called the trehinghef, to whom were referred the cases that could not be decided in the wapentakes.”” Domesday Book provides

instances of testimony by men of the riding, which could be an indication of a riding court.*° It is also possible that in areas of the Danelaw sub-units of wapentakes, sometimes referred to as ‘small hundreds, had courts.* Similar to these may have been the courts of East Anglian sub-hundredal units known as leets.* Also in East Anglia villages might witness transactions, suggesting village

assemblies, although not necessarily judicial ones. Further courts may, for example, have met on boundaries; alternatively, boundaries or the disputed land may simply have be the location for a court meeting.* The degree to which county and hundred courts survived under royal control was crucial to the development of English law. When Henry I had issued his writ in 1108, he had firmly referred to ‘my counties and hundreds’; to the king these

© Lawsuits, no. 232; see also nos 256 (with the sheriff and under-sheriff present), 287 (with royal justices presiding). For meetings of several counties, see also e.g. Lawsuits, nos 9, 10, 18, 50, 59, 185, 201.

’” Note also LHP, 81. 1, ed. Downer, 252, on drinking-gatherings for gifts, purchases, gilds, or similar business; cf. above, 63. See below, 296-7, on the Sussex Rapes. ’”® On lathes in Kent, see J. E. A. Jolliffe, Pre-Feudal England (Oxford, 1933), 60-9. ” ECf, 31, 31a, ed. O’Brien, 188. °° Lawsuits, nos 66, 69-72, 74-6, 78-9; see also Lawsuits, no. 172. °" ECf, 28-9, ed. O’Brien, 186-8, could be referring to the officials presiding over these units when speaking of decani or tyenthe heued, ‘that is, head of ten’ “These men dealt with cases between vills,

between neighbours, and, depending on the monetary penalties [ forisfacture], compensations and settlements, namely concerning pastures, meadows, harvests, disputes between neighbours, and many things of this sort which often arise. But when greater cases arose, they referred them to other, greater justiciars, whom the above-mentioned wise men had established over them, that is to say over ten decani, whom we can call hundredmen, since they judged over one hundred friborgs.’ See also O’Brien, God’s Peace, 89-93, 244-5. *? See J. Campbell, ‘Hundreds and leets: a survey with suggestions, in Medieval East Anglia, ed. C. Harper-Bill (Woodbridge, 2005), 153-67, at 157-8. °° See D. C. Douglas, The Social Structure of Medieval East Anglia (Oxford, 1927), esp. 160-6. On

the distinction between village and manor, see 288 n. 21.

°* See above, 279, for Henry I ordering that a county sit on the disputed land. For boundary courts, see LHP, 9. 4 (divisis parium), 57, 57. 8 (divisis uel merchimotis), ed. Downer, 104-6, 176-8.

284 PART II: ANGLO-NORMAN ENGLAND were royal courts.** Certainly lords could exercise considerable influence in district courts, for example when the sheriff was also their tenant.** Increasing numbers of hundreds were granted into non-royal hands, and during Stephen’s reign earls in particular gained significant control of some county courts.” Yet even the events of Stephen’s reign did not lead to a sustained loss of royal control of district courts equivalent to that in post-Carolingian France; royal power had been too strong, the breakdown of authority too short, the general pattern of aristocratic landholding too dispersed to allow the consolidation of lordly control.

4 LORDS’ COURTS Lords might exercise justice in various types of court. They held one or more courts for the tenants of their lordship, courts now often termed honorial.**

They also had courts for lesser men of one or more manors, often termed hallmoots or manorial courts. In addition, they might possess hundred courts or—in rare cases—control county courts.*® The lord might enjoy jurisdictional power through possession of franchises, some very extensive, some much more common, most notably sake and soke; these latter rights were probably exercised mainly through manorial courts, sometimes perhaps with a more extensive than usual attendance,” but in small lordships or in disputes between prominent men the relevant cases perhaps were heard in the honorial court.”

°° See above, 273. An alternative reading would be that the writ only applied to counties and hundreds that were in the king’s hands. Note, however, that the last sentence of the body of the writ refers to counties and hundreds without the possessive ‘my’ but in exactly the same sense as the opening

sentence, which does use ‘my’; this suggests that both sentences refer to counties and hundreds in general, not a selection of them. This also was the interpretation in LHP, 7.1, ed. Downer, 98. °° Green, Aristocracy, 249. For the sheriff of Warwickshire being a tenant of the earl of Warwick

in the late eleventh and early twelfth centuries, see D. B. Crouch, ‘Geoffrey de Clinton and Roger, earl of Warwick: New men and magnates in the reign of Henry I’ (1982) 55 BIHR 113-24, at 115. °” See below, 492. °° Note LHP, 55, ed. Downer, 172.

°° It is possible that lords might have special courts for fairs; certainly Henry I’s grant to the church of Norwich regarding fairs in Norwich, Lynn, and Hoxne, included sake and soke among the accompanying customs; RRAN, ii. no. 762. °° See P. Vinogradoff, Villainage in England (Oxford, 1892), 364-6; Hurnard, ‘Franchises’, 450. °* Note also the possibility of a lord hearing a case at a special meeting on the fringe of a county or hundred court; see Lawsuits, no. 169, where Henry I ordered that the abbot of Abingdon do his own justice concerning a robber-priest whom he had in captivity at Abingdon, and likewise his own justice concerning his other robbers, with the county looking on.

12 COURTS 285 The distinction between types of court might also be diminished, for example by an honour court and a private hundred being combined.”

Honour courts Like a king, a lord would continually be holding his court, in the sense of taking

counsel or listening to requests. In addition, however, he held more formal meetings for the men of his honour, to oversee transactions or settle disputes.” The need to oversee land distribution, together with likely practice in pre-1066 Normandy, may have encouraged the rapid appearance of honorial courts in post-Conquest England, although evidence on the chronology of introduction is very limited.” Some lords, particularly those with an accumulation of previously diverse lands, might hold more than one honorial court. It seems likely that the Redvers family had separate courts at Carisbrooke on the Isle of Wight, Plympton in Devon, and possibly Christchurch in Hampshire.’ For a lay lord the natural place to hold his court was in the hall or castle at the place that was the head of

8yy

his honour.*® Honorial courts of ecclesiastical lords may also have met in castles, should the churchman possess one, but we also hear of other locations. A charter

records that in 1133 a certain Bernard ‘deraigned the land of Blackmarston in the chapter of St Mary and St Ethelbert [i.e. Hereford Cathedral] through the oath of twelve honest men and through the judgment of that court’’” A case involving Battle Abbey seems to have been heard in the abbey church itself; at least the abbot thought that locking the doors of the church [basilice] would prevent his opponents from leaving.** The abbot of Abingdon had a court at Oxford that may have been his honorial court or at least a court for his Oxford tenants,

and we hear of him holding a land case “by King Henry's order at Oxford in

°? See W. O. Ault, Private Jurisdiction in England (New Haven, 1923). Note also Campbell, ‘Hundreds and leets’, 159.

°° Note the particularly informative charter in the Ramsey Chronicle, 310, ed. Macray, 274-6. °* Some hints may include eleventh-century charters recording that grants were made with the consent of a donor’s men, although the obtaining of such consent did not necessarily require a court; see e.g. V. H. Galbraith, ‘An episcopal land-grant of 1085’ (1929) 44 EHR 352-72, at 372. °° Redvers, 29-33.

°° See e.g. Oxford Charters, no. 9. See also Geoffrey of Burton, Modwenna, ed. Bartlett, liv (no. 10), for a dispute settlement made first in the castle of Tutbury and afterwards confirmed in the chapter of Burton Abbey; Tutbury was the castle of Robert de Ferrers, one of the disputants. °” Lawsuits, no. 281. °® Lawsuits, no. 174.

286 PART II: ANGLO-NORMAN ENGLAND the house of Thomas of St John, where the abbot then held his court, because Thomas was his man’? The frequency of meetings is uncertain.’°° Judicial matters may have been confined to a single day." In general the lord presided, although on occasion his position might be taken by his leading official, generally but not always his steward.'’” The size of the honorial court would vary with the scale of the honour, and estimating the numbers involved is impossible. Central to those attending the court and dispensing and receiving its justice were the lord’s men. A mid-twelfth-century charter recording a grant of land to Walter, abbot of Ramsey, to be held like a lay holding, details the recipient's obligation: ‘if the lord, Walter de Bolbec, has a plea to be held in his court, where he wishes to have the abbot, the abbot shall come there if he can, or send [a representative or representatives] from his worthy men in the aforesaid counties, and this by the usual

summons and without dispute’. The honorial court might also include others who were either not the lord’s men,'’** or were his men without holding land from him. As in other courts, some leading men may well have been dominant in decision-making.’® At the heart of the court's business were matters concerning land.’°° Potential

gifts by the lord might be discussed, made, and witnessed, and occasionally a charter refers to a lord’s barons consenting to his grant.’ Likewise, at his tenant's request a lord might confirm the tenant's gift to a third party; the tenant might in return promise to acquit lands given to the Church ‘in alms’ of all secular services in relation to his lord.’°® Enquiries concerning a preceding lord's actions might

°° RRAN, ii. no. 1516; Lawsuits, no. 162.

°° See below, 556.

! This is suggested, although not proved, by LHP, 49. 5, ed. Downer, 164. See also Lawsuits, no. 164, for a reference to an abbot’s court hearing three cases ina single day.

*? Stenton, First Century, 77-8, plays down the possibility of the steward presiding. See Green, Aristocracy, 209, for exceptions to the custom that the steward was the lord’s chief official. For officials involved in honorial courts, see also Stenton, First Century, 68-9 (justices), 75-8 (steward), 78 (dispenser); Lawsuits, no. 343 (justice). *°° See Ramsey Chronicle, 310, ed. Macray, 275. See also e.g. Geoffrey of Burton, Modwenna, ed. Bartlett, xlvii (no. 3), li (no. 9). *°* See below, 288. “°° For such men, see e.g. D. B. Crouch, The Beaumont Twins (Cambridge, 1986), 115-32, 155-62; below, 417-18. Note also the charter quoted in Stenton, First Century, 93 n. 4.

"°° Note that charters recording land grants were often addressed to the grantor’s men. Note also Oxford Charters, no. 6, for livery of seisin being made ‘in the presence of my court’. "°” See below, 365.

"8 See e.g. Earldom of Gloucester Charters, ed. R. B. Patterson (Oxford, 1973), no. 44, dating from 1147 x 1183.

12 COURTS 287 be conducted, and confirmations issued as appropriate.’°° Agreements could be made, for example concerning arrangements for succession to lands."° Underlying at least some agreements were disputes." Henry I's writ of 1108 had specified ‘concerning delimitation or seizure of lands’ that ‘if the plea is

between the vavasours of any baron of my honour it is to be treated in their lord’s court’."” In addition the court would hear cases between man and lord, for example over inheritance, homage, or services, or between sub-tenants.’3 Royal writs allow cases to lord’s courts, as when Henry I sent an order to Hugh the sheriff and others stating that ‘if the abbot of Thorney can show that he has not failed concerning justice [recto] towards Robert, his man, and his father, then I order that the plea be in the court of the aforesaid abbot, that is about the land and grain of Charwelton.’4 Other types of case too were heard in the honour. It may have been in such a court that the abbot of Abingdon heard a case concerning the breach of a watercourse by the men of one of his tenants.’* The honour court may also have dealt with matters concerning the lord’s officials, and perhaps with a wide range of minor disputes between his men."

The degree to which honorial courts operated autonomously is hard to judge, in part because much of our evidence comes from royal interventions, particularly in ecclesiastical honours. It is likely that the autonomy of the honorial court varied both over time and between honour and honour. A compact honour, where all or almost all local tenants held of one lord, may well have been a more self-contained unit than one where landholding patterns were more complicated.

*°? See e.g. The Registrum Antiquissimum of the Cathedral Church of Lincoln, ed. C. W. Foster and K. Major (10 vols; 27-9, 32, 34, 41, 46, 51, 62, 67 Lincoln Record Soc., 1931-73), i. no. 131, for William de Roumare making an enquiry through the better and older men of his honour; cf. no. 130, an enquiry through his barons and old men of the wapentake of Bolingbroke. *'® See e.g. Book of Seals, no. 301, quoted below, 358; Stenton, First Century, 55. See also below, 560, for the arrangements involving Henry son of Fulcher and Sewall his brother, made in the court of William de Ferrers in the early 1160s; Stenton, First Century, no. 7. *™ See also P. R. Hyams, “The charter as a source for the early common law’ (1991) 12 JLH 173-89; Crouch, Beaumont Twins, 159. *!? See above, 273.

*? See e.g. Lawsuits, nos 281, 318. Quitclaims to a lord, such as that recorded in Lawsuits, no. 307, may be the result of judgments in favour of the lord. That the lord’s tenants could decide cases between the lord and one of their number might seem to contradict LHP, 32, ed. Downer, 134, ‘that no-one may judge his lord’. However, it may be that the Leges is here referring to what we would call criminal cases, or it may be referring to the king’s court or the county. *™ RRAN, ii. no. 975, discussed below, 304-5; note also e.g. no. 1533. See below, 582-3, for the writ

of right being addressed to the lord. ‘Lawsuits, no. 133. See also Lawsuits, no. 198; Stenton, First Century, 56 n. 1. *t® See also below, 289-91, on sake and soke.

288 PART II: ANGLO-NORMAN ENGLAND The Redvers honorial court of Carisbrooke was probably of particular importance because of the dominance of the family on the Isle of Wight, in contrast to the situation in its dispersed honour of Christchurch.’” However, complexity of landholding was a characteristic of much of England, and significantly some courts

that it is appropriate to call seignorial also included neighbours and others.” When Walter the ditcher quitclaimed land in Dumbleton to Abbot Faritius of Abingdon, he did so before Girmund abbot of Winchcombe, Ralph Basset and Richard de Gray from the ‘neighbours of Abingdon, and Rainbald and Ralph the chamberlain from the men of Abbot Faritius. Ralph Basset was also a leading royal official."° Royal officials sometimes were present because of a prior problem in the seignorial administration of justice.”° However, royal officials might also attend through connections of locality or patronage, as in the case of Ralph Basset at Abingdon, or through invitation by a lord keen to strengthen his court. Kings and royal administrators might on occasion see lords as a threat; often, however, lords must also have been regarded as sharing in the rule of the realm.

Manorial courts As we saw in an earlier chapter, it is uncertain whether there were village or manor courts before the Conquest. However, Domesday Book has a significant entry for the manor of Acton, Cheshire: ‘this manor has its judicial hearing in the hall of its lord’”* Manor courts or hallmoots certainly existed in the twelfth century, although evidence concerning their frequency and composition is very limited. The Red Book of Thorney Abbey records a dispute between Robert its abbot and John abbot of Peterborough, concerning four fishermen.

The fishermen recognised that they ‘must go to [the abbot of Thorney’s] hallmoot, render...chevage, and do service in August, and that the abbot of Thorney should have their sons and daughters’. As the reference to chevage and possession of the fishermen’s sons and daughters suggests, these were men whose tie to their lord was very close, and the manorial was the most important "7 Redvers, 29-31. ‘8 Note also the mixed nature of the assembly that heard the case of Modbert, Lawsuits, no. 226,

below, 318; at its heart may have been the honorial court of the bishop of Bath, but it was supplemented by several churchmen. Those present are said to have come for the feast day of the apostles Peter and Paul, St Peter being the dedicatee of the church. The royal writ starting the hearing was received the day after the feast of Peter and Paul. See also e.g. Lawsuits, nos 182, 266. ‘” Lawsuits, no. 195; see above, 263. *?° This may explain Lawsuits, no. 175.

"*) DB, i. fo. 265v. A village is a unit of settlement, a manor a unit of lordship, which might, for example, consist of only part of a village; hence manorial courts are one form of seignorial court. **?' Lawsuits, no. 219. On chevage, a payment made in acknowledgment of lordship, see below, 422.

12 COURTS 289 court for the unfree peasant. Over it might preside one of the lord’s reeves or on occasion his steward.”

The business of the manorial court may well have covered agricultural matters and also the conduct of the lord’s officials. The Leges Henrici state, not entirely clearly, that ‘if anyone complains about a reeve that he took anything

from him through a wrong, it is to be heard in that manor or in the court of his lord, and although he is the reeve he is to answer to those placed beneath him’.*4 The court might also witness property transactions, and bring its testimony if dispute should arise. A transaction between Geoffrey of Turville and his man John of Lee concerning land in Weston Turville, Buckinghamshire, included amongst its witnesses ‘the whole hallmoot of Turville’.> However, it is unclear whether the transaction itself took place in that hallmoot, for other witnesses too were present; the hallmoot, or representatives, may have travelled to a larger gathering. Nevertheless, it is extremely likely that the manorial court did hear cases concerning small-scale land disputes, particularly between a lord’s villeins. It is also likely that privileged lords exercised in the manorial court the sake and soke that they enjoyed over lesser men.’

Sake and soke and private hundreds Viewing the aristocracy as sharing in the rule of the realm helps to explain royal

willingness to grant lords at least limited jurisdictional privileges. The most common of these was the grant of sake and soke, toll and team, and infangentheof, or of a private hundred, which probably amounted to the same type of jurisdiction but extending over an entire hundred.” The financial benefits were substantial,’* but whereas before 1066 the privileges may have given the beneficiary only the

profits of justice, in the Anglo-Norman period lords or their officials presided over the relevant cases. From after the Conquest survive genuine writs excluding royal officials from hundreds that were granted to lords. Thus Henry I granted the hundred of Blackhurst to the abbot and church of Evesham ‘in their lawful "5 See LHP, 20. 1a, ed. Downer, 122; Stenton, First Century, 77. '** LHP, 56. 4, ed. Downer, 174. See also LHP, 56. 1, ed. Downer, 174, for dispute between lord and farmer. **° Stenton, First Century, no. 42; see also e.g. Lawsuits, no. 332. "7° See LHP, 20. 2, ed. Downer, 122. See also Goebel, Felony, 398 n. 215. See 290 on lords perhaps

not viewing sake and soke as the product ofa specific grant. '°” For definitions, see above, 59. ‘8 For suggestion on the financial benefits of private hundreds, see S. Harvey, “The extent and profitability of demesne agriculture in England in the later eleventh century’, in Social Relations and Ideas: Essays in Honour of R. H. Hilton, ed. T. H. Aston et al. (Cambridge, 1983), 45-72, esp. 65, 70. On the financial consequences of sake and soke, see also e.g. In Cn, III 1, based on Ine, 9.

290 PART II: ANGLO-NORMAN ENGLAND and most free power and justice, thus that no sheriff or his official may intrude himself in or hold a plea concerning [placitet] or demand anything from there.” Such clauses re-emphasise the control of the beneficiary, even though those living in the hundred were probably expected to attend the county court."”° According to the Leges Henrici, the king could grant lands either with or without soke: ‘the king has soke of all lands that are in his demesne; he gave manors of some of his lands, and at the same time exclusive or shared soke

[socnam...singularem uel communem]; of some land he gave manors but retained soke for himself." In royal eyes, probably all soke derived from royal grant, perhaps either specifically stated or implicit in a grant of office. Lords, on the other hand, may have held that they possessed sake and soke as a result of status, a position also suggested by the Leges Henrici.* Lords could pass sake and soke on to their own men or ecclesiastical beneficiaries.%* Some lords may have gained control over sheriffs’ right to regulate frankpledge, although evidence for this only becomes clear in the later twelfth century." The number of hundreds in seignorial hands increased very considerably in the centuries after the Norman Conquest. In 1066 there may have been six private hundreds in Wiltshire, by the late twelfth century perhaps twice as many, by 1275 twenty-six and a half, that is more than two-thirds of the hundreds in the county.’ Their distribution was not even across the country, for example being considerably more common in southwest England than in the east.*° A single lord might hold several hundreds in a county, the Redvers family having six in Devon.” The range of cases covered by grants of sake and soke or hundred probably remained similar to that in the Anglo-Saxon period, for example some beatings, minor woundings, perhaps petty theft, wounding of animals and so on.** If a

2° RRAN, ii. no. 831. See above, 61, for the significance of supposedly Anglo-Saxon grants forged or interpolated in the post-Conquest period. "°° See Hurnard, ‘Franchises’, 444; Goebel, Felony, 393-4. "! LHP, 19. 2, ed. Downer, 122; see also 19. 3, ed. Downer, 122. "°?' See LHP, 20. 2, ed. Downer, 122. "°° See e.g. Redvers, nos 5, 15; Stenton, First Century, nos 23, 24, 28, 29. See also the discussion and examples in Stenton, First Century, 104-11. "4 See esp. RRAN, ii. no. 1613, for Bury St Edmunds. "°° VCH, Wiltshire, v. 44-51. "°° Cam, Hundred, 137. "°7 Redvers, 32. "8 See below, 562, on Glanvill, i. 2, ed. Hall, 4; also Bracton, fo. 154b, ed. Thorne, ii. 436; LHP, 23,

ed. Downer, 126. On sake and soke covering at least some matters regarding proper possession of animals, see below, 382. One might have expected such matters to be covered by the right of team; it may be that team was here subsumed in the notion of sake and soke.

12 COURTS 291 plea was between men of different lords, it may have gone to court of the lord on whose land the offence took place, or to the court of the lord of the accused; in practice these two possibilities would often have coincided.” Excluded from sake and soke were pleas particularly pertaining to the king,”° although use

of the death penalty was granted by inclusion of infangentheof, the right of summary execution of thieves caught in possession.

Greater franchises As in the Anglo-Saxon period, grants of sake and soke, toll and team, and infangentheof were sometimes supplemented by rights over further offences, including gridbryce, forsteal, and hamsocn.'" Even when supplemented by a phrase such as ‘with the other customs that pertain to the right of my crown, such privileges

do not seem to have included the most serious pleas, for example homicide, robbery, rape, or breach of the peace given by the king’s hand.’ More extensive jurisdiction, covering the most serious pleas, was very rarely granted during the Anglo-Norman period, although it may have been included in the rare instances where a county or perhaps a group of hundreds came into a lord's hands.’ The king, in co-operation with bishops, kept close control of ordeal by water or hot iron, only granting specially privileged lords the right to hold these.'4 Areas and lordships where royal power was most limited can be grouped into certain, not mutually exclusive, categories: those in the north or the west of the "°° See LHP, 25. 2, 27. 1 (although in this case there is no mention of soke), 57. 3-4, ed. Downer, 128, 176. Note also LHP, 56. 5, 57. la-2, ed. Downer, 174, 176.

“° Note LHP, 22. 1, ed. Downer, 124, on litigants exaggerating offences in order to get the case heard ina different court. See also below, 385, for the distinction that the Leges Henrici draw between causa communis and causa capitalis, only the former being covered by sake and soke. “* See above, 59; also Hurnard, ‘Franchises’, 304, on gridbryce.

“See e.g. RRAN, ii. no. 1301. See above, 58-62; Hurnard, ‘Franchises’, 303-10, 439; Garnett, ‘Origins of the Crown’, 199-201, 205-8; below, 386-7. For Domesday evidence, see e.g. DB, i. fo. 56v,

concerning certain landholders in the borough of Wallingford. Note also e.g. RRAN, ii. no. 1827, granting to Dunstable sake and soke, toll and team, infangentheof, gridbryce, hamsocn, blodwite, forsteal, and flymanfyrmd (the last being the penalty for harbouring a fugitive). On Dunstable’s later privileges, see Hurnard, ‘Franchises’, 452. See also e.g. Lawsuits, no. 167.

“*S See Hurnard, ‘Franchises’, 448-9; note further RRAN, ii. no. 999. For grants of the right to appoint justices to have pleas of the crown, see below, 492, on Stephen’s reign, 816, on London and Colchester. “* See e.g. Lawsuits, no. 234, for Battle Abbey. The reference in ECf, 9. 3, ed. O’Brien, 166, to some

barons not having the right to hold ordeals [ judicia] may suggest a wider dispersal of the right than is apparent from other surviving evidence. It may be that at least privileged bishops could, in turn, pass the right to hold ordeals to their own men; see English Episcopal Acta 14: Coventry and Lichfield, 1072-1159, ed. M. J. Franklin (Oxford, 1997), no. 63, a grant by the bishop of Coventry to his steward in 1152 x 1155. However, the document may not be trustworthy in this and some other respects.

292 PART II: ANGLO-NORMAN ENGLAND realm; certain pre-Conquest churches, notably in East Anglia and Wessex; a very

few post-Conquest foundations; certain towns.'** Some of these jurisdictions derived or developed from Anglo-Saxon arrangements; some from control of the county and its court; some from grants well beyond sake and soke. Some may be hidden by the Anglo-Norman sources, only being revealed by later privileges or by local traditions.’ The administration of justice north of the Humber, and particularly north of Yorkshire, differed in many ways from the majority of England. The northernmost counties, together with their sheriffs, were only established in the late eleventh and the first half of the twelfth centuries, and even then were not subdivided into wapentakes.'” Institutions such as frankpledge and the murder fine did not exist there, and at least the murder fine did not apply in Yorkshire either.'** Both border conditions and Northumbrian customs may have contributed to the different jurisdictional and other arrangements. The bishop of Durham had very extensive jurisdiction, particularly after the fall of Robert de Mowbray, earl of Northumbria, in 1095. The bishop’s independence is shown by the general absence of Durham from the Pipe Rolls. His court was the equivalent of that of the county, whereas shrieval powers and administration were slow to develop.'*? The archbishop of York also enjoyed special privileges, perhaps because of his ecclesiastical position as well as northern conditions.’° In 1101 Henry I issued a writ for Archbishop Gerard, confirming his predecessor's privileges, and instructing that he carry out the king’s new decrees concerning judgments and pleas of thieves and of false moneyers.’* The archbishop may also have had extensive rights in the liberties of the churches of Ripon and Beverley and in Hexhamshire. The last seems to be an old administrative unit or scir, held in the archbishop’s hands. Some other northern churches enjoyed considerable privileges. Henry I granted Tynemouth Priory the jurisdiction formerly exercised

“° On boroughs, see below, ch. 30. ‘#6 See Hurnard, ‘Franchises’, 451 nn. land 2. “7 See esp. R. Sharpe, Norman Rule in Cumbria 1092-1136 (21 Tract Series, Cumberland and Westmorland Antiquarian and Archaeological Soc., 2006); Green, Government, 132-3. “°F. C. Hamil, ‘Presentment of Englishry and the murder fine’ (1937) 12 Speculum 285-98, at 290; Shropshire and Cheshire also seem not to have been covered by the murder fine. “* See J. Scammell, “The origin and limitations of the Liberty of Durham’ (1966) 81 EHR 449-73, at 452-4; also Sharpe, Norman Rule in Cumbria, 28-33. See also RRAN, i. no. 344. Note the entry in the 1130 Pipe Roll relating to the time when the bishopric was in royal hands following the death of Ranulf Flambard; PR31HI, 130-3. *°° See Hurnard, ‘Franchises’, 315-16; note also Sharpe, Norman Rule in Cumbria, 28-9. Note that both RRAN, ii. no. 1083, and Lawsuits, no. 172, are texts of doubtful authority for York’s privileges under Henry I. *°! RRAN, ii. no. 518.

12 COURTS 293 by Robert de Mowbray, so the priory’s franchise owed something to Robert's powers as earl of Northumbria. Certainly later the priory enjoyed special rights of criminal justice and an extended sanctuary.” There are also suggestions of laymen in the north of England with extensive liberties. The earls of Northumbria until the fall of Robert de Mowbray probably had very extensive powers, which in some northwestern areas may then have passed to Ivo de Taillebois and Ranulf Meschin.'’* Later evidence, for example of privileges in relation to the king’s itinerant justices, may reveal what is earlier hidden.** When in the mid- to late 1170s the honours of Tickhill and Richmond were in royal hands, their custodians accounted for the chattels of felons convicted under the Assizes of Northampton. But for the honours being in royal custody, the chattels would probably have passed to the lord of the honour, a privilege that may be associated with exclusion of the sheriff and possession of considerable jurisdiction. If so, this may be an indication of a privileged area in the Anglo-Norman period, although the liberty could have arisen in King Stephen's

reign.’ It is also possible, although far from certain, that the counts of Aumale had more than the equivalent of hundredal jurisdiction in Holderness.’ Moving west, the honour of Lancaster even in the time of Henry I probably

lay outside any county.” The powers of the earls of Chester, Hereford, and Shrewsbury derived from their control of the lands and courts of those counties following the Norman Conquest. However, the power of the earl of Hereford

was curtailed by the death of William fitz Osbern and then the rebellion of his son, Roger; indeed, the assertion of royal control through sheriffs appears to have been one of the issues between William I and Roger.’* Likewise the earl of Shropshire may have enjoyed very considerable control until the fall of Robert de Belléme in 1102. The earl of Chester’s powers within Cheshire derived from his lordship of all the secular land within that county, as well as his very

2 RRAN, ii. no. 913. Hurnard, ‘Franchises’, 454-5. See also M. D. Lobel, “The ecclesiastical banleuca in England’, in Oxford Essays in Medieval History presented to Herbert E. Salter (Oxford, 1934), 122-40, at 125. See also Hurnard, ‘Franchises’, 455, for rights enjoyed by St Mary’s, York, Ripon, Beverley, and Whitby. "°° Sharpe, Norman Rule in Cumbria, 34-52. *°* See below, 563; Hurnard, ‘Franchises’, 314.

°° See S. Painter, Studies in the History of the English Feudal Barony (Baltimore, 1943), 111; Hurnard, ‘Franchises’, 442, who also points out that the earls of Richmond had sheriffs and justices in Richmondshire. "°° See B. English, The Lords of Holderness, 1086-1260 (Oxford, 1979), 100-9.

7 Green, Government, 113 n. 94. "8 See The Letters of Lanfranc Archbishop of Canterbury, ed. and trans. H. Clover and M. Gibson (Oxford, 1979), no. 31. However, it should be noted that there is no evidence that the disputes involved lands in Herefordshire.

294 PART II: ANGLO-NORMAN ENGLAND considerable wealth and power elsewhere in England. Beyond his strong tenurial

position, and consequent control of the county court, it is hard to tell how far his powers differed from the other greatest Anglo-Norman earls. However, that special position, and its survival in contrast to the situation in Shropshire and Herefordshire, later allowed Chester to develop into a palatine earldom, parallel

to Durham. Finally, in the south of Wales there developed the powerful Marcher lordships.’® Moving southwards, the archbishop of Canterbury enjoyed judicial privileges. Some were at issue in the 1070s, in a case between Archbishop Lanfranc and Bishop Odo of Bayeux, earl of Kent and half-brother of William the Conqueror. If we rely on an early Canterbury account, which unfortunately is truncated, all we can say is that the archbishop established his right to ‘soke and sake, toll, team, flymanfyrmd, gridbryce, forsteal, hamfare, and infangentheof.'" According to Domesday, the archbishop also claimed forfeiture on roads outside the city on each side, where the land was his. In addition, Domesday records that the archbishop had in the manor of Langport the three forfeitures: theft, robbery, and breach of the peace.” There are hints of further possible privileges of the archbishop in a passage by the early twelfth-century Canterbury writer, Eadmer. He stated of the south door of Canterbury cathedral that ‘in the laws of old kings...all complaints [querelas]

of the whole kingdom that could not be lawfully finished in the hundreds or counties, one or several, or even in the king’s court, should be brought to an end there, just as in the court of the Highest King’ The nature of these cases is uncertain; if Eadmer is to be trusted, they were of many types, and could support the suggestion that the archbishop of Canterbury had a key role in judicial administration of the realm.’** On the other hand, Eadmer was intent on exalting Canterbury, and the range of cases may have been more limited. One °° 1D. B. Crouch, “The administration of the Norman earldom’, in The Earldom of Chester and its Charters, ed. A. T. Thacker (71J of the Chester Archaeological Soc., 1991), 69-95, at 70-3. "°° See R. R. Davies, ‘Kings, lords and liberties in the March of Wales, 1066-1272’ (1979) 5th Ser. 29 TRHS 41-61.

"8! Lawsuits, no. 5A; hamfare is probably the same as hamsocn. Later accounts of the trial grant the archbishop more extensive privileges concerning roads, but these should be regarded as later claims, not sound evidence of the eleventh-century situation. ‘©? DB, i. fos 2r, 4v. Cf. below, 387, on jurisdiction regarding offences on certain categories of road. “°° A. Wilmart, ‘Edmeri Cantuariensis cantoris nova opuscula de sanctorum veneratione et obsecratione’ (1935) 15 Revue des sciences religieuses 184-219, 354-79, at 365; Gervase of Canterbury,

Chronica, in The Historical Works of Gervase of Canterbury, ed. W. Stubbs (2 vols; RS, 1879-80), i. 8; see also N. D. Hurnard, ‘Magna Carta, clause 34’, in Studies in Medieval History presented to Frederick Maurice Powicke, ed. R. W. Hunt et al. (Oxford, 1948), 157-79, at 162 n. 5. The passage appears in Eadmer’s description of the pre-1174 church at Canterbury. "4 See above, 261.

12 COURTS 295 possibility is that the cases involved trial by ordeal. If they involved men other than the archbishop’s own, the jurisdiction may derive from a bishop’s position as supervisor of ordeals. Later evidence, perhaps after the archbishop’s jurisdiction had been restricted, gives only limited privileges, for example that if one of the prior of Christ Church’s men was to undergo ordeal, the prior and convent's officials were to preside, or that if a tenant of the archbishop was accused of a plea of the crown, the plea went on in the king’s court right up to judgment, but then at the request of the archbishop’s bailiffs, the ordeal of water or iron was carried out in the archbishop’s court. However, it was said, duels concerning felonies and wounding did not take place there.’® As before 1066, various great monasteries enjoyed particular privileges relating to justice, and after the Conquest these certainly extended to court holding. Indeed, many of the references to extensive privileges in supposed Anglo-Saxon

charters come from post-Conquest forgeries.’ The greatest privileges were enjoyed by the monasteries of Ely (a bishopric from 1109), Bury, Peterborough, and Glastonbury, especially within the core of their lands, the Isles of Ely and

Glastonbury and the so-called banleucas of Bury and Ramsey. Within these areas their privileges appear to have been considerably more extensive than within the hundreds that they possessed elsewhere, and may have extended to the most serious offences.'”

Special privileges were also granted to two monasteries founded after the Conquest and closely associated with the king. In the case of Battle Abbey, the privileges are particularly hard to trace because of the large number of forged charters. However, it appears to be an authentic charter of Henry I that records the following: Know that I have granted to God and the church of St Martin of Battle that it may have its court in everything [per omnia], and wherever the abbot of that place shall be present—whether in his own manors or in other lands belonging to the abbey—or another in place of the abbot, let him have the royal dignity that if anyone has any plea [querelam|] against any of the abbot’s men, and ought to plead concerning this, he who seeks justice [rectum] is to seek the abbot’s court, and the abbot or any of the monks who is present is to do full justice with royal dignity. If the plea cannot be determined in the abbot’s court, by the abbot’s summons it is to be transferred [deferatur| to the king’s court, so that, saving the right and dignity of the symbol

“°° See Hurnard, ‘Franchises, 456-7. That the archbishop was said to have rights to ordeal by water or iron, but not by battle, may suggest a link to his ecclesiastical function or a pre-1066 origin to the right. "°° See e.g. S 499, 774, 1000, 1293; also above, ch. 3. “©? Hurnard, ‘Franchises’, 316-20; see also Lobel, ‘Banleuca’, 123-6.

296 PART II: ANGLO-NORMAN ENGLAND of the royal crown, that is the church of St Martin of Battle, it is to be ended with justice in the abbot’s presence.

The charter appears, therefore, to convey the right to hear all pleas against the abbot’s men. At the same time, it is notable how closely this privileged court was integrated into the royal system of justice.’” Possibly under Henry I or Stephen, Reading Abbey was granted considerable

privileges, but again in a way that emphasised ultimate royal control. The following appears in a charter in Stephen’s name, but of not entirely certain authenticity: The abbot and monks of Reading are to have throughout their possessions all justice concerning assault and thefts and murders [furtis et murdris], concerning shedding of blood and breach of peace, as much as pertains to royal power, and concerning all offences. If the abbot and monks neglect to do justice concerning these, the king is to compel it to be done, in such a way that it does not at all diminish the liberty of the church of Reading."

However, the genuine privileges of Reading may have been the less specific ones of its men’s quittance from counties and hundreds, and from all pleas and complaints [placitis et querelis]. In addition, the abbot was to hold the plea and have forfeiture and justice concerning any theft or murder that arose in the abbey’s land at Rowington, Warwickshire.”° It is possible that some southern baronies, notably those at Wallingford and Berkhamstead, enjoyed privileges similar to those of Tickhill or Richmond in the north. Certainly Henry II would single out the honour of Wallingford as a specially privileged area.’ Domesday Book makes several mentions of the ‘lowy’ of Tonbridge, and there is some later evidence for this being a privileged area; however, the nature of the holder’s rights in the Anglo-Norman periodis unclear.'” More significant were the compact lordships known as the Sussex Rapes. These divisions of Sussex were in the hands of some leading Anglo-Norman barons and the bishop of Chichester. They probably had their own sheriffs within the

‘88 RRAN, ii. no. 529, dating to 1101. Note also RRAN, ii. no. 1651, quittance from the pleas of R. Basset.

See further E. Searle, Lordship and Community. Battle Abbey and its Banlieu 1066-1538 (26 Studies and Texts, Pontifical Institute of Mediaeval Studies, Toronto, 1974), esp. 197-218; the core of the abbey’s liberty was again its banleuca. See also Hurnard, ‘Franchises, 434-6, for later evidence, concerning Battle; Green, Government, 114-15, for efforts to weaken the Sussex Rapes.

"°° RRAN, iii. no. 675. For forged or at least modified charters of Henry I, see RRAN, ii. nos 1427, 1474. See also Hurnard, ‘Franchises’, 442-3. '’° Reading, no. 7; RRAN, ii. no. 1789, iii. no. 687. ‘7? See below, 555-6, on the Assize of Clarendon. ‘7? Hurnard, ‘Franchises’, 452-3. See also Lobel, ‘Banleuca’, 125, for Pevensey.

12 COURTS 297 Rapes, and may have enjoyed jurisdiction the equivalent of the county. However, by the latter part of Henry I’s reign it appears that their power had been reduced, that the king was exercising his power in Sussex through a sheriff, and that royal justices heard pleas in the county.’” Overall, the extent of franchises, particularly in southern England, was limited, and became more so in the period up to 1135, primarily through the forfeitures of some of the greatest earls.’4 Kings may also have used one franchise holder to weaken another, for example with Battle Abbey restricting the power of the Sussex Rapes. The assertion of royal authority through royal justices, including itinerant justices, may have encouraged definition and perhaps also restriction of at least some privileges. However, it is also important not to assume that franchises always worked to the king’s disadvantage. It was the authority of royal officials, more than that of the king himself, which was excluded from the privileged area. A loyal follower or monastery—particularly one closely associated with the king such as Battle or Reading Abbey—might be seen not as weakening but rather as reinforcing royal authority.

5 ECCLESIASTICAL COURTS As discussed earlier, there were episcopal synods that exercised justice in Anglo-Saxon England. There may have also been some local Church courts, but more importantly bishops heard cases in the county and perhaps borough and hundred courts.’”> However, William I, Archbishop Lanfranc, and others felt that the existing situation was one of the many aspects of English ecclesiastical practice in need of reform.'”° William issued an order, perhaps conveyed by writ to every diocese in England, in response to the hitherto poor application in England of ‘the episcopal laws’:

I command and by royal authority order that no bishop or archdeacon is henceforth to hold pleas concerning the episcopal laws in the hundred, nor bring to the judgment of secular men a case that pertains to the rule of souls. But anyone who is accused [interpellatus] according to the episcopal laws concerning any case or wrong is to come to a place that the bishop chooses and names for this, and there answer

‘7° See J. F. A. Mason, William the First and the Sussex Rapes (Hastings and Bexhill Branch of the Historical Association, 1966); Green, Government, 115. ‘7* On developments in Stephen’s reign, see below, 492. "7° See above, 63-4. ‘’° For the difficulty of whether developments in Normandy preceded, coincided with, or even postdated those in England, see Morris, ‘Church courts, 452-3, Barlow, English Church 1066-1154, 148-51.

298 PART II: ANGLO-NORMAN ENGLAND concerning his case or wrong, and he is to do right [rectum] to God and his bishop not according to the hundred but according to the canons and episcopal laws.’

The order was probably concerned with offences against Christianity, matters of morality and spiritual offences, not with clerics who committed worldly crimes or with non-payment of Church dues such as tithe.’* However, other aspects of the meaning of this writ are not entirely clear. For example, why does it not mention the county court, where the bishop may more often have been present than in the hundred? One possibility is that the real concern was spiritual causes

being heard in private hundreds that belonged to bishops: the writ does not mention laymen holding spiritual pleas in the hundred, just churchmen.”? There is, moreover, continuing evidence for the hearing of ecclesiastical cases in county courts.*° Some of this is from the Leges, which may be archaicising texts.’ However, it is notable that William of Malmesbury, writing in the 1120s, did not comment further on the presence of ecclesiastical pleas in the county court where he describes Bishop Wulfstan of Worcester slumbering disdainfully during secular matters, but applying his mind vigilantly if anything spiritual [divinum] arose.’

What of the evidence for ecclesiastical courts? Unfortunately, some is ambiguous; for example, the requirement that cases be heard before a bishop need not indicate a system of specifically ecclesiastical courts. Later the situation becomes clearer. In 1164 Henry II caused to be drawn up the Constitutions of Clarendon, which he claimed were a ‘record of a certain part of the customs, liberties and privileges of his ancestors, that is of King Henry his grandfather, and of other things that ought to be observed and maintained in the realm’. This document certainly envisaged a system of ecclesiastical courts: ‘with regard to appeals, if they should arise, they should proceed from the archdeacon to the

‘7 Acta of William I, no. 128; for the passage preceding the one here quoted, see above, 259. The writ was also issued in English, but unfortunately no copy survives. If the Latin is a poor translation from the English, that may explain some of its lack of clarity. For comment on the phrase ‘episcopal laws’, see Morris, ‘Church courts’, 456-7. ‘78 Morris, ‘Church courts’, 451. On the internal discipline of monasteries, see Barlow, English Church 1066-1154, 164-5. ‘7° See also Hurnard, ‘Franchises’, 445; cf. Morris, ‘Church courts’, 450-1. "8° See also Morris, ‘Church courts’, 459-61.

‘S' LHP, 7. 3, ed. Downer, 100, state that in the county ‘shall first be dealt with the due rights of Christianity’ note also ECf, 3, ed. O’Brien, 160. See further LHP, 31. 3, ed. Downer, 134, cf. LHP, 57. 9a, ed. Downer, 178, requiring that charges regarding those in sacred orders should be treated in the presence of their prelate.

"8 William of Malmesbury, Gesta pontificum, iv. 140, ed. Winterbottom, i. 428. Wulfstan was bishop from 1062 to 1095, so both before and after William I’s legislation, but the story in the Gesta pontificum does not appear specific to the time before the legislation.

12 COURTS 299 bishop, and from the bishop to the archbishop’."® It is unclear, however, whether

such systematic organisation really stretched back to Henry I's time, let alone earlier. William I’s writ is restorative in tone and possibly non-institutionalised in recommendation: ‘any case or wrong [culpa] is to come to a place which the bishop chooses and names for this.’** At first, perhaps, most cases were heard in the annual or biennial meetings of the diocesan synod, and such meetings thereafter continued to hear disputes. In Stephen’s reign, the monks of St Andrew's Priory, Northampton, deraigned a portion of tithe ‘in full synod in the presence of Robert, bishop of Lincoln’"* Meanwhile, the position of archdeacon was being regularised within the English Church, and by the mid-twelfth century it is likely that archdeacons courts treated

much business. Gifts of churches might be made in the archdeacons chapter, disputes over churches heard there.’ Some cases were brought by individuals, some possibly as a result of communal accusation, some by archdeacons ex officio.’*” The involvement of archdeacons in courts and justice became notorious: Gilbert of Sempringham, when refusing an archdeaconry, said that most conducted proceedings [causas agunt] for the sake of money rather than souls.'* Overall, the chronology of the emergence of separate and routine Church courts remains unclear. It is possible that it was mainly a twelfth-century phenomenon,”

but earlier developments could be hidden by the paucity of evidence. Church courts heard not just certain disputes involving clerics but also a variety of cases concerning lay people, notably relating to lay sin, marriage, and bastardy.'’° The evidence in general points to co-operation between churchmen and secular powers. William I's writ concerning the removal of pleas from the hundred also states that if anyone failed to respond to three summonses to episcopal justice, he was to be excommunicated; ‘and if needed to carry this into effect, let the strength and the justice of the king or his sheriff be provided.'" Waltheof earl of Northumbria

"S> Constitutions of Clarendon, 8; below, ch. 22. "84 See above, 297-8; also above, 298 n. 182, and below, 429, for LHP, 57. 9a.

*S° Lawsuits, no. 338; note, though, the actual restoration in the presence of Simon, earl of Northampton, and some of his barons at Northampton. For the earliest probably authentic record of a diocesan synod, from Worcester in 1092, see Councils and Synods, I, no. 100. "8° B,R. Kemp, ‘Archdeacons and parish churches in England in the twelfth century’, in Law and Government, ed. Garnett and Hudson, 341-64, at 344-8. "®” Barlow, English Church 1066-1154, 155-6. "°° The Book of St Gilbert, i. 8, ed. and trans. R. Foreville and G. Keir (Oxford, 1987), 28.

"°° Morris, ‘Church courts’, 462. °° Barlow, English Church 1066-1154, 166-71. See also below, 698-9, on breach of faith and debt. The situation regarding jurisdiction over bequest of chattels is not certain; cf. below, 566, 685-6. "Acta of William I, no. 128. See also ECf, 2. 9, ed. O’Brien, 160. Note also ECf, 6, ed. O’Brien, 162-4, below, 414.

300 PART II: ANGLO-NORMAN ENGLAND (1072-5) was said to have sat with his friend Bishop Walcher of Durham in the priests synod, ‘humbly and obediently dealing with whatever was decided by the bishop for correcting Christianity in his county.” Disputes between ecclesiastical and secular powers would become more likely as spheres of jurisdiction came to be more defined later in the twelfth century.’

6 TRANSFER OF CASES BETWEEN SECULAR COURTS What of procedures for transfer of cases from one court to another? An early instance appears in an account of a land case in the latter half of William I’s reign, between Gundulf, bishop of Rochester, and Picot, sheriff of Cambridge, the latter claiming the land for the king. The men of Cambridgeshire were assembled and, according to the Rochester record, through fear of the sheriff, declared the land to be the king’s, rather than the blessed Andrews. But the bishop of Bayeux, who was presiding over the plea, did not believe them, and ordered that if they knew that what they said was true they should choose twelve of their number who would confirm with an oath what all had said. But when the twelve had withdrawn for discussion, they were struck with terror by a message from the sheriff, and, on returning, swore to be true what they had said before.

The land remained in the king’s hands, but a monk who had been the local reeve told the bishop of Rochester that those who had sworn had lied. The bishop of

Rochester told this to the bishop of Bayeux, who had the monk confirm the story. He then got two of those who had sworn, including the first, to confess to their perjury. Lastly, he ordered the sheriff to send the remaining jurors to London to appear before him together with twelve others of the better men of the county to confirm the oath of the former twelve. To the same place, also, he summoned many of the greater barons of England, and when all were assembled in London, judgment was given both by French and English that all those were perjured, since the man after whom all had sworn had owned himself to be a perjuror.

The bishop of Rochester then got the land, but since the other twelve jurors wished to assert that they did not agree with those who had sworn first, the bishop of Bayeux said that they should prove this by the

*°* Simeon of Durham, Historia regum, s.a. 1072, Simeon, Opera omnia, ii. 200. See also e.g. Lawsuits, no. 325. "°° See below, chs 22, 28.

12 COURTS 301 ordeal of iron. They promised to do so, but failed, and by judgment of the other men

of their county they paid 300s. to the king.

Here, then, we see not a case itself being retried in a higher court but those responsible for the earlier decision, and those who had confirmed it, being put on trial for their perjury. The process thus resembles what would later be called

attaint.’ There is further evidence for transfer of cases between courts. The Leges Henrici mention the transfer of cases from hundred or other assembly to county, because of ‘a violent denial or withholding of justice’.°° Transfer could also take place from lord’s court to county, which would later be covered by the process known as tolt, or from county to king’s court.’” The transfer was initiated, no doubt for payment, by the disappointed party, although the lord might be able to reclaim his court by showing that he had not failed to do justice. Claims of failure of justice might also lead to the king arranging for men to be present at honorial courts to ensure that right was done.’* Further evidence on procedure is very limited, although the Leges Henrici refer to a process known as wemming, which involved two oath-helpers supporting a claim of unjust judgment.’ In a writ of 1127 Henry I stated that the monks of Gloucester and Gilbert Miners came to my court before me on the appointed day concerning the plea of the manor of Coln, which Gilbert claimed against them and their abbot, and Adam de Port and William fitzOdo testified before me that they were present when Roger of Gloucester gave that manor in alms to the church of St Peter and the monks serving God there, and when I, at Roger’s request, granted them that donation, and concerning which that Gilbert refused judgment.”°°

It may also be that men looked to their overlord’s courts if they felt themselves to have been denied justice by their immediate lord, although reconstructing °* Lawsuits, no. 19; the text is not strictly contemporary, but appears in the Textus Roffensis of the early 1120s (fos 175v-176v). For further comment, particularly on what is hidden by the Rochester account, see R. Fleming, “Oral testimony and the Domesday inquest’ (1995) 17 ANS 101-222, at 107-8.

°° See below, 623. "°° LHP, 7. 6, ed. Downer, 100. On transfer of cases, see also LHP, 9. 4a, 26. 1, 33. 2-3a, 57. 5, ed. Downer, 106, 128, 136, 176; RRAN, ii. no. 1516.

7 See J. Biancalana, ‘For want of justice: legal reforms of Henry IT’ (1988) 88 Columbia LR 433-536, at 452-60; M. G. Cheney, ‘A decree of Henry II on defect of justice’, in Tradition and Change: Essays in Honour of Marjorie Chibnalled. D. E. Greenway et al. (Cambridge, 1985), 183-93, at 189-92; below, 570. Note also the emergence of writs ordering that if the addressee failed to obey, a named person was to do justice; J. Boorman, ‘Nisi feceris under Henry IT (2002) 24 ANS 85-97, at 87-9.

"See esp. Lawsuits, no. 187, below, 304-5. Note also PR31HI, 85, for a man rendering account for one warhorse, ‘that he be justly treated in his lord’s court’. °° See LHP, 33. 2, 67. 2, ed. Downer, 136, 214; cf. below, 570.

*°° Lawsuits, no. 248.

302 PART II: ANGLO-NORMAN ENGLAND the stages of such disputes is very difficult.*“ The Leges Henrici mentions ‘failure

of justice and violent denial of their [litigants’] right’ leading cases to pass to ‘the authority of lords.*°* Above all, however, the Leges Henrici present unjust judgment and default of justice as royal rights.*°? These rights, about which we heard in Asser’s descriptions of King Alfred’s judicial activities, would be essential to the expansion of routine royal justice under the Angevin kings.

7 CONCLUSION The extent of defined circumstances and methods for transfer of cases may be considered one standard whereby to judge how far different courts form a system; another is the degree of jurisdictional definition. There is clear evidence,

for example in Henry I’s writ of 1108 concerning courts and in texts such as the Leges Henrici, that men were drawing distinctions of jurisdiction between courts. On the other hand, perhaps as result of the evidence, probably because of practice, there remains a lack of clarity in important aspects, for example any distinction between the jurisdiction of hundred and county courts.”** The case evidence, too, suggests men sometimes could choose between courts rather

than being constrained by strict jurisdictional rules. A complainant might take his case to the court of the offender, for example producing a charter as a defence against oppressions, although he had no legal obligation to make his case in that court.*** Or men might be given a choice as to where to make proof or undergo judgment. The abbot of Ramsey offered Baldwin, son of Autin of Huntingdon, judgment either in his own |[i.e. the abbot’s] court or in that of

the bishop of Lincoln, who had dealt with an earlier stage of the dispute.” The degree of jurisdictional distinction between courts thus suggests some but limited systematic arrangement. Such distinctions would grow sharper in the second half of the twelfth century.

*°" Hudson, Land, Law, and Lordship, 140-1. *°? LHP, 33. la, ed. Downer, 136. *°° LHP, 10.1, 59.19, ed. Downer, 108, 188.

*°* Cf. the desire of privileged lords to maintain their rights; see e.g. Lawsuits, no. 174. *°° Lawsuits, no. 217.

*°° Lawsuits, no. 233B. The hearing or settlement of the various disputes in Lawsuits, no. 242, do not seem to follow any clear jurisdictional lines.

13

Procedure LL the assemblies themselves, court procedures showed marked continuities across the Norman Conquest. Particularly in the more local courts, hundreds

and manors, as well as in at least some towns, men of English descent would have predominated amongst suitors and in some cases may have presided; such a situation would have encouraged continuity of procedure and also of other aspects of law.’ Again, however, there were significant changes, notably the introduction of trial by battle, a practice for which there is no Anglo-Saxon evidence.’ Some, although not all, court proceedings must have been in French rather than English, and at times interpreters may have been required: The sources regarding court procedure are more plentiful for the post-Conquest period, the Leges Henrici giving particularly extensive material. However, as already suggested, the Leges Henrici may not accurately indicate post-Conquest practice, so it is again necessary to examine the case material carefully. There remains a danger of building an overly standardised composite picture from diffuse evidence. Practice might differ between individual cases and between places.‘ There were also differences between the treatment of major and minor offences.’ On the other hand, differences between procedure in land cases and those involving offences

against movable property or the person remained less extensive than they later became. As in the Anglo-Saxon period, cases can generally be fitted into the broad, often over-lapping, categories of (1) those where a party claimed that the opponent had done a wrong to him, and (2) those where he claimed that the opponent was in possession of something that belonged to him.°

" Seee.g. below, 372, 383, 415, 828. * See above, ch. 3.

> Note Lawsuits, nos 172, 204; P. R. Hyams, ‘The common law and the French connection’ (1982) 4 ANS 77-92, 196-202, at 91-2. * Note e.g. LHP, 9. 6a, ed. Downer, 106: ‘it differs if an equal accuses an equal, a greater a lesser, or a lesser a greater’. > See esp. below, 322-8, concerning proof. ° See above, 70; also Hyams, Rancor, 145-53.

304 PART II: ANGLO-NORMAN ENGLAND Although the Leges give hints as to how courts arranged their business, for example taking serious business first, the majority of our evidence is about individual cases, and it is with two of these that we start’

1 TWO CASES According to a Thorney Abbey account, a man named Robert of Staverton brought writs from Henry I against Abbot Gunter of Thorney concerning land of Charwelton, Northamptonshire, which he wished to hold in fee farm from the abbot.* The abbot answered that he was notto have it, because he had no right [nullum

rectum] therein. Further argument followed. Robert sought seisin [saisitionem] of the land, but the abbot refused to seise him, except ‘through judgment. The abbot then commanded that the saint's court (i.e. the honour court of the abbey) should decide justice concerning this. Next came the mesne judgment, the judgment as to how proof was to be made. The court decided by right judgment that Robert ought not be seised unless he could show greater right [majus rectum] concerning this, that is produce a charter or witnesses who would deraign this fee for him. The abbot set a day for him to do so. Robert seems to have thought that the court might be biased against him. He again sought the king, who instructed Hugh the sheriff to send prudent and wise men to the abbot’s court with Robert on that day, to see and hear that the abbot treat him with justice [per rectum] in every way. The men dispatched were Ascelin of Waterville, William Olifart, and Walter of Clopton, probably all from quite nearby, and they came on the appointed day and again sought seisin as Robert had previously. They thus were reported as actively pursuing Robert's claim, rather than simply observing the behaviour of the abbot'’s court. The abbot replied that he had set Robert a day for deraigning the fee that he was claiming by charter or witness. The abbot ordered that the court reach a just judgment. Four named men together with the men of the saint duly judged that Robert and his heirs had lost their claim since they did not have charter and witness by which he could deraign it, and that the abbot and the church of Thorney should have Charwelton free and quit forever.

” See e.g. LHP, 53.2, 4, ed. Downer, 170; note also e.g. 46. la, 3, ed. Downer, 156. On such procedural customs, see also below, 312.

* Lawsuits, no. 187; Robert may have made an earlier claim in the abbot’s court, rejection of which led him to obtain royal writs. For the abbey’s holding of half a hide in Charwelton, see DB, i. fo. 222v; a certain Baldwin held it from the church. For other lands there, see fos 223v, 224v. Staverton is also in Northants; see DB, i. fos 223r, 224v. Abbot Gunther died in 1112. On fee farm, see below, 338-9.

13 PROCEDURE 305 In addition to this account, two writs of Henry I survive.’ The first appears to have been obtained by the abbot. It ordered sheriff Hugh to make the abbot of Thorney’s land of Charwelton immediately be reseised of the grain and cattle of which Robert the abbot’s man had disseised it, and to make to be given back what Swain reeve of Fawsley had taken from it. It is unclear whether the taking of movables occurred before the court hearings, or whether Robert and Swain had

removed the goods before returning the land as ordered by the court. The writ goes on, let the land and the men of that abbot be in my peace so that no-one shall cause them any injury against this. And see that the men of Fawsley cause no wrong in that land, in the meadows or in the grain, on my forfeiture. The other writ was addressed to sheriff Hugh and also to Geoftrey Ridel and Aubrey the chamberlain. It too was probably obtained by the abbot, although it puts some burden on him to prove that he had acted properly: ‘if the abbot of Thorney can show that he has not failed concerning justice [de recto] to Robert his man and his father, then I order that the plea be in the court of the aforesaid abbot, namely concerning the land and grain of Charwelton.’ It may be that Robert was seeking a hearing in the county court, and the abbot was reclaiming his own court through the royal order.’° The writ goes on to suggest that Robert may have been taking rather less peaceful action in the course of the dispute: ‘and concerning the disgrace done by that Robert to Osbert the monk against [super] my peace and writ, do the abbot full justice when he wishes to plead concerning this, lest I hear a claim concerning this, for want of justice.’ Again, the timing of this writ within the case cannot be established for certain. It sounds as if Robert had in some way harmed a monk of the house, after the issue of the first surviving writ of the king or perhaps another writ. Alternatively, the wronged Osbert may have been a layman with the nickname or surname ‘monk’.” Our second case is recounted in the Liber Eliensis, an Ely text combining narrative with charters and other documents, and in a slightly different form in a letter of the bishop of Ely preserved by the Norman-based chronicler Orderic Vitalis. The events took place in 1115 or 1116. A man named Bricstan lived in Chatteris, which belonged to the church of Ely.”* According to the letter in Orderic, this man, as his neighbours bear witness, harmed no-one unjustly but was peacefully content with his own goods, sparing those of others.... He lent money to his needy neighbours, but not at usury; only, because so many men are untrustworthy, he kept gages from his debtors.

> RRAN, ii. nos 975, 997. *° See below, 358. ‘* See below, 329, for Hervey ‘le Moigne [monachus]’.

'* Lawsuits, no. 204.

306 PART II: ANGLO-NORMAN ENGLAND ‘Inspired by divine grace, he sought to adopt the monastic habit at the church of St Etheldreda, Ely. The version in the Liber Eliensis gives a rather different picture. Bricstan had become entirely reliant on usury, but eventually illness persuaded him to become a monk at Ely. Whether in fact Bricstan was good or bad, the two accounts then converge when dealing with the real villain of the piece. ‘A certain official of King Henry, who was more particularly a servant of the devil, armed with wolf-like fangs, appeared. ... He was called Robert and nicknamed “Malarteis’, from the Latin meaning “evil-maker’?* According to Orderic’s version,

the name was not undeserved. For he seemed to have no duty except to entrap everyone....He accused all equally whenever he could, striving with all his might to harm everyone....If he could find no valid reason for condemning them, he became a mendacious inventor and father of falsehood through the devil who spoke in him.... [Learning that Bricstan wished to become a monk], Robert, beginning to heap falsehood upon falsehood, said to us: “Know that this man, Bricstan, is a thief, who has the king's money by larceny and hidden it, and is trying to become a monk to escape judgment and punishment for his offence [crimen], not for any other kind of salvation.

For he found hidden treasure, and by secretly stealing from it has become a usurer. Since he is guilty of such great crimes, larceny and usury, he fears to come before the king or judges. Therefore I have been sent here to you at the king’s command, and I forbid you to dare receive him into your community. We therefore, hearing the king's prohibition and fearing to incur his anger, were not willing that he join our community. ... He was sent under pledges to trial. With Ralph Basset presiding, all the men of the county were assembled at Huntingdon, according to English custom, and I Hervey was present with Abbot Reginald of Ramsey, Abbot Robert of Thorney, and many clerks and monks. To cut a long story short, the accused was charged together with his wife, and the crimes falsely attributed to him were repeated.

Despite the presence of the royal justice, the phrase ‘according to English custom’

suggests that this was a routine rather than a specially summoned meeting of the county court." It is not entirely clear whether Robert Malarteis brought the charges in person, or got those who claimed to be victims of Bricstan’s usury to do so. Nor is it clear how sharply distinguished were the accusations of theft and of failure to hand over treasure trove.” Bricstan denied the accusation, but was charged with lying and was mocked, for he was somewhat corpulent, short of stature, and had what one might call a homely face. After many undeserved contumelies had been heaped upon him, they unjustly sentenced him...to be handed over with all his possessions to the king’s authority.

** On the Malarteis family, see 308 n. 25. * See above, 276. *° Note the association of treasure trove and theft in Bracton, fo. 119b, ed. Thorne, ii. 338.

13 PROCEDURE 307 Judgment, therefore, seems to have occurred on the offender's first appearance in court, rather than at a later date following a mesne judgment.”* Next, according

to Orderic, Bricstan and his wife had to hand over all their goods and identify his debtors, and his wife too had to produce her goods. She then offered to carry the hot iron in order to support his oath that he had held nothing back; this does not seem to have been a standard requirement but rather suggests flexibility of procedure. The accounts then tell us that Bricstan ‘was bound under custody, and brought to London where he was thrown into a dark prison. There, unjustly laden with iron fetters of excessive weight, he suffered the torment of daily hunger and cold for a considerable time.’ It appears that the imprisonment was preliminary to final judgment and possible punishment, rather than the punishment itself. Bricstan sought divine aid, and prayed to St Benedict and St Etheldreda of Ely. After five months, in a blaze of light,

St Benedict and St Etheldreda, with her sister St Sexburga, appeared to the suppliant.... The venerable Benedict placed his hand on the ring fetters and broke them on both sides, drawing them from the feet of the prisoner in such a way that he felt nothing at all and the saint seemed to have broken them more by his command than by physical act. When he had pulled them off he tossed them aside almost contemptuously and struck the beam that supported the room above the prison so forcefully that he made a great crack in it. At the sound of the blow the guards, who were sleeping in the room above, were all awakened in terror. Fearing that the prisoners had fled they lit torches and rushed to the prison. Finding the doors completely undamaged and locked, they turned the keys and entered. When they saw that the man, whom they had thrown in when bound, now was freed, they marvelled greatly.

The occurrence was reported to the queen—perhaps acting as regent in the king’s absence—who sent Ralph Basset to investigate. At first suspecting witchcraft, he was convinced that the release was miraculous, and then brought the

freed Bricstan to the queen and the barons who were with her. Bricstan then entered Ely as a monk, and his fetters were given to the church, where they were suspended before the altar as a memorial of the miracle.

2 BRINGING AN ACCUSATION OR CLAIM As before the Conquest, accusations and claims might be brought either by one of the parties or, in cases of theft or violence, by an individual or group with

"© See below, 317. Despite its earlier comments on his usury, the Liber Eliensis too presents Bricstan as the victim of injustice.

308 PART II: ANGLO-NORMAN ENGLAND peacekeeping responsibilities. Women as well as men could in some circumstances bring land claims and accusations of certain wrongs to the person.” The aggrieved party might complain to an official or to the other party, even before court proceedings began. If the complaint was taken to a person in authority, for example the king, a lord, or an official, this might be in a court."* Provision of sureties or an oath were to ensure that the claim was not made through malice

and that it would be pursued.” An alternative or addition may have been to display the wound concerning which an accusation was made.”° Accusations might also be brought by approvers, that is by serious offenders who sought to save themselves by accusing their co-offenders.” In addition there was the possibility of group presentment of crimes. The group might be specially empanelled or be members ofafrankpledge, whilst in cases of murder the hundred may have had such responsibility.” A further possibility was prosecution by a

royal official.* In the far north and the west of the country, in areas without frankpledge, serjeants of the peace later had a significant role in the prevention of crime and the apprehension and prosecution of criminals.” It is possible that serjeants developed in these areas from a type of minor official that once also existed elsewhere in the realm. Certainly men such as Robert Malarteis seem to have had a very similar role.** Likewise, county and other justices may have been able to bring accusations.”° A clause of the Leges Henrici mentions men being lawfully impleaded by the sheriff or the king’s justice concerning serious

‘” See below, 325-6, 722-3. The limits of the evidence leave the situation regarding minors bringing or answering claims or charges quite unclear until the Angevin period. *® On continuing use of ‘plaint’, i.e. oral complaint, in the Angevin period, see below, 578, 744-5. *? See also below, 723, on Glanvill, xiv. 1, ed. Hall, 171-2. *® On display of wounds, see below, 723. *" A reference to an approver may appear in PR31HI, 1. See E. C. Hamil, “The king’s approvers: a chapter in the history of English criminal law’ (1936) 11 Speculum 238-58; J. Rohrkasten, Die englischen Kronzeugen 1130-1330 (Berlin, 1990).

*? See below, 393. It is not entirely clear whether WI/ Art, 8-8a, shows the frankpledge making communal accusation, or being responsible for catching and bringing to court those otherwise accused; the former is probably the simpler reading. On murder and the hundred, see Hurnard, ‘Jury of presentment’, 385-90. ** See R. C. van Caenegem, ‘Public prosecution of crime in twelfth-century England’, in his Legal History: a European Perspective (London, 1991), 1-36, at 12-20. ** See R. Stewart-Brown, The Serjeants of the Peace in Medieval England and Wales (Manchester,

1936). Stewart-Brown, Serjeants of the Peace, 65, noted that he had not established whether such serjeants existed in Yorkshire, a non-frankpledge area. See below, 507-8, for serjeants’ duties. *° See above, 306. In 1198 a certain Roger Malarteis held two carucates in Cambridgeshire through the serjeanty of keeping watch around the king; Book of Fees, i. 9. *° See e.g. LHP, 48. la, 52.1, ed. Downer, 158, 168.

13 PROCEDURE 309 crimes.” Another appears under the heading ‘Concerning impleading by a royal judge [judex fiscalis]’, and refers to such a man impleading someone ‘without any accuser.** A writ of Henry I for Tewkesbury concerning assarts (former forest newly brought under cultivation) laid down that the abbey’s men were not to be impleaded by any of the king’s pleaders [placitatores].*® Overall, however, the form of accusation known as ‘appeal’, brought by the aggrieved party, seems to have been predominant.

Royal writs At various stages of a dispute, one or indeed both parties might bring royal writs in support of their case. Most of those preserved concern disputes over land or other immovable rights, but, as we saw in the Charwelton case, writs might also mention other matters. Parties obtained writs, a process that involved effort and expendi-

ture, in order to strengthen their position in a dispute. It may be that bringing a suitably phrased writ placed the onus on the opponent to show why the claim was not valid, rather than leaving the person who had obtained the writ to show why the status quo should be changed. In other instances, the very indication of royal support that a writ provided may have led the opponent to concede, although we know of other cases where the response was to obtain a contradictory writ.*° In the course of the Norman and Angevin period writs grew more precise in outlining procedures. Many early writs simply instruct that an action be carried out. Then increasing numbers include the specification that the action should be taken justly. By the Angevin period, many include full instructions as to how the case is to be heard. This change in the content of writs has sometimes been taken to indicate a shift from the king acting by simple executive order to routinised legal proceedings.” However, even the apparently executive orders and certainly those writs that include the words such ‘justly [juste]’ or ‘through justice [per rectum], could set in motion court proceedings rather than immediate executive action: When his father Autin [of Huntingdon] was already dead, Baldwin, moved by avarice, sought by royal writ to be reseised. But since in the king’s writ it was con-

tained that he should be reseised through justice, the aforesaid abbot offered *” LHP, 66. 9, ed. Downer, 212; the procedure here seems to be distinguished from that in an appeal, as mentioned in LHP, 66. 8, ed. Downer, 212. *® LHP, 63.1, ed. Downer, 200; ifhe had not been caught in the act, the accused might clear himself

with just two supporting oaths. See also van Caenegem, “Public prosecution’, 14-15, on procedure in London. *° RRAN, ii. no. 853. °° See Royal Writs, 241-3. ** Such is a core argument of Royal Writs.

310 PART II: ANGLO-NORMAN ENGLAND this Baldwin just judgment, either in his own court or in the court of the bishop of Lincoln himself, who had terminated the case before, when Baldwin’s father Autin was still alive.”

3 ENSURING ATTENDANCE Some initial accusations may have been made in courts where the accused was actually present. Otherwise he had to be summoned. The Leges Henrici refer to summons at a person’s house before witnesses. The summons may perhaps have been made by the accuser, or by an official; certainly by the end of the twelfth century sheriffs had subordinates responsible for summoning parties to court.‘ It may have had to include a statement of the charge or claim being brought.> The Leges Henrici also specify how long the summoned was allowed before appearing in court, depending on how far away he was; presumably the aim was to get the accused to appear at the first meeting of the relevant court unless that was practically impossible2°

Once a man had been summoned, it had to be ensured that he actually appeared in court.” The impleaded might be required to give a physical gage for attendance. The Leges Henrici state that if anyone is impleaded on one of the king’s own pleas by his justice, whosesoever man he may be, he must not refuse to give to the justice a gage concerning doing right [vadium recti]. If he has not been summoned beforehand, and it is not for that particular matter that he has appeared, he must in accordance with the judgment give to the justice a gage concerning doing right, and also find pledges if there is need.**

Use of people as pledges remained very important. The Leis Willelme state that the custom in the province of Mercia is that if anyone, who is appealed of theft [larrecin] or of robbery, is under pledge to come to justice, and he flees in the °? Lawsuits, no. 233B. See also e.g. Lawsuits, nos 226, 272. Note the comments of R. C. Palmer, The County Courts of Medieval England, 1150-1350 (Princeton, 1982), 187-9. °° LHP, 41. 2, ed. Downer, 146. ** Morris, Sheriff, 190.

°° For the obligation that the person answering be informed of the claim or change, although not explicit association of this with summons, see LHP, 46. 2, ed. Downer, 156, and note Lawsuits, no. 134 (p. 97, statement by Roger Bigod). °° LHP, 41. 2a, ed. Downer, 146. °” Note P. A. Brand, The Origins of the English Legal Profession (Oxford, 1992), 12-13, on the lack

of evidence for widespread use of attorneys in Anglo-Norman England. °° LHP, 52.1, 1a, ed. Downer, 168; see also 52. Ic.

13 PROCEDURE 311 meantime, his pledge shall have a set time of a month and a day to seek him; and if he can find him within the set time, he shall bring him to justice, and if he cannot

find him he shall swear as the twelfth hand that, at the time when he took him under pledge, he did not know him to be a thief, and that he did not aid his flight, and that he cannot have him-®

As in the Anglo-Saxon period, responsibility sometimes rested on the members of the accused’s frankpledge tithing or his lord, but on other occasions a person or persons may have been specially appointed.*° In addition, physical restraint, through chains or imprisonment, could be used.” A church might turn to excommunication to force an opponent into court.” More widely, particularly in cases concerning services, pressure to appear was exerted through distraint. This involved the removal of goods or land in order to get an allegedly recalcitrant party either to perform the disputed services or to answer in court.* There are signs of concern about judgments being made in absentia or by default. In his Life and Miracles of St William of Norwich, Thomas of Monmouth had the priest Godwin include in his accusation of William's murder in 1144, levelled against the Jews of Norwich, the following statement: ‘since it is not seemly that a just judge should pronounce upon those who are absent and unheard, let the Jews be summoned and heard on the morrow.** However, providing opportunity to answer charges was not intended to facilitate persistent absence. If, after the due number of proper summonses, the person summoned failed to attend, he might be deemed to have lost the case.** Domesday Book records that Ralph Pinel claimed that a third part of an estate at Falkenham, Suffolk, was delivered to him, and he offered

°° Leis WI, 3. *° See e.g. Lawsuits, no. 209; LHP, 53. 2, 6, ed. Downer, 170.

“ See below, 515 n. 114, for the 1166 provision for building of gaols where ones did not already exist; at least some of the existing gaols would probably go back to the Anglo-Norman period, and have been used for the retention of those accused. ** See above, 7. Note also Council at Westminster 1076, 5, Councils and Synods, I, no. 93, for

excommunication of an accused layman, who was unwilling to obey his bishop and three times failed to respond to summons. ** See below, 341-4. See also LHP, 51, ed. Downer, 166-8, for the sheriff distraining, presumably to ensure appearance at the county. See also e.g. LHP, 29. 2, 2a, ed. Downer, 130-2, on the hundred.

“* Lawsuits, no. 321 (p. 270). The view was probably widespread and appears in vernacular literature; see e.g. Béroul’s Tristan, ll. 885-7. *° See esp. LHP, 29. 3a, 59. la, ed. Downer, 132, 180; also LHP, 49. 3, 50. 1-3, 53. la, ed. Downer, 162,

164, 168. Note also expression of the belief that the accused should be informed of the charges that he was expected to answer; e.g. Lawsuits, no. 134 (p. 97).

312 PART II: ANGLO-NORMAN ENGLAND the testimony of the hundred that he himself was first seised of it. But whether he had been seised on behalf of the king or not, they do not know. They also say that Ranulf [brother of Ilger and holder of another part of the estate] claimed that land against Ralph; and Roger the sheriff named to them a set time so that they should both be present. When Ranulf arrived Ralph was not there and therefore the men of the hundred judged that Ranulf be seised. Now he holds but Ralph Pinel denies that he was summoned regarding that plea.*°

The accuser’s unexcused absence, too, would lead to his loss of the case. The Leges

Henrici state that ‘if a lord makes a complaint concerning his man in respect of matters that pertain to royal power, and a day of pleading concerning this is set, if the lord does not come his man is quit.” Concern about such absence ties in with accusers having to swear or give surety that they would actually pursue their cases.*

Essoins

The summoned party might make various essoins, that is, excuses, for nonappearance at court.*? The Leges Henrici mention as justified excuses illness, being on the king’s military service, being impleaded by the king, lawful detention by

the king's justice, performing necessary service to ones lord, and adjournment [contramandatio] or recess [inoperatio].*° A document from the abbey of Burton mentions illness or service to a liege lord as permissible essoins.** How regularly, and how honestly, essoins were used is uncertain. It is possible that their monitoring formed a significant part of a court's business, as it certainly did by

the end of the twelfth century.” Practices concerning essoins may have varied between courts, as we have later evidence for local custom.* The Leges Henrici also include lengthy guidelines on the deferment of pleas,

and the informing of the parties concerning such a deferment. Within these guidelines, they state that some cases ought not to be postponed, and also that the parties might make agreements that superseded the law relating to deferment.* *° DB, ii. fo. 424r. *” LHP, 61.5, ed. Downer, 194. *® See above, 308.

* Note also DB, ii. fo. 449r. °° LHP, 59. la, 59. 4, 61. 6, 61. 7, ed. Downer, 180, 182, 194.

>" Geoffrey of Burton, Modwenna, ed. Bartlett, li-ii (no. 9). >? See below, 588-91. °° See below, 517-18, 588.

>* LHP, 59-60, ed. Downer, 180-92.

13 PROCEDURE 313 Formal accusation and denial Once both parties were in court, the accusation or claim had to be repeated in a formal fashion. This might involve various elements, such as recounting the claim or accusation, displaying any relevant wound, producing suit, that is witnesses prepared to offer proof on the claimant's part, and swearing an oath. The Leges Henrici state that ‘every accusation shall proceed by way of a fore-oath, either simple or in strict form [plano vel observato], performed once only or more often, as is the custom of the particular place.® Accusation

was followed by denial, the passage of the Leges Henrici continuing ‘and [the accused shall clear himself by oath just as] the accuser has done first, in accordance with the importance of the matter and the nature of the case. According to the Leges Henrici, the denial should be immediate regarding serious offences, such as theft, murder, and robbery: ‘no-one shall seek counsel

unless, on being impleaded, he immediately denies the charge without any request for counsel at that stage, whatever his birth or status.*° In some other cases, the Leges Henrici go on to say, no immediate response was necessary.” Unfortunately case material is very scarce, particularly with regard to offences against the person or involving movable property. In the land case with which this chapter opened, the tenant's response to the claimant was that ‘he could in no wise have it [the land] because he had no right in it.** However, this is not presented as direct speech, and it is not clear if it summarises more than one stage of pleading, for example a formal denial followed by a more elaborate

explanation. As in the Anglo-Saxon period, mistakes in formal elements of accusation and denial were very serious, but probably resulted in amercement or in transfer of the hearing rather than in complete loss of the case. Such transfers, under the name miskenning, were said in the Leges Henrici to be particularly prevalent in the London courts.

°° LHP, 64.1, ed. Downer, 202. On ‘plano vel observato’, see below, 324; the former appear not to have required absolute observance of set wording, the latter to have required it. Note also LHP, 46. 2a, ed. Downer, 156, on the accused being silent when the accusations are being made. °° LHP, 47.1, ed. Downer, 156-8. °” LHP, 49, ed. Downer, 160-2. °® See above, 304; Lawsuits, no. 187A.

°° LHP, 22.1, ed. Downer, 124; the meaning of miskenning in the charter in Henry I’s name for London and in Stephen’s 1136 charter, may not necessarily be the same; RRAN, ii. no. 1645, iii. no. 271. See also Borough Customs, ed. Bateson, ii. cxlix-clii, 1-4.

314 PART II: ANGLO-NORMAN ENGLAND

4 FURTHER PLEADING AND ARGUMENT Following formal claim and denial, there appears to have been room, at least in some cases, for the taking of advice®° and the bringing of further pleas and arguments, probably in less formal fashion.” The Canterbury writer Eadmer recounted a case involving his church and Odo, bishop of Bayeux and earl of Kent. When the time came for airing cases, all who had gathered from every direction to defend the interests of the church were so defeated at the first session that they lost what they sought to defend. For Lanfranc was not himself there. He was not accustomed to be present at such matters, unless there was most urgent need. What had happened was accordingly reported to him as he was occupied in lectio divina in a room. Notat all perturbed, he declared that the opponents’ arguments had not been properly formulated and accordingly he ordered that the whole matter be deferred for discussion on the following day.

That night he had a vision of St Dunstan, who told him to intervene in person. This he did; and, opening his case with an introductory statement which to the surprise

of all seemed far from the matters already treated or to be treated, he proceeded in such a way that he overcame the statements made against him on the previous day and showed them to be without substance, so that thenceforth for the rest of his life on earth no-one would stand up and say a word to oppose him concerning this.”

Some cases suggest that very general arguments or comments might be used to discredit an opponent, as in Bricstan’s case.®? One suspects that proceedings could be rowdy, but elsewhere one can find an emphasis on eloquence.** How far formal training for clerics in principles of rhetoric affected their speeches in court is unclear. One account of a case between the bishop of Thetford and the abbey of Bury St Edmunds stated regarding ‘the archbishops with the bishops and also the abbots and their followers learned in judicial matters’ that they all have one desire, that is to take the Ciceronian paths of rhetoric and going beyond two types of this art, the demonstrative and the deliberative, they set their °° Note e.g. LHP, 46. 4-6, 47, 48, ed. Downer, 156-60, concerning the accused taking counsel. LHP, 46. 2, ed. Downer, 156, state that someone impleaded was to be told the pleas, and answer what he wished concerning this within seven days. °! The fullest accounts of pleading, incorporating direct speech, are in highly untypical cases, such as those of William of St Calais and St William of Norwich; Lawsuits, nos 134, 321. It is also uncertain how far these accounts represent the reality of the proceedings, how far they are the imaginative product of the author. °? Lawsuits, no. 135. °° See above, 306. °* See below, 316-17.

13 PROCEDURE 315 feet on the third, called the judicial. In this type, supported by mother rhetoric, they adopted the technique of controversy called ‘from authority, commemorating how dear the abbey of the martyr was to God and to those kings whose authority ought to be the greatest, and why so great a martyr and his monastery should enjoy so great a liberty.®

However, even here in a case on an ecclesiastical matter between important churches, we cannot be certain that references to or application of learned rhetoric accurately reflect pleading rather than illustrating authorial beliefs as to how cases should be argued. Accounts of cases may suggest simpler presentation of argument in court. A claimant might tell a suitable story of past events, a defendant present facts to counter the claims. Take the following dispute between the bishop of Norwich and the monks of Thetford in 1107 x 1108: The monks made a claim concerning the aforesaid bishop, that he had buried the body of Roger Bigod at Norwich, but they maintained that Roger Bigod had given himself and his wife and sons to the monastery of Thetford. The bishop replied, with the testimony of many of his flock, that Roger Bigod had given himself with his wife and sons and barons to the church of Norwich before the monks came to Thetford.®°

There may often have been a normative underpinning to such pleas. In this case the bishop may not have been accusing the monks of simple falsehood. Rather he was insisting that Roger's first gift should over-ride any subsequent arrangement with Thetford. The form of argument might be described as the presentation of a legally charged fact.” The arguments do not appear in the sources as syllogisms, as modern legal reasoning sometimes does: rule, instance, claim. The apparent absence of the latter type of argument could be the product of the sources, which are not interested in stating abstract rules. However, very occasionally abstract norms are indeed cited in accounts of disputes. Meanwhile, other texts, such as Henry I's coronation decree, show a capacity for thinking and speaking in terms of abstract norms. In general, though, circumstance may not have required explicit division between norm and fact, even when a case turned on more than a simple issue of factual truth.®

°° Lawsuits, no. 9. LHP, 4, ed. Downer, 82, draws on Isidore of Seville’s Etymologies to make similar distinctions between types of argument; see also Quadripartitus, Ded., 29-31, trans. Sharpe, ‘Prefaces’, 160-1. See further M. Miinster-Swendsen, ‘Setting things straight: law, justice and ethics in the Orationes of Lawrence of Durham’ (2005) 27 ANS 151-68. °° Lawsuits, no. 180. See also e.g. Lawsuits, no. 223.

°” See Hudson, “Court cases and legal arguments’, 104, with references to Domesday Book; also e.g. Lawsuits, no. 226, discussed in Hudson, ‘Court cases and legal arguments’, 100-2. °° See Hudson, ‘Court cases and legal arguments’, 97; also above, 77-8.

316 PART II: ANGLO-NORMAN ENGLAND Warranty and exceptions Rather than a simple, formal denial, in certain circumstances a more specific response might be given. The person facing a claim that he had what rightly

belonged to the claimant might explain how he came by it, commonly by vouching as his warrantor the person from whom he had in proper fashion received the disputed possession.°? In such and other types of case, the person facing claim or accusation might also be able to plead an ‘exception’; that is, rather than give a simple, formal denial,

he might provide a reason either concerned with procedure or with substance as to why he need not make a formal defence to the accusation or claim. For example, he might answer that the accuser had lost his law-worthiness, or that the charge was not of a type that he need answer since he had not been seized on the spot.” The pleading of exceptions would develop markedly in the Angevin period.”

Legal learning and other forms of support in court

Such evidence supports a view that the role of abstract legal learning was restricted, save in some exceptional cases involving churchmen. References to experience or learning in the laws can often be taken to refer to factual knowledge as to which court should hear particular cases, or who should receive penalties arising from particular offences, or the amount of those penalties. It was probably for his knowledge in these matters, and perhaps from an ability to explain English legal terminology to the new conquerors, that /Ethelric, former bishop of Chichester—‘a very old man and most wise concerning the laws of the land’ —was brought to the trial at Penenden Heath.” Much of the advice given to litigants need not have been of a specialised nature or from those with any specialist legal knowledge.” It is unclear how far skilled pleaders could be used to argue on behalf of a party. The use of pleaders may have been limited to certain stages of the case, and

°° Note also Lawsuits, no. 323, for letters of support; and e.g. Lawsuits, nos 90, 92, 114, 115, for rele-

vant Domesday references. Warranty was one specific form of support in court; for more general forms, see above, ch. 1. ”° LHP, 45. 4,5, ed. Downer, 154. ™ See below, 593, 617-18.

” Lawsuits, no. 5B. See further J. G. H. Hudson, ‘From the Leges to Glanvill: legal expertise and legal reasoning’, in English Law before Magna Carta, ed. Jurasinski et al., 221-49, at 223-30. ”* For a woman receiving counsel, see Lawsuits, no. 294.

13 PROCEDURE 317 perhaps to the defendant.“ A church might rely on particularly knowledgeable monks to plead its cases. We hear that the first Norman abbot of Abingdon was helped greatly by two monks of this church, who were indeed brothers, the older called Sacol, the younger Godric; with these also was Alfwig, then the priest in charge of the church of the neighbouring royal village of Sutton. These men were so eloquent concerning matters of this world and remembered past events so well that others, on every side, easily approved a judgment they pronounced as correct. In addition, at that time many other English pleaders were retained in the abbey, whose arguments no wise man opposed. With these men protecting the public affairs of the church, its opponents became tongue-tied.”

Again such men’s power seems to have rested on eloquence and memory as opposed to any specialist knowledge regarding abstract rules of substantive law. Rather than the support of legal experts, most desirable appears to have been

that of powerful men. The Abingdon History records that Modbert, guardian of the church during a vacancy, ‘entrusted three hides at Hanney to Hugh of Buckland on the...consideration that he was appointed by the king sheriff of Berkshire and justice of public accusations.”* St Augustine’s, Canterbury, made a grant of three plots of land to Hamo the king's steward, so that in any pleas in the county or the king's court he would counsel, help, and succour the monastery against any baron, save Hamoss own lords.”” More generally, the Leges Henrici state that it was the duty of every lord, whether or not he had sake and soke, to maintain his man, so that the latter suffer no loss.”

5 MESNE JUDGMENT Such argument might bring an end to proceedings, with one party yielding or a compromise being reached. Sometimes—with or without such further argument—decisive proof may have been produced, the accused have confessed, guilt have been considered manifest, or the truth of the case a matter of common ” See Brand, Legal Profession, 10-12; LHP, 46. 5-6, ed. Downer, 156.

” Lawsuits, no. 4. Note also Eadmer, The Life of Anselm, ii. 9, ed. and trans. R. W. Southern (Oxford, 1962), 74, on a man who had left the secular life and become a monk; his abbot ordered him to look after the secular affairs of the church, but he feared that his pursuit of victory in lawsuits meant that he was sinfully occupied in the matters that he had abandoned. ’° Historia ecclesie Abbendonensis, ii. 54, ed. Hudson, ii. 62. ’” ‘The Register of St. Augustine’s Abbey, Canterbury, ed. G. J. Turner and H. E. Salter (2 vols; 2, 3 British Academy Records of the Social and Economic History of England and Wales, 1915, 1924), ii. 462. See also e.g. Lawsuits, no. 206. ’® LHP, 57. 8, ed. Downer, 178; see also LHP, 61. 14, 16, 17, ed. Downer, 198.

318 PART II: ANGLO-NORMAN ENGLAND knowledge? Another Thorney case involved the abbot seeking to retrieve land wrongly given to a certain Robert of Yaxley. The Thorney account tells that Robert abandoned his claim, ‘seeing that he could in no wise demonstrate these things, for all the neighbours and men of the area knew that on the day on which Sibson was given him it was in the demesne of this church and that he never had the grant of the chapter nor had the king confirmed it’.*° Often, however, a mesne judgment was made as to which party should produce proof and as to the time and place where that proof should be made.” The mesne judgment could be made by the suitors of the court, as in the case of Robert of Staverton, where the court of Thorney demanded that Robert produce charter or witnesses to prove his claim. The abbot of Thorney set the time when he was to appear with such proof.” Alternatively, the task could be allocated to a sub-group of suitors, as in a dispute between the church of Bath and a certain Modbert, where the bishop entrusted the decision to ‘those amongst you whom we know to be neither advocates nor supporters of the parties: This process, which was to involve diligent study of the case, was duly carried out by those who were older, or perhaps senior in status [majores natu], and those who were ‘more experienced in the law.®

6 PROOF Following mesne judgment, further security might be taken from either or both parties that they appear at the time of final judgment, when proof must be made. Some of the forms of proof might resemble the methods used by parties to support their case earlier in proceedings. The distinction is that the method of final proof was normally specified by the court. Witnesses As in the Anglo-Saxon period, witnesses were an important form of proof. The Leges Henrici state that ‘whoever has witnesses to name, shall name them’,** whilst the text known as the Leis Willelme lays down that ‘if a man wishes to deraign an ” See above, 81, for physical evidence in the Fonthill case. °° Lawsuits, no. 272A. ** Another form of interim judgment might be that a disseised party should be restored to seisin, before a plea progressed; see LHP, 53. 3, 5, ed. Downer, 170. ** See above, 304. °° Lawsuits, no. 226. °* LHP, 49. 3c, ed. Downer, 162. Note also LHP, 48. 9, ed. Downer, 160. Although the Leges Henrici

state that ‘no-one is to be convicted concerning capital pleas by testimony’, this seems to mean that

13 PROCEDURE 319 agreement concerning land against his lord, he must deraign it through his peers of the same tenure whom he calls to testimony, for he cannot deraign it by strangers. Interestingly, the Leges Henrici seem to make a distinction between procedure regarding inheritance and acquisition in land cases: ‘concerning an addition to the fee, a witness ought to be had of that lordship. ... Concerning the original fee [primo feudo] any free men are to be had, or if they cannot be, others.*° Accounts of disputes also show the use of witnesses. Domesday Book records

that “William de Percy calls his peers as witness that when William Malet was living and holding the shrievalty of Yorkshire, he himself was seised of Bolton [Percy] and held it.” On occasion, the acceptance of proof by witnesses might involve negotiation or conflict. Regarding a case between Christ Church Canterbury and the abbey of Barking, a letter of the archbishop of Canterbury to the clerics, laymen, barons, and good men of London tells us that finally the abbess came into our presence at Lambeth and granted to us that on the appointed day and time, if we had lawful witnesses from the city of London who were willing to declare truthfully that our church was ever seised of the land in dispute, after their proof she would seise our church of it so as to bring to an end this endless labour. At the appointed time your men came fortified with witnesses who were ready to offer proof, as I and the abbess had prepared. Your men offered witnesses whom the abbess

refused to accept; as was not unusual with her, she changed her mind, maintaining that she had not understood it thus but otherwise. Your people refused to do anything other than what had been decided and left without accomplishing anything.

The archbishop begged the addressees that on the day at last appointed for judgment they give just judgment according to their consciences, and he reminded them of the abbess’s earlier duplicity.*®

On occasion one man might be selected to represent a church to swear an oath or pledge his faith on a point of fact.*° Thus when a dispute arose in the county court of Berkshire concerning Abingdon Abbey's geld obligation, the case was brought before royal justices, and it was decided that someone from the church should pledge his faith in the aforesaid county court regarding the number of demesne hides of which the church should

even if there were witnesses, the accused was still to be allowed some chance to answer the charge; LHP, 31.5, 48. 4, ed. Downer, 134, 160. See also LHP, 48. 2a, ed. Downer, 158.

°° Leis WI, 23. °° LHP, 48. 10-11, ed. Downer, 160.

*” DB, i. fo. 374r. For proof involving witnesses, see also Lawsuits, no. 12; Historia ecclesie Abbendonensis, ii. 27, ed. Hudson, ii. 28. °° Lawsuits, no. 289. °°? Pledge of faith did not involve swearing on a relic or book, and used no specific words of imprecation.

320 PART II: ANGLO-NORMAN ENGLAND be quit [ie. the number of hides for which the church was exempt from paying geld]. Therefore, when the county court was meeting at Sutton, with William of Buckland present as sheriff, on the Monday after the feast of St Martin, Roger of Hardwell, a man of the church, pledged his faith in the hand of the sheriff on behalf of the church, with the whole county court looking on, that in Berkshire the abbey ought to be quit from 140 hides when geld was taken.

Documents and record Documentary proof was used in disputes over land and other rights, as we saw at the start of the chapter in the Charwelton case.” The mesne judgment in the case between Bath Priory and Modbert required that the latter ‘prove irrefutably what he has just claimed in assertion of his case by at least two free and lawful witnesses from the familiars of the church, who shall be named today and produced in a week, or by a credibly signed chirograph.” A dispute over the possible subjection of the Abingdon manor of Lewknor to the hundred of Pyrton was settled before the queen and royal justices in the treasury at Winchester through reference to Domesday Book or a Domesdayrelated text.» However, a document need not be unchallenged as proof; there was the possibility of forgery or, for example, of transfer of land subsequent to the conveyance recorded in the document. Testimony and oral memory might be preferred to written record.**

Likewise, formal attestation of previous court proceedings was likely to be oral. Its weight as proof varied. The Leges Henrici tell us that ‘no-one may deny the record of the king’s court. It is permitted to deny others, through men credible regarding the case.’

Enquiries Other cases were decided by enquiry made by a specified number of local men,

ordered by a higher authority or by the court or president of the court. There seems to be no universal set number of men used to swear, but the numbers

°° Lawsuits, no. 215, a narrative from the Abingdon History. “" See above, 304. *? Lawsuits, no. 226, above, 318. On chirographs, see below, 875. °° Lawsuits, no. 189.

°* See esp. M. T. Clanchy, From Memory to Written Record (2nd edn, Oxford, 1993), 260-3, 295-8. °° LHP, 31. 4, ed. Downer, 134; see also LHP, 49. 4, ed. Downer, 162.

13 PROCEDURE 321 generally have a duodecimal basis.°° Most of our evidence for this practice comes from royal writs ordering, for example, that a matter be ‘recognised’ by lawful men; such formal enquiries on oath therefore came to be referred to as recogni-

tions. A case from Henry I's reign is illuminating on the form that procedure might take. A royal writ ordered the archbishop of Canterbury, the abbot of St Augustine’s, and the sheriff of Kent to ‘make to be recognised by the oath of twelve lawful men of Dover and of twelve lawful men of the area of Sandwich, who are not men of the archbishop nor men of the abbot, the truth concerning the claim regarding customs which is between them:” According to one account of the case, ‘twenty-four wise old men of many years having good testimony were chosen, and ‘these, therefore, having been named by the whole assembly, were asked what they would say on this matter, so that they could say what they knew

to be true and could prove on oath. They decided in favour of Christ Church ‘without hesitation, and then ‘to these things the great multitude bore witness. A text of the holy Gospels was brought to them and the twelve king’s men of Dover swore, and then the men of the area around Sandwich. The names show the great majority of those swearing to be of Anglo-Saxon or Anglo-Scandinavian origin. The account goes on to state that the first of these was Wulfwine son of Beornwig. Standing in the midst of the multitude and holding in his hands the book of the sacred Gospels he spoke thus: ‘I swear that the toll of the port of Sandwich, all maritime customs on either side of the river from Burgegate to Merkesfliete and the ferry-boat, belong only to the archbishop and the monks of Christ Church, Canterbury. Nor has any other person any right there except them and their ministers, as I have learnt from my ancestors and heard from my youth up to now, so help me God and these holy Gospels: Those who had been chosen as his fellows followed him without delay.”

Recognitions were also used in land cases. A dispute in 1122 between the monks of St Etienne, Caen, and the king’s tenants in Bridport (Dorset) was heard before

seven hundreds, presumably a specially convened court, under the presidency of the sheriff. Oaths were sworn according to the king’s command. Sixteen men, three from Bridport and three from Burton Bradstock [to which pertained the disputed land] and ten neighbours swore that they would make a truthful affirmation in the inquisition concerning that land. After enquiring whose it ought more rightly to be, they °° See Lawsuits, no. 219, for the oath of eighteen men. °” Lawsuits, no. 254A. Note also e.g. William son of Henry I instructing the sheriff of Kent that he ‘make to be recognised by men of the hundred of Milton what customs the abbot of St Augustine’s ought to have in the vill of Newington and what he once had’; Lawsuits, no. 213. °® For recognitions on rights, see also e.g. Lawsuits, nos 278, 288.

322 PART II: ANGLO-NORMAN ENGLAND confirmed by the faith of an oath that the land of old pertained to Burton Bradstock and that he who had Burton Bradstock should have that land. Everyone agreed with

their assertion and by God’s grace and the merits of St Stephen adjudged to the plaintiffs their rights and that the land be restored to Burton and handed over to the monks there and then.

Again, most of those swearing had English names, showing the importance of those of English birth as repositories of local knowledge even half a century after

the Conquest.” Not all recognitions or enquiries were by royal order. In the early 1140s Geoffrey de Mandeville, earl of Essex, ordered Aelard de Guerris to ‘make to be recognised by the neighbourhood and honest men of that area’ whether five acres of land belonged to the canons of St Martin, London.'”° This case might be seen as exceptional, taking place in the reign of Stephen and being ordered by the earl in his position as royal justice. However, it may well be that references such as to an enquiry [inquisitio] that the abbot of Abingdon made as to the extent of one of his tenant’s holdings refers to a similarly formal procedure in the time of Henry I.’” Widespread use of such procedures would be unsurprising: enquiries and related oaths were used well beyond England to settle disputes.’

Oaths The remaining key forms of proof were oaths and ordeals, and these were the subject of legislation in William I’s reign.’? The aim was to deal with conflicts of practice between conquerors and conquered in cases involving serious offences against the person or movable property. If an Englishman accuses a Frenchman to battle [ornest] concerning theft or homicide or any matter concerning which there should be battle or judgment [dém] between two men, let him have full permission to do this. And if the Englishman refuses that battle, the Frenchman whom the Englishman accuses is to clear himself

°° Lawsuits, no. 232. *°° Lawsuits, no. 309. Note also e.g. Lawsuits, no. 314. *°! Lawsuits, no. 208.

°* S. M. G. Reynolds, Kingdoms and Communities in Western Europe, 900-1300 (2nd edn, Oxford, 1997), ch. 1.

"> Acta of William I, no. 130; cf. the partial summary in WI art, 6. The fact that the legislation was issued in Old English suggests that it comes from the period up to the mid-1070s. See also G. S. Garnett, '“Franci et Angli”: the legal distinctions between peoples after the Conquest’ (1986) 8 ANS 109-37, at 130-3. The word ornest in the Old English text as preserved in the Textus Roffensis may be a repeated

scribal error, or accurate copying of a repeated error in the exemplar, for orrest, an Old Norse loan word; cf. the use of orrest for trial by battle in ASC, 1096.

13 PROCEDURE 323 with an oath against him, with his witnesses [i.e., presumably, compurgators] according to Norman law.'” Also, if a Frenchman accuses an Englishman to battle concerning these same matters, the Englishman shall have full permission to defend himself by battle or by iron, if that is more pleasing to him. And if he is infirm, and will not or cannot do battle, let him find himself a lawful representative. And if the Frenchman is defeated, let him give the king £3. And if the Englishman will not defend himself by battle or by witnesses, he is to clear himself by iron.’ And concerning all matters of outlawry, the king has decreed that the Englishman is to clear himself by iron. And if the Englishman accuses a Frenchman concerning matters of outlawry, and wishes to prove it against him, the Frenchman is to defend himself by battle. And if the Englishman dares not accuse him to battle, the Frenchman is to defend himself by unbroken [unforedan] oath.’

The Frenchman thus was allowed battle or oath, the Englishman battle or iron; given the association of ordeal with distrust, the legislation thus favours the Frenchman. However, it is difficult to tell how fully, or for how long, such procedural distinctions between conquerors and conquered remained in force. Unfortunately much of our evidence on oaths rests on the Leges, with the possibility that they are presenting past practice as if still applicable.” Nevertheless, they may well give some indication of contemporary practice. According to the Leges Henrici, ‘when a person must swear alone, when with several people, depends always on the case and on the person, according to their lawfulness and the level [modum] of the parties in every order and according to the value of the property and the fine [juxta pretium capitalis et wite] °° Again as in the Anglo-Saxon period, oath-helpers might sometimes be chosen by the party swearing, sometimes by the court hearing the case.’? The Leges Henrici specify a threefold oath in serious cases where the accused was impleaded by the sheriff or a royal justice:

On the appropriate day he shall produce thirty oath-helpers, none of whom is challengeable in any respect, and with fifteen of these, whom the justice has cho-

sen, he shall swear an oath (being himself the sixteenth) as the case requires. In Mercia thirty-five oath-helpers are to be produced in a threefold oath of *°* Cf. Goebel, Felony, 410-12., "°°? Note the comments of Garnett, ‘Franci et Angli’, 132-3.

*°° “Unbroken oath’ appears to be synonymous with simple oath, i.e. one that did not require verbally precise execution. "°” Note also LHP, 92. 14, ed. Downer, 290: ‘Homicide shall be denied by an oath of exculpation equal in value to the wergeld [homicidium werelada pernegetur]: See also above, 81-4, on Anglo-Saxon practice.

"°® LHP, 64. 7, ed. Downer, 206. See also LHP, 67. 2, ed. Downer, 214: ‘in cases of everyday occurrence, a party shall swear with his own oath against his equal, a person of lesser rank against one of higher with the oath of either one or two others, against his lord with two or five others.’ *°” See LHP, 31. 8, 8a, ed. Downer, 134.

324 PART II: ANGLO-NORMAN ENGLAND exculpation, in the Danelaw forty-eight chosen, and those who are to swear the oath are to be determined by lot rather than choice."°

The nomination of oath-helpers might result from the poor standing of the accused. The Leis Willelme state that a man accused of theft, who had also been accused in the past, had to have eleven compurgators from fourteen nominated

for him; otherwise he was to go to ordeal. In contrast, a free man who could produce witnesses for his lawfulness was to clear himself by ‘simple’ oath.” Oath-helping might also be a task for members of the party's tithing.”* Whilst most of our evidence comes from the Leges, other sources too mention the practice, as when the Domesday entry for Archenfield, Herefordshire, states that

if a man was accused of having set a house on fire, he was to defend himself through forty men.” We have seen that William [’s legislation concerning proof mentions an ‘unbroken’ oath. The meaning of this adjective, and related ones such as ‘simple [planum]’,, ‘breaking’ or ‘broken’, and ‘observing’ and ‘observed’, is not entirely clear. However, it seems probable that the ‘simple’ oath did not need to be sworn in exact wording if it was to be valid; the ‘breaking’ oath had to be sworn to a

precise form." William I's legislation was concerned with serious offences against the person or movable property, but oaths were used in other circumstances too. Take a case between Thorney Abbey and a certain Ralph son of Segbold of Lowick. According to the Thorney account, Ralph unjustly and without reason occupied one plot of land where the orchard of our smith was, who lived in the said vill [of Lowick], and proclaimed openly that it should be his. After we had gathered there often because of this wrong and had pleaded against him in the presence of many, we finally obtained that he should swear an oath, wherefore we once and for all brought forward our relics on which he should have sworn with six others...."

In this case the six other men seem to have sworn as to their trust in the party and

his oath, rather than directly as to the correct position regarding the disputed

‘'° LHP, 66. 9-10, ed. Downer, 212.

‘™ Leis WI, 14-14. 2 (following Liebermann’s reading of ‘simple’ rather than ‘full’); on oath-helpers being nominated, see also above, 81. ‘™* See e.g. LHP, 64. 1g, ed. Downer, 204; Cons Cn, IT 19. 2c. "tS DB, i. fo. 179r.

*™* See esp. LHP, 18, 64, ed. Downer, 120, 202-6, and Downer’s comments at 321. Note also the simplex oath mentioned e.g. at LHP, 64. 9, ed. Downer, 206; it is contrasted with the threefold oath, and presumably therefore the adjective is significant for the number swearing rather than the form of oath.

‘Lawsuits, no. 193.

13 PROCEDURE 325 land; the former type of oath was that of the oath-helper, the latter that of the witness or the inquest.

Unilateral ordeal Trial by water and iron continued to be used after the Norman Conquest for serious cases and particularly those involving the untrustworthy."*® William I’s writ concerning proper application of ‘episcopal laws’ emphasised ecclesiastical control of ordeals: ‘no layman shall bring any man to ordeal [judicium] without the justice of the bishop. Also, ordeal is to be borne in no place except in the episcopal see or in that place which the bishop has assigned for this.” The need

for such regulation suggests pressure from other court-holders for ordeals to take place in their courts. According to the Leges Edwardi, on that day on which an ordeal is to take place, the official of the bishop shall be present at the ordeal with his clerks and the king’s justice with the lawful men of that area, so that they shall see and hear that all things are done justly. And those whom the Lord saves through His mercy and their justice shall be quit and depart free; and those whom their own wickedness and injustice condemns, the king’s justice shall cause justice to be done concerning them. Moreover, barons who have their own courts over their own men shall see to it that they act concerning them thus that they shall not commit an offence against God and shall not displease the king. And if a plea arises in their courts concerning men of other barons, the king’s justice shall attend the plea, since it should not be concluded without him. And in the case of those barons who do not have ordeals, it must be determined at the nearest church in the hundred where the plea is held, where the king’s ordeal is held, saving the rights of those same barons."8

The emphasis here is on episcopal, and royal, supervision rather than specific episcopal assignment of the location. Ordeal by water or iron appears not to have been used for land cases after the Conquest, with the exception of offers of ordeal recorded in Domesday Book. In some of the Domesday instances battle was offered as an alternative form of proof. The claimant, male or female, or a representative, might be produced “t® See e.g. John of Worcester, s.a. 1130, ed. McGurk, iii. 190-2; Lawsuits, no. 19; above, 307, on Bricstan; on threefold ordeal, and on ordeal for the untrustworthy, see also LHP, 64. 1h, 64. 9a, ed. Downer, 204, 206, probably drawing on I Eg, 9 and II Cn, 22.1 respectively. See also above, 87, below,

749, for ordeal possibly being carried out most often to decide cases that could not be settled in any other way. For ordeal by bread and cheese and by cauldron or hot water, see above, 84-5. "7 Acta of William I, no. 128, above, 291. See above, 294-5, on Eadmer’s comments on Canterbury’s rights. ‘'® ECF, 9, ed. O’Brien, 166.

326 PART II: ANGLO-NORMAN ENGLAND to carry out the ordeal: ‘in Bittering seven acres of wood and one acre of land on which are four bordars. Godric reclaims this to the fee of Earl Ralph; and a certain woman who held it in the time of King Edward is willing to bear the ordeal [judicium|] that it has been released from gage." In almost all cases the offer of ordeal came from a disputant probably of English birth, although in some cases this cannot be certain, for example in a reference to ‘Roger Bigod’s man’.”° In other instances the offer came from a hundred or another group that had given testimony.’ However, it should also be noted that we have no evidence in Domesday of disputes actually being decided by ordeal, and the wider significance of these offers remains obscure, particularly given the lack of evidence for use of ordeal to decide land cases in England before 1066. From the Anglo-Norman period we have one famous piece of evidence for doubt concerning ordeal as a way of deciding cases. Eadmer tells us of William Rufus: he became unbelieving [incredulus| of God’s judgment, and, accusing it of injustice, asserted that God either did not know mens actions or was unwilling to weigh them in an equitable balance. Take an example. Around fifty men, who in those days seemed still blessed with some traces of wealth from the old English nobility, were seized and falsely accused of having taken, killed, and eaten the king’s deer. They denied it. Thereupon they were promptly dragged to judgment and it was adjudged that they must clear themselves of the accusation [calumniam] brought against them by trial of hot iron [examine igniti ferri]. So a day was fixed, and without scruple or mercy they were made to undergo the penalty of that prescribed judgment.

However, God preserved their hands from burning, thus demonstrating their innocence. When the king was told that on the third day after the ordeal the condemned all appeared with unburnt hands, infuriated he is said to have exclaimed “What is this? Is God a just judge? Perish the man who henceforth believes so. For the future, by this and that I swear it, answer shall be made to my judgment, not God’s, which inclines to one side or the other in answer to each man’s prayer.”

This story can be taken simply as an example of Eadmer’s blackening of Rufus’s character, showing how extreme a monster the king was.’ Certainly ‘” Lawsuits, no. 99; for a woman offering ordeal, see also Lawsuits, no. 120. See further Lawsuits, nos 95, 100-2, 104-5, 110-13, 118; DB, i. fo. 336r. ‘° Lawsuits, no. 121, DB, ii. fo. 275v.

7" Note e.g. Lawsuits, no. 31. For the hundred offering ordeal, see also nos 110, 112; it is not clear whether one individual from the hundred had to offer ordeal, and, if so, who. "*? Lawsuits, no. 150.

‘*° Bartlett, Trial by Fire and Water, 76-7; see also the comments of F. Barlow, William Rufus (London, 1983), 111-12.

13 PROCEDURE 327 there is no supporting evidence for general scepticism about the use of ordeal at this time in England. On the other hand, it is also possible to see Eadmer’s story as revealing otherwise hidden but more widespread doubts about divine judgment through ordeal. Lay doubts, or unhappiness concerning lack of human control, may be concealed by ecclesiastical praise for the outcome of ordeals; according to William of Malmesbury in his De antiquitate ecclesie Glastonie, ‘within living memory everyone undergoing trial by iron or water who has offered a prayer [at Glastonbury] has, with one exception, rejoiced in his salvation’.’*4

Trial by battle There is no evidence for trial by battle in the Anglo-Saxon period, and William I's legislation on proof supports the argument that it was a Norman innovation. Unlike the unilateral ordeals, it did not single out one party to make proof. It was used regarding serious offences against the person or movables and in land cases.’> For offences against the person or movable goods, battle was normally fought between accuser—the victim, a relative of a slain victim, or an ‘approver —

and accused. In land cases the plaintiff was to be represented by someone who witnessed the truth of his case, whilst the tenant might choose either to fight himself or have a representative.”° Although such representatives were meant to be witnesses of the justice of their party's cause, they no doubt might be chosen for their martial prowess, and there was the danger of specialist hired champions.'” The fight was preceded by ritual and oaths, but the atmosphere appears less

ecclesiastical than in the ordeals of iron or water, and priestly presence not to have been essential. The trials seem to have been fought with staves, hammers, or axes, and possibly shields, although some degenerated into wrestling bouts.”* We have very few accounts of trials by battle actually being fought in the

4 William of Malmesbury, De antiquitate ecclesie Glastonie, 18, The Early History of Glastonbury, ed. and trans. J. Scott (Woodbridge, 1981), 66. For ecclesiastical concern about ordeal, note also Ivo of Chartres, ep. 205, Patrologia Latina, clxii. cols 210-1. **° See e.g. LHP, 59. 16a, ed. Downer, 188; RRAN, ii. no. 892 (Henry I’s writ concerning courts). For its use to decide specific points that arose in cases, as well as general issues such as that of right, see below, 596-7, 601. '*° The later evidence is probably an accurate indication of Anglo-Norman practice; see below, 598-9.

‘7 A charter witness list mentions a certain Richard de Bayeux, ‘the king’s champion’; Lawsuits, no. 163D. However, he need not bea hired champion.

"8 The clearest evidence on weapons is later; see M. T. Clanchy, ‘Highway robbery and trial by battle in the Hampshire eyre of 1249’, in Medieval Legal Records edited in Memory of C. A. F. Meekings, ed. R. F. Hunnisett and J. B. Post (London, 1978), 25-61, at 33-4; Bartlett, Trial by Fire and Water, 110-11.

328 PART II: ANGLO-NORMAN ENGLAND Anglo-Norman period.” Following the rebellion of 1095, Arnulf de Hesdin was accused, presumably of treason. According to one chronicle, he ‘defended himself and won in lawful battle through one of his men against one of the king’s men, but then abandoned England and went on Crusade. Following the same rebellion, according to the Anglo-Saxon Chronicle, at a royal court at Salisbury ‘Geoftrey Baynard accused William of Eu, the king’s kinsman, that he had been party to treason against the king, and fought it out with him and overcame him in trial by battle, and when he was overcome, the king ordered his eyes to be put out and that afterwards he should be castrated: In this case it sounds as if the battle may have been between accuser and accused, although this cannot be quite certain.° We also hear of a case brought by the prior and canons of St Frideswide’s, Oxford, against a knight named Edward, who had refused to do homage and service for a hide of land at Headington. ‘The prior obtained a writ from King Stephen, and the duel was fought between the parties’ champions, who eventually ‘both sat down and, as neither dared attack the other, peace was established. Although the account is in a later document, its description of the combat and of the compromise settlement both seem plausible." A defeated party, certainly in a criminal case, would not only lose the dispute but also have to pay a penalty to the king. William I’s legislation on proof, as we have seen, states that a Frenchman defeated by an Englishman in a trial by battle was to pay the king £3, a figure also noted, although without mention of nationality, by the Leges Henrici.*? In at least some trials by battle the victor may have received the weapons of the vanquished.’ The defeated party would also be dishonoured, and might lose legal standing.*

Burgesses of at least some towns sought to avoid trial by battle. A charter for London in Henry I’s name states that none of the citizens was to perform trial by battle.’ In Newcastle, trial by battle between burgesses was reputedly limited to cases of treason in the time of Henry I.° Similar restrictions had been granted to burgesses in some Continental cities, and they would spread within England.” ‘° There are offers of duel in land cases in Domesday Book: see e.g. Lawsuits, nos 85, 105, 110, 113. "°° Lawsuits, no. 143. '** Lawsuits, no. 316. *°? Acta of William I, no. 130, above, 322-3; cf. Wl art, 6. 2; LHP, 59. 15, ed. Downer, 186; the same amount appears in Glanvill, ii. 3, ed. Hall, 25. "°° See RRAN, iii. no. 975; the victor was to present the arms of the vanquished to St Peter’s, York, and give praise to God and St Peter for his victory. *** See below, 600, on Glanvill. "8° RRAN, ii. no. 1645.

°° Borough Customs, i. 34. '°” Bartlett, Trial by Fire and Water, 119-20; below, 828-9.

13 PROCEDURE 329 7 FINAL JUDGMENT Following proof, the case reached judgment. As in the Anglo-Saxon period, such judgments were made by the suitors of the court, particularly its leading members, although with significant influence potentially exercised by the person presiding.** According to the Leges Henrici, in its section De capitalibus placitis, ‘each person is to be judged by his peers, of the same district.¥° Accounts of cases

also attribute judgment to the members of the court. One of the Canterbury accounts of the great trial at Penenden Heath in William I’s reign states that ‘by all the honest and wise men who were present it was there deraigned and also agreed and judged by the whole county that as the king himself holds his lands free and quit in his demesne, so the archbishop of Canterbury holds his land entirely free and quit in his demesne."*° The Leges Henrici allow that if the judges were divided,

the decision of the better men [sententia meliorum] to which the justice agreed was to prevail.” Even when the court was not divided, certain men may have played a leading role. Accounts of cases may suggest particularly influential individuals by naming them,

as in the Charwelton case. Among the four named men who made the judgment was Hervey le Moigne, whose expertise in court matters is suggested by other mentions in Thorney disputes.’ As we have seen, Domesday Book also mentions groups of lawmen in certain Danelaw towns, who may have been making judgments. There is also evidence for twelve lawmen having existed in York in 1106.”

Considerable influence, nevertheless, remained with the person presiding over the court. Thus we saw Odo of Bayeux reject the judgment of the county court of Suffolk, and demand that ‘if they knew that what they said was true they should choose twelve of their number who would confirm with an oath what all had said’.'44

For those found guilty of serious offences against the person or movable goods, a monetary or physical penalty might be ordered, or forfeiture or

"°° The case evidence does not allow us to determine whether questions concerning the custom of the court were decided by the person presiding, by certain leading men, or by the suitors as a whole, or if there was variation between courts and between cases. "°° LHP, 31.7, ed. Downer, 134; see also 33. 1, ed. Downer, 136. For continental statements concerning

judgment by peers, see Holt, Magna Carta, 75-6. “° Lawsuits, no. 5B. “ LHP, 31.2, ed. Downer, 132. It is possible that the word justicia, here translated as ‘the justice’, may refer to justice in the abstract. 2 Lawsuits, nos 187A, 269, 272, and above, 305. Cf. above, 318, on mesne judgments. “° Lawsuits, no. 172A. See also above, 88, and below, 821. “* Lawsuits, no. 19; above, 300-1.

330 PART II: ANGLO-NORMAN ENGLAND compensation.’ Restoration of stolen movables to the victim of theft was a further possibility. Unsuccessful accusers, too, might face a penalty. The Leges Henrici state that “he who makes a claim before a justice about someone concerning theft or robbery, forsteal and gridbryce and hamsocn and similar matters, is either to convict him concerning this or make emends’."*° As far as can be told, there is no implication here of malicious accusation. A tougher

treatment of the mendacious complainant, this time in a land case, is mentioned in a writ of Henry I: “Know that I recognise and witness that Roger de Luvetot has been in my mercy for the land of Broughton of the demesne of the abbey of Ramsey, concerning which he lied to me.’*” The unsuccessful accuser might also lose his law-worthiness, especially if the accusation was considered malicious.'4

In land cases, the outcome would be confirmation of the holder’s title, or restoration of the land to the claimant, or a compromise. A perambulation might then take place to establish the precise boundaries, a process that might also occur earlier as part of the effort to settle the case.’4° Fixing the boundary should help to prevent future claims, a particularly clear instance coming in a dispute between Robert and William de Stuteville and Byland Abbey: after Robert and William de Stuteville had quitclaimed to the monks all their right that they had previously demanded, lord Roger de Mowbray caused a large embankment to be raised to the west of the abbey by the view and decision of the neighbours between the land given to the monks and the land of Robert de Daiville.»°

It remained common for disputes to be settled by compromise. Such a settlement could be reached out of court, with or without any element of court action; or in court, at any stage of the proceedings. For example, a compromise could be reached even after a trial by battle had started, as we have already heard in the

*° See below, ch. 16. “*° LHP, 59. 28, ed. Downer, 190; see also LHP, 24. 2, ed. Downer, 126.

“7 Lawsuits, no. 262; the phrase ‘in my mercy’ indicates that the land was forfeit to the king, unless he chose to relent, probably in return for payment. For malicious claims, see also Leis WI, 10a, 14. 3. Note also LHP, 59. 14, ed. Downer, 186, on the specific case of the man who falsely complains about a sum of money adjudged to and pledged to his lord. “8 Note LHP, 45.5, ed. Downer, 154, which states that if a man who has lost his law-worthiness [delegiatus] accuses a lawful man, his accusation had no standing. See also above, 328, on the fate of an accuser defeated in battle.

See e.g. Lawsuits, nos 249, 286, 326. °° Lawsuits, no. 323.

13 PROCEDURE 331 dispute over a hide of land at Headington." In some cases, however, the agreement of the court or a royal justice may have been required.”

8 ENFORCEMENT Practices for securing judgments and settlements resemble those in the Anglo-Saxon period, for example use of witnesses, guarantors, pledges, oaths, spiritual penalties, and writing. A spectacular action or an impressive ceremony might help to secure future stability. Henry of Rye had been excommunicated as a result of a land dispute with the archbishop of Canterbury. Eventually, in 1146, the case came to Archbishop Theobald, and after much discussion Henry at last declared that the [disputed] manor had been alienated by him in sucha manner that he could in no way revoke it in favour of the church. He asked, however, that he be permitted to give in its place some free land of his inheritance worth 10m. of silver per year, to Christ Church. To this request the lord archbishop and Prior Walter consented with several monks who were present. When this had been done, Henry of Rye swore on the four Gospels that he would hand over the land, yielding 10m., on the day set for him by the archbishop, for the monks of Christ Church to possess forever. Soon after this had been done, he came to the church and in the presence of the archbishop and many others he seised the altar of Christ concerning the said land through a certain knife, and there he also fully accepted the fraternity of the church from the archbishop in such a way that towards the end of his life he could become a monk there if he wanted. On the same day he also renewed before the convent in the chapter the donation that he had made for the souls of his father and his mother and the salvation of his own soul, was fully accepted into society again because of his great devotions, and, having kissed all the monks in the right order, as was the custom, joyfully left them.

Settlements might also be secured by repetition, for example in the castle of the lay party and then the chapter of the ecclesiastical.°* A wary victor might further obtain royal confirmation: Then Abbot John seized his manor into demesne as had been agreed between them,

but fearing lest any challenge should arise, he petitioned the king and paid him

*°! See above, 328. On compromise, see also LHP, 54. 2, 59. 2c, ed. Downer, 172, 182. *°? See LHP 59. 27, ed. Downer, 190; cf. below, 726-7. °° Lawsuits, no. 311. For use of a knife in a settlement, see also e.g. Lawsuits, no. 323. See further

e.g. Lawsuits, no. 345: ‘I have by my own hand pledged faith to hold this agreement and pact inviolably and Robert de Daiville and Hugh Malebisse have similarly pledged.’ 4 Lawsuits, no. 252. Note also e.g. Lawsuits, no. 209.

332 PART II: ANGLO-NORMAN ENGLAND 60m.; whereupon the king, by his writ, granted that this manor of Pytchley should be and remain securely and forever in the demesne of St Peter of Burgh and of the abbot and monks."

9 CONCLUSION In many aspects of activity there was probably considerable continuity across the Norman Conquest within the types of court that had existed in England before 1066. Even in the new seignorial courts that appeared after the Conquest, widely shared assumptions helped to ensure similarities in procedure between courts.

However, continuity across 1066 did not necessarily mean a complete lack of change within the Anglo-Norman period. If the customs retained in the heads of the suitors preserved significant elements of pre-Conquest practice, such memory would have diminished over time, allowing custom and procedure to change. The Conquest did not lead to the development of strong elements of personal law, that is different law for those of English and French origin. A very few elements did exist, most notably the murdrum fine and also the differences of procedure discussed earlier in this chapter.’ Yet even these procedural differences seem to

have disappeared; assimilation rather than apartheid characterised many legal elements of Norman England.

°° Lawsuits, no. 220; the confirmation is RRAN, ii. no. 1244. °° See above, 322-3, 405-9. See also J. G. H. Hudson, “The fate of Waltheof and the idea of personal law in England after 1066, in Normandy and its Neighbours 900-1250: Essays for David Bates, ed. D. Crouch and K. Thompson (Turnhout, 2011), 205-17.

14

Land wus the Conqueror and his followers brought across the Channel their own notions of landholding, notions that were to be crucial to the development of English land law. In eleventh-century Normandy seignorial control of land held by laymen appears to have been growing more intensive.’ Even land termed alodium, a word often taken to indicate full ownership, might be held from a lord. Ducal confirmation was a frequent feature of men’s gifts to monasteries.’

Yet the position of the aristocratic or knightly landholder was in many ways a strong one. His tenure seems to have been fairly secure so long as he performed services.* Succession at least by close kin seems to have been common practice, and seignorial concern in controlling alienations seems largely to have regarded services.’ The existence of these ideas helps to explain why arrangements concerning landholding could be settled with apparent rapidity despite the potentially massive

disruption caused by the process of Conquest.° At the same time, the impact of 1066 on land law in England arose not simply from the importation of Norman ideas. Rather the very process of conquest and settlement had an effect.” The distribution of land emphasised lordship, including the ultimate royal lordship, and dependent tenure, even if some men might see their lands as gained through their own efforts rather than through a lord's grant. This chapter concentrates primarily on the period up to 1135, with the balance of evidence causing some prioritisation of the reign of Henry I. The chapter begins with the issue of lordship and lay landholding, and then examines the questions

* See Tabuteau, Transfers of Property, ch. 5; Garnett, Conquered England, 74-6. * See Acta of William I, no. 50, for a grant to Saint-Etienne, Caen, of all the land that a man held from William ‘tam in alodio quam in foedio’. > See also Goebel, Felony and Misdemeanor, 289. * However, see Orderic, Ecclesiastical History, vii. 16, ed. Chibnall, iv. 106, for a dispute at William the Conqueror’s burial, arising from a man’s claim that William had violently taken the site of a house from the claimant’s father. The claimant received compensation. > Tabuteau, Transfers of Property, 63-4, 179-87. ° See esp. R. Fleming, Kings and Lords in Conquest England (Cambridge, 1991). See also below, 347,

on possible disruption of landholding caused by the Conqueror’s actions. ” For further suggestions, see esp. Garnett, Conquered England.

334 PART II: ANGLO-NORMAN ENGLAND of security of tenure, heritability, and alienability. Information is most extensive for the upper levels of society, and the potential for variation according to social standing must be remembered. The divisions between forms of tenure apparent in later mediaeval common law—frankalmoign, knight service, serjeanty, socage, and villeinage—are only to a limited and varying degree apparent in the Anglo-Norman period. Analysis here is divided into the following general categories; lay free landholding; lay unfree landholding; ecclesiastical landholding.’ A charter of William de Roumare, earl of Lincoln, dateable to 1142, distinguished solely between those holding ‘in fee and inheritance’ and men whom it calls rustici, perhaps best translated as peasants. The former category was broad, including men such as Hugh the baker [pistori] and his brother William, to whom the earl gave thirteen bovates and a church for the service of half a knight, in exchange for the two carucates that they had held for the service of the bakehouse.’

1 LANDHOLDING AND LORDSHIP We saw that in Anglo-Saxon England lordship was a feature of some but not all possession of free land, and landholding a feature of some but far from all lordship. In post-Conquest England landholding and lordship rapidly became more closely related. That even apparently straightforward sales of land were described in lordship terms shows how fundamentally lordship structured thought about landholding.”® A charter from about 1150 shows several levels of lordship over land:

Gervase of Halton throughout his life shall hold his land of Halton with all his appurtenances of that land, half from Roger of Benniworth and the other half from Peter of Goxhill. And this Peter of Goxhill holds and shall hold his half from Roger of Benniworth in fee and inheritance, he and his heirs from Roger and his heirs. And this Roger shall hold these aforesaid lands with all appurtenances in fee and inheritance from Earl William [of Lincoln] in chief and from his heirs, since Peter of Goxhill and Gervase of Halton have granted that Roger is the rightful heir of these lands.

On the day when Roger was seised of the service of Gervase of Horton, Peter did homage to Roger for the half of Halton that he was to hold from Roger, ‘and

* See below, ch. 18, for forms of landholding especially connected with marriage, that is dower and maritagium. > Northamptonshire Charters, Frontispiece. *° See e.g. Mowbray, no. 290. For further aspects of the connection between lordship and landholding, see also below, ch. 18, esp. 454, on “feudal incidents’, that is wardship, marriage, and relief.

14 LAND 335 immediately Roger, in everyone's presence, seised Peter of the aforesaid half, for him and his heirs to hold of Roger and Roger’s heirs’.”

As this example shows, homage and landholding were closely connected, perhaps particularly in the lord’s eyes.” Charters occasionally state that a gift was made for the donee’s ‘service and homage." A new lord who wished to deprive a predecessor's tenant of his land might refuse to take his homage." In other cases, a man might seek to retain land without doing homage: Nigel d’Oilly held one meadow at Oxford, and one hide in Sandford and another in Arncott, from the fee of Abingdon, but had done no homage or service therefrom to the church for a long time after Abbot Faritius’s coming to Abingdon [in 1100]. Therefore the abbot proceeded against him by court action, so that he would do homage to the church and Faritius for what he was holding, and recognise their lordship of these things for the future, on these terms, that is, that he would discharge them of all the king’s geld, and serve the abbot everywhere as his lord.”

Men such as Nigel may have been seeking to strengthen their negotiating position with the person claiming lordship, or to hold of a superior lord, perhaps the king, or to keep the land without acknowledging any lord. Lords might seek simply to take back lands from such men, on the grounds that they had fundamentally broken the lord—man relationship.’* However, in the cases about which we know, such as that of Nigel, lords sought to restore the relationship. To do so, they might well need help from others, including the king. This might be because their opponent was powerful or was claiming to hold of the king. Furthermore, if the man was denying that he held the lands from the lord, he was also likely to be denying the jurisdiction of the lord’s court; again this might necessitate royal intervention. At the same time those refusing to do

*" Stenton, First Century, no. 6; on seising, see below, 358. See also Historia ecclesie Abbendonensis, ii. 75, ed. Hudson, ii. 98-100. ‘* For the ceremony of homage, and its relationship to fealty, see below, 431-2. Note that homage

was not done for all types of landholding, particularly not for certain family arrangements nor—at least after the early part of the twelfth century—for lands held in free alms; see also below, 631. For the possibility that those holding socage lands only swore fealty, see Hudson, Land, Law, and Lordship, 19 n. 20. Note also Ramsey Chronicle, 293, ed. Macray, 263-4, a very unusual document. "* See e.g. Stenton, First Century, no. 30; RRAN, ii. no. 683.

** See also below, 342-3, for Lawsuits, no. 272; note Garnett, Conquered England, 90. See also Lawsuits, no. 10A, for a new abbot of Evesham refusing ‘to accept homage from many good men whom his predecessor had, because he had decided to take away the lands of all of them if he could’; note the discussion by Garnett, Conquered England, 88-90.

*° Lawsuits, no. 206. For another example, see the case of the knight Edward and the church of St Frideswide, above, 328. Note also e.g. Lawsuits, no. 163D. *® See Hudson, Land, Law, and Lordship, 21.

336 PART II: ANGLO-NORMAN ENGLAND homage might seek royal help; the king might be willing to aid them against a great man attempting to extend his lordship.” The evidence so far shows a connection between homage and landholding,

but did homage have to be done each time a man received a gift of land? Certainly this was the link indicated by the law-book Glanvill in the late 1180s, but the earlier evidence is less definite.’* Some charters say that a gift

was made ‘in return for homage and service’, but this is considerably less frequent than the phrase ‘in return for service’..° Documents from Burton abbey, which make unusually frequent reference to homage, sometimes treat it as if it is one of the services due from the land given.”° Such a statement seems to indicate that, at least at Burton, homage was done for each gift. Nigel,

abbot of Burton 1094-1114, gave land to a certain Orm, ‘on this agreement, that each year he pay us 20 ora, and he was made thereby [perinde] our man, by swearing on the four Gospels that he would keep faith with us’. Following his death and burial at the church, his son was to come to the chapter and pay fitting relief, “swearing just as his father swore, giving as his father gave, holding as his father held’.** Such may be an indication of Burton custom or of more general practice, hidden elsewhere by the limits of the documentation. Other evidence, however, shows that a gift of land ‘for homage and service might refer to homage and service done in the past. Thus in 1141 x 1155 Alice de Redvers granted to Roger the clerk and his heirs all the land that his father had held, ‘to hold and have of me and my heirs for his homage and service which he long [diu] did to me.” It is possible, then, that homage was a necessary part of the lord-tenant relationship, but need not have been done

for each grant of land. This would fit a world in which grants of land were often made at least as much to reward past loyalty and support as to ensure future service.”

‘” On further cases involving disclaimer of homage, see Hudson, Land, Law, and Lordship, 44-8. *® See below, 631.

*? Hudson, Land, Law, and Lordship, 18; note also Garnett, Conquered England, 81-4. *° See e.g. Geoffrey of Burton, Modwenna, ed. Bartlett, xlix (no. 6), lvii (no. 13). *" “The Burton Chartulary’, ed. G. Wrottesley (5 William Salt Archaeological Soc., 1884), 30, and see below, 350; note Garnett, Conquered England, 95, 98.

*? Redvers, no. 7. Note also from the second half of the century Ramsey Chronicle, 384, ed. Macray, 309.

*° See e.g. Stenton, First Century, 10; The Charters of the Anglo-Norman Earls of Chester, ed. G. Barraclough (126 Record Soc. of Lancashire and Cheshire, 1988), no. 55; S. D. White, ‘Service for

fiefs or fiefs for service: the politics of reciprocity, in his Re-thinking Kinship and Feudalism in Early Medieval Europe (Aldershot, 2005), XII 63-98.

14 LAND 337 Seisin

When a lord put a lay tenant, or a donor put a church, in possession of a grant, the verb used for the action might be ‘to seise. The word is not used in England before 1066, but appears under the Conqueror, along with nouns such as saisitio and saisina.** In one instance in Domesday Book Earl Hugh of Chester justified a claim ‘through his ancestor and through his own seisin.* Such a use probably still refers to the process of being seised by a lord, but may indicate some shift from the concentration on the act of seising to the state of being in seisin, a usage that possibly was already applied to the king in Domesday.” This shift may be seen as a stage in reducing the predominance of the lordship element in ideas of seisin. A writ of Henry I from the end of his reign ordered the bishop of St David's that the monks of Gloucester ‘have their seisin’ of a disputed church.” Seisin was thus coming in some circumstances to signify the holder's justified enjoyment of a possession.

Further, whilst the granting of land by a lord was fundamental to title, being the most recently seised tenant did not guarantee continuing tenure of a particular possession. A challenger might establish right to the possession, with the more recently seised tenant receiving only an alternative possession as an exchange from their lord.”* Likewise, writs ordered reseisin whilst permitting the bringing of claims in future.” Churchmen, at least, argued that they should not plead whilst disseised; rather, they should be restored until dispute over the land or other possessions was decided.° Thus seisin did not constitute absolute right. However, we do not yet have seisin being explicitly contrasted with right, nor the drawing of parallels between seisin and Roman law possession, or between right and Roman law property, that would be made later in the twelfth century.” ** For the verb, see e.g. Acta of William I, nos 289, 334; DB, i. fo. 132v (in passive), ii. fo. 377r. For Normandy, see Garnett, Conquered England, 65. The verb could also be used in the modern sense of ‘seize’: see e.g. DB, i. fo. 32r. *° DB, ii. fo. 299v.

*° DB, i. fo. 336r; the phrase ‘in saisitione regis’ may refer to the king having taken temporary possession of the land concerned. *” RRAN, ii. no. 1938; it should be noted that the writ survives only as a cartulary copy from c. 1300. The church had been given to Gloucester by a certain Wisceo, but a dispute had subsequently arisen; see RRAN, ii. nos 1754-5. *® See below, 346.

*° Royal Writs, nos 52-61; Stenton, First Century, no. 18. °° See esp. Lawsuits, no. 134; also LHP, 53. 3, 5-6, ed. Downer, 170. *" See below, 670-1. Note Lawsuits, no. 294 (a charter of King Stephen surviving as an original) for a woman quitclaiming to the king all the land that was her father’s, “both that of which she was seised and that which was of her right, of which she was not seised [tam eam unde saisita erat tam eam que de jure suo erat unde saisita non erat]’. The same scribe was also responsible for an early use of the phrase ‘disseised unjustly and without judgment [injuste et sine judicio dissaisitus]’ in RRAN, iii. no. 135.

338 PART II: ANGLO-NORMAN ENGLAND

2 TYPES OF LAY FREE TENURE Knight service The supporting of military service—either in the form of knights or of money payments known as scutage—was an important function of land grants in the upper levels of society. There are hints of a specific category of tenure by knight service. Henry of Blois, abbot of Glastonbury, wrote the following: With the permission of Abbot Thurstan, a certain Asketil, his brother, had a long time ago usurped from the abbey’s demesne two and a half hides of land in the manor of Moorlinch. When he made a fine with me concerning the fee, which he had held from that abbey by right of a knight [jure militis], he publicly restored that land... .’”

Barony There is no strong evidence for a specific form of tenure ‘in barony in this period or even in the later twelfth century.*? The phrase ‘in barony’ does not appear to be used, and indeed the first use of the noun baronia in a royal charter is not until 1141.4

Fee farm Twelfth-century charters commonly refer to heritable grants for military service as having been made ‘in fee [in feudo]’ or “in fee and inheritance [in feudo et hereditate|’. However, the word feudum did not necessarily indicate military tenure. To

take an early but not misleading example, Domesday Book records that William the chamberlain held a manor ‘in fee’ from the queen for £3 a year ‘concerning farm [de firma]’, farm meaning a fixed payment of rent or dues2° Some charters for land held by money rent spelt out that the lands were to be held ‘in fee farm [in feudi firma]’. In general, but not always, this indicated heritability. A St Albans text mentions a grant to a man and his son ‘in fee farm as long as they live’, whilst numerous Burton Abbey documents record grants in fee farm to a man and his heir. The latter probably indicate grants for two lives, although others mention a

*? Lawsuits, no. 259. °° See below, 633.

** RRAN, iii. no. 634; DMLBS, s. v. “baronia’. Arguments for identifying barons or tenure in barony with the possession of sake and soke are problematic; see below, 417. °° See Maitland, Domesday Book and Beyond, 152; Hudson, Land, Law, and Lordship, 94-7. The English words ‘fee’ and ‘fief’ are both translations of the Latin feudum. °° DB, i. fo. 129v.

14 LAND 339 man and his heirs.” The Burton documents further indicate that ‘in fee farm’ and ‘in fee and inheritance’ may have been used interchangeably. A grant to Orm and his heir for 6s. a year was made ‘in fee and inheritance’, a grant of the same land to Ralph son of Orm for the same rent was stated to be ‘in fee farm’ and ‘in fee and inheritance* It may well be that at this time it was only the nature of service that differentiated fee farm from military tenure. Lands associated with office Unlike in the Anglo-Saxon period there is very little evidence for estates being associated with the office of earl in post-Conquest England.*° It is just conceivable that the grants of the whole county [totus comitatus] recorded in charters of Stephens reign refer to such comital lands, as might William of Malmesbury’s mention of Henry I giving the county [comitatus] of Shropshire to his second wife. However, this is very scanty evidence on which to base the continuing existence of a fairly stable group of comital estates, perhaps held by a particular form of tenure.”

There were a large number of estates, owing diverse services military or non-military, later referred to as serjeanties.*7 Some may be post-Conquest innovations, others go back to Anglo-Saxon thegnly tenures or those of other men such as radknights, free men owing, amongst other services, riding duties.”

A Peterborough Abbey document of the early twelfth century mentions that Abbot Thorold had given a man named Vivian a quarter of a hide in Warmington in sergenteria. For this and other land, the man ought to be a knight in the army, with two horses and his own weapons, the abbot being responsible for whatever °” Gesta abbatum monasterii Sancti Albani, ed. H. T. Riley (3 vols; RS, 1867-9), i. 72; e.g. Geoffrey of Burton, Modwenna, ed. Bartlett, lxi-ii (nos 17-18), Burton Chartulary, 37; see also Lennard, Rural England, 111-12; Hudson, Land, Law, and Lordship, 94-7. See also e.g. Geoffrey of Burton, Modwenna, ed. Bartlett, li (no. 9), which just uses ‘in feudum fora grant to a man and his heir in return for money rent, lxiii-iv (no. 21), which uses ‘in feufirmam’ but makes no mention of the grantee’s heirs. °® Geoffrey of Burton, Modwenna, ed. Bartlett, lxii-iii (nos 19-20). *° Cf. below, 632-4. See also Lennard, Rural England, 112, for land owing both military and money service. *° See above, 264, for possible continuity regarding earls in the first years after the Conquest. The Instituta Cnuti, which mention comital vills, is a twelfth-century text, but cannot be taken as strong evidence of current practice; see above, 111. “* William of Malmesbury, Historia Novella, i. 2, ed. E. King, trans. K. R. Potter (Oxford, 1998), 6; RRAN, iii. nos 180, 272, 437; Latimer, ‘Grants of “totus comitatus”. On such grants, see also above, 264-5. * See also below, 634. On the scarcity of early evidence, see E. G. Kimball, Serjeanty Tenure in Medieval England (New Haven, 1936), 3, 11. *° See also Pollock and Maitland, i. 288-9; Vinogradoff, English Society, 69-71; Roffe, ‘From thegnage to barony, 167, 170, 172. For continuity of forest duties at least from the time of Domesday Book, see e.g. Kimball, Serjeanty, 111.

340 PART II: ANGLO-NORMAN ENGLAND else he needed. The phrase in sergenteria here could conceivably refer to an area of land (‘in the serjeantery’) but is best read as a classification of tenure, ‘in serjeanty, parallel to the phrase ‘in fee’ that appears elsewhere in the document.** However, this is a very unusual instance, and one where the overlap with military tenure is very noticeable. In general it does not seem that men widely used ‘serjeanty’ as an abstract category into which to fit these very varied forms of landholding.*

Similar in certain ways to such tenures were those of the thegns (or thanes) and drengs of northern England. The services of the thegns tended to be the more honorable, those of the drengs the more agricultural or even menial.*°

Other free tenure In the thirteenth century land that was free but not held in military, serjeanty, or alms tenure was referred to as held ‘in socage’.” This phrase is not used in surviving records of the Anglo-Norman period. It is, for example, possible that socage emerged as a term used of the tenure of sokemen, and then came into more general use, perhaps when it was felt necessary to classify all forms of landholding under one term or another. Here therefore the general phrase free tenure is used.

Unfortunately information on such landholding is limited in significant ways, including on aspects later seen as characteristic of socage tenure, for example the age of majority and the level of relief.**

Leases All these categories of land, whether held by military, monetary, or other service, could be leased. In dealing with fee farm we have seen grants being made for two lives.*? There is much evidence for leases for a single life. These are particularly prevalent for grants by ecclesiastical lords, perhaps simply because of better

documentation, perhaps because of their canonical obligations not to alienate lands2° We also have occasional evidence of leases for terms of years, but these “* E. King, ‘The Peterborough “Descriptio militum” (Henry I) (1969) 84 EHR 84-101, at 98, 101. * See also below, 634. *° See below, 418; G. W. S. Barrow, ‘Northern English society in the twelfth and thirteenth centuries’ (1969) 4 Northern History 1-28, at 14-16; also E W. Maitland, ‘Northumbrian tenures, in his Collected Papers, ii. 96-109; J. E. A. Jolliffe, “Northumbrian institutions’ (1926) 41 EHR 1-42, esp. at 15-19.

“7 See below, 351-2, on possible continuities from the Anglo-Saxon period. *® See below, 633-4, 647. On tenure of dwellers in boroughs, see below, ch. 30. * See above, 338-9. On leases in Anglo-Saxon England, see above, 98-102; on leases in Normandy, see Tabuteau, Transfers of Property, 65-81.

°° See Hudson, Land, Law, and Lordship, 97-101; also e.g. Galbraith, ‘Episcopal land-grant’. Domesday Book may hide cases of leasing, but it is notable that where Domesday specifies that the

14 LAND 341 may have been less common at this time than leases for life, or their documentation less well preserved, or their terms less frequently committed to writing.” It is unclear whether lands leased for terms of years or at the lord's will were regarded as distinct from free tenements.” A hint at a distinction, although not its precise nature, comes in the Leges Henrici, which contrast disputes regarding a ‘farm between a lord and his ‘farmer’ who was not also his man with disputes between the lord and one who held a farm ‘in fee’ and had done homage concerning it. The former were to be treated in the manor, the latter in the lord's

court, or the court of the lord from whom it was fee. The higher standing of the holder of fee farm, and perhaps of holding in fee farm, seems clear, and may have had further consequences, for example with regard to court procedure and warranty.

3 SECURITY OF TENURE Services and disciplinary jurisdiction There were various ways in which a man might be seen as breaking his obligations to his lord. The Leges Henrici mention as reasons for forfeiture of lands acts such as betrayal, desertion in battle, and the establishment through pride of an ‘advocate’ against one’s lord.+ The most common type of dispute, however,

was failure to perform services. From the lord’s point of view, the tenant’s service was one reason for the creation of the landholding bond, and its clearest continuing manifestation. For the tenant, certainty concerning services was a sign of holding freely. In addition, whilst performance of service might be a

burden, it was also an indication that the tenant, not any third party, was the holder of the lands. Disputes might arise, as lord and tenant sought advantage regarding service obligations. The lord seeking to enforce services would do so primarily through the proc-

ess of distraint. This might apply in cases where his opponent denied holding the land from him, a situation already discussed,* or when tenure was acknowledged but land was held for lives or a life the grantor was a church; see Lennard, Rural England, 159-75.

°" For a dispute between the abbots of St Albans and Westminster over land leased by the former to the latter for twenty years, see Lawsuits, no. 8. °? See below, 662-3. °° LHP, 56. 1-2, ed. Downer, 174.

°* LHP, 43. 3, 7, ed. Downer, 152. See also LHP, 88. 14, ed. Downer, 274. on a man’s forfeiture for felonia; cf. LHP, 43. 8, ed. Downer, 152, for lord forfeiting lordship over man, noting, 43. 9, the tolerance a man must show his lord. °° See above, 335.

342 PART II: ANGLO-NORMAN ENGLAND the amount or actual performance of the services disputed. Distraint involved the removal of the tenant's chattels, land, or both. Through distraint, the lord aimed to get the tenant to acknowledge the services, either by performance or by admission in court.*

Was court judgment necessary before distraint?” There is some evidence for judgment being required before distraint to enforce attendance at hundred courts, but this may not be relevant to customs affecting lords seeking to exact services. Few case records mention judgment before seignorial distraint for services. Silence in others might simply stem from assumption that judgment had been made. However, on occasion failure to perform service may have been manifest, rendering any such judgment unnecessary. Even when judgment was

obtained, it may have been useful rather than necessary for the lord. Overall, there is no strong evidence for a general requirement for a lord to obtain court judgment before distraining. Distraint at a later period would move through set stages, from summons to the taking of chattels to the taking of land, which might lead eventually to forfeiture of the land and termination of the tenurial relationship. However, such set stages may have been a product of routine royal control, perhaps enforcing the stages used in compelling appearance at county and hundred courts. Earlier, procedures perhaps differed according to local custom or type of service. If distraint was aimed at getting

military service following a royal summons, it would have had to be peremptory, perhaps without initial taking of chattels. Nor is there any hint of prior taking of chattels when an agreement between the abbey of Abingdon and Simon the king's dispenser in the 1120s laid down that ‘if it happened that either Simon himself or his heirs after him failed to render the farm of this manor, the church of Abingdon would without contradiction reseise that manor of Tadmarton into its own demesne.* On

the other hand, such written provision may have been necessary because customary procedures were being abbreviated. In terms of practicality, taking chattels may often have been the preferable first step, being simpler whilst also emphasising the reasonableness of the lord's action and providing a threat to the tenant. Some further general standards of reasonableness may have been employed as to the extent of force that a distraining lord might use. A hint comes in a Thorney case, where a man refused to give up land to a new abbot. The man ‘being unwilling and proudly refusing, the abbot disseised him, broke his houses and uprooted his

°° See Hudson, Land, Law, and Lordship, 23-4. °” See Hudson, Land, Law, and Lordship, 26-9. °® Historia ecclesie Abbendonensis, ii. 241, ed. Hudson, ii. 236.

°° Hudson, Land, Law, and Lordship, 29-31.

14 LAND 343 wood. This Thorney account implies that the abbot’s destructive actions were justified given the tenant's recalcitrance. Whatever was perceived, particularly by the tenant, as good custom, a lord might be able to exercise considerable forceful authority. However, it is notable that the abbot also went overseas to obtain a royal writ in support of his case.

Once taken, the goods and lands should be treated properly; they had not immediately become the lord’s to dispose of as he wished. The distrainee could regain them by offering surety that he would answer concerning the services. The Abingdon History tells us that Ermenold, a burgess of Oxford, held from the abbot a dairy-farm next to Oxford bridge, for 40s. rent, and it happened that one year he withheld the rent. Therefore, the following year at harvest time, the abbot ordered the seizure of whatever livestock could be found on the land and forbade him access to it. But Ermenold sent Walter archdeacon of Oxford and Richard of Standlake to the abbot on his behalf; he received back his livestock on their surety, and a day was set for pleading and for the acquitting of surety.”

Only continuing recalcitrance led to forfeiture, with the tenant’s lands coming under the full control of the lord. According to the Abingdon History, William the chamberlain failed to serve the abbot at the time of Robert Curthose’s invasion at the start of Henry I’s reign. It was then decided that, ‘according to the law of the country [lege patrie], he deservedly ought to be deprived of the land’. In this case, as in some others, forfeiture was then tempered by concession, be it through compensation or through renewal of the tenurial relationship: the abbot gave back the land to William, who became his man, gave the abbot £10 by way of amends, was to do one knight’s service in all places where the church’s other men did knight service, was not to alienate the land, and allowed the abbot’s men grazing rights on that land. Whilst the expectation might be that matters of services would be settled within the honour, some lords were not strong enough to distrain or to enforce forfeiture

against a powerful tenant. In such circumstances, they might turn to their own lord or to the king. Henry I came to the support of the abbot of Ramsey, commanding a certain Ruallon to perform the service and aid that he ought justly to

°° Lawsuits, no. 272A. °t Lawsuits, no. 209; it is conceivable that the case involved a burgage tenure. °* Lawsuits, no. 164; see also e.g. no. 377. Lawsuits, no. 317, tells us that in the reign of Stephen, a

certain Robert of Meppershall ‘stayed at Meppershall and abandoned Biddlesden. Neither he nor anyone for him rendered service for it to the earl of Leicester, but the land was the escheat of the earl, who gave it to his steward Ernald de Bosco for his service. Note, though, that the account is not contemporary, from the reign of Henry IJ at the earliest and quite possibly from the thirteenth century.

344 PART II: ANGLO-NORMAN ENGLAND do from his land; if he did not comply, the abbot was to ‘justice’ him by his chattels until he did so. Tenants too might seek outside help, from overlords or alternative potential lords. There is also evidence for intervention by the king, thereby acting

as protector of the weak and especially of churches. It may well be that the king became particularly involved in cases threatening disorder or in which the tenant could claim that his lord had failed to provide justice. Unfortunately, the chronology and extent of royal involvement is unclear, even for ecclesiastical honours for which the vast majority of the scarce sources survive. Overall, the evidence concerning distraint suggests both a degree of flexibility and possible differences of perception of permissible behaviour between lords and tenants, limited by some shared customary notions of reasonableness and by the possibility of external intervention in lord—-tenant relations. In specific cases, the comparative power of lord and man helped to determine their relations. It may well be that the number of tenants upon whom it was difficult for a lord to impose his will grew during the Anglo-Norman period, as a result of social change and the multiplication of lordship ties. Such a process would have further increased the security with which tenants enjoyed their lands.

Security on succession of a new lord Tenants who had been properly seised appear in general to have enjoyed security at the succession of a new lord.® Such lords’ confirmations normally speak in terms of ‘granting’ or confirming’ their predecessors’ gifts, not of ‘giving’;®° use of the verb ‘to give might have suggested discretion as to whether to continue the earlier grants. Nor is there strong evidence for payment of relief by tenants to a newly succeeding lord, although payments ‘in recognition of lordship were known.” The absence of relief again suggests that the lord lacked discretion as to the continuation of the man’s tenure. However, on succession or at other times, lords could challenge the basis of a

tenant's title to land, for example on the grounds that the land was a churchs

°° RRAN, ii. no. 1860a. For this paragraph, see further Hudson, Land, Law, and Lordship, 35-44. The king, of course, was lord of tenants-in-chief. °* See Hudson, Land, Law, and Lordship, 48-51. °° See above, 343, on William the chamberlain, who was clearly sitting on the land for which he was refusing to serve the new abbot of Abingdon; the abbot had to pursue his homage and service. °° Hudson, Land, Law, and Lordship, 213-14. °” Stenton, First Century, 162; Garnett, Conquered England, 54. For the ‘relief’ taken by William Rufus from the tenants of the bishopric of Worcester in 1095, see Garnett, Conquered England, 53-4, 56. Cf. relief on inheritance by a tenant, below, 349-50.

14 LAND 345 inalienable possession. Such challenges could be settled by enquiry and by decision of the lord's court, although the sitting tenant might be able to seek outside help.®

Challenges from a third party A tenant might also face challenge from a third party, but again in such circumstances his relationship to his lord was very important. It was upon the gift by his lord or his lord's predecessor that he would rest his denial of the third party's claim and defend his own tenure. The lord’s obligations came to be encapsulated in notions of warranty. We have seen that warranty of chattels was crucial as a form of proof in Anglo-Saxon England, establishing the owner's right on the basis

of his having obtained the goods properly from a named source. In the field of landholding, warranty in its developed form involved three related elements. The warrantor was to maintain his man in the land against outside challenge; to provide an exchange of an equivalent holding if the land was lost; and not to take back the land himself. When the three elements came together is uncertain. It may well be that the last obligation only came to be associated with warranty in the later twelfth century. The obligation to provide an exchange may have been there from the start, or have been an associated obligation later subsumed in warranty.”° The general obligation of lords to support or warrant their men is clear from various sources, including vernacular literature: Roland mourned the French slain at Roncesvalles with the words ‘French barons, I see you die for me; I cannot protect nor warrant you.”' It is likely that warranty obligations predated mentions in charters, and early development is further obscured by the scarcity of revealing charters.” Clauses outlining the obligation in warranty language only developed gradually, first emerging in any number in the middle of the twelfth century, perhaps in an attempt to cope with the insecurities of Stephen’s reign? Three °° See esp. Henry of Blois’ account of his activities as new abbot of Glastonbury; English Episcopal Acta VII: Winchester 1070-1204, ed. M. J. Franklin (Oxford, 1993), 202-13. Cf. below, 642-5. °” See above, 155-9, 316.

”° See Hyams, ‘Warranty’; Hudson, Land, Law, and Lordship, 51-8. ” ‘The Song of Roland: an Analytical Edition, ed. and trans. G. J. Brault (2 vols; University Park, 1978), ll. 1863-4; see also e.g. Raoul de Cambrai, ed. and trans. S. Kay (Oxford, 1992), ll. 495-6. In

Anglo-Norman charters, the Latin verb warantizare is also sometimes used in a general sense resembling ‘to confirm; see e.g. RRAN, ii. no. 1751.

” Note also the use of words such as manutenere with regard to a lord backing his tenant; e.g. Stenton, First Century, no. 46. Even after 1150 words such as adquietare were used in contexts where warantizare would later be standard; see e.g. Earldom of Gloucester, no. 71. Note also e.g. the unusual form of warranty provision in RRAN, iii. no. 579. On varieties of vocabulary, see also D. Postles,

‘Seeking the language of warranty of land in twelfth-century England’ (1999) 20 J of the Soc. of Archivists 209-22. ”* For earlier use of warranty language in Normandy, see Tabuteau, Transfers of Property, 196-204.

346 PART II: ANGLO-NORMAN ENGLAND instances appear amongst Ranulf earl of Chester's surviving charters to laymen, with one specifying the possible source of a challenge. Ranulf gave to Hugh son of Pincon land from the fee of Halenald of Bidun, which Halenald had held of the earl. The charter states that ‘if by chance it happens that Halenald or his heirs recover that land, I am to give Hugh exchange to value for his warrant from my own inheritance.”

This charter shows the close association of warranty and exchange. Earlier, a writ of William I had ordered that all those who had lands from the demesne of the church of Ely should be assembled, and that the church was to have those lands as at the death of Edward the Confessor; ‘if anyone says he has something therefrom of my gift, tell me the extent of the land and how he reclaims it, and according to what I hear I will either give him an exchange concerning it, or do something else.” Other texts suggest that in the mid-twelfth century there might still be alternative ways of compensating a dispossessed tenant, such as monetary payment” or arranging that the successful claimant hold from the current tenant.” Further charters state that the lord is not obliged to provide an exchange if the tenant loses the land. This may indicate that exchange was the norm, here explicitly excluded.

Alternatively, it may indicate that warranty and exchange were commonly but not yet inseparably linked.’® On occasion, a failed warrantor might find that he could not revoke his grant, and the successful claimant had to accept the alternative piece of land despite his having proved his greater right to the disputed land” However, it is notable that the exchange was normally made to the existing tenant, the disputed land being passed to the claimant.*° This pattern of restoration and compensation demonstrates clearly that there were claims to land that outweighed that of being the current lord’s most recently seised tenant; arguments based on earlier rightful holding of land could establish title.

”* Chester, no. 71; see also nos 56 (an original), 86, for laymen, and nos 20, 76, 107 (a somewhat questionable document), for the Church. From other lords, see e.g. EYC, viii. no. 42, and the charters cited below, n. 78. ”° Lawsuits, no. 18D. For land given in compensation for another holding, see also e.g. DB, i. fo. 35r. ’”° Lawsuits, no. 267, may bean example of this. ”” Ramsey Chronicle, 310, ed. Macray, 275.

“© Hudson, Land, Law, and Lordship, 56. Note also charters explicitly excluding the obligation to exchange; e.g. EYC, i. nos 265, 310, iv. no. 118, from St Mary’s, York; the charters mention the possibil-

ity of royal intervention. ” Lawsuits, no. 311. °° See e.g. above, on Ranulf of Chester and Hugh son of Pincon; also e.g. Chester, nos 56, 86.

14 LAND 347 Conclusion It is possible that in the first years after the Conquest the king in particular interfered with the security of his men’s hold over their lands. This may be the meaning of the Anglo-Saxon Chronicle's statement that the Conqueror repeatedly allotted [sealde] the same land to the highest bidder.** More generally, however, it seems that free tenants enjoyed considerable security of tenure so long as they remained loyal and fulfilled their obligations to their lord. When, in the late eleventh century, Abbot

Reginald of Abingdon found that his grant of land at Dumbleton to his nephew should not have been made, he could not simply get his nephew to consent to give up the land. Rather, he had to obtain expensive royal help, and it still required the intervention of illness to persuade the nephew to surrender the land.” Security of some may have increased over the period 1066-1135 for a variety of possible reasons including long tenure and succession within a family, the increasing complexity of tenurial arrangements, the increasing standing of knights and other significant tenants, and greater royal intervention in the affairs of at least some honours. The security of tenants even below the level of those owing knight service is suggested by a clause in the Leis Willelme: ‘those who cultivate the land ought not to be harassed except for their lawful rent. It is not permitted for lords to eject

the cultivators from their land so long as they can do the lawful service. These cultivators seem to be being distinguished from the naifs, presumably unfree, who are mentioned in the clause that follows, and who may have lacked the security of a free tenant.

4 INHERITANCE Succession to land held by military service appears to have been customary in Normandy before 1066. To the lord who needed a replacement tenant, the dead man’s adult son might seem the obvious choice, particularly as his acceptance might be perceived as good lordship not only by the son but also by other tenants.

The existence of similar assumptions in England in the later eleventh century and beyond is demonstrated by the care taken to specify that certain grants were

°* ASC, 1087. The Old English word sellan could also mean sell, and the precise sense of the statement

is not certain. It could indicate something less arbitrary than I suggest in the text, for example use of short-term leases or of arrangements where the tenant had agreed that he should hold at the king’s will. °? Lawsuits, no. 146. °° Leis WI, 29; on Leis WI, 30, see below, 422-3.

348 PART II: ANGLO-NORMAN ENGLAND made only for life, that is to prevent succession.** Charter phraseology confirms

the customary practice. Before 1100, most charters for laymen may just have assumed succession, except when a life-grant was specified. After 1100 charters

with increasing frequency spelt out that the grant was to the grantee ‘and his heirs’, until by the last years of Henry I this was normal. Such usage both reflects customary assumptions and, when cited in a dispute, could reinforce the heir’s claim to the land, whether he produced the charter before his lord’s court or before an outsider—notably the king—from whom he was seeking aid.** Likewise, the phrase ‘in fee [in feudo]’ emerges in Normandy and England in the second half of the eleventh century, again to indicate lasting tenure.*° An individual heir was identifiable in the landholder’s lifetime, as is clear, for example, from instances when the heir consented to his father’s gift to another son.” However, even if succession was customary, there might be circumstances in

which lords sought to reject the heir and either retain the lands themselves or give them to another party.** Not all heirs need have been in so strong a position as an adult eldest son. Analysis therefore will again involve the interplay of custom, seignorial discretion, claimant power, and outside authorities. Process

When a tenant died, to establish entitlement his heir needed to have his claim and homage accepted and to receive a grant of the land from the lord. It may be that the lord routinely took the land back into his hand before making this grant, thereby emphasising the basis of the new tenant’s title in the grant. However, other evidence suggests that heirs may have been in effective control of the land,

and that the lord sometimes had to make efforts to ensure that recognition. A rare narrative of a succession in the later years of Henry I may show a lord going to some lengths to participate in the process. William fitzNigel the constable of Chester visited one of his tenants, Hugh fitzOdard, who was seriously ill. William, in the presence of his son and several witnesses, gave back to Hugh's son the dying man’s land; he was to hold from William and his son. In general heirs may have had to travel to their lords in order to obtain their inheritances,

°** See above, 340-1; also J. G.H. Hudson, ‘Life-Grants of Land and the Development of Inheritance in Anglo-Norman England’ (1990) 12 ANS 67-80. °° See Hudson, Land, Law, and Lordship, 78-81. °° See Hudson, Land, Law, and Lordship, 94-7; Pollock and Maitland, i. 234-5. *” See e.g. below, 358.

** For works distinguishing customary succession from inheritance working according to legally enforceable rules, see esp. S. E. Thorne, ‘English feudalism and estates in land’, in his Essays in English Legal History (1985) 13-29; Milsom, Legal Framework, ch. 5.

14 LAND 349 signifying their inferior status, but here at least the lord travelled to the heir to enforce his own position.*®

Still, even if one takes this as an instance of a lord having to strive to exercise his claims, it is an isolated story. For a greater body of evidence, albeit less direct, one must turn again to charter language. If the lord had considerable choice as to whether to accept the heir, one might expect the grant to be couched in terms of a new gift. On occasion the relevant charters did use the verb ‘to give [dare], although these may conceal details of complicated successions.°° Much more common was use of the verb ‘to give back/to render [reddere]’*' This word was also used in contexts where the recipient had a right to what was granted, be it a rent or land to which he had proved his claim. Thus charter language suggests the strength of the aspiring heir’s position. However, particularly when the heir was not yet identified, or when the aspiring heir was not closely related to the deceased, the lord may have taken the land into his hand until it was settled that he should take homage and seise the heir.” In the case of heiresses, if they were not yet married, the lord would retain them and their lands until marriage. If they were married, their husbands, or perhaps only the husband of the eldest daughter, would do homage.” Besides doing homage, the heir had to make a payment, known as a relief, to the lord.®4 In the very unusual charter whereby Walter de Bolbec granted land to the abbot of Ramsey on terms resembling those for laymen, it was specified that if Abbot Walter dies or changes his life, the monks shall relieve this land and shall hold and do service to Walter de Bolbec or his heir until another abbot comes, by giving 10m. of silver, and the abbot who comes shall hold this land by the same relief and do service. Further, if the monks have been unwilling to relieve it, Walter of Bolbec or his heir shall hold it until an abbot may come, who is to relieve and hold this through the same 1om. that the monks would have given if they wished.

Might lords refuse succession for those who could not or would not pay relief? In the later twelfth century the royal treasurer would record, although not accept, the view that ‘those who are bound in reliefs to the king and do not pay when

°° G. Ormerod, History of the County Palatine and City of Chester (3 vols; 2nd edn, London, 1882), i. 690n.; it is of course not certain that William would have struggled to enforce his seignorial claims without travelling to the dying Hugh. Note also the difficulties that lords sometimes had in resuming from ason land that had been granted to a father for life; see e.g. Hudson, ‘Life-grants’. °° For use of dare, see Hudson, Land, Law, and Lordship, 74 n. 30; also e.g. Redvers, no. 7. °" See Hudson, Land, Law, and Lordship, 75-7. °? See below, 645-6. ° See below, 352-4. °* Cf. above, 123-4, on heriot. °° Ramsey Chronicle, 310, ed. Macray, 274-5.

350 PART II: ANGLO-NORMAN ENGLAND summoned, are subject to the laws of voluntary offerings, so that they lose what they sought when they do not pay’.®° When Abbot Reginald of Abingdon was confronted by the bishop of Winchester with a certain Berner, claiming land that had belonged to Berner’s uncle, he replied ‘that he would not permit this without relief, and that he would accept nothing else except the three hides that he had from the village of Culham’. Berner accepted the abbot’s terms, and his attempt to overturn the settlement two years later was unsuccessful.” Lords thus might use relief at least as a negotiating weapon.

How much discretion had a lord as to the amount of the relief? Henry I’s coronation decree presents arbitrary demands as an abuse: If any of the barons, my earls or others who hold from me, dies, his heir is not to buy back his land as he did in the time of my brother, but shall relieve it with a just and lawful relief. Likewise too the men of my barons shall relieve their lands from their lords by just and lawful relief*

The Leis Willelme, probably in the mid-twelfth century, base their list of reliefs on the heriots in IT Cnut. However, they also state that the relief for a vavasour who had neither horse nor weaponry was 100s.°° A similar amount would be customary for a knight’s fee in the Dialogue of the Exchequer and Glanvill later in the twelfth century, and appears as an upper limit per knight’s fee in Magna Carta.’°° Standardisation may also be suggested by an agreement between Abbot Nigel of Burton (1094-1114) and his man Orm; it was stated that, following Orme’s death and burial, his son was to come to the abbey’s chapter and ‘give for relief of that land as much money as a noble man ought to give for such land’. This may indicate the existence of either honorial or more general customary levels for relief.

For earldoms and baronies the 1130 Pipe Roll indicates considerably higher payments than would later be considered appropriate; for example, Ranulf II, earl of Chester, owed £1,000 from his father, Ranulf I’s debt for the land of Earl Hugh.’ Ranulf I was only the cousin of the previous holder, Richard son of Earl Hugh, and it is possible that reliefs might be higher when heirs were more genealogically distant.

°° Dialogus, ii. 24, ed. Amt, 180-2.

°” Historia ecclesie Abbendonensis, ii. 26-7, ed. Hudson, ii. xi, 26-30; at least some of the land that the aspiring heir sought had been held as a gage for a loan, rather than in fee. °° RRAN, ii. no. 488. °° Leis WI, 20. 2a. On IT Cn, see above, 124. *°° See below, 646-7. *°! Burton Chartulary, 30, for which see also above, 336. 102 PR3IHI, 110.

14 LAND 351 Pattern What, then, of the genealogical pattern of succession and any differences in the strength of claims of the closely and the distantly related heir? Unfortunately only descents of tenancies-in-chief can be traced in detail, but the pattern revealed does not appear incompatible with that for sub-tenancies held by knight service. The discussion below concerns only those of legitimate birth. Despite the succession of the bastard William to the duchy of Normandy in 1035, legitimacy appears to have been a requirement for succession in post-Conquest England, and the criteria of legitimacy were becoming increasingly clear with the growing definition of marriage law.’®

The Leges Henrici seem to reflect early twelfth-century practice at least for land held for knight service when they stated that the ‘first-born son should have the original fee [primum feodum|] of the father’; the father, however, might give to whom he wished his purchases and acquisitions, that is lands he had newly acquired himself rather than inherited.’°* Other sources, including vernacular literature and bestiary texts, also point to primogeniture. It appears that in the vast majority of instances the eldest son did succeed to lands. On occasion, particularly in the decades immediately after the Conquest, the elder son might be allocated the English acquisitions rather than the Norman patrimony if the former were more extensive, but this would become less common as estates passed down generations

and the supply of acquisitions in England diminished.’ It is possible that there were occasional divisions of inheritance among heirs, but these may rather relate to grants made by the father in his lifetime. Further apparent instances of division concern acquisitions, and again may arise from arrangements made in the father’s lifetime. In other cases there may have been divisions between twins, although these too could be arranged before the father’s death rather than being the automatic application of inheritance custom. There are no signs of honorial or regional deviations from primogeniture for land held by knight service. Lack of information makes it extremely difficult to assess inheritance patterns

for free lands lower in society. It is possible that partible inheritance was common, as it later would be for some lands held in socage. Such a pattern may be *°° See Hudson, Land, Law, and Lordship, 119-22; below, ch. 18.

*°* LHP, 70. 21, ed. Downer, 224. For this paragraph, see E. Z. Tabuteau, “The role of law in the succession to England and Normandy, 1087’ (1991) 3 HSJ 141-69, at 155-68; Hudson, Land, Law, and Lordship, 109-10; J. C. Holt, ‘Politics and property in early medieval England’, in his Colonial England, 113-59, at 120 and n. 49; below, 355-6, for exceptions to primogeniture. Possible instances of division include those of the lands of Siward of Arden and William de Raimes. Note that we tend simply to assume that the son who succeeded was the eldest son; eldest sons who were passed over may not appear in the records. "°° See e.g. Redvers, 5.

352 PART II: ANGLO-NORMAN ENGLAND a continuation of Anglo-Saxon practice.’°° However, some later evidence, for example that of Glanvill, indicates a variety of inheritance patterns, including partibility, primogeniture, and ultimogeniture (i.e. succession by the youngest son).'” Forms of partibility themselves might vary, for example with later evidence indicating that, in the division of the father’s property, Kentish gavelkind tenure reserved the hearth to the youngest son.’

In the absence of sons, daughters succeeded to their father’s lands. The churchman Gilbert Foliot justified inheritance by daughters in the context of the Empress Matilda's claim to succeed her father, Henry I. He claimed that her halfbrother Robert, earl of Gloucester, told a story from the Book of Numbers: The man Zelophehad was a Jew of the tribe of Manasseh; he had only daughters and no son. It seemed to certain people that the daughters, because of the imbecility of their sex, should not be admitted to the father’s goods. Asked about this, the lord promulgated a law, that everything possessed by their father should be yielded whole to the daughters of Zelophehad.'”

The difficulties Matilda faced in obtaining her inheritance seem to have been greater than those faced by most daughters, and there are many examples of female inheritance.”° If the heiress was married, the land henceforth was held by her husband.™ If

the husband then died, the widow might hold the land, although it is possible

"°° See above, 124-6. From c. 1200 we have a reference to a division of land following the death of an eldest brother being made ‘as it were by the old English custom [quasi veteri more Anglicano]’; The Lost Cartulary of Bolton Priory, ed. K. J. Legg (160 Yorkshire Archeological Soc. Record Series, 2009), no. 128.

*°” Glanvill, vii. 3, ed. Hall, 75; see also below, 649. See also C. A. Joy, “Sokeright’ (unpublished PhD thesis, University of Leeds, 1972), ch. 12; R. J. Faith, ‘Peasant families and inheritance customs in medieval England’ (1966) 14 Agricultural History Review 77-95. The Agrarian History of England and Wales: II 1042-1350, ed. H. E. Hallam (Cambridge, 1988), ch. 6, also reveals geographical variation of succession patterns in the lower levels of society, including unfree lands; e.g. see 603-5 for the predominance of partibility in Suffolk, 672-3, 680-1, for the predominance of primogeniture in the west Midlands and south west. *°® Pollock and Maitland, ii. 271; Faith, Peasantry, 135-7, 207. ‘°° The Letters and Charters of Gilbert Foliot, ed. A. Morey and C. N. L. Brooke (Cambridge, 1967), no. 26.

“tJ. C. Holt, “Feudal society and the family in early medieval England, IV: the heiress and the alien’, in his Colonial England, 245-69, at 249, estimates that by 1130 more than twenty, by 1150 more

than thirty baronies had descended in the female line. *™’ On female inheritance, see Holt, “Heiress and alien; S. F.C. Milsom, ‘Inheritance by women in the twelfth and early thirteenth centuries’, in his Studies in the History of the Common Law (London, 1985), 231-60; S. Waugh, “Women’s inheritance and the growth of bureaucratic monarchy in twelfthand thirteenth-century England’ (1990) 34 Nottingham Medieval Studies 71-92. For female succession strengthening across much of Europe, see J. Martindale, ‘Succession and politics in the Romancespeaking world, c. 1000-1140’, in England and her Neighbours, 1066-1485: Essays in Honour of Pierre Chaplais, ed. M. Jones and M. Vale (London, 1989), 19-41. Note also LHP, 70. 20b, ed. Downer, 224,

14 LAND 353 that it would pass to the couple's child, even if the woman were still alive.” If the heiress or heiresses were as yet unmarried at the father’s death, she and her land would be taken into her lord’s wardship. Henry I at the start of his reign promised that if one of his barons or men died leaving only a daughter as heir, the king would give her with her land, according to the counsel of his barons. Inheritance and marriage therefore were very closely linked, and female inheritance was arranged in the context of allocation to daughters. If some daughters had already been allocated extensive marriage-portions, the remaining inheritance might pass largely or entirely to an unmarried heiress who was yet to receive

such an allocation.’ A charter from around 1145 refers to a statutum decretum, according to which ‘where there is no son, daughters share their father’s land by the spindles, and nor can the elder by birth take away from the younger her half of the inheritance except by force and wrong [injuria]’. The statutum appears to have insisted on

division of the father’s lands between daughters, whereas descent to a single heiress had earlier been the common, perhaps the standard pattern.’ The phrase statutum decretum probably refers to a legislative act, or at least to a court decision intended to have general eftect."° The date of the statutum is uncertain, although

it probably postdates the 1130 Pipe Roll that seems to indicate that division of inheritance was not yet standard.” In the 1180s, Glanvill claimed that heiresses held by parage: that is, although the inheritance was divided, the eldest daughter received the chief messuage (i.e. tenement with dwelling), and her husband performed homage for the whole fee to the lord. However, Glanvill’s position may be misleading even for his own time, and there is earlier evidence for complete division, for example with holdings being split into distinct baronies. It is also often difficult to assess the balance

based on the Lex Ribuaria. For record of a man giving to a monastery land from his wife’s inheritance, at her request, see e.g. Thomas of Marlborough, Evesham, iii. 128, ed. Sayers and Watkiss, 138. ‘See below, 366-7, cf. Milsom, ‘Inheritance by women’, 235.

? RRAN, ii. no. 488. *™* See Milsom, ‘Inheritance by women’, 236-7, 252.

“'® See Holt, ‘Heiress and alien’, 251-2; for a more cautious assessment, see Hudson, Land, Law, and Lordship, 112 n. 20, Green, Aristocracy, 377-8. Holt, “Heiress and alien’, 261-2, and Waugh, ‘Women’s inheritance’, 75, make suggestions as to why the statutum may have been in the interests of the various parties involved. “'® Stenton, First Century, no. 5. For a different opinion, see J. A. Green, ‘Aristocratic women in early twelfth-century England’, in Anglo-Norman Political Culture and the Twelfth-Century Renaissance, ed. C. W. Hollister (Woodbridge, 1997), 59-82, at 74-5, 81. “7 A date of before 1135 perhaps relies excessively on the assumption that King Stephen is an unlikely legislator.

354 PART II: ANGLO-NORMAN ENGLAND of divisions and the precise internal arrangements within families. The overall thrust of the statutum decretum is clearer than the consistency of its effects.” Most commonly in family settlements but even then still only occasionally, it was laid down that inheritance should be restricted to the heirs of the grantee’s body, or of the grantee and a particular wife. However, such grants were not widely used as a way of limiting inheritance, and we find plenty of instances of inheritance by heirs other than the children of the deceased. The claims of grandchildren were in general accepted, although their position may have been threatened if the deceased was also survived by a younger brother." If the deceased lacked lineal heirs, succession by brothers and sisters appears to have been fairly secure. Sisters, for example, succeeded to the honours of Belvoir and of Bourn.’”°

It may be that inheritance by more distant relatives, nephews and nieces, aunts and uncles, cousins, was less secure; we do have instances where such kin are known to have succeeded, but also evidence that some claims were passed over or challenged. The position of the more distant relatives may have been particularly threatened if they were absent or were minors at the time of succession, or if external circumstances were disruptive. Absence may even have threatened the succession of sons or other close heirs.’** However, genealogical proximity normally prevailed; we see, for example, an adult uncle being unsuccessful in pressing an inheritance claim at the expense of a son who was a minor.” Two particular kinship situations seem to have caused repeated problems. The first was that of the half-blood, the heir whose mother had remarried. For example, there were long-running disputes over the succession to the inheritance of Maud, daughter of Earl Waltheof and Judith, niece of William the Conqueror; Maud married Simon de Senlis and then David, earl of Huntingdon and king of Scotland.’ The other situation that certainly later caused trouble was when a man left a grandchild by a deceased son, and also a younger son or daughter; this situation will be discussed in the context of Angevin land law.

"® Glanvill, vii. 3, ed. Hall, 76; below, 649-50; Holt, ‘Heiress and alien’, 252-9; Green, Aristocracy, 379-81; cf. Milsom, ‘Inheritance by women’.

™” See below, 650-1. For inheritance by grandchildren, and a possible instance of a refusal of grandsons claims, see Hudson, Land, Law, and Lordship, 113-14. *?° For inheritance by brothers and sisters, see Hudson, Land, Law, and Lordship, 114. 2! Hudson, Land, Law, and Lordship, 114-16; note also Holt, ‘Politics and property’, 129 n. 99. Inheritance by ascenders, that is by parents or grandparents, appears not to have been allowed. 2 Lawsuits, no. 145 (quoted below, 452-3); this is an example of the second type discussed in the next paragraph. ‘2° Hudson, Land, Law, and Lordship, 116-18; Pollock and Maitland, ii. 302-5. See also below, 356, on the Marshwood inheritance. '*2 See below, 650-1.

14 LAND 355 Inheritance of castles and of some offices was probably less secure than that of land.’ At least in part this was a matter of deliberate policy by kings and lords. Only from Stephen’s reign do we have many charters, usually in favour of powerful lords, granting shrievalties and using inheritance language.’® Also in Stephen's reign we see disputes over inheritance of castellanships, for example between the nephews of Simon de Beauchamp and his daughter and heiress concerning Bedford castle.’” The strength of inheritance custom regarding land may itself have encouraged pursuit of hereditary claims to castles and offices.

Nominating an heir The Leges Henrici raise the possibility that in certain circumstances a man might nominate an heir, and King Stephen constituted Duke Henry his heir in 1153.’

Nomination of an heir might seem contrary to the customs of genealogically determined succession, and to distinguish Anglo-Norman practice from later inheritance law. However, in most cases where a layman is said to have made another his heir, the beneficiary was already his genealogically closest heir.’ Such nomination was a method of securing the heir’s position, not of changing the pattern of inheritance.*° Other claims to succeed Other claims might be brought, no doubt supported by proffers, that is offers of gifts or payment. On occasion a man might claim an inheritance on the grounds

"9 See also Holt, ‘Politics and property’, 131-5. Note also P. A. Brand, “The rise and fall of the hereditary steward in English ecclesiastical institutions, 1066-1300’, in Warriors and Churchmen in the High Middle Ages: Essays presented to Karl Leyser, ed. T. Reuter (London, 1992), 145-62. On claims to earldoms, in particular during the reign of Stephen, see D. B. Crouch, The Image of Aristocracy in Britain 1000-1300 (London, 1992), 67-9. Royal succession after 1066 was guided by norms regarding

primogeniture and inheritance and acquisition similar to other inheritances, but obviously with a strong political element compounded by the complex family situations arising on the death of a large proportion of kings during the period; see Tabuteau, “Role of law’; Garnett, Conquered England. ‘2° See Hudson, Land, Law, and Lordship, 82-3. 7 Gesta Stephani, 23, ed. and trans. K.R. Potterand R. H.C. Davis (Oxford, 1976), 46-50, Orderic, Ecclesiastical History, xiii. 36, ed. Chibnall, vi. 510. 8 LHP, 88.15, ed. Downer, 274-6; RRAN, iii. no. 272. "29 See e.g. Mowbray, no. 3.

*°° See Hudson, Land, Law, and Lordship, 124-5; note that these arrangements often concerned acquired rather than inherited lands, on the significance of which distinction, see below, 360. Note also B. Dodwell, ‘Some charters relating to the honour of Bacton’, in A Medieval Miscellany for Doris Mary Stenton, ed. P. M. Barnes and C. F. Slade (NS 36 PRS, 1962), nos 2-4 (where the beneficiaries were an uncle and then a cousin); Lawsuits, no. 226. On bequests of land, see also below, 366.

356 PART II: ANGLO-NORMAN ENGLAND of faithful past service. Outstanding service to Lucy, mother of William I de Roumare, by a certain Robert, her nephew or grandson (nepos), gained him a grant from William of land that had been held by his uncles, even though at least one of those uncles had a child. However, some such claims were unsuccessful, even when the genealogically closest heir had been far from faithful.’ In other cases, arrangements might focus on future, not past service, the suitability of the heir being at issue. It was later recounted that a younger son had held his father’s land by the will [voluntatem] of Henry I because he was a better

knight than his older brother. However, in this case concerning the honour of Marshwood, Dorset, it is notable that the sons were of different marriages, and it is possible that the older son received lands in Normandy.” It is hard to determine the significance of such cases. They could represent a small sample of a significant group otherwise unknown, the disappointed parties leaving no trace. Alternatively, they could be highly exceptional instances, the unsuitability of the older brother being obvious at the time of succession.

Conclusion Overall, then, we have considerable evidence for customary security of succession, particularly by genealogically close heirs. This situation fits with other evidence as to assumptions; for example, it is hard to believe that Domesday Book would have been worth compiling unless it was expected to continue to have some purpose after the current tenants’ deaths. We also have evidence of kings coming to the support of potentially disappointed heirs. In a case discussed earlier, Modbert obtained a royal writ to make the church of Bath accept his claim to inherit North Stoke from Grenta, whilst the 1130 Pipe Roll records Walter fitzOdo rendering account of £21 13s. 4d. ‘for justice concerning his inheritance from the countess of Chester’. The possibility of royal intervention strengthened the heir’s title to land, reduced that title's reliance on the lord choosing to renew tenure.”

Nevertheless, the strength of the heir’s position might vary according to circumstances. These included the relative power and attitude of lord and man. There must have been other lords like William Rufus who, in the words of the Anglo-Saxon Chronicle, ‘intended to be the heir of everyone, clerical and lay’..%4

Although often their interests must have been shared, at times attitudes of lord

**! See Hudson, Land, Law, and Lordship, 126-7. "2 PRI1OJ, 113 n. 8; Green, Aristocracy, 339. See also the case in RCR, i. 360.

“°° Lawsuits, no. 226, on which see also above, 318; PR31HI, 114. See also Hudson, Land, Law, and Lordship, 133-8. "4 ASC, 1100.

14 LAND 357 and tenant may well have clashed. In certain circumstances the clash might involve differing perceptions as to what was good custom, for example as to the claim of a distant or arguably unsuitable heir. In such ways there were limits as to how far heirs were immediately entitled through abstract rules of law. The limits of abstract rules may also be significant in another related way,

although one that is hard to uncover from the surviving evidence. We know of cases such as the rejection of the older son as heir of the Marshwood inheri-

tance because it was later decided that the rules had not been applied earlier and therefore the situation had now to be corrected.%° Such reversals become known from the late twelfth century when royal court records survive. People earlier nursed long-standing inheritance claims, and might successfully pursue them. However, if a claim was rejected in a way that was widely accepted as in accordance with good practice—although not by the disappointed claimant—it might be hard to have the consequences of the decision reversed. If so, the situa-

tion in the Anglo-Norman period differed from that existing by 1200 when abstract rules might be applied retrospectively in all but a few particularly difficult cases.”

5 ALIENABILITY Process As with inheritance, alienation involved the balancing of various interests, notably

those of the donor, his family, his lord, and the donee. Prior negotiation might ensure that the interests of the various parties were satisfied, and occasionally we hear of the prelocutio, the prior discussion, before a gift, or even have a document that seems to have formed part of the negotiation.3* A payment or gift might be made for the land, either in advance or at the time of the transfer. Sometimes these

°° See Milsom, Legal Framework, 154, for the following definition of inheritance: “When the ancestor dies, the heir is at once entitled under abstract rules of law and enters without anyone's authority. "°° Above, 356.

*°” Thus in Anglo-Norman England a descendant ofa disappointed claimant might consider himself heir, even though someone else had been wrongly accepted, but as yet there may not have been a general legal categorization of such men as lawful heirs with rights that they could routinely enforce through court action; cf. below, ch. 24. For remaining difficult cases, see below, 650-1, on the casus regis.

“8 See Stenton, First Century, nos 5, 42; Historia ecclesie Abbendonensis, ii. 23-4, ed. Hudson, ii. 24-6.

358 PART II: ANGLO-NORMAN ENGLAND are presented as purchase prices, sometimes as countergifts, the voluntary nature of which was emphasised."°

Land might be transferred either by substitution or subinfeudation. In the former the donor surrendered the land to his lord who then gave it to the beneficiary, who therefore became the lord's tenant. Such seems to have been the less common form of granting lands held by military service, and this may explain why some charters described the process at some length. In c. 1120 x 1140 William de Anesye gave his land of Sherfield English, Hampshire, to his son Richard and Richard's heirs, to hold from William’s lord, Henry de Port and his heirs. By the counsel of my friends and peers I gave that fee back to my lord Henry de Port, with the assent of William de Anesye my heir, and my lord himself, Henry de Port, seised Richard de Anesye my son of that fee and received his homage, on the same service as I served, that is by the service of one knight.

The transaction took place at Basing, Hampshire, the head of Henry's honour, and the witnesses include many who can be identified as Henrys men."° In subinfeudation the grant was made directly by donor to donee, the latter to hold from the former, although if the grant were made to a church, this element of tenure might be downplayed or even disappear.” Livery of seisin was necessary to make a grant of land complete. Livery was marked by a ceremony, for example the transfer of a rod or a ring. A lord could use a representative to carry out the seising,’” and the livery might take place on the land itself, or probably through a symbolic transfer, for example at the recipient church." There were further methods of securing gifts. A late eleventh-century charter of Geoffrey de Mandeville for Westminster Abbey records a ceremony supplementary to seising: With my wife Lesceline, and by concession of my son William whom I have arranged

to make my heir, both of whom I wish to share in this alms in everything, I placed this gift to God and St Peter on the altar of the said apostle Peter in the presence of Abbot Gilbert and of the monks and many of my and their knights. And to continue I made St Peter be seised of the said manor through Ralph de Hairun."*4 "°° See Hudson, Land, Law, and Lordship, 164-6. For the occasional use of sureties or pledges concerning the fulfilment of the terms of grants, see Hudson, Land, Law, and Lordship, 158. *“° Book of Seals, no. 301. William was presumably the elder son, Richard the younger. “* See below, 370. “* See e.g. below, on Ralph de Hairun. “*° See Hudson, Land, Law, and Lordship, 160-4; S. E. Thorne, ‘Livery of seisin’, in his Essays in English Legal History (London, 1985), 31-50; at 39-41 he argues that livery on the land was not a requirement in the Anglo-Norman period, cf. below, 654. ‘* Westminster Abbey Charters, 1066-c. 1214, ed. E. Mason (25 London Record Soc., 1988), no. 436.

14 LAND 359 Objects used in such ceremonies might be preserved, for example amongst a church’s treasures or archive, to be available in case of dispute. They thereby resemble charters, another way of preserving memory of the gift. Both object and charter, it was hoped, would survive longer than the witnesses to a grant, but these too had a vital role in making it secure. A writ of Henry I records the rejection of a claim made in his court against Gloucester Abbey, an essential point being ‘that Adam de Port and William fitzOdo have witnessed before me that they were present when Roger of Gloucester gave that manor in alms to the church of St Peter and the monks who serve God there and when I, at Roger's request, granted them that donation’.“° Women on occasion acted as charter witnesses, but usually this was a matter of witnessing by wives or occasionally mothers of the grantors.’”” Gifts to the Church might be protected by the promise of future blessings for those who maintained them, spiritual penalties for those who harmed them.'** Some penalty clauses were elaborate, others simple; a charter of Baldwin de Redvers recording gifts of land in England to the abbey of Savigny in Normandy closed with the words ‘he who presumes to violate this donation is to be punished with eternal malediction’.'*? On other occasions earthly rather than spiritual threats or penalties were spelt out to encourage the maintenance of grants: ‘if anyone henceforth tries to break my gift he shall be the adversary of myself and all my predecessors and all my friends.’*°

Consent to alienation Counsel was a feature of many aspects of medieval life, but interested parties might participate in gifts for more specific reasons. Kin might wish to share in transfers of land to the Church for spiritual benefit.’* In addition consent should promote and manifest family harmony.” The obtaining of consent aimed to reconcile the interests of different parties and perhaps their differing perceptions of good custom, for example between generations or between Church and laity. In the

“> See D. Postles, “Choosing witnesses in twelfth century England’ (1988) NS 23 Irish Jurist, 330-46, esp. at 333-4. ° Lawsuits, no. 248 (RRAN, ii. no. 1485). “7 See e.g. Postles, ‘Choosing witnesses’, 340-2; note also Crouch, Image of Aristocracy, 35-7. “8 See e.g. Stenton, First Century, no. 5. “Redvers, no. 17. See also Hudson, Land, Law, and Lordship, 166-71. "°° Stoke by Clare Cartulary, ed. C. Harper-Bill and R. Mortimer (3 vols; 4-6 Suffolk Charters, 1982-4), no. 144. *°! See Hudson, Land, Law, and Lordship, 188-9; S. D. White, Custom, Kinship, and Gifts to Saints (Chapel Hill, 1988). *°? This is likely to be one of the reasons for the higher frequency of consents within the potentially

contentious area of family grants; see Hudson, Land, Law, and Lordship, 200-2.

360 PART II: ANGLO-NORMAN ENGLAND context of land law, the main question is whether consent was required for a gift of land, in all circumstances, some circumstances, or no circumstances. Analysis will deal first with participation by kin, and then by lords.

One is faced again with the problem of lack of negative evidence; it is very unlikely that a proposed grant blocked by the kin or lord would leave any trace. Instead, one has to rely on assessing what proportion of charters record consent. Even here problems remain. For example, it is very likely that kin consent was more desirable for grants of land that the grantor had inherited than of land that he had acquired himself by purchase or gift, but it is often hard to discover whether land was inheritance or acquisition.’® Consent of heirs and other family members had sometimes been recorded in Normandy before 1066, but not in Anglo-Saxon England.’ In England after 1066 consents appear very rarely in royal charters.** However, they are rather more common in non-royal charters recording gifts to churches, perhaps most clearly below the level of the greatest families. There is some variation between families, with, for example, significant frequency in charters of the Redvers family, a notable absence in those of the Mandevilles.*° There is also distinct variation between recipient churches, for example with consent being recorded frequently in charters for Oseney, less frequently in those for Eynsham, both of which houses were in Oxfordshire.” Consent is very rarely recorded in grants to unrelated laymen, rather more commonly within family arrangements.’* The desirability, or indeed the perceived need for consent, might vary with circumstances, for example the genealogical proximity of the heir, or the sex of the donor.'’® As far as can be told, consent is generally recorded for grants of inherited rather than acquired lands. The range of family members consenting was normally narrow, only rarely extending beyond the wife—perhaps related to

*°> See Hudson, Land, Law, and Lordship, ch. 6. Note also the explicit statement in a late eleventh-

century charter for the abbey of Saint-Pere de Chartres, where a son renounces his claim against his father’s grant to the abbey, ‘saying that his father was allowed to give to anyone what he had bought with his own money, even though his sons were opposed’; Cartulaire de l'abbaye de Saint-Pére de Chartres, iii. no. 41, ed. B. Guérard (2 vols; Paris, 1840), ii. 497. *°* Tabuteau, Transfers of Property, ch. 8; above, ch. 5.

*°° For this and what follows, see Hudson, Land, Law, and Lordship, 184-8. For the historiography of consent to alienation in England, see Hudson, Land, Law, and Lordship, 174-8.

"°° See e.g. Redvers, nos 16, 19, 22-8, 32, 34; Hudson, Land, Law, and Lordship, 185, on the Mandevilles. On the relationship of witnessing to consent, note Postles, “Choosing witnesses’, 335-7.

*°7 TD. Postles, “Securing the gift in Oxfordshire charters in the twelfth and early thirteenth centuries’ (1990) 19 Archives 183-91.

*°§ Hudson, Land, Law, and Lordship, 197-202. ‘°° See Hudson, Land, Law, and Lordship, 197.

14 LAND 361 her claim to her inheritance, dower, or marriage-portion—and the heir or other children, who were of course potential heirs.’®°

How far was consent related to fear of future challenge to the gift?’ Such challenges occurred most commonly after the donor’s death, when the heir saw

a chance to restore his inheritance, but perhaps challenges could occur even during the father’s lifetime. Why did they arise? That the heir had a generally accepted right not to continue his predecessor's gifts seems unlikely, as already noted; consent was not a necessary waiving of such a right.’” Rather, consent was prudent, for disputes might arise in cases where it was questionable whether the donor had acted reasonably: perceptions of reasonableness might differ between donor, donee, and donor’s heir. Such disputes might arise over the gift of land itself, or over issues such as performance of services that might escalate into disputes over continuation of the gift. Such an interpretation fits the prevalence of consents in gifts to churches and to family members; these were the gifts most often made for reduced services and hence most likely to be seen by the heir as being to his disinheritance. Disputes might also arise from an heir seeking to discontinue a gift in a fashion widely seen as wrongful. Miles of Gloucester’s foundation charter for Llanthony Secunda stated that we, my wife Sibyl and my sons Roger, Walter, and Henry, made this gift in the church of the canons at Gloucester, thus that Roger, now a knight and married, swore on the

altar of Mary and on the four Gospels that he would never thenceforth do wrong, or seek harm, or any diminution to the canons in anything concerning that manor, neither through his own deed or another’s; my son Walter also swore the same.’

To obtain consent might, therefore, be considered prudent, even on occasion for grants of acquisitions. The more ways in which a grant was rendered secure, the better in the eyes of donor and donee: Herbert fitzHelgot wanted to avoid any claim being made after him concerning those things that his father or he conferred on [Shrewsbury Abbey] and, although they had been strengthened in a charter of the king, he wanted his sons to confirm them by their own grant. He therefore sent them with their pious mother to this church, i-e. Eutropius, who was to be the heir after the father, with his other brothers Nicholas *°° See below, 445-51, and Hudson, Land, Law, and Lordship, 205. Note also Stenton, First Century, no. 5.

*®! See also Hudson, Land, Law, and Lordship, 191. *©? See above, 360. Nor does such an explanation fit with the lesser need to obtain consent to alien-

ation of acquisitions. *°° See also Hudson, Land, Law, and Lordship, 199-202. *°* “Charters of the earldom of Hereford, 1095-1201, ed. D. Walker, in Camden Miscellany, xxii (4th Ser. 1 Camden Soc., 1964), no. 2.

362 PART II: ANGLO-NORMAN ENGLAND and Herbert, and having prayed in the chapter and granted the donations of their father and their grandfather, they took the text of the Gospel with their own hands and offered on the altar of St Peter before many witnesses what had been granted.’®

Overall, then, absence of consent does not appear to have invalidated a reasonable gift even from inherited lands, that is a gift leaving sufficient land to provide for the heir."°° An exception was deathbed gifts, where the clash of interests between

donor and heir, concerns about the mental capacity of the dying, and the need for someone to deliver seisin, may have combined to make the heir’s consent a requirement.’” Aside from the deathbed gift, the amount that could be given was again a matter of reasonableness rather than strict rules.’ A charter of Roger de Valognes for Binham Priory makes clear the lack of a fixed proportion of his land that a man might give to the Church. He acted by the advice and with the approval of many wise men, and especially by the exhortation, the prayers, and the counsel of the lord Theobald archbishop of Canterbury and primate of all England, who showed me by reasonable and most truthful arguments that a noble and generous man who has a fee of six knights should most justly give not only the third part of a knight's land to God and the holy Church for the salvation of himself and his kin, but the whole of a knight's land or more than that.’

As far as we can tell, the general norms did not cover various problematic situations, for example when the consenting heir predeceased the donor or when a closer heir was born after the gift had been made.”° Seignorial participation was essential in grants by substitution, as they involved surrender of the land to the lord and then gift by him. Substitution appears to have been used in two main situations. The first was gifts of acquisitions, where the tenant’s hold on the lands was particularly closely tied to his relationship to his lord. According to a charter of Henry I referring to a grant to the monks of Malvern, Osbert fitzPons “gave back the land into my hand, freed and quit from any claim of his heirs, just as [sicut] he held this not by succession from his relatives but by gracious gift of my father. And I gave it to the said monastery....’"”’

The other significant group were family arrangements, some but not all of which involve acquisitions. It may be that the intention was to avoid homage

‘°° The Cartulary of Shrewsbury Abbey, ed. U. Rees (2 vols; Aberystwyth, 1975), no. 1. *°° See also below, 364, on Stoke by Clare, no. 137 (ii).

*°” See Hudson, Land, Law, and Lordship, 195-6. For pressure from clerics, see also Andrew of St Victor, quoted in Smalley, Study of the Bible, 116.

*°8 See also Registrum Antiquissimum, no. 328. “°° Stenton, First Century, no. 5. "7° See also Hudson, Land, Law, and Lordship, 189-90. ‘7. RRAN, ii. no. 1489.

14 LAND 363 relationships within the family, either out of a general sense that lordship and kinship could be incompatible or because such homage would affect the pattern of succession to the land adversely for the donor and his heirs.” Lords’ consent to their tenants’ subinfeudations is not recorded with great frequency. This may be because the lord’s participation was simply assumed. However, when, at the start of Henry I’s reign, the abbot of Abingdon granted lands to William the king’s chamberlain, he did so on the condition that ‘he should never sell, or gage, or give that land in fee or fee farm to anyone’.”? The need

to spell out this condition indicates that at least sometimes control of alienation could not be assumed as a routine part of lordship. Only very rarely does a lord’s confirmation state that he ‘gave’ the land concerned, phraseology that might be taken to indicate the lord’s direct control of the land; rather the verbs ‘granted’ or ‘confirmed’ were normal.’4 Furthermore, lords were not always stronger than their men, and it may be questioned whether a powerful tenant would need to request the consent of a relatively weak lord. Lords’ participation was intended both to strengthen the gifts, and to protect the lords’ own interests. Threats might come from the donor or, perhaps more likely, the donor's heirs, or from outsiders. Seignorial consent could be a confirmation that the land had indeed been the lord’s to give to the donor. It might also constitute a promise that the lord would not himself, or in co-operation with others, seek to reverse the gift, or oppress it with excessive demands.” Likewise seignorial consent could protect the recipient against the consequences of escheat or forfeiture by the donor or his heirs. The lord’s consent also protected his own interests. Presumably he would be concerned that grants might be made to his enemies.”° Concern about alienation to monasteries is clear in a charter of Roger, earl of Warwick, from Stephen's reign, recording that Hugh fitzRichard gave William Cumin a manor in fee and inheritance thus that William could give it to whomsoever he wished, ‘whether to a cleric, a layman, or even, if he wished, to religion’.’”” Gifts to the Church might threaten services and jurisdiction, as well as possible escheat, wardship,

*’* See below, 651; Hudson, Land, Law, and Lordship, 209-11. '’° Historia ecclesie Abbendonensis, ii. 182, ed. Hudson, ii. 188; note that the passage may have been composed in the early 1160s, as it is not from a charter. *7* See Hudson, Land, Law, and Lordship, 213-14; note also e.g. Redvers, no. 2, for use of the verb ‘to give’.

"7° See Hudson, Land, Law, and Lordship, 218-21, and also 225 on consent for gifts in special need of protection. ‘7° For the point later being made in Normandy, at least with regard to the lord’s mortal enemy, see TAC, 91, ed. Tardif, 101.

‘’” Formulare Anglicanum, ed. T. Madox (London, 1702), no. 2; see also below, 835.

364 PART II: ANGLO-NORMAN ENGLAND marriage, and relief.”* In theory a tenant, when he granted lands to another, remained obliged for the entirety of the service to the lord. In practice, however, there was concern about the tenant’s continuing ability to perform services.’ It is therefore not surprising that seignorial consent was particularly recorded for the types of gift often made for no or reduced service, that is gifts to the Church or to family members."*° Seignorial confirmations also indicate that services were the lord’s primary interest, at least by the latter stages of the Anglo-Norman period. Another charter of Earl Roger of Warwick datable to King Stephen's reign records that certain men gave Cawston to the abbey of Pipewell, with the consent of their lord Henry of Arden and his heirs. The earl, his wife and heirs gave and granted and quitclaimed to the abbey all the services that Henry and his heirs owed from Cawston. Here we have the tenant as the donor of land, the overlord as donor of the services.” A lord provided such consent and such concessions for various reasons. He would have assumed that his men, like himself, would wish to make grants. His agreement displayed his good lordship. An increase in sub-tenants, or spiritual benefits from gifts to churches, might also be attractive, as might the direct links established by consent or confirmation. At the same time he would be intent on

ensuring that the amount given was reasonable, or even set a limit as to how much his tenant might grant to a church. According to a charter of Archbishop Theobald, datable to 1150 x 1161, Gilbert de Clare had ordered his barons to give as much of their lands, churches, and tithes as they wished to the monastery of Stoke by Clare, ‘without the disinheritance of their successors’.’*” The conclusion that lords would generally but not always be willing to allow tenants to make grants fits with the increasingly frequent charters recording that a lord confirmed all his tenants’ future gifts.’ A charter of William de Roumare from 1141 x 1142 states that ‘I grant that if anyone from my fee wishes to give something to [the church of Nunburnholme], he is permitted to give it to them, save my service .*** Advance confirmations often included the statement that such

‘’® For dislike of distraining upon lands given to the Church, see e.g. RRAN, ii. no. 1738. ‘”? See e.g. Textus Roffensis, fo. 230v, a charter dated 1143. "°° On grants to family members, see also Hudson, Land, Law, and Lordship, 223.

**' London, British Library, Cotton Caligula MS A. xiii, fos 85v-86r. Cf. Lawsuits, no. 240, also involving Earl Roger of Warwick. Note also Oxford, Bodleian Library, MS Dugdale 12, p. 259, an antiquarian copy ofa charter of Robert, earl of Leicester, which includes confirmation of various gifts by his man; in one case it states that that he quitclaimed the service from the specified land “because [quia]’ the gift had been made with his assent. *S* Stoke by Clare, no. 137 (ii); see also Hudson, Land, Law, and Lordship, 223-4. Gilbert had founded his church at Clare in 1090. "8° See e.g. Redvers, no. 24. "84 EYC, x. no. 66.

14 LAND 365 gifts should be made justly, lawfully, or reasonably. Such grants seem to allow the lord retrospective capacity to challenge a gift, for example if it were made to an undesirable donee or if it threatened his services. However, they also seem to suggest some relaxation by the lord of his control over alienation. On occasion a gift was recorded as made by the counsel or consent or at the request of the donor’s barons.'** However, such consent was rarely mentioned even in comparison with the participation of heirs and seems to have been a manifestation of good lordship, certainly not a legal requirement. Hugh, earl of Chester, was presenting himself as a wise lord in a letter to the abbot of Abingdon when he stated that ‘I inform you that I have spoken with my wife and barons about the land that you sought from me, and I have found in my consultation that I may grant it to God and to the holy Church, the pastoral care of which is placed on you.’*°

Was the consent of the tenant necessary if he was to be transferred together with his land and services? If the man had no choice but to accept this transfer, it may be referred to as ‘forced attornment’. Unfortunately, it is in general unclear whether a man given with his land had agreed to the transfer,’*” or indeed how free his choice would have been."** On occasion, however, the transfer is presented as the result of a seignorial order: Humphrey de Bohun, whilst staying at his village of Oaksey with Abbot Faritius, quitclaimed in perpetuity to the church of Abingdon and to that abbot two hides at Benham, free from all claim. He ordered that Walter de Rivers, who had previously recognised his lordship of these hides and held them from him, hereafter should recognise the lordship of, and in perpetuity hold from, the church of Abingdon and from the abbot, and do homage concerning this to the abbot, who was present. Shortly

after this, Humphrey sent his chaplain Serlo with William the monk, and through him he seised the church and abbot of Abingdon concerning this, his grant. After the completion of these matters, Walter de Rivers...came to Abingdon and there did homage to Abbot Faritius for the aforesaid land, and undertook to recognise the lordship of, and hold it from, the church."

This example of a lord ordering the transfer of land, man, and homage comes from the reign of Henry I, but from the same reign we have evidence of great men

"8° See e.g. Hudson, Land, Law, and Lordship, 228; Stenton, First Century, 90-1; Postles, ‘Choosing witnesses’, 337-8. 8° Chester, no. 2 (= Historia ecclesia Abbendonensis, ii. 24, ed. Hudson, ii. 24-6). *®7 See e.g. Stoke by Clare, no. 69; RRAN, iii. nos 393 (refers to services of the men, and all their fees wherever they have them). On transfers of tenants to new lords, see e.g. Redvers, 20; Book of Seals, 110.

“8S For a later account of a man having agreed to hold of a new lord, see W. Farrer, Honors and Knights’ Fees (3 vols; London, 1923-5), ii. 186-7. Note also RRAN, iii. no. 690. ‘®° Historia ecclesie Abbendonensis, ii. 155, ed. Hudson, ii. 156-8.

366 PART II: ANGLO-NORMAN ENGLAND expressing dislike of such treatment.’”° In the 1130 Pipe Roll Robert de Cealsa rendered account of 7m. of silver so that Simon de Beauchamp his lord might not give his service without his grant. Robert may be paying to prevent an action normally accepted as a lord’s customary right, or an action that at least some might see as oppressive but that was a distinct possibility. In either case, he was looking beyond the honour to the king to strengthen his position.”

Bequest of land

Various forms of gift could be made with the purpose of passing lands to a party other than the heir after the death of the donor: by deathbed gift,’ by an oral or written promise that was revocable until death, by a gift made in the donor's lifetime but perhaps only completed by transfer of seisin after death, or by a gift completed in the donor's lifetime but with the donor receiving the land back until death.’ It is uncertain how frequent were these forms of gift, particularly those not completed before the donor was dying or dead. At least written bequests of land seem to have been less common than in the late Anglo-Saxon period, perhaps reflecting concern about gifts seisin of which only passed to the donee after the donor's death.’* It may well be that the move against bequest

of land, which we will see in the Angevin period, was already under way in Anglo-Norman England.

Widows control of land Widows, even if childless, retained their dower and their marriage-portions, as will be discussed in the context of family law.’ They might also keep their own inherited lands, and have full control of these. In about 1135 Countess Lucy of Chester, widow of Ranulf I, gave certain tithes from her demesne to Spalding

°° Note Orderic, Ecclesiastical History, xi. 10, ed. Chibnall, vi. 58, on William, count of Evreux, learning that he was to be handed over to Henry I, ‘as ifa horse or an ox’. °! PR3IHI, 62. See also e.g. EYC, i. no. 628, a promise not to give away the services of a man or his heirs; Essex Record Office, D/DBa T2/1, a charter of Geoffrey II de Mandeville. *°* See above, 362. °° See e.g. Textus Roffensis, fo. 210v; Ramsey Chronicle, 247, ed. Macray, 236-7.

4 See also Pollock and Maitland, ii. 323, 326-7; Sheehan, Will, 107-19, 266-9; J. C. Holt, ‘Feudal society and the family in early medieval England, I: the revolution of 1066, in his Colonial England, 161-78, at 165-6. See Anglo-Saxon Wills, no. 39, for a will from soon after the Conquest but in the Anglo-Saxon form. On elaborate processes needed to secure a grant from a man struck down by illness, see The Great Chartulary of Glastonbury, ed. A. Watkin (3 vols; 59, 63, 64 Somerset Record Soc., 1947-56), i. no. 172. "°° See below, 445-51.

14 LAND 367 Priory in pure and perpetual alms. It seems likely that these lands were part of her inheritance, and the charter uses a phrase that is characteristic of later grants of this nature; Lucy stated that she acted ‘in my full power [in mea libera potestate]’. The charter only survives asa cartulary copy, but this may be acceptable as an early instance of the phrase. The document makes no reference to her sons’ consent,

and they do not appear amongst the named witnesses. Another document of Countess Lucy records her gift of various lands, in pure and perpetual alms, to the nuns of Stixwould. It is addressed to Lucy’s sons, Earl Ranulf II and William de Roumare, and it asks that they maintain and guard ‘this my and your alms,

for it shall be most useful to me and you before God’, but it also makes clear that the gift is Lucy’s own, and there is no mention of her son’s consent. Her sons, or at least Earl Ranulf, may have taken a different view because we have a charter of Ranulf stating that he had given what seem to be these same lands to the nuns; the charter does not mention his mother. Lucy’s view prevailed. In the second half of the century, Earl Hugh confirmed ‘the gifts that Countess Lucy my grandmother and Earl Ranulf of Chester my father made’ to Stixwould, but states clearly that ‘these things Countess Lucy gave to God and the aforesaid nuns in perpetual alms, and Earl Ranulf of Chester my father, granted and by his charter

confirmed.”

6 UNFREE TENURE As in the Anglo-Saxon period, our knowledge of landholding at the lowest levels of society is very limited. There probably was some distinction between forms

of landholding that were associated with free men, and those that were associated with the unfree.” However, there does not seem to have been a simple classification of unfree tenure, nor a clear set of legal indicators or consequences of such tenure. The term villenagium or the phrase in villenagio seems to refer simply to the land held by the villani, villagers, rather than to a particular type

of tenure.’ The degree to which the Conquest and subsequent Norman lordship changed the conditions of holding at this level of society must remain uncertain, because of limits of evidence. It may well be that there was more continuity across 1066 than at higher social levels, but also development during the Anglo-Norman period

°° Chester, nos 17, 19, 20, 142. °7 See e.g. the charter of William de Roumare, cited above, 334, below, 427.

8 See Faith, Peasantry, 251; also A. Williams, “The knights of Shaftesbury Abbey’ (1986) 8 ANS 214-42, at 221.

368 PART II: ANGLO-NORMAN ENGLAND because of changed economic arrangements.’”? Those holding such lands were likely to perform services both less clearly fixed and less honourable, although how far the services arose from their status, how far from their tenure it is hard to say. There may well have been considerable regional and local variation, as the relationships underlying such landholding were of local rather than wider significance.” The degree of security of tenure permitted or enjoyed is hard to discover. One

significant indication comes in a charter of Hugh son of Eudo for Kirkstead Priory, recording a gift of land in Great Sturton and dating from around the 1140s. Since Hugh’s demesne and his men’s lands were intermingled, presumably in strips, he gathered all the land in one area to give to the church, and provided

exchange to his men from his demesne. He thus recognised that the men had a claim to hold something from him, but not a particular piece of land.’” As for inheritance, the Leis Willelme state that a villein owed as his relief the best animal

he had, to be paid to his lord. The payment is lower, but presented in the same fashion, as the reliefs of earl, baron, and vavasour, perhaps suggesting that no clear distinction was drawn between inheritance practices for villani and greater men.*°? However, less security of tenure and of inheritance, and a more aggressive form of lordship, is suggested by a somewhat obscure passage of the Abingdon History, referring to the time of Abbot Reginald (1084-97): It used to be considered as law for the peasants throughout the abbey’s estates that any of them, into whom entered envy or desire of acquiring another’s possession, could expel the other from his holding, after filling the reeve’s hand with a gift of goods. Likewise, another hardship of the ordinary people: when anyone who had sons and a wife, who prospered with fertile fields and who paid his dues to his lord without any offence, found rest in his due end, no grace used to be allowed to his sons or wife, but they were expelled and an outsider, who paid money, was inserted into the profitable possessions of the dead man.?®

It is hard to tell whether such insecurity was a product of a particular form of tenure or status, or simply of wrongdoing by neighbours and officials. When

°° See esp. Faith, Peasantry. *°° E.g. on the north, see Barrow, ‘Northern society’, 12-14; Jolliffe, ‘Northumbrian institutions’, who emphasises personal rather than tenurial bonds. *°" Documents Illustrative of the Social and Economic History of the Danelaw, ed. F. M. Stenton

(5 British Academy Records of the Social and Economic History of England and Wales, 1920), no. 202; the pattern here seems similar to that in William de Roumare’s charter, cited above, 334, below, 427, where he offered rustici the possibility of an exchange of lands. *°?' Leis WI, 20; note that there is no equivalent statement in IJ Cn, 71. *°° Historia ecclesie Abbendonensis, ii. 29, ed. Hudson, ii. 34.

14 LAND 369 succession did take place there is scarce evidence as to its pattern.” As for alienability, transfers of land presumably were made in the manorial court, but it cannot be told if they were normally performed by surrender and admittance. In general, whilst the interests of lord and tenant may often have coincided, allowing a degree of customary security of tenure, succession, and alienability of the lands, social inferiority, lack of charters, and lack of potential outside support left lesser men more open to the discretion of lords and their officials. Villani might also be given or sold along with their land. For example, in c. 1090 a gift to the church of Rochester included ‘a villanus with five acres.*°> As we have

seen, greater men might be transferred with their land to new lords, but such transactions involving villani were probably much more routine and have required

less or no negotiation.”

7 ECCLESIASTICAL LANDHOLDING AND ALMS TENURE Churches could possess land on various terms. The old endowment of major Anglo-Saxon churches in general had a knight service quota imposed upon it after 1066.” Such land might be referred to as the feodum of the prelate or church, although references to holding in feudo were in general avoided.*°* Churches and churchmen might also receive short-term grants.”” Anglo-Saxon diplomas and early post-Conquest charters commonly used the

vocabulary of inheritance to describe ecclesiastical landholding. However, this was rare in the twelfth century. Instead, new gifts of land to the Church tended to be made ‘in alms’, this phrase being complemented by adjectives such as ‘free’, ‘pure’, and ‘perpetual’. This change resulted from the ideas of Church reformers,

intent on separating the ecclesiastical from the lay. Further impetus came from royal charter draftsmen who, when confirming grants for which private charters used inheritance language, replaced such language with that of alms and perpetuity.”’° Alms language indicated the motive of the donor, and the obligation of the ecclesiastical donee to provide spiritual services.*" The frequent mentions of *°* For suggestions, see works referred to above, 352 n. 107. *°° Textus Roffensis, fo. 184r.

*°° See above, 365-6, on transfers of greater men, and some signs of their resistance. *°7 H. M. Chew, The English Ecclesiastical Tenants-in-Chief and Knight Service (Oxford, 1932), esp. ch. 1.

*°8 Hudson, Land, Law, and Lordship, 95-6. For an exception, see Historia et cartularium monasterii Sancti Petri Gloucestrie, no. 725. *°° See above, 341 n. 51, for a churchman receiving a lease of land. **9 See Hudson, Land, Law, and Lordship, 89-91. *™* See B. Thompson, ‘Free alms tenure in the twelfth century (1994) 16 ANS 221-43, esp. at 235, 242.

370 PART II: ANGLO-NORMAN ENGLAND freedom and perpetuity indicate that at least churches believed that the lands were to be held securely and lastingly. Otherwise, defining characteristics of holding

in alms were limited. There is no indication that cases over lands held in alms were the preserve of Church courts.”* The lordship dimension of landholding was certainly diminished, but not always excluded. Grants to the Church often but not always avoided stating that they were held of the grantor and his heirs. The lands might be but were not necessarily exempted from secular services. If the lands did owe secular service, the church might face distraint.” Regarding alienability, churches, or certainly monasteries, secular cathedrals,

and other major churches, were subject to particular obligations, including canonical ones. Charters giving or confirming lands to a church might state that they were granted to God, the relevant saint, the prelate and his monks. An abbot at his benediction was asked by the officiating bishop whether he would gather, as far as he could, the possessions of the church that had previously been unjustly dispersed; the abbot would reply ‘T will’."* Such an oath matched the basic line of the canons, that ‘it is not permitted for bishops to alienate church possessions [res] in any way. However, there were canonical qualifications, notably necessity or utility.*° Temporary grants might be permissible.”” In addition, there was the possibility of the abbot or bishop acting with consent: according to one collection well known in England, ‘a gift, sale, or exchange of church possessions by a bishop

shall be void if made without the consent and subscription of the clergy.” In practice churches did alienate lands, for example to fulfil obligations to the king or to satisfy the demands of their heads’ relatives.** Particularly in the latter case the interests of abbot or bishop and church could conflict. How then was alienation of ecclesiastical lands controlled? One method, as we have already seen, was to rely on leases.””° A second was to divide between the lands of bishop or abbot and chapter or convent. This was in part to ensure that a profligate prelate did not impoverish the whole church. The process was gradual, its chronology *"? See e.g. RRAN, iii. no. 887, for a dispute over land that had been given in elemosinam being heard in the court of the donor’s lord. *15 See e.g. Redvers, nos 3, 15; Lawsuits, no. 275.

*™ However, see above, 364, for donors’ obligation to fulfil services from other lands. **° See e.g. The Pontifical of Magdalen College, ed. H. A. Wilson (39 Henry Bradshaw Soc., 1910), 81. **° See Hudson, Land, Law, and Lordship, 231.

*"7 See e.g. Ivo, Decretum, iii. 183. On the authorship of works commonly attributed to Ivo, see e.g. C. Rolker, Canon Law and the Letters of Ivo of Chartres (Cambridge, 2010). *"8 Tvo, Panormia, ii. 86. **° See Hudson, Land, Law, and Lordship, 233-4. See also Thomas of Marlborough, Evesham, iii.

170, ed. Sayers and Watkiss, 174, on Abbot thelwig granting lands that he had resumed by his own efforts rather than his predecessors having acquired; a distinction like that between inheritance and acquisition seems intended. *2° See above, 340-1.

14 LAND 371 different for different churches. There are signs of a division in Domesday Book, for example lands being specified as coming ‘from the monks’ food’. However,

at this stage all the lands of a monastery appear to have been administered together, as at the monastic cathedral at Canterbury where Archbishop Lanfranc was recorded as holding lands assigned to the monks’ supply.” The same situation may have existed in secular cathedrals, but it is probably in these that a division of revenue first developed, perhaps by 1100, before spreading to monastic cathedrals. By the mid-twelfth century cathedral priors or deans and chapters had their own seals, to authenticate charters recording their own grants of lands. Although it is unclear when priors in non-cathedral monasteries gained their own Seals, a division of revenues was happening there too.” A further control on alienation was the requirement for the participation of the chapter or convent. This might be recorded in terms of a joint grant, or of consent, or of the prior or dean being the first witness.” Alienations made without consent could lead to dispute, between abbot or bishop and church, or between the alienee and a later abbot or bishop together with his church. A Thorney document records the following: Let present and future know that lord Abbot Gunter without the consent of the whole chapter of this church gave land in Yaxley and Sibson to Robert his nephew. On the death of Abbot Gunter of pious memory, Abbot Robert obtained the rule of this church. Hearing how the aforesaid Abbot Gunter had made this gift contrary to the will and prohibition of the full chapter, he, on the advice of his intimate advisors, refused to take Robert’s homage and ordered him through the monks and men of this honour that he should immediately give up that land which for many days and years he had held unjustly and contrary to the will of the whole convent.

Robert refused, and the abbot both took direct action against his possessions and obtained a royal writ ordering that he be reseised if Robert could not show that he had received the land by the chapter’s grant, that it was not appropriated to the support of the monks, and that the king had confirmed the gift to him. The case highlights various aspects of the control of alienation. We are presented with the king supporting the church’s arguments concerning the necessity of consent

*2" See e.g. DB, i. fos 58r, 781, 143v. *22' DB, i. fo. 3r.

*2°' On division of lands, and problems arising therefrom, see Hudson, Land, Law, and Lordship, 234-40; E. U. Crosby, Bishop and Chapter in Twelfth-Century England (Cambridge, 1994). The clergy

of a monastic cathedral were monks, those of a secular cathedral were canons, secular not monastic clerks; see Bartlett, England, 389-91, 398-9. *2* See Hudson, Land, Law, and Lordship, 238-9; see also e.g. the documents in Geoffrey of Burton, Modwenna, ed. Bartlett, xlvii-lxix. For an example from the 1070s, see Anglo-Saxon Charters, ed. Robertson, Appx I no. 2.

372 PART II: ANGLO-NORMAN ENGLAND for a gift to be valid. In addition, we see that division of property and consent go together. It may be that the convent’s consent was particularly necessary because the lands concerned were attributed to the monks’ support.*” Kings also claimed that lands of major churches should not be alienated without royal permission.”® Thus William Rufus forbad the abbot of Ramsey that he grant

any of his demesne land ‘without my permission and counsel, and late in his reign Henry I ordered the restoration to the abbey of Tavistock’s demesne of ‘all those lands that have been placed outside that demesne without my consent and confirmation since the death of my father William’’” In part the king may have been acting as any lord did regarding grants of lands that he regarded as held from him.” In addition the king was acting as protector of the Church, and protector of the spiritual benefits that he and his family enjoyed and of any worldly services that he was to receive.

8 CONCLUSION The Norman Conquest brought marked change to land law, particularly at the upper levels of lay society. Lower in society the impact of the Conquest may have been less dramatic. For example, some references to thegnland continue,”? and thegnly tenures may have passed on to those whom the Normans called serjeants.

Lower still continuities again may have been marked, for example in terms of inheritance patterns and services.”° Continuity of custom was encouraged in part by the background of the tenants involved and also by any disputes coming to courts with a larger English component than those that dealt with higher status cases. However, at all levels of society the imported ideas and the process of land redistribution in conquered England emphasised the connection between landholding and lordship. Even so, it is important that lords’ discretion was far from unlimited in matters relating to lands of lay free tenants, especially the more significant of these such as knights. A lord may have wished to emphasise his power, particularly at points such as the death of a tenant, but the view of the tenant and his family may have been rather different. Whilst use of possessive pronouns is no indicator of legal *?° Lawsuits, no. 272.

*2° See Hudson, Land, Law, and Lordship, 247-9; below, 668, on Glanvill. Note also Henry I’s probable restriction concerning grants of land from his foundation at Reading; RRAN, ii. no. 1427. 27 RRAN, i. no. 329, ii. no. 1663. *28 Note Acta of William I, no. 101. *29 See e.g. Lawsuits, nos 18, 132; Williams, ‘Knights of Shaftesbury Abbey’ 225. *°° See e.g. Faith, Peasantry, on Kentish gavelkind.

14 LAND 373 ownership, it remains significant that tenants saw lands as their own, and that this position was accepted by lords: a charter of Ranulf II earl of Chester states ‘know that I have given back to Henry de Tuschet all his land, which was of Henry de Tuschet his father and Jocelin de Tuschet his grandfather, as his inheritance’.

Tenants may indeed have aspired to hold independently of a lord, or at least only with the more distant and perhaps more honourable lordship of the king. Churches’ landholding was still further distanced from lordship. The lay tenant’s position could be reinforced in various ways, most of which probably grew stronger during the Anglo-Norman period. Possession of a charter provided some protection for man and heirs against their lord, although a lord might find ways of freeing himself from the bonds of a predecessor's charter.” Repeated succession and long tenure might strengthen the position of a tenant family. Henry of Blois as abbot of Glastonbury was hesitant to dispossess a man whom he considered a wrongful tenant ‘because of the antiquity of the situation’.**

A distancing of landholding from lordship is also suggested by a clause of the Leges Henrici concerning proof. In a dispute ‘concerning an increment of a fee, a witness should be had from the same lordship, summoned either on his [the claimant's] part or the lord’s. Concerning the original [primo] fee, any free men may be had [as witnesses], and if they cannot be, other men.”4 Procedurally, therefore, acquisitions were more an internal matter for the lordship than were inheritances. Also limiting the power of lords might be tenurial geography and multiple lordship; according to one visitor, there were as many lords as neighbours in England.» Compact lordships existed, but others were dispersed over a wide geographical area or intermingled with the lands of different lordships. In the latter type of honour the lord’s control may have been more limited than in the former. Furthermore, not all tenants need have been weaker than their lords, and it is possible that the social and economic status of knightly tenants was rising during this period.

°°" Chester, no. 85; see also Garnett, Conquered England, 109. °°? See e.g. Lawsuits, no. 258; cf. the tenant’s use of a false charter in no. 257. For increasing care in the wording of charters, presumably to make them more effective in case of disputes, see Hudson, Land, Law, and Lordship, 103. *2° Lawsuits, no. 292. *°* LHP, 48. 10-11, ed. Downer, 160; see above, 319. *8° J. Laporte, ‘Epistulaze Fiscannenses: lettres d’amitié, de gouvernement et d’affaires’ (1953) 43 Revue

Mabillon 5-31, at 30. For what follows, see Hudson, Land, Law, and Lordship, esp. 38-9, 48-50, 140-1, 152-3; also Garnett, Conquered England, 86, on Domesday tenants-in-chief also being sub-tenants. For multiple lordship, see e.g. Crouch, Beaumont Twins, 127, 131; for dispersed honours, see e.g. P. Dalton, Conquest, Anarchy and Lordship (Cambridge, 1994), 284. For a lord having to pay the king that he need not plead against his men concerning land that his father held in demesne, see PR3IHI, 29; it may well be that the men had been obtaining royal help, forcing their lord to do likewise.

374 PART II: ANGLO-NORMAN ENGLAND Tenants might also look to a variety of outside powers in dealings with their lords, for example having resort to their overlord. In particular, at least Henry I and perhaps his predecessors appear to have been significantly involved in matters of landholding, certainly within ecclesiastical honours and perhaps within lay ones as well, although the evidence for the latter is necessarily much more limited.**° Royal confirmations to sub-tenants might constitute promises of future help, even against their lords.” Other factors, for example the complexity of tenurial geography, encouraged royal involvements. Many neighbours would have had different lords, and Henry I's writ of 1108 directed to the county court pleas between the vavasours of two different lords ‘concerning the delimitation or seizure of land.*** And very occasionally a charter reveals a lord having to take into account the possibility of royal intervention. A grant in the 1120s or 1130s by St Mary's, York, to Ougrim of Frisemareis of land that Richard Tortus

had held of the church, stated that ‘if any heir of Richard Tortus can acquire that messuage of land from the king or deraign it against us or against the said Ougrim and his heirs, we will not give exchange to Ougrim or his heirs.” At least in this case, and for this lord, royal intervention, even if ad hoc, was a possibility that had to enter into calculations concerning landholding. These same factors may also help to explain the apparent lack of regional or honorial variation in landholding customs in the upper levels of society, for example regarding inheritance patterns.”*°

*°° For payments to the king by laymen relating to their treatment by their lords, see e.g. PR31HI, 85, 143, payments to be treated justly in the court of their lord; and esp. 93, “William son of Eudo renders account of 10m. of silver that the king help him in relation to the count of Brittany concerning his land’; 123, “Geoffrey de Hosa renders account of 29s. 8d. that he be reseised of his land which he holds from Adam de Port’. Note also the king imposing tenants upon lords; see Garnett, Conquered England, 66-7. *°7 Tt could be that the protection offered by the king to ecclesiastical beneficiaries rendered less necessary the practice, or at least the recording, of kin consent to alienation, which appears less frequently in English documents than, for example, those of western France; see Hudson, Land, Law, and Lordship, 206-7. Our evidence, overwhelmingly of ecclesiastical origin, shows the king backing churches against claims by heirs. However, note e.g. Lawsuits, no. 233B, for the king providing a writ for an heir of a man who, together with the heir, had quitclaimed a church to Ramsey Abbey. The claim was rejected, as the writ had specified that the heir be reseised “by justice [per rectum]’ and his claim was considered unjust. See also e.g. Geoffrey of Burton, Modwenna, ed. Bartlett, lvii (no. 13). See above, 361-2, for consent and royal confirmation being seen as complementary methods of securing a grant. Note also the lack of evidence in England, at least outside towns, for pre-emptive purchase by kin (known in France as retrait lignager); however, note Stenton, First Century, no. 7; LHP, 88. 14a, ed. Downer, 274. *°8 RRAN, ii. no. 892. *°° EYC, i. no. 310.

*“° Cf. above, 352, 369, on possible variations at lower social levels.

14 LAND 375 For all these reasons, by 1135 the position of the free tenant had strengthened in a variety of ways relating to security of tenure, inheritance, and alienability.

If lords and tenants sometimes differed in their models of good landholding practice, the views of significant lay tenants and churches, emphasising the importance of their right to the land as much as the tenurial significance of a personal bond to a lord, were strong by the time of Henry I’s death.** Such a situation provided the customary basis underlying the judicial measures later introduced by the Angevins.

*** See further J. G. H. Hudson, ‘Anglo-Norman land law and the origins of property’, in Law and Government, ed. Garnett and Hudson, 198-222.

15

Movables

Pos coxeee law continued to make a distinction between movables and

land, manifest, for example, in different inheritance practices.’ Other distinc-

tions were also made, sometimes in language that can confuse because of later usage. The Quadripartitus and the Leges Henrici distinguished movables and immovables, but as translations of the Old English words libbende and licgende, that is, contrasting livestock with other types of chattels.” Likewise, a passage in the Abingdon History stated that “Hugh the king's dispenser, with his wife Helewise’s approval, granted to

this church his tithe of all his goods, both movable things and immovables from the manor of Sparsholt which he held from the church? Whether this reflects the language of the time of the grant, just before 1120, or the likely time of composition of the History, the early 1160s, the distinction is again not between land and chattels; most likely it is between animals and arable produce.* However, canon law texts did use the terms in their later sense, as did ecclesiastical legislation in England at least by the late 1130s.* The most common Latin words used to refer to movables were catallum or its plural catalla and pecunia, both of which can mean goods in general, but can also refer specifically to cattle, whilst pecunia was also used to refer to money.°

1 OWNERSHIP Whilst the rights of the owner of movables continued to be limited in certain ways, notably with regard to procedures for regaining possession, he did have * See below, 377-9; note also above, 342, on distraint. For matters that would later come under the classification ‘contract’, see below, ch. 26. * LHP, 59. 21, ed. Downer, 188; IT Cn, 24; Pollock and Maitland, ii. 2. In Cn translates the phrase in IT Cn, 24, with ‘nec rem vivam nec mortuam nec jacentem’, the Cons Cn with ‘tam vivum quam mortuum’. For the Old English phrase, see also S 1536, the will of Wulfric Spot (1002 x 1004).

* Historia ecclesie Abbendonensis, ii. 230, ed. Hudson, ii. 224; the Latin is ‘de omni pecunia, tam de mobilibus rebus quam immobilibus’. Elsewhere the History distinguishes the tithe of the plough from that of, for example, ‘piglets, lambs, and fleeces’; see Historia ecclesie Abbendonensis, ii. 207, 211, 245 (‘tam segetum quam pecorum’), ed. Hudson, ii. 208, 212, 244. * See e.g. Ivo, Decretum, iii. 188; Legatine Council of Westminster 1138, 11, Councils and Synods, I, no. 139.

> DMLBS, s.v. ‘catallum’, ‘pecunia’. Catallum is related to the Old French chattel.

15 MOVABLES 377 full rights of use and disposition, powers that can be contrasted with the restrictions on those who possessed distrained, pledged, or loaned goods.°® A husband gained control of his wife's movables on marriage, but widows exercised similar rights to men/ The Leges Henrici mention the possibility of people placing their property in common, and then wishing to withdraw: If persons are associates [socii], having placed their chattels [peccuniam] in common,

and they wish to withdraw from that association and community, let them bring before witnesses whatever they have, to be gathered in common so that, if necessary, they may swear on relics that they have no more, and let them divide among themselves their acquisitions and gains as is just and as they agreed.*

Unfortunately we lack information on such partnerships in practice in the AngloNorman period, and cannot even tell what type of movables are involved.

Similarly, we know little about obligations to control movables in the Anglo-Norman period, beyond sections of the Leges based on or developing Anglo-Saxon laws.? The Leis Willelme mention payments made for animals, probably stray animals, that another—possibly the hundred reeve—had taken into his custody. The same text goes on to mention the possibility of dispute with another claimant concerning such animals."°

2 SUCCESSION Intestate

Practice for non-testamentary succession to movables resembles that in Anglo-Saxon England, and may also have been similar to that in Normandy before 1066, of which we know very little. Henry I’s coronation decree mentions both non-testamentary and testamentary disposal of movables after the owners’ death: If any of my barons or men be ill, just as he shall give or dispose to give his chattels [pecuniam], so I grant it to have been given. But if that man, prevented by arms or by ° For restrictions, see above, 150. On vulnerability, for example arising from a lord’s debts, see below, 704. For goods being pledged and then regained, see e.g. Historia ecclesie Abbendonensis, ii. 32, ed. Hudson, ii. 38; for goods being distrained and then restored, see RRAN, ii. no. 651 (which mentions dry grain and beasts as types of pecunia); Lawsuits, nos 187B, 209. ” On the villein and chattels, see below, 422. ° LHP, 54.1, ed. Downer, 170-2. > See LHP, 87. 1-3, ed. Downer, 264, on offences committed with loaned weapons. *° Leis WI, 5. The Latin version of the text specifies that the animals had strayed, and that the custodian was the hundred reeve. On reeves having pounds for distrained and other animals and chattels in their temporary possession, see above, 266.

378 PART II: ANGLO-NORMAN ENGLAND illness, shall not have given or disposed to give his chattels, his wife and children or relatives, or his lawful men, are to divide it for his soul, as seems best to them."

Both the Leges and other texts suggest some customary norms for non-testamentary succession. The Leis Willelme state that ‘if a man dies intestate [senz devise], his

children are to divide the inheritance equally among themselves, and this seems likely to refer to movables rather than land.” Another portion probably went to the widow, with the Church seeing itself as the proper destination of the third share. As for actual examples of post obit distribution of movables, a letter of Osbert of Clare, possibly from the 1130s, provides our best instance. Following the death of Roger de Sommery, his body was handed over to the monastery of Tewkesbury for burial. A day was set for the abbot and monks to take their share of a third, for the spiritual health of the deceased, and they came to the widow and sons, as summoned. Everything that was to be divided was brought into public view, and the wife even brought her household goods. She made division of the precious vessels and

the other ornaments. The wife in particular showed care in ensuring that correct procedure was followed; despite the efforts of the monks, she was unwilling that a cup of St Anselm, to which she was devoted, be removed from the collected goods and simply kept as hers.* Thus division was made by those who would receive the goods, rather than by executors appointed by the decedent in a will.“ Testate

Henry I’s coronation decree suggests that non-testamentary succession was regarded as an undesirable product of circumstance. The preference was for bequest. Henry's decree, as we have just heard, mentions the king’s barons or men, when ill, either giving or disposing to give their chattels; the latter presumably indicates arrangements for gifts to be completed after their deaths, the former gifts completed by the donor. Such freedom of disposal may only have covered the movables that were not to pass to the man’s widow or children.” There may have been an increase in gifts that specified not current possessions of the donor but a proportion of goods possessed at the time of death.’® Although

sometimes phrased as present gifts or as agreements, it seems that post obit RRAN, ii. no. 488. ‘? Leis WI, 34; cf. primogeniture for land, above, 351. Although in a section of the Leis that draws heavily on Roman law, this passage does not appear to be Roman influenced. "> The Letters of Osbert of Clare, ed. E. W. Williamson (Oxford, 1929), no. 8.

* Cf. below, 683-4. *? See also Sheehan, Will, 289. *® Sheehan, Will, 114, who takes this as a stage in the move to testamentary succession in a stricter

sense; the evidence for change is necessarily limited.

15 MOVABLES 379 gifts might be revocable until the movables were actually transferred. Bequests

would be made orally and perhaps recorded in writing, although the form of will characteristic of the Anglo-Saxon period and often written in Old English disappears. Wealso have charters recording men leaving their bodies to churches for burial, together with movables. Documents from Burton Abbey use phrases such as ‘his whole part of his chattels [pecunia]’, referring to the portion of which the dying man was allowed to dispose. Likewise, a man and his son left ‘the whole part of their chattels’, his wife ‘all her part’, confirming that a portion may normally have been reserved to the wife. A further Burton document specifies that a man should be buried ‘with his part of his chattels’ and if he died without heir or wife, ‘with all his goods [substantia]’.” Elsewhere, Geoffrey de Mauquenchy promised that ‘if it happened that he died a layman, and this occurred in England, he would have burial here [at Abingdon], together with a third of all the goods that he would then have in England. If he died in Normandy, still a third of his goods in England, as specified, would be the church’s.”* These documents again, therefore, suggest that chattels were divided in three, one portion to the wife, one to the children, and one to the dying man, to dispose as he wished or felt he should.

3 SALE AND GRANT Regulation of trade continues to feature in our sources. There were prohibitions, in at least some instances with a religious basis. William I may have ordered that ‘no-one may sell a man outside the country, on my full forfeiture,” and some efforts to prevent commercial activity on Sundays continued.”° There were also efforts at standardisation to help commerce. As we have seen, according to William of Malmesbury Henry I regulated the measure used for sale of cloth, setting his forearm as the standard measure throughout the realm.”

*” Respectively Geoffrey of Burton, Modwenna, ed. Bartlett, lvii (no. 13; cf. no. 12); li (no. 8, and see also Burton Chartulary, no. 30); lxix (no. 27, and see also lviii, no. 14). Note also e.g. Ramsey Chronicle, 257 (concerning a fishery), 282, ed. Macray, 242, 257. "® Historia ecclesie Abbendonensis, ii. 179, ed. Hudson, ii. 182; see also ii. 241, ed. Hudson, ii. 238,

for Simon the king’s dispenser laying down that if he died a layman, he would be buried at Abingdon ‘with all the movable goods of his own portion [cum tota mobili sue partis pecunia]’.

° Wlart, 9. *° See e.g. DB, i. fo. 263r. *" See above, 257.

380 PART II: ANGLO-NORMAN ENGLAND Process, location, and witnessing Like bequests, sales and gifts of movables inter vivos appear to have required an actual or at least a symbolic livery of seisin.”* The Leges, including those distant from Anglo-Saxon sources, indicate that sales were to take place in appropriate locations and before witnesses, as they had before 1066.” A text in William I’s name, and possibly from his reign, states: We forbid that any live chattels [viva pecunia] be sold or bought except within cities and this before three faithful witnesses; nor any used thing [rem vetustatam] without pledge and warrant. If anyone does otherwise he is to pay and pay again [i.e. twice the value of the goods], and afterwards [pay] the fine [forisfacturam].”4

This sounds like a continuation of pre-1066 practice, although perhaps in some circumstances with fewer witnesses.” The last two chapters of the Leges Edwardi, probably added by the author to his original version in the second quarter of the twelfth century, also deal with sales. It was also prohibited in law that anyone buy a living animal or a used garment without pledges and good witnesses. And if there is any gold or silver-work whose seller ought to be doubted, it shall not be bought except by goldsmiths and moneyers. And if these see that it came from a church or from treasures, it shall not be bought without pledges. And if the seller cannot have pledges, he shall be detained with the money until either his lord or some other person who justly can warrant him shall come.

If someone buys in another way, he shall lose what he foolishly bought and [pay] a monetary penalty. And the justice should afterwards inquire through lawmen and the better men of the borough, hundred, or vill where the buyer himself lives, about what kind of life he leads, and whether prior to this they have heard him accused of unlawfulness. And if they shall testify to his lawfulness, he shall clear himself by the judgment of the county that he had not known that the seller was guilty regarding this sale nor concerning some other illegal conduct. And if he knows the seller, who he is or where he is, he shall say so, and the justice shall seek him in order to do justice. And if he cannot be found, he shall be outlawed.”®

* See below, 687. *° Leis WI, 45-6, is closely based on II Cn, 24. The Leges Henrici are notably silent on matters concerning the witnessing and warranty of sales. *“ Wlart, 5. For ‘pay and pay again’, see below, 381, on Leis WI, 21. 2, and below, 742, on Dialogus, ii. 10, ed. Amt, 154. *° Cf. above, 154, on II Eg, 4-6.

*° ECf, 38, ed. O’Brien, 200; on the addition of this and the following chapter to the original version, see O’Brien, God's Peace, 39-40.

15 MOVABLES 381 Particularly in the latter part of this clause, the burden is very much on the buyer rather than the seller. One potential reason, suggested by the process of investigation, is that thieves or receivers of stolen goods were claiming that they had purchased disputed beasts or objects; another, suggested by the following clause,

may have been to keep sales within markets, thereby ensuring that tradesmen should pay any dues that arose.”

Warranty and proof Nevertheless, the process of witnessing sales, and the related process of vouching to warranty, continued to be of great importance in proving whether or not property had been stolen, just as it had been before 1066. Again we are reliant on the Leges, but again they are probably here an accurate guide. As noted earlier, the procedure for vouching warranty to support a claim for goods as stolen was different from that for accusing another of being a thief, normally called appeal.” The Leis Willelme state that if the challenged possessor does not have a warrantor, he must name his surety [heimelborch] and witnesses, and produce them at the appointed time.” The claimant must give a gage with five compurgators, and the possessor place the livestock in the hands of his warrantor or surety. If he has no warrantor or surety but only witnesses that he bought it in a market, and does not know whether his warrantor or pledge [plegius] is alive, he is to swear this with his witnesses with a simple oath. If they bear witness that he obtained a surety, he shall merely lose his goods. Alternatively, he might win the case by proving that the cattle is of his own breeding, through witnesses from three parts of his neighbourhood. Failure to produce warrantor or witness leads to loss of the goods, payment of compensation to the claimant, and probably loss of his wer to his lord; this element of the clause is partially derived from II Cn, 24.12° The latter, rather than mentioning payment of wer to his lord, specifies payment of the fine to the party to whom it belongs. The Leis Willelme’s version is harder to understand, and could be based on a misunderstanding. A fine may *” ECf, 39, esp. 39. 2, ed. O’Brien, 200-2. *8 See above, 70; note also LHP, 66. 8, ed. Downer, 212; below, 721-4. See also Pollock and Maitland,

ii. 159-60. The division is apparent in the contemporary texts, although the vocabulary is not always the same. Thus the Leis Willelme’s treatment of warranty, resting in part on Anglo-Saxon texts, lays

down that if a claimant of livestock is willing to provide gage and pledge that he shall pursue his ‘appeal’, the possessor must name his warrantor, if he has one; Leis WI, 21. *° Leis WI, 21.

°° Note also the problem of the manuscript reading with regard to wer; an alternative reading is aveir, possessions. Cf. below, 402, on Leis WI, 27. The phrase for loss of goods and payment of compensation is ‘perderad e parsoudrad’; cf. above, 380.

382 PART II: ANGLO-NORMAN ENGLAND anyway have been the punishment for one whose possession of stolen goods was proved in this way, in contrast to the death penalty—possibly redeemed by a fine amounting to the wer—for a thief seized in the act or resisting capture, or sometimes even for those convicted in other ways of having actually carried out the theft.»

We are not told what happened if the vouched warrantor denied being the source of the goods. Witnesses may have decided the dispute, failing which there may have been trial by battle between the voucher and the vouched. The latter may have replaced or supplemented the process of oath that had existed in England before 1066.”

If someone found animals, he had to exhibit them widely, to help establish that he had not stolen them. The Leges Edwardi state that, before bringing an animal or chattel to his home or that of another and saying that he has found it, a man shall lead [it] in front of the church and make the priest of the church and the reeve of the vill come, and as many of the better men of the vill as he can get through the summons of the reeve; and once they have been gathered, he shall show them all that was found, whatever it may be. And the reeve of the vill shall send to the four vills closest to them for the priests and the reeves of the vills, and the reeves themselves shall also bring with them three or four of the better men of the vills, and they shall show them all that was found. And after the witnessing, the reeve, of whose lordship the finder is, shall guard what was found until the next day. And on the next day he shall go, with some of his neighbours who saw what was found, to the reeve of the hundred in which their vill is, and show everything to him. And if the lord in whose land it has been found does not have his own customs, namely sake and soke, he [the finder] shall, before good witnesses, hand over everything to the reeve of the hundred, if he wishes to have it. And if the lord has his own customs, he [the finder] shall have justice in his lord’s court.

This account, like that on the same matter in the Leis Willelme, is not heavily reliant on written Anglo-Saxon law, suggesting that these texts give a good indication of current practice. There are differences between them, for example the emphasis of the Leges Edwardi on the role of priests. It may simply be that the Leges Edwardi give a fuller account, or the variations between the texts may suggest some flexibility of procedure or, very possibly, local or regional variation.

** See above, 182-3, below, 688-9. *? See above, 155-9, below 688-9. °° ECf, 24, ed. O’Brien, 182-4. °** Leis WI, 6.

15 MOVABLES 383 4 CONCLUSION The impact of the Conquest was not nearly so dramatic on the law regarding movables as on that regarding land. We have noted considerable continuities, for example with regard to bequests and to warranty of sales. Transactions concerning movables seem largely to have taken place in the local courts that also survived the Conquest, and which, especially in hundreds and boroughs, felt considerable continuing influence from members of English origin. In addition, the impact of Norman forms of lordship was less significant on movables than on land. This in turn meant that the division of interests in a movable possession was normally less complex than in a piece of land. Such differing complexity would have a continuing effect on the different development of law regarding movables and land.

16

Theft and Violence 1 VOCABULARY AND CATEGORISATION In this chapter, as in its Anglo-Saxon equivalent, my main concern is with offences committed by individuals or small groups, primarily against the victim's person

or movable goods. Again, such offences were not at the time grouped under a single term, easily used in modern analysis. The word crimen remained a general one, often associated with sin, although the Leges Henrici did use the phrase cause criminales to refer to serious offences.‘ Another term of considerable later importance, ‘pleas of the crown, does emerge in royal documents from the start of the twelfth century. In the second quarter of the century, both the 1130 Pipe Roll and the Leis Willelme refer to ‘pleas that pertain to the king’s crown.” However, it is

not clear that these were a sharply defined group, and, as later, they included offences beyond those against a victim's person or movable goods, in particular covering infringements of royal rights.2 A defining element, indeed, may have been that profits arising from justice over such cases normally went to the king. This certainly seems to have been the determining factor in much of the Leges Henricis classification of offences. For example, the Leges give an extensive list of

rights that the king alone had over all men in his land, including premeditated assault and robbery as well as more obviously financial rights such as Danegeld. The financial nature of its concerns is soon made explicit with the statement that

* See below, 385. It is possible that the word criminalis was added as a later gloss to capitalis, below, 385 n. 7. On the Frankish notion of cause criminales, see Goebel, Felony, 148-9, 153. The word felonie

or felonia only came to denote a particular category of serious offences against person or movables later in the twelfth century; in the Anglo-Norman period it was used to denote acts of disloyalty; see The Anglo-Norman Dictionary, s.v. ‘felunie’, and below, 711. This seems to be the sense of felonia in LHP, 43. 7, ed. Downer, 152, although it cannot be proved that the word is not used in the broader sense of serious offence. * Garnett, ‘Origins of the Crown’, 199-201, 205-8. > See also below, 711-12. Note also e.g. purprestures, that is, incursions on royal land; Lawsuits, no. 88, and below, 580.

16 THEFT AND VIOLENCE 385 ‘these are the demesne pleas of the king, and they do not belong to sheriffs or his officials or servants in their farms, except by specific prearrangements.' The Leges Henrici do make significant distinctions between pleas, according to their seriousness and their consequences. For example, they distinguish offences punishable by death from those redeemable by money,’ or thefts that may be compensated from those that could not; the compensatable are sub-divided into those that require satisfaction by loss of a limb and those that can be satisfied by money payment.® Most importantly the author distinguishes between cause communes and cause capitales, common cases and chief cases, sometimes glossing the latter with the adjective criminales.’ The former seem to be those that could be tried by compurgation or possibly unilateral ordeal, were emendable, and resulted in only a lower level of fine to the king or the holder of sake and soke.* Cause capitales were more serious.® Under the heading ‘De causis criminalibus uel capitalibus’ the author mentions theft, murder, betrayal of a lord, robbery, outlawry, house-breaking, arson,

counterfeiting, and criminal or capital cases. He also gives some procedural consequences of the seriousness of the charge.’° He may have regarded trial by ordeal as the proper form of proof in such cases.” The particular weightiness of matters of proof in serious cases is also indicated by the statement that ‘no-one is to be convicted concerning capital pleas by testimony, presumably by testimony alone.” Overall there does not seem to have been any marked shift in the classification of wrongs since the Anglo-Saxon period. There was still no clear distinction between crime and tort in the modern sense, between offences prosecuted by the

state and resulting in punishment and offences prosecuted by individuals and resulting in damages. However, there was a sense that serious offences were not simply against individuals but also against the king and God, a sense emphasised by the general oath to maintain loyalty to the king and refrain from theft or wrongdoing. Such offences received the particular attention of the king and * LHP, 9. 11, 10.1, 4, ed. Downer, 108; see Goebel, Felony, 400-7. The LHP list resembles the lists of customs in Domesday Book, e.g. DB, i. fos 179r (Archenfield), 252r (Shrewsbury). > Seee.g. LHP, 9.1,5, 34. 1b, ed. Downer, 104, 106, 138. ° LHP, 59. 21, ed. Downer, 188. ” For capitales and criminales being equivalent terms, see LHP, 47, 59. 13, 61. 18, 85. 2a, ed. Downer, 156, 186, 198, 262; Downer, 427-30. Note also LHP, 31, ed. Downer, 132. * See esp. LHP, 20. 2, 25. 2, 35.1, 49. 6, 61.14, ed. Downer, 122, 128, 140, 164, 198. > See LHP, 31. 1, 61.18, ed. Downer, 132, 198. *° LHP, 47. 1, ed. Downer, 156-8; see also e.g. LHP, 59. 3; 61. 17, ed. Downer, 182, 198. On jurisdiction, see also LHP, 20. 3, ed. Downer, 122-4.

‘ This is not wholly clear, because the most relevant clause, LHP, 59. 16a, ed. Dower, 188, does not use the phrase capitalis causa. LHP, 66. 8, ed. Downer, 212, suggests that compurgation may also have been a possibility. ‘LHP, 31.5, ed. Downer, 134. ** See above, 163-4.

386 PART II: ANGLO-NORMAN ENGLAND his officials, even when prosecuted by individuals.’ They were likely to result in punishment, quite possibly physical punishment or at least a major financial penalty, normally paid to the king. In these respects, such offences were distinguished both from lesser wrongs against the person or movables and also from the great majority of land cases. Such distinctions would underlie the emergence of the categories of crime and felony from the later twelfth century. The king’s peace By the thirteenth century the seriousness of wrongs, be they classified as felonies or trespasses, was linked to the notion that they involved breach of the king's peace. Such was a general peace, extending throughout the realm, rather than a specific

peace granted to an individual, group, institution, or area. How this notion of a legally enforced general peace developed is not entirely clear. In his coronation decree Henry I laid down that ‘I set immutable peace on all my realm and order it to be held henceforth.” In relation to the legal notion of the general king’s peace just cited, this statement can be taken in at least three ways. It may show that the notion was already in existence, if not necessarily applied in quite the same technical way as later.’° It may show the foundation from which the later precise legal category

developed. Or it may simply be a broader statement, with resonances of good rulership, that the realm should be peaceful and that the king would not tolerate wrongdoing.” It would be, in that sense, a reaffirmation of what the Anglo-Saxon laws refer to as frid; the legal notion of the king’s peace might rather develop from specific grants of peace or protection, the Anglo-Saxon grid and mund.*

Specially granted peace did indeed continue to exist after the Norman Conquest.” Domesday Book for Derbyshire, Nottinghamshire, Lincoln, and York records heavy fines on groups of ‘small hundreds’ for breach of the peace given by the king’s hand or seal.*® Domesday Book for Oxfordshire states that ‘if anyone breaks the king’s peace given by his hand or seal, thus that he kills a man to whom that peace has been given, his members and life are in the king’s discretion if he be ‘* Note e.g. LHP, 26, ed. Downer, 128, on the requirement that a royal official be present at a plea of theft. *° RRAN, ii. no. 488. Note the effect of an interregnum, as in e.g. clause 14 of the coronation decree; see in general Garnett, Conquered England, and also below, 713 n. 31. *® See below, 713-14.

7 See Goebel, Felony, 320-35, on Henry I and Henry II, the Truce of God, and the duke’s Peace in Normandy. *® See above, 162-3.

*? Note PR3IHI, 91, for a 7m. debt ‘for wrong regarding the Exchequer [ forisfacto scaccarii] and for breach of the peace.’ *° DB, i. fos 280v, 298v, 336v; on ‘small hundreds’, see below, 409.

16 THEFT AND VIOLENCE 387 taken. And if he cannot be taken, he shall be held an outlaw [exul] for everything, and if anyone manages to kill him, he shall be permitted to have his spoils’* In Worcestershire at present and in the city of Shrewsbury in King Edward's time, according to Domesday Book, anyone who knowingly broke the king’s peace

given by his own hand was to be outlawed, but a man who broke the king’s peace given by the sheriff was only to pay a 100s. fine.”

The Leges too give evidence of the peace specially given by the king, to individuals or, for example, to specified categories of time or place. The Leges

Henrici include among the rights that the king alone had over all men in his land ‘breach of the king’s peace given by hand or writ.” Amongst the offences for which amends could not be made through money payment was ‘breach of the peace of a church or of the king’s hand through homicide, whereas breach of protection [borchbreche] gave rise only to a 100s. fine.** The Leges Edwardi state that the king’s peace is of many kinds [multiplex]: one is given by his hand, which the English call kinges hand salde grid; another on the day on which he is first crowned, which has eight days; and at Christmas eight days and eight days at Easter and eight at Pentecost; another given by his writ; another that the four roads have, that is Watling Street, Fosse Way, Icknield Way, and Ermine Street...another have the bodies of water, on which victuals are brought by ship to cities and boroughs from diverse parts.” The Leges Edwardialso note the possibility that those enjoying the king's peace given

by hand or writ might abuse their position by withholding dues or services.”

*" DB, i. fo. 154v. DB, i. fo. 56v, records that in Berkshire, the killing of a man who had the king’s peace led to the perpetrator forfeiting his life and all his property [substantiam] to the king. It again seems likely that the victim was someone enjoying a particular privilege. *? DB, i. fos 172r, 252r. In Chester the 100s. fine applied whether the peace was given by the king’s hand, his writ, or his delegate [per suum legatuml, or by the earl at the king’s command; DB, i. fo. 262v. If given by the king’s reeve or the earl’s official, the fine was 40s. The 100s. fine may also have applied in Hereford, although the text does not specify how the peace had been given; DB, i. fo. 179r. However, of Chester it was also stated that ‘if any free man, breaking the king’s peace that had been given, killed a man ina house, his land and all his chattels were the king’s and he himself became an outlaw’; DB, i. fo. 262v. In the lands between the Ribble and the Mersey, a 40s. fine applied for breaking the king’s peace, but the way in which that peace had been given is not specified; DB, i. fo. 269v. °° LHP, 10.1, ed. Downer, 108. See also LHP, 16, ed. Downer, 120, on the peace of the king’s court. ** LHP, 12. la-2, ed. Downer, 114; see also 13. 1, 79. 3-4, ed. Downer, 116, 246. *° ECf, 12, ed. O’Brien, 168-70; cf. 12. 9-10, ed. O’Brien, 170-2, on types of road ‘under the law of

the county’. On royal concern with particular roads, although not just the four singled out by ECf, see also LHP, 10. 2, 80. 2-5a, ed. Downer, 108, 248-50; cf. Leis WI, 26; see also A. Cooper, “The king’s Four

Highways: legal fiction meets fictional law’ (2000) 26 JMedH 351-70. On protection for William I's followers, linked to the murdrum fine, see below, 405-9. *° ECf, 26.1, ed. O’Brien, 184-6; note also RRAN, ii. no. 892.

388 PART II: ANGLO-NORMAN ENGLAND All ofthese references concern specially given peace rather than a general king's peace the breach of which was itself a serious offence. It seems possible, there-

fore, that the notion of such a general and legally enforced peace grew through the gradual extension of special peaces and grants of protection.” However, personal grants of special peace do not necessarily disprove the existence of a wider legal notion of the king’s peace. Even after our period, special grants of peace continued; thirteenth-century writs could command the sheriff to make a named person have the king’s ‘secure peace [firmam pacem|]’ against one who had threatened him.”*

Concentrating on the spread of specially granted peace may therefore be to underestimate the importance of other elements in the development of the legal notion of the general king’s peace. There are the references to the king’s peace given by the sheriff. This could refer to peace given generally, at least to lawful men, rather than a grant to an individual. The fine for the breach of such peace was substantial, probably normally the same as the fine for serious offences such as theft, forsteal, and hamfara.” It may be significant of the limitations of even this aspect of the king’s peace that the fine for its breach is listed as distinct from those other offences; that theft, forsteal, and hamfara might inherently constitute breach of the king’s peace was not crucial to their classification as serious offences. However, even late in the twelfth century Glanvill would list the plea of breach of the lord king’s peace separately from offences such as theft or homicide.*°

If sheriffs gave the king's peace in general fashion at county courts, such an act could resemble on a smaller scale Henry I's declaration of his peace in his coronation decree. Even if his assertion is of a less specific nature, it re-emphasised

the association of both the ideals and the practical enforcement of good order with firm kingship. The peace obtained through such enforcement could be associated with the widening of royal judicial activity and the use of capital or physical punishment. Thus the later precise legal notion of the king’s peace may have developed more from ideas of the general king’s peace, as manifest perhaps

in shrieval grants and Henrys coronation decree, than from specific grants of royal protection.*

*” See e.g. Hurnard, King’s Pardon, 8; Hyams, Rancor, 134-5, 224-6; Lambert, ‘Protection, feud and royal power’, chs 5 and 6. *® Early Registers of Writs, CC 107, 107a; see also Hyams, Rancor, 196-9. *° See e.g. DB, i. fos 172r, 1791, 269v. °° See below, 713.

** Note also a letter of Herbert, abbot of Westminster (1121-c. 1136), addressed to ‘the king’s faithful men’, and requesting that a man who had sought sanctuary should have ‘freedom of his body and

16 THEFT AND VIOLENCE 389 2 TYPES OF OFFENCE The process of conquest and settlement brought specific problems, particularly regarding the security of the Norman invaders, but most problems of law and order after 1066 are unlikely to have differed markedly from those before. From the later Anglo-Saxon period, increased use of money and growing commerce may well have had an effect on patterns of crime, but one that is very hard to

demonstrate. The Norman kings, particularly Henry I, showed continuing concern with the activities of moneyers. His coronation decree stated that ‘if anyone, a moneyer or another, be taken with false money, let proper justice be done concerning this.’ He also issued writs very early in his reign ordering that burgesses and all those staying in boroughs should swear to preserve the king's money in England and not allow the falsification of his money. The bearer of false coin faced castration and loss of the right hand unless he could prove his case against the warrantor whom he vouched.” Eadmer states that in 1108 Henry decreed that spoiled or false coinage ‘should be reformed with such severe force that no-one caught making false pennies should be able to help himself by any payment [redemption], but rather should lose his eyes and the lower parts of his body [i.e. be castrated]’3? The Anglo-Saxon Chronicle records that at Christmas 1124 Henry ordered that all the moneyers who were in England should be mutilated, that is, that each should lose the right hand and be castrated.... Bishop Roger of Salisbury sent over all England and ordered them all to come to Winchester at Christmas. When they got there, they were taken one by one and each deprived of the right hand and castrated.4

The emphasis on castration may be new, although Anglo-Saxon laws had mentioned the death penalty for wrongful coining in certain circumstances.* Various glimpses of social attitudes and the possible circumstances of offences can also be obtained2° The Leges Henrici include what sounds like a proverb: ‘where one does not wish, two do not fight.” However, the legal weight of such

the king’s peace’; Westminster Abbey Charters, no. 248. On later refinement of the idea of the king’s peace, see below, 713. Note also below, 400, for a decree of 1108 mentioned by John of Worcester. *? RRAN, ii. nos 488, 501. For the coinage, see also LHP, 10. 1, 13. 3, ed. Downer, 108, 116.

°° Eadmer, Historia novorum in Anglia, iv., ed. M. Rule (1884), 193. *4 ASC, 1125.

°° See above, 184; for the death penalty, see III Atr, 8, 16. °° See also e.g. ECf, 19, ed. O’Brien, 176-8. °” LHP, 84. 2, ed. Downer, 260.

390 PART II: ANGLO-NORMAN ENGLAND a view may have differed in the custom of different areas. The Leges Henrici also state that in some places the person who has committed blodwite, that is the offence of shedding blood, is alone held liable; in others, so also is the victim, lest anyone, because he acts with impunity, should be arrogant or lest anyone who has suffered an affront should become accustomed to the sordid receipt of compensation.**

The author also considered further possibilities: ‘if any innocent person is killed,

either intentionally or through the negligence of the disputants, while he is endeavouring to separate people fighting among themselves, the one who slew him shall pay amends for him, even though he did not start the quarrel.*? As for circumstances of offences, it was recognised, for instance, that roads through heavily wooded areas were likely to be particularly dangerous.*°

3 RESPONSIBILITY AND LIABILITY Treatment of responsibility for offences likewise did not change significantly in the Anglo-Norman period. The young might not normally face the death penalty, but could still be in danger of severe punishment unless they had a powerful helper. Bishop William Giffard of Winchester intervened to prevent the punishment of a boy who was to be deprived of his eyes for committing theft.” Offences continued to be explained by the emotions of the perpetrator—passion, anger, vengeance—by drunkenness, and by the action of the devil.” A concern with intention was displayed, although its outcome was not necessarily consistent. Ambivalence may be apparent in statements in the Leges Henrici, for example on the one hand that ‘a person does not do wrong unless he has a wrong intention’ and on the other that ‘wrongs that we commit unwittingly we must set right deliberately. The author seems to have considered that the unintentional wrongdoer should make recompense, but preferably through a reconciliatory settlement: ‘there are very many kinds of misfortune that occur by accident rather than by design and that should be dealt with by the application of mercy rather than by judgment. For it

°® LHP, 39. 1, ed. Downer, 144; the latter part of this point is repeated at 84. 1, ed. Downer, 260, before the citation of the proverb on it taking two to fight. °° LHP, 90.1, ed. Downer, 278. *° See e.g. Lawsuits, no. 8. “* Lawsuits, no. 210; note also no. 350. * See e.g. Lawsuits, nos 14, 330.

16 THEFT AND VIOLENCE 391 is law that he who does wrong unwittingly shall wittingly make amends. Different parties might view the same action in different ways, for example the perpetrator claiming that a killing was accidental, the victims kin that it was intentional. This may be the case in an incident recounted by William of Malmesbury. A certain William, nicknamed the bald, ‘had killed a man by accident, not intention, and could through no agreement buy friendship from the slain mans relations nor at any price obtain forgiveness.“

4 PREVENTION AND POLICE Tithing, frankpledge, and mainpast Crucial to the prevention of offences and the apprehension of offenders were frankpledge and tithing and mainpast.* The term frankpledge first appears in the Leges Henrici, in the form plegium liberale. The English form of the term, friborg or possibly fridborg, may be older, and—as already suggested—frankpledge

may have existed before the Norman Conquest.*® Frankpledge and tithing involved a group of men, usually ten or twelve but sometimes a whole village.” Entry was at the age of twelve, and involved an oath and probably further exhortation regarding obedience and good behaviour. Later evidence shows that the vill was amerced if an offender was found not to have been in tithing; this provided an incentive to ensure full membership.“

*° LHP, 5. 28b; 70. 12b (and note 70. 12c); 90. 11, lla, ed. Downer, 94, 222, 282, respectively. The point about the unwitting making amends is repeated in Old English: ‘brecht ungewealdes, betan gewealdes’.. LHP, 5. 28b is based on Panormia, viii. 116: “Ream linguam non facit nisi mens rea. LHP includes its version of the passage in its discussion of perjury, which could mean that the text does not necessarily contradict the other passages. However, the change in formulation compared with the canonical source may suggest that the compiler of the Leges Henrici was not limiting his thought to perjury. See also LHP, 88, esp. 88. 6, ed. Downer, 270, on compensation for accidental death, for example in archery games. “ Lawsuits, no. 139. *° For the possible existence, at least in some areas, ofa level of peacekeeping unit between tithing and hundred or wapentake, see below, 409. *° LHP, 8. 2, ed. Downer, 102; ECf, 20, 21, 28, ed. O’Brien, 178, 180, 186; Anglo-Saxon Writs, 405.

It is unclear whether the existence of the English word indicates a pre-Conquest origin for the arrangement, or rather reflects the social status of those involved. See also above, ch. 4. “*” Cons Cn, I 19. 2b, states that tithing consists of ten or twenty or thirty men, according to the custom of the place. *® LHP, 8. 2, ed. Downer, 102; Morris, Frankpledge, 130; below, 717. As in the late Anglo-Saxon period, above, 164, the oath probably combined a promise that the swearer would be loyal to the king with one that he would not be a thief or a party to thieving; see Morris, Frankpledge, 39, 70-1, and note Bracton, fo. 124b, ed. Thorne, ii. 351, who mentions the oath against theft.

392 PART II: ANGLO-NORMAN ENGLAND The members acted as mutual sureties that none of them would commit an offence, and that they would produce any member who did.” Failure to produce the accused led to the tithing being amerced, thereby giving them a further incentive to prevent offences.*° The members might also have to pay for what was claimed to have been taken, and clear themselves of having known of any deceit if the offender escaped. More generally the group had to keep a watch on activities in their area, and the twelfth-century text known as the Consiliatio Cnuti states that the tithing was in some places popularly referred to as the ‘ward, that is ‘watch [observatio].°

Frankpledge existed in all counties except for Cheshire, Shropshire, Herefordshire, and those north of the Humber.® This may well reflect limits to arrangements in the Anglo-Saxon period, itself linked to the limits of royal power. In the rest of England, some men were not members of frankpledges. These included clerics, inhabitants of some boroughs, those under the surety of their lord, and any remaining slaves.‘ In addition, those above the status of the typical free man were not obliged to be members of frankpledge; perhaps their possession of land, by which they could be distrained, together with their word as men of status, was thought sufficient security for their behaviour.

Otherwise, membership of frankpledge was to be general for men. The Leis Willelme stated that all vilains should be in frankpledge.°® Vilain here was probably used in a general sense, villager, without connotations of unfreedom, and elsewhere the Latin version of this text states that “everyone who wishes to be shown justice or to be held as lawful and justiciable is to be in frankpledge’’ Likewise the Leges Edwardi do not associate membership of frankpledge with either freedom or unfreedom.® Each tithing had a head-man, and royal officials could refer to tithings by the name of their head. This was more common for eastern and midland England, whereas in the west and south area-names or place-names were more often used, reflecting perhaps that in areas with small settlements each vill would have only

* Morris, Frankpledge, 90-100; above, 169-71. Note also above, 324, on members of the tithing acting as oath-helpers. °° For the amount of the amercement in the later twelfth century, see below, 717. >" See Wlart, 8a; cf. ECf, 20. 3-6, ed. O Brien, 178-80. >? Cons Cn, 1119. 2d.

°° Morris, Frankpledge, 44-59. ECf, 20, ed. O’Brien, 178, states that the people of York or Yorkshire

referred to frankpledge as tenmannetale. However, the accuracy of the statement has been disputed; see O’Brien, God's Peace, 227 n. 90. °* See below, ch. 17.

°° On women in relation to frankpledge and mainpast, see O’Brien, God’s Peace, 87-8. °° Leis WI, 20. 3a. °” Leis WI, 25. °° ECf, 20, ed. O’Brien, 178.

16 THEFT AND VIOLENCE 393 one tithing.»® Further supervision of frankpledge was undertaken by the sheriff in the hundred court. The Leges Henrici state of the hundred that if special completeness is needed, all free men, both householders and followers [folgarii], are to gather twice a year in their hundred to determine (that is, amongst other things) if tithings are full, or who, in what way and for what reason, has withdrawn or been added.”

It may have been particularly at these sessions that tithings presented the names of those notorious for committing offences, a process of naming that may have been linked to the review of who had withdrawn from tithing. Although evidence for presentment is lacking in the Anglo-Norman period, it is hard to see how the frankpledge system could otherwise have worked. If a notorious offender had not fled, and no individual had brought an appeal against him, in order to fulfil their oath taken on entry to frankpledge and in order to avoid amercement, the tithing members had to give him up, in effect to present him. Following its treatment of frankpledge and tithing, the Leges Edwardi go on to describe an alternative form of suretyship:

barons had their knights and their own servants, namely stewards, butlers, chamberlains, cooks, bakers, under their own friborg, and these men their squires or their other servants under their own friborg. But if they did wrong and the complaint [clamor] of the neighbours rose up concerning them, they would have them to the law in their court, if they had sake and soke, toll and team, and infangentheof.”

It is unclear why this section is in the past tense whereas that on tithing is in the present. The Leges Henrici, basing themselves partly on Cnut’s laws, give a similar picture, this time in the present tense: If anyone from the household is impleaded, the person in whose household he is shall bring him to justice at the proper time and place, if he has been summoned in accordance with the law by the lord or the king or a superior official, whether by writ or by messenger. For it is law that every lord shall keep with him those who are subject to his jurisdiction and that he shall keep his household in his own pledge; and if anyone of them is accused in respect of any matter, he shall make answer in the hundred in which he is accused, as is proper. If he is accused and takes to flight, his lord shall pay the man’s wergeld to the king.”

°? Morris, Frankpledge, 89-90. Information about the duties of the head of the tithing at this time is limited, but note ECf, 20. 3, ed. O’Brien, 178. °° LHP, 8.1, ed. Downer, 102. See also Morris, Frankpledge, 113, 127-30. °" ECf, 21, ed. O’Brien, 180; note that the first sentence in the modified version in ECf retr is in the

present tense, and see also the use of the present tense in the second sentence in manuscript Hk. °* LHP, 41. 6-8, ed. Downer, 148; note also 66. 7, ed. Downer, 212.

394 PART II: ANGLO-NORMAN ENGLAND One word used to describe the household or a member of that household was manupastus, a Latin form of the Old English hlafeatan, ‘loaf-eaters. The thirteenth-

century law-book Bracton would on occasion equate being in frankpledge and being in mainpast, indicating that the latter word could be used specifically to indicate a form of suretyship.®

Also of importance perhaps in terms of prevention and certainly in terms of police were royal officials. We have heard about Robert Malarteis, whose activities involved keeping a general watch on possible wrongdoing in his area of authority.°t Such men may have been particularly important in the northern and western areas of the country where there was no frankpledge; in such places they later came to be termed serjeants of the peace.® Of further concern were outsiders and those who moved from place to place. Anglo-Saxon practice may have been that a guest who stayed for three days in effect became a member of the host’s household, the host then being responsible for him.® This provision seems to have continued in the post-Conquest period, the fullest treatment coming in the Leges Edwardi: If someone hosts someone, known or unknown, for two nights, he can consider him a guest, because if that one commits a wrong, the host shall not incur damages for

that man....If he hosts for a third night, and that man wrongs someone, he shall bring him to justice as if one of his own household because, as the English say, two nights guest, a third night his household servant.

The host had a month and a day to bring such a man to justice. Even if he could find the offender, the host might have to make restoration and pay the monetary penalty if the offender was unable.” The traveller might also be victim rather than perpetrator, and there are occasional hints of arrangements for increasing the safety of roads. The Leis Willelme outline the duty of stretwarde, guarding the roads: From each ten hides of the hundred one man [is to be supplied] between the feasts of St Michael and St Martin [29 Sept.-11 Nov.]. And if the ward-reeve has thirty hides, he shall be quit for his service. And if livestock is taken along where they ought to

°° Bracton, fo. 124b, ed. Thorne, ii. 351. Earlier uses, for example in the Quadripartitus, seem simply to mean ‘household’ or ‘member of household’, with no clear implication of suretyship; DMLBS, s.v.

‘manupastus. °* See above, 306. °° See below, 508. °° See above, 74. °” ECf, 23, ed. O’Brien, 182. See also LHP, 8. 5, ed. Downer, 102; Leis WI, 48; cf. LHP, 58, 82. 2-2c,

ed. Downer, 180, 254-6, on wanderers. For provision concerning visiting kin, see e.g. LHP, 8. 4, ed. Downer, 102.

16 THEFT AND VIOLENCE 395 guard, and they cannot show that they raised an alarm or that force was applied to them, they must render [that is, pay compensation for] the cattle.®

Police, self-help, and vengeance As in the Anglo-Saxon period, by far the best chance of catching an offender was usually whilst the offence was being committed or very soon afterwards. We hear of a pickpocket who sought to take advantage of the presence of monks of Evesham in Oxford, and the attention drawn to the reliquary of St Ecgwin, in order to steal. However, according to the story in the Evesham History, St Ecgwin did not wait long to punish the hands of this thief, for when this unfortunate man put his hand into the purse for the third time, the hand instantly withered and was retained inside that space as if imprisoned. You should have seen the thief tremble, turn pale, wildly look around as if he had gone mad, and imagine all sorts of deaths! The onlookers eventually understood how it had all come about and proceeded to catch the thief, to marvel at the event, and to raise their voices in praise of God's saint.®

If the offender could not be caught immediately, pursuit was required through the raising of the hue and cry by the victim or witnesses. In this the offender’s

tithing may have been crucial although it appears that all were obliged to pursue the offender. A victim who failed to raise the hue and cry might face a penalty.”°

Such a victim’s inaction might well stem from fear. However, the hue and cry

might also channel individual and communal desire for revenge, and indeed on occasion it may have constrained the victim who was seeking immediate and personal revenge.’ Although evidence is very scarce for extended feuds after 1066, particularly away from the periphery of the realm, the impetus to °° Leis WI, 28. There may also have been local arrangements. See Lawsuits, no. 8, the Gesta abbatum

of St Albans, which states that ‘Abbot Frederick, who thought that there was nothing worse than the

loss of life, granted to the abbot of Westminster the manor of Aldenham, where travellers to and from London were in peril particularly often because of the abundance of woods.... The terms of this agreement were such that the abbot of Westminster was to guard safely those roads and answer appropriately for any harm done, and if any occurred because of insufficient guarding, he would be punished by the loss of the tenement. Frederick was abbot between c. 1072 and 1077, but the text may be from the thirteenth century. See also below, 822, for local watch arrangements at Bury. On roads, see also above, 387.

°° Lawsuits, no. 14. Seizing in the act is also mentioned in some accounts of the trial at Penenden Heath; Lawsuits, nos 5B and 5K. © See Leis WI, 4, referring to the penalty as hengwite. ™ See below, 720-1, for a pertinent story from Reginald of Durham; also Pollock and Maitland, ii. 157-8, 168, on pursuit of stolen cattle.

396 PART II: ANGLO-NORMAN ENGLAND revenge remained. Take the case of William the bald, cited above. The abbot of Gloucester had failed to reconcile the killer and the victim’s brothers: There were five brothers who were so furious and uttered such threats for the death of their brother that they could terrify anyone.... They were brought forth and asked by the bishop [Wulfstan of Worcester] to forgive the wrong, but they refused utterly and violently. They added words no milder than their actions, that they would rather be altogether excommunicated than not avenge their brother's death.”

In this instance, the initial killing does not seem to have been so obviously culpable

that the victim’s kin could mobilise the community against the perpetrator; rather, the community seems to have acted as a restraining force, preventing unjust exercise of self-help.

Sanctuary The fleeing criminal might be simply evading possible captors, or be seeking sanctuary. He would be in fear of the anger of his likely pursuers, his victim or victim's kin and other local people, anger that might lead to immediate violence,

summary trial and execution, or arrest and later court judgment. The Leges Edwardi give an extensive treatment of sanctuary: Any accused or guilty person who flees to a church for protection shall be safe from the time when he enters the churchyard, and he shall not be seized in any way by any pursuer, except through the bishop of that place or through his officials. And if in flight he takes himself into the house of a priest or into his courtyard, he shall find in that place the same safety and liberty as in a church, as long as the priest’s house and courtyard are situated in a fee of the church. If he is a thief or a robber, he is to return what he wrongly took if it is in his possession. And if he has destroyed that,

and has enough property to pay, he shall make full restitution to the person from whom it is stolen. If, however, he does this often and with unexpected luck flees to the church frequently, he is to abjure the provincia [and] not return after what has been stolen has been returned. And if he does return, no-one shall presume to receive him except with the consent of the justice of the lord king?

Unusually for the Leges Edwardi, this clause may be based on a Continental written text, a Carolingian capitulary but, even if this is so, the Leges treatment

” Lawsuits, no. 139, above, 391. Note also LHP, 83. 6, 6a, ed. Downer, 260, and Hyams, Rancor, esp. 138, 141. On feud, see also Hudson, ‘Faide; esp. 361-73, and the twelfth-century dispute recounted in O.]. Padel, “Geoffrey of Monmouth and Cornwall’ (1984) 8 Cambridge Medieval Celtic Studies 1-27, at 20-7.

”* ECf, 5, ed. O’Brien, 162. The term provincia might refer to a county or a larger area or even the kingdom as a whole, and in this case it is hard to discover which is meant.

16 THEFT AND VIOLENCE 397 is much more extensive and specific, suggesting that it gives some indication of current practice.” Both in canon law and in later common law sanctuary was limited to those who had committed serious offences. Such a limitation fits the notion that one purpose of sanctuary was the preservation of life and limb, thereby providing the opportunity to save the offender's soul’> Anglo-Norman evidence is limited. The Leges Edwardi are not explicit as to the offences concerned, but does give as instances the serious ones of theft and robbery. Such an association with serious offences could just indicate that sanctuary at this time applied to any offence, but that its most noteworthy aspect was the protection of serious offenders against any physical harm; or it might be in line with later evidence, showing that sanctuary only covered those offences that placed the offender at risk of punishment by life and limb.”° Later evidence, both from common and canon law, also suggests that some serious offences were excluded from sanctuary, notably treason against the king and crimes committed within the sanctuary.” The protection of sanctuary extended beyond the building of the church to the area around it. The extent of the sanctuary varied according to type of church, and the seriousness of any breach of sanctuary may have varied both with its

proximity to the heart of the sanctuary and with the status of the church.” According to the chronicler Richard of Hexham, at his church homicide at the bishop’s seat or at a shrine by the altar was unemendable. In the choir, breach of the sanctuary had to be paid for by £144, elsewhere within the church walls by £96, within the walls of the church precinct [atrium] by £48, within the vill by £32, and in the most distant area, ‘within the four crosses beyond the vill’, by £16.”? Dubious charters of Henry I and Stephen for the cathedral of York contain similar scaled provisions in a form that shows that their texts are in some way linked to Richard’s. They present the customs as those that many could remember had existed under Edward the Confessor and Archbishop Ealdred. The most serious situation was if anyone agitated by a mad spirit should presume with devilish audacity to seize anyone in the stone chair near the altar, which the English call frithstool [i.e. the chair of quiet or peace], amends for so atrocious a sacrilege was within no judgment ” O’Brien, God’s Peace, 268 n. 14. ”* R.H.Helmholz, The Ius Commune in England (Oxford, 2001), 58. © See e.g. Leis WI, 1; cf. ICn, 2.

”” Helmholz, Ius commune, 69; note, however, VIII Atr, 1.1. ”® See Leis WI, 1. 1; cf. I Cn, 3. 2, above, 177. For breach of the peace of the holy Church, see also ECf, 6, ed. O’Brien, 162-4. ” Richard of Hexham, History of the Church of Hexham, ii. 14, The Priory of Hexham, ed. J. Raine (2 vols; 44, 46 Surtees Soc., 1864-5), i. 61-2.

398 PART II: ANGLO-NORMAN ENGLAND and ended with no amount of money, but was called amongst the English botleas, that is without amends.*°

Continuation of what were at least believed to be Anglo-Saxon sanctuaries is also indicated by a confirmation of King Stephen to Beverley Minster, again in Yorkshire, including ‘its peace within its area of special jurisdiction [banleuca] and emendation of that peace when violated, as was conferred on that church by King Athelstan and confirmed by other kings of the English’.” Canon law set no limit to the time for which sanctuary might be enjoyed, and none is mentioned in the passage of the Leges Edwardi quoted above.** However, as we have already seen, Anglo-Saxon laws set limits, and chroniclers refer to a

thirty-seven-day maximum at Durham.* Bracton would state that anyone who provided the recalcitrant sanctuary-taker with food “would be deemed the king’s enemy and one contemptuous of the peace’, but this was contrary to canon law and may not have applied in the eleventh or twelfth centuries.™ The core purpose of sanctuary, at least in ecclesiastical eyes, remained the protection of the peace of the church.** On the other hand, churches were not simply to become havens for unrepentant and unpunished offenders. Rather, such offenders were to make amends in some way other than loss of life and limb. One hope was that the parties be reconciled. However, particularly with regard to serious offences, the king and his officials also had an interest in the treatment of offenders. Some of those who sought sanctuary may also have been seeking a royal pardon, for example for homicide committed in self-defence.*® From Westminster Abbey survive letters stating, for example, that the bearer had sought the mercy of God and of the altar of St Peter, and the tomb of Edward the Confessor. The fugitive was not to lose life or limb, nor indeed anything else of his.

Presumably the purpose of such letters was to protect both the fugitive and the sanctuary privilege, by preventing accusations being pursued or revived thereafter.” Others who sought sanctuary could not hope for pardon, and certainly by the late twelfth century and probably in the Anglo-Norman period, their fate was abjuration of the realm. The offender, perhaps dressed as a pilgrim, was to travel

°° RRAN, ii. no. 1083, iii. no. 975. Note also Lambert, ‘Spiritual protection and secular power’, esp. 128-31.

** RRAN, iii. no. 99. *? Helmholz, Ius commune, 18. °° See above, 175-6. Note also Lawsuits, no. 172A, for thirty days being a limit at York; the author-

ity of this text is uncertain. Cf. the lack of time limit later in special sanctuaries; see e.g. J. H. Baker, The Oxford History of the Laws of England, volume VI: 1483-1558 (Oxford, 2003), 544-6. ** Bracton, fo. 136, ed. Thorne, ii. 383; Helmholz, Ius commune, 61.

°° Helmholz, Ius commune, 25-30. °° See Hurnard, King’s Pardon, 3. °” See Westminster Abbey Charters, nos 238-40, 248, 272-4.

16 THEFT AND VIOLENCE 399 to a port assigned to him, and leave England, having sworn never to return. He lost his lands and other possessions, and if he returned he was to be treated as an outlaw.** Familiarity with abjuration of the realm in the first half of the twelfth century is suggested perhaps by a passage of the Leges Edwardi already quoted, and certainly by another stating in the context of royal pardons that a murderer or a traitor...shall not in any way remain in the country if the king grants life and limbs to them, but they shall swear that they shall travel to the sea in the time that the justice set for them and cross it as quickly as they can have ship

and wind. But if they remain in the land, breaking their oath, whoever can find them shall do justice on them.*?

5 PUNISHMENT Falling victim of direct action thus remained one possibility for offenders, but cases might also end with physical punishment, monetary penalty, the payment

of compensation, or a combination of these. Worldly punishment might be complemented by imposition of penance or burial outside consecrated land.*°

Death penalty As we have seen, the death penalty was of considerable and possibly increasing importance in late Anglo-Saxon England.” An early text purporting to record laws of William I states in its final clause that ‘I... prohibit that anyone be killed or hanged for any offence [culpa], but let their eyes be plucked out and testicles

cut off; and this my order is not to be violated, on my full forfeiture.’ It is possible that this records a genuine decree, or an order for a particular occasion. Alternatively, and possibly most likely, the text concerns legislation similar to that of Cnut, prohibiting execution of the young and for minor offences.® In the Conqueror’s reign we know of the execution of Earl Waltheof for treason,

°° Pollock and Maitland, ii. 590; below, 719-20.

°° ECf, 18. 2-3, ed. O’Brien, 176; the passage follows the quotations concerning royal pardon, below, 412-13. See also above, 396, on ECf, 5.

°° See e.g. The Life of Christina of Markyate, 30, ed. and trans. C. H. Talbot (Oxford, 1959), 84, for reference to penance for homicide; and note also the references in the Penitential articles of Ermenfrid of Sion, issued after the Battle of Hastings; Councils and Synods, I, no. 88. For burial in unconsecrated land, see above, 196. °" For the very limited evidence from Normandy, see Tabuteau, ‘Punishments’, 135-6. °? Wlart, 10. °° For Cnut’s legislation, see above, 181. Note also above, 168.

400 PART II: ANGLO-NORMAN ENGLAND whilst the Evesham text concerning a pickpocket believed that the death penalty was available under William I: ‘they adjudged that the thief was to undergo death according to the law [ex statuto].°* Waltheof’s case might be seen as exceptional, the text concerning the pickpocket to be influenced by practice at the time of writing. However the Domesday customs of Oxfordshire also indicate use of the death penalty under William I, specifying that if a man to whom the king’s peace had been given was slain, the killer’s life and limbs were in the king’s mercy.” There is clear evidence for the use of the death penalty under the Conqueror's successors, particularly for certain forms of theft.°° William of Malmesbury wrote of William Rufus that ‘the noose itself was slackened from the robber’s neck if he had promised something to the king’s advantage’.*” The Worcester chronicler said that in 1108 Henry I ‘constituted secure peace and such a law that if anyone was caught in theft or robbery, they were hanged’, whilst the Anglo-Saxon Chronicle records the mass hanging of forty-four thieves in 1124.° This evidence is backed up by that of the Leges. The Leges Henrici give a list of ‘pleas that place a man in the kings mercy, in at least some of the following instances the equivalent of facing the death penalty. The offences concerned were breach of the peace that he [the king] shall give to anyone by his own hand; contempt of his writs and anything that slanders injuriously his own person or his commands; causing the death of his household men [famulis] in a city or castle or anywhere; infldelity and treason; contempt of him; castle-building without permission; outlawry...; proven theft worthy of death.

In addition, the notion of the botleas or unemendable offence appears in the Leges Henrici, as in the York and Hexham texts concerning sanctuary.'’*° Drawing

on Cnut’s laws, the Leges Henrici give a further list of pleas that could not be

°* Lawsuits, nos 7, 14.

°° See above, 386-7. Note also Council at London 1074 x 1075, 9, Councils and Synods, I, no. 92, prohibiting clerics from judging a man to be put to death or mutilated. °° See below, 409-10, for homicide. °” William of Malmesbury, Gesta regum, iv. 314, ed. Mynors et al., i. 558. °® John of Worcester, Chronicle, s.a. 1108, ed. McGurk, iii. 112, which goes on to expand very slightly on Eadmer’s account of legislation of the same year concerning moneyers (above, 389); ASC, 1124. See also below, 402-3, for the case of Ralph son of Walter the ditcher; Lawsuits, no. 167, on the bodily punishment of thieves belonging to the king. William of Malmesbury, Gesta regum, v. 41], ed. Mynors et al., i. 742-4, states that Henry at the start of his reign favoured loss of limb, in order to instill fear, but later inclined to monetary payments; it is not clear to what type of offence or status of offender William is referring. °° LHP, 13. 1, ed. Downer, 116. All of these pleas are included amongst the longer list of rights which the king alone had, over all the men in his land; LHP, 10.1, ed. Downer, 108. *9° See above, 397; LHP, 9. 1, 12, ed. Downer, 104, 114. See also LHP, 9.5, ed. Downer, 106, for the distinction between offences punished by death and those redeemable by money.

16 THEFT AND VIOLENCE 401 ‘emended:: ‘husbreche, arson, open theft, palpable murder, betrayal of a lord, and breach of the peace of the church or the king’s hand through homicide’.’" The Leges Henrici also give some more details concerning the death penalty for theft,

based in part on the Anglo-Saxon laws, in part perhaps on practice. The thief caught in the act should be more than twelve years old, the value of the stolen property more than 8d., although even then there might be grounds for mercy.’ Groups committing a theft or thefts were all to suffer the punishment.’” The normal form of death appears to have been hanging. Earl Waltheof was beheaded, reflecting perhaps his status or perhaps his offence, treason.’ The Leges Henrici mention particularly unpleasant punishments for the killer of his own lord, including scalping, disembowelling, and other agonising tortures worse than those suffered in hell.*°* On what basis the clause rests is not clear, but at the very least it shows how the public viewing of the death penalty might act both as confirmation that the offender had received his just fate and as a deterrent for other potential offenders.

Other physical punishments Physical punishment short of death was also used in Anglo-Norman England. We have already heard about a young thief being sentenced to blinding. It is unclear whether his sentence had been short of death because of his youth, the amount stolen, or some other extenuating circumstance. We have also heard about Henry I's action against moneyers, involving blinding, the cutting off of the right hand, and castration.’°° The Leis Willelme specify loss of ‘members, in this case almost certainly meaning castration, as the penalty for ravishment of a woman, whilst the Anglo-Saxon Chronicle's obituary for the Conqueror states that ‘if any man

had intercourse with a woman against her will, he was forthwith castrated.’ Scourging and branding had been used in the Anglo-Saxon period for slaves, a group who were disappearing from Anglo-Norman England, and it is hard to tell whether there was a basis in current practice for the Leges Henrici’s statement that fugitives, pursued according to the law on the first occasion that they committed

*°! LHP, 12. 1a, ed. Downer, 114. °* LHP, 59. 20, 20a, ed. Downer, 188. The basis of the clause is IT As, 1, but it has been consciously

updated by the inclusion of the phrase ‘French or English’ with reference to the offender. "°° LHP, 59. 25b, ed. Downer, 190. On the amount ofa theft affecting the penalty, see also below, 716.

°* Lawsuits, no. 7. "°°? LHP, 75.1, ed. Downer, 232.

°° See above, 389. ‘7 Leis WI, 18; ASC, 1087 (s.a. 1086).

402 PART II: ANGLO-NORMAN ENGLAND theft, were to be brought back and branded.’® Such branding, as with other forms of mutilation, would act as a visual advertisement of the fate of offenders.’

Forfeiture As in the Anglo-Saxon period, there is evidence for the forfeiture of land and movables for serious offences. This might be in association with outlawry or condemnation to death. Those guilty of treason might forfeit their lands, as in the case of Robert de Belléme. According to Orderic Vitalis, Robert, gnawed by anguish at his wretched fate, took the advice of friends and went out to meet the king as he approached the town, confessed his crime of treachery, and handed over the keys of the town to the conqueror. The king took possession of the whole honour of Robert and of his men who had stood by him in his rebellion, allowed him to leave unharmed with his horses and arms, and granted him a safeconduct through England to the sea."

Forfeiture also applied in cases of theft. Bricstan was ‘sentenced to be handed over with all his goods to the king’s authority’." Bricstan’s case therefore suggests that in this period, as later, movables were to be forfeited to the king. However, it is uncertain if this was true of all types of serious offence. Bricstan may have been convicted of treasure trove, a plea particularly closely connected to the king. In addition, he was convicted before a royal justice. It may be that in some other cases, for example of theft, forfeited chattels passed at least in part to the sheriff, to the lord of the land where the theft and thief were discovered, or to a lord with

sake and soke.’” In contrast, land was forfeited to the person of whom it was held. The Abingdon History, written in the 1160s but here referring to the reign of Henry I, recounts the following case: Ralph [son of Walter the ditcher] committed the crime of theft, because of which he lost his lawfulness, and by the custom of judgment of England he ought to have lost all his possessions together with his life. But after seeking mercy concerning these matters from King Henry, who was then in Normandy, and also from the queen, who

"°° LHP, 59. 26, ed. Downer, 190; on slaves, see above, 214, below, 424. See also LHP, 59. 23, ed. Downer, 190, for the scourging and branding ofa slave who had committed theft. Loss of tongue for making a false accusation against one’s lord is mentioned in LHP, 59. 13, ed. Downer, 186, but may be based on the Anglo-Saxon laws rather than on current practice; see III Eg, 4, II Cn, 16, although in those cases it is not specified that the false accusation is against the offender’s lord. *°? See also above, 186-7, on mutilation allowing the offender to save his soul. *'° Orderic, Ecclesiastical History, xi. 3, ed. Chibnall, vi. 30. ‘™* Lawsuits, no. 204, above, 305-7.

*™* See Leis WI, 27. The victim of theft who pursued and captured the perpetrator might also be allowed a share of the thief’s goods; below, 741-2.

16 THEFT AND VIOLENCE 403 had remained in England, he came to Abingdon to request in similar fashion the compassion of lord Abbot Faritius. Because of his goodness, the abbot bestowed on Ralph such a gift of a horse and of money and wheat that he not only surrendered to the church the land that he had hitherto held, but also confirmed by oath on the holy Gospels that no claim or suit would ever be brought concerning this by himself or by any of his heirs.

Possibly Ralph had to seek the abbot’s mercy because it was against him that the theft was committed, but more likely he did so because he was the abbot’s tenant. Instead of simply forfeiting his tenement, he was allowed to make a settlement in which he surrendered the land and received a gift in return.”

Fines

Monetary penalties continued to be of considerable importance after 1066. Domesday Book records set fines for some offences in some counties, of amounts familiar from Anglo-Saxon law. Thus it is stated that in Oxfordshire ‘if anyone violently breaks and enters anyone’s courtyard or house, so that he kills or wounds or assaults a man, he is to make amends to the king with 100s.’."* The Leges too could be taken as evidence for the continuing use of a system of set fines after 1066. For example, the Leges Henrici follows its already cited list of unemendable pleas with a list of those that could be emended for 100s., and with a further one of those that could be emended by payment of wergeld.” As far as we can tell there was no such system of fixed payments to the duke in pre-Conquest Normandy, and in England and Normandy after 1066 we come to see a system of amercements, of payments by persons whose bodies or goods were at royal mercy because of their offence. It has been suggested, therefore, that there was a ‘displacement of the Anglo-Saxon fixed tariff by the Norman arbitrary mulct’."° Henry I’s coronation decree states that if any of my barons or men does wrong he shall not give a gage in mercy of his chattels [pecunia], as he used to do in the time of my father or my brother; but according to the form of the wrong he shall make amends [secundum modum forisfacti...emendabit| thus as he made amends before the time of my father, in the ‘'S Lawsuits, no. 192.

‘DB, i. fo. 154v. “'’ LHP, 12. 2-3, ed. Downer, 114-16. Note also e.g. the various payments listed in LHP, 94, ed. Downer, 298-302; Leis WI, 2. "© Goebel, Felony, 384; see further Goebel, Felony, 242-8; Year Book 12 Edward II, ed. J. P. Collas (81 Selden Soc., 1964), xxii-xxxiii; Yver, ‘Les premieres institutions’, 350-3; see below, 745-6, for the

notion of amercement spreading to cover a much wider range of fines to the king, a large proportion of which can never have been associated with the specific exercise of royal mercy.

404 PART II: ANGLO-NORMAN ENGLAND time of my other ancestors. That if he is convicted of breach of faith or of a wicked crime [sceleris], he is to make amends as is just.”

This might be read as a promise to return to the old system of fixed fines for a wide variety of offences, as apparent from the Anglo-Saxon laws. However, such a reading is not wholly convincing. The first sentence probably refers only to the king’s own men, rather than to his free subjects as a whole; this is the logical reading following the previous clause, which concerns bequest of movables by the king’s barons or men. Likewise, the phrase ‘according to the form of the wrong’ seems simply to mean that the penalty should be proportionate to the offence, not that it should correspond to a fixed scale of fines."® Furthermore, the Anglo-Saxon laws, Domesday, and the Leges may mislead in

the precision that they give to amounts to be paid. We know from Old English wills that the amounts for heriots laid down by Cnut were not followed precisely in practice, and we shall soon see that the prescribed amounts for murdrum fines do not appear to have been paid in practice.’” The lists of fines may be general indications of the amount that was appropriate and of the relative seriousness of offences, an equivalent to the statement that amercement should be in proportion to offence. Had we an Anglo-Saxon Pipe Roll, it might well show the same forms of payments that we see in those of Henry I and Henry II. Moreover, except for particularly important offenders or exceptional offences, it seems that amercements too could take on a degree of standardisation.’° According to William of Malmesbury, laws in Herefordshire decreed by William fitzOsbern (d. 1071) remained in force, limiting a knight’s payment for a wrong to 7s., whereas elsewhere even a minor transgression of a lord’s order was assessed at 208. or 25s. Overall, therefore, one may conclude that the Norman and Anglo-Saxon schemes differed less sharply than has often been believed. Not all fines went to the king. It is possible to break down into certain categories

pleas in the Leges Henrici. There were the pleas tried before a royal justice or "7 RRAN, ii. no. 488.

‘'® The phrase has a close parallel in the Norman consuetudines of 1091, which uses the phrase ‘he made amends according to the form of the wrong’; Haskins, Norman Institutions, 282. Modus might also be translated as ‘measure’ or ‘type’. An Anglo-Norman translation of the charter, perhaps associated with the events of 1215, translates it as ‘la maniere’; F. Liebermann, “The text of Henry I.’s Coronation Charter’ (1894) NS 8 TRHS 21-48, at 48. See also J. G. H. Hudson, “Magna Carta, the Ius commune, and English common law’, in Magna Carta and the England of King John, ed. J.S. Loengard (Woodbridge, 2010), 99-119. *™ See above, 124, below, 406-7.

‘2° See below, 746, for the standardised amercements for minor wrongs such as breach of procedure, and for Becket on Kent and other counties; cf. above, 402-3, on mercy in the case of Ralph son of Walter the ditcher. Note also below, 832, on limits in boroughs. ‘*! William of Malmesbury, Gesta regum, iii. 256, ed. Mynors et al., i. 472-4.

16 THEFT AND VIOLENCE 405 perhaps a sheriff, in some of which all the profits would go to the king, in some they might be split between the king and others.’ Then there were pleas where the profits belonged to the sheriff’s farm. Finally there were those where profits might go to the lord with sake and soke, perhaps supplemented by toll and team. This category included fighting and wounding, so long as they did not amount to a more serious offence such as hamsocn, and probably minor theft.’

The murdrum fine In addition to monetary penalties on individuals there were also collective fines on groups or areas. The most notable was murdrum, the murder fine. This was a large fine for the killing of a Norman, or more generally of one who could not

be proved to be English. It applied to most of the realm, but not the entirety; excluded appear to have been Shropshire, Cheshire, Yorkshire, and areas further north.’4

According to the earliest account of murdrum, possibly originating in the Conquerors reign, William I declared that I wish moreover that all the men whom I brought with me or who have come after me be in my peace and security. And if any of them is slain, his lord is to have his slayer within five days, if he can. If not, however, he is to begin to pay me 46 marks of silver, so long as the property of that lord lasts out. When, however, the property of the lord fails, the whole hundred in which the killing was committed is to pay in common what remains.’”

In the second decade of the twelfth century the Leges Henrici mentions the murder fine at various points.”° It was to be of 46m., unless the wrongdoer was captured within a week. The king was to have 40 silver marks from the hundred where the body was found. The other 6m. went to the relatives of the slain man, or, if he had no relatives ‘who may bring charges or offer proof in accordance with the law, to

the man who disclosed the murder. A person could, however, be produced who would prove by ordeal of hot iron or the circumstances of the matter that the slain man was English, whilst twelve of the better men of the hundred could do so by

*°* See above, 290.

**° Hurnard, ‘Franchise’, 299-301. ** See Hamil, ‘Presentment of Englishry’, 290-1. °° Wl art, 3. A mark was two-thirds of a pound, 13s. 4d. That Latin text is not clear, but it seems more logical that it was the lord of the killer, not of the killed, who was to do the arresting or face a

monetary penalty. ‘2° For what follows, see esp. LHP, 13. 2, 75. 6—6b, 91. 1-4, 92. 1-5, 8, 11, Downer, 116, 234, 284-90.

Note also LHP, 92.12, ed. Downer, 290, on burial before a week had passed.

406 PART II: ANGLO-NORMAN ENGLAND oath on behalf of the hundred. The head [aldermannus] of the hundred and the lord on whose land the slain man was discovered were to give surety for payment. If the body was found in a house or court or close, the money was first to be raised by the sale of whatever was in that manor, with any deficit being made up by the hundred. If the manor was royal demesne or farm, and the king so ordered, the penalty was to be paid by the hundred. If the murder was discovered in open fields, the fine was to be paid by the hundred; if on the boundaries of estates, by the lands on either side; if on the king's road, by the man whose land lay next to it. The Leges Henrici also included further provisions, for example concerning the slain man who had been wounded in one hundred but died in another, and the confiscation of the chattels of a fugitive who had committed the murder. It suggests some of the ritual that might be involved: ‘if the murdered man is discovered anywhere, the hundred shall assemble there with the reeve and the neighbours; and whether he is identified or not, he shall be kept for seven days raised on a hurdle, with logs burning round about at night: It also suggests changes in the law relating to the fine, although the chronology of change is not clear: ‘a man was of old said to have been a victim of murder whose killer was unknown, wherever and in whatever way he was found; now it is added, although it is known who did the murder, if he is not held within seven days. The account in the Leges Edwardi, possibly two decades later, is in many ways similar, but makes no mention of Frenchmen or Normans or of change in the law regarding the need to identify the killer. The first stage was for him to be sought in the vill where the body was found; he was to be handed to the king's justice within eight days of the killing. If the killer was not found, they (presumably the vill) had a month and a day as respite to find him, but failure to do so resulted in 46m. being collected from the vill, with any deficit being made up by the hundred. Again, however, there seems to have been a change in the law, to spare individual vills from ruin. The barons (per-

haps the barons of the Exchequer, perhaps the king’s barons, or perhaps the barons of the county) provided that the fine be collected throughout the hundred, and sent under seal of a baron of the county to the king's treasury where it would be kept for a year. If the murderer was found within the year, he would be punished and the fine returned. If the murderer was not found, the slain mans relatives would receive 6m. If he had no relative, these would pass to his lord or to an associate bound to him by pledge of faith. Failing these, the king, ‘under whose lordship and peace all foreigners live, would receive the 6m. along with his normal 40m.” The 1130 Pipe Roll contains numerous references to murdrum. The fine ranges between 7m. and 30m., amounts varying within single counties.’* Almost all the

7 ECf, 15, ed. O’Brien, 172-4. Note also Leis WI, 22: ‘If a Frenchman is slain and the men of the hundred do not seize the slayer and bring him to justice within eight days, in order to prove who has done it, they shall pay the murder fine: 46m.’ "28 See esp. PR31HI, 10, 21, 66, 69.

16 THEFT AND VIOLENCE 407 references state that the sheriff owed a certain amount for a murder within a specified hundred or wapentake. This may, although it need not, indicate that the responsibility for payment rested primarily on the local unit rather than the lord; however, it could be that the compilers of the Pipe Roll were not interested in the details of the local arrangements for payment. One exceptional entry takes the following form: “Geoffrey de Bechesieta renders account concerning 15m. of silver for two murders concerning which he was impleaded.”” It may be that this is an instance where murdrum refers not to a fine but to a particularly heinous form of killing. Alternatively, this could be a rare instance where responsibility for payment of the fine rested on a lord rather on the local administrative unit.

Overall it is impossible to be certain whether there was a shift of primary responsibility from lords to vills and hundreds, as might be suggested by a comparison of the earliest account with the Leges Henrici in the 1110s and then with the Leges Edwardi. The responsibility may be connected to the suretyship of the escaped killer, with lords responsible for those in their mainpast. Certainly, however, there are likely to have been changes in the application of the murdrum fine during the Anglo-Norman period, as indicated by the Leges Henrici’s statement that it was extended to include cases where the killer was known but not captured within seven days.*° What then of the origin of the fine? The earliest account attributes its application to William I.’ However, the Leges Edwardi state that murder fines were devised [murdra...inventa fuerunt]| in the time of King Cnut, who, after he had acquired the land and pacified it with him, sent his army home at the request of the barons of the land. And they were sureties also to the king that those whom he retained in the land would have lasting peace. Thus, if any of the English slew any of those men, justice would be done on him if he could not acquit himself by the ordeal, whether of iron or water. If, however, he fled, payment would

be made..." This contrasts with the later account by Henry II's treasurer, Richard fitzNigel, in his Dialogue of the Exchequer. Murder strictly is the name for the secret death of someone whose killer is unknown,

for murder is something that is concealed or hidden. In the state of the kingdom immediately after the Conquest those who were left of the conquered English set

ambushes for the distrusted and hated Normans and secretly murdered them here and there in woods and unfrequented places, as opportunity offered. When,

"2° PR31HI, 125.

"°° See above, 406. "1 See above, 405. "°? ECf, 16, ed. O’Brien, 174.

408 PART II: ANGLO-NORMAN ENGLAND in revenge for these, the kings and their officials had for some years inflicted the most severe kinds of penalties on the English, who still did not desist in the least, it was finally decided that the centuriate, which they call the hundred, in which the Norman thus slain was found, without the agent of his death being there or by flight revealing who he was, should be fined a large sum of tested silver, £36 or £44 according to the type of place and the frequency of killing. They say that this was done so that the generally inflicted penalty would ensure the safety of travellers and so that everyone would hasten to punish so great a crime or to deliver to judgment the man through whom so great a loss harmed the whole neighbourhood.”

The reference to Norman ‘kings’ in the plural having inflicted severe penalties

prior to the murder fine seems to imply introduction of that fine by one of William’s successors. It is hard to assess the veracity of either the Leges Edwardi or the Dialogus as to the origin of murdrum. It may be odd that the fine did not apply in those counties

where the Normans might have felt their men most vulnerable, the Welsh border and the north, but as we have seen in the case of frankpledge, peacekeeping arrangements in those areas differed from elsewhere. It is possible that the amount specified in the various Leges, 46m., is of significance. The 4om. of silver might be the monetary equivalent of the eight half-marks of gold that the Treaty between Alfred and Guthrum laid down as a payment for a slain Englishman or Dane. The 6m., made up of 960d., comes close to the 200s. West Saxon wergeld of a ceorl, with the West Saxon shilling being worth 5d. The basis of the 4om. in the Alfred-

Guthrum Treaty may point to a pre-Conquest origin to the fine, and one linked to Scandinavians. However, there are problems with this interpretation.’ In particular, if the aim was to protect followers of the king, be it Scandinavian followers of Cnut or Norman followers of William, it might be expected that the payment to the kin would be for a rank higher than that of a Wessex ceorl. The amount of the fine, therefore, is not compelling evidence for a pre-Conquest origin. Henry I’s coronation decree stated that all murders done since his coronation were ‘to be paid for (emendentur) justly according to the law of King Edward.'* This may indicate at least that the murder fine was by 1100 thought to be, or had to be presented as, part of Anglo-Saxon law, but it may refer to the law of King Edward simply to indicate that the procedure was to be undertaken fairly. The safest conclusion may

be that the post-Conquest murder fine was one instance of the use of collective fines against particularly threatening killings, in this case of the Norman settlers. "°° Dialogus, i. 10, ed. Amt, 80.

*°4 AGu, 2. For arguments for introduction by Cnut, and on the background to the meaning of murdrum, see O’Brien, God's Peace, 77-80; also O’ Brien, ‘Murdrum’, esp. 331-8, 350-1; cf. Garnett, ‘Franci et Angli’, 116-28.

°° RRAN, ii. no. 488.

16 THEFT AND VIOLENCE 409 Cnut may have used collective fines in a similar fashion, although the Leges Edwardis specific account may reflect post-Conquest practice. Richard fitzNigel’s account of the background to the introduction of the fine in the Norman period is probably based on imagination, but nevertheless could be accurate in indicating a post-Conquest origin for murdrum in its Anglo-Norman form. The attribution to William I by the earliest account remains most plausible.

Murdrum was probably not the only communal fine. The Leges Edwardi suggests that such fines may have been imposed on the ‘small hundred’, a level of peacekeeping supervision above the tithing, which existed at least in certain counties, in the northern Danelaw and in East Anglia: ‘in the Danelaw [emend-

ation is made] by eighteen hundreds, which amounts to £144, for the Danes and the Norwegians called the monetary penalty of the hundred £8.’ The Leges Edwardi mention similar fines in Norfolk, Suffolk, and Cambridgeshire, at a level that the author associates with fines among the ‘Saxons,, that is in non-Danelaw

England. However, it is only for Nottinghamshire, Derbyshire, Lincolnshire, and Yorkshire that Domesday mentions such fines. Quite how accurate is the Leges Edwardi’s account must remain uncertain, but it does support the idea that in areas of Danish influence, large collective fines were imposed, providing an incentive for the maintenance of the peace and quite possibly requiring some form of administrative grouping beyond that of the tithing.”°

Compensation We have already examined the notion of the unemendable offence in late Anglo-Saxon and Anglo-Norman England. What role remained for compensation? Unfortunately after 1066, as indeed before, the case evidence for such payment with regard to serious offences is very limited. We have to struggle again with the Leges, and the problem of how far they reflect contemporary practice even in passages of original composition, let alone those derived from written texts.”

Let us start with homicide. The Leges Henrici state that ‘if anyone, free or slave, is slain he shall be compensated for lawfully by the amount of his wergeld [natalis sui pretio]’. They also, for example, specify appropriate levels for wergelds

°° ECf, 27, 33, ed. O’Brien, 186, 190; DB, i. fos 280v, 298v, 336v; see also ECf, 12. 3, ed. O’Brien, 170.

See further Maitland, “Criminal liability of the hundred’. Note the presence of ‘small hundreds’ in Yorkshire, where there may have been no tithings; see above, 392. Leis WI, 2, gives the fine for breach of the king’s peace as 100s. according to Mercian law, but £144 according to Dane law. '*” For reliance on written texts, see esp. LHP, 76, ed. Downer, 236-42, resting heavily on Wer; LHP, 79, ed. Downer, 246-8. See above, 380-2, on restoration of stolen goods.

410 PART II: ANGLO-NORMAN ENGLAND in Wessex.”* In addition the penalties of wite and manbot should be given to the appropriate lord.%° However, the text also specifies various circumstances that are probably ones leading to physical punishment: the offence taking place during military service, protection by peace obtained by writ or some other method, and so on.'4° The impression therefore is of compensation still being paid in simple

cases of culpable homicide, but a significant variety of cases leading to more serious punishment. The Leis Willelme give figures for wergelds in Mercia and Wessex, explanation of

the stages in which wergeld should be paid, and supposed monetary equivalences for animals used in wergeld payments.’” However, it is notable that the word healsfang, the first payment in the wergeld process, appears to have been unknown to the scribes of the surviving versions of the Leis, and the word is omitted from the Latin version, perhaps suggesting unfamiliarity with the process being described.

Hints of the demise of the use of such formal compensatory payments can be found elsewhere too. The Leges Edwardi, perhaps the text most representative of current practice, show limited interest in wergelds and their payment.’ Payment of compensation is suggested by its treatment of the offender who is pardoned by the king.’* Probably in the context of homicide, the Leges Edwardi also state that the offender ‘shall pay compensation to the relatives or endure armed conflict [guerra], for which the English had the proverb “Buge spere of side oder bere’, that is to say “Buy the lance from the side or bear it” “44 This could suggest the continuing possibilities of vengeance and compensation, but it may be notable that the proverb is attributed to the English and referred to in the past tense. How common was compensation for culpable homicide, and whether there was a shift to the death penalty, remains unclear.”

The Leges Henricis penultimate chapter deals at length with compensation for wounding, and displays very considerable reliance on Alfred’s code. Its final

chapter moves on to blows that do not draw blood, and this time has no clear extant written source.’® The Leis Willelme also specify compensation payments

‘°° LHP, 68. 1,70. 1, ed. Downer, 214, 218. See also LHP, 75, 77, 88, ed. Downer, 232-6, 242, 268-76. **” For manbot, see e.g. LHP, 70. 2, 4, 77. 3, ed. Downer, 218, 242; also Leis WI, 7. “° LHP, 68. 1-2, ed. Downer, 214; see also 69. 1, ed. Downer, 218.

“Leis WI, 8-9. “However, note. ECf, 2. 9, ed. O’Brien, 160: ‘if anyone commits an offense for himself, the bishop shall administer his justice. And if he refuses to make amends on account of the bishop's justice, [the bishop] shall show this to the king, and the king shall constrain the offender to make amends to the person whom he wronged, to the bishop, and to [the king] himself? “5 ECf, 18, ed. O’Brien, God’s Peace, 176; below, 412-14. “* ECf, 12. 6, ed. O’Brien, 170.

*° Note also above, 279, below, 714, on jurisdiction over homicide. ‘“° LHP, 93-4, Downer, 292-302; it is possible that LHP, 94. 2, Downer, 300, was influenced by Af, 45.

16 THEFT AND VIOLENCE All for various types of wound. There are similarities to Anglo-Saxon laws, and also

mention of payment to cover the cost of obtaining a cure. The victim was to swear he could not have obtained it for less, and that he had not unjustly raised it out of hatred. Once compensation for the wound had also been settled, at the reconciliation the perpetrator was to show honour to the victim, and swear that if their positions had been reversed, and if his heart inclined him and he had received similar advice, he would have accepted the same compensation that he was offering.'””

With respect to unintentional harming, as we have heard, a certain William the bald killed a man by accident but found that ‘he could in no way buy the friendship of the relations of the killed man nor at any price obtain their forgiveness." The clear implication of the story is that his proposed payment of compensation was proper and should have been accepted. The Leges Henrici speak of compensation for accidental harming, and indicate its use for repair of honour as well as physical harm.'? The obligation to compensate for accidents may be one element underlying the Leges Henrici’s inclusion of the proverbial sounding statement that ‘he who does wrong unwittingly shall wittingly make amends."*

If there was a decline in the importance of compensation in the treatment of serious offences, what caused it? There is no sign of relevant legislation. The ending of slavery may have created problems, if, as has been suggested, it had been common for the offender to become the slave of the victim or victim’s kin,

at least until any outstanding compensation was paid. It could also be that the Normans were less used to settlement though compensation than were the Anglo-Saxons. This might be suggested by the appearance of relevant English vocabulary and proverbs in the various Leges. On the other hand, it seems likely that the role of punishment, notably capital punishment, was already growing in late Anglo-Saxon England. The continuing extension of royal authority, in ways that prioritised punishment or fines paid to the king, may have reduced the scope for compensation, even if compensation and punishment could co-exist.’ Royal officials may have discouraged the type of out-of-court settlement that would prioritise compensation over punishment; according to the Leges Henrici, ‘if anyone, on the basis of an accusation that he has made in the presence of a justice, undertakes a plea that is concerned with theft, robbery, or an offence

“7 Leis WI, 10, 11, 19. ™® See above, 396.

““° LHP, 88, 90. 7-8, 11, ed. Downer, 268-72, 282-4. °° LHP, 88. 6a, 90. lla, ed. Downer, 270, 282; see also LHP, 70. 12b, ed. Downer, 222. *°* See above, 194-5. *°? See also Hurnard, King’s Pardon, ch. 1.

412 PART II: ANGLO-NORMAN ENGLAND of this kind, he shall not make a secret or open settlement without the justice’s permission.”® Nevertheless, compensation payments continued to be significant. As the passage

just quoted from the Leges Henrici suggests, there may have been considerable pressure from victims and their kin to maintain the paying of compensation, even if this process was forced out of court by royal efforts to control proceedings. The king could also profit from giving permission for such out-of-court settlements, or could allow or insist upon compensation even when demonstrating his right to punish criminals.%* Compensations may also have retained greater importance in towns and other areas outside the normal system of royal justice.’* And compensation retained considerable importance in the context of lesser offences that did not threaten the more general peace. This no doubt had always been their most frequent use simply because of the number of offences. Such compensations would eventually develop into the payment of damages under common law actions, notably that of trespass.°

Pardon Kings had probably always enjoyed the power to pardon offenders, as an exercise of majesty. However, such pardons left the problem of the rights of the victim or his kin, that is of those who had suffered most directly from the offence. A combination of pardon and compensation might be particularly appropriate in cases of killing in self-defence, where the killer may not have been seen—except perhaps by the victim’s kin—as meriting physical punishment, but still should

make some amends. It is possible that a new type of royal pardon emerged under Henry I, acquitting killers from prosecution and punishment by the king but leaving them open to prosecution by the victim's kin.’” The Leges Edwardi mentions two royal powers of pardon: if any offender asks for his [the king’s] mercy from fear of death or loss of limbs because of his offence, he can pardon him, if it pleases, by the law of his dignity. And he who receives mercy shall do right to the person he earlier wronged, in so far as he is able to fulfil, and he shall find pledges for maintaining the peace and [his] law-worthiness. But if he cannot, he shall be exiled from the country. Furthermore, the king has another power of mercy over captives, that whenever he comes into a

"°° LHP, 59. 27, ed. Downer, 190. *°4 See below, on pardon. *°° See below, 832. *°° See below, 743-5. Note also e.g. Lawsuits, no. 185.

7 Hurnard, King’s Pardon, ch. 1, esp. 15-18; cf. O’Brien, God’s Peace, 80-3.

16 THEFT AND VIOLENCE 413 city, borough, vill, or even on the road, if a captive is there, he can release him from captivity. This man, though freed, shall do right to the person whom he wronged as much as he is able.’*

With either type of pardon, therefore, the pardoned man was to do right to the injured party; this seems to mean paying compensation, although it could mean facing accusation in trial. In addition, an 1130 Pipe Roll entry states that ‘William son of Roger of Pont Aleric owes 2m. of gold that he may have peace concerning the death of William del Rotur. And if anyone appeals him, he is to defend himself by his lawful law.’*° However, there are problems in taking this entry as evidence of a new type of pardon. The high payment, notably involving gold, suggests an exceptional procedure. Moreover, the second part of the entry is hard to interpret. It may be that William son of Roger was paying not only to have peace concerning this particular offence but also to be treated as a lawworthy person in relation to any appeals concerning any offence whatsoever; hence the emphasis on lawfulness. Indeed, it may be that the payment concerned procedure in future appeals; to defend oneself by one’s lawful law may be to be

allowed compurgation as a trustworthy person rather than the ordeal of the untrustworthy or the not law-worthy. Even if the clause does refer to appeal by the victim’s kin, the Pipe Roll entry need not indicate that the procedure is new; simply, for the first time, we have a surviving Pipe Roll. If the Abingdon History’s account of the treatment of Ralph son of Walter the ditcher can be trusted as a true representation of procedure at the start of the twelfth century, we have a convicted thief seeking mercy not just from the king but also from his lord, who conceivably was also the victim of his theft.’°° The likelihood that the king sometimes pardoned men in relation to himself but not in relation to others therefore remains strong; that such procedure was an innovation of the latter part of Henry I’s reign is only a possibility. Pardons also might be obtained posthumously, at least in the case of a thief slain for his crime. The Leges Henrici and the Leges Edwardi both give processes whereby a supporter of the slain man could bring a claim for his pardon. If it was successful, according to the Leges Edwardi, the slayer had six days to pay monetary penalties to the bishop. Meanwhile, following the judgment, the bishop’s justice shall order a procession with a priest wearing an alb and stole, and clerics in surplices with holy water, cross, candles, and censer with fire and incense; and so they shall exhume the dead man from the earth, placing him on a

*°® ECf, 18-18. 3, ed. O’Brien, 176; there follows the passage concerning abjuration, quoted above, 399.

°° PR31HTI, 102. PR31HI, 75, 156, may concern pardons but cannot lead to definite conclusions. "°° See above, 402-3.

414 PART II: ANGLO-NORMAN ENGLAND litter and carrying him to the church. When the mass has been sung and the service performed, they shall bury him as a Christian.”

Just as burial outside consecrated ground was an earthly indication of eternal punishment, so reburial as a Christian made manifest the reversal of the earthly and eternal sentence.

Outlawry As has already been said, the major problem in dealing with serious offences was actually to catch the perpetrator. Outsiders might swiftly depart, members of the community flee. Flight of an identified serious offender led to outlawry. He was to be given a proper chance to answer concerning the offence, but then be put outside the protection of the law.’* The outlaw faced summary trial and execution if caught, death if he resisted. Thus, according to the Leges Edwardi, if someone breaks the peace of the holy Church, the jurisdiction [justicia] nevertheless belongs to the bishop. And if he scorns their sentence by fleeing or by arrogantly contemning [it], the complaint concerning this should be brought to the king after forty days; and the king’s justice shall attach him through gage and pledges, if he can have

any, until he shall make satisfaction first to God and afterward to the king. And if within thirty-one days he cannot be found by his friends or by the king’s justice, the king shall outlaw him by his own mouth. And afterward if he is found and can be held alive, he shall be surrendered to the king, or his head if he defends himself. For from the day of his outlawry he bears a wolf’s head, which is called wluesheued by the English. And this sentence is the same for all outlaws.’

Proceedings may have been through the county court, which later had a monopoly of the process, but outlawry, and its pardon, were emphatically royal

rights. Many outlaws were probably never captured. However, this did not render their

sentence meaningless. The community where the offence had been committed was rid of an unwelcome presence. Unless already outsiders, the offender was forced to leave his own community. In addition, the outlaw’s goods were probably

"8! LHP, 74, ed. Downer, 230-2; ECf, 36, ed. O’Brien, 198; see above, 196, on burial in unconsecrated ground. Differences between the accounts in the Leges Henrici and the Leges Edwardi may stem in part from the former’s reliance on /thelstan’s laws, in part from local or other variation. “8? See LHP, 13. 1; 47. 1, ed. Downer, 116, 156-8, for serious offences and outlawry; also LHP, 29. 3a, ed. Downer, 132, on judgment in absentia. "°° ECf, 6, ed. O’Brien, 162-4. *°* See also LHP, 10.1, ed. Downer, 108.

16 THEFT AND VIOLENCE 415 forfeit to the king, although if the outlaw was later captured his capturer may have been entitled to any chattels that he had.'®

6 CONCLUSION Problems of crime and the methods used to tackle them show considerable continuity across 1066. Whereas a new vocabulary was used to describe many aspects of landholding, English words and English proverbs continued to be

applied in many matters of crime.’ Such linguistic evidence suggests the importance of English suitors within many of the courts dealing with offenders, English suitors who preserved or sought relevant custom. There was also a continuing possibility of victims or their kin acting directly

against offenders, and continuing royal efforts to limit and to channel this impetus.” Treatment of the offender caught red-handed or manifestly guilty was to be prompt but according to proper procedure. Law was to temper anger and to restrain vengeance, although disputants used the courts to pursue revenge.’ Much room may have remained for local variation in procedure and possibly in penalties. Northern and some western areas of the realm were not covered by key administrative arrangements such as frankpledge. However, royal efforts at extending control persisted, probably, for example, through increased use of the death penalty and possibly through the generalised notion of the king’s peace. Administrative developments, notably use of justices and particularly itinerant justices, sought to increase royal control in the localities. Such justices may have helped to project the image of the king as the maintainer of peace, which was

manifested in person not only through judgments but in other ways too, for instance the receiving of supplication and the granting of pardon.’ Royal justices may have played a role in bringing accusations. In general, though, accusation remained a matter for the victim or their kin, through appeal. This procedure continued to be of major importance even for serious offences in the later twelfth century and beyond. However, Henry II's reign would produce a marked shift of emphasis in royal efforts to ensure that all wrongdoers faced prosecution. ‘°° For the chattels passing to the capturer, see Dialogus, ii.10,ed. Amt, 152. ECf,19. 2, ed. O’Brien, 178, states that children conceived before an offence should not be held outlaws for the offence that their fathers did after their conception, and nor were they to lose the inheritance. "°° See above, 387, 391, 397, 410.

*°” On vengeance, see above, 395-6, and note e.g. LHP, 86, ed. Downer, 262. "8 See esp. LHP, 57. 3, 4, 7, 7a, Downer, 176-8; also LHP, 62. 3, 3a, ed. Downer, 200. For malicious accusations, see above, 308. ‘°° For supplication, see e.g. Lawsuits, nos 143, 192; for pardon, see above, 412-14.

17

Status pasesocial status in post-Conquest England remained largely a matter of and economic, rather than discretely legal, position. Again, however, it is possible to concentrate on certain aspects where status was a matter of legal distinction and legal consequence.

1 HIERARCHIES The wergeld hierarchies prominent in some Anglo-Saxon law-codes feature much

less in post-Conquest evidence.’ Some of the Leges retain such lists, but often they derive from Anglo-Saxon texts, as when the Leges Henrici drew on the preConquest tract known as Wergeld.” Likewise the hierarchies of reliefs given in the Leges Henrici and the Leis Willelme derive in large part from the list of heriots in IT Cnut.3 Some other forms of hierarchy appear elsewhere. Domesday Book required

the imposition of certain classifications, although application was not entirely consistent.‘ Charter addresses also present some sense of hierarchy, for example distinguishing barons, knights, and other faithful men, but the distinctions seem of less legal consequence, perhaps less formality, than those in Anglo-Saxon documents. It may be that in the first decades after 1066 the division between French and English was often the most obvious division of status.

2 MEN OF HIGHER STATUS Earl

Like Norman counts, earls in post-Conquest England exercised a strong hereditary claim to their position, although it might be threatened by political * See above, 410, on possible diminution in the importance of wergeld. Note also e.g. that there is no surviving Anglo-Norman equivalent to the treatise on status, GePbyncdo. * LHP, 76, ed. Downer, 236-40. > LHP, 14, ed. Downer, 118; Leis WI, 20, cf. II Cn, 71. * See below, 419-20.

17 STATUS 417 events.” There may have been a ceremony for the initial creation of an earldom or the succession of a new earl, a ceremony that might emphasise the element of royal appointment.® However, there are also signs that some men continued to call themselves earl even after they had lost the lands of their earldom, suggesting less royal control of the title?’ In matters such as trial procedure or punishment, the legal treatment of earls lacked distinctiveness.’ There was probably a general belief that earls should be tried by their peers, at least in the sense of the leading men of the realm, but trial by peers was a general principle rather than one peculiar to earls

Baron The legal status of the baron, or more specifically of the baron holding ‘in barony’, has been a matter of some controversy. It has been suggested that the baron was

the successor of the king’s thegn, and was distinguished by the possession of sake and soke; similarly the baron in pre-1066 Normandy was the holder of an office involving rights of public justice.’° However, there are problems with this view. Statements in the Old English laws and in the Leges referring to thegns or barons who had soke may best be taken to imply the existence of other thegns and barons without soke." Moreover words other than baron were used to refer to those holding sake and soke, as when the Leis Willelme refer to the “free man [francs hom]’ who has sake and soke and toll and team and infangentheof.’ The king’s barons, and some barons of other men, certainly held such privileges, but this was because men of such status were likely to have jurisdictional rights, not because those rights made them barons.”

Rather, the word baron was used to indicate the most important men of a lord, including of the king.’* Gradations might exist amongst a lord’s barons;

> See e.g. Bartlett, England, 208. On inheritance, see also above, 355. As we have seen, postConquest earls lacked much of the administrative character of their Anglo-Saxon predecessors; see above, 264-5, 277, below, 492, on Stephen’s reign. ° See below, 750. ” See Stenton, First Century, 229-34, Crouch, Image of Aristocracy, 58-60. * See also below, 750, on reliefs in Magna Carta. > See LHP, 31.7, ed. Downer, 134; Stenton, First Century, 60-1. *° Reid, ‘Barony and thanage’, esp. 167, 196-7.

** See esp. LHP, 9. 11; 24. 1, ed. Downer, 108, 126; ECf, 21. 1, ed. O’Brien, 180. For the contrary interpretation, see Reid, ‘Barony and thanage’, esp. 173-5, and her comments at 177-8 on Bracton and Britton. ‘* Leis WI, 2.3. The Latin version uses no specific term here, simply starting its clause ‘Si quis....’ ** See also Stenton, First Century, 103 n. 2.

* See e.g. I. J. Sanders, Feudal Military Service in England (Oxford, 1956), 24-5; Crouch, Image of Aristocracy, 107-12. For the ‘barons of the Exchequer’, see e.g. RRAN, ii. no. 1538.

418 PART II: ANGLO-NORMAN ENGLAND for example, a monastic foundation charter compiled in the twelfth century although dated 1093 and in the name of Hugh, earl of Chester, made a specific mention of the earl’s barones principales.® The second clause of Henry I’s corona-

tion decree in its treatment of relief places barons before earls and ‘others who hold of me’. Most likely, “earls and others who hold of me’ is here a description of ‘barons’, with earls as the most important. ‘Baron’ was often used of the leading members of a court or in the context of counsel, as when Henry’ss decree refers to changes that William I had made to the law of King Edward ‘by the counsel of his barons’.”° Like earls, barons enjoyed neither particular legal privileges in terms of

trial procedure or punishment, nor particular burdens.

Knight, thegn, and dreng Just as with earls and barons, the legal status of knights was not clearly defined in the Anglo-Norman period, during which their socio-economic status was both diverse and changing.” Likewise, in the north of England there were thegns and drengs who were clearly free men, holding by a tenure that had strong ministerial elements, that is elements of personal service, but who had no particular legal privileges."* Overall,

the upper echelons of lay society in England were notable for their lack of formal legal privilege. However, the position of many as tenants-in-chief, their wealth and political significance compared with lesser men, and the relative ease of access of at least some to the king, made their activities and particularly their landholding a core element of the business of the king’s court.

3 MEN OF LESSER STATUS During the Anglo-Norman period there may have been an increased burden of lordship on many of the peasantry, which historians sometimes put down to the impact of the Conquest or to imposition of ‘evil customs’ paralleled on the Continent.® In particular, the continuing process of manorialisation and village nucleation especially in central and southern England intensified lordship over a significant proportion of the peasantry. Such socio-economic change *° Chester, no. 3. *° RRAN, ii. no. 488. See further Stenton, First Century, 90-5. ” See e.g. Stenton, First Century, chs 4 and 5; Crouch, Image of Aristocracy, ch. 4.

*® For a summary, see Barrow, ‘Northern English society’, 10-11; also above, 340. On arguments concerning the presence of ‘threngs’ in Kent, see above, 207 n. 50. *? See e.g. J. Hatcher, ‘English serfdom and villeinage: towards a reassessment’ (1990) 90 PeP 3-39, at 28; Faith, Peasantry, 263.

17 STATUS 419 and variation underlay the legal status of lesser men but did not determine legal classification in any simple way.”° Indeed, there remain very significant problems in dealing with the legal status

of the peasantry. Some have already been mentioned, notably the separating of the legal and the socio-economic, and of status and tenure. Others relate to terminology and categorisation, both in uncovering the language of the time and in matching medieval terms with modern. Most of our sources are in Latin, thereby concealing the important vernacular vocabulary of everyday use. The hints that are available concerning the vernacular illustrate the complexity of interpretation. Words changed both in their meaning and their precision. Thus the translation of Anglo-Saxon laws that is known as Quadripartitus uses the Latin villanus to translate the Old English ceorl, whereas historians have tended to associate villanus with unfreedom, ceorl with freedom; the historians have thus imposed a false distinction and probably excessively specific definitions.” By 1200 the word villanus normally signified the legally unfree but in 1086 it was appropriate for a wide range of people, including some who by later categorisation would be considered free.” Furthermore, our picture rests heavily on Domesday Book as other sources

remain limited. Domesday provides vast material, for example suggesting decreases in the number classified as free men, increases in the number classified as villani.* Yet the information is hard to interpret. It is uncertain how far those responsible for the inquest and the Book fully understood, or chose to represent, all arrangements, in particular local variations. Thus differences that may well have existed in areas such as Kent are hard to detect in the Book. Moreover, the

Latin terminology of Domesday may invite overly strict legal interpretation. The historian’s legal category ‘free’ cannot be equated exclusively with those whom Domesday calls “free men’.** Men described by other terms, most notably sokemen, also enjoyed greater freedom than did the mass of the population, the villani, perhaps best translated in a literal, non-technical way as ‘men of the vill’.

*° See e.g. Faith, Peasantry, 207, 211, 247. For burgesses, see below, ch. 31. *" E.g. Af, Rb 39, 4. 2; Gesetze, ed. Liebermann, ii. 234, s.v. ‘villanus’.

*? See further e.g. the discussions in Hatcher, ‘Serfdom’, 28, and Faith, Peasantry, 251. See also below, 424, on the meanings of servus. *° See e.g. Maitland, Domesday Book and Beyond, 61-3.

** For free men, including the varied size of their holdings, see also e.g. Vinogradoff, English Society, 414-26.For a free man with a holding of half a hide (sizeable by peasant standards) becoming one of the villeins, see DB, ii. fo. lv. *° On possible changes in relationship of sokemen to their lord at this time, see Faith, Peasantry, 215. See above, 209-10, on the lack of certainty about any clear distinction between sokemen and free men; note also e.g. Vinogradoff, English Society, 431-43. DB, i. fo. 212v, mentions four sokemen, of whom

420 PART II: ANGLO-NORMAN ENGLAND In turn, the Book distinguishes villani from servi, slaves, of still lesser status and freedom. Such gradations make it hard to draw a line between the legally free and the legally unfree. Furthermore, free men, sokemen, villani, and slaves do not exhaust the types of lesser men. Domesday mentions cottars and bordars. The key distinction from the mass of villani appears to have been economic; cottars and bordars held less land and some indeed may have been landless. How bordars differed from cottars is uncertain.”° In some counties both terms appear in a single entry, suggesting a distinction. However, different records arising from the Domesday survey use the two terms to refer to the same individuals. Choice of term in Domesday Book

seems sometimes to have been determined by the hundred concerned, rather than the status of the individuals. Any distinction between bordars and cottars, therefore, appears to have been obscure to some contemporaries.

Were bordars and cottars legally distinct from villani? The Latin form of bordar does not appear in any text from England before Domesday Book, and is in fact not common outside Domesday. It was probably a Latin translation of a Norman-French term such as bordier, signifying a small-holder, normally with no plough of his own and working particularly for his lord. It is conceivable, indeed, that some bordars recorded as alive in 1086 had been, or were descendants of, slaves before the Conquest.” Reclassification may have been merely a change of terminology, or may represent some change in conditions. In general, though, bordars and cottars appear a sub-set of villani, rather than legally distinct, and in the discussion that follows they do not receive separate treatment. Outside Domesday Book, there were also distinct regional terms for groups of men of low status, for example the smalemanni in the north of England. It may well be that in less manorialised areas the burden of services was less, a greater proportion of the population relatively free.”* In the analysis of legal status that follows, it is again helpful to distinguish freedom in relation to the king and the world from freedom in relation to the lord.”? In each case, a set of categories can usefully be examined. In relation to the king and the world there is the right or duty of bearing arms, responsibility for paying taxes, protection of law against violence or theft, participation in bodies

three were ‘free’, but the fourth could not give or sell his land; however, the distinction may be limited to the nature of the last man’s landholding, with him probably having his land by lease. *° See Darby, Domesday England, 69-71; however, see Faith, Peasantry, 70-4, on the close connection of the bordars with the estate ‘inland’, and on the Latin term bordarius being a translation of the French bordier. *” See Faith, Peasantry, 71, 87. See also Faith, Peasantry, 209-10, on ‘worklands’. *® For asummary, see Barrow, ‘Northern English society’, 12-14. *° See also below, 428.

17 STATUS 421 responsible for the maintenance of order, attendance at court, forms of procedure and punishment in court. In relation to the lord, besides tenure of unfree land, there are protection against ill-treatment, rights to chattels, services and dues owed, and the ability to leave?°

Free man and sokeman Those termed free man or sokeman were probably expected to bear arms, although this right or obligation is rarely made explicit.» It may also be that free men and sokemen were responsible for paying geld from their land, whereas lords were responsible for land held by villani. This distinction had legal as well as fiscal significance, because geld payment helped to establish title to land.” The free man or sokeman enjoyed protection of law, for example in relation to offences against his person and chattels. Most would be members of a tithing or mainpast, and a significant proportion might attend at least a hundred court. They would have had a wergeld, determining compensation and penalties in certain circumstances. And they could bring accusations and swear oaths in court. Against his lord, regarding serious ill-treatment of the person or misappropriation of movable goods, the free man or sokeman probably enjoyed the same protection as against others. The services that he owed his lord may often have been lighter and more honourable than those of villani34 Free men and sokemen might have to make payments to their lords at various times, for example for the marriage of their daughters, but this could also be true of men of higher status. They also probably had the right to leave their lord, but might face losing land that they held from him.®

Villanus

It is uncertain whether some or all villani had the obligation to bear arms.” There are signs that lords rather than the villani were responsible to the king

°° On tenure, and the possibility of attornment with land to another lord, see above, 365-6. *" See below, 425-6, on manumission ceremonies. ** See esp. Maitland, Domesday Book and Beyond, 24-5, 54-6; also Faith, Peasantry, 84-5. On geld and title to land, see above, 120. See also Leis WI, 17, on the rendering of Peter’s Pence. °° See above, 281, 391-3. °** See Faith, Peasantry, 207. °° See below, 439. °° Cf. above, 222.

°” It is unclear whether the servus given arms in the passage of the Leges Henrici quoted below, 426, is becoming what Domesday would describe as a ‘free man or a‘villanus’.

422 PART II: ANGLO-NORMAN ENGLAND for the geld from their land; although the lord may well have extracted the necessary money from the villani as part of their services, in relation to the king the land was the lord’s. It does appear that villani were expected to be members of frankpledge,** and some villani may have attended hundred courts. Offences against the person and chattels of a villanus, except when perpetrated by their lord, may have been treated just like offences against free men. The Leges Henrici treated the villanus as the equivalent of the Anglo-Saxon ceorl in terms of having a wergeld.® Villani could bring accusations and claims to lands, although an opponent expressed surprise when someone who was almost a peasant [rusticus] brought a land action in the king’s court early in Henry II's reign.*° As to relations with their lords, evidence is lacking with regard to physical injury done by the lord to his villanus. It is likely that the villein’s chattels were considered in some sense his lord’s, as is suggested by writs ordering the return to a lord of fugitives and their chattels.** With the process of manorialisation, burdensome services probably marked villani, particularly performance of heavy labour services and week work, that is several days’ work each week.? The lord may also have had greater discretion as to his demands than in relation to free men. On the other hand, some villani owed rents, and commutation of labour service to money payment did not necessarily lead to a change in legal status.‘4 Furthermore, certain payments, for example ‘merchet’ for the marrying of their daughters or ‘chevage’ to demonstrate their continuing connection to a lord, may have been characteristic of villani, but were not exclusive to them.” An aim of both chevage and merchet may have been retention of control over potentially mobile peasants, and a major aspect of unfreedom was the inability to leave.*° The Leis Willelme apply this restriction to ‘les naifs’, the French equivalent

*® See above, 391-4. °° See LHP, 76. 6, 7g, ed. Downer, 240-2.

*° See Lawsuits, no. 449. ™ See e.g. Royal Writs, nos 104, 107-13. ** See e.g. Hatcher, ‘Serfdom’, 29, 33.

** Note also e.g. Reginald of Durham, Libellus de admirandis beati Cuthberti uirtutibus, 93, ed. J. Raine (1 Surtees Soc., 1835), 206, on William, miller of Thorpe, whose lord could freely do as he wished concerning him. Reginald was writing in the 1160s or 1170s. ** See e.g. ‘The Burton Abbey twelfth century surveys’, ed. C. G. O. Bridgeman (3rd ser. 41 William Salt Archaeological Soc., 1918), 209-300, esp. 245.

*° For merchet, see esp. P. A. Brand and P. R. Hyams, ‘Seigneurial control of women’s marriage’ (1983) 99 Pe>P 123-33. For chevage, see e.g. Lawsuits, no. 219, where it is also stated of the fishermen

owing chevage that ‘the abbot of Thorney shall have their sons and daughters’. The Black Book of Peterborough, in c. 1127, has an oxherd pay ld. chevage [‘pro capite suo’], only if he were free, not a servus; Chronicon Petroburgense, ed. T. Stapleton (47 Camden Soc., 1849), 163.

*° Note e.g. the lists of fugitives that appear in Charters and Custumals of Shaftesbury Abbey, 1089-1216, ed. N. E. Stacy (NS 39 British Academy Records of the Social and Economic History of England and Wales, Oxford, 2006), 130, 140.

17 STATUS 423 of nativi and hence probably of villani, or at least those villani who were born

into such status.” A miracle story from the first half of the twelfth century, referring to events at the end of the eleventh, tells of two villani (elsewhere in the story referred to as rustici) who were living under the right of the abbot of Burton, but ran away to the neighbouring village, unjustly leaving their lords the monks, and wishing to live under the power of the Count Roger the Poitevin.* Again there is a problem in precise interpretation; could they not leave their lord because that was a restriction on all villani? Or were they particular villani who could not leave their lord, whereas other villani might have been able to? Or did the restriction not only apply to villani? The Leges Henrici mention that one leaving a lord without permission was to pay a fine and be compelled to return so that he could do right in all matters, but the text does not associate this restriction with a specific category of person.’? Writs obtained by lords for the restoration of fugitives order the return of ‘men or ‘fugitives’, without giving further indication of their status.*° Maybe the limitation to villani or the equivalent was assumed, but overall no simple equation of villani, inability to leave a lord, and unfreedom is possible.

Distinctions between tenure and status were not sharp, and landholding by villani has already been considered in the context of land law.” Villani could be given or sold. However, such sales probably differed from those of slaves or chattels. There is no evidence of villani being sold in markets, as slaves sometimes were.” Transfer of villeins was likely to have been a less dishonourable affair for those sold, normally taking place in the context of land transfer. Status might be conveyed by birth. In the case of mixed marriages of free and unfree, the Leges Henrici indicate that it was the father’s status that determined whether the child was free or servus, although later practice may suggest that

there was not a consistently applied rule** The normal heritability of unfree status is also indicated by some, although not all, manumissions specifying that the beneficiary’s off-spring were to be freed too.“ “7 Leis WI, 30.

*® Geoffrey of Burton, Modwenna, 47, ed. Bartlett, 192-4. * LHP, 43. 2, ed. Downer, 152; see also LHP, 43. 3-4, 8, ed. Downer, 152.

°° See Royal Writs, nos 103-113; survival reflects ecclesiastical preservation of documents, and only no. 104 seems to have been for a lay beneficiary, it too being preserved in an ecclesiastical archive. P.R. Hyams, Kings, Lords, and Peasants in Medieval England (Oxford, 1980), 239, suggests that such writs may have extended to the retrieval of ‘men of some substance’. Note also Leis WI, 31. >" See above, 367-9. Also above, 421, on responsibility for geld. >? See below, 424-5.

°° LHP, 77, ed. Downer, 242; it is unclear whether servus here means slave or an unfree person more generally. See also below, 758-9. °* The Exeter Book of Old English Poetry, ed. R. W. Chambers et al. (1933), fo. 3b (no. 4).

424 PART II: ANGLO-NORMAN ENGLAND Slave Domesday Book shows that the number of slaves was declining in post-Conquest England, and slavery seems to have disappeared by 1135. For example, whereas Domesday records just over 150 slaves on the lands of the church of Worcester

in 1086, none remained in the twelfth century.’ There are various possible explanations. In part there may simply have been a change of terminology; there are some signs of vagueness in the distinction that Domesday Book and associated records draw between servi and villani>° The decline may also reflect Norman unfamiliarity with slavery or derive from the economic interests of lords. At the same time penal slavery seems to have disappeared. However, beyond such postConquest causes, it is also possible that the decline had started earlier, but is not revealed by the evidence.” There are no clear signs of any changes in the law with regard to those slaves who continued to exist. Our main source is the Leges Henrici, which distinguishes servi from villani. However it is not certain how consistent is its categorisation. Occasional passages suggest, for example, that a servus might have a wergeld, but the clearest passages indicate that the author regarded the servus as without wergeld, unlike the villanus2* This emphasises their unfree status in relation to all, not just to their lord. Characteristic punishments such as beating continued to be specified for slaves.*° In addition, slaves could be sold, sometimes probably in markets alongside four-legged animals. The Domesday entry for Lewes, Sussex, is probably referring to slaves when it states that ‘who sells a horse in the borough gives the reeve a penny [nummuml], and who buys it another. Concerning an ox, %d. Concerning a man, 4d., wherever he buys within the Rape. ®° However, action continued against the sale of slaves overseas. According to an early text, William I prohibited on his full forfeiture that anyone sell a person

°° See C. Dyer, Lords and Peasants in a Changing Society (Cambridge, 1980), 33, 37, 97; Moore, ‘Domesday slavery’, esp. 216-20.

°° See Maitland, Domesday Book and Beyond, 33-5. See above, 422 n. 45, on the Black Book of Peterborough dividing oxherds only into liberi and servi. °” See Pelteret, Slavery, 251-4; Faith, Peasantry, 209-10. °® LHP, 70. 1-2, 4, ed. Downer, 218; the author emphasises the manbot paid to the lord for the slave. 40d. were paid to the relatives of the dead man, but this is not called a wergeld. Cf. LHP, 68. 1, ed. Downer, 215, which states that wergeld is to be paid for the slaying of anyone, liber or servus. The opposition of these two terms may suggest that servus should here be taken to indicate the equivalent of villanus, nota slave. °° LHP, 59, 24, ed. Downer, 190; however, cf. LHP, 59. 26, ed. Downer, 190, on the branding of all fugitives, whether servi or free. °° DB, i. fo. 26r. °* See above, 212.

17 STATUS 425 [homo] outside the patria.” Other sources too mention the prohibition of such sales. According to William of Malmesbury in his Life of Saint Wulfstan, the saint

put a stop to an ancient habit of [the people of Bristol], which had become so ingrained that neither love of God nor fear of King William had been able to abolish it. For they would buy up men from all over England and sell them off to Ireland in the hope of a profit, and put up for sale maidservants after toying with them in bed and making them pregnant. You would have groaned to see the files of wretches roped together, young persons of both sexes, whose youth and respectable appearance would have aroused the pity of barbarians, being prostituted every day, put up for sale every day.®

Wulfstan’s preaching persuaded the men of Bristol to give up the practice, thereby setting an example for the rest of England. The people of Bristol were so enthusiastic in their changed attitudes that ‘one of their own number, who was recalcitrant in his flouting of the bishops commands, they drove out of town and then blinded’ In his Gesta regum, William of Malmesbury gives a rather different story, being uncertain as to whether Bishop Wulfstan or Archbishop Lanfranc deserved the credit for persuading the king to prohibit the slave trade to Ireland, the king

being reluctant to do so because of the profit that he received from the trade.* Still, the problem may have persisted, even if sale was illegal: the 1102 council of Westminster prohibited that anyone henceforth presume to carry out the wicked business whereby men in England used to be sold like brute animals.®

Manumission Manumissions of slaves continued to be recorded after the Norman Conquest. Domesday Book for Gloucestershire contains an entry stating that in Hailes there had been twelve servi whom William Leofric made free men [liberos].°° It is

unclear whether the entry means that they were now free men in the particular sense that Domesday uses the term, or simply free as opposed to slave. Other manumissions concerned those whom Domesday would have called villani, as

°* Wlart, 9. It may be that the types of servants sold in markets and sold overseas were household servants, particularly maidservants, rather than agricultural workers. °° William of Malmesbury, Life of Wulfstan, ii. 20, Saints’ Lives, ed. and trans. M. Winterbottom and R. M. Thomson (Oxford, 2002), 100-2. °* William of Malmesbury, Gesta Regum, iii. 269, ed. Mynors et al., i. 496-8. °° Council at Westminster 1102, 28, Councils and Synods, I, no. 113. Continuing prohibitions of the slave trade demonstrate problems of enforcement; note also e.g. Gerald of Wales, Expugnatio Hibernica, 18, ed. and trans. A. B. Scott and F. X. Martin (Dublin, 1978), 68-70. °° DB, i. fo. 167v. For Domesday mentions of coliberti, see Darby, Domesday England, 76-8, and above, 211.

426 PART II: ANGLO-NORMAN ENGLAND when the Ramsey cartulary refers to an abbot making men free [francos] from the service of rustics.” Various others leave us uncertain whether those being freed were slaves or were men unfree only in relation to their lord. The term servitus, servitude, is used of both, and indeed in the process of the decline of slavery the distinction may have become blurred. Manumissions continued to take place in churches, but we also hear of them occurring for example in the court of the city of Exeter, in the presence of the king's justice.* A description of manumission in the Leges Henrici, whilst partially derived from a continental law-code, adds a reference to weapons: ‘anyone who frees his servus is to do this in church or market or county court or hundred in the presence of witnesses and openly, and shall grant him in writing free ways and open gates, and place in his hands a lance and a sword or whatever are the weapons of free men.®? Such a ceremony seems to emphasise that the man was henceforth free not only in relation to his lord but also in relation to others. The Leges Henrici passage goes on to specify that ‘if anyone who goes back [redeat] from servitude into being a free man, is to pay 30d. to his lord in witness of the manumission, with witnesses of the payment, that is the value of his skin, as a sign that he may be worthy of it for ever’. In this case the man being manumitted appears to have made the payment himself. The circumstances may be particular, limited to the person who had fallen into slavery and was returning to freedom.” Certainly later it was necessary for a third party to make the payment, because a villein’s chattels were regarded as under the control of his lord and therefore could not be used to purchase freedom from that lord.”

Change regarding freedom and unfreedom If the Anglo-Norman period saw an intensification of lordship over those of lesser status, quite probably continuing earlier intensification, this does not seem to have led in any simple way to a shift in the classification of large numbers from free to unfree status.” Rather, we are left with the problem of individuals shifting

between categories that were themselves of imprecise and possibly shifting

°” Cartularium monasterii de Rameseia, ed. W. H. Hart and P. A. Lyons (3 vols; RS, 1884-93), ii. 271. °° Exeter Book of Old English Poetry, fo. 3b (no. 4); note also fo. 5a (no. 14). °° LHP, 78.1, ed. Downer, 242; note also Wl art. Lond. retr, 15. 1. ”° LHP, 78. 3, ed. Downer, 244. There is no clear source for the clause, although there is a possibility

that the figure of 30d. may be derived from the Quadripartitus’s version of IT Cn, 45. 2. Cf. the case discussed in Pelteret, Slavery, 151. ” See below, 760. Note also Pelteret, Slavery, 158.

” See e.g. Faith, Peasantry.

17 STATUS 427 meaning.” It seems best therefore to take freedom and unfreedom, certainly in relation to a lord, as a continuum, rather than a sharp distinction. Those who owed the lightest services and had the greatest control of their lands were clearly considered free, those with the heaviest services and least control of lands, unfree. For many of the remainder, the question of their status may never have required a definitive answer.” Such a conclusion is encouraged by references such as those in the Burton surveys of the first half of the twelfth century to some men as ‘pure villeins [puri villani], others as ‘pure rent-payers [puri censarii], phraseology that suggests the possibility of intermediate, less clearly defined groups.” At the same time it is clear that in the Anglo-Norman period men did make distinctions between free and unfree, even outside the context of slaves. As we have seen, men might be freed from services associated with rustici7*° Other documents show similar distinctions.”” Particularly revealing is the charter of William de Roumare, earl of Lincoln, datable to 1142, referring to his foundation of Revesby Abbey.’”* He gave various lands to the church, ‘and since this land was

not of my own demesne, I gave exchange to those men who used to hold it in fee and inheritance. In addition, to those rustici living in the places given who wished to receive land, ‘I gave exchange as they wished [ad placitum eorum]’; the charter goes on to state that ‘to those rather choosing and seeking their freedom of coming and going with all their things where they wish without claim, I have

demised them, with their houses and all their things, as they chose and sought and benignly wished’. The charter gives a list of those who received land and of those ‘who sought and received freedom’7? Here we have men being forced to ”* See also above, 419-20, for the free man being distinguished sometimes from the villanus and sometimes from the servus. ”* There is no clear evidence for litigation directly concerning free status during this period, although

this may be hidden behind some documents, or entirely lost because it did not involve writing. See Hyams, Kings, Lords, and Peasants, 223, on the lack of an action of naifty in the Anglo-Norman period.

Rather royal interventions concerned fugitives. It is of course possible that issues of status underlay some cases in which the king became involved.

”° Burton Chartulary, 30. ’° See above, 426-7. ”” Feudal Documents from the Abbey of Bury St Edmunds, ed. D. C. Douglas (8 British Academy

Records of the Social and Economic History of England and Wales, 1932), no. 168, concerning arrangements in the Conqueror’s reign, although the text only survives in a late and possibly modified copy. On the same distinction being made at Worcester in c. 1190, see below, 767. ’”° Northamptonshire Charters, Frontispiece; see also above, 334.

” Reginald of Durham recounted the successful flight of a Northumbrian man to Lindisfarne after “his lord had frequently burdened him and other poor men with heavy and wrongful claims, extorting from his poor peasants [colonis] many other things besides yearly rent’. Clearly his lord, at least, did not believe the man had freedom to depart. It should be noted that the fugitive was seen as slightly wealthier than others and may also have been primarily a pastoralist; Reginald of Durham, Libellus, 105, ed. Raine, 234-6.

428 PART II: ANGLO-NORMAN ENGLAND choose or reject the offer of freedom. In the seignorial context such situations could force a sharpening of categorisation into free and unfree.*° It can, therefore, still be argued that a general change, significant from a legal point of view, took place in the period after the Conquest. If there is a clear distinction in the Anglo-Saxon period between free and unfree it was between slaves and others, the unfree being defined by their status not just in relation to their master but to the king and world. However, in the Anglo-Norman period, slaves disappeared, and the key distinction came to be that between the free man and those referred to as villani or rustici or nativi, men whose status was particularly defined by their relationship to their lord. When in the late twelfth century a more centralised justice and a more conceptualised law required a sharper and generally applicable means of distinguishing between free and unfree, it would be based upon this relationship, personal and tenurial, between man and lord.”

4 CLERGY Information on the legal status of the clergy remains limited in important respects after the Conquest. It cannot be told whether all priests were of free status. That Domesday Book lists priests among villeins or bordars, or probably includes amongst villeins a man whom an associated text refers to as a priest, does not mean that such men would be considered unfree. Likewise a reference to a ‘priest free man does not imply the existence of priests who were considered unfree.®

A cleric could have his own lands and goods, and was able to bequeath them.*4 The Leges Edwardi, in its first clause, specifies that ‘every cleric and also scholars, and all their possessions, wherever they may be, are to have the peace of God and of the holy Church’. However, this was not exclusive to clerics, as the next clause

°° P.R. Hyams, “The proof of villein status in the common law (1974) 89 EHR 721-49, at 723, suggests that lords in seignorial or other local courts may have used suit of kin, on which see below, 765.

*" See below, ch. 28. Nativi were probably those born in villein status, so all nativi were villani but not all villani were nativi, some having fallen to such status during their life; see above, 210, on inbyrde. *? According to canon law, which was followed by the Leges Henrici, those born in servile condition should not be ordained before they were made lawfully free, but it is not certain that the phrase ‘servile condition in the Leges’ canonical source would have covered villeins, or at least not all villeins at the time; LHP, 68. 4, ed. Downer, 214, Ivo, Decretum, vi. 41. °° See DB, ii. fo. 421, A. L. Poole, Obligations of Society in the XII and XIII Centuries (Oxford, 1946), 29. ** A right confirmed by King Stephen in 1136; RRAN, iii. no. 271.

17 STATUS 429 offers similar protection to others in various religious contexts, for example those coming to a church to pray.* The Leges Henrici state that ‘dealings concerning all charges [inculpationibus], the greatest or the least, regarding those who belong to sacred orders and those

who have been promoted to sacred orders, should be in the presence of their prelates.*° How far clerical offences went before specifically ecclesiastical courts

is hard to prove, and bishops were still available in county courts.*” Our case material is minimal and limited to worldly offences. A Domesday entry for Essex suggests royal power over clerical offenders. It states that a clerk of Count Eustace had invaded forty-two acres of the king’s land at Newport, and was consequently ‘judged to be in the king’s mercy concerning all his property [cessu]

and concerning his body.** At the very end of King Stephen's reign the archdeacon of York was accused of killing the archbishop by poisoning him. The accusation was made in the presence of the king, bishops, and barons, and the clerk who made the accusation offered to prove it ‘by judgment of white-hot iron or of boiling water or of single combat or other form of judgment.*® The accused refused to be judged by laymen. Despite objections from the archbishop of Canterbury and the bishops, the king continued to claim jurisdiction, because of the atrocity of the crime and because the initial accusation was made in his presence. There is no sign here of special procedure, although there was some pressure for clerics to be exempt from trial by battle and at least most forms of ordeal.°°

Monks Unlike secular clergy, monks were not to have personal lands or goods.’ Monastic office holders, however, were frequently involved in transactions and litigation regarding their houses’ rights, lands, and goods. A monk could probably be sued

like any other for a wrong, but offences within the monastery might be dealt with by internal discipline.” °° ECf, 1-2, ed. O’Brien, 158-60. See O’Brien, God’s Peace, 36, on Continental sources underlying these chapters. °° LHP, 57. 9a, ed. Downer, 178; note the contrast with the preceding clause: ‘in the case of a cleric who has a wife and holds a farm of lay persons and is given over in secular fashion to worldly affairs, he is to be treated [desceptandum] in secular fashion’. *” See above, 277; also Pollock and Maitland, i. 449-54. °° DB, ii. fo. 7r. °° Lawsuits, no. 520.

°° Bartlett, Trial by Fire and Water, 94-7. °" See below, 768 n. 128, for a qualification. *? See Barlow, English Church 1066-1154, 147, 164.

430 PART II: ANGLO-NORMAN ENGLAND

5 JEWS Jews seem to have been introduced to England by the Norman conquerors, and there was certainly a Jewish community in London by the reign of William Rufus. In the first half of the twelfth century, and probably especially in the reign of King Stephen, communities developed outside London. They took part in various important economic activities, including money lending.’ Kings profited from their actions, and in return protected them. Concerning the legal status of the Jews in England, the Leges Edwardi state that it should be known that all Jews, wherever they are, ought to be under the guardianship and protection of the lord king; and nor can any of them subject himself to any wealthy person except with the king’s permission, since the Jews themselves and all their possessions [omnia sua] are the king’s. If anyone detains them or their money, the king shall demand it as his own, if he wishes and can.”

Whilst there were some similarities between villein status and the Jews’ relationship to the king, for example the conception of the Jews’ chattels as the king’s own, there were also significant differences, for example in their relative freedom of movement. Furthermore, there may be hints in the Leges Edwardi’s text that the king was losing some control over the Jews, as in the closing words of the above clause, ‘if he wishes and can’. However, even in Stephen's reign, when accusations of homicide were made against the Jews of Norwich, it was the king’s sheriff who provided them with protection.”*° Dealings between Jews seem to have followed their own law. In legal dealings with Christians, some modifications to ordinary law seem to have been permitted, for example swearing upon the roll of the Law instead of the Gospels.” In general, however, the common pattern of the law was probably maintained. In towns, Jews

seem to have received land grants on the same terms as Christians, but in the countryside the situation is less clear.°* The king took a special interest in cases

°° See in general P. R. Hyams, “The Jewish minority in medieval England, 1066-1290’ (1974) 25 J of Jewish Studies 270-93. On the variety of Jewish economic activities, R. C. Stacey, ‘Jewish lending and the medieval English economy, in A Commercialising Economy: England 1086-c. 1300, ed. R. H. Britnell and B. M. S. Campbell (Manchester, 1995), 78-101, at 82-8. °* ECf, 25, ed. O’Brien, 184.In the slightly later ‘beta’ version of the text, the clause opens by stating

that ‘all Jews, in whichever kingdom they may be, ought to be under the guardianship and protection of the liege king’. This may indicate a claim that the king controlled his Jews even when they were outside England. See the comments of O’Brien, God’s Peace, 93-8. °° See O’Brien, God’s Peace, 94-5. °° See Lawsuits, no. 321. °” See Lawsuits, no. 321 (p. 271), for a claim that at least some Jews feared trial by ordeal. °® See Bartlett, England, 350.

17 STATUS 431 involving Jews. Again, though, it is notable that in Stephen’s reign the story of the murder of William of Norwich shows the royal right to hear cases involving the Jews being threatened by the bishop of Norwich’s claim to hear the accusation in

his synod.

6 LORDSHIP IN ANGLO-NORMAN AND ANGEVIN ENGLAND In this chapter, as elsewhere, we have seen the very great importance of lordship in post-Conquest society.°° Such importance persisted throughout our period, whilst undergoing modifications, some of which weakened aspects of lordship, others of which increased its rigidity and definition.’ Significantly, tenurial, jurisdictional, and personal lordship were more tightly connected than in Anglo-Saxon England.’ The connection between jurisdiction and lordship over land is most obvious in the honorial and manorial courts.’% It remained possible for a lord to have jurisdictional rights over men who were not his tenants, rights, for example, of sake and soke. However, these privileges differed

from his powers in the honour or the manorial court, in so far as the former could be seen as deriving from a grant rather than from lordship itself.'° Tenurial lordship was intimately bound up with the personal relationship established by homage and fealty; according to Glanvill at the end of Henry IT’s reign, “he who ought to do homage is to become the man of his lord thus that he bear faith to him concerning that tenement whence he does [prestat] his homage, and that he preserve his earthly honour in all things, save the faith owed to the lord king and his heirs’.°° Homage was a ceremony of submission, in which the man placed his hands between those of his lord and stated his complete obligation to the lord. It was complemented by the oath of fealty, of loyalty, which could also stand alone.’°* Probably only free men—according to ”? Pollock and Maitland, i. 468-75; Lawsuits, no. 321, noting that (p. 271) even when the bishop wished to hear the case, he felt that it should follow the normal pattern and not cross ‘the usual limit of custom. *°° See esp. above, chs 12, 14, below, ch. 18. *°” For both types of development, see below, esp. chs 23, 24. *°* See also e.g. Baxter, ‘Representations of lordship’, 80.

*’’ On the changing importance of seignorial jurisdiction relating to land, see also below, chs 23, 24.

*°* For possible conflicting views on the source of such jurisdictional rights, and for royal activities in relation to franchises, see above, 290, and below, 564-5. *°? Glanvill, ix. 1, ed. Hall, 104.

"°° See also Garnett, Conquered England, 209.

432 PART II: ANGLO-NORMAN ENGLAND Glanvill, minors as well as adults, clerics as well as laymen—did homage to their lord, although others might do fealty.’°” Likewise, any free man, cleric or lay, adult or minor, could receive homage.’°* Women could not, it seems, do homage, although circumstance might arise where a free woman would receive it.’ On the other hand, women probably could swear fealty."° The connection established through tenure, homage, and fealty, should be manifest in many ways, including services and warranty, as well as loyalty, aid, and deference.” A person might do homage and fealty to more than one lord, particularly as the complexity of lordship and tenure increased in post-Conquest. Clarification might come through the application of the notion of liege lordship, to identify one lord as being superior to all others apart from the king.’” Such need not have been the original or the sole meaning of ‘liege’, but the word was easily applied in situations of multiple lordship.’* According to the Leges Henrici, ‘however many

lords anyone has and however much he holds of others, he owes most to him whose liege he is. Normally that lord would be the one from whom the man’s oldest or most important tenement derived. The bond may have been established by a particular ceremony, that of liege homage." *°” Glanvill, ix. 1, ed. Hall, 106; see also below, 631. Note Hyams, Kings, Lords, and Peasants, 11-12,

on later evidence for villeins doing fealty, and 13-14, on the possibility of the unfree performing ceremonies that might be referred to as homage. 8 Glanvill, ix. 3, ed. Hall, 106. °°? See e.g. Lawsuits, no. 543; Glanvill, ix.3, ed. Hall, 106, who adds that ifthe woman then married, the person who had done homage to her concerning a tenement was now bound to do homage to her husband concerning that same tenement. *"® See e.g. Glastonbury, ed. Stacy, 87; below, 631; also Garnett, Conquered England, 210-13.

*™’ See above, ch. 14. Note also the payment of ‘aids’, often associated with particular circumstances, such as the marriage of the lord’s eldest daughter; see Pollock and Maitland, i. 349-51, Reynolds, Fiefs and Vassals, 364-6. ‘™ For alord being liege in relation to all apart from the king, see e.g. RRAN, ii. no. 1280, and, from the late twelfth century, Formulare Anglicanum, no. 298; see also Dialogus, ii. 4, ed. Amt, 124. ‘'* The earliest instance in DMLBS, s.v. ‘ligius’, is from a royal writ of 1093 mentioning Archbishop Anselm having become the king’s ‘liege man; RRAN, i. no. 337 (= Registrum Antiquissimum, i. no. 14). For ligius being used in a context not necessarily of multiple lordship, see e.g. Registrum Antiquissimum, no. 495 (c. 1150). ‘™ LHP, 82.5, ed. Downer, 256; note Glanvill, xi. 1, ed. Hall, 104, Pollock and Maitland, ii. 298-9. LHP, 55. 3b, ed. Downer, 174, states that the permission of the lord of whom he was liege was necessary if a man wished to make another lord for himself. See e.g. Geoffrey of Burton, Modwenna, ed. Bartlett, xlviii, I (nos 5, 7), for liege homage, lv (no. 11) for homage and liegeance; cf. lvii (no. 13), swearing full fealty as a liege man; Danelaw Documents, no. 457 (gift made on the day that the donee did homage and allegiance to the donor). Ramsey Chronicle, 292, ed. Macray, 263, uses the phrases ‘liege man [homo ligius]; ‘liege fealty [ligiam fidelitatem]’; and ‘liege residence [ligiam resethantisiam, id est, residentiam|’; for the last, cf. LHP, 43. 6-6a, 55. la-2, 82.5, Downer, 152, 172, 256, associating being the liege of one lord with being also his residens. According to Glanvill, ix. 1, ed. Hall, 104, ifa man had done homage for different fees

to different lords who were in conflict, and his chief lord (presumably the one to whom he had sworn allegiance) commanded him to go in person with him against another of his lords, he must obey, save

17 STATUS 433 What, then, of personal lordship, what Domesday referred to as commendation?" It seems that lords could receive at least fealty from men other than their tenants. It may also be that some took homage; this possibility, and the royal attitude to it, is indicated by Glanvill’s insistence that homage was done concerning lands, tenements, services, and set dues, ‘but for lordship alone no homages are owed to anyone except the prince’."° Possibly Glanvill was stating a generally accepted rule; alternatively he may have been seeking to eliminate a practice that the king’s circle now saw as improper, and that could be presented as anomalous because of sharpened distinctions between homage and fealty and their proper use and consequences.'” It is unclear precisely what such non-tenurial lordship relationships would involve. The lord may have given movables or protection, or both, to the man, and have expected not just loyalty but also service. Such a transaction was unlikely to be recorded in writing, and therefore we know of few examples compared with grants of land. It may be that personal lordship was particularly important in certain areas of the country, notably the far north and possibly East Anglia."®

Overall, however, such relationships appear to have been weaker than those involving land tenure.

Men might also have ties to their overlord. Such a tie might be a general manifestation of lordship, or might arise from an overlord’s confirmation of the sub-tenant’s title to a specific piece of land." Such confirmation might constitute the overlord’s agreement to act as warrantor.”° In addition, cases might be heard in the overlord’s court, perhaps from the start of proceedings and certainly after a difficulty in the immediate lord’s court. It was indeed possible for overlords

the service that he owed the other lord from the fee that he held from him. On the interpretation of this passage, see Hudson, ‘Faide, 369.

“'® See above, 220-1. For a rare instance in Domesday of commendation taking place after the Norman Conquest, see DB, ii. fo. 7lv. "t® See esp. J. R. Maddicott, “The Oath of Marlborough, 1209: fear, government and popular allegiance in the reign of King John’ (2011) 126 EHR 281-318, who, in the context of an oath taken to John in 1209, argues at 311-12 that such homage may have involved an obligation to provide military service to the king; note also Hudson, Land, Law, and Lordship, 16. Note further the lord’s mainpast, discussed above, 393-4.

‘'” On diversity of terminological usage at least by chroniclers, note Maddicott, ‘Oath of Marlborough’, 281-3, 303-4. “'® See Jolliffe, “Northumbrian institutions’, esp. 6-15. *™ See above, 364. "°° Note e.g. Book of Seals, no. 84 (1146 x 1148).

*" For cases of default of justice, see above, 300-2. For a case possibly involving a hearing immediately in the court of the claimant’s overlord, the current tenant’s lord, see The Beauchamp Cartulary: Charters 1100-1268, ed. E. Mason (NS 43 PRS, 1980), no. 355, discussed in Hudson, Land, Law, and Lordship, 140-1.

434 PART II: ANGLO-NORMAN ENGLAND to seek a direct relationship with the sub-tenant, cutting out the intermediate lord.’ Certainly the position of the intermediate lord seems reduced by grants such as that which Roger de Mowbray made to Uctred son of Dolfin around 1140.

Roger granted to Uctred his grandfather's land, for him and his heirs to hold in fee and inheritance from a certain Turgis. Uctred was not to be placed in plea because of any claimant, except in Roger’s presence, ‘since he is my man and Iam protector to him’.* The attitude of the Anglo-Norman kings to the role of overlords is unclear. In the early part of his reign Henry II acted through overlords in some circumstances, but thereafter the Angevins sought to control the exercise of overlordship, preferring to operate through royal officials and royal courts.’4

Above all, men were tied to the lordship of the king. For most this was a personal lordship, manifested in an oath of loyalty.’ For some it was also related to tenure, either because they were tenants-in-chief or because they had received a royal confirmation of land that they held. On occasion, moreover, the king may have taken homage from large numbers of significant landholders who were not tenants-in-chief; the first and most famous occasion was the Oath of Salisbury in 1086 when, according to the Anglo-Saxon Chronicle, ‘all landholding men of any account that there were over all England, whosesoever men they were’

came to the Conqueror and ‘bowed down to him and became his men, and swore Oaths of fealty to him that they would be faithful to him against all other men’.’””° In addition, both personal and tenurial bonds were closely tied to royal jurisdictional rights, be they exercised by the king in person or through his local courts. Through his office the king enjoyed special rights, but to rule successfully he had also to ensure that he was the most effective lord within his realm.

"22 See Hudson, Land, Law, and Lordship, 44. "23 Mowbray, no. 392. "24 See below, 549, 571.

“2° See Maddicott, ‘Oath of Marlborough’, esp. 292-9. '*° For discussion, see esp. Garnett, Conquered England, 85-7; Maddicott, ‘Oath of Marlborough, 305-6.

18

Marriage and Family | Aw relating to the family underwent very significant changes in the later

eleventh and twelfth centuries. Such changes extended far beyond England, and in particular marriage law was a major concern of the Church reform movement of the period.’ Previously, there may have been significant flexibility and local variation of custom regarding marriage. By the later twelfth century canon law on marriage was standardised and a system of Church courts existed to enforce it.

1 MARRIAGE One focus of the reformers was the clear distinction of clergy from laity, an element of which distinction was the prohibition of the marriage of clergy in higher orders, especially priests. In England, legislation on the subject became increasingly strict, following the lead of papal councils.” In 1076 a council at Winchester decreed that no canon might have a wife. Priests living in castles or settlements [vicis] who had wives were not to be compelled to send them away, but those who did not have wives were forbidden to marry. Bishops henceforth were to take care not to ordain priests or deacons unless the ordinands had professed that they did not have wives; In 1102 a council at Westminster decreed that no archdeacon, priest, deacon, or canon was to take a wife or keep one whom he had taken.‘ Further legislation in 1108 specified procedures for accusations against unchaste clerics, by lawful witnesses or public report [fama] of parishioners’

* For other issues involving family, see above, chs 13-17. Apart from creating kinship that further restricted possible marriage partners, spiritual kinship does not appear to have had specific legal effects in this period. * On papal councils, and for references to local councils outside England, see J. A. Brundage, Law, Sex, and Christian Society in Medieval Europe (Chicago, 1987), 219-20. > Councils and Synods, I, no. 93 (c. 1). * Councils and Synods, I, no. 113 (c. 5). > Councils and Synods, I, no. 116 (c. 3). See also legislation in 1125, 1127 and 1138, Councils and Synods, I, nos 130 (c. 13), 132 (cc. 5-6), 139 (c. 8).

436 PART II: ANGLO-NORMAN ENGLAND The king was meant to support such legislation, but in fact he could weaken its enforcement by allowing clerics to keep their wives in return for payment.° Enforcement would continue to be a problem,’ but the law was now clear. Those who had argued for the right of priests to marry had very largely been defeated.* Lay marriage was also of considerable concern to the Church, and here reformers confronted lay customs and desires. Historians have sometimes represented this as a clash between two models of marriage, the lay and the clerical.? However, this is too simple. An aristocrat’ chaplain need have not shared the views of a papal reformer, a son or daughter desiring choice of marriage partner need not have shared those of a father seeking to control that choice.”

Prohibited degrees As in the Anglo-Saxon period, a central issue was consanguinity.” In the second half of the eleventh century and particularly under the influence of the reformer Peter Damian, the method of counting the prohibited degrees was established in its most extensive form. Instead of counting to see if there was a common ancestor within four generations, the counting was taken a further three generations back, to the seventh. This had the effect of extending the range of prohibited marriage partners to sixth cousins.” In England, the prohibition ‘to the seventh degree’ was decreed at ecclesiastical councils at London in 1074 x 1075, and at Westminster in 1102 and 1125: ‘between those related by blood or relatives by affinity [i.e. by marriage], up to the seventh generation, we prohibit marriages to be contracted. If indeed anyone shall have been thus joined together, let them be separated.” ° See e.g. the comments of the Anglo-Saxon Chronicle and Henry of Huntingdon concerning legislation at London in 1129; Councils and Synods, I, no. 134; note also Anselm, ep. 391, in Opera omnia, ed. F. S. Schmitt (6 vols; Edinburgh, 1940-61), v. 336-7. ’ C.N.L. Brooke, ‘Gregorian reform in action: clerical marriage in England, 1050-1200’ (1956) 12 Cambridge Historical J 1-21; B. R. Kemp, ‘Hereditary benefices in the medieval English Church: a Herefordshire example’ (1970) 43 BIHR 1-15.

* The ‘Norman Anonymous’, an early twelfth-century polemicist, argued vigorously that priests should be allowed to marry; MGH, Libelli de lite, iii. 645-8. For later examples of arguments against mandatory clerical celibacy, see Brundage, Law, Sex, and Christian Society, 221. > See esp. G. Duby, The Knight, the Lady and the Priest, trans. B. Bray (Harmondsworth, 1984). *° See also Hudson, Land, Law, and Lordship, 121-2, for the possibility that lords might profit from a tightening of marriage law. "* See above, 226-8. *? See e.g. C. N. L. Brooke, The Medieval Idea of Marriage (Oxford, 1989), 58-9, 135; J. Goody, The Development of the Family and Marriage in Europe (Cambridge, 1983), 136-8, including helpful diagrams. It has been suggested that blood relationships alone might mean that the bride or groom had over 2,500 cousins of their own generation whom they were prohibited to marry; J.-L. Flandrin, Families in Former Times, trans. R. Southern (Cambridge, 1979), 24. ** Councils and Synods, I, nos 92 (c. 6), 113 (c. 25), 130 (c. 16, quoted).

18 MARRIAGE AND FAMILY 437 Reformers also emphasised other non-blood relationships, especially spiritual kinship.”* The potential for conflict with lay practice must have increased significantly, as it has been suggested that whilst the laity did not commonly contract marriages within four degrees, they did within five or six.”

Betrothal Betrothal remained the key stage in creating a marriage. Indeed, the distinction between betrothal and marriage breaks down because many held that the consent of the two parties amounted to marriage, at least when the consent was expressed as having immediate effect. Those betrothed were not free to marry others.”* This view, which had its basis in Roman law, was expressed in a papal decretal for the first time in about 1140.” However, there was also a continuing concern with other elements in the creation of a marriage, in particular consummation. The great canonist Gratian emphasised the two stages in the creation of a marriage, consent and consummation.” In the Anglo-Norman period, therefore, the effect of consent in the creation of a marriage could be contested.” Whilst English legislation of the period does not directly address the relative importance of consent and consummation, it does express concern over clandestine marriage, that is where consent had been given but without witnesses. The 1102 Council of Westminster decreed that ‘faith between husbands and wives given concerning marriage secretly and without witnesses, if denied by either party, is to be held void’.*° This decree does not deny the binding nature of secret consent to marriage, but strongly favours the party who denies that such consent had actually taken place.”

‘* See Brundage, Law, Sex, and Christian Society, 193. *? E.g. Green, Aristocracy, 348-9. See below, 778, for the Church revising its position. *® Brundage, Law, Sex, and Christian Society, 190: canonists held that betrothals were valid contracts. ‘” For later development, see below, 778. On consent, see also A. Duggan, “The effect of Alexander III’s “Rules on the formation of marriage” in Angevin England’ (2011) 33 ANS 1-22. ‘® Brundage, Law, Sex, and Christian Society, 235-7.

‘? Note esp. the account in The Life of Christina, ed. Talbot, raising issues of consent, ceremony, and consummation. *° Councils and Synods, I, no. 113 (c. 23). Note also the decree of the 1072 Council of Rouen, in Orderic, Ecclesiastical History, iv., ed. Chibnall, ii. 288, which also requires that the marriage be blessed by a priest in a monastery [monasterio—perhaps meaning not just monastic churches], and that prior to consummation careful enquiry be held lest the parties be related within the seventh degree. *" Cf. the interpretation of Brundage, Law, Sex, and Christian Society, 189-90, that this was the only decree of the late eleventh- and early twelfth-century Church councils that ruled that secret marriages were void. He emphasises that the normal position held that such secret marriages were wrongful but that nevertheless the couples were married.

438 PART II: ANGLO-NORMAN ENGLAND The age at which a person could marry was subject to various standards. It was stated by Alexander III in the third quarter of the twelfth century that ‘there can be no espousal or marriage before the age of seven.” Such a view was derived from Roman law. However, there was also the notion of the age of discretion, that is the age at which the partys own consent would be considered binding upon them. This was held to be twelve for girls, fourteen for boys. In practice, betrothals took place even younger than seven, with necessity sometimes used as justification. However, at least a nominal qualification may have been that the children should subsequently give their consent when they reached the age of discretion.”

Betrothal of the very young relates to the use of marriage for the creation of social and political ties, and to the role of kin and lords in marriage. In the second half of the eleventh century Anselm of Lucca’s collection of canons and that known as the Collection in Seventy-Four Titles included the consent of the parents but not of the couple as a requirement for a valid marriage. However, this position was not maintained, and Gratian, whilst apparently assuming that

kin would normally have an important role, did not make parental consent a requirement.” In England we do not have legislation on the subject, and family participation is not frequently mentioned, probably because it was assumed. Parents would often have been crucial to negotiations before marriage, their participation in property arrangements essential. However, the mid-twelfthcentury Life of Christina of Markyate indicates that parental consent alone did not suffice to make a valid marriage; necessary was the consent of the parties.” Canon law did not devote great attention to the issue of seignorial consent

to marriage,*° whereas the coronation decree of Henry I makes clear its importance: And if any of my barons or other men wishes to hand over his daughter in marriage,

or his sister or niece or cousin, let him speak to me concerning it; but I will not receive anything from his property [de suo] for this permission, nor will I forbid him that he may give her, except if he wishes to unite her to my enemy. And if with my baron or other man dead a daughter remains as heir, I will give her with her land by the counsel of my barons. And if a husband dies and his wife is left and is without children, she shall have her dower and marriage-portion, and I will not give her to a husband except according to her wishes.”

** X 4.2.5; but cf. X 4.2.4. ** Brooke, Idea of Marriage, 137-8, 140.

** Brundage, Law, Sex, and Christian Society, 187-8, 238. *° Life of Christina, 7, ed. Talbot, 44. On property arrangements, see below, 445-51. *° Note, though, e.g. Duggan, ‘Alexander III’s “Rules on Marriage” ’, 13-14. *” RRAN, ii. no. 488.

18 MARRIAGE AND FAMILY 439 From other evidence, we know of great men seeking Henry's advice and permission for the marriage of their daughters, of men paying to be allowed to marry women and gain their lands, and—contrary to the decree—of widows having to pay to remain unmarried, at least for a set time.” Evidence for control of marriage by lords other than the king is much more limited. It may be correct to take Henry I’s instruction in his coronation decree that ‘my barons are likewise to restrict themselves [se contineant] towards the sons and daughters or wives of their men’ to apply to the above statement concerning marriage as well as an intervening passage concerning dower, remarriage, and wardship.” The later custom of merchet, payment to a lord by a tenant for permission to give in marriage his daughter, or sometimes his sister, was normally but not universally associated with unfree tenures. Merchet may be an indication of an earlier, more widespread seignorial control over marriages, but there are other possible explanations for its development, and seignorial control of signif-

icant tenants must often have been less than that of a later lord over a villein° We do hear of lords exercising coercion. For example, William de Roumare, earl of Lincoln, who probably died at the start of the 1160s, reportedly attempted to pressure a knight named Oliver the Angevin into a marriage. He ‘seized him and held him in prison in iron chains until he had forced him to swear that he would receive the woman Ha. as wife’2’ The need for such coercion shows the limits to any routine seignorial control of marriage. Furthermore, even if a lord, or indeed a king, had the right to be consulted about a marriage, and perhaps to prohibit marriage to enemies, this was a personal right in relation to the man or woman

concerned. Marrying without having sought his consent might be an offence against the lord; however, it did not invalidate the marriage.

Ceremony Church reformers increased efforts to make clerical participation in marriage essential, a process linked to the increasing emphasis on marriage as a sacrament.

In 1076 at the Council of Winchester it was decreed ‘that no-one give his

*® Note PR3IHI, 21, 37, 43, 81, 82, 88, 94, 96, 110, 139, 142, 158; see below, 492, on reduced royal control under Stephen. *° RRAN, ii. no. 488.

°° E. Searle, ‘Seigneurial control of women’s marriage: the antecedents and function of merchet in England’ (1979) 82 Pe»P 3-43; Brand and Hyams, ‘Seigneurial control of women’s marriage’, 125-7; see also Hyams, Kings, Lords, and Peasants, 187-91, Holt, ‘Heiress and alien’, 250. °*" Papal Decretals relating to the Diocese of Lincoln in the Twelfth Century, ed. W. Holtzmann, trans. E. W. Kemp (47 Lincoln Record Soc., 1954), no. 8; the case may date from the early years of Henry II, or before.

440 PART II: ANGLO-NORMAN ENGLAND daughter or female relative [cognatam] to anyone without priestly blessing. If he does otherwise, it shall be judged not as a lawful marriage but as fornicatory.* However, this decree was exceptional, and the reformers failed to make priestly participation a necessary element of a valid marriage Pontificals and other liturgical works record conjugal rites, including initial

enquiries about any blood or spiritual relationship; a request for the parties’ consent and the giving of their vows; the giving of the bride to the bridegroom by the priest and the bride’s patronus, presumably normally her father; the presentation of dower; the blessing of ring and pennies given in marriage; the transfer of rings and pennies; the mass; and the blessing of the chamber. At least in the twelfth century the initial stages, prior to the mass, might take place at the door of the church, and only then would the participants move into the church itself34 In practice, however, marriages often took place in locations other than churches, an extreme form being the clandestine marriages already noted.*

Adultery In adultery cases, Domesday Book for Kent presents the king normally having the forfeiture of the man, the archbishop that of the woman. The same division is recorded under the lands of William de Warenne at Lewes, Sussex, where the fine was specified as 8s. 4d. from each party, whilst the Leges Henrici has the man’s fine going to the king, the woman’s to the bishop. Domesday also records certain men in the borough of Wallingford being allowed the forfeitures or fines for adultery,* Penitentials and canons prescribed severe penalties for adultery, and Gratian did not allow remarriage for even the innocent party in the lifetime of the first spouse.” Likewise Lanfranc wrote to Thomas, archbishop of York, in response to a request for advice regarding men who wished to leave their wives on account of adultery and to marry other women. Lanfranc quoted Gospel passages against separation followed by remarriage, and concluded that ‘in these words of the

*? Councils and Synods, I, no. 93 (c. 6). For marriage having taken place before a priest, note also Life of Christina, 42, ed. Talbot, 108. ** Brundage, Law, Sex, and Christian Society, 191.

** See e.g. Pontifical of Magdalen College, 202-5, 222-6; note also Brooke, Idea of Marriage, 248-50, J. Biancalana, “Widows at common law: the development of common law dower’ (1988) NS 23 The Irish Jurist 255-329, at 263-4. °° See above, 437. °° DB, i. fos 1r, 26r, 56v; LHP, 11.5, ed. Downer, 110. Adultery might lead to vigorous self-help by

the husband; note the story recounted in Lawsuits, no. 330. °” Brundage, Law, Sex, and Christian Society, 208, 244.

18 MARRIAGE AND FAMILY 441 Lord it is clearer than daylight that while the husband or wife is still alive neither is permitted to seek a union with anyone else’. We do not know the background to the archbishop of York’s enquiry to Lanfranc, but it is perhaps surprising that the matter was not entirely clear to him. Certainly the letter may reveal a conflict between Lanfranc’s ideas of permissible behaviour and those of laymen in at least some areas of England at this time?®

Divorce and separation Canonists used the word divortium to mean either nullification, that is judgment that there had never been a valid marriage, or permission to separate but without

the possibility of remarriage2® Such separation occurred in Anglo-Norman England, and one example may be recorded in Domesday Book for Yorkshire: Concerning all the land of Asa, they testify that it ought to be Robert Malet’s, for this reason that she had her own land separated and free from the lordship control of Beornwulf her husband even when they were together, thus that he could not make gift or sale from it, nor forfeit. And after their separation, she withdrew with all her land, and possessed it as lord [domina].*°

Canonists allowed separation or nullification for only the most serious reasons,

especially impotence and kinship between the parties within the prohibited degree. However, some, such as Ivo of Chartres and Gratian, emphasised that even in cases of consanguinity, the marriage should be allowed to continue wherever possible; the Church should waive the regulations rather than dissolve marriages.

Because he held that unconsummated marriages were incomplete, Gratian was willing to allow the dissolution of such marriages by the mutual consent of the parties if it was for a good reason, such as entry to the religious life.” We have examples of nullification from Anglo-Norman England. Matilda de LAigle married Robert de Mowbray, earl of Northumbria in 1095, the year in which he would be imprisoned for rebelling. In 1107 or 1108 she obtained nullifica-

tion on grounds of consanguinity, and soon married Nigel d’Aubigny. Such a marriage following nullification was acceptable canonically, although canonists might place restrictions as to permitted circumstances. Matilda and Nigel’s marriage was probably childless, and in turn came to be annulled; according to

°® Letters of Lanfranc, no. 23. °° See Brundage, Law, Sex, and Christian Society, 371. *° DB, i. fo. 373r.

“* Brundage, Law, Sex, and Christian Society, 200, 243. Note the distinction between those who knowingly and those who unknowingly formed illicit unions, as mentioned e.g. by Richard of Anstey in his arguments recounted in Lawsuits, no. 408B.

442 PART II: ANGLO-NORMAN ENGLAND Orderic Vitalis, Nigel “sought a reason for divorce and repudiated her because she had been the wife of his blood-relative’.” We also have a letter of Archbishop Theobald, written by John of Salisbury, to Pope Alexander III in 1160 concerning the marital history of William de Sackville.* The letter was written after William’s death, at a time when the canon law of marriage was developing, and it contains learned summaries of ex parte statements concerning the case. However, with caution it may be taken to illuminate the practices of the mid-twelfth century. One party, William’s nephew Richard of Anstey, stated that William had contracted a marriage with a certain Albereda de Tresgoz, and then broken his promise and deserted her. After this he took to wife Adelicia, the daughter of Amfrid the sheriff, and by her had Mabel [Richard's rival claimant] and other illegitimate children. He further asserted that when William went through a form of marriage with Adelicia, at the marriage ceremony Albereda his previous wife protested her claim to be his lawful wife, forbidding her supplanter by the authority of the Church to pass into the illicit embraces of her husband. Since she failed to make herself heard by reason of the crowd and the perversity of her husband, she approached the bishop of Winchester, then legate of the Apostolic See, and as he testified by his letters, at length obtained his sentence that her husband should leave his second wife and be restored

to her. He said that the judgment of the bishop of Winchester had been confirmed by the Apostolic See, which the bishop had consulted when they wrangled with him.

Pope Innocent II's letters had stated that Albereda's present consent had immediately made her William’s wife. As a result of these letters a divorce was made, and even though ten years had elapsed, the decision had not been challenged. Mabel responded that her parents William and Adelicia were lawfully joined, and the marriage contracted not clandestinely but solemnly before the church. While she made no strong denial of the fact that William her father had made a compact with Albereda’s father that he should marry Albereda, before he married Adelicia the mother of Mabel, she did deny that the compact resulted in marriage. She asserted that both parties should be free to make or break a marriage contract by mutual consent, and that the agreement of the betrothed had been annulled with the consent of both parties.

She produced witnesses that William refunded to Albereda's father the money

that he had received from him, and that Albereda and her party released William and his party from every obligation with regard to the desired marriage.

* Anselm, ep. 423, Opera omnia, ed. Schmitt, v. 369; Orderic, Ecclesiastical History, viii. 23, ed. Chibnall, iv. 282-4. Brundage, Law, Sex, and Christian Society, 201-3. ** Lawsuits, no. 408B. See below, 574-6.

18 MARRIAGE AND FAMILY 443 Albereda’s father had been present at the marriage feast of William and Adelicia, and given his approval. Betrothal and marriage were not the same thing, and a

marriage was not complete until it has been consummated, although it begins with the first pledge of betrothal. She argued that it was wrong to say that the pact of betrothal took preference over a true and perfected marriage. The divorce from Adelicia had either never taken place or not been rightly performed; rather Adelicia was violently expelled from William’s house. Churchmen, including the bishop of Winchester, had been bribed. The church marriage of William and Albereda only took place after Adelicia’s expulsion. Mabel also produced further arguments, for example concerning the privilege of persons and ignorance of the law, saying that her parents might well be excused either because he was a knight or on account of the weakness of her sex, for not knowing that the engagement which is the beginning of marriage has the same force as marriage itself, seeing that neither by the authority of the laws and canons has it achieved the full status of marriage, nor has ancient custom among us hitherto recognised it as a completed marriage.

Furthermore, the bishop of Winchester had committed the case of Williams children to Theobald, count of Blois, because it belonged to him by right of fief. Theobald called together the leading bishops of France, and by their advice, and that of other lawful men, recognised the children as lawful heirs of their deceased father.

The letter thus gives some indication of the type of dispute that might arise as a result of a layman moving from one partner to another. At least in the account we have, the arguments seem largely to have been based on attempts to prove the party’s position according to precise regulations of canon law, although this is somewhat less the case in Mabel’s second set of arguments. The problem was the lack of a clearly enforceable canonical position, a problem that would soon be tackled by Alexander III.‘4 In the Anglo-Norman period, however, many matters in marriage disputes might be treated through hearings of an advisory or mediatory nature, rather than an adjudicatory one, and the considerations brought into account might be wide-ranging.”

Remarriage of widows Canonists allowed second marriages after the death of one party, but sometimes

prescribed penance and urged priests not to participate in the ceremonies.*°

** See below, 778.

* See e.g. Life of Christina, 15-17, ed. Talbot, 58-62. *° Brundage, Law, Sex, and Christian Society, 196.

444 PART II: ANGLO-NORMAN ENGLAND This position resembles that in the Anglo-Saxon period.” The other evidence is largely concerned with remarriage of women, rather than men, and has as a major concern the widow's property. The Leges Henrici simply reproduce Cnut's law, that widows should not remarry within a year, and, if they did so, they would lose their morning-gift and all the chattels that she had from the previous husband.** As we have seen, the earliest Pipe Roll records some widows making

payments not to remarry.*? Once again, though, it should be noted that such penalties and payments simply concerned the widow’s relationship with her lord; they did not affect the validity of a remarriage. Conclusion

Both cases and collections of canons thus show the developing nature of the law of marriage and the uncertainty and flexibility of that law. Ecclesiastical jurisdiction over marriage litigation appears to have been accepted and it is possible that clerical prosecution of marriage offences occurred2° Church reformers sought to stamp out clerical marriage, enforce a strict interpretation of the prohibited degrees, control separation and remarriage, and emphasise the blessing of marriages by priests. However, their success was incomplete, and on some matters the canons themselves did not yet provide decisive and consistent answers. Although lay views and behaviour were modified to some degree, different perceptions of acceptable practice remained a source of conflict.

2 ILLEGITIMACY The increasing definition of marriage, and the emphasis on marriage as a sacrament, also had an effect on questions of the legitimacy of children. The Normans who conquered England in 1066 were led by William the Bastard, illegitimate son of Duke Robert I of Normandy. However, less than a century later, in the Anstey dispute, Mabel emphasised her legitimacy, on the grounds that William de Sackville'’s liaison with Albereda had not been a valid marriage; she did not argue that she could succeed despite illegitimacy, or that William had had successive valid marriages, perhaps of a type that had been accepted in the Anglo-Saxon period.”

“” See above, 234. *S LHP, 11.13, 13a, ed. Downer, 112.

* See above, 439. °° See e.g. Lawsuits, no. 371, a case from 1158. See also above, 299. >" See above, 236-7, 442-3.

18 MARRIAGE AND FAMILY 445 The most significant impact of bastardy was upon succession to land and office. The development of this position is not absolutely clear, in part because it is often hard to prove the legitimacy or illegitimacy of those who succeeded, let alone of those who did not. Duke William, an illegitimate son, had succeeded in Normandy in 1035. However, the settlements concerning succession reached by his own sons in 1091 and 1101 made clear that a son must have been born in lawful wedlock if he was to be heir to the current ruler.” Henry I’s illegitimate son Robert of Gloucester was not seriously considered as an heir to Henry's throne.® In the context of the same difficult succession, one of the arguments put forward against the claim of Henrys daughter, the Empress Matilda, was that she was illegitimate, “because she had been born of an incestuous union and was the daughter of anun whom Henry had dragged from the monastery of Romsey and deprived of her veil:* It is possible

that the situation was less clear-cut below the level of king or duke. However, in 1144 the essential reason for the exclusion of Ernulf, eldest son of Geoffrey de Mandeville II, from succession to his father was probably his illegitimacy.°*° Apart from inheritance to land and title, the impact of bastardy in legal terms was limited. Illegitimate children could hold land and grant it. In relation to others the illegitimate son of free parents was a free and lawful man, who could bring accusations of crime and claims to land. Bastardy was not a state or a condition, and was not inherited; the children of a bastard and his wife were themselves legitimate.”

3 HUSBAND AND WIFE As we have already seen, marriage relations were closely related to property relations. This is illustrated by marriage agreements, such as that recorded in a charter of Roger, earl of Warwick, probably datable to the reign of Stephen: Know that I have given Agnes, my daughter, in marriage as wife to Geoffrey the chamberlain, with the counsel of the king and the bishop of Winchester and the earl 52 ASC, 1091, 1101.

°* See Gesta Stephani, 6, ed. Potter and Davis, 12-14, on Robert being advised to claim the throne but refusing to do so. °* John of Salisbury, Historia Pontificalis, 42, ed. and trans. M. Chibnall (rev. edn, Oxford, 1986), 82.

°° In Normandy, according to Orderic Vitalis, when William de Breteuil died, ‘his nephews, William de Gael and Reginald de Grancey, vied to succeed him. The Normans, however, accepted Eustace, his son bya concubine, because they preferred to be ruled by a fellow countryman who was a bastard [nothum] rather than bya legitimate [liberum] Breton or Burgundian; Orderic, Ecclesiastical History, xi. 4, ed. Chibnall, vi. 40. Chibnall notes that William was the son of the decedent’s brotherin-law, and that Reginald was in fact a kinsman but not a nephew of the decedent. °° See J. C. Holt, ‘1153: the Treaty of Winchester’, in his Colonial England, 271-90, at 276 n. 24.

°” Pollock and Maitland, ii. 396-7. For the later medieval position that a bastard is always born free, see Pollock and Maitland, i. 423.

446 PART II: ANGLO-NORMAN ENGLAND de Warenne and Robert my brother and my other brothers and my men, and with her ten knights for service out of the seventeen whom he holds from me in fee, thus that these ten knights shall be quit and free of all service that pertains [to me], and these ten are to do their guard duties regarding Brandon. And besides this, [I have given] the service of Henry, son of Voster.... And in addition, I grant to Geoffrey and his heir to hold the county of Warwick hereditarily from me and my heirs, in the same manner as I have or can have it from the king**

Witnesses from both sides are recorded. Such a grant by the bride’ father to the husband was called the maritagium, the marriage-portion. In addition, the husband would grant to the wife a proportion of his land to hold after his death. This was her dos, her dower. However, there was some inconsistency in the use of these terms.

Marriage-portion The timing within the wedding ceremony of the transfer of the marriage-portion to the husband is not clear.®° The size of grant varies, but might often be small,

in the case of the wealthy consisting of one or two manors distant from the core of the family’s lands. Tenements might be recycled as marriage-portions in successive generations. There was no apparent requirement to treat daughters equally.” Details of arrangements concerning marriage-portion during the lifetime of husband and wife and beyond are scarce.” According to the Abingdon History,

during the reign of Stephen, Simon, formerly Henry I's dispenser, gave his daughter in marriage to a knight called Walter son of Hingam. Simon handed over to Walter the village of Tadmarton, which Abbot Vincent (1121-30) had granted Simon in fee farm. The History does not say that Simon's grant was maritagium, but its close association with the marriage strongly suggests that it was. Walter was to have it on the same conditions as Simon had, that is to render £15 a year to the abbot. Thus in this case services from the marriage-portion were to be paid not to the bride's father but to his lord.®

°° Beauchamp, no. 285. °° See e.g. Redvers, no. 7, where maritagium seems to be used to refer to dower; below, 792, for Glanvill on the dos. See also below, 451. °° Biancalana, ‘Widows’, 264; cf. below, 448, on dower. °* Green, Aristocracy, 367. °* Cf. below, 787-91, for Glanvill’s discussion of obligations of homage and service, and for a dis-

tinction being drawn between maritagium and liberum maritagium. °° Historia ecclesie Abbendonensis, ii. 241-2, ed. Hudson, ii. 236-8. Walter forfeited the land for failure to render services, but in a subsequent dispute settlement it was allowed to Thurstan, Simons son.

18 MARRIAGE AND FAMILY 447 What of alienation of marriage-portion? The maritagium was a gift made to the husband with the woman, so he should have control of it and probably be able to make grants, at least for his lifetime. However, we sometimes see the woman being presented as exercising primary control with regard to alienation. A charter probably from the late 1120s records Matilda, daughter of Count Stephen of Brittany and wife of Walter de Gant, giving a church and lands to Bridlington Priory ‘with

the consent of my husband [domini] Walter from my marriage-portion. Here, then, the wife is presented as donor, the husband as providing consent. The gift was said to be in elemosinam and although the charter does not mention perpetuity, it was confirmed by Countess Alice, Walter’s granddaughter, probably in the early 1180s. However, Countess Alice's charter and King Stephen's general confirmation to Bridlington simply record the church as a gift of Walter.”

Henry I's coronation decree allowed a widow without children to retain her marriage-portion for life, and one with children to do so ‘while she lawfully preserves her body’, that is so long as she remained chaste.* The payments made by men for women with their dower and maritagium that appear in the 1130 Pipe Roll suggest that widows retained their marriage portions when not remarried. A widow could alienate the maritagium, but to make a lasting gift the consent of her heirs was at least prudent. When Alice de Redvers gave the manor of Woolley

to Montebourg Abbey, she referred to the manor as her own dominium, and recorded the consent of her sons, brother, and grandsons. When she wrote to the bishop of Salisbury about the same gift, she mentioned that her father had given the manor with her to Richard de Redvers, her husband, and when Henry II confirmed the gift, he referred to it as from Alice’s maritagium.”

Dower Early material on grants of dower is very limited, necessitating some reliance on later evidence.** Dower could take two forms, nominated or not nominated. The former may have been the preferred and perhaps the original form. It was specified land assigned by the husband to the wife at the time of their marriage. The °* EYC, v. no. 390; the confirmations are EYC, ii. no. 1140, RRAN, iii. no. 119. For wife as donor, with

husband giving consent, see also e.g. Cartularium prioratus de Colne, ed. J. L. Fisher (1 Occasional Publications Essex Archaeological Soc., 1946), no. 56, almost certainly a death-bed gift. This grant was further confirmed by King Stephen (RRAN, iii. no. 242), who, the woman says, had, along with his wife Matilda, given her the manor ‘in free marriage-portion’. °° RRAN, ii. no. 488; for a more extensive quotation, see below, 450. °° See above, 439.

°” Redvers, nos 8, 10, Recueil des actes de Henri Il, ed. L. Delisle and E. Berger (4 vols; Paris, 1909-27), no. 308. °° See Biancalana, ‘Widows’, 262. On the scarcity of post-Conquest evidence for the ‘morning-gift’, see below, 804.

448 PART II: ANGLO-NORMAN ENGLAND wife would come into possession on the death of her husband. It was thus both a present and a future transfer, in the former aspect functioning somewhat like a brideprice, the husband’s payment for his wife, in the latter functioning like a testament, ensuring transfer of land after the husband’s death.® There is some evidence supporting the nuptial liturgies that the transfer should be made at the church door. A charter, probably from the first half of the twelfth century, records William de Yspania’s gift to his wife Lucy of the vill of Willingale Spain, one knight's fee, and a sokeman, ‘made before the door of St Mary at Shelford when I married her, in dower’’° It is hard to tell if silence elsewhere as to the place of endowment is significant; the church door may have been the assumed location. A Domesday entry records simply that a man gave land to his wife in dower in the view of two men, Roger the marshal and a certain Englishman.” If a husband did not assign specific lands to his wife as her dower, she was entitled to a customary portion of his lands. This would later be set as one-third

of the lands of which the husband was seised at the time of the marriage.”

A problem might then arise as to lands that the husband acquired after marriage. The Leges Henrici state that ‘if a wife survives her husband, she is to have perpetually her dower and marriage-portion, which had been handed over to her by texts of charters or the display of witnesses, and her morning-gift and a third part of all her joint acquisitions [de omni collaboratione sua], in addition to her clothing and bed’” This suggests a right to post-marriage acquisitions. However, it should be noted first that this clause derives partly from the seventhcentury Frankish collection, the Lex Ribuaria, and secondly that the phrase ‘all her joint acquisitions’ cannot easily be taken to mean all her husband's acquisitions during marriage; indeed mention of her clothes and bed may suggest that the phrase concerns movables. Possibly provision from acquisitions was at first separate from dower.” A mid twelfth-century charter states that I Adelard gave in dower [in dotem] to my wife Isolde three and a half hides of land in fee and one half hide that I held in fee farm with my messuage and all the other

houses that I have in Houghton, and if I can acquire more land I have granted it also to her in its entirety in augmentation of the dower. And if the Lord should give me from this wife of mine a child I wish and grant that the child have by hereditary

right the aforesaid three hides that are from my acquisitions and that my father

°° Biancalana, ‘Widows’, 268. ”° London, British Library, Add. Ch. 28347. ”) DB, ii. fo. 59r. ”” See below, 794. On the situation where a son married during his father’s lifetime, see below, ch. 29. ”° LHP, 70. 22, ed. Downer, 224.

Biancalana, ‘Widows’, 259.

18 MARRIAGE AND FAMILY 449 never had, together with the aforementioned addition. I made this gift both of dower and of all the other things by the assent of Hilary bishop of Chichester and John the dean, and the whole chapter of Chichester.”

The question then arises as to whether Isolde would have received this portion of the acquisitions but for the explicit mention in the charter. A distinction between dower and other lands may also be drawn in a charter of Henry I confirming to Hawise, widow of William Mauduit, ‘all her dower and all the lands and houses and all those things [res] that William Mauduit gave to her in his lifetime’, going on to provide a list. However, when Henry confirmed the lands to William’s heir, following Hawise’s death, he referred to the listed lands as her dower.’* It may be that the distinction made in the first charter was relevant in dealing with a widow but not with an heir. Or it may be that any distinction had no great legal significance.” When Avelina de Hesdin claimed against the bishop of Norwich land that her husband Alan had acquired from Henry I and went on to give to Holy Trinity, Norwich, she did so ‘as if her dower [quasi dotem suam]’.

This suggests at the very least that she felt the land should be treated like her dower, but equally possibly that she considered it actually part of her dower It therefore remains unclear whether there was a significant distinction between dower and acquisitions transferred during the marriage, or whether widows had

a customary share of such acquisitions if there was no specific transfer? It is possible, although far from certain, that there could have been local variation of custom and practice in these matters.*° The dower remained in the husband's possession during his lifetime, but the wife may have exercised some control over his actions relating to the land. It seems that with his wife's consent the husband could alienate the land beyond his death. We have various twelfth-century charters recording a man giving land with his wifes permission, and at least some concern dower. Thus in the reign of Stephen, Roger son of Baldwin made a gift in fee and inheritance to Robert son of Gubuld. Amongst the witnesses was Roger's wife, and it was specified that ‘through her the

”* Biancalana, ‘Widows’, 267. Hilary was elected in 1146, consecrated on 3 August 1147, and died on 13 July 1169.

7° RRAN, ii. nos 729, 1255.

’” See Biancalana, ‘Widows’, 275; note also RRAN, ii. no. 1224. Another possible explanation for the difference between the two charters is that the second was drafted with insufficient care. ”® Lawsuits, no. 263; Charters of Norwich Cathedral Priory, ed. B. Dodwell (2 vols; NS 40, 46 PRS, 1974, 1985), ii. no. 364; see also Biancalana, ‘Widows’, 275-6. Alan’s charter stated that ‘on account of this gift land my wife Avelina are brothers of the place’, perhaps suggesting that she had participated in the gift. ” See also below, 794-5. °° See below, 811, for honorial variation.

450 PART II: ANGLO-NORMAN ENGLAND granting of this gift was made, since it was her dower’*' How far the wife could refuse permission is unclear, but on occasion she may have received compensation or a countergift from the donee. In addition, a husband was sometimes recorded as making a gift to his wife in replacement of dower that he had given to a third party. In 1123 Walter of Gloucester gave Little Hereford to his nephew William de Mara. However, Walter and his son Miles had previously given Little Hereford to Sybil, wife of Miles. So they gave Sybil land in exchange ‘by grace and grant of Miles: And Sybil, ‘by her own will and the counsel of good men, without any coercion, willingly granted Little Hereford to William de Mara because of the exchange specified above, and having received as symbol and witness a certain gold ring from that William:* Such actions suggest that if the gifts were made without her permission the wife could at least reclaim her dower after her husband's death.® In addi-

tion, we do on rare occasions hear of wives making gifts from their dower during their husband's lifetime. From around 1150 comes a charter stating that Osbert de Wanci had given a portion of his land at Astwell to the monks of Biddlesden in perpetual alms. Twenty-six acres of this land were from the dower of his wife, half of which she gave to the monks in perpetual alms for her soul, whilst for the other half Osbert gave her an exchange of equal value, with her agreement.** After her husband’s death the widow was to receive her dower. According to Henry I’s coronation decree, if a husband dies and his wife is left and is without children, she shall have her dower and marriage-portion, and I will not give her to a husband except according to her wishes. If a wife shall be left with children, she shall indeed have her dower and marriage-portion, while she lawfully preserves her body, and I will not give her except according to her wishes. And the guardian of the land and children shall be either the wife or another of the relatives whom it shall more justly be. And I order that my barons likewise restrain themselves [se contineant] towards the sons and daughters or wives of their men.®

The widow was normally to hold the dower from her husband’s heir.** The woman might alienate dower lands for the remainder of her lifetime, and might ** Danelaw Documents, no. 470; see also e.g. Dodwell, “Bacton charters’, no. 9. For wives witnessing grants of dower, see Postles, ‘Choosing witnesses’, 336. 8? Ancient Charters, ed. J. H. Round (10 PRS, 1888), no. 11. See also Biancalana, ‘Widows’, 269-70, although note that most of his evidence is from the Angevin period.

°° See Tabuteau, Transfers of Property, 176, for two instances from Normandy in the period 1066-c. 1100.

°** Stenton, First Century, no. 46. °° RRAN, ii. no. 488. °° See e.g. RRAN, iii. no. 312. Perhaps in certain circumstances the widow might come to hold from

another, as when Emma, daughter of Grimbald the physician, surrendered her father’s lands to King

18 MARRIAGE AND FAMILY 451 make perpetual grants with the agreement of her dead husband's heir.*” On the other hand, we also hear of sons making gifts with the counsel and consent of their mothers, whose dower the land was.* We have little information on dower disputes in the Anglo-Norman period. Henry I's Pipe Roll contains a few references to women making payments for their dower, or their dower and marriage-portion. Most of these appear under the heading of ‘new pleas and agreements’, but the nature of any dispute is not revealed.*? We also hear of Henry I bringing the bishop of Norwich and Avelina de Hesdin to agreement concerning land from her dower; the bishop was to give her for life land worth 100s. a year.*° And Sybil widow of Payn fitzJohn clearly got

into dispute with her son-in-law, because Roger of Salisbury sent her a writ, on King Stephen’s behalf and his own, ordering her without delay to reseise of corn and hay all the lands that were her husband’s acquisitions, and specifically of certain wine and all other things as they were on the day when the king granted them to Roger son of Miles with Cecilia, Sybil’s first-born daughter. It is possible that here we have a dispute over the widow's right to a share of her husband’s acquisitions, and that the widow had pursued it through seizure of crops and other goods.”

Curtesy It may well be that a husband who survived his wife retained a life interest in all her lands after her death. By the later twelfth century this was subject to the requirement that the couple should have had a child who was born alive.” It could be that the husband’s homage was seen as entitling him to hold the lands for life, even if there was an heir, but this does not explain why he should not enjoy such tenure in the absence of a child.* Stephen, who in turn gave them to Walter Martel (RRAN, iii. no. 579). The king’s charter goes on to state that ‘Atselina, wife of that Grimbald, for as long as she lives shall hold in peace from that Walter her land which she is holding, and afterwards that land shall go back into the demesne of that Walter’ The lands concerned

probably include Atselinas dower, although the phrase ‘her land’ could be confined to lands that she had brought to the marriage. *” See e.g. Redvers, no. 11.

°° See e.g. Reading, no. 261. °° PR3I1HI, 14, 67 (also maritagium), 94, all appearing under new pleas and agreements, 95. °° Lawsuits, no. 263; see also above, 449. °* RRAN, iii. no. 313.

°* See below, 804-5. The Mirror of Justices, i. 3, ed. and trans. W. J. Whittaker, intr. F. W. Maitland (7 Selden Soc., 1895), 14-15, attributed to the courtesy of Henry I that husbands should hold the inheritances of their wives in such circumstances; the Mirror was probably written in the reign of Edward I and cannot be taken as reliable. °° Note the arguments of Milsom, ‘Inheritance by women’, 254-60.

452 PART II: ANGLO-NORMAN ENGLAND

4 MINORS Age of majority We still have no clear legal statement of an age of majority, or of different ages of majority for different circumstances. The Leges Henrici take fifteen as the age below which children could not bring an action or sit in judgment, but in part

this section of the text derives from the Lex Ribuaria.‘ It gives no indication of the age of majority for landholding. The 1130 Pipe Roll records a payment for a man’s wife and to have the man’s land in custody until the man’s son ‘has twenty years.’ This is close but not identical to Glanvill’s statement that the age of majority for knights was twenty-one.*®

Wardship Minors, and their lands, were to go into wardship, but who was to be the guardian? As we have seen, according to Henry I’s coronation decree, in the case of a widow with children ‘the guardian of the land and children shall be either the wife [i.e. the widow] or another of the relatives who it more justly should be.” Such family wardship would later apply to lands held in socage, and there is some Anglo-Norman evidence for it* A Ramsey case tells of Hugh des Eschalers who had in his custody Stephen de Eschalers. Hugh’s surname suggests that he was a relative of Stephen, although he could also have been one of his lords.*? The Leges

Henrici warn of the danger of entrusting wardship to a relative or other who might seek the inheritance,”° and the Abingdon History, written in the 1160s, recounts a relevant dispute at the end of the eleventh century: A certain knight, Walter, surnamed de Rivers, who held the land called Beedon, died at that time, leaving a very young son of the same name. Because of this, the boy’s uncle, named Jocelin, who desired to acquire that possession, appeared in the king’s court, then meeting at Beckley, to argue his case concerning this. But he was frustrated in his attempt by Abbot Reginald who supported the boy and pleaded against Jocelin. Then Jocelin abandoned this effort and begged that he be allowed to take that possession into his own hand until the boy was older. He would pledge

°* LHP, 59. 9-9b, ed. Downer, 184-6. °° PR3IHI, 88. °° See below, 805. See above, 308 n. 17, on minors as litigants; 432, on minors doing homage. °” RRAN, ii. no. 488, above, 450. °® On socage, see below, 806. °° Lawsuits, no. 175. "°° LHP, 70. 19, ed. Downer, 224.

18 MARRIAGE AND FAMILY 453 his faith that he would not in the meantime seek anything maliciously for his own benefit in this, but in Walter's place would do the service of the three knights who are demanded therefrom, in the customary way. He was granted what he sought, and gave his word to the abbot that he would maintain everything entirely as he promised.'”

The case is complicated by the uncle’s initial claiming of the land for himself. His failure meant that he had to make the case that he should have the wardship, perhaps in competition with the abbot who was the boy’s lord. In this Jocelin succeeded, and the History goes on to point out that even when Walter grew up he had difficulties getting hold of the land. Overall, the Beedon case suggests either uncertainty or flexibility in the law of wardship at least regarding who should be

the guardian. However, there is other evidence that lords claimed the right of wardship, at least of heirs and lands if not of the person of non-inheriting children.’ This is clearest in the case of the king, with Pipe Roll demonstrating the profits of wardship.'’® It is uncertain both whether lords had to take heirs’ homage before obtaining wardship, and whether lords took relief at the point of succession, or when the heir came of age, or not at all, with the income from the wardship standing in place of the relief.’* The king probably was to have wardship of all the lands of tenants-in-chief, of whomsoever the lands were held, the right later known as prerogative wardship.’® But in the case of minors who were not offspring of tenants-in-chief, did all the lands go to the man’s liege lord? Or did lands revert to their individual lords? Based

partly on a reading of Glanvill, it has been suggested that ‘in cases of multiple lordship the liege lord had... been entitled to wardship not only of the person but also of all the lands within the inheritance’..°° Practice may have been as follows. A man with several lords dies. Each lord formally takes into his hand the land of his own fee, until someone comes and does homage, pays relief, and answers for any service. It is the liege lord, who anyway has wardship of the person of the heir, who arranges for these to be done; otherwise the lands remain with the individual lords. Should the liege lord choose to make the various obligations be fulfilled, the other lords must then deliver to him the lands that they have

"Lawsuits, no. 145. *°* See below, 806-7, which also notes the possibility of transactions separating the wardship of land and children. "°° See Green, Government, 223-5. *°* See below, 809.

*°° Early evidence is lacking, but Stenton, First Century, 222, suggests that PR31HI, 111, relates toa possible example involving Walter de Gant. *° See S. F.C. Milsom, “The origin of prerogative wardship’, in Law and Government, ed. Garnett and Hudson, 223-44, quotation at 224, and below, 810-11.

454 PART II: ANGLO-NORMAN ENGLAND taken into hand, so that he has wardship.’’” However, given that we do not have relevant accounts from the Anglo-Norman period, we cannot tell if wardship operated in this way.

It may be that the guardian could make grants of lands for the duration of the wardship, although this can only be confirmed in the case of the king. Our evidence does suggest that the guardian was obliged to fulfil the services due from the lands held in wardship. This was so in the Beedon case just discussed, and is also stated in a charter of King Stephen. The king wrote to H. Maltravers that he had restored certain lands to the church of Winchester. He ordered the

addressee that he go to Bishop Henry his lord and seek the bishop [episcopo intendas] concerning those lands that Maltravers held in custody with the son of William fitzAlured, and do him homage concerning them. Whatever Maltravers owed to the king concerning the service and other things for those lands, he was to fulfil completely to the bishop. The king concluded by stating that the son of William fitzAlured and whoever had that land in future was to do the same to Bishop Henry and his successors.’**

5 CONCLUSION: ‘FEUDAL INCIDENTS’ This chapter has demonstrated that significant, although far from all, aspects of family law intersected with matters of lordship and landholding. In particular, there were the elements grouped by historians as “feudal incidents’, that is wardship, marriage, and relief. Any death of a tenant allowed the lord to take relief and high mortality ensured that death leaving a minor or a female as the closest claimant was frequent. The profits arising from consequent wardships and marriages may have been considerable, especially if the previous tenant had held on favourable terms. The importance of such occasional rights, and the contention that they provoked, is clear from their precedence amongst secular matters in Henry I’s coronation decree. That pattern would be repeated over a century later, in Magna Carta.

*°” Milsom, ‘Prerogative wardship’, 231.

8 RRAN, iii. no. 951.

19

Forest Laws from Anglo-Saxon England to the Early Thirteenth Century B: the second half of the twelfth century, perhaps almost one-third of the

realm was considered part of the king's Forest. Forest extended beyond royal demesne and included various types of terrain, not exclusively woodland.’ Within the royal Forest, the king had exclusive hunting rights over the most desirable beasts, unless he granted specific permission. Likewise, the tenant of land within the Forest needed royal permission or supervision for the taking of wood or the grazing of beasts. Those who committed offences against the laws of the Forests were penalised severely, and the laws of the Forest were seen as having their own particular character. According to the Dialogue of the Exchequer, the organization of Forests, and also the punishment or absolution of those doing wrong in them, whether it be pecuniary or corporal, is separate from the other judgments of the realm, and is subject to the discretion of the king alone or of an associate specifically deputed for this. For it has its own laws, which are said to be based not on the common law of the realm [communi regni jure] but the arbitrary institution of princes [voluntaria principum institutione], so that what is done through its law is said to be not just absolutely but just according to the law of the Forest.’

Sources concerning Forest law before 1154 are very sparse, the main ones being Domesday Book, the Leges Henrici, post-Conquest narratives, royal writs and charters, and the 1130 Pipe Roll. From Henry II’s reign, the sources multiply,

although problems remain. We have a complete run of Pipe Rolls from 1155 onwards, but they do not provide even a complete financial record of the Forests, whilst their normally terse references to judicial activities can be hard to interpret. There are legislative texts, although their dating and status have been a matter of

* See Dialogus, i.12, ed. Amt, 92, for a clear association with woodland. I use Forest with a capital to differentiate references to royal Forest from other uses of the word. * Dialogus, i. 11, ed. Amt, 90. The passage goes on to explain that the king went to the forests to hunt and relax, ‘and that is why people who do wrong in the Forest are subjected exclusively to royal punishment.

456 PART II: ANGLO-NORMAN ENGLAND dispute, and also a tract known as the Pseudo-Cnut de Foresta} Rolls of Forest justices survive from 1209, but only become at all numerous after our period.‘

1 ANGLO-SAXON ENGLAND On the Continent it appears that some rulers could enjoy considerable hunting and other forest rights extending even beyond their demesne lands.’ The sparse pre-1066 Norman evidence indicates that ducal rights over beasts might be reserved

when ducal land was granted to a church,° and there are references to pleas and customs relating to woods and forests, although these may not have been a ducal monopoly.’

The situation in late Anglo-Saxon England is unclear, particularly because of the shortage of evidence. Kings certainly hunted, probably for various animals including deer.* Domesday Book shows that Edward the Confessor had extensive woods in demesne, including in places that were later Forest, such as Chippenham and Windsor.’ Domesday Book also reveals Edward having men responsible for custody of forest, for example in the Forest of Dean.’? However, references to foresters or huntsmen tend to coincide with lands held directly by the king or given by Edward." There is no clear evidence that royal hunting rights might extend over lands of the aristocracy, as would be the case after 1066. Cnut’s laws indeed may suggest that the king’s hunting rights were concentrated on his land, with others having rights within their own: ‘I wish that every man be entitled

> See below, 472-3. * See Select Pleas of the Forest, ed. G. J. Turner (13 Selden Soc., 1901). > See e.g. C. Petit-Dutaillis, ‘Les origines Franco-Normandes de la “Forét” Anglaise’, in Mélanges d Histoire offerts a M. Charles Bémont (Paris, 1913), 59-76; R. K. J. Grant, The Royal Forests of England (Stroud, 1991), 8-9; R. Le Jan, “Le don et le produit sauvage’, in her Femmes, pouvoir et société dans le haut Moyen Age (Paris, 2001), 119-31. ° From just after the Conquest, see Acta of William I, no. 45.

” See e.g. Recueil, ed. Fauroux, nos 30, 64, 99; Haskins, Norman Institutions, 48 and n. 216; D. Jorgensen, “The roots of the English royal forest’ (2010) 32 ANS 114-28. * See Asser, Life of King Alfred, 22,76, ed. Stevenson, 20, 59; Life of King Edward, i. 6, ed. Barlow, 62; /Elfric, Colloquy, 50-85, ed. G. N. Garmonsway (rev. edn, Exeter, 1991), 23-6. On forest in Anglo-Saxon England, see also Williams, World before Domesday, 123-9. ° DB, i. fos 56v, 64v. *° DB, i. fo. 167v.

*" See e.g. DB, i. fos 30r, 6lv, 64v. The pre-Conquest tenurial situation at Withypool, Somerset, is not clear; DB, i. fo. 98v. DB, i. fo. 67v, records A2lfric the huntsman having held land from the abbess of Wilton, but these lands need not have been associated with his office; cf. his possible appearances amongst the king’s thegns at fo. 74v; his successor Richard Sturmy was a forester of Savernake Forest; Grant, Royal Forests, 8.

19 FOREST LAWS FROM ANGLO-SAXON ENGLAND 457

to his game [huntnodes wyrde] in wood and in field in his own property. And everyone shall forego my game, wherever I wish to have it protected, on full fine.” The precise meaning of this clause cannot be absolutely certain, given the absence of other evidence. It does not quite say that the king could not extend his protection regarding game beyond his own lands. Moreover, the clause is in the section of Cnut’s code that seems to consist of royal concessions, perhaps indicating an earlier more aggressive royal policy. However, it remains the case that there is no strong evidence for royal Forests extending beyond royal lands or for special Forest laws or jurisdiction before 1066." Furthermore, the Anglo-Saxon Chronicle, in a verse obituary of William I composed soon after his death, saw his reign as involving a marked change He made great protection for the game and imposed laws for the same, that who so slew hart or hind should be made blind. He preserved the harts and boars and loved the stags as much as if he were their father. Moreover, for the hares did he decree that they should go free."4

The implication is a change not simply in the geographical extent but also the nature of the royal protection of game. It may be significant that Domesday Book shows no interest in justifying William’s Forest in terms of the situation under King Edward. It seems most likely that the royal Forests of the sort recognisable in the twelfth century, extending beyond royal demesne and protected by Forest laws, were a Norman innovation.”

2 ANGLO-NORMAN ENGLAND Asis apparent from the obituary of William the Conqueror, hunting and the Forest were closely associated with the king and his peace or protection. The Anglo-Saxon Chronicle tells us that Henry I ‘made peace for man and beast’, while the Gesta Stephani reports the slaughter of beasts that followed Henry's death.”* According to Orderic Vitalis, Henry ‘claimed for himself sole hunting rights of wild beasts throughout England, and even had the feet of dogs that lived in the neighbourhood

‘2 II Cn, 80. "> See below, 466, on DB, i. fo 173r, where the bishop of Worcester had rights in woodland TRE, but it was in royal Forest by 1086. 4 ASC, 1087 (s.a. 1086).

*° For divergent development in England and Normandy after 1066, see J. A. Green, “Unity and disunity in the Anglo-Norman state’ (1989) 63 Historical Research 115-34, at 123-8. "© ASC, 1135; Gesta Stephani, i.1, ed. Potter and Davis, 2-4.

458 PART II: ANGLO-NORMAN ENGLAND of woods mutilated, and scarcely permitted to a few of the more noble men and closest companions the privilege of hunting in their own woods.’”

Extent of the Forest

Estimating the growth and extent of the Forest under the Norman kings is difficult. The Domesday record is far from complete, its silences not necessarily

significant, whilst later stories may not be trustworthy.* William I certainly created Forests. Domesday Book backs up the story in the History of the Church of Abingdon that ‘four hides were then detached by royal will from the village of Winkfield, situated towards Windsor, in order to increase the Forest there’. Most notable was the creation of the New Forest, presented by chroniclers as the product of mass eviction. In old times past, that is of King Edward and of his predecessors as English kings, that area fruitfully abounded with people who worshipped the Lord and with churches,

but on King William the Elder’s command, men were expelled, homes cast down, churches destroyed, and the land was made habitable only for wild animals.”°

Close scrutiny of Domesday Book indicates that the New Forest was actually created throughacombination of eviction and the takingin ofasubstantialamount of poor, probably uninhabited land.” Elsewhere, for example in Worcestershire, the king seems sometimes to have concentrated on taking woodland into his Forest, leaving the remainder of the manor at least temporarily outside.” William I’s sons created further Forests, again perhaps staying away from the richest, most fertile, and most densely populated counties. There was no Forest in Norfolk, Suffolk, Kent, Cambridgeshire, Hertfordshire, or Middlesex.” Earlier silence makes it hard to be certain of Henry I's creations, but contemporary and

'” Orderic, Ecclesiastical History, xi. 23, ed. Chibnall vi. 100, reviewing Henry’s rule after the battle of Tinchebrai (1106).

*® See Grant, Royal Forests, 11-12; D. Crook, “The archbishopric of York and the extent of the forest in Nottinghamshire in the twelfth century, in Law and Government, ed. Garnett and Hudson, 325-40, at 334-7. ’? Historia ecclesie Abbendonensis, ii. 6, ed. Hudson, ii. 8; DB, i. fo. 59r. *° John of Worcester, Chronicle, 1100, ed. McGurk, iii. 92; the passage occurs in the context of William Rufus’s death whilst hunting in the Forest. *" See F. Baring, “The making of the New Forest’ (1901) 16 EHR 427-38; Darby, Domesday England, 198-201. For destruction elsewhere, see e.g. DB, i. fo. 247v, on the lost place of “Haswic’, Staffs.: ‘it is now waste because of the king’s Forest’. *? See DB, i. fos 172r, 173r, 173v, 1741, 177r, 177v. Elsewhere, see e.g. DB, i. fos 184r, 186r.

** Grant, Royal Forests, 5-6; D. Crook (personal communication).

19 FOREST LAWS FROM ANGLO-SAXON ENGLAND 459

later evidence suggest that he may have established Forests in Bedfordshire, Leicestershire, Rutland, and Yorkshire.”

Royal rights and pleas The Leges Henrici included ‘Forests’ in the list of rights that the king alone had over all men in his land, and the same text later includes a section headed ‘concerning the plea of the Forests’.* This provides the following list, which closely resembles later lists of royal Forest rights: Concerning assarts, concerning hewing, concerning burning, concerning hunting, concerning the carrying of bows and arrows” in the Forest, concerning the wretched hambling of dogs [that is, mutilation of their feet so that they could not hunt], if anyone does not come to arrange the hunt, if anyone lets loose his confined livestock, concerning buildings in the Forest, concerning disobeyed summonses, concerning the encountering of anyone in the Forest with dogs, concerning hide or flesh that has been found.

Kings were particularly concerned to protect the beasts most desirable for hunting, that is the red deer, the fallow deer, and the boar, whilst Forest law also protected the roe deer.” The prohibition of the keeping of bows and arrows does not appear in the charter evidence, but other royal measures do. The keeping of hounds within the Forest was forbidden unless the king gave licence.* A royal privilege was needed to exempt the beneficiary from having his dogs hambled.”

Also important to the king, both for the preserving of the animals’ habitat and for purposes of revenue, were his rights over the ‘vert’, that is the wood of the Forest. The Leges Henrici expanded on its mention of the offence of hewing

** For explicit mention of afforestation, see RRAN, ii. no. 995 (probably a later reworking of a writ of Henry I); PR2RI, 145. The evidence for Henry I creating Forest in Leicestershire and Rutland comes from the second half of the thirteenth century; Select Pleas of the Forest, no. 7 (p. 45). Note also N. Vincent, “New charters of King Stephen with some reflections upon the royal forests during the Anarchy (1999) 114 EHR 899-928, at 905, on Cheddar, 911-14, on Hainault and other Forest in Essex. *° LHP, 10. 1,17, ed. Downer, 108, 120.

*° The word translated ‘arrow’ is jaculum, which might mean ‘javelin’, but the proximity of ‘bow’ suggests that the meaning here is arrow. *” H. A. Cronne, “The royal Forest in the reign of Henry’, in Essays in British and Irish History in Honour of James Eadie Todd, ed. H. A. Cronne et al. (London, 1949), 1-23, at 6. On boar, wolves, and the protection of royal hunting-birds, see Cronne, ‘Royal Forest’, 6-8. *® See below, 463, on the charter in Henry I’s name for London. *° Note RRAN, ii. no. 577, a writ of Henry I perhaps from c. 1105 but probably a later fabrication,

exempting the abbot and monks of Colchester from hambling dogs in lands that they had from the honour of Eudo dapifer, and allowing them to keep greyhounds [leporarii] for taking hares for use of the sick brethren. See also above, 457-8, for Orderic’s comment on hambling.

460 PART II: ANGLO-NORMAN ENGLAND wood: if it took place outside the king's park or Forest, it was to be settled by the common emendation of five mancuses (that is, 150d.); if within king’s park or Forest, by twenty mancuses, unless there was reason for a more severe penalty.° As one might expect, the king had control over his demesne woods, but might make grants relating to these. For example, Henry I allowed the abbey of Shrewsbury

and its men to have what they needed from royal woods, in pasturage and in timber for houses but without assart or immoderate waste." Later in the century, the Dialogue of the Exchequer would define assart and waste as follows. Assarts come into existence when forests, woods, or any thickets suitable as food or lair are cut down. After the trees have been felled and uprooted, the land is ploughed and cultivated. But if the woods are cut in such a way that someone standing on the half-buried stump of a felled oak or other kind of tree and, looking around, can see five other felled trees, that is regarded as ‘waste’, which is short for ‘devastated’.

Such an offence was so serious that the perpetrator should always face a monetary penalty, even if the waste was committed in his own wood.” The 1130 Pipe Roll includes various references to pleas and amercements relating to assarts.? That the word assart makes its first English appearance in Domesday Book, in the French vernacular form essarz, suggests that the notion may have been a Norman innovation? Documents also reveal royal concern to prevent encroachment, that is ‘purpresture’, on royal Forest. Thus Henry I instructed Croc the huntsman to allow the land of the monks of Abingdon at Chieveley and Welford to be cultivated, ‘that is such land as would not harm my Forest nor be

of my Forest’

°° LHP, 37, ed. Downer, 144.

** RRAN, ii. no. 698. Interpretation of grants concerning the beneficiary's woods within the royal Forest is harder. A writ in Henry I’s name, RRAN, ii. no. 577, grants to the abbot and monks of Colchester

and their men that they be free from pleas of the Forest, and from vexations and obstructions by royal foresters if they took anything within their own wood. Was this a reinforcement of the beneficiary's normal enjoyment of the produce of their woods free from any involvement of royal foresters, or a grant aimed at preventing royal foresters from abusing their accepted role as supervisors of the beneficiary's enjoyment of the produce of their woods? Cronne, ‘Royal Forest, 10, argues for the latter; see Assize of Forest, 3. However, the writ in Henrys name may well be a later fabrication. Note also supervision by royal foresters of grantees taking what they needed from royal woods; e.g. Vincent, “New charters of King Stephen, 924 (no. 8). *? Dialogus, i. 13, ed. Amt, 92. See above, 459, for ‘assart’ being the first plea mentioned in LHP, 17. 2. °° PR31HI, 50, 57-8, 124. On ‘pleas concerning assarts’, see also below, 462-3.

°* DB, i. fos 179v (where it appears as gloss above the Latin projecte in the phrase ‘projecte de silva’), 184v.

°° RRAN, ii. no. 616.

19 FOREST LAWS FROM ANGLO-SAXON ENGLAND 461

Administration We know that the Forest was a significant source of royal revenue,*® and have some information on the royal administration although not sufficient to provide a full picture. At least some royal huntsmen, such as Croc, had an administrative role.” Croc’ descendants, and perhaps he himself, had responsibility for Chute Forest in Hampshire and Wiltshire.** The 1130 Pipe Roll reveals other custodians of particular Forests; for instance, William fitzWalter, constable of Windsor castle, rendered payment from the Forests of Berkshire.’ Such men had subordinates, for example the foresters mentioned in Domesday Book or some of those addressed or mentioned in royal writs.*° Some of these foresterships or forest serjeanties may have origins in the pre-Conquest period,” whilst the later recurrence of family names of foresters suggests that the position might be or become hereditary.” According to Geoffrey de Gaimar, writing in the mid-twelfth century, William Rufus had appointed foresters throughout his Forests, as well as taking other firm measures for the protection of the Forest. The 1130 Pipe Roll includes promised payments for the office of forester, and records a debt of half a gold mark owed by Henry son of Herbert the forester for his father’s land and office in Hampshire. In addition, those receiving rights within the Forest might have custodial obligations, for example for the preservation of beasts for the king’s use.” The king sometimes heard Forest pleas in person. Henry of Huntingdon tells us that in 1136 King Stephen ‘came to hunt at Brampton,...and there he dealt with pleas concerning the forests of his leading men, that is concerning woods and hunting’.*® As to what other courts heard Forest pleas, the evidence provides

°° Green, Government, 225, calculates that the 1130 Pipe Roll records over £1,400 debts for Forest pleas.

°” Note him appearing as a witness in RRAN, i. nos 319, 361, ii. no. 754. °° VCH, Wiltshire, iv. 425, 440. Note also PR3IHI, 17. °° PR31HI, 122, 127, and note RRAN, ii. no. 696; for other examples, see PR31HI, 17, 77; RRAN, ii. no. 1518.

*° See e.g. DB, i. fo. 180v, ii. fo. 5v; RRAN, i. no. 332, ii. nos 594 (also mentioning huntsmen and bowmen), 708. See RRAN, ii. no. 696, for mention of a serjeant and also the ‘officials [ministri] of Windsor Forest.’ Note also RRAN, iii. no. 41. “ See above, 456 n. 11. ** See C. R. Young, The Royal Forests of Medieval England (Leicester, 1979), 15, Grant, Royal Forests, 112. In this they resemble other serjeanties. ** Gaimar, Estoire des Engleis, ll. 6229-6242, ed. Short, 336-8. ** PR31HI, 38; see also e.g. 87. For other references to foresters in the 1130 Pipe Roll, see e.g. PR31HI, 16, 21.

* RRAN, ii. no. 838, on which see also below, 466. *° Henry of Huntingdon, Historia Anglorum, x. 4, ed. Greenway, 708; Henry goes on to say that this wasa breach of the king’s promise, probably a promise related to that in his 1136 Oxford Charter, RRAN,, iii. no. 271.

462 PART II: ANGLO-NORMAN ENGLAND no certain answer. It could be that some cases were heard in routine county courts,” or before courts held by the king’s local justices or by foresters.* In Henry II’s reign, a process of inquiry known as the ‘regard’ provided crucial preparation for the visit of the Forest eyre. When the regard started, and in what form, is uncertain. A writ of Stephen granted to Peterborough Abbey all its assarts made up to a specified date, free “from all regard of the Forest’.° A writ of Henry I for Ramsey Abbey, if the surviving text can be trusted, acquitted the land up to one league from the monastery ‘from views of the Forests and assarts and all other complaints’. “View of the Forests’ could be a process of regard? However,

the form of the process, whether it was conducted locally or on a nationwide basis, and whether it had a link to the eyre, remain uncertain. The 1130 Pipe Roll provides evidence for royal justices having heard pleas in the localities. This may be part of a Forest eyre, although it should be noted that only one or at most two of the justices are recorded as hearing pleas in more than one county. William d’Aubigny had heard pleas in Essex, Ralph Basset in Surrey, Robert

of Arundel in Wiltshire, Dorset, Devon, and Cornwall, the last forming a southwestern circuit." Some may have been hearing Forest and general pleas at a single sitting, whilst in Surrey and Berkshire Walkelin Visdelou may have been holding a more specific enquiry concerning assarts.” It has been suggested that the list of pleas of the Forests included in the Leges Henrici were based on the articles of a Forest eyre, and it is perfectly possible that Forest eyres dealing with sets of articles began earlier than the general eyre.* However, the evidence for Forest pleas being heard by special itinerant Forest justices is very sparse before the Angevin period.

Nor is much known about the process of arrest and trial of Forest offenders. Eadmer tells of fifty Englishmen who were ‘seized and falsely accused of having

*” See Green, Government, 127-8. The case involving alleged English Forest offenders put to ordeal, Lawsuits, no. 150, discussed above, 326, provides no evidence as to forum. See Lawsuits, no. 331, fora

case concerning warren being heard in the county court. “8 RRAN, ii. no. 577, may suggest court-holding by local justices or by foresters, but the writ is of very questionable authenticity. * RRAN, iii. no. 655. On regard in the Angevin period, see below, 477. °° RRAN, ii. no. 999. >" PR3IHI, 13, 19-20 (where mention of Robert of Arundel takes the form ‘pleas of the Roberts’, parallel to the mention of ‘the Alans’, below, 486; I owe this point to David Crook), 49, 56-7, 155, 159. Note also PR3IHI, 47, 73 (Staffordshire and Gloucestershire accounted together), 136. Bearman, in Redvers, 5, suggests that Baldwin de Redvers’ debt of 500m. for Forest plea(s) in 1130 (PR31HI, 153) may not be an amercement that he had incurred himself, but rather payment arising from a Forest eyre that he had conducted in Devon. Cf. below, 471-2, on Henry II’s Forest eyres being led by the chief forester. °2 PR31HI, 50, 124.

°° H. G. Richardson and G. O. Sayles, Law and Legislation from A:thelberht to Magna Carta (Edinburgh, 1966), 44; above, 459.

19 FOREST LAWS FROM ANGLO-SAXON ENGLAND 463 taken, killed, and eaten the king’s deer’. All went to the ordeal of the hot iron, and all were cleared, much to William Rufus’s fury.4 As for punishment, William

of Malmesbury tells us that under Rufus taking a stag was a capital offence,» whilst legislation in the Angevin period stated that blinding and castration had been the penalty for Forest offences in Henry I’s time.** In practice amercements may have been as or more important than physical punishment. The 1130 Pipe Roll records, for example, Walter Espec rendering account for 200m. of silver concerning a plea of a stag.” We also hear of collective amercement of men of specified places for assarts, although in one instance the payment was pardoned by royal writ on account of the men’s poverty.

Royal concessions

The burden of the Forest was mitigated by royal concessions. According to William of Malmesbury, Rufus sought English support against his brother’s invasion in 1088 by promising good law, lighter taxes, and ‘free hunting [liberas venationes] ©° In his coronation decree, Henry I made no reference to any right he might have to Forests created by William Rufus when stating that ‘with the

general consent of my barons I have retained the Forests in my hands as my father had them’.® In his Oxford Charter of 1136 Stephen retained Forests created by the Conqueror and Rufus, but gave back to the churches and the realm those

that King Henry added.” There were also grants to specific beneficiaries.” The charter in Henry I’s name for the Londoners granted them their hunting areas [ fugationes] in Chiltern and Middlesex and Surrey, as their predecessors best had them.® He also granted the church of Abingdon their wood of Cumnor and Bagley, ‘and that they may take all the roe deer which they can find there’, whereas they could only take red deer

°* Lawsuits, no. 150, discussed above, 326. °° William of Malmesbury, Gesta regum, iv. 319, ed. Mynors et al., i. 564. °° See below, 480-1. °” PR31HI, 32; see also e.g. 77, 106. °® PR31HI, 74.

°° Gesta regum, iv. 306, ed. Mynors et al., i. 546. °° RRAN, ii. no. 488. °" RRAN, iii. no. 271; and see above, 461 n. 46. RRAN, iii. nos 32, 382, show Stephen carrying

out the promise made in his charter. Note also Henry of Huntingdon, Historia Anglorum, x. 3, ed. Greenway, 704.

°* Itis hard to tell whether the increasing numbers of documents recording such grants after 1100 represent greater royal generosity or greater use of writing; see Green, Government, 129-30. °° RRAN, ii. no. 1645; the authenticity of this text is disputed, see also below, 816, 817 n. 35. The named area probably included, although it was not entirely made up of, royal Forest.

464 PART II: ANGLO-NORMAN ENGLAND with the king’s permission.** The same writ pardoned Abingdon all forfeitures concerning assarts, and other writs told of similar pardons or gave permission for the cultivation of land within the Forest.® As we have seen, Orderic Vitalis claimed that Henry I ‘scarcely permitted to a few of the more noble men and closest companions the privilege of hunting in their own woods.® Orderic may have been struck by a contrast with Normandy, where the ducal forests may have been less predominant.” However, even for England, he may exaggerate, and great men might have hunting rights of the most desirable animals outside the royal Forests.** How far royal licence was necessary for enjoying exclusive rights equivalent to those of the king in his Forests, or for the emparkment of land, is not certain.® Aristocratic hunting rights seem to have been particularly prevalent in border areas and amongst certain earls and bishops. Thus Domesday Book for Herefordshire recorded concerning eleven waste manors that ‘on these waste lands have grown up woods in which the same Osbern [fitzRichard] carries out hunting, and thence he has whatever he can take’”° The earls of Chester and bishops of Durham had extensive hunting rights.” The earl of Leicester too had forest, perhaps reflecting his proximity to the king.” Holders of such rights might certainly benefit from royal confirmation, lest they be challenged.”

Warren So far we have been concerned with those most desirable beasts, in particular deer, covered by Forest law, but kings also reserved to themselves, or made grants

°* RRAN, ii. no. 703. °° See e.g. RRAN, ii. no. 853, iii. no. 274 (on doubts about the authenticity of which see above, 268 n. 83). For royal orders that foresters not interfere in the grantees’ woods, except on specified matters, see e.g. RRAN, i. nos 332 (excepting assarts and beasts), 347.

°° See above, 457-8. °” See Green, ‘Unity and disunity’, 127. °° Note e.g. DB, i. fo 173r: the bishop of Worcester has 10s. and all proceeds in honey, hunting, and other things from woodland in Bredon. See also C. Petit-Dutaillis and G. Lefebvre, Studies and Notes Supplementary to Stubbs’ Constitutional History (Manchester, 1930), 155-6. °° See PR31HI, 58, for Roger de Raimes rendering account for 40m. of silver regarding a fine for

making a park without the king’s licence in Essex, that is, within royal Forest. On the question of licence for emparkment more generally, see. S$. A. Mileson, Parks in Medieval England (Oxford, 2009), ch. 5. It is uncertain whether any royal permission existed for other private forests listed by Green, Government, 129. ’° DB, i. fo. 186v. For Herefordshire, note also DB, i. fo 187r; on border areas more generally, see Darby, Domesday England, 202. ”* Earl of Chester: DB, i. fos 263v, 267v, 268v-269r, VCH, Cheshire, ii. 167-71; bishop of Durham: e.g. Lawsuits, no. 181. Note also Book of Seals, no. 423, for the honour of Lancaster. ” See Lawsuits, no. 491; Crouch, Beaumont Twins, 189-93. ”* See e.g. Acta of William I, nos 78 (on which, see also Anglo-Saxon Writs, 178-80), 307.

19 FOREST LAWS FROM ANGLO-SAXON ENGLAND 465 regarding, the hunting of other animals, especially hares.” These were rights of warren. Cases regarding warren were normally heard in the ordinary courts, only rarely in those that dealt with Forest law.” Grants of warren or the right to hunt hares can be found from the reign of William II and perhaps William I.”° The king might grant the rights on the beneficiary’s lands or beyond.” Such lands might be within or outside the royal Forest; in the former case part of the royal aim may have been to deal with animals

harmful to the preservation of deer and boar’* The king might declare that the warren was to be under his protection just like his own demesne warrens,” or that those who infringed the grant by hunting on the beneficiary’s warren were to pay a penalty, normally of £10, for breach of his prohibition.*° The wider significance of warren is ambiguous. On the one hand, royal grants indicate that the king claimed throughout the realm the right to restrict or allocate the hunting of the relevant animals; on the other, they also suggest that otherwise there was free hunting of animals apart from those protected by Forest laws.”

Conclusion The Normans appear to have introduced the form of royal Forest characteristic of the twelfth century and beyond. The geographical extension of the Forest was gradual, its precise stages impossible to plot. I have deliberately avoided stating that William I ‘introduced Forest Law’, with the implication that there was a uniform system applying to all royal Forest. We know too little of forest organisation in Normandy before 1066 to be able to tell whether there existed some system that might easily be imposed on England. In addition, there are signs of diversity in post-Conquest English arrangements, which may indicate Note e.g. RRAN, ii. no. 1818, for a grant that also included foxes, wild cats, and pheasants. ”° For cases concerning warren, see e.g. Lawsuits, nos 331, 399. ”® See Acta of William I, no. 99, RRAN, i. no. 457, and note no. 439. Note also Petit-Dutaillis, Studies, 152-3.

”” See e.g. RRAN, ii. no. 1899, for grant on the beneficiary’s own land. Note RRAN, ii. no. 1808, for the grant of warren also covering the land of one of the beneficiary's knights. A particularly extensive privilege was that of King John to William Brewer, Carte Antique, 1-10, no. 248: he could course hare, fox, cat, and wolf throughout the king’s lands, and roe deer in the chase of Devon outside the bounds of the Forest, and on his own estates he could have pheasants and partridges. ”° D. M. Stenton, English Society in the Early Middle Ages (4th edn, Harmondsworth, 1965), 104-5, Select Pleas of the Forest, cXxxx-Cxxxi.

” See e.g. RRAN, ii. no. 872. °° See e.g. RRAN, ii. no. 923, iii. nos 27, 173, 227. Cf. the fine of 15s. payable to the king for the

taking of pheasants that Walter de Beauchamp had put in his manor of Elmley or elsewhere in Worcestershire; RRAN, ii. no. 1024. °" See Petit-Dutaillis, Studies, 153-4; Young, Royal Forests, 46.

466 PART II: ANGLO-NORMAN ENGLAND that the degree of uniformity present towards the end of the twelfth century was only a later development, perhaps in the reign of Henry I or Henry II.* Penalties

may have differed between Forests. When Henry I prohibited anyone from hunting in the bishop of Durham’s forests in Northumberland or Durham, his order ended by specifying that ‘if anyone presumes upon this, he shall pay me a heavy fine [graviter mihi emendabit], as if he were hunting in my New Forest’.* The implication may be that the New Forest was characterised by notably heavy

fines. Furthermore, Domesday refers not only to the king’s woods* and the king’s Forest, but also to wood placed in the king’s preserve [defensa]. This could simply be an alternative term for the Forest, but may indicate a greater diversity of classification.*

It is also possible that the process of building up the Forest may have involved the sharing of rights with the existing landholder. Domesday Book records that the bishop of Worcester had had all rights in a wood at Malvern, Worcestershire,

but now the wood had been placed in Forest; the bishop retained pannage and wood for fuel and the repair of houses.*® Elsewhere, at least in exceptional

circumstances, the landholder might be given administrative responsibility. Henry I granted that the abbot and monks of St Mary's, York, were to have all their woods and land between the Dove and the Seven as best they held before it was Forest. The king’s foresters were not to interfere, and the abbot and his successors were to have full charge of Forest matters [totam forestariam meam| and were to

guard hart, hind, boar, and hawk for the king’s use.” Such local arrangements might still be observed in the Angevin period when the administration of Forest laws achieved greater uniformity, primarily through nationwide eyres. Then, however, they would be regarded as royally granted privileges allowing local deviation from the general system, rather than as the continuing exercise of preexisting rights of the landholder. *? For some continuing privileges of inhabitants of certain Forests, see Rolls of the Justices in Eyre, being the Rolls of Pleas and Assizes of Lincolnshire 1218-9 and Worcestershire 1221, ed. D. M. Stenton (53 Selden Soc., 1934), Ixvi-vii. °° RRAN, ii. no. 709. ** See e.g. DB, i. fos 181r, 204v. Note also references to the king having woodland in demesne or in his hand; see e.g. DB, i. fos 65r, 181v, 183r, 238v, 259r. °° See e.g. DB, i. fos 56v (Windsor), 176v, 180v, 181v, 182r, 243r. See also RRAN, ii. no. 872.

°° DB, i. fo. 173r. Note also e.g. the rights of the archbishop and canons of York in the wood of Blidworth, within the royal Forest; Crook, “The Forest in Nottinghamshire, 339-40. A questionable charter of Henry I records that the abbot and monks of Whitby had given to the king all the harts, hinds, and boars [porcos] in their forests, and that the king had afforested them to himself and his heirs. The abbot and monks were to hold all their woods and pastures so freely that no royal official might interfere therein; RRAN, ii. no. 995. Here it sounds as if matters regarding beasts were considered within the king’s Forest, matters concerning the vert, that is the vegetation, were not. °*” RRAN, ii. no. 838; see also no. 836.

19 FOREST LAWS FROM ANGLO-SAXON ENGLAND 467

An element of negotiation would help to explain why the Norman kings appear not to have faced massive aristocratic opposition to the creation of the Forest, with its implications not just for hunting rights but also for the exploitation of non-royal woods and lands within the Forest. It is possible but far from certain that forest arrangements in Normandy had prepared the aristocracy for such exercise of royal power. Henry I, in his coronation decree, thought it worth

claiming that he had baronial consent for keeping Forests that his father had had.** In addition, inclusion of members of the aristocracy within royal hunting parties, with the access to the king offered thereby, was a useful form of patronage, and patronage could also be exercised through privileges regarding the Forest.*® However, commentators at the time were clear as to how the Forest was imposed; it was through exercise of royal will®° Domesday Book tells of land in Gloucestershire that “by the king’s order it is in his Forest’ A similarly peremptory tone concerning the creation of Forest ends even a royal concession; Roger of Salisbury ordered the king’s foresters of Yorkshire to allow the archbishop and his men to have all their easements and necessities ‘in the woods of the archbishopric, which the king placed in his Forest’? Such exercise of royal

will underlay Richard fitzNigel’s statement that the organisation [ratio] of the Forest lay in the king’s discretion [arbitrium].

3 ANGEVIN ENGLAND In the Angevin period the Forest continued to be very valuable to the king and very unpopular with his people. Although the Dialogue of the Exchequer described the Forests as kings’ places of retreat and their greatest delights, where

they went to hunt and to leave behind their cares, in practice there were large areas of Forest where the king never or very rarely hunted, and the delights that they provided were largely those of revenue or patronage. Forest eyres produced considerable income, most notably the eyre of 1175 which led to more than £12,000 being due. Outside the eyre, the king enjoyed both more regular °° RRAN, ii. no. 488. °° See above, 463-4. °° See above, 457-8. °! DB, i. fos 166v, 167r. °* RRAN, ii. no. 1989.

°° See above, 455. °* Dialogus, i. 11, ed. Amt, 90.

°° See Young, Royal Forests, 23-4, 39. Debts often were not paid at once, but their continuing existence was a useful tool for the king.

468 PART II: ANGLO-NORMAN ENGLAND payments and occasional ones, for example purchases of office.°° The purchasers

clearly wished to make a profit through subsequent income from their Forest administration, and this was an incentive for extortion.” Forest officials were deeply unpopular, the hostility sometimes extending to the king, sometimes being expressed by him.* Criticism particularly emphasised the power and oppression exercised by Alan de Neville, chief forester of Henry II. According to the Battle Abbey chronicle, by the power given him he most maliciously harried the various Forests throughout England with countless and unaccustomed inquisitions. Since he feared neither God nor men, he spared neither ecclesiastical nor secular privileges....'To please an earthly king he feared not to offend the king of heaven. But the outcome showed how much gratitude he earned in the end from the king he thus strove to please. For when he was dying, the brothers of a certain monastery, hoping (as one may well believe) that some of his wealth would be bestowed on their monastery, went to the king and sought permission to bury his body among them. The king showed his feelings about him in this reply: “His wealth shall be mine, his corpse may be yours, his soul the demons’ of hell.’

Extent of the Forest The civil war of Stephen’s reign led to some loss of royal control over the Forest, although it is possible that there were also afforestations, increases in Forests.’°° Losses were reversed in Henry II's reign, and it may be in his time that the Forest reached its widest extent, covering a significant proportion of the realm and witha considerable majority of counties containing some Forest.’” In the second decade of the thirteenth century, the knights of Oxfordshire believed that in Henry II’s reign all the woods of the knights and free men of the county had been ‘placed

°° See e.g. Dialogus, i.5, ii. 11, ed. Amt, 46, 154-6, on the ‘cess [census]’ of woods. °” See Select Pleas of the Forest, xxi; Young, Royal Forests, 52.

"® See generally Bartlett, England, 673-4; Ralph Niger, Chronica, ed. R. Anstruther (Caxton Soc. 1851), 167; Magna vita sancti Hugonis, iii. 9, ed. Douie and Farmer, i. 114; Walter Map, De nugis curialium, i. 9, v. 6, ed. and trans. M. R. James et al. (Oxford, 1983), 10, 466-8, is also critical of king.

Note also John of Salisbury’s arguments based on the Roman law notion that wild animals until captured were the property of no individual; Policraticus, i. 4, K. S. B. Keats-Rohan (Turnhout, 1993), 30-1. Note also ‘Vision of the monk of Eynsham, 41, printed in Eynsham Cartulary, ed. H. E. Salter

(2 vols; 49, 51 Oxford Historical Soc., 1907-8), ii. 348, on Henry II: ‘in revenge for irrational wild animals, which ought by natural law to be available to all in common, he had either punished by death or cruelly mutilated in various limbs humans, who employ reason and are saved by the same blood

of Christ....’ °° Battle Chronicle, ed. Searle, 220-2. See also below, 486. *°° See Crook, “The Forest in Nottinghamshire’, 337.

** Petit-Dutaillis, Studies, 163-4.

19 FOREST LAWS FROM ANGLO-SAXON ENGLAND 469

in regard’, thereby being added to the Forest that formerly only included the king's demesne woods.’ Under Richard and John there was only very limited afforestation, much more considerable disafforestation, as the kings sought to raise money. Payments are recorded in relation to many areas, including Surrey, Bedfordshire, Cornwall, Devon, and Shropshire. The impetus seems to have come from the knights and other free men of the counties rather than the leading men of the realm.’°? However, the king’s beasts might continue to enjoy peace in disafforested areas and perhaps in other areas adjoining the Forest; in particular they were not to be hunted at night or prevented from entering the Forest.'°* Elsewhere men might possess specific hunting rights in areas that had been disafforested, and receive penalties that would previously have gone to the king.’

Royal rights and pleas Fuller evidence provides greater certainty regarding royal rights and Forest pleas. Legislation of Henry II laid down that ‘no-one is to do wrong to the king concerning his hunting or concerning his Forests in any matter’.’°° In an early Forest plea roll we hear of Roger Grim, the reaper of the abbot of Peterborough,

who was taken as he followed four hinds with his dogs.” Attention was also paid to the possession without royal warrant of the means of hunting. Bows and arrows were prohibited, and dogs were prohibited or to be hambled.’ Amercement might arise from more technical offences, for example when a man brought a dead hart to Clarendon without having first obtained a witness that the beast was dead when he found it.’

°* Young, Royal Forest, 20.

"°° See Stenton, English Society, 112; Holt, Magna Carta, 60-1, 72, 339; PR2RI, 145 (barons of Bedfordshire), 155, PR6J, 32, 40, 85, PR9J, 66, 185; Rot. de ob. et fin., 157; Rot. chart., 132; Select Pleas of the Forest, no. 3. *°4 See Assize of Forest 4 (which does not appear in the Prima Assisa), 16 (which does not appear in early copies); Petit-Dutaillis, Studies, 233-5. "°° Such areas are sometimes termed ‘chases’; see esp. Select Pleas of the Forest, cix-cxv. "°° Prima assisa, 1; Assize of Forest, 1; for these texts, see below, 472-3. They are printed in Gesta regis Henrici secundi, s.a. 1184, ed. Stubbs, i. 323-4, and Howden, Chronica, s.a. 1180, ed. Stubbs, ii. 245-7. *°” Select Pleas of the Forest, no. 1. *°® Prohibition of bows, arrows, dogs and greyhounds: Prima assisa, 2; Assize of Forest, 2; PR9J, 38, 55, 137, 141, 215; Select Pleas of the Forest, no. 1 (which mentions a crossbow). Hambling of mas-

tiffs: Assize of Forest, 14. Charter of Forest, 6, allowed hambling of dogs to continue in a regulated fashion, suggesting that objections had been to abuse of the practice. For greyhounds, see also Ps Cn For, 31.

*°? PRISHII, 23.

470 PART II: ANGLO-NORMAN ENGLAND Further rights existed regarding the vert, which we will see were the particular subject of the ‘regard’. Henry II forbade that anyone give or sell anything to the destruction or waste of his woods that were within ‘King Henry [I]’s Forest’. He granted that men might take from their own woods within the Forest what was necessary to them, without waste, under the supervision of the king’s foresters."° Assarts and purprestures were forbidden, or payments taken for those that were made.” Grazing of cattle was regulated.” There were also offences committed by Forest officials, whose duties were

another major concern of the royal legislative texts..3 For example, Henry II laid down that if his forester had the king’s demesne woods in his custody and those woods were destroyed, unless he could show just cause as to why the wood was destroyed, ‘nothing is to be taken from the forester except his body’. This

probably means that the king would imprison him until the forester agreed to pay a fine."* The officials were also to treat others well, swearing that they would

not vex knights or other ‘upstanding men’ concerning what the king granted them with respect to their woods.’* Early Forest plea rolls reveal offences by officials, for example two verderers of Leicestershire being amerced because they contradicted their written submissions to the eyre.”®

Administrative developments The degree of breakdown of Forest administration under Stephen is hard to assess.'” It may be that royal grants of privilege indicate at least an expectation that Forest administration would function, particularly when a grant was as specific as a quittance from pleas and assizes of assarts in Essex."* Other grants, such as the Empress’s concession to the earls of Essex and Oxford of all assarts that they had made prior to joining her side,’ or her restoration to William de Beauchamp of the shrievalty of Worcestershire and the Forests in fee and inheritance, by the

‘'° Prima assisa, 3; Assize of Forest, 3. See also e.g. PRIORI, 187, payments for waste made to the 1198 eyre.

‘™ See Assize of Forest, 10; on payments, see below, 481.

"? Assize of Forest, 7. “'® See also below, 483-4, on the Charter of the Forest. *™ Assize of Forest, 8.

“'’ Prima assisa, 5; Assize of Forest 6; see also Prima assisa, 4; Assize of Forest 5. *'° Select Pleas of the Forest, no. 2.

“'7 See esp. Vincent, ‘New charters of King Stephen’, who overall emphasises the evidence for continuing royal control in some areas, but for decline in others; also H. A. Cronne, The Reign of Stephen, 1135-54 (London, 1970), 232-3; Grant, Royal Forests, 15. *® RRAN, iii. no. 559. "'? RRAN, iii. nos 274, 634.

19 FOREST LAWS FROM ANGLO-SAXON ENGLAND 471

same farm as his father had rendered, may constitute effective surrenders of control in order to strengthen support in the civil war.'”° The evidence of Pipe Rolls suggests that revenue from the Forest was generally

at a low level in the first years of Henry II’s reign, with the exception of an enquiry into assarts conducted in 1155." However, there are some other signs of assertiveness. It is notable that when, at the start of his reign, Henry restored to Roger, earl of Hereford, his father’s holding and that of Bernard de Neufmarché,

and certain former royal demesne lands, he explicitly excluded the Forest of Dean, which the Empress had given to Miles in fee and inheritance.’” The Pipe Rolls suggest increased activity from around 1163.’ Then in the second half of the 1160s came the first significant Forest visitations of the reign, conducted by the chief forester Alan de Neville. These dealt with a range of pleas similar to those of later eyres.’** In 1170, the ‘Inquest of Sheriffs’ looked into the activities of foresters and their servants, including misconduct of their obligations to the king. It was also to be inquired ‘concerning wrongs of the Forests

[forisfactis forestarum]; concerning those who did wrong in his Forests, and stags and hinds and other wild beasts.’ Faced with his sons’ rebellion in 1173-4,

Henry may have ordered the justiciar Richard de Lucy to destroy the royal Forests in England and have the game taken. Following his defeat of the revolt, however, Henry reasserted his control regarding offences committed both by his opponents and his supporters. He heard some Forest pleas in person, others being heard by Alan de Neville and associated justices.”° The Pipe Rolls and comments by chroniclers make clear the impact of the eyre. According to Ralph

de Diceto, a general inquiry was made throughout England, involving earls,

°° RRAN, iii. no. 68. Grants of forestships to be held heritably were not unique to Stephen’s reign; see above, 461, below, 475. For another instance from Stephen's reign, see RRAN, iii. no. 41, where the forestership was held from William de Montfichet. *! See E. Amt, The Accession of Henry II in England (Woodbridge, 1993), 169-71, 190-4; note her warning, at 174, that the Pipe Rolls give only a partial account of Forest revenues. At 173 she suggests that some of the lands classified as assarts by the investigation in 1155 may have been disafforestations by King Stephen. 2 RRAN, iii. no. 391; Rot. chart., 53.

°° G,. J. White, Restoration and Reform 1153-1165 (Cambridge, 2000), 194-6; Young, Royal Forests, 33-4; Amt, Accession, 171.

"4 See e.g. PRI3HIT, 14-15, 171-2, 174; PRI4HI, 44; PRIOHII, 22-3. A further leading figure in the eyres was Alan de Neville ‘the younger’, probably a close relative; e.g. PRI6HII, 32, 48-9. On possibility that the Prima assisa might be associated with the eyre of 1166-7, see below, 473 n. 135. ‘*? Inquest of Sheriffs, 8. "°° See Gesta regis Henrici secundi, s.a. 1175, ed. Stubbs, i. 94, 99. See generally D. Crook, “The earliest Exchequer estreat and the Forest eyres of Henry II and Thomas fitz Bernard, 1175-80’, in Records, Administration and Aristocratic Society in the Anglo-Norman Realm, ed. N. Vincent (Woodbridge, 2009), 29-44, at 32-4.

472 PART II: ANGLO-NORMAN ENGLAND barons, knights, and innumerable ordinary people. They had, on oath, to make known to the king or his justices those whom they knew—even by hearsay—to have laid traps for wild animals since the time of the rebellion.’” Chroniclers were shocked that clerics were subjected to such justice, but in 1175-6 Hugh de Pierleone, the papal legate, agreed to the king impleading clerics concerning his Forest.”* Both earlier and later evidence also shows clerics being subjected to Forest laws." In the late 1170s Thomas fitzBernard, chief forester following the death of Alan de Neville, led another Forest eyre.2° Then, when Thomas died in 1184, new arrangements were made. Howden tells us that the king divided the Forests into many parts, and for each he appointed four justices, two clerics and two knights.

And in each part he appointed two servants of his household, keepers of hunting and vert, over all other foresters, both those of the king and those of barons and knights. And after this, he made these justices and servants swear to enforce certain assizes of the Forest." In his earlier work, the Gesta regis Henrici secundi, Howden follows this with a text headed ‘Assizes of the Forest’; this can be referred to as the ‘Prima assisa’, from its opening words.’ In his later work, the Chronica, he does not give this text but refers to an Assize of the Forest recorded earlier in his book. This is a lengthier text that appears in a collection of the laws of England included under the year 1180."* This Forest Assize includes the “Prima assisa’ but also further material and specifies that the Assize was made at Woodstock. The relationship of the texts is not entirely clear."4 It seems unlikely that Howden, who acted as a Forest justice on the subsequent eyre, wrongly positioned the “Prima

assisa in his Gesta, although it is possible that similar articles had been used in

7 Lawsuits, no. 480A. For the Pipe Roll evidence, see Grant, Royal Forests, 17-18, Young, Royal Forests, 38.

8 Councils and Synods, I, no. 169. On Howden’s attitudes, see also J. Gillingham, “Writing the biography of Roger of Howden, king’s clerk and chronicler’, in Writing Medieval Biography, 750-1250: Essays in Honour of Professor Frank Barlow, ed. D. Bates et al. (Woodbridge, 2006), 207-20, at 210-11. "°° See e.g. PR31HI, 56; PR31HII, 171; Assize of Forest, 9, 13; Select Pleas of the Forest, |xxxviii; Grant, Royal Forests, 80-2. *°° See Crook, ‘Earliest Exchequer estreat’. "** Gesta regis Henrici secundi, s.a. 1184, ed. Stubbs, i. 323. Howden, Chronica, s.a. 1184, ed. Stubbs, ii. 289-90, says that he sent them to plead the pleas of the Forest according to the Assize of the Forest. **? Gesta regis Henrici secundi, s.a. 1184, ed. Stubbs, i. 323-4. “°° Howden, Chronica, s.a. 1180, ed. Stubbs, ii. 245-7; this is the text referred to in my footnotes as ‘Assize of Forest’.

*** For discussion, see Richardson and Sayles, Law and Legislation, 128-30; J. C. Holt, “The assizes of Henry II: the texts, in The Study of Medieval Records: Essays in Honour of Kathleen Major, ed. D. A. Bullough and R. L. Storey (Oxford, 1971), 85-106, esp. 89, 91, 97-100; D. J. Corner, “The texts of Henry II’s assizes, Law-Making and Law-Makers in British History, ed. A. Harding (London, 1980), 7-20, at 9-13.

19 FOREST LAWS FROM ANGLO-SAXON ENGLAND 473 eyres earlier in his reign.%° The lengthier text may represent clarifications that were sent to the justices once the eyre was under way.*° Alternatively, it may be that some sets of justices had fuller written instructions than others, and that Howden obtained one of the fuller sets after he had completed the Gesta. The texts deal with issues such as the prohibition of hunting, prohibition of the possession

of bows or dogs, the protection of the vert, and the conduct of foresters.’” The Pipe Roll of the following year contains numerous references to Forest offences against the Assize.** The new chief justiciar of the Forest, Geoffrey fitzPeter, played the leading role in the eyre that carried out the instructions contained in the Assizes of the Forest. Others visited the north, counties bordering Wales, and the south-west.° Extensive as were these visitations in Henry II’s reign, their focus was very largely offences concerning vert, rather than the hunting of beasts, in contrast to the Forest eyres in the reigns of his sons."?°

In 1189, Queen Eleanor ordered that all those who had been imprisoned solely by royal will were to be released quit and that those imprisoned ‘through common justice [per commune rectum] were to be free if they found pledges that they would stand to justice. Those who had been taken in relation to the Forest were to be delivered quit, and all outlawed in relation to the Forest were to regain the peace, quit of Forest wrongs." Howden reports a further burdensome Forest in eyre in 1198, under the chief justiciar of the Forests Hugh de Neville; the Pipe Rolls reveal the leading role played by the chief justiciar, Geoffrey fitzPeter. For pleas of the Forest in each county the justices were to gather archbishops, bishops, "°° PR31HII, 73; Corner, “Texts of Henry II’s assizes’, 10. Young, Royal Forests, 34, suggests that the evidence regarding the types of plea heard before the 1166-7 eyre fits with the Prima assisa; see also Holt, ‘Assizes’, 98.

°° Corner, “Texts of Henry II’s assizes’, 11; Corner, 13, sees clause 12 probably as a ruling of early 1185. Clauses 13-15 may be post-1184 additions, and clause 16 is certainly much later; see Holt, ‘Assizes’, 98-100. See also Holt, Magna Carta, 302 n. 30, on the proem. "°” See further, below, 474. "°° E.g. PR31HIL, 18, 19, 22, 24; see 211 for ‘assisa de foresta’.

"°° For Geoffrey, see PR31HII, 18 (Essex), 23 (Berks.), 51 (Northants. 59 (Hunts.), 103 (Leics.), 108 (Oxon.), 113 (Notts. and Derbs.), 121 (Worc.), 138 (Bucks.), 170 (Sussex), 193 (Wilts.), 211 (Hants.),

237 (Surrey). For other justices of this eyre, see PR 31HII, 73 (Yorks), 152 (Northumberland) 186 (Cumberland): Erneis de Nevill, Nigel son of Alexander, Roger of Howden, Geoffrey de Haia, Richard of Hungerford, Henry Norreis; 128 (Salop.): Robert del Broc and Roger Muisson; 147 (Glos.), 167 (Staffs.): Robert de Haselega, Nicholas le Bret, and Robert del Broc; 199 (Heref. in Wales): Robert de Haselega and William of Stanton; 162 (Devon): Peter of Lincoln, Ralph of Hanton, Ralph de Hospicio, and Ralph Hose; 179 (Dorset): Robert Belet and Ralph de Hospit’; 202 (Cornwall): Robert son of Thomas, Robert Belet, and Peter of Lincoln. Further hearings of pleas, in 1186-7, are recorded in PR33H1I, 88, 95, 139, 168.

"4° See Crook, ‘Earliest Exchequer estreat’, esp. 31. “* Howden, Chronica, s.a. 1189, ed. Stubbs, iii. 4; cf. Charter of Forest, 15. Note how Forest offend-

ers were treated similarly to those punished by royal will.

474 PART II: ANGLO-NORMAN ENGLAND earls and barons, and all free tenants, and from each vill the reeve and four men, to hear the king’s orders.’*? Howden then gives a text of a royal assize and orders concerning the Forest. Again the text has some problems, for example how to divide between ‘assize’ and ‘orders. However, it is best to see it as essentially an 1198 reissue of the 1184 Assize, with some changes and additions, and also possibly with some accretions to the original 1198 articles, made soon enough to have been included by Howden whose work stops in 1201.'# Again it is hard to tell how far the text involves innovation, how far it simply sets down existing practice. For example, the 1198 but not the 1184 text records payment for cropped assarts, but such payments are mentioned in the Dialogus at the end of the 1170s."4 Under John, there were Forest eyres in 1199-1201, 1207-10, and 1212, their profits contributing to the major needs of royal finance. However, there were also administrative changes that fit with the disafforestations already noted and with further concessions to be discussed later.’** The 1212 eyre was followed by a more particular enquiry into the actions of royal officials, at least in the north of the realm.'*°

Officials The severity of criticism to which we have seen the head forester subjected is an indication of his power.” He was the leading figure in the Forest eyre, and at least Hugh de Neville in John’s reign seems to have had a separate exchequer that sat at Nottingham and Marlborough for the collection of Forest revenues.’** Although the position was not hereditary, Hugh de Neville was probably the grandson of the Alan de Neville, Henry II’s notorious chief forester.’

“* Howden, Chronica, s.a. 1198, ed. Stubbs, iv. 62-3; PRIORI, 16, 63, 72, 104, 124, 136, 149, 159, 164, 174, 186, 222, 227. For activities of other Forest justices, see D. Crook, “The Forest eyre in the reign of King John’, in Magna Carta, ed. Loengard, 63-82, at 71.

“S Howden, Chronica, s.a. 1198, ed. Stubbs, iv. 63-6; I refer in footnotes to this text as ‘Assize of Forest 1198’. Holt, ‘Assizes’, 99, sees the surviving text as formed bya process of accretion. Richardson and Sayles, Law and Legislation, 128-9, seem to question the association with 1198, but their reasons for doubting Howden are not made clear. See also the analysis in Crook, ‘Forest eyre in reign of King John’, 67-8. “™* See below, 481.

“Note also that in 1205, as part of a general release of those in prison, John ordered the release of all held for Forest offences except those taken with hunted beasts and convicted of hunting. The latter were either to find pledges that they would not again do wrong in the Forest or to abjure the realm; Rot. lit. pat., 1.54; cf. below, 521, on the general release in 1189. *“° Crook, ‘Forest eyre in the reign of King John’, 70-80. See also Rot. lit. cl., i.125, 129; Holt, Magna Carta, 211-12.

“7 See above, 468. “8 See e.g. Rot. lit. cl., i. 38. “° ODNB, ‘Neville, Hugh de’.

19 FOREST LAWS FROM ANGLO-SAXON ENGLAND 475 As in the Anglo-Norman period, there were wardens of individual Forests, some of whom inherited their offices, and many of whom paid for their position, whether

inherited or not.’ There were also within each Forest lesser royal foresterships, some of which were heritable." Many royal serjeants held for their service in the king’s Forest, including serving as foresters.** Woodwards, that is those responsible for non-royal woods within the Forest, were integrated into the overall system; the 1184 Assize records the king’s order that all who had woods within the king's Forests were to appoint suitable foresters in them, and they themselves were to be pledges for the foresters or find suitable pledges who could make amends if the foresters did wrong in anything that pertained to the lord king.” This text also records the king’s order that in each county in which he had hunting, twelve knights were to be appointed to look after his hunting and vert together with

the Forest, and also four knights to deal with grazing within the Forest and the receipt of his pannage.** The former were by 1198 known as verderers, the latter by 1190 as agisters.’® Verderers tended to be knights or significant landholders with

property in the Forest. Whilst they were to aid the foresters, they also acted as a check upon them, rather as coroners did upon sheriffs.’° A third position was that of regarder, a knight sworn to carry out the regard of the Forest, which preceded the eyre. It is conceivable that the twelve knights mentioned in the 1184 legislation originally had this function as well as duties later belonging to verderers.’” Alternatively, the regarder may always have been separate from the verderer. There is no evidence for the positions of verderer, agister, and regarder having existed before 1135, but one cannot be certain exactly when they were created.

Courts Various courts dealt with Forest matters.°* The term swanimote was used for various meetings, but is most particularly associated with the assembly that

"°° See Young, Royal Forests, 52, Grant, Royal Forests, 96-7. If acleric inherited, he might appoint a deputy; Grant, Royal Forests, 98. For later evidence on duties, see Grant, Royal Forests, 94-11. Various titles were used for men holding positions equivalent to warden ofa Forest. *°t See Grant, Royal Forests, 112-16. "9? See e.g. Book of Fees, i. 4-13.

°° Assize of Forest, 4. On woodwards, see also Grant, Royal Forests, 120-2. *°* Assize of Forest, 7. The same clause gives further details on times of agisting, the taking in of livestock for grazing and feeding. "°° Verderer: Assize of Forest 1198, 3. Agister: PR2RI, 137; Charter of Forest, 9. °° See Grant, Royal Forests, 127-8; below, 508, on sheriffs and coroners. *°” As suggested by Grant, Royal Forests, 125.

°° Those living in Forest areas might also owe suit to and would be justiciable in ordinary courts, dealing with non-Forest matters.

476 PART II: ANGLO-NORMAN ENGLAND regulated grazing and pannage; swanimote means assembly of swineherds. In 1217 the Charter of the Forest laid down that there were only to be three swanimotes a year, one a fortnight before Michaelmas (i.e. 15 Sept.) when the agisters would gather for the agisting of the king’s demesne woods, that is the taking in of livestock for grazing and feeding; the second around St Martin's day (11 Nov.), when the agisters would receive pannage payment; and a third at the start of the fortnight before the feast of John the Baptist (i.e. 10 June), for the fawning-time of the king's beasts. These, according to the Charter, were to be meetings solely of royal servants—foresters, verderers and agisters at the first two, foresters and verderers

at the third.*° In this sense the swanimotes as mentioned in the Charter of the Forest were administrative meetings, rather than judicial courts. The same clause of the Charter of the Forest mentions another type of assembly, which historians call a court of attachment. Every forty days throughout the year the verderers and foresters were to come together to view attachments concerning Forest, both concerning vert and hunting, by presentation of those foresters, and in the presence of those attached. Later evidence suggests that one such court was to be held for each bailiwick into which the Forest was divided. These courts only tried minor offences concerning the vert, with more serious ones going to the eyre. As for offences concerning beasts, despite what the Forest Charter says, later judicial records do not mention offenders finding pledges in the attachment court.’® However, the Charter of the Forest may give a misleading impression of clear categorisations, and there remains the possibility that accusations were made in

local Forest courts. King John’s court heard Simon of Lindon appeal Roger of Eston, that Roger, maliciously in order to harm Simon, who was his lord, had ‘in the swanimote’ appealed Michael de Hauville, his man, concerning a certain deer, which Roger said Michael had taken from Simon’s dogs. Michael was prepared to prove that it was Roger who had taken the deer. Roger denied the felony, said that he had not taken the doe, and stated that the plea was attached in the presence of the justices of the Forest.’ Here it sounds as if the initial appeal was made before a local Forest court, referred to as a swanimote, and that Roger argued that it was to come to trial before the Forest eyre.’” “°° Charter of Forest, 8. The Charter of the Forest was issued at the same time as a second reissue of Magna Carta in 1217, replacing the chapters of the 1215 Magna Carta concerning the Forest. It is printed in Select Charters, 344-8. Note also Select Pleas of the Forest, xxx.

"°° See Select Pleas of the Forest, xxx-xxxvi. Select Pleas of the Forest, xxxi, suggests that the division between minor and major wrongs may have differed between Forests. “8! See CRR, vi. 86; also PRI4J, 134, for Simon owing 50m. for an appeal against Roger of Eston,

of which he was convicted, and another 3m. for having an enquiry concerning an appeal between himself and Michael, his man. *©? See Rot. chart., 204, 214b, for references to ‘suits [sectis] of swanimotes and of all other pleas of the Forest’; note also Select Pleas of the Forest, xxxvi-xxxvii.

19 FOREST LAWS FROM ANGLO-SAXON ENGLAND 477 According to the Dialogue of the Exchequer the ‘visitation of the woods, which

they call in the vernacular the “regard”, was held every three years, a period also mentioned in the Forest Charter.’* The visitation was to be carried out by the regarders in each Forest. Immediately preceding the text of the 1184 Assizes in the ‘Book of the Laws of England’ included in Howden’s Chronica, appears our earliest set of articles of the regard, with the heading ‘Assize of the King concerning the Forests of England." These articles give the major concerns of the regard: assarts, old and new; purprestures; waste of the king’s demesne woods and of other woods; the king’s hedges and fences; mines, eyries, and forges.’*® Again part of the purpose was to keep check on the activities of the foresters. The findings of the regard were probably written down and kept until the coming of the Forest eyre. In addition, later evidence suggests that shortly before an eyre the king would order the sheriff to have a regard made. The eyre dealt with the findings of this and all other regards since the last eyre. Regard and eyre were thus closely integrated.'®°

Like the general eyre, Forest visitations were slightly more common in the period 1166-90 than thereafter. Again like the general eyre, the justices received a set of instructions, the various Assizes of the Forest being the equivalent of the articles of the eyre. However, the Forest eyres generally were not conducted by groups of justices on various circuits, but were dominated by the chief justiciar of the Forest, thus rather resembling the visitation enforcing the Assize of Clarendon in 1166. The visitation from 1184 followed a rather different pattern, but in John’s reign only in 1212 was the country divided into circuits for the Forest eyre.’” The 1184 Assize of the Forest stated that ‘the king ordered that earls, barons, and knights are to come at the summons of his master forester, as they wish to defend themselves lest they fall into the king’s mercy, for pleading the pleas of the lord king concerning his Forests, and for doing his other business in the county. Archbishops and bishops may have been summoned in similar fashion, as may free tenants and other men.’* The text makes it sound as if the summons came

"°° Dialogus, i. 11, ed. Amt, 88; Charter of Forest, 6, see also Charter of Forest, 1, specifying that the regarders should hold regards as at the time of Henry ITs first coronation. Note also PR22HII, 89, for a sheriff rendering account concerning £74 15s. 10d. from the county of Lancaster ‘so that the regard of the Forest may be placed in respite until another regard.’ For the three-year period, see also Assize of Forest 1198, 11.

*°* Howden, Chronica, s.a. 1180, ed. Stubbs, ii. 243-4. “°° For the conduct of the regard in the time of Henry III, see Grant, Royal Forests, 43; pre-Henry III evidence is lacking. "°° See Select Pleas of the Forest, xxvi-lxxvii, Grant, Royal Forests, 45,55. "7 See above, 472, on the eyre of the mid- to late 1180s.

"8 Assize of Forest, 11, noting the variant in the Vespasian manuscript. On ‘other business’, see below, 485.

478 PART II: ANGLO-NORMAN ENGLAND directly from the master forester, although it seems possible that the lesser men were summoned by the sheriff at the master forester’s order. The summoned may have included those in the proximity of the Forest as well as those who lived within it; the roll of the Rutland eyre of 1209 records that ‘the verdict of the knights of the county of Rutland is that, at the summons of the justices of the Forest, there ought to come to the pleas of the Forest all men of the county of Leicester together who dwell up to two leagues outside the Forest.'®° The session of the eyre was usually

held at the county town, and dealt with pleas from all the Forests of the county.’ The eyre produced lists of amercements which were passed to the treasury,” and—at least from John’s reign—more extensive plea rolls that were retained by the chief justice of each group.” The king might hear Forest pleas in person. We have seen Henry II do so in 1175, in the context of a nationwide eyre, and King John did so outside the eyre.” In addition, as with other pleas, men might pay to have their cases heard by the king, as when Ralph de Andeville offered 10m. so that he might come before King John or his chief forester to answer concerning the matter because of which he had been seized.”

Procedure and punishment Evidence for the prosecution of Forest cases even at the eyre is limited, so the following is a statement of possibilities rather than a full account.’ As with other offences, many suspects fled, a few to sanctuary in churches, most to destinations unknown and the prospect of outlawry.’”° However, the accused might be arrested having been caught in the act. An early case has a forester follow a trail of blood in the snow. When he reached the house to which the trail led, he sent for the verderers and other good men. They then searched the house, found the flesh of a doe, and seized the man whose house it was. He was placed

"°° Select Pleas of the Forest, no. 2. A league is probably about three miles. '’° Select Pleas of the Forest, nos 1-2; Grant, Royal Forests, 67. ‘7! See e.g. PR29HII, 56, PRIORI, 174; Crook, ‘Earliest Exchequer estreat’. Note also PRI4HII, 44. "7? See esp. PR2J, 254. For the surviving earliest rolls, see Select Pleas of the Forest, nos 1-3. *”° See above, 471; Crook, ‘Forest eyre in the reign of King John’, 71-2. "7% PR6J, 172. See also above, 476, on CRR, vi. 86, where a Forest accusation underlies the case. For later cases, see Grant, Royal Forests, 72-4. ‘’° For later procedure, see Grant, Royal Forests, 56-65, and on the fourteenth century, N. Neilson, ‘The Forests, in The English Government at Work, 1327-1336: i. Central and Prerogative Administration, ed. J. F Willard and W. A. Morris (Cambridge, MA, 1940), 411-18.

‘7° For a case involving both sanctuary and possible outlawry, see e.g. Select Pleas of the Forest, no. 3; for sanctuary, see also PRIORI, 223; for outlawry, see also e.g. Select Pleas of the Forest, no. 1, PR26HI, 125.

19 FOREST LAWS FROM ANGLO-SAXON ENGLAND 479 in prison, where he died.”” Other offenders caught in the act found pledges to appear before the eyre.’”*

If the offender was not caught in the act, officials might uncover an offence, and then inform the foresters and verderers who would pursue the offender.”? Or if a royal beast in the Forest was found dead, the foresters and verderers would hold an inquiry normally through the four neighbouring vills as to the cause and as to the identity of any offender.'*° Those accused would be arrested until they found pledges to appear before the eyre. If they could not find pledges or if they were frequently accused, they were imprisoned. According to the 1184 Assize of the Forest, the king ordered that if someone committed wrong concerning his Forest once, secure pledges were to be taken from him; and if he did wrong again, pledges were to be taken again; if he did wrong a third time, no pledges were to be taken but rather his body was to be taken, that is he was to be imprisoned."

On occasion, the chief forester became involved in local activity, as when a forester seized a man, together with two dogs, for taking a hart. He handed them over to another man, who by writ of Hugh de Neville, the chief forester, placed [dimisit] the man, and the dogs, and the dead beast, to be kept safely until the pleas of the Forest.’®

At the eyre, the foresters and verderers presented, probably in writing under the verderers’ seals, details of offences and the names of offenders and suspects.’® Other cases would arise from the rolls of the regard."*4 Further forms of accusa-

tion were also possible. There is later evidence for presentments by local juries or by neighbouring vills, and such accusations could have been made in the Angevin period.’® There is also very occasional evidence in both Pipe Rolls and plea rolls for the use of approvers, who accused their associates of Forest offences.’*® Likewise, there is some evidence of individuals bringing appeals ‘’7 Select Pleas of the Forest, no. 1. "78 See e.g. Select Pleas of the Forest, no. 1.

‘7° See e.g. Select Pleas of the Forest, no. 3, where the officials were serjeants of the county in Shropshire, who discovered venison in a man’s house. "8° Note Select Pleas of the Forest, no. 2; cf. below, 718, on coroners. "$1 Assize of Forest, 12; see also Pugh, Imprisonment, 20-1. Note also that the Assize of Clarendon

in 1166 had ordered that if a man fled from one county to another for a Forest offence, the sheriff of the second county was to arrest him and guard him until he gave pledges; Assize of Clarendon, 17. For later evidence on the sheriff and custody, see e.g. Select Pleas of the Forest, no. 1. "°* Select Pleas of the Forest, no. 3. The custodians, named in the roll, failed to produce the accused

or the venison or the dogs before the eyre. "8° See Charter of Forest, 16. Note also Select Pleas of the Forest, no. 3, for verderers being amerced

because they contradicted their writing. "* See above, 477. "8° For the later evidence, see Grant, Royal Forests, 60. "8° See PRI7HII, 40; Select Pleas of the Forest, no. 1.

480 PART II: ANGLO-NORMAN ENGLAND concerning Forest offenders, as in the case of Simon of Lindon and Roger of Eston cited above.” Formal denial followed accusation.'*® Plea rolls reveal elements of pleading, for

example a man imprisoned when deer bones were found in his house stated that the dogs of Walter of Preston used to be kenneled at his house. Walter’s hunters ate the venison, from which came the bones, and Robert vouches the aforesaid Walter to warranty concerning this; and let him have him tomorrow. Walter comes and warrants him, saying that his dogs were kenneled in his house for fifteen days while he was hunting bucks."*°

In the same case, testimony was brought by the foresters, that the animal remains were those of beasts that Walter’s hunters had taken. Indeed the foresters and verderers might give their opinion as to the guilt of a suspect: The foresters found in the wood of Nassington a doe with its throat cut, and nearby they found Henry the son of Benselin lying under a certain bush. And they took him and put him in prison. He comes before the justices and denies that he ever knew anything of that doe, except only that he used to go into that wood to find his horse. The foresters took him and led him to that doe. The foresters and verderers, being asked if he was guilty thereof or not, say that they do not think that he is guilty, but they believe rather that Richard Gelee the reaper of Newton is guilty thereof, because he fled as soon he heard that the aforesaid Henry was taken.’

Some accusations, presumably those brought by appeal, might go to trial by battle.’* Others might go to ordeal by water.” We also hear of the accused making a payment for a jury concerning the case.’ More commonly, at least as far as the early plea rolls show, it was the court or justices who decided that further enquiries should be made in order to allow them to reach a judgment.’ The frequency with which the death penalty or other corporal punishment was used for Forest offences is uncertain.’ The ‘Prima assisa’ recorded the king’s

wish that henceforth full justice be done, such as had been done in Henry I’s

*®7 See above, 476; note also PRI4HII, 137-8, PRISHII, 54. "88 See e.g. Select Pleas of the Forest, no. 1. "8° Select Pleas of the Forest, no. 1. "°° Select Pleas of the Forest, no. 1. *°! Note PRIGHII, 109; see also CRR, iv. 274.

** See e.g. PRISHII, 10; note also Lawsuits, no. 503, PRI3HII, 138, neither of which was definitely before the Forest eyre. Cf. Ps Cn For, 11-13, on ordeal and Forest offences. °° See e.g. PR2J, 188. Note also Grant, Royal Forests, 61. "4 See Select Pleas of the Forest, ed. Turner, nos 1, 2.

°° According to William of Newburgh, Henry II was more merciful in Forest matters than his grandfather had been, preferring punishment by exile or imprisonment; William of Newburgh, Historia rerum Anglicarum, iii. 26, Chronicles of Stephen etc., i. 280.

19 FOREST LAWS FROM ANGLO-SAXON ENGLAND 481 time, that is the convicted offender was to lose his eyes and testicles. Offenders

were not to trust that they would have mercy about such matters because of their chattels, as had hitherto been the case. The 1184 Assize of the Forest omits the specification of mutilation, but this reappears in the 1198 Assize.’’° The 1198 text, in a later clause, also differentiates between offences concerning beasts, which led to mutilation, and those concerning the vert, which led to monetary amercement.’” The large proportion of cases in which suspects fled may also suggest that they feared for their lives or limbs, rather than just for their goods, which anyway would be sacrificed by flight.’** The Charter of the Forest, there-

fore, was reducing claimed royal rights of punishment when it specified that no-one was to lose life and limb for the royal beasts, but if he was seized and convicted of taking of beasts, he was to pay a severe financial penalty [graviter redimatur], if he has the wherewithal to pay. If not, he was to be imprisoned for a year and a day in the king's prison. After that year and day, he might leave prison if he could find pledges; if not, he was to abjure the realm.’

In practice, Henry II and his sons seem to have used amercement much more than physical punishment, for offences concerning the beasts as well as for those concerning the vert. Many amercements came from pledges who had failed to produce the accused and from vills or tithings and frankpledges who had failed in their duties.”°° Much larger were the amercements that foresters might suffer for maladministration of the Forest, and some such offenders lost possession of their land and chattels until they made a large payment to the king.”” Additional payments, as we have seen, had to be made for cultivated assarts. The 1198 Assize specified a rate similar to that in the Dialogus, of 1s. per acre of wheat or rye, 6d. per acre of oats, barley, or various other crops.?”

°° Prima assisa, 1; Assize of Forest, 1, Assize of Forest 1198, 1. As Holt ‘Assizes’, 98-9, argues,

Assize of Forest, 12, requiring pledges from Forest offenders, must have concerned process, not punishment; there seems no reason to suggest that placing under pledges was considered sufficient penalty for the first two Forest offences a man committed. Note also Ps Cn For, 14-16, on punishment. °” Assize of Forest 1198, 14. 8 See Young, Royal Forests, 41-2. For flight ‘pro retto foreste; see also e.g. Glastonbury, ed. Stacy, 121.

°° Charter of Forest, 10. *°° See Select Pleas of the Forest, nos 1-3. *°" See e.g. J.C. Holt, The Northerners (Oxford, 1961), 161-2.

*°? Assize of Forest 1198, 16; Dialogus, i. 11, ed. Amt, 86-8; for payment in Henry II’s reign, see Crook, ‘Earliest Exchequer estreat’, 31. Young, Royal Forests, 47, states that in John’s reign records of regard suggest that payment was at double the rate mentioned by Richard fitzNigel. On assarts, see also Select Pleas of the Forest, |xxvii-lxxxi; on purprestures, lxxx-Ixxxiii; on waste, Ixxxiii-Ixxxiv.

482 PART II: ANGLO-NORMAN ENGLAND Punishment thus merged into a licensing system for assarting and also a continuing source of rental payments. A further possibility was to exclude the accused from living in the Forest.?° In the case involving the hunters of Walter of Preston cited above, another man who was accused denied everything. It was adjudged that because he had spent so long in prison, to the extent that he was almost dead, he was to go quit, and was to live outside the Forest. In contrast, in another case at the same session,

it was provided that a man who, it was decided, was not suspect might find pledges concerning his fealty and remain in the Forest, should he return from the pilgrimage to which he was committed.’ Royal concessions and the charters We have already noted Richard I and John granting disafforestations,’® and the Angevin kings, like their Norman predecessors, also granted individuals specific rights concerning the Forest.”°° In the later years of his reign John also made wider concessions.”*” In 1207 he instructed Brian de Lisle that the king’s chief

barons passing through his administrative district, concerning whom Brian had informed the king, might take wild animals, in such a way that Brian knew who they were and what and how much they took. Most strikingly, John adds an explanation: ‘since we do not have our Forests and our beasts for our use alone, but also for the use of our loyal men [ fideles]. But make sure to guard them well regarding poachers [latrones], because beasts are made more frightened by poachers than by the aforesaid barons.?°* The Barnwell annalist states that in 1212 John took pity on those afflicted by foresters’ new exactions throughout almost all England. He remitted the exactions, and compelled those in charge of the

*°° This may be the meaning of PRIORI, 223: a man owed 5m. ‘so that he could abjure [ejurare] the Forest’, when he had fled to a church because of a hunting offence [pro venatione]. *°* Select Pleas of the Forest, no. 1. *°° See above, 469.

*°° See esp. Rot. chart, i. 194, a grant to Geoffrey fitzPeter. Note also Dialogus, i. 11, ed. Amt, 86, on the exemption of barons of the Exchequer concerning assarts made in their own demesnes before the death of Henry I. *°” Note also Roger of Wendover, Flores historiarum, ed. H. O. Coxe (4 vols and appx; English Historical Soc., 1841-4), iii. 227, on concessions made in 1209. No earlier source supports Roger’s

statement; cf. Dunstable annals, s.a. 1209, Annales monastici, ed. Luard, iii. 31, on destruction of ditches, hedges or fences, and houses connected to assarts, even old ones, throughout Essex, and the imprisonment of eighty foresters. *°8 Rot. lit. cl., i. 85. Cf. Charter of Forest, 11: ‘Any bishop, earl or baron passing though our Forest may take one or two beasts by view of the forester, if one is present; if not, he is to blow a horn, so it does not seem that he acts furtively.’

19 FOREST LAWS FROM ANGLO-SAXON ENGLAND 483 foresters to swear that they would only demand those things that they had been accustomed to demand in his father’s time.”” Such concessions, as well as the harsh exploitation of royal Forest rights by king and officials, provide the background for the treatment of the Forest in

Magna Carta and associated documents. The text known as the “Unknown Charter’, which represents some baronial demands in 1215, had a simple and radical demand, the disafforestation of all Forests afforested by Henry I], Richard, or John. Furthermore, no man was to lose his life or limb because of a beast.”° Knights who had woods in the king’s ancient Forests were to have wood for their own dwellings [herbgagia] and for burning. They were to have their own foresters, the king only having one who would look after his beasts." Magna Carta conceded rather less. Only John’s own afforestations were immediately to be reversed, and these were very limited.”* His brother and father’s afforestations would only be dealt with after John’s proposed crusade.’ The 1216 reissue of Magna Carta stated simply that ‘all Forests that were afforested in the time of King John our father are immediately to be disafforested’,** but the Charter of the Forest issued by the minority government of Henry III in 1217 shows that the demands recorded in the Unknown Charter had not been forgotten. Henry II’s afforestations were to be viewed by good and lawful men, and disafforested if they involved the woods of others and harmed those woods. If they had been the king’s demesne wood, they were to remain Forest, save the rights of those who had customarily had pasturage and other things in that Forest. All woods afforested by Richard or John were immediately to be disafforested, unless they were royal demesne woods.”* Magna Carta and the Charter of the Forest both specified that ‘men who live outside the Forest henceforth are not to come before our justiciars of the Forest by common summons, unless they may be in a plea, or pledges of any person or

*°° Memoriale fratris Walteri de Coventria, ed. W. Stubbs (2 vols; RS, 1872-3), ii. 207. ** “Unknown charter’, 9, 12. The ‘Unknown charter’ is printed in Holt, Magna Carta, 427-8. *™* “Unknown charter’ 10. The meaning of herbgagia is not entirely clear; Holt, Magna Carta, 339, takes it as the equivalent of herbagia, pasturage, but a more likely emendation may be ‘herbergagia, dwellings.

*"* Magna Carta, 47 (Articles of the Barons, 47); see above, 469.

2" Magna Carta, 53. *** Magna Carta 1216, 38. **° Charter of Forest, 1, 3.

484 PART II: ANGLO-NORMAN ENGLAND people who have been attached for a Forest offence.”® In addition, in a clause notable for its emotional tone, Magna Carta specified that all evil customs involving Forests and warrens, and involving foresters and warreners,

sheriffs and their officials, river banks and their keepers, are immediately to be investigated in every county by twelve sworn knights of that county who should be chosen by worthy men of that county; and within forty days of the enquiry having been made are to be totally destroyed by these men, thus that they can never be recalled, in such a way that we may know beforehand, or our justiciar if we are not in England.”

Writs relating to the enquiry survive, although letters from Stephen Langton and others would soon have to insist that the clause was to be understood in such a way that ‘all those customs ought to remain without which Forests cannot be preserved’. Even so the implementation of the provisions helped to spark the renewal of civil war.” In the 1216 reissue, the matter of Forests and foresters, warrens and warreners was placed amongst the difficult issues requiring further counsel.” Despite these problems, however, the findings of the 1215 enquiries may have underlain the broader scope of the Charter of the Forest.*° If the provisions of Magna Carta did not match the radical nature of some baronial demands, the concessions made in 1215 and reinforced in 1217 still mark a distinct shift from the arbitrariness that had characterised Forest laws.

4 CONCLUSION The Dialogue of the Exchequer stated that the Forest had its own laws, not based on the communi regni jure.””' How far did Forest law operate separately from the rest of the law of the realm? The complete absence of any mention of the Forest in Glanvill, even in the list of pleas pertaining to the Crown, is notable; it simply did not fit into his organisational scheme. Forest law and other royal law operated

*"° Articles of the Barons, 39, Magna Carta, 44, Magna Carta 1216, 36, Charter of Forest, 2. See above, 478, for the possibility that attendance by men dwelling outside the Forest may have been an issue during the 1209 Rutland eyre. *"7 Magna Carta, 48; cf. Articles of the Barons, 39. *"8 See Select Charters, 303-4; Holt, Magna Carta, 496-9. For comment, see Holt, Magna Carta, 340, 352, 366-7. **° Magna Carta 1216, 42.

*2° See Holt, Magna Carta, 384-6. For further analysis of the Charter of the Forest, see PetitDutaillis, Studies, 187-98, Young, Royal Forests, 67-70, Grant, Royal Forests, 138-40. *2" See above, 455.

19 FOREST LAWS FROM ANGLO-SAXON ENGLAND 485 very largely as parallel systems.” Forest pleas were heard in Forest courts, other matters in other courts, even when, for example, a multiple homicide took place

within the Forest.’ If a significant number of men acted as justices on both types of eyre,’** this did not necessarily mean an overlap between Forest and other law; justices could operate according to more than one set of rules, as appropriate. There are signs particularly in Henry II’s reign that some visitations heard

both types of plea. It is possible that this is partly an illusion created by disorderly recording of payments on Pipe Rolls,’* but it is notable that the 1184 Assize of the Forest had ordered attendance ‘for pleading the pleas of the lord

king concerning his Forests, and for doing his other business in the county.’ It may then be that important royal officials dispatched on Forest business could also deal with other matters; Geoffrey fitzPeter would continue to do so under Richard. I. Yet such flexibility of administration need not indicate any confusion between Forest and other types of plea, any more than did the king hearing Forest pleas in his own court; Forest law remained distinct. If on occasion some confusion may have led to a lack of administrative separation,”” more notable is the point made to the Gloucester Eyre at the start of the 1220s, that it was exceptional, a matter of local practice [quod ita solet fieri], that in

the Forest of Dean verderers, in the place of coroners, presented pleas from the Forest to the general eyre.”** Here too there seems no confusion of type of plea, simply a specific and acknowledged administrative arrangement in an exceptional area.’” At the court of Henry II, Forest administration may often have seemed a separate, potentially hostile, perhaps disreputable sphere. The finance men, closely tied to the descendants of Roger of Salisbury, and the justice men, often connected to Richard de Lucy and Ranulf de Glanvill, may have been resentful of

*22 See also E. C. Wright, ‘Common law in the thirteenth-century English royal Forest’ (1928) 3 Speculum 166-91; Grant, Royal Forests, 76-87.

*2° CRR, iii. 145. Foresters, perhaps because of their unpopularity, perhaps because of their behaviour, seem notably frequent subjects of criminal accusation. *2* Young, Royal Forests, 32, calculates from the material in the Introduction to PKYJ, iii., that at least nineteen of the forty-four Forest justices identifiable during the Angevin period also acted as ordinary justices. *2° See also Young, Royal Forests, 31. *2° Assize of the Forest, 11.

*7 As suggested by Wright, ‘Common law’, 185-91. Note also Select Pleas of the Forest, no. 3, fora Forest eyre hearing pleas concerning warren. *° Gloucestershire Pleas, ed. Maitland, nos 182, 183. *2? See also Neilson, “The forests’, 423; Wright, ‘Common law, 189-90; Grant, Royal Forests, 77-8.

486 PART II: ANGLO-NORMAN ENGLAND the power of the Neville family and their associated foresters.¥° When Richard fitzNigel has the justiciar Robert earl of Leicester complain of the demands of Alan de Neville’s men, he refers to them as the ‘Alanii’ could it be that both the treasurer and the highly educated justiciar were aware of the barbaric resonance of that name?”

**° For the more extended Neville family and the Forest, note e.g. Select Pleas of the Forest, no. 7. However, note that Thomas fitz Bernard spent his last years, the early 1180s, largely on judicial matters not concerned with the Forest; PKJ, iii. lxvi-lxvii. *°" Dialogus, i. 11, ed. Amt, 90. For knowledge of the Alani, see e.g. Henry of Huntingdon, i. 42, 44, Viii. 128, 130, 145, ed. Greenway, 64, 68, 540, 546; Gervase of Tilbury, Otia imperialia, ii. 10, 16; appx i. 5, ed. and trans. S. E. Banks and J. W. Binns (Oxford, 2002), 290, 382-4, 840; note also the Preface to Justinian’s Institutes. For alternative explanations, see De necessariis observantiis scaccarii dialogus

commonly called Dialogus de scaccario, ed. A. Hughes et al. (Oxford, 1902), 199. Stubbs had suggested the reading ‘Alanorum’,, derived from ‘Alanus’, meaning a hunting dog. The editors say that such a reading might refer to Alan de Neville and Alan de Neville junior. However, they preferred to retain Alaniorum,, taking it to mean the minions of Alan.

2O

Conclusion 1 CONTINUITY AND CHANGE ACROSS 1066 Claimed continuity of law was one element of the Norman presentation of themselves as legitimate heirs of their Anglo-Saxon predecessors. In particular reference was made to the laws of King Edward, the good law of the last legitimate Anglo-Saxon king. The Leges Edwardi Confessoris open as follows: Four years after King William’s acquisition of this land, the king by counsel of his barons made to be summoned throughout all the counties of the land [patrie] noble English men, wise and learned in their law, so that he might hear from them their customs. Therefore twelve men were chosen from each county of the whole land, who first solemnly affirmed by swearing in his presence that, as far as they could, they would pronounce what was set down in their laws and customs, treading the righteous path, passing over nothing, altering nothing by departing from that path.’

The text later tells us that the barons persuaded William to accept these laws.’

Further signs exist of interest in Anglo-Saxon laws amongst those close to the Conqueror. For example, Maurice, bishop of London, who may have been associated with one of the most important post- Conquest manuscripts preserving Anglo-Saxon legislation, had been a chaplain and chancellor of William? Setting aside legitimisation and the preservation of texts, there were marked continuities in the development of law in England across 1066. Many aspects of English and Norman law would have been mutually comprehensible, and the new rulers must have been enthusiastic to maintain the rights and the administrative tools of their Anglo-Saxon predecessors, such as county and hundred courts.* If there was regional variation in law before 1066, Cnut’s laws show no preference

* ECf, Prol., ed. O’Brien, 158. * ECf, 34, ed. O’Brien, 192.

> Wormald, Making of English Law, 236; the manuscript is Cambridge, Corpus Christi College, MS 383. Note also Wormald, Making of English Law, 404-6, for continuing post-Conquest interest in Cnut’s laws. * See above, chs 11 and 12.

488 PART II: ANGLO-NORMAN ENGLAND for personal law, whereby an individual would be treated according to their place of origin rather than the place where the claim arose’ Except in certain matters of procedure and also in the treatment of unexpected death, personal law does not seem to have featured more strongly after 1066.° It is hard to tell how far the new rulers acquired or maintained understanding of Anglo-Saxon custom, although I have already suggested that some confusion may have occurred, for example over lordship practices.’ Preservation of vernacular copies of Anglo-Saxon legal texts, most notably Cnut’s code, may indicate that a practical as opposed to antiquarian or ideological interest in pre-Conquest law was maintained into the mid-twelfth century.® Glossaries show some continuing understanding of Anglo-Saxon terminology even in the later twelfth century.° Custom could be preserved in the minds of those important to the operation and decisions of courts.’

More broadly, the nature of secular legal learning and its role in court did not change dramatically. Essential knowledge involved lists of rights, penalties, and entitlements, essential skills included memory and eloquence, whether on behalf of a party or in settling cases according to proper procedures.” Separation of abstract norm from specific factual situation could occur, but appears less important to legal reasoning than in the late twelfth century.” Such continuities, however, do not preclude the possibility of highly significant change in the period after 1066. The presentation in the Leges Edwardi of benign Norman adoption of Anglo-Saxon practice was not universal. The Canterbury writer Eadmer wrote of William I that he wished ‘to keep in England the usages and

laws that his forefathers and he himself were accustomed to have in Normandy. Although Eadmer’s focus was not secular laws and practices, he stated darkly that ‘their character can be inferred from what William ordained in divine matters. In Eadmer's thoughts may have been the imposition of a form of lordship particularly > See above, 248. ° See above, 332.

” See above, 220-4. * See Wormald, Making of English Law, 253-5, on London, British Library, Harley MS 55 (B). > See esp. the glossary associated with Alexander, bishop of Lincoln; Red Book, iii. 1032-9. See also ECf, 22, ed. O’Brien, 180-2; Howden, Chronica, s.a. 1180, ed. Stubbs, ii. 242. Note further the translations of Anglo-Saxon writs given in Historia ecclesie Abbendonensis, i. 127-30, ed. Hudson, i. 198-200; cf. the misunderstandings shown in another text related to Abingdon and known as De abbatibus; Chronicon monasterii de Abingdon, ed. J. Stevenson (2 vols; RS, 1858), ii. 282. *° See above, e.g. 383, 415.

*" Note also the apparent expertise of the Ramsey tenant Hervey le Moigne; above, 329, Lawsuits, nos 187, 269, 272B (regarding ritual). *? See below, chs 23, 31.

** Eadmer, Historia novorum, i., ed. Rule, 9-10. Note also Hermann, De miraculis S. Edmundi, 23, Memorials of St Edmund’s Abbey, ed. Arnold, i. 58.

20 CONCLUSION 489 closely tied to landholding.’* Such lordship was also manifest in seignorial courts of a form unknown in Anglo-Saxon England.”

There were also changes less intimately linked to the Conquest and settlement. Reform of the Church had significant impact on jurisdiction and on marriage law. Further, such reform, and consequent disputes, influenced the development of land law, and encouraged the classification of forms of landholding. Most notably in the first half of the twelfth century use of the phrase ‘in alms [in elemosinam]’ commonly distinguished many gifts to the Church from those to laymen with their use of ‘in fee and inheritance’."* Other develop-

ments too, including the processes of distribution of land and developments in charter drafting, may have sharpened classification of landholding. Still lacking, however, was abstract reference to other forms of tenure, for example ‘in socage’ or ‘in villeinage’. Such classifications would only emerge in the Angevin period. There were also administrative developments not directly linked to the change of regime, although perhaps stimulated by the kings’ frequent absences in their continental possessions. The development of the justiciarship was closely related

to regency arrangements.” New officials may have emerged or grown more important, especially various forms of local and of itinerant justice. At the same time, there may have been a diminution in the ex officio importance of bishops in royal administration, particularly as the county became very much the sheriff's court. Church reformers sought to minimise ecclesiastical involvement with

secular affairs.* Obviously there remained bishops very prominent in royal administration, but they—like some but probably not all their Anglo-Saxon predecessors—owed their bishoprics to their administrative prominence, rather than vice versa.” Although impossible to prove, there may have been an increase in the use of writing in contexts relating to law, resulting in part from a broader increase in literacy. This applies both to royal administration and to record keeping more

* See esp. Garnett, Conquered England, ch. 2. *? See above, chs 3, 12.

*® See above, 369; Hudson, Land, Law, and Lordship, 89-91 (esp. on the rewriting of charters), 96, 101-2, 104-6. There we occasional exceptions even in this instance, for example with grants ‘in alms and fee’; see e.g. Earldom of Gloucester Charters, ed. R. B. Patterson, no. 5. *” See above, 260-3. *® Note esp. Council at Westminster 1102, 2, Councils and Synods, I, no. 113. On the exclusion of ecclesiastics from blood judgments, see above, 264 n. 53.

*°? See above, 291-7, on judicial privileges enjoyed by bishops and abbots. Note also the appearance in Anglo-Norman England of manuscripts containing nothing but laws, in contrast to Anglo-Saxon manuscripts, which combine legal and other texts; Wormald, Making of English Law, 224.

490 PART II: ANGLO-NORMAN ENGLAND generally.*° Bishop Nigel of Ely ordered a record to be made of all the possessions of his church. He would then know what he might have or what he might take back [recipiat] in demesne, in rent, or in knight service, so that no right belonging to him and taken away from the monastery be lost, but that he might recover from everyone, of whatever condition, regular or secular, and take back and possess without diminution those things that were his own according to the decrees of the fathers and the decrees of the councils.”

There were also some changes in legal learning that underlay later, more significant developments affecting secular law. Church reform emphasised the importance of the canons, and new canonical collections reached England in this period. Some of these were arranged in what is called ‘systematic’ fashion, that is with relevant sections of text appearing under appropriate heads, rather than the original texts being kept as entities.” The author of the Leges Henrici may have been copying such writers in seeking to rearrange systematically the mass of Anglo-Saxon material translated into Latin in the collection known as

the Quadripartitus.* The process may have encouraged him to generalise, to seek underlying principles, even though the scale of his task was such that his achievement was very limited when compared with the late twelfth-century lawbook known as Glanvill.”4

2 DIVERSITY AND UNIFORMITY BY 1135 The possibility of the use of force and violence in the furtherance of disputes persisted.* Some of the clearest evidence comes from the far north and west,” but there is evidence for potentially violent conduct of disputes even in the core of the realm and during the famously peaceful reign of Henry I. When Christina of Markyate’s parents discovered that she had fled in her continuing efforts to escape marriage, they sent out people who were to pursue and capture her and

*® See Hudson, ‘V écrit’, esp. 19-22. See LHP, 79. 2, ed. Downer, 246, for a messenger bearing the king’s writ. Note also e.g. written submissions to courts, parallel to the Old English Fonthill Letter;

e.g. Lawsuits, no. 243. It is possible that there were some formularies for drafting documents; note Historia ecclesie Abbendonensis, ed. Hudson, ii. 95 n. 231. *" Lawsuits, no. 287. *? See e.g. Helmholz, Canon Law and Ecclesiastical Jurisdiction, 68-106. ** See below, 869. ** Hudson, ‘Leges to Glanvill’; Wormald, Making of English Law, 467-8. *° See also above, ch. 1.

*° See Hudson, ‘Faide’; Padel, ‘Geoffrey of Monmouth’, 20-7.

20 CONCLUSION 491 kill anyone whom they found with her.” Nevertheless, evidence for comparative order, and its link to royal power, is strong. For example, in the England of the

first three Norman kings saintly intervention in disputes was often against the oppressions of royal officials, whereas in Stephen’s reign or in France the oppressors were often local knights.” As before 1066, limits can be found to the uniformity of custom and of the administration of justice. Especially in the far north and west of the realm, royal control was more limited than in the south, a fact acknowledged in the granting of privileges and in differences of administrative practice.” Royal authority might rely heavily on the activities of powerful individuals, rather than on the more numerous officials and better established courts and procedures that existed in the rest of the realm.*° Even in some of these areas, however, royal control was being extended, for example with the reduction of comital power after the first years of William Is reign.® The post-Conquest Leges distinguish between customs of Wessex, Mercia, and the Danelaw, reflecting at least ideas of regional custom if not necessarily sharp divisions of contemporary practice.’ They also mention variation by county, as would Glanvill in the late twelfth century-? Yet they also emphasised uniformity, relating it to the king’s court and the king’s power. After mentioning the tripartite division between Wessex, Mercia, and Danelaw, the Leges Henrici on one occasion continues by referring to ‘the formidable power of the royal majesty’, on a second by stating that ‘above are the pleas of the king’s court, which keeps its usages and customs always and everywhere with singular immutability 4 Likewise accounts of cases refer to the ‘law of the land’ or the ‘law of the realm’. Even when these

records come from slightly later texts, they are compatible with the views of the Leges> The degree of uniformity was ensured through the exercise of certain very important rights, particularly over serious offences and failures of justice;

through royal control of county and of many hundred courts; through local *” Life of Christina, 34, ed. Talbot, 94; see also e.g. above, 6. Note the obligation of Robert of Darlaston to ensure the safety of the monks and their servants as they went to and from the markets of Chester and Nantwich; he was also to ‘defend’ the land of the monks against wrongdoers, although this may not necessarily indicate physical defence; Geoffrey of Burton, Modwenna, ed. Bartlett, lvii-lviii (no. 14). *8 See e.g. above, 305-7; D. Barthélemy, Chevaliers et miracles (Paris, 2004).

*? See above, 291-4, on privileges in the north and west, 404 on custom regarding amercements in Herefordshire, e.g. 292, 392, on differences of administrative practice. °° See e.g. Sharpe, Norman Rule in Cumbria, 43, 67, for reliance ona strongman. *" See above, 264. *? See esp. LHP, 6. 2, 9. 10-10a, ed. Downer, 96, 106-8; also Leis WI, 2-3, influenced by IT Cn, 12, 14-15. Note also O’Brien, God’s Peace, 15. °° See e.g. LHP, 6. 3a, ed. Downer, 98; for Glanvill, see below, 855. ** LHP, 6. 2a, 9. 10a, ed. Downer, 96, 108. °° See e.g. Lawsuits, nos 164, 183, 192, 323.

492 PART II: ANGLO-NORMAN ENGLAND administrative presence, sometimes even in lords’ courts;3° and through the activities of the king and his own court, in general in response to requests from disputants. Even under Henry I the king’s court seems to have been distinctly limited in its routine activities compared with that of the Angevin kings, but it could nevertheless exercise a powerful influence. The maintenance of administrative arrangements and royal powers inherited from the Anglo-Saxon period, possible extensions of administrative activity and of the use of writing, and major changes in the nature of land law were the most important contributions of the Anglo-Norman period to the long-term development of English law.

3 THE REIGN OF STEPHEN (1135-54) The powerful rule of Henry I was followed by a succession dispute, baronial rebellion, and civil war. The scale of disruption during the reign of Stephen varied according to place and time, and there is some evidence for the operation of royal justice, both by Stephen and his opponents, Henry I’s daughter the Empress Matilda and her son, the future Henry II.” Nevertheless, the disruption of normal activity, the diminution of royal authority, is very clear. There were many symptoms of fragmentation. Royal control of marriage may have broken down, at least in some significant cases3* The number of earldoms more than tripled by 114129 Earls and other aristocrats gained control of shrievalties and some received grants of county justiciarships.‘° According to the Gesta Stephani, the earl of Gloucester, half-brother and crucial supporter of the Empress Matilda, together with his associates ‘subjected almost half of England, from sea to sea,

to their laws and commands’.” Moreover, the control of at least some lay and ecclesiastical lords over their own men also weakened. A treaty late in the reign shows the earl of Leicester’s concern that his man, William de Alneto, would

°° See above, 325, on the presence of a royal justice at ordeals.

°” See Cronne, Stephen, ch. 9; G. J. White, ‘Continuity in Government, in The Anarchy of King Stephens Reign, ed. E. J. King (Oxford, 1994), 117-43; Amt, Accession of Henry II, chs 2-4. Note also e.g.

the mention of a justice of the king in a manumission document from the reign; Hickes, De antiquae litteraturae septentrionalis utilitate, 14. °* Green, Aristocracy, 366-7.

*° Bartlett, England, 208. “° For shrievalties, see e.g. Green, Aristocracy, 248-9; White, ‘Continuity in government, 126-7, 134; Crouch, Beaumont Twins, 174-5; Redvers, 26-8. For local justices, see above, 266-8. There is no evidence for itinerant justices, although it is possible that, particularly in the first years of the reign, this could simply result from the lack of surviving Pipe Rolls; note White, ‘Continuity in government, 120. “ Gesta Stephani, 75, ed. Potter and Davis, 148-50.

20 CONCLUSION 493 not be obedient and might seek aid from the earl of Chester.*? The Abingdon History shows the capacity of a man of knightly family, backed by friends “who were powerful in war’, to oppose the will of his lord, the abbot. The evidence indicates a reduced role for the king in dealing with land disputes.“ Disputants therefore had to rely more heavily on alternative methods, for example the making of alliances and the use of violence.* A rare recorded instance of the

killing of a claimant in an inheritance dispute is mentioned retrospectively in a letter sent in the following reign by Earl Richard de Clare: While Stephen [Dammartin] had the stewardship and mastery of all the land of Earl Gilbert [de Clare], he unjustly and against reason occupied the land of Pitley, which belonged to William reeve of Bardfield and his heirs, for he cruelly and unjustly made one of William’s sons be killed, because he knew and perceived him to be nearer to his father’s inheritance with regard to possessing the land.*°

Both the powers and the vulnerability of the Church may have increased, with laymen on occasion turning to episcopal protection for their gifts,” and ecclesiastical courts perhaps hearing more land cases,** but also churches having to look to the pope rather than the king against lay oppressors: Bishop Eugenius, servant of the servants of God, to the venerable brethren Archbishop Theobald of Canterbury, and Bishops Alexander of Lincoln, Simon of Worcester, and Jocelin of Salisbury, greeting and apostolic blessing. We have received the serious

complaint of the religious brethren of Abingdon that William Martel, Hugh de Bolbec, William de Beauchamp, John Marshal, and their men and also many other men of your dioceses, are violently invading their possessions, and seizing and taking away their goods, and demanding from them castle-work services that are not owed. Since therefore the duty of our office compels us to subdue usurpers of Church possessions with fitting punishment, by ordering you through papal documents we instruct that you severely urge the afore-mentioned and other men of your dioceses, who invade and seize and vex with unjust exactions the goods of that monastery, that they restore to the monastery what they have taken away, and suitably compensate for the damage and the wrongs inflicted, and utterly desist from their assault. If they remain insubordinate, you are to do canonical justice concerning these matters.* * Stenton, First Century, no. 48. ** Lawsuits, no. 378; Historia ecclesie Abbendonensis, ii. 269, ed. Hudson, ii. 280-2. ** See Hudson, Land, Law, and Lordship, 39, 138-9. *° For an alliance, see Stenton, First Century, no. 6, and the discussion in Hudson, Land, Law, and Lordship, 145-6. *° Lawsuits, no. 470, discussed in Stenton, First Century, 82, Hudson, Land, Law, and Lordship, 144. *” See e.g. Redvers, no. 10. “8 See below, 567; note also e.g. Placita Anglo-Normannica, ed. M. M. Bigelow (London, 1879), 160-2.

*° Historia ecclesie Abbendonensis, ii. 268, ed. Hudson, 278-80. See also Hudson, Land, Law, and Lordship, 99, 142-3, 243.

494 PART II: ANGLO-NORMAN ENGLAND Yet despite such disruptions, the reign did not lead directly to a lasting break in legal development. Characteristic court procedures survived, even if not under royal control. Geoffrey de Mandeville could order a recognition in a land case, just as a royal writ might’° Men argued over inheritances, but apparently according to existing substantive customs. Even more important in the long term may have been the results of royal efforts to correct the problems of Stephen's reign. Henry II’s reconstruction of royal authority aimed at restoring his grandfather's practices, and followed the same patterns, yet his idealisation of Henry I's powers may have led to increased royal claims. At the same time, requests for royal intervention in disputes arising from Stephen’s reign probably encouraged more routine royal actions, in particular regarding land. And finally reconstruction of the old Anglo-Saxon and Anglo-Norman system proved insufficient to deal with increased demands; a rather different form of government would emerge, resting much more heavily on the king’s courts and on representatives of central authority being dispatched to deal with local matters.

°° Lawsuits, no. 309.

Part II]

ANGEVIN ENGLAND

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21

Kings and Law r ‘HE Angevin kings possessed much more extensive territories than had their Anglo-Norman predecessors. In particular they ruled both Anjou and the duchy of Aquitaine in south-western France. Such extensive territories added to the pressure on kings to spend considerable time outside England, leaving others to administer the realm. The cost of defending their French lands, and of seeking to regain Normandy following its loss in 1204, put great pressure on royal finances, and exploitation of royal judicial and legal rights was one means of raising money. Such developments, together with increasing use of writing in gov-

ernment and developments in academic studies, including that of law, provide crucial background to legal change in the period 1154-1215.

1 LAW AND KINGSHIP Kingship, law and justice

The author of the law-book known as Glanvill, writing in the last years of Henry II’s reign, reveals in his Prologue the views of those in the king’s judicial circle: Royal power must not only be furnished with arms against rebels and nations that rise up against the king and the realm, but it is also fitting that it should be adorned with laws for ruling subject and peaceful peoples, so that our glorious king may so successfully pass through times both of peace and war that, crushing the pride of the unbridled and ungoverned with the right hand of strength and tempering justice for the humble and meek with the rod of equity, he may both be ever victorious in wars with his enemies and also show himself continually impartial in dealing with his subjects.’ * See below, Appendix, for changes in sources. * Glanvill, Prol., ed. Hall, 1. For rule in war and peace, see also Dialogus, Prol., ed. Amt, 4; John of Salisbury, Policraticus, vi. 1, ed. C. C. I. Webb (2 vols; Oxford, 1909), ii. 2-8; Inst., Prooem. For critics of the Angevin kings, see below, 844-7.

498 PART III: ANGEVIN ENGLAND Much here is familiar from earlier periods, be it from chroniclers’ descriptions, law-books, or the coronation oath, an oath that Henry II himself swore. The king is ‘the author and lover of peace} He is to be a source of justice for all his people: His Highness’s court is so impartial that no judge there is so shameless or audacious as to presume to turn aside at all from the path of justice or to depart in any respect from the way of truth. For there, indeed, the power of an adversary does not oppress a poor man, nor does favour or partiality drive anyone away from the threshold of judgments.‘

He was to be guided by the laws and customs of the realm, long established and resting on reason, and by the advice of men learned in those laws and customs, excelling in wisdom and eloquence, and skilled in settling disputes, with severity or leniency as seemed best to them? Atthe same time, there were changes. One of the most important is the influence of Roman law. This is manifest in Glanvill’s Prologue itself, elements of which were modelled on the Prologue to Justinian’s Institutes. It is also noteworthy that Glanvill opens his discussion of crime with ‘the crime that in the [Roman] laws is called the crime of lése-majesté, namely concerning the killing or betrayal of the lord king or of the realm or of the army. Treatment of procedure for other crimes is presented as variations on this archetype.° Interest in Roman and canon law was growing across Europe in the twelfth century, but in Henry II’s England the Becket dispute gave particular impetus. Henry's advisers and servants provided an intellectual response to the challenge from the archbishop, and after Becket’s death in 1170 this circle had continuing influence on legal thinking,

The king as legislator As Glanvill indicates, long-standing acceptance continued to give authority to law. However, like their predecessors, Angevin kings did legislate. No great shift in ideals concerning the process of legislation is apparent. The king’s order was crucial, as in the 1166 Assize of Clarendon’s instructions beginning ‘the lord king wishes or ‘the lord king forbids’. At the same time, counsel was emphasised. The Assize of Clarendon specified that “King Henry decreed on the counsel of all his

> Glanvill, Prol., ed. Hall, 2.

* Glanvill, Prol., ed. Hall, 2. Implicit here is a contrast with the lack of justice that a man might receive in other courts, and Glanvill elsewhere makes clear the king and his officials’ jurisdiction over cases involving default of justice; see below, 569-73. > Glanvill, Prol., ed. Hall, 2. ° Glanvill, i. 2, xiv. 1-7, ed. Hall, 3, 171-7; see also below, ch. 27. ” See below, 532.

21 KINGS AND LAW 499 barons, whilst Glanvill mentions laws ‘promulgated about problems such as are to be settled in council on the advice of the magnates and with the supporting authority of the prince’, a statement that precedes and significantly qualifies his citation of the Roman law maxim ‘what pleases the prince has the force of law.’ Glanvill could present legislation as a manifestation of good kingship. The grand assize, a process whereby twelve local knights stated which of the two parties had greater right to disputed land or other type of property, is a royal benefit granted to the people by the clemency of the prince on the advice of the magnates. It bears in mind so effectively both human life and civil condition that men may preserve the rights that they have in any free tenement while avoiding the doubtful outcome of battle.... This legal constitution is based above all on equity. For right, which after many and long delays is seldom arrived at by battle, is more easily and quickly attained through the benefit of that constitution. For that assize allows fewer essoins than does battle...and so people are thereby saved trouble and the poor are saved expense.’

Such presentation of the benefit of legislation fits the wider attitudes of the Angevin reformers.’

The Angevins appear to have legislated more frequently than their Anglo-Norman predecessors. The chronology of the legislation will be discussed

later in this chapter, its effects in subsequent ones. Here it must be noted first that most of the surviving legislation concerned procedures and the administration of justice, financial or service obligations, and the regulation of commerce. There is much less on substantive law. We do not, for example, have any record of legislation laying down certain inheritance patterns, be they new or customary, such as was issued in England earlier in the century or in Brittany in the mid-1180s." Secondly, a shift occurred in the form in which legislation was propagated. Announcement by writ had characterised a significant proportion of surviving Anglo-Norman legislation, and for some measures taken by the Angevin kings such announcement, probably addressed to sheriffs or borough reeves, may have been necessary.’ However, much Angevin legislation may have been issued simply as instructions to the king's justices. In the Chronicle of Roger * See Assize of Clarendon, 1; Glanvill, Prol., ed. Hall, 2. Cf. King John’s statement that ‘it is unheard of in our ancestors time or our own that a new assize be established in anyone's land without the assent of the prince of that land’; Rot. lit. pat., 72. > Glanvill, ii. 7, ed. Hall, 28; see also xiii. 32, ed. Hall, 167, on novel disseisin. *” See below, 534.

‘"' For the statutum decretum concerning female inheritance, see above, 353-4; for the Breton legislation, see J. A. Everard, Brittany and the Angevins (Cambridge, 2000), 111-15, 182-203, who takes it to be an agreed statement of good custom. In Normandy, note TAC, 8. 4, ed. Tardif, 9. '* See e.g. Assize of Clarendon, 21.

500 PART III: ANGEVIN ENGLAND of Howden, a text of the Assizes of Northampton of 1176 follows the chronicler’s outline of arrangements for the eyre of that year. Parallels are clear between the texts of such Assizes and the articles issued to itinerant justices, the first example of which survives from 1194.% Such new procedures were then absorbed into the wider law, their legislative origins only occasionally recalled."

2 ROYAL OFFICIALS Chief administrators and regents Like his Norman predecessors, Henry II continued to place some reliance on family members when he was out of the realm. His queen, Eleanor, acted as regent and issued writs, as did his eldest son, Henry, following his coronation as co-king in 1170. However, disputes within the family, most notably the great revolt of 1173-4, brought such arrangements to an end, and even before that date the major responsibilities rested on others. The chief justiciar came to be the pre-eminent figure in judicial administration, but the inevitability of this development is questionable. We have already examined the administrative prominence of some archbishops of Canterbury." In 1155-62, the chancellor, Thomas Becket, appears to have had wide-ranging

authority. Henry II’s intention when he had Thomas elected archbishop was surely that he should retain this administrative office. Had Thomas done so, at least in the short term the chancellor-archbishop, not the chief justiciars, would have been the dominant administrative figure in Angevin England.” Personal relations, be it with key administrators or with family members, still determined governmental change. In the years leading up to 1168, Henry had two justiciars operating together; the great aristocrat, Robert, earl of Leicester, and Richard de Lucy, of knightly

‘* Howden, Chronica, s.a. 1176, ed. Stubbs, ii. 87-91; below, 546-7. On the survival of such texts, see below, 868-9. It is of course possible that at least some of the measures mentioned in such texts were also announced by writs that have not survived. “ See below, 520, 600, on the grand assize. Note also PKJ, i. 133-4. A case in 1204 recalled a man in Henry II’s reign having lost a foot and an arm ‘according to [ad] the Assize of Clarendon’, but this may have been a means of signifying the date of the event as much as a reference to the legislative origin of the procedure; CRR, i. 180. *? See West, Justiciarship, 31-4; also below, 575, for the Anstey case. *® See above, 30, 261.

‘’ Henry must have had in mind the position of Rainald Dassel, chancellor of the Emperor Frederick Barbarossa and also archbishop of Cologne. See below, 502, on Hubert Walter.

21 KINGS AND LAW 501 background and formerly a loyal supporter of King Stephen.” It is unclear precisely when they took up office, and impossible to define any specific division of responsibilities. The earl was the leading figure until his death in 1168.

He may have enjoyed the position from the start of the reign, and from an early date authorised royal payments by his own writ, a characteristic of later justiciars. Richard did not issue such writs before Becket became archbishop of Canterbury, although his prominence in judicial affairs is apparent, for example from the Anstey case at the end of the late 1150s and start of the 1160s." By the mid to late 1160s, the court at the Exchequer, at which the justiciar took a central role, was hearing litigation beyond the specifically financial.*° After Earl Robert’s death, and certainly following the rebellion of 1173-4, Richard as justiciar was pre-eminent in the administration of the realm, and he also acted as regent when the king was abroad. Henry was in England when Richard de Lucy retired into his monastic foundation at Lesnes, Kent, in 1178 or 1179, so a new justiciar may not have been immediately necessary; the justiciarship was not yet an office essential to the functioning of the regime if the king was in the country. Only under the year

1180 does Roger of Howden record Henry appointing Ranulf de Glanville as ‘chief justiciar of the whole of England’: Like Richard de Lucy, he was of knightly background, with a long if not unblemished record of royal service.” He may have owed his particular rise to prominence to his capture of the king of Scots at Alnwick in 1174. Thereafter he was very significant in judicial matters,

both at the central court and on eyre. Some continuing involvement with eyres after 1180, at least in 1183-4, may have encouraged acceptance of the itinerant justices’ courts as a form of the curia regis.* Glanville also continued to carry out a wide range of other duties, for example military campaigns against the Welsh in 1182.”4

Glanville was central to administration in Henry II's last years, but potential flexibility in development remained. Richard I’s departure for the Third Crusade required exceptional administrative arrangements. Initially he looked '® For this paragraph, see West, Justiciarship, 35-53; ODNB; Bates, ‘Origins’, 11. *? Lawsuits, no. 408E; below, 574-6. *° See below, 539; note also Dialogus, i. 11, ed. Amt, 88, on Robert, earl of Leicester. *" Howden, Chronica, s.a. 1180, ed. Stubbs, ii. 215.

*? See West, Justiciarship, 54, on his shrievalty of Yorkshire and his removal in 1170; note also above, 13, for his treatment of an heiress when he was justiciar. *° See PKYJ, iii. Ixvii-Ixviii, on 1183-4, although note that some of the headings for some of the Pipe Roll entries differ from the usual form for justices on eyre; also PK, iii. Ixxi, for 1186, although note the lack of final concords made before Ranulf, and the mention of new pleas before other justices at PR32HI, 46. ** Gesta regis Henrici secundi, s.a. 1182, ed. Stubbs, i. 289.

502 PART III: ANGEVIN ENGLAND to a co-justiciarship, of the bishop of Durham and William de Mandeville, earl of Essex.” However, the death of William at the end of 1189 saw a return to reliance

on a single individual combining royal and ecclesiastical offices: William de Longchamp was already royal chancellor and bishop of Ely but then became both papal legate and chief justiciar with authority over all lands south of the Humber. William fell from power in October 1191, and was replaced by Walter de Coutances, archbishop of Rouen and an experienced royal administrator. The possibility of uniting the leading position in royal administration with the archbishopric of Canterbury was revived with the next justiciar, Hubert Walter, who became archbishop in May 1193 and took over the justiciarship later in that year, a position that he retained until 1198.

Hubert Walter was replaced by Geoffrey fitzPeter, a man from a family of royal administrators and who himself had a long history of judicial service to the Angevin kings.”° Geoffrey helped to ensure the accession of King John in England in 1199, and retained the justiciarship into the new reign. With the loss of Normandy in 1204 and the king’s increased presence in England, and particularly with a greater concentration of business in the king’s own court from 1209, the justiciar’s judicial pre-eminence was reduced.” Geoffrey died in October 1213, and was replaced by Peter des Roches, bishop of Winchester, who acted as regent in John’s absence in 1214.”°

One thus sees chief justiciars exercising a wide range of duties, including non-judicial ones, especially when the king was out of the country. In the field of justice, even when the king was present in England, they presided over the court of the Exchequer or the Bench at Westminster, they organised and sometimes participated in eyres, they instigated reforms.”® However, their authority varied for several reasons, notably the extent of the king's presence in England and the justiciar’s possession of other offices. On several occasions, kings sought to create a leading minister distinguished by outstanding ecclesiastical as well as secular authority; the instances of Becket and also perhaps of Hubert Walter when he became chancellor in 1199, remind us that this minister need not have been

*° For this paragraph, see Howden, Chronica, s.a. 1189, 1190, 1196, 1198, ed. Stubbs, iii. 16, 28, 32-3, iv. 12-13, 48; West, Justiciarship, 65-96; C. R. Cheney, Hubert Walter (London, 1967), ch. 5; ODNB. Note also the grant of extensive lands to Richard’s brother, John, including the counties of Nottinghamshire, Derbyshire, Somerset, Dorset, Devon, and Cornwall. The 1190 eyre did not visit these counties. *° West, Justiciarship, 98-110; ODNB. *” See below, 538. *8 See N.C. Vincent, Peter des Roches (Cambridge, 1996), ch. 3. *° See below, 522-3, 539-45.

21 KINGS AND LAW 503 justiciar. Flexibility and experiment continued to characterise important aspects of Angevin judicial administration.*°

Earls Except when selected for administrative positions, as in the case of Robert of Leicester, or when administrators were rewarded with earldoms, as Geoffrey fitzPeter was under John, earls were not prominent in royal administration of justice. From the start of his reign Henry II seems deliberately to have reduced any governmental function of earldoms under King Stephen. The only right that many earls continued to have ex officio was receipt of the third penny of judicial profits in the counties.” Bishops As with earls, so too with bishops; they did not exercise the important role in the royal administration of justice that they had ex officio in Anglo-Saxon England. However, prohibitions of clerics taking secular office or being present at blood judgments did not prevent individual ecclesiastics becoming prominent royal justices, and a number of clerics, such as Richard of Ilchester and Hubert Walter, were rewarded with bishoprics for their royal judicial service.”

Royal justices: (i) Central courts

Numerous men acted as royal justices at the central courts in the Angevin period. Final concords record at least seventy sitting at the Exchequer as justices between 1165 and 1189. However, about half are only recorded as doing so on one or two occasions. The chief justiciars and twelve other justices account for roughly two-thirds of the named appearances. Thus a core group of justices had emerged, and it tightened somewhat in the reigns of Henry II’s sons. The group’s influence on the court and its law must have been considerable.? Its members

°° Cf. the role of the seneschal in Normandy; Haskins, Norman Institutions, 183-4. *" See White, Restoration and Reform, 86-91; Dialogus, i.17,ed. Amt, 98.

*? On clerics not being involved in blood judgments, see e.g. Constitutions of Clarendon, 11; Council of Westminster 1175, 3, Councils and Synods, I, no. 168. The Third Lateran Council of 1179

prohibited clerics from acting as justices for secular authorities; the decree appears in Howden, Chronica, s.a. 1179, ed. Stubbs, ii. 188. For bishops as justices, see Diceto, Ymagines historiarum, s.a. 1179, ed. Stubbs, i. 435; PKJ, iii. l-ccxciv. On Richard of Ilchester, see ODNB.

°° See below, 529-35; also Brand, ‘““Multis vigiliis”’, 91-2; Turner, Judiciary, 75, 126-9, West, Justiciarship, 83-4, 160-7. Note, however, that the most prominent group in John’s court coram

504 PART III: ANGEVIN ENGLAND in general had a background in royal administrative and judicial activities, and might also have experience of the royal courts in other capacities. Thus Roger Huscarl started to act as a royal justice in 1210, but had previously brought his own

litigation to the king’s court and sometimes acted as an attorney and as a surety for others** Only a small number can be shown to have had formal schooling in learned law, although others probably had some knowledge of it. Most received their legal education in royal service.* Some central figures in the group of justices were related to one another, most notably Ranulf de Glanville and Hubert Walter.*° Although there were complaints as to the lowly origins of royal justices, unsurprisingly most significant justices did not come from the lowest levels of society. Some were from prominent ecclesiastical or lay backgrounds, for example Richard fitzNigel was the son of Nigel, bishop of Ely and treasurer of Henry I, and great-nephew of Roger, bishop of Salisbury. More numerous were men from families with a tradition of royal service, a tradition that might already have led to a rise in social standing, as in the case of William Basset’s father, Richard. Others still were from knightly families, as was Ranulf de Glanville. Only occasionally is a justice's background wholly obscure, as with Richard of Ilchester, although such cases slowly increase.

Of Henry II's core justices, just under half were clerics. Of these, half were bishops, all servants of the king who had been prominent in the Becket dispute. The others were archdeacons and royal officials. The proportions of laymen and clerics amongst justices of central courts remain similar under Richard I, although we have already noticed the predominance of ecclesiastics amongst the chief justiciars. Under King John the proportion of clerics and of bishops falls markedly.” The justices were very much royal servants, with a primary duty to the king. Writing of those seeking a delay to their case because they were serving the king in Britain, Glanvill states that ‘it shall be at the will and pleasure of the lord king's justices to assign a shorter or longer term of delay, as they see to be expedient for

rege was not identical to that at the Bench at Westminster; see below, 538, and Turner, Judiciary, esp. 127-37. Some justices such as John of Guestling rarely sat coram rege. Others, such as Simon of Pattishall and James of Potterne, did so and continued to serve after John concentrated business on

the court coram rege in 1209. In addition, new justices then became prominent, notably Henry de Pont-Audemer and Roger Huscarl. ** PK, iii. cclxxvi, cccxvi-cccxvii; P. A. Brand, ‘Edward I and the transformation of the English judiciary’, in his Making of the Common Law, 135-68, at 156-7. °° See below, 530-3.

°° For this paragraph, see Turner, Judiciary, esp. 25-31, 40, 88-94, 100-6, 127, 138-50. Ranulf de Glanville was married to Hubert Walter’s maternal aunt.

°” Turner, Judiciary, 31-2, 37, 88, 149. Justices might rise to the rank of bishop from that of archdeacon.

21 KINGS AND LAW 505 the lord king, provided the proper legal procedure [juris ordo] is observed’?* Like chief justiciars, justices were often involved in other royal administrative activities, including finance, diplomatic missions, and ceremonial activities in court2? However, there are signs of increasing specialisation, a feature of Angevin government also apparent in the separation of the court of the Bench from the Exchequer.*® The first man who might be referred to as a career judicial specialist was Simon of Pattishall, who had a continuous judicial career for more than a quarter of a century starting in the reign of Richard I.” (ti) Eyre

Men might act as both central and itinerant justices; therefore this section shares some personnel with the preceding one. The early years of Henry’s reign saw only limited visitations of itinerant justices. Those involved were office-holders closely connected to the king, and such men continued to be sent out on individual judicial missions throughout the period.” Once eyres were established on a more routine basis from 1176, again a core group of justices emerged. It has been calculated that, of eighty-four itinerant justices in Henry II’s reign, only eighteen acted in three or more visitations, whilst two of these eighteen acted on six eyres. These two, and five others of the core eighteen, were also among the core justices at the Exchequer.* Such men were involved in other governmental tasks, and this was likewise true of more occasional justices, such as the chronicler Roger of Howden. On being appointed for an eyre, they probably had to take an oath that they would do the king’s justice to everyone, as the chronicler Ralph de Diceto tells us happened in 1176.4 In 1176 each group of justices included a sheriff local to the circuit, and in 1192 seven sheriffs served as justices for the eyre on its visit to their own county.* In contrast, the articles of the 1194 eyre specified that ‘no sheriff is to be justiciar in his own shrievalty, nor in a county that he held after the first coronation of

°® Glanvill, i. 27, ed. Hall, 16.

°° See e.g. Turner, Judiciary, 39-40, 51. *° See below, 539-40. On specialisation, see also Turner, Judiciary, 83-8, 126-7. “ Brand, Legal Profession, 27, but see also 171 n. 76 for comments on Simon’s other activities. On Simon, see also below, 847. ** See below, 544-8, which also mentions the non-judicial business of the eyre; Stenton, English Justice, 70-1. ** Brand, ‘“Multis vigiliis”’, 93; see also Stenton, English Justice, 73-4. ** See Diceto, Ymagines historiarum, s.a. 1176, ed. Stubbs, i. 404. * Turner, Judiciary, 21, 23, 77; J. Boussard, Le Gouvernement d’Henri II Plantagenét (Paris, 1956), 506-7.

506 PART III: ANGEVIN ENGLAND the lord king’.*° However, this guideline was flouted with some regularity, albeit primarily by men who were experienced justices and who performed shrieval duties through deputies.” Justices more generally continued to act in areas where they had personal interests, and evidence from Henry III's reign shows them lobbying to be allowed to do so.* Sheriffs Central authority regarded sheriffs as both essential and requiring control.*? The sheriff, sometimes acting through an under-sheriff, had various important functions. There were matters of police, most notably over-view of the frankpledge system.” The sheriff also presided over the county court. Changes in legal and judicial arrangements diminished the importance of its routine meetings, in favour of sessions before the itinerant justices, particularly as regards the deciding of cases. However, new royal writs did require specific important work to be carried out by sheriffs, who also performed significant acts relating to the execution of royal justice as implemented both by the eyre and the central courts.” Taking control of sheriffs was one of Henry II's first tasks. Twenty-one counties had their sheriffs replaced at the Michaelmas Exchequer of 1155.% Other points in the reign saw wholesale changes in shrieval personnel, most famously in 1170, in association with the so-called Inquest of Sheriffs. However, any attack on a hereditary element in shrievalties was limited, and there remained familial and tenurial links to the office.** Some of Henry's early sheriffs were men of very high status, whilst others, such as Richard de Lucy, had close connections to the king.

*° Articles of the 1194 eyre, 21, Select Charters, 254.

*” PRI2J, xvi-xxii. Although justices had presumably been appointed before the issuing of the articles in 1194, shrieval justices are few in that eyre. The 1198 articles of the eyre do not include the prohibition. Note e.g. Stenton, English Justice, 105-6, on the much increased significance of sheriffs sitting as justices in their own county in 1210. This activity may provide essential background for Magna Carta, 24, on which see below, 507. ** See e.g. PKJ, i. 39-40; C. A. F. Meekings, ‘Six letters concerning the eyres of 1226-8’ (1950) 65 EHR 492-504, at 497-500. *° See also below, 508. Note also the restriction of shrieval involvement in choice of knights for the grand assize, below, 602. °° For an under-sheriff, see e.g. Lawsuits, no. 641 (p. 680). >" Morris, Sheriff, 115-17. Note also the role attributed to them by the Constitutions of Clarendon, 6, in arranging jurors for accusations against laymen before the bishop. °? See e.g. Glanvill, ii. 20, xii. 18, xiii. 38-9, ed. Hall, 36, 144, 170, on execution of judgments; also Morris, Sheriff, 118-23, 146-7. >> Amt, Accession of Henry IT, 113-19.

°>* See J. Boorman, “The sheriffs of Henry II and the significance of 1170’, in Law and Government, ed. Garnett and Hudson, 255-75, esp. 269-74. On the Inquest of Sheriffs, see below, 516-17.

21 KINGS AND LAW 507 The majority, however, were local landholders, usually with only a few knight's fees, and such men increased their importance within the shrievalty by the mid1160s. Variations in the wealth and in the proximity to the king of those appointed as sheriffs continued later in the Angevin period, sometimes in a pattern linked to efforts at increasing revenue from counties and limiting shrieval powers.* The mixture of royal reliance upon and desire to direct sheriffs is apparent in the provisions made at Clarendon in 1166. Lords were not to prevent sheriffs from entering their courts or lands to supervise the functioning of frankpledge

or the arrest of those accused of serious offences. In addition, sheriffs were instructed to collaborate with one another in dealing with felons or outlaws who had fled” Magna Carta and earlier evidence shows the king prohibiting sheriffs from hearing pleas of the Crown, whilst the Dialogue of the Exchequer reveals

a particularly confrontational attitude to sheriffs, at least regarding financial matters at the Exchequer: Just as, in chess, battle is joined between kings, so here a struggle takes place and battle is joined principally between two people, that is the treasurer and the sheriff who sits at the account, while the others sit by as judges, so that they may watch and judge.*

Local justices, serjeants, and coroners Anglo-Norman local justices dealt with jurisdictions of differing scales, and it is unclear whether there had been an office of justice for each county, or whether

arrangements were more ad hoc. The county justice may have become more usual in Stephen's reign, and certainly men of higher status held that position. Evidence for the early years of Henry II is limited. Pipe Rolls refer to payments by men who may well have been county justices.°° However, references to the justice of a specific county may in some cases signify a man acting as a justice in the type

of limited eyre that took place in these years.” Furthermore, evidence suggests °° White, Restoration, 91-100. °° See D. A. Carpenter, “The decline of the curial sheriffin England 1194-1258’ (1976) 91 EHR 1-32,

esp. 1-9; Morris, Sheriff, 137-9 on Richard I’s reign, 163-4 on John’s reign. Council of Westminster 1175, 3, Councils and Synods, I, no. 168, prohibited priests having the office of sheriff or secular reeve;

this is the same clause that prohibited their participation in blood justice, cited above, 503. °” Assize of Clarendon, 9, 11, 17; see also below, ch. 27.

°® Dialogus, i.1, ed. Amt, 10; Magna Carta, 24; above, 506. On wider complaints about sheriffs, see below, 851.

°° See above, 266-9. °° See White, Restoration, 184-90; Stenton, English Justice, 68.

° Note Royal Writs, nos 94, 127, referring to Lincolnshire and London, where we have other evidence for local justices; Cartularium monasterii S. Johannis Baptiste de Colecestria, ed. S. A. Moore (2 vols; Roxburghe Club, 1897), i. no. 41, referring to Norfolk.

508 PART III: ANGEVIN ENGLAND at least one instance of a man, the wealthy Devon baron Henry de Pommeraye, having judicial authority in a group of East Midland counties.” The impression again is of a variety of arrangements, a conclusion that will be reinforced when we look at lesser officials.

This lack of uniformity, as well as the limits of evidence, makes it the harder to determine when county justices ceased to exist, although various historians have pointed to the 1160s.% A writ of the latter part of Henry II’s reign is addressed to

‘his justices in whose jurisdictions [bailliis] the abbot of Abingdon has lands’. However, this could refer either to itinerant justices or to lesser local officials.® The continuity of such lesser officials may be hidden by a terminological change, with an increase in reference to hundred serjeants.®° Such references may be to a somewhat different type of official from those earlier termed justices, or may be using a new term for a continuing type of official, ‘justice’ now tending to be restricted to those on eyre. Serjeants might have responsibility for one or several hundreds, and made shrieval administration effective throughout the county. They seem to have been appointed by sheriffs, or by the holders of private hundreds, although in some cases the position was associated with a particular tenancy. They carried out a wide range of duties, many connected to crown pleas. They probably held inquests concerning dead bodies, made arrests, and attended ordeals and hangings.” Some, although not all, of these duties were taken over by the ‘keepers of pleas of the crown, commonly known as coroners. The articles of the 1194 eyre ordered that ‘in each county are to be chosen three knights and one cleric as keepers of the pleas of the crown, and this order does seem to mark the general establishment of the position at county level.®* Coroners both helped in running the county and acted as a check on the sheriff. They were to be of a higher social status than was common among hundred serjeants, and were possibly to be chosen in the presence of the itinerant justices, rather than being shrieval appointees. They took over some of the responsibilities of the hundred serjeants, and added others. In particular, they

°* White, Restoration, 189. °° E.g. Richardson and Sayles, Governance, 196. °* Historia ecclesie Abbendonensis, ii. 297b, ed. Hudson, ii. 346-8. See also Oxford Charters, no. 81 (1172 x 1175), specifying the king’s justice of Oxford or Oxfordshire in its nisi feceris clause. °° See above, 266-70. °° Note R.F. Hunnisett, “The origins of the office of coroner’ (1958) 5th Ser. 8 TRHS 85-104, at 92, 94; also Richardson and Sayles, Governance, 187.

°” See Kimball, Serjeanty, 87; Hunnisett, ‘Origins’, 92-9; Hurnard, King’s Pardon, 24. For a hundred serjeant apparently being an object of fear, see e.g. CRR, i. 470. Serjeants in the far north of the country and the Welsh borders in particular may have continued to have important legal duties; see e.g. Book of Fees, i. 5-6; Stewart-Brown, Serjeants of the Peace.

°° Hunnisett, ‘Origins’, esp. 88, 103; for limits of implementation, see Hunnisett, Coroner, 3-4.

21 KINGS AND LAW 509 had responsibilities in the county relating to the later stages of criminal appeals, record-keeping, and outlawry. Their assumption of the serjeants duties may have been gradual, and serjeants continued to assist coroners.” Various other officials should be noted.”° The chief justiciar had a chancery, other justices and sheriffs had clerks to produce the necessary written instructions and records.” Constables of royal castles had duties as gaolers, and also perhaps some judicial role; Magna Carta prohibited them, as well as sheriffs,

coroners, and royal bailiffs, from holding pleas of the Crown.” Justices and sheriffs might use men appointed on an ad hoc basis, for example summoners and also men such as the royal servants ‘David the Lardiner, Odo of Newsham, William Dod, and several others’, who attended the court of Roger de Mowbray on behalf of the sheriff at some point in the 1160s.” Finally, whilst the wronged party sometimes exacted punishment, on other occasions an appointed servant carried out execution or mutilation.”

3 ANGEVIN REFORM: A CHRONOLOGICAL SURVEY ‘Henry II's legal reforms, “Ihe Angevin legal reforms, or “Ihe Angevin Leap Forward, have constituted one of the core topics both of English mediaeval history and of English legal history. I here provide an introductory chronological survey, leaving to subsequent chapters deeper analysis of various issues. Some important changes are hard to date, or more generally hard to uncover. This is partly a matter of lost legislation,”*> but also stems from the nature of reform. Administrative changes, as we have seen with the disappearance of county justices, may have been gradual or unrecorded. Some procedural developments, such as the emerging role of trial juries in criminal cases, cannot be attributed to a specific date. Nor can changes in chancery practice, for instance the introduction of new forms of writ or different sealing practices, be precisely dated because °° See Hunnisett, ‘Origins’; e.g. PKJ, iv. nos 3410, 3422, for serjeants being amerced for not carrying out their duties properly. © See also above, ch. 19, on Forest officials.

™ For the justiciar’s chancery, see The Memoranda Roll for the Michaelmas Term [1 John], ed. H. G. Richardson (NS 21 PRS, 1943), Ixxv-Ixxxvii. For the clerks responsible for keeping justices’ rolls, see C. T. Flower, Introduction to the Curia Regis Rolls, 1199-1230 (62 Selden Soc., 1944), 7-11. For records of the county court, see below, 553-4. Also for sheriffs’ staff, see e.g. Flower, Introduction, 421-2.

” Magna Carta, 24, W.S. McKechnie, Magna Carta (2nd edn, Glasgow, 1914), 314-15. ”* Lawsuits, no. 453. See also Morris, Sheriff, 115. ™ See e.g. Lawsuits, no. 505; below, 741. Note also Kaye, ‘Sacrabar’, 744-5, on later Northumbrian evidence. ” Seee.g. Glanvill, ii. 12, viii. 9, xiii. 11, ed. Hall, 31, 100-1, 155.

510 PART III: ANGEVIN ENGLAND of lack of examples, particularly lack of documents surviving as originals.”* And extremely hard to include in any chronology are developments probably caused by a combination of other innovations, developments as important as the requirement of a royal writ to compel a man to answer concerning his free tenement.”

From the Treaty of Winchester 1153 to the mid-1160s There are some signs of a reassertion of royal authority in the last months of Stephen’s reign.”* Of particular note is the settlement between the king and his opponent, the future Henry II, and the terms of agreement provided. According to the Gesta Stephani it was agreed in late 1153 that ‘arms should finally be laid down and peace restored everywhere in the realm, the new castles destroyed, the disinherited restored to their own, and laws and enactments [plebiscita] made binding on all according to the ancient fashion’”? The statement that ‘the disinherited [were to be] restored to their own’ can be compared with one by the Norman chronicler Robert de Torigni: ‘it was sworn that possessions that had been seized by intruders were to be recalled to their former and lawful possessors, whose they had been in the time of the excellent King Henry [i.e. Henry I]’.°° The interpretation of these passages has been disputed. Possibly it was

agreed that inheritances were to be restored to those who had justly possessed them in 1135." Alternatively, the chroniclers may have been projecting back to late 1153 a general promise made at the time of Henry’s coronation in December 1154. Whenever the promise was made and whatever its precise content, its execution may have been very difficult, requiring both compromise and judicial action.*’ Cases arising from Stephen's reign may have encouraged men, including those below the level of tenant-in-chief, to look to the king to ensure the doing of justice. Such requests, and the consequent writs and actions, may have given an initial impetus to royal involvement in matters of landholding, and it is possible,

’° E.g. it is very difficult to date the appearance of new writs, or say when a writ became available de cursu, that is routinely and for a set low payment (see also Stenton, English Justice, 30); for one example, see below, 525. ’” See below, 557. ”® See White, Restoration, 69-76.

” Gesta Stephani, 120, ed. Potter and Davis, 240. °° Robert de Torigni, Chronica, Chronicles of Stephen etc., iv. 177. *" Holt, ‘1153’, 275-6, 287-8. Such a promise left acquisitions at risk. *? Garnett, Conquered England, ch. 4. On the settlement of 1153, see also R. C. Palmer, “The origins of property in England’ (1985) 3 LHR 1-50, at 8-13, 18-19; Hyams, ‘Warranty’, 497-503; Biancalana, ‘Want of justice’, 468-71.

°° Some arrangements at tenant-in-chief level may have been made without reference to the king or his court; see Holt, ‘1153’.

21 KINGS AND LAW 511 but unproveable, that these were important years in the development of the writ of right, the significance of which we will examine later.*4 Further measures were taken to restore order.** Considerable changes were made amongst sheriffs.*° There was probably an edict concerning the restoration of the royal demesne,” and, for example, legislation concerning shipwreck.** Also from this period come references to edicts concerning distraint and dispossession, the exact nature of which will be considered later.*? A royal writ of the period states that I order that the prior of St Swithun and the monks are to hold all their lands and tenures well and in peace, freely and quietly and justly. And let them not be placed in pleas against my decree [statutum], concerning any tenement of theirs for the claim of some Englishman, unless that Englishman or his ancestor has been seised thereof in the year and on the day when King Henry, my grandfather, was alive and dead or afterwards.”

The reference could be to legislation specifically concerning Englishmen, or to more general legislation regarding which Englishmen were a specific exception.” A larger scale legislative session for Normandy may have taken place at Falaise in 1159, with particularly notable decrees prohibiting a decanus, presumably a rural dean, from making an accusation without the testimony of neighbours of good standing, and the judges in monthly district courts from judging without the testimony of neighbours. In 1162, still in Normandy, Henry ‘made complaint concerning bishops and their officers and his vicomtes, and ordered that the [provisions of] the council of Lillebonne be observed’. The exact meaning of this phrase is uncertain, but probably Henry was seeking to prevent the extension ** See also Milsom, Legal Framework, 178. For the writ of right, see below, 582-3. Words such as breve recti (Lawsuits, no. 362) need not constitute a technical term and reveal little of the content of the writ. The phrase breve de recto appears in an account of a dispute in Stephen’s reign, Lawsuits, no. 316, but the text is not contemporary with the events. Reference to breve de recto in Lawsuits, nos 481 and 483, from c. 1165 x 1175, may suggest a more precise use of the phrase.

°° Howden, Chronica, s.a. 1156, ed. Stubbs, i. 215, lists the destruction of almost all the castles built in Stephen’s time, Henry’s issuing of a new coinage, his establishment of peace, and his order that the laws of Henry I be held inviolably throughout his realm. See also William of Newburgh, Historia, ii. 1, Chronicles of Stephen etc., i. 102. °° See above, 506; also White, Restoration, 95, Boorman, ‘Sheriffs’, 258. °” Lawsuits, no. 417. °° William of Newburgh, Historia, iii. 26, Chronicles of Stephen etc, i. 282. See Lawsuits, no. 371,

for a local dean making an accusation ‘without another accuser, against which custom the king had issued a law of prohibition’ see also below, 735 n. 164. °° See below, 609-10, 637-8.

°° Royal Writs, no. 169, discussed, with references to earlier literature, in Hudson, Land, Law, and Lordship, 256-7. °" See Garnett, Conquered England, 348-50.

512 PART III: ANGEVIN ENGLAND of ecclesiastical jurisdiction in Normandy, a subject that would be soon of great prominence in England.” The overall extent of Henry’s legal and judicial activities in these years is hard to assess. Pipe Rolls show revenue from pleas and agreements rising, but still considerably below 1130 levels.®? However, it is possible that other payments were not passing through the Exchequer. It can be argued that until c. 1163 the king, perhaps

deliberately, limited the extent to which he and his justices were involved in the hearing of cases.°* On the other hand, royal writs seem with greater consistency to have included clauses promising enforcement, most often shrieval or royal, if the addressee failed to act. Likewise, the royal confirmations issued in these years, some to sub-tenants, constituted promises of future royal action, even within the affairs of a lordship.°°

Mid-1160s to mid-1170s At some point between 1154 and early 1164 Henry II issued a decree concerning

default of justice. The date is uncertain, although an account written in the mid-1170s refers to it as a ‘new constitution’ in the context of a case of October 1164.” By the decree, the complainant was to take his complaint to a royal justice, then swear with two oath-helpers in his lord’s court that the court had not done him right. The case then went to the overlord, and could eventually reach the king’s court. At least from the perspective of a decade or so later, the decree was regarded as a piece of royal assertiveness, for one writer comments that ‘the king had made an ordinance in his kingdom, which caused the barons of the country great harm, whereby each lost his court by a false oath’.*

°* Robert de Torigni, Chronica, Continuatio Beccensis, Chronicles of Stephen etc., iv. 212, 327; Haskins, Norman Institutions, 170-1. Vicomtes were the Norman equivalent of sheriffs. For possible parallels in England, see below, 567. Other decrees at Falaise in 1159 were more general, for example concerning peaceful tenure and the immediate punishment of convicted thieves. Note also a decision of Henry’s court concerning the holding of trials by battle in courts of tenants-in-chief in Normandy; Robert de Torigni, Chronique, ed. Delisle, ii. 241-2. For possible earlier legislation concerning the jury in Normandy, see Haskins, Norman Institutions, ch. 6. °* Amt, Accession, 179-81; note, though, Stenton, English Justice, 47 n.79. °* See White, Restoration, 162-90. °° White, Restoration, 173. °° For confirmations to lay sub-tenants, see e.g. Recueil, ed. Delisle and Berger, nos 86, 164; The Cartulary of Missenden Abbey, ed. J. G. Jenkins (3 vols; 2, 10 Buckinghamshire Archaeological Soc., Record Branch 1939, 1955; vol. 3 jointly with Historical Manuscripts Commission, 1962), no. 704; Carte antique, 1-10, no. 303; Carte antique, Rolls 11-20, ed. J. C. Davies (NS 33 PRS, 1960), no. 477. °” Lawsuits, no. 420C. °® Lawsuits, no. 420H (the text is in Old French); ‘lost his court’ indicates loss of hearing of the particular case.

21 KINGS AND LAW 513 If the decree was issued following Henry's return to England in January 1163 after a four and a half year absence, it coincides with other hints of increased royal assertiveness.°*° Pipe Rolls begin to contain references to forfeiture of chattels by offenders or fugitives, as well as to other judicial matters, and in 1165 there is a sudden spike in payments ‘for right [pro recto]’, with thirty-two, the highest figure of the whole reign.'°° In January 1164 was made a record of ‘a certain part of the acknowledged customs and privileges of the realm, a text known as the Constitutions of Clarendon. These

dealt with various customs of the king in relation to the Church, for example requiring the king’s permission for prominent clerics to leave the kingdom and for the excommunication of tenants-in-chief or royal officials.’” The king was to aid the Church, for example against great men who were obstructing archbishops,

bishops, or archdeacons from doing justice concerning them or their men.’ In other instances, royal help was promised, but with the intention of restricting the practices of some churchmen. We have already heard about legislation in Normandy against unsupported accusations by archdeacons. The Constitutions of Clarendon state that laymen ought not to be accused save by known [certos] and lawful accusers and witnesses in the presence of the bishop, in such a way that the archdeacon not lose his right or anything that he ought to have therefrom. And if the accused are such that no-one either wishes or dares to accuse them, the sheriff, when requested by the bishop, shall cause twelve lawful men of the neighbourhood or vill to swear before the bishop that they shall make clear the truth about the matter to the best of their knowledge.'®

Certain areas of jurisdiction were specified as royal on the basis of the issue, irrespective of whether the parties were clerical or lay: ‘if a dispute shall arise between laymen, or between clerks and laymen, or between clerks, concerning advowson and presentation to churches, it is to be treated and concluded in

°° See esp. White, Restoration, 190-212. Cheney, ‘Decree of Henry IT’, 187, prefers a date ‘in the very early years of the reign’. *°° See White, Restoration, 193-6, who suggests predominance of activity regarding the Forest; Royal Writs, 231-4. Note also White, Restoration, 194, on the recording of specific payments by individuals or vills. *°* Constitutions of Clarendon, 4 (noting the comments on translation in Councils and Synods, I, 862), 7,and note also c. 10. Other areas of royal control were also specified: e.g. cc. 2 “Churches within the fee of

the lord king cannot be given in perpetuity without his consent and concession, 14 ‘the chattels of those who are under forfeiture to the king may not be retained by any church or cemetery against the king's justice, because they are the king’s, whether they be found within the churches or without’; also cc. 8, 12.

*°* Constitutions of Clarendon, 13. The churchmen were likewise to provide aid for the king. “°° Constitutions of Clarendon, 6.

514 PART III: ANGEVIN ENGLAND the court of the lord king’.’°* Particularly tendentious was the issue of criminous clerks: Clerks cited and accused of any matter shall, when summoned by the king’s justice, come into the king’s court to answer there concerning matters that shall seem to the king’s court to be answerable there, and before the ecclesiastical court for what shall seem to be answerable there; in such a way that the justice of the king shall send to the court of the holy Church to see how the case is tried there. And if the clerk shall be convicted or confess, the Church ought not to protect him henceforth.’

That the king’s court should decide jurisdiction is also emphasised in another clause: if a dispute arose between a clerk and a layman regarding a tenement that the clerk claimed to be alms, the layman lay fee, that issue was to be determined ‘by recognition of twelve lawful men, through the decision of the chief justice of the king.’°* Such a recognition by twelve lawful men would be essential to several other key new procedures. Late in 1165 a major effort against serious crimes was probably started through sheriffs and local judicial officials.” Then early in 1166 control of the crackdown was handed over to travelling royal justices, as recorded in the text known as the

Assize of Clarendon.'® Juries of twelve men from each hundred and four men from each vill were to ‘speak the truth, whether there be in their hundred or their vill any man accused or notoriously suspect of being a robber or murderer or thief [latro], or any who is a receiver of robbers or murderers or thieves, since the lord king has been king’. The text uses the word ‘murderer, which earlier evidence might suggest was associated with particularly heinous forms of homicide.'’? However, the word here should probably be taken in the broad sense of perpetrator of culpable homicide, perhaps with the French vernacular having influenced usage.”° The accused or notoriously suspect were to be taken, and to be subjected to ordeal by

*°* Constitutions of Clarendon, 1; see also. 11. *°? Constitutions of Clarendon, 3; see below, 769-72, on this clause, which was central to the Becket dispute.

“°° Constitutions of Clarendon, 9; see below, 608, where the clause is quoted in full. The clause was one of those condemned by Alexander III. For c. 15, on jurisdiction in debt cases, see below, 698. *°7 See Corner, ‘Texts of Henry II’s assizes’, 16-19; there may be a reference to the earlier assize [‘alia assisa’] in PRI2HII, 48. Note also the end of Assize of Clarendon, 1, attributing a role to sheriffs

as well as justices. The word assize could at this time have various meanings: an ordinance or piece of legislation, for example the Assize of Clarendon; a procedure, for example the assize of novel disseisin, that in some instances may have been set up by a legislative assize; the jurors or recognitors within that procedure. It could also mean an assessed rent, tax or other due. See DMLBS, s.v. ‘assisa’. *°8 On the Assize, see also Hurnard, ‘Jury of presentment’, S. Jenks, ‘Die “Assize of Clarendon” von 1166’ (1995) 27 TVR 27-43. On the 1166 eyre, see below, 544-5. *°? See above, 166.

“See e.g. Lawsuits, 411C, using the Old French murdre for an act that Latin versions refer to as homicidium. Lawsuits, no. 501, takes the Assize of Clarendon or Northampton to cover homicides, thefts, and other such deeds.

21 KINGS AND LAW 515 water before the king’s justices. Those convicted were to be mutilated by loss of a foot, whilst even those cleared might have to abjure the realm ‘if they have been of very bad repute and openly and disgracefully spoken of by the testimony of many and that of lawful men: Forfeited chattels were to go to the king. The text also records other arrangements concerning the maintenance of the

peace, for example stating that ‘let there be no-one within his castle or without... who shall forbid the sheriffs to enter into his court or his land to take the view of frankpledge, and to see that all are under pledges; and let them be sent before the sheriffs under free pledge’."* Action was to be taken against the group

of heretics who came from Germany and had been branded and excommunicated at Oxford, and it may have been at the same council that new procedures concerning disseisins were put into place.”

We have evidence of the Assize being put into practice, with records of chattels forfeited by felons and fugitives, and of the allowance to the sheriff of Wiltshire of 5s. for ordeal pits for the judgment of robbers and 20s. for payment

of the priests who blessed them." The text states that the Assize was to last as long as the king pleased, and the procedures seem to develop subsequently. For example, at the end of the 1160s arson may have been added to the types of offence to be presented.” There were problems in enforcement. Many of the accused fled, whilst there is evidence of variable degree of implementation and of abuse of the arrangements.”° The articles of a royal enquiry in 1170 include the following provision: Concerning the chattels of those who have fled on account of the Assize of Clarendon and the chattels of those who have been condemned [perierunt] through that Assize,

let it be enquired as to what has been done and what has issued from it regarding each hundred and each vill, and let it be accurately and carefully written down. And likewise let it be enquired whether anyone has been unjustly accused in that Assize for reward or promise or from hatred or other just cause, and whether any of the accused has been released or any accusation made for reward or promise or love, and who received the reward for it, and likewise let this also be written down.'”

""’ Assize of Clarendon, 1, 2, 14; Assizes of Northampton, 1. "'* Assize of Clarendon, 9. See also above, 507, on co-operation between sheriffs, below, 717, on frankpledge. "'® Assize of Clarendon, 21; on novel disseisin, see below, 609-11. ‘™ PR12HI, 72. and see also e.g. 117, which mentions blessing of a pit and also work on Oxford

gaol. For the building of gaols, see Assize of Clarendon, 7. For the impact of the assize, note also Lawsuits, no. 501. '? See Holt, ‘Assizes’, 95. ‘© See also Richardson and Sayles, Governance, 201.

‘'” Inquest of Sheriffs, 6; on the Inquest see the next paragraph but one.

516 PART III: ANGEVIN ENGLAND Despite such problems of execution, the provisions and the tone of the Assize

of Clarendon signify royal assertion of authority in matters of justice, an assertiveness matched in other fields of administration, for example an enquiry in 1166 into knight-service.”® If it is possible that Henry II's return to England in January 1163 led to an acceleration of judicial and legal activity, his absence from March 1166 until March 1170 did not stop reform and in some ways may have encouraged it. Royal absence may have stimulated use of the Exchequer for hearing of non-financial cases."® Further activities are visible, for example Forest visitations and also a much wider eyre in 1168-70.”° Other reforms are more difficult to pin down in terms of date and even of content. It may be at this time, or as a direct result of the Assize of Clarendon, that remaining county justices disappeared or that local justices were reclassified as serjeants.” It may have been in the late 1160s that certain important writs started to be sealed ‘closed; that is in a fashion that required the seal to be broken before the document could be read, thereby ensuring that authentication only lasted for one use. Their ephemeral nature suggests a more routine employment of writing than the old writs sealed ‘open

or ‘patent, which were reusable because the seal did not have to be broken before reading. Writs might also be ‘returnable. Such writs were taken to the sheriff, who followed their instructions, for example setting in motion a recognition. He wrote the names of the recognitors on the back of the writ, and then—as the writ instructed— produced it on the specified day before the royal justices, together with those responsible for summoning the recognitors and the tenant. The authorisation to hear the case and any specifications as to process would then be read out.” Following his return to England in 1170, Henry ordered probably the largest governmental enquiry in England since the Domesday inquest.’ The chroniclers focus on the inquiry into sheriffs and their bailiffs, and historians normally term it the ‘Inquest of Sheriffs’."** However, its articles also state:

Let it be enquired concerning the archbishops, bishops, abbots, earls, barons, vavasours, knights, citizens, burgesses, and their stewards and officials as to what and

‘® For the returns to the survey, the Cartae baronum, see Red Book, i. 186-445. ‘'? See below, 539; on the Exchequer as a court, see also above, 275. **° Note also 1169 legislation particularly affecting the actions of churchmen; M. D. Knowles et al., ‘Henry II’s supplement to the Constitutions of Clarendon’ (1972) 87 EHR 757-71. "1 See above, 508. 22 See e.g. Glanvill, xiii. 3, 7, ed. Hall, 150, 152; Hudson, Formation, 131, 143, Biancalana, “Want of justice’, 465 n. 153, Brand, ‘Henry IT’ 218-19.

"3 For a text of the articles of the Inquest, see Select Charters, 175-8; for a different version see The Letters and Charters of Gilbert Foliot, ed. A. Morey and C. N. L. Brooke (Cambridge, 1967), 523-4. See also Gervase of Canterbury, Chronicle, s.a. 1170, ed. Stubbs, i. 216, for some of those who were to carry out the enquiry. *4 See e.g. Gesta regis Henrici secundi, s.a. 1170, ed. Stubbs, i. 4-5; e.g. Select Charters, 174.

21 KINGS AND LAW 517 how much they have received from their lands since the above date, from each of their hundreds and each of their vills, and from each of their men, by judgment or without judgment, and let them write down separately all these exactions and their causes and occasions.”

The few surviving returns confirm that investigation took place into lords’ relations not only with their officials but also with their men more generally.’”®

The extent of the impact on baronial administration must remain unclear, but there were very significant changes in shrieval personnel.’” The prospect

of not only routine accounting at the Exchequer but also future special enquiry must have encouraged shrieval obedience.’* A similar warning must have been intended for barons, at the very least in their position as holders of franchises. Information gathering, together with the composition of written records, might inspire or inform further royal action, as well as presenting the king as dispenser of justice against oppressive lords and local administrators. Within the articles of the Inquest at least one manuscript included matter of a more legislative nature. It is possible but not certain that these legislative sections derive from the same council as the articles of enquiry; if they do not derive from the same occasion, their date is unknown.’ One section confronts the common problem of the reopening of cases: If anyone complains about any case [querela] that has been concluded [finita] in the court of the lord king, before him or his justice, in order to renew it, once he [the complainant] is convicted or confesses this, he is to be taken and held in prison until the lord king orders him to be released.

It is uncertain whether this is a general measure, or one confined, for example, to complaints made in the context of the inquiry. A second section concerns essoining, the importance of which is clear from the plea rolls and Glanvill: Essoiners who come into the court of the lord king before him or his justice, or in the counties before sheriffs, are to give gage and pledge that they shall have their

**° Inquest of Sheriffs, 3. ‘°° Red Book, ii. Appx A; H. Suggett, ‘An Anglo-Norman return to the Inquest of Sheriffs’ (1942) 27 Bulletin of the John Rylands Library 179-81. ‘*7 See Boorman, ‘Sheriffs’, 257-8. "8 See above, 506-7, below, 530. Note also Diceto, Ymagines historiarum, s.a. 1179, ed. Stubbs, i.

434, on investigation of shrieval activity, and a resultant desire to check their powers. '*? Oxford, Bodleian Library, MS Rawlinson, C 641, fo. 21r; PKJ, i. 151-3; P. A. Brand, “Henry II and the creation of the English common law’, in Henry I: New Interpretations, ed. C. Harper-Bill and N. C. Vincent (Woodbridge, 2007), 215-41, at 226.

518 PART III: ANGEVIN ENGLAND warrant [i.e. the person on whose behalf they conveyed the essoin] on the set day. And those who do not find gage and pledge are to be taken and held until they find pledge, and unless they have their warrant on the set day, they are to be taken and imprisoned. Moreover, in the courts of barons, if essoiners are unwilling to find gage and pledge that they shall have their warrant on the set day, and if they do not have [him], then let them be taken as perjurers."°

Like the Inquest of Sheriffs, this legislation is particularly significant because it shows the king concerning himself with the behaviour of baronial as well as royal and county courts." Mid-1170s to early 1190s The chronicler Ralph de Diceto saw firm royal administration of justice in matters of landholding and crime as one cause of support for the rebellion of Henry II's son, Henry the Young King, in 1173-4.” However, whilst the treatment of rebels after the revolt’s defeat was mild, the process of the restoration of order involved further royal assertiveness. 1175 saw the most thorough eyre so far conducted, with Ranulf de Glanville and Hugh de Cressy visiting fifteen counties, and William de Lanvalei and Thomas Basset visiting fourteen.*’ Thereafter visitations of the eyre occurred on average every other year until the mid-1190s."4 In January 1176, a council was held at Northampton, and this arranged a new eyre together with a new set of instructions that the itinerant justices had to swear to keep and ensure that others would observe. Howden called these instructions

the Assizes of Northampton, using the plural form. He stated that they were made at Clarendon and afterwards ‘recorded’ at Northampton, but it is unclear to how many clauses this refers.** The first clause revises the Assize of Clarendon procedures concerning serious offenders. It may have added the crime of forgery

to those previously dealt with by presentment, and certainly increased punishment for those convicted of the specified felonies: they were to lose not only a foot

‘°° Tt seems possible that something is missing in the final sentence. "5! On essoins, see below, 588-91. For other possible evidence relating to judicial and legal matters in 1170, see Hudson, Land, Law, and Lordship, 259 nn. 20-1. *** Diceto, Ymagines historiarum, s.a. 1173, ed. Stubbs, i. 371. Henry is referred to as ‘the Young King’ as he had been crowned in 1170. It was common for kings of France to have their eldest son crowned, creating a co-king, but this was not customary in England. "°° PK, iii. lvi. *°* See below, 544-8. “°° Howden, Chronica, s.a. 1176, ed. Stubbs, ii. 87-9; also Diceto, Ymagines historiarum, s.a. 1176, ed. Stubbs, i. 404; note also Brand, ‘Henry II’, 225. Some of the new articles treat recent events, e.g.c. 8

on the demolition of castles. See below, 545, on the shift in the nature of the eyre at this point.

21 KINGS AND LAW 519 but also their right hand, and were given forty days to abjure the realm.%° Other clauses have no basis in the surviving texts of the Assize of Clarendon. There were specifications concerning inheritance and the pursuit of claims by heirs against lords who excluded them. It was also laid down that ‘the justices of the lord king cause recognition to be made concerning disseisins made contrary to the assize, from the time at which the lord king came to England immediately after the peace made between himself and the king his son’.” It could also be at this time that new commercial regulations came into force, with references to amercements for wine sold ‘contrary to the Assize’, probably, that is, in measures smaller than those that an Assize had specified as standard." The period may also have seen royal justices encouraging litigants to come to royal courts in order to make their agreements, and to pay for juries to answer a specific question arising in a land case. In addition, the keeping of plea rolls by royal justices may have developed from the mid-1170s."° New measures continued to be established after 1176. These may have included arrangements concerning distraint of a lord’s men for the lord’s debt, a subject on which Henry certainly legislated for his continental possessions in 1177.'*° A new provision allowed Jews to build cemeteries outside city walls, whereas previously all Jews had been brought to London for burial.’** There were changes in arrangements for royal courts. In 1178, according to Howden, Henry reduced the number of justices from eighteen to five, two clerics, three lay, all from his household. They were not to leave his court but to remain there to hear men’s claims. Such measures were probably not fully implemented, and other arrangements would later be put into place, including a new eyre in 1179.” Diceto gives an impression of repeated experiment. The king unchanging in his purpose, again and again made changes in personnel while maintaining an unchanged opinion.... He made use now of abbots, now of earls, now of

"°° Assizes of Northampton, 1; on forgery see Holt, ‘Assizes’, 95. "°7 Assizes of Northampton, 4, 5; on novel disseisin, see below, 609-11. Note also the suggestion by Biancalana, “Want of Justice’, 518, that ‘the greater number of Pipe Roll entries after 1176 relating

to dower litigation suggests that Chapter Four of the Assize of Northampton was the source of the precipe writ of dower’.

8 PR23HII, 29-30. At some point in Henry’s reign there was also an assize concerning bread; see W. Cunningham, The Growth of English Industry and Commerce (2 vols; 2nd edn, Cambridge, 1890-2), i. 502-3. "°° See Stenton, English Justice, 49-51, Hyams, ‘Charter’, 185; below, 542.

““° Howden, Chronica, s.a. 1177, ed. Stubbs, ii. 146; below, 700, 704. See further, below, 706, on legislation relating to imprisonment of debtors to the king. See also Gesta regis Henrici secundi, s.a. 1177, ed. Stubbs, i. 138, for an enquiry into services owed by tenures-in-chief. “ Gesta regis Henrici secundi, s.a. 1177, ed. Stubbs, i. 182 “ Gesta regis Henrici secundi, s.a. 1178, 1179, ed. Stubbs, i. 207-8, 238-9; PKY, iii. lx-lxiv.

520 PART III: ANGEVIN ENGLAND tenants-in-chief, now of members of his household, now of those closest to him, to hear and judge cases. At length, after the king had appointed to office so many of his faithful men of such diverse callings, who proved harmful to the public good, and yet he had not quashed the sentence of any official, when he could find no other aid more beneficial to the interests of his private affairs, he raised his eyes to heaven and, thinking about worldly matters, borrowed something from heavenly ones.... The king appointed the bishops of Winchester, Ely, and Norwich arch-justiciars of the realm.'#

Whatever their spiritual virtues, these men had also been particularly loyal supporters of Henry in his conflict with Becket. From the late 1170s, probably the 1179 Council of Windsor, comes the grand assize, already cited in the context of the ideology of legislation. This allowed the tenant to choose that a case concerning right to land or services of a free tenement be determined by oath of twelve lawful knights before the king’s justices.’4 Provisions of the Third Lateran Council in 1179, which permitted bishops to fill livings that had not been promptly filled, probably led to the assize of darrein presentment, a speedy procedure to decide who should present to a vacant living

on the basis of the last presentment; questions of right could be settled more slowly by other methods.'*® Legislation continued in the 1180s."4° In 1180-1 specifications were made con-

cerning the obligations of men of different status to bear arms. Unusually, such legislation was made in a co-ordinated fashion, first in Henrys French posses“> Diceto, Ymagines historiarum, s.a. 1179, ed. Stubbs, i. 434-5; note also his mention (at i. 434) of the hanging of homicides and the exile of traitors; this may be a general statement of firm justice, or may be a reference to a particular judicial effort. ™* See above, 499, below, 600-3; note EYC, ii. no. 1220. See J. H. Round, “The date of the grand assize’ (1916) 31 EHR 268-9. M. MacNair, ‘Vicinage and the antecedents of the jury’ (1999) 17 LHR 537-90, at 585, suggests that the measure may have been introduced as a result of Henry II’s promise to the pope that clerks should not be compelled facere duellum, which he translates as ‘to wage battle’, rather than actually fight the duel. However, the phrase does seem to mean actually fighting. Glanvill uses vadiare for ‘wage’, i.e. give security, as opposed to fight; see e.g. Glanvill, ii. 3, ed. Hall, 23. See also

e.g. PK, iii. no. 995: “Let there be duel concerning this. It has been waged [Vadiatum est]. Henry II’s promise therefore does not prohibit clerics from offering to prove their case through trial by battle fought by a layperson. Glanvill makes no association of the grand assize with the position of clerics. See also below, 532 n. 221.

“° Brand, ‘Henry IT’, 227; Royal Writs, 332-3; below, 606-7. Lateran III, 17; see also c. 8; Sacrorum conciliorum nova et amplissima collectio, ed. J. D. Mansi (31 vols; Florence etc., 1759-98), xxii. cols 222,

227. The time limit in the decree of the Council and in the later canons based upon it varied, at two, three, or four months. In England the time limit specified in a decretal of Alexander III and probably employed thereafter was six months. For a summary of these time limits, see J. Tate, "Ownership and possession in the early common law (2006) 48 AJLH 280-313, at 306 n. 179. For discussion of the possibility that the assize had its beginnings before 1179, see Tate, ‘Ownership’, 307. “*° On regulations concerning the recoinage of 1180, see Diceto, Ymagines historiarum, s.a. 1180, ed. Stubbs, ii. 7; G. Stack, ‘A lost law of Henry II: the Assize of Oxford and monetary reform’ (2006) 16 HSJ 95-103. On developments in the action of naifty possibly to be dated to the 1180s, see Hyams,

21 KINGS AND LAW 521 sions, and then in England with the Assize of Arms. This Assize again shows the

king dealing with the free men of the realm directly rather than through lords. Not only was an oath to the king required from the bearers of arms, but the Assize also, for example, prohibited that ‘a lord in any way deprive his men of [arms]

either by forfeiture or by gift, or as gage, or in any other manner. The Assize further reveals the intrusiveness of Angevin government, and its characteristic emphasis on information gathering, record-keeping, and regulation.” Then, in 1184, we have significant legislation concerning the Forest.'#* Meanwhile, another

development may suggest that the royal courts were becoming over-burdened, for it seems to be at this time that administration of cases concerning replevin, that is reclaiming of distrained goods, were passed from the eyre to the sheriff. Legal and judicial activity and innovation continued under Henry’s sons.’° Soon after Henry's death, his widow Eleanor of Aquitaine, on the order of her son Richard who was yet to be crowned, made a decree concerning the release of all those imprisoned in England. Those held for Forest offences or through the will of the king or his justiciar, or appealed by approvers, were to be freed and quit. Others had to give security through pledges or oath that they would stand to justice if anyone wished to bring a plea against them. All free men were to swear to be faithful to Richard, ‘and that they should be justiciable to him, and lend him aid for preserving his peace and justice in all things.’* As the last section makes clear, the decree should not be seen as a permanent loosening of royal justice, and in 1190 a new eyre was under way.” Whilst on his way to Crusade, Richard quitclaimed his right of wreck throughout his land. All shipwrecked people who reached shore alive were to have all their goods. Sons and daughters, or brothers and sisters, were to have the goods of the dead, if they could show that they were the closest heirs. Only the goods of those who died without children or siblings were to pass to the king.** Howden describes regulations made for the Crusading fleet as ‘assizes’,*+ but Richard’s absence on Kings, Lords, and Peasants, 223. Note also Count Geoffrey of Brittany’s assize concerning inheritance and wardship, cited above, 499. “7 Howden, Chronica, s.a. 1181, ed. Stubbs, ii. 253, 260-3. “#8 See above, 472-3.

See below, 553. °° For regulation of the Jewish communities in England and Normandy, see below, chs 26, 28. On the use of novel disseisin for retrieval of rents, see below, 614; on possible legislation concerning bequest of lands, below, 657. For legislation of Richard I in Normandy on clerical and ecclesiastical matters, see TAC, 72, ed. Tardif, 68-9. *°*" Howden, Chronica, s.a. 1189, ed. Stubbs, iii. 4-5.

12 PK, iii. Ixxxi-lxxxiv. ‘°° Howden, Chronica, s.a. 1190, ed. Stubbs, iii. 68. *°* See Howden, Chronica, s.a. 1190, ed. Stubbs, iii. 36, 45; see also iii. 58-60.

522 PART III: ANGEVIN ENGLAND crusade and then in prison is one reason why royal decrees seem less prominent in his reign than in his father’s. In addition, the disturbed state of his lands in the early 1190s may have disrupted judicial activity.

Mid-1190s to mid-1200s The appointment of Hubert Walter as justiciar in late 1193 and the release of Richard in February 1194 gave renewed impetus to activity and innovation. In August of that year a ban on tournaments was replaced by a licensing system; the regulations laid considerable emphasis on the maintenance of the peace.** A new eyre was launched in September 1194, and for the first time a text explicitly containing the articles of the eyre is preserved, in the Chronicle of Roger of Howden." These reveal the eyres particular concern with royal resources and with recent political events, but also include more strictly legal and judicial matter. As the first surviving text, the extent of change is unclear. Two possible innovations have already been cited, the appointment of keepers of pleas of the crown and the prohibition of sheriffs acting as justices in their own counties.’ In addition, possessions of the Jews were to be recorded in writing and one copy of the cirograph kept in a special chest (c. 24). However, an enquiry into exactions of royal officials was postponed (c. 25). The grip of royal government was reafhirmed the following year when Hubert Walter sent a ‘form of oath’ throughout England: That all men of the kingdom of England shall preserve the peace of the lord king to their ability [pro posse suo]; and that they shall not be thieves or robbers nor receivers thereof,

nor consent to them in anything; and that when they can learn of wrongdoers of this sort, to their utmost ability they shall take them and deliver them to the sheriff...

Likewise, hue and cry was to be properly obeyed. Such were confirmations of existing provisions, but with duties specified for certain knights, who had not only to take oaths from those aged fifteen years or over but also receive captured criminals and hand them over to the sheriff. According to Howden, many who were forewarned and were of bad conscience fled, but many others were seized and imprisoned by those responsible for enforcing the oath.’* Unusually we can give a precise date to a record-keeping development in the mid-1190s. Chirographs, that is documents on which a text was written out two

°° Diceto, Ymagines historiarum, s.a. 1194, ed. Stubbs, ii. lxxx-lxxxi, 120-1; Howden, Chronica, s.a. 1194, ed. Stubbs, iii. 268; William of Newburgh, Historia, v. 4, Chronicles of Stephen etc., ii. 422-3.

"°° Select Charters, 252-7, and below, 546-7; see also above, 499-500, on Henry II’s legislation being issued to the eyre. *°7 Above, 507-9. "°° Select Charters, 257-8, Howden, Chronica, s.a. 1195, ed. Stubbs, iii. 300.

21 KINGS AND LAW 523 or more times and then cut into separate sections each containing a copy of the text, had long been used to preserve agreements or decisions. Those recording agreements in the king's court, known as final concords or ‘fines’, had developed a specific form. Then a chirograph recording an agreement made in the king’s court at Westminster on 15 July 1195, between Theobald Walter and William Harvey, was endorsed as follows: This is the first chirograph that was made in the court of the lord king in the form of three chirographs [under the instructions of] the lord of Canterbury [Hubert Walter] and the other barons of the lord king, so that by this form a record could be handed over to the treasurer to place with the treasure [in thesauro].'*

The new third copy, written on the lowest part of the parchment, was known as the ‘foot’ of the fine. Such feet of fines were soon extremely numerous. Their production emphasises the importance of regular central record-keeping and multiple copying, both characteristics of Angevin bureaucratisation.’® At about this time, the general judicial element of the court at Westminster came to be separated from the financial aspects of the Exchequer. The distinct judicial body would be referred to as the Bench.’* Then, in the eighth year of Richard's reign, there was further legislation on commerce, known as the Assize of Measures. All measures of corn, legumes, and other similar goods, were to be equal throughout England. Similar provision was made for wine, ale, cloth and other goods. Enforcement procedures were set up. If anyone was found to have infringed the legislation, he was to be taken, imprisoned, and his chattels seized into the king’s hands. Those imprisoned were only to be freed by order of the king or chief justiciar. The Pipe Roll records under London and Middlesex £11 16s. 6d. assigned for ‘a purchase to make measures and gallons and iron rods and weighbeams and weights to send to all the counties of England.” Evidently the intention was to apply the law thoroughly, and in 1198 itinerant justices were instructed to investigate implementation.'"* At the start of Johns reign there was legisla-

tion concerning the price of wine, again specifying methods for enforcement. *°° Feet of Fines in the Public Record Office of the Reign of Henry II and of the First Seven Years of the Reign of Richard I (17 PRS, 1894), no. 21. The phrase ‘in thesauro’, often translated as ‘in the

Treasury, indicates the chests in which the king’s treasure was stored; see Clanchy, Memory to Written Record, 163-4. For the existing use of bipartite ‘final concords’, see Hyams, ‘Charter’, 179. "°° See CRR, i. 208, for a party vouching to warranty ‘the justices and the foot ofa chirograph that is in the treasury. ‘°' For this development, see below, 539-40. "©? Howden, Chronica, s.a. 1197, ed. Stubbs, iv. 33-4; PR9ORI, xxi-xxii, 160. Magna Carta, 35, sets down the width of cloth as ‘two ells within the selvedges.’ An ell seems to have been five spans, that is about 45 inches, 115cms; Surrey, i. 101.

‘°° Howden, Chronica, s.a. 1198, ed. Stubbs, iv. 62.

524 PART III: ANGEVIN ENGLAND However, it turned out to be unenforceable in its proposed form, and so, according to Howden, ‘the land was filled with drink and drinkers. Howden likewise mentions that in 1201 merchants purchased from royal justices non-enforcement of Richard I's legislation concerning measures of cloth and of grain. Commercial regulation clearly had an impact, but one tempered by the selling of exemptions; need for money encouraged prescription to be transformed into licensing.’ 1198 saw a Forest eyre, for which Howden provides details of an Assize,'* and a general eyre, for which he preserves the articles. These deal with the application of the regulatory assizes and with many of the matters that had been covered by the 1194 articles.°° Enquiry was to be made into the conduct of royal officials. Plea rolls meanwhile suggest that in 1198 it was laid down that those winning pleas of novel disseisin should have damages assessed in their favour.’” The early years of John saw various developments. In 1204 there was legislation on foreign trade and customs,’® whilst legislation in the same year on coin clipping

led on to measures for the reform of the coinage in 1205."°° On administrative matters, there was a decree concerning stewards answering for their lords’ debts at the Exchequer, as well as the introduction in 1199 of a new scale of charges for royal

documents.’ In the following year, the king instructed his justices at the Bench that ‘they are to do nothing for anyone on account of charters or letters patent that they have from his ancestors, unless they see his own confirmation concerning any matter that is treated in their presence.”! This measure is known from an isolated entry in the Curia regis rolls, and other similar ones may be unknown to us. The

'©4 Howden, Chronica, s.a. 1199, 1201, ed. Stubbs, iv. 99-100, 172. See also PR4J, xx-xxi. “°° See above, 474. “°° Howden, Chronica, s.a. 1198, ed. Stubbs, iv. 61-2; note that these may only be the articles for the

northern circuit. They spell out more fully, and in some instances modify, some matters mentioned in 1194; for example, the limit for grand assizes is doubled to lands worth £10 per year. For an 1196 administrative enquiry, see Howden, Chronica, ed. Stubbs, iv. 5. Note also Howden, Chronica, s.a. 1198, ed. Stubbs, iv. 46-7, for regulations concerning punishment of those attempting to evade the carucage of 1198. *°” See below, 619.

‘88 Rot. lit. pat., 42-3. See also above, on commercial regulation and licensing. In addition Richard’s charters in favour of the Jewish communities in England and Normandy and regulating their legal position were renewed in 1201; below, 773-5.

“°° See PR7J, xxvii-xxxii; Rot. lit. pat., 47b, 54b. Note also PR8J, xxv-xxvi, on the 1206 eyre’s enforcement of the Assize of Wine.

“7° Howden, Chronica, s.a. 1200, ed. Stubbs, iv. 152, on the Exchequer; Foedera, i. 75-6 on the chancery. 7. CRR, i. 331; cf. Howden, Chronica, s.a. 1198, ed. Stubbs, iv. 66, on Richard I requiring renewal of charters and confirmations, with his new seal. Letters patent were sealed open, so that the document could be read without the authenticating seal being broken (cf. above, 516, on sealing ‘closed’). They were used to convey instructions, a commission, or information, including concerning various types of grant. Often, although not universally, they mention only the king as witness [teste meipso].

21 KINGS AND LAW 525 introduction in 1201 of the writ of attaint, used in complaints that recognitors in possessory assizes had been dishonest, is known through entries in records, not a separate legislative text.”? An apparently chance entry, this time on the Close Rolls for 1204, informs us that henceforth the writ of entry sur disseisin should be issued de cursu, that is routinely and for a low charge.”? Writs of entry concentrated on a particular alleged flaw in the tenants title, in this instance that the land had been obtained by disseisin, and brought the case before the royal justices. The de cursu issuing of such writs would further extend royal jurisdiction, although their impact remained limited at the end of Johns reign.’

There was an extensive eyre in 1201-3 and another in 1208-9, as well as a Forest eyre in 1207 and other commissions with more limited competence.” The loss of Normandy led to various measures, including provisions against invasion.’”° One of these decrees in 1205 concerned itself not only with invaders

but also with ‘other disturbers of the peace’.’”” In the same year there was an order that prisoners accused of serious offences be released, in return for finding pledges or abjuring the realm, whilst in 1207 ‘the justices and all loyal men’ were instructed that those appealed of homicide were to be imprisoned until they had

their judgment in the presence of the justices, rather than being bailed or kept by other methods short of gaoling.”®

The last years of John The last years of John’s reign are significant for the king's particularly close control

of judicial matters, most notably concentrating business in the court that met in his presence.’ In 1213 measures were taken against possible invasion, with the

‘7?’ Rot. de ob. et fin., 193; CRR, ii. 97-8. Note also CRR, ii. 33. On attaint, see below, 623. Note also

below, 702, for arguments that the viscontiel justicies writ of debt was introduced in the early years of John’s reign. ‘7° Rot. lit. cl., i. 32b; G. D. G. Hall, “The early history of entry sur dissesisin’ (1968) 42 Tulane LR, 584-602; below, 582, on writs ‘of course’. "74 See below, 620-1. ‘7° See below, 544-8; above, 474. For an early copy of the articles of the 1208-9 eyre, see London, British Library, Additional MS 14252, fos 117r-18r.

‘7° There may also have been provision or decision that those in Normandy who transferred their loyalty to the king of France were not to be allowed to bring land claims in England, but no contemporary evidence survives. ‘’” Rot. lit. pat., 55; Gervase of Canterbury, Gesta regum, ed. Stubbs, ii. 96-7. "78 Rot. lit. pat., 54, 76. Note also Rot. lit. cl., i. 111 (11 April 1208): John orders sheriffs to proclaim

that no-one, as they loved their bodies and chattels, should do or speak evil against men of religion or clerics, against the king’s peace; if anyone was caught so doing, the king would make them be hanged from the nearest oak. ‘7? See below, 538.

526 PART III: ANGEVIN ENGLAND issue of a revised assize of arms."*° Meanwhile, in 1210 the king issued a charter instructing that English law and custom be observed in the lordship of Ireland. The composition of the first surviving Register of Writs may be associated with this

measure." Conclusion The periodisation adopted in this chapter is necessarily somewhat arbitrary, but does distinguish various stages of reform. In the early years of Henry IIs reign, the king was intent on restoring order. Often he relied on cases being brought to him, or was happy for justice to be provided through lords’ or indeed overlords’ courts.’ In this sense he was simply seeking to make the old system work according to its own terms,

in his words to restore the situation of his grandfather Henry I's time. This aim, however, also allowed for the extension of royal power, as Henry probably had an idealised view of the rights and power of his grandfather, the “Lion of Justice." Such an attitude helps to account for a shift to greater royal assertiveness from

around 1163. Royal assertiveness, indeed aggression, was both expressed in and encouraged by the Becket dispute, itself originating partly in contestable royal jurisdictional claims.’** Especially from 1166, with the Assize of Clarendon, royal justice was actively taken to the localities. The Assize also showed concern that local interests were blocking proper exercise of justice, a concern earlier manifest in the decree on default of justice. The same period saw the introduction of some of the new, easily replicable measures that were to characterise later Angevin reforms, for example use of the presentment jury in the Assize of Clarendon, and of recognitions in the assizes utrum and novel disseisin. It was, however, the 1170s that marked the most significant shift in administrative

reform.’ Whilst experiment continued, a greater degree of routine is henceforth present. This is clearest in the regularity of eyres operating through several groups of justices, and the establishment of important land law procedures such as the grand assize. With increasing frequency representatives of central government were intruding into local life, a process also manifest in commercial regulation. 18° CCR, 1227-31, 398. "5" See below, 864.

"8? Note also the decision of his court in Normandy concerning trial by battle in courts of tenantsin-chief there, cited above, 512 n. 92.

“> Note also the religious element in reform in this period, e.g. with its concern regarding heretics; above, 515.

"84 See esp. Constitutions of Clarendon, 1, 3, 9; above, 513-14. The initial appointment of Becket, too, was of course a sign of royal assertiveness in relation to the Church. "8° See also below, 539, on the Exchequer court; below, 542, 547, on record-keeping; Brand, ‘Henry IT, 232-4, 240.

21 KINGS AND LAW 527 Thereafter reform continued, for example with extension of commercial regulation. Further incremental, if less marked, change took place in the administration of justice regarding land and other rights, for example with new writs of attaint and of entry, modifications to existing writs, and refinements to procedures such as the grand assize.’*° Although plea rolls probably existed before Hubert Walter's time as justiciar in the 1190s, he may well have given an important impetus to record preservation and also to record creation, demonstrably so with feet of fines. The latter years of John’s reign show the continuing possibilities of change in arrangements for royal courts.

The focus of the above chronology is deliberately upon England. The Assize of Arms appears to have been exceptional in being introduced in co-ordinated

fashion both in Normandy and in England. Normally, reforms in England were confined to that realm. This does not mean that parallel measures were not taken elsewhere in the Angevin kings’ dominions, particularly Normandy. Lacking an equivalent chronicler to Roger of Howden, evidence for legislation is more limited elsewhere, with only mentions or hints in narrative and other sources.” Normandy had the equivalents of novel disseisin, mort d’ancestor, and other recognitions.** However, English developments produced a degree of royal control not matched even in Normandy.’ A ducal writ does not seem to have been required to compel a man to answer concerning his free tenement, whereas in England a royal one was.’ Why was there not greater uniformity of development? The Angevin kings do not seem to have aspired to standardise administration of justice across their lands; according to the Angevin chronicler John of Marmoutier, the dying Count Geoftrey of Anjou forbade his son, the future Henry II, to transfer the customs

"8° See PKJ, i. 13, on changes to writs between the time of Glanvill and 1199; below, 620-1, on writs

of entry, and 602, for Glanvillon refinements to procedure in the grand assize. "87 See above, 499, 511-12, 520-1; Haskins, Norman Institutions, 326-7, and J. Yver, “Le “Trés Ancien Coutumier” de Normandie, miroir de la législation ducale’ (1971) 39 TVR 333-74. "88 See TAC, 7, 16, ed. Tardif, 7, 18; it is not clear from this text whether the recognitions always had to take place before ducal justices, nor whether the procedure was routinely begun by writ. "8° See also below, 857.

°° See below, 557. ‘°* Note also that some similar developments occur outside the dominions of the Angevin kings, demonstrating that no single political impetus need underlie such procedures. See e.g. S. M. G. Reynolds, ‘How different was England?’ Thirteenth Century England VII, ed. M. Prestwich et al. (Woodbridge, 1999), 1-16, esp. 8-9; R. C. van Caenegem, ‘Criminal law in England and Flanders under King Henry II and Count Philip of Alsace; in his Legal History: a European Perspective, 37-60, at 41-2. Note, however, that e.g. comparison of English procedure in novel disseisin with that in Touraine and Anjou confirms the much greater royal control in England; Les Etablissements de Saint Louis, i. 69, ed. P. Viollet (4 vols; Paris, 1881-6), ii. 104-10; for another version see i. 58, ed. Viollet, iii. 34-6. See also e.g. Philippe de Beaumanoir, Coutumes de Beauvaisis, 32, ed. A. Salmon (2 vols; Paris, 1899-1900), i. 485-99.

528 PART III: ANGEVIN ENGLAND of England or Normandy into his county of Anjou, or vice versa.’ Perhaps still more important was the influence of royal administrators. At least from about 1180 justices generally confined their main activities to one region of their king’s lands, although they might also undertake specific tasks elsewhere. As we will now see, such men were crucial to judicial and legal developments.

4 REFORMS AND REFORMERS There was no overall plan for the Angevin reforms. New procedures developed from specific legal, administrative, or political circumstances, or even from a specific case.’ Rather, the reforms were fashioned by a developing set of attitudes among those involved in the royal administration of justice. Fundamental were

the long-standing royal duties of maintenance of the peace and provision of justice, together with increasing emphasis on active provision of royal justice. Such concerns might inspire royal action concerning land disputes as well as concerning what we now think of as crime.’ The extension of royal justice was not presented as a campaign against other

courts. Some central measures such as the action of right acknowledged the role of seignorial courts, whilst implementing the king’s accepted jurisdiction over default of justice.’° However, this pattern does not entirely fit the process of reform, most notably in the field of crime where royal rights were vigorously applied through new processes.'* Likewise, some important land measures, for example the grand assize, are hard to see merely as dealing with failures of jus-

tice.” Certainly the right to hear cases of default of justice might be a useful negotiating tool for the king and his advisers when justifying innovations to the aristocracy. However, Guernes de Pont-Sainte-Maxence’s comment that the decree on default of justice ‘caused the barons of the country great harm,

°* Chroniques des comtes d’Anjou et des seigneurs d’Amboise, ed. L. Halphen and R. Poupardin (Paris, 1913), 224.

°° See e.g. below, 543, on the Exchequer of the Jews, 612, on novel disseisin and the case of John Marshal; also M. T. Clanchy, “The franchise of return of writs’ (1967) 5th Ser. 17 TRHS 59-79, at 61-2,

on the invention of the writ non omittas. In addition, measures might have a much more general effect than originally intended; see e.g. below, 557-8.

*°* On connections between the two, see below, 613. Also Hudson, Land, Law, and Lordship, 42-4, "°° See Biancalana, “Want of Justice, esp. 437-8, 441. For collaboration between royal and seignorial courts, although with the royal in a superior position, see also e.g. Glanvill, viii. 11, ed. Hall, 102-3, below, 569.

°° For the king allowing existing procedures to continue in criminal matters, whilst supplementing them with presentment, see below, ch. 27. *°7 On royal restriction on the role of overlords, see below, 571.

21 KINGS AND LAW 529 whereby each lost his court by a false oath’, suggests awareness that the principle could be used simply to extend royal power.’ As in his assertion of tendentious royal rights against Thomas Becket, Henry II was surely aware that many of his reforms increased royal power. Some of the impetus for reform must have come from the kings themselves.’ Dispensing justice was an archetypal royal role. Kings also knew that justice was profitable, both through major renders from great men and through smaller but

much more numerous proffers, amercements, and forfeitures from the type of business conducted through the eyre.*°° How far any Angevin king was involved

not just in making judgments, but also in wider legal developments is hard to tell, but Ralph Niger stated that Henry II ‘abolished ancient laws and every year proclaimed [edidit] new laws, which he called assizes’, Walter Map that Henry was discerning ‘in making laws and ordering all his rule’ as well as being ‘a clever finder of out-of-the-ordinary and obscure judgments .*” Henry was perceived to be legislator as well as judge.

If the king provided crucial impetus, at the heart of the construction and implementation of the reforms lay a group of royal administrators. Their importance was increased by the frequent absences of the Angevin kings in their continental lands and Richard’s absence on Crusade and then in captivity. Although many, including such leading figures as Ranulf de Glanville and Hubert Walter, undertook a multitude of tasks, there was also an increasing degree of specialisation in legal and judicial matters.*” Whilst membership changed, the core group remained close-knit. Initial unity may have been gained from their support for Henry II against Becket.’ Thereafter local, family, and household links became very important, notably connections to East Anglia and to Ranulf de Glanville and then to his nephew, Hubert Walter.’ Particularly after the death of Robert earl of Leicester, men of knightly origin predominated. Such social origin may explain signs that the administrators were assertive of the king’s role as protector of lesser

8 See above, 512. °° Tt is possible that John gained some of his interest in matters of law from Ranulf de Glanville, whom Howden describes as his ‘master [magister]’ in 1183; Gesta regis Henrici secundi, i. 304-5. *°° See e.g. PR6J, xi-xxxiii; N. Barratt, “The revenues of King John’ (1996) 111 EHR 835-55, at 846-7, 849; below, 633, 848 on payments; ch. 27, on amercements; 845, on critics claiming that justice was sold. From just after our period, see a letter from an itinerant justice to the chancellor, describing the profits raised by an eyre; Meekings, ‘Six letters’, 499. *®" Ralph Niger, Chronica, ed. Anstruther, 168; Map, De nugis, v. 6, ed. James et al., 476.

*°? Specialisation was linked to family; see above, 485-6. *°° See e.g. ODNB on John of Oxford and Richard of Ilchester. *°* See Carte antique, 11-20, no. 378, for the first mention of Hubert Walter, which is in a witness

list with Ranulf de Glanville and other prominent royal administrators and justices; Turner, Judiciary, 24-5, 104, 106-7.

530 PART III: ANGEVIN ENGLAND men against possible aristocratic oppression. Similar assertiveness may have been characteristic of administrators, including clerics, who came from families with a tradition of royal service. One such man, Henry's treasurer Richard fitzNigel, wrote that God had entrusted the king with the care of all those subject to him, and described lords as their mens ‘household enemies [domesticis hostibus|. He presented itinerant justices as ‘doing full justice to those who considered themselves

wronged, saving the poor both labour and expense. At the same time, the men were serving royal needs, an aspect of Angevin government also apparent from the diverse duties of the eyre. According to the Dialogue of the Exchequer, royal servants were devoted to the king's interests, when justice permits it. Related attitudes affected dealings with sheriffs. As already noted, sheriffs might be seen as opponents of royal government or as barriers to strong rule. At the same time, they might be allowed further duties, particularly when delegated by specific royal instruction; their position as royal servants was thus asserted. To do the king's business in the localities, the king’s administrators also looked beyond sheriffs, to a large number of men of similar or slightly lesser origins than themselves.*°® Again an ethos of royal service was asserted, in a fashion necessary if processes of centralisation were to be successful; those processes of centralisation relied on an element of local self-government, but self-government very firmly at royal command.” What legal learning did the core group of reformers possess? The chronicler Roger of Howden had been a royal justice, and possessed a collection of legal texts that included a set of ten decrees attributed to William I, the Leges Edwardi Confessoris, a glossary giving Latin and French versions of Old English terms, the law-book Glanvill, and legislation of Henry II.’° It is not certain whether he possessed these when a justice, nor whether so extensive a collection was typical for an itinerant justice, but the list gives some sense of the type of texts that those at the heart of reform might have had. Certainly the number of surviving early manuscripts of Glanvill suggests that each regular royal justice may have possessed one.*°? Manuscripts of Glanvill also show justices engaging in debate

*°° Dialogus, i. 3, ii. 2, 10, ed. Amt, 12, 116, 152. See also the comments in Map, De nugis, i. 10, ed. James

et al., 12-14, regarding the social origins of royal justices. Note above, 497, for ‘royal power’ being the opening words of Glanvill. On reforms protecting those from whom lords unjustly claimed services, see below, 612-13, 640-1, 703-4. *°° See below, chs 23, 31.

*°7 Note also the numbers involved in judicial proceedings in a wide range of subsidiary roles, e.g. as sureties for amercements; see Surrey, i. 87. *°8 Howden, Chronica, s.a. 1180, ed. Stubbs, ii. 215-52.

*°° For the manuscripts, see S. C. Tullis, “Glanvill after Glanvill (unpublished D. Phil. thesis, Oxford University, 2007).

21 KINGS AND LAW 531 on legal matters, supporting Peter of Blois’ comment that at the court of Henry IT it was school every day.” Study of the arts would already have conferred some legal education,” but from the 1130s and 1140s we have our first evidence for Anglo-Norman clerics studying Roman law in Italy, and possibly for the teaching of Roman law in England, by Master Vacarius.”* Knowledge of Gratianss canon law collection, the Decretum, had reached England by the 1160s, and both sides in the Becket dispute

used Romano-canonical learning.** Englishmen continued to be prominent in legal studies in the last quarter of the twelfth century, the period from which may come Vacarius popular work for students of Roman law, the Liber pauperum.™ Whilst few royal justices bore the title ‘master, indicating extended formal education possibly including law, some royal justices including William de Longchamp had considerable Roman law learning. Others may well have undertaken some study of Roman and canon law whilst still more would have come into practical contact with at least canon law.” At the same time, it should be noted that of the men to whom some manuscripts of Glanvill attribute legal opinions, probably only Hubert Walter was a cleric. What then of the influence of the Romano-canonical learning on the Angevin reforms? Learned law may have encouraged the high claims that the reformers made for law, most obviously with the beginning of the Prologue to Glanvill

**° MTB, vii. 573; Hudson, ‘Leges to Glanvill’, 235-49; also Tullis, ‘Glanvill’, 33-4, 233, on the

appearance of terms such as questio and solutio in the margins of some manuscripts of Glanvill; Glanvill, ed. Hall, xliv-xlv.

*™* See e.g. E. Rathbone, ‘Roman law in the Anglo-Norman realm’ (1967) 11 Studia Gratiana 255-71, at 262. *™ See The Letters of Arnulf of Lisieux, ed. F. Barlow (3rd Ser. 61 Camden Soc., 1939), xv, on Arnulf

studying Romane leges, which may mean both Roman and canon law. *"° See below, 770-2. See also A. Duggan, ‘Roman, canon and common law in twelfth-century England: the council of Northampton (1164) re-examined’ (2009) 82 Historical Research 1-30. *"4 The Liber pauperum of Vacarius, ed. F. de Zulueta (43 Selden Soc., 1927). For an incisive summary regarding Vacarius, see Helmholz, Canon Law and Ecclesiastical Jurisdiction, 121-4; note also FE. de Zulueta and P. Stein, The Teaching of Roman Law in England around 1200 (8 Supplementary Series, Selden Soc., 1990). See further Helmholz, Canon Law and Ecclesiastical Jurisdiction, 124-32, and the works there cited; H. Mayr-Harting, “The role of Benedictine Abbeys in the development of Oxford asa centre of legal learning; in Benedictines in Oxford, ed. H. Wansbrough and A. Marett-Crosby (London, 1997), 11-19, 279-80.

**? See E. Caillemer, Le Droit civil dans les provinces Anglo-Normandes au xiie siécle (Caen, 1883),

50-72, for a partial edition of the Practica legum et decretorum attributed to William de Longchamp; for a continuation and correction, see G. Fransen and P. Legendre, ‘Rectifications et additions au texte imprimé de la “Practica legum et decretorum” de Guillaume de Longchamp’ (1966) 44 Revue historique de droit francais et étranger 115-18. Note also Rathbone, ‘Roman law’, 259-62, Turner, Judiciary, 7-8, 94-6, 150-1.

532 PART III: ANGEVIN ENGLAND being modelled on Justinian’s Institutes.” Learned law inspired discussion and justification of the lack of written law in England, whilst legal and other studies may have promoted more general emphasis on ‘reason [ratio]’, again apparent in Glanvill’s Prologue.’”

Romano-canonical learning may also have encouraged influential reformers to see at least some aspects of law as consisting of regular forms to which there were certain exceptions; such a presentation of law is clear in the learned law procedural tracts known as Ordines that were widely popular, notably in England.” It is possible that such works influenced the author of Glanvill when he set about planning his work, and his characteristic ‘dilemmatic method, working through alternative possibilities, can be found in some of the Ordines. On the other hand,

the method is not unique to such texts, and Glanvill’s approach is significantly different; learned treatises may provide inspiration more than a model.” In the Constitutions of Clarendon the methods for treatment of clerics accused of serious offences drew on Roman law, and it is possible that the group of learned lawyers assembled around Henry during the Becket dispute may have influenced the form of the assize of novel disseisin.”° However, there is no further sign that in secular matters there was extensive copying of Roman or canonical actions.” Even Glanvill's most Roman treatment of law, that concerning debt, shows learned influence more on vocabulary and presentation than on substance.” Participants in discussions in the king’s circle, even if lacking a thorough schooling in the learned laws, may have been happy to couch arguments in impressively Roman sounding terms, such as possessio and proprietas. Such vocabulary may have influenced thinking, but the Roman concepts were not wholly transferred to English law.”3 The absence of imposition, or even of extensive copying, of Romano-canonical practice may surprise, given the extent of Romano-canonical learning in England

and the important presence of clerics, including learned clerics, among royal

**° See above, 497-8; for lofty claims for law being made in the treatise attributed to William de Longchamp, see Practica legum, 1, ed. Caillemer, 50. **” Glanvill, Prol., ed. Hall, 2; see also Dialogus, i.16, ed. Amt, 96. **8 See e.g. Rathbone, ‘Roman law’, 263; also e.g. William de Longchamp, Practica legum, 23-5, ed. Caillemer, 60, for dilatory and perpetual exceptions. ** See esp. the judicious remarks of Hall in Glanvill, xxviii-xxix, and also Pollock and Maitland, i. 165; cf. Royal Writs, 376-7 (noting the caution expressed in 377 n. 2), Richardson and Sayles, Law and Legislation, 78-9. *2° See below, 611-12, 770-2.

*2" It is possible that clerical opposition to trial by battle encouraged the development of the grand assize; see Rathbone, ‘Roman law’, 265-6, 270-1, M. G. Cheney, Roger, Bishop of Worcester 1164-1179 (Oxford, 1980), 61-5; above, 520 n. 144. *2? Below, ch. 26. *2°' See below, 670-2; also Tate, ‘Ownership’.

21 KINGS AND LAW 533 justices.” In part the limitation may arise from hostility to Roman law.” However, there is no evidence of conflict between lay and clerical justices over issues relating to canon law or the importance of royal rights; indeed, according to Walter Map it was the clerical justices of the king who were the harshest.”° Men such as Hubert Walter appear to have been quite content to keep apart the law that they applied in Church courts and that which they applied in the king's. This successful wearing of two hats may appear peculiar to us, but such men were operating in a legal world where they might also be called upon to apply different custom in England and Normandy, Kent and Surrey, Canterbury and London.”” Uniformity might be an ideal expressed, for example, in Glanvill, but it was uniformity of custom of the king’s court.

Besides assertion of royal rights, what other general aims did these administrators have??”* They extolled reason,” but it is uncertain whether they favoured rational forms of proof in law.¥° Glanvill allowed to be replaced a nominated champion who died of natural causes before the duel. If the champion died ‘by his own fault [culpa]’, his nominator lost the plea.” It looks as if the champion’s death caused by his own fault or sin was taken as God’s judgment on the case. The reformers were also happy to extend use of ordeal by water in criminal matters. However, they may have been less content with trial by battle in matters relating

*2* Cf. the arguments of Duggan, ‘Roman, canon and common law’, and esp. the arguments put forward by R. H. Helmholz in various places, e.g. “Magna Carta and the ius commune’ (1999) 66 University of Chicago LR 297-371.

*2° Note that the clearest manifestation of such hostility is in Ralph Niger, a critic of Henry I] and his legal activities; see H. Kantorowicz and B. Smalley, ‘An English theologian’s view of Roman law’ (1943) 1 Mediaeval and Renaissance Studies 237-52. Note also ECf retr., 11.1 B 1-3. *2° Map, De nugis, i. 10, ed. James et al., 12. Note also Magna vita sancti Hugonis, iv. 6, ed. Douie and Farmer, ii. 28-9. *27 See Jocelin, Chronicle, ed. Butler, 84, for a distinction being drawn between Hubert Walter’s

roles as papal legate and justiciar. Note also Abbot Samson’s apparent ability to acquire different types of knowledge for his activities in secular and in ecclesiastical courts; below, 858, 860. *28 Note Gervase of Canterbury, Actus pontificum, ed. Stubbs, ii. 406, stating that Hubert Walter

knew ‘omnia regni...jura, which can be translated either as ‘all the rights of kingship’ or ‘all the laws of the realm’. *?° See e.g. Glanvill, Prol., ed. Hall, 2.

*°° For an indication from outside the royal circle of a fundamental belief that trial by battle could work as a way of obtaining divine judgment, see Lawsuits, no. 555: a charter of Roger de Clere stated that he had given to the monastery of Ormsby a quarter of the church that belonged to his fee which had been Hugh de Twit’s. He declared that ‘I Roger, by God’s aid, acquired [conquisivi] the aforesaid fee by duel in the court of the lord king at London, and so I judged it to be necessary to give a part of the fee to the service of God for the soul of my father and mother and myself and all my ancestors and friends.’ *S" Glanvill, ii. 3, ed. Hall, 24. Note, though, that Glanvill never refers to battle as judicium Dei.

534 PART III: ANGEVIN ENGLAND to land and other immovables, at least in the courts over which they presided.”” Concern that trial by battle favoured the physically strong, rather than doubts about all proofs that claimed to be God’s judgment, may underlie their desire for proof through local knowledge; such proof could offer the royal justices greater control than what Glanvill called ‘the doubtful outcome of the duel’.#? Certainly Glanvill took it as a great royal achievement to have provided the grand assize as an alternative to battle. The reformers sought methods of accelerating justice, unless the king’s particular interests required otherwise. Walter Map tells of a conversation he had with Ranulf de Glanville. After I had heard a succinct and just judgment given against a rich man in favour of a poor one, I said to Lord Ranulf, the chief justiciar, “Although the poor man’s justice might have been put off by many evasions, you reached it by a happy and swift judgment. ‘Certainly’, Ranulf replied, ‘we decide cases here much more quickly than

your bishops in churches.”

Speed was also related to routinisation of procedure. Royal justices who were outsiders dealing with large amounts of business may have been more willing to rule certain matters irrelevant, focusing decisions on more specific and standardised aspects of disputes.%° Uniformity was certainly not complete even in royal courts,”” but pressures towards uniformity existed, for example through consultation of the justiciar on hard cases.”* *** Brand, ‘Henry IT, 236, reasserts the line that the reformers favoured rational proof; cf. e.g. MacNair, ‘Vicinage, 579, 582, who argues on the basis of cases appearing in Lawsuits that the proportion of cases settled by battle was considerably greater in the second than the first half of the twelfth century. Note also e.g. the parties in Lawsuits, no. 453, using both battle and enquiry by a sworn body of knights.

*°° Glanvill, ii. 7, ed. Hall, 28. The discussion of the benefits of the grand assize, shows the author’s concerns about trial by battle, even if it does not give a straightforward justification of the grand assize in terms of rationality; see also the longer quotation above, 499. See also TAC, 17. 1, ed. Tardif, 18-19. Note the possibility of disorder arising in a court when a trial by battle was fought; CRR, i. 100.

*°* See above, 499, on speed being presented as one virtue of the grand assize; below, 615-16, on recognitions reducing the number of essoins that were allowed to delay proceedings. See also e.g. Helmholz, Ius commune, 133-4, who argues that the development of wager of law in secular courts differed from that of compurgation in Church courts because the small number of royal justices necessitated a less detailed procedure. *°° Map, De nugis, v. 7, ed. James et al., 508; Walter went on to retort that if the king were as far away from Ranulfas the pope was from the bishops, Ranulf would be equally slow. Ranulf, according to Walter, laughed and did not contradict him. *2° See below, 691-2, on private agreements. Also Helmholz, Ius commune, 133-4, on wager of law.

*°7 For lack of uniformity in judgments, see below, 676; for payments for non-routine procedures, see below, 582, 626; for other methods of influencing royal courts, see above, ch. 1. *°° Note e.g. Glanvill, viii. 11, ed. Hall, 102-3; see also below, 571.

21 KINGS AND LAW 535 The reformers extended the use of writing in administration, producing both the virtues and the vices of bureaucratisation. Records were produced, perhaps at first for the financial aspects of royal judicial administration, but quite possibly from the 1170s and certainly from the 1190s for not just the outcome of cases but also the mass of procedural matters, for example the hearing of essoins and the appointment of attorneys. From around 1200 we have evidence of earlier plea rolls being consulted, in the hope of finding material pertinent to current cases.”°

Still more importantly the reforms operated through standardised writs. The author of Glanvill may have been working from an earlier text giving a collection of writs, and certainly his own book could function as a kind of register of writs linked to specific remedies.”*° The sealing of some writs ‘closed’ indicates more routine use of writing, whilst use of ‘returnable’ writs exerted greater control of local proceedings." Even if writs had previously been showing some increase in detail of instructions, the changes apparent in Glanvill mark a major increase in standardisation and precision of royal control.

Thus the reformers worked with, but transformed, existing materials.’” In terms of their legal thinking, they drew on many sources, including traditional ideals of kingship, existing custom and procedures, and aspirations and vocabulary drawn from the learned laws, and developed them in ways to which their copies of Glanvill provide a fitting monument. In terms of procedure, they took the writ and the local inquest, routinising them into the reproducible forms already mentioned, and enforcing them from above. Experiments might sometimes lead to dead ends, whilst others succeeded but were transformed in their effect beyond what might originally have been imagined. But at the heart of the reforms were deliberately placed a few essential elements: the eyre, the returnable writ, the sworn body of local men. Adaptable and replicable, these elements would remain central to the administration of the common law. The effects of Angevin legislation and reform are studied in greater depth in the chapters that follow. Overall, there appears to have been a contrast between the effect that the reforms beginning in the 1160s had on matters of crime and on matters of landholding. At least after the initial restoration of order and efforts to settle land disputes after Stephen’s reign, crime may have been the king’s greatest concern, and the procedures put in place from the mid-1160s had a major effect

on prosecution, regular presentment supplementing the traditional method of appeal. However, in terms of actually convicting captured criminals, possibly *8° See below, 542, 547-8. *4° See esp. Glanvill, xii. 10-22, ed. Hall, 141-7. **" See above, 516.

** See also below, 611-12, on novel disseisin.

536 PART III: ANGEVIN ENGLAND after an initial impact the outcome may not have matched royal aspiration. In contrast, the impact on land law may have exceeded royal expectations, in terms both of uptake of the remedies offered and of wider effect upon procedural and substantive law. Hindsight encourages a sense of inevitability. The analysis above emphasises that the attitudes of the Angevin reformers were very significant, but also that

developments were far from pre-determined. For example, there were points where the chancellorship might have become established as the most important office for matters of administration of justice, whilst John’s concentration of business on his personal court might appear as one in a series of experiments, only anomalous when viewed from Henry III’s reign. Only slowly did the common law crystallise.

22

Courts peves chapters have emphasised that courts were assemblies with many functions. Whilst on occasion they may have dealt with a prevalence of legal

matters, these need not have been primarily judicial, but rather, for example, peace-keeping arrangements or witnessing of transactions.’ The Angevin period, however, saw the appearance of specialised royal law-courts that concentrated to a large extent on litigation.’

1 THE KING’S COURT The Angevin period saw a major increase in the business of the king’s court, and significant changes in its arrangements and functioning; changes regarding other courts were less marked. The king’s court took various forms. It might meet in the king's presence [coram rege], wherever he was in the realm. Or it might meet at Westminster, without the king being present in person. Or its justices might split into groups, travelling throughout the country on eyre.’ The various forms were closely connected, with some cases moving between them; all were called the king's court. There was no strict hierarchy rising from the eyre to the Bench at Westminster to the court coram rege. It might be arranged that a case be heard before the king if he was in England, or at Westminster if he was not.* Litigants might choose which form of the court to seek; bringing a complaint to the king or to the court at Westminster might obtain justice more swiftly if not more cheaply

" See above, chs 4, 12.

* For other business of such courts, see below, 547. On the effect of changes in royal justice upon other less specialised courts, notably the county, see below, 550-4, 569-73. For in some way similar developments in Church courts, see below, 565-8. > See also above, ch. 19, for Forest courts. * See e.g. PKJ, i. no. 3122, iii. nos 989, 995. CRR, i. 462 (1201), contains the statement that ‘all pleas that are held before the justiciars of the Bench are understood to be held before the lord king or the chief justiciar’; for a cautious interpretation, see PKJ, i. 101-2.

538 PART III: ANGEVIN ENGLAND than waiting for the next eyre.’ At the same time, there was an element of informal hierarchy. The surviving final concords and plea rolls from the mid-1190s to 1209

show that, when the king was in England but not at Westminster, the court at Westminster took on a somewhat subordinate role, its business reduced.® Cases of particular difficulty or concern might be transferred from itinerant justices to a central court or from the court at Westminster to the court coram rege.’

The court coram rege As in earlier reigns, the king might hear cases wherever he was in the kingdom. Therefore the importance of the court coram rege varied with the extent of the king’s presence in England. Richard I spent little of his time in the realm, whereas John was present for a very considerable proportion of his reign, particularly following the loss of his northern French possessions in 1204. From the autumn

of 1207 the plea rolls suggest that the king heard an increased proportion of cases, with a decline in the significance of the justiciar’s court, the Bench at Westminster.® Then in 1209 pleas were transferred from the eyre and Bench to the court coram rege.2 When pleas were heard later in 1209 and in 1210-12, it was in the king’s presence and not, it would appear, that of the justiciar. When the king

was absent in Ireland in 1210, cases were adjourned until his return. There are no rolls or final concords from eyres between June 1209 and February 1214. Such

concentration upon the king caused considerable inconvenience for litigants, who had to follow the king’s highly peripatetic court. Only with John’s renewed efforts overseas and the appointment of Peter des Roches to the justiciarship in 1214 did the Bench resume its activities.’° The court coram rege seems in earlier periods and for at least the first half of Henry II’s reign usually to have been a large body, made up of leading men of

the realm and those close to the king." Hearings by such a body did continue

> Note e.g. CRR, vi. 264-5. ° PKJ, i. 61, 118. See also the limits on the scale of grand assize cases to go to the eyre in 1194, below, 547; note also Assize of Northampton, 7. ” Note e.g. PKJ, i. 103, 120-1; see also e.g. PKJ, iii. no. 946, for itinerant justices consulting the king. * Flower, Introduction, 19, 33. > See Stenton, English Justice, 103.

*° See Stenton, English Justice, ch. 4, who notes some evidence for the justiciar presiding over a court at Westminster away from the king in 1212-13; M. T. Clanchy, ‘Magna Carta and the common pleas’, in Studies in Medieval History presented to R. H. C. Davis, ed. H. Mayr-Harting and R.I. Moore (London, 1985), 219-32, at 228-32; also below, 851.

‘* Note e.g. Constitutions of Clarendon, 11: ‘Archbishops, bishops, and all beneficed clergy of the realm...like other barons, ought to be present at the judgments of the king’s court together with the barons, until it comes to a judgment involving mutilation or death.’

22 COURTS 539 on occasion thereafter, particularly for trial of the powerful.” From the latter stages of Henry’s reign, however, the normal court coram rege became a more contained body, composed of the king and a selection of royal justices. These included men who at other times sat at the Bench in Westminster, and the chief justiciar might be present at the court coram rege. Simon of Pattishall was most prominent amongst the justices of the court coram rege, but also had experience both at the Bench and on eyre.”

The court at Westminster Complementing the court coram rege was a court resident at Westminster, at the Exchequer. The justiciar normally presided, and the court provided a focus for his activities. Some of its business was financial, and Henry II’s treasurer, Richard fitzNigel, commented in his Dialogue of the Exchequer that ‘the highest skill of the Exchequer lies not in calculations but in all kinds of judgments .’* However, as we saw earlier, there is very occasional evidence for the barons of the Exchequer hearing less specifically financial litigation in Henry I's reign, and at least by the mid-1160s such hearings had resumed. Writing in the 1170s, concerning a case of 1164, Thomas Becket’s hagiographer William fitzStephen describes the Exchequer table and then adds that it is ‘where also the pleas of the king’s crown are treated’. By the late 1170s, final concords reveal, the Exchequer twice a year was hearing litigation regarding land and other rights.” Under Henry II the court might be called by various names; frequently up to about 1181 and sometimes thereafter it is described as meeting at the Exchequer." The various terms appear at this stage to signify no distinction; the same royal justices appear in final concords whether the Exchequer was mentioned or not.” Final concords show that there was no fixed number or group of justices who ‘2 On other occasions the king turned to a small group of his household at least for guidance in disputes. See e.g. CRR, iii. 124; History of William Marshal, ll. 13103-278, ed. A. J. Holden et al. (4-6 Occasional Publications Anglo-Norman Text Soc., 2002-6), ii. 156-64. ‘° For justices, see e.g. PKJ, i. 98, Stenton, English Justice, 97-8, Turner, Judiciary, 134-6; ODNB for Simon; above, 503-5. ** Dialogus, i. 4, ed. Amt, 22. For a good description of a case before the Exchequer, see Lawsuits, no. 444; note also e.g. Lawsuits, nos 592, 647. *? See above, 501; Lawsuits, no. 420B, and also nos 423B, 458; Brand, ‘“Multis vigiliis”’, 87-9. *® See e.g. Lawsuits, nos 518, 538, 539, 547, 561, 572; cf. e.g. nos 532, 544, 585, not mentioning the Exchequer. *” B.R. Kemp, ‘Exchequer and Bench in the later twelfth century—separate or identical tribunals?’ (1973) 88 EHR 559-73; Brand, ““Multis vigiliis”’, 88-9. The rubric in some early copies of Glanvill

mentioning ‘those laws and customs according to which it is pleaded in the court of the king at the Exchequer and in the presence of the justices wherever they may be’ is almost certainly referring to only two courts, that at Westminster and the eyre; Glanvill, ed. Woodbine, 23.

540 PART III: ANGEVIN ENGLAND always attended this court. On average about eight men were present, but the numbers vary from half to almost twice that figure.’® It may be that some were becoming more closely associated with general judicial business, others retaining a concentration on the financial.’ However, the distinction should not be exaggerated, and Richard fitzNigel the treasurer often appears in final concords among the other justices. The split of the court at the Exchequer into two institutionally distinct bodies seems to have occurred in the reign of Richard I. Probably from mid-1195 the ‘king’s court at Westminster was hearing cases during four, rather than two terms, rendering it distinct from the biennial meetings of the Exchequer in its audit function.”® The split was no doubt prompted by the increasing weight of

business and by increasing specialisation, also manifest in other aspects of Exchequer activity.” We have clearer evidence of men such as Richard Barre and Ralph Foliot regularly acting as justices at Westminster but having little or no involvement with financial matters.” It is possible that the separation could be linked to a specific event, such as the general eyre initiated by Hubert Walter in 1194, or to a development such as the growing frailty of Richard fitzNigel who appears considerably less frequently in final concords between his retirement as treasurer in 1196 and his death in 1198. The new body, separated from the financial institution, acquired the name ‘the Bench. Bench may originally have referred to a particular area or place within the court.” A letter of Hubert Walter ‘to the justices of the Bench at Westminster, however, shows use of the term for the court by 1198 x 1199.” For a period there may have been some overlap in terminology. On 30 April 1199 the justiciar Geoffrey

fitzPeter wrote to ‘the justices of the lord king at Westminster.» He quoted in full a letter from Mabel Patrick, possibly of the summer of 1198, which closed by saying that what she had told Geoffrey she had already told ‘to the justices of the Exchequer of the lord king’. It seems likely that Geoffrey and Mabel were referring to the same group of justices, the litigant using language that may have been obsolescent. It is also possible that some general litigation was still heard at "S Brand, Legal Profession, 15.

? E.g. Master Godfrey de Lucy and Robert of Wheatfield; Turner, Judiciary, 73. A distinction between the core of justices and the other barons of the Exchequer may be suggested by the phraseology of e.g. Feudal Documents, no. 220; Stenton, English Justice, 195. *’ Brand, Legal Profession, 22. ** See Turner, Judiciary, 72, on the appearance of escheators. *? Turner, Judiciary, 73. ** See Flower, Introduction, 31-2. Glanvill uses the phrase ‘in banco’ only once, probably referring to a physical bench; Glanvill, xii. 1, ed. Hall, 133. ** Lawsuits, no. 653. *° PKJ, i. no. 3475.

22 COURTS 541 financial sittings of the Exchequer.”* Elements of terminological inexactitude and varied practice may be expected in a process aimed at efficient hearing of cases rather than deliberate, long-term institutional creation. The court at Westminster was made up of a varying number of royal justices

as well as other officials and important figures.” Final concords from Richard and John’s reigns indicate an average of six or seven justices present at any one time, but drawn from a considerably larger body. A core group appears with considerable frequency, others only very occasionally. The regular order in which justices were recorded in final concords suggests a sense of hierarchy.” Given their complementary operation, it is not surprising that there were considerable similarities in the business of the court coram rege and the court at Westminster. They heard cases concerning land and other rights, be they between

tenants-in-chief or between lords and men.” Some cases might come directly, others by a process of transfer.*° Some cases involved very small portions of land. Feet of fines made in the king’s court at Westminster in 1200 concerning Norfolk

include settlements involving one messuage and six acres.* Either court might also hear cases concerning advowsons; the first clause of the Constitutions of Clarendon in 1164 specified that cases ‘concerning advowson and presentation of churches’ were ‘to be treated or ended in the lord king’s court. Other cases concerned status, non-observance of final concords made in the king's court, performance of homage and relief, encroachment on royal lands, and debt.*? Disputes over the jurisdiction might also go to the court coram rege or at Westminster.*4

*° For terminology in final concords, see Kemp, ‘Exchequer and Bench’, 570-1. *” See also above, 503-5, on royal justices. *® See esp. Stenton, PKY, iii. lxxix—ccxciv; also Brand, Legal Profession, 24-5. *° See Glanvill, i. 3, ed. Hall, 4: Glanvill is not distinguishing the king’s court meeting in his presence

or at Westminster from the courts of itinerant justices. For the dispute between Crowland and Spalding being heard before the Exchequer during Richard's absence, see Lawsuits, no. 641 (p. 678; cf. the reference to justices sitting ‘in banco at p. 684). See below, 669, on cases involving Church lands.

°° E.g. women who had yet to receive any of their dower had their pleas dealt with from the start in the royal court; Glanvill, i. 3, vi. 14-15, ed. Hall, 4, 65-6. On unde nichil habet, note Milsom, ‘Inheritance by women’, 247, and below, 802-3. *" Feet of Fines for the County of Norfolk, 1198-1202, ed. B. Dodwell (NS 27 PRS, 1952), nos 238, 245, 252. Note also e.g. Lawsuits, nos 476 concerning common pasture, 477 concerning 10 acres with meadow; PK/, iv. no. 2511, concerning agricultural services.

** Constitutions of Clarendon, 1, on which see Councils and Synods, I, 856-7; Glanvill, i. 3, iv. 1-14, ed. Hall, 4, 43-53. Note, however, a final concord initially made in the court of Geoffrey fitzPeter, one of the litigants, concerning a dispute over an advowson; Glanvill, viii. 3, ed. Hall, 95-6. The concord was afterwards recorded in the king’s court. See also e.g. Lawsuits, nos 500, 518, 547, 572, 617. On involvement of Church courts, see below, 568. °° Glanvill, i. 3, ed. Hall, 4. ** See e.g. Lawsuits, no. 581, above, 10.

542 PART III: ANGEVIN ENGLAND Some criminal cases were heard at the central courts, rather than by an eyre.*> In addition, all the king’s courts were used as places for the securing of land transactions. This might be done through a final concord, requiring collusive litigation, or through other means.*° However, some distinctions may be made between the business of the Bench

and the court coram rege. To the latter might go, either directly or by referral, cases that were peculiarly difficult legally or administratively or politically.’ Power or privilege might bring cases coram rege; some men were of such political

importance that the king would wish to deal with their cases in person, some had the privilege of pleading only before the king.** According to the Dialogue of the Exchequer, if dissension arose among the leading men of the Exchequer, and peace could not be re-established between them, ‘hearing of all these matters shall be reserved for the prince himself, who shall punish the offence as God, “in whose hand his heart is’, inspires him, so that no-one who presides over others

should seem able to do with impunity what he decides should be punished in others.*° The king also, for example, heard cases concerning women who had married without his permission.*° Plea rolls of the court at Westminster survive from 1194, of the court coram rege from 1200. However, the keeping of plea rolls certainly goes back to the 1180s, and in 1200 it was believed that rolls were surviving from Richard de Lucy's time as justiciar, that is from before 1178.*' Plea rolls were made in multiple copies,

with occasional instances surviving in duplicate or triplicate. Although one of the rolls may have been of particular authority, each justice may have had a clerk

keeping a roll, and each group of eyre justices had a copy of recent rolls from the court at Westminster.” Plea rolls recorded procedural stages and outcomes of cases, whilst separate rolls recorded essoins; occasionally there are references from one to the other.” In addition the courts produced other records, notably chirographs recording agreements (also referred to as fines).*4

°° See e.g. CRR, i. 435, iv. 239. °° Note e.g. CRR, i. 128, 155, 372-3, 454. °” See also e.g. below, 651.

°® Note e.g. PKJ, i. no. 3139. For politics and litigation, see Holt, Magna Carta, ch. 5. °° Dialogus, i. 8, ed. Amt, 72; the Biblical allusion is Prov. 21:1. *’ See e.g. PK], i. nos 3365, 3371; on control of marriage, note also PKJ, i. no. 3141. “ Brand, ‘“Multis vigiliis”’, 95. Richardson and Sayles, Governance, 185, argue that entries in the 1130 Pipe Roll must derive from records transmitted to the Exchequer by justices. “* Flower, Introduction, 9-10; Meekings, ‘Six letters’, 500. On the physical appearance of the rolls, see R. F. Hunnisett, “What is a plea roll’ (1988) 9 J of the Soc. of Archivists 109-14. *° See e.g. PK, iii. nos 83, 133. ** See above, 522-3, on ‘feet’ of fines; see also Surrey, i. 42-3, on the chirographer of the Bench and

on enrolled fines. Other records relating to judicial matters also existed, for example rolls of those

22 COURTS 543 The Exchequer of the Jews

It seems that late in Henry II's reign the royal Exchequer started to segregate matters involving the Jews, from which process emerged the Exchequer of the Jews.” Its leading officials were described in various ways, for example ‘the keepers of the Jews, ‘the justices of the Jews, or ‘the king’s justices at London assigned for

custody of the Jews.*° At least those ‘bailiffs of the Jews of England’ appointed in 1200 were chosen ‘by the advice of Geoffrey fitzPeter, our justiciar.” In 1198 the justices included Simon of Pattishall, who was also prominent in other royal courts. Among his colleagues was Benedict de Talmont, a Poitevin Jew.** Apart from Benedict, however, the justices or keepers were predominantly Christians. Normally there were several, although from late 1213 Thomas de Neville, archdeacon of Salop, held the office alone. The justices dealt with most financial matters between Jews and king, and heard a wide variety of cases, particularly relating to debt and to property arrangements arising therefrom.*? However, they did not have exclusive jurisdiction, and are best seen as a specialised form of the king's court, other forms of which also heard cases involving Jews.*° Cases moved

from one body to another, and on occasion the court coram rege might treat the justices of the Jews as subordinate. Sometimes parties may have chosen to have their case heard before the king or justiciar, in a court that they regarded as of higher standing than the justices of the Jews.® The justices of the Jews kept records, and were responsible for the records of Jewish property and debts that were required from 1194.

placing themselves on the grand assize; see e.g. CRR, i. 1-14. Further, ephemeral, documents may also have been produced; note e.g. PK/, iv. no. 4610.

*° See H. G. Richardson, The English Jewry under Angevin Kings (London, 1960), 116-18, 120, 138-9, noting the link to the body set up to administer the debts owed to Aaron of Lincoln. “© See e.g. PRIORI, 125, 165; Rot. lit. cl., i. 1b. For personnel, see Richardson, English Jewry, 119-20, 135-6. “7 Rot. chart., 61. *8 See Memoranda Roll 1 John, xc-xcii; see also e.g. PRIORI, 210, 214, for Joseph Aaron, possibly a

converted Jew. * Seee.g. PRIORI, 125,165, 210. On appeals of felony before the justices of the Jews, see Richardson, English Jewry, 156.

°° See also Richardson, English Jewry, 146, on the role of the chancery. >" See e.g. CRR, v. 167, 181.

>? CRR, v. 169-70, justices of the Jews being vouched by a party, and bearing record in the court coram rege. For a different instance of the justices of the Jews being vouched to warrant, see CRR, vi. 125.

°> See Richardson, English Jewry, 150-2.

°* Note also the reference to a roll other than the great or Pipe Roll in Lawsuits, no. 647, a case arising from the debts originally owed to Aaron of Lincoln. °° See below, 707.

544 PART III: ANGEVIN ENGLAND The Eyre

The eyre was a further form of the king's court, his justices going on circuit; final concords say that they were made before the justices in the king’s court in a specified place.** During an eyre the royal court at Westminster largely ceased to function, although the justiciar and other justices might on occasion go there to deal with business.” The eyre took over cases that would otherwise be heard at Westminster, and then the court at Westminster heard pleas left unfinished by the eyre.* In the latter respect, the eyre may have had the effect of increasing business at the Westminster court, since a party who sought royal justice locally during an eyre might be forced later to pursue the case at Westminster. Overall, though, the eyre when in progress heard the greatest bulk of the cases that came before the king's courts.°°

At the same time, the eyre allowed the projection of royal authority in the localities. In Henry III’s reign, Bracton tells us that proceedings opened with the reading of the king’s writs giving power and authority to the justices. Next, ‘if the justices wish, let one of the senior and more distinguished among them publicly set out in the presence of all the reason for their coming, the purpose of the eyre, and the advantage to be derived if peace is kept. He might stir up images of criminals who struck against the innocent as they slept in their beds. Then the oaths of those answering the justices’ questions emphasised that the justices were acting on the lord king’s behalf.” We have already seen itinerant justices operating extensively in the latter part of the reign of Henry I, whilst not being certain how frequently they visited the localities, how extensive was their jurisdiction, or how far their visits formed part of a scheme to cover the whole country on a regular basis.® In Henry II’s reign there is no evidence for routine visitations before 1166, but in that year Earl Geoffrey de Mandeville and Richard de Lucy undertook a very extensive

°° Brand, ‘“Multis vigiliis”’, 86. °” See e.g. PKJ, i. 39, on the 1198 eyre; the justiciar was part of the south-eastern circuit, perhaps to help him attend to business in London and Westminster when necessary. °® See e.g. West, Justiciarship, 48, on 1176, PKJ, i. 146-7, on 1202. For cases moving between Westminster and the eyre, see also e.g. PKJ, i. 43-5. °° Turner, Judiciary, 24.

°° Sutherland, Novel Diesseisin, 60 n. 1, points out that in the Michaelmas term 1194 the court at Westminster heard twenty novel disseisin cases in total, the eyre twenty such cases just in Wiltshire. Note, however, e.g. PKJ, i. 91-2, on the case load of the Bench in the Hilary term 1200. °' Bracton, fos 115b-116, ed. Thorne, ii. 327-9. On eyre arrangements, see also Surrey, i. 17-24. °? See above, 269-70.

22 COURTS 545 circuit mainly through eastern counties.% In 1175, two pairs of justices, one of them including Ranulf de Glanville, dominated the visitation. Such reliance on a few individuals, particularly on the chief justiciar, differentiates these eyres from what followed.‘ From 1176 onwards we see the whole country being divided into several circuits for visitations by larger groups of justices.* There was a definite aim of nationwide

coverage, although neither the number of justices nor the geographical makeup of the circuits was constant.®% For example, in 1179 there were four circuits established, perhaps with five or six justices for each; in 1194-5, eight circuits, with up to ten justices each.” Eyres took place on average more than once every two years between 1176 and 1194, but rather less frequently after that date, in 1198-9, 1201-3, and 1208-9. As frequency decreased, duration tended to increase.® The itinerant justices heard cases in individual counties, in courts assembled by the sheriff at a time and place specified by royal writ.® Usually all the justices on a circuit heard cases together, normally in the county town, but on occasion

they split up into concurrent courts, in one or several places, particularly if a franchise so demanded.” A session at a single place might last some days or even some weeks.”’ Following the main sessions, some justices remained, to deal

with amercements and other financial matters, and with the preparation of the relevant record.”

°° PK, iii. liii-iv; White, Restoration, 183-4; Holt, ‘Assizes’, 102-3; Corner, “Texts’, 16-20. For writs mentioning itinerant justices in Henry II’s reign up to 1166, see e.g. Royal Writs, no. 20, Cal. Ch. R. 1257-1300, 94-5.

°* Cf. the change in procedure regarding Utrum, below, 608; also the argument concerning criminous clerks, below, 771. °° See esp. Howden, Chronica, s.a. 1176, ed. Stubbs, ii. 87-8. One might speculate that the methods

used for the Inquest of Sheriffs in 1170 inspired the shift to use of circuits and greater numbers of justices; see Gervase of Canterbury, Chronicle, s.a. 1170, ed. Stubbs, i. 216.

°° See Brand, ‘“Multis vigiliis”’, 84; D. Crook, Records of the General Eyre (London, 1982), 56-71. Dialogus, ii. 2, ed. Amt, 116, refers to the king dividing the kingdom into six parts, which the itinerant justices inspected. ©? See Howden, Chronica, s.a. 1179, ed. Stubbs, ii. 190-1; PKJ, iii. lxi-lxiv, xcvii-c; note that the visitation of Bedfordshire and Buckinghamshire is here counted as an eighth circuit of the 1194-5 eyre, although its position may be slightly anomalous. °8 PK, iii. lvii-celxvi.

°° See Bracton, fo. 109-109b, ed. Thorne, ii. 310-11. Sometimes pairs of counties, such as Cambridgeshire and Huntingdonshire or Nottinghamshire and Derbyshire, shared sessions; see Crook, Records of the General Eyre, 56-70. ” Seee.g. PKJ, iii. xxxi; Lawsuits, no. 485A; also Surrey, i. 10-11, where Meekings notes that Surrey

was an exception in that the eyre met not at the county town but at Bermondsey between 1202 and 1255. For franchises, see below, 562-5.

7! See the tables in PKJ, iii. lxxxviii-cclxvi. ” Surrey, i. 128-31.

546 PART III: ANGEVIN ENGLAND Bracton includes a royal writ specifying whom the sheriff was to summon to the eyre: all the archbishops, bishops, abbots, priors, earls, barons, knights, and free tenants of your bailiwick, and from each vill four lawful men and the reeve, and from each borough throughout your bailiwick twelve lawful burgesses, and all those who are accustomed and ought to come before the itinerant justices.

This indicates that the court would be larger than a routine meeting of the county, and that those who normally enjoyed exemption were obliged to be present.” On

the other hand, some vills were acquitted by the attendance of a single tenant, just as for ordinary county courts.” Also present would be litigants, others involved with litigation, for example sureties, and various officials, for example the coroners and all who had been sheriffs since the last eyre.”” Accommodating and provisioning those attending might create considerable logistical demands.” The jurisdiction of the eyre was very wide-ranging, sometimes described as taking in ‘all pleas’. The ‘Articles of the Eyre’, examples of which survive from 1194, 1198, and 1208-9, provide some detail. Let us concentrate on the first surviving set, those of 1194, as preserved by Howden.’* They begin with a ‘form of proceeding in pleas of the crown of the king’: In the first place, four knights are to be chosen from the whole county, who, upon their oaths, are to choose two lawful knights from each hundred or wapentake, and these

two are to choose upon their oaths ten knights from each hundred or wapentake, or free and lawful men if knights are lacking, thus that those twelve jointly may answer concerning all the articles, concerning every hundred or wapentake.

There follow the ‘articles [capitula] of the pleas of the crown of the king’. First come the new and old pleas of the crown, and everything that had not yet been finished in the presence of the king’s justices. Then there are recognitions and pleas that had been summoned before the justices by the king’s or chief justiciar’s writ, or sent from ‘the king’s chief court’, that is from the court at Westminster. Next come certain matters of particular financial interest to the king: escheats, churches in his gift, wardships and marriages that belonged to him. Then there are matters regarding wrongdoers, their receivers and accomplices, and forgers. ”* Bracton, fo. 109b, ed. Thorne, ii. 310; see also Rot. lit. cl., i. 380, from 1218.

“ The four lawful men from each vill must in some instances have been or included villeins, whereas villeins would not have attended routine county courts by this time. ” See e.g. Historia et cartularium monasterii S. Petri Gloucestrie, no. 410. ’° Bracton, fo. 109b, ed. Thorne, ii. 311.

”” See Bolland, Eyre, 35-7, whose calculations imply that over a thousand people may have attended the eyre in Kent in the early fourteenth century. ”® Select Charters, 252-7. For the 1198 and 1208-9 articles, see above, 524, 525.

22 COURTS 547 Next come matters arising from recent events: killers of Jews, and the property and debts of the dead Jews; the aid given for the king’s ransom; the king’s brother John and his followers, who had been disloyal to the king during his absence. Then we move to commercial matters, involving money-lenders and breaches of the Assizes of wine and measures. Following mention of those who had taken the Cross (i.e. promised to go on Crusade) but died before getting under way to Jerusalem, there are a series of important clauses on legal matters: grand assizes about land worth 100s. or less a year; defaults; the choice in each county of three knights and one clerk as keepers of the pleas of the crown; the prohibition that any sheriff be a justice in his own shrievalty, nor in any county that he had held after the king’s first coronation” Then come clauses concerning royal tallage, the state of royal wardships and escheats, and the Jews.*° We therefore see that the 1194 eyre dealt not just with routine judicial matters, but also with many matters relating to recent politics and to royal finances.* Case records give a similar view of the judicial business of the eyre. There are land disputes, some very minor.” There are also disputes concerning other types of rights, for example advowsons, and cases concerning crime. Apart from the upper limit on the value of land for which grand assizes were to be heard, there was no strict limit to the eyre’s jurisdiction compared with that of the court at Westminster.** We are dealing with a form of the king’s court, with its wideranging jurisdiction. From the reign of Henry II, and quite possibly earlier, itinerant justices kept

lists of payments and debts that had arisen, which they transmitted to the Exchequer. Certainly by the time of Dialogue of the Exchequer in the late 1170s,

rolls may have been kept. Their content is uncertain, although the Dialogue’s focus is on monetary penalties.** Such lists, along with feet of fines, continued ” See above, 507-9. °° For the clauses concerning the Jews, see below, 706-7. A final clause may have concerned an enquiry into royal demands, which was then postponed by order of Hubert Walter; if so, Howden certainly modified the text of the clause. *" It may be that some of these exactions help to explain the hostility expressed towards the eyre, for example Howden’s statement concerning the 1198 visitation that “by these and other vexations, whether just or unjust, all of England from sea to sea was reduced to poverty Chronica, s.a. 1198, ed. Stubbs, iv. 62. Note also Dialogus, ii. 10, ed. Amt, 140, on itinerant justices dealing with purprestures, that is encroachments on royal lands. *? See e.g. PKJ, iv. no. 4076, mort d’ancestor concerning 24 acres; the demandant was to be amerced but described as ‘poor’. For land cases before the eyre in Henry II’s reign, see e.g. Lawsuits, nos 459B, 485, 511. °° Advowsons: e.g. PK], iv. nos 4125, 4201; below, ch. 27.

** Cf. below, 548, on lesser visitations. °° See Dialogus, ii. 1, 2, ed. Amt, 106, 116; PRISHII, 148; Richardson and Sayles, Governance, 185, 209; Brand, ““Multis vigiliis” ’, 95.

548 PART III: ANGEVIN ENGLAND to be the only documentation that the itinerant justices were obliged to hand over to the Exchequer. Justices also came to keep—for as long as they considered necessary—more detailed records of pleas. A few survive, starting from the eyre

of 1194-5, but the preservation rate is low even though more than one roll of proceedings seems to have been kept on each circuit.*°

Lesser visitations In addition to the general eyre ‘for all pleas’, there were also visitations with restricted remits. Some were very specific, as when a court sent men to hear a particular case or to conduct a perambulation; such commissions probably go back to the Anglo-Saxon period.” Others were broader.** Not just a general eyre,

but also a group of travelling justices with a more limited remit, or a specific visitation to an individual place, could carry out gaol delivery, dealing with the cases of all those held.*® Justices were sent out to deliver gaols and hear assizes in 1195-6 and 1205-6. In practice these visitations heard at least the initial stages

of a rather wider range of cases, and might provide a location for non-judicial business.*° Their appearance to some extent balances the diminishing frequency of general eyres.”

Overall, therefore, we see continuing experimentation and variation in the organisation of royal courts to the end of our period. This variety had various causes, notably the relative presence in England of different kings. The loss of continental possessions underlay the concentration of business on the court coram rege from 1207. This development may also result from some kind of conflict between the king and his justiciar, Geoffrey fitzPeter, and the loss of services of ecclesiastical justices because of the papal interdict of 1208.* However, John does seem deliberately to have concentrated power in his own hands; this would help to explain the termination of the eyre in 1209 when its work was far °° Crook, Records of the General Eyre, 12-14, 44. It is possible that one roll from each circuit carried particular authority; see CRR, viii. 114, for reference in 1219 to a ‘roll of the treasury [rotulus de thesauro]’. °” See e.g. Lawsuits, no. 546; CRR, iii. 116; above, 40. °° On Forest eyres, see above, ch. 19. Note CRR, vi. 59, 61, on justices attorned or assigned for tak-

ing attaints. °° See e.g. PKJ, i. 130, Rot. lit. cl., i. 83b.

°° See Lincs., xli-xlii; Flower, Introduction, 59; PKJ, iii. nos 1017, 2139, 2176, 2200; Rot. lit. cl., i. 83b.

°" Note also e.g. justices’ activities in summer 2003; PKJ, iii. ccix—ccx.

*? Stenton, English Justice, 85; doubts about this theory are expressed by Clanchy, ‘Common pleas’, 230.

22 COURTS 549 from complete.*? He may have regarded regular dispensation of justice by his own court travelling around the country as desirable both from a political and a judicial point of view.** This court coram rege had a longer continuous history than the justiciar’s court or the Bench, the recent pre-eminence of which owed much to the absence of Richard I. John’s changes from 1209, particularly those in relation to central courts, can therefore be seen as continuing experiment and adaptation to circumstance rather than as over-turning a well-established system.” At the same time, the increased importance of the royal courts is clear. The eyre of a single county, Bedfordshire, in 1202, dealt with eleven cases of novel disseisin, thirty-seven of mort d’ancestor, and eight grand assizes.°° Many were brought by lesser free men, often against their lords. How far was this a result of deliberate royal policy? Whilst the king in some circumstances was prepared

to help lords against their men and lords might seek royal help,” the king's administrators might present him as the men’s protector against aristocratic oppression.?* We can also detect signs of the king seeking to diminish the role of overlords’ courts.®® Royal confirmations to sub-tenants might constitute promises of royal support.’°° The bond between king and sub-tenant or king and free man or free holder was repeatedly asserted. Most notably, in 1166 a request for

the names of knights owing service to tenants-in-chief appears to have been linked to the king’s demand for an oath of allegiance from them.” Such a direct relationship between landholder and king might provide grounds for requests for royal justice and for royal protection against lord or third party. Combined with a royal desire and obligation to maintain the peace, such ideas helped to underpin the extension of royal justice regarding landholding.

°* See Clanchy, ‘Common pleas’, 230.

°* For his earlier interest in the activities of the courts, see e.g. Holt, Magna Carta, 180-3; Stenton, English Justice, ch. 4.

°° Stability may have been encouraged by the long minority following John’s death; note also below, 853.

°° ‘Roll of the justices in eyre at Bedford, 1202’, ed. G. H. Fowler (1 Bedfordshire Historical Record Soc., 1913), 133-247, at 137.

°” See below, 640; also e.g. Lawsuits, no. 531. °® See above, 529-30. °° See below, 571. Note also Glanvill, xii. 8, ed. Hall, 140, laying down that the writ of right must

be directed to the person of whom the demandant claims to hold, not to anyone else, and not even to the chief lord. On lords obtaining royal help against tenants and superior lords establishing a direct lordship relationship, see e.g. CRR, i. 295; v. 77-9. *°° See Hudson, Land, Law, and Lordship, 152, and references there. *°! Red Book, i. 412.

550 PART III: ANGEVIN ENGLAND Nevertheless, it seems likely that the great growth in business of the king’s courts

stemmed not directly from royal policy but from consumer demand.’ It must always be remembered that actions only began when plaintiffs chose to bring them and took the necessary steps, and that whilst some potential litigants might be too

scared to take a case to the royal court and others might choose to pursue their disputes along other lines,’ increasing numbers were opting for royal remedies.'™ Such procedures were often used for very small pieces of land.’ They were attractive for their speed, and for the finality of a judgment in the king’s court.

Royal courts moreover shared characteristics that differentiated them from others of the time or earlier.°° Their business was extensive but deliberately restricted to certain sorts of plea or certain ways of bringing litigation. They sat for extended periods rather than the single day that had been the limit of most courts. This meant that they did more business, and were run by people who were—at least temporarily—full-time justices. Those justices, rather than simply presiding over the suitors of the court, made judgments themselves, although often following the verdicts of recognitors or jurors. They kept written records, which might later be consulted. And in all their forms, these were royal courts, following at least the procedural laws and customs of the king’s court, not the custom of the locality where a case arose or was heard.

2 COUNTY COURTS Some county courts routinely sat at one venue, some at a variety of places.'” As for frequency, the 1217 reissue of Magna Carta laid down that county courts were to meet monthly, except where the interval was customarily longer. This phraseology suggests that there had been pressure for more frequent meetings.

The exception was allowed for some counties with a six-weekly schedule. Neighbouring counties met on different days to avoid clashes for those who

*°* Note also the increase in the twelfth century in the number of religious houses, which may have looked to the king for protection and justice. "°° See above, ch. 1. *°* See also below, 851, on Magna Carta, 18 and 19. "°° Note Feet of Fines, Norfolk, xxxi-xxxvi; Feet of Fines for the County of Norfolk, 1201-15, for the County of Suffolk, 1199-1214, ed. B. Dodwell (NS 32 PRS, 1958), xii-xiii, xx-xxi, xxiii, xxvi-xxvii, and

review by G. D.G. Hall, 1960) 75 EHR 514-15; Sutherland, Novel Disseisin, 48. "°° See Brand, Legal Profession, 15-17; below, 624-6. *°” For this paragraph, see Palmer, County Courts, 4-20. There may have been some increase in courts being held indoors.

22 COURTS 551 owed suit to both. Sessions normally lasted one day, although some, mainly administrative, matters might continue to a second.’* The sheriff presided over the county court, and other officials were present, for example local justices in the early part of the period, hundred serjeants, and, towards the end of the period, coroners. Although the sheriff might take executive action on the basis of a royal writ,’ it was generally the suitors who were responsible for making judgments."° Estimating the numbers attending is extremely difficult, and there was variation between counties, but it has been suggested that in the later middle ages most county meetings included at least 150 men, and occasionally many more.” Suit was generally based on tenure of specific lands,”’ although, for example,

in Yorkshire the steward of a tenant-in-chief seems to have been the typical suitor.’ Because suit could be a considerable burden, some sought exemption from it, whilst others were excused because their obligations were diverted to franchisal courts."* However, control of business might bring power, making attendance attractive. Crucial to the court’s functioning could be certain leading figures, sometimes referred to as buzones, as well as others with particular expertise in administration and local custom.” In the early years of Henry II the county court probably heard the wide range of cases that it had under his grandfather.”® In the later twelfth and early thirteenth century its jurisdiction was confined by the expansion of the king’s courts. However, even in types of case that the county no longer decided, it still

played an important part in litigation that ended in the king’s court. It heard stages of many disputes over land, other immovables, chattels, and debt.'” Some

*°® Note also CRR, vi. 214-15. *°? See below, 552.

‘®® Note Pollock and Maitland, i. 549, on Hengham Magna, which dates from between 1260 and 1272 (see P. A. Brand, ‘Hengham Magna: a thirteenth-century English common law treatise and its composition’, in his Making of the Common Law, 369-91).

"YJ. R. Maddicott, ‘The county community and the making of public opinion in fourteenthcentury England’ (1978) 5th Ser. 28 TRHS 27-43, at 30. See also Palmer, County Courts, 80-1, who implies that numbers may have been lower. *™ See e.g. Glastonbury, ed. Stacy, 85, 121, 204, 208; in all these instances attendance is due at county and hundred. "> See also above, 278. ‘™ Palmer, County Courts, ch. 3; Pollock and Maitland, i. 537-44. ‘'* G, T. Lapsley, “Buzones’ (1932) 47 EHR 177-93, 545-67; Palmer, County Courts, 88-138, gives a

rather different interpretation. "t See e.g. Lawsuits, nos 352, 353, 363, 370, 375, 387, 394, 398, 406, 442. "7 See e.g. British Borough Charters, 8, for the liberties of the burgesses of Bedford being ‘recognised’ in the county court of Bedfordshire; Glastonbury, ed. Stacy, 175, for the county having judged a case over a man having made a fishpond in a lord's demesne. For continuing jurisdiction concerning debts

552 PART III: ANGEVIN ENGLAND such cases were started in the county, often by writ to the sheriff, others came from lords’ courts after default of justice."* In discussing pleas of right for land belonging to dower, Glanvill states that “when default of justice [de recto] has been proved, the case shall go to the county, and so, with the county as middle stage, that case can also be justly transferred to the chief court of the lord king, according to the will of the lord king or the chief justice’.

Meanwhile, even if reduced in scope, the county's adjudicatory business remained extensive. Glanvill includes various writs addressed to the sheriff, who might execute the order himself, but must often have set in motion proceedings in the county court.”° This is clear from Glanvill’s discussion of such a writ dealing with possession of villeins, although not from the writ itself: When anyone claims as his villein [nativum] someone living as a villein [in vilenagio positum] he shall have a writ of naifty [de nativis, ‘concerning villeins’] directed to the sheriff, and by that writ, before the sheriff of the place, he shall bring a claim against the person who holds the man in villeinage. If his villeinage [i.e. his status] is not disputed before the sheriff in the county court, then that plea concerning that villein between the person claiming and the person holding that villein shall pro-

ceed before the sheriff.

Sheriffs also became involved in cases concerning the services that men owed their lords, which might be seen as the very heart of seignorial jurisdiction.’ If a lord lacked the power to ‘justice’ his tenant, that is proceed through distraint,

of under 40s., see J. S. Beckerman, “The forty-shilling jurisdictional limit in medieval English personal actions, in Legal History Studies 1972, ed. D. Jenkins (Cardiff, 1975), 110-17, esp. 116.

8 See Glanvill, xii. 9, ed. Hall, 140-1. It is unfortunately often difficult to tell from a record of a judgment or a settlement whether a case had been started in the county, or had begun in a lord’s court; see e.g. Lawsuits, nos 496, 598, 645.

" Glanvill, vi. 6, ed. Hall, 61. See also Glanvill, xii. 1, ed. Hall, 136, and below, 571, on pone. It is

also possible that the county court became involved on occasion when the sheriff had to execute a royal judgment; above, 506. The county court could also be the scene for the making of final concords or the transfer of land; e.g. Lawsuits, nos 565, 605. Note also CRR, iii. 129, for testimony being given in a county court concerning surrender of land ina lord’s court. 79 See e.g. Glanvill, vii. 7, xii. 17, ed. Hall, 81, 144, on the division of chattels after death. Note also xii. 20, ed. Hall, 145-6, a curious, rather diffuse writ concerning arrangements apparently following the death of the holder of one of the king’s baronies; ix. 14, xii. 16, ed. Hall, 116, 143-4, on boundary disputes; vi. 18, xii. 13, ed. Hall, 68-9, 142, on measurement of dower and of pasture; xii. 14, ed. Hall, 142-3, on easements. The earliest Register of Writs contained writs to the sheriff concerning debt; below, 700. Cf. Glanvill’s emphasis that the writ of right should be directed to the person of whom the demandant claimed to hold; above, 549 n. 99. *! Glanvill, v. 1, ed. Hall, 53-4. For the writ, see Glanvill, xii. 11, ed. Hall, 141-2; see also 764. Lawsuits, no. 664, may be a relevant case. For a case in which a county court acknowledges that it is not competent in matters of status, see PK/J, iii. no. 972. "22 Glanvill, ix. 8-10, xii. 10, 12, 15, ed. Hall, 112-13, 141-3; see below, 640-1.

22 COURTS 553 he could obtain a royal writ ordering the sheriff to bring the defaulting tenant to justice to render the services. The resultant case would be in the county court.

Those from whom services were sought likewise might obtain aid from the sheriff via a royal writ, to prevent them from being unjustly vexed or to ensure that they received back distrained possessions, in return for gage and pledges. Interestingly in respect of such replevin, the sheriff's jurisdiction may have been increasing. A record of a case in 1236 concerning pleas of replevin, which then pertained to the crown, stated that under Henry II such pleas were granted to sheriffs. Replevin may previously have been considered a crown plea, perhaps on grounds of breach of the peace or of default of justice. Up to the 1160s local justices may have had some role in dealing with replevin, whilst the Pipe Rolls of the 1170s and early 1180s show eyres dealing with such cases. The ever-increasing burden on the eyre may then have led to the cases being granted to sheriffs in the 1180s." Glanvill assigned jurisdiction in cases of theft to sheriffs, stating that it ‘is pleaded and determined in the counties’. In addition, ‘if lords fail to do justice, then sheriffs also have jurisdiction over brawls, beatings, and even wounding unless the accuser states in his claim that there has been a breach of the peace of the lord king’."*4 The county also had a considerable role in the early stages of prosecutions for felonies, be it by appeal or presentment,'’* and was responsible for outlawry.’® However, judgments concerning felonies were not made in the court and the county could be amerced for dealing with pleas of the crown.’” How much earlier the county had ceased to judge appeals of felony is uncertain. The Assize of Clarendon had concentrated on presentments, and emphasised the continuation of old methods for appeals. It may, therefore, be that the judgment of such appeals was lost to the county and became the preserve of the eyre and the central royal courts sometime between 1166 and the late 1180s.’

At least by the end of the twelfth century, sheriffs were keeping written records of proceedings in the county, which presumably could be consulted by that court.’”? However, it is unclear whether these had any official standing if the

**5 See CRR, xv. no. 1968a; Bracton, fo. 155b, ed. Thorne, ii. 439, which states that a sheriff dealt with such pleas ‘not by virtue of his office as sheriff, but as [sicut] a justice of the lord king’; Hudson, Land, Law, and Lordship, 40-4; Pollock and Maitland, ii. 577-8. ** Glanvill, i. 2, xiv. 8, ed. Hall, 4, 177; cf. Glanvill, i. 2, xiv. 5, ed. Hall, 3, 175, for robbery being a plea of the crown. See also below, ch. 27. For the county and theft, see e.g. CRR, vi. 67, 214-15. **° See below, ch. 27.

"°° See below, 724. "*7 See e.g. CRR, vi. 10 (homicide). "?8 See also Brand, ‘Henry II’, 234; below, 714. **° See e.g. CRR, vi. 230; Lincs., no. 263; Select Pleas of the Crown, no. 62.

554 PART III: ANGEVIN ENGLAND case went to the king’s court; when ‘record’ was taken from the county to the king’s court it was the oral record, conveyed by knights of the county, that was essential.°° Coroners kept rolls concerning criminal pleas, and these had to be produced before the eyre.”

3 HUNDRED COURTS Hundred courts often met in villages, but also outside settlements, at traditional places such as particular trees. Ecclesiastical prohibition in 1175 of the use of churchyards for holding courts that might involve physical punishment did not entirely stop the practice.” In 1234 it was laid down that hundred courts should meet once every three weeks whereas, the decree tells us, they had met fortnightly in the time of Henry II.% Hundred courts normally ended within a single day.

Some pairs or groups of hundreds met together,"* whilst sub-hundredal leet courts continued to meet in East Anglia.” The sheriff or his bailiff presided, unless the hundred was in a lord’s hands, in which case a seignorial official did so. Certainly by the later thirteenth century, and possibly in the Angevin period, suit rested on specific tenements.”° Others might be obliged to attend certain meetings of the hundred which heard unusually important cases, for example those involving the king’s writ.

The routine business of the hundred included offences against the person not amounting to felonies, actions regarding debts at least below a certain fixed level, and the witnessing of transactions.” Occasionally appeals of felony might be started in hundred courts, particularly those of the greater franchise holders, but this was unusual.** We also hear of the hundred being specially gathered regarding a possible felony.”° The earliest surviving rolls of hundred courts come from the latter part of Henry III's reign, and it is unclear whether written records were earlier kept routinely, "5° Note e.g. CRR, v. 160; vi. 208 (although note mention ofa clerk with a roll), 228-31. "*! See e.g. Select Pleas of the Crown, no. 62; Hunnisett, Coroner, ch. 6. "** Council of Westminster 1175, 6, Councils and Synods, I, no. 168; Cam, Hundred, 169-72. "83 CCR, 1231-4, 588-9.

"°* See Cam, ‘Early groups of hundreds’. "°° The Kalendar of Abbot Samson of Bury St. Edmunds and related Documents, ed. R. H. C. Davis (3rd ser. 84 Camden Soc., 1954), 44; Campbell, ‘Hundreds and leets’, 159. "°° See above, 551 n. 112; Cartularium monasterii de Rameseia, i. 438; Vinogradoff, Villainage, 188-9, 441-52; Pollock and Maitland, i. 540-2, 557; Cam, Hundred, 172-4. "87 See Cam, Hundred, 181. *°® Cam, Hundred, 179. "8? PKJ, ii. no. 732.

22 COURTS 555 perhaps stating amercements. As with the county court, if ‘record’ of the hundred had to be conveyed to a royal court, the essential form was oral.'4°

4 THE SHERIFF’S TOURN Larger meetings of the hundred took place when the sheriff held his ‘tourn, normally twice a year. Usually all who were in frankpledge were obliged to attend.’ The sheriff travelled from hundred to hundred to treat this business, a process resembling the visitations of itinerant justices to the counties. References to the sheriff's tourn by name appear in the early thirteenth century. Its functions were to check the proper functioning of frankpledge and to receive presentments concerning pleas of the crown and lesser offences. Presentments were made by representatives of each vill or tithing in answer to a series of questions from the sheriff. The presentments were laid before a jury of freeholders who could accept or reject them, and supply any omissions. The sheriff would then take the appropriate action. Those presented for serious offences were taken by the sheriff and held or bailed until the coming of the justices. Those suspected of minor offences were dealt with by the sheriff, and amerced if guilty.” When did such meetings and procedures begin? Even before Henry II's time, the sheriff made biennial visits to special hundred courts to check that tithing and frankpledge were in order.'# The Assize of Clarendon reaffirmed this process:

And let there be no-one within a castle or without, not even in the honour of Wallingford, who shall forbid the sheriffs to enter into his court or land to view frankpledges and to see that all are under pledges; and let them be sent before the sheriffs under free pledge.'*4

I have also suggested earlier that the effective working of frankpledge may have required presentment of offenders.’ Whether such presentment took place in ordinary courts or in the special meetings of the hundred before the sheriff cannot be established with certainty. Even so, it may well be that the Assize of Clarendon did not mark the start of the sheriff's tourn, in the sense of combining supervision of

“° Cam, Hundred, 178. “ Cam, Hundred, 176. Note also Lawsuits, no. 634, for the ‘great summons [summonicio magna]’ made to the hundred court of Risbridge, according to Jocelin of Brakelond; this presumably was a special meeting. “Pollock and Maitland, i. 519-20, 530, 558-60; Morris, Frankpledge, ch. 4; Cam, Hundred, 120-6. “*° See above, 281; note Rot. chart., 132.

“* Assize of Clarendon, 9. ™° See above, 393.

556 PART III: ANGEVIN ENGLAND frankpledge and receiving of presentments. Rather, it reinforced methods familiar at least from Henry I’s reign, and integrated them with visitations of royal justices.’*°

5 LORDS’ COURTS Lords continued to hold various types of court: one or more courts for the tenants

of their honour; courts for lesser men of one or more of their manors;’”” and franchisal courts. The types of court might merge, for example the honorial court being held at one of their manorial courts or at a hundred court in their possession.’** It is also possible that lords with small estates held only one court. The venue for a case might be determined by the status of the litigants as much as by the subject of dispute. Nevertheless, the distinction between honorial, manorial, and franchisal remains analytically appropriate for the discussion that follows.

Honorial courts There is no sign of any legally significant change in the location of honorial courts,

whilst evidence on frequency remains very sparse.’*? Lords, their stewards, or another official continued to preside.*° The court was composed of tenants and followers of the lord, and sometimes supplemented by neighbours or by royal officials.* The established body of honorial barons may have become less central, with other followers and family members taking on relatively greater significance, but the extent and chronology of this development is hard to identify and probably varied between honours.”

“° Cf. Morris, Frankpledge, 117-18, Hurnard, Jury of presentment, 407. The connection to presenting juries may be a related innovation; accusations by tithings may have been one source of information for such juries. Cf. the coroners inquest, and the attachment court and regard preceding Forest eyres; above, 476-7, below, 718-19.

‘“” For courts of more than one vill, see e.g. Ault, Private Jurisdiction, 338.

8 See Ault, Private Jurisdiction, 324-6. “° CCR, 1231-4, 588, states that many people said that in the time of Henry II ‘courts of magnates’

had been meeting every two weeks, as had hundreds and wapentakes. It is not clear that ‘courts of magnates’ should be equated with honorial courts. °° See e.g. Brand, ‘Steward’, 155-6. "" See e.g. Lawsuits, no. 453, from the honour of Mowbray in the 1160s. Note Ault, Private

Jurisdiction, 327-8, on different honour courts having differing balances between tenants by military and by other services. *°? Note e.g. P. E. Golob, “The Ferrers earls of Derby: a study of the Honour of Tutbury, 1066-1279” (unpublished PhD thesis, Cambridge, 1985); D. Crouch, “The local influence of the earls of Warwick, 1088-1242: a study in decline and resourcefulness’ (1996) 21 Midland History 1-22.

22 COURTS 557 Honorial courts continued to hear cases over dues and services. The lord could by his own authority compel his man to answer concerning the former.” Glanvill stated that a lord might distrain his men ‘by judgment of his court’ for reasonable aids, and at least on occasion court judgment would precede distraint for services. The tenant might then answer in the court as to whether he had performed the services or not.’ Lord’s courts also heard land cases, and it is significant that Glanvill’s writ of right [breve de recto] is addressed to the lord, commanding him to ‘provide full justice [plenum rectum teneas|’ concerning land that a man claims to hold from him." Early in the Angevin period some land claims may have been pursued in lords’ courts without a royal writ.%° However, by the end of the reign Glanvill would state that ‘according to the custom of the realm no-one is bound to answer in the court of his lord concerning any free tenement of his without the order of the lord king or his chief justice, the writ de recto being the appropriate form of order.’” The norm is stated in permissive fashion, allowing a landholder to answer in the absence of a writ, should he so wish."* Nevertheless, it does indicate at the very least the common use of writs. The origin of the norm is not certain.*®

It might stem from the internal logic of lordship relations; so long as there was no breach of the conditions of tenure, it is suggested, a lord who had seised his tenant could not take back the land or entertain claims from others. Only a royal writ would allow these possibilities. New royal remedies in land claims during the Angevin period then transformed this statement of tenurial logic into a legal rule.’°° However, it may be doubted whether lords and their courts had ever been

"°° Note esp. the capitulum in some manuscripts for Glanvill, ix., quoted below, 636. *°* Glanvill, ix. 8, ed. Hall, 112; below, 636-41. °° Glanvill, xii. 3, ed. Hall, 137; see also vi. 5, xii. 4, ed. Hall, 61, 138.

"° Lawsuits, nos 459A, 527, may be examples, although the records may not give complete accounts of the stages of the disputes. Note also White, Restoration and Reform, 165-6. For instances where writs were brought, see e.g. Lawsuits, nos 397, 465, 483. Note the interest shown by writers of the Lives of Becket in the 1170s as to whether the archbishop, in 1162-4, had obtained royal permission for his resumptions of his predecessors’ alienations; Lawsuits, no. 420A; MTB, iii. 43. Constitutions of Clarendon, 9, accepted that a case be held in the lord’s court, if both parties claimed to hold of that baron or bishop. 7 Glanvill, xii. 2, 25, ed. Hall, 137, 148.

°° The landholder may well be the lord of whom the demandant claims to hold; note esp. Glanvill, vii. 17, ed. Hall, 90: ‘when anyone dies without a certain heir...the lords of the fees can and are accustomed to take and keep those fees in their hands as their escheats, whoever the lords may be, that is whether the king or another. If anyone later comes [presumably to the lord] and says that he is the right heir, and is allowed by the mercy of his lord or by order of the lord king, he shall sue and may deraign such right as he may have concerning this.’ °° See also Royal Writs, 212-31; Brand, ‘Henry IT’, 238.

*°° Milsom, Legal Framework, 54-64.

558 PART III: ANGEVIN ENGLAND so constrained if it was discovered that a previous decision had been wrong.” An alternative explanation is that the norm had legislative origins, hidden by the limits of the evidence. However, such an origin may not fit the permissive form of the rule in Glanvill and it remains best to accept Glanvill’s view that the norm was a custom, although of what age we do not know.'’® The custom strengthened with the increasing use of writs in judicial matters and perhaps also with specific royal decrees, for instance prohibitions of litigation whilst the king was out of England, except by his specific order.'’®

The writ de recto ended by stating that if the lord did not provide justice, the sheriff should, so that the king did not hear further complaint of default of justice.’** Such complaints of default are one reason why a very considerable if not precisely quantifiable proportion of land cases that began in lords’ courts

did not end there.’® On the other hand, royal authority might assist a lord. Glanvill includes a writ ordering that the sheriff ‘constrain [justicies]’ a man ‘to come without delay to the court of R. his lord, and there stand to justice [stet ei ad rectum] concerning his free tenement’, which the lord claimed the man had wrongly occupied, ‘lest the lord need further complain concerning this as a result of default of justice’.’°°

The king’s court might also dismiss a plea because the claimant ‘has not sought that land in the court of his lord of whom he claims to hold the land’. More commonly, however, we hear of lords having to claim their jurisdiction when cases, mostly land pleas, were being heard in royal courts.’ Glanvill outlines a procedure for making such claims with respect to cases started by writ of right, which had been removed from the lord’s court before proof of default

*°! See above, 337, 357. In addition, if the custom developed from the logic of the lordship of landholding, it is curious that its existence is uncertain in regions with comparable tenurial practices, notably Normandy; J. Yver, ‘Le bref Anglo-Normand’ (1961) 29 TVR 313-30, at 319.

© Cf. Stenton, English Justice, 29. Glanvill’s other references to normative customs do not suggest that he was concealing legislation. "8° See esp. Royal Writs, no. 96.

84 Glanvill, xii. 3-5, ed. Hall, 137-8. “°° See below, 583; also below, 600-3, on the grand assize. "°° Glanvill, ix.12, ed. Hall, 115.

"°” PKJ, iii. no. 862. The record states that a second reason for the case being dismissed was the liberty of Shrewsbury. Note also Lawsuits, no. 452, where a plaintiff transferred his claim to royal justices, but at the justices’ order a day was given to him in the seignorial court. *°8 Note CRR, i. 251, for Robert, earl of Leicester, in 1200 appointing an attorney to seek his court and liberty when necessary in the king’s court; see also below, 573, on the bishop of Ely. It was not only in the king’s court that claims of jurisdiction might have to be made; e.g. Jocelin, Chronicle, ed. Butler, 106, noted the absence of anyone to claim the convent’s court at the start of a plea in the abbot’s court.

22 COURTS 559 of justice.’ Plea rolls suggest that lords’ claims were often successful, although some were rejected, for example on the grounds that the disputed lands were not held of the person claiming the court.'”° It is impossible to discover precisely how such reclaimed pleas had been

started, and therefore how they relate to the baronial grievance revealed by clause 34 of Magna Carta: ‘the writ called precipe shall not in future be issued to anyone in respect of any holding whereby a free man may lose his court’, that is lose jurisdiction over the case. The clause aimed to remove from lords the onus

of protecting their courts against this particular royal intervention.” The writ precipe was addressed to sheriff, and told him to command N. that he justly and without delay render [reddat] to R. one hide of land in that vill, concerning which the said R. complains that the aforesaid N. deforces him. If he does not do so, summon him by good summoners that he be present before me or my justices on the day after the octave of Easter, to show why he has not done so.

That Glanvill expected the alleged deforciant not to comply is indicated by his preceding discussion: ‘when anyone makes a claim to the lord king or his justices concerning his fee or free tenement, if the case is such that it ought to be, or the lord king wishes it to be, conducted in his court, then he who complains shall have the following writ of summons, and then gives the writ precipe.’” The writ thus took cases directly to the king’s court. It is unclear how frequently writs precipe led to lords losing or having to claim their courts.’”? Unsuccessful claims may be

missing from the plea rolls, perhaps in considerable numbers, as they did not affect the further proceedings of the case. The extent of the difficulty confronted

"°° Glanvill, xii. 7, ed. Hall, 139-40. CRR, i. 337, 344, shows the claimant being instructed to obtain a new writ if she was to bring her case after a lord (the bishop of Durham) had successfully claimed

his court. It is uncertain if this was a universal requirement, here made explicit in the record. Cf. below, 565 n. 213, on CRR, i. 86.

‘’° For successful claims in land cases, see e.g. PKJ, i. nos 2968, 3093, iv. nos 2646, 4577 (dower), 4669; in other types of case, see e.g. PKJ, iii. nos 490 (wardship), 1432 (appeal). Unsuccessful: e.g. PK], iii. no. 2082; CRR, iii. 272. Note PKJ, iii. xxviii, on the outcome of claims of court being recorded

on the relevant essoin but not plea roll. ‘7 Hurnard, ‘Magna Carta’, 176-7. 7? Glanvill, i. 5-6, ed. Hall, 5. ‘7° On the frequency of issue of writs precipe, and the types of writ that may have been of concern, see Hurnard, ‘Magna Carta’, 174-6; PR6J, xxiii-xxxiii, where Lady Stenton included those resembling what would later be classified as writs of entry, which began ‘Precipe’. Note also that an early thirteenth-century manuscript of Glanvill, Lambeth Palace MS 429, fo. 107r, precedes the Precipe quod reddat with the heading ‘Breve de recto’. It is possible that Pipe and plea roll entries using the phrase de recto disguise cases started by Precipe quod reddat; note also Holt, Magna Carta, 142.

560 PART III: ANGEVIN ENGLAND in Magna Carta, clause 34, is therefore uncertain, but the clause surely reflects a seignorial sense of royal intrusion and dishonourable treatment.’ Lords’ courts continued to be a venue for legal business besides litigation.

Homage was performed, and relief no doubt overseen.”° Land transactions might take place there.”° A preference for final concords made in the king's court diminished the importance of seignorial courts for some land transactions, but the diminution may have varied between honours. The courts of some lords, such as the Ferrers earls of Derby, seem to have retained considerable importance in such matters, even if their role in deciding land cases was diminished. Between 1162 and 1164 Henry son of Fulcher and his brother Sewall reversed the normal order of inheritance to their father's lands. The document recording the arrangement was witnessed by Earl William de Ferrers as “both justice and witness, and

at least part and probably all the transaction took place in his court. When the transaction was confirmed in the 1190s, it again took place in the earl's court, with no mention of royal involvement.’

Honorial courts might deal with matters involving not just the lord's immediate tenants but sub-tenants too.”* Particularly from the earlier part of Henry II’s reign there is evidence for the king using overlords to supervise the courts of their men. A writ might order that if the addressee did not do justice, his overlord should.’? The early decree concerning default of justice probably sent cases to courts of superior lords, until they reached the king.*° Some cases from John’s reign show the archbishop of Canterbury claiming cases that had passed from his tenant’s court to the county.’ However, these could reflect the peculiar position of the archbishop, and by this stage the normal route had become set: from lord’s court to county to king’s court. There are no surviving rolls or other formal records of honorial courts, apart from charters and other documents recording grants and settlements. It is possible that some courts kept records, for example of payments relating to litigation, but none has survived.

'7* See also below, 851.

‘7° Note e.g. Book of Seals, nos 200, 220, where homage and relief were done in the presence of the donor’s lord, David, brother of the king of Scots. ‘7° See e.g. Lawsuits, nos 388, 450, 556, 623; Luffield Priory Charters, ed. G. R. Elvey (2 vols; 22, 26 Northamptonshire Record Soc., 1968, 1975), no. 405; Lincs., no. 260. ‘’” Stenton, First Century, 52-4. ‘78 See also above, 287. ‘7? Note Boorman, ‘Nisi feceris’, 95. "8° See above, 512. "8! See RCR, i. 356-7, CRR, iv. 264-5; CRR, iii. 79.

22 COURTS 561 Overall, social changes within lordships may have reduced the importance of honorial courts as places where lords’ leading tenants met and did business, to a degree that varied between honours.’ Honorial courts continued to function, but in matters of litigation concerning land their role in actually deciding cases was diminished. Instead, they were increasingly integrated with and subordinated to royal courts through the use of writs and the transfer of cases.

Manorial courts Lords also held courts for their lesser men, free and unfree.’ No special royal grant was needed to hold such courts, although there are royal confirmations that a lord had a ‘hallmoot’.’** The lord’s steward or bailiff presided. It is unclear

how far the obligation to attend was personal, how far tenurial, although later in the thirteenth century suit for free tenants seems to have rested on certain pieces of land. The number of suitors is also uncertain, although after our period figures up to a hundred or more are possible if all unfree tenants had to attend." Later evidence suggests that once every three weeks may have been a typical frequency for meeting.’®*®

The manorial courts or hallmoots handled litigation involving unfree tenures and some lands held at the lord’s will or for a term of years, and at least initial stages of litigation concerning free tenures of lesser tenants. Those seised of free tenements, however, were drawn under the protection of the royal courts." The manorial court was also a venue for land transactions, some of which arose

from disputes.’ Personal actions, for example over small debts, and minor cases involving violence might be heard."*® The court might also deal with other manorial matters, such as the choice of officials. It seems unlikely that records

‘S* For the continuing importance of some but not all honorial courts of a single lord in matters of litigation and landholding, see Redvers, 29-33; note also e.g. the comments of Golob, ‘Ferrers earls of Derby’, esp. 99, 161-72.

"8 On the later gradual separation of courts for free and unfree, at least in some areas, see e.g. Douglas, Medieval East Anglia, ch. 4. "84 See e.g. Lawsuits, no. 349.

“> On suitors, see e.g. Ault, Private Jurisdiction, 338-42. *° P.R. Hyams, ‘What did Edwardian villagers understand by law?’, in Medieval Society and the Manor Court, ed. Z. Raziand R. M. Smith (Oxford, 1996), 69-102, at 89. "87 See above, 557-8, on the writ rule, below, 617, on novel disseisin. "88 See e.g. Lawsuits, nos 625, 626, from the 1180s and 1190s. Note also cases where the men of the

hallmoot bear witness to a transaction; e.g. Lawsuits, no. 369. "8? See above, 553; on jurisdiction over small debts, note Beckerman, ‘Forty-shilling limit’ esp. 115.

562 PART III: ANGEVIN ENGLAND were routinely made, although some begin in the second quarter of the thirteenth century.’°

Franchises Glanvill refers to lords possessing jurisdiction over ‘brawls, beatings, and even [etiam] woundings, unless the accuser adds concerning breach of the lord king’s peace, that is over the type of offences covered by sake and soke.’” The desirability of the additional right of infangentheof is demonstrated by disputes between lords

over possession of gallows, and pleas where the king accused a lord of having unjustly raised a gallows.’ In some circumstance it may have been wise or even necessary to have a royal official present at proceedings, but such supervision does not seem a routine requirement.’? Meanwhile the kings continued to make new grants of hundreds to lords, as well as confirming earlier grants.’ Very occasionally a grant was made in relation to a specific type of crime, but this may well have involved not the hearing but only the profits of relevant pleas.° A small number of lords received the profits from chattels of felons convicted by the eyre.”° We also see lords being granted ‘view of frankpledge’.

This normally exempted the privileged lord and his demesne tenants from attending the sheriff's tourn, with the lord performing the sheriff’s duties in a court of his own. This reduced the universal shrieval supervision specified in the Assize of Clarendon.’ Sometimes privileges might be broader, including lands with which lords had enfeoffed their men. Others were less extensive, leaving the lord obliged to attend the sheriff's tourn or explicitly stating that the sheriff or another royal official was to attend the view.’

°° See Z. Razi and R. M. Smith, “The origins of the English manorial court rolls as a written record: a puzzle, in Medieval Society and the Manor Court, ed. Razi and Smith, 36-68, esp. 39-40, 48.

! Glanvill, i.2, ed. Hall, 4; Pollock and Maitland, i. 579. °* See e.g. PKJ, i. no. 2382, iii. no. 926, iv. no. 2676. "°° See Stenton, First Century, 102 n. 1, Painter, Feudal Barony, 103. °* See e.g. N.C. Vincent, The Lucys of Charlecote: the Invention of a Warwickshire Family 1170-1302 (42 Occasional Papers Dugdale Soc., 2002), 31 (no. 1); Cam, Hundred, 138.

°° Hurnard, ‘Franchises’, 448. See also Hurnard, ‘Franchises’, 437-40, on grants of profits of pleas associated with the county and the sheriff’s tourn, but not extending to pleas of the crown. °° See Painter, Feudal Barony, 111, 116.

*°” Assize of Clarendon, 9. Magna Carta 1217, 42, stated that the sheriff was to carry out view of frankpledge, ‘thus that anyone is to have his liberties that he had and was accustomed to have in the time of King Henry our grandfather, or that he afterwards acquired’. See also Painter, Feudal Barony, 98-102; Pollock and Maitland, i. 580-1; Morris, Frankpledge, 131-47.

8 See e.g. charters of John for Salisbury and Ramsey: Rot. chart., 67; Cartularium monasterii de Rameseia, ii. 63. Note also Pollock and Maitland, i. 581-2, Painter, Feudal Barony, 96-7, on lords’ privileges regarding the assizes of bread and ale; their evidence is from after our period. EYC, iii. no.

22 COURTS 563 What of new grants entitling the beneficiary to exclude the sheriff or other officials from intervening? From the end of the twelfth century come the first mentions of the procedure of ‘return of writs." If the sheriff received a writ in relation to the privileged lands, he had to pass it to the franchise holder's official. That official was to execute the order; if he failed to do so, a second royal writ was issued, instructing the sheriff to execute the order himself despite the franchise. This procedure may have developed from what had occurred out of practicality, king and sheriff finding it useful to act through seignorial officials. The extension of royal justice was now reducing use of such officials, but some lords preserved the old collaboration in the form of a royally granted franchise. Thus the Angevin reforms may have had the effect of extending formal franchises as a by-product of efforts to diminish seignorial influence. Non-interference clauses might also refer to criminal matters. The beneficiary's officials conducted the initial stages of criminal proceedings, but, except in the case of the most privileged, would then deliver the accused to the sheriff.”°° A few lords could appoint their own coroners; such a privilege was probably enjoyed

mainly in the north and west of the realm.” Likewise, a few lords claimed the right that the eyre hold a special session for their lordship, and the priory of Tynemouth was peculiarly privileged in having its own justices hold all pleas, before an observer appointed by the king’s justices.” Thus specially privileged lordships continued, especially in the north and west

of the country.’* The bishop of Durham enjoyed very extensive jurisdiction, whilst other churches, notably St Peter’s and St Mary’s York, Hexham, Beverley,

and Ripon had important privileges.” In the west of England, various laymen claimed significant franchises. Cornwall does not appear in the Pipe Rolls until

1390, which grants the assize of bread and ale to the abbey of Meaux, would be 1156 x 1162 but has been reworked or entirely forged at a later date.

°° See RCR, ii. 85-6; Clanchy, “Return of writs’. See also Painter, Feudal Barony, 116-19, who notes the problem of identifying holders of this privilege. On non-interference by the sheriff, see also Jocelin, Chronicle, ed. Butler, 133. Professor Brand, in his volume in this series, will deal with the significance of franchise holders carrying out the orders of justicies writs, normally the responsibility of the sheriff.

*°° See Hurnard, ‘Franchises’, 444. If the franchise holder held higher rights of criminal jurisdiction, these too would be protected from royal interference by the ne intromittat clause. *°" Hunnisett, Coroner, ch. 8. °°? Hurnard, ‘Franchises’, 452-9, Painter, Feudal Barony, 114-15. *°* For laymen holding privileges in the north, see above, 293; also e.g. K. J. Stringer, ‘States, liberties and communities in medieval Britain and Ireland (c. 1100-1400)’, in Liberties and Identities in the Medieval British Isles, ed. M. Prestwich (Woodbridge, 2008), 5-36, at 14. *°* Note Lobel, ‘Ecclesiastical banleuca’, 126-7; Scammell, ‘Liberty of Durham’. See above, 292.

564 PART III: ANGEVIN ENGLAND the death of Earl Reginald de Dunstanville in 1175, suggesting that he may have exercised very extensive jurisdiction throughout the county.’® In the borders with Wales, a case of 1203 records events following a claim of grand assize: afterwards William fitzAlan came and said that that land is in his hundred, which owes

no suit to the county court of Shropshire, neither concerning death nor concerning arson, nor do men of that hundred come for any summons before the justices or before the sheriff. He also says that there ought to be no grand assize concerning a tenement in that hundred, nor was there ever, and the whole county court witnesses this.”°°

The special position of the earl of Chester was also becoming more distinct, for example with the emergence around 1200 of the notion of ‘pleas of the sword’ that belonged peculiarly to the earl, analogous to the king’s pleas of the crown.?” Privileged areas continued to exist in the south and east of the country too. The archbishop of Canterbury may have claimed that, although pleas of the crown should be heard before the king's justices, judgment should be made and sentence carried out in the archbishops court, in the presence of two or three of the king's justices.*°> Royal plea rolls allow us to see churches, including the abbeys of Bury St Edmunds, St Albans, Ramsey, and Battle, and the bishoprics of Ely and Norwich, claiming and exercising various liberties with regard to criminal cases, possessory

assizes, and other land cases.” The Redvers earls enjoyed very extensive jurisdiction over the Isle of Wight, which resembled a private county, probably as a combined result of tenurial dominance and franchisal grant.”’° Unfortunately we cannot tell the extent of the jurisdiction that Prince John enjoyed within the counties granted to him by Richard I in the early years of his reign, but we do know that John appointed a justiciar for his lands.” The tone of the clauses of the Assize of Clarendon insisting that sheriffs not be excluded from franchises indicates that Henry II and his advisers saw privileged lordships as a potential threat to the effective rule of the realm. Certainly

*°° Painter, Feudal Barony, 110. Note also the appearance of Earl Reginald in the nisi feceris clause of Royal Writs, no. 23. 206 PKY, iii. no. 782.

*°7 See Crouch, ‘Administration of the Norman earldom’, in Earldom of Chester, ed. Thacker, 71-3. I do not consider the Norman settlements in southern Wales, on which see e.g. Davies, ‘Kings, lords, and liberties’. *°® See Hurnard, ‘Franchises’, 456-7. *°° See e.g. CRR, vi. 206 (note the supervision by two knights of Essex, perhaps resulting from claims that justice had earlier been denied in the court); PKJ, iii. no. 2226, iv. nos 2660, 4074, 4088; Hurnard, ‘Franchises’, 320, n. 3. For the abbot of Bury dealing with accusations of rape and homicide, see Jocelin, Chronicle, ed. Butler, 45, Lawsuits, nos 407B, 581. *"° Redvers, 27-30. *"’ Hurnard, ‘Franchises’, 449 n. 1; see also above, 502 n. 25.

22 COURTS 565 continuing grants of privilege, together with Henry’s willingness to accept that the Assize should only be enforced as a one-off in the bishopric of Durham, suggests a desire to control franchises for practical reasons rather than to destroy them for ideological ones. However, the Chronicle of Jocelin of Brakelond reveals

the abbot of Bury sensing that his liberty was in constant danger of infringement, from other lords, from litigants, and from the king’s officials. Vigilance was needed to claim cases that were being brought to the county or king’s court.”” If there was no concerted and sustained campaign against franchises, there was an underlying pressure for their restriction.”

6 ECCLESIASTICAL COURTS In the Angevin period we can distinguish various ecclesiastical fora where cases were heard. There were the courts of papal judges delegate, held for specific cases that had been taken to the pope and the hearing of which he had delegated to specific ecclesiastics to hear.”'* Next there were provincial courts held before archbishops. Bishops also heard diocesan cases, as would archbishops for their own dioceses. The hearings might be in the general meeting of a diocesan synod, as in earlier periods, but there is also increasing evidence for other courts. These may have developed partly to deal with preliminary procedures, which required too many hearings to remain the preserve of the synod. However, non-synodal courts also heard cases. On occasion such a court was referred to as the auditorium, and might be presided over by the bishop or by his ‘official; a term sometimes used of his chief legal servant.”* At a lower level, cases were heard before archdeacons or before their inferiors, the rural deans.”

*™* Note e.g. Jocelin, Chronicle, ed. Butler, 134-5, 161-2.

*"° For conflict over jurisdiction between the king and the bishop of Durham, see also CRR, iii. 108-10, 131, PR6J, 44-5, noting the size of the proffer that the tenant had to pay in order to ensure that the bishop not continue hearing the case despite the tenant having placed himself on the grand assize. See also CRR, i. 86, for the abbot of Bury successfully claiming his court concerning two cases; the plaintiffs were to have writs to the sheriff that he send lawful knights to hear that they were justly treated. *™* See e.g. Lawsuits, no. 402; J. E. Sayers, Papal Judges Delegate in the Province of Canterbury 1198-1254 (Oxford, 1971); Helmholz, Canon Law and Ecclesiastical Jurisdiction, 95-100, 138-9. **° See C. Morris, ‘From synod to consistory: the bishops’ courts in England, 1150-1250’ (1971) 22

JEcclH 115-23, at 116-20; also Helmholz, Canon Law and Ecclesiastical Jurisdiction, 140-1, and, for cautions concerning the position of ‘official’, D. M. Smith, “The “Officialis” of the bishop in twelfth-

and thirteenth-century England: problems of terminology’, in Medieval Ecclesiastical Studies in Honour of Dorothy M. Owen, ed. M.J. Franklin and C. Harper-Bill (Woodbridge, 1995), 201-20.

**° See Helmholz, Canon Law and Ecclesiastical Jurisdiction, 135-8. Such activities help to explain the unpopularity of archdeacons; see e.g. Bartlett, England, 389.

566 PART III: ANGEVIN ENGLAND Episcopal synods may commonly have met twice a year, at the bishops see.”” Fragmentary evidence leaves the frequency of other episcopal courts unclear. As for archdeacons and rural deans, an agreement in 1151 x 1158 states that the vicar of a chapel should, if it was necessary, go to the chapter three or, if necessity demanded, four times a year and not more, and this was to be at the summons of the archdeacon. He was never to go to the rural dean’s chapter.”* As at the episcopal

level, some business was probably conducted at smaller meetings, and we sometimes hear of chapters held in close succession at different places.” Synods and local chapters appear to have been quite large gatherings.”° The newer diocesan courts were probably smaller, with certain leading men playing a key role, deans and archdeacons sometimes in attendance, and the president of the court acting more as a sole judge than he did in the synod.

There were no clearly defined distinctions of jurisdiction between Church courts; it was the bishops obligation to provide justice in spiritual matters, but he might do it himself or through delegation.” The fortunate survival of slightly fewer than a hundred documents from the last years of Hubert Walter's archiepiscopate give some indication of the business of his court. They concern a wide range of issues, but not ones peculiar to this court: ecclesiastical offices and revenues; benefices in parish churches; tithes; marriage and bastardy; ecclesiastical lands; breach of faith; testamentary succession.” Evidence from ecclesiastical courts other than the archbishop’s reveals a similar range of business.”* Often the status of the parties in matters such as marriage litigation must have determined whether the case was heard at local or diocesan level, and rural chapters would be the site for the great mass of disciplinary jurisdiction in spiritual matters. In England, the division between secular and ecclesiastical jurisdiction was based on the subject of dispute, not the clerical or lay standing of the litigants,

except in the matter of crime.”* In civil litigation, this division contrasts with

*"” Morris, ‘Synod to consistory’, 117. *"8 English Episcopal Acta, 18: Salisbury, 1078-1217, ed. B. R. Kemp (Oxford, 1999), no. 128. **9 J. Scammell, “The rural chapter in England from the eleventh to the fourteenth century (1971) 86 EHR 1-21, at 14-15.

*2° Note Scammell, ‘Rural chapter’, 9, 14; evidence is necessarily sparse. *2" Morris, ‘Synod to consistory’, 117-20. *22 See Morris, ‘Synod to consistory’, 115-16. *2° Select Cases from the Ecclesiastical Courts of the Province of Canterbury c. 1200-1301, ed. and trans. N. Adams and C. Donahue (95 Selden Soc., 1981), 9-10. *?* Marriage and legitimacy, e.g. PKJ, iii. no. 858, sent to bishop’s court; adultery, e.g. Lawsuits, no. 464, and note no. 371; bequest of chattels, e.g. CRR, vi. 79-80. For defamation cases, see Council of Westminster 1200, 12, Councils and Synods, I, no. 183. *2°' See below, 768-72; Helmholz, Ius commune, 193, 216; see also 238-9, where a contrast is drawn with France. On possible reasons for the English situation, see Helmholz, Ius commune, 226-9. Note

22 COURTS 567 that drawn in canon law, where the basic rule was that the defendant’s clerical or lay standing determined the choice of court.”** There were disputes over the extent of ecclesiastical jurisdiction, most obviously

during the Becket dispute on the subject of clerical crime. In this instance, after Becket's death the Church courts gained the jurisdiction that Becket had claimed.” Development regarding landholding is less clear. The Constitutions of Clarendon appear to have granted the Church extensive jurisdiction, covering all land that pertained to alms [elemosina] as opposed to lay fee.”** However, the Church does not seem to have established control of all cases involving its lands during Stephen’s reign,” and it is very unlikely that Henry II would have accepted such a situation or described it as the custom in his grandfather's time. The question turns on what the Constitutions mean by alms, and what was later meant by ecclesiastical fee. As we will see, this is a very difficult question, with indications of words being used in more than one sense and with changing vocabulary not helping interpretation.”° If the Constitutions did give the Church courts extensive jurisdiction over land, there had been a royal reassertion probably by the time of Glanvill, and certainly by that of Bracton. Alternatively the jurisdiction allowed to the Church in 1164 may have been narrower. There are subsequent suggestions of assertiveness by both king and Church.”

Pipe Rolls record clerics rendering account because they had held pleas concerning lay fee in courts Christian, laymen for having pleaded concerning lay fee there.*?? However, at least some such cases may not reflect a general

that some churches had privileges that they should not plead in secular courts; see A. W. Douglas, ‘Tenure in elemosina: origins and establishment in twelfth-century England’ (1980) 24 AJLH 95-132, at 123 n. 100. Note, however, that kings might expect to hear cases concerning even such churches; see e.g. Cartularium abbathiae de Rievalle, ed. J. C. Atkinson (83 Surtees Soc., 1889), nos 198, 205; Rot. chart., 94b. *2° See Helmholz, Ius commune, 200, although note 202-4, on exceptions to this rule. *27 See below, 772; an exception was Forest offences.

*® Constitutions of Clarendon, 9. Note also the arguments put forward by William fitzStephen in his Life of Becket, Lawsuits, no. 421B (p. 440). *2° See e.g. RRAN, iii. nos 546, 887; Cartularium abbathiae de Rievalle, no. 359; Lawsuits, no. 325. *2° See below, 607-9, 669. *°" Cases in lay courts where the issue of bastardy was raised, but either the issue was passed over

in the royal court or the king prohibited transfer of the case to an ecclesiastical court, may bea sign of jurisdictional tension. Alternatively, they could be instances where the answer concerning legitimacy was obvious or the person raising the issue was not trusted; note CRR, ii. 5, 8, iii. 53. Note also the decretal X 4.17.7, on papal acceptance of royal jurisdiction on possession of land, as opposed to matters of marriage. *8? See e.g. PR31HII, 34, 121; see also 67, concerning a plea regarding an advowson. Note also e.g. PK], iii. nos 1565, 1607, 1811, 1999. In PKJ, i. no. 3219, the archbishop of Canterbury sought court

Christian concerning a plea of land between the earl of Leicester and the bishop of Lincoln.

568 PART III: ANGEVIN ENGLAND conflict but were complicated ones involving a variety of issues, some under royal jurisdiction, others under ecclesiastical, especially matters of marriage and legitimacy.

In other disputes too, jurisdiction may not have been obvious; questions of custody might become confused with questions of bequest of chattels, whilst questions of breach of faith, a matter for ecclesiastical jurisdiction, could easily overlap with land disputes.”? The Constitutions of Clarendon assigned cases concerning advowsons and presentation of churches to the king’s court, but although this principle was maintained overall, there were advowson disputes that went before Church courts.” Advowsons were one of the first areas in which were used royal writs of prohibi-

tion, writs that prohibited a plea from being heard in a Church court. Another early writ of prohibition dealt with cases involving lay fee. Writs, although not yet de cursu, may also have been used to prohibit Church courts hearing cases relating to debts and chattels unless deriving from a last will or a marriage. Such writs, commonly issued at the instance of a party to the case, allowed disputes between Church and royal courts to be addressed on a case-by-case basis, perhaps helping to prevent wider conflict.” At the same time there is much evidence for successful co-existence of lay and ecclesiastical courts, with cases passing from one to the other, or being settled

before both papal judges delegate and the king, and with the king enforcing ecclesiastical judgment.”° Perhaps in part because of the lasting aftershocks of its violent end, the Becket dispute turned out to be exceptional as a period of sustained jurisdictional conflict. More typical were co-operation or limited and specific skirmishes along what Maitland called the ‘ragged’ and ‘unscientific’ frontier between lay and ecclesiastical jurisdiction.”” *2° Note CRR, i. 405; vi. 79-80; vii. 143-4. Note also the limits of clarity as to the location of litigation concerning tithes; see e.g. Lawsuits, nos 442, 466, 576; CRR, iv. 69-70; N. Adams, “The judicial conflict over tithes’ (1937) 52 EHR 1-22, at 1-6. *2* See above, 541, but note that Glanvill, iv. 9, ed. Hall, 48-9, assigns to ecclesiastical courts cer-

tain types of case involving advowsons. See further J. W. Gray, “The ius praesentandi in England from the Constitutions of Clarendon to Bracton’ (1952) 67 EHR 481-509; C. R. Cheney, From Becket to Langton: English Church Government 1170-1213 (Manchester, 1956), 108-18. Note also e.g. Lawsuits, nos 383, 438, 445. *°° For writs of prohibition, see Glanvill, iv. 12-14, xii. 21-2, ed. Hall, 52-3, 146-7; also e.g. CRR,

ii. 28; G. B. Flahiff, “The writ of prohibition to court Christian in the thirteenth century (1944) 6 Mediaeval Studies 261-313, (1945) 7 Mediaeval Studies 229-90, who also discusses circumstances when the king or his justices, rather than a party, might initiate the issue of a writ of prohibition. On de cursu writs, see below, 582. *8° See e.g. Lawsuits, nos 402, 408, 478, 558, 566-7, 621. See also e.g. Early Registers of Writs, Hib. 55; Gray, ‘Ius prestandi’. *°7 FB, W. Maitland, Roman Canon Law in the Church of England (London, 1898), 57.

22 COURTS 569 7 TRANSFER OF CASES BETWEEN SECULAR COURTS As well as cases moving between secular and ecclesiastical courts, we also see transfer between different types of secular court. Thus cases moved from a private hundred of St Augustine's, Canterbury, to the abbot’s own court, or from lesser courts to the abbots at Bury St Edmunds.”* However, the most important transfers were between lords’ courts, the county, and the royal courts. Such transfers could be made at the joint request of the disputants or at that of the president of the court. Glanvill discusses what happens when a baron has a plea in his court concerning which there arises a reasonable difficulty that his own court is incompetent to settle. Then the lord can place his court into the court of the lord king, in such a way that he has the advice and assent of the lord king's court as to what as of right ought to be done concerning this matter of doubt. The lord king owes this as of right to his barons, that is that his barons can in such circumstances place their courts in this way into his court, in such a way that he makes them have in his court advice from his learned men. When his difficulties have been resolved in the court of the lord king, the lord may return with his plea, and conduct and determine it in his own court.”

Transfer could also take place on the initiative of only one party. Tenants in cases relating to right to land or services might place themselves on the grand assize.*4° Alternatively, the transfer might come at the request of the claimant, who argued that he had suffered default of justice, which might involve abuse of process or delay or denial of a trial, or had received false judgment." As we saw earlier, both the hearing of complaints of default of justice and false judgment

were established royal rights, and procedures for royal involvement existed before the Angevin reforms.” In the thirteenth century, and possibly in the later twelfth, the normal procedure for transfer of cases from a lord’s court to the county was known as tolt.’* Glanvill outlines the procedure:

*°8 Lawsuits, nos 577, 662. *°° Glanvill, viii. 11, ed. Hall, 102-3.

**° See below, 600-3. On an instance of a lord being unwilling to discontinue proceedings in his court when the tenant placed himself on the grand assize, see above, 565 n. 213. **™ False judgment, too, could involve abuse of process, but one that had reached judgment; see e.g. CRR, iii. 133, where incorrect procedure constitutes the false judgment. *4? See above, 301. For the early years of Henry II, see e.g. Lawsuits, no. 406. Note also royal writs

ordering the doing of justice or carrying out an action, failing which the sheriff or a royal justice would deal with the case; Boorman, ‘Nisi feceris’, 94. **° Cheney, ‘Decree’, 183, noting the use of the verbal form by Guernes de Pont-Sainte-Maxence. ‘Tolt’ derives from the Old French verb tolir, to take away or remove.

570 PART III: ANGEVIN ENGLAND When the demandant complains to the sheriff in the county court and produces the writ of the lord king [i.e. the original writ of right, examples of which he has just given], the sheriff shall, on a day appointed to the litigants by the lord of that court, send to that court one of his servants, so that he may hear and see, in the presence of four or more lawful knights of that county who shall be there by sheriff’s command, the demandant’s proof that the court has made default of justice [de recto] to him in that plea; the demandant shall prove this to be so by his own oath with two others, who heard and understood it, swearing with him.

The case was then to be decided in the county, although Glanvill also reveals that it could go to the king’s chief court.**4 How new were the procedures outlined by Glanvill, how far they differed from those under Henry I, is hard to establish.

As noted in the previous chapter, there was legislation on this subject early in Henry II's reign. The clearest account comes in a French vernacular verse Life of Becket, by Guernes de Pont-Sainte-Maxence: If anyone pleaded concerning land in his lord’s court, He was to come on his first day with his people And if he made no progress with his plea He was to go to the justice and make his complaint. He should then return with two oath-helpers. In his lord’s court he should swear, his hand being the third, That the court had deprived him of his full right. By this oath, whether unlawful or sound, He should go to the court of the next lord, Until finally he came to the court of the supreme lord.**

The legislation is mentioned in the context of a case between Thomas Becket and his tenant John Marshal. When the latter removed his case from the archbishop's court to the king’s, his oath that justice had been denied was sworn not on a Gospel book, as was customary, but on a troper, a liturgical book, that he produced from beneath his cloak.*4*° How exactly the legislation changed earlier procedure is unclear, but statements that it caused discontent among great men

*** Glanvill, xii. 7-8, ed. Hall, 139-40; note the possibility of the lord reclaiming his court on the grounds that he had not failed to do justice. For the production of suit in the county court that the lord’s court had failed to do justice, see e.g. CRR, vi. 228 (note also production of the writ). For reference to county custom concerning procedure, see e.g. CRR, xi. no. 1746. **° Lawsuits, no. 420H; see also above, 512. This account seems more precise than the summary in no. 420C, the Life by the so-called ‘Anonymous I’. Guernes probably had access to a copy of the Constitutions of Clarendon and perhaps had access to this decree too. **° Lawsuits, nos 420B and 420C. Cf. Howden, who used the phrase ‘statutum sit’ with regard to the Gospel book, suggesting that the matter was included in the legislation; Lawsuits, no. 420D.

22 COURTS 571 strongly suggests that it eased the process of transfer. Elements of the procedure,

such as the need for two supporting oaths, are very similar to that in Glanvill, but a significant difference is that the legislation allowed cases to be transferred to overlords’ courts, whereas by the end of the reign transfer was immediately to the county or to the king’s chief court. Cases might also be transferred from county to royal court. In the context of his discussion of litigation concerning dower, Glanvill gives the appropriate writ, known as pone: “Put [pone] before me or my justices on a certain day the plea that is in your county between M. and N. concerning one hide’. He then provides an account of the procedure: A plea of this kind can, like any other, be transferred from the county court to the chief court for several reasons. It may be because a difficulty concerning the plea has arisen in the county court, which does not know how to resolve it; when for this reason a plea is transferred to the [chief] court, both parties, demandant and tenant, must be summoned. It may also be transferred at the request of either party; in this case it is sufficient to summon the party who did not request this. Where, however, the plea is transferred with the consent and at the request of both parties, who are present together in court, then neither party ought to be summoned because both know the day appointed in court.’”

The writ pone was in general obtained for a small payment of %m., 1m, or 2m., suggesting regular availability if not the routine availability of a writ de cursu.?* In transfers by pone, the royal court heard the original claim, and only rarely was reference made to the earlier proceedings in the county.’ In other instances of transfer, however, the issue was whether there had been false judgment. This

is particularly clear from another discussion in Glanvill. Someone accuses a court of giving him a false judgment. The person through whom the court’s judgment was rendered wishes to deny this. The accuser might be prepared to go to proof against him, preferably by a suitable witness who is ready to undertake the proof. Such a case might well be settled by battle, with the man who gave the judgment fighting on behalf of the court. If the court is convicted, ‘the lord of the court is to be in the lord king’s mercy and lose the court [i.e. hearing of the

**” Glanvill, vi. 5-8, ed. Hall, 61-2; see also e.g. PKJ, i. nos 3477, 3500, 3519. Use of the writ increased under Henry III. Writs transferring cases between royal courts might also be referred to as pone; e.g. Rot. de ob. et fin., 222. **8 See e.g. PR6J, 113, 254. For higher payments, see PR7J, 238, CRR, vi. 200. On writs de cursu, see below, 582.

** Glanvill, vi. 8, ed. Hall, 62-3; L. E. M. Walker, “Some aspects of local jurisdiction in the 12th and 13th centuries, with special reference to private and county courts’ (M.A. thesis, University of London, 1957), ch. 1.

572 PART III: ANGEVIN ENGLAND case] forever. Moreover the whole court is to be in the lord’s king’s mercy. But if the complainant fails in proof, he shall thereby lose the original case.”*° In pleas of false judgment, and some others concerned with earlier proceedings, the court that had heard earlier proceedings might be summoned by writ.” The writ seems to have been available without special payment, perhaps because it related to the king’s duty of dealing with cases of injustice.** Glanvill’s version of the writ is addressed to the sheriff, and orders the following steps. The plea is ‘to be recorded in your county’, that is to be recapitulated. Then the sheriff is to have before the king or his justices on a fixed day the record of the plea through four

lawful knights. The sheriff is also to summon the parties to be present to hear the record in the royal court. Although the district court was not normally one of incontrovertible record, in such instances the consent of the parties allowed it to be treated as such.” A court was not bound to defend its record—as opposed to its judgment—by battle, although this method of proof was a possibility.” All these developments suggest increasing integration of courts into a system regulated by the king and his justices. Such conceptualisation of courts as forming a system is apparent in Glanvill. He juxtaposed the king’s court with lesser or inferior [minores] courts, including the county.”** In some manuscripts, chapter one of Book XII, which deals with the writ of right, is given the following summary: Pleas concerning right [recto] are sometimes treated from the start in the king's court and sometime are subsequently transferred to it for many reasons from lesser courts.”5” Romano-canonical ideas, together with ecclesiastical and in particular papal practice, may have encouraged reformers to think in terms of a system.** Meanwhile, routine methods took some cases directly or indirectly to the king’s courts, whilst cases within certain other categories might be delegated by royal command, for example through writs requiring action by sheriffs and

county courts.”

*°° Glanvill, viii. 9, ed. Hall, 101. 751 See e.g. PKJ, iii. no. 278.

*°? Walker, ‘Some aspects of local jurisdiction’, 99. *°3" Glanvill, viii. 9-10, ed. Hall, 102. *°* Glanvill, viii. 9, ed. Hall, 101. For offer of battle concerning record, see e.g. CRR, i. 2773 ii. 260, 296.

*°° Note also royal prohibitions of the holding or continuing in district courts of pleas that were to be heard in royal ones; e.g. RCR, ii. 100; CRR, v. 76. *°° See Glanvill, viii. 9, 11, ed. Hall, 100, 102. Note also the reference in the 1194 articles of the eyre,

2, to pleas sent to the itinerant justices from the ‘chief [capitali] court of the king’. *°7 See e.g. London, British Library, Additional MS 14252, fo. 8v; Oxford, Balliol College, MS 350, fo. 45r; Glanvill, ed. Woodbine, 37.

*°8 Note the hierarchy of courts outlined in Constitutions of Clarendon, 8. °°? See above, 552-3.

22 COURTS 573 There might also have been a decline in any flexibility that litigants had once enjoyed as to the type of court—seignorial, local, royal, ecclesiastical—to which they might take their claim.”*° Writs specifying who was to deal with a case if justice was not done, more routinised procedures for transfer of cases, set processes for claiming courts or prohibiting the hearing of cases in certain tribunals, all might reduce such flexibility. Others need not have shared this view of courts forming a hierarchic system. Moreover, county, hundred, and seignorial courts continued to treat very considerable amounts of business. For some very significant issues they served only as a preliminary to hearings in royal courts, for some others they were subjected to greater royal scrutiny, but for much litigation they remained the sole fora. Nevertheless, for a substantial portion of the population, the king and his courts were increasingly their focus in judicial matters. They might await the eyre with anticipation or fear. They sought writs from the courts and the chancery. In 1213

the bishop of Ely felt it worthwhile to appoint an attorney to demand for his courts cases that arose in the king's. And many secured settlements or transfers even of small portions of land by final concord in the king's court. The king, more than ever, was a practical as well as the ideal source of justice; he took the consequent profit, but also had to face the blame if practice failed to match ideal.

*°° Note, however, the continuing element of flexibility suggested by e.g. Lawsuits, no. 569. From Richard I's reign note Lawsuits, nos 651, 658, for settlements made successively in different types of court. *°" CRR, vii. 5; see also above, 558 n. 168, on the earl of Leicester.

23

Procedure in Land Cases Ma oflaw, procedure dominate the first great treatise of the common the Tractatus de legibus et consuetudinibus regni Anglie, commonly known as Glanvill. When taken together with the early royal plea rolls, Glanvill allows a much fuller account than is possible for earlier periods; therefore this and subsequent chapters do not seek to provide a full chronological survey of change between 1154 and 1216. Rather, they concentrate on the situation in the period from Glanvill to Magna Carta, whilst noting some earlier developments.’ However, to set the scene, let us examine a famous early case that, if not typical, is illustrative of the concerns that confronted litigants and justices at the time of the Angevin reforms.

1 RICHARD OF ANSTEY’S ACCOUNT Tales of judicial entanglement, epitomised in the nineteenth century by Dickens’ Bleak House and in the twentieth by Kafka's The Trial, have a distant twelfth-century

relative in Richard of Ansteys account of his expenses incurred in his inheritance claim against his cousin Mabel.” We have already examined the substance of the dispute, in the context of marriage law.’ The unique survival of Richard’s account provides a detailed chronology and an itemisation of expenditure that totalled £344 7s. 4d. It begins in autumn 1158, with Richard having to send one of his men to Normandy, in order to obtain the king’s writ, whereby he placed his opponents in plea. As this writ had been issued abroad, Richard then had to get another version from the queen, Eleanor of Aquitaine, who was in England.* He * See also above, ch. 21, for an outline chronology of Angevin reform. * Lawsuits, no. 408E. See P. M., Barnes, “The Anstey case’, in A Medieval Miscellany for Doris Mary

Stenton, ed. P. M. Barnes and C. F. Slade (NS 36 PRS, 1962), 1-24; P. A. Brand, ‘New light on the Anstey case’ (1983) 15 Essex Archaeology and History 68-83; ODNB ‘Anstey, Richard of’. Richard’s memorandum details how loans from Jews helped to finance his suit. > See above, 442-3. * See above, 500, on Eleanor acting as regent.

23 PROCEDURE IN LAND CASES 575 also found Ralph Brito, who was about to go to France, and asked him to obtain from the king a writ addressed to the archbishop of Canterbury; Richard says that he knew that the case, turning as it did on a disputed marriage, would pass to the archbishops court. Next Richard took the queen's writ to Richard de Lucy, the justiciar, who gave him a day for pleading. Only then could Richard, with his friends and helpers, open his pleading, at the end of November 1158. The justiciar set a day

for further pleading, but Ralph Brito returned with the king's writ, and the case passed to the archbishops court at the start of 1159. Richard sought to assemble evidence, oral and written, as well as legal expertise, including the Italian Master Peter of Meleti.’ His opponents, he tells us, strove to delay proceedings, seeking a

writ from Henry II exempting them from pleading until the king returned from abroad; to counter this Richard had to obtain a writ through his brother whose journey to the king involved expenditure of 3m. His opponents also employed the essoin, that is the excuse, that they were summoned to the king’s army on his expedition to Toulouse, requiring Richard to travel to the king in southern France in order to obtain a writ that the pleading proceed. He then sought the archbishop again and the case resumed, but on one occasion Richard had to essoin himself from an appearance because of illness; the essoiners’ journey cost Richard 10s.

Richard did appear on numerous court days, but in the autumn of 1160 he decided that he should appeal to Rome, which necessitated him crossing the Channel to obtain a royal writ; he spent £4 5s. on this journey, and lost a palfrey that he had bought for 16s. Richard then obtained an unsealed writ of appeal [breve appellationis] from the archbishop, and sent it to Peter of Meleti and another scholar of the learned laws, Master Ambrose, to have it corrected. Next he took the writ back to Canterbury to have it sealed, but was refused. Rather, he was given another unsealed writ, which he showed to a further legal expert, the bishop of Chichester, and then to Peter and Ambrose. At last the archbishop agreed to seal the writ.® Richard then gathered further evidence and dispatched his clerks to Rome. On 8 April 1161 the pope issued a ‘rescript’, outlining the case to the judges delegate to whom he entrusted it: Hilary, bishop of Chichester and

Laurence, abbot of Westminster. Richard duly took the letter to them’ A series of court days followed, together with considerable travel and expenditure. His opponents in turn appealed to the pope, and Richard had to send his clerks to the papal court, where they were for almost nine weeks before they could obtain

> For written evidence from Henry of Blois, bishop of Winchester, see Lawsuits, no. 408A. Richard’s memorandum records that he gave Peter of Meleti 10m. and a gold ring worth 4m. ° This letter appears to be Lawsuits, no. 408B, the complicated nature of which explains Richard’s consultations. ” Lawsuits, no. 408C.

576 PART III: ANGEVIN ENGLAND Richard’s sentence, and they spent 11m. Eventually they came back with the desired ‘judgment concerning adultery’, in three texts, one to the archbishop, one to Richard de Lucy, and one to Richard of Anstey himself.’ Richard had to take the documents to the justiciar, and await the return of the king from Normandy.

At last the justiciar, by the king’s order, gave Richard a day for pleading at London at the start of March 1163. The king’s business meant that matters were delayed still further. Richard sought further help, for example sending his brother to Ranulf de Glanville. Eventually the case came before the king at Woodstock in July 1163 and ‘at last, by the grace of God and of the king, and by judgment of his court, my uncle’s land was adjudged to me; and there I spent £7 1os.’

Richard's account illustrates many aspects of procedure already discussed. Litigants had actively to seek justice, through travel and expenditure of time and money. Different courts might co-operate, but their various demands could extend cases. Litigants required support, from friends and relatives, and—particularly

in ecclesiastical courts—from legal experts. Documentation was important, and scrutinised with care. Legal cases had to be made with skill, but favour also mattered. Hilary bishop of Chichester was both adviser to Richard and papal judge delegate. Meanwhile, the machinery of justice had to be greased. Richard notes that, amongst other gifts, ‘to Ralph the king’s physician I gave 362m; to the king 100m.; to the queen 1 gold mark: Richard’s case might have been a difficult and expensive one even had it arisen later; however, it helps to explain why royal provision of speedy and relatively cheap procedures would prove so popular with litigants in the remaining half century of our period. The present chapter concentrates on procedure in cases involving land and rights over some other immovables, such as mills and churches. Procedure in other types of dispute, for example those involving performance of services, debt, crimes, and status are left to other chapters.’ This arrangement stems in part from the greatly increased material. However, it also reflects contemporary development. Clearer procedural distinctions appear. Whereas an individual complaint or appeal regarding a wrong characterised most cases in earlier periods, presentment now was used in many criminal cases, whilst employment of writs came to characterise cases concerning free tenements.’® Glanvill, moreover, divides pleas into the Roman categories of civil and criminal.” It is with much of his first

° Lawsuits, no. 408D. The adultery was that of William and Adelicia. ” See below, chs 24, 26, 27, 28.

*° For qualification, see below, 578, on plaint in land cases, 745, on writs and personal wrongs. Note also, e.g. the occasional use of words such as appellum and appellans with reference to land cases; Lawsuits, no. 483; Glanvill, ii. 3, xiii. 38, ed. Hall, 24, 170, concerning respectively right and novel disseisin. "' For further discussion of Glanvill’s use of these categories, see below, 712.

23 PROCEDURE IN LAND CASES 577 category that the present chapter is concerned. The chapter also follows Glanvill in concentrating largely on the king's courts, although some parallels or contrasts with seignorial or local courts will be noted. In general procedures in these latter courts probably did not change radically, although some modifications arose in part from the new royal procedures.” The chapter also follows Glanvill in dealing first with cases involving ‘right,

second with cases involving only ‘seisins.3 Within these two categories are distinguished cases started by different types of writ. This arrangement resembles what were later known as the ‘forms of action and may not entirely reflect how litigants thought about their cases. Rather, those bringing a case would consider

first their desired outcome and second how they were to achieve that aim, the latter consideration involving assessment of the proof that they could offer. If the action did not involve a writ, the court would think about the nature of the claim and the proof offered or required. However, some writs specified the form of proof, and this must have encouraged courts to think in terms of certain types of action. Likewise, those issuing the writs generally reformulated the litigant’s complaint into a set form of words; the production of standardised, replicable forms was a key characteristic of the new Angevin measures.” Litigants or their legally

minded advisors too must have started to think in terms of such forms, having already taken into account the proof that they wished to offer. Among the circle of royal justices the author Glanvill thought in terms of writs and consequent actions,

because this was the basis upon which he arranged his text, most obviously in Book XIII concerning pleas ‘over seisins. On occasion the justices and the court would say that the writ brought was inappropriate for the case, forcing the litigant to seek the correct one. Nevertheless, at the time of Glanvill, and even at the end of our period, the rigidity of the system was limited.’* Historians have tended to write in terms of the ‘action of right’ and four ‘possessory’ or ‘petty assizes. In Glanvill, various writs deal with cases of right, and in Book XIII there are writs dealing with a greater variety of situations concerning seisin than is sometimes assumed.” The

'* See below, 624-6; also above, 569-73, on transfer of cases. ** Glanvill, xiii, 1, ed. Hall, 148. See below, 670-2, for his use of the Roman categories ‘property’ and ‘possession’, and their relationship to right and seisin. “* Note Milsom’s critique of the emphasis that Maitland and others have placed on the ‘forms of action, thereby prioritising choice of writ over form of proof; see Milsom, Legal Framework, 2, 66-7, 99, 128.

*° See above, 535.

*° See also below, 626, on the king’s ability to vary procedure, often in return for payment, and particularly in relation to tenant-in-chief. See also above, ch. 1, on the extra-judicial pursuit of disputes. '” See below, 582-4, 604.

578 PART III: ANGEVIN ENGLAND plea rolls show further procedures, only some of which developed into set writs and actions.* Other cases, notably some concerning final concords, may have been started without a writ, by ‘plaint’, that is oral complaint.’ Procedure had not entirely hardened into a finite number of writs and procedures.

2 LITIGANTS Tenure, more than status, determined whether an adult man could successfully bring a land claim in the king’s court.”° Certainly a man’s villein status might determine the outcome of a land case, but this seems to be because status was taken as an indication of the nature of tenure. A free man just as much asa villein would lose if he wrongfully claimed that the disputed land was a free tenement when in fact it was held for a term of years, at the lord’s will, or in villeinage. Both unfree and unfree, meanwhile, could bring claims about villeinage lands in manorial courts. As for minors, Glanvill expressed a general preference that the outcome of pleas involving them should not be immutable.” This might produce a preference for cases, especially those involving right, to be postponed until the minor came of age. According to Glanvill, a minor need not answer until he was of age, unless he himself had acquired seisin of the tenement and held it solely by his own right.” What of a minor bringing an action of right? In such a case in 1200 tenants asked whether they need answer because the person by whom they were impleaded was under age. They obtained a writ from the king to Geoffrey fitzPeter, the justiciar,

stopping the demandant from impleading them ‘until he was of such age as he could and ought to plead according to the custom of England’. However, the boy's guardian, Hubert Walter, archbishop of Canterbury, said that it was not against the custom of the realm for the plea to proceed, and the case went forward.”4

*® See e.g. Flower, Introduction, 186-9, concerning lands, 201 concerning churches. *? See Select Cases of Procedure without Writ, esp. ci-cv, cxxxvi-cxli; the editors admit that such

cases need not have been numerous compared with those brought by writ, particularly for cases before the eyre (see also p. xliv). *® For status, see also below, 774, on Jews and land claims; religion seems to have affected proof

rather than the ability to bring a claim. Probably precluded from bringing claims anywhere were lepers and those not of sound mind; Pollock and Maitland, i. 480-1. *" See below, ch 28. *? Glanvill, xiii. 15, ed. Hall, 159. °° Glanvill, xiii. 13, ed. Hall, 157; Pollock and Maitland, ii. 439, 442-3.

** CRR, i. 279; for a subsequent hearing, including an argument relating to the relevance of the demandant’s age and what his representative presented as the issue of the case (the form of his opponent’s entry to the land), see i. 378. CRR, iii. 245, seems to be an instance where the justices order a brief

23 PROCEDURE IN LAND CASES 579 Minors could bring any of the assizes concerning seisins.”** Those who were of age could not essoin when faced with an assize brought by a minor.*® A minor

had to answer in novel disseisin,” but Glanvill specifies that in mort d’ancestor a minor could obtain postponement until he was of age, so long as his father or other ancestor had been seised of the disputed tenement on the day he died. If the minor had himself acquired seisin of the tenement the recognition could proceed.”* Glanvill also states that the sole case in which a guardian had to answer on behalf of a minor was when a wardship had fallen into that minor’s hands and the ward then came of age and brought mort d’ancestor.” Women brought and answered cases concerning their own lands, by themselves if unmarried or widowed, in conjunction with their husbands if married.° If husband and wife brought a case together and one failed to pursue it, the case might be lost or the husband might make a payment to continue despite his wife’s default3’ A man faced with a writ naming only him but concerning his wife’s lands could have it quashed, or could vouch her to warranty.”

postponement until a possible minor was of age; for a subsequent hearing, see iv. 86. Cf. decisions in the minority of Henry III, that tenants in socage had to reply when minors; CRR, viii. 226, 229, 337. *° Glanvill, xiii. 4-5, 12 (mort d’ancestor), ed. Hall, 151, 154. For a minor bringing mort d’ancestor, see e.g. CRR, iv. 276. See CRR, iv. 254, for darrein presentment brought by a minor being postponed

because the defendant, the prior of Llanthony, produced charters of the claimant’s ancestors to which he could not and should not answer until of age; cf. iii. 218, 262, for darrein presentment brought by a minor going ahead. For guardians acting on their wards’ behalf in matters where age was not used as an exception against a minor, see Glanvill, vii. 9, ed. Hall, 83; cf. Pollock and Maitland, ii. 440-1. *° Glanvill, xiii. 12, ed. Hall, 156; also e.g. CRR, ii. 128, 293. *” Glanvill, xiii. 38, ed. Hall, 169; Early Registers of Writs, Hib. 41, states that the minor is to answer

concerning dower, novel disseisin, and everything that is not his free tenement. *® Glanvill, xiii. 13, ed. Hall, 156-7. Even if the minor’s father had held, proceedings could go ahead as to whether he had held as of fee or of wardship; Glanvill, xiii. 13-15, ed. Hall, 157-8; if it was found that the father held only as of wardship, the minor should lose seisin. For a minor as defendant obtaining postponement in an assize of mort d’ancestor, see CRR, iii. 34. For a writ ordering postponement of the plea until the impleaded minor is ‘of such an age that he can and ought to plead according to the custom of the realm’, see Early Registers of Writs, Hib. 41. See Glanvill, xiii. 15-17, ed. Hall, 159-60, on procedure for determining whether a litigant was of age. *° Glanvill, vii. 9, xiii. 15, ed. Hall, 83, 159.

°° See e.g. Lawsuits, nos 547 (woman and son acting together), 550, 603, 633; PKJ, iv. nos 4065-9;

Pollock and Maitland, ii. 408-9. Note, though, that in his lifetime it was the husband alone who sued and was sued concerning his wife’s future dower, even nominated dower; Pollock and Maitland, ii. 425. *" See PKJ, iii. no. 819. For King John protecting a woman against collusive default by her husband, see below, 786. ** Vouching wife to warranty: e.g. Lincs., no. 493. For failure of a writ to mention husband and wife, see e.g. also CRR, vi. 21-2; however, note also the flexibility shown in CRR, vii. 186. See also Pollock and Maitland, ii. 408.

580 PART III: ANGEVIN ENGLAND 3 CASES CONCERNING RIGHT Early in his first book Glanvill listed the following pleas that had ‘arisen over the property of the thing at stake [super proprietate rei], to be dealt with in the king's court: Plea concerning baronies; plea concerning advowsons of churches; question of status; plea concerning dowers of which women themselves have so far received nothing; complaint concerning a fine made in the lord king’s court, which has not been observed; concerning homages that should be done and reliefs that should be received; concerning purprestures; plea concerning the debts of laymen.

Our main focus in what follows is Glanvill’s ‘plea concerning baronies, the subject of his Book I, and his ‘pleas concerning justice [recto] concerning free tenements through writ of the lord king, where the courts of lords are proved to have defaulted concerning justice, the subject of his Book XII.

Types of claim

The circumstances in which land disputes arose probably did not differ greatly from the Anglo-Norman period. Inheritance, especially in difficult situations such as remarriage, and other family arrangements, such as dower and maritagium, may have caused particular problems.‘ Political instability, notably the fall-out from Stephen's reign, might be of long-standing effect.

Possibly both an increase in land transactions, linked to a growth in the land-market, and the very effects of the Angevin reforms may have also stimulated litigation,» The plea rolls and other evidence present most actions concerning right to land as being between rival claimants with no stated tenurial relationship.* In a smaller number of cases a vertical tenurial connection is stated, with the demandant either claiming to hold of the tenant, or claiming to hold in demesne

** Glanvill, i. 3-4, ed. Hall, 4. Note also actions concerning villeins, and cases concerning excessive services or services not due in respect of a free tenement; Glanvill, i. 4, xii. 9, ed. Hall, 4, 140-1. On cases involving services, see also below, 636-41. For dower litigation, see below, 799-804. For advowsons, see Glanvill, iv, ed. Hall, 43-53, and for case material see Flower, Introduction, 199211. Glanvill, iv. 3,5, 6, ed. Hall, 45-7, emphasises the parallels between actions concerning advowsons and those concerning land. °** See e.g. CRR, i. 75; v. 241-2.

°° Note Milsom, Legal Framework, 185-6. °° See e.g. CRR, i. 1-14. Note also S. F. C. Milsom, “Maitland and the grand assize’ (1997) 7 HSJ 151-77, esp. at 153 (for figures from the surviving plea rolls to the end of 1203), 160.

23 PROCEDURE IN LAND CASES 581 and thereby rejecting the tenant’s claim to hold of him. We have a list of those who placed themselves on the grand assize, recording cases in forms such as X. the tenant places himself on the grand assize against Y. the demandant concerning Z. virgates of land in place N., and seeks which of them has the greater right concerning this, whether Y. in his demesne or whether X. from him

or X. the tenant places herself on the grand assize against Y. the demandant concerning Z. virgates of land in place N., and seeks a recognition concerning this, whether Y. ought to hold from X. or she herself in demesne.”

Further, plea roll cases that do not mention such a vertical relationship may hide a tenurial link. Thus the record of a case from Richard’s reign asks simply which

of two parties has the greater right in certain land, but also mentions that the demandant through another writ was seeking 4s. of service from the tenants for that land3* Lordship relationships clearly remained very important in landholding and in disputes.”

Bringing the claim The previous chapter considered Glanvill’s statement that ‘according to the custom

of the realm no-one is bound to answer in the court of his lord concerning any free tenement of his without the order [precepto, that is, writ] of the lord king or his chief justice.‘° In this form the requirement for a writ applies only to the lord's court. The formulation may simply reflect the context in which Glanvill mentions the rule, or may signify that cases could be brought without writ in the king’s court, if the king was willing.* The demandant had to go in person or send an agent to obtain the writ to start the case.” Later, requests would routinely be made at the chancery, and clearly

°” CRR, i. 1; the sex of the tenant is not significant. See also Milsom, ‘Grand assize’, 152-3. °° CRR, i. 10.

°° Note also below, ch. 24, which discusses possible diminution in seignorial control of land. *° See above, 557.

“ See above, 578, on plaints.

* From the thirteenth century ‘original writs’ and ‘judicial writs’ are often distinguished. The former ‘originate litigation in royal or other courts, or evoke it to royal courts from other courts... These original writs are made out in the chancery and are generally attested me ipso lie. by the king alone]’. The latter ‘are issued by a court in the course of litigation, before or after judgment. They...are written by the clerks of the court, and are attested by a judge of the court’ quotations from Early Registers of Writs, lxiv—-lxv. The latter type of writ might concern the securing of appearance in court, matters arising from pleadings or procedure after the parties had appeared,

582 PART III: ANGEVIN ENGLAND many writs were issued there in our period. However, writs were also being issued by the justiciar, or in the presence of justices of the Bench, sometimes on instructions of the justiciar. The concentration on the chancery may have developed for various reasons, including the increasingly complete separation of chancery from Exchequer, John’s appointment of the former justiciar Hubert Walter as chancellor, and the justiciar’s diminished role with the loss of the Continental possessions.” Many writs could be classified as ‘of course [de cursu]’; these were in set form,

varying only in the details of the case, and were issued ‘as a matter of course’, probably for a small payment to the scribe. Other writs, sometimes referred to as ‘writs of grace’, were also in quite standard form but used for some larger-scale cases, involving more land, services, or debt, or for bringing the case directly to the king rather than the next eyre. These might incur a higher charge, payable to the king. Finally some writs framed for specific cases may have been considered distinct from ‘writs of grace’ and have been still more expensive.** The wording of writs had to be exact, as any flaw might lead to the claim failing. If the name of a litigant or of the disputed land was incorrect or if the writ failed to name the wife

on whose right a man based his claim, the party whose writ contained the error could proceed no further until he had obtained a better writ.* Various writs might lead to hearings of claims of right to land. There was the writ de recto addressed to the lord: I command you to provide full justice [plenum rectum teneas] to N. concerning ten carucates of land in Middleton, which he claims to hold of you by the service of 100s.

or the announcement or enforcement of a judgment or settlement. The distinction in our period, and particularly before the early 1200s, is less clearly definable; see Select Cases of Procedure without Writ, cxlvi-clii, and Early Registers of Writs, lxv-lxxx. This lack of clarity is largely with respect to the issuing body, although it also reflects the difficulty of telling whether a writ was issued at the start

of litigation. Nevertheless, it remains true that certain writs could be distinguished in that they were used to originate litigation. #5 See above, 502. See also V. H. Galbraith, Studies in the Public Records (London, 1948), 69-70, on the

separation of the chancery from the Exchequer. Note that the writs ‘of the lord chancellor mentioned in the list of ‘those who placed themselves on the grand assize’ were from William de Longchamp at a time he was both chancellor and justiciar; CRR, i. 5-6, Select Cases of Procedure without Writ, cxlviii. Glanvill wrote in terms of demandants in the grand assize coming to the curia to purchase a writ, and the precise issuer may not have been of great consequence to him; see Glanvill, ii. 10, ed. Hall, 30; also Early Registers of Writs, lxv-lxxx; Select Cases of Procedure without Writ, cxlvii-cxlviii. “* See Brevia placitata, ed. G. J. Turner and T. F. T. Plucknett (66 Selden Soc., 1951), xlviii-liii; also Stenton, English Justice, 30. Note e.g. PKJ, i. no. 2729, essoin ‘concerning a plea of a writ that is not de cursu’; also above, 525, on the writ of entry sur disseisin; on debt, note below, 700.

* See e.g. CRR, v. 144; vi. 21-2. Note also the various cases collected by Flower, Introduction, 340-6, although in some of these greater flexibility was shown. The issuing body appears to have seen itself as responding to suitors’ requests, rather than ensuring that they received the appropriate writ for their case; see also below, 617-18.

23 PROCEDURE IN LAND CASES 583 a year for all service... which Robert son of William is withholding from him. And if you do not do it the sheriff of Devonshire shall, that I may hear no further complaint for default of right concerning this.“

The relatively simple formulation and the similarities to earlier writs may indicate

that the writ de recto was one of the first royal orders to take on standardised form, perhaps in the early years of Henry II. It ensured the hearing of cases based on right to land under Henry I, many of which may have arisen from events in Stephen’ reign, although by the time of Glanvill pleading could be based on right after the first coronation of Henry II.” According to Glanvill, pleas arising from such writs ‘are accustomed to be conducted in the courts of lords, or of those who stand in their place, in accordance with the reasonable customs of those courts, which cannot easily be written down because of their number and variety.** From that court they might pass by the process of tolt to the county, and thence by pone to the king’s court, as described in the previous chapter.*?

Other circumstances might lead to the demandant obtaining a writ that brought the case directly to the king’s court. If he was claiming to hold of a lord, and had a charter to support his claim, he might obtain a writ ordering the lord that he warrant the charter; if the lord did not do so he was to answer before the king’s justices. Glanvill does not include such a writ, but it is clear that the procedure was being used by the mid-1190s.°° The effect was to bring to the king’s court a case that may often have been under way in a lord’s court or the county, but in which the demandant was claiming that the lord was failing to do justice in not obeying the terms of the charter. If a lord persistently refused to receive the homage and reasonable relief of an heir who was in possession of the land, the heir could complain to the king or his justices, and receive a writ de homagio capiendo [concerning taking homage’ ] addressed to the sheriff and commanding that the lord ‘justly and without delay

receive the homage and reasonable relief’ of the demandant. Failure to do so *° Glanvill, xii. 3, ed. Hall, 137. *” See also above, 511, for references from early in Henry I1’s reign to use of a breve de recto and to relevant litigation; below, 592, on Glanvill. *® Glanvill, xii. 6, ed. Hall, 139. For a writ of right leading to a duel in the lord’s court, see e.g. RCR,

i. 64 (the perhaps rather exceptional court of William de Longchamp, bishop of Ely). For proceedings in a lord’s court arising from a writ of right, see also Memoranda Roll for the Tenth Year of the Reign of John, ed. R. A. Brown (NS 31 PRS, 1957), 87-8.

* See above, 571. °° For the writ, see Early Registers of Writs, Hib. 24. See S. J. Bailey, “Warranties of land in the reign of Richard P (1945-7) 9 CL] 192-209, at 207-9, Milsom, Legal Framework, esp. 63-4, Hyams, “Warranty, 483-90. Note also Lawsuits, no. 654; Three Rolls, 124; EYC, xi. no. 232. For royal instructions earlier in Henry IIs reign ordering that a donor warrant a beneficiary, and laying down that the king’s justices or the sheriff should do so if the addressee did not obey, see Royal Writs, nos 127, 128.

584 PART III: ANGEVIN ENGLAND led to the sheriff summoning the lord to answer before the king or his justices. Occasionally we see a case that combines the issues of homage and of warranty of charter.” The writ concerning homage begins, after the address clause, with the word Precipe,® and it is with another writ with similar phraseology that Glanvill opened his discussion of procedure: “The king to the sheriff, greeting. Command N. that

he justly and without delay render to R. one hide of land in the specified vill, concerning which that R. complains that the aforesaid N. deforces him. Again, failure to do so led to the sheriff summoning the lord to answer before the king or his justices. Following Glanvill’s lead, we will now use the procedure associated with this writ as the basis for tracing procedure in an action concerning right.

Summons of tenant This writ Precipe opens as an order that land be restored, and on occasion the simple presentation of a writ by the demandant may have been enough to get his opponent to concede or compromise.*> However, the earliest manuscripts of Glanvill precede the writ with the heading “The writ concerning the first summons to be made, indicating that it was in effect used as a summons to the king’s court.*° The writ insists that the summons be made ‘by good summoners’, >" See Glanvill, ix. 5-6, ed. Hall, 110; the heir who is not in seisin should, according to the same section of Glanvill, use mort d’ancestor. For cases, see e.g. RCR, ii. 29-30; CRR, i. 86; v. 197; v. 218. Such cases could go to the grand assize; below, 600. Note also the use in plea roll entries of the phrase ‘concerning the free tenement that he holds and claims to hold of him’; e.g. CRR, ii. 9-10. In this case, the demandant failed because he did not hold the land. The plea roll entry closed by recording that the failed demandant owed the king payment to have mort d’ancestor concerning the land; presumably he should have used mort d’ancestor from the start. See above, 580, on Glanvill assigning to the king’s court cases concerning homages and reliefs. See further Milsom, Legal Framework, 129-30, 172-4; Hyams, ‘Warranty’, 487-9. °? Note CRR, iii. 203-4, 302. °° For the nine writs in Glanvill opening in this fashion, see Glanvill, ed. Hall, 179-80. >* Glanvill, i. 6, ed. Hall, 5; see also above, 516, on the development of the returnable writ. The writ corresponds to the entry ‘plea concerning baronies’ in his list of chapters, Glanvill, i. 3, ed. Hall, 4; on the meaning of that phrase, see also below, 633. Glanvill’s Book III makes it clear that the author did not consider the writ only appropriate for tenancies-in-chief; see also Holt, Magna Carta, 141-2 and n. 76.

°° See e.g. PKJ, i. 7, where Lady Stenton suggested that the writ printed as PKJ, i. no. 3543 ‘had secured her dower for the lady and that she never had to follow it up’. Note also e.g. PR6J, xii-xix, Xxiv-xxix, xxxii, for Pipe Roll renders that cannot be matched with plea roll entries; concession or compromise may be the explanation in at least some instances. °° To distinguish it from other writs Precipe this writ is sometimes specifically called Precipe quod reddat because of its opening: the sheriff was to ‘command N. that he justly and without delay render to R. [Precipe N. quod juste et sine dilatione reddat R.]’ that of which R. was complaining that N. was deforcing him.

23 PROCEDURE IN LAND CASES 585 because problems could arise at this point or later over their actions, for example

with denial that the summons had ever been made.” It is unclear how far the summons had to be in a set form of words. In some types of case, for example those concerning non-observation of a fine made in the king’s court, the tenant or defendant had to provide sureties that he would appear.*

Answering the summons and judgment by default

Ideally tenant, demandant, summoners, and sheriff should then appear before the justices on the day set.° If the tenant failed to attend on that day, the demandant was to wait another three days in court. If the tenant still did not appear, and the summoners stated and offered to prove that he had been summoned, the court directed that a further writ of summons be issued. This would summon the tenant to appear on a day at least a fortnight later, although normally the date was considerably further away, except in cases heard by the eyre. He was to answer both concerning the original plea and his failure to obey the first summons. According to Glanvill, three summonses were to be sent in all, and if the summoned party failed to attend or send someone to answer the

third, the land was to be taken into the king’s hand; there was no preceding process of distraint by chattels. The tenant then had a fortnight to appear. If he failed to do so, seisin was to be adjudged to the demandant, and the sheriff was instructed by writ to seise him. The defaulting tenant could not reopen the issue ‘except over property through a writ de recto.°°

If the tenant did appear within the fortnight and wished to replevy the tenement, that is redeem it on sureties, he was ordered to come on a specified day, when he would have justice done to him. On that day, he could recover seisin under surety. He also recovered seisin if he could deny all the summonses, and any essoins, by waging his law, that is, by swearing an oath ‘twelve-handed’ (that

is, with eleven oath-helpers) in respect of each day on which he had allegedly been summoned.”

°” See e.g. RCR, i. 127, for problems arising over summons and summoners. °® Glanvill, i. 31, ed. Hall, 19; note also Surrey, i. 27-8, 49. °° See Glanvill, i. 30, ed. Hall, 17.

°° Glanvill, i. 7, 16-17, x. 3, ed. Hall, 5-6, 10-11, 117. Brand, Legal Profession, 35, cites cases suggesting a reduction by 1194 to one summons before seizure of land; such a change would fit the reforms’ general aim of providing swifter justice. °* Glanvill, i. 16, ed. Hall, 10. For further possible situations involving delay, see Glanvill, i. 21, ed. Hall, 12-13. For another use of oath-helpers, see below, 643.

586 PART III: ANGEVIN ENGLAND Failure to respond to summons might also lead to default judgments against

the tenant at later stages in the dispute. Default judgment might be applied against demandants too, perhaps leaving them no opportunity to reopen the case. Glanvill also specified that “sometimes both parties are absent, and then it is in the discretion [voluntate] of the lord king or his justices if he wishes to prosecute them both for contempt of court or false claim.

Attorneys and representation Appointing an attorney saved a litigant repeated travel to court, and might also supply legal expertise. Glanvill devotes his Book XI to attorneys, those appointed by a litigant with power to win or lose a case. Appointment of a man as bailiff or steward, with power to dispose of lands or goods, did not suffice to make him an attorney in a royal court. Rather, appointment must be done by the litigant, present in court, and generally before the king’s justices sitting on the bench. The opponent need not be present. More than one attorney might be appointed, in case one was unable to attend. In the king’s court a litigant might also appoint an attorney for a plea in another court, and Glanvill gives a writ for such appointments. The litigant could remove the attorney at any stage of the case, and either conduct his own plea or put another attorney in place.®° Glanvill provides one exception to his insistence on appointment in court. A tenant or warrantor who was ill might appoint an attorney out of court, either with letters of authority or even without, provided in the latter case the attorney was known to have a close connection to the litigant. It is possible that the more formal process of appointment in the presence of the court had developed at the start of the 1180s, an older, less formal process surviving in instances when the litigant was ill and could not come to court.”

°? See also below, 597, on default and warranty. °° See below, 590, for Glanvill, i. 32, ed. Hall, 20-1; PKJ, iii. no. 81; CRR, i. 382. Note also CRR,

i. 99-100, 111, where it was specified that the defaulters were to have such recovery as they ought to have; those defaulting were bailiffs who had been seeking homage and relief but, it seems, should only have been seeking services. °* Glanvill, i. 33, ed. Hall, 21; the king may have suspected collusive litigation or settlement without licence.

°° Glanvill, ed. Hall, 132-6; the Book has a somewhat unfinished or unpolished feel compared with some others in his treatise. Glanvill uses the word responsalis for attorneys. Early plea rolls use the phrase positus loco suo, with attornatus taking over from 1200; see Brand, Legal Profession, 46. °° Glanvill, xi. 1-2, ed. Hall, 132-4; see also e.g. PKJ, iv. nos 4482, 4492-4. °” Glanvill, i. 12, iii. 4, xi. 5, ed. Hall, 8, 40, 135. Glanvill does not tell us whether the powers of such an appointee differ from those of an attorney appointed in court; see Glanvill, ed. Hall, 192, Brand, Legal Profession, 175-6, and note also Brand, Legal Profession, 44-6.

23 PROCEDURE IN LAND CASES 587 Who acted as attorneys? Glanvill wrote that ‘a father can put his son in his place and vice versa, one stranger may put another, and a wife may put her husband. ®

Records of appointment and of pleas show that many attorneys had no stated connection to the litigant, but that amongst those with an explicit connection were kin by blood or marriage, the subordinate of the head of a religious house, or one or two amongst a group of litigants.°° Women most commonly looked to their husbands as attorneys, but also—particularly if widowed—might appoint their brother or sister, son or daughter.” The common pattern was occasionally reversed, as in a mort dancestor case in 1203 when the tenant made his wife and co-litigant his attorney.”

Occasionally a royal justice was used,” or a man with a learned legal training,”? more often a man whose recurrence in the records suggests his specialisation as an attorney. In John’s reign appear attorneys who served a single person in several cases, or who served several litigants.“ These latter are often found in other legal functions, for example acting as sureties for essoiners of baronial litigants. Their activities in some ways resemble those of later professional attorneys. Such men tended to be either office-holders in the courts of the Exchequer or to be lesser men who had no significant property or position in royal administration. In the early thirteenth century begins clear evidence of representatives who were not formally empowered attorneys, but spoke in court on behalf of litigants.> How much earlier this practice had existed is unclear. We hear of such pleaders in cases where the litigant has disavowed them, as they were allowed to do because the pleader had not formally taken the litigant’s place in the case. Amongst those acting as pleaders was John Bucuinte, a man of some property who also appears as an attorney, legal counsellor, and serjeant. His opponents

may have considered it appropriate that his surname appears to mean ‘oily

°° Glanvill, xi.3, ed. Hall, 134-5. Note the unresolved problem concerning an attorned husband’s actions relating to his wife's maritagium or dower. °° See e.g. PK], iv. nos 4464-4564, a list of attorneys; Lawsuits, nos 546, 561, 590, 601, 602. An

unusual case was when the men of Thanet appointed thirty of their number to pursue their case against the abbot of St Augustine’s, Canterbury, late in the reign of Richard I; CRR, vii. 341-2, 343, Lawsuits, no. 649. 7° PKY, iv. nos 4471-2, 4484, 4491, 4501, 4509, 4512, 4522, 4525, 4527, 4543-4, 4550, 4555. A woman

might appoint her husband as her attorney in a case in which they were involved jointly; e.g. PK/, iv. no. 4067. ™ CRR, ii. 218. See also e.g. CRR, i. 163.

” Turner, Judiciary, 282-3. > See e.g. PK], iii. xxxvii-xxxviii, on Master Matthew of Bigstrup. ” For such men, see Brand, Legal Profession, 50-4. ” For this paragraph, see Brand, Legal Profession, 46-8. Such men would later be called serjeants.

588 PART III: ANGEVIN ENGLAND mouth’, whereas his supporters held him ‘a wise man in worldly things’. He is as close as we get to a professional lawyer in the secular courts of our period.”®

Essoins The summoned party might also respond by sending an essoin, an excuse, for non-attendance.” Essoins were very prominent in litigation and in the records of litigation; the treatment of them here, as in Glanvill, must be extensive. Their availability reflects the desire to have both parties appear in court, but their prevalence made litigation slow and they were open to abuse by those who would profit from delay, particularly those who were in possession of the disputed land or right.

Although there was royal legislation affecting essoins in local courts, records of pleas contain references to local customs concerning essoins, for example in Oxfordshire’”* Glanvill’s description, however, is limited to the king’s court. Glanvill, in his characteristic dilemmatic fashion, specifies that some essoins arise from illness, some for other reasons. Illness he divides between instances on the way to court (de infirmitate veniendi in Glanvill, commonly de malo veniendi in the plea rolls) and those preventing the sufferer from even setting out to court (de infirmitate de reseantisa in Glanvill, commonly de malo lecti in the plea rolls)° He also mentions essoins for being overseas, for floods, for being on royal service, for being on pilgrimage, and for being ill after arriving at the place where the plea was to be heard. The essoin of being in the king’s service led to indefinite postponement, until it was established that the party had returned from such service. If the party had voluntarily undertaken royal service after being summoned to court, he was assigned a delay of at least forty days if he had gone overseas. If he had not gone overseas, the delay was at the will and pleasure of the justices, according to what they saw as expedient for the king, so long as ‘lawful procedure [ordo juris]’ was observed.*° Faced with an essoin de malo veniendi in response to the initial summons, the demandant could insist that the essoiner either provide lawful proof of the essoin,

or find surety or pledge his faith that he would have the summoned party on the ’° See Brand, Legal Profession, 53-4; note also CRR, iii. 244 (John advising a party to put herself on ajury). ’” Onessoins and procedure for essoining, see esp. PKJ, i. 150-69; also Surrey, i. 36-8. ”® See CRR, ii. 260, 296, the custom of Oxfordshire being that two lawful men view essoins; note also e.g. PKJ, i. no. 2362, on Cheshire. On legislation, see above, 517-18. ” Note that the two could be used successively; Glanvill, i. 20, ed. Hall, 12; also e.g. CRR, v. 224-5; PKJ, 1.157-8. °° Glanvill, i. 25-9, ed. Hall, 14-17; see also Lawsuits, no. 641 (p. 683) on the essoin for being overseas. Note also women essoining for sickness relating to childbirth; e.g. PKJ, iv. nos 3144, 3720, 3889. Cf. Dialogus, ii. 4, ed. Amt, 122-6, on the sheriff’s essoins for absence from the Exchequer.

23 PROCEDURE IN LAND CASES 589 set day as his warrant concerning that essoin.™ Three essoins of this sort were available according to Glanvill, although it appears that by the end of the century only one was allowed before the party must appear.” Going back to Glanvill’s account, if the summoned party again essoined on the third day, the court was to direct him to appear on another set day, either in person or through an attorney. If it was the tenant who finally attended he had to prove each essoin by his personal oath, and then answer concerning the plea on the same day. If he failed to attend in person or by attorney, the tenement was to be taken into the king’s hand, by a writ sent by the court to the sheriff in whose county that tenement was. The writ also specified that the tenant should again be summoned before the king's justices to hear their judgment in the matter. Another writ ordered the sheriff to seize and keep in custody the false essoiner, and yet another writ summoned the essoiners surety to answer before the king or his justices.® As for essoins de malo lecti, Glanvill states that anyone who wishes ‘can do this on three successive occasions, so long as on the third day before each set day an essoiner presents his essoin in a proper place and in the presence of a suitable person ..*4 If he did not come on the third summons, a writ was sent to the sheriff,

ordering him to send four lawful knights from his county to ascertain whether the illness was bed-sickness [languor] or not. If it was bed-sickness, they were to set a date, a year and a day from when they viewed him, for the sick man ora competent representative to be before the king or his justices. Plea rolls indicate that he was usually instructed to appear at the Tower of London, where the constable of the Tower would give him a day before the king or justices.* If it was not bed-sickness, they should set a day for him or a competent representative to come and answer the case. Thus bed-sickness allowed a distinctly longer delay in order to allow recovery.*° The plea rolls reveal various further regulations related to essoining. Essoins de malo lecti were primarily for cases brought by writ of right.*” They were not allowed

°* Glanvill, i. 12, ed. Hall, 8; see also above, 517-18. The possibility of the demandant requiring such proof seems to have disappeared by the time of the first surviving plea rolls; Brand, Legal Profession, 35. ®? PKJ, i. 156-7.

°° Glanvill, i. 12-15, ed. Hall, 8-10. ** For a reduction by 1200 to only one essoin de malo lecti being permitted before knights were sent to visit, see Brand, Legal Profession, 35; a first essoin de malo veniendi was also allowed. °° See e.g. RCR, i. 28-9; CRR, vi. 356; PKJ, i. 161-3.

°° Glanvill, i. 18-19, ed. Hall, 11-12; on the requirement to be in bed and not travel, see e.g. CRR, iii. 265; iv. 273; vi. 261-2. See PKJ, iii. no. 2220, for a sick man recovering and obtaining permission to come to court. 87 PKJ, i. 165, and no. 2466. On cases where de malo lecti did not lie, see also Bracton, fos 349b-350b, ed. Thorne, iv. 104-7.

590 PART III: ANGEVIN ENGLAND in cases relating to fines made in the king’s court.** The same type of essoin might be rejected because the plea concerned dower,** and in some other cases an essoin was said not to lie because of the nature of the plea° However, essoins were again available at later stages in a dispute, for example when a tenant had requested a view of the disputed land or following the summoning of the grand assize.” The demandant too might find it necessary to provide essoins, although some plea roll entries show him being refused an essoin de malo lecti because he was

the demandant.” If he failed to appear or essoin himself, the court would rule that the tenant, provided he or his representative was present, should be sent away with the plea ended indefinitely. Glanvill records different opinions as to the fate of the demandant. Some said he was to lose his costs and expenses and the first writ, but not the case, and could start the plea again. Others said that he should completely lose the case against his adversary, and because of contempt of the court he was to be in the mercy of the lord king. Others still said that he would be in the mercy of the lord king henceforward, and that it was in the king’s pleasure whether and when he wished to admit or restore him to that plea. Essoins were also available to others, including warrantors,® recognitors,” and essoiners themselves. Use and regulation of essoins reveal an effort to balance a desire that both parties have their say in court with awareness of the delay and cost caused by tenants avoiding appearance.®* Essoining involved both some costs, as essoiners probably received expenses, and also risks, should the essoin be declared false. The lists of those requesting lengthy postponement by

essoin de malo lecti are much shorter than those for essoins de malo veniendi, and it has been pointed out that some of those who essoined de malo lecti died before they came to court; both aspects indicate that many essoins may have been genuine.” However, essoins could also be used tactically. Delay ensured that 88 See e.g. PKJ, i. nos 2473, 2482, 2816, iii. nos 1782, 2092, iv. nos 2677-8, 2799, 3136; however, note iv. no. 2753.

8° See PKJ, i. nos 2470, 3272; iii. no. 2223; however, note i. nos 2484, 2497. °° De malo lecti did not lie because the case concerned homage, e.g. PKJ, iii no. 1123, and note e.g. no. 1734; see also e.g. no. 1125. ** Glanvill, ii. 1,12, 16, ed. Hall, 22, 31-4. °? Glanvill, i. 32, ed. Hall, 20-1; PKJ, i. nos 2070, 2359; Bracton, fo. 349b, ed. Thorne, iv. 104.

°° When the tenant vouched another to warranty, both tenant and warrantor were allowed three essoins according to Glanvill, iii. 1, 4, ed. Hall, 38-40. °* See below, 602, 615. °° Glanvill, i. 22-3, ed. Hall, 13-14; note also e.g. PK/, ii. nos 726, 1078, 1101-2.

°° Note the provision for future recuperation, above, 586 n. 63; false essoin leading not to immediate loss of the case but to the disputed tenement being taken into the king’s hand, above, 589; Pollock and Maitland, ii. 592-3. °” PK, iii. xv, although this footnotes no examples.

23 PROCEDURE IN LAND CASES 591 tenants maintained enjoyment of the disputed land or rights, and no doubt they

also hoped that temporary enjoyment would become permanent, with their opponent running out of commitment to the case.* The view

When both parties appeared in court, in person or by attorney, the demandant put in his claim to the tenement that he was seeking. The tenant might at this point seek a view of the land and its appurtenances, to establish the precise disputed tenement. This would only be allowed if he held other lands in the relevant vill. He was given another day to attend court, and again, according to Glanvill, had the opportunity for three essoins. A writ was sent to the sheriff of the county where the tenement was, ordering him to send free and lawful men to view the claimed tenement, and to have four of those men before the king or his justices on a specified day, to attest to the view.”

The demandant’s claim If there was no view, or once the view had been taken, the demandant set out his plea and claim [loguelam suam et clamium] with a set form of words, almost certainly in French; for example, I claim against this N. the fee of half a knight and two carucates of land in a specified vill as my right and my inheritance, of which my father was seised in his demesne as of fee in the time of King Henry I (or since the first coronation of the lord king), and from which he took profits to the value of 5s. at least in corn and hay and other profits. And I am ready to prove this by this free man of mine, H., and if any evil befalls him then by this other man or by this third man, who saw and heard it.’”°

°° The prevalence of essoins by tenants also suggests tactical use. Lawsuits, no. 641 (pp 676-7), shows both genuine and tactical essoins. Note the test of patience apparent in e.g. Lawsuits, no. 646. °° Glanvill, ii. 1-2, ed. Hall, 22. Surviving writs, and that in the earliest Register, begin by ordering the sheriff to cause the tenant to have the view; see PK, i. nos 3478, 3480, 3484, Early Registers of Writs, Hib. 56. The tenant presumably would attend the view, although the Register contains no writ specifically summoning either tenant or demandant. For the presence of the demandant, or perhaps his representative, at the view, see Bracton, fo. 376b, ed. Thorne, iv. 180; Bracton there also indicates that at least sometimes the tenant would be present.

"°° Glanvill, ii. 3, ed. Hall, 22-3; see also iv. 6, ed. Hall, 46, for advowson, vi. 8, ed. Hall, 62, for dower. Glanvill, ii. 3, ed. Hall, 23, allows witness by the son of a man who ‘in his last minutes enjoined him, by the faith binding son to father, that if he ever heard of a suit concerning that land, he should offer to prove this, just as what he saw or heard’. On possible change from

592 PART III: ANGEVIN ENGLAND Claims unsupported by offer of proof, that is without offer of trial by battle, were

not to be made, and could lead to amercement.’ The claim was an expanded version of the writ that the demandant had brought, and should not differ in any detail from that writ; otherwise the case might be dismissed after the tenant had asked the court whether he need answer.’** Formality and complexity increased.’ Whereas Glanvill indicates that the demandant simply had to state that a specified relative had held the land in the time of Henry I or since the first coronation of Henry II, by the latter part of John’s reign he had to trace the descent of the right to the land from this ancestor.’

Formal denial If he did not vouch a warrantor or place himself on the grand assize, processes to be discussed shortly, the tenant would take up the demandant’s challenge that his witness would prove his right by battle. If he did so, Glanvill tells us, the tenant or some suitable person on his behalf, ‘must deny the right of the demandant word for word as he has set it out against him’.’* This formal denial did not involve a statement of the tenant’s own claim to the land.'*° The tenant could then

ask the court that he might ‘imparl’, that is withdraw to hold discussions, before reference to ‘the time of King Henry to ‘the day on which King Henry was alive or dead’, see P. A. Brand, ‘“Time out of mind”: the knowledge and use of the eleventh- and twelfth-century past in thirteenth-century litigation’ (1994) 16 ANS 37-54, at 41-2; this could signify a change in limitation dates or simply be a reformulation, with ‘time of King Henry always having indicated the day of Henry’s death, that is the last day of legitimate tenure before Stephen’s reign; note Garnett, Conquered England, esp. 336-8. For men in John’s reign seeking land as their right, based on an ancestor having been seised in the time of ‘King Henry the father’, i.e. Henry II, see e.g. CRR, ii. 6, 23; vi. 17, 22. Note also e.g. CRR, i. 93, the bishop of Ely seeking land of which, he claimed, his church had been seised before the Norman Conquest, and after, ‘that is in the time of King Henry the grandfather.’ For barons even in the later twelfth and early thirteenth century aspiring to establish claims based on tenure in Stephen’s reign, see e.g. White, Restoration, 78-9. ** See Glanvill, x. 12, ed. Hall, 127-8. A plea of 1199 shows the demandant losing his case, with no chance of bringing another, because his witness, who would have had to fight on his behalf, remained silent when produced in court rather than offering to make proof; CRR, i. 71. See also Pollock and Maitland, ii. 605-7. *°? See Glanvill, xii. 24, ed. Hall, 147; Glanvill’s phraseology may suggest an element of discretion on the part of the court. For cases, at least some of which arose from errors in the writ, see e.g. CRR, ii. 173; iii. 265; v. 64; cf. v. 96, 170, 207-8.

“°° For cases dismissed because of faults in the count, see e.g. CRR, ii. 12; iii. 184. *°* See e.g. PKY, iii. no. 995; Brand, Legal Profession, 38-9; Milsom, “Grand assize’, 158. *°° Glanvill, ii. 3, ed. Hall, 23. The passage suggests the need for verbal precision, on which see also above, 313.

*°° For comment on the significance of this, see Sutherland, Novel Disseisin, 214-15; Milsom, ‘Grand assize’, 158.

23 PROCEDURE IN LAND CASES 593 returning to repeat his formal denial and promise to repeat it “where and when he ought’.'°7 Presumably the discussions might cover possibilities of compromise or concession as well as possible tactics and forms of argument in the court.

Pleading: exceptions, special issues, and juries Glanvill says no more about pleading in such cases, but it is possible that he conceals legal and factual arguments that did occur, or that would be made soon after the time when he was writing.’°* Certainly the early plea rolls show various further possibilities open to the tenant. Thus the tenant might challenge the appropriateness of the demandant’s claim, for example saying that the demandant was seeking land that the tenant allegedly held in dower whereas she in fact held it as maritagium.’°° The lack of discussion in Glanvill of such pleading of exceptions in cases concerning right may suggest that the practice spread from the possessory assizes, partly perhaps via the grand assize."° The tenant's exception, like a special issue raised by the demandant, might lead

to a jury being assembled to swear concerning the specific issue of fact." The parties might agree to the jury.’” Alternatively, one party could obtain it through a proffer to the king, leaving his opponent having to accept the procedure. Or the court could insist that the parties accept a jury, possibly following the request of one party. The verdict of the jury would lead to judgment in the case.

Documents and record An exception might be supported with documents, and these might also be produced at other stages in a case."3 When in 1208 a certain Alice faced a claim that she held more in dower than she should have done, she responded by stating

that she did not hold the land in dower but as her marriage-portion, and she produced two charters to back her up. Proffer of a document, or of the oral

*°” Brand, Legal Profession, 40. *°S For an unusually full account of arguments, see Lincs., no. 260. *°? CRR, v. 289-90. “See Brand, Legal Profession, 40-2; below, 617. Note also e.g. CRR, iii. 83. *™ See Pollock and Maitland, ii. 611-18; Milsom, Legal Framework, 96-7.

‘? Cf. the arrangements made by the parties in Lawsuits, no. 643. "> See e.g. CRR, iii. 12, warrantor produced final concord. See Lawsuits, no. 517, CRR, vii. 272, for collections of documents. Note also CRR, vii. vii-lvi, for a list of charters and other documents mentioned in the early plea rolls. ™* CRR, v. 289-90.

594 PART III: ANGEVIN ENGLAND record of the king’s court, halted proceedings while it was decided if the proffered document or record was potentially relevant. If relevance was established and the document then produced and accepted as providing proof, the case in its present form would cease. A final concord, backed if necessary by the testimony of the

justices before whom it had been made, or the oral record of the king’s court could not be challenged and thus was decisive."° A charter could be challenged, and the issue of the case thereafter would relate to the charter itself. Argument might turn on whether it was genuine, whether it was relevant, whether it was defeated by another charter, or whether seisin of the tenements mentioned in the charter had actually been delivered.’ The king or his justices might examine the documents and seals, or the issue of the charters might go to another form of proof, including the summoning of the witnesses to the charters."”

Warranty Rather than make a formal denial or plead an exception, the tenant might instead vouch a third person as warrantor. By the late twelfth century, warranty clauses

were becoming common although not universal in charters recording gifts of land;’* it seems likely that warranty was a general obligation, the charter clause providing extra security for the tenant against a lord who wrongfully sought to

"See Glanvill, viii. 1-8, ed. Hall, 94-100, concerning only the parties to the final concord; note e.g. CRR, iii. 12, final concord involving the uncle of one of the parties and the father of the other party's warrantor. Final concords could also block claims by third parties, although those parties had a period of time in which they could bring their claims; see e.g. CRR, v. 204-5, Feet of Fines, Norfolk and Suffolk, no. 131 (third party is ‘chief lord of the fee’); CRR, ii. 5, 50, Feet of Fines, Norfolk and Suffolk, no. 307; note also e.g. CRR, i. 452; iii. 7, 76; v. 19, 195. In addition a third party might later plead that the fine did not block his claim because he had been unable to be present when the fine was made: see e.g. CRR, iii. 169; v. 181; or because he had been a minor when the fine was made: see e.g. CRR, Vi. 335; or for some other reason: see e.g. CRR, iv. 119-20, v. 90, Fines, sive pedes finium (1195-1214), ed. J. A. Hunter (2 vols; Record Commission, 1835-44), i. 242-3. See also Pollock and Maitland, ii. 101-2. On the record of the king’s court being incontrovertible, see above, 320, and note below, 600, on cases settled per finem duelli; also Lawsuits, nos 420B, 646. On the record of other courts, see Glanvill, viii. 9-11, ed. Hall, 100-3, above, 572, and note e.g. RCR, i. 376.

“© See e.g. CRR, ii. 135-6, question of authenticity of charter in advowson case; below, 654, on livery of seisin. “'” For the king, see e.g. Lawsuits, no. 360. For the examination of seals in the context of debt cases, see Glanvill, x. 12, ed. Hall, 127. Fora case going to ajury and to witnesses named in charters, see CRR, v. 111, 277; for battle being offered in the context of the significance of charters, see e.g. CRR, iv. 149. *'® See e.g. Hyams, ‘Warranty; 474; Postles, ‘Seeking the language of warranty’; J. M. Kaye, Medieval English Conveyances (Cambridge, 2009), 45-9; for scarcity in some sets of charters, see e.g. J. G. H. Hudson,

‘Diplomatic and legal aspects of the charters, in Earldom of Chester, ed. Thacker, 153-78, at 173-4, D. Postles, “Gifts in frankalmoign, warranty of land, and feudal society’ (1991) 50 CL] 330-46, at 342. For circumlocutions not involving warranty language, see e.g. Lawsuits, nos 550, 638.

23 PROCEDURE IN LAND CASES 595 escape the obligation.’ The warranty obligation between lay lord and tenant normally rested on homage, although it also was owed by heir to widow regarding her dower, and by quitclaimer to beneficiary. Warranty clauses also appeared in gifts for churches.”° The routine nature of warranty may be suggested by its inclusion in grants by weak men to stronger ones and by vendors for purchasers, even when the sale was made by substitution.’ At the same time it was possible for a grantor explicitly to opt out of the obligation of warranty or of providing exchange should the grantee lose the land; agreement could overcome the normal rules of law.’”

A problem arises from Glanvill’s text as to whether the obligation to warrant or exchange was heritable. Glanvill states that ‘it is different concerning him who holds his fee from another [de alio] as his inheritance and concerning which he does homage to him, since although he may lose that land, the lord shall not be bound towards him concerning exchange’.’* Earlier, in his section on warranty he mentions the obligation as arising when the tenant ‘has the [disputed] possession from gift, or sale, or in the giving of exchange, or from any cause of this sort’, but does not explicitly mention inheritance. In another section, however, he states that ‘heirs of donors are bound to warrant gifts and possessions given, as they have been reasonably made, to those to whom these gifts have been made and to their heirs’.’** Reconciling the passages is very difficult. The confusion may result from difficulties of the modern interpreter, for example regarding Glanvill’s use of the words de alio. Or it may be that Glanvill’s reservation concerns only exchange, not the obligation to warrant.’% Alternatively or additionally a lack of absolute certainty may have existed in the late twelfth century. A case in the county court of Buckinghamshire saw a man who had been vouched

*” Note e.g. Danelaw Documents, no. 105. Lords might still state that warranty was in return for services, perhaps attempting to provide one justification for refusing to warrant; see e.g. Danelaw Documents, no. 98, St Paul's, no. 175. For the king explicitly confirming obligation to warrant, see e.g. Carte antique, 1-10, no. 95. ‘*° Homage and warranty: note Glanvill, ix. 4, ed. Hall, 107. Dower and warranty: Glanvill, vi. 4-11, ix. 4, ed. Hall, 60-5, 107; see also Bailey, ‘Richard I’, 196-7, 202-3. Quitclaims: e.g. Lawsuits, nos 481, 524, 534, 616; note that on occasion the warranty is specifically against those through whom the quitclaimer had made his claim. Gifts to churches: e.g. Lawsuits, no. 455, Mowbray, nos 56, 57. "*! See e.g. Beauchamp, no. 183; Lawsuits, no. 473. Note also Kaye, Conveyances, 52-3, on vendors

promising to refund the purchase price. °* See e.g. EYC, iii. no. 1685; also EYC, ii. no. 1168 (no exchange if grantee loses land through plea;

the charter does not explicitly mention warranty); note also Bracton, fos 37b, 380b, 388b, 390b, ed. Thorne, ii. 118, iv. 192, 215, 220; Kaye, Conveyances, 48-9. "*° Glanvill, ix. 4, ed. Hall, 107. See also Hyams, ‘Warranty’, 471-2; Bailey, ‘Richard I’, 197-8, is in

no doubt that the obligation was heritable. *** Glanvill, iii. 1, vii. 2, ed. Hall, 37, 74; see also below, 642.

‘*° For the possible separability of these two elements, see above, 345.

596 PART III: ANGEVIN ENGLAND to warrant a charter plead that the charter, which he accepted as his, stated only

that he granted the land to the person vouching him; it made no mention of his gift or of warranty. The reason for stating that it did not mention warranty is obvious for a man denying that obligation; but why did he say it made no mention of his gift? Possibly he was saying that as his charter recorded only his confirmation of someone else’s gift, not his own, he was not obliged to warrant. The county court came to no conclusion, and we do not know the outcome of the case when it came to a royal court.”° If there was, or had been, any doubt about general norms concerning the heritability of warranty obligations, such doubt may have encouraged the inclusion of explicit warranty clauses, binding the grantor and his heirs to warrant the grantee and his heirs. Following voucher, a reasonable day was assigned for the tenant to have his war-

rantor in court.” Essoins were available to tenant and warrantor. When the warrantor ‘at length appeared in court, he would either warrant the possession to the tenant or not. If he was willing to warrant, then the case proceeded between the claimant and the warrantor. If he was unwilling to come to court, the party vouching him might ask that, “by the counsel and grace of the court, he be compelled [de consilio et beneficio curie justiciabitur] to do this, through issue of a writ to the sheriff. If the warrantor appeared in court in response to the partys vouching but defaulted concerning warranty, there was to be a plea between him and the party vouching,

which might result in battle.’ This was so whether or not the party vouching had a charter of the warrantor, so long as he had a suitable and willing witness to prove

°° Three Rolls, 124; see Hyams, ‘Warranty’, 490-1; Bailey, ‘Richard I’, 195-6; Milsom, Legal Framework, 131-2. For another relevant case, see CRR, v. 105-6; from 1222, see Rolls of the Justices in Eyre for Gloucestershire, Warwickshire and Staffordshire, ed. D. M. Stenton (59 Selden Soc., 1940), no. 1459. Later the use of the verb dare, ‘to give’, was taken to imply warranty; see S. J. Bailey, “Warranties of landin the thirteenth century (1942-4) 8 CL] 274-99, (1945-7) 9 CLJ 82-106, at 281-2. It is just possible that the present case is very early evidence for this view.

‘7 For this paragraph, see Glanvill, iii. 1-3, ed. Hall, 37-9; also Bailey, ‘Richard I’, 201-2, 204-5. Certainly by the time of Bracton, the warrantor might insist on attending the plea, even though not vouched, in order to protect his own rights; Bracton, fo. 393b, ed. Thorne, iv. 228; Bailey, “Thirteenth century, 85. The major concern seems to have been collusive litigation. Note also a warrantor acting by letter to the royal justices; Reading, no. 390, with which can be compared Lawsuits, no. 642. Minors vouched to warranty could not do so until they were of age; in 1201 the king halted a case, CRR, i. 467, until the person vouched to warranty ‘was of such age that he could and ought according to the custom of England to warrant that land to him’. See also Early Registers of Writs, Hib. 41, although the relevant writ is missing. "78 See CRR, i. 97, ii. 234. For relevant writs from earlier in Henry II’s reign, see e.g. Registrum Antiquissimum, no. 189, EYC, iii. no. 1458. See also Glanvill, iii. 4, ed. Hall, 39-40, on the problem of the defaulting warrantor. A solution to Glanvill’s problem may have been found by 1203, when an equivalent holding from the warrantor’s other lands were taken into the king’s hand. See also Bracton, fos 384-6, ed. Thorne, iv. 201-7.

23 PROCEDURE IN LAND CASES 597 his case. The warrantor might then offer proof by battle or grand assize, come to a compromise if the court allowed, or vouch a further warrantor.’””

It was also possible that two lords might be vouched, if the parties claimed to hold of different lords. According to Glanvill, if the tenant’s lord, after being allowed due essoins, failed to come to court in person or by attorney, the tenant was to answer and undertake the denial. If successful, he would keep the land and do service to the king, until his defaulting lord came to court and did there what he ought to do.”° Once both lords were present, the tenant’s lord was either to warrant the contested land or deny it." If he warranted, he might then himself undertake the denial of the demandant’s claim, or commit it to the tenant. If they were unsuccessful in the plea, the lord would lose his service and the tenant the land, with no possibility of making a new claim. If the tenant’s lord came to court but failed him regarding warranty, there could be a plea between tenant and lord, provided the tenant could say that the lord had acted unjustly in that the tenant had performed due services. He was to produce witnesses and a person suitable for proving this, or some other proof as directed by the court. The demandant’s lord could either claim the land for his fee or not, that is warrant or not. If he did warrant and claimed the land for his fee, he had the choice of relying on the proof that the demandant offered, or himself proving the right against the tenant. If unsuccessful, they both lost. As for the demandant’s lord who would not warrant, Glanvill does not say that there was then the possibility of a plea between demandant and lord, but rather that the demandant was in the mercy of the king because of his false claim.

Whether one or both parties summoned warrantors, once it was established that the tenant’s warrantor ought to warrant the possession, the tenant should not end up without a tenement; his warrantor, provided he had sufficient property, had to give him a suitable exchange if the case was lost.3* The vouched warrantor might be unwilling to do so, and the sheriff might then be ordered to see that the exchange was given.’ We also have evidence of warrantors being

2° Note e.g. Lawsuits, no. 654; CRR, i. 315.

°° Glanvill, iii. 6, ed. Hall, 41-2; note the strict procedures for obtaining the presence of the demandant’s lord. ‘** For what follows, see Glanvill, iii. 7-8, ed. Hall, 42-3. **? Glanvill, iii. 1, ed. Hall, 39. For exchange being given in such circumstances, see e.g. Lawsuits, no. 542. On the significance of the exchange going to the defeated tenant rather than the successful demandant, see above, 346; from early in Henry II’s reign, note Redvers, no. 50. "°° See CRR, i. 81; ii. 234, a case settled by final concord; also CRR, ii. 175; iv. 215. Carte antique, 1-10, no. 95, relating to a specific settlement, laid down that the equivalence of the exchange should be set by oath of four lawful men of the provincia.

598 PART III: ANGEVIN ENGLAND ordered to make reasonable exchange, although this did not develop into a routine form of writ.’ On the other hand, the very act of refusal by the warrantor may have led the tenant to lose the disputed tenement itself to the demandant. If the person vouched proved that he was under no obligation to warrant, the tenant lost not just the disputed tenement but also, presumably, the claim to an exchange.” Furthermore, even in the case of the warrantor who was obliged to provide the exchange, Glanvill adds the proviso that he should do so only if he had sufficient resources.°° Thus before vouching, thought had to be given to the obligations and wealth of the warrantor. All the same, vouching brought potential benefits even beyond the possibility of an exchange. A powerful warrantor, if not swaying the justices, might encourage an opponent to settle. In addition a warrantor might have possessed forms of proof not directly available to the person vouching, for example a final concord involving the demandant or an ancestor.” Warranty was available to churches, and to lay persons holding heritably or, it seems, for life.3* Another type of tenant might, according to Glanvill, say that the disputed possession was not his own, but that he had it as ‘lent to him for use [commodataml], or deposited to be looked after, or let to him, or given as a gage, or allotted to him in any other way as another's. The man from whom he had the possession should be summoned by another writ similar to the original, and then the plea would begin against him. If he then denied that the possession was his, the man who had alleged that it was should lose the land without any right to recover it, and be summoned to hear judgment concerning this. The demandant recovered seisin, whether or not he had come to court.” Wager of battle If the tenant had neither vouched a warrantor nor placed himself on the grand assize, and if the case was not to be settled on the specific point of an exception or

on a document or the record of a court, the tenant and demandant should then wage battle: that is, after making claim and denial and offering proof through an "8% See CRR, i. 39-40; iv. 185; in both cases it is just possible that the statement that the order was

to the party might indicate an instruction to the sheriff to order the party to act, rather than a writ addressed directly to the party, but cf. the explicit mention of the sheriff in the cases cited in the previous footnote. Note also PKJ, i. no. 3505, and the comments in Early Registers of Writs, Ixviii. See Bailey, “Richard I’, 205 n. 99; Hyams, “Warranty”, 487 n. 220. "°° See CRR, i. 89-90. °° Glanvill, iii. 1, ed. Hall, 39. *°7 See e.g. CRR, iii. 12; also Bailey, “Thirteenth century’, 284. "8 See Bracton, fo. 381, ed. Thorne, iv. 193. "°° Glanvill, iii. 1, ed. Hall, 37-8.

23 PROCEDURE IN LAND CASES 599 appropriate named person, they should provide sureties that battle go ahead on a specified day.’*° Thereafter, Glanvill tells us, the tenant and his champion were again allowed essoins.”

Making of proof: battle

Following essoins, the demandant had to appear in court with one of those whom he had named in his initial plea as prepared to prove his claim; only if that person had thereafter died a natural death could another suitable witness be substituted.'* The tenant could fight in person, or through a champion, the latter being the more common course. Confidence in his case or in his champion, or concern that the opposition of the local community made other forms of proof risky, might all lead the tenant to opt for proof by battle..#

Glanvill notes that hired champions were often produced. The other party could challenge such men, and the accusation would be decided by battle between the contested champion and his accuser or the person who had seen the champion receive the reward. Defeat for the accused champion led to him losing ‘all his law of the land’, that is he would never again be allowed to act as a witness in court or make proof for anyone by battle. His employer lost the case in which the champion was to have represented him.’*4 Nevertheless, the plea

rolls show certain men being used with sufficient frequency that they may be described as expert if not professional champions. Close to a professional was Simon Tyrel, to whom the abbot of St Augustine’s, Canterbury, made a grant concerning his performance of the service of the duel for his life, in person or through someone else suitable. Simon was to receive 50s. when battle was waged on behalf of the church, 50s. more if he had to appear armed before the justices

but did not have to fight, and 10m. if the battle had to be carried out. In fact, there is no evidence of Tyrel being involved in offers of battle by the abbot in the

king’s court, although he was in local courts. Interestingly, he also undertook numerous other legal activities, such as acting as an attorney.’ *° See e.g. PKJ, iii. no. 995.

Glanvill, ii. 3, ed. Hall, 23. * Glanvill, ii. 3, ed. Hall, 24. Glanvill allows the demandant’s champion to substitute his son in his place. On death other than from natural causes, see below, 533. On the form of trial by battle, see above, 327-8. “*° See esp. Lawsuits, no. 641 (p. 675).

** Glanvill, ii. 3, ed. Hall, 25; note that the disgraced champion retained the right to do battle on his own behalfin certain circumstances. For hired champions, note also e.g. Lincs., no. 260. “° Register of St Augustine’s Abbey, ii. 456; R. C. Palmer, “The origins of the legal profession in England’ (1976) NS 11 Irish Jurist, 126-46, at 142-3. CRR, v. 57, is a Gloucestershire case in which a Simon Tyrel is offered as a champion. See also Flower, Introduction, 120-2.

600 PART III: ANGEVIN ENGLAND When the battle had been fought, judgment was declared. The defeated champion lost his law and, according to Glanvill, was liable to a penalty of 60s."*°

If it was the tenant’s champion who had lost, the tenant was to restore the disputed land, with the fruits and produce [commoditatibus| found on that fee at the time of seisin. A writ from the king commanded the sheriff to seise the successful demandant of the land, ‘as has been adjudged to him in my court as a result of the battle [per finem duelli]’. Whichever the successful party, the fact that the case was settled by battle meant that their opponent could never revive their claim.'”

Making of proof: the Grand Assize

In Henry II's reign, royal courts made increasing and more routinised use of bodies of local men swearing on the basis of their knowledge as to the true situation concerning land and other rights. Particularly important in the present context was the grand assize, probably introduced at a council at Windsor in 1179. The grand assize was available in actions concerning right, including those started by writs precipe, de recto, or de homagio capiendo. Normally it was the choice of the tenant or his warrantor, not the demandant, but in cases started by de homagio capiendo the person bringing the action could put himself on the grand assize if he was in seisin.’** The assize could be used not just for land cases, but also, for example, for mills, advowsons, or services.” It was to settle the case as conclusively as did battle.**°

Glanvill gives the following as the procedure.’” First the tenant ‘put himself upon the lord king’s grand assize’, having to do so before battle had been waged,*” and might precede his placing himself on the assize with a statement of his right.’*

““° For this paragraph, see Glanvill, ii. 3-5, ed. Hall, 25-6. See above, 323, 328, for reference in a decree of William I to a £3 payment to the king by a Frenchman defeated in trial by battle. ““” Decisions made per finem duelli may also have acted as a block against third-party claims, ina similar fashion to final concords; see above, 594 n. 115. “® See e.g. Three Rolls, 135-6, CRR, iii. 81; note also PKY, iii. no. 997. See the comments of Milsom, Legal Framework, 89, 172-3. For de homagio capiendo, see also above, 583-4. “See Glanvill, ii. 13, iv. 6, ix. 6-7, ed. Hall, 32, 47, 110-11; e.g. CRR, i. 341; CRR, vii. 257-8, for a

party asking for its use in a case concerning fishing rights; the request was rejected, but not on the grounds that it was in general inappropriate for cases involving such rights, and the case instead went toajury ona specific point. Note also e.g. CRR, v. 151; vi. 277. On use of the grand assize by the tenant’s warrantor, see above, 597. °° Glanvill, ii. 6, ed. Hall, 28. *°! For this paragraph, see Glanvill, ii. 6, ed. Hall, 26-7. *°?' Glanvill, ii. 3, ed. Hall, 23.

*°> See e.g. CRR, iv. 187-8, 290, v. 38, 69, 134-5. See Lawsuits, no. 641 (p. 675), for the prior of Spalding paying the king 40m. for a grand assize in what was a tendentious case. For smaller payments to have or to hasten a grand assize, see e.g. Lincs., nos 87, 118, 303, CRR, iv. 34.

23 PROCEDURE IN LAND CASES 601 After the tenant had placed himself on the assize, the demandant had to choose whether to do the same. If he chose against, he had to show why there should be no assize between them, for example that they were blood relatives. The tenant might admit or reject this objection. If he accepted it, no assize proceeded, and the matter was pleaded and ended through words in that court, by enquiry as to which party was genealogically the closer heir.** However, as illustrated by the Court Rolls, the tenant might counter the exception, arguing that the closer heir or one of his ancestors had lost his right temporarily or forever, by gift, sale, exchange or any other kind of proper alienation, or had lost it through felony. The court might then allow the assize to proceed,’® or the allegations might lead to trial by battle.’ According to Glanvill, if the tenant denied the demandant’s claim that they were

of the same stock from which the inheritance descended, their common blood relatives were summoned to court.” If they all affirmed the claim of kinship, this assertion was to be accepted unless one party strongly contradicted; then recourse

was to be had to witness of the neighbourhood, which would be conclusive if it confirmed that of the blood relatives. The verdict of the neighbourhood was also decisive if the blood relatives could not agree. If the investigation confirmed the claim of kinship, the assize was not to proceed and the plea was to proceed

through words. However, if the court and the king’s justices took the contrary view, the result was defeat for the plea of the demandant who had maliciously tried to frustrate the assize by the claim of shared stock. If there was no such objection from the demandant, the assize went ahead.’* Proceedings in the seignorial courts were brought to a stop: the tenant purchased a writ of peace, addressed to the sheriff, prohibiting the person in whose court the case was to be heard from holding the plea, unless duel had already been waged. This prevented the demandant from proceeding on the writ that had begun the

plea. The tenant thereby had peace until the demandant went to the court and

*°* Glanvill does not explain this process further. CRR, iv. 256-7, shows a court deciding that one such case should be decided by a jury of local men concerning a specific issue. °° See e.g. CRR, v. 75; the parties probably settled, CRR, v. 162. In CRR, iv. 193-4, neither party

seems to have questioned that the assize should proceed, although they were related; the dispute involved an alleged gift within the family. Perhaps the demandant’s attorney, John Bucuinte (on whom see above, 587-8), was well aware that cases of this sort relating to family gifts could proceed via the assize. For this case, note also CRR, iv. 181 (appointment of John Bucuinte in place of another attorney), 258, v. 14. "°° Glanvill, ii. 6, ed. Hall, 27.

*” Glanvill, ii. 6, ed. Hall, 27-8. The plea rolls do not indicate that this was a commonly used process. *°® For this paragraph, see Glanvill, ii. 7-12, ed. Hall, 29-32. For a lord simply continuing to hear a case, even though the tenant had placed himself on the grand assize, see above, 565 n. 213.

602 PART III: ANGEVIN ENGLAND purchased another writ addressed to the sheriff. This instructed the sheriff to summon four lawful knights from the neighbourhood of the disputed tenement to be before the king's justices on a set day, to choose twelve lawful knights from the same neighbourhood who best knew the truth, to recognise on their oath whether tenant or demandant had the greater right in the specified land. The sheriff was to have the names of the four knights written on the back of the writ, to summon the tenant to be at the choosing, and also to have there the summoners and the writ. Glanvill notes that it was in practice customary to have six or more knights summoned to make the selection, presumably in case any failed to appear, possibly also in case any were subject to objection. The tenant and the knights were then allowed essoins, although, Glanvill feared, this might allow as many essoins in the grand assize as in battle, in contradiction to what he had earlier said. However, ‘a constitution, ordained for good and equitable reasons, allowed the court to proceed by having the four knights make their selection whether the tenant was present or not; it sounds as if experience may have led to subsidiary legislation. The tenant might, if present, have been able to object to some of the chosen twelve. Therefore in his absence it was best to choose more than twelve, in case he objected when he did appear.’ In an unusual aside, Glanvill comments that ‘exception can be made to these jurors in the same ways in which witnesses in courts Christian are justly rejected. Delay was also avoided by the possibility that if not all four knights came, one of them might join with two or three others from the same county, if they could be found in the court, and make the selection. Glanvill stresses that the discretion of the court should be used to ensure the good running of the assize. A writ was then sent to the sheriff, ordering that he summon the twelve chosen knights to be before the king or his justices at a specified place and date, to declare on oath which party had greater right in the land.’ The knights were to view the disputed land, and the sheriff was ordered to summon the tenant. On the specified day, the recognition was to proceed whether the tenant was present or not; the demandant was allowed to essoin himself, the case being postponed to another day.’ When the recognition was made, if it was found that none or only some of the twelve knights knew the truth of the matter, or if the jurors were split in their opinions, further jurors had to be found until twelve agreed in favour of one party.’ As with witnesses in cases tried by battle, the knights had to have knowledge of the matter in person by sight and hearing or by statements from their fathers in *°? For the election of more than twelve knights, see e.g. RCR, i. 140-1. *°° For this paragraph, see Glanvill, ii. 14-21, ed. Hall, 33-7. *®! For the demandant repeatedly not attending, and eventually defaulting, see RCR, i. 334. *°* Lack of later evidence suggests that this procedure soon died out, even if it was used in Glanvill’s

time. Glanvill, ii. 21, ed. Hall, 37, is uncertain as to what should happen if there could not be found twelve knights who knew the truth, although note that it raises the possibility of trial by battle.

23 PROCEDURE IN LAND CASES 603 circumstance in which they had to believe their knowledge as if their own. When twelve knights agreed, they then declared whether the demandant or tenant had

greater right in the land. If the tenant, then the court awarded that he be sent away, quit from the demandant’s claim forever, and the demandant was never to be heard again in court with effect on this matter. He would also be in the king's mercy.’ If, on the other hand, the court judged through the assize in favour of the demandant, the tenant lost the land, and was to restore it with all fruits and produce found on the land at time of seisin. The demandant was sent to the sheriff of the relevant county, to receive his seisin through a writ addressed to the sheriff. The royal legislation creating the grand assize had also specified the penalty for jurors who swore rashly.’® If confessing to or convicted of perjury, according to Glanvill, they were to be despoiled of all their chattels and movables, which should pass to the king; by his great mercy their free tenements were excepted. The perjurers were to be imprisoned for at least a year, and—in a fashion reminiscent of the defeated champion in trial by battle—were to lose their law forever, incurring the everlasting mark of infamy. We have thus traced the procedure of grand assize to the final judgment and

its execution. However, many more grand assizes were started than reached this point. A large proportion ended in compromise.’® In others, an exception to the assize was pleaded or a special issue raised. In particular, the demandant might point out a flaw in the gift upon which the tenant’s seisin was based.’°° Such a case might then be decided by a jury, which delivered a verdict on the particular issue. Glanvill, as we have seen, discusses the exception of kinship. His failure to mention other exceptions may suggest either that his account is not exhaustive or that in the late 1180s exceptions were less important than they would soon become.'” Whether or not it was inspired by a desire for rationality, the grand assize came to encourage rational argument over specific issues.

4 CASES CONCERNING ONLY SEISINS Let us now move on to procedures in the cases that Glanvill describes as ‘only over seisins.'* All these procedures sought a speedy outcome, and involved

"°° See e.g. PK], iii. nos 777, 783; Lincs., no. 188.

*°* Glanvill, i.19, ed. Hall, 35-6. "°° See below, 621, for instances from Lincolnshire in 1202. "°° Note also Milsom, Legal Framework, 96. "7 See also above, 593. *°S On seisin and right, see also below, 670-6.

604 PART III: ANGEVIN ENGLAND recognitions, as required in the initial writs laying down the specific issue or issues. Four receive particular attention: novel disseisin, concerning unjust seizure of a free tenement; mort dancestor, concerning inheritance; darrein presentment,

concerning appointment to a benefice; utrum, concerning whether land was alms or lay fee, and hence under ecclesiastical or secular jurisdiction. However, Glanvills list is not so limited, and in Roger of Howden’s manuscript of Glanvill the list is headed with an appropriate rubric: “Types of recognition are many and diverse."°? Glanvill also mentioned use of recognitions on related issues, ‘whether with consent of the parties or by award of the court.” Only after this statement does he mention the recognition of novel disseisin, which then appears last in his book ‘concerning the various recognitions. The phraseology of the writ of novel disseisin is distinctive, and unlike the other recognitions novel disseisin allowed no essoins. It seems likely, therefore, that both Glanvill and those responsible for the construction of the various assizes saw novel disseisin as somewhat atypical amongst these procedures. It remains important that the types and forms of writ were restricted. Careful wording was necessary, not only in terms of names and places,”’ but also in the legal specifications. Faced with a writ combining elements of mort d’ancestor and novel disseisin, the court at Westminster decided not to proceed but to speak with the king himself.” It is also notable that when a writ was needed for cases involving nuisance, it was based very closely on that for novel disseisin. Again one sees the characteristic preference for a limited number of replicable forms.

Mort d ancestor Glanvill gives the following writ of mort d’ancestor: The king to the sheriff, greeting. If G. son of O. gives you security about pursuing his claim, then summon by good summoners twelve free and lawful men of the neighbourhood of that vill, that they may be in the presence of me or my justices on a specified day, prepared to recognise by oath if O. father of the said G. was seised in his demesne as of his fee of one virgate of land in that vill on the day on which he died, if he died after my first coronation, and if that G. is his closest heir. And meanwhile let them view that land, and you are to have their names endorsed on this writ. And summon by good summoners R. who holds that land that he may then be there to hear that recognition. And you are to have there the summoners and this writ.’

“°°? London, British Library, Royal MS 14 C. ii, fo. 266v.

7° Glanvill, xiii. 2, ed. Hall, 149. ‘71 See below, 617.

? CRR, i. 464-5. > Glanvill, xiii. 3, ed. Hall, 150.

23 PROCEDURE IN LAND CASES 605 Mort d'ancestor was applicable not just to land but also to rents and a variety of other types of right.”

The assize of mort dancestor was probably established at the Council of Northampton in January 1176. Certainly the surviving text of the legislation of that Council gives an extended account of relevant regulation, concluding as follows: if the lord of the fee deny to the dead man’s heirs that dead man’s seisin, which they demand, the justices of the lord king are to have a recognition [percognitionem] carried out concerning this, through twelve lawful men, what sort of seisin the man had concerning this on the day on which he was alive and dead. And as shall be recognised, so they shall restore to his heirs. And if anyone acts against this and is convicted [attaintus] thereof, let him be in the king’s mercy.”

The text is sufficiently close to Glanvill’s writ and description to suggest that the later procedure was being implemented in 1176, although on the Pipe Rolls, mort d’ancestor first becomes reasonably clear at the end of the decade.’”° The Northampton text was concerned with the actions of the dead man’s lord. Glanvill’s writ is not so specific, and the other party could be a rival for the land who had gained seignorial acceptance.’ The claimant had to be closely related to the deceased, that is within the range of those for whom the custom of inheri-

tance was strong: sons, daughters, brothers, sisters, nephews, nieces. Other cases were left to actions concerning right, to be treated in the first instance by the lord’s court, where customs over such inheritance cases may have varied. It is noteworthy that when the limited range of mort d’ancestor was supplemented in Henry III's reign by the actions of aiel, besaiel, and cosinage, available to some more distant relatives, Bracton mentions lords objecting about loss of jurisdiction.”®

Setting aside those brought directly against the lord, one might expect many mort d’ancestor cases to be between close relatives, perhaps in complicated inheritance situations or as a result of family land arrangements. In fact, this is not so. Glanvill states that “consanguinity removes [adimit] this assize, that is, if he who is seeking and he who holds are of the same stock whence descends the inheritance of which seisin is sought, thus, I say, if this

‘7* See e.g. CRR, iv. 276 (rent), vi. 336 (common of wood).

‘7° Assizes of Northampton, 4. "7° See PR26HII, 14, 41, 80. Some earlier instances could be concealed under general phrases such as ‘in return for having a recognition’. ‘77 Note the comments of Milsom, Legal Framework, 166-7, 176. ‘’® Bracton, fo. 281, ed. Thorne, iii. 318.

606 PART III: ANGEVIN ENGLAND is objected and proved in court’.”° This point arose sufficiently often in court to suggest that it was not well understood by those bringing the assize.’*° Plea roll examples show such claimants being directed to bring a writ of right, which might lead to proof through battle or perhaps more likely through suit of kin.” It should, though, also be noted that Glanvill’s statement permits the tenant not to raise the objection, thereby allowing the assize to proceed. There is also evidence of the objection being raised, apparently correctly, but the assize being allowed to continue.’® In practice, many cases turned not on whether the claimant was the closest

heir, but, for example, on whether his ancestor had died seised as of fee in demesne or rather had held only for a term of years or in villeinage or had himself been a villein.’*? Occasionally a case might fail because the ancestor had died before the first coronation of Henry II, the time limit mentioned in Glanvills writ and apparently applied throughout the reign of Henry and his sons.'*4 Claims based on seisin under Stephen, or even after Stephen’s death and before Henry's coronation, were not acceptable. The point of limitation, however, made a method of recovery available for those who could not prove an ancestor's seisin in the time of Henry I, which in the 1170s may have been necessary in actions concerning right.’*

Darrein presentment Glanvill gives the following writ of darrein presentment: The king to the sheriff, greeting. Summon through good summoners twelve free and

lawful men of the neighbourhood of that vill that they may be in the presence of me or my justices on the specified day, prepared to recognise by oath which patron [advocatus| presented the last parson who died, to the church of that vill, which is vacant, so it is said, and of which N. claims patronage [advocationem, advowson]. And you are to have their names endorsed on the writ. And summon through good

7? Glanvill, xiii. 11, ed. Hall, 155. ‘®° Besides the examples in the next footnote, see e.g. PK], iv. no. 3749.

*S* See e.g. CRR, ii. 191-2, PKJ, iii. no. 1007, Lincs., no. 377; Bracton, fo. 261b, ed. Thorne, iii. 269. On proof by suit of kin, see above, 601. On disputes between sisters, see Waugh, “Womens inheritance; 83. "8? See CRR, ii. 223, between cousins; for the dispute, note also ii. 239, 282, iii. 317, Lincs., no. 113. It may be significant that this was a very large-scale case, concerning fourteen knight’s fees. PR3J, 18, records the demandant owing 40m. for a writ of mort d’ancestor concerning fourteen and a half knight's fees. "8° See e.g. PK], iii. no. 959, Lincs., no. 416. "84 See e.g. CRR, i. 227; iv. 217.

“°° See Biancalana, “Want of justice’, 486-7, 504; above, 583.

23 PROCEDURE IN LAND CASES 607 summoners R., who withholds that presentation, that he then be there to hear that recognition. And you are to have there the summoners and this writ.'*°

The writ was available to either of the parties claiming that they should present to the church. We cannot be certain of the date of the establishment of the procedure of darrein presentment, but the end of 1170s seems likely. A cartulary copy of a final concord dated 16 April 1180 deals with a case of patronage to a church, ‘concerning which a recognition was summoned between the parties in the court of the lord king, concerning the presentation of the parson who most recently died in that [church]’.°”

Utrum In his list of recognitions Glanvill introduces several with the word utrum, ‘whether’:

whether a tenement is ecclesiastical fee or lay fee; another whether someone was seised of a free tenement on the day on which he died as of fee or as of gage; another whether someone is under age or has full age; another whether someone died seised of a free tenement as of fee or as of wardship; another whether someone presented the last parson to a church by virtue of his fee that he has in his demesne or by virtue of wardship of someone."

It is only the first of these to which historians now refer as utrum. Glanvill provides the following writ: The king to the sheriff, greeting. Summon by good summoners twelve free and lawful men of the neighbourhood of that vill, that they may be before me or my justices on the specified day, prepared to recognise by oath whether one hide of land, which N. parson of the church of that vill claims for the free alms of that his church against R. in that vill, be lay fee of that R. or ecclesiastical fee. And meanwhile let them view that land...the summoners and this writ [as mort d’ancestor, above]."®?

"8° Glanvill, xiii. 19, ed. Hall, 161. Note also Early Registers of Writs, Hib. 9-15. Glanvill’s writ does

not mention that the last presentment must have taken place in time of peace, but this would be specified in later writs (see Hib. 9), and Glanvill, iv. 1, ed. Hall, 44, shows that the recognition had to declare who had last presented in time of peace. "87 Cartulary of Oseney Abbey, ed. H. E. Salter (6 vols; 89-91, 97-8, 101 Oxford Historical Soc., 1929-36), iv. no. 439. On the circumstances of introduction, see above, 520. On issues related to darrein presentment, see Gray, Ius praesentandi , Tate, ‘Ownership, 305-13. "88 Glanvill, xiii. 2, ed. Hall, 149. "8° Glanvill, xiii. 24, ed. Hall, 163.

608 PART III: ANGEVIN ENGLAND A process resembling utrum appears in the 1164 Constitutions of Clarendon. The purpose seems to be to deal in the chief justiciar’s presence with a question of jurisdiction that was potentially blocking a case already being heard. If a claim arises between a cleric and a layman, or between a layman and a cleric, concerning any tenement that the cleric wishes to draw [attrahere] to alms, but the layman to lay fee, it shall be ended by recognition of twelve lawful men, through decision of the chief justice of the king, whether the tenement is pertaining to alms or to lay fee, in the presence of the king’s justice himself. And if it is recognised to pertain to alms, the plea shall be in an ecclesiastical court, but if to lay fee, unless both avow from the same bishop or baron, the plea shall be in the royal court. But if both avow the same bishop or baron concerning that fee, the plea shall be in his court. Thus that he who previously was seised is not to lose seisin because of the recognition that has been made, until it shall have been deraigned through the plea.’ This process differs in certain ways from Glanvill’s. By Glanvill’s time, the use of the

recognition utrum is associated with the king's the court in its various forms, and we hear no more of such issues being heard in the court of the mutual lord of the parties.’ Furthermore, whereas the Constitutions had specified that cases be heard before the king’s chief justiciar, the writs in Glanvill and the early Registers simply specify ‘the king's justices, thereby including both the eyre and the central courts. As we noted earlier, it is unclear how extensive was the range of lands over which the Constitutions granted jurisdiction to Church courts.’ Glanvill’s writ mentions land belonging to a parson’s church, and this would certainly later be

the use of the writ. Utrum was brought concerning small or fairly small tenements that a clerical party claimed to pertain to a local church, the tenement being said to belong to the church rather than to the churchman.” It could decide more than jurisdiction over the case. Given that the writ named both parties, a decision as to the nature of the holding could amount also to a decision between them, although leaving open the possibility of either a claim by a third party,’ or a claim by one party to hold of the other.’ If the churchman had been victorious, °° Constitutions of Clarendon, 9. °! See A. Nicol, “Changes in the assize Utrum between the Constitutions of Clarendon and Bracton’, in Medieval Legal Records, ed. Hunnisett and Post, 17-24. Cf. development in Normandy; see esp. the charter of Norman bishops printed in L. Valin, Le duc de Normandie et sa cour (Paris, 1910), 280; TAC, 17, 57, ed. Tardif, 19-20, 46-9. ** See above, 567; also below, 669.

°° An exception may be a writ issued by the justiciar in the context of a dispute between the abbey of Meaux and the archbishop of York; Chronica monasterii de Melsa, ed. E. A. Bond (3 vols; RS, 1866-8), i. 293. However, it cannot be told ifthis was a standard writ utrum.

4 Note CRR, vi. 29. °° See Glanvill, xii. 25, ed. Hall, 164; the last part of Glanvill’s sentence is perhaps better translated ‘although it can be sought [peti] by the opposing party to be held from the church through due service’

23 PROCEDURE IN LAND CASES 609 the layman's claim to hold in some way from the church would presumably have to be heard in a Church court. Indeed, a seignorial element seems often to have underlain the dispute itself, with some lay parties putting themselves on a jury as to whether they had the greater right to hold from a church or that church to hold in demesne.’® The utrum writ was available in this period to clerics and to laymen, as Glanvill and the earliest Register of writs make explicit...” On occasion two churchmen were involved, one claiming the land as lay fee.’** Under Henry III laymen ceased

to be able to bring the writ, and it then became in effect the ‘parson’s writ of right’, as the law-book Britton would call it in Edward I's time.’ Novel disseisin Glanvill gives the following writ of novel disseisin: The king to the sheriff, greeting. N. has complained to me that R. unjustly and without judgment has disseised him of his free tenement in that vill after my last crossing to Normandy. And so I order you that if the aforesaid N. gives you security

about pursuing his claim, then you are to have that tenement be reseised of the chattels that were taken on it, and the tenement itself with the chattels is to be in peace until the Sunday after Easter. And meanwhile have twelve free and lawful men of the neighbourhood view that tenement, and have their names endorsed on this writ. And summon them by good summoners that they be before me or my justices, prepared to make a recognition concerning this. And place through gage and safe pledges the said R. or his bailiff, if he himself cannot be found, that he may then be there to hear that recognition. And you are to have there the summoners and this writ and the names of the pledges.”°°

The assize of novel disseisin was probably established in 1166, but can be linked to earlier legislation and rested on earlier ideas. From the early years of Henry II come references to various pieces of legislation in the context of disseisins, but the content of which is uncertain. A letter written by John of Salisbury for Archbishop

°° See e.g. PK], iv. nos 4134, 4283; note also e.g. CRR, iv. 193, PKJ, iv. no. 4248. 7 See Glanvill, xiii. 23, ed. Hall, 163, Early Registers of Writs, Hib. 21; cf. CA 49; note CC 52-55a.

Note also the writs of prohibition to ecclesiastical justices and sheriffs against a plea concerning lay fee being held in an ecclesiastical court ‘because that plea concerns my crown and dignity; Glanvill, xii. 21-22, ed. Hall, 146-7. For later discussion of whether utrum was available to laymen, note BNB, no. 1923; Bracton, fo. 285b, Thorne, iii. 329. "® See e.g. Lawsuits, no. 615.

° Britton, iv. 7. 2, ed. F. M. Nichols (2 vols; Oxford, 1865), i. 207. The action was not available to a vicar; CRR, i. 325.

*°° Glanvill, xiii. 33, ed. Hall, 167-8.

610 PART III: ANGEVIN ENGLAND Theobald records a claim that a man had occupied a church ‘against the custom of the whole Church and realm of the English, against the king’s constitution and the ancient privilege [dignitas] of all nobles, and mentions a royal writ ordering restoration to the other party of the church ‘of which he had been deprived after the king’s departure, against his edict: Another letter of John instructs that the addressee ‘restore to our beloved son Jordan, the treasurer, possession of the church of Froyle...from which, after the edict of our lord king, in contempt of the Roman Church, you ejected him violently and without judicial process.*” Probably in 1162 Henry ordered the bishop of Norwich to restore certain possessions to St Benet of Holme, ‘and let it not remain undone on account of my assize, and writs most likely

of a similar period order actions ‘not to remain undone because of my assize’ or ‘because of my assize or my army. The references may be to a decree or decrees specifically concerning disseisin, or simply to a decree or decrees against wrongdoing during the king’s absence or affecting those providing service for the king.*” The most likely occasion for the establishment of novel disseisin was the council at Clarendon in 1166 or possibly late 1165.”% The silence of our text of the Assize

of Clarendon is not a strong counter-argument; the text need not be a full record of proceedings. It is worth noting that whereas the Assizes of Northampton in 1176 give significant explanation of mort d’ancestor, the text obviously expects novel disseisin to be understood, perhaps indicating that the recognition had been an element of the procedure since Clarendon.” 1166 also provides the first Pipe Roll entries that may refer to the assize.”® This could just be because royal justices rather than sheriffs were now hearing cases. However, this still leaves 1166 as the beginning of novel disseisin as a procedure heard by recognition before the king's justices.*°°

The 1168 and 1170 Pipe Rolls reveals amercements of hundreds in Devon and Sussex for concealing disseisins, and the 1168 roll under Wiltshire names vills *°" Lawsuits, nos 395, 386, respectively. See also Garnett, Conquered England, 339-42.

*°? Royal Writs, nos 21-3; White, Restoration, 208 n. 251. For concern about peace in the king’s absence, see esp. The Letters of John of Salisbury, ed. and trans. W. J. Millor et al. (2 vols; Oxford, 1955-79), no. 121, from Archbishop Theobald to the king in mid-1160. *°° See Sutherland, Novel Disseisin, 5-9; cf. e.g. Royal Writs, 283-94; Stenton, Royal Justice, 35-43. See above, 514-15, on the Assize of Clarendon. The 1166 Pipe Roll has under Rutland an amercement ‘for a disseisin against the king’s assize’, which appears with old business, not under ‘new pleas and agreements; PRI2HII, 65. Unfortunately the entry cannot be traced back in previous Pipe Rolls, to confirm that it was not new in 1166. However, ‘disseisin against the king’s assize’ need not refer to the procedures introduced with novel disseisin; see above, on letters of John of Salisbury. *°*' Assizes of Northampton, 4-5. 205 PRI2HII, 4, 7, 10, 14.

*°° See also Sutherland, Novel Disseisin, 8-9, for reason to believe that the measure was intended to be lasting. The absence of references in Pipe Rolls between 1172 and 1174 can be explained by the lack of eyres in those years and by the civil war of 1173-4.

23 PROCEDURE IN LAND CASES 611 that had concealed and then recognised disseisins. This might indicate that novel disseisin formed part of a general crackdown on disorder, enforced by royal justices and making use of presentment. However, the meaning of the Wiltshire entries is obscure, there are textual problems regarding the Sussex ones, whilst that for Devon could signify presentment for incursion on royal demesne.’ It seems best to take novel disseisin as, from its beginnings, an action brought by an individual plaintiff. Those creating the procedure did so from a variety of ideas and materials. Laymen may have considered, and churchmen knowledgeable in canon law certainly stated, that a dispossessed landholder should normally be restored before the underlying claim to the land was treated. Thus the Leges Henrici had stated that ‘no-one is to plead disseised unless it concerns the disseisin itself’.*°* Similarly the phrase ‘unjustly and without judgment’, characteristic of novel disseisin, had been used in various circumstances.”” By the early years of Henry II the influence of the learned laws was encouraging at least clerics to distinguish between possessio and proprietas, facilitating the notion that cases concerning the former could be settled swiftly whilst leaving open the issue of the latter.“° More thoroughgoing influence from learned law is possible, most notably from a Roman law interdict called unde vi. For example, the interdict and novel disseisin were only available to those who had, respectively, been in possession or been seised. Neither could be used concerning dispossession of movables, but both ordered that the successful plaintiff was to recover, along with the land, the movables that had been on it when he had been ejected. The interdict could not be brought by a slave or a colonus, novel disseisin only protected free tenements.” If the assize was invented in the 1160s in the form in which we know it from Glanvill, the invention came at a time when learned lawyers whom Henry had gathered for his struggle with Becket may have

*°7 Devon: PRI4HII, 133; DB, i. fo. 100v, records Lifton, Devon, as the king’s. Wiltshire: PRI4HII, 164-5. The Sussex entry twice appears as a concealed plea before being recorded as a concealed disseisin; PRI4HII, 196, PRI5HII, 58, PRI6HIT, 138, PR17HII, 130. For interpretations, see Royal Writs, 284-5; Stenton, English Justice, 36-42; Biancalana, “Want of justice’, 480-1. *°8 LHP, 53.5,ed. Downer, 170; see also Hudson, Land, Law, and Lordship, 32-3, for other passages

from the LHP and for the canonical background. *°° See e.g., concerning disseisin, RRAN, iii. nos 286, 545, 886, Royal Writs, nos 90, 91, 92, 94, 96, 98; LHP, 74. 1, ed. Downer, 230 (concerning killing); Sutherland, Novel Disseisin, 26 n. 6, for further references.

**° See M. G. Cheney, ‘“Possessio/proprietas” in ecclesiastical courts in mid-twelfth-century England’ in Law and Government, ed. Garnett and Hudson, 245-54; Tate, ‘Ownership, esp. 284-95. *™" See Sutherland, Novel Disseisin, 20-6, who suggests rather greater Roman influence than I here allow. Cf. the arguments of Tate, ‘Ownership, 311-12, on possible Roman influence on darrein presentment.

612 PART III: ANGEVIN ENGLAND exercised particular influence. However, there were differences between the interdict and the assize. The interdict was not limited to dispossession within a limited time, the formulation of the writ used key phrases unknown to Roman law, and central to the procedure was the recognition, again without close parallel in Roman law. Rather, the writ, its phraseology, and the use of the recognition were available from English practice.”” The assize was constructed by royal advisers working from such ideas and practices, in an outstandingly successful exercise not of legal transplant but of judicial bricolage.

Whom did the constructors of the assize envisage as the perpetrator of disseisin? As with actions concerning right, the seignorial dimension was important. Lords might wish to disseise their tenants for various reasons, some relating immediately to their right to the land, others stemming from non-performance of services. Lords who had been restored to inheritances following loss in Stephen's reign might now wish to eject sitting tenants and put in their own followers. New

prelates sought to restore to their demesnes lands that their predecessors had alienated. To the prelate their right may have seemed so clear as to remove the need of judgment before disseisin, whereas for the tenant the action was unjust. This issue was particularly prominent in the mid-1160s because of the actions of Archbishop Thomas Becket, who took back Canterbury lands from notable figures such as John Marshal.”%

In addition, disseisins arose from distraint, the process whereby lords sought to enforce due services and which might end with them disseising tenants of the land for which those services were owed. This was a common setting for use of the assize at the time of the early plea rolls, more common than is immediately visible from the blank verdicts that characterise the reports on those rolls. It can also be argued that the form of the writ makes sense in the context of seignorial distraint. The lord could distrain justly and by judgment. He would remove the tenant’s chattels, and would be obliged not to dispose of them. He might well act through his bailiff, as plea rolls reveal.” However, none of these points, singly or cumulatively, proves that the initial purpose of the assize was limited to the regulation of seignorial distraint. At least in the late 1180s, Glanvill probably envisaged the assize being used by a lord against the tenant who had disseised him of his demesne, and certainly between

*"? Note also the reference in the terms of limitation to disseisins since the king last crossed to Normandy, below, 614. This may be derived from earlier decrees prohibiting wrongdoing in the king’s absence; see above, 610.

*"° Cheney, “Novel disseisin’; however, note Lawsuits, no. 420A, where Herbert of Bosham says that Becket’s fault was to take the land back without having sought a royal judge [nullo fiscali judice requisito]. *™ Milsom, Legal Framework, 12-13, 18-19, ‘Grand assize’, 168, Natural History, xxi.

23 PROCEDURE IN LAND CASES 613 those not connected by tenure.*® The form of the writ need not indicate that improper seignorial distraint was the sole initial target. “Unjustly and without judgment’ need not refer only to lords’ courts.”® It makes equal sense regarding the disputant who seizes land without waiting for a judgment. The same disputant might well have removed chattels and fruits when they seized the land.”” Many a likely disseisor had a bailiff, and the provision that he might be summoned if his lord could not be found ensured that the essential speed of the process was maintained. The disputant who pursued his claim without seeking judgment, with the aim either of thereby winning his dispute or of at least being the tenant as the case continued, could well be an initial target of the assize, just as was the improperly distraining lord.** The constructors of the assize chose to give it a broad remit by not specifying that the disseisin need be violent. According to Glanvill, ‘the defeated party, whether he be the appellor or the appellee, always is in the lord king’s mercy on account of violent disseisin’."° However, it is unclear whether this means that Glanvill considered all unjust disseisins violent, or just some.**° The framers of the writ had the option of including the word violenter, just as John of Salisbury had in one of his letters referring to breach of the king’s early assize. Nor is there any mention of breach of the king’s peace, although some heavy amercements in cases of novel disseisin may reflect their degree of force.” Not a specific targeting of violent disseisins but rather a wider concern for good order, a worry that disseisin might be a stage in a spiralling dispute, most likely underlay the assize.

**9 See Glanvill, ix. 11-13, ed. Hall, 114-15; he does not specifically say that novel disseisin can be used against the man making a purpresture against his lord, but this is the implication. **° Note use of the phrase in the Inquest of Sheriffs, 12, with reference to the exactions of archdeacons and deacons. *"” The Roman action unde vi also dealt with chattels of the disputed property; Sutherland, Novel

Disseisin, 23. This need not be a sign of influence but does demonstrate that the issue of chattels could arise outside a seignorial context. *"8 This also makes sense of the fact that the assize was only availably against the disseisor, not against one who had received land from him by gift or inheritance; see also Sutherland, Novel Disseisin, 18-19. For awareness of the advantage of being in seisin, see e.g. Lawsuits, no. 581 (see above, 10). **? Glanvill, xiii. 38, ed. Hall, 170.

*° Sutherland, Novel Disseisin, 27 n. 2, argues for the former as the correct interpretation. Glanvill’s mention of the plaintiff here is somewhat obscure. Plea rolls, for example Northants., routinely record the losing party being in mercy, but this need not be because of an association of disseisin with violence. Use of appellans and appellatus at Glanvill, xiii. 38, ed. Hall, 170, is not strong evidence for the specifically criminal nature of novel disseisin; see also above, 576 n. 10. *2" See above, 610.

*2? On heavy amercements, see Sutherland, Novel Disseisin, 27.

614 PART III: ANGEVIN ENGLAND Novel disseisin was not just used for the retrieval of lands. Probably from its inception, it was employed, with only a slight modification in the form of writ, for a variety of nuisances, such as the raising or lowering of a bank or the raising of the level of a mill-pond, acts seen as amounting to disseisin.’* It could also be used regarding common rights of pasture.”** Probably by the early years

of Richard I’s reign it came to be used for disseisin of rents.” In 1209 we see novel disseisin being used in a case relating to a right of wreck.”*® The availability

of the process grew as the period within which the disseisin was classified as ‘novel’ increased. The first limitation of which we know was that laid down at Northampton in January 1176, extending back only to May 1175, the king’s last crossing to Normandy. A roughly similar limit applied to Glanvill’s writ, again extending back to the king’s last crossing. However, the period stretched thereafter, so that from June 1202 a limit of March 1201 continued to apply for the remainder of John’s reign.” Such extension was vital to the increasing predominance of novel disseisin in the thirteenth century.

Procedure Having described the emergence and the issues of the recognitions individually, their procedures can be considered collectively. Procedure does not seem to have varied according to whether the case was heard before the king, at Westminster, or at the eyre; the important notion was that of ‘the king’s court. Mort dancestor and novel disseisin were very common before both the eyre and the central courts. Darrein presentment cases were frequent in the central courts, not very prominent at the eyre. Although in 1215 Magna Carta darrein presentment was included among the recognitions to be heard by royal justices in every county four times a year, in 1217 it was omitted from the equivalent clause, and the Charter now specified that it was always to be taken and ended before the justices of the bench.”* As in actions concerning right, the plaintiff or agent had to go to get a writ to start the proceedings.” If a disseisin took place during a general eyre, the plaintiff *2° Glanvill, xiii. 34-6, ed. Hall, 168-9. See also e.g. PKJ, iv. nos 4071, 4138, 4295; J. S. Loengard, ‘The Assize of Nuisance: origins of an action at common law (1978) 37 CL] 144-66. *?* Glanvill, xiii. 37, ed. Hall, 169. For a case relating to rights in a wood, see Lawsuits, no. 606. *?° See Sutherland, Novel Disseisin, 50-2. *2° PKY, iv. no. 4344.

*27 See Sutherland, Novel Disseisin, 10, 55-7, 215-16. 728 See Flower, Introduction, 145-85; Lincs., 343 s.v. ‘Assize’; Sutherland, Novel Disseisin, 59-61;

Magna Carta 1215, 18, Magna Carta 1217, 13-15. Subsequent practice will be discussed by Professor Brand, in his volume in this series. *2° In this section for the sake of simplicity I use the term plaintiff to cover those bringing the various recognitions, and defendant to cover those answering, although in dealing with specific recognitions

23 PROCEDURE IN LAND CASES 615 might simply go to the itinerant justices to obtain a writ.¥° The plaintiff took the writ to the sheriff and in the county court provided surety to prosecute the claim. The writs were sealed closed and were ‘returnable, as described earlier.”” Next, recognitors were to be chosen, in the presence of both the plaintiff and the defendant, although the latter might be absent provided he had been sum-

moned to the selection at least once. In practice more than twelve might be chosen, in case of challenges or essoins.”* If he attended, the defendant could reject some of the chosen recognitors ‘out of a reasonable cause’, and have them excluded. Although Glanvill does not mention it, recognitors may have had to provide sureties that they would attend, particularly if they failed to appear on a first occasion.*® The sheriff had the names of the twelve chosen men endorsed on the writ. Once selected, the twelve were sent by the sheriff to make a view. Again the defendant was to have only one summons to be present. At the view, the plaintiff might indicate to the recognitors the subject of the dispute.” After the choosing of the recognitors, in most of the recognitions the sheriff arranged for the defendant to be summoned before the king or his justices on the day set by the writ, to hear the recognition.”® In novel disseisin, the process was reinforced: the alleged disseisor, failing whom his bailiff, was attached, that is had to give two sureties, that he would attend. Failure to attend would lead to both disseisor and sureties being amerced.”° Delays remained possible, as even in novel disseisin recognitors were allowed essoins.”” In all the recognitions except novel disseisin, if the plaintiff was of full age, the defendant was allowed two essoins, although not essoins de malo lecti.* In novel disseisin no essoin was allowed to the defendant, although some

tried, out of ignorance or hope.” When any essoins had been exhausted, the

these are better covered by more precise terms, e.g. the tenant in mort d’ancestor and the disseisor in novel disseisin. Such looseness of usage might be taken to parallel Glanvill’s willingness to use words such as appellatus in the context of land actions; see above, 576 n. 10.

*2° Sutherland, Novel Disseisin, 64-5; note also Northants., nos 422, 592. *2" See above, 516.

*22 See Glanvill, xiii. 7, ed. Hall, 152; Sutherland, Novel Disseisin, 65-6. *3 See e.g. RCR, i. 377-8. 734 See CRR, iv. 156; PKJ, i. no. 3525. *°°" Glanvill, xiii. 7, ed. Hall, 152.

*°° Glanvill, i. 31 (noting similar procedure in cases of breach of a fine made in king’s court), xiii. 33, 38, ed. Hall, 19, 167, 170; see below, ch. 27, on criminal procedure. *27 See e.g. RCR, ii. 19-20, PKY, iv. no. 4269.

*2° See Glanvill, xiii. 25, ed. Hall, 164; Lincs., no. 496. *°° See e.g. PKJ, i. no. 2004. The plaintiff might essoin himself in novel disseisin, but was unlikely

to desire sucha delay; Sutherland, Novel Disseisin, 66-7.

616 PART III: ANGEVIN ENGLAND assize was taken whether the defendant came or not.’4° Unexcused default by the plaintiff led to loss of the case."

When both parties or their attorneys, the recognitors, the summoners, and the sheriff with the writ, did appear before the justices, it remained possible that one side would give up their case or that a compromise be reached.” In most assizes, the defendant might vouch a warrantor, although Glanvill tells us that ‘it is uncertain whether a warrantor should be waited for, of whatever kind he is or for whatever reason he ought to be warrant thereto, especially if the warrant is vouched on this in court after two essoins.** It may therefore have been wise to have one’s warrantor present in court from the first, but plea rolls show warrantors being vouched and then coming, for example in mort dancestor.”** If the vouchee did not come to court, the assize appears simply to have proceeded. The defeated defendant then had an action against his defaulting warrantor, in order to obtain an exchange.” In novel disseisin, according to Glanvill, ‘not even a warrantor is to be waited for. He adds that if anyone acknowledges such a disseisin in court but vouches a warrant thereto, the recognition is not to proceed, and he who acknowledged this falls into the lord king’s mercy. And afterwards the warrantor shall be summoned, and there shall be a plea between him and the person who vouched him as warrant on this.”

When the plea went ahead, Glanvill makes no mention of a restatement of the plaintiff's claim. Rather, the justices asked the defendant whether he wished to

749 See e.g. Lincs., no. 496; PKJ, iv. nos 4051 (where it is specified that the disseisor could not be found; no mention is made of any bailiff), 4062, 4140. Note also PKJ, iv. no. 4251, involving default by

a warrantor. For the assize being taken in darrein presentment in the absence of one party, see e.g. CRR, iii. 9; however, note also CRR, i. 350, 399, where on the first occasion it may be that the absence of recognitors ensured that the absent party was allowed a second summons. Glanvill, xiii. 10, ed. Hall, 153, is worried about how the absence of a winning tenant could be punished. *™" See e.g. Lincs., no. 460, PKJ, iv. nos 4055, 4078; plaintiffs and any sureties were in mercy. *** See Glanvill, xiii. 11, ed. Hall, 154; e.g. Lincs., nos 37, 51, 172, 183, 410, 413, 423. For use of attorneys, see e.g. PKJ, iv. nos 4475, 4480, 4503, 4512, 4521. From 1227 alleged disseisors in novel dissei-

sin were prohibited from appearing through an attorney, although their bailiff could still appear; Sutherland, Novel Disseisin, 44-7. **° Glanvill, xiii. 30, ed. Hall, 166. *** See e.g. Lincs., no. 317; cf. Three Rolls, 5.

**° See Bailey, ‘Richard I’, 204-5, although note that the case evidence is thin. **° Glanvill, xiii. 38, ed. Hall, 169-70. See also Bailey, ‘Richard I’, 202. For later developments, see Sutherland, Novel Disseisin, 218-19. Note, though, an exceptional novel disseisin case, RCR, i. 153-4, where a termor is said to vouch his lessor as warrantor. The lessor came and warranted him, and said

that the assize should not proceed because the plaintiff was a villein. His argument was proved and the plaintiff lost because of his status, ending up in mercy fora false claim.

23 PROCEDURE IN LAND CASES 617 say anything whereby the assize should not proceed.” He was being invited to make exceptions, as he would not be able later to challenge the recognitors’ verdict on the factual questions posed in the writ. His response to the justices’ invitation was aimed at stopping the recognition, but might also be intended to bring the recognitors’ attention to particular points. Some of the exceptions were common to all of the assizes, for example concerning the wording of the writ or the absence of a husband who should be pleading alongside his wife.*4* Such exceptions did not decide the fundamental issue that would have gone to the recognition, and the plaintiff could return once the technical fault had been corrected, for example by obtaining a new writ. Exceptions were also used concerning issues such as whether the land concerned was villeinage or whether there had been prior proceedings before the king or his justices.**? Such exceptions, if successful, prevented renewal of the case. Further exceptions were possible, of which some were specific to particular assizes. In novel disseisin, a lord might say that he had disseised his man, but

that it was not unjustly or without judgment.*° This in turn could lead the plaintiff to claim that the distraint and subsequent loss of land had been unjust, because he should hold from another lord.” Or the defendant might plead that the plaintiff had given him the land.” In mort d’ancestor, it might be pointed out that the deceased had a closer heir,” that he had held only for life,** or that the plaintiff was illegitimate.” Or the defendant might say that he had received the land from the plaintiff, who had been seised after the death of the ancestor

*“” Glanvill, xiii. 11, ed. Hall, 153; see also e.g. Three Rolls, 68, for an early use of the formula ‘that

the assize ought not to be made concerning this’. Note Sutherland, Novel Disseisin, 68. **° See e.g. Lincs., no. 293, 320, CRR, iii. 345. For an exception being ineffective, see e.g. PKJ, iv. no. 4059.

** See Glanvill, xiii. 11, ed. Hall, 154-5; note also the exclusion of burgage land from mort d’ancestor mentioned by Glanvill later in the chapter. For the exclusion of termors from novel disseisin, see Sutherland, Novel Disseisin, 32-3; for mort d’ancestor not being available to one holding only for annual rent, see PK/, iii. no. 958. For prior proceedings, see e.g. CRR, i. 234; vi. 34-5.

*°° E.g. PK, iii. no. 951: the lord said that he had taken the land into hand for default of service and by judgment of his court, and he brought his court to warrant this; unfortunately the entry is unfinished. See Milsom, Legal Framework, 15-16, for court judgment being hidden by the blank verdict of a recognition that the tenant had not ‘thus’ disseised the plaintiff. *°" See e.g. RCR, i. 48.

*°? See e.g. Lincs., no. 36. For complicated pleading involving maritagium and divorce, see CRR, v. 250-1. *°3 See e.g. PKJ, iv. no. 4343 (grandsons in male line to be preferred to daughter); CRR, ii. 101, 198,

a case that may involve genuine doubt over the fate of a pilgrim. *°* See below, 629. *°°' Glanvill, xiii. 11, ed. Hall, 154, his exceptio bastardie; e.g. Lincs., no. 404, and note RCR, i. 56-7.

See also above, 600-1, on the exception that the parties were of common stock.

618 PART III: ANGEVIN ENGLAND concerned.*° A somewhat similar exception was common in darrein presentment. In order to be successful, the party had to demonstrate seisin of the advowson, that is that he had actually presented to the church. Yet the last presentment, unlike the most recent seisin of land, might well have been a considerable period before. This made particularly likely the exception that the advowson had been transferred since the last presentment.?*” Exceptions aimed to bring the recognition to an end. The case was then normally decided by another form of proof relating to the specific issue of the exception, although on a few occasions the justices made a decision on a point of law.** The party making the exception might support it with a document or documents. A charter might decide a case, but could also be challenged.’® A final concord of the king's court should be decisive.*°° Those making exceptions might also rely upon the ‘record’ of other courts to justify their pleading. Thus a lord might produce his court to show that he had disseised a tenant justly and by judgment, or vouch to warranty his court to support another exception. Again, the record of such a court might be decisive, but could be challenged, leading to the need for another type of proof." Further possibilities were that both parties had to produce kin, to show that an assize of mort dancestor should not proceed because the parties were related, or that the defendant should produce kin of the plaintiff to establish that he was a villein.*” Here again, the plaintiff could respond with contrary evidence and argument, raising the possibility of another form of proof.*® These situations could lead towards trial by battle as they raised issues of right,*** but more commonly exceptions led, by agreement of the parties, to trial by jury on the specified issue.*®

*°° Glanvill, xiii. 11, ed. Hall, 154. *°7 See Glanvill, xiii. 20, ed. Hall, 161-2; again Glanvill uses the word exceptio. For the complexities that Glanvill’s passage may conceal, see Tate, ‘Ownership, 310-11. Note also the argument that the last

presentment had been made as of wardship, not fee; Glanvill, xiii. 20-2, ed. Hall, 162-3. Fora series of exceptions made in the context of an assize utrum, see PK], iii. no. 808. *°8 On the possibility of the court deciding points of law, see Sutherland, Novel Disseisin, 71. Note also RCR, i. 48.

*°? See e.g. CRR, iv. 265-6; Northants., no. 638, where the witnesses of the charter were summoned to give a verdict. *°° See e.g. PKJ, iv. nos 4316, 4352; CRR, vii. 17-18. Note, however, CRR, iii. 126. 7°! See e.g. Lawsuits, no. 650; Three Rolls, 40; PKJ, iii. no. 932, iv. no. 4250; Lincs., no. 251 (where the

summoned court did not provide the desired testimony); Sutherland, Novel Disseisin, 214; Milsom, Legal Framework, 13-14. *°? See e.g. CRR, iii. 140; Lincs., no. 423; note also PKJ, iv no. 4072. *°° See e.g. CRR, i. 187.

*°* See Glanvill, xiii. 11, ed. Hall, 154; also e.g. CRR, i. 156; Lincs., no. 1384; Northants., no. 809. *°° See e.g. PKY, iii. no. 943, iv. nos 4098, 4233. Note also Lincs., no. 405, where a factual point made

by the defendant in mort d’ancestor was testified to by all sitting there. She went without day, and the demandant was told to obtain another writ, if she wished. See also Pollock and Maitland, ii. 617-18, on the recognitors being used as the jury.

23 PROCEDURE IN LAND CASES 619 If no exception stopped the recognition, and if there were no further objections to specific recognitors,*® the recognition proceeded.”” The recognitors deliberated and may well have received guidance from the justices through precise questioning on specific points. The recognitors then gave their verdict, which might be presented in general terms or on a specific point, for example in mort d’ancestor that the dead man had not held in fee. Mention of a specific point may reflect questioning by the justices.”®

In line with the verdict, judgment was then given. Thus in mort d’ancestor, the judgment would be that the winning party have or remain in seisin. If the plaintiff won, a writ was issued to the sheriff, ordering that he make the plaintiff have seisin without delay. In addition the plaintiff was to recover seisin of all chattels and movable goods that were found on the fee at the time of making seisin.?© In novel disseisin, from the late 1190s restoration of chattels and fruits came to be replaced by the assessing of damages.” The desirability of damages may have increased with the lengthening of the period covered by novel disseisin, which meant that ‘fruits’ might have perished, been consumed, or sold. A person who was found to have committed disseisin was amerced, commonly for an amount up to £1 but on occasion heavily.””" Defeated tenants in mort d’ancestor were amerced for unjust detention,”” and defeated plaintiffs for bringing false claims.””

*°° Note e.g. CRR, ii. 122; Bracton, fo. 185, ed. Thorne, iii. 71. *°7 Glanvill, xiii. 11, ed. Hall, 155-6. For their oath, see Bracton, fo. 185, ed. Thorne, iii. 72. Glanvill

does not discuss whether a verdict in a recognition needed to be shared by all twelve recognitors. In Lincs., no. 392, a dissenting recognitor in a mort d’ancestor case was amerced; the case ended with an agreement, so we cannot tell whether the court would have accepted a majority verdict. Ifa large number of recognitors said that they did not know the truth, a new jury might be needed; note e.g. CRR, iii. 174, 247, 279,

*°® See also Sutherland, Novel Disseisin, 73-4, citing evidence from the 1220s onwards. For jurors giving a verdict, but including a qualification (that ‘they heard it said that [the heirs involved in the claim] were born before their mother was married’), see PKJ, iv. no. 4143. It may well be that some verdicts made and perhaps presented in terms of a specific point were simply recorded in the plea rolls in general terms. 7°? See Glanvill, xiii. 7-9, ed. Hall, 152-3. *7° See G. E. Woodbine, “The origins of the action of trespass’ (1924) 33 Yale LJ 799-816, at 806-7;

Flower, Introduction, 473-9; Sutherland, Novel Disseisin, 52-4. For the earlier procedure, see Glanvill, xiii. 38-9, ed. Hall, 170. Note also Lawsuits, no. 363, for calculation of damages in Henry IT’s first years. *7" See e.g. CRR, ii. 133, 141, 145; Lincs., nos 1510-23.

*72 See e.g. PKY, iii. nos 10, 766, 810, 856, iv. nos 4100, 4159-60, 4231, 4251, 4365, 4374; Assizes of

Northampton, 4. It is difficult to tell whether amercement for unjust detention was standard, or whether there was some principle determining the cases in which it was applied. *73' See e.g. Lincs., nos 42, 123, 155, 193.

620 PART III: ANGEVIN ENGLAND Writs of entry Towards the end of the Angevin period emerged writs that focused on particular flaws in the grounds upon which the tenant had entry to seisin of a tenement.” The writ of entry sur disseisin supplemented novel disseisin. Take the following situation: a plaintiff brought novel disseisin, but the alleged disseisor died before the assize was completed. Novel disseisin was only available against the disseisor. The writ of entry sur disseisin allowed the disseised to bring an action against the disseisor’s immediate successor. An apparently chance entry on the Close Rolls for 1204 informs us that henceforth the writ of entry sur disseisin should be issued de cursu, that is routinely and for a low charge.” Most other writs of entry focused on a previous alienation that should have ended or that had some defect.’ Thus the only writ of entry for which a clear precursor appears in Glanvill concerns land gaged for a term that had now passed.” Other writs of entry that had appeared by 1215 were directed against alienees who had received lands from guardians of minors, or from husbands out of lands that should have passed to their widows as dower. Such writs arose to answer the type of questions sometimes posed to juries dealing with special issues in actions concerning right, whilst similar issues could arise in cases brought by mort dancestor and novel disseisin.””*®

Actions involving writs of entry show some emphasis on speed, for example with the essoin de malo lecti not being available.’”? Also like the recognitions discussed above, writs of entry were always treated in the king’s courts. Their later development may have been hastened by Magna Carta’s prohibition of the much less specific precipe quod reddat, and certainly Henry III's reign would see

*7* On writs of entry, see also Pollock and Maitland, ii. 62-75; Milsom, Legal Framework, 93-102; P. A. Brand, Kings, Barons, and Justices: the Making and Enforcement of Legislation in ThirteenthCentury England (Cambridge, 2003), 151-4; J. Biancalana, “The origin and early history of the writs of entry (2007) 25 LHR 513-56. *?° Rot. lit. claus, i. 32b; G. D. G. Hall, “The early history of entry sur dissesisin’ (1968) 42 Tulane LR 584-602; see above, 582, on writs ‘of course’. *7° See e.g. RCR, i. 341, ii. 37, 85; Milsom, ‘Grand assize’, 171-2; note also Lincs., lxxi-ii, Early Registers of Writs, xlii-iii, Hib. 25, 26. *77' Glanvill, x. 9, ed. Hall, 125; note that this is within the part of his treatise that Glanvill catego-

rised as dealing with actions concerning right rather than seisins. For a more developed version of the writ, see Early Registers of Writs, Hib. 25; note also PKJ, i. nos 3487, 3506, 3538. *78 Milsom, Legal Framework, 96, 99-102, ‘Grand assize’, 174; Biancalana, ‘Writs of entry’, 519-28,

and e.g. CRR, ii. 219, 220, for issues in mort d’ancestor. Note also Lady Stenton’s comments in her introduction to PR6J, xxx-xxxi, on writs precipe and writs of entry. *” This was certainly said to be the case by 1220; CRR, ix. 143.

23 PROCEDURE IN LAND CASES 621 a very significant increase in their importance beyond their limited variety and use in our period.”*°

5 ENFORCEMENT AND SETTLEMENTS Judgment might need further clarification. It might have to be decided, for example by reassembling the recognitors, whether the lands recovered precisely matched those placed in view of the recognitors.** In addition, judgments

were reinforced in various ways. Ceremonies to mark the ends of disputes were still employed; clear evidence exists outside royal courts,” while inside royal courts similar ceremonies may have occurred without being recorded on plea rolls. Other, partly ceremonial, methods of reinforcing judgments, in or outside royal courts, included the destruction of the writ used to bring the case, or its handing over to the victorious party or to the sheriff or royal justice depending on the court and authorities involved. Thus Albold Pulcin produced a document admitting that he had unjustly moved a claim against the church of Bury St Edmunds concerning land in which he had no right. He went to the court of St Edmund, and publicly confessed that he had had no right therein. In the abbot’s presence, he pledged his faith in the hand of Henry the abbot’s brother that he and his heirs would never again move a claim against the church or abbots concerning the land or its appurtenances. Because of this the abbot gave him 8m. and Albold gave to him the king’s writ by which he had unjustly impleaded the abbot.” Judgment in the king’s courts was also reinforced by recording on plea rolls, and we hear of orders being given to search earlier rolls, as well as to find feet of fines in the treasury.”**4

Difficulty in enforcing judgments, and concern that disputes might re-emerge,

was one reason why compromise settlements continued to be frequent, in royal as well as other courts.** Thus a considerable majority of cases before the Lincolnshire eyre of 1202 in which the tenant placed himself on the grand assize ended in compromise, not judgment.’*° A smaller proportion of novel disseisin

78° See above, 559-60, below, 851; Holt, Magna Carta, 139. For questioning of the link with Magna Carta, see Brand, Kings, Barons, and Justices, 154. Professor Brand will treat writs of entry much more extensively in his volume in this series. *8! PKYJ, i. no. 3525.

*8? E.g. Lawsuits, no. 467, the leaving of marks on mill-locks and a fulling mill. *8°" Lawsuits, no. 519; see also e.g. Lawsuits, nos 525, 616; ‘Burton Chartulary’, 48-9. *8* See CRR, i. 208; note also Brand, ‘“Multis vigiliis” ’, 95-6. *8° Note e.g. Lawsuits, nos 385, 453. *8° Lincs., nos 22, 76, 82, 117, 133-4, 139, 145, 148, 157, 186, 196; cf. nos 61, 188, for judgments.

622 PART III: ANGEVIN ENGLAND cases before the same eyre were settled by compromise, but there were a few instances where the parties were granted licence to agree,”*” and others where the plaintiff chose not to proceed, perhaps suggesting an unrecorded settlement.”**

6 REOPENING CASES We have already considered transfer of pleas from one court to another.”*? What of the possibility of reopening a dispute following judgment in the king’s court?

Glanvill in his treatment of recognitions allowed losing parties to turn to the question of right by obtaining a writ de recto.°° An unusually full plea roll entry deals with a case between two men, Nicholas and Herbert, concerning which of them should hold a house from the earl of Leicester.””" Within the record of pleading we hear that Herbert, after the view of the land and after his essoin, answered that he was not bound to answer Nicholas concerning this, since he had obtained that land against that Nicholas through judgment in the lord king’s court. Nicholas answered that he had only recovered seisin through writ of novel disseisin, and so he was no less bound to answer him concerning right [jure].

Although earlier writs had sometimes ordered reseisin whilst allowing the pos-

sibility of further claims,” the formulation in terms of seisin and right, and the routinisation of the process, were the product of the Angevin period.’® The development was helped by the partial absorption of the learned law distinction between possession and property, and it is significant that one of the first clear expression of the notion of such dual process regarding seisin and right

comes in a charter of Theobald, archbishop of Canterbury; the canons of St Paul’s London, were released from a claim of seisin [a petitione seisine], ‘saving,

*87 Lincs., nos 37, 84, 183, 423. “8° Lincs., nos 24, 34, 93, 311, 371.

78° See above, 569-73.

*°° See e.g. Glanvill, xiii. 9, ed. Hall, 153. Glanvill provided no answer for his own question as to how long after restitution this might be done. *°" CRR, vi. 290-2. Note also below, 635 n. 49, on recovery of gavelkind tenements that had been lost through default. See e.g. PK/, iii. no. 822, for a party who had had to give up an action of mort d’ancestor being allowed the possibility of seeking a writ of right. *°? See e.g. Royal Writs, nos 52-61. *°° See e.g. Lawsuits, no. 641 (p. 679), Rot. de ob. et fin., 48-9. See also CRR, iii. 216, for parties in a darrein presentment case in effect choosing to short-circuit dual process following an indecisive verdict by the recognitors. The parties agreed to place themselves on twelve lawful men ‘both concerning seisin and concerning right [recto]’

23 PROCEDURE IN LAND CASES 623 however, the question of right [salva tamen questione juris]’, if the claimant believed that it should be raised. In royal circles, ideas of dual process may have been sharpened by the invention of darrein presentment, very deliberately a quick measure to deal with an immediate problem whilst leaving open the issue of right.”9°

Other methods of reopening a dispute were concerned with the process whereby an earlier decision had been made. One was to obtain a writ summoning the recognitors to appear and answer to the justices concerning their oath.*° Here the process might concern a variety of problems with the verdict, rather

than necessarily the issue of perjury. However, a common concern was the honesty of the oath of those sworn to bring verdicts.” The method for dealing with dishonest recognitors was formalised early in John’s reign as the process of attaint. In return for a payment, quite often a considerable one, the losing party obtained the selection of a jury of twenty-four, who were to give their verdict on whether the recognitors had sworn a false oath.’ If this was their finding, the party bringing the action of attaint was adjudged to have won on the original issue.”°? The record of a case of 1204 tells us that the false recognitors were to be arrested, their lands and chattels seized into the king’s hand, their chattels sold, through the oath of lawful men, and then the proceeds brought by the sheriff at the Easter Exchequer-°°

*°* Lawsuits, no. 393. On seisin and right, possession and property, see below, 670-6. Note also Sutherland, Novel Disseisin, 39-40, who suggests possible influence of Roman law interdicts on the development of dual process. *°° Note Glanvill, xiii. 20, ed. Hall, 161; see above, 618, on the particular problem of seisin of advowsons. *° See e.g. Northants., no. 508; CRR, iii. 97-8. Note Early Registers of Writs, CC 175a; Sutherland, Novel Disseisin, 74-5. The developed process would be known as certification; see e.g. Bracton, fo. 289, Thorne, iii. 338-9. *°7 See esp. Lawsuits, no. 568. *°8 See above, 525; e.g. CRR, ii. 97-8, 113, 236; Select Cases of Procedure without Writ, lxxxvii-viii.

See PK, iii. no. 147, for four knights being responsible for the election of the twenty-four. Glanvill

does not discuss attaint, although at ii. 19, ed. Hall, 35-6, he does deal with the penalty for those who swore rashly in the grand assize. Cf. Early Registers of Writs, Hib. 22. On proffers for juries of twenty-four, see e.g. Lincs., no. 120; CRR, iv. 230; 1m. to 3m. seem to have been common proffers, although CRR, iii. 129, mentions one palfrey or 5m. *°° See e.g. PK], iii. no. 909.

°°° CRR, iii. 98; see e.g. CRR, iii. 134-5, for the attainted jury being imprisoned and their chattels seized into the king’s hand. Pollock and Maitland, ii. 542, suggests that some attainted jurors were less severely penalized.

624 PART III: ANGEVIN ENGLAND 7 CHANGE AND CONTINUITY Administrative developments and the attitudes of royal justices meant that royal courts differed in crucial ways from other courts: whereas the latter sat for short periods and may have dealt with only a few cases in a session, royal courts sat for longer periods, hearing numerous cases and in particular an immense amount of routine business, notably essoins and appointment of attorneys. It may well be that the king’s justices, as outsiders, treated these and some other matters in a more standardised fashion, paying less attention to particular repute or circumstance. Significant here is a 1204 case heard in the county court of Somerset. When one party made the point that he and his father and brothers were natives and gentlemen of the county [patria], the sheriff, Alan of Whiton or Wihton, replied that he well knew their gentle status, but he could not desist but rather had to follow the order of the justices according to the form of the writ of the justices, which had been read in the county court. The party repeated his point, and said that the sheriff was an incomer. This seems to have annoyed the sheriff, who responded that he was from elsewhere and there he was of the same status as they were in their own county2” Here we have a royal ofhicial—in this case a sheriff from outside the county—ruling out local considerations as irrelevant, and a similar attitude is displayed in Glanvill’s statement that ‘the court of the lord king is not accustomed to protect private agreements 3” The influence of royal justices was further extended if they came to make

judgments themselves rather than simply presiding over courts that were responsible as a whole for giving judgment. The evidence for the precise role of justices, both earlier in the twelfth century and in the Angevin period, is rarely explicit. However, that final concords came to mention only royal justices by name may be significant.2 Such a shift to justices making judgments was presumably prompted by a desire for greater royal control, but the process may also have been related to the use of recognitions. These provided, sometimes under the guidance of the justices, the type of information and basis for judgment that previously had been, and in other courts still was, given largely by the suitors. In this sense the effect of the change in the justices’ role may have been limited, as they were reliant on the

verdict to form their judgment. Yet if statement of fact was to remain a matter for local people, such separation of duties may have encouraged active intervention

°°" CRR, iii. 129-30. For Alan as sheriff, see PR3J, 23, PR4J, 84, PR5J, 150, PR6J, 175. PR4J, 185, may

be connected to the present case. °°? See Glanvill, x. 8, 18, ed. Hall, 124, 132; see also below, 692.

°° Brand, ‘“Multis vigiliis” ’, 82-5; Hudson, Land, Law, and Lordship, 266 n. 47, for difficulties of evidence.

23 PROCEDURE IN LAND CASES 625 and decision-making by justices in crucial aspects of court proceedings. Division of responsibility might be explicitly stated. In the record of a case before the eyre in 1204 the recognitors promised, before they gave their verdict, that ‘they shall say the truth of the matter concerning this, and having heard the truth of the matter, the justices shall give judgment.”

Royal justices also brought their legal learning to the courts, and may have encouraged some tendency to greater technicality in proceedings. In the design of the recognitions and in the pleading of exceptions and consequent use of juries, we see a desire to focus on one point of fact or occasionally one point of law. There are also suggestions of greater strictness in the technical reading of documents.3® Such attitudes and developments may have increased the need of legal expertise on the part of litigants and their advisers and attorneys.

The control exercised by royal courts, the possibility of transfer of difficult cases and of successful complaints of default of justice or false judgment, probably rendered procedure in other courts somewhat more rigid and standardised. However, elements of flexibility in procedure in non-royal courts remain obvious, both in Glanvill and in records of pleas.*°° Thus Glanvill states that in a court other than the king’s, ‘if anyone says something of which he later repents, he can deny it against the whole court with an oath affirming that he did not say it, three-handed or with more or with fewer according to the custom of different courts.°°” A case in the king’s court in 1211 informs us that at an earlier stage in the dispute in the court of St Maryss, York, a claimant had been given a day to deraign her maritagium with twelve men, and the other party was to deny it with thirtysix, ‘as is the custom [mos] in the court.*°* Potential royal supervision at litigants

request did not lead to complete uniformity” There are further signs of continuity of procedure in the non-royal courts where most people came into contact with judicial proceedings. For example, we have seen that the royal court did not use distraint by chattels as a means of securing appearance in land cases.”° It seems that in other courts, the old pattern of multiple summons, distress, and essoin continued to be applied, 304 PKI, iii. no. 1002.

°°° See above, 595-6, on warranty, where the argument for strict reading seems to have come from the warrantor, not the justices. *°° Note that cases of false judgment might still be decided by battle rather than by argument concerning law or fact, possibly reducing the pressure for standardisation; Glanvill, viii. 9, ed. Hall, 101. °°” Glanvill, viii. 9, ed. Hall, 100. See also above, 588, on county custom concerning essoins. °°° CRR, vi. 118.

°°? Note also e.g. Lawsuits, no. 643, for parties coming up with their own, ad hoc, settlement methods. Note also extra-legal considerations affecting decisions in seignorial courts; e.g. Jocelin, Chronicle, ed. Butler, 44-5. In general, see above, ch. 1. *"° See above, 585.

626 PART III: ANGEVIN ENGLAND perhaps even with greater rigidity and standardisation because of the possibility of royal intervention’” Meanwhile, in matters concerning tenements that were not classified as free, other courts could continue to function without the possibility of successful appeal to royal intervention, for the royal actions were limited to free tenements.

Finally, having emphasised the routine element within royal justice, it is important to note continuing elements of flexibility even in the royal courts. The king or his justices were prepared to set in motion non-routine procedures, to bend norms, or to allow unusual settlement processes, especially in return for payment. In particular, tenants-in-chief, or tenants of honours that were temporarily in the king’s hand, were in an anomalous position compared with sub-tenants; there was no superior to whom to look if the king failed to do justice.3” The king could not be forced to take up a case as warrantor.*3 Writs could not be addressed to the king, so would-be tenants-in-chief could not use the writ de recto in claiming lands from him, and there were also difficulties with novel disseisin and mort dancestor. When tenants-in-chief did obtain the latter writs, they were expensive and did not produce the normal proceedings.’ Tenants-in-chief could use writs precipe, and the writ precipe in capite specially tailored for tenants-in-chief existed by the last years of John’s reign. However, proceedings arising from such a writ again tended to be tortuous, ad hoc, and expensive.** The political effect of the anomalous position of the tenant-in-chief will be clear when we consider Magna Carta in the final chapter; it is also very apparent as we shift our focus to substantive aspects of land law.

*" See below, 638, for information from novel disseisin cases in 1204; also e.g. Lincs., no. 1384; Northants., no. 809; CRR, i. 59. *"* See also in general J. E. A. Jolliffe, Angevin Kingship (London, 1955).

*** See Holt, Magna Carta, 161-2. Promises that the king and his heirs shall warrant are rare in royal charters; CRR, iv. 270, preserves an exceptional example from the first years of Henry II. For the king warranting, note Lawsuits, no. 641 (esp. p. 683); for a party saying that he ought to have the king as warrant, see CRR, i. 463; for the king being vouched to warrant, see e.g. PKJ, i. no. 3180 (where it is specified that the king is holding the honour of Gloucester, perhaps suggesting the making of a significant distinction from simply vouching the king), RCR, ii. 77-8; CRR, i. 122; iii. 166. For waiving norms, see e.g. PR22HII, 184, a debt of 20m. for recognition of a knight’s fee from the time of King Stephen, apparently over-riding the norm of pleading going back to tenure in the time of Henry I. *™* See Holt, Magna Carta, esp. 82-3, 90-1, 106, 128-39; also 140-1 for a writ de recto from the king

to the sheriff, concerning land claimed to be held from the king. **° See Holt, Magna Carta, 143-7, 150-4, 173-4; D. A. Carpenter, ‘Justice and jurisdiction under King John and King Henry III’, in his The Reign of Henry II (London, 1996), 17-43, at 21-2; Early Registers of Writs, Hib. 4; on the dating of this Register, above, 526, below, 864.

24

Land r \HE core procedures described in the last chapter were designed to enforce landholding customs that derived from the Anglo-Norman period. As we have seen, those customs gave considerable strength to the position of the holder of a free tenement, particularly to those whom charters describe as holding ‘in fee and inheritance’ or ‘in fee farm’. The Angevin procedures changed the legal nature of the tenant’s position by establishing rights routinely protected in the

royal courts. Linked to these developments came increasing technicality and abstraction, greater definition and precision. These processes often reinforced customary norms but also created situations in which legal rules were distanced from social expectations.

1 THE COCKFIELD CASE A case from Bury St Edmunds highlights many of these developments, as well as illuminating matters of court procedure and family law.’ The chronicler Jocelin of Brakelond tells us of events at the start of the 1190s, following the death of the abbey's tenant, Robert of Cockfield. [Robert’s] son Adam came and with him his kinsmen, Earl R[oger] Bigod, and many other powerful men, soliciting the abbot concerning Adam’s holdings, and especially concerning the half hundred of Cosford to be held for an annual rent of 100s., as if [tanquam] it were his hereditary right.’

They added that his father and grandfather had held it for the last eighty years and more. The abbot, Samson, responded by word and gesture; ‘he put his two fingers to his two eyes and said “may I lose these eyes on the day and at the hour on which * Again this chapter concentrates primarily on the period of Glanvill and the early plea rolls. For dower, maritagium, and curtesy, see below, ch. 29.

* Lawsuits, no. 627. Robert had been custodian of the abbey during a vacancy; see Jocelin, Chronicle, ed. Butler, 8, 10. For Adam having succeeded by Michaelmas 1190, see PR2RI, 101. For Cockfield before 1066, see above, 133.

628 PART III: ANGEVIN ENGLAND I grant the hundred to anyone to be held hereditarily, unless the king, who can take from me the abbacy and life, forces me to do it” . If someone held the hundred hereditarily, and he wronged the king in such a way that he should be disinherited, the sheriff of Suffolk and the king’s bailiffs would seize the hundred and exercise their power within the abbey's boundaries; if they had custody of the hundred, the liberty of Bury’s eight and a half hundreds would be endangered. Speaking directly to Adam, he added that if the latter married a free woman who held even an acre or more from the king in chief and then died leaving a minor as heir, the king would take his entire holding and the custody of his son, and so again the king's bailiffs would enter Bury'’s hundred, to the prejudice of the abbot. Besides such hypotheticals, possibly constructed by the chronicler from his knowledge of later events, the

abbot stated that Robert had acknowledged that he claimed no hereditary right concerning the hundred, but held only for life. The abbot refused to be bribed, and eventually an agreement was reached. Adam gave up his claim to the half hundred of Cosford, and the abbot confirmed to him all his other lands; Semer and Groton he was to hold for life, but no mention was made of Cockfield and nor was Adam believed to have a charter concerning that estate. A document recording the agreement concerning Groton and Semer survives; the oaths that Adam swore, and the very writing of the document, display the abbey’s concern that Adam might seek to escape the agreed terms.’ We also have a final concord made in the king’s court at Westminster in November 1191: it records that Adam had brought an action of

mort dancestor against the abbot concerning the half hundred of Cosford, and that in return for Adams quitclaim of the half hundred, the abbot granted him and his heirs hereditarily certain socage lands in Cosford hundred. The final concord thus reveals litigation hidden by Jocelin.

The case reopened towards the end of the decade, when Adam died, leaving a three-month-old daughter’ According to Jocelin, the abbot gave wardship of her fee as he wished, although we are not told to whom. However, King Richard repeatedly demanded the wardship and the girl for a member of his household [familiaris]. The abbot replied that he had given the wardship and confirmed the gift by his charter. He sought to mollify the king through entreaty and gifts, but, the chronicle says, the king only refrained from vengeance out of fear and reverence of St Edmund. Eventually gifts including hounds—demanded by the king—and horses won back royal friendship. Respite was only temporary, perhaps because of the death of Richard and the succession of King John in 1199. At some point the girl’s grandfather had stolen

> Kalendar of Abbot Samson, no. 90. * Feet of Fines, Henry II and Richard I, no. 11; see also Kalendar of Abbot Samson, 71-2. > Jocelin, Chronicle, ed. Butler, 97-9.

24 LAND 629 her away, and the abbot could only have seisin of her through the help of Hubert Walter, archbishop of Canterbury.° He therefore granted Hubert the wardship for £100. Hubert then granted it to Thomas de Burgh, brother of the king’s chamberlain, for 500m., a sizeable profit of 350m/ The girl was given to Thomas, with her rights, by the abbot’s hand. Thomas immediately sought seisin of Cockfield, Semer, and Groton. The abbey had had these in its hands after the death of Adam, believing that it could keep in demesne all three, or at least Semer and Groton, because of Robert’s deathbed admission that he could claim nothing in them by hereditary right, and Adam’s acceptance, made in full court and recorded in a charter, that he held them only for life, by grace of the convent.*

Thomas turned to royal justice and obtained a writ ordering a recognition.’ Knights were summoned to Tewkesbury, to swear before the king. Jocelin states that the abbey’s charter was read out there, but had no force because the whole court was against the abbey. Having taken their oath, the knights said that they knew nothing of the abbey’s charters or concerning private agreements, but that

they believed that Adam, his father, and his grandfather had held the manors in fee farm for the past hundred years, one after another, on the days they were alive and dead. The abbey was therefore disseised, except for payment of the old annual farms, that is the fixed sum paid as rent. An account of this stage of the dispute also appears in the curia regis roll for 1201.’° An assize of mort d’ancestor was to recognise whether Adam was seised in demesne as of fee farm of the three manors on the day he died, and if his daughter Margaret was his closest heir. The abbot responded that the assize should not go ahead concerning Semer and Groton, because Robert had held only for life, and

had recognised this in his lifetime and at his death. The abbot and monks had granted the manors to Adam only for life, and produced the chirograph concerning this. As for Cockfield, the abbot said that Robert at his death had stated that the manor was, so he thought, his right and his inheritance. It was decided that ° Jocelin, Chronicle, ed. Butler, 123. This must have been her maternal grandfather. His action may indicate a continuing desire for family wardship. ” Thomas may have been willing to pay more than the 300m. at which the abbot had estimated the worth of the wardship of the heiress because the archbishop had led him to assume that she had unchallengeable hereditary right to Cockfield, Semer, and Groton, whereas the abbot’s figure was based on a more restricted view of her landed rights. The abbot’s willingness to accept only £100, i.e. 150m. or 50% of his estimate of the value, from the archbishop may have been a reasonable choice given his need to gain possession of the wardship. * Note also Jocelin, Chronicle, ed. Butler, 138-9, a document perhaps produced at the abbey in the context of the dispute in the king’s court in 1201. > Jocelin, Chronicle, 123-4. *° CRR, i. 430. The words ‘but they know well that’ were an insertion in the record, an unusual addition to the normal ‘they believe’. See also J. C. Holt, “Feudal society and the family in early medieval England, II: notions of patrimony’, in his Colonial England, 197-221, at 197-202.

630 PART III: ANGEVIN ENGLAND the assize should proceed concerning Semer and Groton, and Margaret have her seisin of Cockfield. The jurors said that Adam father of Robert had held the two manors for a long time well and in peace, and had died holding them, Robert had held for all his life, and Adam father of Margaret had held in the same way right up to his death. But they knew well, and because of the long tenure they believed, that Adam died seised as of fee farm. They also said that Margaret was his closest heir. It was therefore adjudged that she was to have her seisin thereof, and the abbot was in mercy. This lengthy account of the case illuminates many points that will appear in this chapter. The chronicle provides a useful reminder that royal records have their own limitations; but for the existence of Jocelin we would know nothing of the proceedings in the honorial court, nor of the concern that the royal court was biased, nor of the role of Thomas de Burgh.” The case reveals substantive norms, for example regarding the practice of prerogative wardship should any land be held in chief of the king.” It also shows pressure towards heritability of land, the lay jurors associating long tenure with heritability, despite the arguments and charters of the church." It emphasises the way in which royal remedies meant that decisions of the honorial court could be overturned. At the same time, the case reveals continuities in methods of pursuing and deciding disputes, such as the abbot’s use of dramatic gesture in the initial dispute, the importance of favour, the lack of decisive weight given to written evidence. Underlying the whole dispute were the economic circumstances of the late twelfth century, where rising prices made lords particularly keen to ensure that levels of rents should not be fossilised by leases becoming hereditary.”

2 LANDHOLDING AND LORDSHIP The diminution of the seignorial element in landholding will be assessed later in this chapter, but the continuing role of lordship must be remembered amidst the plentiful new evidence of the plea rolls with their concentration on royal courts

' Cf. Jocelin’s omission of the action of mort d’ancestor relating to the half hundred of Cosford, above, 628. ** See below, 807-8. ‘* For Bury’s views of charters and heritability, see esp. Jocelin, Chronicle, ed. Butler, 138-9. Note

also CRR, iv. 34, a case of 1205 where jurors stated their belief that, because a gift of Henry II was made to a man for his homage and service, it was given to him and his heirs. * Note the increase of rent for Semer at the succession of Robert of Cockfield; Jocelin, Chronicle, ed. Butler, 138.

24 LAND 631 and amidst historians’ emphasis on royal justice. Charters mention homage for land more frequently than in the earlier twelfth century.’® Glanvill tells us that homages were done ‘concerning lands and free tenements, concerning services, and concerning precise fixed rents in money or in other things... [But] homage ought not always to be done concerning all lands’, not concerning dower, fee given in frankalmoign, nor by the husband of a woman to whom a tenement is given as a marriage-portion [in maritagium].” Women, presumably including widows, were not to do homage, although they might swear fealty; presumably, therefore, the widow held her inheritance without having done homage.”* In addition, homage was not done for villeinage tenements.” Lordship and homage were closely connected to the services owed from the tenement, and also to the incidents relating to landholding. Jocelin of Brakelond wrote that ‘every lord of a fee to whom there may be homage, ought by right to have escheat, when it arises in the fee concerning which he has received homage; and for a similar reason, the general aid of burgesses and guardianships of boys, and gifts of widows and girls in those fees concerning which he has received homage.”°

Likewise, lordship was central to many disputes over land. Hearings in land cases very often started in lords’ courts, and in some instances might end there.” Cases might also arise from men denying that they held the relevant lands from the aspiring lord. This might result from real doubt as to lordship, or from tenants seeking to escape a weak lord, or from overlord and alleged sub-tenant seeking a direct relationship.” It may be that lords felt that they should be able simply to seize back the tenement, but evidence does not reveal this as common practice. Rather lords sought judgment in their courts, presumably to confirm that they truly were lords of the tenement concerned. Lords also turned to the king, perhaps *° See also e.g. below, 657-9, on seignorial consent to alienation. ‘© For charters stating that a lord had received homage for the specified lands, see e.g. Mowbray, nos 340, 364, 367, 389; see also e.g. Lawsuits, nos 364, 397, 515, 543. Note further Lawsuits, no. 420A

(p. 424), where Becket demanded that the earl of Clare do homage him for the castle of Tonbridge and all the territory of the castle; the earl offered to do homage, but refused to specify for what. A lessor might take fealty rather than homage; Kaye, Conveyances, 248, 269. For the later situation concerning socage, see Kaye, Conveyances, 298. '” Glanvill, ix.2, ed. Hall, 106; see also vii. 18, ed. Hall, 93. The same passage specifies that homage

was not done until the third heir concerning frankmarriage or the fee of younger sisters who had held from the first-born. *S Glanvill, ix. 1, ed. Hall, 103. *” See below, 755-6. *® Lawsuits, no. 662; see below, ch. 29.

*" See above, chs 22, 23; also 557, on the honorial court, and the writ of right and the writ rule. See also e.g. Lawsuits, no. 652; Lincs., no. 326; and generally Milsom, Legal Framework, e.g. 51. *? Note CRR, v. 77-9.

632 PART III: ANGEVIN ENGLAND because they needed reinforcement against a powerful tenant, but also by the late twelfth century because of the logic of jurisdiction: a man in possession but disclaiming tenure would also be denying any obligation to answer in the lord’s court concerning the lands, and the aspiring lord might need a royal writ to compel him to answer concerning the free tenement. This might be an order that the man do him homage and service, or a writ of right to the plaintiff's own lord.”

3 TYPES OF LAY FREE TENURE Glanvill mentions various types of free landholding, notably knight's fee [feodum militare|, socage, burgage, and serjeanty. He points out differences particularly in the context of inheritance patterns, the age of majority, wardship, and relief, but not regarding other aspects of heritability, or security of tenure, or alienability.” Other evidence may suggest that Glanvill presented a relatively simple classification that sufficed for his purposes; donors and donees may have thought in terms of a greater variety of types of landholding because of their focus on the nature of services and the duration of tenure.” Free tenements were contrasted with unfree, villeinage tenements. Also distinguished from free tenements were certain other limited forms of control of land, for example wardships and leases for terms of years.*® The contrasts were manifest in terms of duration of holding, ability to alienate, capacity certainly to expend or consume and perhaps to develop resources, and protection in the king’s courts.”

Knight service and barony In the Angevin period, much landholding, be it from the king or from other lords, continued to be by knight service, most commonly performed through

*° Note Hudson, Land, Law, and Lordship, 22-8; Milsom, Legal Framework, 44; above, 557, on the requirement for a writ. ** See Glanvill, vii. 3, 9-11, ix. 4, xiii. 11, ed. Hall, 75, 82, 84, 108, 155; also below, 667-70, for ecclesiastical landholding, ch. 30 for burgage. *° See e.g. below, 634, on fee farm.

*° On leases for life or lives being free tenements, see below, 662-3, and e.g. Kaye, Conveyances, 248,

*” On expending resources, see below, 638-9, and esp. Magna Carta, 4, on the limitations applying to wardship. Note, though, that tenants for life, whilst treated as having a free tenement, might face actions for waste; Kaye, Conveyances, 265. For developing resources, note the dispute over a man claiming the right to build a windmill on his ‘free fee’ recorded in Jocelin, Chronicle, ed. Butler, 59-60. Note also McKechnie, Magna Carta, 425-6, on the limitations placed on exploitation of free tenements in royal Forest. On protection in the king’s court, see above, ch. 24.

24 LAND 633 scutage, a monetary payment per knight’s fee in lieu of service.** Some references to holding in baronia occur, but did this constitute a form of tenure clearly and routinely distinguished from that by knight service?”? Certainly a barony might be seen as a unit, regardless of its descent. It had a chief-place, a caput, that should not be divided. For Glanvill another distinguishing feature was the king's discretion over the relief from a barony, in contrast to the customary £5 for a knight's fee2° There are examples of Richard and John taking very high reliefs from tenants-in-chief, thereby endangering succession.” Magna Carta would set the relief of a whole barony at £100, the same as for the whole barony of an earl2? However, there is little other reason to see barony as a particular form of landholding distinct from knight’s fee. There was no simple test of scale or of form of service? Glanvill’s usage confirms the limits to terminological precision. In his initial list of civil pleas to be heard in the king’s court the first item is ‘plea concerning baronies’. However, at the start of his treatment of this subject he uses the words ‘fee or free tenement’, not barony.‘ Overall, therefore, it is best to take holding in barony not as a separate type of tenure but as a particular form of holding by knight service

Socage, fee farm, and serjeanty Other forms of free landholding required money payment, renders in kind, or various forms of personal service. Socage would be the great residual tenure in common law, covering lands not held by another specific tenure2* In our period the terms of socage could closely resemble, but seem to have been differentiated

*® Note also Glastonbury, ed. Stacy, 246, for those holding freely ‘through scutage’. *° See e.g. Rotuli de dominabus, ed. Walmsley, no. 32 (the meaning here may simply be ‘in chief’). Note the discussions of barony above, 338, 417. There were also in the north of the realm small baronies, sometimes not held by knight service, which do not concern us here; see Stenton, First Century, 109-10, Reid, ‘Barony and thanage’, esp. 183.

°° Glanvill, ix. 4, ed. Hall, 108; see also Dialogus, ii. 10, 24, ed. Amt, 144, 180, specifically on knight’s fees held from the king by reason, for example, of an episcopal vacancy or a tenant-inchief’s death without heir. See also below, 807, on the king keeping chief baronies in hand until the heir had made relief. ** See Holt, Magna Carta, 304-6; see also J. H. Round, ‘“Barons” and “knights” in the Great Charter’, in Magna Carta Commemoration Essays, ed. H. E. Malden (London, 1917), 46-77, esp. 54-5. °? Magna Carta, 2. See PRIORI, 222, for a proffer to pay a ‘reasonable relief’ of £100 for a barony. For incidental mention of a £100 relief from a tenant-in-chief, see Dialogus, ii. 10, ed. Amt, 142.

°° Note e.g. Sanders, Feudal Military Service, 12-13; see also Stenton, First Century, 61-3, on the caput honoris. ** Glanvill, i. 3,5, ed. Hall, 4, 5.

°° See also Pollock and Maitland, i. 279-80. °° See esp. Pollock and Maitland, i. 291-3.

634 PART III: ANGEVIN ENGLAND from, those of lands held in certain other ways, in particular in fee farm, that is land normally held heritably for a set money rent.” A key distinction of fee farm from socage at this stage may have been that wardship of socage tenements went to the family, whereas fee farms may have gone to the lord, as did knights’ fees. However, Magna Carta, c. 37, associated fee farm with socage, as well as burgage, in that none of these led to prerogative wardship?* There was as yet no sign that

fee farm would later disappear in the common law classification of tenures. Magna Carta, c. 37, also states that holding of a small serjeanty, for example for the service of rendering knives or arrows to the king, was not to lead to prerogative

wardship.*° Such renders, as well as personal services, were characteristic of serjeanties but could occasionally arise from socage.** The development of serjeanty as a particular form of tenure seems to begin in the last decades of the twelfth century; a holding that had not been specified as held in serjeanty in Henry

II's reign might be so classified in the next century.” By 1205 we have a party pleading that no-one could or should tear apart [dilacerare] or in any way alienate a serjeanty of the king.* It seems likely that royal administrative action caused serjeanty to be distinguished as a form of tenure. The demand for a carucage in 1198 excepted ‘serjeanties of the lord king, which were not of knights’ fees; but the

number of carucates of land, and the values of the lands, and the names of the serjeants, were written down. °7 Note also Jocelin, Chronicle, ed. Butler, 31, for confirmation ‘in fee to farmers’. For a charter of 1153 x 1168 referring to a grant in fee farm for life, see St Benet. of Holme, 1020-1210, ed.J.R. West

(2 vols; 2-3 Norfolk Record Soc., 1932), no. 190. Note also Kaye, Conveyances, 91-4. For lands that

had previously been held in farm for money payment being converted to land held in fee and inheritance for knight service, see e.g. the charter of Henry II printed in H. Le Strange, Le Strange Records (1916) 28; also below, 635, on conversion of gavelkind lands.

°® See below, 807-8; also ch. 30, for burgage tenure. Note that Magna Carta, 37, adds further complexity by excepting fee farms that owed military service. °° See also A. W. B. Simpson, A History of the Land Law (2nd edn, Oxford, 1986), 77-8.

*° ‘Small’ seems in this context to be simply a matter of size, with the division between petty and grand serjeanties only developing later; Kimball, Serjeanty, ch. 6, esp. 151-3, 158, 165. “ See e.g. Carte antique, 11-20, no. 514, where the annual service of a hawk rendered to the king seems intended as a reduction of the previous render of 72s. 6d. p.a. See further Kimball, Serjeanty,

115-17, and also 125-6, where the distinctiveness of services owed from serjeanty tenures is given greater emphasis. Note Poole, Obligations of Society, 58, for lands owing money rent on occasion being regarded as serjeanty, not socage. “* See e.g. Kimball, Serjeanty, 109, on the king’s otter-hunter; Poole, Obligations of Society, 63-4, on the keepership of the king’s houses at Westminster and the Flete prison. See also Kimball, Serjeanty, 3, for the general lack of evidence before Richard I’s reign. “> CRR, iv. 34-5. Note also PR6J, 19, for a man rendering account concerning 20s. ‘that an inquiry be made whether he holds his land through serjeanty or through knight service’. ““ Howden, Chronica, s.a 1198, ed. Stubbs, iv. 47; see also iv. 62, for c. 11 of the articles of the 1198 eyre; Book of Fees, 1-13, includes the surviving records. On serjeanty and carucages, note also Kimball, Serjeanty, 132-4. See also Glanvill, ix. 4, ed. Hall, 108, Kimball, Serjeanty, 192-5, on reliefs;

24 LAND 635 Thus we see in John’s reign distinctions being drawn between serjeanty, socage, and fee farm, as is manifest in the need to list them all in Magna Carta c. 37. There certainly remained considerable overlap between the categories, but overlap that led to the very cases that might encourage the sharpening of distinctions.*

Regional tenures There continued to exist some regional forms of tenure, most notably in the north of the country and in Kent. In the north there were thegnage, drengage, and cornage, distinctive for the services owed. These in some ways were becoming closer to other tenures, for example when characteristic renders in kind came to be paid in money, and there were also instances of reclassification.*° However, a case of 1203 shows a party pleading that he held by cornage, not by serjeanty of the forest,” and the distinctive northern tenures continued into the later middle ages. So too did gavelkind tenure in Kent. This rent-paying free tenure was characterised by partible inheritance, particular arrangements regarding widows and widowers, and possibly the absence of forfeiture after conviction for felony.** The distinctiveness of gavelkind is con-

firmed by charters such as that of King John granting to Hubert Walter and his successors as archbishop of Canterbury that they be permitted ‘to convert into knight’s fee lands that men from the fee of the church of Canterbury hold in gavelkind’.”

Poole, Obligations of Society, 59-61, Kimball, Serjeanty, 138-49, on scutage; Kimball, Serjeanty, 134-7, 146-7, on liability to pay aids.

*° See Poole, Obligations of Society, 57, on a case where it was unclear whether land was serjeanty or frankalmoign; see also Poole, Obligations of Society, 7.

*° See above, 340; Maitland, ‘Northumbrian tenures’; Jolliffe, ‘Northumbrian institutions’, 21; Reid, ‘Barony and thanage’, 182-91; Barrow, ‘Northern English society’, 20. “7 CRR, ii. 273-4 (Cumberland). *8 Pollock and Maitland, ii. 271-3 (which gives references to converting land from gavelkind to other forms of tenure), 418-20; P. A. Brand, “Local custom in the early common law’, in Law, Laity and Solidarities: Essays in Honour of Susan Reynolds, ed. P. Stafford et al. (Manchester, 2001), 150-9, at 155, 157-8; below, 794. See also Vinogradoff, Villainage, 205-8. * See F.R. H. Du Boulay, ‘Gavelkind and knight’s fee in medieval Kent’ (1962) 77 EHR 504-11, at 510 n.5; also e.g. Rot. chart., 160. A case referring to the recovery of gavelkind tenements lost through

default mentions knights of the county “bearing the law and custom of tenements of gavelkind of Kent’; Memoranda Roll, 10J, 106. The defaulter was allowed to seek to recover the land through writ of right.

636 PART III: ANGEVIN ENGLAND 4 SECURITY OF TENURE Services and disciplinary jurisdiction Issues of security of tenure were closely connected to lordship. This link is clear, for example, in the summary of Glanvill Book IX included in the capitula present in some manuscripts: Concerning homages and reliefs and when and from whom and how and to what lords homage is owing, and relief, and what a man owes his lord from homage; and that his lord can, by his own authority without a writ of the king, compel his vassal to answer to him in his own court if he does anything wrongfully against him and against his homage, and if he does not do the service owed to him concerning his

land. Glanvill is emphasising that such matters can be dealt with by lord and court by the lord’s own authority, in contrast to matters concerning right to a free tenement or to service, which required a royal writ.* In Book IX, he begins his discussion of this disciplinary jurisdiction with serious offences against the lord: If anyone does anything to the disinheritance of his lord, and is convicted on this, he is rightfully [jure] to lose the fee that he holds from him, as too are his heirs. The same also shall happen if anyone lays violent hands on his lord to hurt him or do him dreadful wrong [atroci injuria eum afficiendo] and this has been lawfully proved against him in the appropriate court.

The lord could distrain the man to come to his court, without royal writ, ‘and unless he can clear himself against his lord by swearing three-handed or with as many as the lord’s court decides, he shall remain in his lord’s mercy concerning the whole fee that he holds from him’? However, such cases of major wrongs to lords are not plentiful in our records, partly no doubt because they were relatively uncommon, but partly perhaps because they remained accepted as the business of the honorial rather than the better documented royal courts. More frequent, and more apparent in the royal records, were the next type of case that Glanvill treats, disputes over services, the °° E.g. London, British Library, Add. MS 14252, fo. 7r, Oxford, Balliol College, MS 350, fo. 44v; printed in Glanvill, ed. Woodbine, 34, and see also 35. >" See above, 557.

°? Glanvill, ix.1, ed. Hall, 104-5. According to Glanvill, vii. 12, ed. Hall, 86, an heiress in wardship guilty of unchastity was to be disinherited; however, widows were not to lose their inheritances for unchastity. See also Glanvill, ix. 11-13, ed. Hall, 113-15, on purpresture, noting the different treatment of such encroachments on royal property.

24 LAND 637 amount of which was agreed but their fulfilment contested. The lord faced with a tenant who withheld service would distrain, presumably with the hope that the tenant would perform the service, otherwise with the purpose of compelling him to answer in court concerning failure to serve. Unfortunately Glanvill does not spell out the steps of the process of distraint in the specific context of the withholding of services. Rather he sketches procedure for the exaction of reasonable aids: Lords can distrain their tenants to render reasonable aids...by their own right through judgment of their own court without order [precepto] of the lord king or chief justice, through the chattels that they find on their fees or through those fees themselves, if it is necessary; in such a way, however, that those tenants are dealt with justly concerning this according to his court's decision and reasonable custom.”

He then goes on to say that if a lord can in this way distrain for aids, ‘much more so can he properly make distraint in the same way for his relief or for other necessary service owed to him from his fee’. Glanvill thus indicates that distraint should be by judgment of the lord’s court, a point he had already made in the context of distraint to answer concerning disinheritance or serious harm to the lord’ However, it may be that such a reading of Glanvill overemphasises the need for court judgment in the context of distraint by chattels for failure to perform services, and certainly there is no evidence in the early plea rolls for plaintiffs alleging that distraint by chattels was unlawful because it had not been authorised by the lord’s court.° Instances when court judgment was obtained before distraint by chattels could be explained not by a custom enforced by the king’s court, but by seignorial weakness in relation to the tenant, or by honorial custom, or by lordly prudence, perhaps foreseeing the need to distrain by fee.” Our discussion of the Anglo-Norman period came to no firm conclusion as to whether judgment was routine before distraint by land’* By the later twelfth

century court judgment certainly was required. It is possible that legislation early in Henry II’s reign was an important factor. Robert, earl of Leicester, acknowledged that in return for his homage and by the service of one knight he held the manor of Knighton from the bishop and church of Lincoln. He instructed that if he or his heirs failed regarding the doing or observing of

°° See Glanvill, ix. 1, ed. Hall, 105; Hudson, Land, Law, and Lordship, 23-4; cf. Milsom, Legal Framework, 10-13, P. A. Brand, ‘Lordship and distraint in thirteenth-century England’, in his Making of the Common Law, 301-24, at 305; note also CRR, iii. 133. °* Glanvill, ix. 8, ed. Hall, 112. °° Glanvill, ix. 1, ed. Hall, 105.

°° Note the interpretation in Brand, ‘Lordship and distraint’, 305-6. >” Brand, ‘Lordship and distraint’, 306-7. °® Above, 342.

638 PART III: ANGEVIN ENGLAND homage, ‘the bishop of Lincoln shall coerce him through that land according to the judgment of his court, in accordance with the decree of the realm [statutum regni|. Many difficulties can be raised about interpreting this as a straightforward legislative requirement for judgment before any distraint for non-performance of services, but the text can be taken to support Glanvill’s expectation of court

judgment before distraint, at least distraint by land.’ Likewise, some novel disseisin cases in the early plea rolls reveal seignorial belief that judgment of their court provided justification for distraint for services. However, other cases may suggest that lords considered default of service enough to justify taking the lands temporarily into their hand even without court judgment.®° As we saw earlier, it is not clear whether it was necessary in the Anglo-Norman period for distraint by chattels to precede distraint by land. However, Glanvill

indicates this as the proper order, and his position is supported by two novel disseisin cases recorded in unusual detail on a plea roll in 1204. In the first, the alleged disseisors lost and were placed in mercy in part because they ‘had hurried too much to taking land in distraint [in namium] because they ought previously to have made distraints through chattels found in the fee. In the second, the alleged disseisor was allowed to remain in seisin because he had proceeded properly: he had reasonably summoned the man three times for arrears of service; when the

summoned man neither came nor essoined himself, it was decided that he be distrained through the chattels found on the fee; when no chattels were found through which he might be distrained, those who had been sent to make the distraint summoned the man in due fashion that he come to court. When he did not come, nor anyone on his behalf, it was decided that the fee be taken in distraint for default of service.“ As these cases suggest, the need for the following of a standard order of distraint may have hardened because of the possibility of royal intervention, notably through novel disseisin.” The lord during the process of distraint was not to treat the goods or lands as his own. Goods should be impounded, not sold or exploited, and should be replevied, that is released, when the distrained person gave pledges to appear in court.® It should, however, be noted that Jocelin of Brakelond tells of Abbot

”? Registrum Antiquissimum, no. 313. See further Hudson, Land, Law, and Lordship, 27-8. °° E.g. cf. RCR, i. 366, ii. 58, 117; CRR, i. 320-1 (on which see below, 674).

°* CRR, iii. 133-4. For a description of more precise stages based on evidence from after our period, most notably Bracton, see Sutherland, Novel Disseisin, 83.

°* Hudson, Formation, 214, speculates that the stages were developed from the practice of hundred or county courts. °° See also below, 674-5. °* See Sutherland, Novel Disseisin, 84.

24 LAND 639 Samson forcing Aubrey de Vere into court by seizing his livestock and selling it, suggesting some continuing flexibility of norms.®

Distrained land too should be replevied. In the second of the 1204 cases discussed above, the careful lord explained that when the fee had been taken, it was frequently offered to the plaintiff and his relatives to replevy; furthermore,

he would still demise it to the distrained man through replevin, if the man wished. However, neither the distrained man nor anyone on his behalf sought it through replevin.® In a case in Richard I’s reign, the tenant excepted to novel disseisin on the grounds that he had seized the land by judgment of his court for default of his service and his rent. He had his court present before the curia regis, but it was decided that he should replevy the land to those distrained, set them

a day in his court concerning the arrears of rent and services, and treat them justly by judgment of his court.” Clearly, therefore, distraint by land was not the same as immediate forfeiture.* According to Glanvill, if a tenant were convicted of withholding services, he was by right to be disinherited of the whole fee that he held from that lord.°° However,

cases of forfeiture are extremely difficult to discover; some may have taken place without facing later challenge in the king’s court and therefore remained unrecorded, but the frequency with which novel disseisin was brought in cases arising from alleged withholding of service suggests that if forfeiture were common, this would be apparent from the plea rolls.”? On occasion it was stated that a defaulting tenant quitclaimed to his lord the land from which the service was owed; this may have been seen as a more honourable form of settlement but could rather indicate the absence of a general right to enforce forfeiture.”

°° Lawsuits, no. 646. °° CRR, iii. 134. °” Three Rolls, 134; see also RCR, i. 366.

°° The distinction may explain some cases apparently over the need for court judgment before distraint. Lords might accept the need for court judgment before forfeiture but not before the first taking of land in distraint; above, 638. However, their taking of the land was adjudged to amount to enforcing forfeiture by the tenant, rather than distraint; see also below, 675. °° Glanvill, ix.1, ed. Hall, 105; the use of the word convictus indicates the need for judgment before forfeiture. Note also the 1166 carta of William of Mountifichet, stating that he held in his hand twothirds of a knight’s fee for default of service; Red Book, i. 350. The phrase ‘held in his hand’ may indicate that he did not see his holding of the land as permanent. According to Jocelin, Chronicle, ed. Butler, 86, Abbot Samson feared that he, like others, would lose seisin of his barony for default of the king’s service, but this may not have amounted to permanent forfeiture. See also below, 675, Hudson, Land, Law, and Lordship, 33-4, and Borough Customs, i. 298-9 (concerning London). ”° Note CRR, vi. 290-2, which concerns a house in Winchester and therefore cannot be taken as indicative of wider practice. Other cases of disputed forfeiture could underlie some actions of right. ™ See CRR, v. 266-7.

640 PART III: ANGEVIN ENGLAND Nevertheless, if not the practice, certainly belief in the possibility of forfeiture seems to have remained at least into the 1220s.”

Glanvill emphasises that lords did not need a royal writ to deal with disciplinary cases, but also makes clear that the king could become involved in such disputes.” Thus he states that ‘if a lord is not powerful enough to constrain [justiciare] his tenant for his services or customs’, then he should have recourse

to the aid of the king or chief justice, and he shall have the following writ concerning this: The king to the sheriff, greeting. I command that you constrain N. that he justly and without delay do to R. the customs and just services that he ought to do him concerning his tenement that he holds from him in the specified vill, as he can reasonably show are owed to him, that he need no more complain concerning this on account of default of justice.”

The plea was thereby brought to the county court, where the complainant demanded his services according to the custom of the county. If successful, he received the services and the tenant paid an amercement to the sheriff. Why should a lord lack the power to constrain his tenants? Some such cases may have arisen when a lord faced united opposition from his tenants, who might well make their stance on the issue of whether the demanded services were ever owed.> Alternatively a lord may have faced a particularly powerful tenant or difficult circumstance, or simply have desired the extra weight of royal authority in order to bring a quick end to the dispute.”° The king and sheriff might also protect the tenant.” Glanvill includes a writ

to the sheriff, ordering him to make the tenant have, in return for gage and pledges, his cattle, which he complained that the other party had taken and unjustly detained on account of customs that he demanded from the tenant, ‘who does not admit that he owed them’. This last phrase may indicate a dispute

” Note Rolls for Lincolnshire and Worcestershire, no. 981, which seems to allow the possibility of forfeiture following judgment. ”* For the possibility that royal involvement increased from early in Henry II’s reign, see Hudson, Land, Law, and Lordship, 37, 40. ” Glanvill, ix. 8-10, ed. Hall, 112-13; see also ix. 1, ed. Hall, 105.

” Seee.g. Lawsuits, nos 488, 646. ’° See also Hudson, Land, Law, and Lordship, 35. Milsom, Legal Framework, 33, suggests that the problem may have been lords who lacked the courts necessary for distraint; such a procedural explanation does not seem to fit with Glanvill’s phraseology, for example that the lord who could not justice his tenants would need to have recourse to ‘the refuge’ of the king’s court; Glanvill, ix. 1, Hall, 105.

’” See also Brand, ‘Lordship and distraint’, 309-13.

24 LAND 641 over performance of agreed services or one over the amount of service.”* The sheriff was to have the tenant justly treated, so that he did not complain more concerning this for lack of justice. As we have seen, eyres may have dealt with at least some such replevying up to the 1180s, the sheriffs thereafter taking on full responsibility.” What, then, of cases where the amount of service was disputed?*° Such cases presumably arose when the tenant refused the lord’s demand; from the lord’s point of view, therefore, it looked the same as a case of withholding due services. However, Glanvill shows that the tenant could obtain from the king a writ ordering

the lord not to vex him unjustly, nor permit him to be vexed, regarding his free tenement concerning customs and services. If the addressee did not comply, the sheriff was to cause it to be done.* A tenant contesting the amount of service might also take a dispute over non-performance to the grand assize, and thus to the king’s court.” Bracton would state that a tenant summoned to answer in the distrainer’s court for services and customs could reply ‘that he owed him no such service, and sought judgment if he ought answer him without writ and order of the lord king, as this touched his free tenement’. The distrained man was thus arguing for the application of the requirement of a royal writ in a situation where the lord saw himself as simply enforcing services due to him. Overall, therefore, Glanvill’s picture of the extent of seignorial jurisdiction concerning performance of services, to be exercised without need of royal writ, must be modified by the evidence for increasing royal involvement. Whilst ad hoc resort to the king’s court had long existed, the routine availability of new royal actions seems to be the cause of the reduction of seignorial disciplinary jurisdiction. In particular, novel disseisin and the requirement for a royal writ in cases concerning right to a free tenement appear to have discouraged not only the enforcement of forfeiture for default but also distraint by land even with judgment of the lord’s court. Instead lords chose to rely upon distraint by chattels, with no requirement for prior judgment.*4

”® Glanvill, xii. 12, ed. Hall, 142.

” See above, 553. °° For disagreement over the amount of knight service owed, see e.g. Glastonbury, ed. Stacy, 242, 244. °** Glanvill, xii. 10, ed. Hall, 141; note also xii. 15, ed. Hall, 143, for the vexing of a sub-tenant. See also Early Registers of Writs, Hib. 37. Such writs would be known by the name ne vexes.

*? Glanvill, ii. 9, ix. 1, ed. Hall, 29-30, 105. A significant case, not concerning tenure by knight service, is CRR, ii. 273-4, iii. 206-7; a tenant gave up land over which there was dispute concerning the amount of service due, possibly because the tenement was no longer worth holding. °° Bracton, fo. 157b, ed. Thorne, ii. 444; see also fo. 156, ed. Thorne, ii. 441. °* See Milsom, Legal Framework, 26-34; Brand, ‘Lordship and distraint’, 308.

642 PART III: ANGEVIN ENGLAND Security at succession of a new lord A tenant might also find his tenure challenged on the succession of a new lord, perhaps as part of a general enquiry into title; certainly by Glanvill’s time, however, his title was a strong one.* Seisin was not seen to revert routinely to the lord, for

him to renew to the tenant. Rather, men rendered homage to the new lord and afterwards might make a payment acknowledging that they held a tenement from him. Jocelin of Brakelond tells of Samson, early in his abbacy of Bury, visiting all his and the convent’s manors, and those manors that they had confirmed in fee to farmers, and demanding from all ‘aid and recognition according to the custom of the realm. Such a payment seems to have been regarded as routine, not offering a lord a means of proceeding to disinheritance of tenants.*° The language used to record confirmations by a new lord to existing tenants makes clear that these were differentiated from new gifts. Moreover, an increasing proportion of tenants had their position reinforced by charters stating that the gift was to be held from the original donor and his heirs. The obligation to continue a gift could also be phrased in terms of warranty.*” Glanvill states that ‘the heirs of donors are bound to warrant gifts and things given, in as much as they have been reasonably made, to those to whom these gifts were made, and to their heirs. That he is here referring to the obligation of heirs to continue reasonable gifts may be suggested by the position of this brief chapter, following his analysis of problems relating to family gifts and preceding his chapter on ‘the classification of heirs.**

Lords challenging the basis of a tenant's title Any lord, not just a new one, might have reason to challenge a tenant’s claim to land.*? We cannot tell how often such matters were treated in seignorial courts, but by the end of our period some lords were paying to have an existing tenant summoned to the king’s.°° Was such royal involvement not only useful but necessary, °° Note Lawsuits, no. 420A (p. 424), for the reaction to Becket’s attempts to resume fee farms. Becket’s point was not that fee farmers in general were vulnerable at the succession of a new lord but rather that these lands should never have been granted in fee farm.

°° Jocelin, Chronicle, ed. Butler, 31. On homage and ‘recognising’ in relation to a new lord, see also e.g. Jocelin, Chronicle, ed. Butler, 27, Glastonbury, ed. Stacy, 79. Failure to appear might still lead to summons, distraint, and the taking of the tenement into the new lord’s hand; RCR, i. 62-3. °” See Hudson, Land, Law, and Lordship, 75-7, 81-2; above, 595. °° Glanvill, vii. 2, ed. Hall, 74. Note also Early Registers of Writs, Hib. 24. For the appearance of the writ of warranty of charter, see above, 583. °° Note also Bailey, ‘Richard I’, 198. °° See e.g. CRR, vi. 283, 342, 351-2, PRI4J, 110, 111, cited by Milsom, Legal Framework, 47 n.1, and discussed in Hyams, ‘Warranty’, 494. Fora relevant writ, see PKJ, i. no. 3474, which may be linked to the litigation at RCR, ii. 57, CRR, i. 166-7, cited by Milsom, Legal Framework, 50.

24 LAND 643 and could lords no longer securely establish their claims in their own courts?” This might well be the case if the lord was trying to eject a person who claimed to hold of a third party.’ What of the person in possession who was insisting on their claim to hold from the lord?” A telling case is that of Countess Amice and Richard of Sudbury. Countess Amice had been married to the earl of Clare, but was divorced on grounds of consanguinity. Sudbury had been given to her husband in maritagium. Following the divorce, she went to Sudbury, gathered her court, and had Richard summoned. According to Amice, Richard came to show by what warrant he held his land, entering the plea of his own accord. He vouched her former husband to warranty, but did not produce that warrantor. So, by decision of her court, she seized her land and held it. However, Richard brought novel disseisin against Amice, her steward, and seven others concerning his free tenement at Sudbury. Amice produced her court, which testified to her account, as set out above. Richard came and denied that he had ever been summoned, or come to her court through summons, or vouched warranty, or lost seisin thus by decision of the countess’s court, and he offered to prove this. It was decided that he was to clear himself, with oath-helpers, that he had not of his own accord entered the plea or vouched warranty, and a day was set for the proof. On that day he produced ten men as suit, that is testimony in his support, and the countess also produced suit for her case. Wager of law, i.e. proof by oath, was adjudged and Richard successfully made his law.® Therefore it was decided that he should recover his seisin. The countess and her men were in mercy for unjust disseisin, and she was also to pay damages, set by oath of lawful men of the neighbourhood. There are

curious elements to this case, for example the decision to allow the plaintiff to wage his law and thereby defeat the Countess’s plea. It may be that political circumstance worked against the countess. However, the form of Richard's plea is very notable. He stated that he had not entered the plea of his own accord. We are reminded again of Glanvill’s statement that ‘according to the custom of the realm no-one is bound to answer in the court of his lord concerning any free tenement of his without the order of the lord king or his chief justice’.*° In the present case, Amice seems not to have obtained a writ; she probably thought that she had no

°" For this argument, see Milsom, Legal Framework, 47. "? See e.g. RCR, i. 439; the plea roll entry may conceal prior proceedings in the seignorial court. ”* See also CRR, iii. 161-2, where the lord lost because he vouched his court to warrant, but did not have it. °* CRR, i. 186, 225, 249; PR2J, 148; cf. RCR, ii. 180 (= PKJ, i. no. 3199); Milsom, Legal Framework,

45-7, Hyams, “Warranty, 494-6. See below, 790, for the maritagium passing to the countess at the end of the marriage. °° On wager of law, see above, 81-2, 322-5. °° Glanvill, xii. 2, 25, ed. Hall, 137, 148; see above, 557.

644 PART III: ANGEVIN ENGLAND need of one in such a matter, but also felt it worthwhile to emphasise that Richard had entered the plea ‘of his own accord’. Richard denied this, and succeeded in his action by proving, as the court required, that he had been disseised unjustly and without judgment. In another novel disseisin case, in 1203, a lord claimed that he had carefully

gone through the proper stages of summons and distraint by decision of his court, and finally by decision of his court had taken seisin [seisivit] of the land.” He produced his court to witness this. The plaintiff denied summons by decision of the court, and placed himself on the neighbourhood regarding his claim to the land. The lord was then asked by what warrant he drew the plaintiff into plea concerning that land and held his court concerning this, and whether the plaintiff was drawn into plea through a writ. He replied that, as he believed, it was permitted to him to do this without writ. It was decided that the plaintiff was to have seisin, and the court was in mercy for having adjudged seisin of the land to the lord, who was likewise in mercy. Again what the lord, and his court, saw as a disciplinary case relating to improper intrusion, the king's court insisted should be treated as a case concerning title to a free tenement. With the impact of novel disseisin and the writ rule, therefore, it appears to have been at first safest and later necessary to obtain a royal writ before pursuing to the full the issue of the title whereby [quo warranto] a tenant held.®* Jocelin of Brakelond depicts Abbot Samson prudently stating that he must proceed by lawful procedure [ordine justiciario], and that without a judgment of the court he could not disseise his free men regarding their lands or rents which, justly or unjustly, they had held for many years; if he did so, he said he would fall into the king’s mercy by the assize of the realm.

Overall, then, security of tenure increased in the Angevin period, in part because of the new royal actions and their consequences. However, there were limits to this increase. Villeins did not enjoy the protection of the new actions, and tenants-in-chief also had limited use of them with regard to lands held from the king.’°° Furthermore, the new actions increased the possibility of challenge from

°” Northants., no. 782, on which see Milsom, Legal Framework, 53-4, 62; the question of whether

the lord acted by writ is interlined. Note further RCR, i. 447-8. For the writ rule, see also RCR, i. 61-2. For a lord succeeding in defeating novel disseisin brought by a deacon and his son regarding land that had been held by another illegitimate son of the deacon, see CRR, vii. 136-7. °® See Milsom, Legal Framework, 45-57. For the earl of Chester temporarily taking into his hand land about which there was dispute within a tenant family, see CRR, vi. 81-2, also discussed below, 673, 786.

°° Lawsuits, no. 630. *°° See above, 626, below, ch. 28.

24 LAND 645 a third party, for example with a claim to inheritance dating back before any of the parties’ lifetimes.’” It is on to the issue of inheritance that we must now move.

5 INHERITANCE Royal actions, most notably mort d’ancestor, reinforced earlier customs of inheritance, and, by modifying their enforcement, transformed the normative standing of many into routinely enforced legal rules.

Process

In the late twelfth century, a lord was not to resume seisin of heritable land if faced with a clear heir of full age. The relevant section of the 1176 Assizes of Northampton, which had established the process of mort d’ancestor, begins ‘if any free tenant dies, his heirs are to remain in such seisin as their father had on the day on which he was alive and dead, as regards his fee’. If the lord denied them seisin or ejected them, they might have recourse to the new action. This may best be seen as a statement of good custom, followed by the provision

of routine enforcement, rather than as changing practice that had formerly involved the lord seising the heir at the point when he took his homage.'” It was certainly the process that Glanvill felt should be observed: heirs of full age can, immediately after the deaths of their ancestors, keep themselves in their inheritance; for although lords can take into their hands their fee with the heir, it ought, however, to be done gently so that they do no disseisin to the heirs. For heirs can even resist the violence of lords if need be, provided that they are prepared to pay them relief and the other just services therefrom.'’®

Glanvill also deals with the situation when the heir was not obvious: The ultimate heirs of any people are their lords. When, therefore, anyone dies without a certain heir, for example without a son or daughter or without such an heir about whom there is not doubt that he is the closest and just heir, lords of fees can

*°” See esp. Milsom, Legal Framework, 180-4; also Hyams, ‘Warranty’, 464. *°* Assizes of Northampton, 4; cf. Milsom, Legal Framework, 164-5, 171, and also S. F.C. Milsom, ‘What was a right of entry?’ (2002) 61 CL] 561-74, at 567-9. °° Glanvill, vii. 9, ed. Hall, 82; see also Glanvill, ix. 4, ed. Hall, 108, on the heir in such circum-

stance being allowed to remain in the inheritance even against his lord’s wishes, provided he had properly offered homage and relief. Such limited taking into hand is probably what is indicated by the phrase ‘simple seisin’, on which see below, 674. For taking into hand being seen as custom in the early plea rolls, see Milsom, Legal Framework, 160, and the cases there cited.

646 PART III: ANGEVIN ENGLAND and are accustomed to take and retain those fees in their hands as their escheats, whoever is the lord, be it the king or another.’”

An aspiring heir might come and pursue a claim by grace of his lord or by royal writ, and have whatever right he might prove; however, the land was to remain in the lord’s hand until the question of the heir’s claim was lawfully decided. The procedure thus paralleled that when a known heir was under age, except that, when there was doubt about who was heir, the inheritance was understood to be the lord’s ‘as [quasi] escheat’, rather than as wardship. If no-one appeared seeking the inheritance as heir, the inheritance would remain permanently to the lord as escheat, in such a way that he could dispose of it at will as he would his own. Unfortunately Glanvill does not say for how long the lord had to wait before treating the land in this way. What he does make clear is a hierarchy of the kinds of seignorial control of land following the death of a tenant: taking into hand when there was an unchallenged adult heir; holding as of wardship, when there was an unchallenged minor heir; holding as escheat, when there was doubt as to who should inherit; holding as permanent escheat, with full power to dispose as his own, when there was no heir.’ When there was a clear adult heir, according to Glanvill the lord was to take homage at once. If the heir was male but a minor, the lord had to take homage before he could rightly have wardship of heir or tenement.’® If there was doubt as to whether the claimant was the just heir, the lord might postpone receipt of homage.’” According to Jocelin of Brakelond, Abbot Samson postponed taking the homage of the son of Elias, butler of Abbot Hugh, on the grounds that the earlier alienation of the land had been wrongful.’** If no-one appeared to offer homage, the lord had reason to take control of the tenement.’ After taking homage, the lord was to receive relief, unless the heir had been in wardship."° According to Glanvill, and also the Dialogue of the Exchequer, by the custom of the realm the relief for a knight’s fee was £5, in contrast to the lack of fixed reliefs for baronies or serjeanties held of the king; until Magna Carta,

°* Glanvill, vii. 17, ed. Hall, 90; see also Glanvill, vii. 9, ix. 6, ed. Hall, 82-3, 110; cf. below, 651, on the lord-and-heir rule. Note, though, the reference in Dialogus, ii. 10, ed. Amt, 142, to the king having ‘escheat with heir’ when a minor was to inherit. Note also the Cockfield case, above, 627-30, where the abbot had the land in hand. "°° Note also Dialogus, ii. 10, ed. Amt, 140-2. °° Glanvill, ix.1, ed. Hall, 103; see also Assizes of Northampton, 4. "87 Glanvill, ix. 6, ed. Hall, 0. *°® Jocelin, Chronicle, ed. Butler, 44; he accepted the son’s homage when he remembered a kindness that the father had shown him. *°” See CRR, ii. 50, discussed, with further references, in Milsom, Legal Framework, 168-9. *t Glanvill, ix. 4, 6, ed. Hall, 108-10; Magna Carta, 3, below, 652-3.

24 LAND 647 the customary £5 may not have applied to tenants-in-chief." Customary relief for socage was the amount of one year’s rent from the land. Heirs apart from those of tenants-in-chief were thus secured by custom against excessive demands for relief. Heritability was thereby reinforced. Furthermore, if the lord refused to receive homage or reasonable relief, the aspiring heir could obtain a royal writ instructing the sheriff to command the lord to receive his homage and service.’” If the lord continued to deny that the man was the correct heir, the latter could proceed by mort d’ancestor if he was out of seisin. If he was in seisin, he was to remain so, waiting for his lord to accept his homage. The heir thus held the land even without seignorial acceptance. If the lord accepted the heir, but the latter refused to pay relief, the lord would distrain, or obtain a writ of customs and services leading to a hearing in the county court.” The procedure for inheritance by heiresses differed in certain ways. Glanvill tells us that heiresses who were minors would be in the lord’s wardship until they came of age, whereupon the lord was bound to marry them off, with reasonable marriage-portions."* What of heiresses who were of age? Glanvill states that heiresses could not do homage, although they might swear fealty; if the woman was married, the husband would do homage to the lord for her fees.’ If there was more than one daughter, the inheritance, Glanvill says, was to be divided between them without distinction, whether their father was knight or sokeman, save that the chief messuage was to go to the eldest daughter with due compensation for the others. The husband of the eldest daughter was to do homage to the chief lord concerning the whole fee. The younger daughters, or their husbands, were bound to do service for their tenements to the chief lord through the hand of the eldest daughter or her husband. However, homage and fealty were not to enter into the relations between the daughters and their lines until the third generation, but ‘the third heirs coming from the younger daughters according to the law [jus] of the realm are bound to do homage concerning their tenement to the heir of the first-born daughter, and reasonable relief’."° At least as far as tenants-in-chief were concerned, such a pattern, which delayed full division of ‘™ Glanvill, ix. 4, ed. Hall, 108; Dialogus, ii. 10, 24, ed. Amt, 144, 180; Holt, Magna Carta, 304. Note also PR22HII, 77, Richard Malebisse pays 100s. relief, probably for a single knight’s fee of the honour of Eye (see Red Book, ii. 491). For earlier evidence for the £5 relief from a ‘vavasour’, see Leis WI, 20. 2a. See below, 850, on reliefs from tenants-in-chief. ™ Glanvill, ix.5, ed. Hall, 109; see above, 583-4, on de homagio capiendo. "* Glanvill, ix. 8-10, ed. Hall, 112-13; see also Milsom, Legal Framework, 162. ™ Glanvill, vii. 12, ed. Hall, 85. " Glanvill, ix. 1, ed. Hall, 103. '® Glanvill, vii. 3, ed. Hall, 76; note also Glanvill, ix. 2, ed. Hall, 106. See Milsom, ‘Inheritance by women, 237, for qualification as to the preferred position of the eldest daughter. Avoiding homage meant that if a younger daughter died without issue, land from her share of the inheritance could

648 PART III: ANGEVIN ENGLAND the lands, appears not to have been consistently followed in the Angevin period, and in 1236 Henry III would state that “in our realm of England,...it was always

the law and custom...that if there was anyone holding of us in chief, having daughters as his heirs, after the death of the father our ancestors and we have always had homages from all the daughters; and every one of them in such a case holds of us in chief’. Possibly, therefore, Glanvill does not provide sound guid-

ance, at least for what happened at the level of tenant-in-chief, and the author may have had a personal motive for describing law as he does.’” Perhaps subtenancies followed Glanvill’s pattern, but the early plea roll evidence is hard to interpret as to the consistency of practice. Some cases support Glanvill’s position, referring to division and the right of the eldest."* Others are less obvious in their significance. In a case of 1200, the parties disputed which of a pair of sisters was the elder, and the plaintiff stated that the land had never been shared; how this should fit Glanvill’s system of partition is unclear, given that we do not know, for example, the other lands the women had."

Pattern As far as we can tell, claims to succeed based on grounds other than genealogical proximity, probably quite unusual in the Anglo-Norman period, disappear in the Angevin.”° Glanvill outlines the pattern of inheritance: The nearest heirs of any person are those whom he has begotten from his own body,

such as a son or a daughter. In default of such heirs, the more remote heirs are called, that is grandsons and grand-daughters, descending by direct line from son or daughter ad infinitum; then brother and sister and their collateral descendants; then uncle on the father’s side and on the mother’s side, and aunt likewise, and their

descendants.

pass to the eldest daughter without breach of the lord-and-heir rule; see below, 651, and Milsom, ‘Inheritance by women’, 241-2. "7 See Holt, ‘Heiress’ 253, 257-61; Statutes of the Realm, i. 5 (the stated custom for those who were not tenants-in-chief is closer to Glanvill’s account). See also Milsom, ‘Inheritance by women, 240-9. **® Note RCR, i. 147.

*™? CRR, i. 250-1, ii. 271, 299, iii. 178 (recording that the parties reached a concord); Feet of Fines,

Norfolk and Suffolk, no. 437. PKJ, i. no. 3488, CRR, i. 157, may indicate division with superiority for the older sister, if it is right to take the warranty clause in the final concord as indicative of such superiority. **° See above, 355-6. Disability could still exclude from inheritance. One may wonder whether Ralph brother of ‘Adam the deaf’, who held land in Yorkshire, could have been a younger brother who inherited because of his older brother’s disability; see EYC, xi. no. 43. *! Glanvill, vii. 3, ed. Hall, 75. On the position of grandchildren, see also below, 650.

24 LAND 649 Not just heirs who were of age but minors too were to inherit.” The easiest cases were those covered by mort d’ancestor: children, grandchildren, brothers, sisters, nephews and nieces. Lands held by military tenure or serjeanty were to pass to the eldest male heir. Gavelkind was always divisible, as were some socages. If the socage land was not partible, according to the custom of some places the youngest rather than the oldest son might take the whole inheritance.” Glanvill envisages inheritance by daughters in the absence of sons.’** This

may exaggerate the strength of the heiress’s position. At least in the case of tenants-in-chief, we on occasion see lands passing to the heiress’s son on the death of her husband.’ As for the pattern of female inheritance, as noted above, the normal practice was division between sisters.’° The maritagium that any of the sisters had received might be taken as her share, or there might be need of reallocation when the sisters inherited; these issues only appear to have been worked out in the last part of the Angevin period and indeed in the years up to Bracton.’” Division might be affected by events after as well as before the death of the ancestor. If one sister died, or was guilty of unchastity whilst in wardship, her portion was to be redistributed to the other sisters.’** The pattern of inherit-

ance could also be changed by particular arrangements carried out by grant or quitclaim either before or after the death of the ancestor.’”? The one general exception to partibility amongst heiresses was land held in serjeanty. In general, although not universally, such land was impartible. The remaining possibility of

** Glanvill, ix. 1, ed. Hall, 103-4. **5 See Glanvill, vii.3, ed. Hall, 75; Faith, ‘Peasant families’, 81-3; Kimball, Serjeanty, 199-200; for mort d’ancestor’s range, see above, 605. For a dispute over the partibility of socage land, see CRR,

i. 314-5. For a dispute in Kent as to whether land was divisible between male heirs, see CRR, iv. 243.

** Glanvill, vii. 3, ed. Hall, 75-6. "9 Milsom, ‘Inheritance by women’, 235. As Milsom points out, at 238, the circumstances of the cases that he cites were unusual, in that the women involved were daughters of a dead elder son, and a younger son survived as a potential rival; this resembles the casus regis, discussion of which follows. See also below, 786.

"2° See above, 647-8. See Bracton, fo. 66b, ed. Thorne, ii. 194, for the division including half- as well as whole sisters. For a case involving debate over whether a manor in Kent was partible among sisters, see CRR, vi. 285. For royal actions in relation to division between heiresses, see esp. Milsom, ‘Inheritance by women’, 243-5. "27 See Bracton, fos 76b-77, ed. Thorne, ii. 223-4; Milsom, ‘Inheritance by women’, 251-3; Waugh, ‘Women’s inheritance’, 86-7. 8 Glanvill, vii. 3, 12, ed. Hall, 76, 86. "*° See e.g. the rearrangement involving the daughters of William de Say, made before Henry II, probably in January 1185, and recorded ina final concord preserved in PRIORI, 139.

650 PART III: ANGEVIN ENGLAND division may explain why those claiming impartibility in a dispute might have to make a significant proffer.*° Patterns of inheritance by heirs more distant than nephews or nieces may have been less consistent, and influenced by the custom of lords’ courts." In addition, there might be uncertainty over the relative strength of claims of half-siblings,’” and of a niece through the male line compared with that of a nephew through the female.’* There was also repeated dispute over the claims of a younger brother and of the son of a predeceased intermediate brother.‘ This was the casus regis, the situation that arose regarding the English throne on Richard I's death in 1199, between John, Richard's surviving younger brother, and Arthur of Brittany, Henry II's grandson through an intermediate deceased brother.’® Henry Il

Henry (d. 1183) RichardI(d.1199) Geoffrey (d. 1186) John (d. 1216) |

Arthur

Genealogy of Angevin kings Glanvill’s simple statement that sons and daughters took precedence over grandchildren was not followed, and the author himself provides a detailed discussion

of differing opinions before concluding that at present between uncle and nephew the legal position [conditio] of the one in possession was the better.” It is possible that the issue had always been one of uncertainty; alternatively the situation in the royal family may have brought into question existing custom.” After his succession, King John intervened personally in at least some of the "°° Note esp. Rot. de ob. et fin., 237; CRR, ii. 25, 68, 232, iii. 40; also above, 634, on CRR, iv. 34-5; Kimball, Serjeanty, 199-202. Glanvill does not mention practice concerning heiresses and serjeanty. Note also PROJ, 19.

**t Note Milsom, Legal Framework, 176. *°? See Pollock and Maitland, ii. 302-5. "°° See e.g. Rolls for Gloucestershire, Warwickshire and Staffordshire, no. 593, from just after our

period.

'°* The claim of a sister against the sons of a predeceased intermediate brother may not have carried such weight; see PKJ, iii. no. 905, and note Milsom, ‘Inheritance by women’, 238. For Normandy, see TAC, 12. 2, ed. Tardif, 13.

"°° See esp. J. C. Holt, “The casus regis: the law and politics of succession in the Plantagenet dominions 1185-1247’, in his Colonial England, 307-26. "8° Glanvill, vii. 3, ed. Hall, 77-8; TAC, 12. 1, ed. Tardif, 12-13, preferred younger sons to grandsons through an older son. "87 See also Hudson, Land, Law, and Lordship, 119.

24 LAND 651 cases. In a dispute where the surviving younger son was the tenant, and the case was brought by the grandsons of the deceased elder son, the plea roll entry ends by stating that ‘it should be noted that this enquiry was made by order of the lord king and not by decision of the court or according to the custom of the realm’.** The consequences of the casus regis would continue to be felt well into Henry III's reign.

Lord-and-heir rule The descent of lands was complicated by the existence of a rule prohibiting a man from being both lord and heir of the same tenement.” The problem usually arose from family gifts, normally to younger sons. Glanvill gives the following example. A second son received seisin of a grant, with the consent of his older brother, but then predeceased his father. The father then claimed that the land should revert to him. However, there was a rule against this: When a dispute happens about this in court, the eldest son shall answer his father,

who is claiming the right in that land, by saying that his father ought not to be heard on this because it is universally true according to the law of the realm [quia generaliter verum est secundum jus regni| that no-one can be at the same time heir and lord of the same tenement.

This is presumably because the homage that the father had taken barred him from inheriting the land. Yet the same logic defeated the eldest son’s claim too, because as heir he might become lord of the land, and then that land would not lawfully remain with him for the aforesaid reason [i.e. the lord-and-heir rule]; if then he cannot keep it permanently, how can he claim it by hereditary right? By the same reasoning, it seems that the youngest son can exclude all the others regarding it.

Here we have legal logic defeating claims that might well have seemed reasonable. Glanvill went on to point out that similar problems might arise with gifts to younger brothers, but finally has to admit an end to the force of the rule, allowing instead a decision ‘in the court of the lord king by the counsel of the court out of equity:

"°° RCR, ii. 189; for Hubert de Burgh possibly backing the grandsons, see PK/, i. no. 3113; note also the comments of Lady Stenton in PKJ, i. 90-1. See also PKJ, ii. nos 484, 528; CRR, i. 72; i. 187, vi. 134-5. For comment, see Milsom, Legal Framework, 175-6. ‘°° For what follows, see Glanvill, vii. 1, ed. Hall, 72-4. See Milsom, Legal Framework, 140, 142, 151; Hudson, ‘Leges to Glanvill’, 238-9. See PKJ, iv. no. 4073, for the lord-and-heir rule reportedly

being used as an argument in court in the first decade of thirteenth century. For argument clearly informed by the rule, although not citing it, see CRR, iii. 323. Note also CRR, iii. 24; v. 166-7.

652 PART III: ANGEVIN ENGLAND Grants restricted to heirs of the grantee’s body

In marriage and other family settlements and also in other types of grant, a restriction might be specified as to heirs.“° Thus in Henry II's reign William de Roumare gave a man lands for his homage and service, to be held in fee and inheritance from William ‘if he has an heir from his married wife’. If not, the land was to return to William’s demesne after the man’s death." The effect of the lord-and-heir rule was thereby avoided. Such grants grow in frequency from about 1200.” They restricted heirs considerably more narrowly than custom had done in the Anglo-Norman period, for example excluding brothers in the absence of sons. They offered lords and families a means of controlling lands within and beyond their own lifetimes.” Overall, therefore, the heir’s claim to succeed to a free tenement was significantly reinforced by the Angevin reforms, as well as by the type of pressures that we saw at work in the Anglo-Norman period.'** Problematic cases continued, and

even when the norms enforced in the royal court were clear, quarrels might arise. Dispute might occur when those norms differed from the expectations of one of the parties; for example some lords may have been resistant to allowing immediate inheritance by unmarried women.'* In addition, tenants-in-chief, lacking the routine protection of the new royal actions, did not enjoy the same security of inheritance.'*® Glanvill makes various

relevant points. Whereas a lord was only to take the inheritance back into his hand if he was uncertain whether the person offering homage was the just heir, ‘the lord king is accustomed to do this concerning all his chief baronies, for on the death of any of his chief barons, the lord king immediately retains his barony in his hand until the heir makes his satisfaction [grantum] concerning relief, even if the heir is of full age’. The level of relief was not set; rather ‘the chief baronies are accustomed to make satisfaction to the lord king concerning **° See Kaye, Conveyances, 144; also below, 787-91, on maritagium. ‘* Danelaw Documents, no. 519. It is of course possible that this was a gift in the context of a marriage. ** See also J. Biancalana, The Fee Tail and the Common Recovery in Medieval England 1176-1502 (Cambridge, 2001), ch. 1; Kaye, Conveyances, 122.

“5 See e.g. Fines, sive pedes finium, i. 102, 251; Pollock and Maitland, ii. 16-17; Hudson, Land, Law, and Lordship, 113. “™* See above, 373-4. It should be noted that succession to office was less certain than to land; see e.g. below, 750, on heirs to earldoms having to wait for royal confirmation; Howden, Chronica, s.a. 1176, ed. Stubbs, ii. 105, on Henry II taking into his own hand all castles of bishops, earls, and barons, and placing his own custodians in them; Brand, ‘Rise and fall of the hereditary steward’; Holt, Magna Carta, 106.

“> See Biancalana, “Want of justice’, 509. ‘4° See above, ch. 23. For the situation in the early years of Henry II’s reign, see White, Restoration, 100-12.

24 LAND 653 their reliefs according to the mercy and will of the lord king’.”” The Dialogue of the Exchequer, too, mentions that the sum for relief of a barony was at the king’s good will. Furthermore, its author notes, although he does not accept, the opinion that those who failed to pay relief when summoned lost the estates that they sought.’** Such conditions left succession at tenant-in-chief level open to financial exploitation and political manipulation by the king.'”

6 ALIENABILITY The distinction between inherited land and acquisition was still very important in Glanvill, and was made in some early plea roll cases, although it is possible that its significance diminished thereafter.°° Glanvill states that if a man ‘has both inheritance and acquisition, then it is indisputably true that he can give permanently any part or all of his acquisition to whomsoever he wish. He can also, notwithstanding this, give reasonably from his inheritance. If he had only inherited land, he could give part away to any stranger (cuilibet extraneo cuicumque voluerit, perhaps indicating anyone who was not a relative), but if he had more than one son, the heir’s consent would be necessary for a gift to a younger son. If he had only acquired land, again he could give part away, but

not to the disinheritance of his son. If he had no heir of the body, he could give away part or all of the land." Glanvill does not specify the proportion of land that would be considered a reasonable alienation. Similarly case records do not give evidence for a set proportion, although we do find parties questioning their fathers’ alienation of the whole inheritance or of more than a third of his land.’* A widow had full power to make grants from her inheritance, although she might choose to obtain consent or confirmation from her heirs.’

“7 Glanvill, ix. 4, 6, ed. Hall, 108, 110. The translation of grantum is not certain; it might also indicate the giving of surety or partial payment; DMLBS, s.v. ‘grantum’. “8 Dialogus, ii. 24, ed. Amt, 180-2.

° For high levels of relief and other financial exaction, see Holt, Magna Carta, chs 5 and 9, and e.g. Lawsuits, no. 495. For politics affecting, for example, female inheritance at tenant-in-chief level, see Milsom, ‘Inheritance by women’, 237-8, Holt, ‘Heiress’, 257. ‘°° For mention in an early plea roll case, see RCR, i. 438. *°! Glanvill, vii. 1, ed. Hall, 70-1. *°? See RCR, i. 427; CRR, vi. 201, vii. 23; in neither case is a decision given regarding this aspect of the plea. See also CRR, i. 87, again between brother and sister over maritagium; the case was decided in favour of the sister, on the grounds that the father had held other land. Note also e.g. CRR, v. 47-8. Cf. TAC, 81, ed. Tardif, 99-100, specifying one-third. °° See e.g. Lawsuits, no. 380; CRR, iii. 134-5; vi. 290. On alienation of lands in wardship during an heir’s minority, see below, 808.

654 PART III: ANGEVIN ENGLAND Process Alienation continued to be by subinfeudation or substitution. It is possible that the proportion of alienations by the latter method grew, perhaps linked to an increase in sales. Various forms of ceremony might mark gifts, for example pledging of faith, and witnessing gave further strength.** A formal transfer of seisin was necessary for a grant to be of lasting, legally enforceable, effect. Glanvill

tells us that if no seisin followed a gift, ‘after the donor’s death nothing can be effectively sought against the will of the heir, since this is understood according to the accustomed interpretation of the realm to be rather a naked promise than any true gift.’* It is possible that livery on the land was increasingly desired, perhaps

under pressure from royal justices.*° However, such livery does not appear to have been a requirement; livery in a court might suffice, particularly if followed by continuous seisin of the land and receipt of profits.’

Further security for a grant could be obtained through documentation. Possession of seals spread down society, certainly indicating wider use of the written record but perhaps also a growing capacity to alienate lands.’* The wise beneficiary might insist that previous documentation relating to the estate be

transferred.’ Particularly notable is the use of final concords made in the king’s court to secure transactions. Such concords acted as conclusive proof against future challenge.°° Their desirability is reflected in the numbers surviving, often concerned with very small parcels of land. About 150 final concords dating from

1198-1202 survive from Essex, over 450 from Norfolk.’ It is hard to tell what proportion arose from real disputes, what proportion from collusive litigation intended to secure a conveyance, but it seems certain that some were of the latter

*°* See Postles, ‘Gifts in frankalmoign, 340-1, ‘Choosing witnesses. At ‘Choosing witnesses; 340-2, he points out that women sometimes appear as witnesses in charters recording other women's transactions, whereas in charters recording mens transactions, women only normally witnessed as wife of the grantor.

°° Glanvill, vii. 1, ed. Hall, 69-70. Note also Glanvill, x. 8, ed. Hall, 123-4, on loans for which transfer of a gage did not follow. See further Hyams, ‘Warranty’, 470; Biancalana, ‘Widows’, 293, 302. The existence of a charter did not remove the need for livery of seisin: see e.g. CRR, iii. 267; iv. 39-40; v. 28-9; v. 272. ‘°° See Thorne, ‘Livery’. *°” Note Thorne, ‘Livery’, 40-1, 47; Kaye, Conveyances, 63. °° On the spread of seals, see e.g. Holt, Magna Carta, 292-3; also Kaye, Conveyances, 16, on those

without seals. ** See e.g. Cartulary of St. Mary Clerkenwell, ed. W. O. Hassall (3rd Ser. 71 Camden Soc., 1949), no. 101.

"°° See above, 594. "©! Feet of Fines, Norfolk, xiii. Numbers in East Anglia were particularly high.

24 LAND 655 kind. Writing slightly after our period, Thomas of Marlborough provides arguments that he put to the papal legate against Abbot Roger Norreis in 1213, prior to the abbot’s deposition. Abbot Roger ‘colluded with some of our opponents and surrendered possessions to them in a law case [in jure]’, as well as losing others through contumacy. The legate could not recover such lands, “because they were possessed by a title other than gift of the abbot’, that is, by judgment of the king’s court.’”

Consent to alienation The proportion of charters recording gifts to churches that mention the consent of the donor’s heir continues to vary between benefactors and between beneficiaries during the Angevin period.’ To take two Oxfordshire houses, many charters for Oseney mention such consent into the thirteenth century; Eynsham charters do so less frequently.’** In several instances there does appear to be a pattern of decline in assents at least in gifts to churches in the late twelfth and early thirteenth centuries. Both the disparity and the decline suggest that there was no great legal advantage in recording the heir’s consent.’® Pleading of the absence of such consent does not seem to have brought heirs success in the king’s court, although pleadings that do mention consent suggest that, whilst not a requirement, it was still useful to a party seeking to establish their right on the basis of a gift by their opponent’s ancestor.’®* On the other hand, heirs could anyway be forced to maintain their predecessors’ reasonable gifts through the warranty that they owed.’” Glanvill mentions the heir’s consent in his discussion of gifts to younger sons. In contrast to the freedom to give part of his inheritance to a stranger, ‘if he has *°? Thomas of Marlborough, History, iii. 475, ed. Sayers and Watkiss, 450; see also iii. 227, ed. Sayers and Watkiss, 230. Feet of Fines, Norfolk and Suffolk, xxi, states of final concords that ‘the general impression is of a background of dispute’, a view qualified by Hall in his Review of Dodwell’s volume. See also Holt, Magna Carta, 124-5; Hyams, ‘Charter’, 185.

"°° On records of consent to and confirmations of alienations generally, see also Kaye, Conveyances, ch. 7. For wife’s consent, see below, 789-90, 796-8. On barons’ consent not being a requirement, see above, 365. *°* See Postles, ‘Securing the gift’; see also above, 360.

"°° See also above, 360-2, on the situation in the Anglo-Norman period. Note further Hudson, Land, Law, and Lordship, 186-7; Milsom, Legal Framework, ch. 4. On gifts to laymen other than family members, see Hudson, Land, Law, and Lordship, 197-9. "°° See e.g. CRR, vi. 170-1, 308, concerning advowson. Lawsuits, no. 375, suggests that the heirs’ consent may have carried greater weight in certain cases early in Henry II’s reign. Unfortunately, before the plea rolls, we are less likely to hear of successful claims by heirs against churches because the latter wished to record the successful establishment of their rights; note e.g. Lawsuits, no. 362. "87 See above, 595-6; in the case of gifts to laymen, homage received also had a binding effect.

656 PART III: ANGEVIN ENGLAND several legitimate sons, he cannot easily give any part from his inheritance to a younger son without the consent of the heir’. He explains this by the father’s emotions: ‘if this were allowed, the frequent disinheritance of the older sons would occur, because of the greater affection that fathers are often accustomed to have for younger sons. *** Glanvill phrases the norm in quite loose terms—the father cannot easily give any part—but he feels it to be sufficiently binding that it leaves a surprising result regarding an illegitimate son, who can receive a part of the inheritance without the heir’s consent. Charters support Glanvill in record-

7

ing the heir’s consent in gifts to younger sons more frequently than in gifts to unrelated laymen.’ In a case of 1206 a tenant opposed a claim of right by his cousin in the older line by pleading that their common grandfather had given the land to his younger son (the tenant's father) ‘through the approval and will of Richard his first-born son and heir’.”° Hugh

Richard Alvredus Robert (demandant) Hugh (tenant) It may be that the tenant saw his uncle's consent as essential to the right that had descended to him, although the consent was not recorded as appearing in the issue put to the grand assize. For Glanvill, the deathbed gift was an exception to the general freedom to give a reasonable part of one’s land: it has not hitherto [hactenus] been permitted to anyone acting in their final moments, since then an excessive distribution of the inheritance could be made, if this were

permitted to him who loses both memory and reason in the turmoil of current suffering, which sometimes happens. Therefore, if anyone in mortal sickness begins to distribute his land, which he would not in the least wish to do while healthy, it is to be presumed that this arises from turmoil of spirit rather than deliberation of mind.

"8 Glanvill, vii. 1, ed. Hall, 70. It is possible that the author of Glanvill was alluding to the internal politics of the royal family; “°° See Hudson, Land, Law, and Lordship, 200-2; also e.g. Lawsuits, no. 605. For issues of consent

arising in cases concerning other types of family grant, see also e.g. CRR vi. 134-5 (a case where the inheritance pattern is linked to that of the casus regis); vi. 140-1. In the latter case, involving maritagium, the heir’s consent is mentioned not only in pleading but also in the issue to be put to the inquest by discrete and lawful knights. 7° CRR, iv. 193-4, 258-9, v. 14. Unfortunately we do not have a plea roll entry on the outcome of the case.

24 LAND 657 However, a gift of this type, in a last will, can be made to hold for someone, if it is made with the consent of the heir and confirmed by his consent.”

The Latin is tellingly somewhat contorted, but the essential points seem to be as follows. The donor must be in full command of his senses when a gift is made.'” Otherwise the gift would stand only if it were agreed to and confirmed by the

heir, which probably means that the heir was to carry out the livery of seisin of which the dying man was incapable.’ The Book of the Foundation of the Monastery of Walden, written at the start of the thirteenth century, recounts that in the 1190s some men claimed that a law had been recently instituted that ‘no-one, however great, who had taken to his bed because of illness, is to be permitted in his final will to bequeath to anyone anything from lands or tenements that he had possessed up until then, nor even be able to confer them on monks, who are beloved beyond others’.'“ The exact content and standing of this new law is not certain, but it may be taken to confirm royal opposition to deathbed dispositions, apparent in Glanvill and the plea rolls.

The consent and participation of the lord appears to have been necessary for alienation by substitution.” As for grants by subinfeudation, we saw that in the Anglo-Norman period lords may often but not always have been willing to allow

tenants to make grants, with lords showing most concern when their services were at risk.”°

It may be because of continuing emphasis on personal service that resistance to alienation of serjeanty remained. In practice, alienations were made from serjeanties, and the king held enquiries into such alienations, for example in 1212, the focus being on those alienations that harmed the tenant’s ability to perform the requisite service.”’ In addition, the king might give special permission for alienation

‘7* Glanvill, vii. 1, ed. Hall, 70. Note also e.g. Lawsuits, no. 655. "7? See esp. CRR, i. 386-7, PKJ, i. no. 3167; CRR, vi. 351-2.

‘7° See Sheehan, Will, 272, Hudson, Land, Law, and Lordship, 195-6. For William de Sackville’s long-suffering wife Albereda (on whom see above, 442-3), completing a gift after her husband’s death, see Cartularium de Colecestria, i. 163. ‘’* The Book of the Foundation of Walden Monastery, iv. 18, ed. and trans. D. E. Greenway and L. Watkiss (Oxford, 1999), 144; see Pollock and Maitland, ii. 327, Sheehan, Will, 271-2. ‘7° See Milsom, Legal Framework, 106-7, 149-53; also P. A. Brand, “The control of mortmain alienation in England, 1200-1300’, in his Making of the Common Law, 233-44, at 233 n. 4. Milsom, Legal Framework, 151-2, notes a dispute in Suffolk manifested in two related cases in 1206, which may indicate a substitution being made without the lord’s knowledge, the lord eventually having to accept one party after they brought de homagio capiendo. However, the dispute is rather unusual, involving maritagium (and hence probably no immediate demand for homage) and also delay in the complete delivery of the land given as maritagium; see CRR, iv. 104. "7° See above, 362-5. ‘”” Book of Fees, i. 52-228.

658 PART III: ANGEVIN ENGLAND from serjeanties held from him. The prohibition of alienation would come in effect to act as the basis of a licensing system, sometimes operating retrospectively.”* What of lands other than serjeanties? Some charters in the Angevin period record seignorial consent to their tenants’ gifts,’”° and we cannot tell of proposed gifts that lords blocked or of gifts made with unwritten permission. A final concord of 1200 laid down that a certain Richard could not give or sell or gage anything from a tenement of William de Warenne, his lord, without William's counsel and consent. Richard went on to sell the land without his lord's consent, and William successfully enforced the chirograph against him in the king’s court.” It is hard to tell whether the fine indicates the routine necessity for seignorial consent or the need for explicit specification of such a requirement.” The same is true of provisions that a donee could assign land to whomsoever he wished, except to men of religion, the fear being the loss of incidents and possibly service through alienation to a monastery.” Did, then, the royal courts treat seignorial consent as necessary for a gift to be valid? In 1212 the prior of the hospital of Lincoln was summoned to show why he had entered into half a knight's fee, which was from the fee of a certain William,

without Williams permission.’ Also summoned was Williams tenant Adam, to show why he had sold that land to the prior without Williams assent and to William's disinheritance. Adam did not challenge this norm, but argued that he was fulfilling his services and had other lands held from William that sufficed for this purpose. William accepted the argument that he was not behind with service,

but denied that Adam had kept any of the fee in demesne but rather had given it all away in alms, and therefore William would be losing homage and wardship when it arose. Although we do not have the final judgment, certain conclusions can be drawn. In this case, at least, the court took very seriously the lord's insistence

‘78 See Kimball, Serjeanty, ch. 9.

7? See e.g. Luffield Priory Charters, no. 405, recording that a gift was made with the lord’s assent and in his court; see also above, 560. Note also Hudson, Land, Law, and Lordship, 226. See Kaye, Conveyances, 132-3, on clauses stipulating a right of pre-emption, 211 on the rarity of seignorial confirmations of temporary grants. "8° Feet of Fines, Norfolk, no. 237, CRR, ii. 97, 122, 133, 224, iii. 24-5. Interestingly, this decision did not simply invalidate the sale; rather the purchasers were summoned to answer in the king’s court. One of them then pleaded that Richard had held the land from the abbot of Ramsey, and that he himself had bought it through the will of the abbot, and he vouched the abbot to warranty. ‘! Cf. the arrangement in Lawsuits, no. 651. *S* See e.g. CRR, iii. 323-4; v. 203; note also below, 863-4. On problems of distraining lands held by a monastery because of its liberty, see e.g. CRR, iii. 69-70. For charters restricting alienation, see also Kaye, Conveyances, 73. For arrangements, made in the lord’s court, that the donor and his son acquit alms of all secular services towards their lord and lord’s heirs, see Earldom of Gloucester, no. 44. "8 CRR, vi. 247, 276, 315, 342-3.

24 LAND 659 that his consent should have been obtained."** However, this may not have been a requirement applying to every gift that a tenant made. Rather, the lord may have been appealing to a norm requiring the lord's consent for any alienation that might be to his disinheritance. The tenant did not challenge the norm, but argued that the grant was not to the lord's disinheritance. The two parties then differed as to what constituted the lord's disinheritance; did it just rest on past performance of service or did it take into account future service and also incidents such as wardship? As Glanvill might be interpreted as suggesting, therefore, the royal courts judgment would concern the reasonableness of the tenant's gift in relation to rights and dues.

Attornment We saw that in the reign of Henry I at least great men expressed dislike of the idea that they, with their lands and service, could be granted to another lord.’ However, such attornment occurred in the Angevin period too, and in some cases it is not clear whether it was made with the tenant's consent.’*° On other occasions

the grant was made with the recorded assent of the tenant, or at least with him witnessing.’* In 1193, the future King John granted to the monks of Margam ‘the service of Hugh of Hereford from his land, as much as pertains to me, if that Hugh is willing to grant this.’** It is unclear here whether Hugh would have done homage to the monastery. By the end of the 1220s, Bracton would take the line that services could always be attorned, even against the tenant's will, but that the tenant might have grounds for blocking the attornment of his homage."

Bequest of land

Lands could be passed after death to a party other than the heir in various ways.'°° We have already dealt with deathbed gifts. Alternatively, a gift could

"8 Note that Adam had at one stage been in the king’s prison, and had made a fine with the king for 50m., and because of that 50m. he had sold the land to the prior; his standing conceivably affected the litigation. "8° Above, 365-6. "8° See e.g. PKJ, iii. no. 993. Note also e.g. Lawsuits, no. 546; Kaye, Conveyances, 99-100. On attornment of villeins with their lands, see below, 756. "87 See e.g. London, British Library, Add. Ch. 28347. “°° Earldom of Gloucester, no. 138.

"°° Bracton, fos 81b-82b, ed. Thorne, ii. 237-9; see further Pollock and Maitland, i. 347-9, which points out that Bracton’s account may exaggerate the strength of the tenant’s position; note also the use of fines for attornments. °° See also Sheehan, Will, 269-74; also below, 835, for bequest of land in boroughs. Note also Kaye, Conveyances, 75-9, on charters recording grants to a person and the heirs of his or her choice.

660 PART III: ANGEVIN ENGLAND be made in the donor's lifetime, but only to take full effect after his death. This might work either by seisin only being transferred after his death, in which case the transaction closely resembled that by testament, or by a gift inter vivos with donor transferring seisin but then receiving the gift back for life. In addition there might be a testamentary bequest, being carried out by the deceased’s heir or executors.’ After discussing testamentary bequest of chattels, Glanvill states that a man ‘can dispose of nothing from the inheritance in a last will, as has been said earlier.””* The cross-reference is probably to his discussion of deathbed gifts,

and Glanvill does not seem to have distinguished the two types of transaction.’ Both passages mention ‘the inheritance’, but this need not indicate that the man’s acquired lands could be bequeathed; rather ‘the inheritance’, with no possessive pronoun, may simply indicate the land remaining in the dying man’s seisin and about to pass to the heir.’** As with deathbed gifts, such testamentary gifts of land

faced the problem of the transfer of seisin. The dying man could not perform this in his final moments, and if no transfer were made before his death, he died seised, leaving any beneficiary reliant on the heir’s good will. The heir, on the other hand, had the advantage of mort d’ancestor to enforce his claim to those lands."> Gifts made in the donor’s lifetime but without livery of seisin faced similar problems."° The alternative was a gift inter vivos, as outlined above. The need of such arrangements, like the urban privilege of bequest of land,” shows the strength of norms working against gifts of which seisin passed only after death and therefore against bequest of land. Overall, the prevention of post obit gifts appears an exception to a general move towards greater alienability of free tenements.’* The same movement is indicated by the inclusion of assigns, that is of those to whom the land might in future be

William Marshal seems to have made grants of land when he knew himself near to death, but before he was on his death-bed; History of William Marshal, ll. 18136-68, ed. Holden, ii. 408-10. "1 See below, 683-4. * Glanvill, vii. 5, ed. Hall, 80. "> See above, 656-7. * Cf. Glanvill, vii. 1, ed. Hall, 70-1, on gifts to younger sons and bastard sons. °° Reading, no. 704, is a will recording gifts of land, but it is possible that transfer of seisin was made in the donor’s lifetime; see also nos 705, 706, 769. Henry II’s confirmation, Reading, no. 33, describes these as ‘reasonable gifts’. °° See also e.g. RCR, i. 427; note that the donor’s son pleaded not only that his father died seised and that the claimants never had seisin, but also that his father’s gift was of more than one-third of his land (see above, 653). Cf. RCR, i.64-5, where the argument of the donor’s son that his father died seised did not prove decisive. °7 Below, 835. "8 See also Kaye, Conveyances, 25, about types of grant being made that would have been held void by later lawyers.

24 LAND 661 assigned, along with the donee and his heirs as the recipients of gifts.°° Concern about alienation would be reflected in lords’ efforts to control grants to the Church, a restriction that in 1217 would be included in the reissue of Magna Carta.”°°

Free tenements: conclusion Customs regarding free lands were set according to the nature of the tenure not the status of the tenant; for example, a knight and a free tenant held socage land in the same fashion.**' We will return to the anomalous position of the tenant-in-chief in relation to the king when we look at Magna Carta. Except at that level, the Angevin period, particularly from the latter part of Henry II's reign, saw a further strengthening of the tenant’s hold on his free tenement, a weakening of the lord’s ability to exercise control. As we have seen, the lordship element was not eliminated, but the diminishing role of the honour court, together with elements such as long tenure and the complexity of tenurial patterns, were likely to continue to strengthen the position of tenants.” Meanwhile, past succession within the family hardened the tenant’s relationship to the free tenement, loosened the tie of lordship.’ A growing land market

may have encouraged a perception of land transactions as horizontal, rather than the vertical emphasis that existed when future services, not an immediate purchase price, were the central concern of the grantor.’ A weakening of lordship was likely to encourage use of royal actions, by ten-

ants and also by lords; such resort to royal actions might in turn reduce the capacity of lords to act without royal help. As we have seen, mort d’ancestor and other actions reinforced heritability, whilst a combination of novel disseisin and the rule requiring a royal writ restricted the lord’s disciplinary jurisdiction.

Although lordship entered into many cases in many ways, it was the person seised of the land in demesne who should answer a claim to a free tenement.”

°” See e.g. EYC, i. no. 422; Douglas, Social Structure, no. 65; for reference to assigns, see also e.g. Danelaw Documents, no. 175; Kaye, Conveyances, 72-3. *°° See above, 658, below, 863-4.

7°! Cf. the distinctions e.g. in Grand Perche but not in Normandy noted by J. Yver, Egalité entre héritiers et exclusion des enfants dotés: essai de géographie coutumiere (Paris, 1966), 131-3. *°? See also Hudson, Land, Law, and Lordship, 48-51.

*°° Note also Abbot Samson’s concerns about hereditary tenure of the stewardship or of a hundred; Lawsuits, nos 531, 627, above, 627-8.

*°* Note e.g. the multiple sales that may have caused the difficulties underlying CRR ii. 208, 262, 288, iii. 180, 281-2, Feet of Fines, Norfolk and Suffolk, no. 457. On charters that conceal sales, see Kaye, Conveyances, 69.

*°° See e.g. RCR, i. 20; CRR, i. 97; Lincs., no. 494. For an increasing tendency to emphasise the horizontal dimension in disputes, except when the lord was immediately involved as claimant or

662 PART III: ANGEVIN ENGLAND Such developments encouraged views that the person seised in demesne had extensive control of the land; the lord had interests primarily in services except at key points in the tenant lifecycle. At the end of the Cockfield case, Bury felt it had lost, because the tenant retained the land, the abbey only the services.”

7 LEASES Lords continued to make use of life leases in order to retain control of lands and other rights.*°’? Glanvill’s position on the tenant for life is unclear, but it does

appear that in his time and after such tenants were considered to hold a free tenement and therefore were covered by novel disseisin and the writ rule.*°* In the face of inflation at the end of the twelfth century, lords may have increased use particularly of leases for a term of years or at their will, and these did not enjoy such protection.*°® The termor or gagee should not answer a challenge by a third party, although on occasion it may have been up to the lord to appear and ensure that the court did not make a decision without him.”° The reasons for the inclusion of life tenancies as ‘free tenements’ but the exclusion of terms of years are not entirely clear, but it does appear that the term of years was considered less honourable and that, as is suggested by Glanvill’s discussion of warranty, the termor should not consider the land ‘his’.”" However, the distinction also tenant, see also e.g. Royal Writs, 212, suggesting the emergence by 1170 of the deforciant clause in the writ de recto. *°° See above, 629-30. *°7 See e.g. above, 627-30, on the Cockfield case; note the abbot’s claim that a tenant’s hereditary tenure would risk forfeiture to the king if the tenant wronged the king; cf. above, 121. On records of grants for life and lives, see also Kaye, Conveyances, ch. 8.

*°® Note that Glanvill, i. 5, ed. Hall, 5, seems to be contrasting fee and free tenement; the latter term may have been taken to cover both fee and life-tenancy. See also Simpson, History of Land Law, 70-1. *°° For awareness of the problems of long-term fixed rents, see Lawsuits, no. 630. Leases for fixed term: e.g. PKJ, ii. nos 479, 545-6; iv. no. 4290 (two years); tenure at will, PK/, iii. no. 844. In CRR, i.

400, an alleged disseisor in novel disseisin claims that he was simply seizing into his hand land that he had leased to the plaintiff for twelve years. Nevertheless, the assize proceeded, and the decision was in the plaintiff's favour; presumably the court had not accepted the claim that the plaintiff was a termor. On records of grants for terms of years, see also Kaye, Conveyances, ch. 9. **° See Glanvill, iii. 1, ed. Hall, 37; RCR, i. 355; for the lessor having to assert his right to answer, see CRR, iii. 165. For warranty bya termor ina case of mort d’ancestor, see RCR, i. 355, ii. 47, cf. Three Rolls, 133; Bailey, ‘Richard I’, 196.

*** See Simpson, History of Land Law, 71-7. For a demandant claiming that the tenant held only for a term that had now past, the tenant that he held in villeinage from a different lord, see CRR, vii. 46, 108. Terms of years may often have been used for land gaged or mortgaged for loans; see below, ch. 26.

24 LAND 663 led to certain anomalies between legal norms and social situations, for example

between the termor with a long lease and the life-tenant who might have the realistic expectation of holding only for a short period.

8 VILLEINAGE TENURE The focus of the new royal actions on free tenements also excluded lands held ‘in villeinage’; use of the word villenagium to describe a form of landholding, rather

than a particular piece or area of land,’ seems to have emerged at the end of the twelfth century.’ The characteristics of villeinage tenure are closely tied to issues of villeinage status, and it is sometimes hard to distinguish the two.”* The status of the tenant was raised, often in combination with other arguments, in many cases about the nature of the land.”* Presumably this was because it was commonly thought that a villein could not hold free land, although a free man could hold in villeinage.”®

We saw free and unfree tenure being distinguished in the Anglo-Norman period.’” The distinction was sharpened by the Angevin reforms, even if there were still not precise, universal indicators, for example specific obligations, by which to determine whether a tenement was free or unfree.”"* The many cases that arose from a free man holding in villeinage may have stimulated particular sharpening of thinking.” Desire for precision is also shown by a modification made in the 1217 reissue of Magna Carta; whereas in 1215 it had just been laid down that no free man was to be disseised except by lawful judgment of his *™* For villenagium being contrasted with dominium, see e.g. Lawsuits, no. 576, Book of Fees, i. 7.

*"* For case evidence, see above, 606, 617; also e.g. PRIRI, 69; Lawsuits, no. 579, reporting the verdict of a jury in 1201; the case is discussed by Hyams, Kings, Lords, and Peasants, 253-4. *™ See also below, ch. 28; for dower, see below, ch. 29.

**? See e.g. CRR, i. 187, 262, 278. Such arguments meant that cases about tenure could move on to proof of status. More generally, various pleadings show that it was useful to bring forward several arguments in case one was rejected, for example for lack of evidence. In general, the status question was Settled by suit of kin, the tenurial one by the services and customs owed; see below, 765-6, and also Milsom, Legal Framework, 23. **° In CRR, v. 94-5, the plaintiff seems to be arguing only about the tenant’s tenure, not his status, although he does mention that he had sold the tenant’s sister. However, not only was the plaintiff's plea unsuccessful but the case may be an unusual one, in that the tenant was a priest (or at least is referred to with the cognomen ‘presbiter’). For the limited evidence of villeins acquiring free lands, see Kaye, Conveyances, 359. *"7 See above, 367-9.

**8 See Hyams, Kings, Lords, and Peasants, ch. 11, esp. 186, 198. For a case where jurors could not decide whether a tenement was free or not, see below, 665. ** See e.g. CRR, vii. 108, also cited above, 662 n. 211, below, 666 n. 238.

664 PART III: ANGEVIN ENGLAND peers or by the law of the land, the 1217 reissue specified “disseised of any free tenement of his ....””° Tenure not status was to determine liability to disseisin, and thereby rules of tenure were clarified. The new royal actions, with their emphasis on free tenements and on holding in fee, played a considerable part in sharpening the distinction between free and unfree tenure.” Earlier it had on occasion been stated or argued that claims from peasants should not be entertained in particular disputes,” but the new actions brought a much greater frequency and regularity to such rulings.” Actions of mort d’ancestor were defeated on the grounds that the claimant’s ancestor had been a villein or held in villeinage.*** Cases of novel disseisin turned on whether land was a free tenement or villeinage, or whether the plaintiff was villein or

free.” Services and the nature of tenure were also of obvious concern to seignorial administration. Lords might grant that villein lands should henceforth be free, either temporarily or permanently,” or that a tenant should undertake villein services from a tenement that he had previously held freely.’”” A seignorial survey at Glastonbury in 1189 asked who held freely, what land previously owing work services had been made free, and whether demesne had been placed in freedom

or villeinage. The resultant documentation listed free tenements, land that had been made free, and lands held “by grace’. In many cases the distinction between free and unfree tenure was likely to be clear, but problematic cases remained and produced disputes. In a case of *2° Magna Carta 1215, 39, Magna Carta 1217, 35. *2" See esp. Hyams, Kings, Lords, and Peasants; also Milsom, Legal Framework, esp. 21-4, 38. *22 Note esp. Lawsuits, no. 449; Royal Writs, no. 175.

*2° Note that people who would later confess to holding in villeinage might manage to obtain a royal writ. Either they had concealed the fact when obtaining the writ, or there was not a complete filtering process at that stage. See e.g. CRR, ii. 99. *2* See e.g. Three Rolls, 133-4; RCR, i. 357-8; PKJ, ii. no. 453; Lincs., nos 54, 155; note also Three

Rolls, 73; Milsom, Legal Framework, 167. The restriction included lands held by villeins on the royal demesne; cases concerning these, according to a plea roll entry of 1202, were, ‘according to the custom of the manors of the lord king, accustomed to be the subject of an oath [fieri... jurata] between villeins in that manor and not in the presence of the justices’; CRR, ii. 110-11. See also CRR,

vi. 288, 294. On the later position of unfree and customary tenants on current and former royal demesne, see Hyams, Kings, Lords, and Peasants, 248-8; R. S. Hoyt, The Royal Demesne in English Constitutional History: 1066-1272 (Ithaca, 1950), ch. 6; M. K. McIntosh, “The privileged villeins of the English Ancient Demesne’ (1976) 7 Viator 295-328. *2° See e.g. RCR, i. 84; CRR, i. 187, 262, 278; iii. 140; vi. 383; Lincs., no. 423. See further Milsom, Legal Framework, 21-4; below, 754. *2© See CRR, ii. 13-14; vii. 219; note also vii. 60-1.

*27 See RCR, i. 357-8; the jurors did not know whether the tenant had been forced to undertake the heavier services. Note also CRR, vi. 117. *28 See Glastonbury, ed. Stacy, 103, and e.g. 112, 153, 173, 200, 203, 220.

24 LAND 665 1214, jurors stated that they did not know if the tenement of a plaintiff in novel disseisin was free or not. They listed various agricultural services, fixed and not particularly heavy. The jurors had never heard it said that those concerned made a fine with the lord about marrying daughters or selling oxen. The court then decided that the services owed indicated that it was not a villein tenement, and that the plaintiff was to have seisin.”” This pattern fits well with a charter that relaxed the dues owed to the abbot of Peterborough by a tenant, when the land was now granted to him and his heirs for his homage and service, to hold freely; the performance of homage may well have been the clearest ceremonial manifestation of the new free tenure.”°

Free tenements should owe specified fixed services, whereas those from unfree tenures might involve uncertainty.” Agricultural services were typical of unfree tenures but limited agricultural services could also be due from free tenements.” Commutation to money payment transformed neither status nor the nature of tenure, and was revocable unless there was a formal freeing.”* Subjection to tallage, an arbitrary seignorial exaction, was a normal but not quite universal characteristic of villeinage tenure.** A safer indication of villeinage

tenure might be merchet, payment for permission for a daughter to marry, but such payment might also be required from the free and hence was not always decisive in jurors eyes.” Furthermore, merchet may on occasion have been only an indirect indicator of tenure, via status; a villein would owe merchet and have only villeinage land, but a free man taking on a villeinage tenement might *2° CRR, vii. 240-1.

*°° Carte nativorum, ed. C. N. L. Brooke and M. M. Postan (20 Northamptonshire Record Soc., 1960), no. 516.

**" For telling use of the phrase ‘for all service’ in a claim to hold freely, see CRR, iv. 22-3. Note the

repeated use of the phrase ‘for all service’ with reference to free tenements in the 1189 Glastonbury survey; see e.g. Glastonbury, ed. Stacy, 112, 136-7 (here the phrase ‘but it is for works’ seems to indicate a wrongful imposition), 146, 158-9, 163, 208, 213, 215, 217-18. See also Hyams, Kings, Lords, and

Peasants, 194-6. *2? See e.g. Glastonbury, ed. Stacy, 167-8. *2° See CRR, vii. 60-1; Poole, Obligations, 27-8; Glastonbury, ed. Stacy, 46-8. *24 See Hyams, Kings, Lords, and Peasants, 191-4; note e.g. CRR, i. 216; vi. 373. St. Benet of Holme, no.

211, refers to a gift of 20 acres to a man and his heirs ‘to be held in villeinage without charter, for which, however, his heirs give no tallage. This might seem a clear contradiction of the association of villeinage and tallage; however, two qualifications should be made to this conclusion: first, that the freedom from tallage was granted only to the donee’s heirs, and, second, that the phrase ‘in villeinage’ might just refer to an area of land, within which a holding on special terms was being allocated.

*°° See Northants., nos 789, 793; Carte nativorum, no. 516; Vinogradoff, Villainage, 201-2; Douglas, Social Structure, 74-5; Hyams, Kings, Lords, and Peasants, 189-91. In CRR, iii. 143, some significance seems to be attached to whether, when the tenant wished to give his daughter, payment of a lance should go to the lord or his servant. See also below, 757, on seignorial control of marriages of heiresses and widows.

666 PART III: ANGEVIN ENGLAND not automatically owe merchet. The connection between tenure and status remained complex.”* Definition of obligations to lords sharpened, but did not render absolutely precise, the division between free and unfree. Given that holders of unfree tenements could not successfully bring actions, most notably novel disseisin, in the king’s court, their security of tenure and succession relied on the needs of the lord and on the customs and decisions of the manorial court.”” This left the tenant vulnerable. In 1214 a tenant answered a writ of entry by stating that he did not hold of the claimant, but that, though free in body, he

held in villeinage from the bishop of London ‘through servile customs and in villeinage, thus that the lord bishop could take that land into his hand when he wished’. He was asked if he wished to vouch the bishop, but replied that he did not, because the bishop had seized the land into his own hand as soon as he had learnt that the tenant was impleaded concerning it. The tenant did not wish to vouch to warranty anyone concerning land whereof he was out of seisin.”*

Succession to unfree tenements shows a combination of considerable customary security with vulnerability arising from lack of access to royal actions, most notably mort d’ancestor.”° Patterns of inheritance, in terms of priority and partibility, varied by the custom of the locality.”4° Rather than relief, villeins paid heriot, often involving the best beast of the deceased going to his lord.** However, heriot was not confined to villeins, and could not be used as a secure test of personal or tenurial unfreedom.’*”

Similarly, any alienation a villein made from his lands was not protected by royal actions or in the royal courts.’ A lord might use prompt self-help to recover an alienation of which he did not approve. However, the case might be *°° See e.g. CRR, i. 216 (on the significance for Bracton’s thinking on status and tenure of this and subsequent disputes relating to Bestenover, Sussex, see Hyams, Kings, Lords, and Peasants, 56-9); vi. 288, 294; vi. 335. Lord and unfree tenant might be related, which added to the social complexity and may have led to conflicting legal perspectives; see CRR, vii. 150-1, 225, 307. *°7 See Hyams, Kings, Lords, and Peasants, ch. 6. *°8 CRR, vii. 46, 108, 133.

*8° See Hyams, Kings, Lords, and Peasants, ch. 7, esp. 66-9. **° See esp. Faith, ‘Peasant families’. Note also CRR, xii. no. 361, where one party claims that the

other is of villein status, ‘since the last-born [postnatus] son always has his father’s land, just like other villeins of the area [patria]’. The second party denies villeinage but admits that this is the inheritance pattern, ‘since the land is socage and is not free thus that the first-born son ought to have it’. The jury verdict went in favour of the latter party. *4. Note also Rotuli de dominabus, ed. Walmsley, no. 115, referring to the heriots of men, cf. no. 119, to the reliefs of free men. Note the continuing use of the English term ‘heriot’ rather than the imported term ‘relief’ ** Hyams, Kings, Lords, and Peasants, 77-8. *4° See Hyams, Kings, Lords, and Peasants, ch. 5. On grants by villeins, see e.g. Kaye, Conveyances, 362-3.

24 LAND 667 drawn into the king’s court if the donor could plead that he held freely, and decided there in his favour if he could prove such tenure.*** The Angevin reforms thus sharpened the distinction between free and unfree

tenements, emphasising the limitations of the tenants’ hold on the latter.?* However, we have also seen that the distinction was not always obvious, and jurors sometimes said that they did not know whether a tenement was free or villeinage.**° There were not essential characteristics of tenure that always indicated whether it was free or unfree.’*” Meanwhile, status and tenure remained very closely connected issues, which the courts may not yet have felt it entirely necessary to separate.’** The best that recognitors or jurors might be able to do in a case over the freedom of a tenement was to say that the plaintiff was or was not a villein, and this might suffice for the court.”

9 ECCLESIASTICAL LANDHOLDING AND ALMS TENURE Much ecclesiastical land was held by the types of tenure already discussed. As in the Anglo-Norman period, it was held to be in accordance with canon law that lands of churches should not be dispersed, but in practice alienations did occur.*° An ecclesiastical donor might emphasise that the gift was not from demesne but from escheat.’ For monastic and cathedral churches, protection against damage bya profligate prelate was provided by requiring that the convent or chapter consent to grants and by a continuing hardening of the division of lands between prelate and convent or chapter.?”

*** See CRR, v. 94-5, on which see also above, 663 n. 216; Hyams, Kings, Lords, and Peasants, 41-2.

**° Note also Dialogus, i. 11, ed. Amt, 86, making very clear the limitations of the villein’s hold on his lands: both villeins and the lands that they cultivate so that they might serve their lords ‘are rightfully considered demesnes’. **° See above, 665; note also Three Rolls, 70. *47 Note also the references to holding ‘more freely’, indicating a sense of gradations rather than a simple binary divide; see Glastonbury, ed. Stacy, 214; Kalendar of Abbot Samson, 6. *“8 See above, 666 n. 236, on the Bestenover case.

** See CRR, ii. 122-3; the co-plaintiff was the man’s wife, and one may wonder whether the case arose from a free man marrying a villein woman. *°° See the reference in Lawsuits, no. 637, a letter of Pope Celestine III, ordering that if alienation of any of the possessions of the church of Holy Cross, near Winchester, had been made ‘against the form of law [contra juris formam]’, they were to be annulled, as would be just. *°" Lawsuits, no. 628.

°°? See e.g. Lawsuits, no. 570; Glastonbury, ed. Stacy, 15; Hudson, Land, Law, and Lordship, 234-40; Crosby, Bishop and Chapter.

668 PART III: ANGEVIN ENGLAND At least from the point of view of the royal courts, the churchmen who held in chief of the king had their possessions from the king like a barony.*? According to Glanvill, bishops and abbots could not alienate any part of their demesnes without the king’s assent and confirmation, ‘since their baronies are of the alms

of the lord king and his ancestors.» Lands were given to churches for knight service’ or in fee farm.*° We also hear of the lay fee of a church, granted out to tenants for lay service, in contrast to the ecclesiastical fee.”*” It may well be that those wishing to distrain an ecclesiastical landholder were meant to limit themselves to lay fee, leaving alone other lands.”**

One particular form of tenure was associated solely with the Church: free alms or frankalmoign. In the Anglo-Norman period the key characteristic of gifts in alms was their purpose, to support spiritual services.” In the Angevin period, the Church, supported by some donors, may have aspired to make all land held in free alms free from secular service but this was not achieved.?® Bracton

would state that the adjective ‘pure’ had to be added to “free and perpetual’ if a gift was to be excused secular service, although lands could still be considered

frankalmoign if they owed services.” Earlier evidence too shows that use of the additional adjective ‘pure’ might be intended to indicate full quittance of secular service,” but other instances show that even when the adjective was included, secular services might be owed.*®* More generally frankalmoign lands

*°° See Constitutions of Clarendon, 11. Note that William fitzStephen too referred to Becket’s barony; Lawsuits, no. 421 (p. 440). See also MTB, iv. 50-1, for use of the phrase ‘in feodo et baronia’. *°* Glanvill, vii. 1, ed. Hall, 74. See also Kaye, Conveyances, 212. *°° See e.g. Lawsuits, no. 580, which also uses the phrase ‘in fee and inheritance’.

°° See e.g. Charters of Norwich, i. no. 127, for the bishop of Norwich granting the monks of his church a manor in perpetual fee farm; no. 35 is Henry II’s confirmation, which uses the same term; Ramsey Chronicle, 345, ed. Macray, 289; Lawsuits, no. 477. See also Kaye, Conveyances, 112-13. *°7 See e.g. Cartularium abbathiae de Rievalle, ed. J. C. Atkinson (83 Surtees Soc., 1889), no. 199; The Cartulary of Cirencester Abbey, ed. C. D. Ross and M. Devine (3 vols; Oxford, 1964-77), i. no. 74 (1157 x 1172); also below, 669 n. 267.

*°° Note Glanvill, iv. 9, ed. Hall, 48. Cf. the rather different problems of distraining land held by monks in CRR, ii. 282, iii. 69-70, discussed in Milsom, Legal Framework, 118-19. *°° See above, 369.

*°° For a case that shows a contrast being made between lands held for knight service and those held in free alms quit of all service, see CRR, i. 303, PKJ, iii. no. 776. Note also that charters for eccle-

siastical grantees continued to refer to their holding of the donor and his heirs less frequently than did charters for lay grantees, but that such references did still occur; see e.g. Lawsuits, nos 499, 526, 571, 638, Kaye, Conveyances, 175. *°" Bracton, fo. 27b, ed. Thorne, ii. 93. See also BNB, no. 21, discussed by E. G. Kimball, ‘Tenure in

frank almoign and secular services’ (1928) 43 EHR 341-53, at 342-3; Douglas, “Tenure in elemosina’, 127-8; Nicol, ‘Changes in the assize utrum’,, 20. *°? See esp. Lawsuits, no. 492. *°° See e.g. EYC, ii. no. 822; Lawsuits, nos 571, 590 (saving service to king).

24 LAND 669 could owe secular services, in particular the forinsec service owed to the king.” In terms of services, then, it was spiritual duties, not secular exemption, that was the essential characteristic of alms tenure.”®

What of jurisdiction? As we saw in looking at the assize Utrum, cases concerning certain ecclesiastical lands were to be heard in Church courts. However, it is much harder to see subjection to ecclesiastical jurisdiction as a defining characteristic of free alms tenure. There was continuing variation of terminology in the context of the assize Utrum, for example with the Constitutions of Clarendon contrasting ‘lay fee’ with ‘alms, Glanvill ‘lay’ with ‘ecclesiastical’

tenement, his writ ‘lay fee’ with ‘ecclesiastical fee.” Pipe Roll entries use the forms ‘whether it is the free fee of the church or the lay fee’ of the named lay parties, or ‘whether it is lay fee or free alms’; it is hard to tell whether this is just variable usage or refers to the specific circumstances of the cases.” Entries in early thirteenth-century Lincolnshire Assize rolls ask ‘lay fee or free alms?, as do the writs in the early Registers.**? The vocabulary therefore suggests a certain looseness of usage and perhaps of mental categorisation. Glanvill’s formulation certainly suggests that ‘alms’ or ‘free alms’ could be taken in quite a wide sense, although not covering those lands of which a church was lord and which were classified as lay fee.””° In practice, the plea rolls indicate that the primary use of the action was for tenements belonging to local churches.” It thus seems to have

come about that Church courts dealt not with all lands held ‘in free alms, but primarily with the dower lands of parish churches.” Meanwhile Glanvill could envisage a writ of right concerning lands that the plaintiff claimed to hold of the addressee ‘in free alms, indicating that such a dispute was to be heard in secular courts.*”

*°* See e.g. EYC, v. nos 205, 207; see also Pollock and Maitland, i. 244-6; Kimball, “Tenure in frank almoign’, esp. 343-4, 346-8, 353; Thompson, ‘Free alms tenure’, 237-9. *°° On grants in alms, see also Kaye, Conveyances, ch. 5. *°° See above, 607-9. *°7 Glanvill, xiii. 23-4, ed. Hall, 163-4; note also Glanvill, xii. 25, ed. Hall, 148: ‘concerning free alms of ecclesiastical fee’ and ‘let him hold that ecclesiastical fee in free alms’. *°8 PR30HIL, 8, PR8J, 123. *°° Lincs., nos 329, 353, 1431, 1541; Early Registers of Writs, CA 49, CC 52, R 96-8.

*7° See also above, 609.

*7" See above, 608-9; also Bracton, fo. 407, ed. Thorne, iv. 266. See also Thompson, ‘Free alms tenure’, 240-1; cf. A. W. Douglas, ‘Frankalmoin and jurisdictional immunity: Maitland revisited’ (1978) 53 Speculum 26-48, at 45. *72 See above, 567.

*?7° Glanvill, xii. 3, ed. Hall, 137; see also e.g. Early Registers of Writs, CA 2, CC 1. See e.g. CRR, iii.

122-3, for a case in the king’s court in which the prior of Taunton claims that the disputed land had been given to his church ‘in alms; CRR, iv. 22, for a case in the king’s court concerning lands that

670 PART III: ANGEVIN ENGLAND It seems plausible, therefore, that in the Angevin period the words ‘alms’ and ‘in alms, “free alms’ and ‘in free alms’, continued to be used in a variety of ways, sometimes equivalent to ‘ecclesiastical fee’, sometimes with a narrower focus on consecrated and dower lands of churches. Frankalmoign tenure was therefore characterised by the spiritual services that it owed, and by its perpetuity.“ As we have seen with some other tenures, further universally applicable and defin-

ing characteristics are hard to find. Freedom from secular service and jurisdiction were at most aspirations. Rather than specific and definitive legal tests, charters and or even common knowledge were used to determine whether land was held in frankalmoign.””%

10 SEISIN AND RIGHT, POSSESSION AND PROPERTY In the Anglo-Norman period, notions of seisin rested on the grant and enjoyment of a tenement; the grant, involving an element of lordship, provided justification for the enjoyment.’ Such ideas continued to be important in the Angevin period, but there were new developments. Particularly notable was the contrasting of seisin and right.” Glanvill, at the start of his treatment of recognitions, stated that his preceding discussion concerned pleas about right [de recto]; he was now moving to matters that took place only over seisins.””* At the start of his volume, Glanvill had made this distinction with different terms: he distinguished pleas over property [super proprietate rei] from pleas Over possession [super possessione].”” These terms were derived from Roman Henry I/ had given toa church ‘in pure alms’; EYC, iii. no. 1686, fora case ina seignorial court, by the king’s writ, regarding lands that had been given ‘in pure and perpetual alms’. On ducal jurisdiction over ecclesiastical lands in Normandy, see Haskins, Norman Institutions, 188-9. *74 However, see Leiston Abbey Cartulary and Butley Priory Charters, ed. R. Mortimer (1 Suffolk Charters, Suffolk Record Soc., 1979), no. 81, for a gift in free and pure alms made for six years in 1220.

*7° Note also Thompson, ‘Free alms tenure’, 241-2, on Bracton’s difficulties in his discussion of free alms. Two charters concerning the same grant might be formulated in significantly different ways; see Kaye, Conveyances, 23-4. *7° See above, 337. For significant earlier discussion, see F. W. Maitland’s appositely entitled “The mystery of seisin’ and his “The beatitude of seisin’ in his Collected Papers, i. 358-84, 407-57; F. Jotton des Longrais, La Conception Anglaise de la saisine du xiie au xive siécle (Paris, 1925); Milsom, Legal Framework. For a recent discussion, see Tate, ‘Ownership’.

*77 See also above, 622-3, on Lawsuits, no. 393; however, see above, 337 n. 31, on Lawsuits, no. 294, *78 Glanvill, xiii. 1, ed. Hall, 148. Note also e.g. Rot. de ob. et fin., 59, for a royal order that justice be

done ‘both concerning right and concerning seisin [tam de jure quam de saisina]’. On jus and seisin, see also Garnett, Conquered England, 345. *7 Glanvill, i. 3, ed. Hall, 4.

24 LAND 671 and canon law. Others made the same equation: according to a Crowland case record, the king’s court judged that its abbot ‘was to lose for the time being seisin and not right [rectum], that is possession but not property.”*° Ecclesiastics in mid-twelfth-century England had begun to use possessio and proprietas in the context of disputes involving churches.”* The terms and ideas could easily spread to the king’s circle, especially with the gathering of learned advisers during the Becket dispute.” They must have sharpened thinking about seisin and right and encouraged the idea of ‘dual process’, dealing with matters of right after initial issues of seisin had been decided. At the same time, abstract right to land had been strengthened by the royal actions that had developed in the Angevin period. These had the effect of removing elements of seignorial discretion, for example over succession. They also increased the capacity of claimants to regain lands the seisin of which had long been lost, but the right to which could be traced from earlier generations.” However, the distinction between seisin and right did not become a simple reduplication of Roman ideas of possessio and proprietas.** First, the linguistic situation was complicated. Glanvill and others used two words for right in the sense currently under consideration: jus and rectum.*® They also used the latter to mean justice done by an individual or court. The two senses come together in the phrase ‘writ of right’, breve de recto, a writ that set in motion an action concerning right to land.**° Contemporaries would normally be able to distinguish the appropriate sense of rectum, but the combination of procedural and substantive usage remains a significant difference from the Roman proprietas.

Further differences existed. Seisin and right could not be simple opposites: seisin was necessary in order to make a valid gift,*” whilst past seisin was necessary for the establishment of right.”** Right could also involve limitations *8° Lawsuits, no. 641 (p. 679).

*8" See Cheney, ‘Possessio/proprietas’. Note also e.g. Letters of John of Salisbury, no. 72, distinguishing possessory from petitory. 782 See above, 532, on the Becket dispute. 782" See above, 622-3, on successive processes for seisin and right, 606-7, on darrein presentment,

592, on tracing the descent of right to land. *8* See esp. Milsom, “Grand assize’, 156-8, 163-4; also Sutherland, Novel Disseisin, 41-2; below, 672 n. 289, on CRR, iii. 67. *8° See e.g. Glanvill, xiii. 1, 9-10, ed. Hall, 148, 153, for rectum; Glanvill, xiii. 13, ed. Hall, 157, for a

single sentence containing saisina, jus, and proprietas. Rectum may well have been the Latin partner of the vernacular dreit. “8° Above, 582-3. Note that one form of the breve de recto was available to a widow claiming dower; Glanvill, vi. 5, ed. Hall, 61. *87 Note, however, Kaye, Conveyances, 25.

*8° For this paragraph, see esp. Milsom, “Grand assize’, 158, 163-4. See also above, 592, on pleading back to the reign of Henry I. Note also how courts continued to judge which of the

672 PART III: ANGEVIN ENGLAND absent from Roman proprietas. Thus the dowager, despite the restrictions on her control of land, had access to royal actions that Glanvill classified as concerning right or proprietas, rather than just seisin or possessio. In addition, seisin had a strong personal element: it normally was the product of a grant. The grant could be taken to establish for the grantee seisin protected by the king’s court even if the grantor had not been in a position lawfully to make the grant.**® Grants would be formulated in seignorial terms, even if lordship’s

practical effect was declining and its artificiality particularly clear when the grant was in fact a sale. However, there are circumstances where it would be highly contrived to regard seisin as deriving from a grant, as when a lord was ‘seised as of wardship’.*°° Was it possible more generally to claim to be in seisin without that seisin being based on a grant? Bracton acknowledged this possibility by writing of the person who

was in seisin, although not seised. He included in this group not only farmers and creditors who entered by consent, but also intruders and disseisors. Bracton’s formulation develops from Roman law, for the second part of his statement that ‘to be in seisin is very different from being seised, just as to be in possession is

very different from to possess’ derives from the Digest.’ Was his distinction made in our period, for example was a disseisor considered to have seisin? The disseised could seize back the tenement from the disseisor and not then lose by novel disseisin, provided he acted without undue delay; thus in relation to the disseised the disseisor did not have seisin protected by the royal court.’ As to the disseisor having seisin in relation to outsiders, there is insufficient evidence from our period to compare with Bracton.

parties had the ‘greater right [majus jus]’ relative to one another, rather than absolute right, good against the world. Certainly comparatives were sometimes used where we would use superlatives, but note esp. PKJ, iii. no. 905, where it is said that even if one person involved in the case should have ‘something of right [aliquid juris]’ in the disputed land, there were others ‘who should have greater [majus]’. “8° See above, 643, on Countess Amice’s case; see further Milsom, Legal Framework, 47; cf. CRR, iii. 67, for a plaintiff in novel disseisin losing apparently because it was agreed that he had never been seised, but rather had unjustly expelled one of his opponents by force. She in turn had clearly taken the land back, leading to the plea; her action was not taken to amount to disseisin made unjustly and

without judgment. *°° On being seised as of wardship as opposed to fee, and its consequences in mort d’ancestor, see Glanvill, xiii. 13-15, ed. Hall, 157-9. *°" Bracton, fo. 206-206b, ed. Thorne, iii. 124-5; D41.2.10.1.

*°? See Sutherland, Novel Disseisin, 97-104; also e.g. CRR, iii. 67, cited above, n. 289; Milsom, Legal Framework, 55-6; cf. Jotion des Longrais, La Conception Anglaise, 251, 254. Note also Lawsuits,

no. 630, although in this case those whom the lord was considering ejecting could argue they had been seised, even if this was in a way that the lord considered improper.

24 LAND 673 There are, though, indications that the heir who had not yet been seised by his lord might have novel disseisin against a third party.’ Likewise Glanvill could insist that, when a man died leaving a clear heir of full age, a lord might take the fee with the heir into his hand, but this was to be done so gently that he did no disseisin to the heir; by implication the heir already had a seisin that he could lose.”°* These developments suggest a distancing, if not a complete separation, of seisin from the act of seignorial seising; seisin was looking less like the product of a personal tie, more like a state that the tenant of himself enjoyed.” Were additional elements needed to constitute seisin, or certainly a seisin protected by novel disseisin? A grant by a lord might not suffice. Take an advowson detached from the land with which it was associated: a grantee was not seised of it until he had made a presentation to the church. Jurors in an action of darrein presentment would answer as to the last person to present; the party relying on receipt of a subsequent grant would have to plead an exception rather than seisin deriving from the grant.”°° A similar issue might arise regarding land. Many case records show parties or jurors referring in the context of seisin to the taking of esplees (that is, produce, profits, services or rents), even if the esplees were only taken for a very short time.” In a case of 1210, the jurors stated that the plaintiff had been given the land by his sister through her charter and she had made seisin to him in the full county court and taken fealty from him. However, they did not know whether the plaintiff had taken any esplees therefrom. The case is a complicated one, and it is not certain that the failure of the plaintiff's claim resulted from the jurors’ doubts as to whether he had taken esplees, but the recording of those doubts reinforces other evidence that taking of esplees was Closely identified with, and possibly essential to, seisin.?9*

*°° See Sutherland, Novel Disseisin, 106 (although note that the pre-1216 cases that he cites, Lincs., no. 1425, Northants., no. 777, CRR, vii. 63, are not simple instances of heirs’ protection through novel disseisin). *°4 Glanvill, vii. 9, ed. Hall, 82. *°° See also esp. Milsom, Legal Framework, 39-Al, 47, 184-5.

°° Note esp. CRR, iv. 39-40; cf. iv. 155-6; Pollock and Maitland, ii. 135-8; Bailey, ‘Richard I, 199-201; Tate, ‘Ownership’, 310-11.

*°7 See esp. CRR, vii. 215, where seisin lasted only a few days, but during that time homage and rents were taken. For typical mentions of esplees, see e.g. PK/, iii. no. 913, CRR, iv. 194; for an unusual

version in which the party speaks in the first person, CRR, vi. 290-1. *° CRR, vi. 81-2. On this case, see also above, 644, below, 786. Underlying the circumstances of the case is the loss of Normandy in 1204. For later discussion concerning whether taking of esplees was essential to being in seisin, see Bracton, fo. 206b, ed. Thorne, iii. 125; Jottion des Longrais, La Conception Anglaise, 262-3. Note also jurors having problems as to whether the form of taking of profits or fruits sufficed to establish seisin; CRR, iii. 128, 332-3; also below, 674, on CRR, v. 169. In Normandy jurors were to be asked which party had seisin the previous August, thereby identifying who had taken the last harvest; TAC, 22, ed. Tardif, 22-3.

674 PART III: ANGEVIN ENGLAND Receipt of and entitlement to profits also helps to categorise forms of landholding more restricted than being seised as of a free tenement. Being seised as of wardship

involved obligations to support the heir and not waste the tenement.” Still more limited was a lord’s hold on land that he had distrained, that he held in namium. In a novel disseisin case of 1200 the plaintiff said that he had seized his opponent's dower by decision of his court, for default of service, but that she in turn had ejected him by force. His plea was unsuccessful; it was decided that he was not seised of it as of his free tenement, because the tenement was the womans.*°° Thus a lord might lack novel disseisin’s protection of land he held in namium; in addition he did not take esplees, and had to be ready to replevy when offered gage and pledge.” Finally, there is the notion of ‘simple seisin’. Certainly by the late 1220s these

words could be used of the hold a lord had on lands that he had distrained for default of service, but from which he took no esplees3°? What of earlier usage? As we have seen, Glanvill states that, following the death of a tenant who left a clear heir, a lord might take into his hand his fee with the heir, but so gently that he did no disseisin to the heir2°? Bracton would refer to the lord

in such circumstances taking simple seisin, so that he might be recognised as lord. This was a way of sharing seisin with the heirs3°* The phrase simple seisin was in use by the early thirteenth century. Jocelin of Brakelond wrote of simple seisin being given by a book, but ‘corporal institution’ being postponed.?*> A 1208 plea roll tells of a sheriff summoned to show why he was not

willing to make ‘full seisin [plenariam seisinam]’ to a Jew regarding a gage about which the Jew had brought him a writ. The writ ordered that the sheriff make the Jew have seisin thereof, as he had recovered the gage in the county. The Jew said that when the sheriff should have given him seisin, he instead sent a servant who gave him nothing except simple seisin of the houses and granges and would not make the men of the vill come to do fealty.°° Clearly simple seisin indicates only very limited enjoyment of the land or rights. The phrase was needed to indicate that whilst a party might have seisin, not all seisins were equal.

*°° See below, 808-9.

°° CRR, i. 320-1. °°" See above, 638-9. °°? BNB, no. 348. °°* Glanvill, vii. 9, ed. Hall, 82; see above, 645. °°* Bracton, fo. 252b, ed. Thorne, iii. 245-6; see also Milsom, Legal Framework, 169-70. °°° Jocelin, Chronicle, ed. Butler, 94.

°°° CRR, v. 169. For simple seisin, note also CRR, vii. 173. For plenaria saisina used in another context, see Lawsuits, no. 641 (p. 682).

24 LAND 675 Overall, therefore, even though the word ‘seisin’ may have been used with ease and its meaning normally have been clear, there was also considerable complexity and increasing subtlety in usage. Some seisins were recognised by the king’s court and protected through novel disseisin, others were not, although they might be protected in a lord’s court2°’ Further subtleties appeared in Bracton, with his arguments about being in seisin but not seised. His provision of a form of taxonomy regarding those who were seised or in seisin suggests that he felt the subject in need of clarification2°* This stage of analysis had not been reached by Glanvill, but his treatment demonstrates the growing sophistication of thinking2°? Further, the difference between the increasingly precise usage of the king’s justices and courts and the more general conceptions of lords and tenants may underlie some cases of novel disseisin. The distraining lord may have

thought himself justified in taking back lands for which services had not been performed, but now found his actions subject to more rigorous categorisation: taking land as surety [namium, distress], taking it into hand, disseising, disinheriting2"° Increasingly, therefore, lords needed to make clear that they were treating distrained land not as their own, but as a surety. Fine distinctions, as opposed to obvious abuses, may not previously have been regarded as having major legal consequences, or at least not ones routinely treated in the king's court. Novel disseisin changed this. A case from 1199 may suggest a conflict of perceptions of proper practice. A man facing a plea of novel disseisin vouched his court to warrant that he had acted by its judgment, but also said that he had not disseised the plaintiff by judgment of his court but had taken the land into hand for default of service. It was decided that he had disseised the plaintiff by judgment of his court and therefore was in mercy" Not so much the fact as the classification of the lord’s actions was in dispute.

Separation of common and judicial usage, together with subtleties of classification, were a characteristic of the last decades of our period, but still had limits.*” Examination of novel disseisin cases leaves it uncertain whether an entirely consistent line was being taken either by jurors or by royal courts in their

°°” See Milsom, ‘Grand assize’, 163; note also Jotion des Longrais, La Conception Anglaise, 173-6. °° Bracton, fo. 206-206b, ed. Thorne, iii. 124-5. °°? See also below, 676 n. 314, for further indications of his consideration of different seisins. **° However, for possible uncertainty about vocabulary amongst royal scribes, note RCR, i. 447, a novel disseisin case, where examination of the manuscript shows that the scribe initially wrote the word capere regarding the taking of a fee but then interlined the word saisire. See above, 337, for earlier usage. Note also Kaye, Conveyances, 129, on lords reserving an express right to enter a tenement. °*" RCR, ii. 117.

*'* See also below, 862-4.

676 PART III: ANGEVIN ENGLAND verdicts and judgments.*? Meanwhile even Glanvill’s categorisation, drawing on Roman law proprietas and possessio, shows the analytical problems. When he moved to dealing with pleas heard by recognitions, he did not draw a neat abstract contrast between pleas about right and those about seisin. Rather, the practicalities of his task compelled him to contrast pleas concerning right with those over seisins, an abstract singular contrasted with a decidedly less abstract plural.34

11 CONCLUSION Some local variation in land law remained in the Angevin period, particularly below the knightly level2*> Also, as we have seen, distinctions between types of tenure were blurred; often there was no single characteristic that allowed a court to determine the form of landholding and the consequences arising therefrom."° There may also have been some inconsistency of judgment even at the level of the king’s courts, for example with regard to what constituted acceptable disseisin3”

However, the hardening of land law, through clarification and standardisation, remains a prominent feature of the period. Distinctions sharpened, most obviously between free and unfree2"* Rules, for example regarding inheritance, were retrospectively applied to earlier arrangements in ways that may previously have been possible but less normal. And legal rules were developing that seemed

°° Cf. RCR, ii. 117 with RCR, ii. 194 and PKY, iii. no. 932, where it appears possible that disseisin by court judgment may have been acceptable. Apparent inconsistencies may of course be an illusion created by the limited facts that the plea rolls provide. *™* Glanvill, xiii. 1, ed. Hall, 148. Note further his analytical problems when dealing with mort d’ancestor cases turning on the issue of seisin only having been of wardship (Glanvill, xiii. 15, ed. Hall, 158); and his use of the phrase ‘qualem qualem saisinam’ in his discussion of exceptions to mort d’ancestor, where the ancestor’s seisin was admitted but said not to have been seisin as of fee (Glanvill, xiii. 11, ed. Hall, 155). See also Lawsuits, no. 641 (p. 685), for Hubert Walter ordering that a party being restored to a disputed marsh was to have ‘such seisin thereof [talem inde... saisinam]’ as he had before he was disseised for default. °° See above, 649, for Glanvill on local custom regarding socage. Faith, ‘Peasant families’, 81-4,

93-5, shows variation regarding partibility between regions and within groups of manors. For female inheritance, see e.g. CRR, xi. no. 1460, discussed in Pollock and Maitland, ii. 281. See also CRR, xiv. no. 1948, for possible honorial variation regarding dower, °° See above, 633-4, 666, 670. Note also Reynolds, Fiefs and Vassals, 354-5, 388, on Glanvill and Bracton. **” See above, 636-8; also 650 (casus regis); 626 (tenants-in-chief). *'® Note also the writs utrum in Glanvill, xiii. 24 (lay or ecclesiastical), 27 (fee or gage), ed. Hall, 163, 165; see also TAC, 87, ed. Tardif, 97-8.

24 LAND 677 in conflict with social expectation, as is suggested by Glanvill’s exploration of the rule that a person could not be both lord and heir, and its unexpected effects for family gifts The development of such rules diminished the issues on which there was no clear legal answer??? Meanwhile, royal actions and the possibility of removal of cases to the king’s court on account of false judgment reduced room for seignorial discretion. The significance of diverse perceptions of proper landholding practices was diminished; and, crucially for the development of the common law of property, it was to the tenant’s view of good custom that the attitudes of the royal courts gave particular weight.”

*'* See above, 651.

°° For an exception, see above, 650, on the casus regis. °?" See further Hudson, ‘Origins of property’.

25

Movables

B: the late twelfth century the distinction between movables and immovables, familiar in later English law, is clear. The Dialogue of the Exchequer says of the fugitive convicted ‘through the set law of the assize’ that ‘all his movables [mobilia] fall to the treasury, but immovables to his lords’. The movables here are the chattels [catalla] of the Pipe Rolls, as the Dialogue itself indicates.’ The distinction between movables and immovables was made partly under the influence of the learned laws, and Glanvill distinguishes res mobiles and res immobiles in

his treatment of debt, where his language shows particular Roman influence.’ In the thirteenth century, chattels came to include other rights such as leases for terms of years, wardships, and control of marriages, what would come to be known as ‘chattels real’. This change leaves some marks on Bracton but not, it seems, on Glanvill:

1 OWNERSHIP The appropriateness of referring to ownership of movables is indicated by contemporary language and perception, by the potential concentration of the fullest available rights in a single person's hands, and by contrast with lesser interests in

* Dialogus, ii. 10, ed. Amt, 146; note also catalla in Assize of Clarendon, 5. See, however, Dialogus, ii. 14, ed. Amt, 164, for the author separating chattels into movables and those that move themselves, and making further qualification as to what might be considered a movable in the context of forced sale to pay debts; below, 703. Glanvill does not seem to regard ‘movable goods’ and ‘chattels’ as sharply distinguished categories of things; see Glanvill, vii. 16, 17, x. 6, ed. Hall, 89, 91, 120. Many issues con-

cerning movables are considered in other chapters; above, ch. 23, on novel disseisin, ch. 24, on distraint; below, ch. 27, on forfeiture, ch. 28, on villeins, ch. 29, on dower. * Glanvill, x. 6, ed. Hall, 120; see also x. 15, ed. Hall, 130. > See Pollock and Maitland, ii. 115-16, 331; Bracton, fos 131, 407b, ed. Thorne, ii. 369, iv. 268. Reliance

on Glanvill particularly in this chapter and the next may at times be necessary rather than desirable; for possible problems with Glanvill’s presentation of the law of his time, see below, 681, 696.

25 MOVABLES 679 goods, for example with the possession enjoyed by a bailee.* However, as in earlier periods, there were limits to the completeness of rights,> and chattels might still be subject to rights of seizure. The Dialogue recalled that knights’ chattels had earlier been lawfully sold for debts of their lords, if the lords’ saleable movables had not

sufficed, but that the king had limited this to debts for scutage. Thus in some, if diminishing, circumstances even a knight’s rights over his chattels were limited by his tie to his lord. For villeins, the liability to such compulsory sale was not limited to scutage debts.° There are also signs of conflicting attitudes to the relationship of goods to land. At the court of Henry II, Gilbert de Balliol lost a long-running dispute with Battle

Abbey over land at Barnhorne/ Realising his defeat, ‘he begged in everyone’s hearing that the chattels [catalla] of his knight who had held that tenement from him be left to him to remove from there’. The king replied that Gilbert’s request made it as clear as possible that he had no right in the land, and instructed that the chattels be surrendered to the monks. It seems that monks received the chattels on the grounds that they went with the land rather than belonging to the now dispossessed claimant. The chattels probably consisted of animals, and possibly agricultural equipment, other movables, and perhaps also buildings.

Women, marriage, and movables At marriage, a woman's movable possessions came under her husband's ownership, as did all those to which she acquired title during the marriage, for example through inheritance.’ He could dispose of them inter vivos or by will; her necessary clothes and personal ornaments such as jewels were a partial exception.? He would retain them if she predeceased him, unless he had allowed her to make a will.'’° However, the husband also had obligations, for example regarding debts incurred by his wife before or during marriage. In 1204 an action concerning a debt incurred by a wife before marriage was brought against both husband and wife. The husband came

* Information on law regarding control of chattels, in particular animals, remains very limited; on distraint of animals that allegedly were doing damage, see Bracton, fo. 158-158b, ed. Thorne, ii. 445-6.

° The issue of the limits of the owner’s rights seems to have worried Glanvill; note also his failure at x. 13, ed. Hall, 129, to answer his own question regarding the owner’s ability to demand back loaned goods prematurely.

° See below, 704, 759-60; note also Dialogus, ii. 16, ed. Amt, 168. Note further the protection against exactions by royal officials provided in Magna Carta, 28, 30, 31. ” Lawsuits, no. 377. * Seeesp. Plac. abbrev., 96; Northants., no. 450. For this paragraph, see also Pollock and Maitland, ii. 404-7, 427-34. > For such ‘paraphernalia’, see also Pollock and Maitland, ii. 430. *” See below, 682.

680 PART III: ANGEVIN ENGLAND and denied the debt. The wife's attorney came and said that she did not have to answer without her husband as the writ spoke of both her and her husband, unless the court decided to the contrary. Afterwards the husband came and recognised that his wife owed the debt, and he sought the aid of the court, that the sheriff cause the claimant to have the debt from the chattels found on the womans land. Later law suggests that normally the whole of the husband's property was liable for debts incurred by his wife; the end of the 1204 case may represent a special arrangement in an instance where movables from the wife's land sufficed.” On the husband’s death, his widow was entitled to all movables that she had

brought to the marriage and those to which she had acquired title during it. In addition, if the husband died intestate, once provision had been made for his debts, commonly she was to receive half his movables if he had no heir, one-third if he had an heir.”

2 SUCCESSION Intestate At the end of our period Magna Carta resembles Henry I’s coronation decree in the position that it adopted on intestate succession: ‘if any free man dies intestate, his chattels are to be distributed by the hands of his close relatives and friends under the supervision of the Church, saving to everyone the debts that the dead man owed him.” Continuity is also suggested by a case in the chronicle of Jocelin of Brakelond.’* One of the richest men of Bury St Edmunds, Hamo Blunt, was on the point of death but rather unwilling to make a testament. Finally he did so to the extent of 3m., in the hearing only of his brother, wife, and chaplain. When Abbot Samson of Bury heard this, he rebuked the three because they had prevented others approaching the sick man, so that they themselves might seize all his wealth. The abbot, claiming within his liberty the bishop’s role in testamentary

** CRR, iii. 207; Pollock and Maitland, ii. 405. *? See above, 378-9, below, 683. It may well be that there was local variation in intestate as well as testate succession pattern; on the latter, see below, 683. On the widow's obligation regarding her husband’s debts, see e.g. Canterbury Cases, Appx I no. 45. Note also PRIJJ, 50, concerning Beatrice, daughter of William de Warenne: ‘the debts that her father owed are to be rendered from the common chattels that were her father’s and her father’s wife Milicent’s on the day on which her father died.’ ** Magna Carta, 27; the clause uses catalla where the draft known as the Articles of the Barons, c. 16, had bona, and the ‘Unknown Charter’, c. 5 (see below, 848 n. 23) had pecunia, as did Henry I’s coronation decree. The clause was omitted from reissues of the Charter, but practice continued along these lines. Among the ‘friends’ may have been relatives. For Henry I’s decree, see above, 377-8. * Jocelin, Chronicle, ed. Butler, 91-2.

25 MOVABLES 681 matters, ordered ‘that all debts owing to him and all his movable chattels, worth, it is said, 200m., be set down in writing; and that one third be given to his heir, a second to his wife, and the third to his poor relations and other poor’. Hamo’s horse, which had been led before the dead man’s bier and offered to St Edmund, was to be given back, “for our church ought not to be defiled by the gift of this man who died intestate and whom rumour accuses of being accustomed to give his money at usury .° Here we have the abbot providing an assertive form of the ecclesiastical supervision that Magna Carta would later prescribe. A problem for this picture of continuity, however, arises from a statement in Glanvill: “when anyone dies intestate, all his chattels [catalla] are understood to be his lord’s. If he had several lords, each shall take his chattels that he finds in his fee.” Possibly Glanvill is stating practice current the late 1180s, different from

that prescribed by Henry I in 1100 and Magna Carta in 1215. A lord taking the chattels of the intestate might be seen to have parallels with his obligation to pay the debts of minor heirs whom he had in wardship.” However, it is notable that Abbot Samson claimed his position in relation to Hamo Blunt not through any right of lordship but because of quasi-episcopal status. Glanvill’s text may, therefore, need reinterpreting. His statement follows a passage concerning inheritance from bastards and in turn is followed by the statement that ‘all the goods [res] of a usurer... whether he dies testate or intestate, are the lord king’s’. It is possible, therefore, that the statement concerning chattels passing to the lord relates only to intestate bastards.” Heirs were obliged to pay the debts of their fathers and other ancestors, whether they had died intestate or indeed testate.° Should the goods of the deceased not suffice, the heir, if of full age, had to remedy the deficiency from his own property.

Debts were to be paid before any further distribution of chattels was made.”° Heirs could be sued in royal courts for inherited arrearage of farm,” but there

*? On fear of intestacy, see Pollock and Maitland, ii. 357-9. ‘© Glanvill, vii. 16, ed. Hall, 89. Glanvill does not appear to make consistent distinctions between catalla, res, and res immobiles; see above, 678 n. 1. ‘” Glanvill, vii. 9, ed. Hall, 83.

*® Glanvill, ed. Hall. 89, separates the statement about the intestate from that about bastards by a paragraph break, but this arrangement is not demanded by e.g. Oxford, Balliol MS 350, fo. 58v, or Edinburgh, H. M. Register House, Berne MS, fo. l6v, in both of which the division is the same as that preceding the subsequent sentence on usurers. *? See also above, 680, on the widow’s obligation. *® Glanvill, vii.5, 8, ed. Hall, 79, 81; cf. P. A. Brand, ‘Aspects of the law of debt, 1189-1307’, in Credit and Debt in Medieval England, c. 1180-c. 1350, ed. P. R. Schofield and N. J. Mayhew (Oxford, 2002), 19-41, at 31-2. For the situation in Bracton, see Pollock and Maitland, ii. 345-6. For heirs and debt to the king, see below, 704-5. *! See CRR, i. 294, 406-7.

682 PART III: ANGEVIN ENGLAND was also litigation in ecclesiastical courts as part of the Church’s testamentary jurisdiction.” Testate As in the Anglo-Norman period, bequests of movables could be made through gifts by a living donor, which took full effect after death.* However, by the early thirteenth century there was a move to testamentary succession: provision was made that a bequest be given posthumously, that provision being revocable until the point of death.** The canon law position on legacies for pious purposes was also refined, moving in a similar although not identical direction.” According to Glanvill, ‘every free man of full age who is not saddled with debts

can, when seriously ill, make a reasonable distribution of his goods [de rebus suis].”° He therefore by implication excludes minors and the unfree, although there is some evidence for lords allowing villeins to make wills.” Glanvill states that a woman ‘of her own right’, presumably normally a widow, could also make a testament, but if the woman is in the power of her husband she can dispose of nothing even in a last will from her husband’s goods without the authority of her husband. Yet it would be virtuous and very honourable for the husband if he were to allow a reasonable share [divisam] to his wife, that is up to that third part of his goods which she, alive, would indeed obtain if she outlived her husband, as shall appear more fully below. Many husbands are accustomed to do this, which is much to their credit.

We have here different views at tension with one another; unfortunately it is hard to tell how commonly or how precisely the distinction between legal right and special permission was made outside Glanvill’s text.” Land came to be excluded from bequest by last will, leaving testaments only

for movables together with rights such as wardships and leases for terms of

*? R. H. Helmholz, “Debt claims and probate jurisdiction in historical perspective’, in his Canon Law and the Law of England (London, 1987), 307-21.

*° Note Howden, Chronica, s.a. 1181, ed. Stubbs, ii. 264-6, for the dying archbishop of York making gifts to people who were to distribute them to the poor and sick after his death. ** See Sheehan, Will, 144-5. *° See Helmholz, Canon Law and Ecclesiastical Jurisdiction, 389-92; Sheehan, Will, esp. 135.

*° Glanvill, vii. 5, ed. Hall, 79. According to Hugh of Lincoln in 1200, it was a recently adopted custom that churchmen make wills; Magna vita sancti Hugonis, v. 16, ed. Douie and Farmer, ii. 186-7. *” See below, 761.

*® Glanvill, vii. 5, ed. Hall, 80. See also Pollock and Maitland, ii. 348-56, 428-9; Sheehan, Will, 235-9.

25 MOVABLES 683 years.”? In his chapter headed “That the heir ought to keep [servare] the wills of ancestors, Glanvill mentions the possibility of local custom affecting the dead person’s goods, for example requiring that he first acknowledge his lord with his best and chief chattel. Other practices outlined in the same chapter were general: ‘all his movable goods shall be divided into three equal parts, of which one is owed to the heir, the second to the wife; the third, indeed, is reserved to himself, concerning which third he shall have free faculty of disposing’. This last third might, but need not, be used for pious purposes. If the man died with no wife, the division was into equal halves2° According to Glanvill, it was the heir who received a share, but clause 26 of Magna Carta instead refers to the children as the beneficiaries. This may represent a change between the late 1180s and 1215; as we have seen, Abbot Samson required that Hamo Blunt give a third share to his heir, matching Glanvill’s custom for testamentary succession." Glanvill also tells us that the testator burdened with debts was less free: ‘if someone who is burdened with debts proposes to make a testament, he cannot dispose of anything from his goods without the consent of his heir, except the acquittance of debtors.’ If there was a residue after payment of debts, it was to be divided in the tripartite fashion already described. Glanvill states that ‘a testament should be made in the presence of two or more lawful men, clerks or lay, and such as can be suitable witnesses concerning it’? Men of standing were desirable witnesses, and the Dialogue of the Exchequer allowed a sheriff to be excused attendance at the Exchequer should his lord, ‘weighed down with illness’, summon him along with other loyal men to be in attendance at the making of his testament. Although increasingly used for purposes of record and, for grants via executors, taking on a form distinct from the charter, writing was not essential for bequests.* As well as witnesses, a testament needed executors. Executors had no equivalent in Roman law, and their position may have developed gradually, for example from the duties of those responsible for ensuring that a grantee received seisin of a post

*° See above, 657, 678; Sheehan, Will, 284-6. Note that Worcester, no. 334, detailing division of bequests to Worcester Priory, only deals with bequests of movables. °° Glanvill, vii. 5, ed. Hall, 79-80. Cf. above, 680; see also Pollock and Maitland, ii. 348-9. *" See above, 681. *? Glanvill, vii. 8, ed. Hall, 81.

°° Glanvill, vii. 6, ed. Hall, 80. ** Dialogus, ii. 4, ed. Amt, 124-6.

°° See Sheehan, Will, esp. 144, 186-7, 193-5; Pollock and Maitland, ii. 337-40; for Continental background, see H. Auffroy, Evolution du testament en France des origines au XIIIe siécle (Paris, 1899), esp. 307-19, 431-6, 502-8, 569-91, 641-6. For the recording in writing of the will of Henry II, see Gervase of Canterbury, Chronicle, s.a. 1182, Opera Historica, ed. Stubbs, i. 297-8. Note also History of William Marshal, ll. 18327-50, ed. Holden, ii. 418-20.

684 PART III: ANGEVIN ENGLAND obit gift.2° The Church may have encouraged the development, as priests attendant

on the dying sometimes performed these duties. Such people retained their role when testamentary bequests became gifts proposed before, but only made after, the testator’s death. The development of the role seems to have coincided with the appearance of the word, which Glanvill uses.” The testator should choose the executors and commit the business to them. Nevertheless, a testator’s failure to nominate executors did not invalidate the will: according to Glanvill, in the absence of nomination, the testator’s relatives should undertake the duty,** although later evidence has bishops responsible for appointing executors. In developed form, the executor had responsibility for execution of the testament. This might involve funeral arrangements, payment of debts, and distribution of legacies.’

However, the evidence well into John’s reign shows that heirs still had a considerable role in carrying out wills.“ According to Glanvill, ‘heirs are bound to observe the testaments of their fathers and their other ancestors, and to pay

their debts. This suggests that only after the heir had paid the debts did the executors distribute the residue, or perhaps just supervise its distribution.” Probably Glanvill is here dealing with the most common situation in which the testator was succeeded by his son or another close relative of full age. Executors first became important where a testator, be he layman or in particular cleric, died childless.** By John’s reign we have increasing evidence for executors dealing with

debts to the king, although in some cases these were the debts of those who died childless or with a minor as heir.** In Magna Carta it was the executors, not the heir, who had the vital role; once royal officials had ensured payment of debt to the king, ‘the residue shall be relinquished to the executors to carry out the will [testamenti] of the deceased. °° See also below, 685, on ecclesiastical protection for bequests, and on the delivery of bequests. °” This is the earliest instance of the word in DMLBS, s.v. ‘exsecutor’. See Pollock and Maitland, ii. 334-5, on those responsible for putting Henry II’s will into effect. For its use in the vernacular, see History of William Marshal, |. 18339, ed. Holden, ii. 418. °® Glanvill, vii. 6, ed. Hall, 80. °° Sheehan, Will, 183-4. See above, 680, on Abbot Samson.

*° See Sheehan, Will, 216-18, on the activities of executors following the testator’s death. For the making of an inventory of goods, see above, 680-1, on Hamo Blunt. ™ See e.g. PR5J, 103, PR12J, 35-6.

* Glanvill, vii.5, ed. Hall, 79-80. Note that the responsibility regarding debt rested on the lord of an heir who was a minor; Glanvill, vii. 9, ed. Hall, 83. See also Glanvill, ed. Hall, 186. *° See also Sheehan, Will, 153-4. “* E.g. Gilbert Pecche: Rot. lit. cl., i. 123a; I. J. Sanders, English Baronies (Oxford, 1960), 48.

“° Magna Carta, 26. For executors adding their seals to a will and excommunicating all who might oppose or contest it, see History of William Marshal, ll. 18338-48, ed. Holden, ii. 418-20. The executors then returned the will to the testator so that he might see it before he died.

25 MOVABLES 685 English common law accepted that the Church had jurisdiction over testamentary succession to movables. This involved hearing cases of disputed wills, but also the routine, often non-contentious, procedure of probate, that is of establishing the validity of the will and ensuring that executors did their duty.’ The history of probate in England before the thirteenth century is unclear, but the Life of St Hugh of Lincoln, written in Johns reign, suggests a form of routine ecclesiastical protection of bequests. As Hugh was approaching the end of his life,

fearing that royal officials might infringe his bequests, he laid his anathema on anyone attempting to appropriate them. Later...at a general council held at Westminster... he had the solemn sentence of anathema renewed, not only against defrauders of his will but rather of all lawful testators. The king, expressing warm approbation, gave his assent to this sentence at a council presided over by himself and the archbishop.”

As for ecclesiastical jurisdiction regarding disputed wills, according to Glanvill, if anyone summoned by a royal writ concerning division of bequeathed goods says anything against the testament, namely that it was not rightly made or that the chattel sought was not bequeathed in the fashion said, then the plea concerning this ought to be heard and ended in a court Christian, since the plea concerning testaments ought to be treated in the presence of an ecclesiastical judge and ended through the testimony of those who were present at the testament, according to the lawful procedure [secundum juris ordinem].**

Likewise entries in plea rolls show that cases relating to testaments belonged to Church courts.*

However, mid-twelfth-century canon law did not so clearly prescribe ecclesiastical jurisdiction. Interestingly, it may be that the English king allowed the Church jurisdiction in such matters before it was being universally claimed in canon law. The Constitutions of Clarendon make no statement concerning

jurisdiction over bequests, and testamentary jurisdiction was not an issue in the subsequent dispute between Henry II and Becket. This might indicate that only later did the Church courts establish exclusive jurisdiction to pronounce on

*° For the mechanics of probate, see Helmholz, Canon Law and Ecclesiastical Jurisdiction, 414-16; Sheehan, Will, 196-211. Note also Pollock and Maitland, ii. 341; Sheehan, Will, 169. *” Magna vita sancti Hugonis, ii. 17, ed. Douie and Farmer, 205; Councils and Synods, I, no. 182, suggests a date of 1199. Cf. Howden, Chronica, s.a. 1200, ed. Stubbs, iv. 141, which has King John con-

firm Hugh’s will, and promise that he would confirm the reasonable wills of all prelates in his time. See also Sheehan, Will, 245-6. *® Glanvill, vii. 7-8, ed. Hall, 81. *° See esp. CRR, vii. 292.

686 PART III: ANGEVIN ENGLAND the validity of a will, royal jurisdiction having been accepted in 1164.°° If so, it is surprising that the Constitutions do not record the royal right. Silence rather seems to suggest that ecclesiastical jurisdiction was established and unopposed. How and indeed why it developed so early remains unclear.* An exception to the Church’s jurisdiction may appear in Glanvill, with his

writ to the sheriff concerning an heir or another detaining the goods of the testator: ‘I command you to uphold, justly and without delay, the reasonable bequest [divisam] of N., if it can be reasonably shown that he made it and that it ought to stand.** However, as we have seen, the question of the validity of the will was allowed to the Church court and this writ may be confined to use in a particular circumstance, when no executors had been appointed and close blood relatives of the testator had to act in their place.’ No equivalent appears in the earliest surviving Registers of Writs. Thus by the end of John’s reign several important developments had occurred, which left a lasting effect on English law: a clear shift from the earlier reliance on post obit and deathbed gifts to bequest by last will; the appearance of executors; a general view that land could not be so bequeathed but goods should be; and acceptance of ecclesiastical jurisdiction in such matters.

3 BAILMENT Common lawyers use the term bailment for the temporary transfer of the possession of movable goods to another person, although in the medieval period the Old French verb bailler was used in other senses too.® It was for the bailee not the bailor to bring a plea concerning theft of goods entrusted to him.*° Evidence on other aspects of the bailor—bailee relationship in our period is very limited.

°° See Pollock and Maitland, ii. 333-4, 341. See also Sheehan, Will, 124-6, on the positions of postGratian canonists regarding episcopal supervision, esp. 125-6 on the Summa Lipsiensis. Sheehan, Will, 174, argues that royal jurisdiction disappeared as the executor became standard. °* See also Sheehan, Will, 166-8; he suggests that ecclesiastical jurisdiction developed because of bequests for pious purposes, and because of the presence of a cleric at the death-bed, who would receive any will and be able to say if the deceased died testate or intestate. >? Glanvill, vii. 6-7, ed. Hall, 80-1; also xii. 17, ed. Hall, 144.

> A suggestion also made by Sheehan, Will, 173-4. °* See also Helmholz, Canon Law and Ecclesiastical Jurisdiction, 387-8, 392; at 427-32 he comments on the limits of the coherence of this area of law in England. °° Anglo-Norman Dictionary, s.v. ‘bailler’. Glanvill’s treatment of the subject of this section is perhaps not entirely helped by his use of Roman categories and terminology, here commodatum, locatio, and conductio; see Glanvill, ed. Hall, xxxvii-xxxviii, and below, ch. 26. °° See Pollock and Maitland, ii. 159, 170, 172, 176-9; note CRR, i. 273.

25 MOVABLES 687 It is likely that the bailee was absolutely responsible for safe return of the goods.

According to Glanvill, if one party willingly [gratis] loaned to another something to use, and the thing perished or was damaged in any way, the recipient was strictly bound to pay the bailor a reasonable price.” However, Glanvill tells us little concerning the nature of the action of the bailor against the bailee, either in this context or that of the hiring out of goods** He does state that the bailee who used the goods outside the place or beyond the time agreed was not guilty of theft, because the origin of his holding [detencio] was through the owner.*® However,

he does not refer back to his discussion of procedures concerning debts arising from ‘loans for consumption, which we shall examine in the next chapter, but rather poses a series of unanswered questions.*° Presumably if the unjust detention was not seen as amounting to theft, and could not be pursued in the king's court through an action concerning debt, such bailments were a form of those ‘private agreements that Glanvill tells us were not normally protected by the king’s court.” Rather they were the business of the little recorded local courts.

4 SALE AND GRANT Process

Glanvill makes no mention of the requirement that sales or grants of goods should take place before witnesses in an assembly, a requirement insisted upon by the Anglo-Saxon laws and the Anglo-Norman Leges.® This change of emphasis

may be reflected elsewhere in some attempts to translate the Old English term team, the process of warranty of sales, which display misunderstanding of its

°” Glanvill, x. 13, ed. Hall, 128; gratis may be used to mean willingly, emphasising the contrast with

theft or perhaps distraint, or to mean gratuitously, that is without payment, as opposed to hiring out goods. See also Pollock and Maitland, ii. 170-1; note that the case cited at ii. 171 n. 2 (© CRR, i. 273), concerns charters, perhaps not typical of other goods, as well as armour. See further the comments of S. F.C. Milsom, Historical Foundations of the Common Law (2nd edn, London, 1981), 267. °® For hiring out of goods, see Glanvill, x. 18, ed. Hall, 132.

°° The statement in Glanvill, x. 17, ed. Hall, 132, that writing or battle was the accustomed method of proof in court regarding goods owed from sale or loan is best taken as applying only in cases where

there was an accusation of theft in connection with such goods, as is indicated by mention of ‘the stolen thing [rei furtive]’ in the chapter heading. °° Glanvill, x. 13, ed. Hall, 128-9. °* Glanvill, x. 18, ed. Hall, 132, below, 692.

°? See above, 153-5, 380-1. See also Pollock and Maitland, ii. 207. On efforts to prevent markets being held on Sundays, see Bartlett, England, 637-8.

688 PART III: ANGEVIN ENGLAND meaning.® Certainly it remained prudent, in terms of testimony in future dispute, to have a sale carried out publicly in a recognised market. Glanvill, however, does not present this as essential to a valid sale. Rather, he tells us that ‘a purchase and sale is effectively complete when the parties have agreed on the price, provided that this is followed by delivery of the thing purchased and sold, or by payment of the whole or part of the price, or at least by giving and receipt of earnest’. If agreement of the price was followed by delivery, or if at least part of the price was paid,® neither party could withdraw except for just and reasonable cause, for example that the goods were sold as sound but in fact were not. If only earnest—that is a symbolic payment to bind the vendor not to sell or deliver to another—had been given, the buyer could withdraw but lost the earnest. Glanvill leaves uncertain what the penalty was for the seller who withdrew in such circumstances.°°

Warranty of title Glanvill presents warranty of movables as parallel to that for immovables. If a movable thing is claimed against the buyer by one who alleges that it was previously sold or given to him, or acquired by him through some just cause, and words of felony are not added, the same is to be said about this as was stated above for an immovable. But if a thing is claimed against the buyer as stolen, he is bound absolutely either to clear himself completely of the theft imputed to him, or to vouch a warrantor concerning this.”

Here, then, is a distinction between accusation of theft and claims of wrongful possession not amounting to theft.°* Glanvill’s concern is with sales, but the latter type of accusations, ‘without words of felony’, might arise in other circumstances °° See eg. from Abingdon, Chronicon monasterii de Abingdon, ed. Stevenson, ii. 282 (compellationem), Historia ecclesie Abbendonensis, i. 127-8, ed. Hudson, i. 198-200 (‘appropriationem); Red Book, iii. 1038 (‘la generation de voz vileyns ), although see n. 2. Cf. Howden, Chronica, s.a. 1180, ed. Stubbs, ii. 242: ‘theam, interpretatur laudare auctorem; i. Revucher warant. °* For what follows, see Glanvill, x. 14, ed. Hall, 129-30; also below, ch. 26. °° Cf. Bracton, fo. 61b, ed. Thorne, ii. 182 (‘si pretium solutum fuerit vel ejus pars et traditio subsecuta;

‘if the price has been paid, or part of it, and livery has followed’), and note Pollock and Maitland, ii. 180-1, 210.

°° According to Bracton, fo. 62, ed. Thorne, ii. 182, the seller who withdrew from a sale was to pay double what he had received in earnest. On earnest, see Pollock and Maitland, ii. 208-9. Glanvill follows this discussion with the statement that ‘the risk in respect of the thing purchased and sold is generally on the party in possession, unless there is an agreement to the contrary. He is drawing on Inst. 3.23.3. °” Glanvill, x.15, ed. Hall, 130. °° See above, 70, below, 714-15. Note also the unusual case at RCR, i. 451.

25 MOVABLES 689 too, for example in relation to lost cattle. The accused might respond in various ways, including by voucher of warranty, by oath with oath-helpers, or by appropriate proof that the goods had been his throughout their existence, for example being the offspring of his animals.°? Such cases might well take place in the hundred and county courts; again they might relate to the ‘private agreements’ that Glanvill said were normally not protected by the king’s court.”° It was different if the accuser claimed the movable from the buyer as a matter of theft [ex causa furtiva]. The buyer had to clear himself completely of the theft, or vouch a warrantor. If he vouched a named warrantor, a day was appointed on which the warrantor was to appear. Glanvill provides a writ that the vouchor would commonly obtain, instructing the sheriff to attach the warrantor by pledges to appear before the king or his justices on the specified day. If the warrantor appeared, and warranted the sale and what was sold, the buyer was wholly free of liability or future loss. If, on the other hand, the warrantor defaulted, there was a plea between buyer and warrantor, which might be decided by battle.” Glanvill also asks whether the warrantor might in court vouch a further warrantor, and, if so, how far this process might extend.” If the buyer vouched an unnamed warrantor, and had sufficient suit, that is testimony, to prove his lawful purchase, this would clear him of felony but he still lost the disputed goods”? If he did not have such suit, he was in danger, by which Glanvill means that he faced the possibility of battle and a felon’s death.”

5 CONCLUSION There were thus many similarities in law regarding movables and immovables. Others existed too, for example the use of the term seisin with reference to both.” At the same time, there was significant separation of treatment of the two forms of property, notably with regard to succession practice and aspects of jurisdiction. In addition, there was a growing contrast in the complexity of law on the two

°° See Pollock and Maitland, ii. 161-2; also above, 76.

”© Glanvill, x. 18, ed. Hall, 132, and below, 692. From just after our period, see e.g. Pleas of the Crown of the County of Gloucester, ed. F. W. Maitland (London, 1884), no. 20. ™ Glanvill, x. 15-16, ed. Hall, 131.

” Some late manuscripts of Glanvill say that the vouching must stop at the fourth warrantor; Glanvill, ed. Hall, 131n.1. ’”* See also above, 381-2. ”* Glanvill, x.17, ed. Hall, 132.

”° See Glanvill, xiii. 9, ed. Hall, 153; e.g. CRR, vi. 214-15; also Assize of Clarendon, 12. F. W. Maitland, “The seisin of chattels’, in his Collected Papers, i. 329-57, esp. 332-3.

690 PART III: ANGEVIN ENGLAND forms of property. We have seen Glanvill struggle over the notion of ownership of movables, for example regarding two people between whom possession of the chattel had lawfully passed; he was emphatic that the bailee who would not give up the goods was not the equivalent of a thief’”° However, such situations concerning movables could not be considered in terms of dependent tenure. It was working out the issues of dependent tenure, and different types of lordship and seisin, that gave land law its distinctive complexity.”

© Glanvill, x. 13, ed. Hall, 128-9. ”” See also Pollock and Maitland, ii. 152-4, and esp. ii. 182-3.

2.6

Agreements and Debt A ees and Anglo-Norman evidence concerning most forms of agreement and debt is very limited, and therefore discussion of those periods appears in the present chapter. Particularly from the late 1170s the sources

improve, with extended if somewhat problematic treatments in the Dialogue of the Exchequer and in Glanvill. Various types of agreement have been discussed elsewhere in this book, for example those made prior to land grants or marriages and also the final concords made in the king’s court to secure dispute settlements or transfer of land. Most of the former would have been what Glanvill refers to as ‘private agreements, which he says were not a concern of the king’s court, whereas final concords were very much the business of that court. Glanvill discusses a further group of agreements in his Book X, on debt. Some of these could be enforced through a plea of debt, which he includes amongst the pleas that belong to the king.’

1 AGREEMENTS Throughout the period covered by this book, the Latin word conventio seems to represent a general category, that of agreement. There was not yet a distinct legal category of contract in the modern sense; contractus for Glanvill was a limited term, used regarding sales and loans.” Agreements could be made on a wide variety of matters. In addition to those concerning marriages or land transfers, there were, for example, agreements concerning service; many would have been unwritten and surviving documented examples are few even from the Angevin period.’

" Cf. Ibbetson, Obligations, 17-18. * See Glanvill, x. 14, 18, ed. Hall, 129-30, 132. Note also the discussion of terminology in J. H. Baker, An Introduction to English Legal History (4th edn, London, 2002), 317.

> Note S. L. Waugh, “Tenure to contract: lordship and clientage in thirteenth-century England’ (1986) 101 EHR 811-39.

692 PART III: ANGEVIN ENGLAND Agreements might be constituted in various ways.* An oath might be sworn or faith pledged; the latter did not require swearing on a relic or book, and used no specific words of imprecation. The agreement would involve accepted gestures,

such as the handing over of an object or the grasping or striking of hands. Agreements were made before witnesses, and could be reinforced by the naming of people as pledges who were to guarantee fulfilment of the agreement, or by the giving of gages that would be forfeit if the agreement was not carried out. Writing might reinforce the agreement; the document might take the form of a charter, in the name of one party, or of an agreement or a chirograph, making clear the mutual consent and hence enforceability,

By the late twelfth century, a distinction was made between private agreements and those enforceable in the king’s court. In the Cockfield case of 1201, Thomas de Burgh, brother of the king’s chamberlain, sought certain lands from the abbey of Bury through mort d’ancestor. The case was decided in the king's court at Tewkesbury: the abbey had a charter concerning the lands read out, but this was to no avail, according to the chronicler Jocelin of Brakelond, since the whole court was against the abbey and the knights of the recognition ‘said that they knew nothing about our charters nor about private agreements’.® Glanvill states in the context of arrangements between creditor and debtor that ‘the court of the lord king is not accustomed to protect or warrant private agreements of this kind concerning the giving or receiving of things as gage, or others of this sort, made outside court or even in other courts except in the court of the lord king’? Awareness of this jurisdictional custom, which the abbey of Bury gained in painful fashion, explains the increasing desire to have agreements made in the king’s court, especially through final concords.° Forms of securing agreements were therefore closely connected to issues of jurisdiction. Church courts heard many matters concerning oaths and pledge of faith throughout the Middle Ages.° In his treatment of debt, Glanvill restricts rather than prohibits ecclesiastical jurisdiction: ‘any breach or wrong of faith concerning this can be treated in an ecclesiastical court, but the ecclesiastical judge can only ‘enjoin

* See Pollock and Maitland, ii. 185-98; Ibbetson, Obligations, 4-6; also Canterbury Cases, no. A.5.

> See Hyams, ‘Charter’, Kaye, Conveyances, 7-11. For later developments, see J. Biancalana, ‘Actions of covenant, 1200-1330’ (2002) 20 LHR 1-57, at 5-38; also Pollock and Maitland, ii. 220; Baker, Introduction, 318. ° See above, 629. ” Glanvill, x. 8, ed. Hall, 124; see also x. 18, ed. Hall, 132. However, note royal willingness at least by

the early thirteenth century to become involved via a writ to the sheriff in enforcement of agreements made outside the king’s court; below, 693. ° See above, 522, 594, on final concords. Note also the discussion in Hyams, ‘Charter’, 180-1. > See e.g. Helmholz, Canon Law and Ecclesiastical Jurisdiction, esp. 360-6.

26 AGREEMENTS AND DEBT 693 penance or satisfaction upon the convicted.'° However, early records of the court of the archbishop of Canterbury show that some cases of breach of faith involving lay agreements were heard there, at least by Hubert Walter.”

We also have evidence for royal courts exercising justice concerning agreements. From between about 1163 and 1166 comes a writ addressed to the sheriff of Lincoln, ordering that he ‘justly and without delay cause to stand firm the agreement made between John abbot of Bardney and Roger son of Reingot concerning twelve bovates of land’.’* Henry II's Pipe Rolls record occasional

payments, for example ‘for justice concerning an agreement’. Cases ‘concerning agreement’ appear in the early plea rolls, becoming common by the 1220s.'4 Many but not all concerned leases for a term of years. Such pleas may have allowed the litigant to seek performance of the agreement, as in the action of debt discussed below, or compensation for the wrong done in breaching the agreement.* Evidence on forms of proof is very limited, but it might be by document or by wager of law."®

Other cases were heard in local courts, perhaps most importantly the county. Some probably were brought by plaint, that is oral complaint, no doubt continuing earlier common practice. In addition, the earliest surviving Register of Writs, probably from 1210, includes one ordering the sheriff to ‘justice’ a party to maintain

an agreement if the other part could ‘reasonably show’ that it ought to be kept.” A prefatory note indicates that the writ was appropriate for an agreement made outside the king’s court concerning some land or a tenement for a term of years, the profits of which were less than 4os. a year. By implication, if the agreement had been made in the king’s court, or the annual value were greater, the case went to the king’s court. Cases in the local courts were probably decided by wager of law."

© Glanvill, x. 12, ed. Hall, 126. ** See above, 566; also e.g. Historical Manuscripts Commission, Report on Manuscripts in Various

Collections (8 vols; 1901-14), i. 236-8. Also Canterbury Cases, Appx I nos 7, 11, 46. From the time of Archbishop Theobald, see Letters of John of Salisbury, no. 71. Note also Pollock and Maitland, ii. 199. ‘* Royal Writs, no. 154; cf. Early Registers of Writs, Hib. 49, CA 36, CC 153, R 527-45. The registers from the first half of the thirteenth century do not contain writs in precipe form concerning covenant, and nor does Glanvill. ** PRI7HIT, 103; PR27HII, 85.

* See e.g. CRR, i. 94; ii. 35-6, 80; ii. 265, iii. 232. See also CRR, i. 357 (which may but need not necessarily be the same cases as the one referred to as a plea of chattels at CRR, i. 401). *? See Pollock and Maitland, ii. 216-17; Ibbetson, Obligations, 21-2.

*® Note CRR, ii. 265 (charter, although further proof may have been necessary); x. 157, 255-6 (wager of law).

'” Early Registers of Writs, Hib. 49. R. C. Palmer, ‘Covenant, justicies writs, and reasonable showings’ (1987) 31 AJLH 97-117, at 116, argues that ‘reasonably showing’ involved the production ofa

document, or perhaps a tally, but this cannot be proved for our period. "® See Baker, Introduction, 318.

694 PART III: ANGEVIN ENGLAND 2 USURY Throughout the period the Church and probably kings prohibited usury by Christians. According to the Leges Edwardi Confessoris in the second quarter of the twelfth century, Edward the Confessor prohibited usurers, lest there be any in his kingdom. And if anyone, thereupon, was convicted, he would lose all his possessions and be considered an outlaw. Moreover, he used to say that he often had heard this in the court of the king of the French when he had been staying there; nor was this without merit: usury should be regarded as the greatest root of the vices.”

This may be a fabrication or a memory of actual legislation, or it may represent

twelfth-century attitudes or be equally true of the late Anglo-Saxon period. Men no doubt sought to get round the prohibition, and the distinction between taking gage and taking interest was probably an issue in some cases involving Christian usury. The two accounts of Bricstan’s case in Henry I’s reign differed as to whether he was involved in usury or ‘lent money to his needy neighbours, but not at usury; only, because so many men are untrustworthy, he retained gages from his debtors’.”°

In the Angevin period, Glanvill wrote that when anyone makes a loan ‘he commits usury if he receives more in return. There was no criminal liability for usury in the lender's lifetime, but ‘if he dies guilty of this crime, he shall be condemned as a usurer by the law of the land.” If it was established by sworn inquest that the deceased had died guilty of usury, his movables and chattels were to be seized for the king’s use, his inheritance revert to the lord or lords of his fee. The notorious usurer was obliged to desist and do penance if he were to avoid this fate.” Despite the threatened penalties, in the twelfth century large-scale Christian lenders made money on loans in various ways, including fixed penalty sums for late repayment, whilst in our period and beyond Jewish lenders were permitted to take interest openly.” ? ECf, 37, ed. O’Brien, 200. See also e.g. Gratian, Decretum, C. 14 q. 4, esp. dictum preceding c. 1, for prohibition of usury by clerics or laymen. *° Above, 305-6; also above, 680-1, on Hamo Blunt. *" Glanvill, x. 3, ed. Hall, 117; Glanvill’s specific concern here was the loan for consumption, on which see below, 696. *? Glanvill, vii. 16, ed. Hall, 89; cf. Dialogus, ii. 10, ed. Amt, 146, which allows the usurer’s heir the landed inheritance; Stacey, ‘Jewish lending’, 91n.57. See also Dialogus, ii. 10, ed. Amt, 148, on clerical

usurers, and the comment at ii. 13, ed. Amt, 162, on knights and free men who become usurers. For the money-lending career, and in particular related activity in the king’s courts, of William of St Michael, see Flower, Introduction, 294. ** See e.g. Stacey, ‘Jewish lending’, 89-90; Oxford Charters, no. 85.

26 AGREEMENTS AND DEBT 695 3 DEBT IN ANGLO-SAXON AND NORMAN ENGLAND Apart from the Christian prohibition of usury, and the use of distraint for arrears of services and other dues, we know very little about the law of debt in the Anglo-Saxon and Anglo-Norman periods.** A law of Athelred concerning

observance of festivals stated that ‘if anyone owes another a debt [borh] or compensation in connection with worldly matters, he shall render it to him readily either before or after [the festival].** The will of Archbishop Aélfric of Canterbury in 1003 x 1004 specifies that his debts were to be repaid even before payment of heriot.”* It is possible that some leases before and after 1066 provided landed security for loans. In the mid-tenth century we hear of land being used as a gage for a monetary loan of £30.” Domesday records a layman claiming to have held land ‘in gage [vadimonio]’ for £10 from another layman.”* In Henry I's reign, William of Bacton ‘gaged’ eight knight's fees to Everard bishop of Norwich

in return for 80m. of silver. It was left to William’s uncle and heir to acquit the debt and regain the land.” As for procedure in disputes, the Old English tract known as Swerian includes appropriate oaths of accusation and denial: In the name of the living God, as I demand money, so I have lack of that which N. promised [behet] me when I sold him my possession.

In the name of the living God, I do not owe N. coin [sceatt] or shilling or penny or penny’s worth; but I have discharged to him all that I owed him, as our verbal agreements first were.*°

The existence or non-existence of a debt presumably continued to be proved through the pledges and witnesses present at the original agreement or transaction." We hear of one procedure in the context of the twelfth-century customs of Bury St Edmunds, but we cannot tell how similar procedures were elsewhere, in particular outside boroughs: If anyone has lent his money to somebody inside or outside the town and cannot have it at the appointed time, and this has been established, let him take distraint

** See above, 341-3. *° VI Atr, 25. 2. *° $1488. *7 § 1211, on which see above, 82. *8 DB, i. fo. 49r. *? Dodwell, ‘Bacton charters’, nos 2 and 3. °° Swer, 10, 11.

*" See above, 692.

696 PART III: ANGEVIN ENGLAND for it in this town. And if he has a gage concerning it and has kept this gage for a whole year and a day, and the debtor wishes to redeem or free it, and this has been established, let him sell the gage before good witnesses for as much as he can and let him take his money therefrom, and if there is anything left, let him give it back to the other man. If, however, he cannot have all his money therefrom, let him likewise take distraint for what is lacking.”

The procedure thus combines distraint with the raising of money through sale of a pledge that had been given by the debtor.

4 PRIVATE DEBT IN ANGEVIN ENGLAND Glanvill provides an extensive treatment of debt, but one that raises problems of interpretation. Most notable is its extensive use of Roman law language. It is unclear whether this is derived from the Institutes or from a version of the vulgar law of the western Empire.*? What is clearer is that the influence is on vocabulary and presentation more than on substance of law.*4 For example, Glanvill presents a Roman view of a consensual contract, including a sale, being completed by the simple agreement of the parties, but then adds a proviso that effectively contradicts his previous statement, in that he requires delivery, or at least partial payment, or the giving and receipt of earnest.** Likewise there is no assumption in Roman law that the creditor shall receive from the debtor a gage as his main protection. Glanvill draws on Roman law to categorise debt as follows: ‘something may be owed from cause of loan for consumption [mutui], or from cause of sale, or from

use [commodato], or from letting [locato], or from deposit [deposito], or from other just cause of debt-3° How far these categories reflected those of English law at the time again is unclear. Most of Glanvill’s discussion was of what he called the ‘loan for consumption and this discussion is framed in the terms and processes of English law. The following analysis therefore draws heavily on Glanvill’s treatment of the loan for consumption, a loan ‘when someone lends another something that can be counted, weighed, or measured.” As yet, no distinction was made between

*? Lawsuits, no. 295; the document dates from 1135 x 1138, or possibly 1121 x 1138.

°° Ibbetson, Obligations, 19.

** Note also Glanvill, ed. Hall, xxxvii-xxxviii, who sees Glanvill’s use of Roman law here as involving some ‘ingenious adaptation’ rather than just ‘misapplication’. °° Glanvill, x. 14, ed. Hall, 129-30, above, 688; cf. Inst., 3.23.1; Pollock and Maitland, ii. 207-10; Royal Writs, 380-2; Ibbetson, Obligations, 19. °° Glanvill, x. 3, ed. Hall, 117; see also Glanvill, x. 14, ed. Hall, 129, on debt arising from purchase or sale. °” See Glanvill, x. 3-12, ed. Hall, 117-28, quotation at x. 3, Hall, 117; see also Hall, xxv.

26 AGREEMENTS AND DEBT 697 the withholding of money and that of a particular chattel, later distinguished respectively as debt and detinue. Rather, debt might consist of money or goods; debitum meant simply ‘that which is owed. The plea of debt sought the restoration of what belonged to the plaintiff.**

Dealings resulting in debts

Debt arrangement should be made before witnesses and might be written down.” Plea rolls show that tally sticks might be produced in support of a plea in the king’s court.*° Glanvill tells us that it was also common to reinforce a loan for consumption by provision of people as pledges, by placing of movables or immovables as a gage, or by pledging of faith, and sometimes by several of these at once.*’ Pledges were each to be liable for the entire debt, unless a different arrangement was agreed when they pledged themselves.** A gage would pass to the creditor, which would become his unless the debt was repaid as agreed. The gage might consist of movables or immovables, and be for a fixed term or no fixed term. Glanvill then goes on to explain the various possibilities. If movables were deposited as a gage, the creditor given seisin of them, and the gage was for a fixed term, the creditor “is bound to guard the gage safely and is not to use it or deal with it in any way to its detriment’. The value of any deterioration was to be set off against the debt, whilst any costs involved in the keeping of a gage were a matter for agreement between the parties.** If the gage was not for a fixed term, the creditor might claim his debt whenever he pleased. He was then to restore the gage to the debtor in its original condition or make satisfaction for it; otherwise he would lose the debt. If the agreed gage was not delivered to the creditor, being gaged to other creditors before or after, the creditor had no remedy in the king’s

°® See e.g. CRR, iii. 172, 233, 263, 317; iii. 207; Pollock and Maitland, ii. 173-5, 204-5; Milsom, Historical Foundations, 262-3, 266-7; Ibbetson, Obligations, 18-21; A. W. B. Simpson, A History of the Common Law of Contract (Oxford, 1975), 77.

°° See e.g. H. Jenkinson, ‘A money-lender’s bonds of the twelfth century’, in Essays in History presented to Reginald Lane Poole, ed. H. W. C. Davis (Oxford, 1927), 190-210; also Glanvill, x. 3, 12, ed. Hall, 117, 126; Jocelin, Chronicle, ed. Butler, 2, 38; CRR, iii. 170. *° See CRR, iii. 170. “™ Glanvill, x. 3, ed. Hall, 117.

* Glanvill, x.5, ed. Hall, 118; note also Jenkinson, ‘A money-lender’s bonds’, 200-1. ** Note also the vif gage, where the revenues from the gaged land repaid the debt. Assuming that vif gages were used to repay debts in full, rather than leaving a lump sum to be repaid after a set time,

the creditor would simply keep the gage until the revenues had repaid the debt. Cf. the mortgage, discussed in the next paragraph. “* Glanvill, x. 6, ed. Hall, 120-1. For a gage of land, see Oxford Charters, no. 85. Note also CRR, ili. 165-6.

698 PART III: ANGEVIN ENGLAND court since it was not the custom of the king’s court to protect or warrant private agreements of this sort, made outside the king’s court.* Although remedies may have been available in local courts, Glanvill’s statement suggests that this limitation was a weakness in the creditor’s position.*®

An immovable gage likewise could be for a fixed term or no fixed term.” Arrangements and rules for such gages were similar but not identical to those for movables. Creditor and debtor had to agree whether or not revenues from the gage would contribute to the payment of the debt. If they did not contribute, the gage was referred to as a mortgage.** An ecclesiastical council at Westminster in 1175 had considered the prohibition of mortgages, and a papal letter on the subject followed.

However, according to Glanvill, a mortgage ‘is unjust and dishonourable, but is not forbidden by the court of the lord king, although it deems it a type of usury. Therefore if anyone dies seised with such a gage and after his death this is proved, his goods shall be disposed of just as the goods of a usurer. *°

Jurisdiction Glanvill opens his treatment of debt with the following statement: ‘the plea concerning the debts of laymen belongs to the crown and to the dignity of the lord king.’ As we have seen, he allows that ecclesiastical courts might treat breaches of faith, but although the ecclesiastical judge may ‘enjoin penance or satisfaction upon the convicted, by an assize of the realm he cannot deal with or determine in a court Christian, on the basis of pledge of faith, pleas concerning the debts or tenements of laymen’’ The ‘assize’ is almost certainly the 1164 Constitutions of Clarendon, clause 15, which lays down that ‘pleas concerning debts that are owed with faith having been pledged, or without pledge of faith, are to be in the king's justice’. Before the Becket dispute the Church certainly exercised jurisdiction

* Glanvill, x. 8, ed. Hall, 123-4. *° Note also Glanvill, x. 11, ed. Hall, 126, for the creditor’s lack of protection through novel disseisin;

xiii. 28-30, ed. Hall, 165-6, for the vulnerability of the gage following challenge arising in the context of mort d’ancestor. See also Glanvill, ed. Hall, 190. Brand, ‘Debt’, 34, concludes that the legal position of the creditor improved in the period 1189-1307. *” For gages of land, note also e.g. CRR, i. 107; ii. 172; vi. 40. *® Glanvill, x. 6, ed. Hall, 121.

* Council of Westminster 1175, Proposition 27, Councils and Synods, I, no. 168 (II); see further Councils and Synods, I, 969-70. °° Glanvill, x. 8, ed. Hall, 124; see also Dialogus, ii. 10, ed. Amt, 148-50; Carte nativorum, no. 508, probably recording a mortgage; Brand, ‘Debt’, 30. >" Glanvill, x. 1, ed. Hall, 116. °? Glanvill, x. 12, ed. Hall, 126; above, 692-3.

26 AGREEMENTS AND DEBT 699 concerning debt regarding which faith had been pledged.* The pope condemned

the article of the Constitutions, and Becket and his supporters seem to have regarded it as depriving the Church of all jurisdiction concerning breaches of oath or faith, except, perhaps, in marriage matters.* The early plea rolls record writs of prohibition being issued to prevent Church courts hearing debt cases, except those arising from marriages or testaments.*> However, in the later Middle Ages Church courts did hear some debt cases based on breach of faith»°

In associating pleas of debt with the king’s justice or the crown, the Constitutions and Glanvill were not saying that all debt cases should be in the king’s court” Those that the plea rolls record as being heard in the king’s courts concern substantial debts. The number of such debt cases is quite small, perhaps because of the cost’* It may be that some were pursued there, antagonistically or collusively, in order to obtain an unarguable record of the debt arrangement, including, for example, dates for payment.° Because of the lack of records, evidence for cases in local courts is very thin, but the plea rolls occasionally mention cases in the county court, including one of 5m.°° Other evidence shows significant debt cases being heard in the courts of privileged lords, whilst small debt cases may also have gone to lords’ courts, including manorial ones.”

°° See esp. Letters of John of Salisbury, no. 71. Stacey, ‘Jewish lending’, 91, argues that the 1164 Constitutions removed an advantage that Christian lenders had enjoyed over Jewish, that of pursuing their cases in Church courts. °* See The Correspondence of Thomas Becket Archbishop of Canterbury 1162-1170, ed. and trans. A. Duggan (2 vols; Oxford, 2000), no. 78; MTB, iii. 47, iv. 102, v. 79; Pollock and Maitland, ii. 198-9. See also Pollock and Maitland, ii. 200, for ecclesiastical attitudes in the thirteenth century. »° See CRR, ii. 28 and esp. vii. 292-3.

°° Helmholz, Canon Law and Ecclesiastical Jurisdiction, 176, 359. It is not made explicit on what grounds the case recorded in CRR, iii. 207, was also being heard in an ecclesiastical court, but it may have been in the context of marriage. See also above, 566, on Hubert Walter. °” See also above, 692, on private agreements. °® See e.g. RCR, i. 5 (22%m.); Three Rolls, 24 (8%m.); CRR, i. 304 (15%m.); PKJ, ii. no. 930 (15m.).

From the 1290s the ceiling for debt cases in local courts started without a writ was 40s.; Brand, ‘Debt’, 23, and above, 551, 561. See also Pollock and Maitland, ii. 205; Flower, Introduction, 291-4. On cost, see below, 700. Note Royal Writs, 255-60, for Pipe Roll evidence of royal justice regarding debt in Henry II’s reign. °° For debtors acknowledging debts in the king’s court, see e.g. CRR, i. 345; note also e.g. CRR,

i. 51; i. 304 (with provision that the sheriff might distrain for non-payment); i. 358, ii. 161; ii. 211. For a creditor acknowledging repayment, see CRR, vii. 222. Such record of action in the king’s court ensured that debt arrangements could no longer be considered mere ‘private agreements’, cf. above, 692. °° CRR, i. 277.

°* See e.g. Jocelin, Chronicle, ed. Butler, 46, for Jews coming to the ‘great pleas’ of the abbot of Bury, that is the central court of the abbey’s liberty, in order to demand their debts. For lesser debts, see Pollock and Maitland, i. 587, and above, 551, 561.

700 PART III: ANGEVIN ENGLAND Procedure The creditor could distrain his debtor for payment.” Court judgment before distraint

might, but need not, protect the person making the distraint from accusation of theft.° Glanvill mentions distraint as a method of getting the debtor into court and also as means of obtaining payment by a pledge following judgment.** Howden mentions legislation in 1177 concerning Henry IIs Continental possessions, laying down that a debtor's men were not to be distrained for debt unless they were themselves debtors or pledges of the debtor. Rather, the rents that those men should render to the debtor were to be rendered to his creditors. However, there is no indication that this decree applied to England.® As for activity in local courts, the earliest Register includes a writ to the sheriff, which a creditor might obtain: “We order you that you compel [justicies] R. that justly and without delay he render to G. 20s. that he owes him, so he says, as he can reasonably show that it ought to be rendered to him.’ A similar writ was available, without payment, regarding a charter, shield, horse, or chattels worth up to

4os., entrusted but not given back. If the debt or value exceeded 4os. an extra clause was added, instructing the sheriff to take the first third of the amount for the king’s security. Financial records strongly suggest that such writs were in use from the very start of the thirteenth century, and in 1205 one was enrolled on the Close Rolls.” If the debt was small, the writ was to be issued ‘without gift [i.e. payment)’, but a charge was indeed made for help in obtaining larger debts. The earliest Register also includes a writ prohibiting that the sheriff distrain, or allow to be distrained, someone who was neither chief debtor nor pledge.®? It may be that the writs were only invented after Glanvill’s book was written. Alternatively

his coverage may not be exhaustive since such writs took cases to the county court, not the king’s, and the latter was his main focus. As we have seen, a royal

°* On heirs’ obligations to pay their ancestors’ debts, see above, 681. °° See CRR, vii. 242-3. See also below, n. 69, for writs prohibiting the sheriff from distraining, or

permitting to be distrained, sureties or others. °* Glanvill, x. 3,5, 8, ed. Hall, 117, 118, 122. °° Howden, Chronica, s.a. 1177, ed. Stubbs, ii. 146; cf. below, 704, on Dialogus, ii. 14.

°° Early Registers of Writs, Hib. 38; see above, 699, on the significance of 40s. °” Rot. lit. claus., i. 23b. The earliest financial record reference is Rot. de ob. et fin., 136, from 1201. See Palmer, County Court, 184-7; cf. Royal Writs, 256. °° See esp. PR7J, 57: “William son of Robert owes a third of 15m. that he may have the king’s writ to the sheriff of Yorkshire that he compel | justiciet] John the Roman that he render him 15m.’ Note also e.g. PRIOJ, 13, 21, 110, 168, 199.

°° Early Registers of Writs, Hib. 44. This writ did not run in privileged cities, or if the debt was the king’s. Hib. 46 prohibited the sheriff from distraining, or allowing to be distrained, a pledge when the chief debtor still had resources whence he should pay the debt. Again, this writ was not to be used for debt owed to the king.

26 AGREEMENTS AND DEBT 701 writ to the sheriff for aid regarding a substantial debt was costly, and similar payment might have to be made for justice in the king’s court. A plea roll of 1214 records an agreement regarding a debt of 6m. 4s.; the king was to have from this

2m. from the first pennies, a pattern resembling that suggested by the earliest Register of Writs.’°

Glanvill’s account of proceedings in the king’s court omits various subjects that we might wish he had covered, but is clear and methodical. He begins with the action against the chief debtor, and gives a writ precipe very similar in form to that used in land cases. Although his sample writ mentions 100m., probably a similar one could be used regarding a withheld chattel. Procedure, he tells us, was as with other writs precipe.” Plea rolls and writs show sheriffs attaching parties who did not appear or provide essoins, and taking the gage into the king's hand in order to compel the creditor to appear.” In court the creditor needed proof beyond pledge of faith, although such pledge might be used as justification for a hearing in an ecclesiastical court. According to Glanvill, proof concerning debt could be made ‘through a suitable witness and battle, and also through a charter; witness and battle were not alternatives, but rather meant a witness willing to offer and fight battle. If the creditor had a charter from the debtor, the latter might have to admit that it was sealed with his seal, and therefore had to observe the specified agreement. If he denied the charter and seal, he could prove his case either by comparison of seals or by battle fought by a witness.” At the time of the deposit of a movable gage for a fixed term it could be agreed that the gage would become the creditor’s to treat as his own, should the debtor not redeem it at the end of the term. If no such agreement had been made, and the debtor had not paid, the creditor might complain and obtain another writ precipe, ordering the debtor to acquit the gage, that is pay off the debt and thereby regain the gage. If he failed to do so, he was to be summoned to appear before the king or his justice. When he appeared in court, the debtor either admitted that he had deposited it as a gage, or did not. In the former case, he was ordered to acquit the gage within a reasonable time. In the latter, the creditor must prove

”° CRR, vii. 227. Note also CRR, v. 209.

™ Glanvill, x. 2-3, ed. Hall, 116-17. Note that the deforciant clause in Glanvill’s precipe concerning debt, as in his precipe concerning land, was not included in 1199 in the equivalent writs of the justiciar; PKJ, i. nos 3512, 3524. ” See e.g. CRR, i. 107, iv. 84; v. 217; vii. 209; PKJ, i. nos 3476, 3532. Note also CRR, v. 287, for the

demandant defaulting, and therefore being in mercy; his opponent went sine die. ”> Glanvill, x. 12, ed. Hall, 126-8; note CRR, iii. 170, for offer of tallies in support of a plea. See Glanvill, ed. Woodbine, 256, on the lack of plea roll evidence for the use of battle to prove debt. See RCR, ii. 102, for a claimant in a debt case losing because he did not have suit present, that is a witness or witnesses prepared to make proof.

702 PART III: ANGEVIN ENGLAND that he had lent him the sum stated and that the debtor had deposited the thing with him specifically as a gage.”

The debtor too had a writ precipe available if the creditor would not restore the gage when he should.’”> Glanvill’s writ refers to a gage of land and the creditor

might then either acknowledge the land as the gage, or say that he held it as his fee. Glanvill later provides a writ for a recognition as to whether [utrum] land was fee or gage, which could be used in such circumstances/”* If the land was found to be gage, the creditor—tenant lost it. If it was proved to be his fee, the debtordemandant had no remedy except a writ of right” Should a loan have been accompanied solely by the giving of pledges, Glanvill provides another writ precipe for the creditor, ordering the pledges to pay or be summoned before the king or his justices.”* When the pledges appeared in court, if they admitted their suretyship they had either to make satisfaction to the creditor or prove that they had discharged their suretyship by payment or in some other lawful fashion. Alternatively they might deny their suretyship; Glanvill is somewhat uncertain whether they should provide proof by battle or by oath of as many men as the court required. Glanvill also promises, but does not provide, a discussion of the remedies that pledges had against the debtor.” By the time of the earliest Register of Writs, the pledge could obtain a royal order to the sheriff that the debtor acquit him of the amount for which he had been placed as pledge against the creditor.*°

The law regarding private debt provides an interesting contrast between the Romanising language of Glanvill and the preservation of old procedural forms. This is apparent both in proof, for example the continuing importance of wager of law, and in the pleading that led to the issue put to proof. Blank denials seem to have remained common, so that a debtor who had paid what was owed might simply be recorded as saying that he did not owe, just as would one denying ever having been in debt. Few special issues, which might have required the verdict of a jury, were pleaded. In part as a consequence, the

”* Glanvill, x. 6-8, ed. Hall, 120-3. ’”° Glanvill, x. 8-10, ed. Hall, 124-5. ”° Glanvill, xiii. 26-7, ed. Hall, 164-5; see also xiii. 28-29, ed. Hall, 165-6. ”” Glanvill, xiii. 30, ed. Hall, 166. ”® Glanvill, x. 3-4, ed. Hall, 118; see also Brand, ‘Debt; 28, for evidence of possible use in the first two decades of the thirteenth century, and also for the lack of such a writ in the earliest or subsequent Registers.

” Glanvill, x.5, ed. Hall, 118-20, including a distinction as to whether the pledge was for the whole debt or a fixed share. °° Early Registers of Writs, Hib. 43.

26 AGREEMENTS AND DEBT 703 development of a range of writs concerning debt did not match that concerning landholding.*

5 DEBT TO THE KING IN ANGEVIN ENGLAND Some debts to the king might arise from agreements, but most would come from obligations such as scutage, from offerings, for example for wardships, or from amercements. Harsh or arbitrary treatment of royal debtors was a major issue underlying the baronial rebellion of John’s reign. Debtors might be obliged to pay off large amounts over short periods, provide hostages until guarantors were found, or pledge all their lands as security that they would pay.®

If these were abuses, what was proper procedure? The Dialogue of the Exchequer gives the view at least of a royal treasurer late in Henry II’s reign. If historians have focused on royal oppression, the Dialogue is concerned with issues such as debtors’ dodges. For example, it notes a sentence added after the time of Henry I to the writ of summons of a royal debtor; this sentence ordered co-operation between sheriffs to deal with the problem of debtors who, knowing that a summons was being sent to a particular county, shifted their goods to another shrievalty, and then, empty-handed, awaited the arrival of the sheriff who was responsible for dealing with the debt.®

The account in the Dialogue begins by distinguishing types of debt, for example voluntary offerings and compulsory penalties, and types of debtor.** Townspeople were to be treated differently from others. The discussion then moves on to the seizure and sale by the sheriff of chattels of those who did not pay their debts voluntarily.* The chattels that might licitly be sold were the movables

and those that moved themselves; these included gold, silver, vessels made of these metals, precious stones, changes of clothing, horses, cattle, and sheep, as ** See Pollock and Maitland, ii. 214-15, 634-5, Milsom, Historical Foundations, 254-6, Brand, ‘Debt’, 34.

°? See Holt, Magna Carta, 191-2. CRR, ii. 259, iii. 287, record men holding their lands at farm from the king, until the revenues had paid their debts; it is unclear whether this practice would have been considered oppressive. Both cases involve the heirs of the original debtor, in the first the heir of a royal serjeant, in the second of a woman. For prevention of abuse, note also e.g. Early Registers of Writs, Hib. 45. °° Dialogus, ii.1,ed. Amt, 108. Note also Dialogus, ii. 21-2, ed. Amt, 176-8, on lords exploiting the

various rules concerning agents and imprisonment. ** Dialogus, ii.13, ed. Amt, 160-4. For voluntary offerings, ‘fines’, and penalties, see also Dialogus, ii. 23-4, ed. Amt, 178-82. °° Dialogus, ii. 14, ed. Amt, 164-8. On the sheriff as the agent, see also Dialogus, ii. 13, ed. Amt, 164, and note CRR, iv. 17; for action by a serjeant, see e.g. CRR, vii. 15-16.

704 PART III: ANGEVIN ENGLAND well as grain and victuals that had been set aside for sale. Exempt were food for the debtor, his wife, children, and household, although not to the extent that the debtor might eat gluttonously. Also exempted was the horse normally used by a debtor who had achieved the belt of knighthood, and the arms and armour of a fighting knight. Plough animals were to be spared as far as possible, so that the debtor was not forced into poverty by their loss, but in the last resort they too should be sold. When the debtor’s own resources were exhausted, the chattels of his villeins were to be sold, in the same order. Sale was to end there, whether the debt had been paid or not. Only in the case of debt for scutage were his knights’ chattels to be sold, as scutage by its nature concerned his knights, and even then the knights’ chattels were not to be sold if the knights could produce bonds that they had paid their lord the scutage that they owed for their fiefs. Richard fitzNigel, the author, said that these restrictions marked a shift by royal legislation from earlier law, when chattels of a debtor's knights and villeins had been sold for other types of debt too.*° In addition, the sheriff was to uncover what was owed by others to the debtor.

He was to exact these debts, thereby ending the liability of this second debtor to the man in debt to the king. Should the debtor, after he had become indebted, lease an estate or rent, or give them as gage for money, or even sell his demesne, what was owed to the king could be seized from these, unless the debtor had at the start voluntarily paid the king the sale price. Again, presumably, a concern was debtors seeking to avoid exaction of their debts by transferring lands and other revenues to third parties; in Richard’s eyes, the debtor was granting or selling what was not his, to the loss of the treasury.*” The next main issue for the Dialogue is family and royal debt. If a woman died in debt to the king, and if her husband had children with her, to whom her inheritance ought to go, the husband should be summoned and distrained in the name of the heir. If a woman fell into debt to the king through an offence, and her husband predeceased her without them having children, the debt was to be sought from her new husband if she remarried. If an indebted woman survived her husband, and had children, and remained with them in widowhood, ‘she should be summoned and distrained on behalf of the children who are due to inherit’. Her dower was exempt, so long as she remained chaste. However, if she

°° Cf. the Continental legislation above, 700. *” Dialogus, ii. 15-16, ed. Amt, 168-70; the author is careful to state that such seizure was sufficiently justified according to the laws of the land [satis justam secundum patrias leges], in that the debtor had

been convicted of an offence against the royal majesty and his chattels were adjudged to be at the king’s goodwill [in beneplacito principis].

26 AGREEMENTS AND DEBT 705 left her children and remarried, her legitimate heir should be summoned for the debt that he inherited.*®

Following these discussions, the author then states that ‘the situation of the king’s barons is different from that of other people who pay fines to the king for their offences [excessibus]’.*° However, processes such as distraint and sale

of chattels certainly did also apply to tenants-in-chief who would not pay debts of their own accord, as is clear from the discussion of scutage.®° Rather the difference concerned the debtor’s response to summons, with a procedure whereby a king’s baron, that is a tenant-in-chief, could indicate his willingness to answer concerning his debts. On receiving a summons, a man who held a barony from the king was allowed to pledge his faith, either in person or through his steward, in the sheriff's hand that he would have the warrant of the barons of the Exchequer concerning the sum and the summons on the day of account. The sheriff was to be satisfied with this. If the baron then did not appear on that day, nor make satisfaction himself or through another, the sheriff was judged to have done his duty. A note was made in the memoranda of the Exchequer so that at the end of the session, once advice had been taken, the debtor could be more severely punished. However, if he came and paid the debt after the sheriff's account was complete, he could be acquitted by the grace of those sitting at the Exchequer and by the indulgence of the law.” The Dialogue next provides an extended description of coercive confinement for those who had pledged their faith thus, and who came but did not pay their debts.» Such a lord was to be detained for the length of the session, having pledged faith to the marshal that he would not leave the neighbourhood [leugata] of the town without the permission of the barons of the Exchequer. If he had still not paid by the end of the session, he was to be kept in custody in a safe place, but in free custody, until the king, if present, or the president and others in attendance decided what should be done. If his steward, be he a knight or not, came in his place and failed to pay, he was to be arrested for breach of faith, and placed in the marshal’s custody, and at the end of the session might lawfully be

°° Dialogus, ii. 18, ed. Amt, 172, which excepts villeins and people who died without an inheritance; see also S. J. Bailey, “Ranulf de Glanvill and his children’ (1957) 15 CL] 163-82, at 169-71. See above, 684, for the role of heirs and executors in dealing with debts; also Sheehan, Will, 155-6. °° Dialogus, ii. 19, ed. Amt, 172-4. °° Dialogus, ii. 14, ed. Amt, 166. °" Dialogus, ii. 19-20, ed. Amt, 174. *? Dialogus, ii. 21, ed. Amt, 174-6; Pugh, Imprisonment, 5. Note also, e.g., the order to the sheriff of Nottingham that he deliver Robert of Greasley and his daughter to the custody of eight lawful knights

of his county for a stated period, while Robert might find pledges that he would pay his debt to the king. If he could not find pledges, he was to be returned to the sheriff's custody; Rot. de ob. et fin., 539.

706 PART III: ANGEVIN ENGLAND chained and imprisoned. In contrast, a knight who failed to pay his own debt despite his pledge of faith, was to be kept in free custody, not in prison but within the enclosure of the prison building, once he had sworn by his body that he would not leave without the permission of the king or the president of the court. This privilege arose from a royal decree, and contrasted with the treatment of those acting on behalf of their lords and of non-knightly debtors.% Tenants-in-chief were thus offered the opportunity to pledge their faith that they would answer for their debts in person or by representative, but failure to pledge faith, failure to appear after pledging, or failure to pay after appearing, all left them facing considerable penalty.”

Despite the considerable signs of grievance, Magna Carta’s provisions concerning debt to the king were somewhat limited. For example, seizure of the debtor’s land was not prohibited. Rather, clause nine provided that the debtors’ lands and rent should not be seized so long as the debtor’s chattels sufficed for repayment of the debt. The debtors’ pledges were not to be distrained so long as the debtor himself could pay. If he could not pay and the pledges became answerable for the debt, they might have his lands and revenues until they received satisfac-

tion for the debt, unless the principal debtor showed he was quit in relation to them. Clause twenty-six allowed the king’s sheriff or bailiff to show royal letters patent and attach and list the chattels found in the fee of a deceased debtor to the king, to the value of that debt, by view of lawful men. Only when the debt was paid was the residue to be relinquished to the deceased's executors.*°

6 JEWS AND DEBT In the Anglo-Norman period both Jews and Christians participated in the related activities of bullion-dealing, money-changing, and money-lending. However, the Angevin period saw the emergence of Jewish dominance within money-lending, with the disappearance of major Christian lenders such as William Cade.” In 1194

°° Note also Dialogus, i. 5, ed. Amt, 32: when the Exchequer was adjourned for the day, a nonknightly debtor might be gaoled by the marshal, although not chained or thrown into a dungeon, but kept apart or above the prison, ‘for although he does not pay, he has not thereby deserved to be considered with the criminals [sceleratis]’. °* See also John’s decree of 1200 on such matters; Howden, Chronica, s.a. 1200, ed. Stubbs, iv. 152.

°° See also Holt, Magna Carta, 334-5.

°° The king’s rights were also implicitly protected in Magna Carta, c. 27, which required the payment of the debts of those who died intestate. °” See Stacey, Jewish lending’, 87-93. For the transfer of bonds between Jews, see Richardson, English Jewry, 74. On inheritance of debts to Jewish lenders, see below, 775.

26 AGREEMENTS AND DEBT 707 particular measures were established to keep record of Jewish property and debts. All debts and gages of the Jews were to be recorded: lands, houses, rents, and possessions. Six or seven places were to be provided in which Jews were to make their loans [prestita], and two lawful Christians, two lawful Jews, and two lawful scribes were to be appointed. Before them and the clerks of William de Sainte-Mére-Eglise and William de Chimillé, all loans should be made, and recorded in charters in chirograph form. Half the chirograph was to remain with the Jew, sealed with the debtor’s seal, the other half to remain in the common archa or chest. The clerks were to keep a roll of the transcripts of all the charters.

Henceforth, no loan, nor any payment to the Jews, nor any alteration to the charters was to be made except in the presence of the officials, or the majority of them if some could not be present.®®

Such a thorough system of registration clearly differs from arrangements for other debts.°° However, Glanvill does not distinguish between the law of debt involving Christians and that involving Jews, and the differences were indeed limited.’°° Jewish and Christian bonds concerning debt show similarities.” There were certain goods that Jews were not meant to receive or retain, mail-coats, bloodstained clothing, and Church goods, but certainly the last were in practice sometimes given as pledges for debts.'°* We hear, for example, of Benedict, a Jew

of Norwich, rendering account for 60m. for consecrated vestments that he had received as a gage.’ Surviving charters of Richard I and John, and probably a lost charter of Henry II, for the Jews of England and Normandy laid down that if dissension arose between Christian and Jew concerning any debt, the Jew was to make proof concerning the capital, the Christian concerning the interest. The same charters allowed Jewish creditors to sell their gages after it was certain that they had held them for a year and a day.’** The Jewish lender did have some advantages, notably if a debtor seized back land given as a gage; the Christian

°® Select Charters, 256. °° For evasion of the system being brought before the king’s court, see e.g. CRR, v. 246.

°° The king might help Jews collect their debts, as he might help others; see Royal Writs, 254-6, Jocelin, Chronicle, ed. Butler, 2. Stacey, ‘Jewish lending’, 91 n. 59, points out that this may be one reason why Jews would have their bonds witnessed by the barons of the Exchequer. *°! See Richardson, English Jewry, 69-71. Note CRR, vi. 125, for a Christian vouching the justices of the Jews to warrant. *°* See Assize of Arms, 7; Foedera, i. 51; Rot. chart., 93; Gesta regis Henrici secundi, s.a. 1175, ed. Stubbs, i. 106. Note also Rot. lit. cl., i.397, on prohibitions in Poitou and Gascony. "°° PRI6HIT, 10; see also e.g. PR29HII, 14; Jocelin, Chronicle, ed. Butler, 2, 30-1. Note that church treasures and vessels, according to canon law, should be inalienable; e.g. Gratian, Decretum, C. xii, q. ii, c. xiii. This point may underlie objection to their use as gages for debt, be it to Jew or Christian. For the pawning of armour after our period, see CRR, ix. 256. *°* Foedera, i. 51, Rot. chart., 93.

708 PART III: ANGEVIN ENGLAND lender was not protected by novel disseisin, whereas the Jewish could recover seisin through judgment of the Exchequer of the Jews.’ Overall, however, there was not an extensive body of royal law solely concerning debts to Jews.

Magna Carta made only limited provisions concerning debts owed to the Jews.’°° If anyone died before a debt was repaid, it was not to carry interest until the heir was of age. If the debt fell into the king’s hands, he would take only the principal sum [catallum] specified in the bond. If a man died owing a debt to the Jews, his wife was to have her dower and render nothing concerning that debt. If he left children under age, their needs were to be met as appropriate, and the debt paid out of the residue, save service owed to the lords. Debts owed to others than Jews were to be treated similarly.

*°° Stacey, Jewish lending’, 92.

°° Magna Carta, 10-11.

2/7

Theft and Violence The itinerant justices visiting Lincolnshire in 1202 heard the following case: John son of Thorold of Edlington appeals Andrew of Edlington that he came to the house of his father, with his force of men, and ejected those who were of his father’s party and his father, and treated him in such a way that thereafter he was as a result continuously ill to the day he died; and [Andrew] there took in robbery four swords and four hatchets and two bows and fifteen arrows and two sheets and five ells of linen cloth, and his father’s charters concerning his inheritance. This happened in such a way that the knights of the neighbourhood came there and found Andrew with his force of men in that house.

Andrew came and denied robbery and felony and besieging of the house and ejection of the father and his men, but recognised that Thorold was his uncle, the son of a priest, in such a way that the land concerned should descend to him after Thorold’s death, and that when he was approaching death, Andrew kept himself in that house without any force, as in the house that ought to descend to him from his uncle, and he kept himself in that house. [Postscript] Andrew gives 10m. to the lord king to have his judgment swiftly and to have an enquiry whether this appeal was made through just cause or through

hate and spite, and to have licence to make agreement concerning another appeal, that is with Hugh his brother. Both place themselves in mercy for licence [to settle].

This case illustrates many aspects of theft and violence in the Angevin period. There is the connection between the use of force and land disputes; the ready availability of weapons; the possible use of force by groups of men; the likelihood

of injury leading to death; local action in response to an offence; the different interpretations that could be put on events;? the use of money to speed procedure;

* Lincs., no. 594, Andrew’s claim must have been that John as son of a priest was illegitimate and could therefore not inherit, and that he as nephew was Thorold’s closest heir. * For other possible instance, see e.g. CRR, i. 100-1; i. 273; i. 380-1; PKY, iii. no. 740. > See esp. CRR, vii. 242-3 (distraint of chattels or horse theft); see also e.g. CRR, vi. 334-5.

7/10 PART III: ANGEVIN ENGLAND questions of hatred and enmity; employment of a local enquiry to settle a matter; and the eventual closing of a case not by judgment but by settlement. It is hard to tell if the social circumstances of crime changed very significantly during the twelfth century. It may be that increased use of money and urbanisation encouraged crime, but this remains impossible to establish firmly from the available evidence.® Many of the cases for which we have significant amounts of information reveal the imposition of authority by the powerful against the weak, notably the forceful exercise of lordship’ Rape cases suggest that the victims may have been particularly vulnerable women, for example from households without a male head.’ However, the most common offences, for example brawls or theft from neighbours, may well be those of which we are told least. The present chapter again concentrates on the years of Glanvill and the early

plea rolls, whilst noting some earlier changes. The main focus is on serious offences, most judged before the eyre.’° Treatment of such offences is not only the best recorded, but also the area of most significant change.

1 VOCABULARY AND CATEGORISATION Angevin sources show continuing interest in those offences long seen as serious and of particular royal concern." The text of the Assize of Clarendon, 1166, mentions robbers, murderers, and thieves, and their receivers.” The text

* For cases involving continuing enmity, see e.g. PKJ, i. no. 3169. See further Hyams, Rancor, esp. 191-6, 208-15. For long-standing disputes between neighbouring communities, see e.g. Historia ecclesie Abbendonensis, ii. 170, ed. Hudson, ii. 170-2, CRR, vi. 390-1.

> See also Hudson, Formation, 158-9. ° See e.g. PKJ, iii. no. 930, robbery of men transporting large amount of money to the Exchequer; note also e.g. PKJ, i. no. 3175 for a substantial theft, including £15 of pennies. ” See e.g. PKJ, iii. no. 743, concerning fishing rights; see also D. Klerman, “Settlement and the decline of private prosecution in thirteenth-century England’ (2001) 19 LHR 1-65, at 18-19. ° See R. D. Groot, “The crime of rape temp. Richard I and John’ (1998) 9 JLH 324-34, at 328-9. Note also the rape case mentioned in Lawsuits, no. 316. On sex crimes and sexually related crimes, see also Hyams, Rancor, 193, Lincs., no. 773

> For cow theft, see e.g. PK, ii. no. 9; horse theft, see e.g. CRR, vii. 187; vii. 242-3. Cf. Lawsuits, no. 493, for a chronicle mention of violence and robbery committed by sons of leading London citizens.

*° On the comparatively rare criminal cases before the central courts, see above, 542; Flower, Introduction, 303-24; Klerman, ‘Settlement, 33. For jurisdiction over criminal clerks, see below, 769-72. “" See above, chs 7, 16.

‘* Assize of Clarendon, 1. See also Howden, Chronica, s.a. 1163, ed. Stubbs, i. 219, on ‘theft [latrocinium], murder, felony, unjust burning, and similar things’ being of particular concern in the context of clerical crime and the Becket dispute; priests, deacons, subdeacons, and other rectors of churches who were seized committing such offences were to undergo secular judgment [examen] and be punished like laymen.

27 THEFT AND VIOLENCE 711 of the Assizes of Northampton, in 1176, adds further offences and also uses a significant general term, felony: ‘if anyone is seized concerning murder or theft or robbery or forgery, or concerning any other felony that he has done’. The text gives no definitive list of felonies, and neither does Glanvill when using the term.’ Rather, felonies may be more loosely associated. They were characterised by their seriousness and consequent punishment, death for those captured and convicted, outlawry for those who fled. They also might be taken to constitute breaches of the general oath to be loyal to the king and not to commit thefts and perhaps other serious wrongs or abet their commission. Such an association would help to explain use of the word felonia, also employed for acts of disloyalty against a lord.”* A second relevant term is ‘pleas of the crown. Glanvill gives a list of what he calls ‘criminal pleas that pertain to the crown of the lord king, including offences such as the killing of the king, breach of the king's peace, homicide, arson, robbery, and rape.” He excludes theft: although he considers it a crime, he attributes it to the jurisdiction of the sheriff. There are further pleas that he does classify as pertaining to the crown of the lord king, but not as criminal, for example purprestures on royal lands.” The articles of the eyre and the plea rolls also refer to pleas of the crown, and include various matters all touching on royal interests, for example marriage of widows who were in the king’s gift.’* As with felonies, the list of pleas of the crown does not seem to have been fixed but was certainly finite; an accusation

** Assizes of Northampton, 3; see also c. 1, concerning a person accused ‘of murder or other shameful felony’. Fora rare use of felonia in a charter of Henry II, see Lawsuits, no. 513B, the offender having killed his wife. ** See Glanvill, xiv. 1, ed. Hall, 171-3, which is concerned primarily with lése majesté. See below, 716,

on the problem of theft. Rape was considered a felony, but was not prosecuted through presentment and therefore does not appear in the Northampton list. *? See above, 163-4. The Assizes of Northampton, 6, specifies that the justices were to receive from all oaths of loyalty to the king. See also below, 713, on Glanvill treating lése majesté as the archetype in his treatment of crimes; CRR, vi. 350, on an accusation of killing ‘wickedly and as a traitor [traditor]’. Note the frequency of use of felonie in the vernacular, e.g. Guernes de Pont-Sainte-Maxence, La vie de Saint Thomas de Canterbury, ll. 658, 1113, 1737, 5720, 6075, ed. and trans. J. T. E. Thomas (Louvain,

2002), 66, 90, 122, 324, 342. In Lincs., no. 1348, the parties use the phrase in feloniam in relation to disinheritance of land, but perhaps in a way that may suggest some influence from or confusion with the ‘criminal’ sense of the word. For a definition of felony based on thirteenth-century evidence, see Pollock and Maitland, ii. 466. *® Glanvill, i. 2, ed. Hall, 3. *” Glanvill, ix. 11, ed. Hall, 114. See also Glanvill, iv. 13-14, x. 1, xii. 22, ed. Hall, 52-3, 116, 146-7.

*® See Lincs., heading at p. 93, and no. 548; see also e.g. nos 535-6, 549-51, on selling wine contrary to the assize. For the 1194 articles of the eyre, see Select Charters, 252-7; within the ‘chapters

of the pleas of the king’s crown also appears (c. 18) ‘concerning grand assizes, that are about lands worth 100s. a year or less. On developments in pleas of the crown listed by the articles of the eyre, see Surrey, i. 90-4.

712 PART III: ANGEVIN ENGLAND before the eyre was dismissed ‘because an appeal concerning grazed meadows does not pertain to the king’s crown.” Glanvill’s ‘pleas pertaining to the crown of the lord king’ intersect with a third of his categories, crimes or criminal pleas. These he distinguishes from civil pleas, providing a list of each.*° The distinction was familiar from Roman and canon law, together with the notion that crimes were in some sense of public concern.” However, Glanvill’s use of the distinction is far from identical to the Roman, and the same would be true of Bracton.” The distinction remained somewhat vague in the thirteenth century, and was not extensively used in the plea rolls.” Overall, the picture is of a lack of universally applied, strictly defined categories. There certainly was a sense of the seriousness of certain offences, and an associa-

tion of this both with physical punishment and with the offence being against the king as well as the immediate victim.”* However, there was flexibility both in vocabulary and in procedure. What Glanvill calls crimes might be prosecuted by a communal jury, but also by an individual. He could call theft a crime, but in terms of routine jurisdiction he did not see it as a crown plea. Glanvill's initial simplicity of formulation, dividing between criminal and civil pleas, is indicative of his own aspirations for the exposition of the law of the king’s court, not of widely accepted uniform categorisation.

2 TYPES OF OFFENCE Glanvill’s list of ‘criminal pleas’ appears at the start of his Book I: The crime that in the Laws [i.e. Roman law] is called the crime of lése-majesté, as concerning the killing or betrayal of the person of the lord king or of the realm or of the army; the fraudulent hiding of found treasure; the plea concerning the lord king’s peace having been breached; homicide; arson; robbery; rape; the crime of forgery; and any similar things, those, that is, punished by the ultimate penalty [i.e. death] ‘? Lincs., no. 765; see also below, 721, on Glanvill, i. 32, ed. Hall, 21. *° See above, 580, below, 712-13.

*" R. H. Helmholz, “The early history of the grand jury and the canon law’ (1983) 50 University of Chicago LR 613-27, at 617, points out that the Glossa Ordinaria gloss on Gratian, C. 2 q. 3c. 8, is ‘since every crime according to the canons is seen to be public’.

*2 See C. Donahue, “The emergence of the crime-tort distinction in England’, in Conflict in Medieval Europe, ed. Brown and Gorecki, 219-28, at 222. See also Hyams, Rancor, 220-4. *° See also Roll of the Shropshire Eyre of 1256, ed. A. Harding (96 Selden Soc., 1981), xlii, on the limits

of procedural distinctions in this context. Note also Hyams, Rancor, 223-4, on Britton and Fleta. For a rare use of crimen in an early plea roll, see CRR, ii. 115, where it seems to be used in the more general sense of wrongdoing. ** See esp. Lawsuits, no. 411, regarding a clerk accused of homicide.

27 THEFT AND VIOLENCE 713 or cutting off of limbs. Excluded [from the pleas of the crown] is the crime of theft, which belongs to sheriffs and is pleaded and determined in county courts. It also pertains to sheriffs, through the failing of lords, to hear [cognoscere] concerning brawls, beatings, and even wounds, unless the accuser adds concerning the breached peace of the lord king.”

In his final book, on criminal pleas, Glanvill devotes considerably more space to lése majesté than to any other crime. He treats it as the archetype, for which he outlines procedure; in other cases the same procedure either applied or required only limited modification.*®

After lése majesté, Glanvill gives a relatively brief treatment of the fraudulent concealment of treasure trove.” His initial list suggests that treatment of breach of the king’s peace should follow, but instead he moves straight to homicide. It is unclear why this is the case, as the items listed early in Book I normally match chapters in the books that follow. In the plea rolls, the offence referred to simply as breach of the king’s peace perhaps should be associated with serious wounding.”® The notion of the king’s peace was probably further refined; pleading in matters of felony and trespass sharpened the distinction between offences that did or did not constitute breaches of the king’s peace, only the former normally being heard in the king’s court.”® What of the geographical and temporal extent of that peace? Glanvill’s discussion is best taken to indicate that the king’s peace now extended throughout the realm.° The king’s death could be seen as bringing it to an end. However, at least once a new king was established, the royal courts now

accepted that his peace had existed even before coronation.” In addition, the king could still grant a special peace to a favoured individual, or indeed place or

*° Glanvill, i. 2, ed. Hall, 3. *° Glanvill, xiv. 1, ed. Hall, 171-3. For reference to /ése majesté in relation to a supporter of Count John against Richard I, see Howden, Chronica, s.a. 1194, ed. Stubbs, iii. 242-3. *” Glanvill, xiv. 2, ed. Hall, 173-4.

*® Note Lincs., no. 540, PKY, iii. no. 696: appeals ‘concerning the peace of the lord king, that is, concerning wounding’; see also Bracton, fo. 143b-144, ed. Thorne, ii. 406. For plea roll entries only mentioning breach of the king’s peace, see e.g. PKJ, ii. nos 3, 4, 24. Note above, on Glanvill saying that wounding was only a plea of the crown if the accuser added that there had been a breach of the king’s peace. On the need for the wound to be serious, see esp. PKJ, iv. no. 3458. Note also e.g. PKY, ii. no. 1; Bracton, fo. 144, ed. Thorne, ii. 407. *° See e.g. Lincs., no. 542, a plea to be heard in the county court because appellors before the royal justices asserted only breach of the sheriff’s peace; note also nos 682, 895, 952.

°° See e.g. Hurnard, King’s Pardon, 8, especially on the Assize of Clarendon not distinguishing killings that were or were not breaches of the king’s peace; also Hyams, Rancor, 224-6; cf. Milsom, Historical Foundations, 286-7. *" For the death of the king possibly being seen as ending the king’s peace, see CRR, vii. 168-73, esp. 171; Lawsuits, no. 641 (p. 673). There was a swearing of the peace of the lord king prior to coronation, but the peace applied even before this; CRR i. 255, 267, 384; i. 437, 440.

714 PART III: ANGEVIN ENGLAND time.” Such a grant might transform into a breach of the king’s peace an offence not normally considered a felony. Next in Glanvills list comes homicide. From ‘simple homicide’ he distinguishes murder, ‘which is done secretly, with no-one except the killer and his accomplices seeing or hearing.* Not all killings were felonious, but almost all killings and sudden deaths had to be reported to the eyre, including those arising from selfdefence or misadventure. Here for the first time, therefore, we have clear evidence that homicide was considered a plea of the crown to be tried only by the king or his justices, whether accusation was brought by appeal or presentment.** Estimates

from thirteenth-century records have suggested an annual homicide rate per county of about ten to twenty, the largest proportion being caused by knives.* Arson follows homicide in Glanvill, and appears occasionally on the plea rolls, sometimes in connection with other crimes?° Glanvill then mentions robbery,

but again only very briefly. This means that he does not discuss how robbery differed from theft [furtum], an offence that he left to the sheriff’s jurisdiction’ As a plea of the crown, robbery was clearly considered serious, and a crime that involved breach of the peace. In practice the distinction from theft, particularly the form of theft often referred to as latrocinium, may not have been all that clear. The two often appear as a pair of not obviously distinct offences3* Robbery is best

taken to have been a sub-set of the general category theft. Various criteria may have been applied to decide which category the offence fitted and the form and course of accusation. Was the accusation of having taken the accuser’s goods, or simply of having goods that had been stolen from him? Had the taking actually

*? See also Hyams, Rancor, 196-9, Roll of Shropshire Eyre, lii-iii, on special grants of peace; above, 601, on the grand assize. For the sheriff making a grant of peace in the county court, see PKJ, iii. no. 690. °° Glanvill, xiv. 3, ed. Hall, 174. Cf. murder with reference to the murdrum fine; Dialogus, i. 10, ed. Amt, 83. Note also Surrey, i. 106-8. °* See e.g. PKJ, iii. nos 707, 736 respectively. The exception was execution ordered by a competent

court; see Hurnard, King’s Pardon, 23. For suicide, see Bracton, fo. 150-150b, ed. Thorne, ii. 423-4. Note, however, self-hanging being adjudged misadventure: PK/, ii. nos 10, 13, 32. On the problem of when appeal of homicide became a plea for royal courts alone, save instances of exceptional privilege, see also above, 553.

°° H.R. T. Summerson, ‘Maitland and the criminal law in the age of Bracton’, in History of English Law, ed. Hudson, 115-43, at 125-6. °° Glanvill, xiv. 4, ed. Hall, 175. See e.g. RCR, i. 29, ii. 181; CRR, iii. 37; Lincs., nos 45, 604, 616, 618, 683. See Lawsuits, no. 504, for a false accusation of arson. The text of the Assizes of Northampton, 1, added arson [iniqua combustio] to the offences to be presented. °” Glanvill, xiv. 5, 8, ed. Hall, 175, 177; however, on theft, see also below, 714 n. 39. °® In the Assize of Clarendon, 1, 2, 4, 6, the offenders appear in the order ‘robbers or murderers or thieves [latrones]’, in the Assizes of Northampton, 1, this has become ‘murder or theft [/atrocinium] or robbery’. Note also Lawsuits, no. 553.

27 THEFT AND VIOLENCE 715 been seen, allowing the accuser to bring the suit necessary for an appeal? What violence or intimidation was involved? Could the accuser claim that the deed had involved breach of the king’s peace? Did the accuser wish his case to be heard in the king’s court or the county? If the accuser was claiming that the accused had taken goods from him and that the act had been witnessed, and if he could say that the act had been in breach of the king’s peace, and if he wished to bring the case before the eyre, then he would make an appeal of robbery. Presentment, on the other hand, could deal with both robbery and theft, being based on the notoriety of the offenders and having no need of a witness of the act.*°

The plea rolls, but not the Assizes of Clarendon or Northampton, nor Glanvill, mention burglary. Burglary involved breaking into the victim’s house, generally to take goods or harm the occupants. However, the plea rolls seem to describe some such offences simply as robbery.” According to Glanvill, the crime of rape was that ‘by force a woman was violated

loppressam]| by a man, in the peace of the lord king. Glanvill only mentions individual accusation for rape, and there is scarcely any evidence for prosecution by presentment. This presumably reflects social and governmental attitudes, and issues of proof concerning the offence.” Falsifying’ completes Glanvill’s list of crimes that were pleas of the crown. It ‘includes several specific crimes, such as concerning false charters, false measures, or false money, and other similar offences that involve falsifying’. If the charter forged was a royal one, the person convicted was to be condemned as for the crime of lése majesté. If it was a private charter, the punishment was as in other lesser crimes of falsifying, that is mutilation according to the royal will and clemency.*

°°? Note Dialogus, ii. 10, ed. Amt, 152, on robbers [predones] who are also called open thieves [fures manifesti]. If the act of taking goods had not been seen, an accusation could still be made, and might be answered by voucher to warranty or other explanation of possession; see above, 688-9, below, 729.

*° Note also Assize of Clarendon, 12, the man of ill-repute caught when ‘seised of robbery or theft’; cf. Dialogus, ii. 10, ed. Amt, 152-4, on the thief pursued and seized by the victim. ™ Burglary: see e.g. Lincs., nos 1476, 1485, 1494. CRR, iii. 207-8 (at night), vi. 341-2, are instances where alleged robbery involved breaking into the house; note also e.g. Lincs., no. 594. Lincs., no. 1477, refers to a man being suspected ‘of a burglary and other thefts. Note also the references to robbery and ‘hamsoka in CRR, iii. 304 and to the breaking of doors of a house ‘in hamsoka, ‘Roll of the justices in eyre at Bedford, 1202; no. 250. For hamsocn, see also e.g. CRR, ii. 50. For house-breaking see also Lawsuits, no. 471.

** Glanvill, xiv. 6, ed. Hall, 175. See Groot, ‘Rape’, esp. 326, 330. For one presentment, see Three Rolls, 96. For an accusation of abduction and detaining the woman ‘for wife’, see Lawsuits, no. 553. ** Glanvill, xiv. 7, ed. Hall, 176. The Assizes of Northampton, 1, added forgery [falsoneria] to the offences to be presented. Note Lawsuits, no. 611, for the forger of the king’s seal being referred to asa ‘thief [fur]’; death was still the proposed punishment.

716 PART III: ANGEVIN ENGLAND Some other serious offences do not appear in Glanvill’s list, or may be concealed under the heading ‘breaches of the lord king's peace. The plea rolls include cases of false imprisonment. Sometimes these may have been connected to status, with

lords imprisoning men whom they claimed to be villeins and therefore subject to imprisonment. The men claimed to be free and therefore to have been falsely imprisoned.* The Assizes of Clarendon and Northampton also state that receivers and harbourers of serious offenders were to be treated like the offenders themselves, and plea rolls include cases involving receivers and other types of accessory.*°

Glanvill states that theft was a plea belonging to the sheriff, not to the crown,

but theft was prominent in the Assizes of Clarendon and Northampton and amongst presentments.*” Although we have no clear indication of the minimum theft that would lead to physical punishment, concern with the consequences of the amount stolen is apparent, for example in a case recounted in the Becket Lives in the 1170s. Following an accusation of theft, the wicked reeve suggested that the accuser should pretend that more goods had been stolen, as theft of only a penny’s worth did not lead to mutilation.”

3 PREVENTION AND POLICE Earlier measures for preventing offending and catching offenders continued and were reinforced. The Church continued in its preaching and its penitential and punitive measures.*? Local officials remained crucial. Serjeants of the peace had a very important role in the north and in Cheshire and Shropshire”? In Cornwall we hear the following story in the records of the 1201 eyre: ‘when it was heard that there were malefactors in the wood..., the men of that neighbourhood with the serjeant of the hundred went to that wood and found there six malefactors, two of

™ See e.g. Lincs., nos 887, 927-8, 968; note also CRR, vi. 236, 280, 285, imprisonment of a royal serjeant. *° See below, 758.

*° See e.g. PKY, ii. nos 3, 8, CRR, i. 256, 438; iii. 145. Information on accessories before the fact, in particular instigators, is very limited, but note Pollock and Maitland, ii. 509, and Bracton, fo. 142-142b, ed. Thorne, ii. 400-2.

“7 See above, 688-9, for possible procedure against those accused of wrongfully possessing the claimant’s movables. See above, 714-15, for the relationship to robbery. *® Lawsuits, no. 471A. Bracton, fo. 151b, ed. Thorne, ii. 427-8, distinguishes theft of large and very small things, but again does not give a precise amount. * Note the comments and examples provided by Summerson, ‘Maitland and the criminal law, 140-1. °° See Stewart-Brown, Serjeants of the Peace.

27 THEFT AND VIOLENCE 717 whom they killed, and three fled, and one they took." Hundredal officials everywhere helped to carry out the responsibilities of the sheriff, whose role in dealing with, although not judging, serious offenders was re-emphasised by Angevin

legislation. Sheriffs were, for example, to seize those accused by communal juries.” Frankpledge and tithing likewise retained their importance. Besides its more famous measures concerning presentment, the Assize of Clarendon sought to reinforce frankpledge and its supervision by sheriffs through the sheriff’s tourn.® We also have evidence of lists being made of those in frankpledge,** and numerous plea roll entries record chief pledges and tithings being amerced for their nonproduction or for the flight of those accused of offences, for whose custody they were responsible. The amercement was most frequently %m. or 1m., although higher amounts were known, and may have been more usual earlier in the Angevin period.® Likewise vills were amerced if fugitives were not in tithing.*® Anglo-Saxon laws associated tithing with personal freedom. In the thirteenth century it was mainly villeins who were in frankpledge; free men might be in a lord’s mainpast, that is his suretyship, or of sufficient status to render frankpledge

membership unnecessary. However, membership of frankpledge was never routinely taken as a strict indicator of villein status, and Bracton mentioned free men as well as unfree having to be members of frankpledge.” Part of the apparent change may result from developments in classification of status. Those excluded from Anglo-Saxon tithing as unfree may have been slaves; the great

mass of the peasantry would have been in tithing, and categorised legally as free men. Equivalent peasants in the thirteenth century were still members of frankpledge, but most were now categorised legally as unfree.**

If an offence was committed, and it was noticed immediately, the victim might exercise a degree of self-help. When a drunken creditor broke into his debtor’s house and took away certain goods including a whetstone, the debtor learnt of the deed and, >" PKY, ii. no. 312. The men wished to imprison their captive, but could not do so because of the intervention of some foresters. °? Assize of Clarendon, 11. See in general Morris, Sheriff, 115-17. Note PR31HII, 70, for a sheriff being amerced for making a thief, who had been cleared by ordeal of water, abjure the realm without the assent of the justices. °° See above, 514-15, 555-6. See also Assize of Clarendon, 15-16, on suretyship. >* Lawsuits, no. 648. °° See e.g. PKJ, ii. nos 9, 16, 56, 57; Lincs., nos 1028, 1029, 1032, 1035, 1036, 1038, 1043-8, 1052. For higher amounts, see e.g. Lincs., nos 1033 (10m.), 1037 (4m.). Morris, Frankpledge, 92. °° E.g. Northants, nos 33, 89, 92. °” See Bracton, fo. 124b, ed. Thorne, ii. 350-1; Morris, Frankpledge, 76-8. °® See above, 74-5, below, 753.

718 PART III: ANGEVIN ENGLAND pursuing that man, wrung the whetstone from him and struck it against his head, thus breaking the whetstone on his head and his head with the whetstone. He also drew the sharp knife that he was carrying and pierced the man’s arm. He got the better of him and brought the miserable man as a thief, robber, and burglar to the house into which he had broken. Afterwards he went to see...the reeve of the vill and asked him what was to be done.*®

Such a combination of pursuit and notification of authority was the purpose of the hue and cry, discussed in earlier chapters.°° The hue might encounter problems, as when a woman raised ‘the cry and horn’ but the fugitive came and cut the strap of the horn, so that he kept the horn and the woman's servant the strap.” Wrongdoers caught in the act, or seized soon afterwards in possession of the stolen goods, received only summary justice in the locality. However, those who simply killed the thief whom they had pursued left themselves open to appeal

for homicide.” In other cases, the offence might not be witnessed but only discovered later, for example when a body was found.® Any unnatural, sudden, or suspicious deaths were subject to enquiry by coroners from the mid-1190s, and perhaps previously by hundred serjeants.** When a body had been found, neighbours or an official were to summon the coroner, and guard the body until his arrival. If they buried the body, they were amerced. Before setting off to the body, the coroner immediately ordered the sheriff or the hundred bailiff to summon a jury to hold the inquest on a specified day. The jury should consist of all men over twelve years old from four or more neighbouring vills. On the specified day, the coroner swore the jurors in. He enrolled the names of any who

refused or failed to attend, and they would be amerced by the eyre. Coroner and jurors who were present then viewed the body, and measured and recorded the length, breadth, and depth of all wounds.® They received any presentments of Englishry—that is, that the deceased was of English descent and therefore the murder fine should not arise—and decided whether the deceased had died where the body was found, or had been moved. The coroner asked the jurors >? Lawsuits, no. 471B. °° See above, 395; above, 522, on the oath of 1195 and hue and cry. Note also e.g. CRR, vi. 23-4. On the hue in relation to theft, see also Pollock and Maitland, ii. 160-1. °" PKY, iii. no. 703. Note that a woman could raise the hue and cry. °* See e.g. PKJ, iii. no. 688. Cf. Assize of Clarendon, 12: ‘if anyone shall be taken who is seised of [the spoils of] robbery or theft, if he is of ill-repute and bears evil testimony from the public and has no warrant, let him not have law’, that is no further proof was required. °° Cf. above, 714-15, on theft. °* See above, 508-9. For what follows, see Hunnisett, Coroner, ch. 2; at 27 he suggests that the coroner’s

inquest may have its origin in the investigation of dead bodies in relation to the murdrum fine. °° For variation from this order, see Hunnisett, Coroner, 19.

27 THEFT AND VIOLENCE 719 a series of questions, first of all to establish whether the death was natural, felonious, or by misadventure. Unless the death was natural, further investigation followed. The coroner had to arrange for the arrest of all those suspected of committing the killing, or of abetting the killer. If this measure was successful, the arrested were delivered to the sheriff, who gaoled them. More commonly,

the suspects had fled, and the coroner gave the order for their arrest to the sheriff or the hundred serjeant. He also had to enquire as to where the fugitives had gone. The jurors named the fugitives’ tithing or mainpast, which would be amerced at the next eyre if they were not found. The coroner had also to attach by sureties various people for appearance at the next county court and then at the eyre. These included any witnesses, those present in the house or houses where the felons had stayed the previous night, together with their owners, the first finder of the body, and the four neighbours living closest to where the body was found. He had to value, with the help of the jury, the chattels and lands of suspected homicides, for later forfeiture. If the dead man was an outlaw slain after returning, the coroner should send his head to the county gaol. And he had to complete and seal a written record of the inquest.

Sanctuary

A malefactor who was not caught immediately might remain in his neighbourhood, visible or hidden, or he might flee. If he fled, he might seek sanctuary in a church.® A study of thirteenth-century Sussex suggests an annual average of four to five sanctuary cases.” Many aspects of sanctuary have already been examined, but evidence increases and there were innovations. A few churches may have provided unlimited periods of sanctuary, but generally the period was limited to about forty days.® A local official had to organise the guarding of the fugitive until the arrival of the coroner, summoned at the request of the sanctuary seeker.”° The coroner gave the fugitive the choice of surrendering or of abjuring the realm. Refusal by the fugitive did not render lawful his removal, but did make it an offence to take him food or drink. It seems that most of those who surrendered were clerics, who would °° For this paragraph, see Hunnisett, Coroner, ch. 3, and note Hyams, Rancor, 195-6. For a claim that a bishop, like a church, could provide sanctuary, see Magna vita sancti Hugonis, v. 9, ed. Douie and Farmer, ii. 126-9. Note also Lawsuits, no. 644. °” Hunnisett, Coroner, 38; see Rosser, ‘Sanctuary’, 67-8, for a different estimate. °° See above, 175-7, 396-9. For sanctuary leading to settlement, see Rosser, ‘Sanctuary’, esp. 68-9. °° See Hunnisett, Coroner, 37; above, 175-6, 398. See Rosser, ‘Sanctuary’, 70, for small towns of fugitives growing up round permanent sanctuaries. ”° Hunnisett, Coroner, 39-40.

720 PART III: ANGEVIN ENGLAND be handed over to ecclesiastical justice. Otherwise, abjuration was the usual outcome.” The fugitive might choose to abjure at once, or to remain up to the rest of his sanctuary period, allowing him a continuing chance of escape. A ceremony was held, normally at an exit from the churchyard. The felon had to confess and swear an oath on the Gospels, including a promise to leave England

and never return except with express permission of the king or his heirs. He should make his journey bearing a cross for protection, but many abjurors may have left the highway to make a new life elsewhere.”

Some lengthier accounts show the problems of sanctuary. Writing in the 1160s or 1170s, Reginald of Durham recounts that a young servant of the bishop

of Durham was killed, and the killer fled to the cathedral, ‘to the sanctuary of St Cuthbert, where he could obtain ‘the remedy of peace’7? The dead man’s friends and associates sought vengeance, but dared not break the peace of the church. Nevertheless, they guarded all the exits, day and night, and harassed the killer into fleeing to the centre of the sanctuary, the tomb of St Cuthbert. They did not allow him out to relieve himself, although the monks overcame efforts to deny him food. The prisoner prayed to St Cuthbert for aid. The current bishop, however, was closely associated with the besiegers; he was, of course, the master of the slain man. Eventually six of the besiegers entered the church, and one of them attacked the man and severely wounded him. At the last moment monks of the church came to his rescue. Then the people of St Cuthbert extin-

guished a candle in the presence of the saint, trampled the altar cloth under foot, and deplored the shedding of blood. They were attempting to force the saint to avenge the violation of his place. Some risked the wounded mans life by trying to remove him from the church, but wiser men ensured his return and he was given food and drink. The bishop was informed of the events, and on the next day the offender was reconciled with the church and absolved. The bishop and his men gave up their anger against him and, with the saint's aid, he recovered from his wounds. Finally the wrath of the saint would be turned against the man who had wounded the fugitive. In this case, therefore, the local power, the bishop, had reason to wish the offender to be punished. Although in the end a settlement was reached, the customs of sanctuary had not prevented

” See e.g. PKY, iii. nos 676, 683, 697; Lincs., no. 978; CRR, iii. 145. In Three Rolls, 114, it is specified that

the victim had lived for three days and forgiven the killers for his death; the killers had fled to a church and then abjured. The record, unfortunately, is damaged. It is suggested above, 398-9, that abjuration probably also took place in the Anglo-Norman period.

” Despite the cross, some abjurors were still attacked on their way to the ports; see Hunnisett, Coroner, 48-50, who also discusses the abjuror’s clothing. ”* Reginald of Durham, Libellus, 60-1, ed. Raine, 119-22; Reginald says that the miracle was recent.

27 THEFT AND VIOLENCE 721 direct action against the killer. The tension between observation of sanctuary and desire for revenge persisted.

4 PROCEDURE: (I) APPEAL Glanvill emphasises that the king’s court was distinguished by its considerable consistency of procedure. Either there was a specific accuser or there was not.” Plea rolls show that the majority of accusations continued to be brought by a specific accuser, through appeal. There is no evidence of significant change in its popularity in the period up to 1215. Appeals were brought for various types

of assault, for homicide, for theft, robbery, and burglary, for rape, and less frequently for certain other offences.”> Often accusations involved a variety of misdeeds.”° There were also cases before the king’s court where a party, normally but not always a woman or a maimed man, is said to have brought a complaint concerning a felony that they had suffered. Sometimes the same person is said to have brought an appeal against other offenders. ‘The precise distinction between appeal and plaint in such cases remains obscure; we find, for example, those who had been accused either by plaint or by appeal being collectively called ‘the appealed.’ Appeal is sometimes described as private prosecution, but this is not how Glanvill regarded it, at least for offences such as breach of the king's peace. Rather the appellor was carrying out his duty to the king. Drawing a contrast with civil cases, Glanvill states: if the plea is not only his [the appellor’s] but also the lord king’s, as in a criminal matter concerning the lord king’s breached peace, then, since he cannot lose that plea except for himself and is indeed bound to prosecute it, he is immediately to be put in prison and kept safely until he is willing to prosecute his appeal; and his pledges in addition shall remain in mercy.”

” For this paragraph, see Glanvill, xiv. 1, ed. Hall, 171; Klerman, ‘Settlement’, esp. 9-12; also Lincs., xlix. On the jurisdiction of different courts, see above, ch. 22. On change under Henry III, see Summerson, ‘Maitland and the criminal law, 119.

”° For an appeal regarding a beating, without recorded mention of breach of the king’s peace, see ‘Staffordshire suits, ed. G. Wrottesley, in 3 Collections for a History of Staffordshire (William Salt Archeol. Soc., 1883), 1-163, at 42. See also ‘Roll of the justices at Bedford, 1202; nos 205, 254. ”° See e.g. CRR, iv. 147-8.

’” See e.g. RCR, ii. 230; CRR, ii. 207; iii. 232-3; v. 152; vi. 209-10. For ‘the appealed’, see CRR, iv. 232; vi. 210; note also RCR, i. 373,CRR, i. 267 (a case where the complainant appears to have been willing to offer battle). See also Select Cases of Procedure without Writ, cxviii-xxi. ”® Glanvill, i. 32, ed. Hall, 21.

722 PART III: ANGEVIN ENGLAND Accusation Appeals were to be brought in person by the victim, or, in the case of homicide, by a person with a close connection to the victim.” Glanvill makes a distinction in procedure between cases of simple homicide and those of murder, that is secret killing, which could not be immediately followed by the hue and cry. In simple homicide cases, accusation could be made by a person who was connected to the victim by blood relationship or by homage or lordship, and who could speak concerning the death as a witness by sight.*° In murder cases by definition there was no ‘witness by sight’, and only a blood relative could bring the accusation. Villeins as well as free men could bring appeals.” According to Glanvill minors could do so too, although plea roll evidence shows that they could, or possibly had to, postpone making the appeal until they were of age.” As for answering appeals, Glanvill specifies that minors were to be attached by safe and secure pledges, but were not bound to answer until they were of age. Glanvill also tells us that a woman could only bring an appeal concerning rape and wrong [injuria] to her body or the death of her husband, ‘since husband and wife are one flesh’, whilst Magna Carta, clause 54, states that ‘no-one is to be taken or imprisoned because of the appeal of a woman about the death of anyone except her husband ’.*4 However, plea rolls show us women bringing a significant proportion of appeals,

particularly of homicide,* and some of the appeals concern offences other than those allowed by Glanvill, including robbery and the killing of relatives other

”’ According to Bracton, fo. 125-125b, ed. Thorne, ii. 353, an appeal of felony could not be brought by attorney, although a kinsman or friend might be used in circumstances of temporary incapacity. On the prohibition of attorneys for defendants in cases that might lead to the convicted defendant’s imprisonment, including appeals of life and limb, see Early Registers of Writs, CC 28a. °° Glanvill, xiv. 3, ed. Hall, 174. See also Lincs., no. 667a. ** Glanvill, xiv. 1, ed. Hall, 173.

*? See e.g. CRR, i. 435. In CRR, iv. 163, minors brought their appeal, but the record states that matters were to wait until they were of age. Bracton, fo. 118b, ed. Thorne, ii. 335, states that minors could bring appeals so long as the appealed was attached until the appellor came of age. °° Glanvill, vii. 9, ed. Hall, 83. Note also CRR, vii. 247, where a minor was taken with robbers and imprisoned until he was of age, whereupon he went to ordeal of water. °* Glanvill, xiv. 1, 3, 6, ed. Hall, 173-6. Like male accusers, the woman had to have witnessed the killing. It is uncertain whether the injuria to the woman’s body was restricted to rape, or was more general. °° For homicide of husband, see e.g. PKJ, ii. nos 11, 16, 25, 33; also Klerman, ‘Settlement’, 10. In Surrey, i.123, Meekings argues that men may have persuaded women to bring appeals for procedural

reasons; a woman had the advantage that she could not go to trial by battle, so her adversary was likely to have to go to ordeal.

27 THEFT AND VIOLENCE 723 than her husband. Some such appeals were quashed explicitly on grounds similar to those given by Glanvill, but others were not.**®

The potential appellor had to raise the hue and cry; failure to do so would allow the accused to have the appeal quashed, whilst the appellor would be amerced.* The appellor had also to make the offence known to the neighbouring

villages, to the bailiff or the serjeant of the hundred, and to the coroner.* Physical evidence of an attack must be shown, wounds were measured, and a raped woman might be examined by good women of the neighbourhood.* An appeal might be dismissed if the coroners said that no wounds had been shown to them.®° According to Glanvill, if a specific accuser appears, he shall immediately be attached through pledges, if he has them, that he prosecute his plea. If he has no sureties, then he is put on a solemn oath [fidei sue religioni solet committi], as in all pleas of felony. An oath is deemed sufficient in such matters lest excessive demands for security deter others from similar accusations.

It may, however, be that this process of attaching the appellor could take place at the time of the formal appeal in the county court, which was the next major

stage in the appeal. The sureties would be amerced if the appeal were not prosecuted.” In the unlikely event of the accused being present at an early stage in the

accusation, the coroners and serjeants were to attach him, that is to take sureties—normally two—for his appearance in court. If it was a case of homicide,

°° Quashed: PKY, ii. no. 730, death of her son (it is specified that the woman had a husband who did not appear, possibly suggesting that the prohibition applied particularly to appeals by married women); Lincs., no. 690, concerning death of her father and wounding to herself. Her husband was in mercy, on behalf of his wife. Not recorded as quashed: e.g. PKJ, ii. no. 336 (daughter killed by another woman); v. 268 (brother, on which see below, 725 n. 98). For appeals brought by women but not going to proof, for reasons other than Glanvill’s, see e.g. PKJ, iii. nos 703, 755; the fact that Glanvill’s grounds are not here raised may suggest the permissibility of appeals by women. See further D. Klerman, ‘Women prosecutors in thirteenth-century England’ (2002) 14 Yale J of Law and the Humanities 271-319, esp. 294-300. °” See e.g. Lincs., no. 657.

°° See e.g. Glanvill, xiv. 6, ed. Hall, 175, on the initial stages of an appeal of rape. The coroner was an extra stage added after the time of Glanvill, although it remained possible to make an appeal successfully without including all these stages; see Hunnisett, Coroner, ch. 4, on the role of coroners. °° See Surrey, i. 121. See e.g. Lincs., no. 590, for a rape victim going to a coroner.

°° See e.g. Lincs., no. 899. See e.g. PKJ, ii. no. 1, for an appellor displaying wounds in the county court. °" See Glanvill, i. 32, xiv. 1, ed. Hall, 21, 171-2. Normally two sureties were found, but one might suffice; see e.g. RCR, i. 29, where the surety was the appellor’s father. For an appellor pledging faith that she would pursue the appeal, see e.g. Three Rolls, 112.

724 PART III: ANGEVIN ENGLAND or if it looked likely that the victim’s wounds might be fatal, the accused should be imprisoned. If the accused was not present, coroners and serjeants were to order that he be attached when found and then to be present at the next county court.” By the end of our period, a royal writ may have been available, ordering the sheriff to attach or arrest the accused, who was to appear before the king’s justices on their next visit to the area, and there answer the appellor; this was presumably obtained by the appellor when the normal procedure had not been applied.*

Attendance at court The initial form of the accusation made to local officials may have been less formal that the appeal brought to the county court, although the two had to be consistent.* At the county the appellor must make his ‘tale’ or ‘count’, describing the offence and its time and place, and then offer to make proof by his body or as the court might order. He had also to produce those who had pursued the hue and cry as ‘suitors to support his appeal. The coroner enrolled this appeal, and all future versions of the appeal had to be consistent with it.

The accused was to attend this meeting of the county court, or one of the following three, at all of which the appellor must be present. This process of successive proclamations demanding his presence is referred to as ‘exigent’. The accused rarely appeared and the majority of instances ended with his outlawry being proclaimed at the county court.®° His chattels were forfeited to the king, who also obtained a year’s enjoyment of his lands, whereafter they returned to his lord, ‘subject to the king’s right to pull down houses and root up trees’. The outlaw was not to receive support or shelter. If discovered, he might be slain if he resisted, and even if he did not resist, he faced the penalty of summary execution simply on the fact of his outlawry.”” Meanwhile, his tithing or mainpast would be amerced at the next eyre.

°* See Glanvill, xiv. 1, ed. Hall, 172; Hunnisett, Coroner, 59. °° Early Registers of Writs, Hib. 34; Bracton, fo. 149, ed. Thorne, ii. 420. °* Note also PKY, iv. no. 3446, for variation in the form of appeal made before coroners and justices.

°° Note also Pollock and Maitland, ii. 605-7, on the offer to produce ‘suit’, i.e. witness, although this is not mentioned in Glanvill. °° See also Glanvill, i. 31, ed. Hall, 19-20. Alternative possibilities were that the accused obtained pardon or abjured the realm; Hunnisett, Coroner, 64. Note also references to the accused who has fled being ‘interrogated’, that is summoned in the process of exigent: see e.g. PK, iii. nos 672, 681, Lincs., no. 598. Women were said to be ‘waived’ rather than outlawed; see e.g. PKJ, iii. no. 687; Hunnisett, Coroner, 62.

°” For rewards paid in relation to having the heads of outlaws, see PR7RI, 9, PR9ORI, 169. On outlawry, see also below, 740, 747.

27 THEFT AND VIOLENCE 725 When an appellee did appear at the county as summoned, the sheriff was to ensure that he was attached through sureties. If the accused could not find sureties, he was to be imprisoned. According to Glanvill, ‘in order to intimidate, in homicide cases the giving of sureties did not usually lead to the freeing of the accused, except by benefit of royal dispensation.** The parties were then given a day to appear before the king’s justices, normally, that is, the next coming of the eyre. Particularly after Henry II's reign, this might involve a wait of some years. However, a person accused of homicide and therefore facing imprisonment until the coming of the eyre could at this stage bring a writ that instructed the sheriff to assemble a jury as to whether the appeal had been brought through hatred and spite [odio et atia]. If the jury decided that the appeal had been so

brought, the accused was released on bail, that is, he had to find sureties to guarantee his appearance in court. The aim was to prevent lengthy and unjust imprisonment of the falsely accused, and the appellor was to be amerced. If, on the other hand, it was decided that the appeal had not been brought out of spite, the accused was to remain in prison to await trial.

When the eyre arrived, jurors of the hundreds reported alleged felonies, including those that were the subject of appeal, in response to the articles of the eyre.’°° Failure to report appeals, revealed by the coroners’ records of proceedings in the county, led to amercement for concealing a felony. The appeal should then come to trial among the crown pleas of the relevant hundred.

Non-prosecution and settlement A large proportion of cases at the eyre show that the appellor did not pursue his appeal or, somewhat less frequently, that he withdrew. The distinction between non-pursuit and withdrawal may reflect the timing and formality of

°® See Glanvill, xiv. 1, 3, ed. Hall, 172, 174. For the building of gaols in accordance with the Assize

of Clarendon, see above, 515 n. 114; for a prison for thieves taken in a franchise, see Lawsuits, no. 648. For the possibility of escape from gaol, see e.g. Lincs., no. 908. An entry concerning a man who escaped gaol having been appealed of homicide states that if found he was to be treated as if convicted of such a felony; CRR, v. 268. °° See S. Jenks, “The writ and exception de odio et atia’ (2002) 23 JLH 1-22; also Hurnard, King’s

Pardon, 339-74. According to Bracton, fo. 123-123b, ed. Thorne, ii. 347-8, if the inquest found that

the accusation had been brought through hatred and spite, the accused was to find twelve lawful men as pledges for his appearance before the eyre. Note also the mention of a writ of life and limb in Magna Carta, 36: ‘nothing is to be given or taken henceforth for a writ of inquiry of life or limbs, but it is to be granted freely [gratis] and not denied.’ For this writ and its relationship to the writ de odio et atia, see McKechnie, Magna Carta, 359-63; Hurnard, King’s Pardon, 345; Jenks, “Writ and exception’, 5-6. On ‘hatred and spite’, see also below, 729-30. *°° See above, 546-7, below, 736-7.

726 PART III: ANGEVIN ENGLAND the non-prosecution. Withdrawal may have taken place at the eyre itself, and a Lincolnshire case refers to a man not pursuing his appeal, and afterwards coming and withdrawing.’” Such non-prosecution took place despite the prospect of amercement of appellor and sureties, and the possibility of imprisonment of the appellor until the appeal was resumed.’” The king might welcome the financial profit, but the prime purpose of amercement was to encourage prosecution of crime.*°

Some appeals may not have been prosecuted because they had been ill-judged and initiated in anger, or because of fear of reprisal or of the potential trial by battle. Pressure may well have been applied between the initiation of the appeal and the arrival of the eyre, and some appellors may have questioned whether they would get fair treatment in court against a more powerful opponent.'** However, most non-prosecution was probably linked to settlement by the parties: Thomas Sote, who appealed Robert son of Mangnus and Robert Wippegar concerning the king’s broken peace, that is concerning his broken arm, and concerning robbery, has not pursued [his appeal] and so is in mercy.... The jurors say that [the accused] made an agreement with Thomas.'®

Any amercement for non-prosecution or for making an agreement without permission might be reimbursed by the accused, particularly when he was wealthier than the appellor; such seems to have been the case in many appeals, including rape cases and those linked to disputes over property and services.’” In the early thirteenth century, the justices usually let the appellee go free following such settlements, although there would later be changes of policy in this matter.’”” In general the accused was said to go ‘without day [sine die—i.e. indefinitely]' following non-pursuit, to go ‘quit’ following withdrawal, although there was inconsistency and sometimes confusion.’®

*! See e.g. Lincs., lix, no. 1010, and note 671; Surrey, i. 118, Klerman, ‘Settlement’, 12. *°* Glanvill, i. 32, ed. Hall, 21; PKJ, ii. nos 17, 38, women gaoled for non-prosecution of appeals of rape; Lincs., no. 922; Pugh, Imprisonment, 9, 15-16.

"°° See M. Kerr, ‘Angevin reform of the appeal of felony’ (1995) 13 LHR 351-91, at 364-5, for the suggestion that there was a marked increase in amercements for non-prosecution from 1184-5. *°* See Groot, ‘Rape’, 327-8, on the situation concerning rape, where non-prosecution by appellors was, he argues, more common than flight by the accused. °° Lincs., no. 541. See also Lincs., lix-lx. Klerman, ‘Settlement’, 16, suggests that approximately 40% of his large sample of thirteenth-century appeals were ended by settlement; in fewer than half of these was a settlement explicitly recorded. See also Klerman, ‘Settlement’, 17, 20. "°° See above, 12-13. For a settlement reported as having been made without the justices’ licence, and the consequent amercement, see Lincs., no. 826. *°” Klerman, ‘Settlement’, 3-4, 13, 42-3. *°8 See e.g. Lincs., nos 563, 584, 620-1 (note the alterations in the roll), 624 (note the alteration in the roll), 1009; Northants., nos 48, 54; PKJ, iv. 3407-10, 3420.

27 THEFT AND VIOLENCE 727 Settlements could also arise or be publicly established in the course of proceedings before the eyre and with the justices’ permission.’® Rape cases might

be brought to agreement by payment or by the marriage of the parties: in some instances the sex at issue may have been consensual.”° Certainly Glanvill argues that after conviction for rape the man cannot escape punishment by offering to marry the woman, for if he could, it would frequently happen as a result of a single defilement that men of servile status would disgrace for ever women of good birth, or that men of good birth would be disgraced by women of low estate, and thus the fair repute of their relatives would be unworthily blackened.

Before judgment, however, the woman and the accused could be reconciled by marriage, ‘by the licence of the king or his justices and with the consent of the families." In contrast to practice in rape cases, justices did not normally grant licences to agree regarding homicides.” Although settlements with the permission of the justices avoided amercement, they often cost more than the normal %m. amercement for non-prosecution, because they required payment to the king. Thus Lucy, sister of William Ballard, appealed Stephen Hoket of rape. Stephen claimed she had been his mistress for a year before the appeal. “For 5m., which Stephen gives to the lord king, they are brought to agreement by licence of the justices, by this, that he married her."” The obtaining of permission probably strengthened the resultant agreement as a bar to successful renewed accusation, although it could not prevent all attempts to reopen the case." Why were settlements so popular? Often the appellee might know that he was guilty, and be willing to settle. His misdeed might be part of a wider dispute over property, in which case the accused or his lord or master might be well able to pay for the specific offence, to help achieve a more important aim. In other

*°? See e.g. PKJ, ii. nos 384, 385, 591; the parties are said to place themselves in mercy to have a licence to make an agreement. On the need for the permission of the king or justices, see also Glanvill, xiv. 1, ed. Hall, 172.

*™® See e.g. PKJ, ii. nos 337, iv. no. 3491. For the possibility of consensual sex on the mistaken assumption of future marriage, see Klerman, ‘Settlement’, 15-16. For another settlement of a rape case, see Jocelin, Chronicle, ed. Butler, 45. ‘™ Glanvill, xiv. 6, ed. Hall, 176.

"See e.g. Lincs.; also Hurnard, King’s Pardon, 22, who argues that the king allowed none but himself to grant licences to agree in homicide cases. ‘'S PKJ, ii. no. 395, See also e.g. Lincs., nos 1018-1095. "™ See e.g. PK, iii. no. 746.

728 PART III: ANGEVIN ENGLAND instances, compensation, not punishment of the offender, continued to be the victim's desire.”

Appeal, denial, and exceptions The parties had essoins available to them."® However, if both parties were present,

the appellor repeated the formal appeal, including any aggravating elements, for example that the offence had taken place on the king’s highway or after receipt of the king’s special peace.” A male appellor offered to prove this by his body or as the court might award, a female appellor to prove it as the court might award. The form and content of the appeal would constrain any further pleading by the appellor, Glanvill stating that it should be known that once battle is waged in pleas of this kind, neither party can add to or take away from the words used in the actual wager, nor in any way deviate from or go back on his allegation; if he does so he is deemed to be vanquished, and penalised by the law of the vanquished."

The appeal also had to match that made in the county court. However, in pleas that failed because of variation from the earlier appeal, the variations were much more than verbal slips; rather they were of a significance that might lead to doubts about the consistency and therefore the veracity of the appellor’s story. For example, an appeal was quashed because the appellor initially appealed the accused's father of the deed and the accused of providing support (de vi), but now reversed their roles." The accused then might make a word-for-word denial, or might bring an exception. The exception might concern procedure, for example variation from an earlier version of the appeal. Alternatively, the accused might claim that his deed

*'® Note also the record ofan appeal before the Essex eyre in 1198, RCR, i. 203, where the appellor states

that the accused beat and bruised him ‘thus that he was not willing to have the injury [pejoramentum| for 100s.. The formulation is discussed in Select Cases of Procedure without Writ, cix-cx. See also e.g. CRR, i. 221. On the making of peace following a homicide accusation, although one where the accused cleric had been cleared by an ecclesiastical court, see below, 769; the case is from the early 1160s. **© Glanvill, xiv. 1, ed. Hall, 172, allows that the parties have the proper essoins. It is possible that only essoins de malo veniendi were available; Bracton, fo. 349b, ed. Thorne, iv. 105, says that ‘the essoin de malo lecti does not lie in any personal case, criminal or civil.’ For essoins de malo veniendi, see e.g.

PKJ, ii. no. 124, iii. no. 688 (by the appellor). A preceding heading suggests but does not prove that PKJ, i. no. 3419, may be an essoin de malo lecti. 7 See Glanvill, xiv. 1, ed. Hall, 172; also Bracton, fo. 144, ed. Thorne, ii. 406. For these aggravating factors, see e.g. CRR, ii. 115; vi. 115; for others see e.g. CRR, i. 230 (at night); vi. 236 (at the king’s pleas). "8 Glanvill, xiv. 1, ed. Hall, 172.

*'? Lincs., no. 657. See also e.g. CRR, iv. 239 (change as regards the alleged place of death in a homicide case).

27 THEFT AND VIOLENCE 729 did not constitute the offence of which he was appealed. He might claim he was not a thief stealing goods but a lord properly taking a deceased villein’s chattels.’*° Or he might supplement his denial with an alibi. The justices might put the issue to a local jury,’ or the accused could make a money proffer to have such a jury.’ Normally we hear of such oblations being accepted but they were occasionally refused and decision made that proof should go ahead. The justices, too, could on their own initiative require a jury inquest into a specific question. Exceptions such as alibis might be accompanied by the allegation that the appeal was brought through hatred and spite, and this exception de odio et atia is the most frequent in response to appeals.’* Appeals naturally were inspired by anger and a desire for retribution, but they had to be brought in good faith. The issue of accusation through hatred could apparently be raised as an exception to all types of appeal before the king’s justices, and was made in a significant proportion of cases. The Lincolnshire eyre roll of 1202 includes three enquiries with explicit mention of the issue of hatred, and two others where this may have been an issue.’ Parties perhaps saw jury trial as preferable to the unpredictability and physical danger of battle or ordeal, and used the exception to get such a trial, but the exception de odio et atia was also used against female appellors where the appealed might not have to face either battle or ordeal.’” Most of the appeals were found to have been brought through hatred, and this, together with the cost of obtaining the enquiry, suggests that issue was not raised lightly or as a matter of routine.’*

"2° See esp. Lincs., no. 561. *) See e.g. CRR, v. 152. ‘** ‘This seems to be what occurred in Lincs., no. 616.

> 10m.: e.g. RCR, i. 57-8, CRR, v. 152; 40s.: CRR, i. 230-1; 4m.: CRR, i. 469-70. See also Hurnard, King’s Pardon, 339-40, although Pipe Roll entries do not make it clear at what stage in the case the proffer was made. 4 See e.g. CRR, i. 379 (odio et atia). "9 See e.g. CRR, i. 469-70; vi. 152-3; note also CRR, i. 230-1; ii. 180. On odio et atia, see esp. Hurnard, King’s Pardon, 339-74, Hyams, Rancor, 175-83; Jenks, “Writ and exception de odio et atia’. Evidence for concern with appeals inspired by hatred starts to appear in Henry II’s Pipe Rolls; Hurnard, King’s Pardon, 339. However, it is likely that the concern is older; see above, ch. 1. See below, 738, on improper indictments. For connection to a land case, see PKj, iii. no. 740. 7° Lincs., nos 594 (see above, 709), 607, 841, 909, 938; see also nos 539, 616. Cf. Lincs., lvii-lx, for the small number of pleas coming to proof by ordeal or battle. "7 See Hurnard, King’s Pardon, 342.

"8 Of the preceding examples, see Lincs., nos 607, 841, 909; nos 594, 938, give no decision on the issue. See also e.g. PKJ, iv. nos 3428, 3458. Cf. R. D. Groot, “The jury in private criminal prosecutions before 1215’ (1983) 27 AJLH 113-41, at 113, who suggests that by the 1190s the appellee had ‘a virtual right to interpose a jury between himself and a judgment awarding physical proof’, most importantly but not solely through the enquiry de odio et atia. It is impossible to tell if there were cases where an accused considered but rejected the idea of seeking inquest because he knew his chances were small, or whether requests for inquest were sometimes made, rejected, and not

730 PART III: ANGEVIN ENGLAND The question of hatred was put to a jury. In cases heard by the eyre, the jurors

would probably be the presentment jury of the relevant hundred, and would respond immediately. In cases heard by a central court, communication with the sheriff or possibly the eyre in the relevant locality, followed by specially constituted enquiry, was necessary.’ The jurors were asked whether it was a ‘true

appeal’ or brought through spite. The former meant that the appeal had been made in the genuine belief that it was true, not that the appeal was correct and the accused guilty. Such a verdict indicated that proof should go ahead, as it would have after a simple denial. If the appeal was found to have been ill-motivated, the verdict might be reported in terms of hate and spite or simply of injustice.”° Such a verdict was treated as amounting to a statement that the accused was not guilty, and occasionally the accused was explicitly said to be quit.’ Thus juries were giving verdicts that might decide cases, a very significant step towards the extension of jury trial regarding crime.”” Besides asking the jurors to answer a point raised in an exception, the justices

might take an active role in other ways too. They might reject an appeal on technical grounds,’* or obtain testimony as to relevant facts. Such testimony might be sought from jurors or others,"4 and could concern the repute of the parties.* The jurors might give a clear answer, but this need not decide the case. Thus in an appeal brought by a woman, the jurors and the four neighbouring vills suspected the man of the deed and said that he was of ill-testimony. He went to ordeal of water, but was thereby cleared.*° Such a process seems to have been

recorded; cf. Groot, ‘Jury in private criminal prosecutions’, esp. 127. For payments for enquiries in cases in the curia regis, see Flower, Introduction, 484. "2° Note PK/, iv. no. 4200, for the king instructing his itinerant justice in Suffolk to make such an enquiry concerning an appeal, and to inform him by letter of the result. The inquest was made by knights of the county. See also e.g. CRR, iv. 275. "°° See also Lincs., no. 607. "** See e.g. Lincs., nos 841, 909; Groot, Jury in private criminal prosecutions’, 122-8. See also e.g.

PK], iv. no. 3457, for the record only mentioning spite when reporting the jurors’ verdict, not in the request for an inquest. The exception might also help to persuade the appellor to withdraw; see e.g. CRR, i. 230-1; ii. 50.

*** See Groot, ‘Jury in private criminal prosecution’, esp. 119-21, 128-30, 140-1; Jenks, “Writ and exception’, 3. For compromises following claims that an appeal was made through hatred, see Hurnard, King’s Pardon, 341. "°° Note e.g. PKJ, ii. no. 265. "84 See e.g. Lincs., no. 773, PKJ, ii. nos 285, 323. *° See e.g. PKJ, ii. no. 399, where the lack of success of an appeal by a woman is related to the jurors assessing her a harlot. See also PKJ, ii. no. 345, for the jurors being asked, presumably by the justices,

about the issue of hatred, apparently after a simple denial by the accused. "°° Lincs., no. 855.

27 THEFT AND VIOLENCE 731 particularly common in appeals brought by those unable to participate in battle, that is by women, the old, and the maimed.”’

Proof If no successful exception was made, and if the appeal was not quashed for any other reason, then it was adjudged that the case should proceed to proof. The appellor’s offer to prove his case by his body was an offer of battle, and Glanvill takes this as the routine form of proof between male appellor and appellee.** The plea rolls tell us that the duel was ‘waged’, that the parties gave gages and provided a pledge or pledges. They also swore an oath, and a day was set on which the duel was to take place. An appeal heard at Shrewsbury at the start of October 1203 had battle set for 10 November at Oxford." As in earlier periods, the battle was fought with staves and shields, whilst Bracton mentions the value of incisors for those involved in fighting.*° The physical strength of the parties was obviously recognised as significant, and the stronger might use it to threaten the weaker.’” However, other forms of proof had to be available. According to Glanvill, the accused can refuse trial by battle in pleas of this type on account of age or serious injury: the age must be sixty years or over; serious injury means a broken bone, or injury to the skull by cut or abrasion. In such a case the accused is bound to purge himself by judgment of God, that is, by hot iron or by water according to distinction of status of men: that is, by hot iron if he is a free man, by water if he is a villein.'”

*°7 See e.g. PKJ, ii. nos 265, 734-5; Three Rolls, 99; Kerr, ‘Angevin reform’, 371-2.

*°8 Glanvill, xiv. 1, ed. Hall, 172. For trial by battle in treason cases, see Lawsuits, nos 407, 540 (where it is said that the accused was to fight against three men over three days). For a rusticus undertaking trial by battle, see Lawsuits, no. 504. "°° PKJ, iii. no. 761. The wait until the actual battle varied; see e.g. PKJ, ii. no. 14; Northants., no. 99; CRR, ii. 195.

“° Bracton, fo. 145, ed. Thorne, ii. 410; the Latin precisores may here include canines as well as incisors. See also above, 327-8; M. J. Russell, “Trial by battle procedure in writs of right and criminal appeals’ (1983) 53 TVR 123-34. Reginald of Durham mentions a spear [lancea] in a trial by battle; Lawsuits, no. 468.

“ See e.g. Lawsuits, no. 463, where the weaker party was saved by saintly intervention; note also Lawsuits, no. 502. For concern about champions bringing appeals, see CRR, vi. 67 (where the defendant claimed that the appellor was a villein and a champion who fought for pay [campio conductivus]); vii. 330 (appellor allegedly a champion who fought for pay).

Glanvill, xiv. 1, ed. Hall, 173. See e.g. PKJ, ii. nos 288, 350, 356. Lawsuits, no. 468, tells of a man who had to go to trial by battle despite having lost one eye; cf. Lincs., no. 595, for loss of an eye counting as maiming. A claim to be maimed might be subject to ‘view’ by knights; see e.g. CRR, i. 91; PK, ii. no. 356; Lincs., no. 650.

732 PART III: ANGEVIN ENGLAND The appellor likewise could ask to prove his case as a maimed or old man, although he might also offer a man to fight on his behalf. Such a representative had to have seen and heard the offence, and have offered to prove it.’# In cases where a maimed or aged man brought an appeal, we hear of the accused having the choice of which party should bear the ordeal. In all three such cases in the 1202 Lincolnshire eyre the accused chose that the appellor should bear the iron. In one instance both parties came and placed themselves in mercy, in the other two the appellor withdrew.'** It appears that the accused preferred placing on their opponents the pain of carrying a red-hot iron to placing on themselves the benefit of receiving God’s judgment.

Women brought a significant proportion of appeals, but could not fight duels. Glanvill tells us that when a woman brought an appeal ‘it is the choice of the accused whether he overcome the woman’s proof against him [mulieris probationem contra se sustinere], or purge himself by judgment of God from the crime imputed to him. The nature of the woman's proof is not made clear by Glanvill, and cases show women offering to prove their appeals ‘as the court decides.’ However, if the justices found from the jurors that they suspected the accused he might have no choice but to go to ordeal.’*

Justices taking up prosecution If an appellor did not pursue or if he withdrew his appeal, in a small proportion of cases the justices continued the prosecution.’*® The jurors, and sometimes others, would be asked whether they suspected the accused, and, if they did, he might be put to ordeal.'”” If they did not suspect the accused, he might be placed

“4° See e.g. ‘Staffordshire suits, 43; CRR, i. 381; i. 386; PKJ, ii. no. 619 (appellor in mercy because he

did not speak of seeing or hearing, and because he withdrew and put another in his place who did not see or hear). “* Lincs., nos 595, 843, 851. "° Glanvill, xiv. 3, ed. Hall, 175; see also xiv. 6, ed. Hall, 176; “Staffordshire suits’, 96, PKJ, ii. no. 342;

above, 730, for jurors’ suspicion leading the man to go to ordeal of water, ‘Staffordshire suits’, 96, to ordeal of iron, as he chose to carry the iron; Klerman, ‘Women prosecutors’. It is conceivable that Glanvill may here be using the word probatio to indicate the possibility of oath with oath-helpers (see e.g. Glanvill, xii. 6, ed. Hall, 139), or to mean something more like evidence offered as proof (see e.g. Glanvill, x. 12, ed. Hall, 127). The appealed might also make a payment to be allowed a jury; e.g. Lincs., nos 909, 938, and note CRR, iv. 232-3, 275.

““° Kerr, ‘Angevin reform’, 372-3, noting her comments on the proportion of these appeals that were brought by women; also Groot, ‘Jury in private criminal prosecutions’, 131-9. It seems that the

justices did not see it as appropriate to take up rape appeals that were not pursued to trial; Groot, ‘Rape’, 319, notes only one exception. “7 See e.g. PKJ, ii. nos 265, 729; note also nos 44, 310.

27 THEFT AND VIOLENCE 733 under sureties™*® or go free.'*? Justices’ respect for settlements may explain the limited proportion of cases—perhaps less than 10 per cent—that were continued in this fashion. At the same time, it is interesting to see an appellee asking for an

inquest even after the appeal had not been pursued. Presumably the finding of the inquest, that the appeal had been brought through malice, had the effect of fully clearing his name from the taint of accusation, and from any small chance of royal prosecution.’*

Approvers One other group could bring appeals: co-offenders, referred to as approvers." The Dialogue of the Exchequer gives the following account. When royal servants arrested a notorious criminal, the judges (i.e. royal justices), to tackle the serious problem of crime in the realm, ‘sometimes agree that if such a person confess a crime and is willing to challenge his partners in crime and is able to prove the

charge against one or more of them in trial by battle, then he shall escape the death that he deserved and depart with his body unpunished, but undeserving of the realm and abjuring entry to it’. Others might suffer mutilation rather than being allowed to abjure. Because the criminal could save his own life by proving [probare] charges against others, ‘and also because whatever is seen to contribute

to the peace of the realm is undoubtedly to the king’s advantage, he is called the king’s approver [probator]’.'* Certainly later, and possibly at this time and before, approvers had to have been accused by a jury or perhaps a public official, rather than by appeal.’* Some approvers had to fight trials by battle against several opponents, and this could involve the approver being taken from county to county. Pipe Rolls record payments for approvers’ equipment, and for masters to teach them to fight, whilst the Dialogue states that ‘from the day when he is

taken on for making proof, until he has fulfilled his promise, or until he fails,

“8 See e.g. PKJ, ii. no. 329; see also no. 735. ™ See e.g. Lincs., no. 540. Note also PKYJ, ii. no. 383. 1° See PK], iv. no. 3428. *°! See Hamil, ‘King’s approvers’; Rohrkasten, Die englischen Kronzeugen. For practical difficul-

ties in getting hold of a thief who reputedly wished to be an approver, see PKJ, i. no. 3129. Note also e.g. Roll of the justices at Bedford, 1202’, no. 258. *°? Dialogus, ii.7,ed. Amt, 132. See also Bracton, fos 152-154, ed. Thorne, ii. 429-34. Note Lawsuits,

no. 493, for a man betraying his accomplices after having been promised his life and limbs; it is not clear whether he then acted as an approver. For grants of life and limb in return for information, see also e.g. PKJ, i. no. 3121.

°° Hamil, ‘King’s approvers’, 240, who cites only later sources; however, note the opening of the passage of the Dialogus just quoted. See also e.g. CRR, iii. 144. See Hamil, 240-7, for more details of

thirteenth-century procedure.

734 PART III: ANGEVIN ENGLAND he receives 1d. a day from the treasury for food’.** Those whom the approver appealed might offer payment for an enquiry as to their own standing or plead exceptions, for example that the approver had been outlawed for another felony. The issue raised would then be put to jurors. If their opinion favoured the accused, he was to be released under pledges. If not, the duel was to go ahead. Very occasionally judgment was to be by unilateral ordeal rather than by battle, presumably because the accused could not fight.’*° If an approver was defeated, he was hanged, and the victorious accused released to his pledges.’” It may be that use of approvers increased during Henry IIs reign.*** The Pipe Rolls suggest that, at least from the mid-1160s until late in the reign, approvers were retained at royal expense to make a series of prosecutions. Even after Henry's

reign we hear of approvers such as Thomas the baker, who accused over thirty men. Either such men had very numerous criminal involvements or they were men armed, trained, and supported to fight, in effect as champions on the king's behalf.’ Approvers were unpopular. In 1189 the recently widowed Eleanor of Aquitaine decreed, on her son Richard’s order, that ‘all who have been held through appeal

of those who know themselves to be malefactors are to be delivered quit’.°° In 1204 the borough of Derby gave 1m. so that they could do justice [i.e. carry out the punishment] concerning William the approver, who had been sentenced to *°* Dialogus, ii. 7, ed. Amt, 132; e.g. PRI2HII, 72; see also Kerr, ‘Angevin reforms’, 357-9, Pugh, Imprisonment, 315-16, on the Pipe Roll evidence. °° See e.g. Northants., nos 80-4, 701 (where the issue is put to the whole county and the accused is said to be quit), 723-5, 728, 731, 738. See e.g. Northants., no. 80, for a different type of exception used against an approver. Note also Hamil, “King’s approvers’, 243-4. *°° See e.g. Northants., no. 726, where the accused is suspected of receiving of thieves, perhaps an offence more likely than theft or homicide to be committed by the old or maimed. See also Lawsuits, no. 493, for a rich London citizen named John the Old going to ordeal of water after having been given

up by one of his fellow offenders; age and his citizenship of London may have preserved him from trial by battle. At the very start of Henry II’s reign we hear of a female approver; PR2-4HII, 4. *°7 See e.g. Northants., no. 905. That approvers might have a series of opponents increased the likelihood of hanging being their fate.

°° Note, though, that Pipe Roll evidence may be misleading; see also White, Restoration, 198 n. 209. Ifapprovers were simply supported by sheriffs, rather than the sheriff receiving allowance from

the king, activities involving approvers need not have been recorded on the Pipe Rolls. Increasing mentions of approvers may reflect the growing importance of the eyre. See above, 308, although the word probator was not used until the first surviving Pipe Roll of Henry II; PR2HIL, 4. *°? See Northants., nos 686-713 (Thomas the baker’s accusations), 905-6 (Thomas the approver); Northants., xxxvii-xxxviii, takes these to be references to a single man. See Kerr, ‘Angevin reform, 354-9, Hamil, “King’s approvers’, 248.

*°° Howden, Chronica, s.a. 1189, ed. Stubbs, iii. 4-5; the decree also laid down that approvers who had been granted limbs and life for their proofs were to abjure the realm, while those who had made

accusations of their own accord without grant of life and limbs were to be kept in prison pending further discussion.

27 THEFT AND VIOLENCE 735 hang.’* Later evidence points to approvers being used to accuse innocent people, as well as accused men being forced to become approvers. Others might become approvers in the hope of escaping during a lengthy imprisonment.’ Overall, the system, with its aspects such as the training of approvers in the skills of fighting, suggests a considerable distancing from the idea that trial by battle was a means of establishing God’s judgment.

5 PROCEDURE: (II) PRESENTMENT Let us now move on to those cases where, in Glanvill’s words, ‘no specific accuser appears .’°

Origin The bringing of prosecutions by royal officials that we saw in the Anglo-Norman

period probably continued in the first years of Henry II's reign, although evidence is very limited. The mid-1160s saw a shift to royal reliance on accusations brought by local juries."°* We have seen that a law of A:thelred II had looked to the reeve and twelve leading thegns of each wapentake to arrest the frequently accused, having sworn ‘that they shall accuse no innocent man nor conceal any guilty one.’® It is possible that such methods were sometimes used in

the Anglo-Norman period. However, arguments for continuity of practice from /ethelred to Henry II's time are not compelling, and the Assize of Clarendon marked a new emphasis on jury accusation. Those designing the measures may have drawn on earlier practice, on accusations brought communally before the sheriff’s tourn, or on canonical procedures, but used any such elements to form

"8! CRR, iii. 89. *°* Hamil, ‘King’s approvers’, 248-9, 254. "°° Glanvill, xiv. 1, ed. Hall, 171.

*°* Van Caenegem, ‘Public prosecution’, esp. 31-2, suggests that such methods were adopted

because of the unpopularity of accusations by individual royal officials; note, however, the comments of Helmholz, “Grand jury’, 622-5, concerning canonical procedure, which was meant to be initiated by public suspicion and was not necessarily vindictive or unfettered by legal rule. See also above, 511 n. 88, on Lawsuits, no. 371. Dislike of unsupported accusations continued; Magna Carta, 38, stated that ‘no bailiff is henceforth to place anyone to proof [ad legem|] on his unsupported statement [simplici loquela sua], without faithful witnesses brought for this’. The precise concern of the clause is not entirely clear; McKechnie, Magna Carta, 370, Holt, Magna Carta, 326. "°° See above, 53; note the emphasis upon arrest. Cf. Hurnard, ‘Jury of presentment’.

736 PART III: ANGEVIN ENGLAND a new structure, which integrated local activity with the eyre.’* The overall aim must have been to uncover and prosecute the largest possible number of offences. The Assize provided a supplementary method intended to overcome the limitations of appeal and tackle some of the problems that the frankpledge system faced.

Procedure When the eyre had arrived, and appellors and accused, officials past and present, and records of coroners and local courts were assembled, groups of local jurors responded to the justices.’” Bracton shows that in the thirteenth century the jurors’ response came in two forms. They publicly gave their ‘true statements [veredicta]’

in response to the wide-ranging articles of the eyre, including presentment of specific felonies and named felons, some of whom had been accused by appeal. These statements could be oral or written, the latter perhaps in addition to speech.'®* Second, they responded to the private instruction from the justices, to arrest anyone suspected of a crime. If they could not do so, they were to let the justices, again privately, have a list of those under suspicion, and the sheriff would

be ordered to arrest them and have them before the justices.’ In general the former mostly concerned homicides, which would already appear on coroners’ rolls; the ‘private’ accusations were more likely to concern thefts, which were not reported to coroners. The act of theft may not have been witnessed or pursued through hue and cry in the way required for an appeal, but the perpetrator may have been notorious. The hope may also have been that those arrested through the private discussions and actions of justices, jurors, and sheriffs would include some named as felons in response to the articles of the eyre. How old was this double process? The Assizes of Clarendon and Northampton

are concerned primarily with accusations brought by jurors against the notorious, although there is also mention of those taken in possession of stolen

"°° See above, 393, 555-6. For arguments concerning canonical influence, see Helmholz, ‘Grand jury, esp. 623-7, although at 625 he points out a very significant difference in the use of inquests, that ‘in canonical practice...the inquest was normally used only when the existence of public fame was in doubt. "87 See Surrey, i. 88; Lincs., xliv-xlv. Note also Crown Pleas of the Wiltshire Eyre, 1249, ed. C. A. E Meekings

(16 Wiltshire Archaeological and Natural Hist. Soc., Records Branch, 1961), 46-51, on attachment and bail.

*°S For mention of a written record of veredicta, see PK/, iii. no. 712; it was disavowed by the jurors, who were to be subject to judgment. Three Rolls, 98, suggests oral delivery. ‘°° Bracton, fo. 116, ed. Thorne, ii. 328-9. See also Surrey, i. 112-13; J. G. Bellamy, The Criminal Trial Jury in Later Medieval England (Stroud, 1998), 19-20. For jurors reporting rumour to the eyre, see e.g. Three Rolls, 96; note also PK/J, ii. no. 43.

27 THEFT AND VIOLENCE 737 goods.’”° However, perhaps from later in Henry II's reign and certainly from the 1190s, eyres dealt with all crown pleas, whether initiated by jury accusation or appeal. The earliest articles of the eyre, surviving from 1194, may suggest some double process, although not necessarily identical to that at the time of Bracton. The first article enquires ‘concerning pleas of the crown, new and old and all

those which have not yet been finished in the presence of the justices of the lord king’, whilst the seventh article enquires ‘concerning malefactors and their receivers and those consenting to them’.”' The former may have produced the report of specific felons and felonies, the latter the jurors’ own suspicions about malefactors.

Further investigation and assessment by jurors Public notoriety did not necessarily lead to immediate trial, even if the suspect was arrested rather than having fled.”” In his discussion of lése majesté, Glanvill states that in cases based on reputation (fama), the truth of the matter shall be investigated by many and varied inquests and interrogations to be made before the justices, and arrived at by considering the probable facts and the conjectures both for and against the accused, who must as a result either be purged by the ordeal [per legem apparentem] or absolved entirely from the imputed crime.”

If this degree of investigation sounds too elaborate for many suspected of common offences, the plea rolls show jurors contrasting accusation based on public notoriety with their own opinion. Robert Walensis, Osbert Potor and Robert Puis, accused [rettati] of the death of Fattecabbel, are not suspected by the knights of that hundred nor by the whole county. Likewise the knights of Powder say the same, and the knights of Pyder say the same, and the knights of Kerrier say the same. The hundred of Penwith says the same. But they suspect of that death Robert Franceis, Roger Warrei, and Mascy of Devon. And since the aforesaid jurors do not suspect them of the aforesaid death, the justices place them under pledges, through the coroners.”

‘’° Assize of Clarendon, 12, 13, Assizes of Northampton, 3. For mention ofa ‘roll de privatis’, see Pleas of the Crown for the County of Gloucester, no. 254.

‘”" Select Charters, 252-3; see also the 1198 articles, c. 17, Howden, Chronica, ed. Stubbs, iv. 62. The ordering of entries in e.g. Lincs., nos 584-92, suggest that the two processes were complementary in assembling a set of accusations, rather than being kept distinct. 7? See also MacNair, ‘Vicinage’, 583-4. 7? Glanvill, xiv. 1, ed. Hall, 171. 74 PK], ii. no. 621.

738 PART III: ANGEVIN ENGLAND The opinion provided could originate from the initial statements of suspicion that the jurors had privately been asked to provide by the justices, or arise later in the trial process, possibly as a result from questioning by the justices.’” If the jury of the hundred found that there was supporting evidence for the public notoriety, or if they were joined in their suspicion by the jurors of the four vills, the accused went to ordeal. If the jurors did not consider the accused suspect, he could be released under pledges, as in the case just quoted. The jurors thus were contributing to the assessment of the guilt or innocence of the accused, rather than simply conveying the initial accusation.’”° In some instances, though, their opinion might be over-ruled, for example by that of the knights of the county.’ Again, it is unclear whether this process whereby hundred jurors, jurors of vills, and on occasion the county, sifted accusations based on notoriety was already present in 1166 or 1176. The texts recording the Assizes do not make it explicit, although they do provide fundamental elements of the machinery, most notably the juries of each vill. It could therefore be that the sifting process was present from the start. Alternatively, encouraged by questioning from the justices, it may have developed because of concern about unjust presentments, especially those arising from payment, hatred, or unsubstantiated hearsay.’ Certainly by 1215 jurors in cases started by communal accusations, as in appeals, were called upon to state their view of the accused's guilt. Following the abolition

of the unilateral ordeal by the 1215 Fourth Lateran Council, the existence of such processes aided the establishment of jury decisions in criminal trials in England.”

”? See e.g. Lincs., no. 1004.

7° See also e.g. Lincs., nos 588c, 588d, 754a; ‘Staffordshire suits’, 94. See also R. D. Groot, “The jury of presentment before 1215’ (1982) 26 AJLH 1-24, esp. 14, and ‘The early-thirteenth-century criminal jury’, in Twelve Good Men and True, ed. J. S. Cockburn and T. A. Green (Princeton, 1988), 3-35, at 6-7. Note that Glanvill, xiv. 2, ed. Hall, 173, states that in cases of treasure-trove based on ill-repute [ob infamiam] ‘according to the law of the realm (though it may be otherwise by an assize) is that no-one shall be purged by ordeal unless he has previously been convicted or confessed in court that some kind of metal was found and recovered at the place in question’.

The point here seems to be that the dispute must be over the nature of the metal found, not over whether any metal had been found. The precise point seems therefore only to apply to treasure-trove cases, although the parallels to other cases as outlined in the text are clear. The reference to ‘assize’ is not clear; the word need not refer to Clarendon or Northampton; cf. Hurnard, ‘Jury of presentment’, 391. 7 See e.g. Three Rolls, 86. "78 Note esp. Inquest of Sheriffs, 6. For possible concern over hearsay, in the context of Forest presentments, see Lawsuits, no. 480. ‘”? See Bartlett, Trial by Fire and Water, 137-9; Groot, ‘Early thirteenth-century criminal jury, 10-35.

27 THEFT AND VIOLENCE 739 Proof Many of those facing communal accusation fled, but some were attached by sureties or arrested and held until the coming of the eyre,'*° whilst others were to be arrested when their names were brought before the justices.’* If the accused confessed, or possibly if guilt was manifest, the case might go straight to punishment, without further proof.” Even outside such cases, we do not have record of pleading in cases brought by presentment. Rather, we hear only that those accused, if present, gave security that they would perform proof."*®

The Assizes specify trial by water for those communally accused, and this form of trial is normal too in the plea rolls.'** As we have seen, Glanvill associates trial by water with the rusticus, the person of low status.’* The Assizes’ insistence on ordeal by water may indicate the expected status of suspects, may reflect the

dishonourable position of the notorious, or may have been influenced by the greater speed with which groups of offenders could be tried by water rather than by hot iron.’*° It is possible that some who received backing from their lord or whom the jurors did not suspect were allowed to clear themselves by compurgation, but there is no evidence for this in the plea rolls with regard to felonies.” The procedures under the Assizes mark a move towards mass use of ordeal by water, away from a preference for using ordeal only when other proof was difficult.’*®

Even if the accused passed the trial by ordeal, he might still have to face the consequences of his reputation. According to the Assize of Clarendon, the lord king wills that those who shall make their law and be absolved by the law [i.e. succeed in proof], if they have been of the worst repute and openly and disgracefully spoken of by the testimony of many and lawful men, shall abjure the king’s lands, so that within eight days they shall cross the sea, unless the wind detains them; and with the first wind that they shall have afterwards they shall cross the sea, and they *S° Lawsuits, nos 501, 506, may record such cases. Flight: e.g. PKJ, ii. no. 12. Flight probably explains why some accused could not be found; e.g. PKJ, ii. nos 57-9. "S* See above, 736.

"S* Confession: e.g. Northants, no. 29, and note PKJ, ii. no. 732. Hanged, after having been taken in flight: e.g. PKJ, ii. no. 618, cf. no. 746. "8° See e.g. PKJ, ii. nos 8, 55, 64, 68. "84 See e.g. PK], ii. nos 8, 64, 68. "°° Glanvill, xiv. 1, ed. Hall, 173; above, 731.

8° See above, 734 n. 156, on John the Old.

*’” For arguments that compurgation may have been possible in these circumstances, see Hurnard, ‘Jury of presentment’, 390-2, Richardson and Sayles, Governance, 198-9. See ‘Roll of the justices at Bedford, 1202’, no. 263, for a woman accused of using a false measure for selling beer in the borough of Bedford being ordered to defend herself twelve-handed. "88 See also below, 749.

740 PART III: ANGEVIN ENGLAND shall not return to England again except by the mercy of the lord king; and let them be outlawed there; and if they return, let them be seized as outlaws.

Plea rolls later show this process in operation.’

6 PUNISHMENT OF SERIOUS OFFENCES For the large proportion of serious offenders who fled, the penalty for their offence was outlawry and forfeiture.’’° If the accused did appear and proof went against him, he was sentenced to the appropriate punishment. According to the Dialogue of the Exchequer, whoever is convicted of an offence against the royal majesty, is condemned in one of three ways according to the type of his offence to the king; for minor wrongs he is judged liable for all his movables; or in all immovables, that is estates and rents, so that he is disinherited of them, which is for greater wrongs; or for the greatest or heinous offences, in his life or members.'”

Punishment might be accompanied by spiritual penalty; for example, Gerald of Wales states that condemned thieves were denied the sacraments before execution, Christian burial after it.’

Physical punishment Glanvill states that the criminal pleas belonging to the crown of the lord king were punished by the ultimate penalty [ultimo supplicio, i.e. death] or the cutting

off of limbs’? Only a small proportion of accusations reached conviction and execution, but we do hear of the death penalty being put into effect for offences including homicide, robbery, and theft.’°* According to Howden, it was argued by

"°° Assize of Clarendon, 14; see also Assizes of Northampton, 1; e.g. CRR, vii. 241, 247; note also Northants., no. 797. See Bartlett, Trial by Fire and Water, 67-9, for earlier parallels suggesting that this provision did not arise from any new scepticism concerning ordeal. *° See above, 724, below, 747. *°! Dialogus, ii. 16, ed. Amt, 168. *°* Gerald of Wales, Gemma ecclesiastica, i. 40, Opera, ed. Brewer, ii. 116. Note also e.g. Hurnard, King’s Pardon, 69-71, on penance for different categories of homicide. °° Glanvill, i.2, ed. Hall, 3. See also TAC, 36. 2, ed. Tardif, 30.

4 See e.g. Lawsuits, nos 493, 618, 641, 648. See also above, 733, for approvers and others being promised their life and limbs in return for their help. Note also Dialogus, ii. 10, ed. Amt, 152, on thieves being subject to death. On the proportion of those accused being convicted and executed, see e.g. Lincs., li-lii, lx, and from the mid-thirteenth century, Surrey, i. 128, Crown Pleas of the Wiltshire Eyre, 79, 98-9.

27 THEFT AND VIOLENCE 741 Bishop Baldwin of Worcester that executions should not take place on Sundays and on certain feast days, but this position was resisted by the royal executioners.’ Execution was normally by hanging, irrespective of the condemned man’s status,

but there are also instances of burning, for women convicted of killing their husbands, and for an arsonist in a case where the punishment is specifically said to have been ordered by King John.'° The execution was sometimes carried out by the victorious party, sometimes by a royal official.’%” Ralph de Diceto, in recounting judicial proceedings of 1179, stated that homicides

were to be hanged, those convicted of lesser offences marked by mutilation.’ Certainly mutilation involving blinding and castration occurred after some appeals,'*® while castration may have been employed when rape was punished physically.’°° Particularly notable is the specification of loss of a foot by the Assize

of Clarendon, or a foot and the right hand by the Assizes of Northampton.” It is unclear why these measures preferred mutilation to the death penalty. Perhaps the procedure of communal accusation was seen as less secure than appeal, but the cases were still tried by ordeal. Glanvill, however, states that the death penalty was used for those convicted by ordeal following communal accusation, although the punishment might be tempered by royal clemency; plea rolls show mutilation as the merciful alternative.*”

Forfeiture The Assize of Clarendon stated that the chattels of those convicted by the Assize were to go to the king, and Pipe Rolls show sheriffs accounting for sums due from the sale of those who had fled or been convicted by ordeal according to the Assize. The Assize also stated that the fate of the chattels of those accused in

°° Lawsuits, no. 553. °° See e.g. Lawsuits, no. 553, for a nobleman taken to be hanged. See also Lawsuits, no. 540, for hanging and drawing being suggested by William Marshalas the appropriate penalty for thetreasonous act of which he was accused, that is for being the lover of the wife of the young king. Burning: PR3J, 32, Rot. chart., 86b; CRR, vi. 306; Pleas of the Crown of the County of Gloucester, no. 216.

"7 See above, 509; also Dialogus, ii. 7, ed. Amt, 132, which suggests the existence of serjeanties with the duty of carrying out executions. "8 Diceto, Ymagines historiarum, s.a. 1179, ed. Stubbs, i. 434. °°” See e.g. Lawsuits, nos 471, 472 (where it is said to have been customary to bury the excised eyes and testicles), 504 (mutilation carried out by accuser), 505. *°° Bracton, fo. 147, ed. Thorne, ii. 414-15; see also above, 187, for earlier evidence.

*°" Later men did not distinguish between the two Assizes in terms of punishment; see CRR, i. 180, for reference to loss of an arm and a foot under the Assize of Clarendon. *°?' Glanvill, xiv. 1, ed. Hall, 171; for mutilation as mercy, see esp. PKJ, iii. no. 739.

742 PART III: ANGEVIN ENGLAND other fashions was to remain unchanged.’™ This implies that chattels of those convicted by appeal were not necessarily to go to the king, but rather to the sheriff or to those possessed of franchises. The Dialogue of the Exchequer states that the goods of robbers were to go to the treasury, but those of thieves ‘to the sheriff under whom they were seized and punished’, whilst Glanvill states that ‘if anyone is concerning theft, his movable goods and all his chattels are to go to the sheriff of the county. However, the Dialogue adds that if the sheriff decided that the thief’s case should be brought to the [king’s] court, everything that the thief possessed went to the king. If the victim of theft pursued and caught the thief, and proved him guilty at the king’s or even the county court, the victim was to receive from the thief’s chattels twice the value of the stolen goods, the remaining

chattels going to the royal treasury. Here it sounds as if the king was receiving forfeited chattels even when the criminal had been prosecuted by appeal, so long as the case had been brought to him. Likewise Glanvill, in his opening treatment of the crime of lése majesté, states that the convicted felon had his goods and chattels confiscated, and his heirs were to be disinherited in perpetuity. By the last decade of Henry II’s reign, therefore, the king normally received the forfeited chattels of felons, including thieves convicted in his court, whether the accusation had been by appeal or presentment.”™

Glanvill tells us that if anyone was convicted of theft, any lands that he had were recovered immediately by the lord of the fee. If anyone was convicted of or confessed a felony in court by the law of the realm, he was disinherited and his land passed as an escheat to his lord. First, however, the land was to be in the king’s hand for a year, and the king had the right to pull down houses and root up trees. After a year the land should revert to the lord.’ King John may have exceeded such royal rights, as it was necessary for Magna Carta, c. 32, to confirm Glanvill’s provision: ‘we will not hold the lands of those who have been convicted concerning felony, except for a year and a day, and then the lands are to be returned to the lords of the fees’.

*°° Assize of Clarendon, 5; the clause implicitly associates royal receipt of chattels with jurisdiction of the king’s court. Note the concern apparent in Dialogus, ii. 10, ed. Amt, 150-2. See Holt, ‘Assizes of Henry IT’, 101-2, for sheriffs being responsible for the sale of chattels, justices for the imposition of amercements; also Dialogus, ii. 10, ed. Amt, 146. *°* Dialogus, ii. 10, ed. Amt, 152-4; the phrase for the double payment to the victim is ‘solta et persolta’ or ‘prosolta’, cf. above, 380. The Dialogue may imply that cases of robbery went automatically to the king’s court, unlike those of the less serious offence of theft; see above, 553. Glanvill, vii. 17, xiv. 1, ed. Hall, 91, 173. See PKJ, iii. no. 750, for a fugitive’s widow receiving her husband’s chattels by order of Geoffrey fitzPeter. *°° Glanvill, vii. 17, ed. Hall, 90-1; see also Dialogus, ii. 10, ed. Amt, 146; note also CRR, i. 180-1. Should thief or felon hold in chief of the king, the land was immediately seized for the king’s use, and no heir could recover it.

27 THEFT AND VIOLENCE 743 Pardon Some who had committed homicide might obtain royal pardon because of the nature of the killing. These included killings that were in self-defence or unintentional. Roger of Steinton was taken for this, that he killed a certain girl by accident, by throwing a stone. And it was witnessed that it was not through felony. And this was shown to the lord king, and the lord king, moved by mercy, pardoned him the death. And so he is freed.*°°

Pardon was a royal monopoly outside certain highly privileged areas, and justices normally had to refer such matters to the king.*°” However, we do hear of another accidental killing involving stone-throwing, where the killer fled but the eyre decided that outlawry proceedings should not be set in motion.”

The man seeking pardon had to have a request made to the king, and the request would be accompanied by a payment, quite often by the considerable sum of 5-10m.”°° The king might then order an inquest, and finally the royal decision was announced.” The king’s pardon did not end the rights of the victim’s family to bring an accusation against the killer, allowing in particular that they pursue a compensatory settlement.”

7 LESSER OFFENCES AND TRESPASS Our focus so far has been on what Glanvill called ‘criminal pleas that pertain to the crown of the lord king’.*” It is these offences, together with some thefts, that

*°° CRR, vi. 351.

*°7 See Hurnard, King’s Pardon, 25-7 and ch. 9. In 1203, when John was on the Continent, a case of killing in self-defence was referred to Geoffrey fitzPeter; PK/J, iii. no. 707. Note the claims of Battle

Abbey put forward in Battle Chronicle, ed. Searle, 68-70; cf. Magna vita sancti Hugonis, v. 9, ed. Douie and Farmer, ii. 127-8. *°8' PKYJ, iii. no. 736. According to Hurnard, King’s Pardon, 27, in the thirteenth century death caused

by tree climbers rarely needed a pardon, but most other accidental slayers were still accountable, and hence need pardon. It is hard to tell whether there were any more general changes in notions of responsibility and liability compared with earlier periods, on which see above, 168-9, 390-1. °°? See PR3J, 73; PR4J, 91, 136 (both of which are for having letters patent concerning pardon); PROJ, 216 and Rot. de ob. et fin., 226.

**° Hurnard, King’s Pardon, ch. 2; also Pollock and Maitland, ii. 480-1. *™* See Hurnard, King’s Pardon, ch. 1, esp. 20, ch. 8; PR6J, 216. See also Howden, Chronica, s.a. 1189, ed. Stubbs, iii.4, Rot. lit. pat., 54, for general royal releases of the imprisoned mentioning the making of settlements. For the situation in Normandy, see TAC, 36. 1, 4, ed. Tardif, 30-1. *™ See above, 711.

744 PART III: ANGEVIN ENGLAND appear in the plea rolls of the king’s courts. The absence of records from other courts, together with Glanvill’s lack of treatment, makes it much harder to analyse

lesser offences.” There may have been considerable continuity, for example in the use of presentment within the context of frankpledge, of compurgation as a form of proof, and of warranty in relation to theft, the last a procedure we also occasionally see employed before the eyre.”"* Likewise the settlement pattern for such offences continued to provide for compensation, for the physical and material

harm and the dishonour done to the victim.”

The lesser offences that Glanvill attributes to the jurisdiction of lords or sheriffs, ‘brawls, beatings, and even wounds, unless the accuser adds concerning the breached peace of the lord king’, could later be classified among trespasses, transgressiones.”’° Whilst the word transgressio was used in the late Angevin

period, this was not in a narrow technical sense but rather to mean wrong or offence in general. Felonies could be a sub-set of transgressiones, not distinct from them. The process whereby transgressio or the Old French trespas came to have an additional, more technical sense seems to have involved certain types of wrong separating off into particular classifications, such as felony. Transgressio, trespass, was the word used for the remaining wrongs.” In the Angevin period, procedures developed for hearing in the king’s court

some trespasses other than felonies.”* As in earlier periods, a complaint of a wrong might be made to the king, and he would issue an instruction, oral or written, that the wrong be investigated or corrected. Plaints could likewise be

**° On jurisdiction, see above, ch. 22. *™ See above, 555-6, for the sheriff’s tourn. For compurgation, see e.g. The Court Baron, ed. F. W. Maitland and W. P. Baildon (4 Selden Soc., 1891), 21, 26ff. For warranty and theft, see above, 688-9, 714-15; above, 742, on Dialogus, ii. 10, ed. Amt, 154, on two-fold restoration to the victim of theft. For the eyre hearing voucher of warranty of purchase of chattels, see PK/, ii. no. 741; note also Glanvill, x. 16, ed. Hall, 131, for warranty before the king or his justices of chattels that were claimed as stolen.

**° See above, 742, on Dialogus, ii. 10; also e.g. Donahue, “Crime-tort distinction’, 226. On compensation for shame, see J. S. Beckerman, “Adding insult to iniuria: affronts to honor and the origins of trespass’, in On the Laws and Customs of England, ed. Arnold et al., 159-81, at 173-6. **° Glanvill, i. 2, ed. Hall, 4.

*"” The argument here parallels that developed separately by Donahue, “Tort-crime distinction’, esp. 223-5. See also Roll of the Shropshire Eyre, 1256, xxxii-lviii; S. F. C. Milsom, ‘Reason in the development of the common law’, in his Studies in the History of the Common Law, 149-70, at 154-8; Hyams, ‘Crime and tort’, 112-15, ‘Nastiness and wrong, rancor and reconciliation’, in Conflict in Medieval Europe, ed. Brown and Gorecki, 195-218. Note also use in e.g. PK/, iii. no. 970; RCR, ii. 34, the sense of which may be clarified by CRR, i. 58; Bracton, fo. 119b, ed. Thorne, ii. 337.

*"8 See e.g. RCR, ii. 169. Select Cases of Procedure without Writ, cviii-xvi, argues that Roman law was an important influence on the emergence of the action of trespass, but was not its source. Beckerman, ‘Adding insult to iniuria’, 176-8, sees the influence in the matter of compensation as limited to vocabulary.

27 THEFT AND VIOLENCE 745 made to the king’s justices, who might act upon them.” Also, by the end of the twelfth century we see various writs requiring that the addressee ‘show why [ostensurus quare]’ they had done a specified act. After our period, some would develop into set ‘writs of trespass; whilst the decision to hear a complaint in the king’s court may earlier have been made on an ad hoc basis, now such decisions would be routinised into criteria that must be fulfilled if the matter was to be one for royal jurisdiction. The two essential elements were breach of the peace and contempt of the king’s specific protections or orders. Mention of breach of the peace or use of force and arms probably began as a description of a real wrong, but it would become simply a formal means by which parties brought their cases to royal jurisdiction. This development would lead to another major extension of royal jurisdiction.””°

8 AMERCEMENTS Lesser offences might lead to compensation to the victim and to amercement, that is a monetary penalty paid to the king.” In addition, a mass of amercements arose during procedures for the prosecution of offences, serious or lesser. The appellor defeated in battle had to pay such an amercement.’” Tithings and their heads were amerced for their failure to produce suspects.”* The multiplication of officials and records, for example with the establishment of coroners, may have been intended to improve administration, but rapidly brought the king a financial benefit as any deviation between claims made before different officials might lead to amercement. Parties were amerced for inconsistencies in pleading, jurors for inconsistencies between their statements and the coroners’

** See also Hyams, Rancor, 227; Select Cases of Procedure without Writ, cv-vii; Roll of the Shropshire Eyre, 1256, xxxvii-xlii. Select Cases of Procedure without Writ, cviii, argues that Glanvill’s

concentration on procedures begun by writ, as opposed to plaint, explains his silence concerning matters of trespass. Note also e.g. PKJ, i. no. 3159. *2° See esp. S. F. C. Milsom, ‘Trespass from Henry III to Edward III’, in his Studies in the History of the Common Law, 1-90. *2" See also above, 740, for Dialogus, ii. 16, stating that whoever was convicted of a minor offence

against the royal majesty was found liable for all his movables. See also above, 403-4, on the notion of amercement. *? Glanvill, ii. 3, xiv. 1, ed. Hall, 25, 172; Glanvill’s 60s. penalty is the same amount as William I had laid down for a Norman defeated by an Englishman in a trial by battle; above, 323. For the penalty being applied on one who would not pursue his appeal and the duel that he had waged, see PKjJ, ii. no. 14.

*2° See above, 717.

746 PART III: ANGEVIN ENGLAND rolls.’*4 Pipe Roll evidence, however, suggests that some amercements recorded in the plea rolls were either never or only slowly paid.”

Magna Carta insisted that henceforth amercement should be proportionate: ‘a free man shall not be amerced for a small offence except according to the extent of the offence, and for a great offence he shall be amerced according to the greatness of the offence.””® Such a proposition was not new, and can be traced back at least to Henry I’s coronation decree. A similar point was made by Peter de Brus, in a charter he granted to his knights and free tenants of Cleveland in 1207 x 1209: ‘if anyone falls into forfeiture, it shall be measured according to his chattels

and according to the offence through which he fell’. Another way of limiting amercements was to set a local maximum, such as the 4os. limit that Thomas Becket claimed was the law of Kent.?””

In some instances the type of procedural wrong generally resulting in amercement might be punished by imprisonment. It is unclear how far imprisonment

was for those who could not or would not pay, although certainly some were released in return for payment.””*

9 CONCLUSION Tackling theft and violence was a major concern for the Angevin regime. New methods were introduced, and modified to maximise effect. There was expenditure, for example on gaols, and also considerable demands on the time not just of officials but of the lawful free men who were vital for implementation.” As in developments concerning land law, an essential element was the integration of local activities and courts with the central, most clearly manifest in the crucial importance of visitations by justices. By the time of Glanvill, the judgment of the most serious offenders, including those accused by appeal, took place at the eyre

not the normal county court, although the latter continued to play a vital role in the earlier stages of cases. At times the justices could act as the guardians of proper procedure,”? and they may also have encouraged standardisation through

*2* See also e.g. above, 725; ‘Staffordshire suits’, 91; Hunnisett, Coroner, 103-11. The coroners’ rolls

were normally taken to be the true version. 22° See PKJ, i. 42-3.

*2° Magna Carta, 20; see also cc. 21, 22; Holt, Magna Carta, 332-4. *27 See above, 403-4; Cartularium prioratus de Gyseburne, ed. W. Brown (2 vols; 86, 89 Surtees Soc., 1889, 1894), i. 93; Lawsuits, no. 421 (p. 441). Note also McKechnie, Magna Carta, 288. *28 See Pugh, Imprisonment, 10-15. *?° For expenditure on gaols even before 1166, see Pugh, Imprisonment, 4. *°° See e.g. CRR, vi. 214-15.

27 THEFT AND VIOLENCE 747 general statements of law: ‘the county cannot contradict the coroners and jurors who spoke their statement on their oath’; ‘a woman has no appeal against anyone except concerning the death of her husband or concerning rape’.*"

There were limits to the extent of royal efforts and to standardisation. Arrangements in border areas remained different; there was, for example, no attempt to universalise frankpledge. Whilst the Assize of Clarendon was enforced in the bishopric of Durham, the king promised that he would not turn the visitations of royal justices into a custom, but ‘the land of St Cuthbert’ would keep ‘its liberties and old customs’.”” Thus liberties were maintained, and lords’ courts also continued to be very important especially regarding lesser offences. Supervision by the eyre of the exercise of liberties such as infangentheof would

remain inconsistent.”* Yet whilst this situation shows the limited degree to which the highest aspirations of royal reformers were achieved, it may also indicate some royal acceptance that local powers remained most effective for dealing with offenders. Judging the success of the royal measures is complicated. There was one clear failure, Henry II's unsuccessful effort to ensure that lay courts dealt with crimes committed by churchmen.” We have cases where lay offenders fled, presumably in fear of royal justices, but their clerical co-criminals remained to face their less feared fate. For laymen, furthermore, flight was normal, and explains the low numbers brought to judgment and convicted.”° Escape by those who had been captured may be a sign of another limit to royal control, the problem of corruption among officials.” However, those who fled or escaped were outlawed, and their goods forfeited to the king. From the royal point of view, and from that of the officials and people of the area that the felon left, this might be considered success.”* From that of the felon’s new neighbours, it was less desirable. How much outright resistance there was to the royal measures is unclear. It is possible that there was some local resistance to the imposition of royal authority, especially imposition that ignored local considerations. One possibility was for *S" Lincs., nos 690, 811; see also no. 764. For limits of standardisation concerning women’s appeals, see above, 722-3. *°? Lawsuits, no. 432 (almost certainly issued between January and March 1166). *23 Surrey, i. 106. *°* See below, ch. 28. *°° See e.g. PKY, ii. nos 321, 322.

*° Tf the accused went to judgment and was acquitted, or if the suspect fled to sanctuary, abjuration might still be considered a success in the effort against crime; see e.g. PKJ, ii. no. 51. *87 See e.g. Lincs., nos 986, 1011. For a corrupt official colluding in inflating charges, see Lawsuits, no. 471.

*°8 Note H. R. T. Summerson, “The structure of law enforcement in thirteenth century England’ (1979) 23 AJLH 313-27.

748 PART III: ANGEVIN ENGLAND jurors to present or recount incidents in ways that got a locally desired verdict accepted by the justices.*° Another might be for families to drop appeals and instead make out-of-court settlements. This conflicted with royal efforts to ensure that offenders were prosecuted, by appeal or presentment. However, there was also some royal acceptance of settlements, in return for payment to the king. The aim again was for royal control, and royal revenue, not the complete over-ruling of other interests. Furthermore, not all parties were desirous of settlement, and sometimes found in the royal courts an additional forum in which to pursue their violent struggles, a tactic restricted but not prohibited by the writ and exception concerning hatred and spite.**° Overall, therefore, the success of the Angevin measures might best be assessed

not against our expectations of full enforcement but by comparison with previous royal efforts. There is no known Angevin parallel to the mass hanging of forty-four thieves in 1124, but that may have been a one-off success against a criminal band. Comparisons with tenth-century royal efforts are extremely difficult because of the absence of Anglo-Saxon case records. What does seem

notable, though, is that the Angevin efforts were sustained. The Pipe Rolls covering the royal initiatives in 1166 and 1176 reveal men fleeing or going to ordeal in numbers not to be repeated in such records. Yet comparison of, say, the figures for Lincolnshire in the 1176 Pipe Roll with those that can be derived from the eyre roll of 1202 suggest that later judicial visitations did have an equal impact. Meanwhile potential offenders might be deterred, if also entertained, by compelled attendance at executions, by the display of outlaws’ heads, or by seeing mutilated offenders.*" Compared with the situation in the reign of Alfred, major developments had occurred in law regarding theft and violence by 1215. Both conceptualisation and administration were concentrated much more on the place of royal authority in relation to serious offences. Royal action through presentment is obvious, but Glanvill is notable in emphasising that even in cases brought by appeal the case was not just the appellor’s but also the king’s.*** Gone was the extensive room that Alfred’s laws had allowed for the aggrieved party to pursue their grievance by direct out-of-court action.

Oaths and ordeals continued to play a very prominent role; there was no simple process of increased rationality. Indeed the Angevin measures may have *°° A possible instance may be PKY, ii. no. 5, although information on the case is limited. See more generally T. A. Green, Verdict according to Conscience (Chicago, 1985). **° See e.g. PKJ, ii. no. 736, Lincs., no. 931; above, 725, 729-30. See also Hyams, Rancor, chs 5-8. **" See Lawsuits, no. 471B, and above, 724, 740-1. Note also the psychological impact of the reforms as shown in Lawsuits, no. 501. *** See above, 721.

27 THEFT AND VIOLENCE 749 increased the role of oath and ordeal by their mass use for presentment. Yet this very extension may have increased questioning not of the theoretical basis but the practical employment. The clearest evidence relates to Forest procedures, but may well apply more widely. Ralph de Diceto wrote, in the context of accusations, of oaths being administered without proper reverence, whilst the tract known as the Pseudo-Cnut de Foresta insisted that ordeal of iron should not be allowed except when the naked truth could not be investigated in other fashion.” Alongside such worries it is clear that many were prepared to pay in order to have their cases settled by jury inquest. The ground was prepared for the general replacement of unilateral ordeal by criminal jury trial after 1215.

**° Lawsuits, no. 480; Ps Cn For, 11. 2. See also above, 733-5, on approvers.

28

Status r \HE Angevin period saw a major dispute concerning clerical status, and significant developments concerning villeinage. The former was produced by deliberate royal action, the latter influenced by legal and judicial developments. Other aspects of the law of status showed little change. Written mentions of trial by peers increased, but the notion was not new, the right not peculiar to one social group.’ Categorisations in administrative measures had limited effects upon wider legal status.

1 MEN OF HIGHER STATUS Earl The position of earl remains very limited in its legal distinction. The number of earls diminished in the years immediately after Stephen’s reign, the only new creation in the Angevin period was that of Winchester for Saher de Quincy in 1207.” The first firm evidence for investiture ceremonies appears, emphasising royal control, although some may have called themselves earl without formal approval.’ Earls had a strong hereditary claim to the office, which could be asserted through

the female line. On occasion, however, the heir was kept waiting for royal confirmation.* Earls had no special administrative role, although some, but not all, received the third penny of the profits of justice in their county.’ Magna Carta in 1215 set the same relief for the barony of an earl and of a baron.°

* See e.g. Magna Carta, 21, 39.

* Bartlett, England, 208. * See Crouch, Image of Aristocracy, 65-75; the ceremonies may considerably predate their first appearance in the evidence. Note also PKJ, i. 5-6. * See e.g. Redvers, 11.

> For the third penny, see e.g. Dialogus, i. 17, ed. Amt, 98; Battle Chronicle, ed. Searle, 78; Book of Seals, no. 40; above, 264, 503. ° Magna Carta, 2; cf. above, 652-3, for Glanvill on the arbitrary nature of reliefs for ‘capitales baronie, which would have included earldoms. See also Sanders, Feudal Military Service, esp. Appx I; Pollock and Maitland, i. 308-9, for the reduction of the relief for a barony to 100m. by the time of Edward I.

28 STATUS 751 Baron The term baron, like barony, had no single, narrow legal definition. The Dialogue of the Exchequer refers to greater and lesser baronies, Magna Carta to greater barons, Thomas Becket’s biographer William fitzStephen to “barons of the second rank’, all suggesting a varied social category rather than a uniform legal one’ A baron might normally enjoy rights of sake and soke, but so could others.’ Glanvill

could use lord and baron apparently as synonyms, at least in some contexts. ‘Baron’ was employed as a resonant word to indicate leading men in a particular context, as in charter addresses, or in the term ‘barons of the Exchequer’, or in the Londoners’ claim that they were barons.”

Knight New judicial procedures led to some sharpening of the distinction between knights and other free men. For example, whereas a recognition of novel disseisin was made by twelve lawful free men, presentments were to be made by twelve sworn knights. Should there be insufficient knights, free men were allowed, but still the distinction

had been made." Men might be stated to lack the knightly status necessary for making a view of land.” The distinction was also significant in a limited range of other contexts, for example imprisonment when answering for debt. However, knights had no special rights regarding tenure, court-holding, or punishment.”

2 LESSER FREE MEN The great mass of the population was made up of the free and unfree peasantry. Free men might be of various types, for example sokemen, gavelkind tenants, or simply free men, but these distinctions primarily reflected tenure rather than more general legal ” Dialogus,ii.10,ed. Amt, 144; Magna Carta, 14; Lawsuits, no. 421(p.444). Notealso Anglo-Norman Dictionary, s.v. ‘baron’; meanings included ‘husband’. * Above, 562; note also Sanders, Feudal Military Obligation, 6-8. > See Glanvill, viii. 11, ed. Hall, 102-3. Note also Walter Map, De nugis, iv. 6, ed. James et al., 314, on knights who were called barons in England. *° See e.g. Mowbray, no. 381; Dialogus, i. 3, 8, ed. Amt, 14, 17; Lawsuits, nos 529-30; John charter for London in 1215, Select Charters, 311. ** See above, 609, below, 753-4. ‘2 Lawsuits, no. 641 (p. 679).

"> See above, 705-6. “* On drengs and thegns in the north of England, see above, 340, 418, 635. The notion that men of

higher rank deserved greater punishment continued to exist, but had little practical effect; see e.g. Dialogus, Prol., ii. 10, ed. Amt, 2, 148.

752 PART III: ANGEVIN ENGLAND standing.” Later thirteenth-century information suggests that only perhaps 40 per cent of landholders, but a significantly larger proportion of the landless, were free."

Freedom, like villeinage, could be treated as a possession.” Take Glanvill’s description of how a man claiming to be free brought proof through his kinsmen who were of such status. Glanvill uses not the singular ‘freedom’ as an abstract quality that they shared, but rather the plural, “freedoms [libertates]’, that is the ‘freedom’ that each of them possessed. Likewise he speaks of a man being ‘in seisin of freedom’. Such phraseology parallels that of the greater man or town enjoying a franchise or liberty [libertas].° In relation to their free lands, chattels, and persons, free men were to enjoy the protection of the law, including appropriate access to the king’s courts. Angevin administration brought some new or increased obligations, for example acting as jurors or recognitors, and gave greater precision to others. The bearing of arms continued to be associated with free status. This is apparent in the Assize of Arms of 1181, in the early thirteenth-century London version of the Leges Edwardi

Confessoris, and in King John’s decree concerning the defence of the realm in 1205. In 1198 a Northamptonshire man rejected a plaintiff's claim that he was a villein; rather he was a free man, one of the proofs of his freedom being that he had sworn the oath to the king ‘for having arms as a free man’..”° However, certainly by the 1220s the distinction between unfree and free seems to have broken down in relation to the bearing of arms and also to taxation.”

3 THE UNFREE Despite increased source evidence, problems remain in uncovering law regarding unfreedom, and changes in that law. The first concerns vocabulary. *? On gavelkind tenants, see Vinogradoff, Villainage, 205-8; also above, 635. On burgesses, see below, ch. 30. ‘® Hatcher, ‘Serfdom’, 7.

‘” For this paragraph, see Glanvill, v. 4, ed. Hall, 55, also discussed below, 763 n. 97; Pollock and Maitland, i. 417-18. *® See above, ch. 22, below, ch. 30. Note also Glastonbury, ed. Stacy, 114, ona relatively minor privilege being referred to as a libertas. *? Select Charters, 183-4, 276-7 (on which see also below, 763); ECfretr, 32 A 9-12. *° CRR, i. 45, 67. *" See esp. Select Charters, 363-4. On the development of villeins having to contribute directly to taxes,

associated with the development of taxes on movables, see Select Charters, 189, 351-3 (noting amongst their exempted goods ‘the arms to which they have sworr), 356 (includes villeins amongst those granting the tax in 1232), 358-9; Howden, Chronica, s.a. 1198, 1201, ed. Stubbs, iv. 46-7, 188-9; Hyams, Kings, Lords,

and Peasants, 152-3. Magna Carta, 30, prohibits sheriffs or royal bailiffs from taking horses or carts of free men for carting, without their consent; villeins were implicitly excluded from this protection.

28 STATUS 753 There was no single term always indicating that a man was of unfree status. Our Northamptonshire man in 1198 pleaded that he was not ‘a rustic nor a serf nor a villein nor born in villeinage’, adding for good measure that he had never done servile works or customary services.”” We use the word ‘villein’ for the unfree, but Roger of Howden could still use villanus for all those below the rank of knight.” The second problem is that of the limits to Glanvill’s treatment of status. He describes actions to determine disputed status, rather than specifying distinguishing features of unfreedom or freedom. Furthermore, he was writing at a time when the law of villeinage was changing markedly.** A third problem is more general. The relationship between economic and legal status, as well as between economic and legal change, was complicated.* Heavy labour services were characteristic of villeinage tenure and status, but commutation did not lead to a change of status.”° Yet despite these difficulties, it is clear overall that unfree status became more precisely defined in the Angevin period.

As in earlier chapters, let us examine in turn the standing of the unfree in relation to the king, to others, and to their lord.”

In relation to the king Villeins might participate in various tasks associated with royal administration. Representatives of vills involved in the assessment of a tax in 1198 might be either

free or rustici.”* Villeins were to be in frankpledge and might also be involved in the communal accusation of offenders.” The text of the Assize of Clarendon referred to accusations being made by twelve of the more lawful men of the hundred and four of the more lawful men of the vill. The phraseology was different

in the text of the Assizes of Northampton summarising the arrangements that had been made at Clarendon: there it was stated that accusations were to be made through the oath of twelve knights of the hundred or of free lawful men if knights were not available, and through the oath of four men of each vill of the *? CRR, i. 67. See also PKYJ, iii. no. 903, which pairs consuetudinarius and villanus, and no. 959 which seems to use nativus and villanus as equivalents. *® Gesta regis Henrici secundi, s.a. 1175, ed. Stubbs, i. 94. ** Hyams, Kings, Lords, and Peasants, 223.

*° For judicious discussion of possible connections, see Hyams, Kings, Lords, and Peasants, 255-8, Hatcher, ‘Serfdom’, 34-6. *° See e.g. Poole, Obligations of Society, 27-8, although note the qualifications.

*” See also below, 762-3, on the ‘relativity’ of villeinage in mediaeval sources. On the limits to any special position enjoyed in this period by villeins on current or former royal demesne, see Hoyt, Royal Demesne, ch. 6, esp. 194-7. *® Howden, s.a. 1198, ed. Stubbs, iv. 46. *° On frankpledge, see above, 717.

754 PART III: ANGEVIN ENGLAND hundred. It seems that the four men, unlike the representatives of the hundred, might be either free or unfree.° However, villeins should not, for example, act as jurors in the new royal land actions, and we have a few instances where villeins were excluded from acting in juries or recognitions.” The number of such exclusions is limited, but this may indicate that jurors were normally selected from those who were clearly free men. If so, both the selection process and the exclusions were likely to embed the importance of the distinction between free and unfree. Similarly the unfree may not have been allowed to make proof on behalf of others, at least outside manorial courts.”

In relation to others Glanvill explicitly states that villeins could bring criminal accusations by appeal,” and they also had to answer accusations, be it by appeal or presentment.‘ It seems that they could engage in trial by battle. Only if they were too old or too seriously

injured to fight did Glanvill provide a different process from that for free men; both groups went to ‘God’s judgment’, but the free man by hot iron, the villein (rusticus) by water.®

Villeins were not to bring land pleas in the king’s courts.*° Late in Richard I’s reign, novel disseisin brought by Ralph Cloer was unsuccessful because he was a villein; he was placed in mercy for false claim.” Assizes could indeed develop into arguments concerning the status of one party, for example when a tenant in mort dancestor objected that the claimant was his villein.** From the lord's perspective, there were two main concerns if his villein brought a land claim in the king’s court:

°° Select Charters, 170, 179. See also Hunnisett, Coroner, 15, on the coroner’s inquest. ** See Three Rolls, 38-9, RCR, i. 306, 312; Lincs., no. 166; CRR, iii. 276; vii. 26; vii. 288.

*? See Glanvill, v. 5-6, ed. Hall, 57-8; Hyams, Kings, Lords, and Peasants, 128-30. °° Glanvill, xiv. 1, ed. Hall, 173. A lord might have an action for his loss through injury that a third party had done to his villein, but this did not differ from his rights in relation to injury done to his free servant; see Bracton, fo. 155, ed. Thorne, ii. 438-9. ** See below, 759-60, on the Dialogus; Hyams, Kings, Lords, and Peasants, 131-2. °° Glanvill, xiv. 1, ed. Hall, 173. Unfortunately the plea rolls rarely state whether the person undergoing

ordeal was free or unfree, so it cannot be certain whether Glanvill’s statement represents consistent practice.

°° Although the precise circumstances are unclear, such a limitation appears to have been in existence by 1170, and to underlie the entry in PRI6HII, 149: men of the abbot of Peterborough at Quadring, Lincolnshire, were amerced “because they invoked the assize as free men and they were rustici. See also above, ch. 23, for royal actions concentrating on free tenements, ch. 24, for villeins not holding free tenements. °” RCR, i. 153-4. Note also ‘Staffordshire suits’, 110. °® See e.g. PKJ, iii. no. 959; note that the issue of status was not raised in PKJ, iii. no. 905, involving

the same parties.

28 STATUS 755 first, if the court heard the claim, it might establish the plaintiff’s position as a free man;*° second, the villein was treating land as if it were his own free tenement.’ It was the lord who should answer claims regarding his villein's lands. The lands were

his free tenement, and he should have the opportunity to defend them in court. The claimant who had brought a claim against the villein might be sent to obtain a new writ, naming the lord as the holder of the free tenement." The lord's objection was recorded in terms sometimes of tenure, sometime of status. Reference to tenure may normally come when a free man was holding in villeinage. However, no universal explanation is possible, because sometimes both status and tenure are mentioned in the same entry.” Rather, parties may have chosen to raise the issue of status or tenure according to which seemed more favourable to them, or perhaps had no great concern as to which issue was raised.

In relation to their lord Villeins’ lands and services have already been considered;* here the focus is on the lord’s control of his villein’s person and movables. In the king's court in 1205, Werric de Marines sought Ralph son of Segar as his villein, as the son of Segar his villein who had died as his villein; the record, and no doubt the plea, hammers home the point by repeated use of the word. To prove that Ralph was a villein, Werric produced relatives of Ralph, who recognised that they themselves were villeins. Ralph denied his villeinage, and said that he was a free man and freely held from Werric one virgate of land, which had been his father’s, and concerning which he had done Werric homage as a free man and as one holding freely. He showed a charter of Werric’s brother Hugh, which witnessed that Hugh had granted Ralph a virgate of land for Ralph and his heirs to hold by service of 4m. a year for all service pertaining to him. Ralph also raised objections concerning the significance of the testimony of the villeins whom Werric had produced, and produced others who backed his claim to be a free man. He concluded by saying that he himself had been the man [homo] of Werric’s father, and then of Werric’s brother Hugh, and then of Werric, and that his father had held freely and had died free and not a villein. Concerning this he placed himself on ‘a lawful inquest’, and offered “4m. for this. Werric countered °° Note also the argument that a man was a villein and could not make a chirograph in the king’s court; CRR, ii. 238; see also below, 762 n. 90, on Lawsuits, no. 653. 4° See PKJ, iv. no. 4072. “ See e.g. PKJ, iii. no. 826; CRR, vii. 228. In e.g. PKJ, iii. no. 863, iv. nos 4188, 4217, 4234, it is only

stated that the assize stand over, no mention of a further writ being made. “* For both being mentioned, see CRR, vii. 228. *° Above, 663-7.

756 PART III: ANGEVIN ENGLAND Ralph's arguments and witnesses, placed himself on a jury of the country, and offered 1m. for an inquisition. The parties agreed to this, and a day was set when the jury would come with their verdict. Werric returned to Ralph the cattle [averia] that he had taken. Despite his elaborate defence, Ralph then defaulted and Werric was allowed to go sine die.** Perhaps Ralph had realised he was going to lose, or perhaps a settlement had been made out of court. The case anyway illustrates many points, notably the mixture of tenure and status, the importance of suit of kin as a form of proof, and the royal jurisdiction over cases concerning freedom.* The personal tie between villein and lord had particular characteristics. Within the context of the manorial court, villeins had various rights and obligations, for example acting as presenters and jurors.*° However, the relationship did not involve the mutual obligation encapsulated in homage, and actions de homagio capiendo could be defeated on grounds of villeinage status or tenure.” A lord could grant or sell his villein to another. According to Richard fitzNigel, ‘villeins,

by the law of the realm, not only can be transferred by their lords from those [lands] that they currently possess to other places, but also are lawfully [licite] sold or disposed of [distrahuntur] in any fashion’.** Charters record such transfers,” which are also mentioned in plea rolls.°° The amounts paid varied widely, from a few shillings up to 5m. Such sales appear to have been different from those that earlier took place in slave markets, both in setting and in their connection to land

transactions. However, people also sought to distinguish them from the attornment of a free man’s services.” A party in a case in 1205 stated that he was a free man, and denied that a third party had sold or could sell him

** CRR, iv. 22,54; Rot. de ob. et fin., 247, 277; PR7J, 195; note also PR8J, 235; for comment, see Flower,

Introduction, 233. For a genealogical table, see H. M. Cam, ‘Pedigrees of villeins and freemen in the thirteenth century’, in her Liberties and Communities, 124-35, at 132. *° See above, 754-5. Note, though, that it was possible to associate types of service with status; see e.g. Jocelin, Chronicle, ed. Butler, 99: “before the town [of Bury St Edmunds] was free, all were accustomed to reap like villeins [servi]’. *° Hyams, Kings, Lords, and Peasants, 155. See above, 663-7, on land, below, 759-61, on chattels. *” CRR, ii. 131; iii. 141; iv. 259. There are late twelfth and thirteenth century charters granting the homagium and the sequela of a villein, but these may be using homagium with reference to a somewhat different form of subjection than we commonly mean when using the term homage; see Hyams, Kings, Lords, and Peasants, 12-13, and also e.g. RCR, ii. 44. *® Dialogus, i. 11, ed. Amt, 86; cf. Amt, 90. * See e.g. Danelaw Documents, no. 273, Cartulary of Missenden Abbey, no. 268. °° See e.g. CRR, iii. 325; iv. 37; v. 49-50; v. 94. >" See Kaye, Conveyances, 346-54; also above, 424.

°? See further Hyams, Kings, Lords, and Peasants, 5-8. Note also that, like lands, villeins with their tenements could also be gaged for a term; see CRR, iii. 299-300. °° CRR, iii. 325.

28 STATUS 757 The villein was not free to marry without paying for his lord’s permission. Even in the late twelfth and the thirteenth centuries free men might owe their lord a payment to marry, but in general seignorial control of marriage had become associated with servility>+ Obligation to make the payment known as ‘merchet’, for permission for a daughter to marry, was used in royal courts as an indicator of unfree status or tenure, whilst a survey from around 1200 states that ‘a free man shall give his daughter in marriage with [the lord’s] permission but shall not pay; the unfree shall pay.* In grants and agreements, a villein was said to be transferred with his sequela, a seemingly demeaning term for his descendants.*° According to Glanvill children born from the villein man of one lord and the villein woman of another were to be divided proportionately between the lords.” Such marriages may have been most common in villages of divided lordship, and presumably the villein family might continue to form one household but carry out service for different lords.*

Villeins were not allowed to leave their land, at least without the lord’s permission, and manumission grants emphasised the newly freed man’s liberty to go wherever he pleased. Lords might often get royal aid to retrieve villeins who had fled, and must also have employed self-help.°° The Constitutions of

°* See e.g. Kalendar of Abbot Samson, 6, for the ability to give daughters without a payment referred to as gersumium being a characteristic of aman who held more freely than some other free men. Note also e.g. CRR, v. 198-9. See further Hyams and Brand, ‘Seigneurial control of women’s marriage’, 130-3; Hyams, Kings, Lords, and Peasants, 187-90. Merchet need not always have been demanded for all villein marriages; Searle, ‘Seignorial control of women’s marriage’, 24, argues that in practice it was a demand made on the more propertied peasants, not on most cottagers. It may be that at least theoretical seignorial discretion as to the amount charged was a further characteristic of villein payments relating to marriage; note statements in a case in 1228, CRR, xiii. no. 508, Hyams, Kings, Lords, and Peasants, 199-200.

°° Charters and Custumals of the Abbey of Holy Trinity Caen, ed. M. Chibnall (NS 5 British Academy Records of the Social and Economic History of England and Wales, 1982), 75. Note CRR, ix. 337, from 1220, where a lord makes explicit the requirement for permission for the marriage of a villein’s daughter. See below, 780-1, on control of marriage of heiresses. °° See e.g. CRR, vi. 101; also Pollock and Maitland, i. 380-1. Sequela was also used of the king’s

mercenaries in Magna Carta, 50. On this, and the possibility that Gerard d’Athée, the leading mercenary, was of unfree birth, see Pleas of the Crown of the County of Gloucester, xiii-xiv. °? Glanvill, v. 6, ed. Hall, 58. °® Cf. the more brutal interpretation in Brand and Hyams, ‘Seigneurial control of women’s marriage, 129-30. They also note that the text known as ‘Glanvill revised’ referred to this as jus antiquum; for the dates of the revisions made by this text, see Tullis, “Glanvill after Glanvill, 81-111. >? See Hyams, Kings, Lords, and Peasants, 31-2. For restrictions earlier extending beyond villeins,

see Hyams, Kings, Lords, and Peasants, 236-7. Note also CRR, iii. 143, for the tenant’s son’s inability to leave the land without the chief lord’s agreement apparently being taken to indicate unfree tenure. °° For lords obtaining royal aid, see e.g. Royal Writs, nos 114-23; Cirencester Cartulary, i. no. 68; PR28HII, 63; also below, 764. On self-help, see below, 758.

758 PART III: ANGEVIN ENGLAND Clarendon laid down that the sons of rustici should not be ordained without the assent of the lord of the land where they were known to have been born.” Again the purpose must have been to stop the lord losing rights over peasants, or to ensure profit from the right to license behaviour in return for payment.

Flight and failure to perform services were circumstances in which a lord might imprison his villein, and various imprisonment cases turn on whether the prisoner was free or unfree.” In 1203 it was reported that a man had complained

to the sheriff that another had imprisoned him and taken away his chattels, whereas he was a free man and the free tenant of a third party. The alleged wrongdoer responded that he took the man justly “as he who was his villein and whose

chattels were his own’, and he produced villeins who were from the plaintiff's kin [progenie], through whom he was prepared to show that the plaintiff was a villein.* The means of restraint varied, with stocks being seen as less severe than shackles. In a case of 1212 a defendant stated that he had sought to find pledges that his villein would not flee, but had been unable to do so. He therefore seized him and placed him in the stocks, but not in shackles; the man was his villein and it was the custom to place a villein in the stocks. It is uncertain whether a lord could whip his villein, but certainly he would be punished for killing or maiming his unfree man.®

Unfreedom passed down generations, but what of offspring from marriages between free and unfree? The canon law position as expressed in Gratian was that the children took on the lower status.°° Glanvill adopted a similar position, although his formulation is somewhat awkward.” The case evidence suggests °' Constitutions of Clarendon, 16. Poole, Obligations of Society, 28, points out that it may not only have been the unfree who needed seignorial consent to enter religion.

°’ For a villein being chained because he allegedly wished to flee, see also PKJ, ii. no. 284; the villein was disputed between the complainant and the king. For services, see e.g. CRR, vi. 106-7, discussed further, below, 767. Note also e.g. PR2IHII, 178; CRR, i. 264, where men brought a complaint of wrongful imprisonment, and the alleged wrongdoers said that the complainants were villeins of their lord, who had fled during a dispute and then been seized and held; CRR, iv. 305-6, where a man was arrested when he brought the king’s writ into his lord’s court, the question thereafter turning on status. See also above, 716. °° PKYJ, iii. no. 972.

°* CRR, vi. 349-50. °° Pollock and Maitland, i. 415; Hyams, Kings, Lords, and Peasants, 139-41. °° C. 32 q.4c¢. 15. However, the law had changed by the time of the Decretals of Gregory IX (1234) see X 1.18.8, which places the emphasis on the mother’s status, specifying as free the son of an unfree father and a free mother. °” Glanvill, v. 6, ed. Hall, 58; his awkward phraseology may result from his concern with the effect on the husband rather than on the children. See also Hyams, ‘Proof of villein status’, 732-3. Bracton

would develop a more elaborate scheme but in the later thirteenth century Britton and Fleta simply had the child take the father’s status; Pollock and Maitland, i. 422-3, Hyams, Kings, Lords, and Peasants, 176-8, and above, 423.

28 STATUS 759 that the position was less clear-cut. Some cases prioritise paternal status, and in one instance a claimed villein may have dismissed the suit of maternal kin as irrelevant; however, the argument does not appear to have been decisive, and the villein later lost his case by default.®* In another case Roger de Toeny sought

a certain Osbert as his villein. Roger produced villein kin of Osbert’s mother, but Osbert produced free kin of his father. He won the case, as Roger’s attorney brought no suit from the part of Osbert’s father in order to convict him.®? Here paternal status seems vital. However, William son of Simon of Sandford, in defeating the claim of William of St Faith, precentor of Wells, relied in part on the suit of his maternal uncle whom he said was a free man” In other cases too, parties clearly considered it worthwhile to produce maternal as well as paternal kin’' Complexity might be increased by a series of intermarriages, and in some cases lack of definitive proof may have combined with lack of absolute certainty on law to render judgment very difficult.” Additionally, some local variation may have continued. A passage in Bracton says that the custom in Cornwall explained the outcome when a free man married an unfree woman, in a free tenement and a free bed; if they had two daughters, one would be free, the other villein, since there the children were shared between the free father and the lord of the villein wife.”

What of the relationship of lord and villein to chattels? In dealings with the king, villeins’ chattels were sometimes treated as their own.” According to the Dialogue of the Exchequer, a villein [ascriptitius], like any other, could owe the king a debt for wrongdoing, so presumably it was conceivable that he would have the means to pay.” Any man, including the villein [servus] of a lord, who fled royal justice was to forfeit all his movables to the royal treasury.”° However, this was troublesome to the pupil in the Dialogue, as he had previously been told that the villeins’ lords were rightly considered lords of both their chattels and their bodies; why then should the lord lose possession when he had

°° See above, 755-6, for the case of Werric and Ralph. °° CRR, iv. 128; genealogy in Cam, ‘Pedigrees’, 132. ”° CRR, iv. 195-6; genealogy in Cam, ‘Pedigrees’, 133. The plea roll reference to the claimant as William ‘without Faith’ may indicate that his reputation worked against him. ™ See e.g. CRR, iii. 325; genealogy in Cam, ‘Pedigrees’, 131. ” See e.g. CRR, iv. 305; genealogy in Cam, ‘Pedigrees’, 134. ”* Bracton, fo. 271, ed. Thorne, iii. 293.

” See further Hyams, Kings, Lords, and Peasants, ch. 3. ”” Dialogus, ii. 13, ed. Amt, 160. Dialogus, i. 10, ed. Amt, 80, equates ascriptitii with villani. On ascriptitii in Roman law and English texts, seealso Hyams, Kings, Lords, and Peasants, ch. 8; Jocelin, Chronicle, ed. Butler, 33, 143-4. Note also e.g. Howden, Chronica, s.a. 1198, ed. Stubbs, iv. 47, on the treatment of any villein [rusticus] who perjured himself in the assessment of the 1198 carucage. ’° Dialogus, ii. 10, ed. Amt, 146.

760 PART III: ANGEVIN ENGLAND done nothing wrong? Should not the movables, as well as land, go to the lord? The Master could not give an answer based on the logic of chattel ownership, and was clearly troubled to explain the situation.” The normal preferred position in the Dialogue is that the lord had rights to the villein’s chattels; once a debtor's own goods had been sold to raise money to pay a debt to the king, the chattels of his villeins were to be sold, first goods other than plough animals and finally plough animals. This distinguished them from the goods of others, although this distinction the Master describes as a development within his own lifetime.’* Thus royal legislation before 1179 was distinguishing the rights of the unfree from the free, to the disadvantage of the former. Glanvill also closely associates the villein’s chattels with his lord. If, in a case

concerning status, judgment went against the man who maintained that he was free, ‘he shall be adjudged to his lord with all his chattels’. Likewise, according to Glanvill, a villein’s chattels were understood to be under the control of [in potestate] his lord in such a way that he could not redeem himself from villeinage against his lord with his own money.” Glanvill also uses the phrase in potestate concerning the husband’s control of his wife's dower during her lifetime; it may not equate with the greatest conceivable right over property, but does indicate control in the particular context.*° Lords might put their position more firmly, for example stating that a claimant ‘was his villein...whose chattels were his own’. Such a position might be forcibly pursued. Richard son of Robert of Somercotes was appealed by William son of Hawise concerning breaking into his house, robbing him of 20s., some clothing, 25 hens, and 20s. worth of grain, and wounding him in the head. Richard denied the breach of the king’s peace, housebreaking, wounding, and robbery. Rather, he had gone to the house as to his own house that had escheated into his hand from his deceased villein, Roger. He had taken certain chattels that had been his villein’s, and were his after the villein’s death. He offered 20s. to the king to have an inquiry whether this was so. William did not deny that Richard might justly have treated a villein’s goods thus, but denied that the house or chattels had been Roger's and said that they were his own. The jurors, when questioned, said that Roger held that house in villeinage from Richard. The coroners and the county added that William had shown them no wound before now, and that the wound

”” Dialogus, ii. 10, ed. Amt, 150-2. ”® Dialogus, ii. xiv, ed, Amt, 166; note Hyams, Kings, Lords, and Peasants, 21-4. See also above, 704,

particularly on the exceptional arrangements concerning scutage. ” Glanvill, v.5, ed. Hall, 57. °° Glanvill, vi. 3, ed. Hall, 60. 8! PK], iii. no. 972, above, 758.

28 STATUS 761 was recent. Not surprisingly, therefore, judgment went in favour of Richard.” This case shows a lord seeing as his own chattels that his villein had had before death. At the same time, it indicates that a lord might treat the chattels as the villein’s during the latter’s lifetime. This suggests that when a lord distrained his villein’s chattels, or took tallage, or amerced his villein, he was treating those chattels as belonging to the villein rather than simply revoking a personal arrangement or taking what was his anyway. Also, as we have seen, a villein could bring a case for theft. Chattels might pass down villein generations, and there is some evidence for villeins making testamentary bequests.® The relation-

ship of villein and chattel, therefore, was seen as one in which the villein had significant rights, even if it was not protected by an action in the king’s court against wrongful seignorial distraint.*4 Becoming free

The villein might become free in various ways. He could live in a privileged town for a year and a day, perhaps having to be accepted as a burgess or member

of the gild merchant.* Villeins were not supposed to become monks or enter holy orders, but, if they did so, such entry could not be reversed and they lost their villein status.*° A lord might perhaps also make his villein free by treating him as such, for example producing him as his free man to wage law in a royal court.” More commonly, a lord explicitly granted his villein freedom.** Such an act should be public, and an early thirteenth-century London text states that the person wishing to make his servus free was to ‘hand him over [tradet] to the sheriff by the right hand in the full county court.*® The careful freed man would

*? Lincs., no. 561.

°° See Hyams, Kings, Lords, and Peasants, 69-70. ** Note Maitland’s comment that ‘the serf’s condition seems better described as unprotectedness than as rightlessness’; Pollock and Maitland, i. 417, and see also i. 430. *° See Glanvill, v. 5, ed. Hall, 58; Hyams, Kings, Lords, and Peasants, 168-9; below, 840-1.

°° See Pollock and Maitland, i. 429; also above, 758. Note also Walter Map, De nugis, i. 10, ed. James et al., 12 on the unfree bringing up their children in the liberal arts, which were not allowed to them. *” See Bracton, fo. 194, ed. Thorne, iii. 94.

°° See above, chs 8, 17, for manumission in earlier periods. From the Angevin period, see also Magna vita Sancti Hugonis, ii. 5, ed. Douie and Farmer, i. 61. See further P. R. Hyams, ‘La joie de la liberté et le prix de la respectabilité’ (2006) 164 Bibliothéque de l’Ecole des chartes 371-89. °° Wlart Lond. retr., 15. The text is a version of legislation attributed to William I and modifies an account in the Leges Henrici; for the Leges Henrici version, see above, 426.

762 PART III: ANGEVIN ENGLAND obtain a manumission charter, a few examples of which survive from this period.” According to Glanvill, ‘a lord, wishing [the man] to be brought to freedom from his villeinage by which he is held as subject to him, may quitclaim him from himself and his heirs. Or he may give or sell him to another for freeing’? However, the villein could not seek his freedom through his own money, because his chattels were under the control of his lord and therefore his lord could recall him to villeinage, according to the law and custom of the realm [secundum jus regni et consuetudinem|]. In part for this reason, a third person needed to be involved, to make a payment with his own money to the lord. According to Glanvill, both quitclaim and third-party payment gave the freed man perpetual protection against his lord and his lord’s heirs, so long as the freed man could prove it in court.” According to Glanvill, however, such procedure only made the villein free to

this extent against his lord and heirs, not regarding others. The former villein could not ‘be produced in court to make any deraignment or to make any law of the land’, that is make proof or wage law, even if he had been made a knight since being freed from villeinage.” This limitation raises the question of whether manumission ended villeinage in relation to all or only in relation to the lord.”

No certain answer can be given. It is possible that an inability to make proof was the sole limitation upon the freed man, and it was this restriction alone that led Glanvill to make the point about the lord not being able to free his villein in relation to others as he could towards himself. The giving of arms may have formed

a part of a manumission ceremony, indicating that the recipient was a free man not simply against his lord.% Likewise, a charter of Emma of Dummart promises with regard to her former villein that ‘if anyone shall claim [calumpniabit] him,

90 S * . e .

ee esp. Madox, Formulare Anglicanum, no. 754. Lawsuits, no. 653, shows a fine involving manumission being made before the chief justiciar; this might raise the possibility that a villein could make a fine in the royal court, but it is possible that the man had been freed prior to the fine, and that the document was made to record not only the manumission but also further arrangements concerning lands; see RCR, ii. 44. °* Glanvill, v. 5, ed. Hall, 57; see also e.g. Madox, Formulare Anglicanum, no. 754; CRR, v. 77. On the possible forms of proof, see below, 765-6. An alternative method of getting around the issue of the villein’s doubtful right to chattels might be for the man to be freed and then to have to make payment in the form, for example, of an annual render. This consideration may underlie the document printed in Poole, Obligations, 34. Note further Lincs., no. 423. *? Glanvill, v.5, ed. Hall, 57-8.

°° Pollock and Maitland, i. 428 and Hyams, Kings, Lords, and Peasants, 119-21, both favour the position that Glanvill saw manumission only as granting freedom towards his lord and the lord’s heirs. Cf. Vinogradoff, Villainage, 86-8. Note RCR, i. 153-4; also, more generally, Hyams, Kings, Lords, and Peasants, 89-107, on Bracton’s views of the ‘relativity’ of villeinage. °* Note also the suggestion in Pollock and Maitland, i. 428, that Glanvill here ‘had in view acts of enfranchisement which were merely private and would not have denied that there were solemner methods by which absolute freedom could be conferred’. °° See above, 752.

28 STATUS 763 I and my heirs will warrant him against all men’°*° However, such a clause also

shows concern about potential third-party challenge. Underlying Glanvill’s statement that a lord could not free his villein in relation to others as he could towards himself may have been not a general limitation on the effect of manumission but rather the possibility that a third party might claim that the man was in fact his villein.”

It was also possible for freedom to be surrendered or lost. According to Glanvill, “if a free man marries a villein for any villeinage [tenement], as long as he is bound thus by that villeinage he loses the law of the land like a villein.** This may again refer primarily to matters of proof and not indicate that the free man henceforth was subjected in all aspects of villeinage status. Setting aside marriage, it should be possible for a free man to hold villeinage lands, although in practice performance of the types of service that the land owed might endanger his status.'°° In addition, in 1205, it was laid down that if a landless knight, serjeant, or other withdrew from the muster against foreign invasion, he and his heirs should be made unfree [servi] in perpetuity, and render each year 4d. from their heads." How exactly such a measure was put into practice, and the legal consequences for those affected, is uncertain.

4 ACTIONS CONCERNING STATUS Questions of status might arise because of a man’s duties to the king.’ For example, men were rejected as recognitors because they were villeins. However,

°° Madox, Formulare Anglicanum, no. 754. °” Such a situation might arise if, for example, a man freed a villein, but then lost to a successful challenger his inheritance, which had included that man. See also the statement in Glanvill, v. 4, ed. Hall, 56, following discussion of procedure in cases de libertate probanda: ‘when freedom has been sufficiently proved in court, then he, concerning whose liberty there is dispute, is absolved and shall be perpetually freed from the claim of that man who claimed him for villeinage’. °® Glanvill, v. 6, ed. Hall, 58.

°° See above, 762-3. *°° Holding villeinage land in theory did not necessarily lead to a change of status, but see Kaye, Conveyances, 356-7, for documents that suggest the possibility of men voluntarily becoming villeins in return for land. Note also Hyams, Kings, Lords, and Peasants, 111. Increasing care to distinguish status and tenure is displayed in Magna Carta and its reissues, above, 663-4. See also above, 752, on John’s decree of 1205 concerning landless men who failed to join a muster against foreign invaders. *°! Select Charters, 276. *°* Ttis possible that men claimed to be unfree in order to avoid public obligations such as serving

on juries, but, if they did so, we do not know how the king’s officials pursued cases against them in this period. Nor do we hear what happened if a man was to serve on a jury, but his status was in question; presumably it was for his lord to come forward and claim him as a villein.

764 PART III: ANGEVIN ENGLAND we do not hear about ensuing status cases. Rather, the evidence of Glanvill and of the plea rolls concerns actions between lord and alleged villein. Lords could exercise some self-help to regain villeins who had fled,'°? but status was a matter for courts and in particular the king's court. The writ De nativis appears not in Glanvill’s book on status, but in a later book, amongst writs from the king addressed to the sheriff: I order you that justly and without delay you cause R. to have M. his villein [nativus] and fugitive, with all his chattels and with his whole family [sequela], wherever he shall be found in your jurisdiction, unless it be in my demesne; who fled from his land after my coronation. And I forbid that anyone unjustly detain him, on my forfeiture.’

Lords had long had resort to royal writs to regain fugitives. Early in Henry II's reign writs started to specify that the fugitives were nativi, emphasising the focus on status and perhaps birth. Unfortunately Glanvill does not accompany the writ with a discussion, but the start of his book on status treats one possible aspect. Here Glanvill talks in terms of a dispute between two lords over possession of a villein, a question that might arise from the issue of flight. The plea was to be held

in the county court, and he promised but never provided a further discussion.’ Plea roll evidence is limited, but in a case of 1201 begun by appeal the question arose whether a villein belonged to the king or William de Ros; the record tells us that, ‘as is the custom in Cornwall’, the issue was decided by a jury of twelve men, assembled at the sheriff's order.’°°

Glanvill concentrates on the possibility that the procedure regarding a disputed

villein would be interrupted by the issue of status being raised in the sheriff's presence in the county court; by the beginning of the thirteenth century the writ's primary purpose seems to have been to bring seignorial claims concerning status rather than flight. According to Glanvill, the alleged villein had to give security to the sheriff that he would show that he was a free man. The plea [loquela] was then to ‘come to a halt [remanebit] in the county court, since the sheriff ought de jure not to involve himself further concerning that plea.’” In a plea of 1204, originating with a complaint of false imprisonment, when the issue of status was raised ‘the sheriff and the county placed that suit to the coming of the justices, because it

*°° Note Cartulary of Missenden Abbey, no. 268; also Hyams, Kings, Lords, and Peasants, 30. *°* Glanvill, xii. 11, ed. Hall, 141-2. For comments on the significance of the form of the writ, and

on its development under Henry II, see Royal Writs, 338-43; Brevia placitata, cxlii-cxliii; Hyams, Kings, Lords, and Peasants, 228-30. *°° Glanvill, v. 1, ed. Hall, 53-4; see also above, 552. 106 PK], ii. no. 284. See above, 759, for another reference to the custom of Cornwall. *°” Glanvill, v.1, ed. Hall, 54. See also Hyams, Kings, Lords, and Peasants, 163. On the issue of status being raised in the context of another dispute, see CRR, i. 263.

28 STATUS 765 was not in their power to hold that plea°* As Glanvill had said at the start of his treatise, the ‘question of status’ was a plea to be determined only in the court of

the lord king.’ Glanvill goes on to say that if the sheriff persisted in hearing the case, the alleged villein was to take his claim to the king’s justices, and have a writ placing the case in the king's court before the justices."° In the meantime, the alleged villein was to have peace. It is possible that such a writ was also available for the villein who wished to initiate an action to prove his freedom rather than just in the course of a plea of naifty, or that slightly different writs may have been available for different circumstances. The writ that Glanvill does give, in the context of the alleged villein responding to a claimant, again was addressed to the sheriff: R. complains to me that N. drew [trahit] him into villeinage, whereas he is a free man, so [ut] he says. And so I order you that if the said R. will give you surety concerning prosecuting his complaint [clamor], then you are to set that suit [/oquela] in the presence of me or my justices on a specified day, and meanwhile you are to cause him to have peace concerning this. And summon through good summoners

the said N. that he may then be there to show wherefore he unjustly drew him to villeinage.™

If both parties appeared in court, the man claiming freedom was to produce several close relatives from the same stock as him, ‘through whose freedoms, if they were recognised or proved in court’, he would be freed from the yoke of servitude. If the free status of those produced was contradicted or doubted, resort was had to the verdict of the neighbourhood [visnetum] as to whether they were free men or not. The party alleging that the man was a villein was likewise to produce villeins who were of the claimed person's stock. If those produced by the two sides were accepted as common relatives, the neighbourhood was to decide who were closest relatives and judgment was to be made accordingly. The neighbourhood had a similar role if those produced by one side were denied or doubted as relatives. If successful in his proof, the man whose freedom was disputed would be quit and free forever from the claim of the party who claimed

him for villeinage; if unsuccessful, he, together with his chattels, would be adjudged irrevocably to his lord.

‘8 PKY, iii. no. 972. *°? Glanvill, i. 3, ed. Hall, 4.

‘’® For this paragraph, see esp. Glanvill, v. 1-4, ed. Hall, 54-6. On the writ, note also the discussions in Brevia placitata, cxliv, Royal Writs, 343-4, Hyams, Kings, Lords, and Peasants, 165-6. On suit of kin, see Hyams, Kings, Lords, and Peasants, 171-6, and the cases cited above, 755-6, 759. ‘Procedure if a party did not appear was to be as in land cases, on which see Glanvill, i. 10-32, ed. Hall, 7-21, and above, ch. 23.

766 PART III: ANGEVIN ENGLAND Suit of kin was the usual proof in status cases, but other methods might be used.’” Proof concerning manumission could be made by charter or other lawful means, even battle provided a suitable witness who had seen and heard him being

freed was willing to prove his freedom in court, contrary to the other party’s denial.’’ In 1214 the issue of tenure and status arose in a plea of unjust distraint and detention of distrained goods. The plaintiff denied villeinage and said that he was a free man and ought to hold freely and that his ancestors had held thus. The defendant offered to deraign against him by a certain free man of his, that is he offered battle. If this did not suffice, he offered the king 1m. to have an enquiry concerning the services whereby the lands had been, were, and should be held."4 In other cases, too, one or both parties made an offering to have an inquest as to status."* According to an early plea roll, the sheriff of Lincolnshire indicated through his writ that enquiry had been made through lawful knights of the county regarding the kin of a certain man, ‘whence he ought to be a villein; however, there appears to have been some doubt about the procedure, as Geoffrey fitzPeter was to be asked whether or not he wished to warrant the enquiry.”®

The development of a sharply defined distinction between free and unfree status was rendered difficult by the varied degrees of customary and socio-economic freedom and obligation particularly towards lords but also towards others.’” Even in plea rolls we get reference to the more or most free men [liberioribus hominibus| of a county."* As we have seen, there are also limits to the coherence of the treatment of villeinage provided by the Dialogue of the Exchequer and Glanvill."° Given the complexities of genealogy and possible uncertainty about rules for the descent of freedom and villeinage, one may wonder if a significant number of people did not know whether they were free or villein until they were asked in a law case or administrative enquiry.

*™* Note also prior judgment asa form of proof; see e.g. RCR, i. 84, 153-4, 366; Hyams, Kings, Lords, and Peasants, 171-3. Regarding pleas when a man placed in villeinage claimed freedom, Glanvill states

that battle had no place for proving or disproving freedom from birth; Glanvill, v. 4, ed. Hall, 56. ® Glanvill, v.5, ed. Hall, 57. *™* CRR, vii. 104.

*? See e.g. CRR, i. 264 (where the alleged villeins say that their ancestors had been free since the Norman Conquest), 383 (the alleged villeins default); ii. 93 (jury regarding status of plaintiff granted on request of defendant in novel disseisin), 132 (parties come to agreement); iii. 325 (note the request as to the composition of the jury), iv. 37; iv. 22-3 (on which see above, 755-6); iv. 234. **° CRR, i. 278.

“7 See also e.g. Hatcher, ‘Serfdom’, 8-9. Note also above, 663-6, on tenure; also 663 on free men holding villeinage tenements. *T® See CRR. i. 465.

"'? See above, e.g. 758-60, 762-3; also Hyams, Kings, Lords, and Peasants, 244-6.

28 STATUS 767 Nevertheless, the Angevin period did see a sharpening in the legal treatment of status. Cases might be adjudged against a claimant on grounds of status.’”° Increased use of new actions and greater concentration on the king’s courts may have driven the developing law, through cases both of tenure and status. Royal judicial and administrative activity might also demand decision as to whether a man was free or not, and such activities were increasingly under scrutiny by men closely tied to the king’s court.” Seignorial enquiries, administration, and record-making might have a similar effect, as when Worcester Priory in its 1189 x 1190 allocation of bequests distinguished between those made by free men and those made by rustici.'? Where did this leave the villein?’** Despite lack of protection in relation

to his lord in the king’s court, he might still enjoy considerable customary control, for example over chattels.'% A further restriction on seignorial control was practical: lords had to pay, sometimes a significant amount, for royal justice in relation to recalcitrant villeins.’° However, the relative expense and other difficulties of obtaining royal justice may have been still greater for the peasant. How extensive was seignorial intimidation, how far did courts allow lords the benefit of the doubt about certain deeds? One is left pondering stories of the unfortunate fates suffered by some villeins who came into conflict with their lords. Thomas son of William appealed Andrew of Horbling for imprisoning his father, through which imprisonment his father died within a year of being released by Hubert Walter’s writ. Andrew

denied the accusation and responded that William was his villein who was imprisoned for wrongs done to him, including withholding of service. William at length had seen the light and done Andrew’s will. Thereafter he lived healthily at home, and never spoke against him about dying or a wound or any blow that Andrew had done to him, but rather died at home of natural causes. Is this the lying peasant being found out, or the word of the mighty being accepted by the court?’”” ‘°° This had certainly started by 1170; see e.g. PRI6HII, 150, and above, 754 n. 36. ‘*! This is the core of the argument of Hyams, Kings, Lords, and Peasants. For landholding cases turning on freedom or unfreedom, see e.g. RCR, i. 84, 153-4, 366; CRR, iv. 297, v. 85-6; above, 617, 666-7. Note also CRR, ii. 122-3. "** See above, 753-4. *° Worcester, no. 334. See also e.g. Jocelin, Chronicle, ed. Butler, 28. On tenure, see above, 664. See also below, 768 n. 132, on entry to monasteries. 2“ See Hyams, Kings, Lords, and Peasants, ch. 12, for rejection of arguments that there was bias to freedom in the developing common law. **° See also Maitland’s comment above, 761 n. 84. 7° Note e.g. PR27HII, 51, PR28HII, 63, for 100s. "7 CRR, vi. 106-7; the events took place in Richard I’s reign, and Hubert Walter was justiciar.

768 PART III: ANGEVIN ENGLAND 5 CLERGY Monks With respect to property holding, monks were treated as dead to the world. Glanvill provides a writ of mort d'ancestor where the normal phrases concerning the ancestor's seisin at death are replaced by ‘whether O. the father of G. was seised in demesne as of his fee...on the day on which he put on the habit of religion.’’* However, abbots, priors, and holders of other offices within the monastery were frequently involved in transactions and cases regarding their house's property. Abbots and priors moreover

are seen making wills similar in some ways to those of non-monastic bishops.” Regarding felonies or lesser wrongs, the monk could be accused like any other cleric.° In suing or being sued in other cases, he might require the presence of the head of his monastery, and he could also represent that head in court.

Secular clergy Unlike monks, secular clergy could be property holders in their own right, and were in many respects subject to secular and ecclesiastical law in a fashion similar to laymen.’ They could bring appeals against offenders, and hold lands by secular tenures.*° The major difference was the treatment of clerics who committed serious

°° Glanvill, xiii. 6, ed. Hall, 151. See also Pollock and Maitland, i. 433-5. For monks being allowed to receive up to 2s. from charitable gift, to be spent on poor relatives or on pious uses, see Jocelin, Chronicle, ed. Butler, 38-9; cf. Thomas of Marlborough, Evesham, iii. 402, ed. Sayers and Watkiss, 388. A plea might also turn on whether a man who had spent time in a monastery really had become a monk; note CRR, iii. 153. See also the case of Alice Clement, involving argument as to whether she was a nun; CRR, v. 171, 183-6. ‘29 Sheehan, Will, 251.

*°° For imprisonment being used as a punishment for offences within the monastery, see e.g. Thomas of Marlborough, Evesham, iii. 185, 233, ed. Sayers and Watkiss, 188, 236; Jocelin of Brakelond, Chronicle, ed. Butler, 73 (also exile), 122. *** Pollock and Maitland, i. 435-6.

"2 Clerics could make wills, which were subject to ecclesiastical jurisdiction; see above, 685-6, and Sheehan, Will, 244-50. For a priest holding by villeinage tenure, see above, 663 n. 216; for matters

concerning landholding, see above, chs 23, 24. On prohibition of the unfree taking holy orders, see above, 758; on free status and entry to monasteries, note the papal bulls of Innocent II and Alexander III in Thomas of Marlborough, Evesham, iii. 329, 330, ed. Sayers and Watkiss, 322, 326; only Alexander

III limited entry to free men. On clerical marriage, see below, 776. Note that, for example, being the concubine of a priest did not prevent a woman bringing royal actions concerning land; see e.g. PK/, iv. no. 4178.

"°° See Pollock and Maitland, i. 439-40; above, 667. In 1176 Henry II conceded to the pope that clerics were not to be compelled to undertake trial by battle; Councils and Synods, I, no. 169 (p. 996), a letter of Henry II to Alexander III, preserved by Ralph de Diceto.

28 STATUS 769 offences, and this was a central issue in the dispute between Henry II and Thomas Becket in the 1160s."4

The issue of clerical crime was brought to Henryss particular attention by a group of prominent cases early in the decade, in each of which the offender was seen as being protected by the archbishop. Unfortunately we know of them only from works written after Becket’s death and primarily ones associated with his cult, so caution is necessary. The cases involved a cleric in the region of Worcester, who slept with a girl and killed her father; a cleric who stole a chalice in the church of St Mary le Bow, London; a priest in the diocese of Salisbury who committed homicide; and Philip de Broi, canon of St Paul’s, Bedford, who was accused of killing a knight.” Philip, we are told, answered the charge before his bishop, and cleared himself by oath.*° However, a royal official named Simon fitzPeter sought to reopen the case; he was probably a former sheriff, although he may have been a justice, local or itinerant. Philip, we are told, heaped abuse on Simon and refused to stand trial again, particularly in a lay court; we cannot tell if these were his arguments, or reflect those put forward in the subsequent wider dispute. The king was infuriated, but had to make do with sending some bishops and magnates to a second hearing at Canterbury. They impleaded Philip of homicide, but this was rejected on the grounds that the case had already been settled by ecclesiastical judgment and peace had been made. The issue of Philip’s abuse of Simon was then raised, and

it was decided that he should relinquish his prebend into the king’s hand for two years, and offer himself unclothed before the knight, to offer such satisfaction as if their situations had been reversed.’” The sources, unsurprisingly, present Henry as angered by the leniency of the outcome. At the Council of Westminster in October 1163 Henry raised the issue of clerical criminals who

*** For a case from Normandy, see Letters of Arnulf of Lisieux, no. 114, Haskins, Norman Institutions, 171. "°° Lawsuits, nos 409, 410, 416, 411 respectively.

°° The following is a composite account from Lawsuits, no. 411, although giving precedence to the earliest version, that of Edward Grim. For a full discussion of the sources, see J. G. H. Hudson, ‘Constitutions of Clarendon, clause 3, and Henry II’s reforms of law and administration’, in Making the Common Law - Institutions, Lawyers, and Texts: Studies in Medieval Legal History in Honour of Paul Brand, ed. S. Jenks et al. (Leiden, 2012). The first account, by Edward Grim writing in 1171-2, refers to Philip’s dispute as being with a ‘minister regis’, whom he does not name, and states that Philip abused a sheriff, presumably the same man. Simon fitzPeter’s known administrative position in this period (assuming it is the same Simon) was sheriff of Northamptonshire (see e.g. PR5HII, 16, PR7HII, 32, PRIOHII, 31). Interestingly, PR6HII, 36, shows him as in that year also sheriff of Buckinghamshire and Bedfordshire, the three counties answering together in the Pipe Roll.

*°7 Unclothed may indicate not complete nakedness but possibly removal of clerical garb or being stripped for scourging.

770 PART III: ANGEVIN ENGLAND were disturbing the peace of the realm. According to the sources, again written after Becket’s death, he sought that clerics who had been seized and then convicted or who had confessed be swiftly degraded, handed over to royal officials, and suffer bodily punishments such as laymen underwent. He faced resistance from the archbishop, who argued that “God does not judge twice in the same matter’.”3°

The issue was then treated at the Council of Clarendon in January 1164, where the king presented for approval the Constitutions, ‘a record and recognition of a certain part of the customs and liberties and dignities of his ancestors, that is of King Henry his grandfather and others, which ought to be observed and held in the realm’. Clause three stated that: Clerics cited [rettati] and accused concerning any matter, when summoned by the king’s justice, shall come into his court, to answer there about this concerning what it shall seem to the king’s court ought to be answered there; and into the Church court, concerning what it shall seem ought to be answered there; thus that the king’s justice shall send to the court of the holy Church, to see by what reason [ratione] the matter shall be treated there. And if a cleric is convicted or confesses, the Church ought not protect him thereafter.

Unfortunately the precise meaning of the clause is not certain, in part because—as

we will see—it may have been drafted in a skilfully vague fashion, in part because most other evidence on the Constitutions and Council is retrospective, often forming part of the post-martyrdom justification of Thomas's position. A further problem for the modern interpreter is simply working out the meaning of the Latin. The word rettati may indicate a degree of notoriety, so the clause may not have been aimed at all clerics facing accusation.*° The phrase ‘when

summoned’ does not indicate whether the following procedure was for all clerics who had been accused thus, or only instances where the king’s justice had summoned them. In an abbreviated version of the Constitutions, the main part of the clause is phrased slightly more clearly. Particularly notable is that the final point about the withdrawal of ecclesiastical protection appears separately, with clause four of the Constitutions (on the need for royal permission to leave England) intervening.” Thus matters of jurisdiction and of protection from punishment are separated.

"88 See MTB, iii. 266-75, iv. 95-7, 201-5. Note also Lawsuits, no. 416, where Herbert of Bosham, in his Life of Becket, mentions a decree of the archbishop, sanctioned by the canons, that clerics should

be punished by spiritual, not corporal punishment, without mutilation or deformation of limbs. "°° Note e.g. Assizes of Northampton, 1. **° Note how in the standard version the final sentence is in the singular and in the present tense, whereas the clause starts in the plural and in the future tense.

28 STATUS 771 The procedure was based in part on Roman law, particularly Novel CX XIII which resembles the Constitution in providing a series of stages.’" The clause

of the Constitutions was cautiously drafted, to ensure that it could receive some support from canon law, or at least not be easily dismissed as against the canons. The phrase ‘concerning any matter’ seems deliberately vague, especially when compared with the statement of offences in the Assizes of Clarendon and Northampton. The phrases involving the word ‘answer [respondere]’ may deliberately avoid defining what is the forum for judgment; it could mean that the accused was to put in a plea in the king’s court before being tried in the ecclesiastical, or indicate that the accused was to be tried in the king’s court unless it was found that certain matters belonged to the ecclesiastical.” The end of the clause deliberately avoids specifying secular and physical penalty, and may have been designed to circumvent arguments concerning double punishment. The king and his advisers would also have seen the procedure as justified by necessity and custom. Practice under Henry I is uncertain, but Henry II may well have believed that churchmen and ecclesiastical courts had not been able to protect clerical offenders in the time of his grandfather. The purpose of the clause seems to have been to increase the power not so much of secular courts in general as the royal courts in particular. The initial accusation may have been made in a local court, be it before sheriff, local justice, or itinerant justice.’ The bishop or archbishop may have claimed the case, as occurred with Philip de Broi, but the cleric was then to be summoned by the king’s justice to the royal court. It seems probable that king’s justice here refers to the chief justiciar (a position at this time held both by Richard de Lucy and Robert earl of Leicester); the parallel would have been clear with clause nine of the Constitutions, allocat-

ing to judgment of the chief justiciar decisions as to whether a land case concerned alms or lay fee.'*®

However, if Henry’s aim was to establish the priority of his own court in matters of crime, and if he sought to gain acceptance of this through subtle ** See also C. Duggan, “The Becket dispute and criminous clerks’ (1962) 35 BIHR 1-28, at 19, 25-7; Duggan, ‘Roman, canon, and common law, 8. ‘See Hudson, ‘Constitutions of Clarendon’ also Maitland, Canon Law, 135-6, who did not see the point as deliberately vague. “> Cf. the possibility ofthe bishop giving permission for the clerk to appear before the civil judge, for example when they have been found incorrigible and been deprived of office; Gratian, Decretum, dictum following C. 11 q. 1 c. 30. Here the bishop, not the lay authority, makes the decision. For debate amongst canonists between the time of Gratian and the Constitutions, see Duggan, “Becket dispute’, 19-20, and below, 772 n. 146.

“™* Note Lawsuits, no. 413, Gilbert Foliot, bishop of Hereford, reprimanding Elias de Say for subjecting a priest of his diocese to judgment. *° See above, 608.

772 PART III: ANGEVIN ENGLAND drafting, he failed. Arguments from the canons and theology favoured Becket’s side.'’*° The subtle vagueness of drafting may have rendered it harder to counter the clause with precise arguments concerning jurisdiction and transfer between courts. Yet this may only have increased insistence that no-one, clerics included, should undergo double judgment or punishment for a single offence, an argument perhaps drawn from theological as much as canonical study. The king’s side could not reject the principle, although they could deny that it was a valid objection to their proposed process.'4” Following Becket’s death, Henry had to give up his claim to jurisdiction in such cases. In 1176 he promised the pope that clerics were not to be brought before a secular judge in persona sua concerning anything criminal or concerning any wrong, except wrong of his Forest and except lay fee whence lay service was owed to the king or another secular lord.’** Later evidence shows clerics being punished for Forest offences and pleas concerning their lay fees going to secular courts.’49 At the same time, churchmen could claim their courts when clerics faced accusation in the king’s.*° In his effort to include clerics in his clampdown on crime, Henry II had failed to achieve his aim.’”

6 LEPERS We know very little of the law concerning lepers in our period. The Rotuli de dominabus mentions that the elder son of Peter de Pelleville was aged twenty-four and a leper. He was in the king’s wardship and had sustenance in a hospice. Given

“° See A. Duggan, Thomas Becket (London, 2004), 48-58. See also Maitland, Canon Law, esp. 141-6, who argued that Henry’s side had a strong case in canon law; Duggan, “Becket dispute’, 8, 13-14, 19, 20, 27 n. 1, who counters Maitland and shows the strength of Becket’s position; R. M. Fraher, ‘The Becket dispute and two decretist traditions: the Bolognese masters revisited and some new Anglo-Norman texts’ (1978) 4 Journal of Medieval History 347-68. See also e.g. Gilbert Foliot’s letter ‘Multiplicem nobis’ Correspondence of Thomas Becket, ed. Duggan, no. 109 (esp. pp. 514-18). Again one must bear in mind that the arguments put forward in the Lives may not be precisely those put forward before 1170; cf. Correspondence of Thomas Becket, esp. nos 78, 170.

““” For argument against double punishment, see e.g. John of Salisbury, Policraticus, viii. 18, ed. Webb, ii. 364; Duggan, ‘Becket dispute’, 15-18. Note further Lawsuits, no. 419. “*® Councils and Synods, I, no. 169 (p. 996), a letter of Henry II to Alexander III, preserved by Ralph de Diceto. Note the treatment of William of Waterville, abbot of Peterborough; Lawsuits, no. 479. On

the position on clerical criminals adopted in the later decretal “Novimus expedire’ of Innocent III, see Duggan, ‘Becket dispute’, 24-5. **° See above, chs 19, 23, 24. Note, however, e.g. PKJ, i. no. 3120.

*°° See e.g. PKJ, iv. no. 3439, where two appellees were successfully claimed for court Christian, whilst the case of a third continued before the king’s justices. "°" See also TAC, 72, ed. Tardif, 68-9, for legislation by Richard [in Normandy.

28 STATUS 773 his age, he clearly was considered unable to inherit; his father’s inheritance was presumably to go to the younger son, currently not yet one year old.’

7 JEWS At the end of the twelfth century, there may have been 4,000-5,000 Jews in England.’ Their relationship with the king remained extremely close. Richard and John, probably in confirmation of a charter of Henry II, granted that any ‘transgression [excessus]’ that arose between Jews, except pleas of the crown, were to be treated and corrected among the Jews according to Jewish law, and they were to do their own justice concerning the matter.’® Likewise, most other matters of inter-Jewish relations were left to Jewish law.'° Our main concern, however, is relations between Jews and others. Jews could receive grants of land, and the transfer might be recorded by fine, that is by final concord.” Almost all grants of land to Jews were urban, and these might include references, for example, to the grantee and his heirs holding of the donor and his heirs in fee and inheritance.’** Occasionally Jews may have received rural lands on terms similar to those for Christians. Thurrock was bought from the earl Ferrers by Isaac son of Rabbi from whom it passed to his son Josce, who then sold it to Henry de Gray.» However, rural land was normally held ‘in gage’,

a form of landholding discussed by Glanvill with no particular reference to Jews.’©° Although seised of the land as of gage, the Jewish tenant might leave in occupation the debtor who had provided the land as gage, or he might lease the

*°* Rotuli de dominabus, no. 122, and note also no. 121. See also no. 170, where the leprous heir was

twelve years old; we cannot in that instance tell what would have happened when he came of age. °° Hyams, Jewish minority’, 271. *°* See Richardson, English Jewry, 121, P. R Hyams, “The Jews in Medieval England’, in England and Germany in the High Middle Ages, ed. A. Haverkamp and H. Vollrath (Oxford, 1996), 173-92, at 183-4, for the role of the ‘arch-priest’ of the Jews. See Rot. chart., 6-7, for a grant of the ‘priesthood [presbiteratum] of all the Jews of England to Jacob the Jew of London priest of the Jews’; 7, fora grant of protection to him. ‘°° For John’s charter, see Rot. chart., 93b; for Henry II and Richard’s, see P. A. Brand, ‘Jews and the law in England, 1275-90° (2000) 115 EHR 1138-58, at 1138. For Pipe Roll mentions of pleas between two Jews, see e.g. PR26HII, 32, PR31HII, 198. "°° See also Pollock and Maitland, i. 474. Note PR3RI, 98: Judas the Jew of Bristol owes 20z. of gold for inquiry to be made in the chapter of the Jews as to whether a Jew ought to take usury from a Jew. *°7 Richardson, English Jewry, 83. *® Seee.g. the grant by Gervase of Cornhill to Isaac the Jew printed in Richardson, English Jewry,

239-40. *°° Foedera, i.51; Richardson, English Jewry, 84. *°° Glanvill, xiii. 26-30, ed. Hall, 164-6.

774 PART III: ANGEVIN ENGLAND land to a Christian. In the event of default by the debtor who had given the gage, the land was forfeited to the Jewish creditor, who would not, it seems, retain it but sell it to another Christian." Royal treatment of the Jews has many parallels with other contemporary legal and administrative developments. From the end of the twelfth century, much, but not all, business was done in the Exchequer of the Jews, considered one form of the king’s court.” Jews had actions in the king’s court, sometimes modified

in terms of procedure. Thus John excepted pleas of the crown from his grant concerning the treatment of transgressions between Jews. If no Jew had come forward as an accuser, the king would cause the complaint [querela] to be investigated by his lawful Jews of England, as Henry II's charter testified.’® If there were an appeal in a complaint between a Jew anda Christian the appellor should have a lawful Christian and a lawful Jew as witnesses. When answering by oath appeals not supported by witnesses, Jews were to be quit on oath upon their Book, or—in matters that pertained to the crown—by oath on their Roll. If a Jew brought a writ about the complaint, the writ acted as witness. If a Christian had a complaint against a Jew, it was to be judged by the peers of the Jews.’ *° Richardson, English Jewry, 84-6, 103-4; cf. Bartlett, England, 350; note CRR, v. 169, discussed above, 674. Note also the proposition considered at the Council of Westminster, 1175, that Jews should not receive fealty from Christians, nor Christians do it; Councils and Synods, I, no. 168 (p. 979, and comment at p. 969).

‘°* For cases involving Jews being heard in the king’s court at Westminster or coram rege, see e.g. RCR, ii. 155 (concerning damage to the Jews’ cemetery by burgesses of Norwich); CRR, i. 359 (sheriff ordered to produce Jew appealed of rape); i. 390-1, 424 (agreement/debt); i. 417 (dower); i. 431 (warranty of charter); iii. 144-6 (many men suspected of the death of a Jew and other wrongdoings; several go to trial by water); iii. 159 (debt); iv. 86 (debt); vii. 70-1, 245 (dower); PR5J, 99; PR7J, 213-14. For dealings before the eyre see e.g. Select Pleas of the Crown, no. 59; also Richardson, English Jewry,

152. Earlier litigation in the king’s court is in general known only from brief Pipe Roll entries; see e.g. PRI9HII, 18-19; PR22H1II, 85; PR25HII, 35, 49; PR28HII, 161-2 (several pleas); PR29HII, 102, 128,

159; PR31HII, 40-1, 94-5, 222. For the Exchequer of the Jews, see above, 543. Note also Richardson, English Jewry, 155, on the constable of the Tower of London, 157, on outlawry. On Jews and the Forest, see e.g. PRIJ, 207; Grant, Royal Forests, 84-5. "°° Rot. chart., 93b. "4 See Foedera, i. 51; Rot. chart., 93a. For swearing on the Roll, see also the provision in 1194 concerning recording of Jewish property and debts; Select Charters, 256. “Their Roll’ is almost certainly a Torah scroll, available to the justices of the Jews. What is meant by ‘their Book’ may be less clear. Most probably it is an Old Testament or a Pentateuch; there were Hebrew copies in book form, but it may be that in particular the eyre justices, before whom some appeals would have been heard, would only have been able to find Latin texts. Alternatively, it could mean more generally a religious book in Hebrew. Note also CRR, v. 256, where Miles the Jew of York appealed three Christians for the death of his wife; the plea roll tells us that the accused ‘were not suspected [malecreduntur] either by Jews or by Christians’. For the production of two Christians and two Jews prepared to provide proofinan action arising froma debt, see CRR, i. 114. For Jewish involvement in a duel, see RCR, i. 79; also Bartlett, Trial by Fire and Water, 112. For lack of differentiation between treatment of Jew and Christian, note also e.g. Bracton, fo. 387, ed. Thorne, iv. 211.

28 STATUS 775 Further characteristics shared with other legal developments were the making of records and the granting of written customs. In 1194, the articles of the eyre contained chapters specifically concerning the Jews, and providing first that all debts and gages of the Jews are to be recorded [inbrevientur], lands, houses, rents, and possessions. The Jew who conceals any of them shall be in forfeiture of the lord king concerning his body and what was concealed and concerning all his possession and all his chattels, and it shall never be permitted for the Jew to recover what was concealed.'®

As for written customs, Henry II, perhaps soon after his succession, granted the first known royal charter for the Jews of England. It does not survive, but there are references in charters of Richard and John.’ These granted to the recipients all their customs and freedoms held from King Henry II according to Richard, Henry I according to John, that is ‘residence in the king’s land, honourably and freely’, and to hold from the king all those things that they had in King Henry's time, in lands and fees and mortgages and gifts and purchases. A dead Jew was not to remain unburied, but his heir was to have his money and debts; in practice the king would demand considerable payment for succession, often one-

third of the estate of the deceased. Exceptionally, as in the case of Aaron of Lincoln, the whole estate of a dead Jew might pass to the king, rather than the heirs of the deceased.’” Inheritance by Jews in this way remained subject to their lord’s discretion.

"°° See also above, 546-7, 706-7. "°° Foedera, i. 51, Richard I for Ysaac and his sons and men, as Henry II had granted to the Jews of England and Normandy; Rot. chart., 93, John for all the Jews of England and Normandy. See Richardson, English Jewry, 109-10, N. Golb, The Jews in Medieval Normandy (Cambridge, 1998), 210-16. "°” Richardson, English Jewry, 115-16.

29

Marriage and Family AS western Christendom, the second half of the twelfth century and the beginning of the thirteenth saw important legal developments regarding the family, most notably the clarification of canon law regarding marriage. In England, the legal significance of family arrangements is clear from their extensive treatment in Glanvill, especially Book VI concerning dower and Book VII concerning marriage-portions, inheritance, and legitimacy. Likewise, litigation on kinship matters is very prominent in the plea rolls. A variety of evidence shows the value that lords placed on rights of marriage, wardship, and relief. The exercise of such rights, especially by the king and his officials, became hotly contested, culminating in the provisions of Magna Carta.’

1 MARRIAGE Church reformers continued to strive against clerical marriage, although some debate persisted amongst canonists, particularly regarding clerics in the lowest orders.’ As for lay marriage, the jurisdiction of Church courts was very largely accepted. In the Anstey dispute at the end of the 1150s, the king’s court turned over

the issue of marriage to the archbishop of Canterbury as, John of Salisbury tells us, a matter of ecclesiastical rules [de regulis ecclesiasticis]. In the Church court,

* For other matters relating to family, see above, esp. chs 24, 25, 28. Apart from creating kinship that further restricted possible marriage partners, spiritual kinship does not appear to have had specific legal effects in this period. Chester, no. 283, has the earl take his godson [filiolus] specially into his custody and protection, but such a benefit was not unique to spiritual kin. * See Brundage, Law, Sex, and Christian Society, 314-19, 401-5; also above, ch. 18, on debate at the

start of the Angevin period. For implementation, see Brooke, “Gregorian reform in action’; Kemp, ‘Hereditary benefices’.

29 MARRIAGE AND FAMILY 777 the question should be ‘duly determined in accordance with canon law, which the clergy know, the common people do not’3 Likewise, Glanvill wrote that if anyone claims, as heir, an inheritance against another, and that other objects against him that he cannot be heir because he is not born of a lawful marriage, then the plea shall not proceed in the court of the lord king; and the archbishop or bishop of the place shall be ordered by... writ to learn about that marriage, and to inform the lord king or his justices what he judges concerning the matter.‘

On occasion, however, a jury could answer a question relating to marriage, although the question might be phrased to avoid asking directly whether the marriage was valid. It may be a sign of a somewhat unusual procedure that in a case concerning intrusion into land it was a jury of twenty-four, not of twelve, who were asked the carefully worded question, whether the father of one party ‘held [tenuit]’ the mother ‘as his wife and as the one he had married [pro uxore sua et pro sponsa sua] and if he ‘held’ the son ‘as his son and heir as from the wife he had married’?

Prohibited degrees As we have seen, reformers in the late eleventh and twelfth centuries extended the degrees of kinship within which marriage was prohibited, thereby increasing divergence between Church teaching and lay practice.° Some leeway was given to those who claimed not to have known that they had married despite being related in the more distant degrees.” In addition, some might simply go ahead with marriage despite ecclesiastical objection. Thus Baldwin, archbishop of Canterbury, condemned the marriage of Prince John to Isabel, heiress of the earldom of Gloucester, but the two were married, only for their marriage to be

> Lawsuits, no. 408B; see also no. 408E, Richard of Anstey’s account of his expenses. On the Anstey case, see above, 442-3, 574-6. * Glanvill, vii. 13, ed. Hall, 87. The writ of bastardy is given in the following chapter, and includes the phrase ‘since [enquiry] about bastardy does not pertain to my court: For issues of marriage being transferred to ecclesiastical jurisdiction, see also e.g. CRR, i. 322; ii. 41; ii. 63. > CRR, vi. 237; for later stages of the case, see also vi. 300, 354, 397, the last of which records that the man had never held the woman ‘as his wife’ or the son ‘as his son and heir from his wife married to him’.

Although the case was being heard in 1212, it seems unlikely that the treatment of the issue of marriage in the king’s court was linked to the papal interdict under which England lay; see. C. R. Cheney, ‘King John and the Papal Interdict’ (1948) 31 Bulletin of the John Rylands Library 295-317, at 308-9. Pollock and Maitland, ii. 380-1, state that such juries were used in cases concerning possession, not those that concern right. ° See above, 436-7. For continuing emphasis on restrictions applying to spiritual kin and to the relatives of a former husband or wife, see e.g. Council of Westminster 1200, 11, Councils and Synods, I, no. 183.

” Cf. below, 784, on annulment.

778 PART III: ANGEVIN ENGLAND dissolved some years later on grounds of consanguinity.® Finally, in 1215 the Fourth

Lateran Council reduced various prohibitions, and included a firm statement that the prohibition was not in future to affect marriages beyond the fourth degree of consanguinity and affinity, ‘since in more distant degrees a prohibition of this kind cannot be generally observed without serious detriment’?

Betrothal As we saw in an earlier chapter, the mid-twelfth century was a period of considerable debate amongst canonists concerning what was essential to the creation of a marriage, in particular the relative importance of consent and consummation.” The position that consent was the essential element was emphasised through a

series of decisions by Alexander III, amongst the most important of which appear in letters directed to England. Although some debate would continue among canonists," the position was as follows: a valid marriage was constituted either by freely given consent between the couple as to the present, that is having immediate effect, or by consent as to the future, followed by consummation.” The 1175 Council of Westminster prohibited marriage of minors, ‘except by dispensation between princes or great men for the sake of reconciliation or peace.” The age required for valid consent was not firmly set. Alexander III wrote to the archbishop of York stating that ‘there can be no espousal or marriage before the age of seven’, but in another letter, to the papal judges delegate Bishop Roger of Worcester and Abbot Adam of Evesham, Alexander treated twelve as the significant

* See H. G. Richardson, “The marriage and coronation of Isabelle of Angouléme’ (1946) 61 EHR 289-314, esp. 290-1.

> Fourth Lateran Council, 50, Mansi, xxii. cols 1035-8. See also Pollock and Maitland, ii. 388-9, for clarification of the decree. For suggestion as to the marked increase in the number of relatives who thereby became potential marriage partners, see Flandrin, Families, 26. *° See above, 437; also e.g. Brundage, Law, Sex, and Christian Society, 235-42, 260-78. ** See e.g. J. Taliodoros, Law and Theology in Twelfth-Century England: the Works of Master Vacarius (c. 1115/20-c. 1200) (Turnhout, 2006), ch. 2, on the Summa de matrimonio by Vacarius, for which, at 58, he suggests a date of 1166 x 1170. Note that Vacarius’s view in his student book of Roman

Law, the Liber pauperum, does not present the unusual views of the Summa de matrimonio. The Summa does not appear to have been influential. ** See Brundage, Law, Sex, and Christian Society, 333-6; Duggan, ‘Alexander III’s “Rules on marriage’. Note the mention of both consent and consummation in Alexander’s letter of 1177 concerning the forced marriage of Oliver the Angevin; above, 439. Words of present consent also ensured that Aubrey de Ver, earl of Oxford, and Agnes, daughter of Henry of Essex, were married, even though she had ceased to be desirable as a bride because of the disgrace of her father. Agnes was only three when a marriage agreement was made, probably eleven or twelve when ‘words concerning the present’ were uttered; Brooke, Idea of Marriage, 152-6. On consummation, and in particular the incapacity to consummate as an impediment to marriage, see e.g. Brooke, Idea of Marriage, 132-3. ** Councils and Synods, I, no. 168 (c. 19).

29 MARRIAGE AND FAMILY 779 age.'4 A story in the Life of St Hugh of Lincoln illustrates the difficulties of enforcing regulation on the age of marriage, with conflicting episcopal and lay attitudes. The

king gave a girl, the circumstances of whose birth were in question, to Adam de Neville, brother of his chief forester. Adam desired her inheritance, so, although she was scarcely four years old, he decided that their marriage should be solemnly celebrated.... When this was reported to the bishop [Hugh], who had frequently issued general orders forbidding the marriage of those not yet of the years of discretion, he now gave a specific prohibition forbidding any priest or faithful Christian to be present at this wedding.

However, Hugh had to travel to Normandy for business with the king, and then ‘the friends and relatives of [Adam] assembled in a remote village, and there, taking advantage of either the simplicity or the greed of the priest of that place, married him to the child in solemn fashion before the church [in facie ecclesie]’ Hugh suspended the priest, sequestered his benefice, and excommunicated all who had flouted his own prohibition. What he apparently could not do was declare the marriage null, and the text goes on referring to Adam as the womans husband, and later to her as his widow.* We thus see the centrality of consent of the couple to the canonical position by the end of Alexander III's pontificate, but also the continuing intrusion of other elements both in canonical debate and in practice, notably issues of consummation, proper ceremony, and the participation of other parties.

As in the Anglo-Norman period, lords sought to control in particular the marriages, and thereby the property, of heiresses and widows.'* Our evidence is strongest for royal practice, and from the last decade of Henry II’s reign comes a document known as the Rotuli de dominabus et pueris et puellis |The rolls concerning ladies and boys and girls], recording the king’s rights to marriages and to wardships of minors.” The king profited substantially from payments from those wishing to make or to avoid marriages, and from amercements from those

‘* X 4.2.4; Cheney, Roger, Bishop of Worcester, no. 74.

'° Magna vita sancti Hugonis, iv. 5, ed. Douie and Farmer, ii. 23-7; note also the comment on the servile birth of the girl. The village priest is presented as simple or corrupt; the story might also be taken to indicate variation of attitudes within the Church. It is possible that someone married when a minor might be able repudiate the marriage when they came of age, on the grounds that consent was necessary for a valid marriage but a minor could not give valid consent. *® See above, 438-9; also e.g. S. S. Walker, ‘Free consent and marriage of feudal wards in medieval England’ (1982) 8 JMedH 123-34. See above, 757, on payments for permission to marry, especially by the unfree. 7 See Rotuli de dominabus, noting e.g. no. 3. See also e.g. Assizes of Northampton, 9, instructing the king’s itinerant justices to enquire concerning escheat, churches, lands, and ‘women who are in the gift of the lord king’.

780 PART III: ANGEVIN ENGLAND who married off heiresses, or themselves married, without royal permission." The rebels in 1215 sought to end such exploitation, demanding that heiresses be married ‘through the advice of their next of kin’, although Magna Carta states only that “before a marriage [of an heiress] is contracted, it shall be made known to the heiress’s next of kin’.° Both kin and barons were particularly intent that

marriages be made to men of the correct status, not to parvenus, a concern expressed in Magna Carta’s provision that ‘heiresses are to be given in marriage without disparagement’.”°

Lords other than the king also sought to control marriages, although there are no financial records to match the royal ones.” Glanvill tells us that according to the law or custom of the kingdom, no woman who is the heir to land can be given in marriage without the direction or assent of the lord. Therefore, if anyone who has only a daughter or daughters as heir gives her or them in marriage in his lifetime without the consent of his lord, he is rightly to be disinherited forever according to the law and custom of the realm, and thus that he may not in future recover anything save only through mercy. The reason for this is that since the husband of the heiress is bound to do homage to the lord for that tenement, the agreement and assent of that lord is required for doing it, lest he be compelled to receive homage concerning his fee from his enemy or some other unsuitable person. However, when anyone seeks licence from his lord to give his daughter and heir in marriage to another, the lord is bound either to consent or to show just cause why he should not consent. Failing this, the woman can be given in marriage freely on the advice of her father and at her will, even against the lord’s will.”

*® See e.g. Rot. de ob. et fin., 8, for a widow offering King John 200m. that she have custody of her son and heir with all his land, and also permission to arrange his marriage once he was of age, on the advice of friends and kin; PR26HII, 41; PR6RI 162. For relevant tables, see S. L. Waugh, The Lordship

of England (Princeton, 1988), 157-60. In general kings preferred to amerce such offenders rather than punish them through seizure of property, but note esp. the fate of Rose of Dover; PR6RI, 250, PR7J, 117, 195, Rot. de ob. et fin., 229, Rot. lit. cl., i. 7, 8.

*? Unknown Charter, 4, Articles of the Barons, 3, Magna Carta, 6; see also Holt, Magna Carta, 310. *° Magna Carta, 6. For background to this clause, see Holt, ‘Heiress and alien’, 266-9. Note also e.g. PR6RI, 238, PR7RI, 222, 246; PKJ, i. no. 3156; CRR, vi. 7-8; Carte nativorum, no. 519; and the

views of the English-born theologian, Robert of Courson, mentioned in J. W. Baldwin, Masters, Princes, and Merchants: the Social Views of Peter the Chanter and his Circle (2 vols; Princeton, 1970), 1.178 n. 133.

*" For an instance of seignorial pressure to marry, possibly from early in Henry II’s reign, see above, 439. On control of marriage of the unfree, see above, 757. On canonists accepting the validity of marriages between the unfree, see e.g. Brundage, Law, Sex, and Christian Society, 196, 360-1. *? Glanvill, vii. 12, ed. Hall, 85. Ifthe inheritance was in the fee of several lords, the consent of the chief lord was sufficient for the marrying of the heiress; Glanvill, vii. 12, ed. Hall, 86. For aninstance of forfeiture, see PR27HII, 51.

29 MARRIAGE AND FAMILY 781 Good custom, as presented by Glanvill, therefore limited the lord to prohibiting marriages for demonstrable cause, not arbitrarily. Case material is very limited, but in 1211 Robert Mauduit complained in the king’s court that Robert Morin, against his prohibition, entered his fee and took as wife the first-born daughter of John Mauduit, his knight, who was in his gift by reason of the fee that John held from him. He was, he said, unwilling to accept 200m. for the harm and shame that he had suffered.* In addition, Robert Morin had forcefully resisted Robert Mauduit’s efforts to re-enter his fee, following John’s death, and for this he was unwilling to accept 100m. for the shame. The case was settled by compromise.” Here we have a lord failing to control marriage within his lordship and instead turning to the royal courts. Canonists allowed remarriage after the death of one party.” Glanvill is careful in his exposition regarding widows. He states that lords did not have wardship of widowed heiresses.**° He also asks a question: ‘can a woman who has dower marry someone at her pleasure without the consent of her warrantor [i.e. her former husband's heir], and—if she does so—will she lose everything as a result?’ He answers that she should not lose her dower, because ‘by the law and custom of the realm, her husband need not do homage to her warrantor concerning this but only fealty accompanied by pledge of faith, for if the woman should predecease her husband, such homage would perish for lack of a tenement’, that is the dower would revert to the warrantor. Nevertheless, he concludes, the woman did need the assent of the warrantor to her marriage, or she would lose her dower. Here, then, the crucial assent is seen to be that of the woman's warrantor, that is her former husband’s heir, a mixing of seignorial and family assent.” In practice, some widows were pressured to remarry to the person of the king’s choice, by methods reportedly including the taking away of dower.”* Others paid that they might marry according to their will, or remain unmarried.” Again the issue was raised in 1215, with Magna Carta specifying that ‘no widow shall be *> Cf. above, 728 n. 115. It is unclear whether Robert Mauduit and John Mauduit were kin as well as lord and knight. ** CRR, vi. 156, 255; for remission and for his relief, Robert Morin gave Robert Mauduit 10m. *° See e.g. Brundage, Law, Sex, and Christian Society, 245, 407.

*° Glanvill, vii. 12, ed. Hall, 86. The Rotuli de dominabus very rarely refer to a widow being in the king’s wardship rather than in his gift; for an exception, see Rotuli de dominabus, no. 28; for more typical usage, see e.g. no. 114, even though the widow in that case was only ten years old. See also above, 631, for Jocelin of Brakelond speaking of wardships of boys and bestowal of widows and girls.

*” An exception was if ‘that woman has other land from marriage-portion or inheritance; for then it suffices to have the assent of the chief lord; because of the fealty the husband would be bound to do to that lord. 78 See CRR, iii. 257.

*° Seee.g. Rotuli de dominabus, no. 18; Rot. de ob. et fin., 29; Holt, “Heiress and alien’, 264-5, Magna Carta, 52-5, 198.

782 PART III: ANGEVIN ENGLAND compelled to marry, so long as she wishes to live without a husband; however, she is to give security that she shall not marry without our assent, if she holds from us, or without the assent of her lord from whom she holds, if she holds from another.*° Cases also show continuing conflict between the belief that marriage was a matter of concern to kin and the canon law position emphasising the free consent of the parties alone, the latter an attitude no doubt shared by some potential spouses." However, secular law could not over-ride canon law and require family or seignorial consent for a marriage to be valid. Breaches of lay norms might lead to financial penalty or endanger entitlement to dower, but did not affect the legal status of the marriage itself** Marriage therefore is a particularly clear case of hardening law becoming distanced from social expectation.®

Ceremony Emphasis on the sole necessity of consent of spouses increased the likelihood of clandestine marriages, despite both lay and ecclesiastical disapproval. Publicity aimed to ensure that issues of consanguinity and previous marriage be raised before a wedding took place, and that there were witnesses to the marriage should future dispute arise. We therefore see new emphasis on the routine giving of publicity to forthcoming marriages, through the banns. The Council of Westminster in 1200 laid down that ‘no marriage is to be contracted without three public announcements in church, or if they are unknown persons:** According to Gerald of Wales, the announcements were to be on the three Sundays before the wedding.** The measure spread, and in 1215 the Fourth Lateran Council made the following provision: extending to other localities generally the particular custom that prevails in some, we decree that when marriages are to be contracted they must be announced publicly in the churches by the priests during a suitable and fixed time, so that, within that time, whoever wishes and can, may set out a lawful impediment.’

°° Magna Carta, 8; see above, 438, for Henry I’s coronation decree, 3-4. ** Note e.g. Brundage, Law, Sex, and Christian Society, 275-6. For family arrangements, see e.g. CRR, iii. 306.

** For a significant if slightly later case concerning dower entitlement, see BNB, no. 965. °° For this period most case evidence is aristocratic, but later sources show that enforcement of the canonical position experienced considerable difficulties at lower social levels; see e.g. M. M. Sheehan, ‘The formation and stability of marriage in fourteenth-century England: evidence of an Ely register’ (1971) 33 Mediaeval Studies 228-63. ** Council of Westminster 1200, 11, Councils and Synods, I, no. 183.

°° Gerald of Wales, Gemma ecclesiastica, i. 13, Opera, ed. Brewer et al., ii. 46. °° Fourth Lateran Council, 51, Mansi, xii. col. 1038.

29 MARRIAGE AND FAMILY 783 Publicity, the decree states, was to help ensure strict observance of the prohibited degrees, the range of which had been reduced by the Council. Failure to comply

made the parties subject to ecclesiastical penalties, and might mean that any offspring were declared illegitimate, but still did not render the marriage invalid.”

Canonists and Church councils desired public marriage ceremonies before the church [in facie ecclesie] conducted by a priest, fitting their emphasis on the sacramental status of marriage. The 1175 Council of Westminster suspended from office for three years priests who married couples secretly. Once again,

however, failure to have a proper church ceremony did not invalidate the marriage. Rather, a marriage with words of present consent but no ceremony invalidated a subsequent marriage celebrated with full ceremony, a position that determined the outcome of the Anstey case. The parties might be subject to ecclesiastical penalties and the wife not be entitled to dower, but married they were,*

Adultery Adultery was primarily a matter for Church courts. A miracle story recounted of Thomas Becket in the 1170s tells of an adultery accusation being made to the leading men of Canterbury concerning a man and woman on pilgrimage. The Canterbury men summoned the accused and also placed the accuser in custody. The following day, since such a question belongs to the court of Heaven [ad forum poli], the dean transferred them to a chapel and examined them individually. To the woman he said “How many children have you from this man?’ She replied ‘four’. After she had been taken away he interrogated the man about the number of his children, and he answered ‘two’, remembering the two who had survived and not the two who had died. So the dean judged that they were convicted. As the accuser offered an oath that he had seen the woman joined to another man two years before, the accused man on his part claimed that the oath should by law not be left to the accuser but to the defendant.

°” See Brundage, Law, Sex, and Christian Society, 362.

°* See e.g. Council of Westminster 1175, 18, Council of Westminster 1200, 11, Councils and Synods, I, nos 168, 183; Brundage, Law, Sex, and Christian Society, 275, 336. Cf. e.g. the somewhat bacchanalian practices condemned in the diocese of Salisbury in the early thirteenth century; Statutes of Salisbury I (1217 x 1219), 83, Councils and Synods, with other Documents relating to the English Church, I: A. D. 1205-1313, ed. F. M. Powicke and C. R. Cheney (2 vols; Oxford, 1964), i. 87. See above, ch. 18, for the Anstey case. On dower, see below, 792. In facie ecclesie signified the pres-

ence of the community of the church, probably assembled at the church door; on the ceremonies of marriage, see above, 439-40.

784 PART III: ANGEVIN ENGLAND Nevertheless, the accused were then placed in chains, before being miraculously released by Thomas.?? On other occasions, a husband might choose self-help against his wife’s potential lover. According to Jocelin of Brakelond, Henry of Essex had had a knight named Gilbert ‘cast into chains and tortured so that he died, having been brought to this pass by the accusations of Henry’s wife, who, turning her own wickedness against an innocent man, had said that she could no longer withstand Gilbert’s entreaties concerning illicit love’.*°

Divorce/separation Canon law on divorce, be it annulment or separation, did not undergo major changes in this period. Canonists continued to debate various issues, for example the extent to which separation was permissible, but they agreed that separation

required the formal judgment of a Church court. They also, as already noted, showed a desire for the exercise of flexibility regarding marriages where the par-

ties had been unaware that they were related within the more distant prohibited degrees.** However, royalty and the upper levels of the aristocracy may have exploited the prohibited degrees in order to allow serial liaisons for dynastic and political purposes.

Annulment or separation had consequences for property. According to Glanvill, a woman who was separated from her husband ‘because of some shameful bodily act [ob aliquam sui corporis turpitudinem]’, or because of kinship, could have no claim to dower. Glanvill does not spell out the nature of the shameful act, but adultery seems most probable.’

2 ILLEGITIMACY Illegitimate children were far from rightless; they could hold lands and bring lawsuits. The main impact of illegitimacy was on capacity to inherit. Glanvill states clearly that ‘no bastard nor anyone who is not born of a lawful marriage

°° Lawsuits, no. 464, MTB, i. 472-4. The author professes himself ignorant as to whether the accused were guilty and as to whether they had been lawfully married. See also e.g. Lawsuits, no. 371.

*° Lawsuits, no. 407B. “ Brundage, Law, Sex, and Christian Society, 288-9, 371-6. * Glanvill, vi. 17, ed. Hall, 68. Couples who separated by order of the Church following adultery

did not have the right to remarry so long as either party lived; Brundage, Law, Sex, and Christian Society, 294.

29 MARRIAGE AND FAMILY 785 can be a lawful heir’. A bastard in turn could have no heir except one ‘from his own body.”

It was accepted that questions of legitimacy went to Church courts.“ Difficult cases might arise in various circumstances. There were marriages that were later annulled because they violated the prohibited degrees. In such cases canonists and English law were in agreement; Glanvill tells us that if a woman was divorced because of consanguinity, ‘her children can be heirs and by the

law of the realm they succeed their father by hereditary right’.* In contrast, different answers were reached as to whether subsequent marriage of parents legitimised children born out of wedlock. The Church held that it did, and the position of the canons and of Roman law is noted by Glanvill. However, he then states that ‘according to the law and custom of the realm [the son of such a liaison] is in no way to be maintained in the inheritance as heir, nor can he lawfully claim the inheritance’. The question of whether the child was born before or after the marriage was still to be decided in a Church court, but the judgment in the property dispute was made by the king’s court, acting on the information provided by the ecclesiastical tribunal.**° The same position would be maintained in 1236, when the barons famously pronounced that they did not wish to change the laws of England.”

The number of hard cases was reduced by some unwillingness to question legitimacy.*® There seems to have been a strong presumption that a husband was the father of his wife’s children born during their marriage, unless he

was impotent or had been abroad for such a time that he could not be the father, or the couple had been formally separated by the Church.” The Life of St Hugh of Lincoln tells us that some men argued that ‘according to the laws of England, a child was regarded as legitimate whom the husband of a wife

*° Glanvill, vii. 13, 16, ed. Hall, 87, 88. Glanvill provides no answer to his subsequent question as to who is the heir of the bastard who dies without an heir of his body, except to reject the possibility that it could be the lord. See also Pollock and Maitland, ii. 396-7; above, 681 (on movables), 709. ** See above, 575, 776-7, on the Anstey case and for a quotation from Glanvill; also the qualification above, 777. Note also e.g. Canterbury Cases, nos A.1, A.6, A.9.

* Glanvill, vi. 17, ed. Hall, 68. For canon law, see e.g. Brundage, Law, Sex, and Christian Society, 344. For marriages invalid for other reasons, such as previous marriage by one party, see Pollock and Maitland, ii. 376-7. *° Glanvill, vii. 15, ed. Hall, 88; note that this seems to be the situation arising in the writ to the Church court given by Glanvill, vii. 14, ed. Hall, 87. *” Statute of Merton, 9, Statutes of the Realm, i. 4; BNB, i. 104-16; note also Robert Grosseteste, Epistolae, ed. H. R. Luard (RS, 1861), no. 24, including discussion of the view of Henry IIs justiciar, Richard de Lucy. *® See also Pollock and Maitland, ii. 382-3, on inheritances that pass unchallenged through the hands of a bastard, and on the questioning of the legitimacy of the dead. * Note also Glanvill, vii. 12, ed. Hall, 87.

786 PART III: ANGEVIN ENGLAND had recognised as legitimate as long as he lived.*° However, the author, and

no doubt others, recognised that such a custom might lead to injustice, by excluding the true heir, and certainly in specific instances its force might be questioned.”

3 HUSBAND AND WIFE Wife's inheritance

We have already considered women bringing litigation and _heiresses inheriting.» During his lifetime the husband had control of his wife's inheritance, but following his death a widow had full power. In a case heard before the king a widow sought land from a man on the grounds that he had no entry to it except through her former husband, who had given it to the man with his daughter in maritagium, a grant that she had not been able to contradict.® The wife’s participation would have been necessary for an alienation that would

endure beyond the husband’s death. A case of 1200-1 may reveal a husband seeking to get round this by collusive default in litigation. There does not seem to have been a routine method of countering this problem, but the king, having taken advice, allowed the woman to put herself on the grand assize.** Magna Carta laid down that, on her husband's death, a widow was to have immediately and without any payment her inheritance that she and her husband held on the day of his death, as well as her marriage-portion and also her dower once it had been assigned.*

°° Magna vita sancti Hugonis, iv.5, ed. Douie and Farmer, ii. 25. >" See also Pollock and Maitland, ii. 398-9. °? See above, 579, 649, 722-3.

°° PKJ, i. no. 3157. Cf. CRR, vi. 81-2, for a husband entering into land that his wife had alienated in his absence, ‘as into that which his wife had alienated from him with him living’; the separate activities of husband and wife followed the loss of Normandy in 1204, with the wife returning

to England before the husband; the case is also discussed above, 673. Later in the thirteenth century, to make an alienation lasting beyond the duration of the marriage or of the husband’s life if he benefited from curtesy, the couple must carry out the transfer by final concord before the king’s justices; the wife must appear before the justices, who examined her as to whether she truly consented to the transaction. See also Pollock and Maitland, ii. 410-11; Kaye, Conveyances, 185-98. On grants made to husband and wife jointly, see Pollock and Maitland, ii. 434, Kaye, Conveyances, 187. >* CRR, i. 153, 362, 382, 429.

°° Magna Carta, 7.

29 MARRIAGE AND FAMILY 787 Maritagium Maritagium, the marriage-portion, was the gift made by the bride’s father or other relative to the husband.* On occasion, the gift was made at the time of the wedding, at the church door.” It could consist of money or chattels, rents or lands.* If Glanvill devotes an entire book to dower, his treatment of maritagium is less concentrated, appearing primarily at the start of the start and end of Book VIL. He tells us that any free man who has land can give a certain part of his land with his daughter, or with any other woman, as a marriage-portion [in maritagium], whether he has an heir or not, and whether the heir—if he has one—wishes or not, and even if he contradicts and protests. For he can give a certain part of his free tenement to whom he wishes as reward for his service, or to a religious place in alms.

If seisin followed the gift, land given hereditarily was to remain perpetually with the donee and his heirs; if no seisin followed the gift, then nothing could be claimed after the donor’s death against the will of his heir. As with other alienations, the portion that could be given might depend on whether the donor had both inherited and acquired lands, whether he had heirs of his body, and whether he could obtain his heir’s consent.®° If the donor only had daughters, the marriage-portion might be seen as a daughter's share of the inheritance, received in her father’s lifetime.” Glanvill also provides a distinction: Maritagium is named in some cases free, in others burdened by service. It is called

free maritagium when a free man gives some part of his land to another with a certain woman as a marriage-portion, on condition that the land be free of all service, which shall be discharged by the donor and his heirs to the chief lords. The land shall remain in this freedom until the third heir, nor shall the heirs meanwhile be bound to do any homage for it. However, after the second heir the land shall revert

°° For variants, see Kaye, Conveyances, 137; note the wider usage suggested in Bracton, fo. 21, ed. Thorne, ii. 77. Note also Milsom, Legal Framework, 49, 134-5, 145-6, for gifts to daughters in anticipation of marriage. °” See CRR, vii. 177. Note that this was one reason why some cases turned on confusion between dower and maritagium. °® For the size of marriage-portions in this period, see Bartlett, England, 556. For rents, see e.g. Lawsuits, no. 652. The lands must be the donor’s free tenement; see Lawsuits, no. 650, the quotation from Glanvillin this paragraph, and note CRR, i. 364-5. °° The diverse nature of Book VII is clear from the heading in some manuscripts—‘here begins Book VII concerning lawful heirs and bastards and concerning marriage portions —and also the capitula; see e.g. BL, Additional MS 14252, fo. 40r; Glanvill, ed. Woodbine, 32. °° Glanvill, vii. 1, ed. Hall, 69-71. For mention of the heir’s consent, see also e.g. CRR, vi. 140. °* See above, 649; also below, 790, on Countess Amice.

788 PART III: ANGEVIN ENGLAND to due service, and homage be taken from it, since if it is part of a military fee, it shall bear the service of the fee in proportion to its size. Moreover, some land is accustomed to be given as a marriage-portion saving and reserving to the lord the service due, and then the woman’s husband and his heirs shall be bound to do that service, but without homage until the third heir; he shall be the first to do homage for it. However, a kind of fealty, under pledge of faith or oath, ought meanwhile to be sworn by the women or their heirs, in nearly the same form and the same words as are accustomed to be used in the doing of homage.”

The distinction between free maritagium and other maritagium in fact does not seem to have been so rigorously maintained. Free maritagium might be burdened both with service specifically to the donor and with the service owed by the donor to the king.” Glanvill, moreover, may have used words such as maritagium with a specificity not shared by all parties or scribes. Some gifts at marriage did involve homage. These might be referred to as maritagium because of the occasion of giving but did not have the special characteristics of the gifts that Glanvill outlined. A case from Richard I’s reign has one party refer back to an earlier gift made to a husband ‘with [the donor's] daughter Claricia as in maritagium’ in return for payment ‘in fee and inheritance for his homage and for the service of one knight. After the husband's death, Claricia held the land while her son was a minor, and once of age he did homage and relief, and went on military service in Wales."

If the wife survived her husband, Glanvill tells us, she was to have the marriage-portion.® If husband and wife had no heir, the marriage-portion reverted to donor or heirs immediately on the wife's death. If they had had a child who was ‘heard to cry within the four walls’ and the husband survived the wife, the husband was to keep the marriage-portion for life. Then, if no child survived,

the land reverted to the donor or the donor’s heirs on the husband’s death.® °? Glanvill, vii. 18, ed. Hall, 92. See also above, 432. Bracton, fo. 22, Thorne, ii. 79, shows that this

statement concerning fealty refers to both free and burdened maritagium. See also Glanvill, ix. 2, ed. Hall, 106, on homage not being due until the third heir ‘concerning free marriage-portions, nor was it due ‘concerning any tenement given in any way as a marriage-portion, in relation to [quantum] the person of the husband of the woman whose marriage-portion that is’. Milsom, Legal Framework, 143 comments that earlier heirs might on occasion do homage. See also Kaye, Conveyances, 139.

°° See e.g. RCR, ii. 90, ‘in free marriage...in return for one-eighth of a knight save the service of the lord king and chief lord’; CRR, ii. 228-9; also EYC, v. no. 164. See also Kaye, Conveyances, 137-9.

°* RCR, i. 39-40; see also e.g. CRR, iii. 24. Note also Milsom, Legal Framework, 143 n. 2, for instances where the word maritagium was used of gifts by substitution. °° See also below, 790, on Countess Amice having her maritagium after her separation from her husband. °° Glanvill, vii. 18, ed. Hall, 92-3. Note e.g. PKJ, iii. no. 997. For the provision being spelt out in a charter, see e.g. EYC, v. no. 356, although the charter does not use the word maritagium. Cf. e.g.

29 MARRIAGE AND FAMILY 789 Until the point when homage was done, therefore, the chances of reversion were increased because only heirs of the body were to inherit. Glanvill presents possible reversion as one reason why homage was not taken

for marriage-portions.” For the donor and his heirs the arrangement avoided the rule against being both lord and heir, which would have prevented reversion. Such reasoning reflected systematic consideration of how legal norms impacted on one another, and it affected court argument. In 1208 we see a case turning on whether land had been given ‘in maritagium’ or ‘for homage and service’ and

hence whether the lord-and-heir rule applied. Glanvill further says that avoidance of the lord-and-heir rule is only one reason for homage not customarily being received for marriage-portion, phraseology perhaps suggesting that he had been searching for an explanation and found a technical legal one. The general principle that homage was not done may rather derive from a belief that the marriage-portion was an internal family arrangement, involving what might be a temporary allocation from the heir’s inheritance.” The emergence of the lord-and-heir rule and the avoidance of homage for marriageportion may, therefore, be linked not so much causally as through a shared origin in concern about lordship arrangements intruding into kinship. Although the marriage-portion was a gift by the bride’s kin to the husband, there were limits to the control the latter exercised over it. The husband’s control might be referred to as wardship [custodia]. Thus in a case in 1199, a man facing a demand for reasonable dower responded that he only held the land concerned ‘through wardship, that is through Alice his wife whose marriage-portion that land is, and he vouched her to warranty concerning this’7° Such a position might be reflected in the husband’s powers of alienation. A party to a case in 1200 argued that land that his father and mother had granted in maritagium to another was in fact his mother’s marriage-portion and descended to him as rightful heir. He was thus arguing that his father could not alienate the marriage-portion, at least not with effect beyond the father’s death.”

However, if there were pressures against and restrictions upon alienation, there is also evidence for both husband and wife making grants from the

Northamptonshire Charters, no. 34 (from 1154 x 1169), which is explicitly a gift ‘in franco mariagio, but said simply to be for the donee and his heirs to hold of the donor and his heirs. °” Glanvill, vii. 18, ed. Hall, 93. °° CRR, v. 166-7; see above, 651. For a case of 1219 where one party unsuccessfully invoked the lord-

and-heir rule with regard to maritagium that owed service, see CRR, viii. 73. See further Milsom, Legal Framework, 142-3. °° Milsom, Legal Framework, 145; Kaye, Conveyances, 139-41. ”° RCR, i. 393. ” CRR, i. 163.

790 PART III: ANGEVIN ENGLAND marriage-portion. About 1200 Gundreda de Warenne gave to the priory of St Denis beside Southampton a church that was from her marriage-portion, to possess in perpetuity, just as her husband Geoffrey de la Huse gave it to them and at her petition and instance presented to the bishop of Norwich.” To prevent challenge after his death, the prudent husband might ensure, for example, that his wife pledge her faith that she would not challenge the gift should she outlive him. However, only recording a gift by the husband and wife in a final concord was certain to bind her.” After the end of the marriage, the wife could alienate her marriage-portion.

Following her separation from her husband on grounds of consanguinity, in 1198 x 1217 Amice, countess of Clare and daughter of Earl William of Gloucester, announced that she had established a hospital at Sudbury, ‘in my own inheritance

and free marriage-portion or ‘on my own fee and my free marriage-portion.” Widows similarly controlled alienation of their marriage-portions. We hear of a man in about 1160 making a gift to his maternal uncle, with the permission of, amongst others, the donor's mother whose marriage-portion the land was.” Probably in the mid-1190s, Hawise, widow of William earl of Gloucester, gave land

to Fontevrault from her free marriage-portion in pure and perpetual alms.”° Litigation concerning marriage-portions is quite frequent on the early plea rolls, although not so prevalent as disputes relating to dower.” Cases arose in a variety of circumstances. It might be questioned whether land had been held in such a way that it could be given as marriage-portion”*® Heirs might claim that their ancestor had been excessive in his grant or grants of marriage-portion.” There might be confusion as to whether land was marriage-portion or dower.*° Out of ignorance, uncertainty, or dishonesty, a brother might give land from his sister's marriage-portion; we find such a donor being confronted with a claim by his sister's daughter and son-in-law, and having to compensate them and his

” Book of Seals, no. 219; the couple had a son. Note also e.g. Book of Seals, nos 68, 515, 517; Kaye, Conveyances, 141-2, 188-95.

> See Pollock and Maitland, ii. 411-13. ”* Stoke by Clare, nos 60, 63; on Countess Amice’s case, see also above, 643-4. For the wife retaining her maritagium after divorce, see also CRR, v. 250-1. ”° Book of Seals, no. 146.

”° Earldom of Gloucester, no. 78; in 1194 she had promised the king £133 6s. 8d. for her dower and maritagium; PR6RI, 194. See also e.g. Stoke by Clare, no. 233.

’”” Litigation may have been less common than for dower in part because the husband received maritagium immediately, whereas with dower there might be a considerable gap between the marriage and widowhood. ’® See above, 789, for CRR, i. 163.

” See Milsom, Legal Framework, 125-6, and cases cited there. °° See e.g. CRR, i. 281.

29 MARRIAGE AND FAMILY 791 sister with money.*' Or there might be dispute as to whether the marriage had produced a child.* According to Glanvill, ‘when anyone claims land as the marriage-portion of his wife, or when the woman herself or her heir claims it, then a distinction is drawn as to whether that land is claimed against the donor, or his heir, or a stranger’.®? He then makes the following point concerning jurisdiction: If it is sought against the donor or his heir, then it can be the demandant’s choice whether he shall sue in court Christian or in a secular court. For it belongs to the ecclesiastical judge to try a plea concerning maritagium, if the demandant so chooses, because of the mutual pledges of faith which are accustomed to be made when a man promises to marry a woman and a maritagium is promised to him from the woman's side; nor shall such a plea in a court Christian be prohibited by the lord king’s court, although it concerns lay fee, if it is clear that it is sought for maritagium.

This contrasts with Bracton and with cases from the start of the 1230s that appear

in Bracton’s Notebook, which allow Church courts to hear marriage-portion cases involving money but not land.* Records of pleas do not make clear how far Glanvill’s position represented practice in the decades after he was writing.

Glanvill goes on to discuss cases that arose before the third heir had done homage. If the claim was against a stranger, the plea was to be determined in a lay court, in the same way as pleas concerning other lay fees except that, as in dower cases, the claimant was not to plead without the warrantor.® This last provision appears to have disappeared by the time of the early plea rolls,*° and activity did resemble that in pleas concerning other lay fees. Donors or their heirs might seek

to enforce their rights by direct action or through their courts, thereby risking actions of novel disseisin, or they might bring a writ of right.*” The cases might end up going to the grand assize before the king or his justices, the plea rolls recording the issue as, for example, whether one party had the greater right to hold the land as maritagium or the other to hold in demesne.**

°" Lawsuits, no. 557. °* CRR, iii. 66. °° Glanvill, vii. 18, ed. Hall, 93. ®¢ Bracton, fo. 407b, ed. Thorne, iv. 267; BNB, nos 442 (= CRR, xiv. no. 575), 683. °° Glanvill, vii. 18, ed. Hall, 94. °° See Bailey, ‘Richard I’, 197, Milsom, Legal Framework, 144-5. °” Possible direct action, followed by novel disseisin: CRR, iii. 66. Court judgment and novel disseisin: RCR, i. 447-8. Writ of right: Memoranda Roll, 10J, 100-1, 105; note also CRR, i. 12, for a writ of right

leading to a hearing in the county court. Note also for action by a lord through his court, perhaps in response to a claim by the original grantor’s heir, CRR, iii. 161-2, discussed by Milsom, Legal Framework, 53. For a possible instance of the son of a grantor of maritagium disseising the woman’ second husband, and putting in the son of her first husband, see Milsom, Legal Framework, 144 n. 1, on CRR, iii. 305. °° See e.g. CRR, iii. 318; note also e.g. v. 137; vi. 144.

792 PART III: ANGEVIN ENGLAND Dower Glanvill devotes the entirety of his Book VI to dower. He begins with terminology:

‘what is commonly called [dicitur...dos vulgariter] is that which any free man gives to his wife at the church door at the time of his marriage. For every man is bound both by ecclesiastical law and by secular law to endow his wife at the time of his marriage.*® He then follows his characteristic dilemmatic method by presenting two possibilities: “When a man endows his wife, he either nominates

dower, or does not: Had he not been so wedded to the dilemmatic approach, Glanvill might have allowed more possibilities, for example (1) the husband names specific places as dower. If his father was still alive, these might include lands that the husband had received by his father’s grant, perhaps as recently as the occasion of the marriage itself, or lands of which he was not yet seised;% (2) without naming specific places, he explicitly states the proportion of land that is to pass to the wife as dower, for example one-third of the land that he held at the time of the marriage, or one-third of his inheritance whether he currently held it or not, or one-third of the lands that he held at death; (3) he endows her, but with no specific terms; (4) he makes no explicit mention of dower.

The promise of dower was customarily associated with the marriage ceremony at the church door. Such an association might prevent dower arising from marriages made in other circumstances, most notably at the husband’s deathbed or clandestinely. It is, however, hard to tell whether dower entitlement arose solely from marriages at the church door, or whether this requirement only hardened in the thirteenth century.” Glanvill’s assumption of church-door endowment may be indicative of the customary good practice that royal justices came to enforce as a strict rule.”

°° Glanvill, vi. 1, ed. Hall, 58-9. He is drawing a contrast with Roman law usage, where, he tells us, dos means the property given with the woman to her husband as a marriage gift; Glanvill, vii. 1, ed. Hall, 69. Glanvill’s use of vulgariter may allude to vernacular usage, and forms such as doarium, reflecting the vernacular, appear with significant frequency in Latin charters; see e.g. EYC, i. no. 48; Northamptonshire Charters, no. 32. For the usual meaning of dower in England, note also e.g. London, British Library, Add. Ch. 28347, quoted above, 448. On separation that led to loss of dower, see above, 784. °° See EYC, i. no. 317, for a charter recording a gift in free dower made at the church door, which details the extent of the tenement given. It covers one-third of the land where the husband lives, thus combining nominated dower with the notion of one-third. On marriage within the father’s lifetime, see below, 793.

°" See Bracton, fos 302-4, ed. Thorne, iii. 372-7; Pollock and Maitland, ii. 374-5; P. A. Brand, “Deserving” and “undeserving” wives: earning and forfeiting dower in medieval England’ (2001) 22 JLH 1-20.

°* See J. S. Loengard, ‘“Of the gift of her husband”: English dower and its consequences in the year 1200’, in Women of the Medieval World: Essays in Honor of John H. Mundy, ed. J. Kirshner and S. F. Wemple (Oxford, 1985), 215-55, at 218-20.

29 MARRIAGE AND FAMILY 793 Dower could include money and chattels if a man had no land,” but it is endowment of land, rents, and services that were the main concern of Glanvill and of the cases heard in the royal courts.** Certain lands should not be assigned in dower: lands that women already held in dower, and the chief messuage, which should not be divided.** Cases show women being given compensatory lands in place of the chief messuage.°®

The dower, according to Glanvill, should be from ‘the free tenement of her husband, which he had at the time of marriage, in such a way that he was seised in demesne’.” However, in many significant marriages, the lands at the time would have been in the hands of the husband’s father or another relative of whom he was

heir. Glanvill mentions this possibility towards the end of his discussions: when someones son and heir marries a wife with his father’s consent and gives his wife a certain part of his father’s land as dower by assignment of his father, she cannot ever in future claim more as dower. However, if her husband predeceases his father it is uncertain whether she can keep that land as dower and whether her husband’s father is bound to warrant that land to her.®

Plea rolls frequently mention endowments from lands held by the groom’s father at the time of the wedding.» The transaction between father and son might take place by a direct grant to the son or by substitution.’°° A father might grant his son all his lands, or a third of all his land so that the son might give it to his wife when he married her.’ In practice, the father may have continued to enjoy the land, and very occasionally this is spelt out in terms of the father having a lifetenure from the son and wife.’”

°° Glanvill, vi. 2, ed. Hall, 59. Dower in money and chattels may have been particularly common in towns. °* For services, see e.g. EYC, i. no. 48. °° Biancalana, ‘Widows’, 297; Glanvill, vi. 17, ed. Hall, 67; see also TAC, 3. 1, ed. Tardif, 2. Note EYC, i. no. 317, granting one-third of the land where the husband lives. °® See e.g. CRR, iii. 23; vii. 191. See also below, 804-5, on curtesy.

°” See Glanvill, vi. 1, ed. Hall, 59, on non-nominated dower, which is quoted here, and vi. 8, ed. Hall, 62, on nominated dower; the latter passage, which gives the woman’s statement of her claim, does not specify that her husband was seised of the land in demesne. It may have been possible for some lands alienated for short terms to be included in dower assignment; see e.g. CRR, ii. 205, 288, where the claimant argues that the late husband had only ‘gaged [the land to the other party] fora set term’. See CRR, iv. 271, for a man ridding himself of land before he remarried, so that the land might pass to the son of his first marriage without his second wife having entitlement to dower. °® Glanvill, vi. 17, ed. Hall, 68. See also TAC, 79. 1-2, ed. Tardif, 80-1; and below, 799. °° See e.g. CRR, i. 323; ii. 213-14; v. 129; PKJ, iii. no. 997.

*° Substitution may be indicated by use of the phrase se dimisit, e.g. CRR, i. 363, iii. 52; iii. 203; Milsom, Legal Framework, 146-8. Note also the charter included in BNB, no. 18. *°! See the more complicated arrangements recorded in RCR, i. 365-6, ii. 102. *°? See CRR, iii. 6-7.

794 PART III: ANGEVIN ENGLAND Glanvill, charters, and cases show that the non-nominated dower entitlement from land held by knight service was one-third of the free tenement of which the husband was seised in demesne at the time of marriage. Nominated dower might be less than, and must not exceed, that proportion.’ For socage land the proportion might be higher, one-half, at least in Norfolk and Suffolk.'°* Likewise Kentish custom gave the widow half of gavelkind land, as opposed to one-third of that held by knight service, but only until she remarried or forfeited the dower by having a child.’°* Case records show that dower did not arise with villeinage lands.’°°

What of land acquired after marriage? Here a distinction may be needed between any of his inheritance that the heir obtained after his marriage, certainly by descent and perhaps through litigation, and acquisitions in the stricter sense of lands that formed no part of the inheritance. A similar distinction was made in a case of 1207. A widow claimed a third of a vill by gift of her husband, ‘who on the day on which he married her endowed her with regard to all his inheritance, i.e. with regard to that of which he was seised on that day and with

regard to that which could descend to him, and similarly with regard to the third part of his acquisition.” A case of 1201 mentions a man endowing his wife with ‘one-third of all his inheritance that would descend to him if he outlived his father’*°* It is possible that these were special, if not necessarily unusual,

arrangements rather than reflections of the widow's customary entitlement. However, Glanvill’s statement about appurtenances explicitly included in a gift of land as nominated dower may be relevant: if at the time of marriage ‘he did not have some appurtenance in his demesne, nor was he seised of it at the time

of marriage, and during his life he deraigned it or acquired it justly in some other way, his wife can justly claim that appurtenance with the others by right of dower after her husband’s death’.’°? Here not seisin but the husband's rightful entitlement at the time of marriage seems the basis of the wife’s entitlement to dower after his death.

® Glanvill, vi. 1, ed. Hall, 59; see also vi. 17, ed. Hall, 67. Note e.g. Registrum Antiquissimum, no. 2943, CRR, iv. 216; Kaye, Conveyances, 199-201.

*°* See e.g. CRR, iv. 275 (Norfolk), discussed below, 800; Pollock and Maitland, ii. 421-2; Brand, ‘Local custom’, 150-3. See also below, 811, for an element of honorial variation. "°° See CRR, iii. 9-10; iv. 317, v. 7 (noting the scribal emendations); CRR, iii. 9-10, is not entirely clear; Pollock and Maitland, ii. 421-2; Brand, ‘Local custom’, 157. °° See esp. CRR, i. 313; vi. 147, 192-3. Dower only arose from free tenements (see Glanvill, above, 793), but the widow of a man holding by unfree tenure might retain the land after his death, perhaps until remarriage; see CRR, vi. 192, Pollock and Maitland, ii. 427; G. C. Homans, English Villagers of the Thirteenth Century (Cambridge, MA, 1941), 176-84, on ‘free bench’. "°7 CRR, v.55; cf. vi. 345-6. "8 CRR, i. 376. Note also e.g. CRR, iv. 304. *°” Glanvill, vi. 12, ed. Hall, 65.

29 MARRIAGE AND FAMILY 795 As for acquisitions to which the husband had no hereditary claim, we have seen that the situation in the Anglo-Norman period is unclear. Custom may have varied between regions and lordships.”° Glanvill requires specific statement concerning acquisitions: it sometimes happens that if someone who marries a woman has a small amount of tenement, he can increase that dower, that is from his acquisitions, up to one third or less. But if nothing was set down about acquisitions in the assignation of dower, even though he has little tenement at the time of marriage and afterwards acquires much, no more than a third part of that tenement which he who endowed the woman had at the time of marriage can be claimed in dower. I state the same if a man who has not land endows his wife with money or other chattels, and afterwards makes great acquisition in lands and tenements, since nothing of acquisition can be claimed as of right as dower in future. Since, as a rule, however much and whatever type of dower is assigned to any woman, if the amount for dower thereby was sufficient for the woman at the church door, never can she in future seek more for dower.”

In 1217 the reissue of Magna Carta laid down that a widow was to be assigned a third of all the land of her husband which was his in his life, unless she was endowed with less at the church door.’ This entitles her to a share of acquisitions subsequent to marriage, as well a share of inheritance. Again it is possible that Glanvill was misleading on practice or on the usual opinions of royal justices in the 1180s."3 However, we do have cases where the tenant pleaded on the grounds that the husband was not seised of the relevant lands at the time of marriage.” It can be argued, therefore, that very significant change occurred as regards royal courts treatment of post-marriage acquisitions between Glanvill’s time and 1217. The change may have been gradual, in terms of modification of practice and of court behaviour. Possibly Magna Carta presented what was already considered

good practice for husbands, best spelt out at the time of endowment, although not previously enforceable in court." It is also possible that royal justices were

*® CRR, i. 388, states that a man could endow his wife ‘from his purchases, according to the custom of Carlisle. However, it is unclear whether this refers to purchases before or after the marriage, or both. ‘™ Glanvill, vi. 2, ed. Hall, 59-60. *'* Magna Carta 1217, 7. Note also Pollock and Maitland, ii. 421. “> See Biancalana, ‘Widows’, 278-80. ‘™ Biancalana, ‘Widows’, 284-5. *® See Biancalana, ‘Widows’, 282-4, although he dates the start of change as 1176. *t® See J. S. Loengard, ‘Rationabilis dos: Magna Carta and the widow’s “fair share” in the earlier thirteenth century, in Wife and Widow in Medieval England, ed. S. S. Walker (Ann Arbor, 1993), 59-80, at 63-5.

796 PART III: ANGEVIN ENGLAND not taking an entirely consistent line on entitlement to post-marriage acquisitions in the period leading up to Magna Carta and its 1217 reissue.”

Texts normally referred to husbands endowing their wives at the time of marriage, not delivering seisin to them."* The wife’s control of the land in her husband’s lifetime was distinctly restricted. According to Glanvill, it should be known that a woman cannot make any disposition [nichil potest disponere]

concerning her dower in the lifetime of her husband. Because, since that woman is fully in the power of her husband as of right, it is not surprising if the woman's dower as much as all her other things are understood to be fully in the disposition of her husband. Therefore any man having a wife can give, sell, and in any other way that he wishes alienate the dower of his wife in his lifetime, thus that his wife is bound to consent to him in this and in all other things that are not against God.

What of the duration of the husband’s grants? Glanvill’s passage immediately continues: moreover, a woman is bound to obey her husband to such an extent that if her husband wishes to sell her dower and she contradicts him, if afterwards that dower is sold and bought thus, when her husband has died, the woman cannot seek that dower against the purchaser, if she has confessed in court or been convicted on this, that, with her contradicting her husband, her dower was sold by her husband."

However, despite the obvious initial reading of the text, this need not indicate that wives were unable to prevent their husbands from alienating dower lands with effect beyond the husband’s death. Firstly, it should be noted that this latter part of the passage is carefully restricted to sales, although the first mentions gifts and other forms of alienation. Secondly, Glanvill tells us that if a husband gave to a religious house a church from his wife’s dower, the church ought to be delivered to his widow and she was to have free presentation during her lifetime. Only after her death and that of any cleric whom she had presented was the church to pass in perpetuity to the religious house.’° In this case, clearly, ‘'” The pleading need not always reveal that the disputed lands were acquisitions. The development of pleading early in Henry III's reign to include the phrase ‘or ever thereafter’ in addition to reference

to seisin at marriage need not indicate that the entitlement to acquisitions was never previously recognised. On these points, note the discussion in Biancalana, “Widows, 286-8. “'® Cf. Loengard, ‘““Of the gift of her husband”’, 222, with Jotion des Longrais, La Conception Anglaise, 330-1, who saw transfers of seisin as the norm. " Glanvill, vi. 3, ed. Hall, 60. Note also Glanvill, xi. 3, ed. Hall, 135, where the author leaves undecided the issue of whether a widow could reopen a case concerning her dower or maritagium which her late husband had lost whilst acting in her place in the king’s court. See also above, 789-90. "2° Glanvill, vi. 17, ed Hall, 67-8; note also his preceding statement that if a husband granted toa clerk a church from his wife’s dower, the clerk could keep the church for life, even if the grant of the church occurred after the endowment of the wife.

29 MARRIAGE AND FAMILY 797 the husband’s gift to the religious house did not amount to a full livery of seisin. Thirdly, Glanvill seems later to contradict himself, or at the very least reduce the significance of his earlier statement, by saying that if any womans husband sells his wife's dower to another after he endowed her with it, his heir shall be bound to deliver that dower to the woman, if he can, and also to give to that purchaser [lands] as a reasonable exchange for his ancestor's sale or gift; if he cannot [deliver the dower to the woman], he shall be bound to give her reasonable exchange.

Glanvill also tells us that when a woman’s husband dies, if dower has been nominated, it is either vacant or not vacant. If vacant, the woman can place herself on her dower and keep herself in seisin with the consent of the heir. If, however, it is not vacant, then either none is vacant, or else some part is vacant and some is not. If some part is vacant and some not, she may place herself on the vacant part in the aforesaid way, and in respect of the rest she shall have a writ of right to her warrantor [i.e. the heir], that is, that he provide full right to her [teneat ei plenum recti] concerning that land which she claims to belong to her reasonable dower.’””

Glanvill here makes no mention of consent, and it is possible that donations in which the wife took an active part may have been binding on her after the husband’s death.'? However, the passage does suggest that a widow could obtain the termination of the tenure of anyone holding land received by gift of her husband from her dower. This may explain the apparent contradictions in Glanvill. The earlier passage can be read in a strict way: the woman indeed could

not by herself seek the dower against the purchaser, certainly not in the sense of having an action in the king’s court. Rather she must seek to obtain the land through a writ directed to the heir/warrantor. Should the case reach the king's court, it was not to proceed without the heir/warrantor.’*4 Evidence of practice also suggests that Glanvill understates the wife's position and the implications of her participation in grants from dower.” It is not just that some charters mention the wife’s consent, the recording of which might seem unnecessary if it could not be refused and had no lasting effect.’”° Rather, a wife is sometimes described as participating more actively, as donor and as pledge of faith, or as

** Glanvill, vi. 13, ed. Hall, 65.

* Glanvill, vi. 4, ed. Hall, 60. "3 See the paragraph that follows this one. ‘?4 See further below, 801. "2° See e.g. Three Rolls, 7-8. *° See e.g. EYC, iii. no. 1849; also Biancalana, ‘Widows’, 269-70, 305-7.

798 PART III: ANGEVIN ENGLAND making payment to her husband so that she might do her will concerning the land.’” Some donors felt it useful to specify that their gifts to the Church did not belong to their wives’ dower but were from the other two-thirds of their lands.’ Charters also show exchanges being given to wives when their dower was alienated.’? Such evidence suggests that wives could exercise significant control regarding alienation of dower, especially regarding its fate after the husband's death. When the husband died, his wife should receive her dower. Bracton introduces a qualification, that the widow must be able to ‘earn dower and support a husband; apparently meaning that she is sexually mature at the time of her husband's death. There is no evidence as to whether this norm applied in the Angevin period; possibly the problem did not arise if, in the twelfth century, marriage before the church only took place for women who were of age and only such marriages brought dower.”° Assignment of dower was not to be postponed because the heir was under age, attractive as this may have seemed to the heir’s guardian.’ Also concerned with delay, Magna Carta of 1217 laid down that dower should be assigned within forty days, perhaps representing what was already considered good practice.¥* Magna Carta of 1215 stated that widows were not to give anything for their dower, in contrast to the proffers that appear in royal financial records.” The widow did not do homage for her dower," although due services should

be performed to her husband’s heir. She in turn received service and profits from the land and its men, and might make presentment to any church that fell vacant.%° However, like other life-tenants, she was not to waste her holding,

°7 E,g. EYC, iv. no. 115, Danelaw Documents, no. 27 (on which see also nos 25, 26); cf. Cartulary of the Cistercian Abbey of Old Wardon, Bedfordshire, ed. G. H. Fowler (Manchester, 1930), no. 63. Note also Pollock and Maitland, ii. 411. "8 See e.g. Danelaw Documents, nos 34, 106, both to Bullington Priory. **° Note e.g. the rearrangement recorded in EYC, ix. no. 17. "°° Bracton, fo. 92, ed. Thorne, ii. 265; Brand, “Earning and forfeiting dower’, 3-8; above, 792. ** Glanvill, vi. 17, ed. Hall, 67. *°? Magna Carta 1217, 7. "°° Magna Carta, 7; Holt, Magna Carta, 197-8; Loengard, ‘“Of the gift of her husband” ’, 234-5. Note also the provision in the 1215 Magna Carta, 11, that wives were to have dower, and not be obliged with regard to their husbands’ debts. The clause was omitted from the reissues, but ‘appears to have reflected

widespread practice, and the thinking behind it persisted’; Loengard, ‘Rationabilis dos, 71. *** Glanvill, ix. 2, ed. Hall, 106; see also Milsom, Legal Framework, 145. It is uncertain whether she had to swear fealty; cf. above, 787-8, concerning maritagium. °° See e.g. Glanvill, vi. 5, ed. Hall, 61: the heir is to do full right to the widow for lands of which a third party is deforcing her, which land she claims as belonging to her reasonable dower, and which she holds of the heir “by the free service of 10s. a year for all service’. "°° Services: e.g. Rotuli de dominabus, no. 19. Presentment: Glanvill, vi. 17, ed. Hall, 67-8; if there

was only non-nominated dower and the inheritance included only one church, should that church fall vacant in widow’s lifetime, the heir was not to present without the woman’s consent.

29 MARRIAGE AND FAMILY 799 that is cause lasting damage, for example by the cutting down of timber.” She could make alienations that would last for her lifetime, but not permanent ones."* Glanvill tells us that if her dower included a church, she could not alienate it to a religious community, because this would forever take away the heir’s right.¥° She could bring pleas concerning the land, using writs of dower and also novel disseisin.’*° Except for gavelkind lands, the widow retained her dower for life, even if she remarried.'** On her death, the dower then passed to her husband’s heir, who might not be her own heir, but rather, for example, the son of her husband ’s first wife.” Litigation concerning dower was very common.'* Dower was a substantial drain on an heir’s resources, particularly if the dowager was long lived, or if an heir’s lands simultaneously incurred more than one dower entitlement, for example from his grandmother and mother.'** Any delay in allocating dower would be to the heir’s profit. Likewise, a father would be burdened if the endowment was made during his lifetime and then his son, the husband, predeceased his daughter-in-law.’* The father might then seek to avoid assigning dower, for example swearing that he had not been present at the wedding. Such pleas were generally unsuccessful, but the father might still benefit from having retained *°7 See below, 803-4.

"8 See Kaye, Conveyances, 207-8; note also Kaye, Conveyances, 205, on the situation that arose if the woman remarried. Fora grant for fourteen years, see Fines, sive pedes finium, i. 196. ‘°° Glanvill, vi. 17, Hall, 67. **° Novel disseisin: see e.g. Three Rolls, 69; note also CRR, i. 320-1.

‘On gavelkind, see above, 794, Pollock and Maitland, ii. 422; on dower and the warrantor’s control of the dowager’s remarriage, above, 781. Cf. Dialogus, ii. 18, ed. Amt, 172, on dower as reward for the widow's chastity, although this comment was not developed into a position that the widow forfeited dower on remarriage.

See e.g. Rotuli de dominabus, no. 48. Note also EYC, i. no. 317, an arrangement allowing the wife, if she died before her husband, to assign dower land to any of her progeny, without contradiction of her husband or his heirs, so long as the husband could hold freely in his lifetime. For an heir giving toa man a vill after the death of the heir’s mother, who currently held it as dower, see Book of Seals, no. 405, datable to c. 1190; it is possible that it was known that the mother did not have long to live. Until the mother died, the donor was to give the donee one bezant a year from his chamber ‘concerning seisin’, until the land was quit of the heir’s mother. > Loengard, ‘Rationabilis dos’, 73 n. 1, notes that there are more than 250 entries relating to the subject in the curia regis rolls between the Hilary term of 11 John and the Trinity term of 14 John. Cases regarding dower lands could of course arise for reasons other than the widow's claim, for example third-party incursion. See also Loengard, ‘Rationabilis dos’, 59-60, for litigation brought for reasons extending beyond widow’s right of dower; Loengard, “Of the gift of her husband’, 231-50, on family relationships and dower disputes, 250-5, on faults in the actual process of assigning of dower. Dower cases seem rarely to have turned on whether the woman had actually been married; see Milsom, ‘Inheritance by women’, 246 n. 74, on unde nichil habet cases. For other cases where marriage was disputed, see e.g. CRR, i. 432, ii. 63.

4“ See Loengard, ‘“Ofthe gift of her husband” ’, 238-40. “8° Note e.g. PKJ, iii. no. 997.

800 PART III: ANGEVIN ENGLAND the land temporarily.’** Complex family relationships might cause problems, as when the heir obliged to allow dower was the son of the husband's first wife, not of the widow.'”

There might also be genuine or claimed uncertainty as to what had been nominated as dower, or the value of lands from which ‘reasonable’ dower was to be assigned.'** Or the question might be whether lands had been in demesne at the time of marriage, or were not such as could be granted as dower, for example lands held only in curtesy.’*? There might be uncertainty as to the form of tenure by which lands were held, although the obligation to give dower therefrom was accepted. In 1206 in Norfolk, a man and his wife sought reasonable dower of land

that was the free tenement of her earlier husband, that is half of 180 acres that were socage.’° One of the tenants accepted the claim on her land, but her sister and brother-in-law said that the claimant should not have half the remaining land in dower, because it was knight’s fee. The sheriff was ordered to enquire whether [utrum] the land was knight’s fee or socage, and found that the woman’s former husband had held partly in socage, partly through military service. The

sheriff was ordered to make the claimants have half of the tenement held in socage and one-third of the tenement held through military service, ‘since this was adjudged in the court of the lord king at Westminster’.

Glanvill does not provide an extended treatment of procedure for cases involving non-nominated dower, except when the widow received nothing. It may be that if the heir had sufficient lands in demesne to satisfy her claim, he should provide for her from these. If he did not, because the widow’s husband had alienated too much of his lands, she had to receive at least some of the alienated

“° J. S. Loengard, “What did Magna Carta mean to widows?’, in Magna Carta, ed. Loengard, 134-50, at 141-2.

“7 See Loengard, ““Of the gift of her husband” ’, 232, for cases between widows and stepsons. “8 See e.g. CRR, i. 260-1, ‘Staffordshire Suits’, 170-1; on valuation, see esp. CRR, v. 63, 157-8, 226, 235-6, 250, vi. 123. *“° See respectively e.g. RCR, i. 407; Rot. de ob. et fin., 61, CRR, i. 288, PR2J, 153. On curtesy, see

below, 804-5. "°° CRR, iv. 275.

*°" Glanvill, vi. 17, ed. Hall, 67; below, 803, on unde nichil habet. See Pollock and Maitland, ii. 423-4, with a qualification arising from the passage of Glanvill, vi. 3, discussed above, 796. Glanvill gives a further writ in his Book XII, devoted to pleas outside the king’s court. It ordered the sheriff to make the widow have her reasonable dower of the whole fee that her husband had held. Further provisions are included, and the writ is of unusually complex form. It has the heading in some manuscripts ‘Writ for a woman concerning having reasonable dower’, and may be concerned only with tenancies-in-chief. It did not become one of the standard writs that appear in the Registers. See Glanvill, xii. 20, ed. Hall, 145-6.

29 MARRIAGE AND FAMILY 801 lands.” The grantee would receive suitable compensation, at least until he was restored following the woman's death.*® In contrast, Glanvill does include a lengthy section on the widow's action against

the tenant of nominated dower land.’ She was to obtain a writ of right to her warrantor, that is to her former husbands heir. This instructed him to provide full justice to her concerning the land that a third party was withholding from her.’ If the warrantor did not do so, the sheriff would. The case was to be treated in the warrantor’s court, until it was proved to have failed her with regard to right. When default of right was proved, procedure was as in other actions of right, with transfer to the county court, and then to the chief court of the lord king, should the king or chief justiciar so wish. Glanvill goes on to tell his readers that when both are present in court, the woman is to state her right against her opponent in the following words: ‘T seek this land as belonging to that which was nominated for me as dower, with which my husband endowed me at the church door on the day on which he married me, being land of which he had been vested and seised at the time when he endowed me with it.’ To a claim of this kind the other party may reply in different ways. He shall either deny or grant that she was endowed with it. Whatever he says, the plea ought not proceed without the heir of the woman’s husband.'*

That heir was to be summoned by writ to warrant the widow. Glanvill reveals uncertainty as to what was to happen if the heir then failed to attend. According to some he could be distrained by his fee to come to court to show whether he ought to warrant; according to others he could be attached by pledges for this purpose.’” When the heir appeared in court, either he attested the widow's claim and admitted that it was her dower, and that his ancestor had been seised at the time when he endowed her of it as named dower, or he would not attest and admit

these points. If he admitted that it was dower, he was either to deraign the land against the tenant and deliver it to the widow, whereafter there would be a plea between heir and tenant, with the latter seeking an exchange; or he was to give the widow a suitable exchange. If he did not admit the widow's claim, the plea *°* Note RCR, i. 408; CRR, vi. 226, 231, 267-8, 315-16, 364-5, vii. 31, 33, 95-6, 155.

‘°° For such an arrangement, see Lincs., no. 1504, although it is uncertain whether the heir had no alternative lands that he could have given the woman. *°* For this paragraph, see Glanvill, vi. 4-11, ed. Hall, 60-5; see also above, 796-7. "°° For acase where a writ may have been directed against the heir’s lord, see EYC, v. no. 190. Fora widow bringing a royal writ early in Henry II’s reign, contesting her former husband’s quitclaim on the grounds that the land concerned was her dower, see Lawsuits, no. 378.

*°° See also Biancalana, ‘Widows’, 310. It may be that it was for the tenant to insist upon the presence of the warrantor, e.g. CRR, v. 84-5, raising the possibility that some tenants may have been happy to allow the case to proceed without the warrantor being present. CRR, vi. 315, may be a case where tenants, as well as heir, admitted the widow's claim. Note also RCR, i. 407. *°7 See also Bailey, “Richard I’, 196-7, 202-3; Milsom, Legal Framework, 72-3.

802 PART III: ANGEVIN ENGLAND was now between widow and heir. It was to be settled by battle if the woman had a suitable witness to back her claim, having heard and seen her endowed by the heir’s ancestor at the church door at the time of marriage. If her witness succeeded at battle, the heir must either deliver the land to the woman or assign her suitable exchange. Plea roll evidence suggests battle in fact was very rare, and that commonly juries or witnesses were used instead, or documentary evidence, or very occasionally wager of law."

Glanvill thus suggests some flexibility in cases over nominated dower as to whether widow or tenant received the disputed tenement or the exchange. Bracton would be much firmer; if it was nominated dower, the widow received the land, the tenant the exchange; if not nominated dower, the tenant kept the land, the woman received exchange.’® A similar norm is explicitly stated in a case of 1211. Agatha de la Kersimere sought against Gilbert de la Kersimere a third part of ten and a half acres in Stansfield, Suffolk, as her dower, concerning which Thomas de Muleton vouched him to warrant, who warranted him. And so it was decided that Agatha is to have her seisin concerning a tenement of Gilbert’s, to the value of the tenement that she seeks against him [i.e. she is to receive an exchange of equal value], for this reason, that it is not specifically named in her count concerning what land she was endowed with, but concerning the third

part generally.’

However, there are also early thirteenth-century cases that show the tenant receiving the exchange in cases apparently both of nominated andnon-nominated dower. It seems that the sharp distinction found in Bracton and foreshadowed in the case of 1211 was only fully established in the period after Magna Carta.”

Cases could also arise when the widow received no dower, either because the heir was actively refusing it or because all the land was in tenants’ hands. Glanvill tells us the following: ‘when none of a widow's dower is vacant, so that she has none of it, then the plea is dealt with from the start in the court of the

lord king, and he who is holding that dower shall be summoned by... writ.” According to Bracton, such cases went directly to the king’s court because the tenant might deny that any marriage had taken place, and it was only the king’s

** Loengard, ‘“Of the gift of her husband” ’, 227-9. Note also Lincs., no. 513, ‘it was decided that

duel is not to be done concerning dower’; the statement appears to be a general one, rather than specific to the particular case. *°* Bracton, fo. 299b, ed. Thorne, iii. 365. *°° CRR, vi. 149.

*°! See e.g. the cases cited by Milsom, Legal Framework, 43 n. 1; Biancalana, ‘Widows’, 310-12. "©? Glanvill, vi. 14, ed. Hall, 65.

29 MARRIAGE AND FAMILY 803 court that could direct this question to ecclesiastical jurisdiction.’ Another possibility is that the king’s court had jurisdiction because, if the widow had received no dower, there was a strong case that justice had not been done, and the king should act for this reason as well as to fulfil his general obligation to protect

widows.‘ Glanvill goes on to give the writ unde nichil habet [‘whence she has nothing’], a writ instructing that the sheriff order [precipe] the tenant to cause the woman to have her reasonable dower, which she claimed to have by gift of her husband, of which she complained the tenant was unjustly deforcing her. If he did not do so, he was to be summoned before the king or his justices on a specified day, to show why he had not done so. Then, whether the heir or some other person was holding the dower, the heir must be present to answer the widow’s demand. If some other

person was withholding the dower from the heir, he should be summoned by unde nichil habet, whilst the heir would be summoned by the writ cited above in cases where the widow had received at least some dower. The plea would then go on according to the particular circumstances of the case.'® If kings were supposed to protect widows, this did not mean that they always

had to take the woman's side in dower disputes. Heirs could obtain a writ ‘concerning measurement of dower [de dote admensura]’. The heir complained that the woman had more than she ought as reasonable dower, and a writ was sent to the sheriff. I command you that justly and without delay you make it be measured, and justly and without delay make the [complainant] have what he ought to have concerning his right and inheritance, and justly and without delay make the [widow] have what she ought to have and what it pertains should be had according to her reasonable dower.’

The sheriff carried out the measurement by assembling the county or hundred court, and through the knights and men of the hundred enquired whether the woman had more land in dower than she ought.” Those who had been present at the wedding might be considered especially suitable for such enquiries.’® Heirs could also obtain royal aid against the widow who, sometimes with her new husband, was allegedly committing waste on her dower; the earliest Register

“°° Bracton, fo. 296-296b, ed. Thorne, iii. 357. *°* Biancalana, ‘Want of justice’, 441. *°° Glanvill, vi. 15-17, Hall, 66: above, 801. “°° Glanvill, vi. 18, ed. Hall, 68-9. PR22HII, 111, PR25HII, 72, record men paying that women not have more than their reasonable dower. *°7 See e.g. CRR, vii. 167-8. Note also e.g. PKJ, iii. no. 997. CRR, iii. 142-3, mentions the drawing of lots being used in a case of admeasurement of dower. *°8 See e.g. CRR, i. 376; v. 224; Early Registers of Writs, Hib. 51.

804 PART III: ANGEVIN ENGLAND includes a writ ordering the sheriff not to permit the widow ‘to make waste or destruction or sale of land or woods’, to the disinheritance of the heir.’®

Morning-gift There is a little evidence after the Norman Conquest for the husband giving his wife a ‘morning-gift’ following their marriage. A charter of the 1160s tells us that Simon de Boisrohard gave his wife in dower [in duarium|] specified land, a mill, and a named man’s service. ‘After she came into my bed’, Simon also gave her ‘in addition [in creis]|’ the service due from another named man who held land from him. The witness list is split between those who were present at the wedding and those who were witnesses of the additional gift.”° Use of the vernacular may suggest an unpractised scribe who mentioned an element usually absent from charters, that is the morning-gift here called the increment. How widespread were such gifts must remain uncertain; they do not feature in the plea rolls as did dower or maritagium, and may perhaps have been regarded as ‘private agreements .”!

Curtesy As we have heard from Glanvill, if a man received land in maritagium with his wife, and by that wife had a child who was heard to cry within the four walls, the husband, if he outlived his wife, was to keep the land for life, whether the heir survived or not.” This is one element of the husband's right later termed tenancy ‘by curtesy’, which gave him a life interest not just in the maritagium but in all his dead wife’s lands, an interest that lasted even if none of his wife's offspring lived and even if the man remarried. This last element may explain why the husband was at the time commonly referred to as having the land “by the law of England’ or ‘by the custom of England’; certainly in the thirteenth century it was said to be the long-standing custom in Normandy that remarriage led to termination of the widower’s tenure.”

"8° See e.g. CRR, vi. 42.

‘’° Northamptonshire Charters. no. 32. Cf. above, 238-40, on Anglo-Saxon practice. 7" See above, 691. ‘’? See above, 788. Note also CRR, iii. 66. For a woman’s second husband claiming curtesy entitlement to the maritagium of her first marriage, see Milsom, Legal Framework, 51-2. Glanvill, vii. 18, ed. Hall, 93, says that a second husband was to be treated in the same way as a first. Cf. Bracton, fo. 438, ed. Thorne, iv. 360, where a contrary opinion of the justice Stephen of Segrave is noted. ‘7° Le Grand Coutumier de Normandie, 121, ed. J. A. Everard (St Helier, 2009), 546-7. On England, see Pollock and Maitland, ii. 414-20; Milsom, ‘Inheritance by women’, 256-7.

29 MARRIAGE AND FAMILY 805 Although Glanvill’s discussion is restricted to maritagium, in his time the husband most likely did enjoy the wider right to all his dead wife’s lands.”4 A case early in John’s reign turned on whether a man died ‘seised as of fee or as of the custody [warda] that he had concerning the land for all his life by occasion

that he had a child [fil’] from [his first wife]’"”* In another case a lord lost in novel disseisin because he seems not to have recognised the right of curtesy.’”° However, litigation over curtesy is not prominent in the plea rolls. Some may be hidden by general verdicts, and we do hear, for example, of husbands being disseised of maritagium by a woman’s heir from an earlier marriage. However, in general the fact that the husband already held the land and had been accepted by his wife's lord perhaps rendered litigation relatively uncommon, and this in turn may explain the limits of Glanvill’s discussion.’

4 MINORS Age of majority Glanvill specifies the ages until which minority lasted: until twenty-one if he is the heir and son of a knight or tenant through military fee; but if the son or heir of a sokeman, he is understood to have age when he is fifteen; but if the son of a burgess, he is then understood to have age when he can carefully count money, measure cloth, and likewise carry on his father’s business.’

The Rotuli de dominabus can be taken to support Glanvill, with several examples of twenty-year-old males in wardship.'’” Glanvill gives no similar specification as to when women came of age, and Bracton could give no single simple statement on the subject.’*° In the termination of wardship, the age of the ward might be contested, and Glanvill explains that ‘if there is doubt whether heirs are majors or minors, then it is clear that lords shall have both heirs and inheritances in wardship

"7% See Pollock and Maitland, ii. 420 n. 1. *’° RCR, ii. 65, 196; see also Milsom, ‘Inheritance by women’, 257.

° ‘Roll of the Justices at Bedford, 1202’, no. 63. ”7 See Milsom, ‘Inheritance by women’, 255-7. 78 Glanvill, vii. 9, ed. Hall, 82. "7° See Rotuli de dominabus, nos 84, 108, 145, 162, 184, 225. No. 224 is an odd example, where it is stated that ‘the land of Robert Picot in Quy...is in the wardship of Ranulf de Glanville, and Robert Picot is of age and is a knight’. *®8° Glanvill, vii. 12, ed. Hall, 85, quoted below, 807; cf. Bracton, fo. 86b, ed. Thorne, ii. 250-2. Fora fifteen-year-old girl in the king’s wardship, see Rotuli de dominabus, no. 179.

806 PART III: ANGEVIN ENGLAND until full age is reasonably proved through lawful men of the neighbourhood and through their oath.”

Wardship

A distinction may be drawn between wardship of the person and wardship of land. The mother, if alive, might well have custody of the non-inheriting minors, who might live with her on her dower.’ The basic position for heirs and heiresses was that wardship of the person went to the same guardian as at least some of the land.'*? However, land and person might be entirely separated. For example, the vigorous market in wardships might allow a mother to buy wardship of the person of her child.’** If the minor only held land in socage, Glanvill states, wardship went to the closest blood relatives, on the mother’s side if it concerned a paternal inheritance, on the father’s if a maternal inheritance, ‘for by law, wardship of anyone never remains to someone who might be suspected of being able or of wishing to claim any right in that inheritance’. If lands were held by military tenure, wardship went to lords.'*°

"S? Glanvill, vii. 9, ed. Hall, 83. For a writ to the sheriff, ordering a recognition as to whether a man was of age, see Glanvill, xiii. 15-16, ed. Hall, 159-60. Note e.g. CRR, iii. 111, which refers to recognitors. See also S. S. Walker, ‘Proof of age of feudal heirs in medieval England’ (1973) 35 Medieval Studies 306-23. *S* Pollock and Maitland, ii. 444. See also S. S. Walker, “Widow and ward: the feudal law of child custody in medieval England’, in Women in Medieval Society, ed. S. M. Stuard (Philadelphia, 1976), 159-72, at 160, who also, at 161, raises the possibility of the heir actually being with the mother, even though someone else had wardship of the body.

*S° A partial division might occur when socage land went to the family, land held by military service, together with the minor’s person, to a lord. See below, 810-11, on the possible division of lands between lords. *S* See e.g. Rotuli de dominabus, no. 18. On the market in wardships, see Holt, Magna Carta, 313-14.

"8° Glanvill, vii. 11, ed. Hall, 84. Note also CRR, iii. 306, specifying that wardship go to a specified

family member ‘as concerning free socage, whence no wardship pertains [spectat] to the lord of that fee’. However Pollock and Maitland, i. 321, gives thirteenth-century evidence for wardship of some socages going by custom to the lord. See below, 842, on family wardship in Bury. See Kimball, Serjeanty, ch. 7, on wardship of serjeanties; Everard, Brittany, 195-6, for family wardship in Brittany. °° Glanvill, vii. 9, ed. Hall, 82. Note that although the eldest heiress might be of age and perform the services of the younger, she did not have right of wardship of them or, if they predeceased her, of their heirs. In 1236 Henry III explained this in terms of the lord- (or lady-)-and-heir rule; in addition, because the eldest would inherit all the lands if the younger sisters died without heir, if she had custody of her sisters or their children, it would be like committing to a wolf a lamb to be devoured; CCR, 1234-7, 376. For the possibility that family members still felt that they should have wardship of the person of the heir, see above, 629 n. 6.

29 MARRIAGE AND FAMILY 807 Boys remained in wardship until they came of age. The situation for heiresses was different: If a woman or women are left as heirs of anyone, they are left in the wardship of their lords. If they are under age, they shall be in wardship until they come of age, and when they have come of age their lord is bound to give them in marriage, each with their reasonable share. Even if they are of full age, still they are left in wardship

of their lords until they are given in marriage on the lord’s advice and direction, because by the law and the custom of the realm no woman heir of land can be given in marriage without the direction or assent of lords.”

Seignorial wardship, Glanvill tells us, was dependent on the lord formally accepting the heir’s claim to inherit: if the heir is male and a minor, the lord ought not by law to have wardship of either heir or his tenement until he has received the heir’s homage. For, as a rule, no-one may demand service, whether it be relief or something else, from an heir, be he of full age or a minor, until he has received his homage concerning a tenement in respect of which he claims to have service.'**

However, in the late 1170s, the Dialogue of the Exchequer may indicate that the king enjoyed an exceptional position in not taking homage at the beginning of wardship: What are commonly called escheats [escaete vulgo dicuntur| are what reverts to the royal treasury when those who hold in chief of the king die without an heir related by blood.... But when the head of a family, a knight or serjeant holding in chief of the king, dies leaving children the eldest of whom is a minor, his revenues shall go to the royal treasury; but this kind is not called simply an escheat but an escheat with heir. In this case the heir is not removed from the inheritance nor the inheritance from him, but he is

placed under the king’s wardship, together with his inheritance, and for the duration of the minority both he and the other children receive what they need from the inheritance by the hands of royal officials; the rest of the revenue goes to the king’s use.

When the heir came of age, he would receive his inheritance, in some cases for free by the king’s grace alone, in others in return for payment recorded as a relief.'* Use of the term ‘escheat’ and the continuing possibility of relief may indicate that the king only took homage at the end of the wardship, although the Dialogue does not make this explicit. If this was the king’s exceptional right, it may reflect what

*®” Glanvill, vii. 12, ed. Hall, 85. This passage is followed by the discussion of heiresses’ marriage and seignorial consent, above, 780. "88 Glanvill, ix. 1, ed. Hall, 103; note also 106, stating that any free man, of age or minor, might do homage. See also Assizes of Northampton, 4, quoted below, 810. *®° Dialogus, ii. 10, ed. Amt, 140-2. For high reliefs at the end of minorities, see Holt, Magna Carta, 307.

808 PART III: ANGEVIN ENGLAND had once been a more usual position, where the lord—or some lords—only took homage and also received relief when the heir came of age. Such a right was now denied to lords other than the king by the strengthening of the heir’s position. Whether or not he is reflecting a decline in lords’ rights, Glanvill certainly insists not only that the lord must take homage before obtaining wardship, but also that when the heir came of age and had his inheritance restored, he should be quit of relief. Likewise, in 1215 Magna Carta insisted that when an heir who had been in wardship came of age he should have his inheritance without relief or fine.’”° Lords enjoyed the service and profits of the lands that they held in wardship, as the Dialogue indicates in the case of the king. Their powers were extensive but not unlimited. Glanvill tells us that lords have ‘full custody of the sons and heirs of their men, and of their fees, thus that they have full disposition of them, for example in presenting to churches, granting in marriage women who fell into their wardship, and in conducting other business as they would their own. However, ‘they cannot lawfully alienate anything permanently from the inheritance.” At the same time, the lord was to maintain the heirs in a style commensurate with the size of the inheritance, and to pay debts of the heir’s ancestors in proportion to the size of the inheritance and the duration of the wardship.’” At the end of the heir’s minority, the lord should restore the inheritance in good condition, but the problem of guardians committing waste is apparent on the plea rolls.’? The barons in 1215 sought protection against waste committed by royal custodians, and looked for all wardships to be entrusted to four knights of the fee, who with the king’s servant were to render to the king the revenues of the land, without sale of woods, redemption [i.e. manumission] of men, or destruction

°° Glanvill, ix. 4, ed. Hall, 107; Magna Carta, 3; note Milsom, ‘Prerogative wardship’, 236-7.

** Glanvill, vii. 9, ed. Hall, 82. Note also Glanvill, vii. 10, ed. Hall, 84: ‘If the lord king has committed a wardship to anyone, there is a distinction as to whether he committed that wardship to him with full right, thus that he had no liability to render an account of it at the Exchequer, or not. If he did commit the wardship to him thus fully, then he can present to churches falling vacant and justly conduct other affairs as he would his own.’ See also CRR, vii. 323; and note the views of the theologian Robert of Courson, printed in Baldwin, Masters, Princes, and Merchants, ii. 178 n. 133. Glanvill does not deal with the question of whether a minor could make a permanent gift, or whether they could revoke gifts on coming of age; cf. Bracton, fo. 27b, ed. Thorne, iii. 304.

*°* For a guardian compelling an heir to swear, in fear of his life, to renounce his inheritance to the guardian on coming of age, see Oxford, Bodleian Library, Dodsworth MS 94, fo. 35r, Holt, Magna Carta, 103. Cf. the Abingdon case cited above, 452-3. > Note e.g. CRR, ii. 203-4; vii. 75-6. The earliest Register does not contain a writ concerning waste of wardship, cf. above, 803-4, on waste of dower; from later in the thirteenth century, see Early Registers of Writs, CC 67-8. Note also the limits on the reliefs that the king was to take from heirs to knight’s fees in the king’s hands because, for example, a bishopric was vacant or a deceased tenant-in-chief had no heir; Dialogus, ii. 10,24, ed. Amt, 144, 180.

29 MARRIAGE AND FAMILY 809 of parks and fishponds.** Magna Carta, clause 4, retained an element of this solution. It specified that the custodian should not take more than reasonable revenues, customs, and services, without destruction and waste of men or goods. If there were such waste, the king should take amends from the official, and the land should be entrusted to two lawful men of the fee who should answer concerning the revenues to the king or to the person assigned those revenues by the king.’

If there were multiple non-royal lords, wardship of the person of the heir or heiress holding by knight service went to the first lord, that is to the one a member whose line had first granted land to the heir’s ancestor.’°° What about wardship of their lands, which, unlike the person, were divisible? The situation of those holding a tenancy-in-chief is clear, with the king enjoying the right later known as prerogative wardship. Glanvill tells us that ‘if anyone ought to hold in chief from the lord king, then his custody fully pertains to the lord king, whether that heir ought to have other lords or not; since the lord king can have no peer, much less a superior.” In the Cockfield case Abbot Samson of Bury recognised the king’s right, telling his tenant that ‘if you...should take to wife some free woman who holds as much as one acre of land from the king in chief, the king after your death would seize your entire holding and the wardship of your son, if he were under age’.’* The king may have sought to extend this right over as many tenants as possible by claiming it as arising from lands not held by knight service. Glanvill mentioned that the right could not stem from burgage tenure alone, whilst in Magna Carta, clause 37, the king promised that if an heir held of the king by fee farm or socage or burgage, but also held from someone else by knight service, ‘we will not by virtue of that fee farm, socage or burgage have wardship of his heir or of land of his that belongs to the fief of another, nor will we have custody of that fee farm or socage or burgage unless such fee farm owes knight service’.’%

*°* Unknown Charter, 3. ‘?° Note also Bracton, fo. 87, ed. Thorne, ii. 252, which allows two of the closer kin as an alternative

to the two lawful and honest men. Magna Carta, 5, specified that the guardian should maintain houses, parks, and other such appurtenances of the land, and restore the land appropriately stocked when the heir came of age. °° See Glanvill, vii. 10, ed. Hall, 84; also CRR, xi. no. 2381; xiv. no. 2174; BNB, no. 661; Bracton, fo. 89b,

ed. Thorne, ii. 259. In PKJ, i. no. 3114, the determining factor is argued in terms of a ‘greater fief [majus feudum|] from one lord than from another party.

7 Glanvill, vii. 10, ed. Hall, 84. 8 Jocelin, Chronicle, ed. Butler, 58; above, 628. *?? See also Articles of the Barons, 27. The same applied to those holding minor serjeanties of the king. Magna Carta, 53, includes the doing of justice relating to lands held by prerogative wardship amongst those issues for which the king is to enjoy the respite enjoyed by those who had taken the Cross. See also Magna Carta 1217, 38.

810 PART III: ANGEVIN ENGLAND What of those holding of several lords but not the king? Glanvill’s meaning is not entirely clear: if heirs set under wardship have many lords, then their chief lords, that is those to whom they owe allegiance as concerning their first fiefs, shall have their wardship;

thus that concerning other fiefs, they are bound to make both reliefs and other proper [recta] services to the lords of those fees, and thus wardship shall remain to them entirely under the aforesaid form.’”°

The sentence would have been clearer had Glanvill cast it in the singular; it is not certain whether the pronoun ‘them’ in the last clause refers to the chief lords or to other lords.*** However, he may well be saying that one chief or liege lord was to have wardship of person and lands, with the other lords receiving reliefs and services. This may fit with a statement in the Assizes of Northampton: after specifying that heirs of a free tenant are to remain in such seisin as their father had on his death, and are to seek their lord and do to him concerning relief and other things what they ought to do him, the text goes on ‘and if the heir is under age, the lord of the fee is to receive his [suum] homage and have him in wardship

as long as he ought. Other lords, if there are several, are to receive his [ejus] homage, and he is to do to them what he ought to do.”° If the last sentence is read as referring to minors, the passage may indicate that the lands and person go to one lord, the others receiving homage and relief and service.”°? Unfortunately, the case evidence does not greatly illuminate practice.*°* Nevertheless, if Glanvill is indicating that the liege lord might retain wardship of both the heir’s person and all his lands held by military service, the practice later changed. Division of wardship of lands between lords according to fee was certainly the practice by the time of Bracton and probably earlier; in an addition to 1215 Magna Carta, the 1217 reissue stated that if a ward became a knight while he was under age, the land nevertheless was ‘to remain in the custody of his lords’, whereas the 1216 version had referred to ‘lord’ in the singular. The refinement seems much more likely to

*°° Glanvill, vii. 10, ed. Hall, 84. See also above, 453-4. *°" See Milsom, ‘Prerogative wardship’, 225-6. Note also PK, i. no. 3114, which refers to ‘chief lords [capitales domini]’, even though it goes on to single out only one. *°?' Assizes of Northampton, 4.

*°* Examination of the manuscripts suggest that the two sentences here quoted should be taken together. It is unclear whether there is any significance in the shift from use of suus to use of ejus with reference to homage; the precise meaning of Assizes of Northampton, 4, is not always certain, at least to the modern reader. *°* See Milsom, ‘Prerogative Wardship’ 232. The cases cited in his n. 24 may only refer to wardship

of the person, although if the land normally went with the person of the ward to the chief lord, it may have been unnecessary to mention land as well as person in the plea or its record. However, there are cases that mention wardship both of land and heir; e.g. CRR, ii. 61; iv. 168; note also CRR, iii. 40.

29 MARRIAGE AND FAMILY 811 be an improvement in drafting, better to reflect practice, than a substantive innovation.*°> Abbot Samson’s statement about the danger of all a tenant’s lands falling into royal wardship sounds as if he is noting a peculiar royal right. Division of wardship between lords other than the king may have been customary at least by about 1200, if not before.

5 CONCLUSION In examining family law, and especially those aspects often referred to as the ‘feudal incidents —marriage, wardship and relief—the interplay of lordship, kinship, and royal involvement has again been apparent. Royal control had an impact, notably in providing actions against abuses regarding minors and widows. It may also have encouraged standardisation, although some honorial variation remained even beyond our period.’ Furthermore, the indirect impact of royal control over landholding more generally was very significant for marriage, wardship, and relief, in at least two ways. They looked ever more like a set of valuable but occasional

rights or dues that accrued to the lord at particular times rather than inherent aspects of an essentially personal relationship. Thus Glanvill was uncertain whether

a person who deraigned a tenement through a concord made in court, against someone who had previously paid relief to the chief lord, now himself owed a further relief.” Here relief seems far from a payment always required to enter into a personal relationship that involved landholding. Second, control of other aspects of seignorial rights, notably exaction of services, meant that wardships in particular were proportionately of increased value to lords. Moreover, the value of wardships was to an extent inflation-proof, a significant benefit when some prices may have risen approximately threefold within the period 1180-1220. A market existed in wardships and marriages, and the Cockfield case suggests that some care was taken in the calculation of their value.*® It is therefore not surprising that these family matters were both an area of great contention and the subject of some of the earliest sophisticated legal devices.”

7° See Milsom, ‘Prerogative wardship’, 229-31; note 231 on the liege lord being allowed to leave lands to individual lords, and possibly having reason to do so. *°° See CRR, xiv. nos 1418, 1948, on the custom of the fee of the count of Brittany being that if a woman held land by both military service and socage she only received one-third as dower. *°? Glanvill, ix. 3, ed. Hall, 107.

*°8 For a judicious summary concerning the inflation, see J. Masschaele, ‘The English economy in the era of Magna Carta’, in Magna Carta, ed. Loengard, 150-67. *°° See below, ch. 31.

30

Borough Law [vesncanss borough laws across the entirety of our period helps to uncover the extent of their distinctiveness and to reveal particular characteristics of the chronology and form of legal development. However, the sources

regarding urban law bring some particular problems. Pre-twelfth-century evidence is notably sparse, whilst post-1100 evidence for boroughs differs from that for the rest of the country. In particular, texts phrased in a prescriptive style predominate. There are sets of customs for various boroughs in Domesday Book. There are royal and seignorial charters granting liberties, almost all from the 1130s or later; urban charters of Henry II’s reign relate to about thirty towns, those of Richard and John’s reigns to about fifty. And

there are sets of borough customs, the considerable majority from the later twelfth or early thirteenth centuries.’ Such sets of customs must have been for instruction,’ or perhaps occasionally for discussion? Whether they were intended to provide strict rules governing court decisions is uncertain. They are far from universal in their coverage, with certain topics such as debt and distraint receiving particular attention. The significance of silence in one custumal on a point covered in several others is hard to interpret. Furthermore,

what the texts record as custom may in fact simply be current rather than long-standing practice, or indeed aspiration rather than reality. In contrast, even what charters present as grants of new privileges may in some instances have been confirmations of existing practice.

* For comment on possible earlier, lost texts, see e.g. M. Bateson, ‘A London municipal collection of the reign of John’ (1902) 17 EHR 480-511, 707-30, at 482-3. I have deliberately avoided using later custumals, which may preserve earlier custom but may mislead. The figures for the numbers of urban charters are taken from Campbell, ‘Power and authority’, 66, 69. * Bateson, ‘London municipal collection’, 487, comments that the London writer’s purpose ‘seems to be the instruction of some one, some one who has tenants’. > Note Keene, ‘Text, visualisation and politics’, 86; also that there are very occasional examples where custom was reported as a matter of opinion; see e.g. Borough Customs, i. 48.

30 BOROUGH LAW 813 1 THE BOROUGH Terminology

Defining boroughs in our period is difficult. For example, not all boroughs, particularly not all early ones, had charters before they could be considered boroughs; privileges could pre-date written record. In the later middle ages, certain

criteria, although neither exact nor unchanging, might distinguish boroughs from other towns, notably summons of representatives to Parliament, and the sending of a jury of twelve to appear before the eyre, rather than the reeve and four men normally sent by a vill.‘ In contrast, at the end of our period, parliamentary summons had not yet arisen whilst representation before the eyre varied, for example Dunwich sending twelve men but Colchester only four If we move back to the late Anglo-Saxon period, most towns were separated administratively from surrounding areas at least to some extent.° However, use of the word borough in late Anglo-Saxon sources and Domesday does not appear to indicate distinctive administrative or legal status; indeed the word seems often to mean nothing more specific than ‘fortified place’. The degree of privilege that towns enjoyed is uncertain beyond the largely financial matters that appear in Domesday customs; on matters such as the legal status of residents there is silence. William I confirmed to the Londoners their laws [/aga] of which they were worthy in the time of King Edward, but we do not know the content of these laws, Given uncertainty on the late Anglo-Saxon period, the impact of the Norman Conquest is impossible to assess.’ Thereafter, the position of boroughs becomes clearer with the growth of written evidence, most particularly charters recording

grants of liberties or customs. Many of the earliest royal examples are writs referring to earlier privileges, but some grants by lords to towns do seem to confer new privileges. They might specify that the recipient was to enjoy the same

* See also British Borough Charters, 1042-1216, ed. A. Ballard (Cambridge, 1913), xcii.

> See British Borough Charters, 124. Note also Pollock and Maitland, i. 640, on settlements other than boroughs sending twelve men to the eyre after the end of our period. ° See e.g. S. M. G. Reynolds, An Introduction to the History of English Medieval Towns (Oxford, 1977), 94.

” Acta of William I, no. 180. It is possible but not certain, for example, that Londoners could claim freedom of toll throughout the realm. The customs of the burgesses of Bury St Edmunds confirmed

by Abbot Anselm were said to go back to the time Edward the Confessor, but such a statement is better taken as a claim of legitimacy than a proof of continuity; Lawsuits, no. 295. On the meaning of burh, see also above, 85. ° Cf. the more confident assertions of e.g. M. Bateson, “The Laws of Breteuil’ (1900) 15 EHR 73-8,

302-18, 496-523, 754-7; (1901) 16 EHR 92-110, 332-45. See further Campbell, ‘Power and authority, 58-9.

814 PART III: ANGEVIN ENGLAND privileges as another borough. The model might be an English borough; a possible early example from 1088 x 1107 has Robert fitz Hamo granting his men of Burford all the customs that the burgesses of Oxford had.? Other English models would

include London, Winchester, Northampton, Lincoln, York, and Newcastle.” A significant number of seignorial foundations received the laws of the Norman town of Breteuil. These grants appear to have started with William fitzOsbern, post-Conquest earl of Hereford, who had received a grant of the stronghold of Breteuil from William the Conqueror before 1066. Domesday Book records that at Rhuddlan in a new borough there were eighteen burgesses, divided between the earl and Robert of Rhuddlan: ‘to these burgesses they have granted the laws and customs that are in Hereford and Breteuil, that is to say, throughout the year they shall give only 12d. for any forfeiture, except homicide and theft and premeditated housebreaking [heinfar]." Grants of the privileges of another borough did not necessarily produce identical courts or administration, but do illustrate the categorisation of boroughs as privileged places.

Attempts to find one or two privileges essential to borough status may not reflect thinking and practices of the time.” Rather, boroughs were characterised by possession of a variety of privileges, some of which were more generally held than others. They had a borough court, although as we shall see the extent of its

jurisdiction and distinctive custom might vary. In at least some boroughs the acquisition of burgess status brought personal freedom to the previously unfree.” Burgesses held their lands heritably, for a fixed and generally a low money rent, although this form of tenure was not uniquely urban.

Government The main focus of this chapter is on the law administered within the borough,

rather than town government, but a very brief sketch of governmental > C. Gross, The Gild Merchant (2 vols; Oxford, 1890), ii. 29; the charter survives only as a late copy,

and may be treated with some doubt. On the nature of the early written grants, see Campbell, ‘Power and authority’, 60-1. "° See British Borough Charters, 12-15, 23-34. *" DB, i. fo. 269r, and see also fo. 179r; note also e.g. Lawsuits, no. 293. Further customs were already or came to be associated with the laws of Breteuil; see Bateson, ‘Laws of Breteuil’; A. Ballard, ‘The law of Breteuil’ (1915) 30 EHR 646-58. On the duke’s grant to William fitzOsbern, see Gesta Normannorum ducum of William of Jumiéges, Orderic Vitalis, and Robert of Torigni, vii. 25, ed. and trans. E. M. C. van Houts (2 vols; Oxford, 1992-5), ii. 146. ‘? For such an attempt, see British Borough Charters, xc, which takes the two essential elements as the separate court and burgage tenure. Borough freedoms might be granted or develop for a privileged area around the borough too; see e.g. British Borough Charters, 39 (the banlieu of Maldon); note also Lawsuits, no. 648. ** See below, 818-20, 839-41.

30 BOROUGH LAW 815 developments provides necessary background. As in villages, the chief official in the ninth to twelfth centuries was normally the reeve or bailiff, royal or seignorial depending on who controlled the borough.* An increasing number of other officials become apparent in the twelfth century, in part because of continuing

urban expansion but also because of grants of privilege.’ In towns with a gild merchant (an association of merchants and leading burgesses), that body and its head or alderman might play a central role in the development of the borough community.” Alderman was also the word used for the heads of wards, the subunits of London and some other towns.” Councillors probably advised officials, and more formally constituted councils appear around 1200.” The emergence of such councils, and at the same period of mayors chosen by the townspeople,” can be associated with the development of communes in some towns.”° William of Malmesbury reports that the Londoners had a commune in 1141, although its form is uncertain.” Under Henry II we hear of individuals at Gloucester and at York rendering account “for a commune’ or ‘for the commune that he wished to make; clearly making a communa was considered a wrong, although the meaning here is not certain.” In some other circumstances the term communa simply referred to the community of the borough,” but in 1191 the Londoners’ securing recognition of their commune was definitely an aggressive act, characterised by a mutual oath [conjuratio].”* Yet despite a general tendency towards greater autonomy for boroughs, of

“* On the borough’s freedom to choose these officials, see below, 816. *? See below, 816-18.

*® For a close connection between borough and gild merchant, see Richard I’s charter for Winchester, made to ‘our citizens of Winchester of the gild of merchants’ Select Charters, 260-1. However, some towns, including London, Norwich, and Colchester, had no gild merchant. The issue of the role of the gild merchant was one of considerable debate in earlier historiography; see Gross, Gild Merchant; Pollock and Maitland, i. 665-6; C. Stephenson, Borough and Town: a Study of Urban Origins in England (Cambridge, MA, 1933), 150-1; Tait, Medieval English Borough, 222-34, 248-56; Campbell, ‘Power and authority’, 62. A significant but hard to uncover role may also have been played by earlier forms of gild, as in London and also the thegns’ gild in Cambridge; see Diplomatarium, ed. Thorpe, 610-13. Pollock and Maitland, i. 639, comment that ‘the sphere of association and private enterprise can not at this time be marked off from the sphere of government and public power’. ” Seee.g. W. Urry, Canterbury under the Angevin Kings (1966), 92-104. *® See Tait, Medieval English Borough, ch. 10, Reynolds, Introduction, 121-3. Note especially the arrangements at Ipswich in 1200; Elenchus fontium historiae urbanae, ed. C. van de Kieft and G. van Herwijnen, ii. 2, ed.S. M. G. Reynolds et al. (Leiden, 1988), nos 61-2. *? See British Borough Charters, lxxxvii, Reynolds, Introduction, 107-9. *° On communes, see Reynolds, Introduction, 103-8. *" William of Malmesbury, Historia Novella, iii. 49, ed. King 94. *2 PRIOHII, 79; PR22H II, 106. ** See below, 841.

** See The Chronicle of Richard of Devizes, ed. J. T. Appleby (London, 1963), 49.

816 PART III: ANGEVIN ENGLAND which the commune was the most extreme form, considerable royal control was retained even beyond our period, as manifest in Henry III's repeated taking of London into his own hands.”

Governmental and commercial privileges Boroughs might enjoy at least some of a wide range of administrative privileges.”° Some were allowed to choose their own officials.” The 1130 Pipe Roll records the

men of London rendering account concerning 100m. that they might have the sheriff of their choosing.”* There are two royal grants to boroughs of the right to choose justices with responsibilities regarding crown pleas. One is a charter in Henry I's name to London, which granted the Londoners that they might ‘place from themselves whomever and whatever sort of justice they wished, for keeping the pleas of my crown and for pleading them, and no-one else shall be justice over

my men of London’. This may not represent a genuine royal grant and no such clause appears in Henry II’s charter to London.” The other was by Richard I to Colchester, allowing that ‘they place from themselves whomsoever they wish as bailiffs and a justice for keeping pleas of our crown and for pleading these pleas within their borough, and that no-one else may be justice concerning this, except the person whom they choose’. The mention of pleading as well as keeping crown pleas suggests that powers went beyond those of coroners; still, it is hard to tell the precise extent of the privilege or whether indeed it was exercised. In the reign of Henry II the burgesses claimed that this charter established their right to elect a coroner, although that office is not in fact mentioned in its text2°

The right to choose officials was not intended to allow appointments unacceptable to grantors, who might reserve the right to intervene if the burgesses choice proved unsatisfactory. Count John spelled this out in somewhat threatening fashion for Nottingham in 1189: ‘and they shall make whom they will

of their people be their reeve at the end of the year, who shall answer for them

*° See Reynolds, Introduction, 109-10; note also Reynolds, 114-16, on non-royal boroughs. *° Note also e.g. freedom from the murdrum fine; British Borough Charters, 150-1. *” See British Borough Charters, |xxxv-]xxxviii, 242-7. *® PR3IHI, 148. It is unclear whether this was intended to be a lasting privilege. *° RRAN, ii. no. 1645, Elenchus, no. 36. See British Borough Charters, 241-2, for King John giving to the Londoners the right to choose and remove their sheriffs. See also RRAN, iii. nos 275-6, for hereditary grants of the justice or justices of London to Geoffrey de Mandeville by the Empress Matilda and King Stephen. °° CChR, i. 410; Cartularium de Colecestria, ii. 672-5; Hurnard, ‘Franchises’, 441; C. R. Young, The English Borough and Royal Administration, 1130-1307 (Durham, NC, 1961), 84.

30 BOROUGH LAW 817 regarding my farm, thus that if that reeve shall displease me, I will remove him at my will, and they shall substitute another of my choice.’ Some boroughs had the right to exclude royal officials. In 1102 x 1103 Henry I instructed regarding Bury St Edmunds that ‘no secular person or official of the king shall in anyway involve himself [se intromittat] concerning the aforementioned borough and the men living in it, except the abbot and convent and their officials’3* Non-interference might not be complete, being limited to matters that pertained to the borough’s privileges and its jurisdiction. King John’s grant to Andover in 1205 explicitly excepted ‘pleas of our crown when they happen there, and...the making of distraint when the sheriff has an order concerning this, for our debts when they are in arrears there* Boroughs might be allowed to pay a set annual amount or ‘farm’, the firma

burgi, to the king2* This right was obtained by Lincoln and perhaps London under Henry I.* It is uncertain whether these early grants were intended to be perpetual, that is to be fee farms.3° Henry II appears to have avoided perpetual grants, whereas Richard I and John did make them. When they were made, grants particularly of fee farm were often associated with the right of boroughs to choose officials.”

Boroughs were trading centres and might enjoy various commercial rights, for example regarding sales2* There were also grants regarding tolls,*® in particular freedom from toll, be it throughout a specified county, England, or still wider territories of the king.*° John, before he became king, granted to Bristol that ‘if anyone anywhere in my land take toll from men of Bristol, if he does not give it back when asked to do so, the reeve of Bristol is to take distress concerning this *" British Borough Charters, 244; see also lxxxvi. Note further British Borough Charters, 246, on the election of coroners at Northampton; the elected were ‘to see that the reeves of that borough treat justly and lawfully both rich and poor’. *? RRAN, ii. no. 644.

°° British Borough Charters, 122. On pleas of the crown being excepted from jurisdictional grants, see also below, 818, 822-4. ** On the firma burgi, see British Borough Charters, 220-32, Tait, Medieval English Borough, ch. 7.

°° For Lincoln, note PR31HI, 114-15, and the confirmation by Henry II, British Borough Charters, 221. The charter for London in Henry [’s name but not that in Henry II’s granted that the citizens hold Middlesex at farm for £300; RRAN, ii. no. 1645, Elenchus, no. 36. °° See Tait, Medieval English Borough, 162-3. °” See Tait, Medieval English Borough, 154-93.

°® See e.g. the Newcastle customs, Elenchus, no. 22. Note also e.g. Elenchus, nos 21, 43, 53, 54; Borough Customs, ii. 166. 168; British Borough Charters, 168-75, 197-201, 209-16. See also below, 822,

and above, ch. 6, for boroughs being one type of location to which Anglo-Saxon legislation assigned the conduct of sales. *° Seee.g. RRAN, ii. no. 1137, on the right to take toll.

*° See British Borough Charters, 180-94. For conflicting privileges concerning tolls, see e.g. Jocelin, Chronicle, ed. Butler, 75-7; CRR, i. 449-50.

818 PART III: ANGEVIN ENGLAND at Bristol, and distrain him to return it’." There were also grants of the right to have a gild merchant; the earliest recorded may be Robert fitzHamo’s grant to the burgesses of Burford of ‘the gild and customs that the burgesses of Oxford have in the gild merchant’.

2 COURTS AND JURISDICTIONAL PRIVILEGES Another familiar privilege was that burgesses not plead except in their own borough court, sometimes combined with the statement that they need not go outside the borough to attend hundred or county.# Some texts are more specific, and mention exceptions, including crown pleas and cases of default of justice.4 Thus a record of the customs of Newcastle, made in Henry II's time but said to refer to the situation under Henry I, specified that pleas that arise in the borough are to be held and finished there, besides those belonging to the king’s crown. If any burgess is appealed concerning any plea, he shall not plead outside the borough except out of default of court; nor, except concerning matters pertaining to the crown, ought he to answer except at a fixed day and term, unless he has previously fallen into a foolish answer.*

Also excepted might be pleas concerning tenements outside the borough, or involving royal moneyers and officials.‘° The evidence of the early plea rolls suggests that, despite such privileges, a burgess could not simply refuse to plead in an external court, at least not a royal one. Rather, burgesses, representatives, or officers of the borough had to come and claim the case.” What, then, of the courts within boroughs? Let us begin with the somewhat

exceptional case of London. By 1066 it had its folkmoot, the husting court, and probably subordinate ward courts under their aldermen. Even in 1200,

“ British Borough Charters, 196, with other examples at 195-6. * Gross, Gild Merchant, ii. 29; as noted above, 814, the charter survives only asa late copy and may be treated with some doubt. For other grants of gild merchant, see British Borough Charters, 202-7; Campbell, ‘Power and authority’, 64, notes the possibility of unrecorded gilds merchant. For trade gilds, see British Borough Charters, 207-9; note also PR26HII, 153-4, for amercements from ‘adulterine gilds’ in London. *° See British Borough Charters, 115-24. ** See e.g. British Borough Charters, 113, 115-16, 120 (mentioning forest pleas), 122-4. *° Select Charters, 133. *° See e.g. British Borough Charters, 116-19; Elenchus, no. 57; Historical Manuscripts Commission, Ninth Report (1883-4), Appx I. 166. See also Borough Customs, i. 52, concerning false coin in Preston. *” See e.g. PK], i. 3248 (London), iii. nos 1923 (Rochester), iv. no. 4754 (Canterbury). Lady Stenton,

in PKJ, iii. xxix, comments on how little evidence there is that such claims were needed.

30 BOROUGH LAW 819 information on the activities of ward courts is still very limited, as it also is regarding soke courts in which lords had jurisdiction over their men.** As for the folkmoot, at the start of our period it was probably the main assembly, although we have little record of its activities. However, it may have been too unwieldy

for a large and growing city, and its business therefore narrowed as the other courts developed.*? According to an early thirteenth-century custumal, there were three chief folkmoots a year: one at Michaelmas, to know who is sheriff and hear his command; a second at Christmas, for keeping wards [i.e. arrangements for watches]; and a third at the feast of St John [i.e. midsummer] to guard the city from fire because of the great dryness.*° Failure to attend led to forfeiture of 40s. to the king. The folkmoot retained various responsibilities, but most important business, including dealing with those who failed to attend the chief folkmoots, took place at the husting.

Husting is a Scandinavian word, meaning ‘indoor assembly’. The first trustworthy reference to the London husting comes in a charter of 1032." This may indicate that the court only emerged in the time of Cnut, or may just signify the renaming of an earlier assembly. It was probably a general-purpose gathering, involving the king’s leading official in the town and other important men.” In the Anglo-Norman period we hear of a sale of land taking place ‘in the presence of the whole husting of London, in the house of Alfwin son of Leofstan’ and of land deraigned “by judgment of the husting’*? It was the dominant court in Angevin London.‘ It met weekly, on Mondays at the Guildhall. At first one of the sheriffs or the justice would have presided, but by the end of the twelfth century, the mayor probably did so, with the sheriffs and aldermen taking a leading

role in the deciding of cases.* Its importance is also indicated by the early

*® On ward courts in Anglo-Saxon London: Tait, Medieval English Borough, 63. Note also the soke of the London cnihtengild, Anglo-Saxon Writs, no. 51, British Borough Charters, lviii-lx, 126-9. Also Borough Customs, i. 2, for a statement regarding limits to the sheriff's powers within sokes in London. *” See Reynolds, Introduction, 94, 119.

°° Borough Customs, ii. 50-1. Note also the reference in Borough Customs, i. 72, to outlawry at the folkmoot. >" $1465. See P. Nightingale, “The origin of the court of Husting and Danish influence on London’s development into a capital city’ (1987) 102 EHR 559-78.

°? See Nightingale, ‘Origin’, 568, for a possible military dimension. °° Lawsuits, nos 270, 335.

°>* See e.g. Lawsuits nos 447 (note royal involvement), 529, 530, 550 (note the justiciar’s involvement); Jocelin, Chronicle, ed. Butler, 75. Note also matters concerning building, below, 823. °° C.N.L. Brooke and G. Keir, London, 800-1216: the Shaping of a City (1975), 250. Note also the formulation in Lawsuits, nos 529-30, final concords before the husting, where the sheriffs are named and the barons of London described as presiding.

820 PART III: ANGEVIN ENGLAND thirteenth-century London custumal using the phrase ‘in the king’s court, that is to say, in the husting’*®

In other boroughs there was not the same division between folkmoot and husting, but rather one main court the name of which differed between boroughs:

the possibilities included portmoot, portmannemoot, husting, hundred, and burghimot.” The division in the laws of Edgar (c. 960) between county, hundred, and borough courts, with the problems it raises about the nature of the last type, has already been discussed. It may indicate that at least major boroughs already had courts meeting at least three times a year. Other borough courts developed

from hundred courts by the eleventh century, as towns came to form separate hundreds.* Even in 1066, some boroughs were probably so small as to have no court of their own,» but in the twelfth century it was normal for the borough to have a court with at least the standing of a rural hundred. In some towns there may have been lesser courts, for wards or for sokes belonging to landowners.®° Gilds merchant may have held pleas separately from the main court, and we have a Leicester merchant gild roll containing pleas of the gild in 1207." Courts to deal with local trades and wider commerce may also have developed.”

Frequency and composition Our evidence is best for the major meetings of the main court. Edgar's laws specify

three meetings of the borough court a year, and in early thirteenth-century London three special courts a year were a feature of the folkmoot.® At Taunton, the Domesday customs include the phrase ‘three times a year the bishop’s pleas to be held without summons’. A slightly earlier vernacular document specifies

°° Bateson, ‘London municipal collection’, 493, 501. For the possible emergence of the mayor’s court within our period, see Brooke and Keir, London 800-1216, 251. °” See British Borough Charters, lxii. °® Tait, Medieval English Borough, 45, 48; Reynolds, Introduction, 92-3. See above, 88, for reference to the meeting of the hundred in Chester. °° See Tait, Medieval English Borough, 51-5.

°° On sokes, see also British Borough Charters, 125-6; and note F. W. Maitland, Township and Borough (Cambridge, 1898), 73-4. Note also the cellarer’s court at Bury St Edmunds; Lawsuits, no. 648. On wards and their courts, see e.g. Urry, Canterbury, 92-4. °* Elenchus, no. 60; also Reynolds, Introduction, 119-20. °* Note the bakers’ hall-moot in London; Bateson, ‘London municipal collection’, 724, Munimenta Gildhallae Londoniensis: Liber Albus, Liber custumarum, et Liber Horn, ed. H. T. Riley (3 vols in 4; RS, 1859-62), i. 356. All the references concerning mercantile law in Borough Customs, ii. 183-92, come from after our period. °° Above, 47, 819. °* DB, i. fo. 87Vv.

30 BOROUGH LAW 821 regarding Taunton that ‘everyone had to come to the court [gemote] as often as he was summoned or else distraint was made upon him [hine man badode]’. Individual tenants were required to attend meetings three times a year without summons. There is further evidence for three main portmoots being held a year, for example in Preston and Whitby. At Tewkesbury it is possible that one court was especially important, and named the ‘Lawday.’.°®

It seems likely that there were also lesser meetings of the borough courts, certainly in large boroughs. A Preston custom states that a burgess need not come except to [the] three portmoots per year, unless he had a plea involving him.” Lesser meetings may have been monthly, like the hundred court, or weekly, like the London husting or the Bristol hundred. The fact that Count John promised that the latter should be held ‘only once in a week’ shows the pressure for more frequent sessions.® The composition of the borough court is not entirely clear. A writ in the name

of Edward the Confessor, probably with an authentic basis, addresses Bishop Stigand, Earl Godwine, and all the citizens [burhmen] of Winchester.®? Two writs of the Confessor address the bishop, portreeve, and citizens [burhware] of London.” Such writ addresses may suggest that all the burgesses were the suitors of the court. Similarly, we have seen that in London in the early thirteenth century all were to attend the three chief folkmoots.”’ However, certain leading men may have had a particularly important role. Domesday Book records the existence of lawmen or judges in Cambridge, Lincoln, Stamford, York, and Chester, and such men may have been responsible for deciding cases or at least important

questions within cases, as the aldermen probably did in London” A concord made in the Oxford portmoot in c. 1190 suggests the varying status of participants within court proceedings. It concludes by stating that ‘the concord was made in the portmoot of Oxford, when Laurence son of Harding and Henry son of Segrim were reeves, John Kepeharm and Lambert son of Tovi aldermen, who are witnesses of this agreement [conventio]’. Next it states that the concord was made in the presence of eight men, including a dean and the bailiff of Oseney. °° Anglo-Saxon Charters, ed. Robertson, Appx I. 4. °° Borough Customs, ii. 51. °” Borough Customs, ii. 51; for its date, see Borough Customs, i. xlvii. See also Maitland, Domesday Book and Beyond, 210-11.

°° Elenchus, no. 54. Henry II granted that the “burghimot’ of Canterbury be held fortnightly; see Urry, Canterbury, 80-1. °° § 1153, concerning a grant to the Old Minster, Winchester. ”° $1096, 1103.

” See above, 819.

” Above, 88; Reynolds, Introduction, 94-5. On London, see the suggestion of Bateson, ‘London municipal collection’, 487-8. See also below, 831, for ‘probi homines de placitis’ at Northampton.

822 PART III: ANGEVIN ENGLAND These twelve may have been responsible for the government of the borough. Finally the concord states ‘and besides there are witnesses’, and names a further sixteen men, including a merchant and three cordwainers”? Here we are dealing with a formal agreement, for which publicity was desirable; for lesser meetings of the borough court it may be that only a core of men were required to attend. The laws of Edgar and Cnut and the writ of the Confessor to Winchester may indicate that the bishop and ealdorman were to be present, just as at the county. On the other hand, in courts of lesser boroughs it may have been a reeve who presided before 1066. Certainly it was reeves, royal or seignorial as appropriate,

who presided in post-Conquest borough courts, except if the borough had its own sheriff or mayor. The physical layout of the court is rarely clear, but the early thirteenth-century London custumal shows that the husting was made up of four benches, and similar arrangements may have existed elsewhere.”

Jurisdiction and business Throughout our period, borough courts combined police, witnessing, and judicial functions. We know that local watch systems existed, and may well have been monitored by the borough court, although the Assize of Clarendon insisted

on the right of the sheriff to enter cities and boroughs to arrest those accused or notorious of serious offences.?> At Bury St Edmunds it was the custom of the burgesses to find eight men per year for the four wards to guard the town at night and on the feast of St Edmund sixteen men for the four gates, that is, two during the day and as many during the night, and similarly during the twelve days following the birth of the Lord. They shall also find four gatekeepers per year for the four gates. The fifth gate, that is the east gate, is in the abbot’s hand.”

In London those who failed in the watch obligations were to be handed over to the sheriffs at the next husting.” Edgar’s laws specified that thirty-six people selected in boroughs, or twelve in small boroughs, were to act as witnesses to sales of goods.”* The borough

”* Lawsuits, no. 622. ”* Bateson, ‘London municipal collection’, 489.

”° Assize of Clarendon, 11; see also c. 10 on mainpast and frankpledge functioning within boroughs, and note Borough Customs, ii. 51.

’° See British Borough Charters, 92-3. See above, 62, for breach of the peace established in a borough assembly (III Atr, 1. 2). ”” See Select Charters, 312. ”® See above, 153-5.

30 BOROUGH LAW 823 court also witnessed land grants, probably as early as the Anglo-Saxon period;7 certainly under the last pre-Conquest kings it received royal announcements of such grants.*° In 1199 King John laid down that all purchases and sales of land in the town of Leicester, which had been made and should be reasonably made in the portmanmoot of the said town, were to remain stable and immutable.® Boroughs seem routinely to have enjoyed the same jurisdiction as the hundred

court concerning theft and violence, dealing with lesser offences and with serious offenders caught in the act. It is possible that some of the courts of major boroughs in the Anglo-Saxon period dealt with more serious cases, but certainly after the Conquest this was a matter of particular privilege, the highest form of which may have been appointment of justices.** Borough courts also heard cases

of debt, although which aspects of this jurisdiction were a result of particular privilege is hard to tell.** Also treated were matters regarding building,** and a variety of commercial business.** Domesday Book for Chester records that a man

or woman who gave false measure in the city paid a fine of 4s. Similarly, the brewer of bad beer was either put in the cucking-stool or gave 4s. to the reeves.*° In the later twelfth and the thirteenth centuries boroughs might administer the assize of bread.*”

In land cases the jurisdiction of borough courts appears to have been more extensive than that of the hundred.** There is evidence for the hearing of land cases

before 1066, notably in the Libellus 7thelwoldi, although it is not easy to distinguish between borough and county court. Thus Ealdorman A:thelwine came to Cambridge and held a ‘great plea’ of citizens and hundred men [hundretanorum]|

” See e.g. Liber Eliensis, ii. 26, ed. Blake, 100. S 1220, 1400, may be instances from Canterbury, although the witnesses also included ecclesiastical communities. °° S 996 (Thetford, 1040 x 1042), 1096 (London, 1058 x 1066), 1103 (London, 1042 x 1044), 1153 (Winchester, 1052 x 1053); note also S 1387, an arrangement made known to four burhwitan (Exeter, Totnes, Lydford, and Barnstaple) in Devon, probably datable to 1018. For post-Conquest evidence of manumissions in the ‘hundred of the citizens of Exeter’, see above, 282. *" British Borough Charters, 67. *? Pollock and Maitland, i. 644. The court at Taunton may have dealt with all types of lawsuit, and there is post- Conquest evidence for it dealing with the more serious crimes; see Hurnard, ‘Franchises, 447. See also S 806 for a vernacular document recording King Edgar’s renewal of King Edward the Elder’s freeing of Taunton for the see of Winchester. He granted ealle spece, i.e. all lawsuits/proceeds of lawsuits. The text is of questionable authenticity. On appointment of justices, see above, 816. °° See e.g. RRAN, ii. no. 1645; Elenchus, no. 54; below, 825-6, on distraint. °** See below, 824; note also S 1204; Borough Customs, i. 278.

°° Reynolds, Introduction, 94. °° DB, i. fo. 262v.

°” See British Borough Charters, 157-9; on such administration of commerce, note also Bateson, ‘London municipal collection’, 496, 710-11, 724.

°° Note also Borough Customs, ii. cxxxviii, for later evidence of the borough court having some probate jurisdiction regarding land.

824 PART III: ANGEVIN ENGLAND in the presence of twenty-four judges.*? In the twelfth century charters frequently specified that burgesses need not ‘plead beyond the walls’, unless for tenements

outside the town, indicating borough jurisdiction over tenements within the walls.°° However, in boroughs, even in London, proprietary actions at least from

the late twelfth century required a royal writ.’ A party dissatisfied with the borough court decision could, moreover, get a writ of false judgment to bring the case before the king’s court.” The jurisdiction of borough courts, even taking into account privileges, thus left considerable scope for royal involvement in treating disputes. As we have seen, charters stating that burgesses should only plead within the borough might explicitly exclude crown pleas, and the silence of other charters need not indicate

that the borough court dealt with such pleas. Although in some instances the boroughs had their own coroners, or itinerant justices went to the boroughs for the trial of burgesses, the eyre was crucial for serious cases.°* Borough courts were to a significant degree integrated within the royal mechanisms for the administration of justice.

3 PROCEDURE So far our concern has been jurisdiction. What of procedural and substantive law? The evidence comes largely from the twelfth and early thirteenth centuries, but earlier aspects are considered where possible®*> On some subjects, notably building, local legislation has been preserved° Much more prevalent are

°° Liber Eliensis, ii. 24, ed. Blake, 97; see also Liber Eliensis, ii. 8,10, ed. Blake, 80-4. °° See above, 818. Note also e.g. CRR, i. 138; PKJ, i. no. 2057.

°" See e.g. PKY, iii. no. 1002, for a writ of right being brought in the portmoot of York. Glanvill, xii. 3, ed. Hall, 137, includes among forms for the writ of right one for land claimed to be held ‘in free burgage’. See also Pollock and Maitland, i. 644. °? The London husting may have dealt with default of justice cases; note above, 819-20. °* See also British Borough Charters, 124. °* See above, chs 22, 27; Reynolds, Introduction, 126; K. M. E. Murray, The Constitutional History of the Cinque Ports (Manchester, 1935), 60-6, on the court of Shepway. Cf. Borough Customs, ii. 56, on London.

°° Borough privileges were, of course, meant to favour the burgesses, but those granting them were aware that burgesses might abuse their position. Privileges could therefore be phrased with some caution, as in a grant by Hugh de Puiset to Wearmouth. If a burgess entrusted anything to a villein within the borough, and the latter went on to deny the debt, justice was to be done within the borough. However, Hugh specified that justice should be done in such a way that the burgess did not unjustly vex the villein through this opportunity; Borough Customs, i. 127. °° For London, see De antiquis legibus liber, ed. T. Stapleton (34 Camden Soc., 1846), 206-10, Borough Customs, i. 245-6; Bateson, ‘London municipal collection’, 506-7, 729-30; London Viewers

30 BOROUGH LAW 825 references to matters being treated according to the law or custom of a specified borough. These appear in charters, custumals, and early plea rolls.” The implications are not always obvious, either as to distinctiveness or content of custom. In general, though, the phrases indicate that something should be carried out according to proper procedure, as when King John laid down for the burgesses of Ipswich that ‘concerning their lands and tenures that are within the borough, right is to be done to them according to the custom of the borough of Ipswich and of our free boroughs’®* The breadth of the clause does not suggest concern with a particular element of procedure. Other instances are conceivably more specific, as when a final concord of 1198 mentions the obligation to warrant a messuage ‘according to the law of the city of Northampton’ We also have a considerable amount of more detailed material on procedural custom and privilege in boroughs. We will look in turn at distraint; pledges and arrest; bringing a claim or accusation; pleading; proof; penalties.

Distraint Our sources do not always make clear whether statements concerning distraint refer to matters of debt or to other issues, for example appearance in court.’°° One privilege was that of distraining a non-burgess without the reeve’s licence.’” In London, a lessor to whom rent was overdue might obtain help from the sheriff, should a lord seek to prevent him from taking distraint.’* A burgess might also be allowed to sell the gage given as security for a debt, as is stated in the customs of Bury St Edmunds in the first half of the twelfth century.’°

Conversely, the burgess might be protected when liable to distraint. For example, it was provided at Gateshead that a burgess’s cattle should not be taken

out of the borough but replevied there if they wished to replevy them.'** No and their Certificates, 1508-1558, ed. J. S. Loengard (26 London Record Soc., 1989), xi-xii. Note also British Borough Charters, 51. Cf. charters granting freedom to build; e.g. Count John for Bristol, Elenchus, no. 54. Note also gild regulations; e.g. Bateson, ‘London municipal collection’, 509. There may, of course, have been earlier legislation that either was unwritten or was written but now lost. °” See e.g. RRAN, ii. no. 1645, Elenchus, nos 54, 57; PKY, iii. no. 897. °® Elenchus, no. 61. °° Feet of Fines of the Ninth Year of the Reign of King Richard I (23 PRS, 1898), no. 167.

*°° On distraint, see also British Borough Charters, 161-4; Borough Customs, ii. xliv-lxii. *°! See e.g. Borough Customs, i. 110-11 (Newcastle, Pontefract, Egremont). *°* Borough Customs, i. 290; note also e.g. Borough Customs, i. 126, 186 (Preston). *°° See above, 695-6. For other privileges regarding distraint and replevying, see Elenchus, no. 54; note also Borough Customs, i. 19 (Pontefract), 148-9 (Northampton). *°* Borough Customs, i. 135 (the text shifts awkwardly from singular to plural). See also Borough

Customs, i. 133 (Okehampton), for a type of retaliatory distraint against the debtor who had carried off what was owed.

826 PART III: ANGEVIN ENGLAND burgess was to be distrained for a debt, unless he was the debtor or a surety.’ However, according to the Dialogue of the Exchequer citizen or burgess debtors to the king were to be treated more harshly than rural ones. The sheriff had to confiscate the recalcitrant debtor's houses, estates, and town rents, and place them in

the control of others, so that the money due to the king would be forthcoming. If no-one was prepared to take them, the sheriff was to have the debtor’s houses locked, and their estates intensively exploited.’*°

Pledges and arrest London customs from the early thirteenth century refer to ‘the old judgment’ in cases of debt. The accuser made a claim to the sheriff, who was to summon the alleged debtor to the husting. If he did not come, the ‘old judgment’ was adjudged. The text then explains the ‘old judgment’: if the accused lived [meint] in the king’s soke, distraint of 40s. was to be taken, and be released for pledge;

if the accused lived in the soke of a church or baron, ‘the sheriff must lie in wait for him on the king’s highway and place him in pledge, for that is the old judgment’. If, however, a man made a claim to the sheriff concerning battery or affray [medlee] with blood or wound, the sheriff was to place the wrongdoer in pledge for the blood, and the aldermen were to say whether the king or the sheriff should have the plea.” In homicide cases, where Glanvill insisted that the accused not be released on pledges except by benefit of royal dispensation, in London the sheriff was to allow such release on twelve good pledges, although if the accused could not find pledges, ‘the sheriff ought to take his body, for if this happened elsewhere he would not be released by any pledge’.’°* Other burgesses were less privileged than those of London,’ and it is improbable that a possible Preston custom would have extended to homicide or even the other most serious

°° Elenchus, no. 54, British Borough Charters, 165-6. Note also Borough Customs, i. 98 (Northampton, c. 1190): “No-one can take distress from the pledges until the principal has failed.’ Note also Borough Customs, i. 103 (Northampton, c. 1190), on bailiffs taking distress for debt. °° Dialogus, ii. 13, ed. Amt, 160-2, and note above, 703. Cf. Borough Customs, i. 297-8, on procedure in London for rent overdue to the king. *°” Bateson, ‘London municipal collection’, 487-8, 492-3. See also Borough Customs, i. 103, which is dated to the first part of Henry III's reign. The latter text says that the procedure was for small debts,

but does not mention the 40s. distraint. *°8 Glanvill, xiv. 3, ed. Hall, 174, Borough Customs, i. 20. See Borough Customs, i. 23, for pledges having to be able to give 100s., that is their wer, should they fail. Note also Borough Customs, i. 19 (London): “No man of the city ought to be placed by more than twelve good pledges, according to the law of the town.’

*°? See e.g. Borough Customs, i. 19 (Pontefract): ‘Every burgess shall replevy his own distress, unless he be accused concerning the crown of the lord king or failed to find his own pledge.’

30 BOROUGH LAW 827 charges: ‘a burgess should not be taken for an accusation by lord or by reeve, if he has sufficient pledges.’

Bringing claims or accusations

By the end of the twelfth century a case concerning right to an urban free tenement appears to have needed a royal writ.” Less certain is the situation in a claim concerning only seisin; as we will see, the assizes of mort d’ancestor and novel disseisin were not applied in some boroughs, but our sources do not make clear whether another form of writ was required or whether the claim might simply be made orally.'” As in other areas, accusations concerning theft and violence could be brought in various ways, including individual accusation. However, some enjoyed particular privileges against unsupported accusations by outsiders, as at Pontefract: ‘every burgess is bound to answer another, without a witness, but not an out-

sider, except concerning an obvious deed [facto apparente] or concerning debt."* As for ex officio accusations, in London the justice might, if he wished, bring an accusation that would have been brought by appeal had the potential appellor not previously been arrested or confessed a crime.’* However, as we

have seen elsewhere, there was a dislike of unsupported accusations by offcials.15 The early thirteenth-century London custumal provided for communal accusation: If any man is killed in London or in the portsoken, the sheriff ought to go there and use all reasonable effort to find out who killed him. If the neighbourhood names anyone or suspects anyone, or if the dead man himself has accused anyone before he died, the sheriff ought to attach him who is accused, if he can find him.”°

‘®® Borough Customs, i. 19.

™ See above, 557. ‘™ See below, 830-1.

*"S Borough Customs, i. 167. Cf. e.g. Borough Customs, i. 26 (London): ‘If anyone prosecutes

[siut] for the death of a man, and he is unwilling to give gage or pledge to pursue his appeal [clamur], that is an empty charge, and he whom he accuses ought not to be molested for this.’ For procedure regarding accusations and proof in cases involving outsiders, see also Borough Customs, i. 165-6. *™* Borough Customs, i. 25. For the king pursuing a plea of the crown without an appellor, see also Borough Customs, i. 47, on which see below, 829-30. “'? Borough Customs, ii. 30; see also above, 735. ** Borough Customs, i. 13. The Portsoken ward was a large area outside the east wall of the city; see Anglo-Saxon Writs, 233, for a brief summary.

828 PART III: ANGEVIN ENGLAND Pleading and verbal accuracy A charter in the name of Henry I for London states that ‘there shall no longer be miskenning in husting nor in folkmoot nor in other pleas within the city’, a charter of Henry II more simply ‘that in the city let there be miskenning in no plea.” The Leges Henrici use miskenning for mis-speaking [mislocutio], presented as a reason for transfer of cases between courts, and as a particular problem in London.” Miskenning here seems to mean more than just an amercement to allow a verbal slip to be retrieved, although such a slip may not have led to automatic and irretrievable loss of the case. Considerable care was needed particularly on matters of detail, and in London one who wrongly named his witnesses or warrantor was to be judged ‘nameless useless [nameles fremeles]’."° Elsewhere, inaccuracy in the formal denial perhaps led to irretrievable loss of the case, although in some places an error could certainly be retrieved by payment of an amercement.’”°

Proof A common privilege for burgesses was freedom from undertaking trial by battle.

The existence of earlier Continental examples indicates a direct link to towndwelling, although it is possible that the situation in England was encouraged by the continuing native English influence in towns, Englishmen having been allowed other forms of proof by the Conqueror.’ Newcastle customs specified that ‘if a burgess makes an appeal concerning any matter, he cannot force a burgess to fight, but the burgess is to defend himself through his law [i.e. oath], unless it is a matter of treachery, concerning which he should defend himself by battle’. Reference to appeal here suggests cases involving theft or personal violence, whilst other customs refer to pleas of the crown.’ An early plea roll records

the citizens of Lincoln producing the king’s charter that they not need fight a duel concerning any appeal, but rather deraign themselves according to liberties and laws of the city of London.”* Whether the privilege generally covered pleas concerning right to land is less clear, although the charter in Henry I’s name for

"7 RRAN, ii. no. 1645, Elenchus, no. 36. ® LHP, 22.1, ed. Downer, 124. See also Anglo-Saxon Writs, 82-3, Borough Customs, ii. cxlix-clii. For miskenning elsewhere, see Borough Customs, ii. 2; also above, 313. “* Borough Customs, i. 161; note also ii. 4-5, Bateson, ‘London municipal collection’, 493. 2°" Borough Customs, i. 162-4, ii. 5.

"2" See above, 322-3. For Continental examples of exemption from trial by battle, see Bartlett, Trial by Fire and Water, 119.

2 Borough Customs, i. 34; see also i. 34-5 (Wearmouth). "23 See e.g. Elenchus, no. 57, Richard I for Winchester. 24 CRR, i. 293.

30 BOROUGH LAW 829 London states very broadly that ‘none of [the citizens] is to do battle’, whilst John’s charter to Dunwich in 1215 explicitly included pleas concerning land in the burgesses’ exemption from battle.° However, freedom from duel was not universal. There might be specific exceptions, notably in appeals concerning the death of an outsider.’” At Preston, trial by battle appears to have applied at least in certain types of case between a burgess and a knight.’* Elsewhere, moreover, battle might take place if the parties agreed to it; the privilege was freedom from being compelled to fight. Thus the early thirteenth-century London collection contains an interesting account, in French, of a felony plea: John denied all and put himself outside the franchise and offered to defend himself by his body. Adam [the accuser] said that he ought not to lose his franchise for John, for no man of the franchise ought to fight if he did not wish. It was then judged that John should be at his law, himself the eighteenth [to swear], for when both parties were of the same franchise, no battle lay here, unless both wished, whatever people might say. For if so, the strong man might insult the weak, the young the old, for the old and weak could not deraign by battle against the strong and the young.’

The alternative method of proof imposed here was wager of law, proof by oath and oath-helpers.%° The London charter in Henry I’s name states that ‘if any of

the citizens is impleaded concerning pleas of the crown, let a man of London

deraign himself through the oath that was adjudged in the city. The early thirteenth-century London custumal gives further details about what was to happen when a man accused of a plea of the crown was adjudged to the ‘Great Law’. Thirty-six men were to be chosen by the ‘trustworthy men [prud’ hommes] of the city to swear. If a single oath-taker failed in or withdrew from swearing, the accused was to die, and be treated ‘as one vanquished on the field [i-e. in trial by battle]’."* If the king sued a man concerning a plea of the crown without an

°° RRAN, ii. no. 1645. In a land case a burgess might choose a champion who was not a burgess. Note also Borough Customs, i. 33-4, for duels in London between outsiders. °° Borough Customs, i. 32; from late in the thirteenth century, see also Borough Customs, i. 253. 7 Borough Customs, i. 32 (Bristol, Dunwich). *8 Borough Customs, i. 35-6. *** Bateson, ‘London collection’, 723, Borough Customs, i.34, Munimenta Gildhalla Londoniensis, i. 109. John, surnamed Bucquinte, may but need not be the John Bucuinte discussed above, 587-8. "°° As elsewhere, wager of law was also used concerning debt; above, ch. 26, Borough Customs, 1.177-8.

8! RRAN, ii. no. 1645. In the 1170s, William fitzStephen stated that for Londoners an oath was the end for all disputes; MTB, iii. 4. *** Borough Customs, i. 37-9; see also Pollock and Maitland, ii. 634-5. Bateson, ‘London munici-

pal collection’, 707, suggests that the reference to the justiciar may indicate that the passage derives from late in Henry I’s reign or Stephen’s. Note also the use of eighteen oaths for non-capital pleas of the crown.

830 PART III: ANGEVIN ENGLAND appellor [clamif], the accused was to defend himself with six oath-takers, himself the seventh oath.’* The custumal also mentions dispute over custom: some say that if the accused be a married man and a tenant of land, then his compurgators ought to be married men and have land in the city. But the accused may properly have with him bachelors or widowers, provided they are lawful men, and vice versa [i.e. if the accused is a bachelor, he may have married men]."4

At Lincoln, too, thirty-six oath-takers were used in felony cases, as is recorded on a plea roll of 1200."% Elsewhere, the required number might be smaller; at Dunwich twenty-four neighbours and peers of the accused should swear.%° At Colchester, anyone impleaded of a plea of the crown was to deraign himself by the oath adjudged to him.*” Even when unilateral ordeal was abolished in 1215, and criminal jury trial came into routine use elsewhere, proof by oath remained in use in towns.”°

Some boroughs did not use recognitions, particularly that of mort d’ancestor. Anassize roll of 1203 records that the burgesses of Shrewsbury gave the king 100s. ‘to have an inquest whether assizes of mort d’ancestor ought to be taken and had been taken concerning tenements that were within their hundred. Unfortunately the entry leaves an unfilled blank for the county's testimony on the issue.° Then in 1205 the king granted that ‘the burgesses of Shrewsbury shall not plead or be impleaded concerning tenements that are in the aforesaid borough or hundred,

through writ of mort d’ancestor, but be dealt with [deducantur] through the law of that borough of Shrewsbury, as was accustomed’.*° Glanvill suggests a quite wide exemption from mort d’ancestor: ‘the assize is accustomed to cease by reason of burgage, through another assize constituted in the realm out of greater utility.’ Unfortunately nothing is known of this other assize.’”

"°° Borough Customs, i. 47; note also the provision concerning the man who was killed having been billeted by force on the killer’s house. See Borough Customs, i. 48, on what was to happen if one of the compurgators died or fell ill. *** Borough Customs, i. 48.

°° CRR, i. 425. See also Borough Customs, i. 39-40, for thirty-six men being used at York, Wearmouth, and Pontefract. "°° Borough Customs, i. 45. "°” Borough Customs, i. 46-7.

"8 See Borough Customs, i. 36-52. "°° PKYJ, iii. no. 854.

“° British Borough Charters, 137 (also Stafford). See also Bateson, ‘Laws of Breteuil’, 315, for Lichfield.

“ Glanvill, xiii. 11, ed. Hall, 155. Note also Bracton, fo. 272, ed. Thorne, iii. 295. Mort d’ancestor may have been unsuited to towns because of the more active land market or the greater and continuing use of bequest of land.

30 BOROUGH LAW 831 Glanvill makes no similar limitation on other recognitions. However, Count John’s charter for Bristol states, perhaps rather imprecisely, that ‘no recognition is to be made in the vill."** In London, according to the early thirteenth-century

custumal, there was a method of dealing with disseisins which pre-existed Henry II's assize of novel disseisin: If anyone disseise another without judgment, as of fee and his right, the sheriff by judgment ought to gather the alderman and neighbours of the neighbourhood and inquire from them by oath and the faith that they owe to the lord king, whether he was disseised without judgment. And if it is thus by their lawful statement [legale dictum], the sheriff is to restore seisin to him, and place the disseisor through good pledges, until the pleas of the crown.... But when the assize concerning the recognition of disseisin was made in the realm by the lord king, the method of the aforesaid inquisition was shown to him and the justiciars. And it pleased them, and they permitted the citizens to have it, that is the existing inquisition. And if sometimes by the force and will of the justiciars a recognition was taken at the Tower, and afterwards it was shown to them, they allowed and wished the citizens to have the old liberties of the city.”

Swift methods might also be used in instances of nuisance. At Northampton, if a dispute arose between neighbours concerning a wall, building, or gutter, ‘the bailiffs and trustworthy men of pleas [probi homines de placitis] ought to view that tenement through lawful men of the neighbourhood, and what they say concerning the matter ought to stand firm and established, without essoin and delay."*4

Final judgment and penalties In many aspects, outcome of cases in boroughs resembled that elsewhere. Just claimants to land were reseised, those convicted of the most serious offences put to death. The customs of Preston spell out that ‘if anyone is taken for theft

“*’ Elenchus, no. 54; note also British Borough Charters, 9-10 (Chester). PK, i. no. 3514, may reveal an unwillingness of recognitors to carry through a recognition of novel disseisin in Norwich, but the recognitors default may have had other causes. **S Borough Customs, i. 230-1; see also ii. cxix-cxxi. Note also Lawsuits, no. 447. Note also e.g. Borough Customs, ii. 56-7, for Londoners claiming the custom that they should not swear ‘concerning an assize or concerning murder, or concerning an inquest, or concerning anything’, for that was their franchise as the chief men of the realm. Nevertheless, in pleas of the crown and other required situations, they were to be reminded that, by the faith that they owed the king, they should speak the

truth. “** Borough Customs, i. 245; see also ii. cxxi-cxxii; on London, note Borough Customs, i. 247, and London Viewers and their Certificates, xi-xii.

832 PART III: ANGEVIN ENGLAND [latrocinium| or any felony [infidelitate], and is adjudged, he who prosecutes is to carry out the judgment [faciet justiciam]’.'”

There may have been local variation in the level of amercement for some offences, such as striking a reeve.'4° What is most notable, however, are the state-

ments of maximum amercements for all but the most serious offences. These limits are characteristic of, although not unique to, boroughs. The charter in Henry I’s name for London stated that ‘a man of London is not to be judged in mercy of money except up to [ad] his wer, that is 100s.; I say concerning a plea that concerns money. Elsewhere a 4os. limit might apply, as at Bristol, and we have already noted the 12d. limit associated with the laws of Breteuil.'” We also have occasional mention of compensations, most notably at Preston in a text that may record practice in our period: If a burgess wound another and they wish to come to agreement, friends set between them are to have [servent] ad. for each inch of covered wound, 8d. for uncovered, and whatever loss the wounded man can prove that he has sustained through the suffering of the wound, the other shall render to him; and likewise what the wounded man gave to his doctor for the care of his wound, let him pay him; and he is to bring arms to him, and shall swear on the arms that if he had been wounded and had done similar things to him, he would take what is offered to him if his friends agree to and approve this.'4*

Such provision may have aimed at encouraging out-of-court settlement, which must also have been the purpose of Hugh de Puiset, bishop of Durham’s grant to Norham: ‘if any of the burgesses strike one another outside the graveyard without bloodshed and visible bruise, they may make amends to one another as free burgesses are accustomed, so that nothing be required for security concerning breach of peace."*

**° Borough Customs, i. 73; cf. above, 741.

*° See Borough Customs, ii. 20, 21, for Preston and Egremont.

“7 British Borough Charters, 151-7; above, 814. In the London instance, the meaning of the text is not entirely clear because of the ambiguity of the preposition ad; 100s. may either be the standard level or the maximum. For similar provisions outside towns, see above, 746. See e.g. British Borough Charters, 154 (Pontefract, 1194), for a burgess’s forfeiture being set by twelve lawful men chosen for this. Note also the scale of penalties payable to the lord in British Borough Charters, 155 (Egremont, c. 1202); and variations according to the time of an offence, Bateson, “Laws of Breteuil’, 99. “8 Borough Customs, i. 30; see also Hudson, ‘La faide’, 363. On the date of the customs recorded in the text, see Borough Customs, i. xlvii. For guerra in towns, note also Borough Customs, i. 31, Manchester from 1301. “° British Borough Charters, 112; note also Bishop Reginald’s grant for Wells cited there. Abbot Richard’s charter for Whitby, British Borough Charters, 113, requires that a plaintiff ask three times at his opponent’s house that he do him justice and whatever is of right. If at the third asking the opponent is unwilling to make satisfaction, then the complainant may turn to the town justice.

30 BOROUGH LAW 833 4 LAND LAW Tenure, heritability, alienability Anglo-Saxon evidence on urban landholding is very limited, but Domesday provides some. Often borough dwellers seem to have owed just a money rent, particularly a fixed landgable or hawgable owed to the king; the post-1066 use of Old English terms suggests continuity from the Anglo-Saxon period.*° At the same time, the desire to attract French settlers may have encouraged features such as low fixed rents, as well as other borough privileges." Thus it seems that central

features of later burgage tenure were evident in English towns by the eleventh century.” In the late twelfth century, Count John’s grant to Bristol associates holding in burgage with the services due; the burgesses’ ‘tenures’ were ‘to be held in free burgage, that is through the service of landgable [i.e. land rent] which they

render within the walls’. However, even if characteristic of later burgage tenure, it is uncertain how far these features concerning services were universal to, or the particular preserve of, borough landholding. Not only may some borough dwellers, including some burgesses, have owed labour services, but the terms of some rural holdings may have resembled those seen as characteristic of towns.** For example, landgafol was used with reference to rural rent payment in the Rectitudines Singularum Personarum in the eleventh century and in Glastonbury surveys in the late

twelfth. Evidence for tenures in some boroughs having other distinguishing characteristics increases in the twelfth century, although the characteristics might differ from town to town. Let us return to our three land law categories of security of tenure, heritability, and alienability. In relation to claims by third parties, Abbot Anselm's charter for Bury St Edmunds shows the security that a burgess enjoyed: ‘if any of the burgesses has land in the town of St Edmund

of his patrimony, or if he bought or lawfully acquired it in the town or in the market place, and has held it for a year and a day without claim, and can *°° See DMLBS, s.v. ‘gabulum’, which also provides cross-references to compound words.

*°! This is forcibly argued by Bateson, ‘Laws of Breteuil’; for modifications, note Stephenson, Borough and Town, 88-96. A desire to encourage settlement and commercial development in boroughs before 1066 may, though, have been greater than even Stephenson allowed. *°* See Tait, Medieval English Borough, 102, M. DeWolf Hemmeon, Burgage tenure in Mediaeval England (Cambridge, MA, 1914), 158-66, Reynolds, Introduction, 93. "°° British Borough Charters, 40-1. *°4 Note the gradual spread of the rejection of labour services recorded by Jocelin, Chronicle, ed. Butler, 99; see also Reynolds, Introduction, 100. *°° See Glastonbury, ed. Stacy, 51-2.

834 PART III: ANGEVIN ENGLAND deraign this by the testimony of the burgesses, afterwards he shall not answer to any claimant coming against him.*° The statement concerning a year and a day was sometimes supplemented by other criteria, for example that the aspir-

ing claimant had been in the realm for that period, or that the tenant had the reeve and neighbours as witnesses, or that he had received seisin from an appropriate official.’ Lords seem to have been most concerned simply to preserve their rights to rent and dues from borough lands, rather than exercise any more extensive lordship.’ In some boroughs, homage may not have been done in relation to land, except for homage to the king.*? However, persistent failure to perform services or pay dues presumably could still lead to forfeiture of the tenement for which they were owed. Succession to burgage tenures appears to have been secure. General acceptance

probably explains the rarity of mention in charters or custumals, although William I’s writ for the Londoners stated that ‘I wish that every child be his father’s heir after his father’s day."°° Much less clear is the pattern of inheritance, notably the balance between primogeniture and partibility. Despite the name of ‘Borough English’ that it would acquire, ultimogeniture, inheritance by the youngest son, appears to have been rare. In some boroughs relief was paid, in others the burgesses were quit.” The late twelfth-century Northampton custumal gives an indication of more specific privileges, as well as the types of pressure heirs might face from lords: Concerning an enclosed tenement [De tenemento clauso]: Whoever holds a fee by specific service, either small or great, relief and sale fees are owed therefrom; and if a

tenant holds many tenements from one chief lord, only one relief is owed to him from all the tenements. Concerning giving relief: Whoever holds any tenement, the seller and the buyer are to give sales fees therefrom to the chief lord or his attorney; °° Lawsuits, no. 295. The same charter states that “if anyone acquired land in that vill which was of [de] burghal custom, whomsoever he may be, let him do the custom which that land was accustomed to do’. Note also Lawsuits, no. 630.

*°7 See Borough Customs, i. 272-3 (Pontefract, Preston, Northampton); British Borough Charters, 73. See also above, 823, for sales made in the portmannemoot at Leicester. Note also Elenchus, no. 53,

Count John for Nottingham. *° Note the comments of Maitland, Township and Borough, 72, on the effect of the complexity of tenurial patterns in boroughs. °° See Borough Customs, ii. 83, 161, for evidence from thirteenth-century London and Ipswich; Hemmeon, Burgage Tenure, 49-50. *°° Acta of William I, no. 180.

*®! See Pollock and Maitland, i. 647, ii. 279-80, which explains the derivation of the term from practice at Nottingham in the ‘English Borough’, as opposed to the French. The pattern was not confined to towns; Faith, “Peasant families’, 82-4, 94-5. *&* See Borough Customs, ii. 79-82; also Hemmeon, Burgage Tenure, 20-1.

30 BOROUGH LAW 835 the chief lord cannot seek nor ought to have therefrom relief after the death of the feoffor.’®

A further privilege might allow bequest of land by will. In London around 1200 we hear of executors of a will making a sale of property belonging to the testator.’™

At Tewkesbury it was said to have been the custom in the time of Earls Robert and William of Gloucester (i.e. 1121/2-1183) that the burgesses could ‘make their testaments, and bequeath [legare] in their testaments according to their will their chattels and the burgages that they have lawfully from acquisition’.’* However,

the right to bequeath land appears to have been unusual until the thirteenth century and at first restricted to acquired burgages, as at Tewkesbury.’ Testamentary bequest clearly also relates to alienation. Provisions concerning alienability become much more common in the later twelfth century, but such freedom may well have existed earlier. Domesday Book states that at Torksey ‘if any of the burgesses should wish to go elsewhere and to sell his house which is in that vill without the knowledge and licence of the reeve, he can do so if he wishes.” When we do get borough privileges in charters or custumals, some

seem to allow complete freedom of alienation,’ but others spell out restrictions. It might be specified that such freedom was limited to acquisitions,’® or that grants were not to be made to religious houses to the detriment of the lord’s interests.'”° The former preference has clear parallels in practice concerning lands outside towns, and the latter may reflect more general concern.” There is also evidence for a practice very rare in England outside towns, the right of the kin to pre-emptive purchase [retrait lignager].”* The issue of alienation was sometimes related to that of necessity. The charter of Abbot Anselm for Bury St Edmunds

“°° Borough Customs, ii. 81-2.

*° Early Charters of the Cathedral Church of St. Paul, London, ed. M. Gibbs (3rd Ser. 58 Camden Soc., 1939), no. 167.

“°° Borough Customs, ii. 91.

*°° See e.g. Pollock and Maitland, ii. 330-1; Sheehan, Will, 274-6; Bracton, fos 272, 407b, 409b, ed. Thorne, iii. 295, iv. 268, 273. Note also British Borough Charters 73-4; Borough Customs, ii. 93 (Dunwich); Danelaw Documents, no. 329, where the gift was clearly made inter vivos. *°” DB, i. fo 3371; cf. below, 836, on Hereford. Borough Customs, ii. 1xxxv, comments that the earli-

est passages on alienability concern houses rather than land. *°8 See e.g. British Borough Charters, 64 (Burford, 1147 x 1173 and probably earlier); Borough Customs, ii. 91 (Wearmouth, 1164 x 1195).

“°° See Borough Customs, ii. 91-3; the text of the Northampton custom is not entirely clear. *”° See British Borough Charters, 65-9. Note also Danelaw Documents, nos 76 and 77. "77 See above, 657-8.

See e.g. Borough Customs, ii. 62-3 (esp. Preston and Northampton; in the latter it is spelt out that the practice applied both to inherited and acquired land); Hudson, Land, Law, and Lordship, 204. There is no great detail as to which kin had the option to buy. For the practice in France, see White, Custom, Kinship, and Gifts to Saints, ch. 6.

836 PART III: ANGEVIN ENGLAND stated that if, ‘with necessity compelling’, a burgess ‘has no son or very close kinsman who wishes and can give to him as much for the land as anyone else, he may sell it to whom he wishes within the fee of St Edmund without permission of reeve, wife, children [filiorum], and all kin.” Lords might likewise claim the right to pre-empt sales of land [retrait seigneuriale|, at the price another would offer or even at a reduced price.’“ Lords and the king sought to control freedom of alienation in other ways too. Domesday Book for Lincoln makes reference to land that was not to be given away outside the city or away from the kin, without the king’s consent.”> A payment might have to be made to the reeve. Thus Domesday Book for Hereford tells us, concerning those who dwelt there within or outside the wall, that ‘if any of them wished to withdraw from the city, he could with the consent of the reeve sell his house to another man who was willing to do the service from it, and the reeve had the third penny of this sale’.'”° The early thirteenth-century London custumal states that if land was sold or bought within one of the city’s wards, the alderman of that ward should have his right [dreiture], that is a gold besant or 2s.””7 At Whitby a buyer was to give 4d. for seisin, and 1d. to the burgesses for drink money.’ Such payments emphasise the role of officials within sales, as well as the desire to make

transactions at least hazily memorable.”? An official might also be responsible for the seising of the grantee.*° In 1194 Roger de Lacy granted privileges to his burgesses of Pontefract: Every burgess can give or sell his land to whom he wishes, except to religion [i.e. a monastic house], save the farm of the lord. And he shall enter the court [placitum] and give back the land in the hand of the reeve [pretor] for the use of the lord, and

‘> Lawsuits, no. 295. Notealso e.g. Borough Customs, ii. 61 (London). For more detailed description of procedure in the late twelfth-century Northampton custumal, see Borough Customs, ii. 63-4. Cf. Borough Customs, ii. 62, concerning Tewkesbury: if a burgess grew so poor that he would have to sell his burgage, he was first to ask his closest heir three times in his neighbour’s presence for his necessities in food and clothing, according to his status. If his heir would not provide them, the man might sell his burgage in perpetuity, without challenge. ‘”* Borough Customs, ii. 60; British Borough Charters, 69. 7° DB, i. fo. 336r. ‘7° DB, i. fo. 179r. The entry goes on to say that ‘if anyone through his poverty could not perform his service, he surrendered his house without payment to the reeve, who saw that the house did not remain empty and that the king did not lack service’. ’” Borough Customs, i. 271. ‘78 Borough Customs, ii. 81; see also ii. 82 (Egremont).

‘”? For making land transactions in the borough court, thereby ensuring publicity, see above, 823. "8° See also Borough Customs, ii. cxvi-cxvii.

30 BOROUGH LAW 837 shall give 1d. in toll, and the reeve shall give the land to the buyer from the gift of the lord, quit of everything, and the buyer shall likewise give 1d.™

Here we have sale through surrender and admittance, with the reeve acting in the lord’s place.

Overall, therefore, given such restrictions on freedom to make grants, urban landholding in general may not have been distinguished in legal terms by particular alienability. Rather an active urban land market may have ensured that a continuing high proportion of lands were acquisitions and hence more easily alienable, just as rural acquisitions were.

Burgage tenure’ Defining burgage tenure is difficult even at the end of our period.’* The earliest uses of the word burgagium refer to the rights of the borough in general, rather

than specifically to a form of tenure.’* In the mid-twelfth century we have burgagium being used to refer to a tenement.’** Such uses continue, but clearer association with the terms of landholding emerges during Henry II's reign. The diversity of related meanings is clear in a charter of Henry concerning Hedon: Know that I have granted to William count of Aumale free burgage in Hedon for him and his heirs in fee and inheritance, thus that his burgesses of Hedon may hold freely and quitly in free burgage as my burgesses of York or Lincoln best and most freely and quitly hold with those customs and liberties.'*

Magna Carta listed burgage alongside fee farm, socage, and knight service as one of the ways in which land could be held. The draftsmen clearly thought it necessary to include both socage and burgage, reflecting the developing classification of tenures.’*° However, the above analysis suggests that the distinctiveness

of burgage tenure from at least some rural landholding should not be exaggerated. It was not seen as contradictory to refer to a grant being made ‘in fee and

‘*! Borough Customs, ii. 82. "8? See British Borough Charters, xlvi-xlvii, on the relative lack of charter evidence for the oldest boroughs on this issue. *®° E.g. RRAN, ii. no. 1137, Henry I grant of free burgage to Beverley; cf. Archbishop Thurstan’s grant, EYC,i. no. 95. See also Tait, Medieval English Borough, 214-15, Stephenson, Borough and Town, 143-4. *S4 See e.g. British Borough Charters, 38 (Swansea); Earldom of Gloucester, nos 46, 68.

*®° British Borough Charters, 38. The royal permission in this charter is interesting, as is Henry Il’s confirmation to Maldon, but note also e.g. Abbot Richard’s grant to Whitby British Borough Charters, 38-9. "8° Magna Carta, 37.

838 PART III: ANGEVIN ENGLAND inheritance and in free burgage’.*” More significant is the continuing use of the term socage in urban contexts, most notably in London.'’* Rather than burgage tenure having a particular defining legal feature distinct from rural tenures, it is better seen as landholding in a borough normally displaying certain characteristic although not unique features, for example low fixed rent as the sole form of service.*°

5 MOVABLES Borough practice concerning ownership of movables does not seem to have differed greatly from that elsewhere. There are in the early part of our period signs of the king or lord claiming some extensive rights. Domesday Book for Hereford

stated that if anyone, being ‘overtaken by death, had not bequeathed what was his, the king used to have all his movables [pecunia]’.°° In general, though, statements of custom assert the rights of the wife and children, together with the need to make allocation for the dead burgess's soul.’” The needs of commerce may have made bailment, the temporary entrusting of goods, more common in towns, and some customs seek to protect the owner and his property when the bailee was being distrained.’”* In London it was said that distraint for rent was not to take place ‘in booths, nor in a fuller’s house, nor in a dyer’s house, nor in a dubber’s house, where many things are entrusted for dyeing, for selling, or for dubbing’? The assumption was that goods in such places were only the householder’s to work on, but were the property of a superior commercial figure, perhaps the type of figure who could help to determine law on such a subject. Custumals occasionally mention the right to buy and sell movables freely, but such statements were rare probably because the point could be assumed.’ There

is little information on the form of transactions, but a Preston custom that may "87 See e.g. The Early Records of Medieval Coventry, ed. P. R. Coss (NS 11 British Academy Records

of the Social and Economic History of England and Wales, 1986), no. 10; note also no. 9, and above, 837, for Hedon; see also Bateson, ‘London municipal collection’, 510. "8° Tait, Medieval English Borough, 107 n. 2, 218.

“8° See also Hemmeon, Burgage Tenure, 183-5. Note also above, ch. 24, for a similar argument concerning the lack of a single defining characteristic of alms or villeinage tenure. "°° DB, fo. i. 179r; note also DB, i. fo. 154v.

°! See e.g. Borough Customs, ii. cxl-cxli, 76 (Preston), British Borough Charters, 76 (Eynsham) * See Borough Customs, i. 148-9, ii. lviii-lix. °° Borough Customs, i. 148; note also Bateson, ‘London municipal collection’, 491. Dubbing may mean any finishing process. °* Note e.g. Borough Customs, ii. 74-5 (Tewkesbury, Egremont).

30 BOROUGH LAW 839 be of our period suggests the possibility of variation from the pattern described by Glanvill. Glanvill specifies that if earnest alone had been given in relation to a sale, the buyer could withdraw but would lose the earnest; he left uncertain what the penalty was for the seller who withdrew in such circumstances.’ At Preston, if a burgess should buy market-goods [forum] or any merchandise [mercem], and give earnest, and he who sells shall repent concerning his market goods, he shall double the purchaser’s earnest. But if the buyer fingers his market-goods [forum suum palpabit], he shall either have the market-goods or 5s. from the seller.’

6 STATUS Evidence regarding burgess status in the Anglo-Saxon and Anglo-Norman periods is limited. Domesday Book seems to use ‘burgess’ to refer to a man, presumably normally a householder, who paid his share of the borough dues, one possible indication of being a full member of the community.’” Domesday also gives other indications of burgesses’ freedom, for example mentions of the right to sell their tenements and the scarcity of references to services other than rent.’* However, these were not peculiar to burgesses, and it is notable that transcripts of Domesday returns concerning Canterbury made at the abbey of St Augustine’s used the words ‘men’ and ‘free men’ where Domesday used ‘burgesses’.

Further indications of burgesses’ freedoms appear in _ twelfth-century statements of custom. In Newcastle in the time of Henry I, it was later recalled, ‘there is not merchet nor heriot nor bloodwite nor stengesdint [a fine for striking another]. Each burgess may have his own oven and hand-mill if he wishes, saving the right of the king’s oven.”°° Again, however, freedoms from obligations such as payment of merchet were ones that might be enjoyed by other free men.*” Outside the context of the borough, the burgess was a free man like any other;

°° See above, 688.

°° Borough Customs, i. 217. On employment agreements, note Borough Customs, i. 215 (Northampton, c. 1190).

*°7 See Tait, Medieval English Borough, 86-96. However, there is later evidence suggesting that men other than burgesses might have to share in borough obligations: see Elenchus, no. 53, Count John for Nottingham. 8 Tait, Medieval English Borough, 82-5. °°? An Eleventh-Century Inquisition of St Augustine’s, Canterbury, ed. A. Ballard (4 British Academy Records of the Social and Economic History of England and Wales, 1920), 7, 9. *°° See British Borough Charters, 95, 96; also 96-7 for other boroughs. *°" See above, 757.

840 PART III: ANGEVIN ENGLAND the distinction of his status was that within the borough he was a full member of the community and enjoyed the borough’s privileges. Burgess status passed down within families, and more than one generation could enjoy the status simultaneously; the custom at Newcastle was that ‘if a burgess has a son in his house at his table, his son is to have the same liberty as his father’.”°? An outsider could also obtain burgess status. The record of the customs of Newcastle referring back to the day of Henry I states that ‘if a peasant [rusticus] comes to live in the borough, and lives there in the borough for a year and a day like [sicut] a burgess, he is to remain thereafter, unless previously it was agreed by him and his lord that he was to remain for a fixed time’.”™ At least in some places, the new status may at first have been associated with protection by the king.”** This possibility is suggested by the preservation of the king’s claim over the man, as in Henry II’s charter to Nottingham early in his reign: ‘if anyone, whencesoever he be, lives in the borough of Nottingham for a year and a day, in time of peace, without claim, no-one afterwards shall have right in him, except the king.’*°> Other potential claimants had to be allowed a reasonable but finite chance of making a claim, as in Henry II's charter for Lincoln: if anyone lives in my city of Lincoln for a year and a day without claim of any claimant, and gives [i.e. pays] the customs of the city, and the citizens can show through the laws and customs of the city that a claimant was in the realm of England and did not claim him, thenceforward as previously let him remain in peace in the city of Lincoln as my citizen, without plea.°°

Here the citizens seem to have participated in protecting the new burgess from a possible claim. However, burgesses may not have wanted all incomers

automatically to acquire their status after a year and a day.*” Whilst a few charters grant that all men of a specified borough should be free burgesses,”°** the

evidence indicates that normally something more than residence was required. In Newcastle the incomer was to live ‘like a burgess’, at Lincoln he was to give the customs of the city. Elsewhere qualification is associated with acquisition of a burgage, presence at court, and making of a payment.?*® Overall, the specific *°? British Borough Charters, 101. *°° Borough Customs, ii. 88-9; see also British Borough Charters, li-lii, 103-5.

*°* See Pollock and Maitland, i. 648-9. *°° Borough Customs, ii. 89. *°° British Borough Charters, 104. *°7 See also Pollock and Maitland, i. 649. *°8 British Borough Charters, 101 (Hartlepool and Wells, both from King John in 1201).

*°° Bateson, ‘Laws of Breteuil’, 496 (Preston); British Borough Charters, 102 (Tewkesbury, 1147 x 1183).

30 BOROUGH LAW 841 evidence of custumals fits with the general statement of Glanvill, who indicates

that entry to the gild merchant might be a method of control: ‘if any villein [nativus] lives peacefully [quiete] for a year and a day in any privileged town [villa], thus that he is received into their commune, that is the gild, as a citizen, he is thereby freed from villeinage.””°

7 FAMILY LAW Marriage The core of the law of marriage was under ecclesiastical jurisdiction and applied in boroughs just as elsewhere. However, burgesses in some boroughs enjoyed

exemption from seignorial control of marriage of their children or of themselves." Count John granted to the burgesses of Bristol that ‘none of their lords are to have wardship or gift of their sons or daughters or widows on account of their lands outside [the borough], but only wardship of their tenements which are of their fee until they are of age’.”” Borough charters and customs include some references to property relations between husband and wife.*’ At Northampton at the end of the twelfth century there were elaborate provisions concerning maritagium, some of which are not distinct from law elsewhere.”"* The customs show the joint nature of alienation of maritagium, should necessity force its sale: ‘if a man takes a wife with her maritagium, they can together sell it because of their poverty, and it ought to be fixed [ratam] by the law of the vill, when they sell that because of poverty; but they

**° Glanvill, v. 6, ed. Hall, 58. It is possible that quiete might be better translated by a phrase such as ‘free of claim’.

*™" See British Borough Charters, 76-8. *"? Borough Customs, ii. 145. **° Note Borough Customs, ii. 102-3 (Northampton), on a woman seeking to claim dower when her

husband had had to sell land through necessity. This custom concerned a particular situation where there was named money dower resting on the land, but there is mid-thirteenth-century evidence for women losing right to dower in lands that had been sold thus; Borough Customs, ii. 103-4, Pollock and Maitland, ii. 424-5. *™ E.g. Borough Customs, ii. 92; ‘whoever has many lands from inheritance and from acquisition, and has one or two or more daughters, it is properly permitted to him to give one of his lands with one of his daughters in maritagium, and the lord of the fee cannot contradict this, save his service, nor can the son or relative contradict’, cf. Glanvill, above, 787. Likewise provision concerning the husband’s claim to hold the maritagium after his wife’s death does not differ significantly from Glanvill’s, except perhaps in allowing him, if predeceased by his wife and if they had had no child, a period of thirty days before the maritagium reverted to the person who gave it, or his closest heirs; Borough Customs, ii. 112.

842 PART III: ANGEVIN ENGLAND cannot do this so long as they have other land to sell.*° Such statements about necessity do not appear in all borough customs or in accounts of non-urban law; they may represent particular local custom, or may indicate the type of criteria applied elsewhere when the reasonableness of grants came under consideration.

Minority and wardship Glanvill specified that the son of a burgess came of age when he knew how to count money accurately, measure cloths, and likewise do other parts of his father’s business.”"° As for wardship, both Glanvill and Magna Carta insisted that

the king could not claim prerogative wardship on account of land held through burgage.”” Rather, family wardship seems to have been the custom of at least some boroughs.”* In a dispute over the abbot’s exercise of his seignorial rights, the chronicler Jocelin of Brakelond claimed that ‘in the town of St Edmund the custom exists, by reason of its being a borough [ratione burgi], that the closest blood relative has the wardship of a boy with the inheritance until the age of

discretion.”

8 CONCLUSION A first conclusion to be drawn from the above discussions is the significant variety of customs between boroughs, an impression reinforced by examination of later custumals that might suggest practice in our period.”*° Such variety may be indi-

cative of the type of diversity that existed unrecorded outside boroughs before being reduced by royal control. Secondly, we have seen that such diversity may have co-existed with a greater similarity between borough and other law on matters such as landholding than some previous historians have allowed. Thirdly, there may have been significant continuities through our period. The influential English element in urban populations after 1066 may have encouraged continuity across 1066, for example in matters of landholding and in the use of the wergeld in the context of amercements. Compurgation retained its prominence across the Conquest and also through the development of criminal jury trial.

**° Borough Customs, ii. 102. **° Glanvill, vii. 9, ed. Hall, 82; cf. above, 805. **” Glanvill, vii. 10, ed. Hall, 84; Magna Carta, 37. **8 Note also Borough Customs, ii. 146, a grant to Dunwich in 1215 with parallels to Magna Carta. 1° Jocelin, Chronicle, ed. Butler, 106. *2° See e.g. Borough Customs, ii. cxiv-cxv, on husband and wife.

30 BOROUGH LAW 843 Fourthly, however, borough law also shows features often associated with the law of a later period. The land market and in some boroughs the weakness of lordship further encouraged the proprietal nature of the rights of the landholder.”” There was also an emphasis on the protection of recent seisin that prefigures the assize

of novel disseisin, although the London text concerning the city’s procedure does not suggest a direct influence on the form of the royal procedure.*” In our next and final chapter, further parallels between borough custom and national development will become clear, when we examine the concessions made by King John in Magna Carta.

*2" See also Pollock and Maitland, i. 638. For another aspect of limitation of rights of lordship, that is regarding loans, see Borough Customs, ii. 86. *22 See above, 831; Pollock and Maitland, i. 644.

31

Magna Carta and the Common Law

ARLIER chapters have considered many issues to which later periods would

Bee as ‘Constitutional Law’, for example the relationship of king to legislation.’ Others, for example the composition of the Council, were not discussed in legal terms before the thirteenth century. However, the end of King John’s reign saw a crisis in which matters of royal powers and of law and justice came together, raising specific legal and judicial issues as well as the over-arching one of the king’s standing in relation to the law. A settlement was sought through the writing down in Magna Carta of solutions that were to have legal force.’

1 CRITICISM OF JUSTICE UNDER ANGEVIN KINGS The Angevin reforms produced a mixed reaction. The eyre in particular was criticised for the burdens that it imposed, its justices referred to as errantes, ‘wandering’, a pun on their itinerant nature and their deviation from justice? However, no evidence exists for widespread resistance to the reforms. Assuming that restricted opposition is not just a reflection of restricted evidence, various explanations are possible, including consultation and consent, royal power and

flexibility, the intentional popularity of some measures, and the appeal of the speed of new procedures and of the finality of decisions in the king’s court. Most

* See above, chs 2, 11, 21; also e.g. above, 125 n. 169 and 355 n. 125 on royal succession.

* Note also Magna Carta, 12, 14, on counsel and the granting of aids and scutages. > John of Salisbury, Policraticus, v. 15, 16, ed. Webb, i. 345, 352; the pun is also made elsewhere, e.g. Herbert of Bosham’s Life of Becket, Lawsuits, no. 411D; Lawsuits, no. 661. The usage became sufficiently well-established, and acceptable, that it appears in official records; e.g. PR23HII, 35, 116. On the burden of the Forest eyre, see above, ch. 19. See also above, 512, on Henry II’s decree concerning default of justice; 518, for Diceto’s discussion of reasons for the rebellion of 1173-4.

31 MAGNA CARTA AND THE COMMON LAW 845 importantly, the overall thrust and the overall effect of the reforms may not have been immediately or easily perceptible.‘

Criticism, therefore, concentrated not on changes in law or administrative structure but—just as at other times and in other places—on the vices of the ruler and his officials’ Henry II was accused of cruelty and of delaying and selling justice.© According to Gerald of Wales, probably writing early in John’s reign, St Peter and the Archangel Gabriel had instructed a Lincolnshire knight, Roger of Asterby, to take a list of demands to Henry: the just laws of the realm were to be kept; no-one was to be condemned to death without judgment, even if guilty; inheritances were to be restored and right done; and justice was to be done freely and without charge’ Criticism of administrators also featured in a vision reportedly experienced in 1206 by Thurkill, an Essex peasant. Amongst those of the damned whom he recognised was a royal justice, possibly to be identified with Osbert fitzHervey. He was said to be famous throughout England ‘for his abounding eloquence and knowledge of the laws’. However, sitting as a justice for royal pleas at the Exchequer, he took gifts from both sides in cases. In the afterlife, he had to act out his sins, turning first to the right then to the left, as if speaking in turn with each of the party of litigants, now advising one side how to make their case, now protecting the other side by telling them how to reply and offer refutation, his hands meanwhile did not rest from their movement, taking money now from this party, now from that, and counting it.

He had to swallow burning coins, after which an iron wheel ran up and down his back, forcing him to vomit them out again, and on earth he was punished by others seizing his wealth following his intestate death.* Twelfth- and early thirteenth-century writers also examined the relationship of king, law, and justice. John of Salisbury in his Policraticus, completed in 1159, * As stated above, 626, below, 852, the reforms tended to favour sub-tenants rather than tenantsin-chief; however, many tenants-in-chief were also tenants of lords other than the king, and in this respect shared the benefits of the reforms. > Note criticisms of the cost and corruption of Church courts and of canon lawyers; e.g. Diceto, Ymagines historiarum, s.a. 1179, ed. Stubbs, i. 436-7; “Vision of the monk of Eynsham’, 26, Eynsham Cartulary, ii. 326; J. T. Noonan, Bribes (New York, 1984), ch. 7.

° See e.g. Map, De nugis, v. 6, ed. James et al., 478; Ralph Niger, Chronica, ed. Anstruther, 168; ‘Vision of the monk of Eynsham’, 41, Eynsham Cartulary, ii. 347-50, esp. 348. ” Gerald of Wales, De principis instructione, ii. 13, Opera, ed. Brewer et al., viii. 183-6. Roger also made demands regarding observance of Henry's coronation promises to maintain the Church, the services rendered to royal officials, and the expulsion of the Jews. ° Visio Thurkilli, relatore, ut videtur, Radulpho de Coggeshall, ed. P. G. Schmidt (Leipzig, 1978), 23-4; P. G. Schmidt, “The vision of Thurkill’ (1978) 41 J. of the Warburg and Courtauld Institutes 50-64, at 61-3.

846 PART III: ANGEVIN ENGLAND discussed the differences between a tyrant and a prince, placing first that the prince was obedient to law.’ Legal writings from London in the years preceding Magna Carta associate good rule with obedience to the law. This is clearest in interpolations in the Leges Edwardi Confessoris: The king ought to do everything properly in the realm and by judgment of the great men of the realm. For right and justice ought to rule in the realm, rather than perverse will. Law is always what does right; will and violence and force, indeed, are not right. The king, indeed, ought to fear and love God above everything and preserve his commands throughout his realm."°

In the everyday workings of the courts, parties demanded just treatment according to the custom of the realm, emphasising custom as a restraint upon arbitrary decisions, including those of the king and his justices.” During John’s reign at least some royal justices may have come to see themselves as owing a duty to the law beyond that which they owed to the king; they used the ideals of routine and uniformity to fulfil this duty and constrain royal will. Some

justices perhaps resented or indeed suffered because of the watchful presence of John, whereas Richard’s absence had allowed them to insist more strongly that the routines of justice be followed.” In 1205 royal justices over-rode the king’s order that because of an error in a writ the parties should go ‘without day’, that is that the plea cease indefinitely.* Such hints of tension help to explain the stance of some royal justices in 1215. Certain former justices who had not served recently on Bench or eyre, for example Henry de Braybrooke, seem to have been open in their rebellion. Another who was recorded as having withdrawn from the king’s service was John of Guestling, who had had a long career as a royal justice up to 1209 and had earlier granted some of his tenants concessions resembling certain ° John of Salisbury, Policraticus, iv. 1, ed. Keats-Rohan, 231-2. From early in the twelfth century, see a gloss on the Psalter, probably based on a lost work of Lanfranc. The passage ‘against thee alone [i.e. God], have I sinned’ (Ps 50: 6 [AV 51: 4]) is glossed ‘it is only for thee to punish the sins of kings and prelates, who have no lord over them save God alone. If a man of the people sins, he sins to the king and God; but a king to God alone...’ Smalley, Study of the Bible, 72. "° ECf retr, 11.1 A6-7. Note also WI art Lond. retr.; LHP, 8. 1b, ed. Downer, 102; for comment, see Holt, Magna Carta, 93-5. “* See Holt, Magna Carta, 92-3, 121; note also 117-18 for his discussion of ‘right’. At the same time the king could promote in individual cases, as well as in political concessions (see below, 847-53), the idea that procedure should either be ‘according to the custom of England’, or was invalid; see e.g. CRR, i. 375-6; see also e.g. iii. 27-8; iii. 57. Note also e.g. Lawsuits, no. 641 (at pp. 683-4). *? See the contrasting cases cited by Holt, Magna Carta, 185-6; one of the cases he cites from John’s

reign is that involving Simon of Pattishall, below, 847. Note also, though, evidence that royal justices might favour one of their fellows when he was a litigant in a royal court; see e.g. Turner, Judiciary, 182-3.

"> CRR, iii. 237, 276, iv. 41-2; for the king taking other interest in one of the parties in the case at this time, see Rot. de ob. et fin., 271.

31 MAGNA CARTA AND THE COMMON LAW 847 royal promises in Magna Carta.’* Even the leading justice, Simon of Pattishall, seems to have fallen under royal suspicion, with the king ordering that his lands be seized and his chattels sold. Simon may have had previous troubles with the king, having been amerced in 1207 for allowing two barons to concord without the king’s licence, and his fellow justice amerced in that case also fell under royal suspicion in 1215.”

The problem remained of how to constrain the king who did not act like a good prince. Writers might explore the possibility of tyrannicide or rely upon God as the judge of kings,’* but theoretical and practical difficulties of placing the king under the law remained.” Confronted with the problem of the king who did not rule in obedience to the law, John’s opponents in 1215 turned to rebellion, writing

in the form of a charter, and the imposition on the king of a form of superior worldly authority.

2 MAGNA CARTA AND LAW Magna Carta had essential causes unconnected with matters of law and the administration of justice: personal distrust of John, going back at least to his disloyalty to Richard I; personal quarrels and persecutions during John’s reign; the loss of many Continental possessions, the financial burdens arising from efforts to regain them, and the failure of those efforts; inflation that added to the strain on royal finances; and the king’s dispute with the Church, ending in 1213 in his surrender of the realm to Pope, for the king to hold henceforth as a feudatory.® However, much of Magna Carta itself was concerned with matters of law and the administration of justice. Along with financial dues, these were the main areas of contact between royal administration and the realm and therefore were likely to be prominent in any statement of freedoms to be enjoyed in relation to the king. The Angevin reforms greatly increased the number of people directly in contact with royal justice: litigants, sureties, essoiners, and the large number of knights and free men in the localities who had to carry out the royal measures and had

** ODNB, ‘Braybrooke, Henry de’; for John of Guestling, see Rot. lit. cl., i. 341, PKY, iii. xciii-cclxvii, and below, 849; Turner, Judiciary, 170-1. For justices who remained loyal to the king in 1215, see Turner, Judiciary, 168-9. *? See Rot. de ob. et. fin., 386, 412, 447; PR9J, 207 (James of Potterne); Rot. lit. cl., i. 200, 232b. *® For tyrannicide, see John of Salisbury, Policraticus, viii. 20, ed. Webb, ii. 372-9, noting the qual-

ifications (Webb, ii. 377-8) concerning tyrannicide by one bound to the ruler by fealty or oath.

*” Such problems continued; from Henry III’s reign, see e.g. Bracton, fos 5b-6, 107-107b, ed. Thorne, ii. 33, 305-6. "® See Holt, Magna Carta, esp. chs 2 and 6.

848 PART III: ANGEVIN ENGLAND thereby received an education in law and administration. Furthermore, the very aims of the reformers, notably speed and standardisation, highlighted the contrasting vigorous exercise of discretionary lordship that remained an essential part of Angevin kingship.”

John’s administration, including his administration of justice, may have become particularly oppressive and arbitrary from about 1207.*° Concentration of litigation on his own court was not only unpopular for the problems that litigants experienced, but also focused upon the king blame for the failings of royal justice.*’ Nevertheless, the issues addressed in Magna Carta do not wholly derive from John’s rule. They also reflect the baronial realisation of a key structural aspect of Angevin reform, particularly with regard to land law: new royal actions offered considerable protection to sub-tenants in dealings with their lords, much

less to tenants-in-chief in dealings with the king. A tenant-in-chief, lacking routine access to many of the royal actions, remained vulnerable to royal delay, demand for proffers, and arbitrary decision. The plea rolls, particularly those of John’s reign, show such issues being fought out case by case; Magna Carta reveals that they had become the subject of a wider movement of opposition, demanding both increased provision of the routine forms of royal justice and the cessation of arbitrariness.” The notions of proper practice stated in Magna Carta had precedents, some included in previous royal concessions. There were the general statements of coronation oaths and charters, and the rather more detailed concessions of Henry I’s coronation decree, a text important to John’s opponents at least by the end of 1214.73 In 1191, during Richard I’s absence of Crusade, his brother John had come into conflict with William de Longchamp, whose actions whilst administering the

realm were provoking resentment. Within the settlement to their dispute it was granted that ‘bishops and abbots, earls and barons, vavasours and those holding freely, shall not be disseised of their lands or chattels at the will of the justices or

*’ Note Richard I and John forcing those in possession of documents to obtain renewals or confirmations; Howden, Chronica, s.a. 1198, ed. Stubbs, iv. 66, CRR, i. 331. See e.g. CRR, i. 465, for Henry II disseising by will. Note also J. C. Holt, “Magna Carta 1215-1217: the legal and social context’, in his Colonial England, 291-306, at 300.

*° See e.g. N. Barratt, “The impact of the loss of Normandy on the English Exchequer: the Pipe Roll evidence’, in Foundations of Medieval Scholarship: Records edited in Honour of David Crook, ed. P. A. Brand and S. Cunningham (York, 2008), 133-40, on increasing firmness in exaction of debt. ** On the courts, see above, ch. 22; also below, 851, on Magna Carta, 17. *? See also above, ch. 23; also Holt, Magna Carta, esp. 120-1, 191-2. *° Holt, Magna Carta, 222. In the period leading up to Magna Carta additional clauses were composed, the text now being known as the ‘Unknown Charter’; Holt, Magna Carta, Appx 4. This in turn

formed a basis for the Articles of the Barons that provided a draft for the text of Magna Carta; Holt, Magna Carta, Appx 5.

31 MAGNA CARTA AND THE COMMON LAW 849 officers of the lord king, but shall be treated by judgment of the lord king’s court

according to the lawful customs and assizes of the realm, or by the command of the king’.*4 1213, in the contexts of discontent in the north of England and the settlement with the Church, saw promises of good government and measures to relieve oppression.” Such concessions encouraged further demands for reform, especially after the failure of the king’s efforts in France in 1214. Likewise local grants by the king, some to counties, more to boroughs, often prefigure the liberties conceded in 1215.”° Similar liberties appear in seignorial grants for towns and very occasionally elsewhere. A case of 1208 provides a full text of a charter by John of Guestling making concessions to certain tenants, for example that if any of them or their associates fell into his mercy, the amercement was not to exceed 2s.” Between 1207 and 1209 the northern baron Peter de Brus made a more extensive set of concessions to the knights and free tenants of Cleveland, for example regarding obligations and also the level of amercements for offences. Peter was among the most prominent northern rebels in the last years of John’s reign, and his charter was witnessed by other future rebels, including two of those whom Magna Carta would name as responsible for ensuring that the king observe its terms.” Magna Carta contains a much wider and more detailed range of liberties than any of these previous concessions. It has Continental parallels, and these show some similar concerns with matters of law and justice, for example promising that deprivation of fiefs only take place according to proper custom and by judgment of peers. However, the Continental grants tended to be more restricted in issues covered and in beneficiaries, being to the aristocracy, sometimes including knights, rather than to all free men of the realm as was Magna Carta.” Issues that arose in 1215 were also of concern to the learned laws, although only a few clauses

**“ Howden, Chronica, s.a. 1191, ed. Stubbs, iii. 136. Note also the notion of proper process contained in Queen Eleanor’s decree concerning the release of prisoners in 1189; Howden, Chronica, ed. Stubbs, iii. 4-5; e.g. the contrast between those who had been held ‘by the will of the king or his justice’ and those held “by the common justice [rectum] of the county or hundred or by appeal’. *° Holt, Magna Carta, 212-21.

*° For boroughs, see above, ch. 30; for borough and other local grants, see Holt, Magna Carta, chs 3-4. *” CRR, v. 202-4; see above, 846, on John being a royal justice. *® Cartularium prioratus de Gyseburne, i. 92-4; see above, 746, for amercements, and note the discussion in Holt, Magna Carta, 67-70. *° See Holt, Magna Carta, 25-7, 76-80, 273-8. Note also Magna Carta, 60, laying down that all men of the realm are to observe the customs and liberties, as far as it pertains to them, towards their own men. On matters of law, jurisdiction, and justice, see also e.g. the 1183 Treaty of Constance, MGH, Legum, sectio iv. Constitutiones, i. 411-18, and the 1212 Statute of Pamiers, C. de Vic and J. J. Vaissete, Histoire générale de Languedoc (16 vols; Toulouse, 1872-1904), viii. cols 625-35. For ecclesiastical legislation that justice in Church courts should be free [gratis], see e.g. Legatine council at St Peter’s, York 1195, 10, Councils and Synods, I, no. 180.

850 PART III: ANGEVIN ENGLAND of Magna Carta, involving matters of ecclesiastical concern, show the definite and direct influence of Romano-canonical law2° More generally, the ideas and specific concerns, the customs and practices that Magna Carta mentions were rooted in earlier English practice and circumstance.* The core issues in 1215 are further indicated by the author of the contemporary Histoire des ducs de Normandie, who came to England in 1216. The king was forced to agree that a woman should never marry in such a way that she would be disparaged;... that he would never make a man lose limb or life for a wild beast that he had taken, but that he should be able to make a payment....He had to fix reliefs for lands, which were too great, at such a level as they might wish. They wished to have all high jurisdiction [hautes justices] in their lands. They demanded many other things, with good reason, which I cannot specify to you. Above all this they wished that twenty-five barons be chosen, so that the king should treat them in all matters by the judgment of these twenty-five. ...°

Thus the author emphasised marriage and relief, Forest, jurisdiction, and control of the king. And indeed, after granting the freedom of the Church, the charter immediately treats relief, wardship, marriage, and widows and their lands. Later clauses deal with the king’s prerogative wardship and with restriction on relief to be paid by those holding lands of any barony escheated in the king’s hand.*

Except in such matters, however, treatment of land law was limited, perhaps surprisingly so given the controversies over service obligations that had arisen in the preceding two decades.*

°° See Hudson, ‘Magna Carta’; for an argument for considerably greater influence from ius commune, see Helmholz, ‘Magna Carta’. For vocabulary reminiscent of the ius commune being used in a context where significant learned law influence seems unlikely, see the appearance of the word delictum in the charter of Peter de Brus, cited in the previous paragraph. ** Magna Carta, 26, 27, above, ch. 25; Magna Carta, 9-11, 26, above, ch. 26; Magna Carta, esp. 32, 36, 38, 54, above, ch. 27; Magna Carta, 44, 47, 48, 53, above, ch. 19. Regarding boroughs, Magna Carta,

13, provides a general confirmation of liberties and free customs; c. 12 deals with aids from London. Further clauses include provisions for the implementation of concessions, e.g. cc. 48, 52, 53, 55, the last of which deals with fines and amercements made unjustly and against the law of the land. Other clauses deal with matters largely beyond the scope of this book, including financial and other royal exactions (see cc. 12, 14, 23, 25, 28, 30, 31); commerce (cc. 33, 41; c. 35 concerns regulation of weights and measures, on which see above, 523-4); the Welsh and Scots (cc. 56-9); matters relating to the politics of John’s reign and the recent rebellion (cc. 49-51, 62). *? Histoire des ducs de Normandie et des rois d’Angleterre, ed. F. Michel (Paris, 1840), 149-50.

°° Magna Carta, 2-8, see also c. 11, and note Articles of the Barons, 37, cf. Magna Carta, 55. On relief, wardship, marriage, and dower, see above, 646-7, and ch. 29. Note also cc. 46, 53 on the wardship of vacant religious houses. °* Magna Carta, 37, 43, 53. °° On services, see Magna Carta, 16, 29; cf. Unknown Charter, 7; Holt, Magna Carta, 315-17.

31 MAGNA CARTA AND THE COMMON LAW 851 What of jurisdiction and procedures? The Histoire des ducs’ reference to the barons seeking haute justice in their lands suggests demands for a broad and

significant jurisdiction in many matters. This may be a misunderstanding of baronial demands, or indicate a baronial aspiration not apparent in the Charter. It does, though, warn against too strong an assumption that clause 34, against loss of jurisdiction through use of the writ precipe, was dealing with only a limited concern.** Clauses 18 and 19, on the other hand, demanded greater access to royal justice, setting down that assizes of novel disseisin, mort d’ancestor, and darrein presentment only be taken in the counties concerned. Two royal justices were to be sent through each county four times a year, to take the assizes in the county court with four knights of the county, chosen by that county. If the assizes could not be taken on the day of the county court, sufficient knights and free tenants were to remain so that judgments could be made.” Clause 17 specified that common pleas were not to follow the king’s court but to be held in a fixed place. The phrase common pleas was probably not yet a technical term, rather indicating pleas arising from the general royal jurisdiction. The aim was to stop the uncertainty and inconvenience that had arisen since 1209 through the concentration

of judicial business on the court in the king’s presence. Instead cases were to be assigned to a specific place, be it the Bench at Westminster, or a particular location before the king, or perhaps the eyre.*

Magna Carta also made other grants concerning good provision of justice. Clause 45 required that those whom the king made justices, constables, sheriffs, or bailiffs were to be men who knew the law of the realm and wanted to observe it3° Clause 38 reasserted opposition to unsupported ex officio bringing of suits: ‘no bailiff henceforth is to place anyone to proof by his unsupported plea [ad legem simplici loquela sua], without trustworthy witnesses brought for this.’ 4° Clause 39, one of the most famous, specified that ‘no free man is to be taken or imprisoned or disseised or outlawed or exiled or in any way destroyed, nor will we go against him or send against him, except by lawful judgment of his peers or by the law of

°° See above, 559-60. *” Magna Carta, 18-19, and see above, ch. 23. The clauses modified the Articles of the Barons, 8, 13, which demanded that ‘the king send two justices four times a year who, with four knights of the county chosen by the county, are to take assizes of novel disseisin, mort d’ancestor, and darrein presentment, and no-one is to be summoned because of this except the jurors and the two parties’, and that ‘assizes of novel disseisin and of mort d’ancestor be shortened, and likewise concerning other assizes’.

°® See Clanchy, ‘Magna Carta and the common pleas’; also Holt, Magna Carta, 323-4; above, 538-9. Note the parallel to the specification in c. 18 that assizes be held in the appropriate county; the two issues had appeared together in Articles of the Barons, 8. °° See also below, 860. Note also c. 24, that sheriffs, constables, coroners, and other royal bailiffs were not to hold pleas of the crown, on which see above, 507. *° For unsupported accusations, see also above, 735.

852 PART III: ANGEVIN ENGLAND the land’. The initial concern seems to have been with the king’s political actions, as is suggested by the opening of the so-called “Unknown Charter’: “King John

grants that he is not to take a man without judgment.’ Magna Carta extended it to cover a much wider range of acts and potentially a much wider range of victims. Judgment of peers and the law of the land were alternatives, but mutually reinforcing; it may be that the provision concerning ‘judgment of peers’ gave to tenants-in-chief in their dealings with the king the protection that other free men enjoyed through ‘the law of the land’. Finally, clause 40 laid down that ‘to no-one will we sell, to no-one will we deny or delay right [rectum] or justice’. To move on to the last point made by the author of the Histoire des ducs, the Charter laid down that the barons were to choose twenty-five barons ‘who with

all their might are to observe, keep, and make to be observed, the peace and liberties that we [i.e. the king] have granted to them’. If the king or any royal servant transgressed, and four of the twenty-five were informed, those four were

to bring it to the king’s notice, and he was to have it redressed immediately. Failure to redress within forty days led to the four barons informing the rest of the twenty-five, and those twenty-five with the commune of the whole land shall distrain and burden us in every way that they can, that is by taking castles, lands, and possessions, and in other ways that they can, saving our person and that of our queen and our children, until it has been corrected according to their decision [arbitrium]; and when it has been corrected, let them obey us as they did previously.“

To correct the structural anomaly of the king being the one lord without a superior who could force him to act justly, the barons in 1215 provided for him at least an occasional lord in the form of the twenty-five, and they were to exert discipline through the typical seignorial method of distraint. Some provisions of Magna Carta were put into swift effect, for example those dealing with earlier royal disseisins.** However, as part of a peace agreement, Magna Carta failed. The king obtained papal support and a papal bull annulling the Charter, civil war resumed, French invasion followed. What ensured the continuing effect of the Charter was its reissue in the name of John’s son, Henry III, by those who rallied around the child king following John’s death

** Unknown Charter’, 1; on the ‘Unknown Charter’, see above, 848 n. 23.

* See also Holt, Magna Carta, 329-31. Clause 52 only mentions judgment of peers, perhaps because its particular concern may have been disseisin of tenants-in-chief.

*° Compare this ideal of a separation of justice and finance with the increasing distinction of financial and judicial bodies and personnel within the royal administration; above, 539-40. ** Magna Carta, 61. * Holt, Magna Carta, 165-6.

31 MAGNA CARTA AND THE COMMON LAW 853 in 1216. The reissued Charter was modified, most notably by the removal of the clause concerning the twenty-five barons. However, with further reissues in 1217 and 1225 the Charter became established at the heart of political, administrative, and legal affairs.*° Under Henry III, the sale of justice was constrained compared with John’s exactions. Helped by the special circumstances of a royal minority, the treatment of tenants-in-chief within the king's courts was less affected

by arbitrary royal intervention, although not always free from manipulation or the influence of politics.” Magna Carta, despite being a document imposed on the king in 1215, thus furthered some of the characteristics and aspirations of the Angevin reforms discussed above, notably the use of writing, the adaptation and development of existing customs and practices, and the focus on regular provision of royal justice enforcing set rules.

3 COMMON LAW The phrase common law, ius commune, was associated at this time with Roman and canon law, but the Dialogue of the Exchequer employs both communis lex and commune jus with reference to England.’ It uses communis lex in discussion of debt, to indicate standard as opposed to exceptional practice.’ Still more significantly, it describes the laws [leges] of the Forest as based ‘not on the common law [commune jus] of the realm but the arbitrary decree of princes’>° Common law was thus general and not arbitrary, in contrast to the law of the Forest.

Much more frequent were references to the custom or law of the realm or of England, a type of phrase also increasingly used in other regions including Normandy." Reference could be to proper procedure, as already mentioned,” or to matters such as the age of majority.’ The customs of England might be *° See Holt, Magna Carta, ch. 11. “7 See Holt, Magna Carta, 167-78, 327; Carpenter, ‘Justice and jurisdiction’, 23-43. Carpenter, at 23-5, attributes less significance to the writ precipe in capite, more to process quo warranto, but overall the differences of his position and that of Holt are limited. *° Note also leges publice at Dialogus, i. 8, ed. Amt, 72. For brief reference to English usage in the first half of the thirteenth century, see Hudson, Formation, 18. * Dialogus, ii. 22, 23, ed. Amt, 176, 178. °° Dialogus, i. 11, ed. Amt, 90. See also above, 521, on the 1189 pardon of prisoners.

>" See e.g. D. Power, The Norman Frontier in the Twelfth and Early Thirteenth Centuries (Cambridge, 2004), 151-61. °? See e.g. above, 557.

°* See e.g. Carte nativorum, no. 519. Note also e.g. CRR, i. 279, 284, although this may indicate uncertainty as to custom regarding bringing a case when not of age (see above, 578); Lawsuits, no. 641 (pp. 683-4), which again involves an expression of doubt. For procedure, see also CRR, iii. 64; iii. 1055 iii. 215.

854 PART III: ANGEVIN ENGLAND contrasted with those of other bodies of law or other countries. We have, for example, references to ‘the custom in court Christian’,* and more general comparisons or juxtapositions of English and learned laws.® Similarly an English plea roll recorded that a vicomte of Caux had informed the king that he had ordered

a man to be summoned ‘according to the custom of Normandy’ that he appear before the king in England.° Thus legal and judicial custom was seen to differ across the various lands of the Angevin kings. This perception matched real differences. As we have seen, reforms did not normally operate in a cross-Channel fashion, even if similar developments took place on both sides.” There were also differences of practice between England and even the most similarly governed region, Normandy.* For example, according to a Norman legal text probably of about 1200, theft was a matter for lords’ courts in Normandy, whereas Glanvill attributed the plea to sheriffs.° Likewise, although there were many similarities on substantive matters between English customs and those in lands in the

north-west of France, both within and outside Angevin control, there were also differences, for example regarding inheritance patterns, wardship, and the widower’s rights.°° The custom of the realm could also be contrasted with that of a specific place or region. A sale might be described as legitimate because made ‘according to the law

of the town’." The law of Kent was cited to justify particular practice concerning inheritance or dower.” As such instances indicate, there remained considerable

54 Bg. CRR, vi. 110.

°° Such comparison is apparent in Glanvill, Prol., ed. Hall, 2; see also above, 497-8. Thomas of Marlborough, Evesham, iii. 2, ed. Sayers and Watkiss, 232, juxtaposes jura regni with jus civile. °° CRR, i. 256. See also e.g. Magna Carta, 56, on the laws of England, Wales, and the March. >” See above, 527-8.

°° On ducal authority and the development of custom in the duchy, see Power, Norman Frontier, 179-82. For comparison with weaker rule in other regions, see e.g. Power, Norman Frontier, 181. °° ‘TAC, 59. 1, ed. Tardif, 50, and also 82. 11, ed. Tardif, 89-90; Glanvill, i. 2, xiv. 8, ed. Hall, 4, 177; on theft cases in the king’s court in England, see above, 689, 716. The dates of the basic components

underlying the so-called Trés ancien coutumier of Normandy are not established with certainty, and nor are those of any modifications that they may have undergone before being written down in the manuscripts in which they are preserved. Note also arrangements concerning matters involving ecclesiastics; see esp. the charter of the bishops of Bayeux, Avranches, Sées, Lisieux, and Coutances, printed in Valin, Le Duc de Normandie, 280-1. °° Inheritance: see e.g. Power, Norman Frontier, 186-7, on parage in Normandy; the suggestions of Everard, Brittany, 197-8, on female primogeniture in that county; and more generally Yver, Egalité entre héritiers. Wardship: see e.g. Everard, Brittany, 114-15, 195-6. Widower’s rights: above, ch. 29. See further Hyams, ‘French connection’. °t See e.g. CRR, iii. 146; v. 251.

°? See e.g. CRR, iii. 9-10; vi. 285. For custom concerning essoins in Oxfordshire, see above, 588; also above, 746, on amercements in Kent. Other county customs are only revealed by later sources; see e.g. Bracton, fo. 124b, Thorne, ii. 350-1, regarding Herefordshire, on the limiting to the lord’s

31 MAGNA CARTA AND THE COMMON LAW 855 limits to the consistency of law across the realm, limits readily admitted at the end of Glanvill, which comments on the different customs of different counties regarding theft and other pleas. Local custom may have been especially significant in the most western and northern areas of the realm.** We have noted the continuance of particular northern tenures and the possibility of some form of honorial custom concerning dower in the lordship of Richmond.® On the other hand, even the most remote areas might be visited by the eyre.® In 1208 the king issued a charter for the knights and free tenants of the bishopric of Durham, confirming that if they were placed in plea concerning their free tenements they could defend themselves according to the common and just assize of the realm, and likewise if they or their heirs were impleaded concerning any other matter in the court of the bishop of Durham. They were not to be impleaded concerning their free tenement except by royal writ, as in the time of Henry II and his ancestors. If they fell into the bishop’s forfeiture, they were to be amerced according to the ‘assize of that bishopric’, but the sheriff of Northumberland would act if the bishop wrongfully took their livestock and held it against gage and pledge.” Thus royal administration of replevin, standard procedures in court, and the rule requiring a writ to compel answer concerning a free tenement all penetrated this distant and privileged region. We have, then, a situation in which local custom was recognised and local and seignorial courts continued to be of considerable significance, but in which royal justice was of markedly increasing importance, the custom of realm emphasised.* Royal remedies were available to anotable portion of the population, paralleling the breadth of grantees of Magna Carta.°? However, some were excluded from

access to royal justice, for example women with regard to many criminal matters, villeins and some free men with regard to villeinage tenements”? Were there further, practical, constraints on access to royal justice? As the time between eyres grew, justice may have been less readily available than when similar disputes had been heard in more frequent county or seignorial courts, a problem responsibility to answer regarding offences committed by members of his mainpast to instances where the man returned or the lord harboured him after the offence. °° Glanvill, xiv. 8, ed. Hall, 177.

°* For law in the marches of south Wales, not covered by this book, see e.g. Davies, ‘Kings, lords and liberties. °° See above, 635, 811.

°° Note the comments of Barrow, ‘Northern English society’, 26-7. °” Rot. chart., 182.

°° Cf. the variety of custom in boroughs, above, ch. 30. °° See below, 856 n. 75, for use of novel disseisin by men whom their lords claimed were villeins. See also above, ch. 23. ”® See above, 722, ch. 28.

856 PART III: ANGEVIN ENGLAND reflected in the provision of Magna Carta concerning recognitions.” Having to seek justice at Westminster was costly, time consuming, and involved considerable travel, perhaps enough to put off some potential litigants.” Fear of the more powerful might also deter the potential litigant or others who would be needed if justice were to be performed. In a case of 1212, a litigant stated that he had raised the hue and cry, but no-one had responded by reason of the abbot of Thorney, whose vill it was and whose servant, the bailiff of the hundred, was the litigant’s opponent”?

These are significant qualifications to the availability of royal justice. Nevertheless, it remains notable that considerable resort was made to royal courts, including by litigants in apparently unfavourable situations. Not only were claims brought concerning very small areas of land,” but lesser men might succeed in disputes with their lords or other powerful men.” The 1212 litigant, faced with his hundred-bailiff opponent, eventually got his accusation into the king’s court.° Furthermore, if an increased proportion of cases required purchase of a royal writ, many of these were routinely available for 1m. or even “4m, significantly less than earlier, less standardised writs.” Procedure might also be modified to help the poor.’ The extent of royal control and of access to royal justice in England seems the more significant when compared to many other areas of Europe.” English aristocrats had not been granted the type of power of protection that the count of Flanders allowed as a hereditary fief to Arnold of Ghent, count of Guines, in the late eleventh century: Arnold might keep safe at Ardres for a year and a day anyone who had been proscribed [bannitum] for any reason, against any men of the count of Flanders’ jurisdiction, so long as the person did not act or conspire

™ See above, 851.

” See Lawsuits, no. 422, fora monastery too indebted to start litigation. Cf. the advantages enjoyed by those with the resources to pay, for example for the hastening of justice; above, 848. ”* CRR, vi. 264. See also above, ch. 1. ”* See above, ch. 23. ” See e.g. the following novel disseisin cases: RCR, ii. 187; Northants., nos 663 (lord had claimed that man was his villein, but failed to produce suit); 782 (lord had acted without writ); CRR, iii. 140 (lord had claimed that man was his villein, but failed to produce suit). ”° CRR, vi. 264-5. For lesser men bringing appeals against greater, see also e.g. RCR, i. 309, 314, 412, ii. 12-13 (although this may show a successful cover-up by the accused). ”” See above, 582, on writs de cursu. ”® See e.g. Sutherland, Novel Disseisin, 65, on poor litigants being allowed simply to pledge their

faith that they would pursue their action.

” For an example of exertion of powerful rule in a small political unit, see van Caenegem, ‘Criminal law in England and Flanders’. Note, though, that, as van Caenegem, 44-5, points out, Count Philip’s ordinances were made not for the whole country, but for the major towns alone, by individual charter.

31 MAGNA CARTA AND THE COMMON LAW 857 against the person of the count or countess of Flanders. If the proscribed man was unwilling to stand judgment, Arnold could produce him safely in any court of the count’s lordship, before any judges, and then, so long as the man did not wish to stand to justice, Arnold might take him back and keep him in his own land.*° Nor would Henry II have allowed castle-holders to protect arsonists who were their lord, man, or relative, as Frederick Barbarossa did in an 1186 decree.* Late in our period, the court of the king of France still primarily heard cases between his tenants-in-chief or concerning land in the royal demesne.” Clearly part of the difference was physical as well as political geography; England was a relatively small realm and, in Maitland’s words, ‘rivers were narrow and hills were low. England was meant by nature to be the land of one law.’*? However, the Angevin

kings probably had more extensive control of justice in England even than in the relatively small Normandy.** The Anglo-Saxon legacy of strong kingship, the

impact of the Norman Conquest, and developments under the Norman kings provided deep foundations for royal law and justice as asserted by the Angevin kings and their officials.

4 CONCLUSION: LEGAL KNOWLEDGE, LAW, AND NORMS This book has argued that to the development of English law the Anglo-Saxon period contributed in particular a powerful machinery of royal government, significant aspects of a long-lasting court structure, and important elements of law relating to theft and violence. Until the reign of Stephen, these Anglo-Saxon contributions were maintained by the Norman rulers, whilst the Conquest led to the development of aspects of landholding that were to have a continuing effect on the emerging common law. The Angevin period saw the establishment of more routine royal administration of justice, closer links between central government and individuals in the localities, and growing bureaucratisation. Finally, the later twelfth and earlier thirteenth century saw influential changes in legal expertise.

°° Lambert of Ardres, Historia comitum Ghisnensium, 119, ed. J. Heller (MGH, Scriptores 24; Hanover, 1879), 619.

°" MGH, Legum, sectio iv. Constitutiones, i. 451. Note also e.g. the usages of Touraine and Anjou allowing the possibility of a lord summoning his knights against the king when the latter failed to do justice; Etablissements de Saint Louis, ed. Viollet, iii. 24-5. *? See e.g. J. W. Baldwin, The Government of Philip Augustus (Berkeley, 1986), esp. 37-44, 137-44,

264-6. °° Encyclopedia Britannica (11th edn, Cambridge, 1910-11), ix. 601 (s.v. “English law’). ** See above, 557, on the ‘writ rule’, 854, on theft.

858 PART III: ANGEVIN ENGLAND We have already examined the legal learning of the Angevin reformers, and must now consider what was possessed by or available to litigants. Some great churches or churchmen had long made use of learned law,*> but such learning became more widespread in the latter half of the twelfth century, particularly as a general training in the arts was found to be only limited preparation for ecclesiastical litigation.*° The early-thirteenth-century Evesham chronicler, Thomas of Marlborough, had received legal education from English masters, almost certainly at Oxford...” When a potential dispute arose, the abbot summoned Thomas ‘because of his knowledge of law’,** and this knowledge is manifest in his History.* Had Thomas not written this work we would not know that a monk at Evesham possessed such learning, raising the question of how many similar but unknown

learned men existed by the end of our period. It may be significant that in the late 1150s, Richard of Anstey had relied in part on Italian masters to provide legal expertise for his arguments in the Church courts.?° In the 1170s the abbot of Battle had to look beyond his monastery for learned legal advocacy. The abbot was criticised by a kinsman for not having invested in legal education for him or any other relative, so that they could have had the requisite knowledge of the law and decretals.*" Abbot Samson of Bury had to find two clerks learned in law to associate with himself when he was first appointed a papal judge-delegate, again indicating that such learning was not available within the cloister.’ Therefore, although legal learning had spread, it was still far from the case that in c. 1200 every monastery, even every major monastery, had a Thomas of Marlborough hidden in its cloister. It should also be noted that learned law was put to use in ecclesiastical rather than secular cases. It was in argument before the pope that Thomas's skills and

°° See e.g. Lawsuits, no. 134, for William of Saint Calais.

°° Note that, when appointed a papal judge delegate, Abbot Samson was already learned in the liberal arts and imbued with divine scripture, but that such learning was considered insufficient for his new duties; Lawsuits, no. 661. *” Thomas of Marlborough, Evesham, iii. 230, ed. Sayers and Watkiss, 232, and see Sayers’ introduction at xxv-xxvii. °® Thomas of Marlborough, Evesham, iii. 196, ed. Sayers and Watkiss, 202. °° See e.g. Thomas of Marlborough, Evesham, iii. 202-3, 229, 242-3, 250, 254-5, 264, 272, 284, ed. Sayers and Watkiss, 210, 232, 242-4, 252, 256, 258, 266, 272-4, 282; also A. Boureau, ‘How law came to the monks’ (2000) 167 Pe»P 29-74, esp. 54-5. °° Lawsuits, no. 408E.

°" Battle Chronicle, ed. Searle, 322-4. °? Lawsuits, no. 661; see above, 13-14, for his swift acquisition of the necessary legal knowledge, which contrasts with the lengthy studies undertaken by legal experts.

31 MAGNA CARTA AND THE COMMON LAW 859 learning were most clearly displayed,® and it was primarily for arguments in ecclesiastical matters that lawyers were hired.** As we saw when considering the Angevin reformers, learned law was not pressed into service in secular courts, and any impact that it had was on a more general shaping of legal thinking.” The same may be largely true of other forms of learning from existing texts.

The Anglo-Norman Leges continued to be copied, translated, and developed. It is notable that most of the changes made to the Leges, for example in an early thirteenth-century London collection, were intended not to update them, but to provide more general teaching on justice.” The exception is the inclusion of material specifically relating to London customs, and with the increasing number of urban custumals it may be that learning law from short, fairly simple texts was a characteristic of urban legal expertise. Such a background may have helped form the legal outlook of men such as the royal justice Henry of Northampton, whose father Peter heads a list of those responsible for stating the laws of Northampton,

then recorded in writing.” A different form of literate legal expertise belonged to charter draftsmen. There must have been much continuity in forms and levels of skill, be it among royal or monastic scribes, or clerks in baronial households or the localities.°° At the same

time there may have been some demand for increased skill from at least some scribes. Charters may have been subjected to more precise scrutiny and stricter interpretation in courts.’°° More complicated forms of grant had to be recorded, often in the context of transactions involving money as well as land.’”

°° See esp. Thomas of Marlborough, Evesham, iii. 229, 286-98, ed. Sayers and Watkiss, 232, 286-96. °* See Lawsuits, no. 408E. °° Note also the absence of notaries public from England at this time; C. R. Cheney, Notaries Public in England in the Thirteenth and Fourteenth Centuries (Oxford, 1972), chs 1 and 2; cf., for Continental Europe, Brundage, Medieval Origins of the Legal Profession, 211-14.

°° Sometimes several such texts were gathered and then copied together; see e.g. O’Brien, God’s Peace, on the Tripartita, that is the Articuli Willelmi, the Leges Edwardi Confessoris, and a genealogy of the Norman ducal house. See also O’Brien, God’s Peace, 106, for ECf probably having been translated into French before 1200. °? See F. Liebermann, Uber die Leges Anglorum saeculo xiii. ineunte Londoniis collectae (Halle, 1894); Keene, “Text, visualisation, and politics’; above, 846; also Hudson, ‘Leges to Glanvill’, 245. °® See Borough Customs, i. xli, Stenton, English Justice, 82-3.

°° Note D. Postles, ‘County clerici and the composition of English twelfth- and thirteenthcentury charters, in Charters and the Use of the Written Word in Medieval Society, ed. K. Heidecker (Turnhout, 2000), 27-42. *°° Note also requirements at the Exchequer for precise wording of documents in order to obtain quittance; Dialogus, ii. 9,12, ed. Amt, 136, 158.

*°! Note e.g. the type of transaction mentioned in CRR, i. 212. Note that Hubert Walter appears in our evidence as early as 1178 as witness to a charter recording a complex transaction, involving a debt to Bruno the Jew of London; Carte Antique, 1120, no. 378. The presence in the witness list of

860 PART III: ANGEVIN ENGLAND What, then, of the legal knowledge and skills applied in secular courts? What constituted ‘the law of the realm’, which Magna Carta specified that justices, constables, sheriffs, and bailiffs should know and be willing to observe? It was, foremost, knowledge and skill obtained through experience of practice in the

courts, just as in earlier periods.’ According to Jocelin of Brakelond, Abbot Samson at first was not used to worldly disputes, so he kept with him a kinsman who was a knight. The latter was an eloquent man, knowledgeable in law and

accustomed to secular cases. Later Samson, simply through a small amount of practice in such cases together with his innate reason, became sufficiently skilled to attract comment from a royal official and to be made an itinerant justice.*°? Particularly officials and court-holders would need to know customary penalties and jurisdiction, but also very important were matters of procedure, both its normal pattern and the possibilities of manipulation.’°* Knowing the

advantage of being in possession in a land case, and knowing how to obtain delays whilst in such possession, were valuable legal skills, sometimes possessed by a litigant himself, sometimes by an adviser distinguished by expertise in the practice of law.’®

As far as royal courts are concerned, it may be no accident that essoiners, men responsible for obtaining delays, show some indications of rising status late in our period. People also increasingly used attorneys to represent them at the central court. Often attorneys were friends or kin, but there are signs of parties employing the specialist skills of men who were otherwise strangers.’® As yet such specialists were apparently seen only in royal courts, particularly the Bench, but they are significant as a first stage in the emergence of a legal profession.

It seems likely, therefore, that there was a disjuncture between elements of the legal expertise needed in royal courts and what continued to suffice in other secular courts, except perhaps those of some towns. Such a view is supported men such as the justiciar, Ranulf de Glanville, may suggest that some expert legal guidance had been provided. *°? See Hudson, ‘Leges to Glanvill’. For the continuing importance of such knowledge beyond our period, see Professor Brand’s volume in this series. "°° Jocelin, Chronicle, ed. Butler, 24; Lawsuits, no. 661; for Samson acting as a royal justice, see also PKJ, iii. xcviii. Cf. his need for book learning in order to act as a papal judge-delegate; above, 858. *°* Note that when describing Samson’s initial ignorance, Jocelin stated that the abbot had never been ina place ‘where was given gage and pledge’; Jocelin, Chronicle, ed. Butler, 24. “°° For knowing the advantage of being in possession, see e.g. above, 10; for the advantage of delaying, see e.g. Thomas of Marlborough, Evesham, iii. 239, 280, 432, ed. Sayers and Watkiss, 240, 278, 414; for this being an area where expert advice might be needed, see Brand, Legal Profession, 36. *° See above, 587-8. For legal specialists, see Brand, Legal Profession, 43-54, PK], iii. xxxiv—xliv.

See above, 586-7, on attorneys, 593, on the pleading of exceptions possibly being an area requiring specialist skill. Note also S. M. G. Reynolds et al., “Forum: the emergence of professional law’ (2003) 21 LHR 347-91, and cf. Palmer, ‘Origins of the legal profession’, 134-5, 140-1.

31 MAGNA CARTA AND THE COMMON LAW 861 by signs of ignorance of the more technical law of royal courts. The Dialogue of the Exchequer was careful to point out that ‘for him who most needs the law ignorance of it is of no avail’.’” There are examples of people bringing cases that they could not win, possibly in the outside hope of success, possibly on the basis of a different view of the facts, but possibly in ignorance of the requirements of

the action.’ Turning to legal norms and legal arguments, again development by 1215 must not be exaggerated. Glanvill reveals areas where legal norms were a matter of debate, or where their impact in court might be tempered ‘out of equity’.°? It is also possible that there was inconsistency in decisions on some issues in royal courts, suggesting a lack of coverage, clarity, or determinacy of legal norms.”°

Complex legal thinking most affected limited areas of law, those regarding land and family, and perhaps debts and agreements." And the level of expert learning recorded in legal argument even in the king’s court remains limited compared with some cases in the most important Church courts.” Still, bearing such cautions in mind, let us examine the forms of the legal norms and the legal arguments put forward, particularly regarding matters that might come before the royal courts.”3 There were general maxims, some of which may have been widely used; a possible example appears in Glanvill, when he states that “someone can lose through default but no-one can win when entirely absent’."4* Sometimes more precise rules were cited in court, for example those against women bringing appeals except for the death of their husbands or against the same person being both lord and heir." Arguments based on such rules were clearly seen as decisive if they fitted the facts of the case. In other instances several arguments were piled *°” Dialogus, ii. 9, ed. Amt, 138, possibly a formulation alluding to Roman law. Cf. in the Anstey case the arguments of Mabel de Francheville, or her advisers, that ignorance of the law should be taken into account, arguments supported with learned references; Lawsuits, no. 408B. *°8 See Flower, Introduction, 152, for possible cases. See above, 581-2, on the process of obtaining a writ. Note also the confusion apparent in CRR, i. 221, a case of wounding. See CRR, iv. 27, for a man

apparently uncertain of the distinction between being an essoiner and an attorney. *°? Glanvill, vii. 1, ed Hall, 74; the phrase appears in the context of his discussion of the ‘lord-andheir’ rule, on which see above, 651, below, 863. See also above, 650-1, on the casus regis, 530-1, on debate. "See e.g. above, 723, 795-6. *™’ See generally Milsom, Natural History; also Brand, ‘Henry II’, 240.

"7 See e.g. Thomas of Marlborough, Evesham, iii. 286-98, ed. Sayers and Watkiss, 288-96. See also Battle Chronicle, ed. Searle, 332, Boureau, ‘How law came to the monks’, 30-1, on ‘allegations’, that is quotations, from learned law, which constituted an argument. ** See further Hudson, “Leges to Glanvill; also Hudson, ‘Court cases and legal arguments’ P. R. Hyams, ‘Norms and legal argument before 1150; in Law and History: Current Legal Issues 2003, ed. A. Lewis and M. Lobban (Oxford, 2004), 41-61. ™ Glanvill, ii. 16, ed. Hall, 34.

“See above, 651, 722-3.

862 PART III: ANGEVIN ENGLAND up, for example that land was villeinage because of the nature of the services owed and because the holder was of villein status."° The multiple arguments may stem from doubts about which best fitted the facts or from knowledge that services might sometimes not be decisive. However, they need not indicate that a single argument could not have decided the case, for example based on a rule that a villein could not hold a free tenement. Those pleading preferred the impact created by multiple arguments.

Especially the explicit citation of rules indicates an ability to distinguish between matters of law and matters of fact. The distinction was occasionally made in these very terms, although our evidence is from ecclesiastical cases.” Often in secular courts the questions put to recognition, grand assize, or jury were a mixture of law and fact."* Visible, however, is some pattern of questions of fact being directed to jurors, questions of law being put to the court. In a case of 1212, one party put to the decision of the court the question of whether a man could give all his inheritance as a maritagium, the other party placed herself on a jury as to whether that man had so given all his inheritance.’* Such sharp division between matters of law and matters of fact was probably encouraged by the increasingly sophisticated legal thinking of royal justices, their greater regulation of issues and information relevant for consideration in court, and the more routine employment of sworn bodies of men to provide verdicts on specific issues, rather than of ordeal to decide the general issue. It is also manifest in reasoned judgments, for example on the grounds that a wife could not have anything of her own during her husband’s lifetime, and therefore could not make a purchase with her own money.’”° Such a method of reasoning was to encourage development of law as a collection of rules and processes that could decide cases in combination with detailed consideration of the facts.”

We can detect other related developments. There are signs of distancing between some legal and social norms. One example relates to marriage, where the consent of the parties came to be a legal requirement whereas the consent of

‘tT See above, 663-7. ‘'” Thomas of Marlborough, Evesham, iii. 305, 370, ed. Sayers and Watkiss, 302, 358; in both cases

the distinction is being made, according to Thomas, by Pope Innocent III. *® Note also Lawsuits, no. 641 (p. 684), for such a question being put to justices. *'? CRR, vi. 201; she argued that the donor had had other lands in his inheritance. See also above, 653, on the proportion of the inheritance alienable; above, 593, on the special mise. "9 Northants., no. 450; see also e.g. Plac. abbrev., 96, CRR, vi. 149 (above, 802). ‘2. Note also e.g. Milsom, Legal Framework, 182, Historical Foundations, 264. The use of juries in place of ordeal is at the centre of the argument put forward in S. F. C. Milsom, “Law and fact in legal development’, in his Studies in the History of the Common Law, 171-89, although he may underestimate the wide range of information and argument that might be brought to courts in the period before the routine use of juries.

31 MAGNA CARTA AND THE COMMON LAW 863 family or lord might be desirable but not required for the marriage to be valid, although its absence might have other legal consequences.’ Legal rules might be perceived to be contrary to social expectation. Glanvill found himself forced to admit that a bastard son was in a better position than a legitimate younger son in terms of receiving grants from his father without the heir’s consent.’ Likewise he regarded the lord-and-heir rule as operating in a fashion that he considered would be surprising to at least some parties involved.’ We also see people playing with law to their own advantage. This was not simply a matter of changing the factual situation, for example by placing themselves in possession before litigation began, or by transferring land after litigation had started.’ Rather, legal processes or legal norms might be used or exploited contrary to their original intended purpose.’® An important example from the end of our period is collusive litigation in the king’s court in order to have a final concord to secure a transfer of land.’”” Such methods may have been encouraged by legal advisors, although they could come from the parties’ own initiative.’ It is possible that they developed particularly rapidly in towns, with readily transferable land, frequent use of money, and perhaps the need to secure arrangements with Jewish and other lenders.’”? The first reissues of Magna Carta show such practices spreading, most notably with clause 43 of the 1217 reissue aiming to prevent artificial grants to the Church that led to lords losing reliefs, wardships, and marriages: it is not permitted to anyone to give his land to any religious house thus that he resume it to hold from the same house, nor is it permitted for any religious house

"2 See above, 778-82. *?° Glanvill, vii. 1, ed. Hall, 70-1.

** Glanvill, vii. 1, ed. Hall, 72-4; discussed more fully in Hudson, ‘Leges to Glanvill’, 238-9, and see also above, 651, which notes that the rule was cited in court. ‘?° For the former, see e.g. above, 10; for a party arguing that the latter had occurred, see e.g. CRR, 11. 228-9.

°° See also e.g. Lincs., no. 1158, where a potential warrantor may deliberately have dispersed his inheritance among his brothers and others, in order to avoid his obligations. See also above, 793 n. 97, for CRR, iv. 271.

"°7 See above, 654-5. Note also above, 786, for a husband’s use of collusive litigation. "28 See above, 655, for an instance where the abbot seems to have taken the initiative. "2? See EYC, i. no. 300, for a gift of land with the provision that the recipient must not sell or give that land to the Jews ‘or make an exchange or any device of collusion [machinamentum collusionis| whereby the Jews may possess the said land for their own use’. This instance of collusio, admittedly in a cartulary copy, is very considerably earlier than any cited in DMLBS. Note also Borough Customs,

i. 288, where a gage was used to defraud lord or kin; the editor of Borough Customs, followed by Hudson, Formation, 228, took the passage to date from c. 1190, but examination of the manuscript (Oxford, Bodleian Library, Douce MS 98, fo. 160r) suggests that this section may be from after our period.

864 PART III: ANGEVIN ENGLAND to receive the land of anyone thus that they hand it over to him from whom they accepted it to hold. Moreover, if anyone... gives his land to any religious house in this way and is found guilty of it, his gift will be utterly voided and that land fall to his lord of that fee."°

Sophisticated legal devices would multiply from the time of Henry III; the provision in the 1217 Magna Carta marks the first legislative move to block such a device, the beginning of an as yet unending history. In the reigns of Henry II, Richard, and John, the learning and legal skills of the core of royal justices, exceptional save that of some great churchmen or their legal advisers, may have given them particular influence on legal development, before the extension and subsequent professionalisation of legal expertise. Justices had the particular knowledge of procedures and more substantive rules, as well as the ways of thinking and the more general know-how, that constituted the law

of the royal courts.’ Simon of Pattishall was notable not only for his judicial career, spanning three reigns, but also for his witnessing of unusual writs and his recorded statements.” Such law, in particular its writs and procedures, was now transferable, as it was to Ireland in 1210, by the king and by ‘discrete men, expert in law’, including Simon of Pattishall.* The learning of such justices found its monuments in the law-books Glanvill and Bracton. But just as such law-books in fact stand isolated rather than being the start of a tradition, so too the peculiar predominance of the learned royal justice did not last. Rather, it helped to create the need for the legal profession that would have such influence on the process and nature of the later development of the common law.

"°° On the limited evidence for such grants, see Kaye, Conveyances, 173-4. Cf. Magna Carta 1216, 3, stating that ifa minor were knighted, his land was to remain in his lord’s wardship until he was of age, that is twenty-one years old. It may be that early knighting was being used as a way to limit the lord’s right of wardship. "5! See also Brand, ‘Henry IT’, 223, 240. *%? See Stenton, English Justice, 85-6; ODNB.

"°° See P. A. Brand, ‘Ireland and the literature of the early Common Law, in his Making of the Common Law, 445-63.

Appendix The Sources Aw large book, indeed a whole series of them, could be written on the sources for the legal history of this period.’ Even Maitland’s compressed account of “Ihe materials for English legal history’ stretches to sixty pages at the start of the second volume of his Collected Papers. ‘The present modest Appendix has the limited purpose of providing some information on types of evidence, on problems involved in their interpretation, and on relevant bibliography. This book rests very largely on textual sources, occasionally supplemented by other evidence. Archaeology is of help on some specific subjects, such as execution sites, as well as illuminating broader, socio-economic developments. Artefacts,

notably seals and coins, contribute to interpretation, as do place-names, for example in analysis of land law and of assembly sites.

Despite these contributions, texts remain central. This necessarily raises some general problems.” Much relevant activity was not recorded in writing, much that was written has been lost. New evidence need not indicate new practices or ideas. Until the appearance of royal records in the 1190s the vast majority of all textual sources were preserved by churches, often in their cartularies (volumes of collected charters and other documents). Consequently, there is a disproportionate amount of evidence relating to the Church, its lands and rights. Evidence of lay activity and attitudes favours the higher levels of society. There are geographical concentrations, especially with the south of the realm providing much more evidence than the north. There are also linguistic challenges; particularly after the Conquest most sources are in Latin, whereas most thinking and speaking was done in the vernaculars, French and English.

* Such a realisation underlies the form and content of Wormald, Making of English Law. * See also esp. Clanchy, From Memory to Written Record.

866 APPENDIX: THE SOURCES Beyond such general problems, specific types of source raise specific issues, and the balance of sources changes over the period? Crucial to the Anglo-Saxon period are the various texts generally referred to as laws or law-codes, although

the terms hide considerable diversity. In addition there are various types of records of grants, which provide important information particularly on landholding and also supply us with a significant proportion of our body of case stories. For the Anglo-Norman period records relating to legislation are less central to the writing of the history of law. Administrative writs, records of grants, and narratives continue, and we can also turn to a limited number of extremely significant official royal records, the first of the financial records known as Pipe Rolls and, most importantly of all, Domesday Book.‘ Most notable in the Angevin period is the growth of these official records, particularly with the survival of royal plea rolls from the 1190s onwards.’ In addition, the law-book Glanvill provides us with a much fuller and more authoritative account of the procedures of the king’s court than had any previous text. Particularly the existence of the plea rolls and of Glanvill, but also changes in evidence more generally, very significantly influence the form in which the legal history of different periods can be written. If the overall pattern is one of increasing evidence, there are also particular troughs and peaks, for example the absence of laws from the last Anglo-Saxon reigns, or the unique existence of Domesday Book. The increase in evidence allows a growing variety of topics to be studied, a wider social range to be examined, greater chronological precision to be established, and fuller accounts to be provided, for example of procedure. The combination of increased volume and increased variety of sources also enables more soundly based analysis of the relationship between aspiration and reality, between prescription and practice. However, changes in the evidence are not only significant in allowing improved analysis, but are also themselves evidence of changes in legal thought and practice, as has been seen, for example, in discussion of court records and of Glanvill.*

> Besides the types of text discussed below, note also the significance of sets of customs and charters of liberties for urban law (discussed above, ch. 30); estate surveys, for matters of status and for landholding at lower levels of society; manumission records; literature, for example concerning

the conduct of disputes and as an aid in investigating lay thinking; penitentials and collections of canons, for marriage and other matters. * Royal administrative texts from the Anglo-Saxon period, such as the Burghal Hidage, have limited direct use for our purposes. > See also above, 522-3, below, 880, on final concords and feet of fines. ° See also below, 878, on Roger of Howden.

APPENDIX: THE SOURCES 867 1 LAWS AND LAW-BOOKS The Anglo-Saxon laws

Various types of text are often grouped together as the Anglo-Saxon laws, although this loose term in fact covers records of royal legislation, local responses

to such legislation, and tracts not in any king’s name and not presenting themselves as legislative. Even instances in the first category may not be officially issued texts; they are likely to be ecclesiastics’ records of royal legislation the essence of which was oral even if measures may have been announced in writing. In pre-Conquest manuscripts they are generally preserved in the context of homiletic, liturgical, or historical works, although after the Conquest there are some collections more narrowly concentrated on law’ Most or all of the texts would originally have been in Old English, although some only survive in later Latin translation. The degree to which they were intended to have a direct, practical effect upon the specifics of law has already been discussed, particularly in Chapter 2.

The laws provide little information about some subjects of considerable concern, most strikingly land law. Further difficulties of interpretation also arise; for example, if a measure is mentioned in a legislative text, but does not appear in subsequent ones, should this always be taken as a sign that the measure was successfully established, or that it had ceased to have effect? The answer chosen clearly has considerable effect on overall interpretation of legal development.®

Post-Conquest legislation

Much of the legislation of the Anglo-Norman kings may have been publicised by writ, several examples of which survive. At least some of the earliest examples were issued in English or in bilingual English and Latin versions.’

” On the laws, see esp. P. Wormald, ‘Lex scripta and Verbum regis: legislation and Germanic kingship from Euric to Cnut’, in his Legal Culture, 1-43, and also Wormald, Making of English Law;

Keynes, ‘Royal government’; Hudson, ‘écrit’; D. Pratt, “Written law and the communication of authority in tenth-century England’, in England and the Continent in the Tenth Century: Studies in Honour of Wilhelm Levison (1876-1947), ed. D. Rollason et al. (Turnhout, 2010), 331-50. Note also other related texts, such as Wulfstan’s Sermo lupi and Institutes of Polity, and also tracts such as the Rectitudines singularum personarum. * Note also the problem of the geographical coverage of some laws; above, 247-9. > See e.g. Lad; above, 297-8, on the decree concerning spiritual cases; Wormald, Making of English Law, 399.

868 APPENDIX: THE SOURCES Any copies from before 1200 come from ecclesiastical archives or legal collec-

tions, although some also appear in the thirteenth-century collection known as the Red Book of the Exchequer. A related group of texts are the coronation decree of Henry I, the coronation charter of Stephen, and the same king’s 1136 Oxford decree concerning liberties..° Henry and Stephen certainly did not fully keep to the concessions they promised, and it is likewise difficult to tell how fully and for how long the prescriptions of other legislation were followed.

With the survival of official records from the 1190s, texts announcing several pieces of the legislation of Richard and John survive." However, we do not have equivalent records of crucial earlier Angevin legislation.’ The consequent difficulties have been discussed with particular reference to the Forest,’ and similar difficulties arise in relation to other Assizes, including those of Clarendon and Northampton. For these we rely on other sources, most significantly the chronicles of the former royal justice, Roger of Howden. His administrative connections may suggest that his texts should be taken with trust, as does comparison with an early thirteenth-century manuscript, Oxford, Bodleian Library, Rawlinson MS C 641, in which appears a text of the Assize of Clarendon, as well as one of the Inquest of Sheriffs.“ Nevertheless, what Howden reproduces are not widely issued official legislative texts. Rather they may be written summaries of oral instructions, taken down on behalf of royal justices or other officials. Alternatively they may have been written instruction given to those justices and officials, resembling the articles of the eyre that survive from 1194 onwards.”° Such written instructions may have been supplemented by summaries of oral

statements and other relevant matters. Such methods of issue would explain variation of form within individual texts, clear, for example, within the Assizes

© RRAN, ii. no. 488, iii. nos 270-1. The two decrees differ from the coronation charter; in particular they do not specify grantees as a contemporary charter would. ‘* See above, ch. 21.

‘* Note, though, the Constitutions of Clarendon, best preserved in texts associated with Canterbury; see Councils and Synods, I, 871-5. ** See above, ch. 19.

** See below, 878. On these issues, see esp. Richardson and Sayles, Law and Legislation, chs 5 and 6; Holt, ‘Assizes’; Corner, ‘Texts’; Brand, ‘Henry IT’, 224-9. *? On the date of the manuscript, see Holt, ‘Assizes’, 93. *® See above, 546-7. Working from oral delivery might fit the form particularly of e.g. Assizes of Northampton, 1, with its summary of procedures established at Clarendon ten years before. That the written forms of such legislation were issued to, or taken down on behalf of, justices may have limited their chances of survival, save through the exceptional work of Howden, who was both justice and chronicler.

APPENDIX: THE SOURCES 869 of Northampton.” They could also explain variations between versions: either different scribes, associated with particular justices or officials, wrote different versions; or slightly different written texts were issued to different sets of justices or officials; or different modifications were made to a basic text. Then, in the preserved versions, the texts may have incorporated further notes and additions.

Post-Conquest Leges From the post-Conquest period survive several texts that present themselves as recording the laws, or in some cases the legislation, of named kings.’* What may be the earliest example is known, from the opening words of its heading, as Hic intimatur, or as the ‘Ten Articles of William I. It may date from as early as the latter years of the Conqueror. Its record of his decrees matches other evidence on some issues, such as forms of proof, and other clauses may provide an indication of lost

decrees, publicised by writ.’* A text that seems to have been linked to the “Ten Articles’, both in manuscripts and in mutual influence, was the Instituta Cnuti, largely a translation of Cnut’s laws but with some adaptation, additions from other laws, notably Alfred and Ine, and perhaps some original composition.”° Another translator, working on a wider range of Anglo-Saxon laws, produced

a text known as the Quadripartitus. He may have started his labours before 1100. Probably the same man then rearranged these translations, added further material—some from written sources, some with no known written basis—and produced the work known as the Leges Henrici Primi.” The Leges Henrici can only be dated to 1108 x 1118. The identity, status, and location of the compiler are not known. He was a French speaker, and some of his canonical sources seem only to have been available in France.” His specific purpose and intended

'” Cf. the form of cc. 5-11, 13 (and also c. 12, although that is slightly different in form), with cc. 1-4. The end of c. 7 may be an example of an addition to a written text. Note also the analysis in Brand, ‘Henry IT’, 225, different in detail from that here, but similar in general argument. ‘* It could be argued that the Wulfstanian text EGu (the ‘Treaty between Edward and Guthrum’) provides an earlier parallel. *° E.g. Wl art, 3, 4. See esp. Wormald, Making of English Law, 405; cf. e.g. Richardson and Sayles, Law and Legislation, 46-7. From late in our period, see Gesetze, ed. Liebermann, i. 488-9, fora French version, i. 489-91, for an extended Latin version. *° See Wormald, Making of English Law, 404-5. ** See Sharpe, ‘Prefaces’, and his “The dating of Quadripartitus again’, in English Law before Magna Carta, ed. Jurasinski et al., 81-93; P. Wormald, ‘Quadripartitus’, in his Legal Culture, 81-114. The title of Quadripartitus derives from it being initially planned in four books; Wormald argues that this plan was abandoned, and atwo-book arrangement substituted, consisting of the translations and the Leges Henrict.

*? B. C. Brasington, ‘Canon law in the Leges Henrici Primi’ (2006) 92 Zeitschrift der Savigny-

Stiftung fiir Rechtsgeschichte, 123, Kanonistiche Abteilung 288-305; cf. Sharpe, ‘Dating of

870 APPENDIX: THE SOURCES audience are unclear, but his overall intention appears to have been to produce from his diverse materials and knowledge a systematic exposition of English law, just as contemporary canonists were rearranging earlier canonical collections by topic, thereby creating systematic collections.”> However, his very large text does not seem to have been particularly popular, with no twelfth-century manuscripts surviving.** The existing text certainly contains some interpolations, and the process of textual formation currently requires further study.” Much less reliant on written sources is the Leges Edwardi Confessoris.”® This work seems to have been composed in the second quarter of the twelfth century, probably by someone with close episcopal links.” Manuscript survivals indicate that this shorter, more portable text was more popular than the bulky Leges Henrici.**> Some additions were made to the original version, probably by the author, and then further additions by others, including ones significant for the background of Magna Carta.” All these works were composed in Latin?° A final set of Leges was written in French in the mid-twelfth century, before a Latin version was produced. It is known as the Leis Willelme2’ The text as preserved consists of three parts, of which the second and third are probably additions. This is particularly significant as it is the second, not the first, section that draws on Roman law.” The third part is based on Cnut’s laws, probably via the Instituta Cnuti.® How far do these works represent English law at the time of their writing? And how strong evidence for continuity across 1066 is any reliance that they place on Anglo-Saxon sources? I here set aside the “Ten Articles’, which are concerned with William I’s innovations. The Leges Henrici certainly contains sections not based

Quadripartitus again’, 86, suggesting that the Leges’ copy of Henry I’s coronation decree was drawn from the formula retained in the treasury. *° See e.g. LHP, 87-87. 3, ed. Downer, 264. ** LHP, ed. Downer, 46-50.

*° One certain interpolation is the charter in Henry I’s name in favour of London; LHP, 2, ed. Downer, 80. *° On his use of a continental text concerning peace, see O’Brien, God’s Peace, 64-5. *” See O’Brien, God’s Peace, ch. 2, who suggests a connection to the bishop of Lincoln, and speculates upon possible authors. *® O’Brien, God’s Peace, 137-46, 205-6. *° See above, 846. Other additional material concerned London. °° ECfwas translated into French around 1200; O’Brien, God’s Peace, 106-7.

** In addition to Liebermann’s text, see Y. Otaka, “Sur la langue des Leis Willelme’, in AngloNorman Anniversary Essays, ed. 1. Short (2 Occasional Publications Series, Anglo-Norman Text Soc., 1993), 293-308; also J. Wiest, Die ‘Leis Willelme’: Untersuchungen zur dltesten Gesetzbuch in franz6sischer Sprache (79 Romanica Helvetica, Bern, 1969). *? Leis WI, 33-8. °° See also Wormald, Making of English Law, 407-9.

APPENDIX: THE SOURCES 871 on current law, notably when it relies on early mediaeval continental texts.*4 This may suggest a preference for book learning, whether appropriate or not, and hence

warns against accepting passages based on Anglo-Saxon texts as representing early twelfth-century practice. The author's occasional use of English words such as overseunesse may indicate that there was no ready contemporary Latin equivalent2> Sections such as that on reliefs, based on IT Cnut, do not seem to depict twelfth-century reality. The author may have been presenting the texts, many of which he had invested considerable time in translating, as bases for thinking about law, rather than as norms to be enforced in practice2° Still more difficult to assess are sections apparently not based on written sources, or only occasionally punctuated by statements based on texts.” How far were these a product of experience, of oral information received, or of imaginative construction deriving from the author’s written sources? Similar questions can be raised about the Leis Willelme3* At present it may be best to accept the evidence of the Leges Henrici and Leis Willelme only when congruous with other types of source? The most difficult of the texts to assess regarding its depiction of practice is the Leges Edwardi Confessoris. Only occasionally is it based on written texts. It shifts

between the present and past tenses, showing some desire to distinguish prior developments from ostensibly present practice. It does not contradict known twelfth-century custom as the Leges Henrici sometimes does. Again it may well be depicting law as the author desired it to be, rather than contemporary practice. However, unlike the Leges Henrici it does not do so by resting on past texts, and overall the Leges Edwardi may give rather more indication of current practice. The various Leges may have shared one purpose relating to practical legal problems faced in the post-Conquest period. They could provide help with interpreting Anglo-Saxon documents, most notably those recording grants, which were of very contemporary relevance but contained hard to comprehend terms for potentially valuable rights. In this they resemble another set of texts, the glossaries of Anglo-Saxon legal terms that appear in the twelfth century.’

** A particularly clear example is the treatment of inheritance and land law in LHP, 70. 20-23, ed. Downer, 224. °° LHP, 35-6, 41, ed. Downer, 140-2, 146. °° LHP, 14, ed. Downer, 118.

*” Note e.g. LHP, 59, 64, ed. Downer, 180-90, 202-6, which, in different ways, mix statements based on written sources and on no apparent written source. *® For example, these again present a scale of reliefs based on Cnut’s laws; Leis WI, 20. See also Wormald, Making of English Law, 409, for a similar overall assessment of the Leis Willelme. °° Cf. the conclusions e.g. of Leges Henrici, ed. Downer, 5, and N. Kahn, ‘Rethinking the Leges Henrici Primi’, in English Law before Magna Carta, ed. Jurasinski et al., 199-220. *° See esp. ECf, 22, ed. O’Brien, 180-2. On glossaries, see above, e.g. 688 n. 63.

872 APPENDIX: THE SOURCES Glanvill

From the end of the reign of Henry II we have the law-book known as the Tractatus de legibus et consuetudinibus Anglie, or more commonly as Glanvill. It derives this latter name from its association with the chief justiciar, Ranulf de Glanville. Under the year 1180 the chronicler Roger of Howden mentions Glanville’s appointment, following this with the statement “by whose wisdom the laws written below were established.’ Since there follow texts certainly not by the justiciar and only then a copy of the Tractatus, Howden’s statement cannot be taken as proof of authorship. Similarly, the incipit of the Tractatus, possibly part of the original text, does not specify authorship but simply says that the Tractatus

was ‘composed in the time of King Henry II, when the illustrious Ranulf de Glanville, at that time the most learned concerning the law [juris] of the realm and concerning ancient customs, had direction of justice’.** The lack of stronger attribution to Ranulf de Glanville make his authorship seem unlikely. The same problem arises with other prominent men who have been suggested as authors, including the future justiciars Hubert Walter and Geoffrey fitzPeter.? Perhaps

most plausible is that the author was a justice or a clerk from the same circle, probably with some academic training in law, but of a lesser status, allowing the association with Ranulf de Glanville to predominate. Glanvill is largely concerned with the procedures of the king’s court in cases

concerning land and other rights, family arrangements, status, lordship, and debt, before ending with a much shorter treatment of crime. Particularly in his treatment of marriage-portions and inheritance, however, he also provides more

extended discussion on substantive matters. He often employs a dilemmatic method, setting out and expounding alternative possibilities concerning a case or other matter. His clarity is seductive, but questions remain about how completely the Tractatus can be trusted as a neutral depiction of the current practices

“' Howden, Chronica, s.a. 1180, ed. Stubbs, ii. 215; Glanvill, ed. Hall, 1. Much previous discussion of authorship is usefully summarised in R. V. Turner, “Who was the author of Glanvill? Reflections on the education of Henry II’s Common Lawyers’ (1990) 8 LHR 97-127. Some suggest that the chief justiciar would not have had time to write such a book, but the writing achievements of many later political leaders make this highly questionable. ** Hubert Walter appears four times amongst those noted in some manuscripts as having opinions on particular points; in the first his is the third of three opinions ona point left unresolved (Glanvill, i. 32, ed. Hall, 21); in the second his is the first of two opinions left unresolved (Glanvill, vi. 10, ed. Hall,

63); in the third and fourth his is the only view given on a point not indicated as a matter of debate in the text (Glanvill, vi. 17, xi. 3, ed. Hall, 67, 134). Had Hubert been the text’s author, it would surely have

been redundant to cite him as the holder of opinions that the text does not present as contested; it is very unlikely that his authorship would have been swiftly forgotten. Ranulf de Glanville only appears in citations of this sort in the context of the casus regis, where, confusingly, different manuscripts ascribe different opinions to him (Glanvill, vii. 3, ed. Hall, 77-8).

APPENDIX: THE SOURCES 873 of the king’s court.” The earliest plea rolls can provide some control, but any contradictions need not invalidate Glanvill’s statements but rather suggest inconsistency of practice or indicate change after his time of writing.

The Dialogue of the Exchequer, Bracton, and the Register of Writs

Much useful material on debts to the king, on royal relations with tenants-in-chief, and on a range of other legal matters can be obtained from the Dialogue of the Exchequer, written by Henry II’s treasurer Richard fitzNigel. It was completed in the late 1170s, although the present text may include later interpolations. Another law-book comes from after our period, but has been cited occasionally. It is best known as Bracton, its authorship having formerly been attributed to the royal justice Henry de Bracton, writing in the 1250s. However, it is now generally held that Henry was at most a significant reviser of a work originally composed in the 1220s and 1230s.“4 A final law-book to be noted is the first surviving Register of Writs. It is possible that earlier registers once existed but are now lost, possible indeed that Glanvill drew on some such text. However, the first surviving Register was probably put together in the context of King John’s imposition of English law in Ireland in 1210. It contains approximately sixty writs, along with some commentary, and is particularly helpful in uncovering developments in the two decades after Glanvill.#

2 WRITS AND CHARTERS Administrative writs Writs, sealed letters, were probably used for a variety of administrative purposes in the Anglo-Saxon period, including the conveying of messages and possibly

** A further problem is the degree to which the learned laws influenced him, in approach, content, and language; see above, chs 23, 24, 26. On the nature of Glanvill’s legal reasoning, and differences from earlier law-books, see Hudson, ‘Leges to Glanvill’. ** See Bracton, ed. Thorne, iii. Translator’s Introduction; J. L. Barton, “The mystery of Bracton’ (1993) 14 JLH 1-142, and “The authorship of Bracton: again’ (2008) 30 JLH 117-74; P. A. Brand, “The age of Bracton’, in The History of English Law, ed. Hudson, 65-89, and “The date and authorship of “Bracton”: a response’ (2010) 31 JLH 217-44.

*° Brand, ‘Ireland and the literature of the early common law’, 445-56. See further Early Registers of Writs; F. W. Maitland, “The history of the Register of original writs’, in his Collected Papers, ii. 110-73.

874 APPENDIX: THE SOURCES legislation.*° They were written in the vernacular and at least normally may have been produced by royal scribes. Many instructions, even if written, would have been ephemeral and therefore had little chance of survival. However, from the time of Athelred II come mentions of royal writs ordering shire courts to settle

disputes, and from the eleventh century we have writs announcing grants of property and of rights such as sake and soke.” Writs continued to be used for a wide range of purposes in the Anglo-Norman

period. Soon after the Conquest there was a shift to the use of Latin. During the period there was also some increase in the precision of writs with regard to judicial matters, although it is hard to assess exactly how this relates to court procedure.* The Angevin period saw significant developments in the form of writs, notably in standardisation and precision of formulation, and in sealing.*? Furthermore, whereas Anglo-Saxon and Anglo-Norman writs generally only survive in the cartularies of those who benefited from them, in the Angevin period other sources reveal the form of legal and administrative writs: the specimens given by Glanvill and the first Register; transcripts enrolled on what are known as the Close Rolls, that is rolls recording letters sealed closed;°° and the first surviving file of writs

returned to the Bench. Records of grants (i) Anglo-Saxon

Especially given the limited information provided by the laws, for matters of Anglo-Saxon landholding one has to turn to records of grants, in particular to the solemn form of charters sometimes known as diplomas or land-books, to writs, to leases, to wills, and to various other vernacular documents. The great majority come from Wessex, Kent, Worcester, and East Anglia. Some texts are preserved as single sheet originals, but most survive in the cartularies of the churches into whose hands the lands and rights passed.” In all cases, and in particular that of charters and writs, there is the constant possibility that a document is forged, or

*° See also Hudson, ‘V écrit’, 11-13, 16-17.

*” Note the suggestion Heslop, ‘English seals’, 9, that “Edward the Confessor effected a revolution in the use of seals. His royal writs were the first to be patent sealed, that is sealed open in such a way that the seal did not have to be broken for the letter to be read.’ *® See esp. Royal Writs; above, 271. *° See above, chs 21, 23. °° See below, 880. >" PKYJ, i. Appx ii.

°* Charters could also be preserved as single sheet copies or single sheet supposed originals.

APPENDIX: THE SOURCES 875 at least modified from its original form; assessing whether a text is trustworthy is often a matter of considerable difficulty.® Charters came to England with the Church in the seventh century.* They were normally composed in Latin, although many have a vernacular boundary clause. Charters were not sealed, although many non-royal charters may have been in chirograph form, written out at least twice and then cut into individual copies, with one portion going to each party and sometimes a third going to a significant store place.» The majority of surviving diplomas are royal.°° The process of production of such documents has been a matter of considerable controversy, with it being argued that some, even all, were produced not in a royal writing office, but rather by the beneficiaries, or at times by scribes in monasteries serving royal needs. Others argue for a much greater role for a royal writing office.” Some charters, particularly from the reign of /Ethelred II (978-1016) explain how the land came into the king’s hands, thereby providing important case histories. Otherwise, from our point of view, the most informative element tends to be the dispositive clause, making the actual grant of property and/or privilege. Witness lists are also helpful, for example with regard to status. Charters were in general associated with grants in perpetuity, although they

could record short-term arrangements. Normally, however, the latter were recorded in less solemn documents, commonly referred to as leases5* Some were in Latin, some in the vernacular. The vast majority of those preserved come from Worcester, but other survivals show their use elsewhere. Bequests of lands and movables could be made orally, but might be strengthened by preservation in writing. As with non-royal diplomas and leases, wills

might be in the form of a chirograph.° A considerable proportion owe their survival to the fact that they record bequests to Abingdon, Bury, Christ Church

°° Note the approach taken in Anglo-Saxon Charters, ed. Sawyer, which lists opinions rather than giving a single verdict. In general the best editions are provided by the British Academy’s Anglo-Saxon Charters series. Note e.g. the significance of interpolation for assessment of jurisdictional rights enjoyed by Anglo-Saxon lords. The problem of forgery remains after 1066. >* See e.g. Wormald, ‘Bede and the conversion of England’. °° See e.g. J. Barrow, ‘From the lease to the certificate: the evolution of episcopal acts in England and Wales (C. 700-C. 1250)’, in Die Diplomatik der Bischofsurkunde vor 1250, ed. C. Haidacher and W. Kofler (Innsbruck, 1995), 529-42, at 530. °° On episcopal charters, see Barrow, ‘Lease to certificate’.

°” See esp. P. Chaplais, “The royal Anglo-Saxon “Chancery” of the tenth century revisited’, in Studies in Medieval History presented to R. H. C. Davis, ed. Mayr-Harting and Moore, 41-51; Keynes,

Diplomas, ‘Royal government and the written word’; Kelly, ‘Anglo-Saxon lay society’ Charters of Abingdon Abbey, ed. S. E. Kelly (2 vols; 7 & 8 Anglo-Saxon Charters, Oxford, 2000), i. cxxv—cxxxi. °® See above, ch. 5, on bookland and loanland; also e.g. Barrow, ‘Lease to certificate’, 531-2. °° See Lowe, ‘Lay literacy’, 171.

876 APPENDIX: THE SOURCES Canterbury, or Winchester.°° Many others have been lost, and even those that do survive need not mention the entirety either of the testator’s effects or even of their bequests.” Some charters have vernacular endorsements that can be very helpful on aspects of land law. There are also documents, mostly in the vernacular, of more diverse form than diplomas or even leases. Some explicitly present information concerning a current dispute, others recount histories of estates. Again these are of great importance in providing case histories. However, it must always be remembered that these are retrospective and ex parte statements, normally by the victor, intended to justify a claim, not to record pleadings and rights in an even-handed fashion.

(ii) Post-Conquest Although, especially in the first years after 1066, there are some charters in the form of the Anglo-Saxon diploma or its solemn Norman equivalent, the great majority of post-Conquest grants were recorded in documents in sealed letter form, sometimes referred to as writ-charters.® The characteristic forms of AngloSaxon leases and wills likewise disappear. Again most charters are preserved in ecclesiastical cartularies. Furthermore, most grants to churches, at least until the mid-twelfth century, were written and probably largely drafted by beneficiaries. Only in the Angevin period did bishops and leading aristocrats start to have their charters recording their own grants drafted in their own chanceries.* Such drafting practices warn against simple reading of charters as expressions of grantors’ ideas and aims. The great majority of charters, particularly from the Anglo-Norman period, record grants to the Church. Writing may only have been used for laymen in °° Anglo-Saxon Wills, xli. ° Note K. A. Lowe, ‘Latin versions of Old English wills’ (1999) 20 JLH 1-24, esp. 14, 19. °* Hudson, ‘écrit’, 14-15; many are contained in Anglo-Saxon Charters, ed. Robertson. Note also the marriage agreements discussed above, 231. °° On Norman documents, see e.g. Tabuteau, Transfers of Property, ch. 2, Acta of William I, 9-43,

and the works cited there. Historians’ use of terms for types of documents is not consistent; note e.g. R. Sharpe, “The use of writs in the eleventh century (2003) 32 ASE 247-91, at 248-54. On chang-

ing diplomatic form, see e.g. the introductions to the volumes of the British Academy's English Episcopal Acta series; Hudson, ‘Diplomatic and legal aspects’ R. Sharpe, ‘Address and delivery in Anglo-Norman royal charters’, in Charters and Charter Scholarship in Britain and Ireland, ed. M. T. Flanagan and J. A. Green (Houndmills, 2005), 32-52. °* On beneficiary drafting of episcopal charters, see Barrow, ‘Lease to certificate’, 533-4, 536, who notes that the beneficiary was sometimes the bishop’s own church. For lay grantors, see e.g. T. Webber, “The scribes and handwriting of the original charters’, in The Earldom of Chester and its Charters, ed. Thacker, 137-51.

APPENDIX: THE SOURCES 877 exceptional circumstances, although very few of the documents contain narrative sections that would reveal such circumstances. This produces the added difficulty that what are presented as simple grants may in fact be settlements of disputes. Used with care, however, the formulations of the charters are an essential source for the history of land law.

3 NARRATIVES We noted earlier the existence of short texts recounting cases or claims to land

and rights. Such texts may underlie some of the more extended narratives put together after the Norman Conquest.® The most useful of these for the Anglo-Saxon period is the Libellus Athelwoldi. This is a Latin work concerning St Athelwold, and in particular his land dealings involving Ely. It was made at the request of Hervey, bishop of Ely 1109-31, who ordered the author to translate relevant materials from Old English.°° When the English materials had been written down, and whether they had been gathered into a single text, is uncertain. What is clear is that the Latin text is not a straightforward translation, but

rather is written in a style and vocabulary very much of the twelfth century. Terminology is often problematic, and does not allow us easy access to the legal vocabulary of the late tenth century. The Libellus 4thelwoldi itself was incorporated in a larger Ely text, the Liber Eliensis, one of a group of twelfth-century

works from major monasteries that combined the functions of house-history and cartulary.” Like the Libellus 4thelwoldi, these are a crucial source of case accounts, although again ones that must be treated with caution because of their ex parte and retrospective nature. Reference has also been made to other historical narratives. Particularly significant from the pre-Conquest period are Asser’s Life of Alfred and the AngloSaxon Chronicle. The latter title is used to refer to a group of texts composed at different places and times. The earliest version was closely connected to Alfred’s court, but the continuations are more purely monastic productions, and could be very critical of kings, especially Athelred II.°° The versions of the Chronicle are most useful for matters of high politics, including offences such as treason. The °° See e.g. Historia ecclesie Abbendonensis, ed. Hudson, i. lxii. °° Liber Eliensis, ed. Blake, 395-6. °” See e.g. Ramsey Chronicle; Historia ecclesie Abbendonensis. The Battle Chronicle differs in con-

taining no charters. Note also e.g. William of Malmesbury, Early History of Glastonbury; Jocelin, Chonicle; Thomas of Marlborough, Evesham. °° Note that the portion most critical of Ethelred may have been written at London, presumably by an ecclesiastic but not necessarily by a monk; S. D. Keynes, “The declining reputation of King

878 APPENDIX: THE SOURCES same is true of many of the post-Conquest histories, although they also contain some information on matters such as legislation. Once again ecclesiastical viewpoints are dominant, but diversity does increase: works by secular clerks come to supplement those by monks, and from the 1130s histories in French supplement those in Latin. Then from late in our period come works already mentioned in the context of legislation, by the former royal justice Roger of Howden.® Their existence might be seen as encouraging exaggeration of contrast between the Angevin and earlier periods, but arguably that very existence is a sign of a changing legal culture.

Hagiographical texts provide some further useful narratives, including accounts of cases such as the ordeal undertaken by Flodoald’s servant, which opens Chapter 4. Again, obviously, these cannot be taken as straightforward case-reports, but can be used when assessed with other evidence. Hagiographical texts also provide pieces of information on other topics, including references to otherwise unknown legislation.”

4 OFFICIAL RECORDS Domesday Book Domesday Book, compiled from information gathered by an Inquest that was ordered by William I at Christmas 1085, in fact consists of two volumes, Great Domesday, covering most of the realm as far north as Yorkshire, and Little Domesday, covering Essex, Norfolk, and Suffolk. The latter contains rather fuller information, perhaps because the material had gone through one fewer distillation. This can leave uncertainty as to how far arrangements and customs in East Anglia differed from the rest of the realm, how far apparent difference

is just a product of the record. The two volumes provide an unprecedented quantity of evidence, particularly on matters of land law, lordship, and status. On these issues, the very structuring of the information in the Book also gives some indication of underlying conceptions. Domesday furthermore records customs of some counties and boroughs, including customs concerning wrongs,

/Ethelred the Unready’, in Ethelred the Unready, ed. D. Hill (59 British Archaeological Reports British Series, 1978) 227-53, at 246 n. 27.

°° On his career, see Gillingham, “Writing the biography of Roger of Howden’ on his works, see D. J. Corner, “The Gesta regis Henrici secundi and Chronica of Roger, parson of Howden’ (1983) 56 BIHR 126-44, and “The earliest surviving manuscripts of Roger of Howden’s “Chronica”’ (1983) 98 EHR 297-310.

”® See above, 570, on Henry II’s decree on default of justice.

APPENDIX: THE SOURCES 879 and mentions many disputes, although few in any detail. Because Domesday provides information both on ‘the time of King Edward’, i.e. at the death of the Confessor in January 1066, and for the point of compilation, it is a crucial source for Anglo-Saxon as well as Anglo-Norman matters. It must, nevertheless, be remembered that the description of the Anglo-Saxon past may involve distortions, through the preconceptions and indeed the very language of those responsible for compilation.

Pipe Rolls

A single Pipe Roll, that for the year 1129-30, survives from Henry I’s reign, and then a near continuous series from 1155. Pipe Rolls are the annual records

of accounts at the Exchequer, recording payments made and debts owed to the king.” They are therefore especially useful regarding the relations of tenants-in-chief and king, but are also revealing of other matters. For example, they record payments by tenants seeking that their lords treat them justly, by offenders seeking pardon, by localities rendering murdrum fines, and by boroughs seeking privileges. They also tell us much concerning the activities of royal servants, and give us clues about Henry I’s use of judicial visitations and extensive information about Angevin eyres. However, it is uncertain whether the Pipe Rolls give a complete account of payments to the king in relation to law and justice. For example, some payments may have gone through the chancery or the royal chamber.” The isolated nature of the 1130 roll also brings particular problems, for example as to whether other areas of the country received judicial visitation in subsequent years.

Plea rolls From the late Angevin period we have plea rolls arising from central courts, the general eyre, lesser visitations, and the Forest eyre. From the central courts, survivals are somewhat patchy for the period from 1194 to the death of Richard, much more complete for the reign of John”? For local visitations survival of plea rolls is inconsistent, whilst we have pleas of the Forest eyre only from 1209.” The plea

™ See esp. R. L. Poole, The Exchequer in the Twelfth Century (Oxford, 1912). For a short extract from an earlier roll, see M. Hagger, ‘A Pipe Roll for 25 Henry I’ (2007) 122 EHR 133-40.

” Note also e.g. the suggestion of Hurnard, ‘Magna Carta’, 165, that only writs purchased by credit are mentioned on Pipe Rolls. ’”* For Richard’s reign, see the summary at Memoranda Roll, 10J, 95. On plea rolls starting before those that have been preserved, see above, 542, 547-8. ”* See Crook, Records of the General Eyre, 56-71; on the Forest, see above, ch. 19.

880 APPENDIX: THE SOURCES rolls add greatly to our knowledge of the conduct of cases, primarily although not entirely in the king’s court. However, if earlier case accounts are notable for their ex parte nature, there are also limits to the record produced by the royal courts. They are normally terse, giving only a restricted description of activity even within royal courts, concentrating on certain aspects of procedure and outcome. They can conceal many aspects of disputes, from out-of-court activity to the bias of particular courts, from the lordship dimension of some claims to the role of justices in deciding cases. When an occasional scribe includes additional information it reveals the type of matter that is normally hidden”* Furthermore, the outcome of many interesting cases cannot be discovered, presumably because they were not pursued to an end; this makes it difficult, for example, to tell the weight carried by particular arguments. The number of cases, therefore, that reveal key points of law is smaller than might have been expected: assessment of important developments can rest very heavily on interpretation of one or two cases for which the plea rolls preserve unusually full accounts and which may have unusual features.”°

Other royal records A further, very extensive series of official records are the ‘feet of fines’, invented in 1195. Final concords provide an immense amount of information on landholding, disputes, and the activities of the royal courts. However, as we have seen, it is dif-

ficult to uncover how far final concords were being used as a means of securing conveyances, through collusive litigation. Starting soon after are the enrolments of royal documents in the Close, Patent, and Charter Rolls, whilst the records of offerings and payments to the king in the Rotuli de oblatis et finibus are particularly valuable in considering the financial aspects of justice under King John.” Finally there are the returns to royal enquiries, such as that into knight service in 1166, into local administration in 1170, into royal custody of widows and minors in 1185, and into serjeanties in 1198, which provide a mass of information on land law, status, family law, and the functioning—or malfunctioning—of administration.”

”* See e.g. Milsom, Legal Framework, 7, on CRR, iii. 121ff., esp. 131-8.

’° See esp. above, 643-4, on Countess Amice’s case; 638, resting on two Devonshire cases recorded adjacently on a plea roll. ’” On royal record-keeping, see Galbraith, Studies in the Punlic Records; Clanchy, Memory to Written Record, and N. Vincent, ‘Why 1199? Enrolment in the chanceries of King John and his contemporaries, in English Government in the Thirteenth Century, ed. A. Jobson (Woodbridge, 2004), 17-48. ”® Note also e.g. Book of Fees, 52-228, for extensive returns from an enquiry in 1212.

BIBLIOGRAPHY OF WORKS CITED Manuscripts Essex Record Office, D/DBa T2/1. London, Lambeth Palace, MS 429. London, British Library, Add. Ch. 28347. London, British Library, Add. MS 14252. London, British Library, Cotton Caligula MS A. xiii. London, British Library, Royal MS 14 C. ii. Oxford, Balliol College, MS 350. Oxford, Bodleian Library, Dodsworth MS 94. Oxford, Bodleian Library, Douce MS 98. Oxford, Bodleian Library, Dugdale MS 12. Oxford, Bodleian Library, Rawlinson MS 641. Rochester, Textus Roffensis.

Primary fElfric of Eynsham, 4Ifric’s Lives of Saints, ed. W. W. Skeat (76 Early English Text Society, 1881).

—Homilies of Alfric: a Supplementary Collection, ed. J. C. Pope (2 vols; 259-60 Early English Text Society, 1967-8). —“Elfric’s Colloquy, ed. G. N. Garmonsway (rev. edn, Exeter, 1991). Alfred the Great: Asser's Life of Alfred and other Contemporary Sources, trans. S. D. Keynes and M. Lapidge (Harmondsworth, 1983). Die altenglische Version des Halitgar schen Bussbuches (sog. Poenitentiale Pseudo-Ecgberti), ed. J. Raith (Hamburg, 1933). Ancient Charters Royal and Private Prior to A.D. 1200, ed. J. H. Round (10 PRS, 1888). Anglo-Saxon and Old English Vocabularies, ed. 'T. Wright and R. P. Wilcker (2 vols; 2nd edn, London, 1884). Anglo-Saxon Charters, ed. and trans. A. J. Robertson (2nd edn, Cambridge, 1956).

Anglo-Saxon Charters: an Annotated List and Bibliography, ed. P. H. Sawyer (London, 1968), rev. S. E. Kelly, adapted S. M. Miller . Anglo-Saxon Chronicle, trans. D. Whitelock et al. (London, 1961). Anglo-Saxon Wills, ed. and trans. D. Whitelock (Cambridge, 1930). Anglo-Saxon Writs, ed. and trans. F. E. Harmer (Manchester, 1952). Annales monastici, ed. H. R. Luard (5 vols; RS, 1864-9). The Anonymous Old English Legend of the Seven Sleepers, ed. H. Magennis (7 Durham Medieval Texts, 1994). Anselm, Opera omnia, ed. F. S. Schmitt (6 vols; Edinburgh, 1940-61). Arnulf of Lisieux, The Letters of Arnulf of Lisieux, ed. F. Barlow (3rd Ser. 61 Camden Soc., 1939).

882 BIBLIOGRAPHY Asser, Asser's Life of Alfred, together with the Annals of St Neots erroneously ascribed to Asser, ed. W. H. Stevenson (Oxford, 1904). The Beauchamp Cartulary: Charters 1100-1268, ed. E. Mason (NS 43 PRS, 1980). Beaumanoir, see Philippe de Beaumanoir Bede, Ecclesiastical History of the English People, ed. and trans. B. Colgrave and R. A. B. Mynors (Oxford, 1969). —RHistoria abbatum, in Venerabilis Baedae opera historica, ed. C. Plummer (2 vols; Oxford, 1896). ‘Benedict of Peterborough’, Gesta regis Henrici secundi Benedicti abbatis, ed. W. Stubbs (2 vols; RS, 1867).

The Benedictional of Archbishop Robert, ed. H. A. Wilson (24 Henry Bradshaw Soc., 1903).

The Book of Fees. Liber Feodorum: The Book of Fees commonly called Testa de Nevill (1198-1293), ed. the Deputy Keeper of the Records (2 vols in 3; London, 1920-31).

The Book of the Foundation of Walden Monastery, ed. and trans. D. E. Greenway and L. Watkiss (Oxford, 1999). The Book of St Gilbert, ed. and trans. R. Foreville and G. Keir (Oxford, 1987). Borough Customs, ed. and trans. M. Bateson (18, 21 Selden Soc., 1904, 1906). Brevia placitata, ed. G. J. Turner and T. F. T. Plucknett (66 Selden Soc., 1951). ‘Bracton, Henry de’, De legibus et consuetudinibus regni Anglie, ed. and trans. S. E. Thorne (4 vols; Cambridge, MA, 1968-77). Bracton’s Note Book, ed. F. W. Maitland (3 vols; London, 1887). British Borough Charters, 1042-1216, ed. A. Ballard (Cambridge, 1913). Britton, ed. F. M. Nichols (2 vols; Oxford, 1865).

‘The Burton Chartulary, ed. G. Wrottesley (5 William Salt Archaeological Soc., 1884). 1-101.

‘The Burton Abbey twelfth century surveys’, ed. C. G. O. Bridgeman (3rd ser. 41 William Salt Archaeological Soc., 1918), 209-300. Calendar of the Close Rolls preserved in the Public Record Office (62 vols; 1900-63). Capitularia regum Francorum, ed. A. Boretius and V. Krause (2 vols; MGH, Legum sectio II; Hanover, 1883-97). Carte antique, Rolls 1-10, ed. L. Landon (NS 17 PRS, 1939). Carte antique, Rolls 11-20, ed. J. C. Davies (NS 33 PRS, 1960). Carte nativorum, ed. C. N. L. Brooke and M. M. Postan (20 Northamptonshire Record Soc., 1960).

Cartulaire de labbaye de Saint-Pére de Chartres, ed. B. Guérard (2 vols; Paris, 1840). Cartularium abbathiae de Rievalle, ed. J. C. Atkinson (83 Surtees Soc., 1889).

Cartularium monasterii de Rameseia, ed. W. H. Hart and P. A. Lyons (3 vols; RS, 1884-93).

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Stringer, K. J., “States, liberties and communities in medieval Britain and Ireland (c. 1100-1400)’, in Liberties and Identities in the Medieval British Isles, ed. M. Prestwich (Woodbridge, 2008), 5-36. Suggett, H., ‘An Anglo-Norman return to the Inquest of Sheriffs’ (1942) 27 Bulletin of the John Rylands Library 179-81. Summerson, H.R. T., “The structure of law enforcement in thirteenth century England’ (1979) 23 AJLH 313-27.

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Sutherland, D. W., The Assize of Novel Disseisin (Oxford, 1973).

910 BIBLIOGRAPHY Tabuteau, E. Z., Transfers of Property in Eleventh-Century Norman Law (Chapel Hill, 1988).

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INDEX OF NAMES, PLACES, AND NON-LEGAL TEXTS Aaron of Lincoln 775 /Elfsige, son of Brihtsige 159 Abba, reeve 134 /Elfsige Cild 140 Abingdon (Berks) 464 /Elfstan, son of Heahstan 96, 125 Abingdon, abbey of 110, 239-40, 275, 282, Aélfstan, bishop of London 130 285-7, 317, 319-20, 322, 342, 363, 365, 460, /Elfswith, wife of Brihtric 131 463-4, 493, 508, 875 see also Faritius; /Elfthryth, wife of King Edgar 77, 91, 96 Modbert; Ordric; Reginald; Siward; Vincent /Elfweard, abbot of Evesham 107, 231 Abingdon, History of the Church of 100-1, 128, /Elfwig, priest of Sutton Courtenay 317

493 fElfwold 68

317, 343, 368, 376, 402-3, 413, 446, 452-3, 458, /Elfwine, abbot of Ramsey 45

Acton (Ches.) 288 /Elfwold, bishop of Crediton 216 Adam of Cockfield 627-30 ZElfwold Grossus 136

Adam, abbot of Evesham 778-9 ZEscmere (unident.) 135

Adam de Neville 779 /Escwig, bishop of Dorchester 145 Adam de Port 301, 359 /Escwyn of Stonea 140, 143

Adelard 448 /Ethelberht, king of Kent (590-616) 240

Adelicia, daughter of Amfrid the sheriff, /Ethelberht, ruler of Kent (c. 855-60) and king

mother of Mabel de Francheville 442 of Wessex (860-5) 103, 138

Aelard de Guerris 322 /Ethelfled, daughter of Alfgar 133 /Efic, king’s high-reeve 39 /Lthelfled, ruler of Mercia 38 /Elffled, daughter of Ailfgar, wife of /Ethelgifu 126, 135, 139, 236-7 Ealdorman Byrhtnoth 129, 132-3, 135, 240 /Ethelgyth, wife of Thurstan son of Wine 132,

/Elffleed, wife of King Edward the Elder 236 240

/Elfgar, ealdorman 132-3, 135 /Ethelhelm 44

/Elfgar, reeve 239 /Ethelm, lessee 121

/Elfgifu of Northampton, concubine/wife of /Ethelmeer, beneficiary of will

King Cnut 127-8, 226, 237 of AAlffled 240-1

/Elfgifu, wife of King “thelred II 239-40 /Ethelmeer, beneficiary of will of Leofgifu 112

ALlfgifu, wife of King Eadgifu 226 /Ethelmeer, bishop of Elmham 234 /Elfheah, bishop of Winchester, archbishop of /Ethelmer, ealdorman 193, 240

Canterbury 31-2 /Ethelmeer, lessee 107

/Elfheah, ealdorman 130 /Ethelnoth, archbishop of Canterbury 58,

/Elfheah Stybb 29 88-9, 226, 233

/Elfheah, son of Alfstan 96, 125 /Ethelred II, the “‘Unready’, king

‘Elfhelm 142 (978-1016) 18-20, 25-6, 33-4, 39-42, 44-5, /Elfhere, ealdorman 27, 34, 130 53, 62-3, 66-7, 72, 74-5, 82, 85, 90, 93, 96,

/Elfmeer, abbot of St Augustine’s, 110, 137, 142, 145, 153-7, 165, 172, 176-7, 180-4,

Canterbury 140 187-93, 197-9, 202, 204-5, 209, 213, 219-20,

/Elfnoth, son of Goding 78-9, 88-9 223, 233, 236, 239-41, 244-5, 248-9, 695, 735; fElfric, abbot of Eynsham 32, 41, 219, 231 874-5

231-2, 695 Alfred 46

/Elfric, archbishop of Canterbury 77, 96, 219, /Ethelred, ealdorman of Mercia, son of King

/Elfric, brother of AElfstan 125 /Ethelric 140

fAlfric Cild, ealdorman 44-5, 67, 182 /Ethelric Bigga 122

fElfric, lessee 100 /Ethelric Bocking 164, 181-2

/Elfric Modercope 128, 221 ‘Ethelric, bishop of Chichester 316 /Elfric, disputant with Ramsey 45 /Ethelric, testator 130

fElfric, thegn 123 /Ethelsige, pig thief 193

914 INDEX OF NAMES, PLACES, AND NON-LEGAL TEXTS

/Ethelsige, son of Alfric 100 Alton (Wilts.) 145

/Ethelstan, ztheling 130 Alton (Worcs.) 239 /Ethelstan, king (924-39) 24-5, 27, 29-30, 32, Ambrose, Master 575 49, 51-2, 60, 63, 72-4, 85—6, 112, 114-15, 121, Amesbury (Wilts.) 108 132, 152-5, 165, 168-72, 174, 177-8, 182, 184, Amice, countess of Clare 643, 790

186-7, 190-8, 204, 208-9, 214, 221-2, 245, Andover (Hants.) 817

247-8, 398 Andrew of Edlington 709

/Ethelstan ‘Half-King’, ealdorman 33 Andrew of Horbling 767

/Ethelstan, bishop of Hereford 75, 142, 231 Anglo-Saxon Chronicle 19-20, 24, 226, 261-2,

/Ethelstan Mannessune 217, 240 328, 347, 356-7, 389, 400-1, 434, 455-6 457, 877 /Ethelstan, priest and receiver of stolen Anjou, county of 527-8 see also Geoffrey of

goods 165, 167, 220 Ansegisus, legal compiler 246

/Ethelstan, son of Tofi the Proud 112 Anselm, abbot of Bury St Edmunds 833, 835-6

/Ethelstan of Sunbury 159, 185 Anselm, archbishop of Canterbury 261, 378 /Ethelthryth, wife of Ethelwulf 78, 239 Anselm of Lucca, canonist 438 /Ethelthryth/Etheldreda, saint 140, 307 Antioch, letter of Apostles to 22 ZEthelwald, son of Ealdorman Alfred 103-5, Archenfield (Heref.) 324

107, 127 Ardres (France) 856

ZEthelweard, ealdorman 19-20, 77, 96 Arncott (Oxon.) 335 /Ethelwig, abbot of Evesham 268 Arnold of Ghent, count of Guines 856-7 ZEthelwine, ealdorman 27, 34-6, 45, 55, 61, 79, Arnulf de Hesdin 328

88-9, 823 Arthur, king 6

ZEthelwine, son of Ealdorman Athelmer 193 Arthur of Brittany 650 /Ethelwold, bishop of Winchester 30, 31-2, 55, Asa, former wife of Beornwulf 441

67-8, 145, 877 Ascelin of Waterville 304

/Ethelwulf, king of Wessex (839-858) 107, 109, Asgar the staller 92, 112

22.6, 239-40 Asketil, brother of Abbot Thurstan of

ZEthelwulf 141 Glastonbury 338

/Ethelwulf, husband of Athelthryth 78, 239 Asser 17-18, 24, 35-6, 43-5, 48, 109, 185, 244-5,

/Ethelwulf, thegn of King Edgar 146-7 250-1, 302, 877

ZEtheric, rusticus 209 Astwell (Northants.) 450

Agatha de la Kersimere 802 Aubrey I de Vere, chamberlain 305 Agnes, daughter of Earl Roger of Warwick 445 Aubrey II de Vere 265, 279

Alan de Neville 471-2, 474, 486 Aubrey III de Vere, earl of Oxford 470 Albereda de Tresgoz, wife of William de Aubrey IV de Vere, earl of Oxford 639

Sackville 442-4 Augustine, saint 98, 127 see also Soliloquies Aldermaston (Berks.) 111 Aumale, counts of 293 Aldred, son of Siward 279 Austius, lector of St Petroc’s, Bodmin 217

Aldwin, abbot of Ramsey 267 Autin of Huntingdon 309-10 see also Baldwin

Alestan, landholder 279 Avelina de Hesdin 449, 451 Alexander III, pope 438, 442-3, 778-9 Aylesford (Kent) 82-3 Alexander, bishop of Lincoln 266, 493

Alfred, king (871-99) 11, 17, 19-25, 32, 34, 44, Bagley (Berks.) 463 46-8, 80-1, 85, 88, 91, 104, 108-9, 116, 123, Baldwin, son of Autin of Huntingdon 302, 127-8, 133, 135-40, 151, 165-7, 169-73, 178-81, 309-10 183-4, 189-95, 198-9, 201, 204, 209, 211, Baldwin, abbot of Bury St Edmunds 120 213-15, 219, 226, 239-40, 245-6, 302, 408, Baldwin, archbishop of Canterbury 777

410-11, 748, 869 Baldwin de Redvers 359

Alfred, bishop of Selsey 144 Baldwin, bishop of Worcester 741 Alfred, ealdorman 103-4, 107, 127-8 Barking Abbey 319 Alfred, thegn of King 7thelstan 121 Barnhorne (Sussex) 679

Alfwin, son of Leofstan 819 Barnwell annalist 482 Alice, disputant in dower case 593 Barre, Richard 540

Alice, countess, granddaughter of Walter Basing (Hants.) 108, 358

de Gant 447 Basset, Ralph 263, 270, 278, 288, 307, 462

Alice de Redvers 336, 447 Basset, Richard 263, 265, 270, 278-9, 288 Alnwick (Northumberland) 501 Basset, Thomas 518

INDEX OF NAMES, PLACES, AND NON-LEGAL TEXTS O15

Basset, William 504 Bricstan of Chatteris 278-9, 305-7, 314, 402, 694

Bath Priory 318, 320, 356 Bridport (Dorset) 321-2 Battle Abbey 259-60, 274-5, 295-7, 564, 679, 858 Brightling (Sussex) 231

Battle Abbey Chronicle 259, 468 Brihtferth, ealdorman 159

Baynard, Geoffrey 328 Brihtheah, monk 231 Beahmund of Holland (Essex) 79 Brihtmund 100-1

Beauchamp see Simon; William Brihtnoth, lessee of Leckhamstead 101 Beaumont see Robert II; Robert III; Robert IV Brihtnoth son of Odda 29 Becket, Thomas, chancellor, archbishop of Brihtric Grim 132 Canterbury 250, 498, 500-3, 520, 526, 529, Brihtric, party to marriage agreement 231, 237-8 531-2, 539, 567-8, 570, 611-12, 671, 685-6, Brihtric, testator 131 698-9, 716, 746, 751, 769-70, 772, 783-4 Brihtric, thegn of King thelred II 209

Beddington (Surr.) 146 Brihtsige, priest 217

Bede 152 Brihtwine, brother of Brihtnoth 101-2 Bede, Letter to Egbert 94-5 Bristol (Glos.) 425, 817-18, 831-3, 841 Bedford castle 355 Brito, Ralph 575

Bedfordshire 38, 118, 459, 469, 549 Brittany 499-500 see also Arthur; Geoffrey Bedwyn (Wilts.) 110 see also Great Bedwyn Broughton (Hunts.) 330

Beedon (Berks.) 452 Brungar 221

Belvoir (Leics.), honour of 354 Buckingham 39-40

Benedict, saint 307 Buckinghamshire 118, 289, 595-6 Benedict, Jew of Norwich 707 Buckland, place name 93 see also Hugh; William Benedict de Talmont 543 Bucuinte, John 587-8

Benham (Berks.) 365 Burbage (Hants.) 110

Benjamin, royal serjeant 267-9 Burford (Oxon.) 814, 818

Benson (Oxon.) 47 Burgred, king of Mercia (852-74) 226 Beorhtric 119 Burton Abbey 6, 312, 336, 338-9, 379, 423, 427

Beorhtwine, family of 40 see also Nigel Beornwulf 122 Burton Bradstock (Dorset) 321-2

Beornwulf, former husband of Asa 441 Bury St Edmunds (Suff.) 680-1, 695-6, 817, 822, Beowulf 123-4 825, 833, 842 Berkhamstead (Herts.) 296 Bury St Edmunds, abbey of 10, 60-1, 120, 131,

Berkshire 275, 278, 319-20, 461 133, 207, 220-1, 295, 314-15, 564, 569, 621,

Bernard, disputant 285 627-30, 642, 662, 680-1, 692, 817, 875-6 see

Bernard de Neufmarché 471 also Anselm; Baldwin; Jocelin of Brakelond;

Berner, tenant of Abingdon 350 Samson

Beverley (Yorks.), church of 292, 398, 563 Byland Abbey 330

Bible 22-4, 183, 352, 720 Byrhtnoth, ealdorman 57, 68, 84, 133, 240

Biddlesden Abbey 450 Byrhtnoth, abbot of Ely 55, 136

Bigod, Roger 315, 326 Byrhtsige Dyring 82 Binham Priory 362

Bittering (Norf.) 326 Caddington (Beds.) 134 see also Eadwine Blackhurst (Worc.), hundred of 289-90 Cade, William 706-7

Blackmarston (Heref.) 285 Caen, abbey of St Etienne 282-3, 321

Bleak House 574 Cambridge 65, 67, 77, 88, 105, 140, 174, 220, 821, Bloet, Robert, bishop of Lincoln 263, 266, 310 823-4

Blunt, Hamo 680-1, 683 Cambridgeshire 51, 67, 79, 118, 224, 300, 409, 458 Bluntisham (Hunts.) 67-8, 77 Canterbury (Kent) 39, 533, 783-4 Bodmin, church of St Petroc 217 Canterbury, archbishopric / cathedral / Christ Bolton Percy (Yorks.) 319 Church 10, 29-31, 51, 122, 132, 133, 140-1, Boga of Hemingford, sons of 67-8, 77 145-6, 231, 251, 259, 279, 294-5, 391, 321, 329, Book of the Foundation of the Monastery of 331, 371, 429, 501, 560, 564, 575, 693, 769,

Walden 655 776-7, 839, 875-6 see also AElfheah; A’lfric;

Bourn (Cambs.), honour of 354 /Ethelnoth; Anselm; Baldwin; Becket,

Brandon (Warw.) 446 Thomas; Dunstan; Lanfranc; Langton, Breteuil (Normandy) 814, 832 Stephen; Lyfing; Oda; Sigeric; Stigand;

Brian de Lisle 482 Theobald; Walter, Hubert; Wulfhelm

916 INDEX OF NAMES, PLACES, AND NON-LEGAL TEXTS Canterbury, St Augustine’s Abbey 122,140, 231, Damian, Peter 436 282, 317, 321, 569, 599, 839 see also Alfmer David I, earl of Huntingdon, king of Scotland

Carisbrooke (Isle of Wight) 285, 288 (1124-53) 8, 263, 354 Carolingians 24-5, 36, 40, 51, 61, 164, 245-6, David the Lardiner 509

250, 396-7 Dean, Forest of 456, 471, 485

Caux (Normandy) 854 Denewulf, bishop of Winchester 120, 146

Cawston (Warw.) 364 Denge Marsh (Kent) 259-60

Ceolwynn, testatrix 145 Denmark 21, 66, 145, 245, 249, 280-1 see also

Charlemagne 164 Scandinavia Charles the Bald 164 Deormod 141 Charwelton (Northants.) 287, 304-5, Deorswith 141

309, 320, 329 Derby 46, 734

Chatteris (Cambs.) 305-6 Derbyshire 270, 386, 409

Cheney Longville (Salop) 279-80 Devon 285, 290, 462, 469, 610-11, 737 Cheshire 36, 277, 293-4, 392, 405, 716 Dialogue of Solomon and Saturn 221 Chester 36, 88, 293-4, 348, 464, 564, 821, 823 Dialogue of the Exchequer 350, 407-8, 455, 460, Chester, earls of see Hugh I; Hugh II, Ranulf J; 467, 474, 477, 481, 484, 507, 530, 539, 542, 547,

Ranulf II 646, 653, 678, 683, 691, 703-5, 733, 740, 742,

Chichester, bishop of 275, 296, 449 see also 751, 759-60, 766, 807-8, 826, 853, 861, 873 see

/ethelric; Hilary also Richard fitzNigel

Chieveley (Berks.) 460 Dod, William 509 Chiltern, hunting area 463 Dorset 462 Chippenham (Cambs.) 136 Dove, river 466 Chippenham (Wilts.) 456 Dover (Kent) 321

Christchurch (Hants.) 285, 288 Dumbleton (Glos.) 193, 288, 347 Christina of Markyate 438, 490 Dunhevet castle (Cornwall) 277

Chute Forest 461 Dunstan, archbishop of Canterbury 83, 226, Cilicia, letter of Apostles to 22 242, 314 Clacklose (Norf.), hundred of 53 Dunwich (Suff.) 813, 829-30

Clarendon (Wilts.) 469, 513-14, 770 Durham, bishops and bishopric of 251, 264,

Claricia 788 292, 294, 398, 464, 466, 502, 563, 565, 720,

Cleveland (Yorks.) 746, 849 747, 855 see also Ealdhun; Flambard, Ranulf;

Cloer, Ralph 754 Hugh de Puiset; Walcher

Cnut, king (1016-35) 18-21, 25-6, 28-30, 32-4, 39-40, 49-50, 52-4, 56-9, 61, 64, 67, Eadgifu, wife of King Edward the Elder 82, 141, 236

70-1, 73-7, 80-2, 84, 92, 98, 100, 120, 124, Eadhelm, manumitted man 217 127-8, 156-9, 161-2, 164, 167-71, 180-1, 183-7, Eadmer 241 190-2, 197-8, 200-5, 230-9, 245, 248, 258-9, | Eadmer, Canterbury writer 30, 241, 294-5, 314,

350, 393, 399-401, 408-9, 444, 456-7, 819, 326-7, 389, 462

822, 869 Eadnoth, prior of Ramsey 88-9

Cockfield (Suff.) 133, 627-30, 662, 692, 809, 811 Eadred, king (946-55) 52, 96, 108, 125, 132

see also Adam; Margaret; Robert Eadric 68

Colchester (Essex) 813, 816 Eadric, thegn 101

Coln (Glos.) 301 Eadric of Calne 68-9, 72 Corbet, Roger and his brother Robert 280 Eadric of Laxfield 222 Cornwall 277, 462, 469, 563-4, 716, 759, 764 see Eadsige, priest of Cnut 128, 133

also Reginald de Dunstanville Eadwig, king (955-9) 52, 101-2, 226 Cosford (Suff.), half hundred of 627-8 Eadwine of Caddington 134

Cray (Kent) 125 Eadwine, earl of Mercia 36 Cricklade (Wilts.) 81 Eadwold 241

Croc the huntsman 460-1 Ealdhun, bishop of Durham 236, 238 Crowland Abbey 12, 671 Ealdred, archbishop of York 397-8

Culham (Oxon.) 282, 350 Eanwulf Penearding 121

Cumin, William 363 East Anglia 33, 40, 65, 120, 124, 218, 222, 224, Cumnor (Berks.) 463 247, 283, 292, 409, 433, 554, 874, 878 see also

Cyneswith, lessee 146 Norfolk; Suffolk Cypping, landholder 119 Ecgferth 242

INDEX OF NAMES, PLACES, AND NON-LEGAL TEXTS Q17

Ecgwin, saint 385 Eynsford (Kent) 125

Ecgwyna, wife of King Edward the Elder 236 Eynsham Abbey 360, 655 Edgar, king (959-75) 18, 21, 24-5, 27-8, 32-4, 44, 47-9, 52, 54-7, 62, 64, 66, 70-1, 74,110,113, | Falaise (Normandy) 511 117, 123, 152-4, 157, 161-2, 170, 181, 189, 192-4, Falkenham (Suff.) 311-12

216, 236, 242, 244-5, 247-8, 250, 820, 822-3 Faritius, abbot of Abingdon 288, 335, 365, 403

Edith, widow of King Edward the Fattecabbel 737

Confessor 42 Faversham (Kent) 29

Edmund, saint 10 Fen Ditton (Cambs.) 57 Edmund, king (939-46) 20, 30, 52, 96, 125, 144, Ferrers, earls of Derby 560, 773 162, 170-1, 173-4, 179-80, 184, 187-8, 192-3, Flambard, Ranulf 262

196, 199, 232, 243, 247 Flanders, county of 856-7

Edward the Confessor, king (1042-66) 10, 27, Flodoald 68-9, 72, 75, 87, 185, 878 41-2, 45, 53, 60-1, 92, 111-18, 123, 125, 137, Foliot, Gilbert, bishop of Hereford and of 141-2, 145, 153, 191-4, 210, 220-2, 227-8, 244, London 352 258, 260, 262, 277-8, 281, 326, 346, 387, 397-8, Foliot, Ralph 540

408, 418, 456-7, 694, 813, 821-2, 879 Fontevrault, abbey of 790 Edward the Elder, king (899-924) 20, 37-8, Fonthill (Wilts.) 121, 239 44, 48, 51, 67, 73, 77, 85, 92, 104-5, 108-10, 116, France 284, 538, 575, 854, 857

120, 141, 156-7, 163-4, 189, 222, 236, 247 Franceis, Robert 737

Edwin, disputant 75 Francia 24, 36, 51, 199 Eleanor of Aquitaine, wife of Henry II 473, Frederick Barbarossa, Emperor 857

500, 520, 574-5, 734 Froyle (Hants.), church of 610

Eleigh, Monks (Suff.) 135 Fulchered, abbot of Shrewsbury 280 Elias, butler of Abbot Hugh of Bury St Fulk, archbishop of Reims 24, 226 Edmunds, son of 646

Elmham, bishop of see thelmer Gateshead (Durham) 825-6 Elmstone Hardwicke (Glos.) 138, 144 Gatton (Surr.) 103

Ely, abbey/bishopric 35-6, 52, 55, 61, 67-8, 79, Gayton (Heref.) 112 92, 131, 140, 143, 165, 213, 221, 269-70, 295, Geoffrey, count of Anjou 527-8 305-7, 346, 502, 564, 573 see also Byrhtnoth; Geoffrey de Bechesieta 407 Hervey; Libellus Athelwoldi; Liber Eliensis; Geoffrey II, duke of Brittany 650

Nigel; William de Longchamp; Wulfric Geoffrey the chamberlain 445

Emma of Dummart 762 Geoffrey de Clinton 270

Emma of Normandy, wife of thelred II and Geoffrey, bishop of Coutances 262, 264

Cnut 237 Geoffrey fitzPeter, justiciar and earl of

Erith (Kent) 125 Essex 473, 502-3, 540, 543, 548-9, 578, 766, Ermenold, tenant of Abingdon 343 872

Ernulf, son of Geoffrey II de Mandeville 445 Geoffrey de Gaimar, vernacular historian 461

Espec, Walter 270, 463 Geoffrey de la Huse 790

Essex 51, 118, 119, 270, 462, 470, 654, 878 Geoffrey I de Mandeville 358 Essex, earls of see Geoffrey fitzPeter; Geoffrey Geoffrey II de Mandeville, earl of Essex 268-9, II de Mandeville; Geoffrey III de Mandeville; 322, 445

William de Mandeville Geoffrey III de Mandeville, earl of Essex 544-5

Etheldreda, saint see Athelthryth Geoffrey de Mauquenchy 379

Eudo fitzHubert 266 Geoffrey of Monmouth, writer 6, 257-8 Eustace, count of Boulogne 429 Geoffrey of Turville 289 Eustace fitzJohn 270 Gerald of Wales, writer 740, 782, 845 Everard, bishop of Norwich 695 Gerard, archbishop of York 292

Eversley (Hants.) 116-17 Germany 515

Evesham Abbey 289-90, 395, 400, 858 see also Gervase of Halton 334-5 Adam; Alfweard; /Ethelwig; Norreis, Roger; Gesta Stephani 457-8, 510

Thomas of Marlborough Giffard, William, bishop of Winchester 390

Exeter (Devon) 29, 426 Gilbert, knight 784 Exeter, bishop of see Leofric Gilbert de Balliol 679 Exodus 22, 169, 183 Gilbert de Clare 364, 493 Exon Domesday 111 Gilbert dela Kersimere 802

918 INDEX OF NAMES, PLACES, AND NON-LEGAL TEXTS

Gilbert of Sempringham, saint 299 Harthacnut, king (1040-42) 237 Gilbert, abbot of Westminster 358 Harvey, William 523 Girmund, abbot of Winchcombe 288 Hastings, battle of 256

Giso, bishop of Wells 145 Hawise, widow of William, earl of Glanville see Hervey de; Ranulf de Gloucester 449, 790

Glastonbury Abbey 9, 295, 373, 664 see also Headbourne Worthy (Hants.) 119

Henry of Blois; Thurstan; William of Headington (Oxon.) 328, 331 Malmesbury Heahstan 96837 Gloucester 46 Hedon (Yorks.) Gloucester Abbey 301, 337, 359, 396 see also Helmstan 81, 121, 239, 242-3

Peter Henry I, king (1100-35) 7-8, 256-63, 266-74,

Gloucester, earls of see Robert; William 276-7, 279, 281, 283-7, 289-90, 292-3, Gloucestershire 118, 425-7, 467, 485 295-305, 309, 315-16, 321, 328, 330, 333-4, 337,

Goda 82 343-4, 348, 353, 356, 359; 362-3, 365-6, 372, Goda, thegn 137 374, 377-9, 386, 388-9, 397, 400, 402-4, 408, Godric 326 412-13, 438-9, 445, 449, 452, 454, 457-60,

Godric, monk of Abingdon 317 462-4, 466-7, 480-1, 504, 526, 544, 556, 570,

Godric of Bourne 142 583, 652, 659, 681, 694-5, 703, 746, 771, 816-18, Godric, reeve of Windsor 279 828-9, 832, 839-40, 848, 868, 879 Godwine, party to marriage agreement 231, Henry II, king (1154-89) 3, 11, 13, 298-9, 355,

237-8 404, 407-8, 415-16, 422, 431, 434, 447, 450-1,

Godwine, earl 44, 101, 237, 821 462, 466, 468-71, 473, 478, 481, 483, 485, Godwine, son of Earwig 235 497-504, 505-13, 516-21, 526-30, 532, 538-40, Godwine, bishop of Rochester 80 543-4, 547, 551, 553-5, 500, 564-5, 567, 570, 575; Godwine, abbot of Winchcombe 84 583, 600, 606, 609, 611-12, 634, 637, 650, 661, Grately (Hants.) 29, 153-4, 190, 192 679, 685-6, 693, 700, 703, 707, 725, 734-7; 742; Gratian, canonist 437, 440-1, 758 747, 764, 769-75, 779, 812, 816-18, 828, 837, Great Bedwyn (Wilts.) 210 see also Bedwyn 840, 845, 855, 857, 864, 872, 873

Great Sturton (Lincs.) 368 Henry III (1216-72) 505, 536, 544, 554-5, 605,

Care Henry of Arden 364

Gregory the Great, pope 24 see also Pastoral 609, 620-1, 648, 651, 816, 853, 864

Grenta of North Stoke 356 Henry, son of Benselin 480

Grim, Roger, reaper of abbot of Henry of Blois, abbot of Glastonbury and bishop

Peterborough 469 of Winchester 8, 338, 373, 442-3, 445, 454 Grimbald of St Bertin 24 Henry de Bracton, justice 873

Groton (Suff.) 628-30 Henry de Braybrooke 846 Guernes de Pont-Sainte-Maxence 528-9, 570 Henry of Essex 784

Guichard, deacon of St Mary’s abbey, Henry, son of Fulcher 560

Reculver 122 Henry de Gray 773

Gundreda de Warenne 790 Henry, son of Herbert the forester 461 Gundulf, bishop of Rochester 300-1 Henry of Huntingdon, History of the

Gunter, abbot of Thorney 304, 371 English 263, 268, 461-2

Guthmund, brother of Abbot Wulfric of Henry of Northampton 859

Ely 230 Henry de Pommeraye 508

Guthrum, Danish king 191, 204, 211, 227-8, 408 | Henry de Port 358 Henry of Rye 331

Hailes (Glos.) 425 Henry, son of Segrim 821

Hakon, earl (?) 107 Henry de Tuschet, father and son 373 Halenald of Bidun 346 Henry, son of Voster 446 Halton (Bucks.) 58 Henry the Young King, son of Henry II Halton, East (Lincs.) 334 see also Gervase (1170-83) 518, 650 Hamo the steward 282, 317 Herbert, disputant 622 Hampshire 118, 285, 461 Herbert fitzHerbert 275 Hanney (Berks.) 317 Herbert, abbot of Westminster 275 Harold I (Harefoot), king (1035-40) 237 Hereford 838

Harold II, king (1066) and previously earl 102, Hereford, Cathedral 285 see also A:thelstan;

111, 222, 236 Reinhelm

INDEX OF NAMES, PLACES, AND NON-LEGAL TEXTS 919 Hereford, earldom of 293 see also Roger; Roger = Inquisitio comitatus Cantabrigiensis

de Breteuil; William fitzOsbern (Inquisition of the County of

Herefordshire 40, 75, 92, 118, 294, 392, 464 Cambridge) 118

Hereman, bishop of Ramsbury and of Ipswich (Suff.) 825

Sherborne 101 Ireland 12, 526

Herewulf, priest 165 Isaac, son of Rabbi 773

Hertfordshire 118, 262, 458 Isabel of Gloucester, first wife of King John 777-8

Hervey, bishop of Ely 306, 877 Isham (Northants.) 279 Hervey de Glanville 278 Isidore of Seville, Etymologies 211

Hervey le Moigne 329 Isle of Wight 285, 288, 564 Hexham (Northumberland), church of 400-1, Isolde, wife of Adelard 448 563 see also Richard Ivo of Chartres, canonist 441

Hexhamshire 292 Ivo de Taillebois 293 Hilary, bishop of Chichester 449, 575-6 Hincmar of Reims 24 Jerusalem 547

Hinton (Cambs.) 65 Jocelin of Brakelond, chronicler 10, 13, 565, Histoire des ducs de Normandie 850-2 627-31, 638-9, 642-6, 674, 680, 692, 784, 842,

Hoket, Stephen 727 860 Holderness (Yorks.) 293 Jocelin de Rivers 452-3

Holme, abbey of St Benet 610 Jocelin, bishop of Salisbury 493

Holt (Norf.) 51, 267 Jocelin de Tuschet 373

Horningsea (Cambs.) 136, 165 John, king (1199-1216) 3, 469, 474, 476-8,

Horsley (Surr.) 103 482-3, 502, 504, 523-7, 536, 541, 547-9, 560, Houghton (Sussex) 448 564, 623, 626, 628-9, 633-5, 650-1, 659, Hugh, brother of Andrew of Edlington 709 684-6, 703, 707, 741-2, 7525 773-53 777 781;

Hugh de Bolbec 493 805, 812, 816-17, 823, 825, 829, 831, 841, 843, Hugh of Buckland 265, 317 844-9, 852-3, 864, 868, 873, 879-80 Hugh I, earl of Chester 337, 350, 365, 418 John VIII, pope 226, 233

Hugh II, earl of Chester 367 John, abbot of Athelney 185 Hugh of Chiselhampton, family of 656 John, abbot of Bardney 693

Hugh de Cressy 518 John, dean of Chichester 449

Hugh des Eschalers 452 John ‘Cusir’ or ‘Monachus’ 3 Hugh, son of Eudo 368 John of Guestling 846-7, 849 Hugh fitzOdard 348 John of Lee 289 Hugh fitzRichard 363 John of Marmoutier, chronicler 527-8 Hugh of Hereford 659 John Marshal 493, 570, 612 Hugh of Lincoln, saint 779, 785-6 John, abbot of Peterborough 288, 331-2 Hugh de Montfort 262 John of Salisbury 442, 609-10, 613, 776-7,

Hugh de Neville 473-4, 479 845-6

Hugh, sheriff of Northamptonshire 287, 305 John, son of Thorold of Edlington 709

Hugh, son of Odo 368 John of Worcester, chronicler 400 Hugh de Pierleone, papal legate 472 Judith, niece of William I 354 Hugh, son of Pincon 346 Justinian 498, 532, 696 Hugh de Puiset, bishop of Durham 832

Hugh, brother of Werric de Marines 755-6 Kenelm, saint 84 Humber, river 38, 42, 199, 247 Kent 29, 32, 51, 108-9, 118, 140, 147, 155-6, Humphrey, Domesday tenant in 201-2, 209, 213, 231, 245-8, 283, 419, 440, 458,

Hertfordshire 266 501, 533, 635, 746, 794, 854-5, 874 Humphrey de Bohun 365 Kepeharm, John 821

Huntingdon 278 see also Henry Kerrier (Cornwall), hundred of 737 Huntingdonshire 67-8, 118, 278-9 Ketel, thegn 205, 215, 223

Hurstbourne (Hants.) 110 Kilmeston (Hants.) 146-7

Huscarl, Roger 504 Kineweard 101

Kingston (Surr) 231

Ine, king of Wessex (688-726) 22, 27, 33-4, 85, Kirkstead Priory 368

104, 151, 180, 236-7, 242, 869 Knighton (Leics.) 637-8

Innocent II, pope 442-3 Knightwick (Worcs.) 239

920 INDEX OF NAMES, PLACES, AND NON-LEGAL TEXTS

Lambert, son of Tovi 821 Lincolnshire 268-70, 283, 409, 621-2, 669, 693,

Lambeth (Surr.) 319 726, 729, 732, 748 Lambourn (Berks.), church of 113 Lingfield (Surr.) 103 Lancashire 280-1 Little Hereford (Heref.) 450

Lanfranc, archbishop of Canterbury 261-2, Llanthony Secunda Priory 361

294, 297, 371, 425, 440-1 London 21, 29, 51-2, 63, 74, 114, 153, 174-5, 180, Langandene (unident.) 44 182, 192, 266, 313, 319, 430-1, 523, 533, 761, 813,

Langport (Kent) 294 815-16, 818-20, 822, 824, 826-9, 832, 834-8, 843 Langton, Stephen, archbishop of Canterbury 484 London, bishopric of 265, 622-3, 666 see also

Lantfred of Winchester, Translation and /Elfstan; Maurice; Richard de Belmeis Miracles of St Swithun 38, 68, 182, 187 London bridge 185

Laurence, son of Harding 821 London, St Martin 322

Laurence, abbot of Westminster 575-6 London, St Mary le Bow 769

Leckhampstead (Berks.) 100-2 London, Tower of 589 Legend of the Seven Sleepers 27 Lowick (Northants.) 324

Leicester 46, 820, 823 Lucy, countess of Chester, mother of William I Leicester, earls of see Robert II de Beaumont; de Roumare 356, 366-7 Robert III de Beaumont; Robert IV de Lucy, sister of William Ballard 727

Beaumont Lyfing, archbishop of Canterbury 140

Leicestershire 270, 459, 470, 478

Leofgar, bishop of Lichfield 235 Mabel de Francheville 442-5, 574-6

Leofgifu, testator 112 Maitland, F. W. 95, 568, 857, 865

Leofric of Blackwell 142 Malet, Robert 441 Leofric, bishop of Exeter 246 Malet, William, sheriff 319 Leofric, earl of Mercia 144 Maltravers, H. 454 Leofric, possibly sheriff of Malvern, wood at 466 Worcestershire 107 Malvern Priory (Great Malvern) 362

Leofric, William 425 Mandeville family 360; see also Ernulf;

Leofsige, ealdorman 39-40 Geoffrey I; Geoffrey II; Geoffrey III; William

Leofsige, goldsmith 142 Map, Walter, writer 529, 533-4 Leofsige, monk of Ely 68 Mapleton (unident.) 275

Leofsige, priest 57, 83-4 Marcher lordships 294

Leofsige, reeve 266 Margam Abbey 659

Leofsunu 83 Margaret of Cockfield 629-30 Leofwaru 132 Marlborough (Wilts.) 474

Leofwine 91 Marshal, John 570, 612

Leofwine ealdorman 231 Marshwood (Dorset) 356-7 Leofwine, son of Eadwine of Caddington 134 Martel, William 493

Leofwineson earls of Mercia 40 Mascy of Devon 737

Lesnes Abbey 501 Matilda, empress, daughter of Henry I 352,

Lewes (Sussex) 424, 440 445, 470, 492

Lewknor (Oxon.) 274, 320 Matilda, wife of Henry I 261, 274, 307, 320, 445 Libellus ZEthelwoldi 35, 40, 55, 57, 64-5, 67, Matilda de LAigle 441-2

88-9, 136, 220, 823, 877 Matilda, daughter of Count Stephen of

Liber Eliensis 230, 305-6, 877 Brittany 447

Lichfield, bishop of see Leofgar Matthew, gospel of 22-3

Life of Christine of Markyate 438 Maud, daughter of Earl Waltheof 354

Life of St Edith 176 Mauduit, John 781

Life of Edward the Confessor 34 Mauduit, Robert 781 Life of St Hugh of Lincoln 685, 785-6 Maurice, bishop of London 487

Life of St Kenelm 84 Meopham (Kent) 131

Lincoln 46, 88, 197, 268-9, 386, 814, 817, 821, Mercia 21, 44, 46, 67, 124, 162, 201, 248, 310,

828, 830, 836, 840 see also Aaron 410 see also A:thelfleed; Athelred; Burgred; Lincoln, bishopric of 268-9, 302, 310, 637-8 see Eadwine; Leofric; Leofwineson also Alexander; Bloet, Robert; Hugh; Robert Mersey, river 207

Lincoln, earl of see William de Roumare Mersham (Kent) 103-5, 107

Lincoln, hospital of 658 Michael de Hauville 476

INDEX OF NAMES, PLACES, AND NON-LEGAL TEXTS Q21

Middlesex 118, 458, 463, 523 Ogga of Mildenhall 89, 140, 143

Miles of Gloucester 361, 450 Olifart, William 304

Milton (Kent), hundred of 282 Old Testament 22-4, 183, 352

Miners, Gilbert 301 Oliver the Angevin 439

Modbert, claimant of North Stoke 318, 320,356 | Orderic Vitalis, chronicler 11, 263, 305-7, 402,

Modbert, guardian of Abingdon Abbey 317 442, 457-8, 464

Montebourg Abbey 447 Ordlaf, ealdorman 44, 77, 80-1, 121, 2.43 Moorlinch (Somerset) 338 Ordric, abbot of Abingdon 101-2

Moredon (Wilts.) 239 Orleton (Worcs.) 239

Morin, Robert 781 Orm, tenant of Burton Abbey 336, 339, 350 see

Moses 23-4 also Ralph Mowbray see Robert de; Roger de Osbert, alleged villein 759

Osbert of Clare, writer 378

Nassington (Northants.) 480 Osbert fitzHervey, justice 845

Naunton (Glos.) 84 Osbert fitzPons 362 Neville see Adam; Alan; Hugh; Thomas Osbert the monk 305

New Forest 466 Osbert de Wanci 450

New Testament 22-4 Oscytel, archbishop of York 228 Newcastle (Northumberland) 328, 814, 818, Oseney Priory/Abbey 360, 655

828, 839-40 Oseney (Oxon.), bailiff of 821 Newington (Kent) 282 Osgot 84 Newport (Essex) 429 Osian, priest 217

Nicholas, disputant 622 Oslac, earl of Northumbria 34, 165 Nigel d’ Aubigny 441-2 Oswald, bishop of Worcester, archbishop of Nigel, abbot of Burton 336, 350 York 115-16, 121, 144, 228, 235

Nigel, bishop of Ely 504 Oswulf 78, 239 Nigel d’Oilly 335-6 Ougrim of Frisemareis 374

Niger, Ralph, chronicler 529 Ourduydal, manumitted man 217 Norfolk 10, 51, 53, 119-20, 205, 224, 234, 240, Oxford 275, 285-6, 335, 515, 731, 814, 818, 821, 266-7, 270, 278, 409, 458, 541, 654, 794, 800, 878 858, 868

Normandy 11, 256, 262, 274-5, 347-8, 356, Oxford, earls of see Aubrey III de Vere; Aubrey 359-60, 379, 403, 465, 467, 502, 511-13, 525, IV de Vere

527-8, 533, 574, 614, 707, 853-4 Oxford, church of St Frideswide 328 Norreis, Roger, abbot of Evesham 655 Oxfordshire 39-40, 47, 275, 360, 386, 400, 403,

North Stoke (Somerset) 356 468, 588, 655 Northampton 814, 825, 831, 834, 841

Northampton, St Andrew's Priory 299 Parham (Sussex) 275

Northamptonshire 55, 279, 752 Passelew, Ralph 267 Northgreenhoe (Norf.), hundred of 267 Pastoral Care, Gregory the Great’s, Alfredian

Northumberland 466, 855 version of 24

Northumbria 201, 248, 264, 292 see also Oslac; Patney (Wilts.) 109

Robert de Mowbray; Tostig; Waltheof Patrick, Mabel 540 Norwich, bishopric of 277, 315, 449, 451, 564, Penenden Heath (Kent), trial at 276, 316, 329

610, 790 see also Everard Penwith (Cornwall), hundred of 737

Norwich, church of Holy Trinity 449 Peter of Blois, writer 531 Nottingham 35, 46, 270, 474, 816-17, 840 Peter de Brus 746, 849

Nottinghamshire 386, 409 Peter, abbot of Gloucester 275

Numbers, Book of 352 Peter of Goxhill 334-5 Nunburnholme (Yorks.), church of 364 Peter of Meleti 575

Peter of Northampton 859

Oaksey (Wilts.) 365 Peter de Pelleville, elder son of, leper 772-3

246 Winchester 502, 538

Oda, archbishop of Canterbury 30, 226, 243, Peter des Roches, justiciar and bishop of Odo, bishop of Bayeux 261-2, 265, 294, 300, Peterborough Abbey 61, 295, 339-40, 462, 469,

314, 329 665 see also John; Thorold

Odo of Newsham 509 Peverel, Hamo 280

Offham (Kent) 142 Peverel, William 7-8

Q22 INDEX OF NAMES, PLACES, AND NON-LEGAL TEXTS

771 Rhuddlan (Wales) 814

Philip de Broi, canon of St Paul’s, Bedford 769, Revesby Abbey 427

Picot, sheriff of Cambridge 300 Ribbesford (Worcs.) 239

Pinel, Ralph 311-12 Ribble, river 207

Pipewell Abbey 364 Richard I, king (1189-99) 3, 469, 482-3, 485, Pitley (Essex) 493 501-2, 520-1, 523-4, 529, 538, 540-1, 549, 564, Pleshey (Essex) 92 575-6, 581, 614, 628-9, 633, 639, 650, 707, Plympton (Devon) 285 734-5, 754; 773s 775 788, 812, 816-17, 846-8,

Pontefract (Yorks.) 827, 836-7 864, 868, 879-80

popes see Alexander III; Gregory the Great; Richard de Anesye, son of William de

Innocent II; John VII Anesye 358

Potor, Osbert 737 Richard of Anstey 442-5, 574-6, 858

Potton (Beds.) 142 Richard de Belmeis, sheriff and subsequently Powder (Cornwall), hundred of 737 bishop of London 265, 279

Preston (Lancs.) 821, 826-7, 829, 831-2, 838-9 Richard fitzNigel 407-8, 467, 486, 504, 530,

Puis, Robert 737 539, 540, 704, 756, 873 see also Dialogue of the

Pulcin, Albold 621 Exchequer

Pyder (Cornwall), hundred of 737 Richard Gelee, reaper 480 Pyrton (Oxon.), hundred of 320 Richard, son of count Gilbert 262

Pytchley (Northants.) 332 Richard de Gray 288

Richard of Hexham, chronicler 466 397

Rainbald 288 Richard of Ilchester 503-4

Ralph, earl of Norfolk 326 Richard de Lucy, justiciar 11, 262, 471, 485-6,

Ralph de Andeville 478 500-1, 505-6, 542, 544-5, 576, 771 Ralph, son of Asketill 275 Richard de Redvers 447

Ralph de Diceto, chronicler 471-2, 505, 518-20, Richard, son of Robert of Somercotes 760

741, 749 Richard of Standlake 343

Ralph de Hairun 358 Richard of Sudbury 643-4

Ralph, Henry IT’s physician 576 Richard, tenant of William de Warenne 658

Ralph de Mortimer 119 Richmond (Yorks.), honour Ralph, son of Orm 339 of 293, 296, 855 Ralph, son of Segar 755 Ridel, Geoffrey 263, 305 Ralph, son of Segbold of Lowick 325 Rimpton (Somerset) 132

Ralph, son of Walter the ditcher 402-3, 413 Riol, deacon of St Petroc’s, Bodmin 217 Ramsey Abbey 78-9, 88-90, 263, 266, 279, Ripon (Yorks.), church of 292, 563 295, 302, 330, 343, 349, 372, 462, 564 see also Robert of Arundel 462 Alfwine; Aldwin; Eadnoth; Reginald; Walter Robert II de Beaumont, earl of Leicester 486, Ramsey chronicle 45, 53, 129, 217, 235, 426, 452 492, 500-1, 503, 529, 637, 771

RanulfI, earl of Chester 293, 350, 366 Robert III de Beaumont, earl of Ranulf II, earl of Chester 346, 350, 367, 373 Leicester 464 Ranulf de Glanville, justiciar 13, 485, 501, 504, Robert [IV de Beaumont, earl of Leicester 622

518, 534, 545, 576, 872 Robert de Belléme 293-4, 402

Ranulf, brother of Ilger, disputant 312 Robert de Cealsa 366

Reading Abbey 296-7 Robert of Cockfield 627-30 Reculver Abbey 122 Robert ‘Curthose’, son of William I 343 Red Book of the Exchequer 868 Robert, count of Eu 262 Red Book of Thorney 288 Robert de Daiville 330 Redvers family 259-60, 285, 288, 290, 336, 564 Robert fitzHamo 814, 818

see also Alice; Baldwin; Richard Robert fitzWimarc 221

Regenbald, chancellor 41 Robert, earl of Gloucester, illegitimate son of Reginald, abbot of Abingdon 347, 350, 368, Henry I 352, 445, 492, 835

452-3 Robert, son of Gubuld 449

Reginald de Dunstanville, earl of Robert, bishop of Lincoln 266, 299 see also

Cornwall 277, 564 Bloet, Robert

Reginald of Durham, hagiographer 720 Robert, son of Mangnus 726

Reginald, abbot of Ramsey 306 Robert ‘Malarteis’ 306, 308

Reinhelm, bishop of Hereford 275 Robert, count of Meulan 259

INDEX OF NAMES, PLACES, AND NON-LEGAL TEXTS 923 Robert de Mowbray, earl of Northumbria 264, Sandford-on-Thames (Oxon.) 335

292-3, 441 Sandwich (Kent) 321

Robert I, duke of Normandy 444 Savigny, abbey of 359 Robert of Rhuddlan 814 Scandinavia 18, 42, 66, 88, 147, 211, 213, 218, 238, Robert, brother of Roger earl of Warwick 446 240, 244, 248 see also Denmark

Robert of Staverton 304-5, 318 Selly Oak (Warw.) 129 Robert de Stuteville 330 Selsey, bishops of see Alfred; Wulfhun Robert, abbot of Thorney 7-8, 288, 306, 371 Semer (Suff.) 628-30

Robert de Torigni, chronicler 510 Serlo, chaplain of Humphrey de Bohun 365 Robert of Yaxley 267-8, 318, 371 Sewall, son of Fulcher 560 Rochester, bishopric of 83, 125, 369 see also Seven, river 466

Godwine; Gundulf Sexburga, saint 307

Roger of Asterby 845 Shelford (Cambs.) 448

Roger, son of Baldwin 449-50 Sherburn in Elmet (Yorks.) 247

Roger of Benniworth 334-5 Sherfield English (Hants.) 358

Roger de Breteuil, son of William fitzOsbern, Shrewsbury (Salop) 387, 731, 830

earl of Hereford 293 Shrewsbury Abbey 279-80, 460

Roger the clerk 336 Shrewsbury, earl of 293

Roger of Eston 476, 480 Shropshire 293-4, 339, 392, 405, 469, 716 Roger of Gloucester 301, 359 Sibson (Hunts.) 318, 371

Roger of Hardwell 320 Sigeric, archbishop of Canterbury 145 Roger, earl of Hereford 471 Simon de Beauchamp 355, 366 Roger of Howden, chronicler 13, 472-4, 477, Simon de Boisrohard 802 499-501, 505, 518-19, 522, 524, 527, 530, 546, Simon “Clericus’ 3

604, 700, 740-1, 753, 868, 878 Simon fitzPeter 769

Roger de Lacy 836 Simon the king’s dispenser 342, 446 Roger de Luvetot 330 Simon of Lindon 476, 480

Roger the marshal 448 Simon of Pattishall, justice 505, 539, 543, 847,

Roger de Mortimer 119 864

Roger de Mowbray 330, 434, 509 Simon de Senlis 354

Roger the Poitevin, count 6 Simon, bishop of Worcester 493

Roger, son of Reingot 693 Sired 140 Roger, bishop of Salisbury 262-3, 272, 389, 485,504 Siward, abbot of Abingdon 101 Roger de Sommery 378 Snodland (Kent) 80 Roger of Steinton 743 Soliloquies, St Augustine’s, Old English Roger of Toeny 759 version of 98, 106, 127 Roger de Valognes 362 Somerset, county court of 624 Roger, earl of Warwick 363-4, 445-5 Song of Roland 345

Roger, bishop of Worcester 778 Sote, Thomas 726

Rome 575 South Hams (Devon) 109

Romney (Kent) 259 Southampton (Hants.) 790

Romsey Abbey 445 Southampton, priory of St Denis by 790 Roncesvalles, battle of 345 Spalding Priory 366-7 Rotuli de dominabus 772-3, 779-80, 805-6 Spaldwick (Hunts.) 67 Rowington (Warw.) 296 St Albans Abbey 126, 338, 564 Ruallon, tenant of Ramsey 343-4 St Davids, bishopric of 337 Ruishton (Somerset) 77 Stamford (Lincs.) 46, 88, 821

Rutland 459, 478 Stansfield (Suff.) 802

Stanwine, man of Eadric of Laxfield 222

Sacol, monk of Abingdon 317 Steeple Aston (Wilts.) 109 Saher de Quincy, earl of Winchester 750 Stephen of Blois, king (1135-54) 11, 256, 259-60,

Salisbury (Wilts.) 328 262, 266-9, 274-5, 277, 284, 293, 296, 299, 322, Salisbury, bishopric of 769 see also Jocelin; 328, 345, 355, 3603-4, 397-8, 429-30, 445-6,

Roger 449-51, 454, 461-3, 468, 470, 501, 503, 507, 510,

Samson, abbot of Bury St Edmunds 10, 12, 13, 535, 567, 580, 606, 612, 750, 857, 868 627-8, 639, 642, 644, 646, 680-1, 809, 811, Stephen Dammartin 493

858, 860 Stephen des Eschalers 452

924 INDEX OF NAMES, PLACES, AND NON-LEGAL TEXTS Stigand, archbishop of Canterbury 30, 205, Thurstan 132

223, 821 Thurstan, abbot of Glastonbury 338 Stoke (Suffolk) 240 Thurwif 159 Stixwould Priory 367 Thurstan, son of Wine 131, 132, 240

Stoke by Clare Priory 364 Tickhill (Yorks.), honour of 293, 296

Stonea (Cambs.) 79 Tidenham (Glos.), survey of 210

Sudbury (Suff.) 790 Tisbury (Wilts.) 121

Suffolk 10, 119-20, 205, 207, 220-1, 224, 266-7, Toddington (Glos.) 84

278, 329, 409, 458, 628, 794, 878 Tofi the Proud 40, 112

Sulleisoc, manumitted man 217 Toki 58

Surrey 108, 462-3, 533 Toli, earl 67

719 Tope 67-8

Sussex 51, 108, 118, 209, 231, 270, 296-7, 610-11, Tonbridge (Kent), ‘lowy of 296

Sutton Courtenay (Berks.) 317, 320 Torah 774

Swain, reeve of Fawsley 305 Torksey (Lincs.) 835

Swegn, earl 237 Tortus, Richard 374 Swein, king (1013-14) 18, 164, 181-2, 245 Tostig, earl of Northumbria 34 Swithun, saint 69, 187 Toti 119 Sybil, wife of Miles of Gloucester 361, 450 Toulouse (France) 575

Sybil, widow of Payn fitzJohn 451 Turgis 434 Syria, letter of Apostles to 22 Tynemouth Priory 292-3, 563 Tyrel, Simon 599

Tadmarton (Oxon.) 342, 446

Taunton (Somerset) 77, 96, 820-1 Uctred, son of Dolfin 434

Tavistock Abbey 372 Uhtred, earl of Bamburgh 236 Tewkesbury (Glos.) 119, 629, 692, 821, 835 Uvi, disputant 89,140 Tewkesbury Abbey 309, 378

Theobald, count of Blois 443 Vacarius 531 Theobald, archbishop of Canterbury 331, 362, Vere see Aubrey I; Aubrey II; Aubrey III;

364, 442, 493, 609-10, 622-3 Aubrey IV

Theodore, penitential of 230, 241 Vincent, abbot of Abingdon 446

Thetford (Norf.) 111 Visdelou, Walkelin 462

Thetford, bishopric of 314-15 Vivian, serjeanty tenant of Peterborough 339 Thomas de Burgh 629-30, 692

Thomas fitzBernard 472 Weerferth, bishop of Worcester 138, 144, 146 Thomas of Marlborough, History of the Abbey Walcher, bishop of Durham 300

of Evesham 395, 655, 858 Walensis, Robert 737

Thomas of Monmouth, Life and Miracles of St Wales 12, 201, 294, 564, 788

William of Norwich 311 Wallingford (Berks.) 39, 296, 440, 555

Thomas de Muleton 802 Walter, abbot of Ramsey 286, 349 Thomas de Neville, archdeacon of Salop 543 Walter de Bolbec 286, 349

Thomas of St John 286 Walter of Clopton 304

Thomas, son of William, appellor 767 Walter de Coutances, archbishop of Rouen 502 Thomas, son of William, alleged killer 3 Walter fitzOdo 301, 356, 359

Thomas, archbishop of York 440-1 Walter de Gant 447

Thorkell, earl 29-30 Walter of Gloucester 450 Thorney Abbey 7-8, 287-8, 304-5, 318, 324-5, Walter, son of Hingam 446 329, 342-3, 371, 856 see also Gunter; Red Book —_ Walter, Hubert, archbishop of

of Thorney; Robert Canterbury 502-4, 522, 527, 529, 531, 533, 540,

Thorold, abbot of Peterborough 339-40 566, 578-9, 582, 629, 635, 693, 767, 872

Thorth, son of Earl Oslac 165 Walter, archdeacon of Oxford 343

Thrupp (unident.) 135 Walter of Preston 480, 482 Thurketel, testator 237-8 Walter, Theobald 523

Thunderfield (Surrey?) 29, 176 Walter de Rivers, father and son 365, 452-3 Thurkill, Essex peasant and visionary 845 Waltham Chronicle 112

Thurkill the White 75-6 Waltheof, earl of Northumbria 299-300, 354,

Thurrock (Essex) 773 399-401

INDEX OF NAMES, PLACES, AND NON-LEGAL TEXTS 925

Wanderer, The 221 William fitzStephen, hagiographer of Wansford (Northants.) 55 Becket 539, 751 Wantage (Berks.) 20, 66, 108, 248-9 William fitzWalter, constable of Windsor

Wardour (Wilts.) 44, 79 castle 461

Warenne see Gundreda; William William, earl of Gloucester 790, 835

Warmington (Northants.) 339 William, son of Hawise 760

Warrei, Roger 737 William, son of King HenryI 261 Warwick, earl of see Roger William de Houghton 263

Warwickshire 36 William de Lanvalei 518

Wassingwell (Kent) 103-5 William de Longchamp, chancellor, justiciar,

Wedmore (Somerset) 42 bishop of Ely 502, 531, 848-9 Welford (Berks.) 460 William of Malmesbury, historian 170, 256-7, Well (Lincs.), wapentake of 281 259-60, 262, 277, 298, 327, 339; 379; 391, 400,

Wells, bishop of see Giso 404, 424, 463, 815

Werric de Marines 755-6 William of Malmesbury, De antiquitate ecclesie Wessex 18, 21, 24, 33, 38, 44, 47-8, 50-1, 67, 94, Glastonie 327 96, 106, 108, 124, 147, 162, 182, 190, 218, 245-8, William of Malmesbury, Gesta regum 425

292, 410, 874 William of Malmesbury, Life of St

Westminster (Middx) 435-6, 523, 537-42, 544; Wulfstan 425

546-7, 604, 614, 628, 698, 769-70, 777, 782-3, William de Mandeville, earl of Essex 502

851, 856 William de Mara, nephew of Walter of

Westminster Abbey 116-17, 279, 358-9, 398 see Gloucester 450

also Gilbert; Herbert; Laurence William the monk 365 Weston Turville (Bucks.) 289 William of Norwich, saint 311, 431

Whaddon (Surr.) 103 William de Percy 319

Whitby (Yorks.) 821, 836 William son of Roger of Pont Aleric 413

Whittlebury (Northants.) 29 William de Ros 764

Wighelm 103, 107 William del Rotur 413

William I, king (1066-87) 18, 60, 102, 255, William de Roumare, earl of Lincoln 334, 364, 258-9, 261-2, 268, 277, 293-4, 297, 299-300, 367, 427, 439, 652 322-9, 333, 346, 351, 379-80, 399-400, 405, William de Sackville 442-5 418, 424-5, 434, 444-5, 457-8, 463, 465, 530, William of St Faith, precentor of Wells 759

813-14, 834, 869-71, 878 William de Sainte-Mére-Eglise 707

William I, king (1087-1100) 262, 267, 277-9, William, son of Simon of Sandford 759 282, 326-7, 356-7, 372, 400, 430, 461, 463, 465 William de Stuteville 330

William, disputant 658 William I de Warenne 440

William de Alneto 492 William IT or III de Warenne, earl of

William de Anesye 358 Surrey 445

William the approver 734-5 William de Warenne 658 William d’ Aubigny 270, 462 William de Yspania 448

William of Bacton 695 Willingale Spain (Essex) 448 William the bald 3091, 396 Wilton Abbey 176-7, 236

William, reeve of Bardfield 493 Wiltshire 290, 461, 462, 515, 610-11 William de Beauchamp 470-1, 493 Wimbish (Essex) 132 William of Buckland, sheriff 320 Winchcombe Abbey 84, 239 see also Girmund;

William de Cahagnes 279 Godwine

William the chamberlain (perhaps more than Winchester (Hants.) 21, 320, 389, 814, 821-2

one person) 338, 343, 363 Winchester, bishopric / cathedral / Old William de Chimillé 707 Minster 110, 116, 119, 120, 122, 132, 147, 350,

William of Eu 328 443, 454, 876 see also A-lfheah; 7thelwold; William de Ferrers, earl 560 Denewulf; Giffard, William; Henry of Blois; William fitzAlan 564 Lantfred; Peter des Roches; Wulfstan William fitzAlured 454 Winchester, earldom of 750 William fitzNigel, constable Winchester, New Minster 120-1 of Chester 348-9 Windsor (Berks.) 279, 456, 458, 600 William fitzOsbern, earl of Hereford 261-2, Windsor castle 461

265, 293, 404, 814 Winkfield (Berks.) 458

926 INDEX OF NAMES, PLACES, AND NON-LEGAL TEXTS

Wiohstan 137 Wulfstan, father of Wulfgar 159

Wippegar, Robert 726 Wulfstan of Winchester, Life of thelwold 31-2 Witchford (Cambs.) 55 Wulfstan, bishop of Worcester 277, 298, 396,

Woodstock (Oxon.) 66, 576 425

Woolley (Berks.) 447 Wulfstan, bishop of Worcester and archbishop Worcester 142, 231 of York 18-19, 26, 31-2, 64, 83-4, 90, 167, 175, Worcester, bishopric of 35, 58, 100, 115-16, 177, 185, 187, 191, 195-6, 200, 212-14, 219-20, 146, 181, 235, 237, 247, 424, 466, 874 see also 222, 227-8, 230-4, 239, 243 Baldwin; Oswald; Roger; Simon; Weerferth; Wulfstan, bishop of Worcester and archbishop

Wulfstan; Wulfstan of York, Institutes of Polity 31-2

Worcester Cathedral Priory 144, 767 Wulfstan, bishop of Worcester and archbishop Worcestershire 39, 118, 387, 458, 466, 470-1 of York, Sermo Lupi 213-14, 222

Wouldham (Kent) 83, 125 Wulfwaru 130

Wulfgar, testator 135-6 Wulfwine 129

Wulfgeat of Donington 126 Wulfwine, son of Beornwig 321 Wulfhelm, archbishop of Canterbury 29-30 Wylye (Wilts.) 141

Wultfhere, ealdorman 163 Wynfled 91

Wulfhun, bishop of Selsey 137 Wynsige, monk 144 Wulflaf 103, 107

Wulfnoth 67-8 Yaxley (Hunts.) 159, 371 see also Robert Wulfric, party to marriage York 34-5, 198, 386, 400-1, 814-15, 821

agreement 231, 239 York, archbishopric of 397, 400, 563 see also Wulfric, abbot of Ely 230 Ealdred; Gerard; Oscytel; Oswald; Thomas;

Wulfsige, sheriff of Kent 83 Wulfstan

Wulfstan of Dalham 40, 140, 143 York, St Mary’s abbey 374, 466, 563, 625

Wulfstan, disputant 91-2 Yorkshire 283, 292, 398, 405, 409, 441, 458

INDEX OF SUBJECTS abbots 120, 144, 176, 768 Alfred and Guthrum, Treaty between 82, 204,

abduction 13, 123 211, 408 abjuration of the realm see also banishment; alibis 729

outlawry alienation of land 93, 97-8, 115, 118, 126-7,

approvers 733 136-43, 145-6, 275, 357-67, 369, 371-2; Assize of Clarendon (1166) 518-19, 739-40 653-62, 666-7, 833-7, 863-4 see also Forest offenders 481 assigns; attornment; subinfeudation;

persons of ill-repute 515 substitution

prisoners following release 481, 525 acquisition/inheritance distinction 127,

sanctuary and 398-9, 719-20 138-9, 351, 360, 653

accessories and accomplices 167-8, 170 see also advance confirmation 364-5

harbouring offenders; receivers attornment 365, 659

accidental killing 169, 178, 391 bequest 126-33, 366, 659-60 accusation or claim, bringing an 69-72, challenges 143, 361-2

307-10, 313, 330, 415, 479-80, 581-4, consent of kin 139-40, 359-62, 653-7

603-21, 695, 722-4, 735-40, 827 consent of lord 139, 362-4, 658-9 see also appeal; approvers; oaths; ecclesiastical 144-6, 148, 359-64, 667

presentment; writs necessity 835-6

archdeacons bringing 299, 513 retrait lignager (right of kin to pre-emptive

categorisation 70 purchase) 835-6 false and malicious accusations 70-1, 330, sale 118, 136-7, 142-3, 334, 358, 363, 370, 580, 725, 729-30 654, 658, 661, 672, 833, 836-7

royal officials bringing 72, 308, 752-3 alms tenure 369-70, 489, 567, 608, 668-70 see

acquisitions see alienation; dower also ecclesiastical lands; Utrum

actions see assizes; ‘forms of action writs frankalmoign (free alms) tenure 369, 668-70 adultery 31, 85, 186, 232-3, 440-1, 783-4 alodium (allod) 333 advowsons 541, 568, 618 see also darrein amercements 403-5, 745-6 see also fines;

presentment forfeiture

ce (law) 22, 244 accusation or claim, arising from

ethelings 202-3 bringing an 313 afforestation 458-9, 468-9 battle, defeat in trial by 745

age borough law 832, 842-3 criminal responsibility 241 claim unsupported by offer of proof 592 majority 241-2, 340, 452, 632, 645, 805-6 debt 703

marriage 230, 438, 778-9, 796 eyre 545, 547 agisters, agisting 475, 476 financial benefit to king 745-6 agreements 357-8, 629, 691-3, 696, 703 see also Forest offenders 460, 463, 465-6, 469-70, faith; final concords; settlement 478, 481 ecclesiastical courts 692-3 frankpledge 393, 717

king’s courts 692-3 imprisonment and 746 local courts 693 lesser offences 745-6 marriage 229-31, 445 Magna Carta 746 private agreements 629, 691-2 mort d’ancestor 619

ahnung (ownership) 76 non-prosecution of appeals or aids, distraint for 557 settlements 725-8 aiel, besaiel, and cosinage, novel disseisin 619

action of 605 proportionality 404, 746 Ale, Assize of 562 tithing 392, 717, 745 aldermen, town 815, 818-19, 820, 821 royal mercy 403-4

ale-house, peace of 62-3 wergeld as limit 842-3

928 INDEX OF SUBJECTS

angild 181 172 definition of 71 attaint, writ of 525, 527

anathema 102, 685 see also excommunication attachment, of goods (including slaves) 155-9,

animals see also deer; dogs; hares; livestock; attendance at court, ensuring 72-6,

wild boar 310-13, 439, 724-5 see also arrest; straying 151, 377 attachment; chains; distraint;

annulment see divorce essoins; frankpledge; fugitives; hue appeal (individual accusation) 70, 307-8, 525, and cry; imprisonment; outlawry; 721-40, 754, 828 see also accusation pledges; summons; sureties

or claim; approvers attorneys 586-8, 860 see also legal profession

essoins 728 attornment 365, 659, 756 exceptions 728-31 forced 365

hatred, brought through 725, 729-30

non-prosecution 725-8 bailiffs 281, 554, 613, 615, 815, 816

prosecution, justices taking up 732-3 bailment of movables 679, 686-7, 690, 838

women bringing 728, 730-1 banishment 196 approvers 308, 733-5 banleuca (privileged area) 295, 398 appurtenances 334, 591, 621, 794 banns of marriage 782-3

arbitration 7-8 bannum, Frankish 190 archbishops 30-1, 261, 294-5, 565 baptism 242

archdeacons 299, 504, 513, 565-6 baronies 296, 633, 751, 850 bringing accusations 299, 513 barons 417-18, 705-6, 751 see also Exchequer

courts 299, 565 honorial 556

arms see weapons and armour barony, tenure 338, 417, 633

Arms, Assize of (1181) 520-1, 526-7 bastardy see illegitimacy

arrest 53,507, 508, 623, 706, 719, 724, 733, 736-7, _ battle, trial by 84, 295, 303, 322-3, 325-8, 330-1,

739, 822, 826-7 see also attachment; 382, 480, 571-2, 592, 533-4; 592-3;

attendance at court; hue and cry; 596-603, 606, 701-2, 731, 733-4; 745;

imprisonment 801-2 see also appeal; approvers;

Forest offenders 462, 478-9 champions; grand assize

arson 167, 184, 401, 515, 714 borough privileges 328, 828-9

Articles of the Barons (1215) 848, 851 clergy 429 articles of the eyre 522, 546-7, 736 maimed not to fight 731-2

Arts, study of the 531 old not to fight 731-2

500 women 731, 802

assarts 309, 460, 462-4, 470-1, 474, 477, 481-2, villeins 766

assault see beatings; brawling; forsteal; Be Blaserum (tract) 82, 167

hamfare; hamsocn beatings 166, 290, 424, 553, 562, 744 assigns 660-1 beheading 186-7 assizes see Ale; Arms; Bread; Clarendon; Bench, court of see king’s courts darrein presentment; Essoiners; benches (sceamol) 51 Forest; grand assize; juries; Magna bequest see testamentary succession; wills Carta; Measures; mort d’ancestor; betrothal see marriage Northampton; novel disseisin; rec- bisceopa land (bishop’s land) 106

ognitions; Utrum; Wine bishops 30-3, 49-50, 250-1, 263-4, 325, 489,

attachment (i.e. securing by taking 503 see also ecclesiastical courts; sureties) 719 see also attendance at synods

court participation in royal administration 30-3,

accuser in appeal 723 263-4, 489, 503

alleged disseisor 615 blinding 186-7, 390, 401, 463, 481, 741

debt cases 701, 706 blodwite (fine for shedding blood) 390 Forest plea 476 boc see charters heir in dower case 801 bocian (to grant by charter) 98 minors who had been appealed 722 bookland 93-8, 105, 107-8, 114, 116-17, 119-23,

suspect or accused 414, 723-4, 739, 827 125-8, 137, 141-2, 147, 192, 246 warrantor, in case concerning movables 689 alienability 97, 126-7, 136-42

attachment, court of (Forest) 476 bequest 126-8

INDEX OF SUBJECTS Q29 jurisdiction over cases gild merchant 815, 818, 841 involving 50, 63-4, 104 government 814-18

rights granted 95-6 justices, right to choose 816

borchbreche (breach of protection) 387 mayors 815

bordars 209, 420, 428 officials 815-17 borough courts 32, 35, 37, 47, 56, 816-26 see privileges 812, 813-18, 826-8, 840

also folkmoot; gild assemblies; royal officials, right to exclude 817 husting court; portmoots; sake and sheriffs 816-17, 825-6

soke; ward courts terminology 85, 813-14

composition and suitors 820-2 bot see compensation

jurisdiction and business 822-4 botleas (uncompensatable) 181, 183-4, 400-1 borough law 812-43 see also borough courts; botwyrde (compensatable) 181

boroughs; burgage tenure; bur- boundaries, tracing 92, 142-3 gesses; Five Boroughs; gild merchant bows and arrows 459, 469, 473

accusations or claims, bringing 827 ‘Bracton’, De legibus et consuetudinibus

amercements 832, 842-3 regni Anglie

appeal 828 age of majority 805

battle, trial by 328, 828-9 attornment 659

compensation 832 authorship 873

compurgation 842-3 battle, trial by 731

crown pleas 816, 829-30 disclaimer of service 641

debt 826 dower 798, 802 distraint 825-6 eyre 544, 546, 736-7 eyre 813 frankalmoign 558 homicide 826-7 frankpledge 717

judgment 831 jury of presentment 736 marriage 841-2 maritagium 649 merchet 839-40 mort d’ancestor 605

minors 842 movables 678 miskenning 828 sanctuary 398

mort d’ancestor 831 seisin 672, 674-5

movables 838-9 status 759

Norman Conquest, influence of the 813 Utrum 567

novel disseisin 831, 843 wardship 810

nuisance 831 Bracton’s Notebook 791

oaths 829-30 branding 401

procedure 824-32 brawling 5

proof 828-31 breach of faith see faith punishment 831-2 Bread, Assize of 823

recognitions 830-1 bribery 9

security of tenure 833-4 bridge work 97, 109, 116

status 839-41 Britton 609

theft and violence 827-8, 831-2 building regulations, urban 823-5

tolls 817-18 bureaucratisation 535

wager of law 829 burgage tenure (burgagium) 632, 809, 833-8

wardship 841-2 burgesses 814, 818, 825-9, 839-41

writs 813-14, 827 Burghal Hidage 109

boroughs see also aldermen; borough courts; burglary 165-6, 185, 714, 831-2

borough law; burgage tenure; burh see boroughs

burgesses; Burghal Hidage; burial

communes; Five Boroughs bodies left to churches for burial 379 bailiffs 815, 816 Jews 519

burh, meaning of word 85 unconsecrated ground 31, 74, 84, 196

charters 812, 813, 816, 825, 827-8, 840-2 burning, as death penalty 186, 741 commercial and governmental privileges 816-18 butts, filling of 63

councils 815 buzones (leading members of county

farm (firma birgi) 817 court) 551

930 INDEX OF SUBJECTS canon law 18, 258, 435-6, 531-3, 670-1, 685-6, children see also illegitimacy; minors

853 see also Carthage; Collection royal, lands associated with 110 in Seventy-Four Titles; Collectio chirographs 522-3, 542, 707 see also final

canonum Hibernensis; Gratian; concords

Wulfstan’s collection Church see also Church reform; churches;

divorce 441-3, 784 clergy; Councils; ecclesiastical

Magna Carta, influence on 849-50 courts; ecclesiastical lands;

marriage 226, 235-6, 435-6, 438, 443-4, illegitimacy; marriage; papacy;

776-8, 781-2, 841 Peter’s Pence; synods; tithes

sanctuary 397-8 customs, royal 513-14

Canons of Edgar 64 dues 31, 57, 166, 186, 192-3, 298

capital punishment see death penalty influence on conduct of disputes, of 6-7

Capitularium of Ansegisus 246 peace of, breach of the 398, 401

caput (head) of an honour or barony 633 Church reform

Cartae baronum (1166) 880 Benedictine monastic in1o" century 18

Carthage, canon of 231 Gregorian 256, 436 carucage 634 churches see also Church; Church reform;

castles 285, 355, 509 clergy; ecclesiastical courts; castration 187, 389, 401, 463, 481, 741 ecclesiastical lands

casus regis (royal succession problem) 237, 650-1 bodies left to churches for burial 379

catechumenate 252 hundred courts in churchyards 554

cattle see livestock Mmanumission in 426

cauldron, trial by see ordeal presentation 520, 541, 568

cause communes and cause capitales, sanctuary 175-6, 397-8, 719 distinction between 385 claims, bringing see accusation or claim

ceaplond (purchased or acquired land) 139 Clarendon, Assize of (1166) 498-9, 507, 514-16, ceorls 116, 167, 194, 202, 208-9, 211, 419, 422 518-19, 526, 553, 555-6, 562, 564-5, ceremonies, rituals see also faith; fealty; homage; 710-11, 715-17, 736-42, 747, 753-4, 822

livery of seisin; manumission Assizes of Northampton (1176), relationship

alienation of land 141, 143, 358-9, 654 to 518-19

coronation 19 enforcement 515-16, 747 earls, creation of 417, 750 novel disseisin 610

end of disputes 92, 621 Clarendon, Constitutions of (1164) 513-14 marriage 231-2, 439-40, 444, 782-3 advowsons 541

personal lordship 221 Bracton 567

sanctuary dispute 720 criminous clerks 514, 532, 770-2

chains, holding people in 75, 311, 439 debt 698-9 champions, in trial by battle 533-4, ecclesiastical courts 298, 567-8

599-600, 603 movables 686

chancellors 270-1, 500, 536, 582 Utrum 608, 669 chancery 270-1, 509-10, 581-2 villeins not to be ordained 757-8 charters 34, 93, 96-7, 101-2, 141-2, 348-50, clergy 89, 218-20, 428-9, 316-17, 750, 768-73

353, 359-60, 364-7, 372, 594-5, 859 see see also abbots; archbishops;

also bocian; bookland; boroughs; archdeacons; bishops; deans; coronation decrees; Forest; forgery; ecclesiastical courts; marriage;

Jews; Magna Carta monks; rural deans chattels real 678 executors, acting as 684

chattels see movables battle, participation in trial by 429 chevage (payment showing continuing jurisdiction over 219-20, 768-72

subjection to lord) 288, 422 legal learning 316-17

chief administrators and regents 29-31, offences committed 219-20, 429, 472, 567,

260-3, 472, 489, 500-3, 545, 771 747, 768-72

archbishops of Canterbury 30-1, 261 ordeal 429

chief justiciars 260-3, 472, 500-2, 545, 771 royal justices, acting as 504

members of royal family 261-2, 500 sheriffs, acting as 265 chief justiciars see chief administrators and wergeld 219

regents cliffs, throwing women from 186

INDEX OF SUBJECTS 931 cloth 153, 257, 379, 524 relief 418, 454

coinage see also false coining wardship 452, 454

clipping 524 coronation oaths and promises 19, 257-8, 498,

sceattas 201 510, 848 see also coronation decrees

Close Rolls 525, 620, 700 coroners (keepers of pleas of the

coliberti (freed men) 211 crown) 508-9, 554, 719 Collectio canonum Hibernsenis 246 boroughs 816, 824

Collection in Seventy-Four Titles 438 inquests 515, 718-19

collusion 36, 167, 542 introduction 508-9

coloni 211, 216 rolls 554, 736, 745-6 definition of 211 corruption 9, 13

comital land 111-12, 139, 339 cotlyf (hamlet) 98 commendation 120, 220-4, 433-4 cottars 208-9, 420

commercial regulation 21, 519, 523-4,526-7see Councils also Ale, Assize of; Bread, Assize of; Clarendon (1164) 513-14, 770 see also

Wine, Assize of; Clarendon, Constitutions of

borough law 816-18 Clarendon (1166) see Clarendon, Assize of movables, sale of 152-3, 379 Lateran Council, Third (1179) 520

Sunday trading, prohibition of 153, 379 Lateran Council, Fourth (1215) 778, 782

common knowledge 79-80 Lillebone 511-12

common pleas, to be held in fixed place 851 Northampton (1176) see Northampton,

communal land 106-7 Assizes of communes, urban 815-16 Toledo 145

compensation 11, 166-7, 177-84, 198-9, 201-2, Westminster (1102) 435-6 247, 409-12, 728, 744, 832 see also Westminster (1125) 436 angild; damages; healsfang; manbot; Westminster (1163) 769-70

pardon; wergeld Westminster (1175) 698, 783 punishment 178 Winchester (1076) 435, 439-40 compromise see settlement Windsor (1179) 520, 600 degree of distinction from Westminster (1200) 777, 782

compurgation 81, 842-3 see also oaths; wager counsellors, role of 23-5, 259

of law counterfeiting see false coining; forgery

concubinage 236 countergifts 358

confession, by offenders 87, 300, 720, 733 counties, establishment of 38

consent county/shire courts 34, 47-50, 57, 251, 266-9,

alienation of land 129, 139, 359-66, 371-2, 276-80, 282-4, 298, 306-7, 388, 491-2,

653, 655-9, 667 550-4, 569, 571-3, 724-5; 746

betrothal and marriage 230, 437-9, 665-7, composition and suitors 49, 204, 550-1

778-82, 863 jurisdiction and business 48-50, 57, 279-80, legislation 259-60 551-3 Consiliatio Cnuti 392 courts 43-65, 140-3, 273-302, 488-9, 537-73

constables of royal castles 509 see also borough courts; county/

contract see agreements shire courts; ecclesiastical courts; coram rege (in king’s presence), court see Exchequer; folcgemote; folkmoot;

king’s courts Forest; franchises; gild assemblies; cornage, tenure 635 hallmoots; honorial courts; huncoronation decrees and charters 260, 315 dred; husting court; justices; king’s

amercements or fines 403-4, 746 courts; lathes; leets; lords’ courts;

bequests 378 manorial courts; portmoots; reeves; dower 450 sake and soke; sheriff’s tourn; “small false coining 389 hundred’; swanimote; synods; transForest 463, 467 fer of cases ; vill courts; ward courts

intestacy 377-8, 680 terminological difficulties 43 king’s peace 388 court (i.e. right to hear case), claiming 301, maritagium 447 558-60, 565, 818 marriage 438-9, 454 crime see offences; pleas murder fine 408 crusades 328, 483, 501-2, 521-2, 529, 547, 848

932 INDEX OF SUBJECTS curses and maledictions 99, 141, 277, 359 private debt 697-703

curtesy 451, 804-5 Roman law 696, 702

custody wardship writs customsee Decretum see 700-2 Gratian

county 588, 794-5, 854-5 deer 459, 463-5, 469, 471, 479-80

Danelaw 248-9 default judgments 72, 311, 586

diversity or uniformity, degree of 36-7, 491, default of justice 45, 250, 275, 512-13, 526,

533, 795, 854-5 528-9, 558-60, 569, 625-6

honorial 650 defence of the realm, decree concerning

Ireland, English law and custom to be (1205) 752 observed in 526 denial 75-6, 313, 480, 592-3, 695, 701-2, 728-31

realm 853-4 see also exceptions

customs and services, writ of 641, 647 dependent tenure see lordship and

cwide see wills landholding

detinue 697 see also debt

damages 412, 619 see also compensation devil 169, 306, 390

Danegeld see geld Digest, Justinian’s 672

Danelaw 67, 88, 162, 172, 188, 218, 245-6, disafforestation 468, 474, 482-3

248-9, 409 disciplinary jurisdiction 341-4, 636-45, 661-2

darrein presentment, assize of 520, 604-7, 614, discretion, age of 438

618, 623 discretion, issues involving

introduction of 520, 607 death penalty 185

de cursu (of course), writs 571, 582, 620 Forest laws 467

de dote admensura, writ 803-4 relief 350, 633

de recto (of right), writ 577-9, 580-603, 626, 622 succession 128, 344-5, 671, 775, 842

deans 511, 565-6 villeins 422

death penalty 12, 48-9, 155, 162, 164, 168, disinheritance see also escheat; forfeiture 181-7, 191-6, 255, 388-9, 399-401, 463, alienation of land, resulting from 361, 364,

480-1, 740-1, 748 653, 656, 658-9

age where subject 168, 399, 401 disciplinary jurisdiction 120-1, 341-3, 636-7, beheading 186-7 639, 642 botleas offences 181, 183-4, 400-1 punishment for offences 740, 742

burning 186, 741 waste, resulting from 804

drowning 185-6 disobedience (oferhyrnesse), fine for 189-90 forfeiture and 182, 192-3, 402 novel disseisin; seisin hanging 186-7, 401, 741 distraint 54, 266

executioners 741 disseisin 12-13, 638-9, 641, 661-3, 665 see also

outlawry and 192-3, 414 aids 557

stoning 186 attendance at court 311 summary execution 414 debt 41, 696, 700, 825-6

throwing women from cliffs 186 Services 341-3, 511, 519, 612-13, 636-41

wergeld and 182-3, 185 diversity and uniformity of law 533, 842

deathbed gifts see also testamentary Angevin England 527-8, 534, 625, 795, 853-7

succession; wills Anglo-Norman England 490-2, 795

land 362, 366, 656-7, 660 Anglo-Saxon England 36-7, 247-9

movables 686 Forest 465-6

debt 41, 695-708, 773-5, 823, 826 see also faith; divorce, annulment, separation 233, 441-3, 784

gages; usury documents see also bocian; bookland;

distraint 41, 696, 700 charters; chirographs; Domesday Jews 706-8, 773-5 Book; Fonthill Letter; final jurisdiction 698-701 concords; forgery; leases; wills; writs king, to the 684, 703-6 oral testimony, preference for 320 loan from cause of consumption (mutui) 696 proof, documents as 80-1, 320

loan from cause of sale (venditionis) 696 technical readings 625 loan from deposit (deposito) 696 dogs or hounds 244, 457-8, 469, 473, 476,

loan from letting (locato) 696 479-80 loan from use (commodato) 696 dom (law) 244

INDEX OF SUBJECTS 933 dombec see law-books homage 798-9

domboc (Alfred’s laws) 24, 164 jurisdiction 802-3

Domesday Book 119-20, 224, 878-9 Magna Carta 795-6, 798

adultery 232-3, 440 nominated 447-8, 792, 794, 800-2 archbishops of Canterbury, judicial non-nominated 447-8, 792, 794, 800-2 privileges of 294 post-marriage acquisitions 794-6

assarts 460 services 798-800

battle, trial by 325-6 warranty 801

boroughs 812, 813, 820-1 waste 798-9, 804

burgess, meaning of 839 writs 803-4

ceorls 41 dowry 237-8 see also maritagium

death penalty 185, 400 drengage, tenure 147, 635 evidence, used as 320 drengs 207, 340, 418

Exon Domesday 111 drunkenness 390 fines 188, 403-4, 409 duel see battle Forest 455, 458, 460-1, 466 Dunseete 206

free men 419, 839

geneats 207 ealdormen and earls 17-18, 33-7, 39-40, 45, 46, hundred and wapentake courts 65 48-50, 202-3, 264-5, 416-17, 503, 750

judicial privileges 52, 294 see also comital land judicial profits 36 ceremony for creation of earl 417, 750 king’s peace 386-7 ealdorman’s peace 34-5

land 93-5, 102, 105, 111-12, 115-20, 835-6 earl’s third penny (profits from justice) 35-6,

alienation 138, 836 264-5, 503, 750

bookland 95, 117 hereditary claims 203, 416-17, 750

comital land 111 lapse of earldoms 264

fee 117 264-5, 503 fee farm 338 peers, trial by 417

ecclesiastical land 371 participation in royal administration 33-4,

folkland 105, 117 subordinate ealdorman 33

inheritance 123-5, 129-30, 356 supra-shire authority, lack of

leases, loanland 102, 115, 138 institutionalisation of 37

reeveland 112 earnest 688

manor courts 62 earningaland, erninglond (land held for

movables 838 services) 106 ordeal 325-6 ears, cutting off 186

outlawry 197-8 ecclesiastical courts 63-4, 297-300, 493, personal lordship 224 511-12, 565-8, 604, 607-9, 669, 747,

royal officials 39, 41 768-72, 858-9 see also synods

seisin 337 adultery 783-4 sheriffs 39 advowsons 568 slaves 218, 424-5 agreements 692-3 status 200, 208, 211, 416, 419, 839 alms tenure 567

thegns 206 archdeacons 299, 565-6 vill courts 62, 65 auditorium 565 villeins 419-20 bishops’ 297-300, 565-6

witnessing 319 bookland 63-4

Domesday Inquest 419, 516, 878 clergy 220, 429, 768-42

commissioners 270 Constitutions of Clarendon 298, 567-8

doomsmen (judgment men or lawmen) 88 debt 698-9 dower 446-51, 792-804 see also widows faith, breach of 698-9

alienation 366-7, 449-51, 796-801 illegitimacy 785

assignment 798 king’s courts, relationship to 768-72

battle, trial by 801-2 movables 682

clandestine marriage 792 prohibition, royal writs of 568 definition and vocabulary 447-8 Utrum 604, 607-9

exchange 450, 801-2 writs 297-9, 568

934 INDEX OF SUBJECTS ecclesiastical lands 122-3, 143-7, 246, 334, grand assize 601-3 340-1, 369-73, 667-70 see also alms mort d’ancestor 617-18 alienability 144-6, 148, 359-64, 370-2, 655, 667 novel disseisin 617

bookland 122-3 recognitions 593, 617-19 consent to gifts 371-2, 667 types

escheat 667 bastardy 617 fee 567, 607, 668-9, 670 hatred and spite (odio et atia) 729-30

jurisdiction 63-4, 493, 567, 669 exchange of land 103, 145-6, 334, 427, 450, 601

lordship 373 616, 801-2

leases 123, 145-7, 340-1, 370-1 following failed warranty 337, 346, 597-8, monastic community, lands associated Exchequer 263, 275, 502-3, 505-7, 517, 523-4

with 144-5, 148, 370-1, 667 barons of 275

perpetuity 143-4, 370 court for non-financial cases 275, 516,

personal land of clerics 144 539-40, 543 royal permission for alienation 372 debt 708

secular services 369, 668-9 final concords at 539-40 spiritual services 668 Exchequer of the Jews 543, 708, 774

economic change 21, 218, 245, 373 see also excommunication 7, 130, 145, 175, 311,

manorialisation 331, 513, 515

education see legal learning excuses for non-attendance at ‘Edward and Guthrum’, Treaty of 185-7, 191, court see essoins

227-8 execution see death penalty

eloquence 76, 314, 317, 488, 498, 845 executors 684-5

enfeoffment see grants exigent 724

enforcement, of judgment 12, 91-2, 331-2, exile see abjuration of the realm; banishment

621-2 Exon Domesday 111

English and Englishmen after 1066 extortion 468

land claims, Henry II decree concerning 511 eyre 269-70, 280, 505-9, 518, 522, 524-6, 530,

language 415, 868, 874 537-8, 544-8, 736-7, 746 see also

procedure concerning 322-3, 327-8 articles of the eyre; courts; justices;

suitors, influence of 322, 332, 415 transfer of cases

enquiries 320-2 see also inquests; quo boroughs 813, 825

warranto; recognitions chief justiciar’s participation 501, 544

enslavement, penal 194-5 final concords 544 entry, writs of 525, 527, 620-1 income from 522 Episcopus (tract) 32, 212 lesser visitations 548 erninglond see earningaland jurisdiction 546-7

escape by offenders 33-4, 74, 176-7, 182, 191, politics, matters relating to recent 547 193, 197, 205, 392, 408, 720, 747 see records 545, 547-8 also flyma; flymanfyrm6d; fugitives; summons 546

outlawry Westminster, relationship to court aiding escape 168, 197, 205 at 544, 546-7

escheat 646, 667, 807-8 eyre, Forest see Forest esplees 673-4

Essoiners, Assize of 517-18 faith see also fealty

essoins (excuses for non-appearance in breach of 404, 566, 568, 692, 698-9, 705-6 court) 312, 517-18, 542, 579, 588-91, pledge of 101, 319-20, 406, 452-3, 588, 621, 596-7, 602, 615-16, 620, 624, 728-31, 860 654, 692-3, 698-9, 701, 705-6, 781, 788

de malo lecti 588-90, 615, 620 false coining 715

de malo veniendi 588,590 officials colluding 167 de servicio regis 588 officials to watch out for 175

de ultra mare 588 punishment

evidence 79-81, 97, 723, 729 see also blinding 401 documents; proof; witnessing castration 389, 401 exceptions 76, 316, 593, 617-19, 625, 728-31, 818 death 184, 389

appeal 728-31 loss of hand 186, 246, 389, 401

darrein presentment 618 false imprisonment see imprisonment

INDEX OF SUBJECTS 935 false judgment, pleas of see judgment non-attendance 72 falsifying see false coining; forgery oferhyrnesse (disobedience) 72, 189-90 fama (reputation) 435-6, 737 see also ill-repute sanctuary, breach of 397-8

family see kinship stengesdint 839

farm see fee farm; feorm terminology 188

farm of borough (firma burgi) 95, 817 wergeld as amount 188, 190-1

fasts 31 fines (agreements) see final concords

fealty fisheries 140

lordship and landholding 355-6, 431-2, 434 Five Boroughs (Derby, Leicester, Lincoln,

oaths 163-4, 431-2, 434 Nottingham, Stamford), court and

personal lordship 433-4 law of 46, 63, 66-7

feasts 31 flight see fugitives fee, land held in 117, 334, 335, 339, 348, 363, 627, flyma see fugitives

632, 635, 652, 664, 668 flymanfyrmo (fine for harbouring a fugitive) 294

Domesday Book 117 folc 47, 103, 248

ecclesiastical fee 567, 607, 668-70 folcegemote (public courts or meetings) 38,

lay fee contrasted with ecclesiastical 668-70 47-8, 221 fee farm 338-41, 363, 449, 627, 629, 633-5, 642, folcleasunge (public slander) 167, 186

668, 809 folcriht 37, 73

socage and 633-4 possible meaning of 247-8

feet, loss of 514-15, 518-19, 741 foldsoke (right to manure) 59 feet of fines 522-3, 527 folkland 37, 102-8, 112-13, 116-17, 139, 189

felony, as category 711 folkmoot, London 818-21 feorm (farm) 95 Fonthill Letter 44, 78-81, 120-1, 239, 274, 474 festermen see sureties forced attornment see attornment

fetters 307 fore-oaths see oaths feudal incidents see escheat; lordship and Forest 455-86 see also Forest, Assizes of the

landholding; Magna Carta; administration 461-3, 466-74, 481, 485-6 marriage; relief; wardship afforestation/disaftorestation 468, 474, 482-3 feud 166, 169, 173-4, 179, 199, 395-6 see also amercements and fines 460, 463, 465-6,

compensation; healsfang; vengeance; 469-70, 478, 481

wergeld aristocratic hunting rights 464, 467 fief see fee arrest 462-3, 478-9 final concords 539-40, 544, 578, 618, 692 assartS 460, 462-4, 470-1, 474, 477, 481-2 alienation of land 573, 654-5 attachment, court of 476

collusion 542 battle, trial by 480 feet of fines 522-3, 527 blinding 463, 481

fines, wites (monetary penalties) 45,104, bows and arrows 459, 469, 473

188-91, 403-5, 547-8 see also caught in the act, offenders 478-9 amercements; forfeiture Charter of the Forest (1217) 476-7, 483-4

adultery 440 clergy 472,772

bookland, king entitled to fines from common law and Forest law 853

holders of 45 concessions 463-4, 467, 482-4

bookland, withholding another’s rights corporal punishment 480-1

in 104,189 courts 475-8

ceorls 194 creation of forests 458-9

communal fines 188, 249, 386-7, 404-9 cultivation 464

Danelaw 188 death penalty 463, 480-1

folkland, withholding another’s rights deer 459, 463-5, 469, 471, 479-80

in 104, 189 dogs or hounds 457-8, 469, 473, 476, 479-80

forgylde 191 Domesday Book 455, 458, 460-1, 466 fyhtwite 188 exclusion from living in 482 fyrdwite 50, 58, 188 extent 458-9, 465, 468-9 king’s mund or protection, breach of 190 eyres 461-2, 466-7, 471-4, 485, 524-5

king’s peace, breach of 178, 386-8 1199-1201 474

lahslit 188 1207-10 474 murdrum 404-9 1212 474

936 INDEX OF SUBJECTS Forest (cont.) movables 163, 173, 192-3, 232-4, 329-30, income 466-7 402-3, 414-15, 513, 515, 724; 741-2, 747

procedure 478-82 office 33-4

fuel, wood for 466 forgery, of documents 58, 320, 518-19,

grazing 476 546, 711

hambling dogs 469 forgylde (fine for theft) 191

hares 465 ‘forms of action’ 577-8

hewing wood, offence of 459-60 forsteal (obstruction or assault on royal hunting rights 455-9, 463-9, 472-5, 482-3 roads) 50, 58-9, 291, 294, 330, 338

imprisonment 481-2 fortress work 97, 109, 116 Inquests of Sheriffs 471 franchises 58-62, 291-7, 556, 562-5 see also latrones (poachers) 482-3 banleuca; flymanfyrmd; forsteal;

Magna Carta 483-4 fyrdwite; gridbryce; hamsocn; offences 455, 459-84 mundbryce office, purchases of 468 baronies 296

officials 474-8 immunities 61, 563

agisters 475, 476 infangentheof 60, 289-91, 294, 562

chief foresters, chief justiciars pleas of the Sword 564

of Forest 468, 471-4, 477-9, 779 private hundreds 57, 60-2, 284-5, 289-91

custodians 456 return of writs 563 foresters 461, 466, 468, 470-1, 474-83 sake and soke 59-62, 207-8, 284, 289-91, regarders 475 294, 417, 431, 562, 751

serjeants 461, 475 tolland team 60, 76, 289, 294, 404, 417 verderers 475, 476, 479 view of frankpledge 562 wardens 475 frankalmoign see alms officials, criticism of 468 frankmarriage see maritagium

officials, Domesday Book 461 frankpledge 170-1, 391-5, 415, 422, 555-6, 562, officials, offences by 470-1, 477, 481 717, 753 see also mainpast; sheriff’s

Oxford Charter, King Stephen’s 463 tourn; tithing

pannage 466, 476 definition 170, 391 pleas of the Forest 459-62, 469-71, 478, 484-5 friborg 391

pledges 479, 481 membership 392 procedure 462-3, 478-82 view of 562

punishment 455, 462-3, 478-82 fraudulent concealment 713 purpresture (encroachment) 460, 470, 477 fre lond (free land) 106 regard (visitation of the woods) 462, 477, free alms see alms

479-80 freemen 207-12, 418-21, 751-2, see also bur-

rental payments 482 gesses; freed men; sokemen repair of houses, wood for 466 arms, bearing of 421, 752 revenue, as source of 461, 467 changing status 212, 419-20

rolls 456, 470 disputes over status 764-7

swanimote 475-6 frankpledge membership 74-5, 717 vert, rights over 459-60, 470, 472-6, 481 freedom as a possession 752 warren 464-5, 484 king’s courts, access to 752

waste 460, 464, 470, 477 free tenements, characteristics of 661-2,

woodwards 475 665-6 see also landholding, forms Forest, Assizes of the of; tenures 1184 474, 477-9, 481, 485 freed men 211-12, 217 see also free men;

1198 474, 481 manumission

Prima assisa 472, 480-1 becoming free 761-3

forfeiture 33-4, 120-1, 163, 173, 192-4, 199, coliberti, definition of 211 232-4, 329-30, 341-3, 402-3, 414-15, lising, definition of 211 440, 513, 515, 639-41, 724, 741-2, 746-7 _ friborg see frankpledge

see also disciplinary jurisdiction; frid (peace) 162, 386

disinheritance; escheat fridstool (peace-stool, in sanctuary) 397-8

land 120-1, 163, 173, 192-3, 234, 329-30, fugitives 73, 196-7, 414, 724 see also outlawry

341-3, 402-3, 639-41, 742 unfree fleeing 757-8, 764

INDEX OF SUBJECTS 937

198-9 executors 684

fyhtwite (fine for fighting) 50, 58, 179, 180, 188, essoins 588-90

fyrdwite (fine for failing to perform military eyre 746

service) 50, 58, 188 false coining 715

false judgment 572 gafol (rent) 106, 117, 120-1, 482, 614, 833 see also felonies 711

hawgable; landgable forfeiture 742

gages fugitives 764 attendance at court 310-11 grand assize 600-3

gafolland (rent-paying land) 106, 117, 211 franchises 562

battle, for trial by 731 homage 433, 631

debt 305-6, 695-6, 698, 701-2, 707-8, 773-5 homicide 714, 826

mortgage 698 husband and wife 787-8 sale of movables 381 illegitimacy 784-5 vif gage 697 king’s peace 388, 713

game see Forest land 336, 350, 352-4, 574, 577-93, 599-630,

gaol delivery 548 632-3, 642-4 gaolers 509 alienation 653, 655-6, 659-60 gavelkind 352, 635, 649, 751, 794, 799 ecclesiastical 668-9

geburs 210-11 inheritance 642, 645-9, 652, 677

geld 120, 384, 421 leases 662-3

geneats 113, 117, 206-7, 210 lése majesté 498, 712-13, 715

geneatsland 106, 113, 114 lesser offences and trespass 743-5

gereednes (decree) 244 lord-and-heir rule 651-2 GePyncdo (tract) 117, 200, 202, 205 maritagium 787-9, 791 gifts of land see alienation marriage 780-1

gild assemblies 65 minors 452, 805, 842

gild, Cambridge thegns’, regulations of 174 mort d’ancestor 604-5 gild, London peace-keeping see law-codes, mortgages 698

Anglo-Saxon (VI #thelstan) movables 678-9, 681-6, 839 gild merchant 815, 818, 820, 841 novel disseisin 609, 613-14

Glanvill pleas 576-7, 676, 711-16, 743-4 authorship and characteristics presentment 735-6 dilemmatic method 532, 588 private war 11-12

legal learning 490, 864 proof 731-2

norms 861 recognitors 615

possible authors 872-3 royal justices 505-6

reason 532 seisin 603-20, 670-2, 674, 676 Roman law categories and services and disciplinary

vocabulary 498-9, 531-2, 572, 576-7, jurisdiction 636-8, 640-1 671-2, 676, 678, 696-7, 702-3, 712-13 status 753-4, 758-64

issues covered theft and violence 710-16 accusation or claim, bringing an 722-3 transfer of cases 569-72 agreements 691-3 treasure trove 713

appeal 721, 728 Utrum 607-9 attorneys and representation 586-7 wardship 453, 807-8, 810, 842 bailment 687 warranty 597-8, 616 battle, trial by 599 women 647-9, 732 borough law 826, 831 writs 535, 577-8

county courts 552-3 godparents 243 see also spiritual kinship criminal pleas 712-16 “Golden Rule’ (Matthew 7:12) 22 debt 532, 678, 691, 696-702 Gospel books 92, 142, 210, 216-18,

distraint 700 235, 570-1 divorce 784 grand assize 499, 520, 527-8, 534, 569, 592, dower 792-802 600-3, 606, 629, 692, 751

ecclesiastical courts 567 introduction 520, 600

entry, writs of 620 special issue 593, 603

938 INDEX OF SUBJECTS grants see also alienation; bookland; wardship 453-4, 807-8, 810

deathbed gifts; dower; warranty and 584,595

ecclesiastical lands; inheritance; women 432, 631, 647-8 leases; maritagium; movables; writ de homagio capiendo 583-4, 595, 600, 756 subinfeudation; substitution; homicide 5, 11, 16-18, 169, 178-9, 183-4, 192,

surrender and admittance 194-7, 201-2, 215, 219-20, 255, 387, 401,

earldoms 750 409-10, 514-15, 525, 714, 722-5, 826-7 franchises 562-3 see also accidental killing; murder Gratian, Decretum 531 (moro); pardon adultery 440 liability and responsibility 169, 391

divorce 441 rate 714

marriage 437-8 self-defence 412, 743

status 758-9 homilies 26

grazing 476 honorial courts 284-8, 556-61 see also lords’ grid (peace, protection) 249, 386 courts gridbryce (offence of, or fine for, breach autonomy, degree of 287-8 of peace or protection) 59, 61, 162-3, castles, meetings in 285

291, 294, 330 records 560 size 286

hallmoots 62, 284, 289, 291 see also manorial horses 61, 153, 424, 704

courts; vill courts housebreaking (husbryce) 165-6, 401

hambling of dogs 469 households

hamfare, heinfara (assault) 294, 388 kings’ 41, 179, 529 hamsocn (assault on a person in a house, or lords’ 56-7, 73, 170, 221, 223 possibly the house) 20, 50, 58-61, hue and cry 171, 178, 395-6, 522, 722-4, 736

165-6, 173, 184, 291, 330 hundred and wapentake 35, 47, 50-5, 59, 62-5, hand, punishment by loss of 186, 246, 401, 250, 280-4, 289-91, 554-5 see also

518-19 Hundred Ordinance; serjeants

hanging 186-7, 401, 741 assembly sites 50-1, 554 harbouring offenders 167-8, 183, 184, 193 see borough 820

also flymanfyrmd churchyards, courts taking place in 554 hares 465 see also warren groups of hundreds 35, 47, 51-2, 55

hatred and spite see odio et atia jurisdiction and business 51, 54-5, 282-3

haute justice 851 police aspects 51-3, 169-71, 282

hawgable (house rent) 833 private hundreds 57, 60-2, 284-5, 289-91 healsfang (compensatory payment to close kin records 554-5 of slain man) 179, 180, 188, 199, 410 sake and soke 59, 62 heirs and heiresses see also alienation; inheritance; suitors 51-3, 62, 422

lord-and-heir rule; wardship Hundred Ordinance 52, 170, 180, 197, 222-3 debts, obligation to pay ancestor's 681-2, 684 hundred, small (sub-unit of wapentake) 188,

role in executing ancestor's bequests 681-2, 684 283, 386

heregeatland (heriot land) 106, 123-4 hundredmen 41

heretics 515 hunting see Forest heriot 123-4, 205, 666 see also heregeatland; huntsmen 456, 461

relief husband and wife, law relating to 237-41,

Hic intimatur (‘Ten articles of William I’) 869 445-51, 786-805, 841-2 see also

Hit becwed (tract) 247-8 curtesy; dower; dowry; maritagium; homage 334-6, 348-9, 364-6, 431-4, 583-4, 631, marriage; morning-gift; wives;

637-8, 645-8, 651-2, 659, 755-6 see widows

also lord-and-heir rule gifts for acceptance of dower 798-9 husband ’s suit 238 maritagium 787-9, 791 gifts from wife's kin to

minors 646 bridegroom 237-8, 446-7, 786-91 multiple lords 432 wife’s liability and responsibility for new lord, on succession of 642 husbands’ offences 168

not for lordship alone, except to king 433 husbryce (house-breaking) 165-6, 401

unfree, by 758 husting court 818-20, 822, 826

INDEX OF SUBJECTS 939 illegitimacy 236-7, 444-5, 681, 784-6 minors 354, 646-7, 649-51 acknowledged and unacknowledged nomination of successor 355

children 236-7 parage, for heiresses 353-4

Church, attitude of 237 partible 125, 351-4, 635, 647-50 ecclesiastical courts 785 past service, claims based on faithful 355-6 exception of bastardy 617 primogeniture 125-6, 351 presumption of legitimacy 785-6 process 348-50, 645-8 royal succession disputes 237 refusal of 349-50

ill-repute, persons of relief 13, 349-50, 646-7, 652-3

see also fama representation 650-1

abjuring the realm 515 royal intervention in succession dispute 356

accusations concerning 735-40 royal permission 126-8, 130 burial in unconsecrated ground 74 serjeanty 649-50

compensation, double 180 socage 351-2, 647 death penalty 182, 184 unsuitability of heirs 356-7 ordeal 87, 223, 325, 514-15, 739-40 villeinage 368-9, 666

presentments 715, 735-40 Jews 775

sureties/pledges 74 movables 152, 377-9, 383, 680-6, 689-90 tithing 393 intestate 377-8, 680-2 immovables see land testate 378-9, 383, 682-6

immunities see franchises offices 355, 445

imprisonment 75, 195, 307, 311, 521, 523, 525, royal 237, 650-1

724-6, 746 status 206, 423, 758-9, 840

abjuration of the realm after release 481, 525 women 128-9, 352-3, 647-50, 652, 786

debt 705-6 inland 113-14, 207

false 716, 764-5 meaning of 114

Forest offenders 481-2 inquests see also enquiries; juries; gaolers 509 recognitions villeins 716, 764-5, 767 coroners 515

incest 227-8, 237 Domesday 419, 878

indictment see presentment of Sheriffs 471, 506-7, 516-17 infangentheof 60, 289-91, 294, 562 insanity 359

inheritance and succession 93, 114, 355, 378 see Instituta Cnuti 111, 869-70 also deathbed gifts; disinheritance; Institutes, Justinian’s 498, 532, 696 escheat; heirs and heiresses; leases; insult 62, 829 see also folcleasunge

loanland; lord-and-heir rule; mort interest, for debt 306, 694

d’ancestor intestacy 377-8, 680-2

castles 355 Ireland, English law and custom to be ealdormen and earls 203, 416-17, 750 observed in 526 illegitimacy and 236-7, 445, 681, 784-5 iron, trial by see ordeal land 122-56, 333, 347-57 3725 374-5) 494, issues, special 593, 603, 620, 702-3, 862 579-80, 605-6, 629-30, 645-61, 833-7 itinerant justices see eyre; Forest acquisition/inheritance distinction 127,

138-9, 351, 360, 653 Jews bequests 126-36, 833-7 burial 519

bookland 122-3, 125-8 debt and loans 706-8, 773-5 discretion concerning 128, 344-5, 671, Exchequer of the Jews 708, 774

775, 842 gages 707-8, 773-5

family settlements 354-5 inheritance 775 half-blood 354, 356 interest paid to 694, 707-8 heirs of grantee’s body 652-3 jurisdiction 774

heriot 123-4 land 430-1, 773-4

651-2 movables 430

homage and succession 348-9, 645-8, Magna Carta 708

husband and wife 786, 789 murder allegedly committed 431 lord-and-heir rule 651-3, 677, 789 procedure 773-4

maritagium 649, 787-9 records 522, 707, 775

940 INDEX OF SUBJECTS Jews (cont.) king’s peace; legislator; pleas of

royal charters 775 the crown; profits of justice; royal royal control 430-1, 773-4 officials; royal justices; sheriffs status 430-1, 773-5 Christian kingship 21, 271

judges see also lawmen; royal justices; suitors criticisms of kings 845-7

papal judges delegate 565, 568 lése-majesté 498

judgment 87-91, 329-31, 619-22, 625, 731-2, obedience to law 846-7

739-40, 831-2 resistance to royal power 747-8

default judgment 72, 311, 586 kinship 225, 601 see also alienation; false judgment 45, 569, 571-2, 625, 677 consent; debt; healsfang; husband mesne judgment 78-9, 304, 307, 317-18 and wife; inheritance; marriage;

suitors role 35-6, 49, 62, 281-2 prohibited degrees; wardship

jurisdiction see also courts; writ rule spiritual kinship 227-8, 242-3, 437

agreements 692-3 suit of kin 765-6

clergy 219-20, 768-72 knight service 334, 338, 347 see also scutage

debt 698-9 land held by 334-8, 347, 350-1, 369, 632-3,

disciplinary 341-4, 636-45, 661-2 668, 800 dower 802-3 knights 6, 347, 358, 372; 393, 446, 452-3, 472, homicide 553, 714 475, 477-8, 491, 516, 522, 546, 549, 709, Marriage 235, 776-7 746, 766, 803, 809, 847, 849, 851, 855

theft 54, 282, 553, 716 see also knight service juries 514-15, 526, 593, 602-3, 618, 623, 625, 712, age of majority 452 718-19, 729-30, 736-9, 749; 777; 842-3 coroners 508, 547

see also assizes; recognitions essoins, verifying 589 presentment 514-15, 712, 735-40 eyre, and administration of eyre

proffers for 480, 593-4, 729 preparation 546 jus (right, law) 647, 671 jurors to answer articles 546

jus commune 853 see also canon law; Roman Forest concessions 468-70, 483, 484

law grand ASSIZE 499, 520, 602-3, 629, 692, 751

justice see also default of justice; folcriht; movables and debt 679, 704

profits of justice presentment jurors 546, 737-8, 753 access to 9, 851, 855-7 record of county court 554, 572 delay of, selling of 9, 534, 845 relief 350, 633, 646-7

justices see also eyre; royal justices status 416, 418, 751

borough’s right to choose 816 tolt 570

justiciars, chief see chief administrators and

regents lagu (law)Laga244-5 Edwardi (‘Law of [King] Edward’) 244,

keepers of the pleas of the crown 258, 408, 418

see coroners lahslit (fine) 188

killing see accidental killing; homicide; land law 93-148, 333-75, 574-677 see also

murder alienation; husband and wife;

king’s courts 43-6, 273-5, 284, 519-20, 521, inheritance; landholding; lordship 537-50, 624-6 see also common pleas and landholding; security of

Bench 537-42 possession/tenure; seisin; women coram rege 43-6, 275, 538-9, 548-9 land market 580, 661, 837, 843 Exchequer, as court for non-financial landgable, landgafol (land rent) 833 Cases 275, 516, 539-40, 543 landholding, forms of see alodium; alms; eyre 269-70, 280, 505-9, 518, 522, 524-6, 530, barony; bisceopa land; bookland;

537-8, 544-8, 736-7, 746 burgage; ceaplond; comital

Westminster 537-42 land; communal land; cornage;

king’s peace 19-21, 170, 386-9, 528, 716 see also dower; drengage; earningaland;

frid; grid ecclesiastical lands; fee; fee

king’s thegns see thegns farm; folkland; fre lond; free

kingship and law 18-26, 256-60, 271, tenements; gavelkind; geneatsland; 497-500 see also coronation decrees; heregeatland; knight service; leases;

coronation oaths; king’s courts; loanland; maritagium; preostaland;

INDEX OF SUBJECTS 941 reeveland; serjeanty; socage; VI Athelstan (London peace-keeping) 32, sokeland; tenures; term of years; 51, 52, 63, 74, 153, 168, 170, 174, 180, 182,

thegnage; thegnland; villeinage 186, 192, 215

lathes (administrative units in Kent) 283 Alfred 11, 20, 22-5, 27, 32, 34, 47-8, 71, 82,

law see also canon law; custom; Danelaw; 136-7, 151, 163-4, 166-7, 169, 172-3,

jus commune; law and fact; 175-6, 178-80, 182-3, 189-90, 192-5, legal learning ; legal profession; 199, 201, 209, 213-15, 219, 410

legislation; Roman law Cnut 1020 25, 29-30, 32-4, 228

Ireland, English law and custom to be Cnut 1027 25

observed in 526 IT Cnut 20-1, 26, 49-50, 52-4, 56-9, 61, 64,

land or realm, law of the 455, 491, 651, 851, 70-1, 73-7, 80-2, 98, 120, 124, 154,

853, 860 158-9, 162, 164, 167-8, 171, 180-1, vocabulary 205, 207-8, 223, 232, 234-5, 238-9, 350, personal law 248, 332, 448 183-6, 189-90, 192, 197, 200, 202-3,

Ge 22,244 393, 404, 416, 444, 456-7, 487-8

dom 244 II Edgar 113, 192-3

gereednes 244 III Edgar 21, 32, 47, 49, 70-1, 74, 152-3, 181, jus 647, 671 183, 189, 193, 820 lagu 244-5 IV Edgar 27-8, 54, 56-7, 62, 66, 117, 154, 183, 248 Beaw 244 I Edmund 196, 228, 232 law and fact 862 II Edmund 20, 162, 173-4, 179, 180, 184, 192, 199 law-books, post-Conquest see Bracton; III Edmund 171, 187-8 Britton; Consiliatio Cnuti; Glanvill; I Edward 27, 37, 104-6, 153, 156-7, 189

Instituta Cnuti; Leges Edwardi II Edward 37, 48, 73, 163-4, 189, 194, 222

Confessoris; Leges Henrici Primi; Hlothere 155-6 Leis Willelme; Pseudo-Cnut de Ine 27, 33-4, 85, 151, 180, 213, 236, 242

Foresta; Quadripartitus lawmen 88 law-codes 22-6, 28, 259 learning see legal learning

law-codes, Anglo-Saxon, mentioned by name leases 57, 99-100, 115-23, 145-7, 340-1, 370-1,

or quoted in text see also Alfred and 627-30, 662-3, 682-3 see also

Guthrum; Be Blaserum; ‘Edward loanland

and Guthrum’; Episcopus; GePyncdo; alienability 145-6

Hundred Ordinance; Mircna laga; debt 695 Nordéleoda laga; Northumbrian documentation 340-1 Priests’ Law; Ordal; Swerian; Domesday Book 115 Walreaf; Wergeld; *Ymb Awbricas’ duration

‘Ethelberht 240 term of years 340-1 I Asthelred (Woodstock) 45, 66, 74, 154, 180, life 99-100, 662-3 187, 196, 199, 205, 209, 223, 245, 248 two lives 99-100, 340-1

II A&thelred 157-8, 197, 213-14 three lives 99-100 III Acthelred (Wantage) 20, 34, 45, 53, 62-3, four lives 99-100 66, 85, 90, 180-1, 184, 188, 196, 197, forfeiture 120-1

204, 248 free tenements 662-3

IV Akthelred 82, 153, 184, 190, 196 rent 120-1

V Athelred 181, 234, 249 security of tenure 120-2 VI Athelred 25, 26, 66-7, 90, 153, 181, 188, third parties, challenges from 662-3

233-4, 695 leets, leet courts 283, 554 VII Athelred 202 legal devices 863-4

VII A2thelred 153, 167, 177, 181, 184, 189-90, legal learning and knowledge 13-14, 316-17,

219-20 488, 530-3, 858, 860-1 see also

Ethelstan, Ordinance concerning alms 216 canon law; law-books; rhetoric; II Athelstan (Grately) 32, 37-8, 72, 73, 83, Roman law 85-6, 153-4, 168, 172, 181-2, 184, 190-2, Arts, study of the 531

195-7, 214, 221-2 attorneys and representation 587, 860

III Aethelstan (Kent) 32, 49, 196, 209 charter draftsmen 859

IV Asthelstan 25, 153, 176, 186, 193, 196, 209, 222 ecclesiastical courts 858-9

V Zthelstan 25, 193, 196, 204 essoiners 860

942 INDEX OF SUBJECTS legal learning and knowledge (cont.) security of tenure 341

Glanvill 490, 864 slaves 213, 424, 426 legal reasoning 315, 488 status 416

monastic 858sureties stewards393 278 norms 861

novel disseisin 531 transfer of cases between

professionalisation 864 secular courts 301-2

legal profession 864 see also attorneys; villeins 422-3

justices; legal learning wardship 452

Leges Edwardi Confessoris 244, 283, 487-8, witnessing 318-19

530, 694, 846, 870, 872 legislation 26-9, 30-1, 42, 250-1, 258-60,

clergy 428-9 263-4, 455-6, 498-500, 519-21, 524,

compensation 410 867-9 see also assizes; law-codes; frankpledge 392 legislator Jews 430 Carolingian sources for Anglo-Saxon 24-5

king’s peace 387 instructions to king’s justices 499-500 movables, sale of 380, 382 legislator, king as 21-6, 498-500

murdrum 406-9 Christian kingship 24-5, 258-9

ordeal 325 counsel and consent 23-5, 259-60

outlawry 414 Glanvill 498-9 royal pardons for homicide 412-13 royal concession, legislation as 25-6

sanctuary 396-9 legitimacy of birth see illegitimacy; marriage

sureties 393 Leis Willelme, Leges Willelmi

Leges Edwardi Confessoris, London barons 417

version 752, 846 compensation 410-11

Leges Henrici Primi frankpledge 392 accusation or claim, bringing an 308-9, 313 intestacy 377 adultery 105, 440 knight service 347 age of majority 452 land 347, 368

agreements 8 movables 377, 381-2

attendance, ensuring 310-13 mutilation 401 clergy 429 oaths 324 compensation 409-12 pleas of the crown 384

county courts 276-8 pledges 310-11 death penalty 400 relief 350 disseisin 612-13 security of tenure 347 documents 320 status 368, 416-17, 422-3 dower 448 stray animals 377 final judgments 329 stretwarde 393-4

fines 403-5 warranty 381-2 Forest 455, 459-60 wergeld 410

frankpledge 391 witnesses 318-19

hundred courts 281 lepers, status of 772-3

intention 390 treason

inheritance of land 126, 351 lése majesté 498, 712-13, 715, 737; 742 see also

king’s peace 387-8 Lex Ribuaria 448, 452 leases 341 liability and responsibility 168-9, 390-1

legal learning 490 Liber pauperum see Vacarius movables 376-7, 380 liberties see franchises murdrum 405-7 licensing exemption from regulations and

oaths 323-4 prohibitions 21, 482, 522, 524, 658,

offences, classification and types 384-5, 389-90 758 pardons 413 liege lordship 432

procedure 303-4 lising (freed man) 211 punishment 401-2 literacy 17-18, 480-90

remarriage of widows 444 liturgy 440, 448, 570-1, 867

sake and soke 290 livery of seisin 358, 366, 380

INDEX OF SUBJECTS 943 livestock 51, 54, 76, 81, 149-51, 154-5, 165, 172, Magna Carta (1215) 847-63 see also Articles of

174-5, 180, 214, 475-6 see also movables the Barons; “Unknown Charter’ loanland 98-102, 112-14, 116, 118, 122, 138-9, clause 4 809 147-8, 246 see also comital land; leases clause 9 706

Domesday Book 102, 138 clause 17 851 duration 99-100, 122 clause 18 851 restrictions on alienation 98 clause 19 851

succession 100-1, 123 clause 26 683, 706 loans see debt clause 32 742 local knowledge 149, 320-2, 600-2 clause 34 559-60, 851 lord-and-heir rule 651-3, 677, 789 clause 37 634, 809 lords’ courts see also franchises; hallmoots; clause 38 851

honorial courts; hundred and clause 39 851-2

courts clause 45 851

wapentake; manorial courts; vill clause 40 852

Anglo-Saxon England 56-63 clause 54 722

local and royal interests, integration of 62 access to royal justice 851, 855-7

overlords’ courts 549 accusation or claim 722

seignorial jurisdiction, types of 56-8 administration of justice 847-9

lordship 220-4, 431-4 see also commendation; amercements 746

ealdormen and earls; fealty; Angevin reforms 844-5, 847-8, 853-4 franchises; homage; liege lordship; assizes 851

lords’ courts; lordship and burgage tenure 837-8 landholding; mainpast; villeinage constables of royal castles 509

attornment 756 county courts 550-1

influence on conduct of disputes 7, 8 customs 853-5

marriage, seignorial control of 230, 438-9, darrein presentment 614

757, 780-1 debt 706, 708

to 759-61 earls 750

movables, relationship of lord and villein dower 795-6, 798

multiple lordship 432, 453-4, 809-11 entry, writs of 620 overlords 374, 433-4, 549, 569, 571 feudal incidents 454

sureties/pledges 73 Forest 483-4 treason 164-5fee forfeiture 742 types 220-1 farm 634

lordship and landholding 115-20, 148, 333-7, free tenements 661 372-3, 431, 488-9, 630-2, 677, 690, honorial courts 559-60 834 see also alienation; fealty; feudal husband and wife 786 incidents; homage; honorial courts; Jews and debt 708

inheritance; lord-and-heir rule; jurisdiction 851 lordship; manorial courts; ownership; king, law, and justice, relationship

villeinage; wardship; warranty between 845-7

alienability of land 115, 139, 362-4, 836 land 350, 578-9, 848-9

breach of relationship 335-6 legal learning 857-64

ecclesiastical lands 373 marriage 780, 781-2 multiple lordship 373 movables 681, 683-4 new lords, succession of 344-5, 642 peers, trial by 851-2 novel disseisin 612-13 political actions of king 852

Oath of Salisbury (1086) 434 precedents for charter 849-50

overlords 374, 433-4 procedure 851, 853

security of possession/tenure 345-6, 642-5 proper practice, notion of 848-9

seisin 337, 670, 672, 675 recognitions 856

sub-tenants 374, 433-4 reliefs 350

tenurial geography 373-4 remarriage of widows 781-2 title, challenging basis Romano-canonical law, influence of 850 of lord’s 345-6, 642-5 royal disseisins 852-3

‘love’, as opposed to law 8, 90 royal justices, duty owed to law by 846-7

944 INDEX OF SUBJECTS Magna Carta (1215) (cont.) ceremony 231-2, 439-40, 444, 782-3

royal remedies 855-6 clandestine 437, 782-3, 792

sale of justice 852-3 clergy

sheriffs 507 accusations against unchaste clerics 435-6 socage 634 ceremony, involvement in the 231-2, 440

wardship 809 marriage of 435-6, 444

waste 809 coercion by lords 439 women 722-3, 855 concubinage 236

Magna Carta (1216) 483-4, 852-3 consent 230, 437-8, 665-7, 778-82, 863 Magna Carta (1217) 550-1, 663-4, 796, 798, consummation 437, 443, 778

863-4 divorce and separation 233, 441-4, 784

Magna Carta (1225) 853 free and unfree, between 213, 231, 423, 758-9 maimed, not to fight trial by battle 731-2 impotence 441

maiming see mutilation king’s control 438-9, 492-3, 779-80, 811 mainpast 394, 717, 719 see also frankpledge jurisdiction 235, 776-7 majority, age of 241-2, 340, 452, 632, 805-6 lords’ control 230, 438-9, 454, 757, 780-1 malice 70, 172, 330, 853 see also odio et atia Magna Carta 780, 781-2 manbot (compensation to man’s lord) 179, 180, parents’ consent 438

194, 198-9, 410 remarriage 233-5, 439, 440-1, 443-4, 705, 781-2

manorial courts 62, 284, 288-9, 556, 561-2 see slaves 213-14, 231

also hallmoots; vill courts marshal, king’s 705 composition and suitors 289, 561 mayors 815 jurisdiction and business 289, 431, 561-2 meadow 111, 305, 335, 712

records 561-2 Measures, Assize of (1196) 523-4

manorialisation, influence on legal mediation 7-8

development 96, 418, 420 merchet (payment for marriage of Manumission 54, 95-6, 212, 216-18, 425-6 daughters) 230, 422-3, 439, 665-6, 757

bookland 95-6 mercy 20-3, 191, 403-4 see also amercements;

ceremony 217-18, 426 pardons churches, manumission in 426 mesne judgment (intermediate

descendants, effect on 217 judgment) 78-9, 304, 307, 317-18 status from which manumitted fyrdwite; knight service; trinoda

hundred courts, manumission in 54, 426 military service see also Arms, Assize of;

slaves 54, 212, 216-18, 425-6 necessitas

villeins 423, 425-6, 757-8, 761-3, 766 millenarianism 18

wills, manumission in 216-17 bookland owing 97 maritagium (marriage-portion) 366-7, 446-7, fee farm owing 338-9

649, 786-91, 804-5, 841-2 mill-ponds 614

alienability 366-7, 447, 789-90, 841-2 mills 214, 576, 600, 804

boroughs 841-2 minors 168, 241-2, 401, 452-4, 646, 805-11, 842

curtesy and 804-5 see also wardship

frankmarriage 787-91 accusation or claim, bringing an 722

homage 787-9, 791 age of majority 241, 452, 805-6

lord-and-heir rule 789 women 805

markets 153-5, 424, 580, 661, 688, 837, 839, 843 borough law 842

see also toll and team death penalty 399, 401

marriage and betrothal 225-36, 246, 435-45, essoins 579 489, 776-84, 841-2 see also adultery; female 647 agreements; banns; dower; husband homage 646 and wife; illegitimacy; maritagium; inheritance of land 354, 646-7, 649-51 merchet; morning-gift; prohibited mort d’ancestor 579

degrees; widows; wives novel disseisin 579

age of 228-31, 437-9, 778-9, 796, 841-2 miracles 68, 182, 307, 423, 783

annulment 441-3 Mircna laga (tract) 201

Anstey dispute 776-7, 783 miskenning (mis-speaking) 313, 828 canon law 226, 235-6, 435-6, 438, 443-4, missi, Carolingian 40

776-8, 781-2, 841 monetary penalties see amercements; fines

INDEX OF SUBJECTS 945 money see coinage; false coining slaves 187-8, 401-2

moneyers see false coining tongue, loss of 186 monks

offences 429, 768 naifty, action of 552, 765 status 219, 249, 768-70 status) 422-3, 428, 764

property owning 768 nativi (persons born into unfree morning-gift (morgengifu) 129, 238-40, 804 ne vexes, writ 641 mort d’ancestor, assize of 579, 604-6, 610, 614, necessity and alienation 835-6

617-20, 626, 629-30, 645, 661, 664 negotiation 98-100, 143, 176, 319, 335, 350; amercements 619 357-8, 528 boroughs 831 non-prosecution of appeal 725-8 entry, writs of 620 Norman Conquest, influence on law 245, 347, exceptions 617-18 367-8, 813 introduction (Assizes of norms see also law and fact; legal learning;

Northampton 1176) 605, 610 maxims; proverbs

limited range 605 arguments and judgments based on

minors 579 norms 77-9, 89, 315

villeinage tenure 664 legal norms and social practices, relationship

mortgage 698 see also debt of 4, 14, 862-3

moro see murder Nordéleoda laga (Law of the North People) 201,

movables 149-60, 192-3, 376-83, 402, 678-90, 203

838-9 see also debt; forfeiture; Northampton, Assizes of (1176) 500, 510,

livestock; sale; theft; warranty 518-19, 605, 610, 614, 645, 711, 715-16,

bailment 679, 686-7, 690, 838 736-8, 741, 753

bequests 152, 378-9, 383, 682-6 Assize of Clarendon, relationship to 518-19 Church, jurisdiction of 682, 685 Northumbrian Priests’ Law 202, 227-8, 233

clergy 428-9 notoriety see ill-repute

control of 150-1, 377 novel disseisin, assize of 524-7, 579, 604,

distraint 342-4, 637-9 609-15, 619-20, 626, 676 Jews 430 amercements 619 land, distinguished from 149, 376, 678, bailiffs 613, 615

689-90 boroughs 831

ownership 150, 152, 376-7, 678-80 damages 619

seizure 151, 679 debt 708 succession 152, 377-9, 383, 680-6, 689-90 distraint 612-13

terminology 376, 678 entry, writs of 620 Widows 152, 377, 682 exceptions 617

villeins and lords, relationship of 759-61 essoins 615-16

wives 377, 679-80 introduction 610

women 152, 377, 679-80, 682 lordship 612-13 mund (protection) 163-4, 249, 386 minors 579

mundbryce (breach of protection) 20, 50, nuisance 604, 614

58-9, 163-4, 184 pasture, common rights of 614 mundgenne (protector) 242 presentment 611 murder (mord) 3, 166-7, 184-5, 714 see also recognition 604, 610-11 homicide; murdrum fine rents 614 distinguished from other forms of Roman law influence on 611-12 homicide 166, 722 security of tenure 643-4

murdrum fine 405-9 seisin 672-6

mutilation services and disciplinary jurisdiction 641, 661-2 blinding 186-7, 390, 401, 463, 481, 741 settlements 621-2

branding 401 summons 615 castration 187, 389, 401, 463, 481, 741 sureties 615

ears, cutting off 186 villeins and villeinage tenure 665-6, 754-5 feet, loss of 514-15, 518-19, 741 violence 613

hands, loss of 186-7, 246, 401, 518-19 wreck, right of 614

nose, cutting off 186 writs 579, 604, 609-14

946 INDEX OF SUBJECTS Novels, Justinian’s 771 Ordal (tract) 86

nuisance 604, 614 ordeal 74, 84-7, 322-3, 325-7, 514-15, 533-4; 732,

nuns 228, 367 739, 748 —9 see also battle bishops’ role 325

oaths 71, 75, 76, 81-4, 89, 91-2, 156-7, 163-4, burh, in king’s 85 170, 192-3, 195, 201, 308, 313, 320-5, clergy 429

327-8, 522, 689, 695, 829-30 see divine judgment 84-5, 326-7 also agreements; Arms, Assize of; Domesday Book 325-6

compurgation; coronation oaths; fleeing 74 faith; fealty; frankpledge; juries; Forest offences 480 perjury; presentment; recognitions; forms tithing; wager of law; witnesses boiling water 429

‘breaking/broken’ 192-3, 324 cauldron 85 fore-oaths 71, 313 cold water 84-6, 325-7, 429, 480, 514-15,

form 71, 522 533-4) 739) 754 oath-helpers 81, 83-4, 301, 324-5, 829-30 hot iron 84-6, 323-7, 429, 732, 749, 754 ‘observing/observed’ 324 threefold 86-7

‘simple’ 324 ill-repute, persons of 87, 223, 325, 514-15,

status of parties 82, 753-4 739-40

triple 323-4 land ‘unbroken’ 324 cases slaves87, 87325-6

oblations 355-6, 729 sureties/pledges 74 obstruction see forsteal unfree 754

odio et atia (hatred and spite) see also malice order, restoration of, after Stephen’s

exception 729-30 reign 510-11, 518, 526 writ 725 Ordines (procedural tracts) 532

oferhyrnesse (fine for disobedience) 189-90 outland see utland offences 74-5, 164-8, 389-90, 535-6, 744 outlawry 192-3, 196-8, 387, 402, 414-15,

see also abduction; accessories 724, 740, 747 see also abjuration; and accomplices; adultery; arson; banishment; exigent; fugitives beatings; brawling; burglary; regional 198 clergy; corpse robbery; felony; vocabulary 197, 387

folcleasunge; Forest; forgery; overlords 374, 433-4, 549, 569, 571

forsteal; hamfare; hamsocn; ownership

harbouring of offenders; homicide; concept

housebreaking; imprisonment; land 95-6, 372-4, 670-7 incest; insult; Jews; lése majesteé; movables 150, 376-7, 678-9 murder (mord); pleas; prevention vocabulary

and police; punishment; rape; ahnung 76

reafere; robbery; sexual offences; alodium 333 sorcery; theft; treason; treasure proprietas 611, 670-6

trove; trespass; witchcraft and Oxford Charter, King Stephen’s (1136) 463 sorcery; wounding

civil and criminal pleas, difference palatinates 294

between 712 pannage 466, 476

classification 161, 383-4, 711-12, 744 Papacy 256, 258, 493-4, 565, 568; see also

social attitudes 389-90 Church reform; Councils; judges

social circumstances 710 parage see inheritance official, bishop’s 565 pardon for homicide 398-9, 412-14, 743 officials and offices see also Forest; royal offi- sanctuary 398-9

cials; serjeants parks 460, 464, 809

bailiffs 281, 554, 613, 615, 815, 816 parliament 813

borough 815-17 partible inheritance see inheritance land associated with 108-15, 339-40 pasture 614 purchase of offices 468 Patent Rolls 880 stewards 278, 281 peace see frid; grid; king’s peace succession to office 355, 445 peace-stool (fridstool) 397-8

INDEX OF SUBJECTS 947 peasants see also ceorls; coloni; geburs; villeins —preostaland (priest’s land) 106

land 117, 125-6, 334 prerogative wardship 453-4, 630, 809, 842 manorial courts 288-9 presentment of offenders 735-40, 748-9, 754 peers, trial by 417, 750, 851-2 assessment by jurors 737-9 penalties see amercements; anathema; disseisin 611

burial; curses and maledictions; frankpledge and sheriff's

excommunication; fines; mutilation; tourn 393, 555-6

penance; punishment ill-repute, persons of 715, 735-40

penance 195-6, 215 jury 735-40

440-1 ordeal 739, 748-9

penitentials 26, 167, 194-5, 213-15, 227, 233, 246, lesser offences and trespass 744

perambulation of boundaries 330, 548 origin 735-6

perjury 83-5, 603, 623 procedure 736-7, 735-40 personal law 248, 332, 448 proof 739-40

Peter’s Pence 192-3 unjust presentments 738

pickpockets 395, 400 prevention and police regarding offences 38, Pipe Rolls, as source 879-80 51-2, 169-77, 247, 282, 391-9, plaint (oral complaint) 578, 721, 744-5 506, 716-21 see also coroners;

plea rolls, as source 879 see also king’s courts frankpledge; hue and cry; mainpast;

pleaders 316-17, 587-8 pledges; reward; serjeants of the pleading and arguments 3, 76-8, 314-17, peace; sheriff’s tourn; sureties;

593, 828 see also denial; eloquence; tithing

exceptions; norms oath of loyalty to king, in relation to

discrediting opponents 314 theft 163-4, 247, 385, 711 pleaders, use of 316-17 priests see clergy

rhetoric 314-15 primogeniture see inheritance

pleas, categories of see also cause communes; prison see imprisonment

felony; Forest private hundreds see franchises

civil 576-7 private war 11-12 see also feuds

criminal 576-7, 712-16 privileges see boroughs; franchises

Crown, of the 691, 711-12 probate 685

property/right, over 577, 580, 670-6 procedure see accusation; appeal; approvers;

possession/seisins, over 577, 603, 670-6 arbitration; arrest; assizes;

Sword, of the 564 attachment; attaint; attendance;

pleas of the Crown see coroners; offences; battle; denial; distraint; essoins;

pleas evidence; exceptions; exigent; forms

pledge of faith see faith of action; gages; inquests; juries; pledges see also frankpledge; gages; oaths; judgments; mediation; mesne sureties; tithing judgment; miskenning; naifty; oaths;

agreements 692 outlawry; perambulation; pleadings attendance at court, ensuring 72-5, 310-12, 725 and arguments; pledges; pone;

battle 731 presentment; proof; punishment;

betrothal 229 recognitions; replevin; sureties; tolt;

debt 695-6, 700-3, 706 transfer of cases; trials; verdicts; view;

Forest 479, 481 writs

forfeiture by 192-3 proffers 355-6, 729

ill-repute, persons of 74 profits of justice 9, 21, 60-1, 271, 328, 384-5,

lords 73 404-5, 512, 522, 530, 748 see also

poachers 482-3 amercements; ealdormen and earls;

pone, writ and procedure 571-2, 583 fines; forfeiture; licensing

port (recognised trading place) 153 prohibited degrees of kinship 226-8, 235, portmannemoots (borough courts) 820, 823 436-7, 444, 777-8, 782-3, 785 see also

portmoots (borough courts) 820, 821 divorce; marriage

portreeves 37-8 Fourth Lateran Council

possessio, possession, concept of 611, 670-6 reduces extent 778

prayer 18, 326 spiritual or marital kinship 227-8, 437

precipe, writ 559-60, 584-5, 626, 701-2 prohibition, writs of 568

948 INDEX OF SUBJECTS proof 78-87, 155-9, 304, 318-28, 373, 381-2, king’s court 524-5 533-4) 577 592, 599-603, 618, 643, manorial courts 561-2 693, 695, 731-2, 739-40, 765-6, 828-31 Rectitudines Singularum Personarum

see also assizes; battle; charters; (tract) 123, 126, 200, 202, 205, 210, 833 compurgation; enquiries; evidence; reeveland 112 final concords; juries; oaths; ordeal; reeves 18, 32, 37-41, 45, 167, 175, 266, 268, 278,

record of court; suit of kin; wager of 279, 289, 300, 377, 382, 394, 406 see

law; warranty; witnessing also portreeves; sheriffs

property, concept of see ownership and Anglo-Saxon legislation 27-9

proprietas 611, 670-6 apprehension of accused 38 prosecutions, justices taking up 732-3 boroughs 37, 499, 815, 816-17, 822 prostitution 167, 425 courts 37, 47-9, 52-3, 221

proverbs 411, 415 manorial 289

Pseudo-Cnut de Foresta (tract) 456, 749 peace, maintenance of 38

public slander see folcleasunge royal vills 41

punishment 4, 180-96, 214, 255, 388, 399-415, sales, witnessing 37-8 424, 480-1, 514-15, 518-19, 740-3, reforms, Angevin (outline) see also assizes;

748-9 see also amercements; Clarendon, Constitutions of; eyre;

banishment; burial; compensation; grand assize; Inquest of Sheriffs;

death penalty; disinheritance; king’s courts; writs enslavement; fines; forfeiture; 1153 t0 1160S 510-12

imprisonment; mercy; mutilation; 1160s to 1170S 512-18 outlawry; pardon for homicide; 1170s to 11908 518-22

penance; stocks; whipping 1190S t0 12008 522-5 status and 187-8, 214, 417, 418, 424 chancery practice 509-10 purpresture (encroachment) 460, 470, 477 coinage 524 commercial regulation 523-4, 526-7

Quadripartitus 126, 257-8, 376, 419, coroners 522

490, 869 county justices, disappearance of 508

Quadripartitus, Frankish 246 default of justice 526, 528-9

quitclaim 521, 595, 639-40, 649-50, 762 decree concerning 512-13 quo warranto (enquiry into title) 644 demesne, restoration of royal 511 dispossession, edicts on 511

radknights 41, 339 distraint 511, 519

rape 187, 401, 715, 722-3, 726-7, 741 see also ecclesiastical jurisdiction 511-12

abduction Englishmen, legislation on 511

ratio (reason) 532-3, 860 entry, writs of 525, 527

rationality 533, 603, 748-9 Exchequer 516, 523, 524

reafere (robbery) 165 feet of fines 522-3

real property see land foreign trade and custom, legislation on 524 reasonableness 342-4, 361-2, 659, 842 Forest 521, 524, 525 receivers of stolen goods 220, 381, 546-7, forfeiture 513, 515

719-11, 716, 737 homicide 514-15, 525

recognitions 321, 603-26, 856 see also assizes; hue and cry 522

juries imprisonment, release of prisoners from 521, in boroughs 830-1 523, 525 record of court, as proof 81, 320, 553-4, 555, 572 invasion, provisions against 525-6 see also final concords Ireland, English law and custom to be

records see also charters; chirographs; observed in 526 coroners; debt; documents; Jews 519, 522 Domesday Book; eyre; final juries 514-15, 526

concords; Pipe Rolls; plea rolls keepers of the pleas of the crown 522

county courts 553-4 legal learning of reformers 530-3 Exchequer of the Jews 543 legislation 519-21, 524

honorial courts 560 oath, form of (1195) 522 hundred courts 554-5 order, restoration of, after Stephen’s Jews 522, 543, 707, 775 reign 510-11, 518, 526

INDEX OF SUBJECTS 949 proof 533-4 Forest pleas 456, 470 record-keeping 522-3, 527 Patent 880

reformers 528-36 plea 524-5, 879-80

routinisation 534 Pipe 879 serious offences, efforts against 514-15 Roman law

serjeants, local justices possibly Angevin reforms and 531-3, 572

reclassified as 516 Becket dispute 771

sheriffs 511, 514, 516-17, 522, 530 marriage, age of 438 specialisation, administrative 505 canon law and 532-3, 572

speed 534 categories and vocabulary, use of

standardised writs 535 Angevin reforms 531-2 uniformity 527-8, 534 debt 532, 678, 696-7, 702-3

regard of Forest 462, 475, 477, 479-80 executors 684

regarders 475 kingship and law 498-9 regency 29-31, 260-3, 489, 500-3 see also chief lése majesté 498, 712-13

administrators and regents movables 678

Registers of Writs 526, 535, 609, 694, 701, 703, pleas 576-7, 676, 712

873 possessio and proprietas 337, 670-2, 676

regulation see commercial regulation illegitimacy 785

heriot Justinian

relief 13, 349-50, 454, 646-7, 652-3 see also jus commune 853 remarriage 233-5, 439, 440-1, 443-4, 705, 781-2 Digest 672

adultery and 440-1 Institutes 498, 532, 696

canon law 443-4 Novel CXXIII 771

rent 106, 117, 120-1, 482, 614, 833 Magna Carta, influence on 849-50 replevin 553, 638-9, 641, 674 novel disseisin, possible influence on 611-12 representation in court see also legal seisin and possessio 337, 670-2, 676

profession unde vi, interdict 611-12

attorneys 586-8, 860 royal courts see king’s courts

battle, in trial by 533-4, 599-600, 603 royal justices 40, 263, 266-70, 278-9, 489,

denials 75-6 503-6, 514-15, 539-41, 548-50, 587,

reputation see also ill-repute 610-11, 624, 846-7 see also eyre

fama 435-6, 737 local or county justices 266-9, 507-9, 514

jury 730 sheriffs not to act as justices in own

oath-helpers 84 counties 522

responsibility and liability 168-9, 390-1 whole realm 263

retrait lignager (right of kin to pre-emptive royal officials and servants 29-41, 260-70,

purchase) 835-6 272, 489, 500-9, 524, 817, 845-7 reward 171, 175, 182 see also administration; bishops;

rhetoric 314-15 chancellors; chief administrators right, writ of (de recto) 577-9, 580-603, 622, and regents; ealdormen and earls;

626 hundredmen; king’s thegns; reeves;

ritual 19, 327, 406 royal justices; serjeants; sheriffs;

roads tithingmen; treasurer danger 390 accusation by 72, 308

forsteal 50, 58-9, 291, 294, 330, 338 communication with 41-2, 270-1 see also

homicide on king’s road 184 writs

safety, ensuring 394-5 rural deans 565-6 stretwarde 394-5 rustici see peasants; villeins robbery 82, 165-6, 397, 714-15 see also reafere;

theft sacraments 439-40, 444 see also baptism; corpse robbery 82 rolls sacrilege 31,marriage 397-8

Charter 880 sake and soke 59-62, 284, 289-91, 294, 431, 562

Close 525, 620, 700 definition 60

coroners 554, 736, 745-6 status and 60, 207-8, 417, 751 curia regis 524-5, 879-80 writs granting in Anglo-Saxon England 60

950 INDEX OF SUBJECTS sale, of land 118, 136-7, 142-3, 334, 358, 363, 370, scutage (monetary payment per knight’s fee in

580, 654, 658, 661, 672, 833, 836-7 see lieu of service) 338, 632-3, 679, 703-5

also alienation seals 41-2, 70, 271, 386-7, 516, 701

sale, of movables 152-9, 379-83, 687-9, 838-9 security see gage; pledge; sureties

borough law 817-18, 822-3, 838-9 security of possession/tenure of land 93,

debt 703-4, 706 120-2, 341-7, 361-2, 375, 636-45, 833-4

earnest 688 see also disciplinary jurisdiction;

gages 381 distraint

horses overseas, ban on sending 153 bookland 120, 122

location 153-5, 380-1 boroughs 833-4

markets 688, 839 exchange 346

Norman Conquest, impact of 383 forfeiture 120-1, 341-3, 642

oaths 156-7, 689 leases, loanland 120-2

proof 155-9, 381-2 new lord, succession of a 344-5, 642

rightful possession, claims of 155-8 Norman Conquest, influence of 347

seisin, livery of 380 novel disseisin 643-4

slaves, selling overseas 153 performance of services 341-4, 636-45 Sunday trading, prohibition on 153, 379 third parties, challenges from 345-6, 642-5,

sureties 154-5, 381 833-4

theft and 155-9, 688-9 title, challenging basis of lord’s 345-6, 642-5 warranty, vouching to 155-9, 381-3, 688-9 villeins 368, 644-5, 666

weights and measures 152-3, 379 warranty 345-6, 642

witnessing 37-8, 153-5, 158-9, 380-2, 687-8, seignorial courts see lords’ courts

822-4 seisin 304, 337, 577, 585, 603-23, 670-6 see also

sanctuary 24, 175-7, 396-400, 719-21 novel disseisin; possessio

abjuration of the realm 398-400, 720 darrein presentment and problem

breach 176-7, 397-8 of seisin 604, 606-7

canon law 397-8 disputes, advantage of being in seisin 10 Church, protection of the Domesday Book 337

peace of the 398 dual process 671 coroners 719-20 esplees as sign of seisin 673-4 crimes committed within sanctuary 397 full seisin 674

duration 398, 719 livery 358, 366, 380

escape from 176-7, 720 movables 689

exclusions 397 replevin 674 extent 397 reseisin 337, fines 397 simple seisin645-6 674

Leges Edwardi 396-9 usage of term 337, 674-6

pardons 398-9 self-defence 412, 743

Scandinavian influence self-help and direct action in disputes 3-13, Danelaw 88, 245, 249, 409 169, 171-5, 371-2, 395-6, 666-7, 717-18,

diversity 248-9 720-1, 757, 764, 784, 791 see also feud; final judgments 88 vengeance kings and law 18, 42 separation, marital 233, 441, 784 land 147 serjeants 507-9,508 657-8 procedure 66-7 hundred slaves 218 local justices and 508-9, 516

vocabulary 66-7, 244-5 peace, serjeants of the 394

sceattas (coins) 201 serjeanty 334, 339-40, 372, 632, 633-5, 657-8

scir, scira (area of authority) 33, 174, 292 alienability 657-8

diocese 33, 49 foresters 461, 475

sciresman, scirigman, scirman see sheriffs inheritance 649-50

scirgemot see county/shire courts services 657-8

scirgerefa see sheriffs servants 68-9, 72, 150, 203

scourging 185-8, 214, 401-2, 758 servi see slaves; villeins scribes 119, 122, 582, 804 services 115-16, 335, 339, 341-5, 355-6, 368,

Scriftboc (Old English penitential) 213, 227 372, 387, 433, 633-45, 647, 652, 657-8,

INDEX OF SUBJECTS 951 661-2, 665-6, 757-8, 833-4, 838 sheriff’s tourn 393, 555-6, 717 see also distraint; knight service; Assize of Clarendon 555-6 military service; security of tenure; franchise (view of frankpledge) 562

serjeanty presentments 555-6

agreements 692 shipwreck 511, 521-2, 614 agricultural 119, 665 shire courts see county/shire courts attornment 659 shires, establishment of 38

commutation 665-6, 753 SiN 31, 161-3, 384, 533 see also offences

dower 798-800 slaves, slavery 194-5, 212-18, 424-8 see also

ecclesiastical land, secular services from 668-9 freed men; manumission past service, succession claims based on bookland 95-6

faithful 355-6 branding 401-2

performance, disputes over 311, 341-4, 637, burning of female slaves 186

758, 834 cattle, slaves owning and selling 214 spiritual services 668 unfreedom 218, 424, 426-8 quantity, disputes over 342, 636-7, 641 change regarding freedom and

unfree 368, 442, 665-6, 753, 757-8 Christian slaves, prohibition on sale of 153, 212 settlement 7-8, 90-2, 172, 181-2, 330-2, 621-2, compensation 178, 180

725-8, 744 see also compensation; Danelaw 218 ‘love’; mediation; non-prosecution death penalty 186

of appeal Domesday Book 218, 424-5

battle, and trial by 330-1 economic change 218

boroughs 832 marriage 213, 231 ceremonies 621 movables 153, 159, 213-14 payments to king 748 mutilation 187-8, 401-2

permission 726-8 ordeal 87

sexual offences 166 see also adultery; incest; rape penal slavery 194-5, 424

compensation for 179-80 penance for killing 215 shackles 195, 758 physical punishment 187-8, 214, 401-2, 424 sheriffs 37-40, 265-6, 506-7, 511, 514, rape 189

516-17, 522, 530, 716-17, 741-2 see also sale 212, 424-5

county/shire courts; sheriff's tourn overseas 212, 424-5

appearance of 37-40 stoning 186

Assize of Clarendon 507 terminology 213

boroughs 38, 816-17, 819, 822, 825-6 esne 213

central courts 506 innati 213

clerics 38, 265 pedw 213 control of 506-7, 530 prél 213 ealdormen and earls, relationship to 39-40 wealh 213 Exchequer 506-7 theft eyre 506 by slave 187-8

franchises in relation to 562, 564-5 of slave 159, 180, 215

frankpledge 265, 506 wergeld 159, 214, 424

hundred courts 554 whipping 187-8, 401-2

Inquest of Sheriffs (4170) 471, 506-7, 516-17 women 186 justices in own counties, prohibition of “small hundreds’ (sub-units of wapentake,

acting as 522 possibly with court) 188, 283, 386

local justices 269, 508-9 socage 334, 340, 632-5 see also sokeland;

Magna Carta 507 sokemen officials of 266, 509 alienability 661

royal writs 265 burgage tenure, similarities 837-8

sciresman, scirigman, scirman 38-9 dower 794, 800

status 265, 765 fee farm 633-4

succession 355, 506-7 inheritance 351-2, 647

terminology 38-9 Magna Carta 634

tithing 265 relief 647 under-sheriffs 266, 506 wardship 452, 634, 806, 809

952 INDEX OF SUBJECTS soke see sake and soke villeinage and villeins 419-23, 428, 430,

sokeland 114 663-4, 666, 750, 752-67

sokemen 209-10, 212, 340, 421 wergeld 201, 208 sorcery 167, 184, 185 stengesdint (fine for striking another) 839 spiritual kinship 227-8, 242-3, 437 stewards 278, 281

spiritual penalties see anathema; burial; stocks 31-2, 185, 195, 758

curses and maledictions; stoning 186

excommunication; penance stretwarde (road guard) 394-5 status 95, 200-24, 416-34, 750-75, 839-41 subinfeudation 654, 657 see also alienation

actions concerning 763-7 substitution 358, 362-3, 654, 657 see

ethelings 202-3 also alienation; surrender and barons 417-18, 751 admittance bordars 420 succession see inheritance and succession; burgesses 839-41 testamentary succession; wills

changing status 212, 419-20 suit of court 34-5, 53, 62, 87-8, 318, 329, 554 ceorls 41, 202, 208-9, 211, 419, 422 suit of kin 765-6 clergy 218-20, 428-9, 750, 768-72 suitors see also borough court; county/shire

coliberti 211 court; hundred; manorial court

compensation 178-9, 409-10 English suitors, influence of 332, 415

cottars 208-9, 420 influential 278, 551

drengs 418 329, 624

Domesday Book 200, 208, 211, 416, 419, 839 judgment by 35-6, 49, 62, 87-8, 281-2, 318,

fines 202 also infangentheof free men 207-12, 419-21, 751-2 summoners 266, 509

ealdormen and earls 202, 203, 416-17, 750 summary trials 60, 289-91, 294, 414, 562 see

arms, bearing of 421, 752 summons 72, 266, 310-11, 584-6

disputes as to status 764-7 eyre 546

Domesday 419, 839 Forest laws 478

frankpledge membership 74-5, 717 novel disseisin 615

freedom as a possession 752 precipe, writ 584-5

geld payment 421 recognitions 615, 623

king’s courts, access to 752 Sunday trading, prohibition

freed men 211-12, 217 of 153, 379

French and English, division supporters in disputes 49, 76-7, 168, 316-17

between 416 sureties see also attachment; frankpledge;

fugitives 764 gage; mainpast; pledges; replevin;

geburs 210-11, 207-9 tithing geld payment 421 accusation or claim 308, 392-3, 723-4 geneats 206-7 alienation ofland 143

hierarchies 201-2, 416 attendance at court 72-5, 250, 310-12, 615,

Jews 430-1, 773-5 719, 725

kin, suit of 765-6 betrothal 229 king’s courts, disputes in 765, 767 debt 702

king’s thegns 204-5 distrained goods 343

knights 418, 751 fines 189 lepers 772-3 ill-repute, persons of 74 lising 211 movables, sale of 381 lordship and 220-4, 431-4 ordeal, fleeing 74

monks 219, 429, 768-70 surrender and admittance 836 see also

nativi 422-3, 428, 764 substitution

office, overlapping with 200 Sussex Rapes 296-7

peers, trial by 750 swanimote (Forest assembly) 475-6 sheriffs 265, 765 Swerian (tract) 156, 221, 223, 695

slaves 207-8, 212-18, 420, 424-8 synods, ecclesiastical 63-4, 297, 565-6 sokemen 209-10, 212, 421

taxation 752-3 tallage 547, 665, 761 thegns 95, 202, 203-6, 418 talu (statement) 76

INDEX OF SUBJECTS 953 taxation 120, 208, 278, 384, 420-1, 752-3 default of justice 45, 250, 275, 512-13, 526,

team (warranty) 76 see also toll and team 528-9, 558-60, 569, 625-6 “Ten articles of William I (Hic intimatur) 869 false judgment 569, 571-2

tenure, dependent see lordship and grand assize 569

landholding pone 571-2, 583

tenures see alms; barony; burgage; fee; fee procedure 300-2, 567-70

farm; gavelkind; knight ser- tolt 301, 569-71, 583 vice; socage; villeinage; see also wemming 301

landholding, forms of writs 571-2 term of years 340-1 treason see also lése majesté classification 334, 338-41, 372-5, 632-5 treachery see treason

testamentary succession see also wills battle, trial by 328

executors 684 death penalty 181-2, 401

land 126-8, 134-6, 366, 659-60, 835 forfeiture 192, 402 movables 152, 378-9, 383, 682-6 king, against the 44, 164-5, 712-13

oral bequests 129-30 lords, against 164-5, 711

testimony see witnessing oath of loyalty to king, in relation to

thanes see thegns theft 163-4, 247, 385, 711 Peaw (law) 244 sanctuary not cover 397

theft 149, 155-60, 161-99, 384-415, 688-9, treasure trove 306-7, 402, 713 709-49, 823, 827, 831-2 see also treasurer, royal 349-50, 407, 486, 504, 530,

accessories; angyld; burglary; 539-40, 703

compensation; felony; harbouring of — treasury 320, 406, 621, 678, 742, 759, 807

offenders; husbryce; infangentheof; Treaty of Westminster/Winchester

pickpockets; procedure; receivers of (1153) 510-12

stolen goods; robbery trees, burning or felling of another’s 167

fur 165 trehing, trehinghef (trithing) 283 oath to king not to commit 163-4, 247, 385 trespass 743-5

simple theft 165-6 trial see also battle; courts;

thieves caught in the act 12, 182-3, 395, 401, ordeal; procedure

718 peers, trial by 417, 750, 851-2

thegnage, tenure 635 summary 60, 289-91, 294, 414, 562

thegnland 106, 112-13, 372 trithings, in Lincolnshire 283 thegns 95, 202-6, 418 trinoda necessitas (fortress work, bridge work,

definition 203-4 fyrd service) 97, 109-10, 116

Domesday Book 206 tun (vill) 62, 111 see also vill courts hereditary element 206

heriot, payment of 205 unconsecrated ground, king’s thegns 60, 204-5, 417 burialin 31, 74, 84, 196 sake and soke 60 unde nichil habet, writ 803 Third Crusade 501-2 unde vi, Roman Law interdict 611-12 tithes 31, 57, 298-9 unfree status see bordars; cottars; geburs; tithing 52, 169-72, 174, 311, 391-5, 717, 719, 745 nativi; slave; villein; villeinage see also frankpledge; sheriff’s tourn uniformity of law see diversity and uniformity

ward, referred to as 392 “Unknown Charter’ 483, 852

tithingmen 41 usury 305-6, 694, 698 toll and team 60, 289, 294, 404, 417 Christians 306, 694

tolls 82, 817-18 prohibition 694 tolt see transfer of cases between secular utlaga see outlawry courts utland, outland 114, 207 tongues, cutting out 186 meaning of 114

tournaments, licensing of 522 Utrum, assize 604, 607-9, 669

towns see borough laws introduction of 514, 608 Tractatus de legibus et consuetudinibus regni

Anglie see Glanvill Vacarius, Liber Pauperum 531

transfer of cases between secular vavasour (tenant of a tenant-in-chief) 273,

courts 300-2, 569-73 278-9, 281, 287

954 INDEX OF SUBJECTS vengeance 169, 171-5, 199, 247, 390, 395-6, 729 violence 161-99, 384-415, 709-49 see also

see also compensation; feud feud; gridbryce; hamsocn; homicide;

courts, through 13 murder (mord); rape; robbery;

homicide 11, 255 sexual assault; vengeance

influence on conduct of in conduct of disputes 3, 5-6, 8, 11-14, 169,

disputes, of 5-6, 8, 11 171, 490-1, 709-10

king’s actions concerning 174, 198 novel disseisin 613

sanctuary 720-1 social attitudes 389-90

venison 480 social circumstances of 710

verderers 475, 476, 479 vouching to warranty see warranty verdicts 550, 702, 862

criminal cases 3, 730, 748 wager of law 81, 643, 693, 702, 802, 829 see also

Forest case 478 compurgation

land cases 593, 601, 603, 612, 617, 619, 623-5, wapentake see hundred

676, 805 war, right to wage private 11-12

status cases 755, 765 warantia carte (warranty of charter),

vert, rights over 459-60, 470, 472-6, 481 writ 583-4

vicomtes (Norman officials, equivalent to ward courts, urban 818-19, 820

sheriffs) 511 wardens of forests 475

view of disputed tenements 591 wardship 241-2, 452-4, 628-30, 632, 634,

vill courts 41, 47-8, 62-3, 65 646-9, 806-11, 841-2 see also minors villeinage tenure 367-9, 663-7 see also heriot; ‘chattels real’ 678, 682

villeins guardians 242, 452-4

alienation 369, 666-7 king’s control of 453-4, 807-8

disseisin 663, 665 Magna Carta 809

inheritance 368, 666 maritagium 789

Magna Carta (1217) 663-4 multiple lordship 453-4, 809-11

mort d’ancestor 664 prerogative 453-4, 630, 809, 842

novel disseisin 665-6 services 454

security of tenure 368, 666 socage 452, 634, 806, 809

services 368, 665-6 waste 808-9

villeins, villeinage status 419-23, 425-8, warranty, warrantors see also team 430, 663-7, 722, 750, 752-67 see also concerning land 316, 345-6, 579, 584, 594-8,

bordars; ceorls; cottars; geburs; 616, 642,

tenure dower 801 accusation or claim, bringing an 722 essoins 596-7

manumission; status; villeinage charter clauses recording obligation 594-5

chevage (payments showing continuing exchange arising from failed war-

connection to lord) 288, 422-3 ranty 346, 597-8

chattels 759-61 homage and 584, 595

children 423 warantia carte (warranty of charter), clergy 428, 761 writ 583-4 county courts 552 wife vouched to 579

Domesday Book 419-20 concerning movables 77, 155-9, 165, 381-3, frankpledge membership 392, 422, 717, 753 688-9

fugitives 757-8 relating to theft of slave 159

423, 758-9 waste

marriage between free and unfree 213, 231, warren 464-5, 484

merchet 422-3, 757 dower 798-9, 804 nativi 422-3, 428 Forest 460, 464, 470, 477

ordeal 754 wardship 808-9 ordination of, prohibited 757-8 watch systems, borough 822-3

relativity 754-5 water, ordeal by 84-6, 325-7, 429, 480, 514-15,

services 422, 753, 757-8 533-4, 739 vocabulary 753 see also Arms, Assize of; bows and transfer 369, 423, 756 weapons and armour 151, 169, 421, 704, 752

villenagium (land held by villagers) 367, 663 arrows

INDEX OF SUBJECTS 955 heriot 123-4 movables, transactions involving 37-8, 54,

and status 421-2, 520-1 131, 153-5, 158-9, 282, 380-2, 683-4, wed see pledges 687-8, 822 weights and measures 21, 167, 152-3, 257, 379; proof/supporting claim 80, 283, 318-20, 385,

519, 523-4, 823 511, 592-3, 599; 689, 730 of cases wives see husband and wife; marriage;

wemming, definition of 301 see also transfer wills 131

wer see wergeld merchet; widows; women

wergeld 73-4, 159, 170-1, 179-80, 182-3, 191, women see also dower; homage; husband

197, 205, 208-9, 214, 219, 223, 227, and wife; inheritance; maritagium; 409-10, 424 see also compensation; marriage; morning-gift; rape;

healsfang widows

amercements, as measure of 190-1, 842-3 accessories, wives as 168

oaths, as measure of 82-3 age of majority 805 procedure for paying 179-80 appeal, bringing status, as measure of 201-2 an 308, 722-3, 728-32, 855 Wergeld (tract) 179, 416 attorneys and representation in land Westminster, king’s court at cases 587 see king’s courts death penalty, unusual forms of 186, 741 Westminster/Winchester, Treaty land 114-15, 128-9, 147, 308, 353-4, 358,

of (1153) 510-12 366-7, 579; 587, 647-50, 652-3, 786

whipping 185-8, 214, 401-2, 758 liability and responsibility for husbands’ widows 114-15, 240-1, 366-7, 653, 786 see also offences 168

dower movables 152, 377-9, 679-82 homage 631 proof 731-2 marriage-portions 366-7 wills 128-9, 147

movables 152, 377, 682 woods and woodland 184, 456, 804 see also protectors 240-1 Forest remarriage 234-5, 443-4 woodwards 475

Wifmannes Beweddung (tract) 228-9, 231, wool 152-3, 189

238-9 Worcester Indiculum 115-16

wild boar 465 wounding 78, 290, 295, 405, 410-11, 562 wills see also deathbed gifts; testamentary wreck 511, 521-2, 614

succession writ rule 644, 662

Anglo-Saxon (cwide) 108-9, 126-36, 147, 152, writs 28, 42, 58, 60, 259-60, 265-8, 297-9, 305,

216-17 309-10, 321, 499-500, 511, 525, 527,

alteration and revocation 133 535, 552, 557-61, 568, 572, 576-621,

childless couples 134 622, 626, 640-1, 670-1, 676, 756, control, elements of 135-6 764, 813-14, 824, 827, 873-4 see also death-bed gifts 128-9, 131 Registers of Writs form of grants 132-3 de Cursu 571, 582, 620 good behaviour, incentivising 135-6 grace, of 582 manumissions specified 216-17 sealing 41-2, 222, 575

witnesses 131 writs, types of

women 128-9, 147 aiel, besaiel, and cosinage 605 post-Conquest 379, 682-6 attaint 525, 527

Windsor, Council of (1179) 520, 600 customs and services 641, 647

Wine, Assize of 519, 523-4, 547 darrein presentment 604, 606-7

witan see councils de dote admensura 803-4 wite see fines de nativo habendo, de nativis 552, 764

witchcraft 167, 184, 185 de homagio capiendo 583-4, 595, 600, 756

witnessing de recto 577-9, 580-603, 622, 626 agreements 279, 692 debt 700-2

debt 695 dower 803-4 dower, at marriage 801-2 entry 525, 527, 620-1

land, transactions involving 50, 54, 131, mort d ancestor 579, 604-6, 610, 614, 620,

140-3, 279-80, 282, 289, 358, 823 626

956 INDEX OF SUBJECTS writs, types of (cont.) Wulfstan’s collection of canons

ne vexes 641 church property, alienability of 145

novel disseisin 579, 604, 609-14, 620, 626 clergy 219

odio et atia 725 divorce 233 pone 571-2, 583 incest 228 precipe 559-60, 584-5, 626, 701-2 marriage 230-1, 234 precipe in capite 626 penance 195-6 prohibition 568 sanctuary 175 unde nichil habet 803 slaves 216

utrum 609 sources 246

warantia carte 583-4

Wulfstan, Canons of Edgar 64 ‘Ymb AEwbricas’ 104-6, 108