THE FORMATION OF THE ENGLISH COMMON LAW

T H E MEDIEVAL W ORLD
Editor: David Bates

A lready p u b lish e d

CNUT
T h e D anes in E n g lan d in th e early elev en th cen tu ry
M.K. Lawson

THE FORMATION OF THE ENGLISH COMMON LAW

Law a n d Society in E n g la n d fro m th e N o rm a n C o n q u est
to M agna C arta
J o h n H u d so n

KING JOHN
R alph V. T u rn e r

WILLIAM MARSHAL
C ourt, C are er a n d Chivalry in th e A ngevin E m p ire 1147-1219
David C rouch

ENGLISH NOBLEWOMEN IN THE LATER MIDDLE AGES

Je n n ife r C. W ard

BASTARD FEUDALISM
M ichael H icks

CHARLES THE BALD

J a n e t N elson

JUSTINIAN
J o h n M o o rh ea d

INNOCENT III
L ead e r o f E u ro p e 1198-1216
Ja n e Sayers

THE FRIARS
T h e Im pact o f the Early M endicant M ovem ent on W estern Society
C .H . Law rence

MEDIEVAL CANON LAW

Ja m es A. B ru n d ag e
THE FORMATION OF THE
ENGLISH COMMON LAW

Law and Society in England

from the Norman Conquest
to Magna Carta

John Hudson
 First published 1996 by Pearson Education Limited
Second impression 1999

Published 2014 by Routledge

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available from the British Library

Library of Congress Cataloging-in-Publication Data

H udson, Jo h n .
T he form ation of the English com m on law : law and society in England from the
N orm an Conquest to Magna Carta / Jo h n H udson,
p. cm. - (Medieval world)
Includes bibliographical references and index.
ISBN 0-582-07027-9. - ISBN 0-582-07026-0 (pbk.)
1. Com m on Īaw -England-H istory. 2. C om m on law—England-Sources.
3. Justice, A dm inistration of-E nglanđ-H istory. 4. E ngland-Social
conditions-1066-1485. I. Title. II. Series.
KD671.H83 1996
340.5’7Ό 942-dc20 95-49759
CIP

Set bv 7p in 1 1 /1 2ρt Baskervilĩe

 CONTENTS

Editor’s Preface ix
Author’s Preface xi
Abbreviations xiii

C H A PT ER 1 Introduction 1
The concept of law 2
The functions of law 7
Disputing and negotiating 8
English com m on law 16
The form ation of the English com m on law 19

CH A PTER 2 The C ourt Framework in Anglo-Norman

England 24
The king’s court 27
Local and itinerant justices 31
Shire courts 34
H u n d red courts 37
Seignorial courts 40
U rban courts 47
Ecclesiastical courts 48
Conclusions 50

CH A PTER 3 Violence and T heft in Anglo-Norman

England 52
Bricstan’s case 53
Offences, offenders, and motives 57
Prevention and police 61
Trial 69
P unishm ent and com pensation 77
Conclusions 83

V
 TH E FORMATION OF THE ENGLISH COMMON LAW

CHAPTER 4 Law and Land-holding in Anglo-Norman

England 86
Land, lordship, and law 87
The forms of land-holding 89
The customary framework: control o f land
held in fee 94
Disputes 105
Anglo-Norman land law and com m on law
property 116
Conclusions 116

CHAPTER 5 Angevin Reform 118

Kingship, S tephen’s reign, and Angevin reform 118
T he eyre 123
Chronology 126
T he stages and nature of reform 139
H enry II and reform 144
The adm inistrator’s m entality 146
Conclusions 155

CHAPTER 6 Crime and the Angevin Reforms 157

Ailward’s case 159
Classification 160
T he continuation of traditional m ethods 166
P resentm ent and the extension of royal authority 175
T he limits o f royal authority 180
Conclusions 184

CHAPTER 7 Law and Land-holding in Angevin

England 186
Abbot Samson of Bury St Edm unds 187
New procedures 192
The im pact o f change 205
Conclusions 218

CHAPTER 8 M agna Carta and the Form ation of the

English Com m on Law 220
King J o h n and the adm inistration of justice 221
M agna Carta 224
Law and legal expertise 227
The com m on law 230
Concluding com parisons 237

VI
 CONTENTS

Glossary 240
Note on sources 249
Further reading 253
Index 261

vii
 EDITOR’S PREFACE

E ngland’s history is unique for the developm ent at a very

early date o f a unified system o f law, which is normally
described as the English C om m on Law. This Com m on Law
was duly exported to many parts o f the globe in the
baggage train o f the British Em pire, and rem ains highly
significant, for exam ple, in N orth America. In a broad
context, the historical foundations o f the Com m on Law
have also rem ained utterly central to all discussion o f the
distinctive historical identity o f a m ajor European nation
and to o u r understanding o f the early phases o f English
and European state-building. Anyone who seeks to
u nderstand English identity m ust very rapidly focus their
attention on the form ation o f the Com m on Law. Likewise,
anyone who seeks to understand the developm ent o f the
medieval English m onarchy and its relations with the king-
d o m ’s localities m ust also focus their attention on the
developm ent o f the Com m on Law.
Jo h n H u d son’s book therefore inevitably takes its place
in an im portant historical tradition. The influence o f F. W.
M aitland (1850-1906), the intellectual giant, n o t ju st of
early English legal history, but o f social history as well, set
an agenda which has exercised a profound influence over
all who have followed. M aitland’s central thesis was that the
reform s o f H enry Iľ s reign, set out for all to see in the law
book known as Glanυilį m arked a decisive phase o f legal
creativity and organizational centralization. T he period
between 1154 and 1189 to all intents and purposes saw the
creation o f the Com m on Law. Many distinguished scholars
have followed M aitland and, while there has been a
tendency, developed in the works o f the likes o f R. C. van
 T H E F O R M A T I O N O F T H E E N G L I S H C O M M O N LAW

Caenegem and Lady Stenton, to trace origins back into the

N orm an period, the basic lines o f M aitland’s argum ents
held until the 1970s. Then, a difficult, but very im portant,
book, S. F. C. Milsom’s Legal Framework of English Feudalism,
broke sharply from M aitland’s approach by questioning the
whole sociological and jurisprudential framework on which
M aitland had constructed his ideas. It also doubted the
innovatory character of H enry II’s reforms, which becam e
no m ore than devices to facilitate the legal workings of a
feudal society already well established. T heir results, almost
accidentally, were the processes which brought a Com m on
Law into existence in the thirteenth century; the form ation
of the Com m on Law owed as m uch to pressure from suitors
and the devices o f lawyers as to the centralizing efforts of
government.
Jo h n H udson steps with assurance into this com plex
historiographical discussion. The author o f a distinguished
book entitled Land, Law, and Lordship in Anglo-Norman
England, he brings to the subject a m uch deeper knowledge
o f the early charter evidence than any o f his predecessors.
His framework, like M aitland’s and Milsom’s, sets legal
developm ent within the context of social structures and
social change, but his view o f Anglo-Norman society is very
different from either M aitland’s or Milsom’s. Anglo-
N orm an society possessed m uch o f the conceptual, social
and institutional framework which m ade possible the
form ation o f the Com m on Law. The im portance of H enry
Iľ s regim e is greater than Milsom allowed, but it should be
seen as a crucial period in an evolving process. Jo h n
H udson focuses on all the essential them es of royal power,
the central and local courts, crime, dispute-settlem ent and
customary law. His book is a very welcome and necessary
contribution to a subject which has becom e exceptionally
technical over recent decades. His analysis, which is both
clear and original, is an excellent addition to the Medieval
W orld series.
David Bates

X
 AUTHOR’S PREFACE

This book is an introductory essay. As an essay, it has an

argum ent: that the com m on law was form ed from a variety
o f elem ents during the period 1066-1215. I am not
searching for the ‘origins’ of every elem ent o f that law, but
rath er exam ining the process whereby they cohered. It is
introductory in that it attem pts to explain what is assumed
in many other works on the subject. My reliance on
secondary literature is clear at many points. Except briefly in
chapter 1, I have deliberately eschewed extensive discussion
of historiography, but hope that this book will encourage
readers to move on to the classics o f the subject, most
notably M aitland’s History of English Law. Equally clear will
be the omission o f many im portant subjects, for exam ple
law relating to status, the forest, urban and ecclesiastical
law, legal learning. I seek to present n o t a text-book
account of the law of the period, but a stimulus to thinking
about the workings o f law within society. Rather than aim
for com pleteness, I have provided m ore extended analyses
most notably o f disputes. I shall often exam ine law from
the perspective n o t of a legislator or ju d g e but o f a party in
a transaction or dispute. T hrough such contextualization I
hope to overcome the sense o f unreality which often arises
in students o f the subject when approaching ‘legal history’.
Instead, law is taken as a way o f entering into the history of
power and every-day thought.
Those who, like me, attended Paul Hyams’ Oxford
lecture courses on medieval law will know how m uch this
book owes to him; on occasion I have felt as if I were
merely his amanuensis. T hree select groups o f St Andrews
students opted to take my Special Subject on ‘Law and

xi
 T H E F O R M A T I O N O F T H E E N G L I S H C O M M O N LAW

Society’ rather than m ore immediately appealing options:

they contributed greatly to what follows. T he coincident
presence o f Rob Bartlett, Lorna Walker, and Steve W hite in
1993-94 m ade St Andrews the ideal place to be working on
this book. Thanks are also due to various people for
allowing me access to their unpublished work: Joseph
Biancalana, Robin Flem ing - who thereby helped greatly in
rem edying my ignorance o f Domesday Book - and in
particular Patrick Wormald. David Bates first suggested that
I write the book, and he, Rob Bartlett, and Lise H udson
have read and com m ented upon the entire typescript. H elp
has also been gratefully received from Bruce O ’Brien, Dan
Klerman, Ros Faith, H ector M acQueen, G eorge G arnett,
Paul Brand, and Patrick W ormald. I hope that students will
learn from this book, and I hope that I learnt some o f the
skills of com m unication so admirably displayed by my own
tutors, Jam es Campbell and Harry Pitt: to them I dedicate
whatever is o f value in this study.

We are grateful to Oxford University Press for permission

to reproduce extracts from The Ecclesiastical History of Orderic
Vitalis edited and translated by M arjorie Chibnall, vol. 3
(1972) and vol. 4 (1973) © O xford University Press 1972,
1973.
 ABBREVIATIONS

ANS Anglo-Norman Studies.

ASC Anglo-Saxon Chronicle.
Bartlett, Trial R. J. Bartlett, Trial by Fire and Water: the
Medieval Judicial Ordeal (Oxford, 1986).
Borough M. Bateson, ed., Borough Customs (2 vols,
Customs Selden Soc., 18, 21, 1904, 1906).
Bracton, Bracton De Legibus et Consuetudinibus Anglie,
T horne ed. and trans S. E. T horne (4 vols,
Cambridge, MA., 1968-77).
Brand, Legal P. A. Brand, The Origins of the English Legal
Profession Profession (Oxford, 1992).
Brand, P. A. Brand, The Making of the Common Law
Making (London, 1992).
CMA J. Stevenson, ed., Chronicon Monasterii de
Abingdon (2 vols, London, 1858).
CRR Curia Regis Rolls
(in progress, 1922-present).
Dialogus Richard Fitz Nigel, Dialogus de Scaccario, ed.
and trans C. Johnson, rev. F. E. L. Carter
and D. E. Greenway (Oxford, 1983).
EHD English Historical Documents, i, c. 500-1042,
ed. D. W hitelock (2nd edn, London, 1979);
ii, 1042-1189, ed. D. C. Douglas and G. W.
Greenaway (2nd edn, London, 1981).
EHR English Historical Review.
 T H E F O R M A T I O N O F T H E E N G L I S H C O M M O N LAW

G arnett and G. S. G arnett and J. G. H. H udson, eds, Law

H udson, and Government in Medieval England and
Law and Normandy: Essays in Honour of Sir James Holt
Government (Cambridge, 1994).
Glanviïl, Hall ‘Glanvilľ, Tractatus de Legibus et
Consuetudinibus Regni Anglie, ed. and trans G.
D. G. Hall (Edinburgh, 1965).
Holt, Magna J. C. Holt, Magna Carta (2nd edn,
Carta Cam bridge, 1992).
H udson, J. G. H. H udson, ed., The History of English
Centenary Law: Centenary Essays on ‘Pollock and Maitland’
Essays (Proceedings of the British Academy, 89, 1996).
H udson, J. G. H. H udson, Land, Law, and Lordship in
Land, Law, Anglo-Norman England (Oxford, 1994).
and Lordship
H urnard, N. D. H urnard, The King’s Pardon for
Pardon Homicide{ Oxford, 1969).
Hyams, P. R. Hyams, ‘Trial by ordeal: the key to
Ό rd e a ľ p ro o f in the early Com m on Law’, in M. S.
Arnold, T. A. Green, S. A. Scully and S. D.
White, eds, On the Laws and Customs of
England: Essays in Honor of S. E. Thome
(Chapel Hill, NC, 1981), pp. 90-126.
Hyams, P. R. Hyams, ‘W arranty and good lordship in
‘W arranty’ twelfth century E ngland’, Law and History
Review 5 (1987), 437-503.
Lawsuits R. C. van Caenegem, ed., English Lawsuits
from William I to Richard / (2 vols, Selden
Soc., 106, 107, 1990-91).
LHP, Downer L. J. Downer, ed. and trans, Leges Henriά
Primi (Oxford, 1972).
Lieberm ann F. Lieberm ann, ed., Die Gesetze der
Angelsachsen (3 vols, Halle, 1903-16).
Lincs. D. M. Stenton, ed., The Earliest Lincolnshire
Assize Rolls, A.D. 1202-1209 (Lincoln Record
Soc., 22, 1926).

xiv
 A B BR EV IA TIO N S

Milsom, S. F. C. Milsom, The Legal Framework of

Legal English Feudalism (Cambridge, 1976).
Framework
ns new series.
O rderic O rdericus Vitalis, The Ecclesiastical History, ed.
and trans M. Chibnall (6 vols, Oxford,
1969-80).
PKJ D. M. Stenton, ed., Pleas before the King or his
Justices, 1198—1202 (4 vols, Selden Soc., 67,
68, 83, 84, 1952-67).
Pollock and Sir Frederick Pollock and F. W. Maitland,
Maitland The History of English Law before the Time of
Edward I (2 vols, 2nd edn, reissued with new
introduction by S. F. C. Milsom, Cambridge,
1968).
PR Pipe Roll.
PRS Pipe Roll Society.
Royal Writs R. C. van Caenegem, ed., Royal Writs in
England from the Conquest to Glanvill (Selden
Soc., 77, 1959).
RRAN H. W. C. Davis, C. J. Johnson, H. A. Cronne
and R. H. C. Davis, eds, Regesta Regum
Anglo-Normannorum, 1066-1154 (4 vols,
Oxford, 1913-69).
SSC W. Stubbs, ed., Select Charters and other
illustrations of English Constitutional History
(9th edn, Oxford, 1913).
Stenton, D. M. Stenton, English Justice between the
English Norman Conquest and the Great Charter
Justice (Philadelphia, PA, 1964).
Stenton, First F. M. Stenton, The First Century of English
Century Feudalism, 1066-1166 (2nd edn, Oxford,
1961).
Surrey C. A. F. Meekings, ed., The 1235 Surrey Eyre,
vol. 1 (Surrey Record Soc., 31, 1979).

XV
 T H E F O R M A T I O N O F T H E E N G L I S H C O M M O N LAW

TAC, Tardif E.-J. Tardif, éd., Le Très Ancien Coutumier de

Normandie (Société de l’Histoire de
N orm andie, Rouen and Paris, 1881).
TRHS Transactions of the Royal Historical Society.

xvi
 Chapter 1

INTRODUCTION

Like m odern film audiences, those listening to literature in

the twelfth century enjoyed nothing better than a good
court-room dram a, preferably spiced by some sex or
violence:

P erro t, w ho d ev oted his c u n n in g a rt to p u ttin g in to verse the

d eed s o f R eynard a n d his d e a r crony Isengrin, left o u t th e best
p a rt o f his m a tte r w hen h e fo rg o t a b o u t th e lawsuit b ro u g h t
fo r ju d g e m e n t in th e c o u rt o f N oble th e lion c o n c e rn in g the
gross fo rn ic atio n p e rp e tra te d by R eynard, th a t m aster o f
iniquity, against Lady H e rse n t th e she-wolf.1

In the same period, legal m etaphors structured or were

incorporated within writings on many subjects, hum an and
divine.2 Participation in legal m atters was widespread. A
significant proportion of the male population participated
in court decisions, a m uch larger proportion was involved
in the m aintenance o f law and order.
Law operated in a society which com bined various
com m unities with strong hierarchic forces. Com m unities
included the ham let o r village, the family, the h u n d red and
shire, the lordship. W ithin the smaller o f these, all
m em bers knew one another, and m uch o f each o th e r’s
affairs; within the larger, this was true o f the m ore
im portant m em bers o f the community. Disputants,
m em bers o f courts, participants in transactions, were

1. The Romance of Reynard the Fox, trans D. D. R. Owen (O xford, 1994),

p. 5.
2. See e.g. below, pp. 86, 109.

1
 T H E F O R M A T I O N O F T H E E N G L I S H C O M M O N LAW

unlikely all to be strangers. In such circumstances, o n e ’s

status, honour, and capacity for forceful action, m attered
greatly. The potentially dangerous had to be restrained,
deference m aintained, support for retribution on occasion
mobilized. Any idyll o f the small com m unity as always one
o f peaceful, egalitarian self-regulation should be rejected. It
could be rum our ridden or dom inated by a few individuals.
Moreover, lordship and kingship were as m uch p art of
the setting for law as were local com munities. And it was
often through local com m unities that royal and seignorial
authority was exercised. Kings, particularly before c. 1166,
commonly dealt with areas through resident local officials,
rath er than with a multiplicity of individuals through
officers tem porarily dispatched from central governm ent.
C om pared with today or the nineteenth century, eleventh-,
twelfth-, and even thirteenth-century England was a country
very little governed from the centre. C om pared with m uch
o f contem porary Europe, however, it was heavily governed,
by a com bination of lordship, increasingly bureaucratized
royal adm inistration, and the exercise of local self-
governm ent. Such a com bination o f the local and the royal
was to be essential to the em ergence and form o f the
English com m on law.

THE CONCEPT OF LAW

Medieval historians have been usefully influenced by the
writings o f anthropologists who deny the applicability o f the
concept o f law to the societies they study. However, there
can be no doubt that people in Anglo-Norman England
wrote, spoke, and thought in term s o f law and laws.3 It

3. N ote the stim ulating discussions in W. I. Miller, Bloodtaking and

Peacemaking: Feud, Law, and Society in Saga Iceland (Chicago, IL,
1990), ch. 7 an d Brand, Legal Profession, ch. 1. My concern in this
section is with the attitudes o f the bulk o f those involved with law,
n o t with notions based on book-learning (for the latter, see e.g. R.
Sharpe, ‘T h e prefaces o f “ Q uadripartitus” in G arnett and
H udson, Law and Government, pp. 148-72). T he prim ary concern of
chapters 2-8 is with activities an d ideas contained within this n ot
very tighüy defined concept o f law; extra-legal activities, such as the
cultivation o f favour, do n o t get such extensive treatm en t for their
own sake.

2
 IN TR O D U CTIO N

would be h ard for any Christian people whose learned

m em bers placed great emphasis upon the Bible to do
otherwise, and both English and N orm ans were also aware
o f the legacy o f laws from their own pasts.
Unlike English, many languages distinguish between
written laws (lois in m odern French) and law generally
(droit). O ur late eleventh- and twelfth-century texts reveal a
division similar in vocabulary b u t n o t in sense. Most of our
sources are in Latin, and the first word o f obvious interest
h ere is lex, in the English or French of the time generally
laga or lei.4 This can m ean written laws, as in the key law for
Christians, the Bible and especially sections o f the Old
T estam ent.5 It can also m ean learned law, canon and
Roman, or twelfth-century texts such as the Leges Edwardi
Confessons.6 It is sometimes used o f a specific law, some-
times a new law, as when a chronicler wrote that H enry I
m ade a law that anyone caught in theft be hanged.7 But lex
can also m ean all Law or laws, written or unw ritten. It may
refer to the laws of England or the good old law of Edward
the Confessor. It is thus not clearly differentiated from
custom.8 A closely related use comes in phrases such as
‘according to law’, ‘against law’, or ‘com pelled by law’,
employing ‘law’ to indicate in a general sense what is lawful
or what is considered correct procedure.9 ‘Law’ is also
4. See e.g. ASC, s.a. 1087, 1093, 1100; Song of Roland, 1. 611; Leis
Willelmes, Prol., 42, Lieberm ann, i 492-3, 516. See also A. Kiralfy,
‘Law an d rig h t in English legal history’, Journal of Legal History 6
(1985), 49-61.
5. See e.g. LHP, 72.le , 75.4a, Downer, pp. 228, 234; O rderic, i 135, ii
250. Lex is also used to describe the basis of good living according
to G od’s instruction, e.g. in the Psalms in the Vulgate. O rderic, ii 46
uses lex for the Rule o f St Benedict.
6. See e.g. Lawsuits, no. 327; on the Leges, see below, pp. 249-50.
7. SSC, p. 113; see also O rderic, iii 26 on decrees o f council o f
Lillebonne; Domesday lists o f customs referred to as leges, e.g.
Chester, Domesday Book, i 262v.
8. See e.g. Lawsuits, nos 5, 7; ‘T en Articles o f William ľ , c. 7, H enry I
C oronation C harter, c. 13, EHD, ii nos 18-19. Canonical collections,
o f course, m ade clearer distinctions.
9. See e.g. Domesday Book, i 298v; LHP, 7.7, 43.1, Downer, pp. 100, 150;
Royal Writs, no. 72 on a m an leaving ‘sine ju d icio . . . et sine laga’;
also Holt, Magna Carta, pp. 111-12. See also m ore specific usages
such as the rig h t of pillage ‘hostili lege’, H enry of H u ntingdon,
Historia Anglorum, ed. T. A rnold (London, 1879), p. 275. N ote o th er
term s for customary behaviour, such as mos\ e.g. Lawsuits, no. 204.

3
 T H E F O R M A T I O N O F T H E E N G L I S H C O M M O N LAW

contrasted with ‘agreement’, thus giving legal activity confront-

ational connotations.10 Sometimes, though, it seems to
m ean the term s o f an agreem ent.11 Lastly, ‘law’ is used in a
m ore technical sense to m ean proof, as when a m an has to
‘make his law’, thereby showing that he is a lawful m an.12
O ther relevant words are ius and rectum, both of which
are the equivalent of the O ld French dreit or o f words based
on the O ld English ‫׳‬riht.v·' lus is best translated as ‘rig h t’, as
in phrases such as ‘the land belonged to him by rig h t’; ‘by
hereditary rig h t’; ‘rights o f the ch u rch ’.14 Very occasionally
in the Anglo-Norman period ius is best translated as ‘law’,
and such usage later becam e m ore com m on, probably
u n d er the influence o f Roman and canon law.15 Rectum, on
the other hand, is usually best translated as ‘j ustice’ as in
phrases such as ‘do him justice’ o r ‘for lack o f justice’.16 O n
occasion, we do see ius being used where one m ight expect
rectum, and vice versa.17 In general, however, usage suggests
that when people spoke o f dreit o r riht, they were capable of
employing them n o t in a vague and general fashion, but
specifically and in m ore than one way.
People in N orm an and Angevin England thus were
sensitive to the vocabulary o f ‘law’, and they were also well
aware of a category of affairs which we can best term legal.
M en m ight be categorized as peculiarly expert o r learned
in law, as ‘lawful’ or ‘law-worthy’,18 or as ‘outlaws’. Certain

10. E.g. LHP, 49.5a, Downer, p. 164.

11. See e.g. RRAN, iiì no. 272; E. Searle, ed. and trans, The Chronicle of
Battle Abbey (O xford, 1980), p. 80.
12. N ote e.g. Lawsuits, nos 123-5; LHP, e.g. 9.6, Downer, p. 106.
13. See e.g. Song o f Roland, 11. 2747, 3891; Leis Willelmes, 47, 52,
Lieberm ann, i 518-19; ASC, s.a. 1087, 1093, 1100; F. E. H arm er,
Anglo-Saxon Writs (M anchester, 1952), no. 61. See also Song of
Roland, 1. 1015 for ‘d reiť in the sense o f right as opposed to wrong.
14. N ote also Lawsuits, no. 226 using ‘in ju s m ilitare’ to describe land-
holding by military service.
15. For possible Anglo-Norman instances, see e.g. Lawsuits, no. 226,
‘iuris peritiores’; this is an ecclesiastical text, perhaps canonically
influenced. For the later period, s e e j. C. H olt, ‘Rights an d liberties
in M agna C arta’, in his Magna Carta and Medieval Government
(London, 1985), pp. 203-15.
16. Royal Writs, nos 3, 4, etc.
17. E.g. Lawsuits, no. 326; cf. e.g. Royal Writs, no. 196, for a clear
distinction between the terms.
18. See below, p. 11; e.g. RRAN, ii no. 1516.

4
 IN TRO D U CTIO N

bodies had a legal function, and were created for that

special purpose.19 Some m en were criticized as excessively
active in lawsuits, particularly litigious:20 such people m ade
com m on what should have been unusual, for legal m atters
differed from the day to day. Legal customs were different
from m ere habits: the legal obligation to provide o n e ’s lord
with a hawk every year was qualitatively different from the
habit o f going hawking. Also, whilst clearly we are dealing
with a society perm eated by the C hurch and religion, some
distinction could be drawn between legal and religious
matters: there were law books and there were penitentials;
there were punishm ents and there were penances. Law was
also differentiated from various forms o f self-help and
violence, although parties in a dispute m ight differ as to
which forms o f the latter were lawful.21 T he violence of
disputing outside court is clearly distinguishable from the
formalized fighting of the trial by battle, or even the rough
and ready treatm ent m eted out in an ad hoc court to the
w rongdoer caught red-handed.22
In part, what m ade law special was its relationship to
some authority, especially an external authority. We can
sometimes see medieval m en and women ‘going to law’
rath er like characters in a nineteenth-century novel. For
several years in the mid-twelfth century Richard of Anstey
had to spend heavily and travel as far as southern France in
pursuit of his inheritance case.23 Travel to various
authorities and appearance in various courts took litigants
and their business outside the usual course o f social life. In
these settings, some activities could be distinguished as
‘legal’, and contem poraries reflected this in the
categorization of certain court activities as placita, ‘pleas’.
Moreover, whilst court proceedings m ight involve m uch
exercise of influence and presentation o f a wide variety of

19. See below, pp. 63-6, on frankpledge.

20. See e.g. K. R. Potter, ed. an d trans, Gesta Stephani (Oxford, 1976), p.
24.
21. See e.g. the case of William of St Calais, Lawsuits, no. 134; also
H udson, Land, Law, and Lordship, p. 2, citing, inter alia, Geoffrey of
M onm outh distinguishing between violent an d ju st acquisition of
property. For permissible self-help, see also below, pp. 211-12.
22. See below, pp. 69-70, 76.
23. Lawsuits, no. 408.

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 T H E F O R M A T I O N O F T H E E N G L I S H C O M M O N LAW

argum ent, they also usually included some distinctive and

formulaic elem ents, indicating the existence of a register of
language which could signify legal affairs.24 This is true also
o f legal activity other than court-room disputes: for
example, the drawing up of a charter in Latin had its own
special phraseology.
Setting and language can thus distinguish the ‘legal’, and
so too can appeal to norm s, or what are usually referred to
as customs. Customs are n o t simply neutral statem ents of
what usually happens; rather they are prescriptions of
established and pro p er action, prescriptions which carry
authority.25 Records of cases occasionally make explicit
reference to the custom of the locality or the realm .26
People at the time allowed a place within law for some
exercise of discretion, particularly by one with power.
However, they also regarded law as involving the tem pering
o f will by custom, notions o f reasonableness, advice, or
court ju d g m en t.27
The categorization of certain affairs as legal does not
make law at this time completely distinct from the rest of
social life, n o r give it as m uch autonom y as exists for
m odern or even later medieval law. Clearly the legal
business o f courts m ight have been h ard to distinguish
from their other activities, and n o t all argum ents put
forward in law cases were distinctively ‘legal’ in nature.28
However, we shall discover that the category was becom ing
m ore discrete. Royal adm inistrators, for exam ple, came to
specialize in either law or finance. Law came to have some
systematic existence of its own, and experts were
increasingly capable o f m anipulating it in o rder to obtain
results distant from the social norm s o f the day.29

24. See below, p. 71; out-of-court activity could also, o f course, involve
form ulaic oaths.
25. H ad I included an entry for custom in the glossary it m ight have
read ‘Custom: (i) a norm , questioning of which m ight draw the
answer “well, th a t’s how we do things h e re ”
26. See e.g. below, p. 54.
27. See also below, ch. 8.
28. See also e.g. below, p. 56; also p. 102 on gifts to the Church. O f
course, n o t all argum ents p u t forward in m o d ern law courts are
distinctively ‘legal’.
29. See below, pp. 227-30.
 IN TR O D U C T IO N

THE FUNCTIONS OF LAW

Law is one m eans whereby societies are regulated and
whereby m em bers o f those societies achieve their ends. Law
includes substantive elements, determ ining rights, claims,
obligations; one exam ple would be a custom that if an
eldest son survives a tenant, he will succeed to the whole of
the inheritance. It also includes m ore m anagerial matters,
how the process o f succession is to take place, how a
charter should be drafted. And it includes the admin-
istration of justice, for exam ple the sending of writs, the
holding of courts, the giving o f judgm ents.
A first function of law, and the one that medieval, like
m odem , people m ight have identified most readily, was to
keep the peace and restrain wickedness. In particular, in a
society where violence was frequent, law should protect the
weak, especially those lacking any m ore im m ediate
protector. In such circumstances it was often necessary for
law to be backed by its own violence, notably to punish
offenders, both because it was felt that they deserved the
penalty and also to deter others.30
Punishm ent is one way in which a case can end, and the
settlem ent o f disputes is another o f the functions o f law.
The settlem ent may be achieved in or out o f court but in
either case law provides certain guidance and constraints
which may aid the process, rem oving or channelling
em otions which m ight perpetuate the dispute. Law should
also help to ensure that the settlem ent sticks, for exam ple
through publicity or through coercive force. However, its
success is far from guaranteed, for parties in disputes can
employ law for their own ends. In the medieval period a
particular problem was accusation through hatred. Unless
the wrongful motive were identified, this m ight allow the
accuser an official setting in which to fight his enem y and,
if victorious, an authorized opportunity to inflict terrible
punitive violence upon him .31
However, to concentrate upon courts, o r even upon
disputing m ore generally, is too narrow a focus. Law

30. See e.g. below, p. 139.

31. See below, p. 160.

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 T H E F O R M A T I O N O F T H E E N G L I S H C O M M O N LAW

provides guidance for avoiding trouble or punishm ent,

thereby assuring a m ore peaceful life and preventing
disputes. Law also enables certain actions to be carried out,
or reinforces those actions. A m an may wish to make a gift
to a church which will last beyond his death. His capacity to
do so is determ ined by a variety o f factors, b u t it is greatly
strengthened if such a grant is protected by law. Legal
practice may also help by indicating the form to be taken
by a docum ent recording and hence protecting the gift.
Law thus provides authority and protection for a party
acting according to its norms, m aking his action a legal act.
Different ideological slants can be p u t on law, in part
according to the position of the observer. It can be taken as
a coherent system or as an incom prehensible intrusion into
o n e ’s life, and can be regarded as a sign o f the proper
functioning o f governm ent, as a m ethod o f control, or of
oppression. All such views were taken o f the Anglo-Norman
and Angevin kings and their use of law.32 In these various
ways, settling disputes, keeping the peace, punishing
offenders, controlling or oppressing the people, restraining
or restricting the ruler, guiding, enabling or reinforcing
actions, law helped to make social life m ore predictable.
Law and custom were intimately related; they were in part
determ ined by com m on practice, but themselves, in turn,
determ ined such practice.

DISPUTING AND NEGOTIATING

The functions o f law, the existence of a category o f the
‘legal’, and their close integration with other social practices,
will becom e apparent in many ways, but here I concentrate
upon the processes o f disputing and negotiating. A dispute
has arisen: how are you to achieve your ends, or at least
obtain the best possible settlement? The available m eans
are diverse. Courts are only one option, and other m ethods
may be pursued instead or in parallel. Even if you have a
good case, you may face many problem s. Problem s of
com m unication may ren d er potential sources o f justice,
such as the king, very distant. O r the lands which your
oppo n en t is claiming to hold from you may be far from the

32. See Holt, Magna Carta, p. 88; also e.g. CMA, ii 298.

8
 IN TR O D U C T IO N

centre of your power. O r he may be able to draw upon

various sources o f strength unavailable to you. He may be
able to withdraw favour from you or your supporters. You
may even have to decide that you cannot pursue your case,
as the risks are too great or your chances of success
negligible.33 Moreover, you and your o p p o n en t are n o t the
only people affected by and therefore involved in the
dispute, and others may have different aims. The king or
an o th er lord may be m ost in ten t on m aintaining the peace,
asserting his own power, or gaining financially. The various
com m unities o f which you are a m em ber have interests of
their own, desiring perhaps to restore their peaceful
functioning, perhaps to re-adjust the balance of power. All
of these different interests may dem and difficult decisions
as to how to pursue your case.
Disputing within and outside court displayed many
similarities. Disputes outside court obviously involved con-
frontation between the parties, and th roughout our period
the emphasis in court, too, was upon individuals starting
cases conducted in an adversarial fashion: one party
bro u g h t a com plaint or accusation against the other.34
Certainly, judicial proceedings in court could be
distinguished by particular formality at various stages. The
party who had brought the case m ade his form al
accusation, his oppo n en t his form al denial. At least part of
their statem ents m ight be highly formulaic and
accom panied by oaths.35 T here were also form al judgm ents,
first as to which party should produce p ro o f o f their claim,
secondly as to the outcom e of that proof. P roof could take
many forms, for example, the testimony of witnesses or
docum ents,36 ordeal by h o t iron or cold water, or trial by

33. Some anthropologists and anthropologically influenced legal historians

with a liking for technical term s categorize such decisions as
‘lum ping it’.
34. See below, chs 3 and 4 for greater detail, and discussion of
com m unal accusations; h ere and later I rely prim arily on case
reports rath e r than the Leges.
35. See e.g. LHP, 64, Downer, pp. 202-6; on the limits o f the need to
be word perfect in such statem ents, Brand, Legal Profession, pp. 3-4.
For argum ents concerning the limits o f legal representation in
court in the Anglo-Norman period, see ibid., pp. 10-13.
36. See e.g. Lawsuits, nos 3, 189 (Domesday Book), 226, 243, 257 (false
ch a rte r).

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 T H E F O R M A T I O N O F T H E E N G L I S H C O M M O N LAW

battle. Alternatively, a variety o f forms o f oath could be

assigned to the party himself, to a representative, to the
supporters o f one or both parties, o r to a body of
im portant people, sometimes b u t not always the suitors of
the court.37 O n occasion a group o f local people, often but
n o t always twelve in num ber, m ight be delegated to decide
the case on oath; such was a decision by jury or inquest.38
However, o th er court proceedings m ight resem ble
non-judicial negotiation, for exam ple with lengthy and less
formal pleading and discussion. D epending on the origins
and status o f the parties, and perhaps the type o f court, the
language o f business in the Anglo-Norman period would be
French o r English. Pleas between great m en in the royal
court would almost certainly be in French, those between
m inor m en in the h u n d red in English; interm ediate
situations are less certain. Use o f French in influential
contexts, continuing even when English may have been the
first tongue great m en acquired, helps to explain the
im portance o f French-derived vocabulary in ou r legal
language.39
A lthough parties sometimes produced docum ents to
back their claims, on occasion decisively, and writing was
im portant for other legal purposes, this was a largely oral
culture. Each party m ight tell their story, their talu (O ld
English) or conte (O ld F ren ch ). Com m on knowledge o f the
parties’ affairs lim ited the scope for invention, and
dem anded plausibility. Some argum ents m ight be piled up

37. See e.g. Lawsuits, nos 166, 193, 215, 280.

38. See e.g. Lawsuits, no. 298. I do n o t discuss questions concerning the
Anglo-Saxon o r Frankish ‘origin o f the ju ry ’ as I am convinced by
Susan Reynolds’ argum ent in Kingdoms and Communities in Western
Europe, 900-1300 (O xford, 1984), esp. pp. 33-4, th at decisions by
sworn bodies o f neighbours were com m on to early medieval law in
many regions, an d th at the peculiarity o f E ngland com es from royal
form alization o f ju ry p rocedure, especially in the Angevin period;
see below, ch. 5. Ju ries in the A nglo-Norman p eriod were often
used for disputes concerning a variety o f rights, rath e r than in
land-holding cases, e.g. Lawsuits, no. 254B.
39. P. R. Hyams, ‘T h e com m on law an d the F rench co n n ectio n ’, ANS 4
(1982), 91-2 is the best discussion o f pleading language. O n legal
language, see Pollock an d M aitland, i 80-7; J. P. Collas, éd., Year
Book 12 Edward II (Selden Soc., 81, 1964). For use o f English, see
e.g. Lawsuits, no. 204.

10
 IN TRO D U CTIO N

to influence the audience, others on their own m ight

suffice to win the case.
Views o f what was lawful provided guidance. T here were
no full-time professional lawyers, b u t a disputant m ight
draw upon the wisdom o f a m an expert in laws and other
relevant m atters.40 Alternatively, an expert m ight be called
in by the president of the court or his superior, as at the
great trial at P enenden H eath in 1072 when ‘Aethelric
bishop o f Chichester, a very old m an, very learned in the
laws of the land, . . . had been brought in a cart at the
king’s com m and in order to discuss and expound those old
customs o f the laws’.41 More generally, parties took counsel
from their friends and peers, although in court this m ight
only be allowed in some circumstances and with the
permission of the court-holder.42
Im plicit or explicit appeal m ight be m ade to norms, and
discussion turn on the relationship o f these to the
particular facts o f the case. Thus each side m ight accept the
implications of certain forms of land-holding, b u t argue as
to which form was at issue.43 However, the num ber o f cases
decided by a knock-down legal argum ent was smaller than
in m odern law, and hard cases could arise for a wider
variety o f reasons. Some would stem from the lack of
obvious right and wrong according to law, b u t others from
differing perceptions o f reasonable action, from the
irreconcilability o f the parties, or from disparity in their
power. In such circumstances argum ent was likely to be less
structured, wider ranging. Eloquence, astuteness, and
reputation, as well as the bringing o f evidence, were of
great im portance.

40. See e.g. Lawsuits, nos 10, 206, CAM, ii 2 for causidiά. O n the
im portance o f advisers or suitors with good m em ories, see e.g.
Lawsuits, no. 4. For m ore specialized advice in a case involving
canon law, see the Anstey dispute, Lawsuits, no. 408.
41. Lawsuits, no. 5B.
42. E.g. O rderic, vi 20; Lawsuits, no. 321 (p. 274); LHP, 47.1, 48.1,
Downer, pp. 156-8.
43. See below, pp. 105-8; for still m ore explicit appeal to norm s, and
arg u m en t over fact, see the Anstey case, Lawsuits, no. 408; for
arg u m en t based on procedural p recedent, Lawsuits, no. 134; for
arg u m en t on motive, below, p. 61. T he lack o f reco rd ed explicit
citations o f norm s reflects n o t ju st the tendency to im plicit appeal
to norm s b u t also the n atu re o f the records.

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 T H E F O R M A T I O N O F T H E E N G L I S H C O M M O N LAW

The opinion o f o n e ’s ‘peers’ was therefore highly

influential. O n e ’s reputation, o n e ’s h o n o u r counted for
m uch, as did o n e ’s word.44 If n o t respected, one m ight at
least be feared. We know o f lords such as the Clares against
whom m en reputedly dared n o t pursue lawsuits. Tenants,
too, m ight seek to deter lordly control by ‘promises,
threats, and terrorisation’.45 Particularly less powerful
disputants would need backers. Past favours m ight be
recalled, any possible relationships drawn upon. According
to the abbey’s chronicler, Abbot V incent of A bingdon
preserved his right to the h u n d red of H orm er and a
m arket at A bingdon n o t merely because he gave 300 marks
to H enry I, but also because he was ‘supported by the
favour o f the barons, as he was loved by everyone since he
was m unificent and generous’.46 Money and wealth were
always useful in obtaining support, and the difference
between an acceptable grant and a bribe m ight be in p art a
m atter o f timing but also one o f view-point. Grants were
m ade to officials or others in retu rn for future support, or
to a m an acting as the ‘protector and frien d ’ o f a church.47
An interesting settlem ent between the abbot o f Abingdon
and Nigel d ’Oilly also reveals the logistical problem s of
disputing: whenever the abbot had a plea in the king’s
court, Nigel was to be present on the abbot’s side, unless
the plea was against the king, and whenever the abbot went
to the king’s court, Nigel was to provide lodgings for him.
If Nigel could find nothing appropriate, he was to give up
his own lodgings to the abbot.48

44. See below, p. 77. For suggestion th at status should affect procedure,
see LHP, 9.6a, Downer, p. 106.
45. E. O. Blake, ed., Liber Eliensis (C am den Soc., 3rd Ser. 92, 1962), pp.
226-7, Lawsuits, no. 258. N ote also curses, e.g. Lawsuits, no. 271; the
presence o f large groups o f m en to coerce oppo n en ts in court, e.g.
Lawsuits, no. 174; an d warranty, see below, p. 110.
46. Lawsuits, no. 246. N ote also LHP, 57.8, Downer, p. 178 on lords
m aintaining their m en in disputes, as opposed to incurring sham e
by abandoning them .
47. CMA, ii 230, Lawsuits, no. 252; note a ls o j. A. G reen, The Government
of England under Henry I (Cam bridge, 1986), p. 182, Brand, Legal
Profession, pp. 9-10; Lawsuits, no. 317. For the use of m oney in
com prom ise settlem ents, see e.g. Lawsuits, no. 238.
48. Lawsuits, no. 206. See also J. H. Round, ‘T he Burton Abbey surveys’,
EHR 20 (1905), 282.

12
 IN TRO DU CTIO N

Requests for aid o r ju d g m en t m ight also be m ade to still

higher authorities. The king could intervene in person or
by writ, by ordering that som ething be done or by setting a
hearing in m otion. Such need not be im personal
bureaucratic acts but loans of royal power, applications of
the royal will. Sometimes they led to unjust or overly hasty
action, and the king had to issue an o th er writ to reverse
the effect o f the first.49 Parties m ight have to bid for royal
support, and even then the king’s intervention m ight not
be effective.50
Lastly, help m ight come from above, from God o r a
saint. Such aid could be requested, by reciting a charm for
the retu rn o f stolen goods or a prayer for the defeat of
o n e ’s enemies:

O L o rd , m a s te r o f all, w e b e s e e c h y o u w h o love all ju s tic e ,

a v e n g e th e w ro n g d o n e to y o u r se rv a n ts a n d b e w ith u s in o u r
p r e s e n t trib u la tio n . . . . T h o u also h o ly M ary, p e r p e tu a l v irg in ,
b e w ith u s in o u r n e e d a n d te a r f ro m o u r e n e m y ’s h a n d th e
p o sse ssio n o ffe re d to th is y o u r h o ly c h u r c h . . . . S ee to it, L ady,
th a t th e e n e m y w h o d id n o t fe a r to in v a d e y o u r p o sse ssio n
d o e s n o t en jo y it.31

God or his saints m ight respond in various ways. St Dunstan

reputedly gave Lanfranc encouragem ent at P enenden
H eath, whilst in a lengthy dispute between Bury and the
bishop o f Thetford, the king refused to act decisively, but
St Edm und

w h o h a d b e e n p a tie n t fo r a lo n g tim e , a t la st to o k re v e n g e fo r
h is p e o p le . As th e b is h o p was rid in g th r o u g h a w o o d a n d
ta lk in g w ro n g fu lly w ith h is fo llo w in g [ a b o u t th e d is p u te ] , a

49. E.g. Lawsuits, no. 218; note also no. 246. For the personal tone of
royal orders, see e.g. CMA, ii 90. Support, including royal support,
m ight also be presented th ro u g h a confirm ation charter: note e.g.
Lawsuits, no. 220.
50. See e.g. Lawsuits, no. 146; for problem s arising from a royal order,
see also no. 173.
51. P. R. Hyams, ‘Feud in medieval E ngland’, Haskins Society Journal 3
(1992), 4; see also 17-20 on ecclesiastical involvement. For charms,
see e.g. G. Storms, Anglo-Saxon Magic (The H ague, 1948), pp. 202-5,
302; the magical as well as the Christian elem ents o f such charm s
are clear.

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b ra n c h h it his eye - clearly th e effect o f th e sain t’s revenge -

causing th a t m an , w hose eyes w ere b o th b le e d in g copiously,
su d d e n a n d awful pain. T h e inside o f his eyes was seen to be
full o f p u trid flesh . . . .52

As is clear also from the practice of trial by ordeal, this was

a society in which the supernatural could determ ine
worldly affairs, especially when ordinary m eans were
proving insufficient.
We are here also moving from peaceful if sometimes
threatening acts, which m ight occur in as well as outside
court, into the realm of forceful and violent deeds. Forceful
m ethods ranged from pressure to outright violence. In
some instances, for exam ple the tem porary taking o f cattle
which had strayed on to o n e ’s land, self-help was generally
acceptable. In others, it m ight raise the tem perature o f a
dispute. T here are some notable signs that Anglo-Norman
society was relatively peaceful, at least com pared to
contem porary C ontinental realms. Most famously, O rderic
Vitalis wrote that H enry I accused Ivo o f G randm esnil ‘o f
waging war in England and burning the crops o f his
neighbours, which is an u n h eard o f crime in that country
and can only be atoned by a very heavy penalty’.53
However, the use o f low level violence, particularly against
property rath er than persons, was n o t entirely excluded
from disputes in post-Conquest England, even u n d er H enry
I.54 Two periods may have seen m ore serious and frequent
violence. We shall turn to S tephen’s reign in chapter 5, and
here touch upon the decade or two immediately after the
Conquest. T he Life of St Modwenna, w ritten between 1118
and 1150, recalls the following incident from c. 1090. Two
m en living u n d er the authority (sub iure) o f the abbot of
Burton ran away to a neighbouring village, and wished to
live u n d er the power (sub potestate) o f C ount Roger the

52. Lawsuits, nos 5, 9; see also nos 10, 16, 146, an d below, p. 76. T he
p ro p o rtio n o f recorded cases involving divine o r saintly intervention
seems to have been high in William ľ s reign relative to those o f his
sons.
53. Lawsuits, no. 190.
54. See Lawsuits, no. 173 for a riot; no. 272 for violence against
property. See below, p. 109, for possible problem s with the
evidence; p. 96 on distraint.

14
 IN TRO D U CTIO N

Poitevin. T he abbot therefore ordered that the crops, still

in the m e n ’s barns, be seized, ‘hoping in this way to induce
them to retu rn to their dwellings’. T he m en looked to the
count for protection, and in his anger he threatened to kill
the abbot wherever he was found.

V iolently angry, th e c o u n t g a th e re d a g re a t tro o p o f peasants

a n d knights w ith carts a n d w eapons a n d sen t th e m to th e
m o n k s’ b arn s at S tapenhill a n d h a d th em seize by fo rce all the
crops sto re d th ere. . . . N o t c o n te n t with this, C o u n t R oger se n t
his m en a n d knights to lay waste th e ab bey’s fields at
B lackpool, en co u ra g in g th e m especially to lu re in to battle the
ten knights w hom th e a b b o t h a d re c ru ite d as a re tin u e from
a m o n g his relatives.

T he abbot sought to restrain his knights, and looked to

God instead. His knightly relatives, meanwhile, ignored his
prohibition, and set out to do battle, ‘few against m any’.
Despite their num erical superiority, the co u n t’s knights
were scared off once one of them had his leg broken and
ano th er was hurled into a nearby m uddy stream .55
H ere then we have outright inter-personal violence.
However, it m ust be rem em bered that forceful action could
be pursued in conjunction with other deeds in o r out of
court. Action in a dispute m ight begin o u t o f court, then
involve a court hearing, only to be settled out o f court. O r
the approaches m ight be adopted simultaneously. A land
claim m ight be pursued in court. At the same time, or
when the court was n o t actually sitting, negotiation m ight
be conducted in the same place, during feasting or
drinking. Meanwhile, in the region o f the land itself, the
parties m ight bring all sorts o f pressures to bear upon each
other.
Pressure in or out o f court could com pel one party to
adm it that he was in the wrong.56 Alternatively, in judicial

55. Reference an d translation courtesy o f Professor Bartlett, whose

edition an d translation o f the Life will ap p ear in Oxford Medieval
Texts. T he peasants who were the cause o f the trouble died
suddenly. O n the day when they were buried, they ap p eared
carrying th eir w ooden coffins on shoulders. N ot surprisingly, this
led the co u n t to repent, an d submit.
56. See e.g. Lawsuits, no. 164.

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 T H E F O R M A T I O N O F T H E E N G L I S H C O M M O N LAW

proceedings, once p ro o f had been m ade, the ju d g m en t of

the court was announced, probably by the person presiding
over it. However, th roughout the court process there
rem ained the possibility o f a com prom ise settlem ent. Such
compromises, which were very com m on, m ight be
encouraged by the divided loyalties of those interested in
the case; by the self-interest o f the parties, perhaps seeking
com pensation rather than punishm ent, perhaps unwilling
to risk a court decision; and by a general preference for
‘love’ overcoming ‘j u d g m e n t’.57 T he end result o f judicial
proceedings therefore m ight well resem ble that of
negotiation out of court.
Any settlem ent or decision —for exam ple, punishm ent,
com pensation, or restoration o f land - had then to be put
into effect and measures taken to ensure that it lasted.
Publicity and stability could be obtained through witnessing
and through the use of writing. Rhetoric, ceremony, and
spectacle m ight n o t only strengthen the present decision
but also deter other potential offenders or claimants.58 Like
the other elem ents o f disputing, these too can be fitted into
a wider and longer process. Even an apparently decisive
court ju d g m en t need n o t m ark the real end o f a dispute.
Rather, the parties would be finally reconciled by a
marriage, or a dispute over a piece o f land ended by its
grant to a church.

ENGLISH COMMON LAW

To retu rn to our categorizations o f law. Clearly, a com m on
law should be one which applies throughout the realm,
except perhaps in a lim ited num ber o f obviously privileged
areas. O utside these areas, other jurisdictions should be
subordinate to that adm inistering the com m on law. This
law should be generally available, at least to a significant
portion of the population. Its operations should show

57. See e.g. LHP, 6.6, 49.5a, D ow ner, pp. 98, 164; also S. D. W hite.
‘ “ Pactum . . . L·gern vinάt et amor iudiάum"·. th e settlem ent of
disputes by com prom ise in eleventh-century western F rance’,
American Journal o f Legal History 22 (1978), 281-308, and com m ents
in H udson, Land, Law, and Lordship, pp. 146-8.
58. See e.g. CMA, ii 203, Lawsuits, no. 254B.

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 IN TR O D U CTIO N

considerable regularity, both in substantive rules and

procedure.
Com m on law m ust contrast with a regionally based law.
T he reign of E thelred the U nready (978-1016) had seen
law-codes which applied solely to those who lived in the
Danish areas of the realm. Such divisions are recalled in
archaicizing twelfth-century texts such as the Leges Henrici of
1114-18, with their distinction between the laws of Wessex,
the laws of Mercia, and the Danelaw.59 Yet Anglo-Norman
records and legislation do n o t support such a tripartite
division. Customs were either m ore local or notably
unvaried. Perhaps the tripartite division had never been as
clear as these texts suggest, or perhaps the C onquest and
settlem ent broke down regional variation. Such was a
fu rth er step, both practical and ideological, towards the
fusion of various elem ents into a com m on law.
Com m on law is territorial, applying to people because
they are within the realm, in contrast with a system of
‘personal’ law, w here a p erso n ’s nationality determ ines the
type o f law to which he or she is subject. Following
Hastings, the conquerors m ight have chosen to m aintain
one law for themselves, an o th er for the English. William ľ s
reign did see legislation dealing with the relationship
between conqueror and conquered, notably with regard to
proof.60 However, the Conquest did n o t result in any
lasting strict and general division between laws for the
conquerors and the conquered, as would later occur for
exam ple in Ireland. Rather, the N orm ans seem to have
been happy to accept im portant elem ents o f English
custom, whilst im posing some of their own ideas and
practices. Assimilation was doubtless eased by various
factors, besides the gradual m ingling o f English and
N orm an. N orm an lords were able to apply for themselves
and their followers their own customs which most m attered

59. LHP, 6, Downer, p. 96; for local variation in the Leges, note also e.g.
LHP, 64.1, Downer, p. 202. Cf. the aspiration to one law for the
whole country expressed in Consiliatio Cnuti, Prooem . 2,
Lieberm ann, i 618.
60. See Lieberm ann, i 483-4, also 487. For im p o rtan t com m ents, inter
alia, on the problem s of the texts, see G. S. G arnett, ‘ “ Franci et
A ngli” : the legal distinctions between peoples after the C onquest’,
ANS 7 (1985), 130-4. See also below, pp. 62-3 on the m u rd er fine.

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 T H E F O R M A T I O N O F T H E E N G L I S H C O M M O N LAW

to them , concerning land-holding. Some of these came to

be applied also to English tenants, as they received grants
from N orm an lords. Elements o f English land law no doubt
survived for those o f lower status, but there is no sign that
this body o f custom was regarded as English. Besides this
tendency to focus on status rather than nationality,
assimilation was probably helped by the significant
similarities between N orm an and English custom. Both
owed m uch to a Carolingian legacy. Attitudes as to which
were the m ost serious offences were alike. Some elem ents
o f English law at least sounded peculiar to Normans, but
when kings confirm ed the Laga Edwardi, they were
confirm ing som ething that may have been largely
com prehensible to them and their followers. Again,
therefore, the Conquest did n o t act as a barrier to the
developm ent o f a com m on law.
W hat then o f the phrase ‘com m on law’ itself? By the
time o f Innocent III (1198-1216), it was used by canonists
to distinguish the ordinary law of the C hurch from any
rules o r privileges peculiar to particular provincial
churches.61 The English law book Bracton in the second
quarter of the thirteenth century used it to indicate rights
given to all m en by the law o f the land, rath er than having
their origin in some specially w orded grant or contract. A
writ o f 1246 expressed the king’s wish that all writs ‘o f the
com m on law [de communi iure¦’ which ru n in England were
similarly to ru n in Ireland.62 At least by the m iddle o f the
thirteenth century, therefore, the phrase ius commune was
being used to indicate the norm al law o f England, enforced
by the king’s court, above localcustom. In the twelfth
century, too, phrases were used to indicate some kind of
law com m on to the whole o f England. Courts were held ‘as
the custom is in England’, cases were adjudged ‘according to
the custom o f the la n d ’.63 Most significant o f all is Richard
fitzNigel’s statem ent in the Dialogue of the Exchequer, c. 1179,
that ‘the forest has its own laws [leges] based, it is said, not

61. Pollock and M aitland, i 176-7.

62. Pollock an d Maitland, i 177-8.
63. Note e.g. Lawsuits, nos 6 (Orderic’s famous statements about English
law an d the laws o f the N orm ans concerning treason), 183, 204,
381.

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 IN TR O D U CTIO N

on the com m on law o f the realm [ commune regni ius¦ , but

on the arbitrary decree o f the king’. The implicit emphasis
on the justice, general applicability, and lack of
arbitrariness of the com m on law is most striking.64

THE FORMATION OF THE ENGLISH COMMON LAW

H istorians have given various accounts and explanations of
the birth of the com m on law. F. W. M aitland, writing in the
late nin eteen th century, produced w hat is still the standard
picture. H e saw the com m on law as the pro d u ct of the
genius of H enry II and his advisers:

th e re ig n o f H en ry II is o f su p rem e im p o rta n c e in th e history

o f o u r law, a n d its im p o rta n c e is d u e to th e action o f the
ce n tra l pow er, to reform s o rd a in e d by the king. . . . H e was for
ever busy w ith new devices fo r e n fo rc in g th e law. . . . T he
w hole o f E nglish law is centralized a n d u n ified . . . .65

With regards to land law, there was n o t so m uch a change

o f substantive rules as a transfer o f jurisdiction from local
to royal courts; the latter offered swifter and m ore rational
justice. In crim inal law, on the other hand, there was a
m arked shift in the substance o f the law during the twelfth
century: the com m on law of crime, with its categorization
of serious offences as felonies punishable by death,
replaced an ancient system which laid far greater emphasis
u p o n individual action aim ed at com pensation and other
forms o f paym ent.66
Most subsequent studies, notably those o f Lady Stenton
and R. C. van Caenegem, have been elaborations or
qualifications o f M aitland’s picture, retaining his emphasis
u p o n the Angevin period, and particularly H enry II and his
genius.67 However, since the 1960s S. F. C. Milsom has been
producing a markedly different framework of developm ent.
From a focus upon land-holding, he argues that law before

64. Dialogus, pp. 59-60.

65. Pollock an d M aidand, i 137-8.
66. Pollock and M aitland, ii 448ff.
67. See esp. Stenton, English Justice, R. C. van Caenegem , The Birth of the
English Common Law (2nd edn, Cam bridge, 1988), esp. p. 100.

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 T H E F O R M A T I O N O F T H E E N G L I S H C O M M O N LAW

the Angevin reforms was fundam entally different in nature

from the com m on law.68 The key u n it - social, political,
and legal - in Anglo-Norman England was the lordship,
presided over by the lord in his honorial court. In such a
context, law and land-holding rested on custom, not legal
rules. Pressure for obedience came prim arily from morals
and habit, n o t from enforcem ent by a sovereign state.
Tenants might, for example, commonly succeed to their
fathers’ lands, but they had no enforceable legal right to do
so, since there was no superior authority to enforce such
rights. The Angevin reform s transform ed this situation,
since they provided routine royal enforcem ent for tenants’
customary claims against their lords. But this was an
u n in ten d ed effect. T he reform s were restricted in intent
and inspired n o t by genius b u t simply by a desire to make
the old system work according to its own terms.
M aitland’s picture is now also sustaining attack from a
different direction. Patrick W orm ald argues that key stages
of the ‘Making o f English Law’ took place in the
Anglo-Saxon period. H e emphasizes the power of
Anglo-Saxon royal adm inistration. England knew no great
privileged areas from which the king was excluded, and
lordship did n o t of itself involve significant powers of
court-holding. Crim inal law in particular had developed a
considerable distance towards its com m on law form. The
notion of serious offences being against the king, state, or
community, and the general practice of punishing them by
death, had em erged in the tenth and eleventh centuries.
Practices were fairly uniform throughout the realm, and
were determ ined and m odified by royal law-making.69
The present book argues that, following very im portant
developments after the N orm an Conquest, key social,

68. See esp. Milsom, Legal Framework. N ote J. G. H. H udson, ‘Milsom’s

legal structure: interpreting twelfth-century law’, Tijdschrift voor
Rechtsgeschiedenis 59 (1991), 47-66.
69. See e.g. P. W ormald, ‘M aitland and Anglo-Saxon law: beyond
Domesday Book’, in H udson, Centenary Essays; ‘C harters, law and
the settlem ent of disputes in Anglo-Saxon E ngland’, in W. Davies
and P. Fouracre, eds, The Settlement of Disputes in Early Medieval
Europe (Cam bridge, 1986), pp. 149-68; his fullest statem ent will
appear in The M aking of English Law (Oxford, 1997). For the unity
o f Anglo-Saxon law, see also e.g. Stenton, English Justice, p. 54.

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 IN TRO D U CTIO N

political and legal elem ents in the form ation o f the

com m on law were in place by 1135: strong kingship;
significant lordship; im portant inter-relations between
rulers and local com munities. These conditions underlie
and are reflected in the developm ent and standardization
of custom in significant fields of law, such as land-holding.
T he existence of such customs, and the conditions
underlying them , perm itted the administrative and
intellectual developm ents of the Angevin period which
com pleted the form ation o f the com m on law. Thus the
‘genius’ o f H enry II and his advisers receives less emphasis
than in the M aitland tradition: H enry’s servants applied
their own notions and practices concerning adm inistration
to a body o f existing customs and developing legal ideas
which had deep roots in society. O n the o th er hand, I
argue that Milsom’s view of these customs and legal ideas is
flawed, and propose a markedly different picture of
Anglo-Norman lordship and kingship. And finally, whilst
the Anglo-Saxon legacy was considerable, the N orm an, like
the Angevin, was a very im portant creative period for legal
development.
My purpose, therefore, is n o t to trace the origins o f every
elem ent of the com m on law to its Anglo-Saxon, Norm an,
or o th er beginnings, b u t to analyse the processes whereby
these elem ents were assembled in the century and a half
after 1066. Some were derived from Anglo-Saxon England,
most notably those which provided crucial administrative
power, related to violence and theft, or concerned
land-holding in the lower levels of society. Developments in
these areas continued after 1066, in part because many
N orm an traditions and practices were n o t incom patible
with those of Anglo-Saxon England.
O ther elem ents were introduced by the N orm an
Conquest, or were a product of it. N orm an legislation was
lim ited,70 and William I and his sons em phasized their
position as legitimate rulers of England by confirm ing the
Laga Edwardi, the ‘Law of Edward’, m eaning the good old
law of the Anglo-Saxon period. However, such confirma-

70. See below, pp. 48-9, 78; for fu rth er m ention of N orm an legislation,
see Eadm er, Historia Novorum in Anglia, ed. M. Rule (London,
1884), p. 10.

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 T H E F O R M A T I O N O F T H E E N G L I S H C O M M O N LAW

tions did n o t lead to a simple continuation o f Anglo-Saxon

law. T he confrontation o f two sets o f legal practices
perhaps encouraged reflection upon custom. Certainly, the
fact that England after 1066 was a colonial society, ruled by
foreigners who had established themselves by conquest,
itself had an effect on law. The strength o f a conqueror,
com bined with the Anglo-Saxon legacy, produced a very
powerful kingship. Anglo-Norman as opposed to
Anglo-Saxon lordship seems to have com bined m ore tightly
elem ents o f personal lordship, jurisdiction, and
land-holding. The conquering N orm an aristocracy,
moreover, introduced ideas and customs concerning land-
holding, particularly in the higher levels o f society, which
were to form the basis o f com m on law property. Essential
elem ents o f the com m on law thus existed by 1135; however,
royal power and judicial practice rem ained m ore ad hoc,
less bureaucratized than they would be in the thirteenth
century.
The restoration o f royal authority after S tephen’s reign
involved reform s in the field o f law and justice, reforms
which continued throughout H enry II’s reign and into his
sons’. They were characterized by processes of
categorization and routinization, in particular the routine
royal treatm ent of a wide range of cases. In the field of
land-holding, the period saw the em ergence o f the main
com m on law actions, in that o f violence and theft the
appearance o f the classification ‘crim e’ and the term ing of
serious offences as ‘felonies’. At the same time there started
to em erge a specialist judiciary, a vital step towards an ever
m ore specialized law, distanced from ordinary social life,
and understood and practised primarily by professional
lawyers. Considerable im petus for reform came from royal
governm ent, perhaps from royal officers m ore than the
king himself. T he reform ers’ great skill was n o t the
invention o f completely new measures but the cobbling
together o f successful devices from existing materials and
their transform ation by routine application. At the same
time, it rem ains true to say that n o t even the m ost far-
sighted am ongst H enry Iľ s adm inistrators could have
foreseen, let alone planned, the degree to which the
business o f royal courts grew. The im petus provided by the
reform ers was accelerated by the consum er dem and for

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 IN TR O D U C T IO N

royal remedies. T ogether with the inheritances o f custom

and strong kingship from the Anglo-Saxon and N orm an
periods, these com bined to form the com m on law.

23
 Chapter 2

THE COURT FRAMEWORK IN

ANGLO-NORMAN ENGLAND

In 1108 H enry I issued the following writ:

Know th a t I g ra n t a n d o rd e r th a t h e n c e fo rth my shire courts

a n d h u n d re d courts shall m e e t in th e sam e places a n d at the
sam e term s as they m e t in th e tim e o f King Edw ard, a n d n o t
otherw ise. A n d I do n o t wish th a t my sh eriff sh o u ld m ake
th em assem ble in d iffe re n t fashion because o f his own need s
o r interests. F or I myself, if ever I sh o u ld wish it, will cause
th e m to b e su m m o n e d a t my own pleasure, if it be necessary
fo r my royal interests. A n d if in th e fu tu re th e re sh o u ld arise a
disp u te c o n c e rn in g th e allo tm e n t o f land, o r c o n c e rn in g its
seizure, let this be trie d in my own c o u rt if it be betw een my
ten a n ts in c h ie f [dominicos barones meos¦. B ut if th e d isp u te be
betw een th e vassals o f any b a ro n o f my h o n o u r, le t it b e h e ld
in th e c o u rt o f th e ir c o m m o n lord. B ut if th e disp u te be
betw een th e vassals o f two d iffe ren t lords le t th e p lea b e h eld
in th e shire court. . . . A nd I will a n d o rd e r th a t th e m e n o f the
shire so a tte n d th e m eetings o f th e shire co u rts a n d h u n d re d
courts as they d id in th e tim e o f King E dw ard.1

Henry here nam ed the m ost im portant lay courts in Anglo-

N orm an England: his own court, the shire and hundred,
and the lo rd ’s h o n o u r court. T here were others, notably
m anor and urban courts, and no doubt various ad hoc
courts could also be held.2 H enry’s writ gives no impression
o f hostility to any of the courts m entioned. R ather it desires
that they all function properly.

1. EHD, ii no. 43.

2. N ote LHP, 57.1, Downer, p. 176 on courts at boundaries; Lawsuits,
nos 66, 69-72, 74-6, 78-9, 172 on ridings.

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 T H E C O U R T F R A M E W O R K IN A N G L O - N O R M A N E N G L A N D

This chapter concentrates upon prelim inary answers to

some basic questions: what sorts o f court existed? who
attended? with what business did they deal? The various
types of court shared many features and functions. They
could be n o t ju st judicial b u t also social meetings, places
for making im portant decisions, giving and taking counsel,
m ediating in disputes, witnessing transactions, and
reviewing and enforcing com m unal obligations; in general,
places for the m anagem ent of the affairs o f those holding
and attending the courts. Much of their legal business may
have been routine, such as the investigation of excuses for
non-appearance. They were com posed of the court-holder,
who presided in person or by representative, and o f m en
who can be term ed suitors, some of whom h ad a definite
obligation to attend, others o f whom did so for reasons of
their own. Judgm ents and o th er decisions, for exam ple
concerning procedure, were to be m ade by the suitors, or
at the very least with their counsel. Amongst the suitors, the
most powerful, skilled, and experienced had particular
authority.3 In practice, o f course, a strong court-holder was
able to exercise considerable influence, for exam ple over
access to his court, the speed with which cases were heard,
and over ju d g m en t itself. T he court-holder received the
incom e from penalties imposed. Still greater profit m ight
com e to him, and to a lesser extent to influential m em bers
o f the court, from proffers m ade in the hope o f swift or
favourable justice or recognition o f claims.4 N one of the
courts seem to have m aintained regular records o f their
hearings, although some may have kept note o f incom e
from cases.5
Distinctions between types o f court were slightly less clear
than some text-book accounts or indeed H enry ľ s writ
m ight suggest. In term s of composition, for exam ple, lords’

3. See e.g. G. T. Lapsley, ‘Buzones’, EHR 47 (1932), 177-93, 545-67.

O n m e n ’s peers, see Stenton, First Century, pp. 60-1.
4. For figures from the 1130 Pipe Roll, see J. A. G reen, The Government
of England under Henry I (Cam bridge, 1986), pp. 78-87; note also
the cautionary words in R. C. van Caenegem , The Birth of the English
Common Law (2nd edn, Cam bridge, 1988), p. 103.
5. H. G. Richardson an d G. O. Sayles, The Governance of Mediaeval
England from the Conquest to Magna Carta (Edinburgh, 1963), p. 185
on the eyre.

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courts m ight well include m en other than their tenants.

Lords could see the presence of a royal justice n o t as a
threat to their jurisdiction b u t as a strength. Courts gained
prestige n o t merely from their presidents b u t also from
those attending. The presence o f wise and powerful m en
increased the co u rt’s capacity to fulfil its functions.6 In
term s of business, too, the various courts had m uch in
com m on. T here were n o t strict rules o f jurisdiction
determ ining the court to which every dispute m ust come.
The geographical location o f the parties and the dispute
could be im portant. Disputants may usually have brought
cases, at least in the first instance, to the court they most
commonly attended as suitors. Indeed, m uch may have
rested on the choice of the parties; each would seek a court
where they m ight obtain a favourable and lasting
judgm ent.7 At the same time, court-holders may have
com peted to settle disputes, since doing so could increase
their authority and bring profit.
However, it would be w rong to hold that types of court
were barely distinguishable, their business entirely
negotiable. Disputes over jurisdiction did occur, and m en
could be sensitive as to which court did them justice. Early
in the twelfth century, a dispute arose between Battle
Abbey, currently controlled by a custodian during an
abbatial vacancy, and the reeve o f one o f its manors. The
reeve was sum m oned to the m anor court, but there he
resisted, ‘backed by the force o f the county nobles whom
he had brought with him ’. The custodian in the king’s
nam e then sum m oned Battle’s opponents to appear in the
abbey’s court. W hen they eventually did so, they argued
that they ‘were bound to be subject to all justice done in
their own county co u rt’, but n o t in the abbey court. The
custodian asked if they would resist settlem ent in a royal
court. ‘ “N ot at all” , they replied. “Well th e n ” , he said,
“you cannot on that ground resist this court, for it is the
king’s.” ’ T he custodian thus relied on the notion that
Battle’s court was not ju st any seignorial court - probably

6. See below, pp. 106, 114.

7. N ote Lawsuits, nos 157, 233, 351; see below, p. 40, on shire and
h u n d red . N ote also settlem ents established in m ore than on e court;
e.g. Lawsuits, no. 209.

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 T H E C O U R T F R A M E W O R K IN A N G L O - N O R M A N E N G L A N D

the view o f the county knights - b u t rather one o f a church

and lordship so closely bound to the king that it was a royal
court. The case very succinctly illustrates the capacity of
parties to distinguish between types o f court and their
jurisdiction, despite the lack of generally accepted
jurisdictional rules.8 It also reveals, in the absence o f such
enforced rules, a strong political elem ent in conflicts
arising from differing perceptions o f a co u rt’s customary
business.

THE KING’S COURT

T he doing o f justice was a central role o f the medieval
ruler, pro m inent for exam ple in the English coronation
ritual with the kings’ promises of peace and good
ju d g m en t.9 Kings and dukes had heard cases in England
and N orm andy before 1066. Such hearings could be very
formal, in the presence o f many im portant m en, or could
be royal responses to requests for justice in m uch less
stately circumstances. W here the king was, there would m en
clam our for justice, there - in theory at least - m ight justice
be obtained.10 In this sense questions concerning the
frequency, duration, or obligation to attend royal courts are
beside the point. However, there certainly were some
occasions o f greater regularity, m ost famously crown-
wearings. W riting in the early 1180s, W alter Map gave the
following account o f H enry I, which presents at least an
ideal of royal accessibility:

H e a rra n g e d with g re a t precision, a n d publicly gave n o tice of,

th e days o f his travelling a n d o f his stay, with th e n u m b e r o f
days a n d th e nam es o f th e villages, so th a t everyone m ig h t
know w ith o u t th e ch an ce o f a m istake th e course o f his living,
m o n th by m o n th . . . . H e w ould have n o m an feel th e w an t o f

8. Lawsuits, no. 174.

9. N ote e.g. L. G. W ickham Legg, English Coronation Rituals
(W estminster, 1901), pp. 30-1.
10. T h e medieval Latin clamor can have the sense o f m aking a claim in
a law case. N ote W alter M ap’s praise of H enry Iľ s patience, De
Nugis Curialium, ed. an d trans M. R. Jam es, rev. C. N. L. Brooke and
R. A. B. Mynors (Oxford, 1983), pp. 484—6.

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ju stice o r peace. T o fu rth e r th e ease o f everyone h e a rra n g e d

th a t o n vacation days h e w ould allow access to his p resence,
e ith e r in a g re a t h o u se o r in th e o p en , u p to th e sixth h o u r. At
th a t tim e h e w ould have with h im th e earls, b aro n s, a n d n o b le
vavassours. . . . A n d w hen this orderly m e th o d becam e know n
all over th e w orld, his c o u rt was desired as m u ch as o th e rs are
sh u n n e d , a n d it was fam ous a n d fre q u e n te d . O ppressors,
w h e th e r lords o r sub o rd in ates, w ere b rid le d .11

As the king was seen as the fount o f justice, his court was
potentially om nicom petent. H e responded to personal
requests for justice:

W hen fo u r g re a t ships called can ard es w ere o n th e ir way from

Norway to E ngland, R o b e rt [de Mowbray] a n d his nep h ew
M orel w ith th e ir m in io n s waylaid th e m a n d violently ro b b e d
th e p eaceful m e rc h a n ts o f th e ir goods. T h e m erch an ts, having
lost th e ir pro p erty , w en t to th e king in g re a t distress a n d laid a
c o m p lain t a b o u t th e ir loss.1^

T here m ust also have been requests which the king refused
to hear, or which never reached his ears. T he criteria for
accepting a request are unclear, but some people enjoyed
preferential treatm ent: access to the king was a crucial
source of success. Those personally favoured are hard to
identify, b u t in various cases we see royal officials obtaining
the king’s help where justice m ight have favoured their
opponents.13 O thers enjoyed a privileged position because
o f royal grants, for exam ple that they were u n d er the king’s
special protection or peace, or that they need n o t plead
except before the king or his justices.14 T here were also
cases in which the king was directly involved as lord, as in
the land disputes between tenants in chief singled out by
the 1108 writ. Further, the king was protector of the
C hurch, sometimes hearing cases, for example, concerning
the subordination of one church to another, m ore

11. De Nugis, pp. 470-2.

12. Lawsuits, no. 143C; also e.g. nos 146, 167; no. 1 shows a particularly
confrontational approach.
13. E.g. Lawsuits, no. 222.
14. See A. H arding, The Law Courts o f Medieval England (London, 1973),
p. 39; G reen, Government, p. 104.

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frequently ones concerning ecclesiastical lands.15 Such

cases were particularly im portant because of the disruption
following the Conquest, and also the increasing num ber of
m onastic foundations in the twelfth century.
In such instances the king heard the case because o f the
person involved; in others it was because o f the nature of
the plea itself, or a com bination of plea and person. At
least by H enry’s reign, certain pleas were referred to as
specially pertaining to the Crown.16 The Leges Henrici list
rights belonging to the king alone over all m en in his land:

b rea ch o f th e k in g ’s peace given by h a n d o r writ; D anegeld;

p lea o f c o n te m p t o f his writs o r orders; a b o u t th e killing o r
in ju rin g anyw here of m em b ers of his h o u seh o ld ;
un faith fu ln ess o r treason; w hoever despises o r speaks badly o f
him ; fortifications with th re e ditches; outlawry; th eft
p u n ish ab le by death ; m u rd e r; forgery o f his m oney; arson;
hou seb reak in g ; assault o n th e k in g ’s highway; fine c o n c e rn in g
fyrd service; h a rb o u rin g fugitives; p re m e d ita te d assault;
robbery; d e stru ctio n o f th e highway; taking o f th e k in g ’s lan d
o r goods [pecunie]; treasu re trove; wreck; things w ashed u p by
th e sea; rape; ab d u ctio n ; forests; reliefs o f his b arons; w hoever
will fight in th e k in g ’s h o u se o r h o u se h o ld ; w hoever breaks the
p eace in th e m ilitary host; w hoever neglects b o ro u g h o r brid g e
w ork o r m ilitary services; w hoever has o r keeps an
ex co m m u n icate o r outlaw; b re a c h o f th e k in g ’s p ro te ctio n ;
w hoever flees in la n d o r sea battle; u n ju st ju d g m e n t; d e fa u lt o f
justice; prevarication o f the king’s law.1'

Clearly n o t all of these rights can be categorized as legal

even in the widest sense. O f those that can, most may be
assigned to certain, n o t necessarily mutually exclusive,

15. Lawsuits no. 276; see also below, p. 129.

16. N ote G. S. G arnett, ‘T he origins o f the Crow n’, in H udson,
Centenary Essays, pp. 171-214.
17. LHP, 10.1, Downer, p. 108 (my translation deliberately avoids
tidying u p the original phraseology); cf. e.g. LHP, 13, Downer, pp.
116-18, Instituta Cnuti, III.46-50, Lieberm ann, i 613-14. RRAN, ii
no. 999; note the charter in H enry ľ s nam e in favour o f L ondon,
EHD, ii no. 270, on which see C. W. Hollister, ‘L o n d o n ’s first
charter o f liberties: is it g enuine?’, in his Monarchy, Magnates, and
Institutions (London, 1986), pp. 191-208. See also RRAN, ii no. 593;
Lawsuits, no. 167.

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categories: offences against the king’s person or household;

offences against royal authority or dignity; various serious
offences against the person or against goods; failure to do
p roper justice. O ther evidence supports the list, for
instance concerning dishonest moneyers, and suggests
further cases over which the king exercised control, for
exam ple disputes concerning tolls or jurisdiction.18 In
addition, all m en over the age o f twelve probably swore an
oath of loyalty to the king, and prom ised n o t to be a thief
or th ie f s accomplice. Serious offences could be seen as a
breach of this oath, and hence a m atter for royal justice.19
Having said that the king controlled this range of cases,
it m ust be pointed out that royal courts could be held
w ithout the king’s personal presence. Indeed, the N orm an
kings could n o t otherwise have exercised such wide-
ranging justice. Provision had to be m ade during the king’s
absences on the Continent. Generally a m em ber o f his
family was left in charge o f the realm .20 If no close relative
was available, one or several royal officials served. However,
even when the king was in England, his chief adm inistrator
or adm inistrators heard cases. At least from early in H enry
ľ s reign, the exchequer court m et twice a year to receive
sheriffs’ accounts and to deal with financial disputes arising
therefrom . Only two writs in the second half of H enry’s
reign, both involving the abbot o f W estminster, suggest that
the exchequer dealt with other kinds of disputes.21
Nevertheless, key exchequer figures such as Roger of
Salisbury were at the heart of the small group o f m en most
closely approaching full-time justices at this period. They
num bered a dozen or so, perhaps half of whom were active
at any time. A lthough it is hard to tell w hether they had
any official title, a variety of sources refer to individuals as

18. Moneyers: Lawsuits, no. 239; tolls and jurisdiction, e.g. nos 15, 17,
189, 191, 254; see also Leges Edwardi, 13, Lieberm ann, i 640; Pollock
and M aitland, ii 454-5 on Domesday lists o f pleas.
19. P. W ormald, The M aking of English Law (Oxford, 1977), ch. 9, and
‘M aitland an d Anglo-Saxon law: beyond Domesday B ook’, in
H udson, Centenary Essays, pp. 11, 14-15; also below, pp. 63, 162.
20. See e.g. Lawsuits, no. 189; D. Bates, ‘T he origins of the
justiciarship’, ANS 4 (1982), 1-12.
21. RRAN, ii no. 1538; Lawsuits, no. 277; Brand, Legal Profession, pp. 8-9,
Making, pp. 86-7.

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‘j ustices o f all E ngland’.22 This title indicates both their

personal im portance and their authority th roughout the
realm. It is interesting therefore to see Richard Basset
enfeoffing a tenant by service ‘o f finding for the justice a
m essenger to go through the whole o f E ngland’.23 The
geographical problem s for the regim e were considerable,
for royal justice had to be taken to the localities.

LOCAL AND ITINERANT JUSTICES

Anglo-Saxon kings had sent their officials to deal with
business in local courts, and N orm an dukes had no doubt
done likewise.24 How frequent such activities were, and
w hether there were any royal justices perm anently based in
the localities, is n o t known. The N orm an period certainly
saw innovations, but these are somewhat obscure, in p art
because writers at the time referred to very different types
o f m en simply as ‘j ustices’. Four m ain categories can be
distinguished. First there were resident justices having a
certain jurisdiction throughout one or m ore shires.
Secondly, there were m inor local officials responsible for
attending to the king’s pleas. Thirdly, individuals were
appointed to hear particular cases as royal justices. And
fourthly, there were ‘itinerant justices’ sent on a circuit of
counties to h ear a wide variety o f cases.
The evidence for justices resident in the localities is very
sparse before 1100. Ad hoc arrangem ents existed, such as
that in the C onqueror’s reign giving Aethelwig o f Evesham
wide jurisdiction in western Mercia. An early twelfth-century
Ramsey docum ent refers to Ralph Passelew as justice of
Norfolk and Suffolk in Rufus’s tim e.25 U nder H enry I there

22. Richardson and Sayles, Governance, pp. 174-6; W. T. Reedy, ‘T he

origin of the general eyre in the reign o f H enry ľ , Speculum 41
(1966), 694—7; F. West, The Justiάarship in England, 1066-1232
(Cam bridge, 1966), ch. 1. For one expression of the ideals o f one
m em ber o f this group, see the Basset seal, on the cover o f H udson,
Land, Law, and Lordship, discussed by Stenton, English Justice, p. 61.
23. C. F. Slade, ed., The Leicestershire Survey c. A.D. 1130 (Leicester,
1956), p. 15.
24. See e.g. EHD, i no. 135.
25. H. A. C ronne, ‘T he office o f local justiciar in E ngland u n d er the
N orm an kings’, Univ. of Birmingham Historical Journal 6 (1958),

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are various references to justices, notably in the addresses of

writs, sometimes in accounts o f court proceedings. However,
these do n o t establish that there was an office o f shire
justice, instituted in every shire. Unlike references in writ
addresses to the sheriff, those to justices are often in the
plural. This could m ean that there was m ore than one shire
justice in the relevant county, but might also refer to a variety
of resident officials exercising justice, or to justices visiting
the shire. These uncertainties apply equally to m entions of
justices before whom cases were heard in the shire court.
Even references to the justice of shire N.’ do not indicate
that every shire had its own shire justice, ju st as references
to the ‘earl of shire N.’ do not mean that every shire had an
earl. Rather, holders of such titles were particularly
h o n oured m en. The title and position o f shire justice seems
to have been increasingly attractive u n d er Stephen, with, for
example, Geoffrey de Mandeville referring to himself in a
charter as ‘earl of Essex and justice of London’.26
W hat seems most likely is that a variety of m en were
responsible for justice in the localities, and that on
occasion one m ight be singled out by the extent o f his
authority. A docum ent o f the Empress M atilda refers to
Geoffrey de Mandeville as ‘chief justice’ o f Essex, perhaps
implying the existence o f lesser justices.27 These lesser
m e n ’s appointm ents may have varied in scope and
formality. A case o f H enry ľ s reign m entions a justice o f a
village, a writ o f Stephen is addressed to the justices o f two
hundreds. O th er m en were referred to as ‘king’s sergeants’,
as was a certain Benjamin whose paym ent ‘to keep the
pleas which pertain to the Crown o f the king’ is recorded
in the 1130 Pipe Roll.28 The keeping of the crown pleas

18-38 argued strongly for a general office o f shire justice; note also
R. F. H unnisett, ‘T he origins o f the office o f c o ro n e r’, TRHS 5th
Ser. 8 (1958), esp. 91-2, 101-2; cf. G reen, Government, pp. 107-8;
EHD, ii no. 218; Lawsuits, nos 151-2.
26. C ronne, ‘Local justiciar’, 22; see also e.g. RRAN, ii no. 1714, iii nos
201, 490.
27. RRAN, iii no. 274.
28. Lawsuits, no. 251, RRAN, iii no. 105; PR31HI, p. 91; below, p. 53 on
Robert Malarteis. Most of the references to justices in the Leges Edwardi
point to fairly m inor men; see esp. cc. 28-9, Liebermann, i 651-2, where
headm en of tithings and hundredm en are referred to asjustiάarii.

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probably involved, for example, the viewing o f wounds and

o f victims o f unnatural death, duties later taken on by
coroners.29 Moreover, ordeals generally had to be
perform ed in the presence o f a royal official, and this
would often have been a royal sergeant o r m inor justice.30
For the majority o f the population, such m en provided one
o f their main contacts with royal justice.
T he sending o f individuals to act as justices in specified
cases m ust have been lim ited to altogether weightier
matters. Probably such delegations o f authority occurred
thro u g h o u t the Anglo-Norman period, although evidence
before 1100 is poor. H earings before them m ight constitute
special meetings o f the shire or several shires for business
of particular interest to the king, with the royal delegate
presiding.31 If such delegations were sent to hear a group
o f cases in several places, they start to resem ble itinerant
justices. The Domesday Inquest shows groups of
commissioners being used for diverse business including
the settlem ent of disputes, b u t it rem ains likely that the
events o f 1085—86 were unique, at least in their scale.32 The
1130 Pipe Roll’s record o f considerable activity over several
years by itinerant justices may reflect an up tu rn o f royal
activity, b u t may simply for the first time reveal a
longer-standing pattern o f activity. T he justices nam ed in
the Pipe Roll include m en such as Ralph and Richard
Basset who were also prom inent elsewhere in the royal
adm inistration o f justice. They heard a wide range o f pleas,
including land disputes, false judgm ent, m urder, breach o f
the peace, treasure trove, and wreck. H enry ľ s eyres were
in some ways lim ited com pared with those o f his grandson,
apparently lacking, for exam ple, the later efforts to cover
the entire realm within a set time. Yet certainly by 1130

29. H unnisett, O rig in s’, 92-6, H u rn ard , Pardon, p. 24, Lincs., p. xlv; the
vocabulary is sufficiently vague th at H unnisett p erhaps exaggerated
the significance o f the shift from local justices to sergeants. For
differences from coroners, see H unnisett, O rig in s’, 96-9; an d on
coroners themselves, see below, p. 138.
30. Hyams, Ό rd e a ľ , p. 113; on ordeal, see also below, pp. 72-5.
31. See e.g. Lawsuits, nos 15, 18G; Brand, Legal Profession, p. 7; below, p.
78 on the hangings at Ή u n d e h o g e ’.
32. Lawsuits, no. 144 is n o t satisfactory evidence for itin eran t justices
u n d er William Rufus; see Reedy, O rig in s ’, 693.

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they were a very im portant elem ent of justice in the

localities and a m ajor m eans o f carrying royal authority to
the broadest possible public.33

SHIRE COURTS
Despite the activities o f eyres and local justices, sheriffs, the
shire, and the h u n d red rem ained vital to local
adm inistration. T heir courts provided a m eeting place for
the m ajor figures o f the district and for lesser m en. These
courts were also in a sense royal courts; H enry ľ s writ of
1108 referred to ‘my shires and h u n d red s’. They had been
regularized during the tenth century in the growing area of
authority o f the kings o f Wessex and England, and together
with the king’s own court they were the key judicial
meetings in Anglo-Saxon England. They seem to have
survived the C onquest reasonably well. T he large num bers
of suitors o f English descent m ust have provided pressure
for continuity o f custom, particularly with regard to
procedure.34 T he problem m entioned by H enry I
concerning m en avoiding attendance need not have been
new, and the Leges Henrici suggests that H enry had to insist
on the regularity o f meetings n o t because too few but
because too many were being sum m oned.35
Shire courts sometimes m et outdoors, but m ight also
take place in a house, the hall o f a castle, o r a monastery.36
A few counties always held jo in t sessions, b u t in addition
there were occasional extraordinary m eetings o f m ore than
one shire, sometimes by royal order, sometimes perhaps
because the sheriff presiding had charge o f m ore than one
shire.37 By the thirteenth century, standard shire meetings
33. For the limits o f H enry ľ s eyres, see Reedy, O rig in s’; also Brand,
Legal Profession, p. 8; Surrey, pp. 7-8. See Reedy, O rig in s’, 698ff. for
eyre personnel.
34. See e.g. Lawsuits, nos 5B, 18G, 31; also below, p. 54.
35. LHP, 7.1, Downer, p. 98. N ote the shire an d h u n d red bringing
testimony especially before the Domesday commissioners: Lawsuits,
nos 15, 22-127 passim.
36. Pollock and M aitland, i 555-6; J. R. West, ed., Register of the Abbey of
St Benet o f Holme (2 vols, 1932), i nos 178, 217 (both from the
second h alf o f the twelfth century).
37. R. C. Palm er, The County Courts o f Medieval England (Princeton, NJ,
1982), p. 29; Lawsuits, nos 10, 18, 185.

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were every four weeks, except in a few counties with local

customs, like Lincolnshire where they were held every forty
days. Before the Conquest, however, there seem to have
been only two m eetings a year, and the Leges Henrici have
the same basic requirem ent. How did the frequency
increase? T he holding o f extra sessions between the two
regular courts, followed by the regularization o f such extra
meetings, seems the most likely explanation. T he extra
sessions may have been held by royal sum m ons for
necessary royal interests, as laid down in the 1108 writ, or
by sheriffs to deal with a variety o f business.38
According to the Leges Henrici, the court was sum m oned
seven days in advance. It heard pleas for ju st one day, and
exceptions m erited particular com m ent.39 T he size o f court
obviously varied from shire to shire, and there is little upon
which to base estimates o f num bers present in the twelfth
century. However, it has been suggested that most county
courts in the thirteenth to fifteenth centuries would be
gatherings of ‘at least 150 m en, and occasionally very many
m o re’.40 The sheriff presided, and his influence m ust have
been considerable, particularly in the C onqueror’s reign
when many sheriffs were also barons. Still, it was the suitors
o f the court, particularly the m ore im portant o f them , who
m ade judgm ents.41 No doubt there was m uch variation in
the obligation to attend, but generally it seems to have
rested on status as indicated by land-holding. A writ of
William Rufus to Bury ordered that no tenants were to be
forced to attend the h u n d red o r shire except those ‘who
hold so m uch land that they were worthy in the time of
King Edward to go to the shires or h u n d red s’.42 This
evidence is supported by the Leges Henrici, which specified
38. Pollock and M aitland, i 538-9. N eighbouring counties sought to
avoid m eeting on the same days, in case suitors had to atten d both;
W. A. Morris, The Early English County Court (Berkeley, CA, 1926), p.
90.
39. LHP, 7.4, 51.2a, Downer, pp. 100, 166; Lawsuits, no. 5; see also
Pollock an d M aitland, i 549, Palm er, County, p. 17.
40. J. R. M addicott, ‘T h e county com m unity and the m aking o f public
opinion in fourteenth-century E ngland’, TRHS 28 (1978), 30; note
also Pollock and Maitland, i 542-3.
41. LHP, 29, Downer, pp. 130-2; J. A. G reen, English Sheriffs to 1154
(HMSO, 1990), pp. 9-18; Lawsuits, no. 340.
42. RRAN, i no. 393.

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that the following should attend: ‘bishops, earls, sheriffs,

deputies [uicarií¦ , hundredm en, alderm en, stewards, reeves,
barons, vavassours, village reeves, and other lords of lands’.
N ot all these need have attended in person. Stewards m ight
often represent the m en of the highest status, and the
presence o f a baron or his steward m ight acquit lesser m en
of his lands of any obligation to attend. In the absence of
the baron or his steward, the Leges Henrici suggest, the
reeve, priest and four of the most im portant m en o f the
village had to attend, whilst further evidence points to the
presence of m anor reeves and other m en n o t of the first
rank in county society.43 Later, perhaps as sessions of the
court becam e m ore frequent, the obligation to attend
becam e attached to specific tenem ents.
A ttendance at courts could be a considerable burden:

le t us try to p ictu re to ourselves th e p o sitio n o f som e petty

fre e h o ld e r w hose lands lie o n th e n o rth coast o f Devon. O n ce
a m o n th h e m u st a tte n d th e county court; o n ce a m o n th , th a t
is, h e m u st toil to g e t to E xeter, a n d we can n o t always allow
h im a h orse. Even if th e c o u rt gets th ro u g h its business in o n e
day, h e will be away fro m h o m e fo r a w eek a t least a n d his
jo u rn e y in g s a n d sojournings will be at his own cost.44

Yet the formality o f obligation which lay behind

attendance, and indeed the desire to avoid attendance,
m ust not be assumed. An account o f a mid-twelfth-century
court has Hervey de Glanville ‘truly declare, attest, and
dem onstrate that fifty years have passed since I first took to
frequenting hundreds and shires with my father, before I
was a householder and afterward up until now’.45 Some
enjoyed being at the centre of affairs, watching and
participating in the dram a o f pleas, whilst others were
present in order to pursue their own business or to support
friends and kin.
The shire dealt with a very wide range o f business, far
from all of which concerned legal matters. As for disputes,

43. LHP, 7.2, 7.7-7b, Downer, pp. 98-100; see also 29, 31.3, pp. 130-4; but
note 30.1, p. 132 which suggests that both a baron and his tenants
m ight be present; Lawsuits, no. 172; Pollock and Maidand, i 546.
44. Pollock and M aitland, i 538.
45. Lawsuits, no. 331.

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the county heard land claims, offences involving violence

or theft, and probably certain ecclesiastical cases.46 Some of
the cases, particularly the less serious, could no doubt be
heard in any county court. The m ore serious offences, in
particular those involving breach of the king’s peace, may
increasingly have required the presence o f a royal repre-
sentative, either in a standard shire court or a session
specially sum m oned by royal order.47 Similarly, certain
county courts to which land cases were referred by writ may
have been special sessions, some m eeting on the disputed
land itself.48 Even taking into account the changing rates of
docum entary survival, evidence such as writs, the presence
of itinerant justices, and the transfer o f cases all point to an
increasing integration of the county into the royal
adm inistration of justice by 1135.49

HUNDRED COURTS
In the 1270s there were 628 hundreds or wapentakes (the
Danelaw equivalent) in England, and it is unlikely that the
figure in the Anglo-Norman period was m uch lower. The
num ber of hundreds in each shire varied; there were
thirty-five in Devon, fourteen in O xfordshire in the 1270s.
So, too, did the size of individual hundreds; a h u n d red
reeve m ight well have ten to twenty villages in his hundred,
b u t some in Kent had only two.50 Some hundreds
46. N ote LHP, 7.3, Downer, p. 100; on cases involving Christianity, see
below, p. 49; on lan d cases, see e.g. Lawsuits, nos 160, 267, the
1108 writ, cited above, an d also below, pp. 113-14; G reen, Sheriffs,
p. 10; W. L. W arren, The Governance of Norman and Angevin England
(L ondon, 1987), p. 197; see also Leges Edwardi, 12.9-13.1,
L ieberm ann, i 639-40; the later rem aining im portance o f the shire
co u rt particularly in the initial stages of crim inal prosecution, (see
below, p. 168), may well survive from an earlier still fuller
authority. See below, p. 69 on outlawry.
47. O n the king’s peace, see below, p. 82-3.
48. See below, pp. 113-14; e.g. Lawsuits, nos 132, 245, Royal Writs, no. 1,
CMA, ii 93, RRAN, ii no. 957.
49. See below, p. 51, on the transfer o f cases.
50. H. M. Cam, The Hundred and the Hundred Rolls (L o n d o n , 1930),
pp. 137, 153; for h u n d re d co u rts generally, ibid., esp. chs 2 an d
10, Pollock an d M aitland, i 556-60. On h u n d re d a l
re a rra n g e m e n t in som e shires d u rin g th e tw elfth century, see
Cam, Hundred, p. 9.

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customarily m et as groups, others did so on occasion by

royal order.51 In 1066 lords held possibly about 100
wapentakes or hundreds from the king, and the num ber
had increased markedly by the early thirteenth century,
doubling or trebling in Wiltshire. Such hundreds were not
evenly spread th roughout the realm, being far m ore
com m on, for exam ple, in the south-west than in the east.52
H undreds were im portant sources o f revenue, and indeed
lords may have desired them primarily for financial rather
than judicial benefits.
T he Anglo-Saxon evidence and the Leges Henrici point to
h u n d red courts being held once every m onth or four
weeks, unless there was m ore pressing royal or public
business. However, by the early thirteenth century
hundreds were apparently held every fortnight. This may
have been a recent change, or, as with the county, may
reflect gradual developm ent through the holding o f courts
between the main sessions.53 Each session seems to have
lasted a single day. Courts m et in a variety of places, for
exam ple in churchyards or at thorn trees. Judgm ents rested
with the suitors, generally presided over by a bailiff,
appointed by the sheriff or by the lord in the case of
hundreds in seignorial hands.54 The obligation to attend
again rested on the larger land-holders o f the hundred, as
specified in William Iľ s writ to Bury cited above. Likewise,
a writ of H enry I opens: Ή enry, king of the English, to all
barons and vavassours and all lords who hold lands in the
wapentake o f Well, greeting. I o rder you all to com e to the
pleas and w apentake o f the bishop o f Lincoln.’55 W hat of
the overall size o f the courts? Sixty-four sokemen, who
probably owed suit to the court, were said to belong to
Clacklose h u n d red when Edward the Confessor granted it

51. E.g. Lawsuits, nos 232, 287, and below, p. 46; N. D. H u rn ard , ‘T he
A nglo-Norman franchises’, EHR 64 (1949), 446; note also LHP, 7.5,
Downer, p. 100.
52. Cam, Hundred, p. 138; Victoria County History, Wiltshire, v 44-9.
53. EHD, i no. 39; LHP, 7.4, Downer, p. 100; Calendar o f the Close Rolls,
1231-4, pp. 588-9.
54. Cam, Hundred, pp. 170, 172; Brand, Legal Profession, p. 6.
55. See above, p. 35, Lawsuits, no. 279; on suit becom ing tied to
particular tenem ents by the th irteen th century, see Cam, Hundred,
p. 172, Pollock and M aitland, i 557.

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to Ramsey, whilst later evidence suggests that suitors

generally num bered between a dozen and seventy or eighty.
Some speculative calculation is in order. If we take a
reasonably conservative figure of thirty as the average
nu m b er of suitors at a h u n d red court, and multiply it by
the 628 hundreds, we get a figure o f about 20,000. Some of
these would be the same person attending m ore than one
hu n d red , and some owing suit would fail to attend, but we
m ust add those bringing their own business or simply
attending the courts although they did n o t owe suit. If we
accept an estimate o f a population o f 1.5 million in 1086,
we can be reasonably sure that at least one per cent o f the
population attended h u n d red courts, and the proportion of
adult males doing so m ight easily be one in twenty.56
Moreover, there were each year two particularly large
sessions, to be attended by all freem en. These sessions,
am ongst o th er duties, checked the functioning of the
system of peace-keeping and policing known as frankpledge,
to be discussed in chapter 3.
Besides this special business, the h u n d red court dealt
with an extensive variety o f affairs. Royal officials may have
concentrated their attention primarily on the shire, leaving
the h u n d red to deal with fewer of the serious cases which
were considered to pertain to the king.5,7 Yet the
jurisdiction o f the h u n d red and the shire had many
similarities. A case m ight be dealt with at different stages by
the shire and the h u n d red courts. Royal writs sometimes
treat shire and h u n d red as equally suitable locations for
land disputes, whilst others specified ju st the h u n d red .58
For many of the population, in a large proportion o f the

56. Cam, Hundred, pp. 173-5; H. C. Darby, Domesday England

(Cam bridge, 1977), pp. 87-91; for a n o te o f caution, see LHP, 7.5,
Downer, p. 100, on proceedings transferred because of a shortage
o f ‘j u d g e s’, presum ably suitors.
57. O n the ordinary business o f the thirteenth-century h u n d red court,
see Cam, Hundred, p. 181, although at p. 179 she notes th at even in
the second h alf o f the th irteen th century appeals o f felony could
occur there. N ote also H u rn ard , ‘Franchises’, 445.
58. See e.g. Lawsuits, nos 185, 157, RRAN, ii no. 1185. For land cases in
the h u n d red court, note also Lawsuits, no. 334, cf. Pollock and
M aitland, i 557 on the thirteenth-century situation. See below, p. 49
on ecclesiastical cases.

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cases in which they could becom e involved, the hu n d red

would be their court o f first resort. Indeed, the main
difference o f business between the h u n d red and the shire
may have arisen from the h u n d red concentrating on cases
between m en who lived within its bounds, or involving
offences com m itted therein. For this reason, rather than
because o f jurisdictional rules, the disputes heard there
may have been lesser in scale than those in the shire court.
The latter’s business m ight concern m ore extensive lands
or m en of higher status who lived in the same county, but
not in the same hundred.
The survival o f the shire and most h u n d red courts u n d er
royal control was a vital legacy from Anglo-Saxon England.
Their crucial im portance in the developm ent o f com m on
law is re-em phasized when com pared with the loss of
control of the equivalent courts by the kings and most of
the great counts and dukes o f post-Carolingian France.59
Certainly in England, lords m ight exercise considerable
influence over suitors o f shire or h u n d red courts. However,
the pattern o f N orm an settlem ent, the restricted
significance o f com pact lordships, the scattering of lords’
lands, the presence in almost every shire of at least some
royal dem esne, limited lordly influence and ensured the
continuing im portance o f non-seignorial courts. Moreover,
a m an’s influence in his county need n o t have been in
direct proportion to his national im portance. Amongst the
leading figures of these courts were the predecessors of
those knights who were to be essential to the running of
the com m on law.60

SEIGNORIAL COURTS
Lords had m ore than one type o f court. In particular the
courts for the greater m en o f their lordship or ‘h o n o u r’
m ust be distinguished from those for the m inor, and often

59. T he classic treatm en t rem ains G. Duby, ‘T he evolution o f judicial

institutions’, in The Chivalrous Society, trans C. Postan (London,
1977). See also below, p. 122, on S tep h en ’s reign.
60. See esp. R. V, L ennard, Rural England, 1086-1135 (Oxford, 1959),
pp. 61-2; n o te also Stenton, English Justice, pp. 57-8, and below, p.
221 .

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unfree, m en, which are best referred to as hallmoots. The

latter, presided over by a reeve, dealt with the concerns of
the inhabitants o f one or m ore manors. Most of the
surviving evidence concerns their witnessing of the lo rd ’s
grants, b u t they no doubt treated local agricultural affairs
and disputes.61 M uch m ore central to our concerns is the
honorial court. T here is no indication o f such courts in
Anglo-Saxon England, and although early evidence from
N orm andy is sparse, such courts m ust surely arise from
im ported N orm an practice.62
Like the king, a lord m ust always have been hearing his
m e n ’s requests, and in this sense he was always holding
court. However, there were also specially sum m oned
meetings, some referred to as the lo rd ’s pleas (placita),
em phasizing their judicial aspect. It is uncertain how
frequent were such meetings, or how often they were for
the entirety of the honour, how often only for part o f it.
T heir duration m ight d epend upon the am ount of
business, far from all of which would be judicial. The
obvious place to hold a court was in a hall or castle,
particularly the castle which was the ‘h ead ’ o f the lo rd ’s
h o n o u r.63
Cases were decided by the court com posed o f the suitors
with the lord, or on occasion his representative, acting as
president. The lord m ust have been very influential, but in
claims between him and a tenant, his court was surely not
irretrievably biased in his favour. The suitors of the court
were concerned not only to cultivate seignorial favour, but
to m aintain their own h o n o u r and interests and this m ight
involve opposing their lord. Claimants did bring cases

61. O n the hallm oot bringing testimony in a land dispute, see Lawsuits,
no. 332. See also Lawsuits, no. 219; LHP, 56.1, Downer, p. 174. See
above, p. 38, and below, p. 45 on private hundreds.
62. D. Bates, Normandy before 1066 (London, 1982), p. 127. T he
exam ples o f suit of co u rt in E. Z. T abuteau, Transfers of Property in
Eleventh-Century Norman Law (Chapel Hill, NC, 1988), pp. 58-9 are
all from after 1066. See also below, p. 88, for land-holding,
lordship, and conquest.
63. See e.g. H. E. Salter, ed., Facsimiles of Early Charters in Oxford
Muniment Rooms (Oxford, 1929), no. 9. For a m inim alist view of the
im portance of lords’ courts, see S. M. G. Reynolds, Fiefs and Vassals
(Oxford, 1994), pp. 375-9.

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against their lord in the lo rd ’s own court, som ething they

would surely not have done had they known that defeat was
inevitable.64 T hat records o f claimants successful in these
cases are rare may well reflect the court president’s
influence, but also the nature o f the evidence: lords were
responsible for the production o f most o f the relevant
charters, and did n o t wish to record their defeats.
The te n an t’s obligation to attend his lo rd ’s court is spelt
out in an unusual mid-twelfth-century grant to the abbot of
Ramsey o f land to be held like a lay fief:

A nd if th e lo rd , W alter o f B olbec, shall h o ld a p lea in his c o u rt

a n d shall desire th e a b b o t to a tte n d , th e a b b o t shall com e if
he can, o r se n d w orthy rep resen tativ es o f his m en in th e
aforesaid shires, a n d this by th e usual su m m o n s a n d w ith o u t
d isp u te.65

O thers, not obliged to do suit, also attended, and analyses

o f witness lists dem onstrate that h o n o u r courts quite often
included m en who were n o t the lo rd ’s tenants.66 As for
those against whom claims were brought, the Leges Henrici
reflect contem porary custom in stating that ‘every lord is
perm itted to sum m on his m an that he may impose justice
on him in his court. Even if the m an resides at a very
distant m anor o f the h o n o u r o f which he holds, he shall go
to a plea if his lord sum m ons him .’67 N or was it ju st the
lo rd ’s im m ediate tenants and their business which cam e to
his court. Cases involving his sub-tenants m ight be brought
there, and indeed even the king sent to overlords’ courts
cases in which a m a n ’s lord had failed to do justice.68
Occasionally, disputants may have sought justice in the

64. See e.g. Lawsuits, nos 214, 226 (below, pp. 105-8), b oth
unsuccessful claims; n o te also no. 340 for a sheriff losing a case in
his own county court.
65. EHD, ii no. 253. See also J. H. Round, ‘T he B urton Abbey surveys’,
EHR 20 (1905), 282, a Burton g ran t to Ralph son o f O rm : Ralph
should com e to the ab b o t’s co u rt to ju d g e a th ief if h e is caught
an d to ju d g e trial by batüe.
66. E.g. Lawsuits, nos 164, 266, and see below, p. 106.
67. LHP, 55.1, la, Downer, p. 172; on summ onses, see 41.3-4, p. 146.
N ote also the obligation to answer specified in EHD, ii no. 257, with
reference to William o f Aunay.
68. See below, pp. 113, 128; note also e.g. CMA, ii 85.

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court of a regionally dom inant lord, even if they had no

tenurial connection to him .69
H onorial courts were the key venue for the m anagem ent
o f seignorial resources and personal relations. T he lord
received advice from his vassals and negotiated with them ,
and they no doubt participated in similar activities am ongst
themselves. Particularly im portant is the variety o f business
concerning land-holding. T he lo rd ’s barons witnessed and
occasionally were said to have consented to his grants, and
their own grants were sometimes m ade in his court.
Enquiries m ight be held to clarify w hether a predecessor
had granted away lands.70 Quitclaims and agreem ents could
be m ade or publicized, and, as H enry ľ s writ of 1108
specified, land disputes involving m en o f h o n o u r were
decided.71
Seignorial courts of various types also dealt with various
offences against the person or goods. The origins of such
jurisdiction are n o t entirely clear now, and may have been
somewhat confused at the time. Besides the lo rd ’s rights
over the unfree, there was a general belief that great m en
should keep their households in order and take the
necessary judicial and retributive actions, especially
concerning m inor offences against the person like beatings
and insults.72 Lords may have been tem pted to extend such
authority to their m en generally and perhaps to anyone’s
offences com m itted on their lands.73 Such authority would
then coincide with the form o f jurisdiction called ‘sake and
soke’.74
Most twelfth-century descriptions o f sake and soke are

69. See below, p. 113 n. 66.

70. See e.g. Oxford Charters, no. 6; C. W. Foster an d K. Major, eds, The
Registrum Antiquissimum of the Cathedral Church of Lincoln (10 vols,
Lincoln Record Soc., 1931-73), i nos 130-1; see below, p. 88 on
charter addresses an d enquiries.
71. L ords’ courts also h eard disputes over o th e r types o f rights; see e.g.
Lawsuits, no. 198 concerning a parish church.
72. See below, p. 164—6.
73. N ote e.g. LHP, 27, Downer, p. 128.
74. Sake and soke in the Anglo-Saxon p eriod are highly controversial,
notably as to w hether lords held courts as a result o f such rights; see
e.g. F. W. M aiüand, Domesday Book and Beyond (Cam bridge, 1897),
H. M. Cam, ‘T he evolution of the medieval English franchise’,
Speculum 32 (1957), 427-42.

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imprecise, and doubtless different perceptions o f the extent

of jurisdiction allowed lords to seek to extend the business
of their courts. In general, however, sake and soke
jurisdiction seems to have been similar to the h u n d re d ’s,
with the exception perhaps o f any jurisdiction the hu n d red
enjoyed involving capital punishm ent, notably o f thieves.
N either hundredal jurisdiction nor sake and soke would
encompass the pleas pertaining to the Crown, and the
limits o f sake and soke are fu rth er dem onstrated by many
such grants including the privilege o f infangentheof, the
right summarily to execute thieves caught red-handed.75
Some N orm ans inherited rights o f sake and soke from
their Anglo-Saxon predecessors, and the Anglo-Norman
kings m ade further grants, to the financial and judicial
benefit o f lords. No doubt kings em phasized that all such
rights derived from royal grant, either specifically o f sake
and soke or perhaps as a concom itant o f office. A nother
view, however, saw lords as deriving sake and soke from
their very status. For exam ple, m en regarded as barons may
generally have been taken to exercise sake and soke.76 T he
developm ent possibly took the following form: grants of
sake and soke gave a court for certain types o f case; then it
was found that all significant lords had courts, and perhaps
were exercising a jurisdiction similar to those who had
received grants o f sake and soke; finally such lords were
described as having sake and soke even though they had
received no special grant. Late twelfth-century definitions
could reflect such a developm ent: ‘sake m eans jurisdiction,
that is court and justice’.77
If the honorial court was m eeting in the relevant locality,

75. J. Goebel, Felony and Misdemeanor (New York, 1937), pp. 391-9;
H u rn ard , ‘Franchises’, 294—5, 300, 445; D. Roffe, ‘From thegnage to
barony’, ANS 12 (1990), 157-8; and note Glanvill, i 2, Hall, p. 4. For
soke involving some jurisdiction over theft, see Leges Edwardi, 22,
Lieberm ann, i 647.
76. Stenton, First Century, pp. 103-4, esp. 103 n. 2 rem ains convincing,
despite recen t criticisms. N ote also LHP, 20.2, 25, Downer, pp. 122,
128. T he king could g ran t land w ithout granting the soke; LHP,
19.2-3, Downer, p. 122.
77. H owden, ii 242; see also Pollock and M aitland, i 579-80; Bracton, f.
154 b, T h o rn e, ii 436; o th e r definitions were com pletely m isguided,
e.g. CMA, ii 282.

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it m ight h ear cases arising from sake and soke jurisdiction.

O th er cases may have gone before hallmoots. In addition,
particularly if the lo rd ’s right o f sake and soke extended
over a considerable area, seignorial officials may have held
court sessions to hear the resultant business. O n occasion,
the lord or his official had to claim his rights over a case
taking place in a shire or hundred court. Then he m ight hear
the dispute at a special m eeting on the fringe o f the main
gathering,78 or choose simply to take the financial reward,
rather than insist on hearing the case in his own court.
Sake and soke and infangentheof were the most
com m on judicial franchises enjoyed by lords, but there
were m ore extensive grants. Some involved the right to deal
with specific pleas, for exam ple hamsocn, or assault on a
person within a house. O thers were of hundreds o r the
right to hold ordeals.79 Lords, in turn, could pass such grants,
like those o f sake and soke, on to their own m en or to
churches.80 In addition, there were a few holders o f even
greater franchises. Clauses in royal writs or charters forbade
royal officials to interfere in privileged lands of churches such
as Durham , Chertsey, and Battle, and similar grants may
have been m ade for laymen, for exam ple the lords of
Cheshire, Shropshire, H erefordshire, H olderness, Cornwall,
and W allingford.81 However, even with these grants, the
lords probably only had jurisdiction over serious cases of
violence and theft if they also controlled the relevant shire
court or group of hundreds.82 Such extensive liberties were
enjoyed in particular by a few m ajor pre-Conquest abbeys -
Bury, Ramsey, Ely and Glastonbury - n o t within all their
estates, b u t concentrated on specific areas, for exam ple the

78. As suggested by Lawsuits, no. 169 an d M aitland, Domesday Book and

Beyond, p. 97.
79. See above, p. 38; Hyams, Ό rd e a ľ , p. 113; G reen, Government, p.
116; R. B. Patterson, ed., Earldom of Gloucester Charters (Oxford,
1973), no. 171; H u rn ard , ‘Franchises’, 436-7. O n barons w ithout
the right o f ordeal, see Leges Edwardi, 9.3, Lieberm ann, i 633.
80. E.g. F. M. Stenton, Types of Manorial Structure in the Northern Danelaw
(Oxford, 1910), pp. 92-3; Stenton, First Century, p. 104.
81. E.g. RRAN, i nos 235, 294, 306, 311, 344; ii nos 767, 774, 859, 1651; S.
Painter, Studies in the History of the English Feudal Barony (Baltimore, MD,
1943), pp. 110-11, 117; Warren, Governance, p. 51. O n greater
franchises in Anglo-Saxon England, see H urnard, ‘Franchises’.
82. H urnard, ‘Franchises’, 444, also 448-9.

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eight and a half hundreds held by Bury.83 To these were

added a very few, specially privileged m onasteries after the
Conquest: H enry ľ s foundation at Reading and his fath er’s
at Battle. Notably, however, the king carefully preserved his
right to deal with cases the abbots were unable or unwilling
to hear:

T h e a b b o t a n d m onks o f R eading are to have th ro u g h o u t th e ir

possession all ju stice c o n c e rn in g assault a n d thefts a n d
m u rd ers, a b o u t sh e d d in g o f b lo o d a n d b re a c h o f peace, as
m u c h as p e rta in s to royal pow er, a n d a b o u t all w rongs. If the
a b b o t a n d m onks n eg lec t to d o such justice, th e king is to
com pel it to b e d o n e , in such a way th a t it does n o t at all
d im inish th e liberty o f th e c h u rc h o f R eading.84

O ther great churchm en, particularly archbishops, also

enjoyed special privileges.85
As for laymen, in the south-east the boroughs of
Colchester and M aldon and the castles o f Tunbridge and
Pevensey each were surrounded by a specially privileged
area or ‘banleuca’. More extensive privileged areas were
the Sussex Rapes, granted by William I to loyal followers in
order to secure his Conquest. However, there is evidence
that their independence decreased u n d er H enry I,
probably because Sussex no longer represented a
threatened frontier. In the n orth and west there is m ore
evidence for continuing liberties. M uch o f the m aterial is
late, b u t it does seem likely that these lords enjoyed wide
powers during the Anglo-Norman period. Most inde-
p en d en t o f all were the earls o f the bo rd er counties of

83. H u rn ard , ‘Franchises’, 316; for Ely’s privileges in the N orm an

period, see E. Miller, The Abbey and Bishopric of Ely (Cam bridge,
1951), chs 2, 7.
84. RRAN, iii no. 675; on Batüe Abbey, see RRAN, ii no. 529 and H urnard,
‘Franchises’, 434—6. See also H urnard, ‘Franchises’, 455 on the
possibility o f a special court resulting from the extended sanctuary of
Tynemouth, and its possible link to the rights enjoyed by Robert de
Mowbray, earl o f N orthumbria. O n possible grants o f immunities by
lords to their foundations, see D. Crouch, ‘T he foundation of Leicester
Abbey, and other problem s’, Midland History 12 (1987), 7.
85. Canterbury: Lawsuits, no. 5, H u rn ard , ‘Franchises’, 456; see also
457-9 on Lincoln. York: RRAN, ii no. 518; Lawsuits, no. 172;
H u rn ard , ‘Franchises’, 315-16, n o te also 438.

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Shrewsbury and Chester, and the bishop o f D urham . The

earls enjoyed n o t merely territorial dom ination of the
counties b u t also control o f their shire courts, and hence
m ight exercise a full range of royal powers. However, the
special powers o f the earls o f Shrewsbury did n o t survive the
breaking of the Bellême family early in Henry ľ s reign. This
left Chester and D urham , whose peculiarly in d ep en d en t
status continued to develop until they were distinguished in
the th irteenth century by the title o f palatinates.86
Lords’ courts therefore were significant throughout
Anglo-Norman England. They need not be seen to conflict
necessarily with royal or other local courts, b u t rath er to be
one o f the m eans whereby the conquerors ruled England.
Besides the activities o f their honorial courts, lords brought
effective authority to disputes on a very local level through
their hallmoots. Similarly, privileges acknowledged the local
power of lords and also allowed the effective exercise of
N orm an authority in areas which royal governm ent found
hard to reach.

URBAN COURTS
Two oth er types o f court rem ain, even though they will not
be central to this book: urban and church courts.
Inform ation on town courts in the Anglo-Norman period is
very sparse, particularly before 1100. Whilst the Anglo-
Saxon law codes m ention the ‘borough co u rt’, it is
uncertain w hether this was a court for the burgh o r a court
held in the burgh for the surrounding area. Domesday Book
m entions lawmen in Cam bridge, Stamford, Lincoln, and
York, and these were presumably leading m em bers o f a
borough court. It also provides some evidence for the court
o f Chester.87 O th er post-Conquest m entions of town courts

86. H u rn ard , ‘Franchises’, 314, G reen, Government, pp. 113-15. O n the

M archer lords of South Wales, see R. R. Davies, ‘Kings, lords and
liberties in the M arch o f Wales, 1066-1277’, TRHS 5th Ser. 29
(1979), 41-61.
87. J. Tait, The Medieval English Borough (M anchester, 1936), pp. 43-4, S.
M. G. Reynolds, ‘Towns in Domesday B ook’, in J. C. Holt, ed.,
Domesday Studies (W oodbridge, 1987), pp. 307-8. O n th e relation-
ship o f the b o rough court to the h u n d red court, see Tait, Borough,
p. 60.

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appear in charters for boroughs or very occasionally in case

records. For example, a charter of Abbot Anselm of Bury St
E dm unds in favour o f the burgesses o f Bury laid down that
‘they shall n o t . . . need to go outside the town o f St
E dm und to the h u n d red court or to the shire court, nor
may they be im pleaded in any plea except at their port-
m oot’.88 In London there may at first have been a large folk-
moot, together with landow ners’ courts for their tenants,
but in the twelfth century the most im portant gathering came
to be the Husting which met weekly. This may originally have
been a com mercial court, but took on m uch wider duties.
The urban courts shared many o f the functions o f other
courts, for exam ple the witnessing of transactions. T heir
business naturally reflected urban circumstances, and in
addition to cases concerning land-holding, we see others,
for example, over the paym ent of tolls.89 By the end of
H enry ľ s reign London may have had control o f all pleas,
including those pertaining to the Crown, but other towns
were not so privileged. A survey of H enry Iľs time,
purporting to record the customs o f Newcastle in his
grandfather H enry ľ s reign, states that ‘pleas which arise in
the borough shall be held and concluded there, except
those which belong to the king’s crow n’.90 Nevertheless,
the autonom y enjoyed by towns allowed the growth or
m aintenance of various local customs both procedural and
substantive, for exam ple concerning the inheritance and
alienation of land.91

ECCLESIASTICAL COURTS
Moves towards the existence of separate ecclesiastical
courts, with their own procedure, areas o f jurisdiction, and
largely clerical personnel, started soon after the N orm an
Conquest as p art of m ore general C hurch reform .92 In the
early or mid-1070s William I ordered that

88. EHD, ii no. 287.

89. E.g. Lawsuits, nos 270, 191.
90. EHD, ii no. 298.
91. See Reynolds, ‘Towns in Domesday’; Borough Customs; Pollock and
M aitland, i 644, 647-8.
92. For a good introduction to ecclesiastical justice in this period, see F.
Barlow, The English Church, 1066-1154 (London, 1979), ch. 4.

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n o bish o p o r a rc h d e a co n shall h e n c e fo rth h o ld pleas relatin g

to th e episcopal laws in th e h u n d re d court; n o r shall they
b rin g to th e ju d g m e n t o f secular m e n any case w hich co n c ern s
th e ru le o f souls. B ut anyone cited u n d e r th e episcopal laws in
resp ect o f any case o r w rong shall com e to th e place w hich the
bish o p chooses a n d nam es, a n d th e re h e shall answ er
c o n c e rn in g his case o r w rong. L et him d o w hat is ju s t fo r G od
an d his b ish o p n o t acco rd in g to th e law o f th e h u n d re d , b u t
acco rd in g to th e ca n o n s a n d episcopal laws.93

The writ’s probable concern is a not very clearly defined

category o f offences against m oral law and the rights o f the
Church, rath er than, for exam ple, cases involving church
lands. As far as can be told, it continued to allow ‘pleas
relating to the episcopal laws’ to be heard in the shire,
where the bishop m ight be present. Indeed, Wulfstan of
W orcester reputedly ‘applied his m ind vigilantly’ to
religious affairs in the shire court, but slept ‘disdainfully’
through the mass o f secular business.94 However, the writ
did move cases to the bishops’ own courts. These courts
included an annual or biennial synod o f the diocese, but
also additional hearings.95 By S tephen’s reign, the pressure
of judicial business on the bishop was reduced by
archdeacons’ courts taking m uch o f the burden. These
heard accusations brought by individuals, but also cases
prosecuted ex officio by the archdeacons.96 Above all others
rem ained the p o p e ’s court, which by the mid-twelfth
century was receiving an ever increasing num ber of appeals
from England.
Ecclesiastical courts heard disputes involving lay people,
cases o f m arriage and bastardy, o f the bequest o f moveables
after death, and - although the surviving evidence is sparse
- o f lay sin.97 They also heard accusations o f clerical

93. EHD, ii no. 79.

94. C. Morris, ‘William I an d the church courts’, EHR 82 (1967), 451,
458, 460-1. See Lawsuits, no. 442 for a tithe case in the shire court
early in H enry Iľ s reign.
95. Barlow, English Church, pp. 154—5.
96. Barlow, English Church, pp. 155-6, R. C. van C aenegem , ‘Public
prosecution of crim e in twelfth-century E ngland’, in his Legal
History: a European Perspective (L ondon, 1991), pp. 1-36.
97. Barlow, English Church, pp. 166-71.

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offences, although many of these would have been settled

out o f court, for exam ple in the monastery. In the
Anglo-Norman period the punishm ent of clerical offenders
seems often to have involved co-operation with lay powers,
perhaps after the cleric had been deprived o f his orders.
Cases between great ecclesiastics, for exam ple over the
relationship o f two churches, were often h eard by the king,
or by a com bination o f royal and ecclesiastical courts.98
Likewise, a wide range of cases involving ecclesiastical lands
or other rights took place either in royal courts or those of
ecclesiastics in their role as lords. Certainly, in the latter
there m ight be a large ecclesiastical elem ent, but they must
still be distinguished from, for exam ple, diocesan courts.99
Conflicts o f jurisdiction did occasionally arise, and tended
to be decided by the king and his court. However, overall
before 1154 there is little evidence of conflict, m uch m ore
of co-operation between ecclesiastical and lay courts.100

CONCLUSIONS
Thus Anglo-Norman England com bined new courts and
those which survived from Anglo-Saxon England. T here
m ust have been variation of practice between courts,
particularly with regard to procedure, b u t there are also
signs of shared procedure and of shared custom on
substantive m atters.101 T he diffuse settlem ent pattern of
Anglo-Norman England again helps to explain such shared
practice, with m en attending several honorial, shire, or
h u n d red courts. It can also be explained by royal control
and the inter-relationship o f the courts. Cases could be
transferred from one to another. Overlords may have heard

98.Barlow, English Church, pp. 166, 172-3.

99 .See e.g. Lawsuits, nos 178, 180, 197 for cases in the king’s court
involving prebends, burials and tithes; no. 226 (below, p. 106) for a
co u rt with a large ecclesiastical elem ent. O n cases involving land,
see Barlow, English Church, pp. 173-6, an d on free alms, below, p.
129.
100. Barlow, English Church, p. 171; n o te also the com bination of
ecclesiastical an d lay courts used e.g. in Lawsuits, no. 223.
101. Variation: e.g. Glanvill, ix 10, xiv 8, Hall, pp. 113, 177; also below, p.
132, on the Assize of Essoiners. Shared substantive customs: see
below, p. 116.

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com plaints o f default o f justice from sub-vassals against the

interm ediate lord. However, as noted earlier, default of
justice and false ju d g m en t were royal rights, and the
capacity to transfer cases was primarily a royal one. Failure
o f the h u n d red court to do justice m ight lead to a hearing
in the county.102 Similarly, cases m ight be rem oved from
seignorial courts to the county once default o f justice had
been proved. And from there, cases could be taken to the
king’s own court. The impression o f integration is
reinforced by the use o f royal writs and the evidence for
the presence o f royal justices in shire and seignorial courts,
most notably when serious pleas were being h eard .103
Doubtless many factors, notably o f geography, m eant that
some courts, be they shire, h u n d red or seignorial, were
m ore in d ep en d en t than others, but the impression rem ains
that the courts could com bine effectively.
T here is little sign o f a confusion o f courts in Anglo-
N orm an England, although certainly there was not the
precision n o r the rules of jurisdiction which existed in the
developed com m on law. T he im m ediate post-Conquest
period m ust have required some adjustm ent of
assumptions. Yet, if the 1108 writ designating land cases to
various courts may signify that clarification was needed,
there is very little o th er evidence that at least by H enry ľ s
reign people felt confused by the court system. T he lack of
rigid jurisdictional rules need not have been a disadvantage
for disputants. T he availability of a variety of regular courts,
some within easy reach, may have been beneficial, and may
indeed have encouraged m en to bring their disputes into
court.104

102. LHP, 7.6, Downer, p. 100.

103. See below, p. 70; also p. 114; Palm er, County, pp. 144—7; Lawsuits,
no. 19; also Leges Edwardi, 9.2, Lieberm ann, i 633.
104. Cf. e.g. below, p. 168, on the problem o f increasingly lengthy gaps
between eyres after H enry Iľ s reign.

51
 Chapter 3

VIOLENCE AND THEFT IN

ANGLO-NORMAN ENGLAND

As with the holding of various courts, law and associated

activities relating to w rongdoing showed notable
continuities from at least the tenth century to the twelfth
and even beyond. Types o f offence did not change
markedly. The capture o f offenders rem ained a m ajor
problem . Local action continued to be essential to any
effective prevention, policing, and prosecuting o f wrongs,
and royal adm inistration had to work through the local.1
The elem ents o f co-operation and o f balancing of
interests within local com m unities no doubt brought
benefits, but the system’s successes rested in part on peer
pressure, on inform ing - secretly or in a formalized
m anner2 - with all its opportunities of persecution and
rum our-m ongering, on the threat of financial penalties,
and on the presence in, or close to, the com m unities of
local, ever-watchful Big Brothers.3 Even the preference for
out-of-court settlem ents, idealized as ‘Love’ being preferred
to ‘Law’, gave considerable scope for dom ination by the
powerful.
Moreover, potential tensions persisted between the aims
of the various parties involved. An accuser might, above all,
want vengeance. This m ight conflict with the king’s aim of

1. See above, p. 33, on the p art played, for example, by royal sergeants
in prelim inaries such as the investigation of corpses. This chapter
owes m uch to years of help from, and conversation with, Patrick
W ormald. His ideas appear in his Making of English Law (Oxford,
1997), ch. 9; also his ‘M aitland an d Anglo-Saxon law: beyond
Domesday B ook’, in H udson, Centenary Essays, pp. 1-20.
2. See below, p. 65, on presentm ent.
3. See below, p. 53, for R obert Malarteis.

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m aintaining the peace, obtaining revenue, and increasing

his prestige. O n other occasions, the king m ight desire that
the offender be punished whereas the victim desired
com pensation for the injury and dishonour sustained. Such
problem s and such conflicting aims underlie the
functioning and developm ent of law relating to theft and
violence during the Anglo-Norman and Angevin periods.

BRICSTAN’S CASE
A letter of the bishop of Ely, preserved by the chronicler
O rderic Vitalis, records an unusual event in 1115 or 1116:

A certain m an n a m e d B ricstan lived in an estate o f o u r

c h u rc h , in a village called C hatteris. T his m an , as his
n eig h b o u rs b e a r witness, d id w rong to n o m an b u t was
peacefully c o n te n t w ith his own goods, sp arin g those o f others.
F o r h e was n e ith e r very rich n o r very p o o r, b u t m a n ag ed his
affairs a n d those o f his fam ily respectably after th e fashion o f a
laym an with a m o d est co m p eten c e. H e le n t m o n ey to his
need y n eig h b o u rs, b u t n o t at usury; only, because so m any
m en are untrustw orthy, h e re ta in e d securities fro m his
debtors. So h e k e p t betw een th e two extrem es, being
c o n sid ered n e ith e r b e tte r th a n o th e r g o o d m e n n o r worse
th a n b ad ones. Believing h e was at p eace with all m e n an d
w ith o u t a single enem y, h e was in sp ired by divine grace . . . to
seek to b e b o u n d by th e ru le o f St B en ed ict a n d c lo th e d in the
habit. . . . H e cam e to o u r m onastery, w hich was b u ilt in
h o n o u r o f St P e te r th e apostle a n d St E th e ld red a , a n d so u g h t
adm ission fro m th e m onks, p ro m isin g to p u t h im self a n d all
th a t h e h a d u n d e r th e ir g o v ern m en t. But, sad to relate, the
evil o n e th ro u g h w hose envy A dam fell fro m P aradise will
n ever cease to vex with envy his d esc en d a n ts u p to th e very last
g en era tio n . . . . A certain m in ister o f King H enry, w ho was
m o re particularly a servant o f th e devil with wolf-like fangs,
a p p e a re d o n th e scene. . . . His n am e was R o b ert a n d h e was
nick-nam ed ‘M alarteis’, from th e L atin m e an in g ‘ill-doer’. T h e
n a m e was deserved. F or h e seem ed to have n o fu n c tio n ex cep t
to catch m e n out. . . . H e accused all equally w henever he
could, striving with all his m ig h t to h a rm everyone. . . . If h e
co u ld fin d n o valid reason fo r c o n d e m n in g th e m , h e becam e
an in v en to r o f falseh o o d a n d fa th e r o f lies th ro u g h th e devil
w ho spoke in him . . . .
W hen it was ru m o u re d th a t Bricstan w ished to p u t o n the

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h a b it o f religion, R obert, follow ing th e tea ch in g o f his m aster

w ho always lies a n d deceives, a p p e a re d o n th e scene. H e,
b eg in n in g to h e a p falseh o o d u p o n falsehood, said to us:
‘Know th a t this m an , B ricstan, is a thief, w ho has seized the
k in g ’s m oney by larceny a n d h id d e n it, a n d is trying to take
th e h a b it to escape ju d g m e n t a n d p u n ish m e n t fo r his crim e
[crimen], n o t fo r any o th e r k in d o f salvation. F o r h e fo u n d
h id d e n treasu re, a n d by secretly stealing fro m it has beco m e a
u su rer. Since h e is guilty o f th e g re a t crim es o f larceny a n d
usury, h e fears to com e befo re th e king o r his justices.
T h e re fo re I have b e e n se n t h e re to you at the k in g ’s
co m m an d , a n d I fo rb id you to receive him in to your
co m m u n ity .’ W e th ere fo re , h e a rin g th e k in g ’s p ro h ib itio n a n d
fe arin g to in c u r his w rath, refu sed to receive th e m a n a m o n g
us. . . . H e was sen t u n d e r surety to trial. W ith R alph Basset
presiding, all th e m e n o f th e county w ere assem bled at
H u n tin g d o n , acco rd in g to E nglish custom , a n d I H ervey was
p re se n t w ith R eginald a b b o t o f Ramsey, R o b e rt a b b o t o f
T h o rn ey , a n d a n u m b e r o f clerks a n d m onks. T o c u t a long
story short, th e accused was ch a rg e d to g e th e r w ith his wife,
a n d th e crim es falsely a ttrib u te d to h im w ere re p e a te d . H e
d e n ie d th e charge; h e c o u ld n o t confess w hat h e h a d n o t
d o n e. T h e o p p o sin g party c h a rg ed h im w ith lying a n d m ade
fun o f him , fo r h e was som ew hat co rp u le n t, sh o rt o f stature,
a n d h a d w hat o n e m ig h t call a hom ely face. A fter m any
u n d ese rv e d co n tu m elies h a d b e e n h e a p e d u p o n him , h e was
u n jusüy c o n d e m n e d . . . a n d se n te n c e d to be h a n d e d over with
all his go o d s to th e k in g ’s custody. [H e a n d his wife h a n d e d
over all th e ir goods, a n d his wife offered to carry th e h o t iro n
in o rd e r to su p p o rt his o a th th a t h e h a d h e ld n o th in g back.]
T h e n h e was b o u n d a n d tak en in to custody, a n d tak en to
L o n d o n w here h e was throw n in to a d a rk prison. T h ere ,
unjustly la d e n with iro n fetters o f excessive w eight, h e suffered
th e to rm e n t o f daily h u n g e r a n d cold fo r a con sid erab le tim e.
B ut fin d in g h im self in such a plight, h e cried o u t as well as h e
knew how fo r divine aid to com e to h im in his g re at n ee d . . . .
H e called incessantly w ith a sorrow ful h e a rt a n d all th e voice
h e co u ld raise o n St B enedict, u n d e r w hose ru le h e h a d vowed
in all sincerity to live . . . a n d o n the holy virgin E th eld red a, in
w hose m o nastery h e h a d p ro p o se d to do so.
[After five w retch ed m o n th s ], o n e n ight, w hen th e bells were
rin g in g fo r th e n ig h t office th ro u g h o u t th e city, a n d h e in his
p riso n h a d b e e n w ith o u t fo o d o f any k in d fo r th re e days, in
ad d itio n to his o th e r sufferings, a n d was alm ost d esp airin g o f
bodily recovery, h e was re p e a tin g th e nam es o f th e saints in

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 V I O L E N C E AND T H E F T IN A N G L O - N O R M A N E N G L A N D

feeble voice. . . . [w hereupon, in a blaze o f light] St B enedict

a n d St E th e ld red a, with h e r sister St S exburga, a p p e a re d to
th e suppliant. . . . T h e ven erab le B en ed ict p laced his h a n d on
th e rin g fetters a n d b ro k e th e m on b o th sides, draw ing th em
fro m th e fee t o f th e p riso n e r in such a way th a t h e felt
n o th in g at all a n d th e saint seem ed to have b ro k en th em m o re
by his c o m m a n d th a n by force. W hen h e h a d p u lle d th e m off
h e tossed th e m aside alm ost co n tem p tu o u sly a n d struck th e
b eam w hich su p p o rte d th e ro o m above th e d u n g e o n with such
violence th a t h e m ad e a g re a t crack in it. A t th e so u n d o f the
im p act th e g u a rd s w ho w ere sleeping in th e ro o m above, w ere
all aw akened in terro r. F earing th a t th e p riso n ers h a d fled
they lit to rch es a n d ru sh e d to th e p rison. F in d in g th e doors
u n d a m a g e d a n d locked, they tu rn e d th e keys a n d e n te re d .
W hen they saw th a t th e m an they h a d throw n in to fetters was
freed , they m arvelled greatly.

The events were reported to the queen, who sent Ralph

Basset to investigate. H e checked that there had been no
witchcraft, realized th at a miracle had occurred, and then,
‘rejoicing and w eeping’, brought Bricstan to the queen and
barons.4
H ere we have an unusually full, if sometimes
problem atic, account o f an offence, trial, and preparation
for punishm ent. Bricstan is accused of a com bination of
theft, failure to hand over treasure trove, and usury. The
degree of distinction between the first two is n o t entirely
clear. Perhaps the account did not need to be m ore
specific, perhaps court proceedings did n o t require any
greater precision. N or is the degree of Bricstan’s guilt
certain. T he letter presents him as unjustly accused,
although the statem ent that, while no usurer, ‘he retained
securities from his debtors, because so many m en are
untrustw orthy’ sounds like special pleading. However, a
closely related account states th at when Bricstan reached
adulthood, ‘he was caught up m ore and m ore in the
wickedness of the world to the point that he obtained his
livelihood from unhappy usury and nothing else’.5 W hat is
clear is the form of accusation. It is brought by a royal
official, who resembles the royal sergeants we m et in the

4. Lawsuits, no. 204A.

5. Lawsuits, no. 204B, from the Liber Eliensis.

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last chapter ‘keeping the king’s pleas’. T he case was heard

in the shire court, presided over by a royal justice, Ralph
Basset, but apparently a regular m eeting rather than one
specially sum m oned for the king’s business. P rocedure as
described consists of accusation and denial, followed by
debate on issues including the general character and
appearance o f the accused. Flexibility is also apparent when
the question of the confiscation of Bricstan’s goods arises,
for then his wife offers to undergo ordeal, with no
suggestion that the court was dem anding it o f her. Bricstan
was sentenced, presumably to a physical penalty; despite its
long duration, his im prisonm ent does n o t seem to have
been regarded as the punishm ent. In this case, however,
divine and saintly intervention freed the prisoner before he
could be punished.
Bricstan’s case is o f the type which we, and thirteenth-
century writers, would call criminal. However, the familiar
distinction between civil and crim inal pleas only began to
enter into English law in the late twelfth century, u n d er the
influence of Roman and canon law.6 The word crimen was
familiar in the Anglo-Norman period, but its m eaning was
m ore flexible, often m ore extensive, than the m odern
notion of crime. In particular, it was em ployed to m ean
‘sin’.7 N or were the other words used to describe offences
which we would call crimes solely applicable to a clearly
defined category of acts. We have therefore a term ino-
logical problem : the need to avoid using the handy term
‘crim e’, for fear of projecting back a later categorization. I
instead take as the area o f investigation offences com m itted
by individuals or small groups prim arily against the victim’s
person or his moveable goods. O ften the m ore serious
offences involved force, sometimes violence; in the term s of
the time, they threatened the peace. Such a threat m ight
make them of concern to the king, as would the notion
that they were breaches of the general oath o f loyalty and
good behaviour sworn to him by m en over the age of
twelve.8

6. See below, pp. 160-1.

7. See e.g. O rderic, i, index verborum, u n d er crimen, and also e.g. reatus.
See also Downer, LHP, pp. 427-30.
8. See above, p. 30.

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Faced with very lim ited case material, writers on the

Anglo-Norman period have been lured by the mirage of
plenty offered by the Leges. However, these are archaicizing
texts, and I prefer to use them only when they are
congruous with other contem porary material, or with the
general p attern of legal developm ent revealed by the m ore
plentiful later sources.9 Setting aside the Leges, we are left
mainly with anecdotal material from ecclesiastical narrative
sources. These have obvious disadvantages, including an
ecclesiastical bias, and a preference for the unusual. They
resem ble newspaper stories rather than law reports.
However, since it is unlikely th at any great shift in the
nature of offences occurred, conclusions can be tested
against the m uch m ore plentiful sources em erging from c.
1200. Moreover, reliance on anecdotal evidence can have
some positive advantages. It discourages concentration on
the royal adm inistration o f justice or the genealogy of
certain com m on law actions, com pelling instead an interest
in the setting of individual disputes, the relationship of
offence and offenders to society.

OFFENCES, OFFENDERS, AND MOTIVES

In Anglo-Norman accounts, hom icide and theft
predom inate. T here are no contem porary indications of
hom icide rates, but thirteenth-century records may suggest
a rough annual average o f one killing per twenty villages.
This was a knife-carrying society, in which potentially fatal
fights could easily arise. If knives were n o t available, other
weapons such as sticks or axes were readily at h an d .10 Poor
m edicine m eant that even m inor wounds could prove fatal.
Nevertheless, the earliest surviving royal court rolls from
the decades around 1200 show that many sustained
non-fatal wounds, and the absence o f w ounding from
anecdotal sources reflects their preference for the most
dramatic. O th er serious offences included rape, forgery,
and arson. As well as its im pact on highly combustible
buildings, arson was particularly hated as an offence

9. See also below, p. 249-50.

10. See J. B. Given, Society and Homicide in Thirteenth-Century England
(Stanford, CA, 1977), pp. 40, 189.

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involving stealth. Such offences were very hard to prosecute

and also considered dishonourable, unmanly.
Killing m ight occur in the context o f theft, or the
associated offences o f robbery and burglary.11 The type of
theft would vary with the social context. A severe problem ,
particularly in the m ore pastoral areas o f the west and
north, was cattle theft, for animals were a m ajor elem ent of
agricultural capital. No doubt there was m uch m inor
larceny, and we hear of a pick-pocket taking advantage o f a
large and absorbed crowd:

As [som e m onks o f Evesham ] arrived in O x fo rd a n d p re a c h e d

th e w ord o f G od to th e p e o p le, a m an o f g re a t faith . . .
hum bly a p p ro a c h e d th e reliquary o f S aint Ecgwin a m o n g the
o th ers, very devoutly c o m p le ted his prayers th re e tim es a n d
d u rin g th ese prayers p u t his h a n d in to his p u rse a n d p ro d u c e d
a th re e fo ld d o n a tio n w hich h e faithfully o ffered to G o d ’s saint.
B ut th e o ld en em y was n o t p re p a re d to le t this h a p p e n a n d
with a rd e n t g re ed instigated o n e o f his follow ers . . . to cause
dam age to th e faithful m an, w ho was c o n c e n tra tin g o n his
prayers. R em arkable m adness! W hile alm ost everybody was
th in k in g o f h ig h e r things, this u n h a p p y c re atu re, as a m e m b e r
o f th e devil, a p p ro ac h es th e m an a n d stealthily takes fro m his
pu rse as m any p e n n ies as h e can; h e re p ea ts his w icked w ork
a n d com m its this sam e act fo r a th ird tim e .12

T here m ust also have been a mass o f m inor wrongs,

assaults, insults and so on, which never appears in the
sources. N um erous petty conflicts m ust simply have been
an accepted p art o f village life. Many would never reach a
court.
The majority o f offenders were lowly m en o f whom we
would otherwise know nothing - vagabonds, villagers, or
m en o f slightly higher status like Bricstan. N ot surprisingly
in a population with a large clerical elem ent, some
churchm en com m itted offences, whilst others had acts of
horrific barbarity attributed to them . According to O rderic,
David of Scotland and Countess Ju d ith ’s first-born child

11. See Given, Homicide, pp. 106, 110.

12. Lawsuits, no. 14; see below, p. 67 for the outcom e o f this incident.
See also above, p. 13 n. 51, for charm s against theft.

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was cruelly m u rd e re d by th e iro n fingers o f a c e rta in w retch ed

clerk. T his m a n was p u n ish e d fo r an app allin g crim e w hich h e
h a d c o m m itted in Norway by having his eyes p u t o u t a n d his
h a n d s a n d fe et c u t off. . . . A fterw ards Earl David took him
in to his care in E n g lan d fo r th e love o f G od, a n d provided
h im a n d his small d a u g h te r w ith fo o d a n d clothing. U sing th e
iro n fingers with w hich h e was fitted, b e in g m aim ed , h e cruelly
stabbed his b e n e fa c to r’s two-year-old son while p re te n d in g to
caress him , a n d so at th e p ro m p tin g o f th e devil h e suddenly
tore o u t th e bowels o f th e suckling in his n u rs e ’s arm s. . . .
T h e m u rd e re r was b o u n d to th e tails o f fo u r wild horses a n d
to rn to pieces by th em , as a terrib le w arning to evil-doers.13

Occasionally, particularly in S tephen’s reign, higher-status

laymen were accused o f hom icide or theft, b u t instances
are fairly rare. This may reflect n o t only patterns o f activity,
b u t also contem porary classification. T he same deed m ight
be categorized by different people as theft if com m itted by
a villager, as oppression or distraint if carried out by a lord
or royal official, as youthful exuberance if perpetrated by
loutish young aristocrats.14
C ontem poraries had various explanations for offenders’
activities. N ot surprisingly, the predom inantly ecclesiastical
sources em phasized sin, the devil, or diabolically inspired
madness, as in the case of the O xford pick-pocket. O ther
m ore practical reasons were also given. D runkenness was a
particular problem , as we shall see again in the Angevin
p eriod.15 Inspiration could also com e from greed, revenge,
jealousy or passion, as in the following tale o f entrapm ent
told o f the m other o f H ugh de Morville, one of Becket’s
m urderers:

His m o th e r, so it is said, was ard e n tly in love w ith a young m an

called Litulf, w ho re jec ted adultery. She asked by som e
ex tra o rd in ary fem ale trickery that, with draw n sword, he
sh o u ld b rin g h e r h o rse forw ard, as if playing a gam e. As he
d id this, she in th e lan guage o f th e country, exclaim ed to h e r
h u sb a n d w ho was in fro n t o f her: ‘H u g h d e M orville, bew are,

13. O rderic, iv 274—6; for m ore probable clerical crim e, see Lawsuits,
no. 169.
14. See e.g. Lawsuits, no. 143, an d below, pp. 160, 191; for offences by
officials, see e.g. Lawsuits, no. 12.
15. See below, p. 159.

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bew are, bew are, L itu lf has draw n his sw ord.’ T h e re fo re the
in n o c e n t y o ung m an was c o n d e m n e d to d e a th , b o iled in h o t
w ater a n d u n d e rw e n t m arty rd o m as if h e h a d stre tc h e d o u t his
h a n d to spill th e b lo o d o f his lo rd .16

If contem poraries concentrated mainly on m oral and

personal causes of offences, the sources also give some
sense of their geographical and social setting. Some areas,
notably thick forest, were particularly dangerous, and roads
along which wealth was carried m ade a sensible focus for
robbers.17 Towns, with their markets and crowds, could also
provide happy grounds for thieves, and the concentration
o f population increased the chance o f riots.18 In addition,
there occasionally surfaces the poverty which m ust have
forced m en to turn to theft. O f Ralph Basset’s mass
execution o f thieves in 1124, the Anglo-Saxon Chronicle
com m ented that

a large n u m b e r o f trustw orthy m en said th a t m any w ere

destroyed very unjustly th e re , b u t o u r L o rd G od A lm ighty th a t
sees a n d knows all secrets - h e sees th e w retch ed p e o p le are
tre a te d with co m p lete injustice. First they are ro b b e d o f th e ir
p ro p erty a n d th e n they a re killed. It was a very tro u b lo u s year.
T h e m an w ho h a d p ro p e rty was dep riv ed o f it by severe taxes
a n d severe courts; th e m an w ho h a d n o n e d ied o f h u n g e r.19

Few may have been excused their offences on the grounds

o f com pulsion by poverty, but particularly in respect o f
hom icide, notions o f liability were quite sophisticated. It
was recognized that killing m ight be in self-defence,
although in the developed com m on law such a killer was
unlikely to be acquitted b u t rather had to obtain a royal
pardon.20 Alternatively, killing m ight be accidental.
However, it was one thing to have fairly sophisticated
notions of liability, another to bring them to bear in
settling a dispute. A particular danger was that the victim’s

16. Lawsuits, no. 330. N ote also LHP, 72.1a, Downer, p. 226; for greed,
see Lawsuits, no. 688.
17. See e.g. Lawsuits, no. 8.
18. Lawsuits, no. 173.
19. Lawsuits, no. 237.
20. LHP, 72.1b, 72.2, Downer, pp. 226-8; H u rn ard , Pardon, pp. 108,
299-302.

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kin would see as intentional and malicious a homicide which

the killer regarded as accidental or self-defence. Such a
clash o f views may well underlie the following conflict:

W illiam, n ick n a m e d th e bald, lacked th e co n fid en ce to b rin g

his q u arrels in to th e o p en . H e h a d killed a m a n b u t n o t on
p u rp o se, a n d h e co u ld in n o way buy th e frie n d sh ip o f the
relatio n s o f th e killed m a n n o r at any p rice o b tain th e ir
forgiveness. . . . T h e re w ere five b ro th e rs w ho w ere so furious
a n d u tte re d such th reats fo r th e d e a th o f th e ir b ro th e r th a t
they co u ld frig h ten away anyone.

Regular procedures appear to have been unable to deal

with this dispute, and we shall see that it required the
dram atic intervention of Wulfstan of W orcester and o f still
higher powers to bring a solution.21

PREVENTION AND POLICE

Medieval societies, with no police forces, had great
difficulty ap prehending offenders who were allowed any
time to escape. They had either to prevent offences being
com m itted, or to catch the perpetrators red-handed. Effec-
tive action therefore had to be locally based. Measures such
as an insistence th at cattle sales be publicly witnessed m ight
help to prevent theft or ease its prosecution.22 Much else
would be ad hoc, the individual seeking to break up a fight,
a group of senior figures discussing local problem s. Activity
could be aggressive, deterring outsiders from attacking
m em bers o f the community; such protection was one of the
functions of lordship. O r action could be defensive, as in
the provision o f watchm en, or m ore extensive protection
for towns. Thus a grant o f the customs of the burgesses of
Bury states:

it is th e ir custom to fin d eig h t m e n p e r year fo r th e fo u r wards

to g u a rd th e tow n a t n ig h t a n d o n th e feast o f St E d m u n d
sixteen m e n fo r th e fo u r gates, two d u rin g th e day a n d two
d u rin g th e n ig h t a n d sim ilarly d u rin g th e twelve days follow ing

21. Lawsuits, no. 139; see below, p. 66.

22. See ‘T en Articles of William ľ , c. 5, EHD, ii no. 18; Leges Wiίlelmi,
45, Leges Edwardi, 38-9, Lieberm ann, i 517-18, 668-70.

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th e b irth o f th e L ord. T hey shall also fin d fo u r g a tek eep ers

p e r year fo r th e fo u r gates, th e fifth gate b e in g th e east gate
a n d in th e a b b o t’s h a n d . If n e e d be, th e sacrist shall fin d the
necessary m aterial fo r th e gates a n d th e burgesses shall re p a ir
th em . . .23

T here was a considerable fear of outsiders, of those for

whom no one would answer. They had either to be
prevented from entering the com m unity for any length of
time, or to find people to answer for them .24
C oncern with the activities of a com m unity’s own
m em bers is apparent in a lo rd ’s responsibility for his
household. A ccording to the Leges Edwardi, c. 21, here
significantly expanding a brief law of C nut to fit the
contem porary context,

b a ro n s h a d th e ir knights a n d th e ir own servants, nam ely

stewards, b utlers, ch am b erlain s, cooks, a n d bakers u n d e r th e ir
own fran k p led g e, a n d these m e n h a d th e ir esquires a n d o th e r
servants u n d e r th e ir fran k p led g e [sub suo friborgo; see below, p.
63]. So th a t if they d id w rong a n d th e c o m p la in t o f th e ir
n eig h b o u rs arises against th em , [th e ir lords] h a d th em to rig h t
in th e ir ow n courts, if they h a d sake a n d soke a n d toll an d
team a n d in fa n g en th e o f. . . . A n d those w ho do n o t possess
these custom s shall do rig h t b efo re th e k in g ’s ju stic e in the
h u n d re d o r w apentake o r shire c o u rts.25

The effectiveness of com m unal responsibility could be

sharpened by the threat o f m onetary penalty. Most famous
of these is the murdrum fine, a penalty exacted by the
C onqueror and his successors for failure to produce the
secret killer o f a N orm an. In such circumstances, a fine was
im posed on the h u n d red or perhaps the village or the lord
o f the land in which the killing had happened. According
to some sources the fine could be as m uch as £44 but

23. Lawsuits, no. 295. N ote also obligations for the protection o f roads,
e.g. Lawsuits, no. 8.
24. See e.g. LHP, 8.5, Downer, pp. 102-4, Leges Willeίmi, 48, Leges
Edwardi, 23, Lieberm ann, i 519, 648, Assize o f C larendon, c. 10,
EHD, ii no. 24; see also W. A. Morris, The Frankpledge System (New
York, 1910), pp. 71-2.
25. Stenton, First Century, p. 142; see also LHP, 8.2a, 41.6-7, Downer,
pp. 102, 148.

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according to the 1130 Pipe Roll am ounts were often

between £10 and £20.26 Such penalties gave an incentive
n o t only to produce m urderers but to prevent killings.
Thus a com bination of pressure from above and from peers
was the main recipe for the m aintenance o f order, be it in
a village, a hu ndred, a lordship, or a seignorial household.
All o f these were com m unities with a variety o f functions,
bu t one grouping was particularly form ed for purposes of
good order: the frankpledge. This was a group of ten or
twelve m en, or sometimes of all the m en o f the village,
acting as m utual sureties that they would n o t com m it
offences, and bound to produce the guilty party if an
offence were com m itted. If they failed to do so, they were
am erced, that is they m ade a paym ent for the king’s
mercy.27 The group was referred to as a tithing, reflecting
its basic nu m ber o f ten members. Entry to tithing was
probably m arked by swearing to be faithful to the king and
n either to com m it nor to consent to theft. The village had
an incentive for ensuring full m em bership o f tithing, for if
an offence were com m itted and the offender was not in
tithing, the village was am erced.28
The term frankpledge first appears between 1114 and
1118 when the Leges Henrici use the Latin form plegium
liberale (free pledge). The English term of the same
m eaning, ĵriborg, is probably older, raising the possibility
that frankpledge was Anglo-Saxon in origin. Many of the
conditions m aking frankpledge desirable existed before
1066, but the pre-Conquest laws leave uncertainty. Certainly
by C nuťs reign, there were tithings, m en had to have
sureties, and all over twelve years of age took an oath not to
be a thief or a th ie f s accomplice.29 The question rem ains

26. See Leges Edwardì, 15, Lieberm ann, i 641-2; LHP, 91, Downer, pp.
284-6; Dialogus, pp. 52-3; Surrey, p. 107. £10-20 is roughly equal to
the annual incom e from a reasonably sized k n ig h t’s fee in the mid-
twelfth century; Stenton, First Century, pp. 167-9.
27. Lincs., e.g. nos 1038, 1040, 1043, 1045 suggest th at by 1202 half a
m ark o r a m ark was the appropriate am ercem ent for a frankpledge
w hich allowed one o f its m em bers to flee.
28. Leges Edwardi, 20, Lieberm ann, i 645-6; Morris, Frankpledge, pp.
86-9, 130 citing thirteenth-century texts; Pollock an d Maitland, i
568-9.
29. See above, pp. 30, 56.

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w hether these related practices were separate or were

united as in frankpledge. Arguments, but not conclusive
ones, exist for both positions. However, a twelfth-century
opinion is highly suggestive. William o f Malmesbury
believed that a system o f tithings acting as m utual sureties,
effectively frankpledge, was created in Alfred’s reign, and
whilst the precise attribution may be doubted, it seems very
unlikely that William would have so predated a N orm an
innovation. The evidence for frankpledge existing before
the N orm an Conquest is as strong as can reasonably be
expected.30
Certain areas and groups of m en were n o t included in
frankpledge: inhabitants o f forests, of some boroughs,
clerics, and those u n d er the control of their lords.
Similarly, those o f a status above ordinary freem en seem to
have been exem pt. Perhaps compulsory m em bership of a
tithing com posed o f lesser m en was seen as dem eaning to
their honour, and anyway they could be bro u g h t to justice
by other m ethods, notably by distraining upon their land.31
In addition, there appears to have been no frankpledge in
the n o rth ern or western border counties. This may stem
from Anglo-Saxon arrangem ents, or from the limited
control exercised there by the first N orm an kings.32 Aside
from these exceptions, all m en over the age of twelve were
to participate in the frankpledge system.
T he tithings’ duties were various: to m aintain a general
watch on local affairs; to raise the hue and cry and make
arrests; to keep captured offenders in custody; to act as
surety that their m em bers would appear in court to answer

30. W ormald, Making, ch. 9, ‘M aitland’, pp. 14-15; II Cnut, 20, 21, EHD,
i 50, Liebermann, i 322-4. William o f Malmesbury, Gesta Regum, ed.
W. Stubbs (2 vols, L ondon, 1887-9), i 129-30. Cf. Morris,
Frankpledge, pp. 2, 5-35, who argues th at before the Conquest
tith in g ’s only purpose was the capture o f thieves. Suretyship was
separate, only one surety being req u ired for people o f good repute,
an d parties n o t having to en ter into m utual surety relationships.
Moreover, suretyship was tem porary an d voluntary in that the surety
could withdraw from the arrangem ent.
31. Morris, Frankpledge, pp. 61-4, 72-85. By the th irteen th century even
some ordinary freem en were excused m em bership, b u t this may
well have been a later developm ent, p erhaps linked to an
increasingly rigid law of status.
32. Morris, Frankpledge, pp. 44-59.

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charges; and perhaps to make good dam age that was done.
Failure to produce the m em ber who had com m itted an
offence resulted in am ercem ent for the whole tithing.33
Underlying such duties there was a further function, to
ensure that their m em bers did n o t com m it offences. This
obviously was the best m ethod of avoiding am ercem ents. It
was prevention through peer pressure backed by financial
interest.
Each tithing had a head-m an, but the general regulation
of frankpledge was the business of the sheriff in the
h u n d red court. O th er evidence supports the Leges Henrici’s
statem ent that

If a specially full session is n e e d e d , all fre e m e n , b o th house-

h o ld ers in th e own rig h t a n d those in th e service o f o th ers,
shall assem ble twice a year in th e ir h u n d r e d to determ ine,
am ong o th e r things, w hether tithings are com plete, o r w hat
p erso n s have w ithdraw n o r have b e e n a d d e d , a n d how a n d for
w hat reason.

In o rder to hold such sessions, the sheriff m ade a biennial

tour o f his county, and hence the sessions were referred to
as the sh eriff s tourn.34 These sessions could also deal with
infractions of the peace, and with presentm ents by the
tithings. A lthough evidence for such presentm ents only
becom es clear from 1166, it is very hard to see how the
frankpledge system could otherwise have worked. If the
offender had not fled, but the tithing knew his identity, the
only way for its m em bers to fulfil their oath taken on entry
to frankpledge and to avoid am ercem ent was to give him
up, in effect to present him. This m ight happen at any
time, b u t the most likely regular occasion was when the
sheriff was checking the pro p er working of frankpledge at
his tourn. In this case, H enry Iľ s supposed introduction of

33. Morris, Frankpledge, pp. 90-100; on restoration for dam age, Leges
Edwardi, 20.4, Lieberm ann, i 646. Consiliatio Cnuti, II.19.2d,
Lieberm ann, i 618 states th at tithing was popularly referred to as
‘w ard’ or ‘w atch’.
34. LHP, 8.1, Downer, p. 102; see also Morris, Frankpledge, esp. pp.
127-30, H. M. Cam, The Hundred and the Hundred Rolls (London,
1930), pp. 185-7. Profit em phasized by Morris, Frankpledge, p. 115.
O n privileged boroughs, see Morris, Frankpledge, pp. 147-50.

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the procedure looks m ore like a restoration, perhaps

involving greater regulation and standardization.35
Even with the frankpledge system, the m ajor problem
rem ained that o f capturing wrongdoers. Occasionally the
offender m ight make no attem pt either to conceal his deed
or to flee. H e m ight feel sufficiently confident in his own
strength and that of his supporters to deter accusation or to
win a trial by combat. Alternatively, a m an m ight rem ain if
he believed that he had com m itted no serious wrong, but
then find him self accused o f a m ajor offence: this was most
likely to occur in cases o f killing, where the killer felt his
action had been self-defence or an accident. Let us return
to the case o f William the bald, whose plea that he had
killed accidentally was unacceptable to the victim’s
brothers. Bishop Wulfstan o f W orcester was at Gloucester,
consecrating a church, in the presence of a vast crowd.

H is p re a c h in g filled a g o o d p a rt o f th e day, as h e told th em

ab u n d an tly w hat h e knew to be th e m o st im p o rta n t th in g to
hold. I m ean peace. . . . M any w ho h a d previously resisted all
efforts at reco n ciliatio n w ere o n th a t day p e rsu a d e d to co n se n t
to pacification. P eople e n c o u ra g e d each o th e r a n d if anyone
th o u g h t h e h a d to resist, th e bish o p was co n su lted . [T he five
b ro th e rs d id n o t re sp o n d to th e g e n eral m ood.] T hey were
b ro u g h t b efo re th e bish o p w ho asked th e m to forgive the
w rong, b u t they refu sed utterly a n d violenüy. T hey ad d e d . . .
th a t they w ould r a th e r b e a lto g e th e r e x co m m u n ic ate d th a n
n o t avenge th e d e a th o f th e ir b ro th e r. T h e re u p o n th e bish o p
w earing his episcopal insignia threw h im self b efo re th e ir feet
h o p in g to o b ta in full satisfaction. As h e was lying o n the
g ro u n d , h e re p e a te d his prayers p ro m isin g to th e d e a d m an
th e b e n e fit o f m asses a n d o th e r advantages, in W orcester, as
well as G loucester. In n o way in flu en c ed by such hum ility, they
re jec ted all conciliation. . . . H e n ce as th e bish o p m ade little
headw ay by using b lan d ish m en ts, h e fo u g h t th e sickness o f
th e ir stu b b o rn a ttitu d e w ith a m o re severe rem edy. [H e drew
u p o n th e crow d’s su p p o rt fo r his view th a t ju s t as peace-
m akers a re th e c h ild re n o f G od, so those w ho resist peace are
th e sons o f th e devil.] T h e m aled ictio n o f th e p eo p le was
35. Cf. N. D. H u rn ard , ‘T he ju ry of p resen tm en t an d the Assize of
C laren d o n ’, EHR 56 (1941), 379-83, Morris, Frankpledge, p. 117;
Pollock an d M aitland, i 558-60. N ote th at some control could pass
into private hands, with or w ithout royal permission; Assize of
C larendon, c. 9, EHD, ii no. 24; Morris, Frankpledge, pp. 134^5.

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follow ed im m ediately by divine vengeance, fo r o n e o f th e

b ro th e rs, th e m ost violent, w en t m ad. T h e w retch ro lled
a ro u n d o n th e g ro u n d , bitin g th e soil a n d scratching it with
his fingers, fo am in g a b u n d an tly at th e m o u th a n d as his lim bs
w ere steam ing in an u n h e a rd o f m a n n e r h e in fested th e air
w ith a h o rrib le stench. . . . [T he b ro th e rs ’] p rid e left them ,
th e ir inso len ce d isap p eared , th e ir a rro g an ce w ith ere d away.
You sh o u ld also have seen th e m ch erish w hat they h a d
sp u rn ed , offer peace, im p lo re m ercy. . . . T h e sight o f these
events m oved th e bish o p to clem ency a n d im m ediately after
m ass h e re sto re d h e a lth to th e sufferer a n d security to the
o th e rs a n d established peace a m o n g th e m all.

This clearly is an extrem e case which required considerable

outside intervention, b u t later evidence also suggests that
many serious cases were brought to agreem ent, sometimes
in court, generally outside. This m ust have been still m ore
true of m inor offences, w here even a court ju d g m en t m ight
concentrate on the paying of com pensation.36 Such
offenders m ight well choose to rem ain rather than flee.
Generally, however, if a serious offender were to be success-
fully brought to judgm ent, he had to be caught red-handed,
or, in the case o f our Oxford pick-pocket, shrivel-handed:

Saint Ecgwin d id n o t wait lo n g to p u n ish th e h a n d s o f this

thief, fo r w hen this u n fo rtu n a te m an p u t his h a n d in to the
p u rse fo r th e th ird tim e, it su ddenly d rie d u p a n d was re ta in e d
inside th a t space as if it w ere closed. You sh o u ld have seen this
th ie f trem b le, tu rn pale, wildly look a ro u n d as if h e h a d go n e
m ad a n d fearin g all sorts o f deaths! T h e on lo o k ers u n d e rsto o d
how it h a d all com e a b o u t a n d p ro c e e d e d to catch th e thief, to
m arvel a t th e ev en t a n d to praise G o d ’s saint aloud.

W ithout such saintly intervention, the victim or witnesses

had to take a m ore active part, alerting their neighbours by
raising the hue and cry, and then all were obliged to
pursue the offender.37 If he resisted, he m ight be killed.
36. Lawsuits, no. 139, also see above, p. 61; for out-of-court
intervention, between sentence an d punishm ent, see Lawsuits, no.
210, below, p. 79; for com pensation, see below, pp. 80-3; for later
evidence, see, pp. 165-6.
37. O n pursuit in cases of cattle theft, see Pollock an d M aitland, ii
157-8; also on offenders caught in the act, see the P en en d en H eath
reports, Lawsuits, no. 5B, 5K.

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Such a pursuit n o t only helped to capture offenders but

also allowed the victim to vent his own pain and fury.
Indeed, the presence of neighbours may sometimes have
been necessary to ensure that he did n o t take justice into
his own hands.
Many perpetrators, however, were n o t caught in this way.
Sometimes their identity was a mystery. O n other occasions,
everyone knew their identity, and then the threat of a
com m unal penalty such as the murdrum fine may have
helped to flush out the nam e.38 However, it was n o t all a
m atter o f penalties. Desire to fill, as well as protect, o n e ’s
purse could encourage co-operation, and the Leges Henrici
state that if a m u rder is discovered ‘announcem ents shall
be m ade all about with liberal promises o f rewards, and if
anyone can help . . . rewards shall be provided in great
quantity’.39 O nce caught, the accused had to be securely
detained until a final ju d g m en t was reached and any
punishm ent carried out. Security was provided either
through the accused’s tithing, or through his obtaining
special sureties - m en who pledged for his appearance in
court - or through im prisonm ent, as in Bricstan’s case.40
Still, if the offender was n o t caught rapidly, he was
unlikely to be caught at all. Sometimes he had fled too far
to be easily pursued, partly because of the sheer distance,
partly because of difficulties in continuing the pursuit
beyond o n e ’s own h u n d red or shire. Later evidence
suggests that only a very small proportion o f crimes were
actually brought to trial.41 Look at m atters from the
offender’s point o f view. If you had com m itted a serious
offence, capture m ight lead to the death penalty.
Therefore, unless you were particularly confident, were
friendly with im portant local figures, or could bribe them ,42
there was little joy in staying put. O ne alternative was to
seek sanctuary. A few privileged sanctuaries gave protection
for life, b u t in addition every consecrated monastery,

38. See above, pp. 62-3.

39. LHP, 92.8a, Downer, p. 288.
40. See above, pp. 54, 64-5; also Pollock and Maitland, ii 582-4,
589-90, 593.
41. See below, pp. 176, 180-3.
42. See below, p. 181 on corruption.

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church o r chapel with a graveyard gave sanctuary for a

limited period, generally thirty to forty days. O nce there,
you should n o t be extracted by force. T he period o f respite
m ight allow a settlem ent to be m ade with your victim or
h is /h e r kin, o r an agreem ent that you should leave the
realm for ever.43 Your most com m on option, however, must
have been to flee. You would then be repeatedly
sum m oned to appear in court, and failure to comply
resulted in outlawry. In the Anglo-Norman period the
county may have been the usual forum for such
proceedings - it was later to enjoy a m onopoly o f the
process - b u t contem poraries em phasized that proclaim ing
outlawry was a royal right. You were placed outside the
norm al workings o f the law, in the phrase o f the time you
wore ‘the w olfs h ead ’.44 If captured, you m ight be
executed immediately outlawry had been proved. If you
resisted arrest, you m ight be slain. R etribution had in this
case merely been delayed; however, at best - and this m ust
often have been the outcom e - flight and outlawry ended
any possibility o f punishm ent.

TRIAL
If the offender was seized red-handed, his trial was likely to
be perfunctory. T he case o f our pick-pocket is untypical
only in its ending:

to g en e ra l applause, th e th ie f is c o n d e m n e d to d e a th
acco rd in g to th e law a n d they p re p a re th e ex ecution.
H ow ever, th e m onks, carrying th e relics o f th e saint, d id n o t
stop praying u ntil, with th e h elp o f S aint Ecgwin, they
overcam e th e decision o f th e ju d g es. T h u s th e A lm ighty twice

43. See Lawsuits, no. 172; m ost evidence is late, see e.g. R. F. H unnisett,
The Medieval Coroner (Cam bridge, 1961), ch. 3, b u t note Leges
Willelmi, 1, Leges Edwardi, 5, Lieberm ann, i 492-3, 630, an d D. Hall,
‘T h e Sanctuary o f St C u th b erť, in G. B onner, D. W. Rollason and
C. Stancliffe, eds, St Cuthbert, His Cult and His Community
(W oodbridge, 1989), pp. 425-36. Some offenders m ight seek escape
by becom ing a m onk; see above, p. 53, on Bricstan, an d Assize of
C larendon, c. 20 (EHD, ii no. 24).
44. M. M. Bigelow, History of Procedure in England (London, 1880), pp.
348-9, Pollock and M aitland, ii 449-50, 580-2; J. Goebel, Felony and
Misdemeanor (New York, 1937), pp. 419-23.

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show ed his benignity th ro u g h his s a i n t . . . by saving his servant

fro m th e ft a n d m ercifully saving th e th ie f fro m d e a th .45

‘The law’ seems to allow very swift condem nation before a

very ad hoc court. It was these types o f case, involving theft,
that lords held by the right o f infangentheof. Local action,
bordering on self-help, was the most effective m eans of
police and punishm ent.
W hat if the case came to a m ore form al trial? The
relevant courts were discussed in chapter 2: those o f the
lord with sake and soke, the hundred, and the county, the
most im portant cases being heard in the presence of a
royal justice. Most prosecutions were brought by victims or
their kin, and these will be discussed shortly. However,
there were two further im portant m ethods, presentm ent by
a group or accusation by an individual royal official. Both
m ethods had existed in Anglo-Saxon England, and both
were known in the Anglo-Norman period.46 Given the basis
of both m ethods in the localities, the royal here again
merges with the com m unal. A m ajor target of such
prosecutions m ust have been those offenders whom no
individual would o r could prosecute but who were a
m enace to the community, for exam ple the recalcitrant
robber whose power scared individual accusers. We have
already seen that tithings were probably obliged to make
presentm ents. In cases of m urder, the h u n d red could make
a com m unal accusation in o rder to avoid the murdrum
fine.47 O n some occasions, specially constituted bodies of
sworn m en may have been used to make presentm ents. The
holders o f shire and h u n d red courts may also have
required lords or their stewards, representatives o f villages,
and priests to present their knowledge of local wrongdoing.
This may have extended to making presentm ents of
offenders, but given the limited sources, there is

45. Lawsuits, no. 14; the final fate o f the th ief is uncertain. For
m easures following unjust execution, see LHP, 74, Downer, pp.
230-2, Leges Edwardi, 36, Lieberm ann, i 666-8.
46. See III Ethelred, c. 3, EHD, i no. 43; W ormald, Making, ch. 9; see also
H u rn ard , ‘P resen tm en t’, R. C. van Caenegem , ‘Public prosecution
o f crim e in twelfth-century E ngland’, in his Legal History: a European
Perspective (London, 1991), pp. 47-9.
47. H u rn ard , ‘P resen tm en t’, 385-90.

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unsurprisingly no direct evidence for such being a general

obligation.48
A supplem ent to presentm ent was prosecution by royal
officials, especially of pleas o f the crown. Such prosecution
was one of the roles o f local justices or sergeants, as we saw
so vividly in the case o f R obert Malarteis. The Leges Henrici
m ention that ‘if anyone is lawfully im pleaded by the sheriff
or a justice of the king about theft, arson, robbery, or
similar offences, he is to be subjected by law to a threefold
oath to clear him self. Prosecution by officials may have
been especially im portant in the bo rd er regions which
lacked frankpledge. The effectiveness of such activities, as
well as the potential for rapacity, is reflected in the
unpopularity of ex officio prosecution.49
Most commonly, however, the accusation was brought by
an individual, through a process called appeal.50 Yet despite
this being the main form o f procedure concerning
hom icide, w ounding and the like, recorded instances are
singularly scarce in the Anglo-Norman period, and I only
give a summary here, leaving m ore detailed description
until chapter 6. If both parties appeared on the appointed
day, the accuser would formally state his charge, and offer
to prove it; the defendant would make a form al denial. Less
formal, wider-ranging pleading and debate m ight then
follow, involving the parties, who m ight have recourse to
counsellors, and the suitors o f the court. Specific evidence
m ight be brought, alibis stated, claims m ade that a deed
was done in self-defence. Facing an accusation of cattle
theft, the accused m ight accept a challenge to battle, or he
m ight produce the person from whom he had bought the
goods or witnesses to the sale; if he was successful in
producing the seller, the latter would have to make similar
p ro o f of his right to the goods.51 T he accuser m ight well
struggle if he could find no one to back his claim. Quite

48. H u rn ard , ‘P resen tm en t’, 383-5.

49. See van Caenegem , ‘Public p rosecution’; R. Stewart-Brown, The
Serjeants of the Peace in Medieval England and Wales (M anchester,
1936), pp. 76-80; LHP, 63.1, 66.9 (quoted), Downer, pp. 200, 212;
see above, pp. 29-30 on pleas of the crown.
50. O n women an d appeals, see below, pp. 173, 235-6.
51. Pollock and M aitland, i 57-8, ii 158, 162-5; see also Leges Willelmi,
21, Lieberm ann, i 506-9.

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technical argum ents m ight be raised, no doubt by m en who

were pro u d o f their experience in the courts.52
Additionally, factors such as the repute of the parties m ight
also be considered. The defendant who was notorious or
had often been accused was in a particularly weak position;
even if he was n o t swiftly condem ned he m ight be faced
with an especially tough form of proof, for exam ple
carrying a red-hot iron three times the weight o f the usual
ordeal iron. The hope m ust often have been to obtain a
confession or a com prom ise.53 Failing this, if guilt was not
obvious - and in many cases within small com m unities it
would have been - the court had to settle upon a form of
proof, generally to be undertaken by the accused, and
announced in a ‘m esne [i.e. interm ediate] ju d g m e n t’. The
accused then gave sureties that he would undertake the
p ro o f on the appointed day.54 If he was successful in this
p roof or through his earlier pleading, n o t only was he
cleared but the accuser faced a penalty. This probably took
the form o f a m onetary paym ent to the king, perhaps a loss
o f capacity to make future accusations, and in addition he
m ight have to com e to some arrangem ent with the wrongly
accused.55
T hree m ain m ethods were used to decide hard cases
which had defied other forms of decision or settlem ent:
ordeal, battle, oath. All three introduced God and the
supernatural into the centre o f proceedings. O rdeal, the
judicium Dei, was a ritualized appeal to God for judgm ent. It
revealed the guilt o f the party in the specific case, rather
than merely their general sinfulness or purity. Ecclesiastical
participation was vital, and it was stated that ordeals should
only be held at an episcopal see, at a place designated by a
bishop, or at the very least in the presence of the bishop’s

52. See e.g. LHP, 22.1 (technicality), 45.1a (u n supported accusations),

Downer, pp. 124, 154. LHP, 31.5, 48.4, Downer, pp. 134, 160
suggest at least one m an ’s concern with over-reliance on witnesses.
53. See e.g. Lawsuits, no. 192, and Bricstan’s case, above, p. 54; also
LHP, 57.7, 61.18a, Downer, pp. 178, 198. O n triple ordeal, see LHP,
65.3, Downer, p. 208, based on II Cnut, 30; note also Lieberm ann, i
429.
54. Pollock an d M aitland, ii 602-3.
55. Evidence is very scarce, b u t see LHP, 24.2, 59.28, Downer, pp. 126,
190; Glanυill, ii 3, xiv 1, Hall, pp. 25, 172.

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minister and his clerks.56 In Anglo-Norman England, ordeal

took two m ain forms. In trial by cold water, according to
the recorded rites, the accused was taken to church at
Vespers on the Tuesday preceding the ordeal, dressed in
p en iten t’s clothes, and m ade to fast for three days, hearing
matins and mass with the appropriate liturgy. O n the
Saturday, the priest again started mass, and then addressed
the accused, telling him that he was n o t to receive the body
o f Christ if he had com m itted, consented to, o r known of
the offence. T he accused was being given plenty of
opportunity to adm it his guilt. If he did not, the mass
continued, and he was led from the church, stripped, and
given only a loin-cloth lest he be shamed. T hen with due
cerem ony he was led to the ordeal. T he pit for trial by
water was to be twenty feet wide and twelve deep and filled
to the top. A third of the pit was covered with a platform to
bear the priest, the judging m em bers o f the court (indices),
the accused, and two or three m en to place him in the
water. T hen - at what m ust have seem ed great length to
the accused - the priest blessed the water, addressing God,
‘the ju st ju d g e . . . that you ju d g e what is ju st and your right
ju d g m e n t’. God was to o rd er the water that it receive the
m an if he was innocent, reject him if guilty. T he m an was
bound, and then lowered by a rope which was knotted a
‘long h air’s len g th ’ from w here it was tied to the man. If he
sank that far, his innocence was proved, if he floated, he
was guilty.57 In trial by iron, following a similar preparation,
the accused had to carry a piece of red-hot iron for three
paces. His h an d was then bound, and exam ined on the
third day after the trial. If it was infected, guilt was
established; if clean, the person was cleared.
O rdeal was offered m ore often than it actually took
place. The offer could be used tactically, to back o n e ’s
word, as when Bricstan of C hatteris’s wife offered to carry

56. See William ľ s writ concerning ‘episcopal laws’, EHD, ii no. 79; also
Leges Edwardi, 9.3, Lieberm ann, i 633; F. Barlow, The English Church,
1066-1154 (L ondon, 1979), pp. 159-64. N ote also J o h n of
W orcester, Chronicle, ed. J. R. H. Weaver (Oxford, 1908), p. 30. See
above, p. 33 on royal control o f ordeals.
57. For ordeal rituals, see Lieberm ann, i 401-29, esp. 417-18 for my
account here. O n ordeal generally, see Hyams, Ό rd e a ľ , and
Bartlett, Trial.

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the h o t iron in order to support his oath that he had

surrendered all his goods.58 Most ordeals which actually
took place seem to have been in disputes where other
m ethods o f investigation had failed to establish guilt; there
was no headlong rush for the supernatural. H ence ordeal
was often used to settle charges based on general suspicion
rather than detailed and supported accusation.59 P art of
the purpose was no doubt to scare the accused into
confession. Fear o f God, the elaborate ritual build-up, the
certainty of physical pain in trial by hot iron, the potential
for execution following failure, could all encourage
submission in the hope o f a settlem ent which would at least
leave one alive and unburnt.
Contrary to popular m odern opinion, ordeal was not
irretrievably w eighted against those undergoing it, and
medieval evidence suggests that they had a better than even
chance o f passing the test.60 O ne m an whom such successes
reputedly worried was William Rufus, and interpretation o f
a story concerning him recounted by his enem y the
Canterbury m onk Eadm er, is central to the question o f how
widespread was a thorough-going scepticism about ordeal.
Fifty Englishm en were taken for forest offences and p u t to
trial by ordeal:

W hen th e king was told th a t o n th e th ird day after th e o rd ea l

these m e n w ho h a d b e e n c o n d e m n e d all p re se n te d them selves
to g e th e r w ith th e ir h a n d s u n b u rn t, h e is said to have
exclaim ed in disgust: ‘W h at is this? Is G od a ju s t ju d g e? Perish
th e m an w ho a fter this believes so. F o r th e fu tu re , by this a n d
this I swear it, answ er shall b e m ad e to my ju d g m e n t, n o t to
G o d ’s, w hich inclines to o n e side o r th e o th e r in answ er to
each m a n ’s p ray e r.’61

T he instance is almost unique, even in a E uropean context

in this period, and E adm er’s use o f the words ‘is said to
have exclaim ed’ strike a w arning note that William may not

58. See above, p. 54.

59. Bartlett, Trial, pp. 29-33.
60. N ote M. H. Kerr, R. D. Forsyth and M. J. Plyley, ‘Cold water an d h ot
iron: trial by ordeal in E ngland’, Journal of Interdisάplinary History 22
(1992), 573-95.
61. Lawsuits, no. 150.

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actually have uttered these words. It is nevertheless

significant that Eadm er may have been identifying an area
of belief which was m ore regularly questioned than our
sources allow.
However, recorded instances o f dou b t were m uch m ore
often confined to specific instances, and tended to focus on
the honesty o f those responsible for the procedure. Such
specific doubts are n o t surprising, since ordeal was used in
cases which were already problem atic. Overall, the use of
ordeal seems to have been acceptable, even if it was far
from a m atter o f blind faith. It was a m eans whereby
superior authority and local com m unities could settle
difficult disputes. Problems in deciding the actual outcom e
o f the ordeal, for exam ple w hether a hand actually was
clean, m ight lead to the perpetuation o f strife.62 Ideally,
though, the preceding ritual, the dram a o f the ordeal itself,
the participation o f the clergy, suitors, and court president,
and the belief that God had judged, should bring an end to
a dispute. They cauterized a potentially dangerous local
malaise which m ight otherwise have festered, grown
inflamed, and thereby threatened the peace.
By the later twelfth century the preferred m ethod of
p ro o f in appeals concerning serious offences was trial by
battle. Indeed, from soon after the Conquest a preference
for battle may have contributed to the decline o f the use of
oaths and ordeals; ordeals, particularly by water, were
possibly associated with lowly status. Generally, the accuser
was the victim o r his surviving kinsman, but on occasion it
was an ‘approver’, an offender who had been caught and
agreed to bring accusations against his fellows in retu rn for
his own life and limbs.63 Battle again could be preceded by
religious ritual, particularly im portant since victory in
com bat represented G od’s ju st judgm ent, but overall the
sacral and clerical elem ents were less im portant than in
ordeal by iron or water.64 T he battle was fought between
the accuser and the accused, if both were fit. They

62. See esp. Bartlett, Trial, pp. 39—41.

63. F. C. Hamil, ‘T he king’s approver’, Speculum 11 (1936), 238-58. O n
battle being reserved for serious cases, see LHP, 59.16a, Downer, p.
188.
64. Bartlett, Trial, pp. 116, 121-2; Duellum, L ieberm ann, i 430-1.

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em ployed ham m ers or staffs with sharpened and reinforced

ends, rather than the swords used in trials concerning
land.65 Unfortunately, we lack English anecdotes from this
period, but near contem porary evidence suggests that
‘fight’ would be a better term than the rather chivalric
sounding ‘d u el’. T he following story from the late twelfth
century was preserved because o f the intervention o f St
Thom as Becket:

Two m e n w ho h a d b e e n ad ju d g e d to a d u e l cam e to g e th er,

o n e b e in g m u c h bigger a n d stro n g er th a n th e o th er. T h e
stro n g e r m an catches th e w eaker o n e, lifts h im h ig h above his
h e a d ready to throw h im h a rd on th e g ro u n d . T h e sm aller
m an h a n g in g thus in th e air lifts u p his m in d to heaven a n d
says a sh o rt prayer: ‘H elp, holy T h o m as m a rty r’. T h e d a n g e r
was g re a t a n d su d d e n a n d th e tim e fo r pray er short. T h e re are
w itnesses w ho w ere p resent: th e stro n g e r m an , as if o p p ressed
by th e w eight o f th e holy n am e, suddenly collapsed u n d e r the
o n e h e h e ld a n d was v a n q u ish e d .66

As well as illustrating the rough-and-tum ble nature o f such

trials, the anecdote perfectly illustrates the tension that
existed in m e n ’s minds between the obvious fact that
stronger m en had an advantage and the conviction that
battle brought the supernatural into the doing o f justice.
Oaths o f exculpation m ight be undertaken by the party
alone, or together with other ‘oath-helpers’.67
U nfortunately, we have no case material on the subject, and
m ust look to the Anglo-Saxon laws and to the post-
Conquest Leges which rely heavily on Anglo-Saxon
precedent. In general, they suggest that the party bearing

65. M. T. Clanchy, ‘Highway robbery an d trial by battle in the

H am pshire eyre of 1249’, in R. F. H unnisett an d J. B. Post, eds,
Medieval Legal Records (London, 1978), pp. 33-4.
66. Lawsuits, no. 502; also below, p. 172. O n weapons, see Pollock and
M aitland, ii 34.
67. O n oaths, see e.g. LHP, 18.1, 65, Downer, pp. 120, 208, Leges
Willelmi, 3, Lieberm ann, i 494-5; Bigelow, Procedure, pp. 297-8,
301-8, Pollock an d M aitland, i 91 n. 3, ii 600-1, 634-7; for later
uses, see e.g. F. W. M aitland and W. P. Baildon, eds, The Court Baron
(Selden Soc., 4, 1891), passim. O aths rem ained m ore im p o rtan t in
towns, see e.g. Borough Customs, i 34, 37. See above, p. 12 on the
im portance o f o n e ’s word.

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p ro o f often had to make an oath, by him self or with others,

and that support from others was particularly necessary for
m en o f ill-repute. The groups upon whom the accused
could draw for such ‘com purgation’ would include his kin,
friends and neighbours, and his tithing. Alternatively, the
court or his o p p o n en t m ight impose swearers upon him.
The oath was a re-affirmation of the d efen d an t’s original
denial, in words such as ‘by the Lord, the oath which N.
has sworn is clean and u n p erju re d ’. Again the supernatural
is being drawn into procedure, but again the workings of
the procedure can also be seen in m ore functional terms.
In particular, m en m ight be unwilling to swear in support
of one who had becom e a liability to their interests, and
denial of whose ill-doing would call into question their own
position as lawful m en of honour. H ence self-interest as
well as fear o f God m ight ensure that justice was done in
cases of com purgation. O aths seem to have been of
decreasing im portance for serious offences, but may have
continued to be vital for m atters arising from procedure
and also for lesser offences.

PUNISHMENT AND COMPENSATION

If the accused failed in his proof, he was condem ned to the
appropriate penalty. For serious offences, he would face the
death penalty, although he m ight escape with mutilation.
In addition, as in the case o f Bricstan, his goods would
normally be forfeited to the king.68 His land, if he had any,
m ight pass to his lord. Anglo-Saxon England was familiar
with the death penalty, sometimes when the offender could
no t make the very high payments appropriate, but also for
offences too serious for pecuniary em endation, for exam ple

68. See above, p. 54; Lawsuits, no. 192 specifies loss o f life an d goods as
p ro p er practice ‘according to the judicial usage o f E ngland’;
however, the text may have been w ritten in H enry Iľ s reign. It does
n o t specify to whom the goods were to pass, although the king
becom es involved in the settlem ent. Assize of C larendon, c. 5, EHD,
ii no. 24, allows chattels o f those convicted o th e r than by
presen tm en t u n d er the assize to be distributed as customary. This,
of course, does n o t preclude them from going to the king in crown
pleas; others m ight receive chattels if they were specially privileged
in relation to serious cases, or m ore generally for lesser cases.

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m urder, treason, arson, manifest theft, and assaults upon

houses.69 O ne of the docum ents purportedly recording
legislation o f William the C onqueror has him abolish the
death penalty, replacing it with blinding and castration.
However, the text has no official status, and may be a
partial version of a real decree, a statem ent o f goodwill
rath er than real intent, or a garbled version o f pre-
Conquest legislation prohibiting the death penalty for
m inor offences o r for young offenders.70 Domesday
customs m ention the use o f the death penalty. We have
already heard from a slightly later source the story o f the
Oxford pick-pockeťs narrow escape from execution during
William’s reign, and William o f Malmesbury noted that
Rufus loosed the noose from robbers’ necks in retu rn for
money. H enry ľ s initiatives against thieves, for exam ple in
1108, were not a réintroduction of the death penalty but its
re-affirmation or extension. William of Malmesbury com-
m ented that H enry I in the early years o f his reign favoured
the cutting o f limbs in o rder to deter offenders by example,
b u t later preferred to take paym ent from them . However,
in 1124 use o f the death penalty was in full swing as Ralph
Basset hanged forty-four thieves at Hundehoge. If the figure
can be trusted it is exceptionally large com pared with the
num ber who would be executed at a single sitting o f the
eyre in the later twelfth or thirteenth centuries.71
The death penalty was generally carried out by hanging,
although in a few circumstances and certain areas
beheading took place. T he condem ned was denied the
sacram ents before his execution and Christian burial after
it.72 M utilation in cases w here death was appropriate was a
form of clemency, leaving the punished in a better position

69. See e.g. H u rn ard , Pardon, p. 1.

70. EHD, ii no. 18, c. 10 (and see com m ents in Lieberm ann, iii 278,
281); n o te e.g. II Cnut, 2.1, Lieberm ann, i 308-11; H u rn ard , Pardon,
p. 5 n. 3; Leges Willelmi, 40, Lieberm ann, i 516.
71. Pollock and M aitland, ii 456-7; above, p. 69; Gesta Regum, ii 369,
487; SSC, p. 113 from ‘F lorence’ of W orcester; RRAN, ii no. 518;
Lawsuits, nos 167 (on the ‘bodily p u n ish m en t o f thieves’), 237; note
also Suger, The Deeds o f Louis the Fat, trans R. C. Cusim ano an d J.
M oorhead (W ashington DC, 1992), p. 70.
72. See G erald o f Wales, The Jerwel o f the Church, trans J. J. H agen
(Leiden, 1979), pp. 89-90.

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 V I O L E N C E A N D T H E F T IN A N G L O - N O R M A N E N G L A N D

to save their souls after their short sharp shock. Why six
m en at Hundehoge escaped with blinding and castrating is
unclear, b u t the offender’s youth may explain the case o f a
boy who, until he was saved by the bishop o f W inchester,
was to be deprived o f his eyes for com m itting theft.73 Such
a penalty seems to us all the m ore savage because it could
be the accuser, n o t some dispassionate public executioner,
who carried out the sentence - as the gore-hungry reader
will see in chapter 6.74
Severe retribution was considered appropriate, both
because the convicted deserved it and also to deter others,
a very im portant elem ent in a society w here few offenders
were caught. T he im pact could be increased through
rhetoric and ritual accompanying the process of
punishm ent, re-affirming what those in authority
considered good order. A priest m ight also impose penance
for the deed, reinforcing the association between the
offence and sin which was already manifest, for exam ple in
trial by ordeal.75 Alternatively, if the convicted begged for
and was granted mercy, this too m ight em phasize the
power of the giver o f mercy, the wrongfulness o f the
original offence, the baseness o f the offender.76
Physical punishm ents for serious offences coexisted with
payments to the king, and official or unofficial com pen-
sation to the victim or kin. We saw above that those
convicted at least o f pleas o f the crown m ight forfeit their
possessions as well as their lives. P unishm ent and forfeiture
are seen as underlying payments by those in the king’s
mercy, which cam e to be called am ercem ents. This practice
existed in N orm andy before 1066 and on both sides o f the
Channel thereafter. In return for a payment, the duke or king
would show his mercy by not exacting the full penalty.77
73. Lawsuits, no. 210.
74. See below, p. 160, an d fu rth er Pollock an d M aitland, ii 496 n. 7,
which also notes some peculiar local punishm ents.
75. See T. F. T. Plucknett, Edward I and Criminal Law (Cam bridge,
1960), ch. 3.
76. For supplication, see e.g. Lawsuits, nos 143 (throw ing self at king’s
feet), 192 (notably involving the queen as well as the king).
77. J. Yver, ‘Les prem ieres institutions du duch é du N o rm an d ie’,
Settimane di Spoleto 16 (1969), 350-3; Goebel, Felony, esp. pp. 238-48,
266-7, 381-5; J. P. Collas, éd., Year Book 12 Edward II (Selden Soc.,
81, 1964), pp. xxii-xxxiii; see above, p. 77 on forfeiture.

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This com bination o f punishm ent and am ercem ent is

often contrasted with the Anglo-Saxon system o f fixed wites,
payments m ade to the king, or some delegate, for an
offence.78 As far as we can tell - and we cannot tell m uch -
there was no such pattern of fixed payments in N orm andy
before 1066. This may partly be a m atter of the sources:
there are no N orm an parallels to the laws which have
determ ined our picture of Anglo-Saxon practice. Moreover,
the Anglo-Saxon laws and the Leges, and indeed the
Domesday Book lists o f customs with their local variations,79
may be misleading in the precision with which they define
wites, both before and certainly after the Conquest. T heir
lists may be indications o f what was considered by some to
be good practice, an equivalent o f post-Conquest
statem ents that em endations o r am ercem ents should be
proportionate to the offence.80 O utside the Leges, evidence
for payments o f fixed wites is very scarce.81 T he 1130 Pipe
Roll suggests that there was no such system o f rigidly fixed
wites\ rather the payments resem ble those in later Pipe Rolls
which everyone takes as am ercem ents. Anglo-Saxon kings,
too, no doubt exacted payments for mercy. Entries in an
Anglo-Saxon royal account m ight have resem bled those in
the 1130 Pipe Roll, and have contrasted with the
im pression o f fixed wites given by the Laws. And if wites
were m ore flexible than the laws suggest, twelfth-century
records show that am ercem ents, in particular for m inor
wrongs such as breaches of procedure, becam e quite
standardized. T he difference between wite and am ercem ent
in practice disappears.
As for com pensations, there is very little case evidence
in the Anglo-Norman period, less even than for punish-

78. See W ormald, Making, ch. 9, ‘M aitland’, p. 14, on the relationship

o f wite and bót in late Anglo-Saxon England.
79. Pollock an d M aitland, ii 456-7.
80. See e.g. H enry I, Coronation Charter, c. 8, EHD, ii no. 19; Magna
Carta, c. 20; n o te also the specificity o f II Cnut on am ounts of
heriots an d the Leges on murdrum, which o th e r evidence shows were
n o t precisely paid in practice.
81. EHD, ii no. 270, H enry ľ s charter to L ondon (on which see above,
p. 29 n. 17), limits am ercem ents to the L o n d o n er’s werr o f 100s.;
note also Borough Customs, i 23 (L ondon), an d ii 47 from early
fourteenth-century M anchester; Holt, Magna Carta, p. 58.

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m ent.82 It is therefore uncertain when the arrangem ent of

com pensations ceased to be central to court decisions
concerning serious offences. The hom icide case in which
Wulfstan intervened so dramatically was an out-of-court
settlem ent involving an accidental killing, a type o f dispute
to which com pensation was peculiarly suited. O ne is left
struggling with the Leges.83 T he Leges Edwardi, probably
dating from between the 1130s and 1150s, give a very
perfunctory account, but the Leges Willelmi and in particular
the Leges Henrici from the 1110s present a com plicated
system of fixed com pensations. Yet these are very closely
based on Anglo-Saxon texts, notably Alfred’s laws and a
tract called Wer. Should their treatm ent o f com pensations
be taken as the letter o f the law, when their presentation of
wiles has ju st been rejected? The Leges may be best treated
as guides to good thinking about law, as encouragem ent of
com pensations perm itting settlem ents. Even if any formal
com pensation system o f fixed m onetary payments, enforced
in court for serious crimes, had functioned in the late
Anglo-Saxon period, it seems likely that it was disappearing
during H enry ľ s reign at the latest.84
Why did this happen? T here was surely no single royal
decree abolishing compensation for serious offences. Rather a
m ore complex pattern such as the following seems plausible.
Com pensations seem to have been less prom inent in
N orm andy than in Anglo-Saxon England. D udo o f St
Q u en tin ’s story that the first count o f Normandy, Rollo,
issued a law that robbers should be hanged may signify a
preference for punishm ent in early eleventh even if n o t in
early tenth-century Normandy. Post-Conquest sources refer
explicitly to English words and proverbs concerning
com pensations, reinforcing the association with the Anglo-
Saxon, n o t the N orm an past.85 M oreover, the role of
82. Note, however, the appeal o f larceny where n o t only did the thief
get hanged b u t the victim received his goods back: Plucknett,
Criminal Law, pp. 80-2.
83. See esp. LHP, 49.7, 68, 70, 76-9, 93-4, Downer, pp. 164, 214-22,
236-48, 292-302; Leges Willelmi, 7-11, 18-19, Leges Edwardi, 12.4-6,
Lieberm ann, i 498-501, 504—5, 638-9; n o te the com m ents of
Goebel, Felony, pp. 381-2 n. 155.
84. See also W ormald, Making, ch. 9.
85. See Goebel, Felony, pp. 187-206; Leges Edwardi, 12.6, Lieberm ann, i
638-9; note also Lawsuits, no. 172 on ‘botless’ offences.

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com pensations - fixed or negotiated - may have been

declining even in late Anglo-Saxon England, with royal
efforts to enforce peace, with the high level of
com pensations m aking paym ent difficult, and perhaps with
the sheer complexity of the system; punishm ents and
am ercem ents had a simplicity which m ight well attract royal
servants and others. Some of the m ethods which may once
have ensured that com pensations were paid, notably feud,
were decreasingly available, and even enslavem ent for
failure to pay disappeared after the Conquest.
Thus in the Anglo-Norman period, if n o t before,
punishm ent fixed by the court came to be increasingly
disconnected from com pensations settled by the parties.
Indeed, kings and their officials may have sought to control
the type o f out-of-court settlem ent which would avoid
punishm ent, and perhaps deprive the king o f profit.86 Such
developm ents were linked to other aspects o f increasing
royal control, the developing notion of crown pleas discussed
in chapter 2, and an emphasis upon the king’s peace. The
developm ent o f a general king’s peace extending through-
out the realm is clear in H enry ľ s C oronation Charter,
although it may have begun well before 1100 or even
1066.87 W hen H enry stated that ‘I place strong peace on all
my kingdom and o rder it to be held h enceforth’, he was
deliberately invoking som ething m ore than general peace-
fulness, and something different from his protection specially
given to individuals. Rather he was placing his power
behind a strong peace closely associated with kingship.88

86. LHP, 59.27, Downer, p. 190 on justices controlling settlem ents; see
also below, pp. 169-70.
87. See W orm ald, Making.
88. EHD, ii no. 19 c. 12. For the Anglo-Saxon period, see W ormald,
Making. Cf. Goebel, Felony, pp. 423-40; H u rn ard , Pardon, p. 8. See
Eadm er, Historia Novorum, ed. M. Rule (London, 1884), p. 184 on
H enry bringing N orm andy after 1106 ‘u n d er royal peace’; also
O rderic, vi 92 an d William o f Malmesbury, Historia Novella, ed. and
trans K. R. P otter (Edinburgh, 1955), p. 17. For the king’s special
protection, see e.g. ‘T en Articles of William ľ , c. 3, EHD, ii no. 18;
LHP, 10.1, 16, 79.3-4, Downer, pp. 108, 120, 246, Leges Edwardi, 12,
27, Lieberm ann, i 637-8, 651; Lawsuits, no. 134 (p. 93). T he custom
th at an appeal o f felony m ust include m ention o f a breach of the
king’s peace (see below, pp. 161, 165) may have developed m ore
slowly, and have led to a refinem ent o f notions o f th at peace.

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This was in part an ideological assertion, and the concern

o f H enry I and his father with ‘Peace’ is clearest in
N orm andy with their involvement in, and control of, the
Peace and Truce of God. However, the assertion o f the
strong peace was also practical. The king and his officials
were in ten t on enforcing peace, and peace hence came to
be associated with them . O ne of their m ethods was to use
the death penalty, or at the very least the exam ple of
p unishm ent by life or limb. A nother was prosecution by
royal officials.89 Offenders, most notably culpable killers
and thieves were subjected to a persecuting regime.
However, the move from com pensation to punishm ent
was n o t com plete, particularly since m uch out-of-court
activity coexisted with the judicial. First, some use of
com pensation continued even for serious offences.
Sometimes the king exacted the death penalty b u t allowed
com pensation to the victim or kin. Royal efforts which had
the effect o f reducing the role of com pensation may have
m et with resistance.90 Also, courts still m ight help the
parties arrange settlem ents involving com pensation.
Secondly, com pensations probably m aintained great
im portance in areas outside regular royal jurisdiction, for
exam ple towns. Thirdly, com pensations continued for
lesser offences, probably the circumstances w here they had
always been most im portant, before m erging into payments
for damages u n d er com m on law actions such as trespass.91
They were the most satisfactory way of settling such disputes
which did n o t threaten the wider peace.

CONCLUSIONS
T he N orm an kings ordered th at the Laga Edwardi be
observed. D uring this chapter, we have seen m uch
continuity, and, indeed, with regard to frankpledge and
am ercem ents m ore continuity than some historians would

89. See above, p. 71; also Hurnard, Pardon, esp. p. 18.

90. H urnard, Pardon, ch. 1.
91. See below, pp. 164-6. See Borough Customs, i 30-1 on a twelfth-
century Preston custom, which fixed the amount payable per inch
of a wound, if both parties could be made to agree to such a
settlement.

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 T H E F O R M A T I O N O F T H E E N G L I S H C O M M O N LAW

allow. As suggested earlier, pre-1066 England and

N orm andy probably shared many im portant characteristics,
for exam ple in some classifications of serious offences.
Continuity also existed in particular with regard to lesser
offences, where, indeed, elem ents of procedure and
settlem ent practices survived beyond the period of this
book. No doubt this continuity was helped by the fact that
most of the population using such procedures, or com-
posing courts which heard such cases, would have been of
English descent. M oreover, certain features linked to social
and administrative organization rem ained unchanged: the
small proportion o f serious offenders ever punished; the
necessity for local activity, influenced by considerable royal
involvement; the essential responsibilities o f lords and of
com m unities for any efficient attem pt to prevent or
prosecute offences.
We have also seen continuing developm ent, for exam ple
in use of the death penalty, in forms of presentm ent, and
perhaps in notions o f the king’s peace. Clear N orm an
innovations are fewer, the most notable being trial by
battle. It is difficult to tell how far an apparent increase in
royal activity is real, how far a product o f m ore extensive
sources; however, the level o f activity at the time of the first
surviving Pipe Roll, in 1130, was probably not m atched
until a decade into H enry Iľ s reign. Inspired by a desire
both for peace and profit, royal activity involved admin-
istrative action, legislation, and m ore general develop-
ments, for exam ple in thinking about crown pleas. Such
developm ents may have brought increased standardization.
However, whilst the statem ents of the Leges Henrici and the
Leges Willelmi about the differences o f M ercian, Wessex and
Danelaw may be treated with considerable doubt, and are
not very prom inent in the Leges Edwardi, m uch room
rem ained for local variations in procedure and perhaps in
penalties, particularly for lesser offences.92 Frankpledge was
absent from extensive n o rth ern and western areas, and so
too probably was the murdrum fine.93 T here were also, as we

92. See above, p. 80 on Domesday customs; also e.g. LHP, 39, Downer,
p. 144.
93. F. C. Hamil, ‘P resentm ent of Englishry an d the m u rd er fin e’,
Speculum 12 (1937), 290.

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saw in chapter 2, some particularly privileged areas where

royal control was especially restricted. Such local powers
would increase, the developm ent of royal authority be
reversed, u n d er Stephen. The renewal o f royal authority
u n d er H enry II would bring it a rather different form.

85
 Chapter 4

LAW AND LAND-HOLDING IN

ANGLO-NORMAN ENGLAND

I have done this at the advice and with the approval of many
wise men, moved 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
gentleman [vir nobilis et liberalis} who has a fief 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. He added also that if this man’s heir should try to take
away the alms which are interposed as a bridge between his
father and Paradise, by which his father may be able to pass
over, the heir, so far as he may, is disinheriting his father from
the kingdom of heaven, and therefore should not obtain the
inheritance which remains, since he who has killed his father
has proved himself no son.
Confirmation charter of Roger of Valognes for Binham
Priory, c. 11451

Discussion o f land law has been central to the writing of

legal history. ‘T en u re’ sits proudly at the start o f M aitland’s
them atic analysis in his History of English Law. Such
prom inence reflects in p art the concerns of post-medieval
lawyers, and also political thinkers’ interest in the nature of
‘property’. But it also stems from medieval evidence and
interests. Because land was fundam ental to the power of
the aristocracy, and m ore locally to lesser m en as well, the
customs and procedures which can be referred to as land

1. Stenton, First Century, pp. 39, 260-1.

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 LAW A N D L A N D - H O L D I N G IN A N G L O - N O R M A N E N G L A N D

law were o f great im portance. Land cases feature

prom inently in the records. GlanviĶ writing at the end of
the 1180s, devoted m ost o f his Treatise to land law, leaving
crim inal pleas to a brief final book.
Analysis o f land-holding has been vital both to writings
on the functioning o f law and lordship within the
Anglo-Norman period and to those on the form ation of
com m on law. Debate has focused upon the similarities or
differences between Anglo-Norman practices and those of
the th irteenth century; upon the strength o f the te n an t’s
control o f his land in relation to his lord; and upon the
extent o f royal intervention in the hearing o f land
disputes.2 I shall argue that the N orm ans introduced
im portant new land-holding practices, that by end o f H enry
ľ s reign m uch o f the vocabulary and many o f the customs
o f com m on law land-holding were em erging, and that there
was also by then significant, if n o t routine, royal
involvement in land-holding cases.

LAND, LORDSHIP, AND LAW

It was largely through their lands, their lordships, their
‘h o n o u rs’ as they were called at the time, that great m en
obtained their wealth, their prestige, their honour. Land
was used in the negotiation and m aintenance o f the
relationships whereby m en achieved or sustained eminence.
It is little w onder that some aristocrats developed
reputations for litigiousness.3 Yet, as was argued in chapter
1. law concerns m uch m ore than disputes. It has other
im portant functions, such as enabling certain actions. For
exam ple, one way in which m en rose to prom inence in our
period was by m arriage to aristocratic women, in particular
heiresses. T he heiress differed from the male h eir in that,
whilst she m ight inherit land, she did n o t hold it herself.

2. See above, p. 20; an d S. E. T h o rn e, ‘English feudalism an d estates

in lan d ’, Cambridge Law Journal (1959), 193-209; Milsom, Legal
Framework; J. C. Holt, ‘Politics an d property in early medieval
E ngland’, Past and Present 57 (1972), 3-52, ‘Feudal society an d the
family in early medieval E ngland’, TRHS 5th Ser. 32-5 (1982-5);
H udson, Land, Law, and Lordship.
3. See above, p. 5.

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Rather, if she was m arried, control o f the land rested with

h er husband. If she was unm arried, it rested with her lord,
who m ight give h er to a husband he wished to favour;
hence the value of heiresses for patronage and for the
binding o f alliances. However, the heiress is n o t a universal
feature o f all aristocratic societies. Rather she seems to have
risen to prom inence in western Europe through develop-
m ents in inheritance practices during the later eleventh
and early twelfth centuries.4
In Anglo-Norman society, land-holding was closely linked
to lordship. Those to whom a lord gave lands ‘in fee’ would
have done hom age to him. At least if lord and m an had no
previous relationship, the cerem onies of ‘seising’, that is
transferring land, and o f doing hom age m ight be very
closely connected.5 This connection to lordship reflects
partly practices im ported from Normandy, b u t also the
im pact o f Conquest. To the king who saw the new realm as
his, those to whom he gave lands as reward for their
services were his m en, holding from him. This perception
was repeated as the king’s followers distributed lands to
their own m en. In such circumstances it is n o t surprising
that the majority o f charters from the period recording
land grants are addressed to the lo rd ’s barons and m en,
that is, to those who m ade up the h o n o u r and its court.
However, there was m uch m ore to a tenant holding land
than merely having been seised o f it by his lord. People
spoke of land as theirs by right even if they were n o t seised
o f it.6 Moreover, once lands had rem ained in tenant
families for an extended period, the effect o f lordship
dim inished. Provided services were perform ed, the im pact
o f lordship would be im m ediate only at certain weak points
in the family history, such as succession, particularly o f a
m inor or an heiress. It is at these weak points that lords
enjoyed the rights which historians group as ‘feudal
incidents’, relief payable by an heir wishing to succeed,
4. See e.g. J. M artindale, ‘Succession and politics in the
Rom ance-speaking world, c. 1000-1140’, in M. Jo n es and M. Vale,
eds, England and her Neighbours (London, 1989), esp. pp. 32-40.
5. See H udson, Land, Law, and Lordship, pp. 16-21; also S. M. G.
Reynolds, Fiefs and Vassals (Oxford, 1994), pp. 370-3. O n holding in
fee, see below, pp. 90, 94ff.
6. See e.g. Lawsuits, no. 294; also below, p. 115.
 LAW A N D L A N D - H O L D I N G IN A N G L O - N O R M A N E N G L A N D

wardship o f the lands o f heirs who were minors, supervision

o f marriages.
In this chapter, rath er than laying down a m onolithic set
o f customs concerning land, I sketch a variety o f
perceptions. Perceptions m ight vary according to the
position the party held in any land-holding relationship.
From the lo rd ’s point of view, land law provided him with a
way o f controlling key resources, his wealth, and his
followers. From the ten an t’s p oint o f view, land and the
customs relating to it enabled him to provide for himself,
his family, and his followers, in his life-time and beyond.
However, each party m ight also vary in his own perceptions,
o r statem ents o f his - or her - position. A ten an t m ight try
to p u t forward a justification of his own position which he
would condem n when pro p o u n d ed by another. Yet the
picture is not entirely one o f diversity. For example, self-
interest might ensure that the tenant emphasized the lord-
ship elem ent in land-holding.7 There is, indeed, much
evidence for lords and tenants sharing perceptions, not least
because the same person would be lord in one situation,
ten an t in another. T he way in which various perceptions of
land-holding com peted with or com plem ented one an o th er
will be a central them e o f this chapter.8

THE FORMS OF LAND-HOLDING

D uring the period 1066-1216 different forms of
land-holding were increasingly rigorously classified.
Admittedly, no one at the time seems to have drawn up a
written scheme o f tenures. Term s continued to have m ore
than one m eaning, and some distinctions rem ained
blurred.9 Even so, a process o f distinguishing between
7. See below, p. 110, on warranty.
8. For argum ents em phasizing the close relationship o f lordship and
land-holding, see T h o rn e, ‘Estates in la n d ’ an d Milsom, Legal
Framework, for an opposing p o in t o f view, Reynolds, Fiefs and Vassals.
For ideas underlying the approach taken h ere see J. G. H. H udson,
‘Anglo-Norman land law an d the origins o f p roperty’ an d S. D.
W hite, ‘T he discourse o f in h eritan ce’, in G arnett an d H udson, Law
and Government, pp. 173-97, 198-222.
9. For classification according to later schem es o f tenures, differing in
some ways from the categorizations here, see e.g. A. W. B. Simpson,
A History o f the Land Law (Oxford, 1986), ch. 1.

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forms of land-holding influenced legal development.

A lthough I here consider other types of land-holding
briefly, this chapter and chapter 7 on the Angevin period
will concentrate primarily upon land which was described
as held ‘in fee’. This concentration reflects the surviving
evidence, the links between such tenure and com m on law
property, and also the wide extent of holding in fee. A
charter o f the earl o f Lincoln in 1142 divided his tenants
into ju st two categories, those holding ‘in fee and
inheritance’, and rustics.10
The N orm an conquerors im ported in their heads the
word ‘fee’ and other ideas upon which would rest vital
customs concerning lay land-holding. This need n o t m ean
that N orm an and Anglo-Saxon land-holding practices
before 1066 were vastly dissimilar. However, the almost
com plete replacem ent o f the English aristocracy by 1086
ensured that their customary perceptions were also
replaced. This conclusion is supported by a change in the
vocabulary of land-holding, n o t absolute proof, but as good
evidence as one can expect. T he Anglo-Saxon word bocland
- bookland - all but disappears. Feudum - fief or fee -
comes to predom inate. This was a m atter o f substantive
change, n o t merely translation. Indeed, in the twelfth
century, m en who were seeking to understand the
Anglo-Saxon laws adopted a variety of translations of
bocland; no generally agreed form was available. Meanwhile,
in the last four decades of the eleventh century N orm an
and English charters had come to use the word ‘fee’ not
only to describe an actual tenem ent, but also to classify a
form of land-holding by the phrase ‘in fee’. Such were
lands held heritably by honourable secular service, often,
but n o t necessarily, military.11

10. F. M. Stenton, ed., Facsimiles of Early Charters from Northamptonshire

Collections (N orthants. Record Soc., 4, 1930), Frontispiece; see also
Reynolds, Fiefs and Vassals, p. 394.
11. O n fee, see H udson, Land, Law, and Lordship, pp. 94-7; on
Norm andy, E. Z. T abuteau, Transfers of Property in Eleventh-Century
Norman Law (Chapel Hill, NC, 1988), pp. 51-65, 297-8. For
argum ents for greater continuity across the Conquest, see Reynolds,
Fiefs and Vassals, ch. 8; D. Roffe, ‘From thegnage to barony’, ANS 12
(1990), 157-76. C hange in the ways in which laymen held lands
from churches may have been slower, partly because of the use of

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In the Anglo-Saxon period, charters had usually

described ecclesiastical land-holding in language based on
the notion o f inheritance. In the Anglo-Norman period,
doubtless u n d er the influence o f C hurch reform , this was
replaced by the vocabulary o f alms. Such language could
describe gifts to, or holdings of, individual clerics, but
increasingly frequently the phrase ‘in alms’ referred to the
fashion in which churches held lands. It em phasized in
particular that the land had been given primarily in the
hope of salvation, n o t o f secular services. As early as the
1080s in N orm andy a terse and explicit contrast was made
between holding ‘in alms’ and ‘in fee’. In England, the
phrase ‘in alms’ becomes com m on in royal charters in the
reign of William Rufus, particularly from c. 1093.12 In the
twelfth century, adjectives stressed the freedom , purity and
perpetuity of such grants, in contrast to those m ade to
laymen, b u t both royal and private charters show that the
basic categorization had taken place by the early 1100s.
Socage came to be the great residuary tenure o f the
developed com m on law, covering various forms of free
land-holding which fitted no other category. N ot
surprisingly, given this residuary nature and the restricted
evidence, the characteristics o f socage are difficult to
classify even in the later twelfth century. Such land did not
owe knight service, b u t money or other dues. In this it
could resem ble ‘fee farm ’, heritable lands owing a fixed
m oney rent. Variation existed in socage custom, for
exam ple as to w hether the tenem ent should pass to ju st
one heir or be partible.13 Given that many o f those later
described as holding ‘in socage’ were o f English descent,

leases on b oth sides o f the C hannel, partly because o f the initial

survival o f English abbots. O n ‘fee-farms’, lands held for a fixed
money rent, which were generally b u t initially n o t invariably
heritable, see H udson, Land, Law, and Lordship, pp. 95-6.
12. H udson, Land, Law, and Lordship, pp. 91, 96; very rare instances of
grants ‘in fee and alm s’ reveal th e limits o f classification. See
generally, B. T hom pson, ‘Free alms ten u re in the twelfth century’,
A NS 16 (1994), 221-43.
13. See Glanυill, vii 3, Hall, p. 75; Pollock an d M aitland, i 291-5. T here
were some villein sokem en, m ost notably on the royal dem esne; see
e.g. P. R. Hyams, King, Lords, and Peasants in Medieval England
(Oxford, 1980), pp. 26, 186, 194-5.

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socage may have perpetuated some characteristics of

tenures which Domesday Book simply described as ‘holding
freely’. Socage probably started as a fairly specific word,
associated with holding by sokem en (‘soc-men’), and was
later em ployed m ore generally for lands held freely. Early
instances of the phrase ‘in socage’ are very rare, perhaps
because o f the scarcity o f docum ents treating the relevant
levels o f society. More likely, however, the phrase only
becam e widely used once it was felt that all types of
land-holding should be classifiable by some such simple
term , perhaps in the later twelfth century.
Also likely to reflect pre-Conquest arrangem ents are
some forms of land-holding which came to be categorized
as sergeanties. Such arrangem ents continued to be made
after the Conquest. A P eterborough Abbey survey in the
later 1120s records that Abbot T horold (d. 1098) gave a
sixth of a hide in O undle and a quarter o f a hide in
W arm ington to a certain Vivian ‘in sergeanty’. T he service
owed was a knight in the army with his own weapons and
two horses, the abbot providing him with everything else
necessary. This grant reveals both the use o f the category
‘in sergeanty’ and also the limits of its distinctiveness, at
least to our eyes: here we have a grant apparently for
military service described as ‘in sergeanty’.14
Certain other forms o f land-holding existed only in
particular regions. Notable am ongst these are the gavelkind
o f Kent and the thanage and drengage o f the far n orth of
England. G. W. S. Barrow has written that

Typically, th e th a n e is a m an o f substance, h o ld in g a village o r

in som e cases as m u ch as a ‘sh ire ’, i.e. a g ro u p o f settlem ents

14. E. King, ‘T he Peterborough “ D escriptio m ilitum ” (H enry I ) ’, EHR

84 (1969), 87, 101; see generally E. G. Kimball, Seήeanty Tenure in
Medieval England (New Haven, CT, 1936), A. L. Poole, Obligations of
Society in the X II and XIII Centuries (Oxford, 1946), ch. 4; on the
Anglo-Saxon background, J. Campbell, ‘Some agents an d agencies
o f the late Anglo-Saxon state’, in J. C. Holt, ed., Domesday Studies
(W oodbridge, 1987), pp. 210-12. Distinct rules, for exam ple
prohibiting alienation and division between heiresses, came to be
seen as distinctive o f all sergeanties. They may well have developed
only in the later twelfth century, yet by the th irteen th such rules
were on occasion disregarded.

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consisting o f a n u cleu s with outliers. H e is liable fo r co rnage

[a levy on cattle], h e holds heritably, a n d h e will usually pay a
r e n t in m oney a n d / o r kind; in o th e r w ords, h e is a te n a n t in
fee farm . . . . D rengs . . . m u st be c o n sid ered p a rt o f th e noble
o rd e r yet are clearly o n its b o rd e rlin e . Like th e th an e , the
d re n g h e ld by a m inisterial te n u re , b u t his services were
m arkedly m o re agricultural, m o re perso n al, even m e n ia l.15

Again, the arrangem ents m ust closely resem ble practices

before 1066.
All such land-holding would have been categorized as
free. W hat of the lands held by the large proportion o f the
population who could be classified as ‘u n free’? Freedom
and unfreedom were relative. T he weight and types of
service, openness to arbitrary dem ands, a tie to the land
excluding the possibility o f leaving, all contributed to
classification as unfree. The forms o f b urden no doubt
varied locally. Yet the emphasis is on status n o t tenure.
Domesday Book and early estate surveys contain little
indication that there were villeinage lands. Rather they
reveal lands held by villani, best translated as peasants.
References to lands held ‘in villeinage’ only appear in the
second half o f the twelfth century. Certainly, earlier
docum ents are scarce, but some do survive which m ight
have used such language. T he association of unfreedom
with tenure seems to be the product of various forces: the
increasing classification of land-holding generally; the
confusion as to w hether services were a b urden on the
person or the land; and the emphasis in Angevin legal
rem edies that they applied only to free tenem ents.16
So far I have been dealing with long-term arrangem ents.
However, there were also grants for limited terms. Most
obviously there were leases, some for as long as three lives,
some for one life, some for a term of years. A contrast was
drawn between such leases paying a fixed ren t or farm and
the generally heritable tenem ents called fee farm s.17 In

15. G. W. S. Barrow, ‘N o rth ern English society in the twelfth and

th irteen th centuries’, Northern History 4 (1969), 10-11. O n
gavelkind, see e.g. Pollock an d M aitland, ii 271-3.
16. See also below, p. 122. O n the n o rth , see Barrow, ‘N o rth ern
society’, 12-14.
17. See above, n. 11.

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addition, there were tem porary states into which lands

could fall because o f circumstances. These included the
wardship of a m in o r’s lands, and dower, the allocation to a
widow.18
This survey brings two main conclusions. First, changes
in the form o f land-holding at the top level o f lay society
were accom panied by greater continuity lower down.
Indeed, some o f the lesser tenures of com m on law probably
contain elem ents o f practices pro p er to the Anglo-Saxon
aristocracy, practices forced downwards by N orm an
colonization. Secondly, the classification of land-holding
developed significantly in the Anglo-Norman period. Some
such developm ents were already occurring in N orm andy
before 1066, b u t there were also o th er causes. Broad
changes in thought may have been influential, and in
particular C hurch reform com pelled distinctions to be
drawn between ecclesiastical and lay land-holding. T he
process o f settlem ent, and the m eeting with unfam iliar
forms o f land-holding, may have encouraged reflection,
whilst the Domesday Inquest m ust often have raised the
question ‘how are the lands held?’ At the same time, in the
processes o f negotiation, grant, and dispute, similar
question m ust also have arisen and the categorizations been
refined. Certainly, the distinctions were n o t as clear as, and
in some cases were markedly different from, those o f the
thirteenth century. Yet by 1135 m uch o f the vocabulary and
conceptualization of com m on law land-holding was in
place.

THE CUSTOMARY FRAMEWORK; CONTROL OF

LAND HELD IN FEE
Perceptions and practices o f holding land ‘in fee’ are best
considered u n d er three headings: security o f tenure in

18. O n dower, see e.g. J. Biancalana, ‘Widows at com m on law: the

developm ent o f com m on law dow er’, Irish Jurist ns 23 (1988),
255-329; n o te e.g. uncertainties concerning allocation even in the
early th irteen th century, on which see also below, p. 218 n. 121. O n
the land the wife b ro u g h t to h e r m arriage, the maritag¿um, an d on
the h u sb an d ’s enjoym ent o f his wife’s lands after h e r death,
‘curtesy’, see e.g. Pollock and M aitland, ii 15-16, 414-20, Simpson,
Land Law, pp. 63-5, 69-70.

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relation to the lord; heritability; alienability, the capacity to

give away the holding. These categories reflect a
land-holder’s concerns: he would wish to be safe in his own
position, to be sure that his family would continue to enjoy
his lands after his death, b u t also to be able to grant or sell
his lands to a church or to a person who was n o t his heir.
The three elem ents are intimately connected, indeed can
be seen as differing perspectives on the same problem s. For
example, what for a donor was his capacity to make
alienations lasting beyond his death was from the d o n e e ’s
p o in t of view his security o f tenure against the d o n o r’s
successor.
The following analysis will show that by 1135 the position
o f the ten an t in fee was strong. His hold on his land was
secure, so long as he perform ed due services and refrained
from any great act o f disobedience. Even if he did fall out
with his lord, he m ight avoid forfeiture and end any
disciplinary action with a negotiated settlem ent. H e could
rest assured that his heirs would, in general, succeed to his
lands, particularly if there were close relatives available at
each succession. He was free to alienate lands, so long as he
did so reasonably and preferably m ade other parties feel as
if their interests had been taken into account. No doubt
each party in the lo rd -ten an t relationship attem pted to
strengthen his own position. Yet lords’ m ain concern seems
to have been that they receive the due services. Such was
the essential background for Bradons statem ent in the
th irteenth century that the tenant held a fee ‘in dem esne’,
the lord a fee ‘in service’.19

(i) Security of tenure

A newly established lord, to whom perhaps the king had
given lands which an o th er lord had forfeited, m ight take
very aggressive action. His natural desire to establish
him self and his own followers could involve ejecting
existing tenants. Such evictions may underlie the

19. E.g. Bracton, f. 46b, T h o m e, ii 143; see also H udson, O rig in s of

p roperty’, p. 211, and e.g. W. F arrer an d C. T. Clay, eds, Early
Yorkshire Charters (12 vols, E dinburgh/Y orks. A rchaeological Soc.,
1914-65), iii no. 1332.

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disinheritances m ade by one of H enry ľ s new m en, Nigel

d ’Aubigny. Significantly, these earlier acts worried Nigel
when he believed him self to be dying.20 It is indeed notable
that in Anglo-Norman England security o f tenure may have
been greater am ongst sub-tenants rather than tenants in
chief, whose position was m ost affected by political conflict
in the royal house. Perhaps in p art through royal
protection, sitting sub-tenants often survived the fall of
their lords.21
In relation to an existing lord, or even when a lord was
succeeded by his heir, the te n an t’s security was consider-
able.22 For the lord, especially one who had m ade the
initial gift, the pro p er perform ance o f services was
fundam ental to his m an’s continuing enjoym ent of the
land. Failure to perform service, especially if accom panied
by a denial that the land was even held o f the lord,
dem anded that the lord act if he was n o t to lose both
prestige and dues. His response would be to ‘distrain’. This
took the form o f seizing moveable goods belonging to the
tenant, and on some occasions repossessing the land.23 The
action should n o t be excessively violent, b u t could certainly
involve a display of force, aim ed at cowing the ten an t into
submission. Customary pressure that the distraint be
carried out ‘reasonably’ m ight still leave the lord with
considerable leeway, particularly if he had obtained his
court’s backing or if the te n a n t’s disobedience had been
flagrant. The removal of the te n an t’s goods or land was, in
the first instance, to be temporary. They were not to be
given away and should be restored to the vassal in return
for security that he would answer the lo rd ’s claim.24
However, continuing failure to perform services could lead
to the ten an t forfeiting his holding. T hat we know o f very

20. D. E. Greenway, ed., Charters of the Honour of Mowbray, 1107-91

(London, 1972), no. 3; the incident reveals th a t a lord at one po in t
in his life may have believed an act right, at an o th er wrong.
21. Holt, ‘Politics an d p roperty’, 30-6.
22. O n security o f tenure, see H udson, Land, Law, and Lordship, ch. 2.
23. O n the absence o f a strict o rd er in which land and chattels should
be taken, b u t the utility o f taking chattels first, see H udson, Land,
Law, and Lordship, pp. 29-31.
24. However, for late twelfth-century evidence to the contrary, see
below, p. 191.

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few instances of such forfeitures within honours may stem

simply from the limits of the evidence, but may also reflect
reality.25 Perhaps in contrast to distraint, the enforcem ent
of forfeiture was a very weighty m atter. A court hearing
would usually have preceded any forfeiture; otherwise the
lord m ight be seen to act unreasonably, n o t showing due
respect to his man. The hearing itself provided an
opportunity for com prom ise, when the shared interest of
lord and m an in the m aintenance o f their relationship
m ight reassert itself. Misbehaviour by the ten an t need not
lead to his perm anent loss of the land, his lasting ‘disseisin’.
W hat then o f the te n an t’s attitude to his security of
tenure? In N orm andy before 1066, tenants enjoyed
considerable security, and such no doubt was their desire in
their newly acquired English lands.26 Some tenants may
have aspired to independence o f their lords, b u t in general
they seem to have adm itted, if sometimes grudgingly, that
they owed services. Nevertheless, a tenant could still regard
his hold on the land as less intimately related to these
services than did his lord. Rather he m ight see the land as a
reward for his past good service. Indeed, receipt of land
could m ark n o t the creation of his relationship with the
lord, b u t a distancing o f it, as he moved from the lo rd ’s
household on to his own tenem ent. The feeling that the
land, although b u rd en ed by service, was the te n an t’s own
to enjoy securely would grow the longer the land was held
by him and his heirs.27

(ii) Heritability
The Norm ans came to England accustom ed to the notion
that sons succeeded to their fathers’ fiefs.28 This
expectation is reflected in England after the Conquest, and
strengthened during the Anglo-Norman period. As soon as
relevant charters survive in any num ber, they record gifts
m ade to the donee and his heirs to hold o f the donor and
25. See e.g. Lawsuits, no. 317; also GlanυiĶ ix 1, Hall, p. 105; H udson,
Land, Law, and Lordship, pp. 33-4.
26. T abuteau, Transfers of Property.
27. O n royal protection, see below, p. 115; security in relation to a third
party, below, p. 111.
28. O n heritability, see H udson, Land, Law, and Lordship, chs 3 an d 4.

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his heirs. Such w ording surely reflects that o f the many

unw ritten grants about which we now know nothing.
Moreover, charters recording gifts from churches to laymen
often specify that the grantee hold only for life, the land
then to retu rn to the church and the heir to have no claim.
These charters reinforce the notion that inheritance was
customary, the C hurch employing writing to counter
customary lay assumptions. A survey o f inheritance in
practice suggests th at if the genealogically closest heir were
the son, daughter, grandchild, b ro th er or sister o f the
deceased, he or she was rarely denied the inheritance. With
male heirs the eldest received the whole inheritance. With
female heirs this may have been the case until the early
1130s, b u t thereafter by royal decree inheritances were
divided between heiresses of the same genealogical
proximity to the decedent, th at is between daughters, or
between sisters, and so on.
The above evidence suggests a set of shared assumptions
between lords and tenants. However, there were
circumstances in which disputes could arise, implying
conflicts o f perception. Very occasionally the closest heir
was rejected for reasons o f personal unsuitability or
incapacity.29 Succession by m inors m ight be threatened,
particularly if their kinship to the deceased ten an t was not
very close; even sons who were m inors m ight be in danger,
particularly during times of political disruption. The lord
m ight want an adult vassal, other claimants may have seen
the h e ir’s tem porary weakness as an opportunity to pursue
their own ends.30 Divisions between heiresses could cause
particular problem s.31 Likewise, lords may have been m ore
discrim inating in their acceptance of claims by m ore distant
heirs, for exam ple nephews and nieces, uncles and aunts,
or their descendants.32

29. Ibid., p. 126 suggests that the form of incapacity might have to be quite
severe, except in cases where there was some other complication in the
inheritance, as in the Marshwood case, below, p. 99.
30. E.g. Lawsuits, no. 145; also H udson, Land, Law, and Lordship, p. 116,
an d for a later instance, H olt, Magna Carta, p. 103.
31. S. L. Waugh, ‘W om en’s inheritance and the growth o f bureaucratic
m onarchy in twelfth- an d thirteenth-century E n gland’, Nottingham
Medieval Studies 34 (1990), 71-92; also below, p. 216.
32. H udson, Land, Law, and Lordship, pp. 114—15.

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Additionally, in certain circumstances there m ight be

uncertainty as to who was the closest heir. O ne exam ple is
particularly famous since it affected the royal house in
1199. O n one side was John, younger b ro th er o f Richard
the deceased; on the other was their nephew A rthur, son of
an interm ediate brother, Geoffrey, who had predeceased
Richard.33

R ichard (d. 1199) G eoffrey (d. 1186) J°hn

A rth u r

Disputes also frequently arose when the recently deceased

had m arried m ore than once: what was the relative claim of
his sons by each marriage? In such com plicated
circumstances the lord m ight choose n o t to regrant the
land to an heir, either waiting to settle the dispute or
exploiting the confusion to retain the land for as long as
possible. O r he m ight use his discretion to choose which
party he favour with the land. The 1208 Pipe Roll recorded
that H enry I had ‘by will’ enfeoffed the son of a second
m arriage with the barony o f Marshwood as he was a better
knight than the son of the first.34
Again, it is in such difficult cases that lords may have
most greatly exploited their right to take relief. T he weaker
the hereditary claim, the m ore the lord m ight charge the
claim ant, o r the m ore likely the lord m ight in effect sell
the land to the highest bidder am ongst the claimants.
H enry ľ s C oronation C harter indicates both that some
lords, notably H enry’s b ro th er William Rufus, had
exploited reliefs in arbitrary fashion, and that in certain
circumstances lords would adm it that such action was
wrong: ‘if any of my barons, earls or any other who holds of

33. This is the ‘king’s case’, which arose on the death of R ichard I; see
J. C. Holt, ‘T he Casus Regis·, the law o f politics an d succession in the
Plantagenet dom inions 1185-1247’, in E. B. King an d S. J. Ridyard,
eds, Law in Mediaeval Life and Thought (Sewanee, TN, 1990), pp. 21-
42.
34. PR10J, p. 113 n. 8.

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me should die, his heir will n o t buy back his land as he did
in my b ro th e r’s time, but will relieve it with a ju st and
lawful relief. Similarly, too, the m en o f my barons will
relieve their lands from their lords by ju st and lawful relief.’
Particularly when the genealogically closest heir was hard
to identify, was a distant relative, or had somehow made
him self undesirable to his potential lord, rivals sometimes
m ade claims on other grounds than being the closest
heir.35 Following the death o f G ilbert de l’Aigle between
1114 and 1118, H enry I denied G ilbert’s eldest son
Richer’s claim to his land in England. Richer may already
have been in rebellion with W illiam Clito against H enry
on the C ontinent, and H enry reputedly said th at Richer’s
younger b ro th ers ‘were serving in the king’s household
and confidently expecting the same h o n o u r by hereditary
rig h t’. H enry refused repeated claims from Richer who
eventually tu rn ed for support to the king of France. Yet
despite this disloyalty, his uncle succeeded in reconciling
Richer with H enry who granted him all he had claimed,
and Richer eventually obtained all his fath er’s lands in
England and Normandy. H ere even an apparently strong
claim n o t based on being the closest heir was in the end
rejected. T he lord was unwilling to exercise his discretion
and the customary claims of the closest heir were
re-affirmed.36

(Hi) A lienability
T here were two main ways in which lands could be granted
away, be ‘alienated’. The first is generally referred to as
enfeoffm ent or subinfeudation. The land was given to the
new tenant, who henceforth held it o f the d o nor and
perform ed services to him. This was the m ost com m on
form of grant, and gifts to the C hurch were generally in
similar fashion, although the services owed m ight be
spiritual and there was less emphasis upon the land being
held from the donor. T he alternative was substitution,
whereby the current ten an t retu rn ed the land to his lord

35. O n such claims, see H udson, Land, Law, and Lordship, pp. 122-31.
36. O rderic, vi 188, 196-8, 250.

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who gave it to the new tenant to hold from him for

service.37
How did a m an decide which and how m uch o f his lands
he m ight alienate? A first significant distinction was
between inheritance and acquisition. T he potential d o n o r’s
family generally preferred that inherited lands should pass
to the heir, leaving the current holder with greater
freedom to dispose o f lands he had acquired himself.
However, lords appear to have felt a particular claim to
control lands which tenants had recently acquired from
them , leaving the tenants greater freedom to dispose of
their inheritances. Next, a variety o f non-legal factors, such
as the position o f the estates in relation to the centre o f the
m an ’s power m ight determ ine which he alienated; often
there was a preference for the alienation o f distant estates.
Thirdly, there was no clear indication th at a fixed
proportion o f lands was alienable, in contrast with the
custom which was to exist, for exam ple, in early
thirteenth-century N orm andy.38 Rather, the grantor was to
act reasonably, and perceptions o f what was reasonable
m ight well differ according to circumstances and between
parties. Negotiation - as in the quotation which began this
chapter - or court discussion, perhaps even court
judgm ent, m ight be required.
Both d o n o r and donee would normally desire that the
gift be as secure as possible, and the m eans by which gifts
were secured are very illum inating.39 Giving land was not
simply a legal or econom ic transaction but involved a wide
variety o f interests and purposes. Gifts were public events,
conducted before witnesses, often in the d o n o r’s court or
the recipient church. Sometimes an elaborate ritual was
involved, as when a d o nor and o th er interested parties
placed a symbol o f the gift upon the ch u rch ’s altar.
C erem onies o f seising, of transferring land, also no doubt

37. See e.g. EHD, ii no. 249, an instance typical o f many substitutions in
concerning land acquired rath e r than in h erited by the donor, and
also a family arrangem ent. For a m ore extensive treatm en t of
alienability, see H udson, Land, Law, and Lordship, chs 5-7; ibid., ch.
8 deals with a topic largely om itted here, the alienability o f church
lands.
38. TAC, Ixxxix, Tardif, pp. 99-100.
39. See fu rth er H udson, Land, Law, and Lordship, ch. 5.

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occurred in gifts to laymen. A beneficiary m ight also

acknowledge a donation by presenting counter-gifts to the
donor and sometimes to others as well. Such counter-gifts
could later act as evidence, and also symbolized the
m utuality o f the relationship of the parties involved.
Likewise, a charter acted as lasting testimony to a gift, and
occasionally m ight set down the penalty for those who
harm ed the gift, the blessing or favour for those who
supported it.
Most telling o f all are the records, particularly in
charters, o f consents by interested parties.40 M ention of,
say, an heir or a lord consenting to a gift need n o t indicate
that w ithout their consent the gift was invalid or
unsustainable. Rather, such people may have desired
m ention in the grant in o rder to share in the d o n ee’s
gratitude, or, in the case o f gifts to m onasteries, the prayers
for salvation offered up by the favoured monks. Even so,
patterns o f consenting rem ain significant with regard to
perceptions o f alienability, and can reveal potential
conflicts o f interest. Family m em bers sometimes appear, in
particular heirs, and also wives, especially when their own
inheritances or m arriage portions were being given. No
doubt one o f the concerns was that the cu rren t holder of
the land grant away so m uch that he dam age their own or
the family’s fortunes. However, such consents seem to have
been less frequent than in various areas of France for which
equivalent studies have been m ade, suggesting that land
was relatively m ore freely alienable in Anglo-Norman
England.
Lords surely assumed that their tenants m ight alienate
their lands ju st as they themselves had. T here is little sign
that a lo rd ’s consent had to be obtained before every single
grant was m ade. He m ight have no objection to gifts which
would strengthen the retinue o f his follower, and hence
strengthen his own position. O th er grants were less
acceptable, although unfortunately we are likely to be left
no evidence o f a planned gift so objectionable to the
d o n o r’s lord that he prevented it. Obviously, a lord would
object to gifts to his enemies. C oncern was also expressed

40. See ibid., chs 6 an d 7; also S. D. W hite, ‘M aitland on family an d

kinship’, in H udson, Centenary Essays, pp. 106-10.

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about grants at reduced services, often to the d o n o r’s

family and in particular to churches. Whilst lords could
supposedly still exact full service, grants to religious houses
m ight bring problem s for distraint and jurisdiction, and
thus limit his capacity to exact his dues.41
Overall, the ten an t was free to alienate a reasonable
proportion o f his land, provided there was no threat to the
services which he owed. The am ount considered reasonable
would d epend on his powers, n o t least o f persuasion. The
strength o f his position in relation to his family, although
n o t his lord, may be linked to the considerable proportion
o f lands in post-Conquest England that were acquisitions.
In general, the d o nor and his family’s interests were usually
sufficiently com patible to ensure that m ajor conflict did not
arise; for example, a father as m uch as an heir m ight desire
the perpetuation o f the inheritance. However, when a m an
lay dying, surrounded perhaps by clerics rem inding him of
the dangers to his soul, he m ight forget his obligation to
his kin, and act unreasonably. For such death-bed gifts,
Anglo-Norman charters support the testimony o f the
law-book Glanvill at the end o f the 1180s: unlike other gifts,
those m ade on the death-bed required the consent and
confirm ation of the heir.42 This requirem ent contrasts with
the relative freedom to alienate which tenants normally
possessed.

(iv) The tenant’s strengths

Why had the tenant in fee com e to be in such a powerful
position by 1135? T he te n an t’s position in N orm andy
before 1066 had been in many ways a strong one. The
process o f settlem ent in England may have strengthened
this position in some ways, for exam ple in relation to the
k in ’s claims to limit alienation, whilst w eakening it in
others, at least initially increasing the link between the
te n an t’s hold on the land and his lo rd ’s gift o f it to him.
Simple continuity of tenure probably increased each

41. N ote e.g. T. Madox, Formulare Anglicanum (L ondon, 1702), no. ii;
H udson, O rig in s of property’, p. 211.
42. Glanvill, vii 1, Hall, p. 70; H udson, Land, Law, and Lordship, pp.
195-6.

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successive te n an t’s hold on the family land, and reduced

active lordly control. W hat was once land received by gift of
the lord had becom e the family’s inheritance. C harter
language recording lords’ regrants o f lands to a te n a n t’s
heir suggest that they were seen as granting the heir what
was due to him; they ‘gave back’ or ‘re n d e re d ’ (reddere) the
inheritance to the heir, whereas they had ‘given’ (dare) the
land to the first tenant.43 Meanwhile, the very existence of
charters could strengthen the te n an t’s position, especially if
they prom ised that the lands be held by him and his heirs.
In particular, obtaining a royal charter o f confirm ation
constituted a prom ise o f future royal help against any
challenger, presumably including o n e ’s lord.
Moreover, the relative strength o f the te n a n t’s position
could perpetuate itself in other ways. O ne should not
assume that there was an endless supply o f m en clam ouring
to take grants on harsh terms. Rather, lords may have had
to com pete for good followers. In that case, if a lord
desired to reward good service, to ensure loyalty, or to
attract a new follower, he would have to make his gift
conform to his follower’s view of a pro p er transfer of land.
The fullness o f the transfer is sometimes em phasized by a
phrase laying down that the ten an t was to hold as freely as
the lord ever had. T he transfer was to be the fullest
conceivable.44
H ere we see the effect of the relative power of tenant
and lord in the negotiation of a relationship. Such
pressures varied between lordships. The position of the
lord m ight be peculiarly strong in a com pact honour,
where almost all the tenants held of him alone. In general,
however, lords’ power over their m en may have been
declining in the Anglo-Norman period. It was becom ing
m ore com m on for m en to hold o f m ore than one lord; as
one visitor com m ented, in England there were as many
lords as neighbours. M oreover, even by 1087, some lords
had powerful vassals, and the num ber o f such m en not
easily controlled by their lords almost certainly had
increased by 1135. Alienations could lead to a lasting drain
on a lo rd ’s resources and on his capacity to enforce his will.

43. H udson, Land, Law, and Lordship, pp. 72-7.

44. H udson, O rig in s of p roperty’, p. 205.

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All such developm ents worked to strengthen the te n a n t’s

position.45
O th er developm ents may have strengthened and
clarified land-holding customs. The Church reform ers’
working o u t o f family, and in particular m arriage, law must
have been connected with the clarifying and hardening of
inheritance practice. For exam ple, increasingly clear
positions on illegitimacy reduced the scope for dispute
between offspring o f different liaisons. T he increasing
classification o f land-holding, and its effect upon disputes,
may have had similar results. W hen an heir lost a case
because the land was proved to be held explicitly only for
life, the assum ption that other lands were held heritably
m ight be reinforced. Custom was re-affirmed as transactions
occurred or disputes were settled within that customary
framework. T he te n an t’s peers in his lo rd ’s courts would
help to enforce, perpetuate, and strengthen these customs.
Let us, therefore, now turn to the procedures available in
land disputes.

DISPUTES
(i) Modbert’s case
O n his death-bed, G renta of N orth Stoke was surrounded
by m en n o t so m uch well-wishers as will-wishers, hoping to
be favoured by his dying words. Most prom inent were his
son-in-law, M odbert, and the monks of the cathedral priory
of Bath. The subject o f their concern was land in N orth
Stoke, Somerset. In the dispute which followed, the parties
recalled versions o f G renta’s wishes. A ccording to the
monks, when G renta was m aking his last dispositions

he was secretly asked by the m em bers of his household to

make a testam ent and publicly institute an heir. But he said
‘This is the inheritance o f the servants o f the Lord, which I am

45. J. Laporte, ed., ‘Epistolae Fiscannenses: lettres d ’amitié, de

gouvernem ent et d ’affaires’, Revue Mabillon 11 (1953), 30; see also
e.g. P. Dalton, Conquest, Anarchy and Lordship: Yorkshire, 1066-1154
(Cam bridge, 1994), pp. 249-52, 285ff.; H udson, Land, Law, and
Lordship, p. 49; note e.g. Holt, ‘Politics an d p roperty’, 20-1 on
toponym ie family names.

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perm itted to hold as long as I live by way of paym ent and not
by law of inheritance, and now th at I die, I leave myself with
the land to the b reth ren to whom it belongs by rig h t.’ T h at is
the testam ent he m ade and those are his last words, after
which, having suffered for a few days, he died a m onk.46

M odberťs claim, on the other hand, was ‘that he most

justly was the heir, since he was m arried to the daughter of
the deceased (who during his lifetime had adopted him as
his son) and that the father had held that land . . . freely
and hereditarily’.
The dispute may have begun in the bishop o f B ath’s
court shortly after G renta’s death, with M odbert making his
claim to the land and having it rejected. However, our first
evidence is a writ which M odbert obtained: ‘William, the
king’s son, to Jo h n , bishop of Bath, greeting. I o rder you
justly to seise M odbert of the land which G renta o f Stoke
had held, to which he m ade him heir during his lifetime.
Witness: the bishop o f Salisbury.’ The writ was brought ‘in
the m onth of Ju n e on the day after the feast o f the apostles
Peter and Paul, as Bishop Jo h n was sitting in his court at
Bath with his friends and barons, who had gathered for the
feast day’. The record of the case ends with the nam es of
twenty-two m en, including Bishop John. Am ongst these are
an Irish bishop and three archdeacons, as well as twelve
laymen specified as witnesses. Very few o f the laymen,
perhaps only one, can be identified with reasonable certainty
as tenants o f the bishop. Possibly others were his m en in a
looser sense, tied by bonds other than land-holding. Yet the
com position of the court reveals again that a lo rd ’s court
need n o t be solely a m eeting o f his vassals.
The bishop’s response to the writ shows the rationality,
the awareness o f the w ritten word, and to an extent the
informality of proceedings outlined in chapter 1. He
agreed ‘to do what has been ordered by the son o f my lord
through this letter, if it is just. However, my friends and
lords . . . I beg you to discuss which is the m ore ju st cause
in this m atter.’ The prior took counsel with the monks and

46. Lawsuits, no. 226. T he narrative is from a Bath cartulary, and

favours the ch u rc h ’s case. Joseph B iancalana’s unpublished paper,
‘T he adm inistrative image o f English society an d the origins o f the
com m on law’, has add ed m uch to my earlier analyses o f this case.

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then m ade his response to the attentive audience. He, too,

latched on to the word ‘j ustly’ in the royal writ. H e stated
that the land was given to the b reth ren in the early days of
the house in free possession, and had never been
transform ed into ‘military right’, by im plication heritable.
G renta had left the land to the church on his death-bed.
Thus G renta neither could nor did make M odbert heir of
the land. Lawful witnesses and a charter supposedly o f the
Saxon King Cynewulf, replete with fearsom e curse,
supported the p rio r’s statem ent. O thers, however, backed
M odbert’s claim. The court seems to have been unable to
reach a decision as to w hether G renta had held the land
heritably, w hether he had m ade M odbert his heir, or
w hether he had bequeathed the lands to the church on his
death-bed. T he bishop therefore asked that those known
‘to be n eith er advocates nor supporters o f the parties’ study
the case and ju d g e how it be settled. ‘Those who were older
and m ore learned in the law left the crowd, weighed subtly
and wisely all the argum ents they had heard, and settled
the case.’ They retu rn ed and one o f them announced their
opinion. M odbert was to prove his claim ‘by at least two
free and lawful witnesses from the familiars [close
associates] o f the church, who shall be nam ed today and
produced within a week, o r by a signed and credible
cirograph. If he fails in either, he shall not be heard again.’
T he court agreed that this was just, b u t M odbert rem ained
silent. At least according to the account, this im plied that
he refused to accept the form o f p ro o f and thus
surrendered his claim. H e may well have felt harshly
treated, for it was unlikely that either his agreem ent with,
or the ch u rch ’s grant to, G renta would have been recorded
in writing, unless perhaps the latter were a life grant and
hence less than helpful to M odbert. T he dem and was m ore
appropriate for ecclesiastical written culture. Similarly, the
requirem ent that witnesses be ‘familiars’ o f the church
seems to weight the process against M odbert. C oncern that
a discontented M odbert m ight revive the dispute helps to
explain why the priory obtained a further confirm ation
from H enry I.47

47. BRAN, ii no. 1302.

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T he case is fascinating for many reasons. It shows an

interesting com bination o f informality and precision in
proceedings. It raises issues concerning heritability and life
grants. It emphasizes that at least this h o n o u r was n o t a
self-contained unit. Its court was o f varied composition.
Royal influence could be brought to bear upon it. Yet the
royal writ was n o t simply an o rd er perm itting no discussion.
Rather, it set u n d er way proceedings in which the party
who at first benefited from the w ritten loan o f royal
support was in the end unsuccessful. O ne cannot discover
how many m en like M odbert obtained royal writs, but there
is no indication that he was a m an of peculiar status or with
a link to the royal household. This writ m ust have been
cheap enough to be w orth obtaining in o rd er to recover a
fairly small plot o f land. It may indicate that H enry I quite
often provided royal backing in the internal disputes o f at
least ecclesiastical honours, prefiguring the general royal
involvement in land litigation apparent by the end o f the
twelfth century.

(ii) Disputes: causes, conduct, courts

Disputes over land were likely to arise in a variety of
circumstances. Political disruption bred disputes. This was
true, as we shall see, of S tephen’s reign, and also o f the
years immediately after the Conquest. William ľ s reign saw
some notable hearings o f land cases and one o f the
purposes of the Domesday enquiry was to settle conflicting
claims.48 Even in peaceful periods, some m en may simply
have invaded land to which they had no claim.49 In most
instances, however, there is evidence that strife arose from
conflicting perceptions o f claims. T he succession o f a new
lord m ight be a particular occasion for disputes. If he was
an outsider im posed upon the honour, he m ight seek to
eject sitting tenants.50 Any newly succeeding lord m ight
seek an im m ediate assertion o f his power, enquiring into
any laxness which had slipped into his tenants’ relationship
with his predecessor. Alternatively, sitting tenants m ight

48. These are best recorded for church lands; see e.g. Lawsuits, no. 18.
49. See e.g. Lawsuits, no. 253.
50. See above, p. 95.

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distance themselves from the new lord, for exam ple by

refusing hom age and services.51 Similarly, a te n a n t’s death
m ight lead to dispute, particularly if identification o f the
closest heir was difficult or the dead m an had held only for
life. Term ination of any lease m ight cause strife. A large
p roportion of disputes concern the exaction o f services due
from the land, whilst others concern m atters such as entry
to and egress from lands, the destruction of hedges or the
erection of sheepfolds.52 Alienations, too, produced
conflict. Donors sometimes nullified their own gifts, giving
land successively to two different beneficiaries. O n other
occasions, heirs m ight seek to reverse their dead
predecessor’s gifts, or, m ore unusually, a previously
unknow n heir m ight appear and claim that his inheritance
had been granted away in his absence.53
Much disputing took place outside court, as in the use of
distraint for the exaction o f services. Beyond the reigns of
the C onqueror and Stephen, there is little evidence of
outright violence, although later the royal plea rolls reveal
interpersonal violence arising from land claims.54 Aspiring
tenants m ight use m ore subtle m eans of persuasion upon
lords. W hen preaching, Anselm of Canterbury used the
image of a prince’s court containing m en ‘who labour with
unbroken fortitude to obey his will for the sake of receiving
back again an inheritance o f which they bewail the loss’.55
Such service m ight be linked to negotiation, w here factors
such as the prestige of the potential tenant, or the support
which each party could raise, m ight have a crucial impact.
Meanwhile, all such out-of-court activities could be
com bined with proceedings within court.

51. For instances involving ecclesiastical lords, see e.g. Lawsuits, nos
164, 257-9.
52. J. S. Loengard, ‘T he assize of nuisance: origins o f an action at
com m on law’, Cambridge Law Journal 37 (1978), 147-52.
53. See Lawsuits, no. 380 for an exam ple probably from the 1150s.
54. See H udson, Land, Larυ, and Lordship, pp. 144-6; n o te also the
N orm an Consuetudines et lusiticie, c. 6: ‘Nulli licuit in N orm annia pro
calum nia terre dom um vel m olendinum ardere vel aliquam
vastacionem facere vel predam cap ere’ - C. H. Haskins, Norman
Institutions (Cam bridge, MA, 1918), p. 283. O n the plea rolls, see
below, pp. 210-12.
55. Eadm er, The Life of St Anselm, ed. an d trans R. W. S outhern (2nd
edn, O xford, 1972), p. 94.

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If court proceedings were to move forward, there was a

strong desire that both parties be present. Judgm ents
because o f default were n o t m ade lightly. The parties
therefore m ight be given several chances to answer an
initial sum m ons and be perm itted a variety of ‘essoins’
(excuses) for non-attendance. Practice with regard to
essoins possibly varied between courts, and indeed between
individual cases, and there may have been room for
m anipulation o f custom by powerful parties.56 O nce in
court, claims would be stated and rejected, and pleading,
debate, and negotiation take place. Again, m uch
inform ation m ight be com m on knowledge. The facts o f a
case m ight be so clear that one party would be forced to
withdraw its claim, hoping at best for some sweetener to
com pensate for the surrender. O n other occasions, sworn
testimony or - in particular in cases involving churches -
docum entary evidence could decide a case during
pleading. In some instances, substantive argum ent about
custom m ight be introduced. In M odberťs case no rules of
law were explicitly stated, b u t throughout appeal was
implicitly m ade to norm s o f land-holding; indeed, the
norm s seem accepted by both parties, leaving the dispute to
turn on m atters of fact. Thus, as we saw in the previous
chapter, parties m ight accept a custom or norm , b u t plead
that their case was exceptional. Sometimes such appeals to
norm s o r such exceptions m ight bring the case to an
abrupt conclusion. However, in other cases, m uch m ight
depend on the eloquence and repute o f the parties, and on
their m obilization o f supporters.
Such support was employed formally through warranty.
H ere the ten an t ‘vouched’ his lord as w arrantor. In effect,
he was saying that he held the land from the lord, and that
the latter, as a good lord worthy o f honour, should take up
his claim for him. Sometimes the great m an ’s presence
would suffice:

happy then was the ten an t who could say to any adverse
claimant: ‘Sue me if you will, b u t rem em ber th at b eh in d me
you will find the earl o r the abbot.’ Such an answer would

56. See below, p. 132, for royal regulation o f essoins in 1170, perhaps
suggesting earlier variation or abuse.

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often be final. . . . H e has a lord who may use carnal weapons

or let loose the thunders of the church in defence of his
tenant.

O n oth er occasions, the lord was obliged to pursue the

case, and, if he lost, to provide his ten an t with an
equivalent piece o f land. Thus warranty provided a lordly
guarantee that the ten an t would be secure in his tenure of
at least some holding against challenges by third parties.57
Ju d g m en t was generally m ade by the suitors, although
clearly the president of the court would be influential. In
M odberťs case the president selected those with no
attachm ent to either party as the decision-making body. A
wide range o f factors could influence the suitors. Some
m ight be fairly general such as desire to curry favour with,
or to limit the discretion of, their lord, others particular to
the case or the individual concerned. But in addition,
suitors were influenced by their perceptions o f correct
land-holding practice. Usually, as in M odberťs case, their
first decision following pleading was the ‘m esne ju d g m e n t’:
who should bear the burden o f p roof and what form that
p ro o f should take. Various forms were possible, for
exam ple docum ents, sworn testimony, oaths, or the
decision o f a body o f neighbours.58
In hard cases, w here evidence was lacking or unclear, or
where the parties were quite irreconcilable, trial by battle
m ight occur.59 Com pared with those over offences of
violence or theft, such battles were likely to be between
m en o f higher status, and altogether m ore dignified affairs.
They were fought with swords rath er than staffs or
ham mers. Moreover, they were n o t simply between the

57. Q uotation Pollock an d M aitland, i 306-7; see esp. P. R. Hyams,

‘W arranty and good lordship in twelfth century E n gland’, Law and
History Review 5 (1987), 437-503.
58. For a decision by a sworn body o f twelve m en, see e.g. below, p. 113
on Blackmarston. Domesday cases were often settled by the
testimony of the h u n d red , or m ore rarely the shire. For the origins
o f the jury, see above, p. 10 n. 38. For oaths see Lawsuits, e.g. nos
166, 193, 280, and above, pp. 76-7. Evidence from witnesses of
grant: e.g. Lawsuits, no. 248.
59. O th er ordeals concerning land are only recorded as having taken
place in England after 1066 in relation to the Domesday Inquest:
Hyams, O rd e a l’, p. 114; Bartlett, Trial, p. 27.

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principal parties. At least the dem andant was represented

by a m an who swore that he witnessed the d em an d an t’s
claim and would act as his cham pion. T he tenant had the
choice of him self fighting or finding a suitable cham pion.60
Battle was offered m ore often than it was fought, and even
when com bat was undertaken, a com prom ise m ight still be
struck. In the later years o f S tephen’s reign, a knight called
Edward held a hide of land at H eadington, for which he
refused to do hom age or any service to the prior and
canons of St Frideswide. T he prior obtained a writ and
pursued his claim in the court o f R obert earl o f Leicester.
The case

was decided by judicial com bat fought in the court of the said
earl in a green m eadow above the house o f Godwin. Finally,
after m any blows between the cham pions and although the
cham pion of Edward had lost his sight in the f i ght . . . they
b oth sat down and as n eith er d ared attack the other, peace
was established as follows . . .61

If the case was decided entirely in favour o f the tenant, he

naturally rem ained in control of the land. If the
dem andant succeeded, the land was presumably transferred
to him in some ceremony. O ften, however, settlem ents
were reached. These varied from genuine compromises,
leaving no victor, to decisions which m ade the victor
obvious, b u t allowed the defeated party some sweetener.
Com prom ise m ight satisfy an ideological preference for
‘love’ over ‘law’, but also suit the circumstances o f the
dispute and ren d er renew ed trouble less likely.62
Procedure in land disputes probably did not differ
greatly between different types of court. However, the
relative im portance of these courts is of great consequence.
W ere land cases the preserve of the courts of the h o n o u r
concerned? If so, the possibility of peculiar honorial custom
or of seignorial arbitrariness is increased. Alternatively, did
the possibility o f disappointed claimants resorting to the
royal court to com plain of injustice increase standard-
60. See above, ch. 3, also below, pp. 202-3; Glanvill, ii 3, Hall, pp. 23-5.
61. Lawsuits, no. 316; see also com m ents in H udson, Land, Law, and
Lordship, p. 47.
62. See e.g. Lawsuits, no. 242; and above, p. 16.

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ization, decrease seignorial discretion? H enry ľ s 1108 writ

concerning courts is again o f central im portance:

if in the future there should arise a dispute concerning the

allotm ent of land, or concerning its seizure, let this be tried in
my own court if it be between my tenants in chief [dominicos
barones meos]. But if the dispute be between the vassals o f any
baron o f my honour, let it be held in the court of their
com m on lord. But if the dispute be between the vassals o f two
different lords let the plea be held in the shire court.63

Clearly, H enry envisaged a considerable b u t n o t exclusive

role for lords’ courts. Because of the survival, and almost
certainly the production, o f evidence, we know most about
the functioning o f ecclesiastical lords’ courts.

In the year of the Incarnation o f the Lord 1133 . . . B ernard

deraigned the land of Blackmarston in the ch apter o f St Mary
and St E thelbert by oath o f twelve honest m en and the
ju d g m en t of the court, and was seised and invested th ereo f
with the consent o f the chapter, as well as his father Alward
had had it and as the neighbours and those who knew the
land had peram bulated all aro u n d it, and he holds it for free
service in fee farm .64

T he identity o f B ernard’s o p p o n en t is uncertain; it may

have been a third party, rather than his lord, H ereford
Cathedral. However, seignorial courts did deal with
com plaints not simply between a lo rd ’s m en but also
against the lord, hard as it may have been in such cases for
a claim ant to succeed in the lo rd ’s own court.65 Seignorial
courts probably also dealt with cases between the lo rd ’s
tenants and their own m en. A disappointed sub-tenant
m ight look to his overlord to right an injustice he felt he
had suffered at the hands of his im m ediate lord.66
H enry ľ s writ stated that cases between tenants of
different lords should go to county courts. Again, these may
63. EHD, ii no. 43.
64. Lawsuits, no. 281.
65. See above, pp. 41-2.
66. See H udson, Land, Law, and Lordship, pp. 35-6, 38, 140-1, on
overlords’ courts; conceivably o th er great m en of the area m ight
becom e involved, ibid., p. 36.

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have had an im portance obscured by the paucity of

sources. Probably in the 1120s, a certain ‘A rchem bald the
Fleming restored to B ernard [the King’s Scribe] by
ju d g m en t o f the county of Devon land which was his
grandfather’s . . . as his inheritance’.67 The shire court was
in a sense a royal forum , and is one m anifestation of royal
involvement in land cases. This could also take various
other forms. As in M odbert’s case, one party m ight go -
perhaps on a lengthy journey - to the royal writing office,
obtain a writ, and bring it to the court hearing the case in
the first instance. Writs could provide a tem porary loan of
royal support to those who m ight otherwise have lost the
case, to those who desired a speedy success, o r simply to
those who enjoyed royal favour. Or, again probably at the
request o f one o f the parties, royal justices m ight in person
attend the court.68 Such royal interventions could affect not
only the m en o f the king’s tenants in chief, but even those
who held m ore distantly.69 Cases concerning sub-tenants
were also on occasion heard in the king’s own court. The
various forms of royal involvement were inter-linked. Some
writs expressed the king’s threatening will that he should
h ear no m ore about the issue for lack o f justice having
been done. And at least from H enry ľ s time, writs
com m anded that the king’s instructions be obeyed,
otherwise the case was to be heard before him or his
justices. Procedures also existed for the transfer o f cases
should the disappointed party com plain of ‘default of
justice’.70
In the C onqueror’s reign, the process o f sorting out
disputes arising from the N orm an settlem ent may have
given an initial stimulus to the king’s involvement in
67. Lawsuits, no. 267; note also e.g. no. 242.
68. See e.g. Lawsuits, no. 266.
69. N ote e.g. Lawsuits, no. 175.
70. See M. Cheney, ‘A decree o f King H enry II on defect o f ju stice’, in
D. E. Greenway et al., eds, Tradition and Change: Essays in Honour of
Marjorie Chibnall (Cam bridge, 1985), p. 192; Royal Writs, pp. 147-8,
154-7. See generally on royal involvement, H udson, Land, Law, and
Lordship, pp. 36-44, 133-41. For suggestions th a t increased royal
involvement in land cases began in the C o n q u ero r’s reign an d was
linked to the process o f colonization and the Domesday Inquest,
see R. Fleming, O r a l testimony an d the Domesday In q u est’, ANS 17
(1995), 113-19.

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settling land cases, particularly those between tenants in

chief. Thereafter, it seems likely that dem and for m ore
general royal intervention increased u p to c. 1135. O ne of
the main sources was the Church, and the num ber of
m onasteries in England increased markedly during the
reigns o f the Anglo-Norman kings. Likewise royal servants
looked to royal help, and their num bers also increased.
Churches, royal servants, and increasing num bers o f other
laymen enjoyed written royal confirm ations o f their lands,
or perhaps m ore personal protections. Either o f these
m ight constitute a royal prom ise o f support should they
becom e involved in a property d is p u te /1 M oreover, the
king also on occasion took a m ore active interest. H e would
be concerned to fulfil his royal rights, for exam ple hearing
cases o f default o f justice and unjust judgm ent. Most
importantly, he would becom e concerned if the dispute
th reaten ed the peace.
Estimating the frequency o f H enry ľ s involvement in
land cases, and the regularity o f the actions royal
intervention set in m otion, is alm ost impossible for lay
honours, and very difficult for ecclesiastical ones. M odberťs
case suggests that the king m ight becom e involved even in
fairly m inor cases at one party’s request, b u t also indicates
that the involvement did not extend to very close
regulation, let alone observation, o f procedure. H enry’s
regim e was a very powerful one, but may have functioned
in a significantly less routine fashion than would his
grandson’s later in the century. However, n o t merely actual
royal intervention b u t also its potential had to be taken into
consideration. In the 1120s or 1130s St Mary’s, York,
granted some land which Richard Tortus had held from it
to a certain O ugrim o f ‘Frisemareis’ and his heirs to hold
in fee: ‘if any heir o f Richard Tortus can acquire that
messuage o f land from the king or deraign it against us or
the said O ugrim and his heirs, we will not give exchange.’
Claimants thus had some right in the land which they
could enforce irrespective o f the attitude o f their
predecessor’s lord, and lords had to modify their actions
accordingly.

71. See A. H arding, ed., The Roll of the Shropshire Eyre of 1256 (Selden
Soc., 96, 1981), p. Iviii.

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ANGLO-NORMAN LAND LAW AND COMMON

LAW PROPERTY
We have thus seen that certainly by 1135 m uch o f the
language o f com m on law land-holding had em erged, and
also that the tenant ‘in fee’ enjoyed a strong position in
relation to his lord as to control of his land. This position
could be protected by a variety o f courts, including the
king’s. If different perceptions o f land-holding continued
to coexist and sometimes conflict, the perception which was
to predom inate was already most prom inent: in it, the
tenant resem bled in many ways the property-holder in
thirteenth-century com m on law.72
Moreover, as far as the higher levels o f society are
concerned, there seems to have been little regional or
honorial variation in the most im portant practices. Con-
ceivably, there were procedural variations, for exam ple
concerning essoins, and perhaps m ore substantive ones, for
instance concerning the allocation of dower.73 However,
there is no sign, for exam ple, that settlers from areas which
may have favoured partible inheritance, such as Brittany,
im ported these practices into areas they colonized, such as
the h o n o u r o f Richm ond. In Kent, the partibility of
inheritance which existed for gavelkind land did not lead
to a partibility o f land held in fee.74 With such shared
customs and the increasingly clear classification o f land-
holding, H enry Iľ s advisers would be able to devise
rem edies which were routinely available and which applied
throughout the realm.

CONCLUSIONS
D uring the period 1066-1135, Anglo-Saxon and N orm an

72. Early Yorkshire Charters, i no. 310. For these conclusions generally, see
also H udson, O rigins of property’. Note also H udson, Land, Law, and
Lordship, pp. 56-7 on warranty and ten an t right, pp. 206-7 on royal
power and alienability. However, for the cautious d o n o r even royal
involvement was n o t enough; see Lawsuits, no. 242 for H erb ert
fitzHelgot.
73. See below, p. 219 n. 121.
74. H udson, Land, Law, and Lordship, p. 110.

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practices, together with the im pact o f C onquest and

colonization, had com bined and inter-reacted to form
im portant substantive and administrative bases for the
com m on law. Continuity with England before 1066 was
m ost notable in the h u n d red and shire courts, in
land-holding in the lower levels of society, and in the
treatm ent o f offences against the person and moveable
property. N orm an innovation was clearer with regard to
land-holding higher in society and seignorial courts.
Flexibility and variation o f custom and procedure no doubt
existed. However, com parison, say, with France at the time
suggests that the degree of standardization and uniform ity
in England was very significant. It had various causes: the
p attern of land settlem ent, the continuing im portance of
shire and h u n d red as well as seignorial courts, and the
relative smallness of the realm. In addition, there was the
power of N orm an kings, in the laudatory words o f the Leges
Henrici Primi ‘the form idable authority o f the royal majesty
which we stress as worthy of attention for its continual and
beneficial pre-em inence over the laws’.75 After H enry ľs
death in 1135, the system o f royal governm ent, including
judicial activity, was to break down. The renewal of royal
power u n d er the Angevins in the second half of the twelfth
century would add further essential ingredients to the
em erging com m on law.

75. LHP, 6.2a, Downer, p. 96.

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 Chapter 5

ANGEVIN REFORM

KINGSHIP, STEPHEN’S REIGN, AND ANGEVIN

REFORM
H enry ľ s regim e was one of very powerful kingship but of
limited routine royal adm inistration. T he king’s power was
felt prim arily through his exercise o f a few great rights,
through his use of ad hoc measures, and through his
responses to requests from tenants in chief and their sub-
tenants.1 Such a powerful kingship collapsed during
S tephen’s reign. From the end o f the 1130s until as late as
1153 many areas o f the realm saw a breakdow n o f royal
authority. Circumstances forced the king to decentralize
elem ents o f his power, for exam ple through the creation of
earldom s,2 whilst lords also usurped royal rights and
extended their own powers.
Such a breakdown naturally had an effect upon
disputing and the adm inistration of justice. T here is
evidence for continuing provision of royal justice, either by
Stephen or by his Angevin opponents, the Empress M atilda
and h er son, the future H enry II. Some cases were held

1. It m ight be argued th a t had we, for exam ple, a parallel to

H ow den’s Chronicle from H enry ľ s reign, his adm inistration of
justice m ight seem far m ore similar to th a t o f his grandson and
great grandsons. Yet th ere is no sign th at a royal justice and
chronicler like H ow den did exist o r perhaps could have existed
u n d e r H enry I.
2. See e.g. K. J. Stringer, The Reign o f Stephen (London, 1993), p. 53; G.
J. W hite, ‘Continuity in governm ent’, in E. J. King, ed., The Anarchy
of King Stephen’s Reign (Oxford, 1994), pp. 126-9.

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before royal courts, some judicial writs were issued.3 T here

may, indeed, have been notable continuity from the end of
H enry ľ s reign into the second half o f the 1130s.4 The
worst disruption was in the m iddle o f the reign and
occurred particularly in the contested areas between the
power bases of Stephen and his opponents. In certain other
areas, such as the south-east, S tephen’s control survived
rath er better.5 Some revival o f royal power occurred late in
the reign, especially following the agreem ent between
S tephen and the Angevins in 1153.6
Nevertheless, there was a m arked dim inution o f royal
control. We can find instances o f royal orders being
ignored, although of course this is n o t unique to S tephen’s
reign.7 T here is also considerably less evidence for Stephen
than for H enry I intervening in inheritance disputes within
honours.8 D enied royal action, disputants substituted other
means. T he C hurch looked m ore to its own courts and to
the papacy. For exam ple, whereas a dispute between
Ramsey Abbey and the Pecche family concerning land at
Over, Cam bridgeshire, had involved the king before 1135,
u n d er Stephen the abbey tu rn ed to papal help in its
attem pts to regain the land.9 The influence o f lay lords and
their courts increased, through grants or usurpation of
franchises, through simple exercise o f strength, or through
lack o f b etter m ethods. G reat m en asserted their authority
n o t only over their vassals, but th roughout regions u n d er

3. See e.g. Lawsuits, nos 299, 302, 303, 312, 315, 320, 321 (the case o f
William o f Norwich), 331, 334, 335, 342; see also e.g. W hite,
‘C ontinuity’, pp. 131-3. For an optim istic assessment o f royal
judicial activity during the reign, see H. A. C ronne, The Reign of
Stephen (L ondon, 1970), ch. 9.
4. See e.g. W hite, ‘Continuity’, pp. 119-21.
5. See e.g. Stringer, Stephen, p. 58; see also E. Amt, The Accession of
Henry II in England (W oodbridge, 1993), chs 2-4.
6. See e.g. Lawsuits, no. 363; note also RRAN, iii nos 129-31. O n 1153
see also below, p. 127.
7. RRAN, iii no. 83 implies th at no. 82 h ad been ignored; also nos 264
an d 265. Such insistence th at royal orders be enforced could, of
course, be in terp reted as a sign o f energetic governm ent, b u t for an
in terp retatio n like m ine, see W hite, ‘Continuity’, p. 124.
8. H udson, Land, Law, and Lordship, pp. 138-9; see also p. 39 on cases
concerning services.
9. H udson, Land, Law, and Lordship, p. 99; see also pp. 142-3, 243.

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their pow er.10 At the same time, however, some lords seem
also to have been losing control over their own tenants.11
In such circumstances, claimants to lands turned
increasingly to violent means. A letter in H enry Iľ s reign
records the following incident u n d er Stephen:

W h ile S te p h e n [D a m m a rtin ] h a d th e ste w a rd sh ip a n d m a ste ry

o f all th e la n d o f E a rl G ilb e rt [o f C la re ], h e u n ju stly a n d
a g a in st re a s o n o c c u p ie d th e la n d o f P itley w h ic h b e lo n g e d to
W illiam th e re e v e o f B a rd fie ld a n d h is h e irs, f o r h e c ru e lly a n d
u n ju stly c a u s e d o n e o f W illia m ’s so n s to b e k illed , b e c a u s e h e
k n ew a n d p e rc e iv e d h im to b e n e a r e r to h is f a th e r ’s
in h e r ita n c e w ith r e g a r d to p o sse ssin g th a t l a n d .12

O r take the disputes between the abbot o f A bingdon and

Robert, son of a certain knight called Roger. Following
R oger’s death, A bbot Ingulf (1130-59) resum ed a tithe
Roger had held in Hanney. However, Ingulf was worn down
by the prayers of R obert and his friends ‘who were then
powerful in war’, and tem porarily regranted the tithe to
Robert. As for lands in Boarshill, with the help of his
friends, R obert simply held on to them by force, although
according to the abbey his father had ju st held them for
life. Only with considerable difficulty and expense did
Ingulf obtain a settlem ent with R obert whereby the latter
gave up the lands.13
Furtherm ore, from S tephen’s reign, unlike that of H enry
I, we have evidence of m agnates and other land-holders in
England m aking treaties in order to regain their
inheritances. Roger o f Benniworth and Peter of Goxhill
m ade an agreem ent in the earl o f Lincoln’s court
concerning lands to which Roger was ‘the rightful h e ir’:
‘this Roger and this Peter shall acquire them by their

10. See E. J. Ring, ‘The anarchy of King Stephen’s reign’, TRHS 5th Ser. 34
(1984), 133-53; note also J. Biancalana, ‘For want of justice: legal
reforms o f Henry Iľ , Columbia Law Review 88 (1988), esp. 450-1.
I I . N ote H udson, Land, Law, and Lordship, e.g. p. 49; also the
suggestions o f P. Dalton, Conquest, Anarchy and Lordship: Yorkshire,
1066-1154 (Cam bridge, 1994), pp. 242-7, on enfeoffm ents m ade
u n d er duress.
12. Lawsuits, no. 470; com m ent in Stenton, First Century, p. 82, and
H udson, Land, Law, and Lordship, p. 144.
13. CMA, ii 200-2, Lawsuits, no. 378.

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com m on power and their com m on m oney’. It is

conceivable that increased use o f writing reveals such
agreem ents which may have been m ade orally u n d er H enry
I, b u t it seems m ore likely that it was the conditions of
S tephen’s reign which created the need for partnerships to
perpetrate violence.14 Likewise, circumstances may have
stim ulated m en to adopt new m ethods to secure those
lands which they did possess. Thus within the charters of
the earl o f Chester, and perhaps those of other lords,
written warranty clauses are m ore prom inent in the 1140s
and early 1150s than they would be early in H enry Iľs
reign; special threats to the lands may have led m en to
resort to w riting.15
T here is also evidence of increased theft and rapine both
at the lower levels o f society and am ongst knights. The
following late, but plausible, story appears in an early
thirteenth-century royal court record.

In the war of King Stephen, it h ap p en ed th at a knight nam ed

W arin o f Walcote was an honest itin eran t knight and he
fought in the war and at length he passed th rough the
dwelling o f R obert of Shuckburgh . . . . A nd R obert had a
daughter nam ed Isabel whom W arin loved and took, so that
he asked R obert to give him his daughter, and he could n o t
have her, both because o f R obert and his son William who was
then a knight. At length William w ent o u t to fight and was
killed in the war. H earing this, W arin came with a m ultitude of
m en and took Isabel away by force and w ithout the assent and
will o f R obert h er father and o f Isabel herself, and he held her
for a long time.

W arin descended still further from honesty as he entered

upon a life o f robbery, and his trium phs would only come
to an end with the accession of H enry II.16
However, the breakdown o f royal judicial power u n d er
Stephen did n o t m ark a com plete rupture in legal

14. Stenton, First Century, no. 6; H udson, Land, Law, and Lordship, pp.
145-6.
15. H udson, Land, Law, and Lordship, p. 55.
16. D. M. Stenton, ed., Rolls of the Justices in Eyre, 1221-2 (Selden Soc.,
59, 1940), pp. 167-9; see below, p. 139, for W arm ’s fate u n d er
H enry II; n o te also Lawsuits, no. 290.

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developm ent. Loss o f control over h u n d red and shire

courts did n o t last sufficiently long to prevent S tephen’s
successor re-employing them as key royal courts. C ourt
procedures also survived, even if they were n o t u n d er royal
regulation. Groups o f m en on oath continued to settle
cases at the request of the parties, and we also see Geoffrey
de Mandeville as earl of Essex ordering a recognition to
settle a land case, ju st as a king m ight have d o n e.17 The
very fact that lords who usurped royal rights sought to
im itate royal actions helped to preserve judicial
procedures.18
Crucially, moreover, there is little suggestion of
fundam ental changes in substantive legal thinking, notably
with regard to land-holding. Thus the principle of
customary heritability of land was strong before S tephen’s
accession, and the pursuit o f different claims based on this
principle underlay many o f the disputes of his reign.19 Law
had survived whereby H enry II m ight restore order to his
newly acquired realm.
T he Angevins renew ed the power o f the monarchy, but
on a changed basis. It developed through considerable
experim entation b u t came to be characterized by a new
degree of routine royal contact with individual subjects.
T he need to re-establish peace after S tephen’s reign and to
settle disputes arising from it provided a very im portant
im petus for such administrative action.20 Those tenants
who had been shuffling off seignorial control but were now
denied the possibility o f violent self-help m ight look to the
king in pursuing their claims. And m em ories o f the events
of S tephen’s reign provided a vivid image of bad lordship
which m ight spur on the king and his servants in their
assertion of royal power.

17. Lawsuits, nos 343, 309. For royal use o f recognitions, see e.g.
Lawsuits, no. 288, an d also no. 298.
18. N ote also e.g. the earls o f G loucester im posing a £10 forfeiture for
disobedience o f th eir orders; R. B. Patterson, ed., Earldom of
Gloucester Charters (Oxford, 1973), nos 68, 89.
19. See e.g. C ronne, Reign o f Stephen, pp. 157-62 on the Lacy
inheritance; C. W. Hollister, ‘T he m isfortunes o f the M andevilles’,
in his Monarchy, Magnates and Institutions (L ondon, 1986), pp.
117-27; also H udson, Land, Law, and Lordship, pp. 117-18.
20. See below, p. 127, 139.

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THE EYRE
The new form o f royal power was most obvious to the
Angevins’ subjects when the king’s itinerant justices visited
their locality. These visitations, known as eyres, were
particularly frequent in the late twelfth century; sessions
were held in W iltshire in 1176, 1177, 1178, 1179, 1182,
1185, 1186, 1188, 1189, 1190, 1192, 1194, 1198 and 1202.21
Loud criticism is testimony to the im pact o f the eyre. The
itinerant justices, jusŧiciarii errantes, supposedly w andered
(errauerunt) from the path o f equity. Roger of Howden
rep o rted o f the 1198 eyre that ‘by these and other
vexations, w hether ju st or unjust, the whole of England was
reduced to poverty from sea to sea’.22 Yet eyres were n o t all
bad; their enforcem ent o f royal financial rights may have
induced m uch of the fear. Many disputants would have
welcomed the advantages o f royal justice being brought to
them . Meanwhile, the assembly o f large num bers ensured a
lively social life and maybe a feast for the justices.23
The general eyre was responsible for all pleas. It heard
cases between parties specifically sum m oned to appear
before the eyre justices, and also those between litigants
who had been suing at the central royal court. T he justices
bro u g h t with them a list of articles, of which the earliest
surviving exam ple comes from 1194.24 Some articles
concerned royal financial interests. O thers dealt with recent
political events, for exam ple the troubles involving Prince
Jo h n during R ichard’s absence on Crusade and in captivity.
However, others were m ore directly legal.

21. C. A. F. Meekings, ed., Crown Pleas of the Wiltshire Eyre, 1249

(Wiltshire A rchaeological and N atural History Soc., Record Branch,
16, 1961), p. 4.
22. Jo h n o f Salisbury, Policraticus, ed. C. J. W ebb (2 vols, O xford, 1909),
i 345-6; Roger o f H owden, Chronica, ed. W. Stubbs (4 vols, L ondon,
1868-71), iv 62; also e.g. Pollock and M aiüand, i 200-2.
23. N ote also Wiltshire, p. 19 on proclam ations to ensure supplies of
reasonably priced victuals.
24. EHD, iii no. 15; on the Assize of N o rth am p to n ’s relations to the
articles o f the eyre, see below, p. 133; on changes in articles o f eyre
going into H enry I ll’s reign, Wiltshire, pp. 27ff. O n the pro ced u re of
eyres, see also Surrey, pp. 17ff.

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[1] O f pleas o f the crown new and old an d all n o t yet

concluded before the justices o f the lord king.
[2] Also o f all recognitions and pleas which have been
sum m oned before the justices by writ o f the king or of the
chief justice, or which have been sent before them from
the chief court of the king.
[7] Also o f malefactors, and those who h arb o u r them and
those who abet them .

F urther clauses concerned royal regulations such as the

assizes o f wine and measures, or m echanism s for the
enforcem ent o f justice in the localities.
Meanwhile, the sheriff and his bailiffs were busy
preparing for the eyre’s visit. They sought to ensure that
when the eyre arrived num erous people involved in
litigation were present, n o t ju st the parties themselves but
also, for example, neighbours o f people who had been
killed.25 Representatives o f every h u n d red and village had
to be sum m oned to answer the justices’ enquiries. As the
articles of 1194 specify

In the first place, four knights are to be chosen from o u t of

the whole county, who, u p o n their oaths, are to choose two
lawful knights from each h u n d re d or wapentake, and these
two are to choose u p o n their oath ten knights from each
h u n d re d or wapentake, or free and lawful m en if there are n o t
enough knights, in o rd er th at these twelve together may
answer to all the articles from every h u n d re d or wapentake.

The form al em panelling of these m en took place after the

arrival of the justices, and after an opening ceremony. The
representatives swore to answer the articles truthfully, with
an oath such as the following:

H ear this, ye justices, th at I will speak the tru th as to that on

which you shall question me on the lord king’s behalf, and I
will faithfully do th at which you shall com m and me on the
lord king’s behalf, an d for nothing will I fail so to do to the
utm ost of my power, so help me God and these holy relics.26

25. Surrey, pp. 21-3.

26. Bracton, f. 116, T h o m e, łi 329.

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They were supplied with a copy of the articles, and were

also instructed in private to arrest ‘anyone in their h u n d red
or wapentake [who] is suspected o f some crim e’, o r at least
nam e them so that the sheriff could make arrests and bring
the suspects before the justices. The representatives took
the articles away, and then discussed their answers. They
had to rem em ber or uncover in any records all inform ation
relevant to the enquiries, for omissions laid them open to
am ercem ent. W hen ready, they presented their answers
concerning royal rights and crown pleas, either o u t loud or
in writing or perhaps both, and these were entered upon
rolls.27 T he treatm ent and fate of those accused in these
and oth er ways will be discussed in the next chapter.
The eyre thus was a m ajor point o f contact with royal
governm ent. It provided a review o f local events. The
activities o f local officials were investigated. The
Lincolnshire eyre roll o f 1202 relates the fate o f certain
m inor officials who had taken a stranger and placed him in
the pillory because he could n o t find sureties.28 H e ‘let his
feet d ro p ’ and before help could arrive he died. The
officials were asked by what w arrant they placed him in the
pillory and replied that it was by the com m and o f certain
m en now dead. The reeves o f Lincoln and the coroners
denied any part in the m atter, and the officials were taken
into custody. In a similar way, the eyre watched over the
actions o f m ore senior officials, including the sheriff.29 Any
offences should result in am ercem ent and the king’s profit.
A lthough n o t all those gathered before the justices took
an equally active part in events, royal business involved a
large nu m b er o f men. The gathering also provided a forum
for the projection o f royal authority. We have already heard
the representatives’ oath twice m ention that the justices
acted on the lord king’s behalf. In addition, the
proceedings opened with a reading o f the writs which
authorized and em powered the justices to proceed on eyre.
O ne justice m ight then make a speech concerning the

27. Bracton, ff. 116, 143, T h o rn e, ii 329, 403-5; n o te also Wiltshire, pp.
92ff.
28. Lincs., no. 1012.
29. Lincs., p. xliii; however, see below, p. 182, for some limits to the
eyre’s supervision.

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purpose o f the eyre and the advantages o f keeping the

peace; the opportunities of serm onizing upon the majesty
and the benefits o f royal governm ent are obvious. T he eyre
brought n o t ju st the practice but also the ideology of
kingship to the localities.30

CHRONOLOGY
Such then is a picture o f one m anifestation o f royal power
and justice, based upon sources from late in our period
and beyond. How did such power grow up? T he first half of
this book has argued for the existence by 1135 of a
considerable degree o f unity o f custom within the realm
and of royal involvement in im portant aspects o f justice.
Such were necessary preconditions for the reform s which
occurred u n d er H enry II and his sons. However, the
Angevin period did produce a shift in the practices and the
nature o f royal adm inistration. Reforms relating to law and
justice consisted of a great variety o f changes, some intro-
duced by legislation, some by administrative innovation,
others by decisions in the royal chancery o r in the courts,
others still by less conscious change. These reforms have
often been discussed, b u t chronological accounts have
generally concentrated on legislative innovations,
producing a distorted picture. By drawing on the full range
of sources, a sometimes inexact but nevertheless necessary
sketch can be made.

(i) The early years

An initial problem is to set a starting p oint for the reforms.
Often, relying on legislative texts, historians have looked to
1164 or 1166. Such a view receives some support from the
Pipe Rolls, which for the first decade o f H enry’s reign
display rath er less judicial activity than in 1129-30, the date
o f H enry ľ s sole surviving Pipe Roll.31 Yet there are
30. See Bracton, f. 115b, T h o rn e, ii 327. W. C. Bolland, The General Eyre
(Cam bridge, 1922), p. 36, estimates an attendance of 500 at a 1313
Canterbury session o f the eyre.
31. Stenton, English Justice, pp. 62, 69, Amt, Accession of Henry II, pp.
179-81. For an im p o rtan t survey of, inter alia, m atters covered in
this chapter, see Biancalana, ‘Legal reform s o f H enry II’, 433-536.

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indications o f significant developm ents before 1164,

perhaps even before H enry’s accession. In 1153 H enry and
King Stephen, according to the chroniclers, prom ised to
restore ‘the disinherited’, families who had held lands
u n d er H enry I b u t lost them u n d er Stephen. This m ust
have stim ulated royal judicial activity; the royal declaration
constituted a prom ise to help solve disputes. F urther
specific promises were m ade by the issue of royal
confirm ations, n o t ju st to great m en b u t also to sub-
tenants.32 Cases arising from the Anarchy also encouraged
the use o f royal writs, and by 1158 appeared the phrase
breve de recto (‘writ concerning rig h t/ju stice’). This need not
refer to precisely the writ so nam ed by GlanυiĶ but it
already appears to be used as a classification.33 Cases such
as one involving two Lincolnshire peasants who obtained a
royal writ ( breve recti) show the wide availability o f royal
help.34 Men were becom ing re-accustomed to looking for
royal justice, the king showing his willingness to intervene
in disputes.
T here are also signs o f legislative activity. It is possible
that by 1162 a statutum had been issued concerning the
retrieval o f lands lost u n d er Stephen.35 O ther legislation
concerned disseisin, with early m entions in cases involving
advowsons. T hen in 1162 H enry ordered the restoration of
certain properties to St B enet’s Holme, ‘notw ithstanding
my assize’.36 The m eaning o f these cases is unclear. Some
legislation may have concerned only advowsons. O r the
references only imply royal prohibition o f disseisins whilst
the king was abroad. Alternatively, p art of the intention
may have been m ore general: perhaps the king desired that

32. K R. Potter, ed. and trans, Gesta Stephani (Oxford, 1976), p. 240,
R obert o f Torigny, in R. Howlett, ed., Chronicles of the Reigns of
Stephen, Henry II, and Richard I (4 vols, L ondon, 1884-9), iv 177; J.
C. Holt, ‘1153: the Treaty o f W inchester’, in King, ed., Anarchy, pp.
291-316; Hyams, ‘W arranty’, 476-7. For an early edict concerning
restoration o f royal dem esne, Lawsuits, no. 417.
33. Royal Writs, pp. 206-7.
34. F. M. Stenton, ‘T he Danes in E ngland’, Proceedings of the British
Academy 13 (1927), 221-2.
35. See H udson, Land, Law, and Lordship, pp. 256-7 for this an d other
early legislation.
36. D. W. S utherland, The Assize of Novel Disseisin (Oxford, 1973), pp.
7-8.

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the newly restored tenants in chief should n o t create

problem s by wholesale disseisin o f existing sub-tenants.
Further legislation concerned distraint. In the early
1160s, the earl o f Leicester prom ised that if he or his heirs
failed to do or observe their hom age to the bishop of
Lincoln, the bishop would ‘com pel him by that land on the
ju d g m en t o f his court, according to the decree [statutum¦
o f the realm ’. U nfortunately, it cannot be told w hether this
statutum involved a new regulation that distraint by land
required a court judgm ent, w hether it reinforced a custom
to that effect, o r w hether it was a m ore general prohibition
of unreasonable distraints.37 We know rath er m ore about
another decree o f H enry II, concerning the transfer of
cases from lords’ courts to the king’s, when the plaintiff
accused his lord o f default o f justice. According to
G uernes’ Life of St Thomas, the enactm ent specified that:

I f a n y o n e p le a d s a b o u t la n d in th e c o u r t o f h is lo rd , h e s h o u ld
c o m e w ith h is s u p p o r te r s o n th e firs t a p p o in te d day, a n d if
th e r e is an y d elay in th e case, h e s h o u ld g o to th e ju s tic e a n d
m a k e h is c o m p la in t. T h e n h e sh a ll r e tu r n to th e lo r d ’s c o u r t
w ith two o a th h e lp e rs , a n d sw ear th r e e - h a n d e d th a t th e c o u r t
h a s d e la y e d in d o in g h im fu ll ju s tic e . By th a t o a th , w h e th e r
false o r tr u e , h e sh a ll b e a b le to g o to th e c o u r t o f th e n e x t
h ig h e r lo rd , u n til h e c o m e s to th e c o u r t o f th e s u p r e m e lo r d
[seignursuverain i.e. th e k in g ] .38

This aroused the barons’ suspicions: ‘the king had m ade a

constitution, which he thought would be very advantageous
to him self.’
In addition to legislation and activities relating to land-
holding, there were also significant measures relating to
local adm inistration. In the early 1160s notable changes in
the personnel o f sheriffs occurred, and resident local
justices may have disappeared.39 Thus the Constitutions of

37. EHD, ii no. 259.

38. A slightly m odified version o f M. C heney’s translation o f G uernes
de Pont-Sainte-M axence, La Vie de Saint Thomas Becket, ed. E.
W alberg (Paris, 1936), 11. 1401-10.
39. J. Boorm an, ‘T h e sheriffs o f H enry II an d the significance o f 1170’,
in G arnett and H udson, Law and Government, pp. 255-75; R. F.
H unnisett, ‘T he origins o f the office o f co ro n e r’, TRHS 5th ser. 8
(1958), 91.

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 ANG EVIN REFORM

C larendon o f 1164 cannot be taken as the starting point of

reform , and the earlier dating reinforces the link between
reform , the renewal o f royal power, and the need to settle
disputes and disorder arising from S tephen’s reign.

(ii) 1 1 6 4 -8 9
The Constitutions o f Clarendon, central to the dispute
between H enry II and Thom as Becket, described
themselves as ‘a record and recognition o f a certain p art of
the customs, liberties, and dignities of his ancestors, that is
o f King H enry his grandfather, and of o th er things which
ought to be observed and m aintained in the realm ’,
Particularly significant because o f the procedure adopted
was a question o f land-holding:

If a dispute shall arise between a clerk and a layman, or

between a layman and a clerk, in respect o f any holding which
the clerk desires to treat as alms, b u t the layman as lay fee, it
shall be determ in ed by a recognition o f twelve lawful m en
u n d e r the direction o f the king’s chief justice, w hether [uŧrum]
the holding pertains to alms o r to lay fee. And if it be
recognised to pertain to alms, the plea shall be in the
ecclesiastical court b u t if to lay fee, it shall be in the king’s
court, unless both o f them shall vouch to hold [advocaverint]
from the same bishop or baron. But if each o f them vouches
the same bishop or baron concerning this fief, the plea shall
be in the court o f the bishop or baro n .40

This is the basis of the assize utrum, and the regular use of
similar recognitions by twelve lawful m en will be a central
feature o f the Angevin reforms.
In term s o f its im m ediate effect on the conflict with the
Church, however, an earlier clause was o f m uch greater
im portance:

Clerks cited and accused o f any m atter shall, when sum m oned
by the king’s justice, com e before the king’s court to answer
there concerning th at which shall seem to the king’s court to
be answerable there, and before the ecclesiastical court for

40. EHD, ii no. 126, c. 9. For precedents to utrum, Royal Writs, pp.
325-30.

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what shall seem to be answerable there, in such a way th at the

king’s justice shall send to the court o f the holy C hurch to see
how the case is there to be tried. A nd if the clerk shall be
convicted or confess, the C hurch ought no longer to p rotect
him .41

Moreover, H enry was concerned n o t only with clerical

w rongdoing, and by late in 1165 or early in 1166 he was
ordering local officials to im plem ent a wide-ranging series
of measures. T he 1166 Assize o f Clarendon, p art of the
process whereby H enry placed these measures in the hands
of Geoffrey de Mandeville and Richard de Lucy as itinerant
justices, states that:

[1] Inquiry shall be m ade th ro u g h o u t every county and every

h u n d red , th rough twelve o f the m ore lawful m en o f the
h u n d re d and th rough four of the m ore lawful m en of
each village u p o n oath, that they will speak the truth,
w hether there be in their h u n d re d or village any m an
accused or notoriously suspect of being a ro b b er or
m u rd erer or thief, or any who is a receiver o f robbers or
m urderers or thieves, since the lord king has b een king . . .
[2] And let anyone who shall be found on the oath o f the
aforesaid, accused or notoriously suspect o f having been a
robber or m u rd erer o r thief, or a receiver o f them , since
the lord king has been king, be taken and p u t to the
ordeal of water, and let him swear that he has n o t been a
ro b b er or m u rd erer or thief, or receiver o f them , since the
lord king has been king, to the value o f five shillings so far
as he know.
[5] And in the case of those who have b een arrested through
the aforesaid oath o f this assize, let no m an have court or
justice or chattels save the lord king in his court in the
presence of his justices; and the lord king shall have all
their chattels.

Those failing the ordeal were to lose a foot. Even if they

passed the ordeal, ‘if they have been o f ill repute and
openly and disgracefully spoken of by the testimony of
many and lawful m en, they shall abjure the king’s lands’.
T he king was seeking to rid the country o f notorious

41. EHD, ii no. 126, c. 3.

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wrongdoers. F urther measures sought to ensure that the

provisions be effective throughout the realm, and that
standard peace-keeping measures, such as frankpledge,
were properly enforced.42
Such measures emphasize H enry’s desire to preserve his
coronation prom ise to m aintain the peace. A similar
concern may also underlie another m easure probably
dating from the same period and perhaps the same
council, which dealt with disseisins, and cam e to be called
the assize o f novel disseisin. Like the assize utrum, it used a
recognition o f twelve lawful m en before the royal justices,
and it provided a swift solution for accusations that another
party had recently, unjustly, and w ithout judgm ent,
disseised a m an o f his land.
A lthough H enry was absent from England from March
1166 until 1170, and no legislation survives from this
period, judicial and other administrative activity continued.
T here was an enquiry concerning knight service in 1166, an
extensive forest eyre in 1167, and a very thorough visit of
itinerant justices in 1168-70. The king’s absence may have
encouraged the regular em ploym ent o f the exchequer
court to decide cases even when the justiciar was not
present.43 T he Pipe Rolls indicate m en looking to royal
help, for exam ple in disputes concerning warranty of land.
A highly significant change in the form o f certain kinds of
writs may also have occurred in the late 1160s. These
started to be sealed ‘closed’, that is in such a way that the
seal had to be broken in o rder to read the docum ent. In
addition, the writs were ‘retu rn ab le’ to specified courts,
w here the writs’ details o f the issue and form o f the trial
were to be read out.44
Measures taken upon H enry’s retu rn in 1170 display a
similar emphasis upon royal control. Perhaps having learnt
through the eyres many new details about local admin-
istration and its abuses, he ordered an enquiry, generally
42. Assize o f C larendon, EHD, no. 24, Assize o f N ortham pton, c. 1,
EHD, ii no. 25; Pollock an d M aitland, i 151-3; on enforcem ent, see
e.g. W. L. W arren, The Governance of Norman and Angevin England,
1086-1272 (L ondon, 1987), pp. 110-11.
43. Brand, Making, pp. 87-9.
44. See also below, p. 143; for fu rth e r references, an d the problem of
dating, H udson, Land, Law, and Lordship, p. 259.

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known as the Inquest of Sheriffs, into royal and baronial

adm inistration. T he direct result was the replacem ent of
many sheriffs, and this may m ark a significant point in the
decline o f any in d ep en d en t power that sheriffs had
exercised. M oreover, one text o f the Inquest articles
contains a clause later referred to as an ‘Assize of
Essoiners’, essoiners being those who bro u g h t excuses on
behalf o f those involved in law cases. This regulated
essoiners’ conduct in n o t only royal but also county and
baronial courts. Whilst this may sound a m inor procedural
m atter, the space devoted to essoins in both Glanvill and
the early plea rolls indicates how im portant it was.45
Such active royal governm ent may have contributed to
baronial support for the revolt o f H enry’s son, the Young
King, in 1173-74.46 In turn, the restoration of control
brought a new im petus to reform . A new eyre was the
fullest yet conducted, and the itinerant justices received
fresh instruction in 1176 with the Assize o f N ortham pton.47
These Assizes, the text uses the plural, were a revision of
those m ade at C larendon ten years before. Felons convicted
by ordeal o f water after com m unal accusation were now to
lose n o t only a foot b u t also their right hand, and were to
leave the kingdom within forty days. The rights o f heirs
were confirm ed: ‘if any freeholder has died, let his heirs
rem ain in such seisin as their father had o f his fief on the
day o f his death; and let them have his chattels from which
they may execute the dead m a n ’s will. And afterwards let
them seek out his lord and pay him a relief and the other
things they ought to pay him from the fief.’ A swift
procedure, employing the recognition by twelve lawful
m en, was introduced for use by the heir whose lord refused
his claim: the assize mort dʼnncestor. Also at N ortham pton
the justices were ordered to carry out inquisitions
concerning novel disseisin, and to ‘determ ine all suits

45. EHD, ii nos 48-9; PKJ, i 153-4. For words o f caution, see Boorm an,
‘Sheriffs’. See also M. T. Clanchy, From Memory to Written Record (2nd
edn, O xford, 1993), pp. 64-5.
46. See Ralph o f Diceto, Opera Historica, ed. W. Stubbs (2 vols, L ondon,
1876), i 371.
47. EHD, ii no. 25; also below, chs 6 an d 7; see below, p. 152, for
Dialogus, p. 77; also Diceto, i 402 for enquiry concerning forest
offences.

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pertaining to the lord king and to his crown through the

writ of the lord king, or of those who shall be acting for
him, of half a knight’s fee or u n d e r’. F urther items for
enquiry, like those concerning recent political events and
‘escheats, churches, lands and women who are in the gift of
the king’, indicate that the Assizes o f N ortham pton were
the precursor of the articles of the eyre described early in
this chapter. It may also be at this time that the justices
began to keep extensive records, perhaps even plea rolls,
although these do n o t survive until Richard ľ s reign.48
O ther legislation comes from the latter years of H enry II,
notably the Assize o f the Forest o f 1184.49 Meanwhile,
certainly on the C ontinent and perhaps in England,
regulations were laid down concerning cases of debt. Also,
from 1176 H enry’s Pipe Rolls begin to m ention
am ercem ents for sales o f wine against the king’s assize, the
first o f various measures regulating com m ercial affairs. In
1181 came an o th er type o f regulation with the Assize o f
Arms, laying down the arms freem en o f different status
were to possess, and prohibiting transfer or trading of arms.
Since the arms to be possessed rested partly upon wealth
qualifications, this involved enquiry into and the recording
of the w orth o f the chattels and rents held by freem en.
H enry’s governm ent was starting to reach the parts that
o th er governm ents had n o t reached.50
Experim ents with judicial organization continued.
A ccording to Roger o f Howden, in 1178 H enry learnt that
his use of ‘a great m ultitude of ju d g es’, eighteen in
num ber, had been burdensom e to the realm. H e replaced
them with five m em bers of his private household, two
clerks and three lay, to hear all the com plaints o f the
realm. However, this was n o t a lasting arrangem ent, and
Ralph Diceto gives his impression of constant rearrange-
ment:

48. Brand, Making, pp. 95-6; on fine rolls, see H. G. Richardson, ed.,
Memoranda Roll 1 John (PRS, ns 21, 1943), p. xxxii.
49. EHD, ii no. 28; see also D. J. C orner, ‘T h e texts o f H enry Iľs
assizes’, in A. H arding, ed., Law-Making and Law-Mahers in British
History (L ondon, 1980), pp. 9-13.
50. Surrey, pp. 100-1, Bolland, Eyre, pp. 40-1 on eyre en forcem ent of
regulatory assizes; Assize of Arms, EHD, ii no. 27. N ote also the
pro ced u re for the 1188 Saladin tithe, EHD, ii no. 29.

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the king m ade use now of abbots, now of earls, now of tenants
in chief, now of m em bers o f his household, now of those
closest to him to h ear and ju d g e cases. At length, after the
king had ap pointed to office so many of his vassals o f such
diverse callings, who proved harm ful to the public good, and
yet he h ad n o t quashed the sentence of any official; w hen he
could find no o th er aid beneficial to the interests o f his private
affairs, and while he was yet reflecting on the things o f this
world, he raised his eyes to heaven and borrow ed help from
the spiritual order. . . . The king appointed the bishops of
W inchester, Ely and Norwich chief justiciars of the realm.

Whilst Ralph suggests that H enry was hopeful of their

godliness, the king no doubt rem em bered that the three
bishops, Richard o f Ilchester, Jo h n o f O xford, and Geoffrey
Ridel had been his loyal supporters against Becket, his
opponents then describing Ridel as an ‘archdeviľ.51
New procedures were also introduced. Probably at the
Council o f W indsor in 1179, the grand assize was estab-
lished. This perm itted cases concerning the right to land to
be settled n o t by battle, but, in the presence o f the king’s
justices, by twelve lawful knights of the area swearing as to
which of the parties had the greater right in the land in
question. Glanvill describes this as ‘a royal benefit granted
to the people by the goodness o f the king on the advice of
his magnates’, and there are other signs that royal justice was
proving popular, as in the rapid increase in the purchase of
licences to agree recorded in the Pipe Rolls o f the 1180s.52

(Hi) Richard and John

Reforms continued u n d er Richard I and John. Some were
introduced by royal decree, although legislative measures

51. Benedict of P eterborough, Gesta Regis Henrìci Secundi, ed. W. Stubbs

(2 vols, L ondon, 1867), i 207, Diceto, i 434-5.
52. G rand assize: Glanvill, ii 6-7, Hall, pp. 26-9. Final concords:
Stenton, English Justice, p. 51. See also Royal Writs, pp. 330-5 on
d arrein presentm ent; Hyams, ‘W arranty’, 488 for reference to ‘De
H om agio C apiendo’ in 1179; P. R. Hyams, King, Lords, and Peasants
in Medieval England (Oxford, 1980), p. 223 on the action o f naifty;
H udson, Land, Law, and Lordship, pp. 40-1 for jurisdiction concerning
replevin passing from eyre justices to sheriffs; Brand, Legal Profession,
p. 44 on attorneys.

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 ANG EVIN REFORM

were less significant than u n d er H enry II. In p art this was

because of R ichard’s absences from the realm, although
Howden did m ention that whilst at Messina the king
renounced his right of wreck.53 Early in J o h n ’s reign a
decree was issued concerning baronial seneschals failing to
answer properly on behalf o f their lords at the exchequer.54
Following the loss of the king’s n o rth ern French lands, the
threat of invasion from France becam e considerable, and a
series of defence measures were issued, including a revised
Assize of Arms.55 New regulatory provisions were also
introduced. In 1194 the king decreed that tournam ents be
allowed in England, and a system of licensing was
introduced.56 Then, in late 1196, came the Assize of
Measures, an other significant extension o f governm ent into
com mercial life: ‘it is laid down that all m easures through-
out all England be o f the same quantity.’ A m echanism for
local enforcem ent was specified, and thorough enforce-
m en t was obviously intended. The 1197 Pipe Roll records
in its London and M iddlesex account a paym ent of £11 16s
6d for ‘a purchase to make measures and iron rods and
beam s and weights to send to all the counties o f E ngland’.
The articles o f the eyre of 1198 reveal the justices enquiring
into the enforcem ent of the new legislation. It is notable,
however, that enforcem ent was relaxed at least with regard
to cloth; the emphasis was laid upon royal profit through
licensing freedom from R ichard’s assize, n o t upon the
regulation o f com m erce.57 A decree issued at the start of
his reign by King Jo h n concerning the sale of wine also

53 H owden, iii 68. For legislation concerning the crusading fleet and
crusaders, Howden, iii 36, 45, 58-60. N ote also TAC, lxxii, Tardif,
pp. 68-9.
54. H owden, iv 152. T he start o f J o h n ’s reign also saw a new scale of
charges for royal docum ents.
55. Rotuli Litterarum Patentium, i 55; Gervase o f C anterbury, Historical
Works, ed. W. Stubbs (2 vols, L ondon, 1879-80), ii 96-7, which is
concerned also with internal disturbers o f the peace; Calendar of the
Close Rolls, 1227-31, pp. 395, 398.
56. H ow den, iii 268; Diceto, ii pp. lxxx-i, 120; William of Newburgh, in
Chronicles Stephen, Henry II, Richard, ii 422-3.
57. Howden, iv 33-4, 62, 172, PR9RI, pp. xxi-xxii, 160; PR4f, p. xx. See
also William o f Malmesbury, Gesta Regum, ed. W. Stubbs (2 vols,
L ondon, 1887-89), ii 487, for H enry I standardizing the length of
the yard at the length o f his own arm.

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proved unenforceable in its original form; the price of wine

was reduced, ‘and thus the land was filled with drink and
drinkers’.58
Judicial activity continued. G eneral eyres were less
frequent than u n d er H enry II b u t still quite regular, visiting
in 1194/95, 1198/99, 1201/3 and 1208/9. Forest eyres
toured in 1198, 1207, and 1212, and there were also
commissions with m ore lim ited com petence.59 T he supply
of royal rem edies was increased and refined. Some writs
started to be issued de cursu, cheaply and readily available
from the chancery. The forms o f writs and procedures were
m odified and multiplied. Particularly im portant were to be
writs o f entry, which brought cases before the royal justices.
These writs focused a recognition’s attention on one
alleged flaw in the te n a n t’s title, for example, that he had
inherited the land from his father who had disseised the
tenant. Such was one form of the ‘writ of entry sur disseisin ,
and in 1204 an apparently chance note in the royal records
declared it henceforth a writ de cursu.&0 Existing rem edies
were im proved or extended. Thus it was decided that
damages should be awarded to every successful plaintiff at
novel disseisin, and novel disseisin also began to be used
for the retrieval o f rents.61
Behind at least the last of these m easures may lie
Richard and J o h n ’s great m inister, H ubert Walter, justiciar
1193-98, chancellor 1199-1205. He certainly was an
extremely influential figure, who, according to Gervase of
Canterbury, ‘knew all the laws [iurd¦ o f the kingdom ’. His
contributions were manifold, but those in the field of
record-keeping are particularly notable, especially for the

58. H owden, iv 99-100. N ote also the 1205 Assize o f Money, PR.7J, pp.
xxvjff., Rotuli Litterarum Patentium, i 54. See below, p. 239, on the
introduction of English law to Ireland.
59. See e.g. Lincs., pp. xli-ii.
60. Rotuli Litterarum. Clausarum, i 32. For caution on the im pact o f writs
o f entry in J o h n ’s reign, Holt, Magna Carta, p. 139; note also Lincs.,
pp. lxxi-ii, Milsom, Legal Framework, pp. 101-2.
61. Sutherland, Novel Disseisin, pp. 50-2. See also R. C. Palm er, The
County Courts of Medieval England (Princeton, NJ, 1982), pp. 184—7
on the em ergence of viscontiel justicies writ o f debt; Holt, Magna
Carta, p. 181 on the writ o f attaint.

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historian reliant on docum ents.62 Thus, in the first three

years o f J o h n ’s reign start our run o f charter rolls, close
rolls, and p aten t rolls.
A greem ents had long been recorded in bipartite
docum ents called cirographs. T he agreem ent was written
o u t twice, between the two texts was written the word
CIROGRAPHUM, and then the parchm ent was cut through,
dividing this word generally with a wavy line. O ne half went
to each party. Should a dispute arise, the auth- enticity of
each side’s docum ent could be tested by seeing if the two
halves fitted together again. T hen in 1195, an agreem ent
between H u b ert W alter’s b ro th er Theobald and William
Hervey had the following note written upon its back:

This is the first cirograph which was m ade in the court o f the
lord king in the form o f three cirographs [u n d er the
instructions of] the lord of C anterbury [H ubert Walter] and
the o th e r barons o f th e lo rd king, so th a t by this form a
record could be h an d ed over to the treasurer to place in the
treasury.

This third copy was referred to as the ‘foot of the fine’.

H ere we see an emphasis upon the keeping o f a regular
series o f royal records, and the increasing use o f multiple
copying. Both are essential characteristics of bureau-
cratization.63
H u b ert also had a notable effect on the judiciary and
their activities. D uring this time, the C om m on Bench, the
m ost im portant royal tribunal for civil cases for the
rem ainder of the m iddle ages and beyond, em erged as a
court in d ep en d en t o f the exchequer, reflecting the
increasing pressure o f business and the growth of
specialization.64 H ubert as justiciar presided over these
royal courts. His im pact upon the com position o f the eyre

62. Gervase, ii 406; C. R. Cheney, Hubert Walter (London, 1967), pp.

107-9. However, see above, n. 48, for evidence of records starting
earlier than o u r surviving series. H u b e rt’s role may have been one
o f significant regularization.
63. Feet of Fines, Henry I I and Richard (PRS, 17, 1894), p. 21; see also
Clanchy, Memory, pp. 68-9.
64. B. R. Kemp, ‘E xchequer and Bench in the later twelfth century -
separate or identical tribunals?’, EHR 88 (1973), 571-2.

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is apparent within a year of his becom ing chief justiciar.65

From 1194 and 1198 come our first surviving texts of
articles o f the eyre. Amongst their concerns was local
adm inistration, and in 1194 it was specified that ‘in each
shire are to be elected three knights and one cleric as
keepers of the pleas of the crown’. This marks the appear-
ance o f coroners, whose inquests rem ain a p art o f legal
procedure today. T he early plea rolls reveal m uch of their
activities, notably the holding of an inquest whenever a
corpse was found. The inquest was recorded in the
co ro n er’s roll, for presentation at the time o f the eyre.66
F urther evidence of concern for order in the localities
comes in 1195, when H ubert W alter sent a ‘form o f o a th ’
throughout England. This re-affirmed traditional m ethods
such as the hue and cry, and instructed that specially
assigned knights make all those within their jurisdiction
aged fifteen or older swear that they would keep the king’s
peace. The knights were also to receive criminals who were
taken, and deliver them to the sheriff. As so often, we see
the leading m en of the localities becom ing further involved
in royal judicial activity. The decree clearly had a m ajor
im pact on the populace, for Howden records that,
forew arned and o f bad conscience, many fled, leaving
behind their houses and possessions. F urther torm ent was
added in 1198 with a general eyre and a forest eyre
enforcing a renew ed version of the Assize of the Forest.67
Such com plaints arose from the regular im position of
justice. U nder John, further grievances were added as,
following the loss o f the C ontinental possessions and
particularly from 1209, justice was m ore concentrated on
the king and the court which travelled with him, notably
with its visits to the n o rth of the country. Such
developments seem to have been disruptive and unpopular,
and will be considered in the final chapter in the context

65. C. R. Young, Hubert Walter, Lord o f Canterbury and Lord o f England

(D urham , NC, 1968), p. 51.
66. See R. F. H unnisett, The Medieval Coroner (Cam bridge, 1961), esp.
ch. 2; also below, p. 178.
67. H ow den, iii 299-300, iv 61-6; Cheney, Hubert Walter, p. 93; PR7RI,
p. xxvi, PR9RI, p. xvii, PRIORI, p. xxx. T h ere were also enquiries
into the conduct o f royal officials; see H owden, iv 5 (1196) an d the
articles o f the 1198 eyre.

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of the background to M agna Carta. T he im petus for reform

had tem porarily shifted from the king and his m en to his
opponents.68

THE STAGES AND NATURE OF REFORM

Having sketched a chronology, some suggestions can be
made about the stages of reform . H enry II began his reign
with two m ajor problem s. He had to govern his far-flung
dom inions. A nd m ore specifically in England he had to
restore peace and royal authority. T he doing o f justice had,
therefore, to be central to H enry’s activities. To a large
extent, in the early years of the reign H enry and his
advisers sought only to restore the traditional devices of
local authority, to make the old system work according to
its own terms. Respect, or at least lip-service, was paid to the
limits of royal jurisdiction: com plaints of default o f justice
were to go initially to overlords’ courts, the Constitutions of
Clarendon allowed certain utrum cases to baronial courts.69
F urther action relied on com plaints being brought to the
king. This was most clearly true o f land cases, but is also
evident with theft or violence. We earlier left Warin of
Walcote enjoying his life with Isabel o f Shuckburgh, whom
he had abducted, and entering upon a life of robbery.
U n d er H enry II, he found that ‘he fell into poverty because
he could n o t rob as he used to do, b u t he could n o t refrain
from robbery and he w ent everywhere and robbed as he
used. And King Henry, having heard com plaints about him,
o rd ered th at he should be taken.’ Eventually he was
captured, b ro u g h t before the king, and H enry ‘that he
m ight set an exam ple to others to keep his peace, by the
counsel o f his barons, ordered W arin to be p u t in the
pillory, and there he was p u t and there he d ied ’.70 H ere
royal justice was hardly being taken to the localities as it
would be from the mid-1160s. Yet the king was far from
passive, and in his declarations of peace and his promises

68. Stenton, English Justice, ch. 4; see below, p. 222. R. V. T urner, The
English Judiciaty in the Age o f Glanvill and Bracton, c. 1176-1239
(Cam bridge, 1985), pp. 133-4; PR12J, pp. xiv-xxiij.
69. See above, p. 129.
70. Stenton, Rolls of the Justices in Eyre, pp. 167-9, an d see above, p. 121.

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to restore the disinherited, he was inviting claimants to

com e to him. This initial shifting of the focus o f cases back
to the king and his court was vital to later developments.
T he period from c. 1164-84 saw m ore obviously dram atic
change. New procedures were announced at m ajor
councils, such as those at C larendon, N ortham pton, and
W indsor. Im portantly, there came into routine use the few,
easily reproducible, administrative reforms which were to
dom inate key aspects of legal procedure. Writs originating
hearings and recognitions to settle those disputes were
obtained by one party looking to the king, b u t at the same
time royal justice began to be taken to the localities on a
m uch m ore regular basis through eyres. These were
primarily concerned with royal rights and the m aintenance
of the peace, b u t they also m ade m uch m ore readily
available the new actions affecting land. This fresh
assertiveness is reflected in the phraseology o f reform s such
as the Assize of Clarendon which em phasize that existing
interests are n o t to block royal adm inistration o f justice.71
T hereafter reform was m ore gradual, in part because the
necessary m achinery had been brought into existence. New
procedures were introduced, but these tended to be
modified versions o f existing ones. Sub-sets o f writs
appeared, such as the writs o f entry. Standardization
continued, and in this respect a most notable developm ent
is that o f regulation, such as that affecting wine and
measures. Again the standardizing impulse of royal
governm ent was taken to the localities through legislation
and through the enforcing agency of the eyre.
T he nature o f the reforms can be linked to the above
stages. Whilst new writs could be created, m ajor measures
were n o t invented from scratch. The reform ers drew on a
variety of sources for their thinking and practices.72
Experim ents were m ade with existing materials; some
failed, others succeeded and ended in many cases by
transform ing the original form. Many o f the measures
which characterize the Angevin reforms, such as the use of
sworn bodies o f m en either to present criminals or to give

71. See below, pp. 157, 180.

72. E.g. for ecclesiastical influence see below, p. 150, an d also Pollock
an d M aitland, i 151-3 on presenting juries.

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verdicts on specific questions of land-holding, had

previously been used on an ad hoc basis, sometimes
involving royal justices, sometimes at the choice o f the
disputants, sometimes through a decision of a local
com munity.73 The reform s took such measures, regularized
them , and enforced them from above. The result was a few
easily reproducible, easily adaptable forms which were
central to com m on law procedure. The eyre, the returnable
writ, and the jury and recognition, would rem ain at the
h eart o f law and o f the royal adm inistration o f justice.74
Crucially, they allowed both active assertion o f royal rule
and responsive capacity to satisfy requests for justice. The
king’s governm ent came to his subjects, the king’s subjects
came to his governm ent.
Such a conclusion warns against categorizing the reforms
simply as centralization. Certainly, far m ore than ever
before, royal courts, particularly the eyre, becam e courts of
first resort for the whole realm. Certainly, H enry’s attacks
u p o n crime m ust have curtailed at least the customary
exercise of baronial franchises, franchises which had
expanded u n d er Stephen. Yet the local contribution
continued to be vital to royal governm ent. Central to the
reforms was the jury or recognition, ‘a body of neighbours
. . . sum m oned by some public officer to give upon oath a
true answer to some question’.75 Judicial activity and law
continued to be characterized by a considerable degree of
local self-government, but in im portant aspects it was
self-government at the king’s com m and.
The Angevin reforms have sometimes been lauded as a
trium ph o f rational justice over older irrational m ethods,
encapsulated in the replacem ent of ordeal by ju ry trial.
Certainly, the reform ers regarded reason as laudable.76 Yet
as we have seen, the existing m ethods of trial only

73. For recognitions in N orm andy before 1154, see e.g. C. H. Haskins,
Norman Institutions (Cam bridge, MA, 1918), ch. 6. O n n ot the
creation b u t the preservation o f the various forms o f ‘j u ry ’ as a
characteristic o f English law, see S. M. G. Reynolds, Kingdoms and
Communities in Western Europe, 900-1300 (Oxford, 1984), pp. 33-4.
74. N ote though the limits to regularity, e.g. Wiltshire, p. 10, on eyre
arrangem ents.
75. Pollock an d M aitland, i 138.
76. See e.g. Glanυill, Prologue, Hall, p. 2.

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occasionally resorted to the supernatural, and it is hard to

see the reform ers as pursuing rationality th roughout all
their activities.77 Indeed, their dom inant figure in the later
years o f H enry Iľ s reign was a m an, Ranulf de Glanville,
who may well have believed that his rise to prom inence was
sealed by the m iraculous intervention o f Thom as Becket in
allowing him to capture the king o f Scots in 1174. Not
surprisingly, therefore, the reform ers did n o t reject the
supernatural. At least for those they saw as undesirable
m em bers o f the lower orders they extended use o f trial by
ordeal. Even with the grand assize, prim arily intended for
m ore respectable people, justification was n o t based on
rationalist principles. Their preference for new m ethods in
land cases may have had m ore to do with the capacity of
royal justices to control proceedings and perhaps outcomes.
It certainly had to do with speed, and the text of Glanvill
reveals noteworthy debate over procedure regarding the
non-appearance of parties in court. Efficiency, not
rationality, was the reform ers’ conscious aim.78
Rather than seeing the Angevin reform s as based upon
principles of centralization or rationality, therefore, it is
better to describe them in terms o f routinization,
bureaucratization, and regulation.79 Nowhere is this m ore
obvious than in the royal plea rolls. O ne m ight expect
these to be filled by decisions o f cases. In fact they reveal
that a great mass o f the work o f the king’s court was
procedural: hearing essoins, checking those essoins,
arranging for attorneys, granting licences to come to an
agreem ent. This is a neglected historical developm ent of
the utm ost im portance: the birth o f red tape. M en’s actions
were increasingly being brought u n d er administrative
scrutiny. Actions which m ight perhaps have been
satisfactorily left to individuals, such as out-of-court
com prom ise, were being directed through the ‘pro p er
channels’ by royal servants. Everything m ust be made
official.
77. See above, p. 72.
78. Glanvill, i 32, vi 10, xi 3, Hall, pp. 20-1, 63-4, 134; these constitute
th ree of the total o f six debated points w here nam es were attributed
to opinions - see below, p. 154.
79. O n bureaucratization, see Clanchy, Memory, pp. 62ff., and below, p.
192, on the writ rule.

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Closely connected with these developm ents is the

increased use o f writing, in adm inistration and in courts.80
Bureaucracy is based on the bureau, the writing desk. O n
such desks were written the ever-expanding financial and
judicial records o f Angevin adm inistration. Significantly, in
term s of bureaucratization, increasing num bers of these
records were produced in m ultiple copies.81 Also com ing
from the writing desks o f Angevin chanceries were
increasingly standardized writs. T he writer o f Glanvill may
have had some sort o f register o f writs,82 and certainly his
own work reveals the developm ent o f a core o f writs to be
reproduced in set forms for set situations. T hereafter
fu rth er writs, notably those of entry, were created to fill
holes left by those currently available. Most o f the writs
created in the Angevin period were sealed closed and
therefore could be used ju st once. This expendibility
contrasts with older, reusable writs which were sealed open,
and it suggests a m ore routine use o f writing. Moreover,
these new writs were returnable; they were sent to the
sheriff who set proceedings in m otion, for exam ple
organizing a recognition. H e then wrote the nam es of the
recognitors upon the writ, and was obliged to produce it
before the royal justices on the day of judgm ent. Anglo-
N orm an writs had been growing m ore specific in detailing
that their orders be carried out justly or by some particular
m ethod, and they may have been accom panied by oral
messages with further details. However, they lacked the
standardization and precision which the Angevin return-
able writ gave to royal control over judicial proceedings.83
T he details required by the returnable writ also fit
an o th er feature o f Angevin adm inistration, the gathering o f
inform ation. This was m anifested on a national scale not
only by the general eyre b u t also by the 1166 enquiry into

80. N ote an isolated plea roll instance from R ichard ľ s reign, CRJR, vii
346, of a case disrupted because the writ was taken to a m an who
later protested th at he had h ad no cleric with him to read the writ,
an d w hen he had sent for a cleric, the o th e r parties left.
81. See above, p. 137, below, pp. 148, 185.
82. See esp. Glanvill, xii 10-22, Hall, pp. 141-7; contrast the earlier p art
o f th e N orm an Très Ancien Coutumier.
83. See also above, p. 114; note Royal Writs, index sub ‘writs,
judicialisation’.

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knight service, the 1185 enquiry into the king’s feudal

rights, and m ost ambitiously the 1170 Inquest of Sheriffs.
Inform ation gathered in these ways and illustrating, for
exam ple, the problem s o f seignorial justice, m ust have
influenced later royal administrative activities.
Overall, therefore, the Angevin reform s constituted a
considerable extension o f royal control o f justice, and a
change in the nature o f that control. They were not,
however, intended as a head-on attack upon baronial power
and justice, or other local jurisdictions. Rather, the
localities participated in the application o f the reforms and,
crucially, provided m uch o f the dem and which stim ulated
them . Given, then, that consum er dem and was one o f the
forces behind legal and judicial change, let us look m ore
closely at the other causes which set reform in m otion.

HENRY II AND REFORM

Many have referred to the changes of the period 1154-89
as ‘H enry Iľ s legal reform s’, but how far was the king
personally responsible for them? Explanations based on
H enry’s own genius, his lawyerly characteristics, are
enticing in their simplicity but encounter serious
difficulties. Kings certainly were interested in judging cases,
and in the considerable profits raised by legal and judicial
business, but there is far less evidence that they were
concerned in any b u t the broadest sense with the details of
judicial adm inistration, let alone the content of substantive
law. M oreover, whatever intentions H enry did have in these
respects surely had only a lim ited effect upon the end
results o f the changes. Yet royal intentions m ust n o t be
ignored, for H enry and his sons did have motives
conducive to the reform of justice and law.
It is surely best to begin by taking H enry at his word: he
wished to retu rn the realm to its state in his grandfather’s
time. He saw H enry ľ s reign as a time o f peace, justice, and
law, in contrast to the time of war u n d er Stephen.
Moreover, he associated such peace with the strength of
royal power, the activities of his grandfather as the Lion of
Justice. Retrospect may have exaggerated the degree to
which earlier kings had controlled justice, b u t it is H enry’s
perception of the past which is the essential point here.

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Such ideas reinforced his coronation oath, with its promises

to protect the C hurch and his subjects, to forbid all kinds
of rapine and unlawfulness, do justice, and, in an
apparently new clause, to protect the rights o f the Crown.
To achieve these ends he had to ensure that disputants did
n o t seek violent solutions to their difficulties, for exam ple
simply seizing back lands which they believed to be their
own or turning to force when they believed themselves to
have been denied justice. Such would have been a recipe
for a m ultitude o f private wars. Desire to prevent disorder
helps to explain the concern with disseisins and the
provision of rem edies for default o f justice. T he king had to
ensure the availability of peaceful solutions, be it through
the p ro p er functioning of seignorial and local justice, or
through royal remedies.
Was there a deliberate attem pt to extend royal power?
The answer m ust be yes, at the very least in so far as royal
power had declined u n d er Stephen. In com parison with
the situation u n d er H enry I, or with H enry Iľ s perception
o f that situation, an answer is m ore difficult. Certainly, in
the early stages o f reform H enry m ade specific promises to
allow cases to go to lords’ courts, the Assize o f Clarendon
allowed the chattels of those convicted other than by
presentm ent to go to the traditional beneficiaries, and even
Glanvïll does n o t show royal justices as entirely hostile to
baronial jurisdiction.84 M oreover, many of the new writs,
one o f the best indications o f the thinking o f reform , reveal
that they were only to apply in cases w here lords had first
failed to do justice. It has been suggested that this
represented a working com prom ise between king and
lords. However, this may be to underestim ate the assert-
iveness o f the king and his counsellors. In the early 1160s
the barons feared that the king had instituted the decree
concerning default of justice because he thought it ‘would
be very advantageous to him self. After such a dispute all
m ust have been aware that the king could use the notion of
default of justice to justify the extension o f his own
jurisdiction.85

84. See above, p. 129, for the assize utrum; EHD, ii no. 24, c. 5; Glanvilł,
viii 11, Hall, pp. 102-3.
85. See above, p. 128; cf. Biancalana, ‘Legal reform s of H enry II’.

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So the king was assertive, w ithout having either an

overall plan for legal and judicial reform , or any precise
perception as to w here his general intentions and his
piecem eal actions m ight lead. T he provision of royal justice
took off in a way which no one at first could have expected.
Reforms intended initially to be o f lim ited scope, perhaps
associated with particular political circumstance, becam e
general and lasting rem edies.86 This snow-balling of reform
occurred in part because o f consum er dem and, particularly
in the area o f land-holding, in p art because o f the nature
of adm inistration and adm inistrators u n d er the Angevin
kings. I shall concentrate on legal and judicial aspects of
adm inistration, but the practices, ideas, and ideals o f the
king’s m en were driven by many forces, n o t least royal
financial needs arising from war.87

THE ADMINISTRATOR’S MENTALITY

(i) Richard of Ilchester
R ather than simply listing royal servants and their activities,
let us begin by looking in detail at one official. Richard of
Ilchester was born in the diocese o f Bath, quite possibly in
Sock Dennis, Somerset, close to Ilchester.88 His background
may well be a m inor knightly family, with connections to
the bishop o f Bath and to royal adm inistration. In addition,
he was a kinsm an o f G ilbert Foliot, the learned abbot o f
Gloucester, bishop o f H ereford and o f London. D uring
S tephen’s reign, Richard probably advanced through the
household o f the earls o f Gloucester. This led him into the
adm inistration o f H enry II, and already in the second year
o f H enry’s reign he was referred to as the king’s scribe. He
is prom inent in the lists o f those who witnessed the king’s

86. See above, p. 127, on decrees concerning disseisin possibly

associated with royal absences; also M. Cheney, ‘T he litigation
between Jo h n M arshal an d T hom as Becket in 1164: a p o in ter to the
origin o f novel disseisin?’, in J. A. Guy and H. G. Beale, eds, Law
and Social Change in British History (London, 1984), pp. 9-26.
87. See Holt, Magna Carta, ch. 2.
88. O n Richard, see K. N orgate in Dictionary of National Biography, C.
Duggan, ‘R ichard o f Ilchester, royal servant an d bish o p ’, TRHS 5th
Ser. 16 (1966), 1-21.

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charters. In 1162-63 he becam e archdeacon o f Poitiers,

later being appointed treasurer o f the same church.
A lthough from the point o f view of the church o f Poitiers
he was notable by his absence, Richard was clearly active in
the king’s service on the C ontinent. In England he was
generally with the king at the key royal centres of
W estminster, W inchester and Woodstock. H e u ndertook a
wide range o f duties, for exam ple being ‘keeper’ of the
vacant bishopric o f Lincoln from 1166-67. N ot surprisingly
for a well-rewarded royal servant and a kinsm an o f Gilbert
Foliot, he was prom inent on the king’s side in the Becket
dispute, even though he had probably served as a clerk in
the chancery u n d er Thomas. A lthough he seems n o t to
have incurred the personal animosity of the Becket party,
Richard was twice excom m unicated for his various services
to the king during the dispute.
In the early 1160s Richard was increasingly influential in
judicial affairs, and following the Assize o f Clarendon,
according to one account, ‘by the king’s o rder he exercised
the greatest power throughout E ngland’.89 H e served as an
itinerant justice in several shires in the south, the west, and
the midlands. Amongst the records o f his activities are
some brief m entions o f rolls belonging to him, perhaps an
early form o f eyre roll, perhaps simply records of
am ercem ents. His appointm ent as bishop o f W inchester in
1173 may well have curtailed his royal judicial activities,
although Ralph of Diceto recorded him as one o f three
bishops am ongst the five justices the king appointed in
1179.90
Typically o f H enry Iľ s great adm inistrators, Richard was
also p ro m in ent in financial affairs. H e may have taken a
leading role in the restoration or reform o f the N orm an
exchequer in 1176. Meanwhile in England, the Dialogue of
the Exchequer stated that Richard ‘is a great m an and should
n o t be busied except in im portant affairs’, and provided a
curious insight into the ‘im portant affairs’ o f Angevin
adm inistration by stating that one of R ichard’s duties was to
stop the treasurer from falling asleep; the som nolent
treasurer was, o f course, the author of the Dialogue, Richard

89. Lawsuits, no. 446; see also e.g. no. 417.

90. See above, p. 134.

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fitzNigel. Richard o f Ilchester’s other m ain concern at the

exchequer was record-keeping. H e had a true bureaucrat’s
love of ever-m ounting piles of parchm ent, and fitzNigel
described how Ilchester introduced a system whereby a
copy was kept o f every sum m ons sent to sheriffs concerning
their debts: ‘but as time w ent on, and the num ber of
debtors enorm ously increased so that a whole skin of
parchm ent was scarcely enough for a single summons, the
num ber of nam es and the labour involved becam e over-
powering, and the barons were satisfied, as o f old, with the
original sum m ons’.91
R ichard’s election to the see of W inchester was one o f six
to vacant bishoprics in 1173, elections which revealed
H enry’s intention of obtaining loyal bishops following the
Becket dispute. Richard contributed to the adjustm ents and
reconciliation between king and C hurch which followed
the Com prom ise of Avranches. H e also becam e involved in
m atters o f canonical interest, although there is no
indication that he had any academic training in canon law.
H e acted as a papal ju d g e delegate, and papal instructions
to him entered into canonical collections.
From the mid-1170s, Richard was very prom inent
am ongst the counsellors of H enry II. In mid-1174, the
justiciars were desperate to obtain H enry’s personal help in
putting down the rebellion in England, whereas he had so
far concentrated his energy on his C ontinental problems.
H ence they unanim ously agreed to send their message by
Richard, ‘knowing that he would speak to the king m uch
m ore familiarly, warmly and urgently than anyone else’.
Well before his death in 1188, therefore, Richard was at the
very heart o f the group o f m en who produced and
adm inistered the Angevin reforms. He was one of those
who could influence entry into the group, ensuring its
continuing close-knit quality. In c. 1181 he appeared with
Richard fitzNigel and Ranulf de Glanville in the charter
witness list which contains the first known reference to
H ubert Walter. R ichard’s illegitimate son H erb ert le Poer
enjoyed a successful career in the Church, becom ing a
canon o f Lincoln in 1167-68, archdeacon o f Canterbury in

91. Dialogus, pp. 27, 74.

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1175, and bishop o f Salisbury in 1194. But he, like his

father, also had a royal administrative career, probably
working at the exchequer u n d er H enry II, and acting as a
royal justice u n d er Richard I. Like the Angevin reforms, the
Angevin reform ers were reproducible.

(ii) H enry’s servants

We can get some indication o f the num bers o f this crucial
central group o f H enry’s servants. Whilst at least seventy
m en sat as justices in the exchequer between Michaelmas
1165 and H enry Iľ s death, an in n er core of fifteen provide
about two-thirds o f the recorded appearances o f nam ed
justices. These included the justiciars, R obert earl of
Leicester, Richard de Lucy and Ranulf de Glanville, and
o th er key royal servants such as fitzNigel, Ilchester, and
H u b ert Walter. Similarly, whilst we know o f eighty-four m en
who served H enry as itinerant justices, only eighteen
travelled on three or m ore eyres. Seven of these were also
am ongst the inner core o f fifteen in the exchequer court.92
Some m em bers of the in n er group o f H enry’s
adm inistrators h ad grown up together, many had close
personal connections, notably to the chief justiciar.93 To
such connections they m ight owe their entry to the group,
and thus b o u n d together, they were separated to only a
lim ited degree by any specializations within adm inistration.
R anulf de Glanville was a sheriff, a military leader, and a
justiciar. They saw themselves above all as the king’s
servants, and they brought similar m ethods to various areas
of adm inistration, most notably finance and justice, for
both of which the exchequer provided a focus.
Increasingly, their social origins were below the top ranks
of society, notably in knightly families.94 Yet such close ties
and such origins did not m ean that the circle lacked

92. Brand, Making, pp. 91-3.

93. See e.g. Cheney, Hubert Walter, pp. 19ff. for H u b ert an d Glanville;
Richard de Lucy may have been an o th er central individual, an d he,
like Richard o f Ilchester, had a son who was p ro m in en t am ongst
royal adm inistrators. Many h ad East Anglian connections, see e.g.
T u rn er, Judiciary, p. 105; note also p. 143 on leading figures
em erging from lesser adm inistrative families.
94. Turner, Judiciary, p. 63.

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broader perspectives, geographic and intellectual. These

m en com bined learning and practical experience, and
united the two in their work and their discussions. They
produced ever-increasing written records and the first
administrative manuals.
The form ation, intellectual and com m unal, of the circle
may have been associated with the Becket dispute. H enry
now h ad with him m en who could respond to the
intellectual challenge posed by the archbishop and his
supporters. A bout half o f the leading judicial figures were
clerics, and they expressed their own justifications for
serving the king.95 Some, like their erstwhile opponents in
Beckeťs camp, were educated in the learned laws, Roman
and canon. A lthough only three o f H enry’s justices, Jocelin
of Chichester, Geoffrey Ridel, and Godfrey de Lucy, bore
the title ‘m aster’ which links them to lengthy study at the
schools, others may have studied the learned laws m ore
rudim entarily, whilst judicial activities brought still m ore,
like Richard o f Ilchester, into contact with such law. The
influence o f the learned laws upon reform was not through
academic study and then through careful application of
learned rem edies. Rather, elem ents o f legal learning
helped to stimulate and shape thinking and writing about
law and the adm inistration o f justice. For example, in
Glanvill, it is n o t the majority of the procedure and
substantive law covered but the structure o f argum ents, and
some o f the vocabulary and rhetoric, which shows the
influence of Roman law.96 Likewise, whilst people could
already separate notions o f being seised o f land and having
a right to it, from c. 1140 such notions were refined by
churchm en bringing into m ore frequent use the learned
law distinction between ‘possession’ and ‘property’. Such
ideas penetrated the circles which constructed the new
measures concerning land-holding, and helped to produce
a clearer conceptual distinction between seisin and right.97

95. See e.g. Dialogus, p. 1; however, H ow den criticized H enry II in the

context o f the Becket dispute; i 241.
96. Glanvill, pp. xxxvi-xl.
97. See above, p. 88, below, pp. 186, 198; M. Cheney, ‘Possessio/proprietas
in ecclesiastical courts in mid-twelfth-century E ngland’, in G arnett
and H udson, Law and Government, pp. 245-54; Lawsuits, no. 641;
H udson, Land, Law, and Lordship, pp. 267-8.

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W ithin the circle of royal servants, discussion and debate

concerning m atters of law, justice, and adm inistration
furthered regularization and standardization. They may lie
beh in d the developm ent o f certain principles which
characterize the reforms, for exam ple the desire to create
swifter actions which avoided the continual use o f essoins,
and also perhaps a desire for alternatives to trial by battle.
More generally, debate and experience may have produced
an increasingly aggressive attitude to powers and privileges
which interfered in regular royal adm inistration. Angevin
royal servants seem to have had an u n precedented desire
for uniform ity in the adm inistration of the country. The
king was responsible for all his people - or at least all his
free m en - u n d er whomsoever’s lordship they lived.
According to Richard fitzNigel, ‘God has com m itted [to the
king] the care o f all his subjects alike’.98 Eyres for the first
time covered the whole country. Royal courts sat for
prolonged sessions, whereas the older courts had in general
m et only for one day. This fu rth er increased the likelihood
th at regular participants in the royal courts would develop
a m ore specialized expertise and greater routine in their
activities.99 M oreover, the role of the royal justices
themselves within court was probably changing. W hereas
cases traditionally had been decided by the suitors of a
court, with the justices simply presiding over that court,
from 1176 royal justices on eyre seem to have taken a m ore
active role either in actually making the judgm ents or in
guiding recognitions and juries to their verdicts. As king’s
m en, knowledgeable in the practices o f the king’s court,
they would ensure that royal custom was applied in the
localities.100 Such practices and attitudes helped to ensure
that the law becam e com m on to the kingdom.

(Hi) Literature and ideals

O ur clearest indications o f the views o f this circle o f king’s
m en come from the two administrative manuals it produced.
98.Dialogus, p. 101, preceding the passage on n atural enem ies cited
below, p. 152.
9 9.See Lincs., no. 764 for an early m ention to ‘j ustices learn ed in law’.
100. B rand, Making, pp. 77-102, an d the com m ents o f H udson, Land,
Law, and Lordship, pp. 266-7; see below, pp. 179, 207.

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Richard fitzNigel com posed the Dialogue of the Exchequer in

the late 1170s. A decade later an anonym ous writer,
possibly a clerk attached to the justiciar Ranulf de Glanville
or to R anulf s protégé H ubert Walter, produced a Treatise
on the Laws and Customs of the Kingdom of England, commonly
referred to as Glanvill101 T he Dialogue makes most obvious
their devotion to the king. The noble king’s ‘great deeds
win the highest praise’. In particular he is com m itted to
peace: ‘from the very beginning o f his rule he applied his
whole m ind to crushing rebels and m alcontents by all
possible means, and sealing up in m en’s hearts the treasure of
peace and good faith.’ Following the rebellion of 1173-74,
‘when the kingdom was saved from ship-wreck and peace
restored, the king again strove to renew the times o f his
grandfather’. To do so, he chose six circuits o f itinerant
justices, to ‘restore the rights which had elapsed. They, giving
audience in each county, and doing full justice to those
who considered themselves w ronged, saved the poor both
money and labour.’ A ccording to Richard, H enry’s servants
were ‘alike in their zeal for the king’s advantage, when
justice perm its it’. A nd no wonder, for H enry and his
servants’ prom otion of each other was also self-promotion:
‘the greatest o f earthly princes, the renow ned king o f the
English, H enry II, is always striving to augm ent the dignities
o f those who serve him, knowing full well that the benefits
conferred on his servants purchase glory for his own nam e,
by titles of undying fam e.’ Indeed, as m en who owed their
great position almost solely to royal favour and their
connections within the circle of the king’s servants, they
may well have exceeded even the king him self in their
insistence on royal rights, and perhaps in antagonism to the
nobility; fitzNigel, at least, referred to lords as the ‘natural
enem ies’ of their m en, who in turn were to be protected by
the king.102
101. Glanvill, pp. xxx-xxxiii.
102. Quotations: Dialogus, pp. 9-10; 75; 77, 8; 61; 101. See also pp. 14, 26 on
the royal seal; 27-8; 117 on the noble inspiration of legislation; 113 for
a rather apologetic tone; 120 on royal kindness. O n the protection of
the weak against the powerful, see also GlamΛĶ Prologue, cited below,
and viii 9, p. 82 concerning heirs facing violence from their lords.
Hyams, King, Lords, and Peasants, p. 261; TAC, esp. vii 1, Tardif, p. 7;
such principles are more p ro m in en t in the Très Ancien Coutumier
than in Glanvill.

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Such ideological stances are generally less clear in the

o th er great m anual, Glanvill, except in its Prologue. This
opens with the words ‘Royal Power’, and, echoing
Ju stin ian ’s Institutes, states that ‘royal power n o t only must
be furnished with arms against rebels and peoples rising up
against the king and kingdom , b u t it is also fitting that it
should be adorned with laws for ruling subject and peaceful
peoples’. After praising H enry’s victories, it goes on to
proclaim that

n o r is there any dispute how justly and how mercifully, how

prudently he, who is the au th o r and lover o f peace, has
behaved towards his subjects in time o f peace, for 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 o f justice o r digress in any respect from the way of truth.
For there, indeed, a poor man is not oppressed by the power of
his adversary, n o r does favour o r partiality drive any m an away
from the threshold of judgm ent.103

Later in the Prologue, the writer cites the Rom an maxim

that ‘what pleases the prince has the force o f law’. T he rest
o f the text is n o t taken up with such grandiloquence,
although m ention is m ade o f the lord king’s crown and
dignity, the lord king’s mercy, the benefits o f the lord
king’s legislation, the absence of any equal, let alone
superior, of the lord king, and the superiority o f fidelity to
the lord king even over the hom age b o n d .104
However, what the Treatise best reveals are the attitudes
and atm osphere which increased royal control o f justice
and law.105 Whilst com pared with the Dialogue the au th o r’s
tone is n o t didactic, and his first person pedagogical
com m ent very limited, he was correct in ju dging that his
Treatise’s contents could most usefully be preserved in
writing. No fewer than nine m anuscripts o f the text survive
which probably date from before 1215.106 At least one
103. Glanvill, Prologue, Hall, pp. 1-2.
104. Glanvill, i 1, ii 7, ii 19, vii 10, ix 1, x 1, xii 21, xii 22, Hall, pp. 2, 28,
36, 84, 104, 116, 146, 147; cf. vii 17, p. 91 on the king n o t wishing
to infringe the rights o f others.
105. See also below, ch. 8.
106. Hall, pp. viii-ix, lxv-lxx; in contrast, no twelfth-century m anuscripts
o f the Dialogus survive.

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o th er m ust have existed, for none o f our m anuscripts seems

to be the original, and it is m ost likely that others too have
been lost. We have then a text which rapidly spread
am ongst the court circle, even the possibility that m ost of
the regular royal justices had a copy. The quality of the
texts varies. T he existence o f some m anuscripts of high
quality, even decorated, suggests the prestige which was
attached to the text. O thers are sloppy, such as that copied
by the royal justice and chronicler Roger o f Howden, which
may indicate rapid production and considerable desire for
working texts. The content and form o f the texts also shows
some variation, again suggesting practical use. Probably
within a decade o f the work’s com pletion, a slightly revised
version had been m ade and was being copied. Many of the
revisions are purely stylistic, although some are intended
for legal clarification and others detract from the work.
Most significant, though, are the attem pts to improve the
clarity o f the work by dividing it into books and chapters.
These eased cross-referencing and made the text m ore readily
accessible, thereby producing a m ore user-friendly manual.
Clearly the text was being used and com m ented upon, and
this process is reflected in the early ‘glossing’ of the
manuscripts, the writing of comments in the margin, be they
simple cross references or, m ore rarely, critical comments.107
The possession and study o f a legal m anual by num erous
justices even by 1200, and certainly by 1210 would have
further standardized the adm inistration o f justice.108 This
view is reinforced by another feature of the Tractatus. At
various points diverse opinions are m entioned, and some of
the early m anuscripts at these places give nam es either in
the m argin, or inter-lineated in the text, or within the text
itself. The num ber o f nam es given varies markedly between
manuscripts, b u t the nam es themselves are generally
consistent,109 and it seems quite plausible that the author
him self included such nam es in the m argin o f his text.

107. O n glosses and divisions o f the text, Hall, pp. xlvii-liv.

108. If some m anuscripts o f Glanvill, ex tant or now lost, were ow ned or
read by people outside the royal circle, such a reception o f royal
ideas on law and justice could also have been a force for
standardization.
109. Hall, p. xliii n. 4 suggests th a t the on e exception (vii 3) is an error,
presum ably caused by scribal confusion.

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They give us our best indication o f the circle o f justices for

whom the text was produced. All except H enry Iľ s justiciar
Richard de Lucy were still alive. O f the rem aining six, one
appears in four places, H ubert Walter, one in two places,
O sbert fitzHervey. The rest appear only once. They include
H enry Iľ s justiciar Ranulf de Glanville, and all the others
were both itinerant and central justices. The nam es are
those o f the authorities holding those opinions. Whilst
when m ore than one authority is cited, the point is left
unresolved, it is nevertheless clear th at certain figures were
seen as lending weight to an opinion, and were worth
nam ing in a m anuscript.110 The same m en m ust have been
those whose opinions lay behind increasing standardization
o f procedure.
T he texts o f Glanυill and the Dialogue confirm that the
in n er circle o f king’s m en debated certain points o f law
and procedure. O ne m anuscript o f Glanυill even includes
in its m argin at appropriate places in red the word
Distinctio, and abbreviations for quaestio and solutio (that is,
question and answer). These are terms familiar from the
academic Schools, and re‫־‬affirm Peter o f Blois’ statem ent
that in H enry Iľ s court it was school every day.111 In its
assimilation and com parison o f materials, its emphasis
u p o n classification, its production o f new genres o f writing,
and its encouragem ent o f personal advancem ent through
specialized knowledge, Angevin reform was a practical
m anifestation o f the ‘Twelfth-century Renaissance’.

CONCLUSIONS
Royal officials according to Peter of Blois were like locusts: as
soon as some left, others arrived.112 But how did H enry II

110. Hall, pp. xliii-xlvii. T he Dialogue similarly gives evidence o f debate

in the exchequer, b u t R ichard is m uch readier to reject one
opinion, to back another; e.g. Dialogus, p. 121. Such contrasting of
opinions, n o t always with resolution, was o f course a feature of
academ ic study in the twelfth century, e.g. in A belard’s Sic et Non
an d G ratian’s Decretum.
111.Balliol College, O xford, ms. 350, e.g. ff. 51v, 52, 54v; J. C.
R obertson, ed., Materials for the History of Thomas Becket (7 vols,
L ondon, 1875-85), vii 573.
112. T u rn er, Judiciary, p. 5.

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get away with inflicting such a plague? Major measures were

introduced, or so at least their texts tell us, with the counsel
and consent o f the great m en o f the realm. Many o f the
reforms discussed above, for exam ple in record-keeping,
would anyway have been uncontroversial. O thers were
popular, designedly so in some cases such as the grand
assize. In certain instances, like novel disseisin, a m easure
which may have constricted a m an in his position as lord
would help him in his position as tenant. Yet there was
resistance to at least some of the reforms, resistance which
did n o t stop the process. Part o f the explanation m ust
simply lie in the am ount of authority and force upon which
the king could draw. O pposition which had arisen for
various reasons in 1173-74 was effectively crushed. Royal
power is not, however, the only answer. Kings pulled back
from particularly unpopular measures, or adapted them to
their own profit. Privileges were granted to individuals, or,
notably in the case of econom ic regulation, reform s were
no longer enforced but used to raise m oney through the
sale o f licences to avoid the regulations.
There is also another, m ore fundam ental reason which
may be lost in hindsight. Men at the time can only have
noticed the reform s in very piecem eal fashion. Even from
the point o f view of royal adm inistrators, the reforms
snow-balled in a n o t entirely intended fashion and certainly
produced u n in ten d ed results. O thers can have had still less
of an idea o f what was going on. Soon procedures which
had been new seem to have been accepted as part of
custom. W hen protest did arise, most notably in 1215, the
protests concerning royal jurisdiction focused n o t on the
routinized measures which were the products o f Angevin
reform but the continuing personal im pact o f the king and
his officials upon justice.

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 Chapter 6

CRIME AND THE ANGEVIN

REFORMS

Pleas are eith er crim inal or civil. Some crim inal pleas belong
to the crown o f the lord king, and some to the sheriffs of
counties.
Glanvill, i 1.

A nd concerning those who are taken by the oath o f this

Assize, none are to have court or justice or chattels except the
lord king in his court in the presence o f his justices, and the
lord king will have all their chattels. C oncerning those who are
taken o th er than by this oath, let it be as is accustom ed and
proper.
Assize o f C larendon, c. 5

In 1166 H enry II set the country to work for the

m aintenance o f the peace: ‘And in the several counties
w here there are no gaols, let such be m ade in a borough or
some castle of the king at the king’s expense.’1 Words were
backed by money, royal money. Acting prim arily through
the eyre, the regim e sought to eradicate those whom the
usual m ethods had failed to touch, most explicitly the
notorious offender.2 Developments epitomize the assertion
o f royal authority, the modification of procedure, and the
processes o f classification which, as we have ju st seen,
characterize Angevin reform.

1. Assize o f C larendon, c. 7, EHD, ii no. 24. Gaols were used to hold

prisoners awaiting trial, n o t for custody as a punishm ent; see above,
p. 56.
2. For developm ents in p ro o f in canon law relating to notoriety, see
e.g. J. A. Brundage, Medieval Canon Law (London, 1995), pp. 94-5,
144-51.

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However, whilst the late twelfth century was a period of

im portant change, there were also very notable
continuities. It was n o t ju st that there were precedents for
the new royal procedures. Rather, various old m ethods
rem ained of crucial im portance, as indeed is suggested by
clause five o f the Assize of C larendon quoted above.
Frankpledge, the sheriff s tourn, hue and cry, and appeal
all rem ained central to the prevention and prosecution of
crime. Local arrangem ents and actions rem ained the most
effective way o f dealing with w rongdoing.3 The rapid
capture o f the w rongdoer rem ained essential if there was to
be m uch chance o f a successful prosecution; otherwise the
system rem ained, at least in our eyes, notably inefficient at
catching and punishing offenders.4 T he options open to a
crim inal - capture and the answering of accusations, taking
sanctuary, or simple flight - rem ained the same.
Meanwhile, victims still sought physical and m onetary
recom pense for injury and dishonour. Types o f wrongdoing
and the motives o f w rongdoers - vengeance, drunkenness,
and so on - underw ent no revolution.5 Almost all killings
were by m en, often acting with accomplices, and most
victims too were m ale.6 A lthough there was some gentry
violence, m ost killers and other criminals were poor, as
were their victims.7 M uch trouble could be caused by
difficult individuals or families.8 B order areas were

3. See PKJ, iii no. 703 for an instance w here the crim inal takes the
h o rn which was being used to sound the pursuit. J. B. Given, Soάety
and Homicide in Thirteenth-Century England (Stanford, CA, 1977), esp.
pp. 172-3, suggests th at in the th irteen th century hom icide rates
ten d ed to be lower in areas of strong lordship an d nucleated
settlem ent.
4. E.g. PKJ, ii nos 620, 751; for m ore qualified com m ent, see below, p.
184.
5. See e.g. H. E. Butler, ed. an d trans, The Chronicle of Jocelin of
Brakelond (Edinburgh, 1949), pp. 92-3 for a gathering degenerating
into a brawl with w ounding; Lincs., no. 773 has a barbarity which
suggests a feud; and the ju d g m e n t may suggest some sympathy on
the p art o f the court. M ore generally, see Given, Homicide.
6. Given, Homicide, pp. 41, 48. G roups accused o f crimes: e.g. PKJ, iii
no. 761; iv nos 3444-8.
7. See e.g. H. Thom as, Vassals, Heiresses, Crusaders, and Thugs
(Philadelphia, PA, 1993), pp. 61, 65; Given, Homicide, p. 69.
8. For possible exam ples see CRR, i 63 (Giffards), PKJ, iii no. 698.

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especially dangerous, and night rem ained a time when

crime was particularly feared: according to Bracton, journeys
to m arket should be m ade ‘by day and n o t at night,
because o f am bushes and the attacks of robbers’.9

AILWARD’S CASE
In all these aspects, the picture provided by the new and
m uch m ore extensive evidence o f the royal court records is
generally consistent with that o f earlier and contem porary
narrative sources. An account derived from the n o t entirely
reliable evidence o f Becket miracle stories illustrates such
continuity, as well as other them es of this chapter.10
Ailward was a peasant in the royal m anor of Westoning. His
involvement in w rongdoing was m ade unusual n o t only by
St Thom as’s belated protection of him, but also by the fact
that he was baptized on W hitsun eve. According to popular
opinion, this m ade him im m une from sinking in water or
being b u rn t by fire; ordeal by water, therefore, would
always prove him guilty, ordeal by h o t iron prove him
innocent. Early in the 1170s Ailward was owed a penny by
his neighbour, but the neighbour refused his dem ands for
payment, p retending that he could n o t afford to pay. O ne
feast day, Ailward showed appropriate goodwill; he asked
for half of the debt so that he could go to drink some beer,
bu t would allow the neighbour to keep the other half. The
debtor refused, Ailward grew angry, drunk, and vengeful.
He left the tavern and broke into the neig h b o u r’s house.
As security for his debt, he took away the padlock which
secured the house, a whetstone, a gimlet, and some gloves.
However, the d eb to r’s children saw the break-in and
inform ed their father. H e pursued Ailward, tore the
w hetstone from him and

la u n c h e d it against his h e ad , thus b re ak in g th e w h etstone on

his h e a d a n d his h e a d w ith th e w h etstone. D raw ing also th e
sh a rp knife th a t h e was carrying, h e p ie rc e d his arm , g o t th e
b e tte r o f him a n d took th e m iserable m an in fetters as a thief,
robber, an d burglar to the house into which h e h a d broken. . . .

9. Bracton, f. 235b, T horne, iii 199; for nocturnal offences, see PKJ, ii
nos 734, 735, 739. For borders, e.g. PKJ, i pp. 132-3.
10. Lawsuits, no. 471; I have conflated the two versions of the story.

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A crow d g a th e re d to g e th e r with Fulk th e reeve who, since

th e th e ft o f goods w orth o n e p e n n y does n o t justify m u tilation,
suggested au g m e n tin g th e im p o rta n c e o f th e th e ft by
p re te n d in g th a t m o re goods h a d b e e n stolen. T his was d o n e
a n d beside th e fe tte re d m a n was p laced a package c o n tain in g
hides, wool, lin en cloth, a g arm en t, a n d a . . . p ru n in g k n ife.11

Ailward and the goods were brought before the sheriff and
the county. However, ju d g m en t was suspended for a
m onth, and he was kept in public custody in Bedford until
finally he was taken to a m eeting of judges at Leighton
Buzzard. H e denied theft, saying that he had taken only the
whetstone and gloves, and these as security for a debt.
Ailward asked either to fight a judicial com bat with his
accuser or to undergo the ordeal of fire. However, at the
wish of Fulk the reeve, who had received an ox for that
purpose, it was adjudged that Ailward should undergo the
ordeal of water and thus - on account o f his baptism on
W hitsun eve - have no way of escape. After another m onth
in prison in Bedford, he failed the ordeal of water, and
‘was led away to the place of execution’ w here ‘a not
inconsiderable crowd of people had gathered to see the
spectacle, w hether com pelled by public authority or moved
by curiosity’. Ailward was m utilated, his accuser and the
royal reeve putting out his eyes and cutting off his testicles.
Fortunately for Ailward, his devotion to St Thom as at
length restored him to wholeness, although his new
testicles were small and one o f his eyes no longer
m ulticoloured but black.

CLASSIFICATION
(i) Crimes, pleas of the crown, and febnies
In chapter 3, we noted the absence o f a category called
crim e in Anglo-Norman England, but in chapter 5 we saw
that the Angevin reforms involved a tendency to
classification.12 As the quotation at the start of this chapter
indicates, Glanυill employed the categories crim inal and
civil, which he adopted from Roman law and which are

11. Cf. LHP, 22.1, Downer, p. 124 on accusers inflating charges.

12. See above, pp. 56, 142-56.

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comfortingly familiar to us. So too are some o f the

characteristics he attributed to crim inal pleas: they are
against the king and his peace, and are punished. However,
his emphasis in fact differs from ours, in particular with
regard to the bringing o f private appeals, as opposed to
crown prosecutions, for crimes. N or do plea rolls use the
term crim e in o rder to categorize cases. In Glanυill and
elsewhere, two other terms are preferred, pleas o f the
crown and felony.
According to Glanvill,

T h e follow ing [crim inal pleas] b e lo n g to th e crow n o f th e lo rd

king: . . . the crim e w hich in th e [R om an] laws is called
lèse-majesté, nam ely th e killing o r betrayal o f th e lo rd king o r o f
th e kin g d o m o r army; fra u d u le n t h id in g o f trea su re trove; th e
p lea o f b rea ch o f th e p eace o f th e lo rd king; hom icide; arson;
robbery; rape; th e crim e o f forgery a n d an y th in g sim ilar; all
these are p u n ish e d by d e a th o r cu ttin g off o f lim bs. T h e crim e
o f th e ft w hich p ertain s to sheriffs a n d is p le a d e d a n d d ecid e d
in co u n ties is n o t in clu d ed .

As the exclusion o f thefts suggests, for Glanvill n o t all

crimes - in his term s or ours - were crown pleas. Moreover,
he defined certain non-crim inal cases as ‘pleas pertaining
to [the king’s] crown and dignity’, for exam ple land cases
com ing to royal courts in the context of the assize utrum,
pleas concerning advowsons, and harm to royal tenem ents,
ways, or cities.13 Similarly pleas o f the crown were a
category used in plea rolls,14 but whilst all cases o f violence
and robbery appear as pleas of the crown, far from all pleas
of the crown were concerned with violence and robbery.
Rather, they were - as their title suggests - m atters which
touched the royal interests particularly closely.
Felony had been a term used to denote disloyalty - the
nam e of the traitor in the Song of Roland, G anelon, rhymed
nicely with felon. However, probably in the time of H enry
II, the word begins to appear with an additional m eaning.
13. Glanvill, i 2, xii 22, iv 13-14, ix 11, Hall, pp. 3-4, 146-7, 52-3, 114.
T he N orm an Très Anden Couŧumier does n o t separate crim inal pleas
in the way Glanvill did; TAC, liii, lxx, Tardif, pp. 43, 64—5. N ote also
A. H arding, ed., The Roll of the Shropshire Eyre o f 1256 (Selden Soc.,
96, 1981), p. xlii.
14. N ote Lincs., no. 765.

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It is n o t used in the Assize o f C larendon, b u t was employed

in 1176 in the Assize o f N ortham pton, m eaning a
particularly serious wrong. T he association o f the word with
this category o f offences probably stem m ed from the view
that serious offenders were breaching their oath o f loyalty
to the king, and any prom ise they had m ade n o t to com m it
or to aid in the commission o f such wrongs. Such an oath,
as noted earlier, was probably sworn in the Anglo-Norman
period and almost certainly dates back to the Anglo-Saxon.
Q uite why the word felony came into use in its new sense
specifically in H enry Iľ s reign rem ains uncertain, b u t it is
notable that the Assize o f N ortham pton also ordered the
taking o f oaths o f fealty from all who wished to rem ain
within the realm .15
By the early thirteenth century, the criteria o f a felony
were fairly clear:

(i) A felony is a crim e w hich can be p ro sec u ted by an a p p eal

. . . (ii) T h e fe lo n ’s lands go to his lo rd o r to th e king a n d his
chattels are confiscated, (iii) T h e felon forfeits life or m em ber,
(iv) If a m a n accused o f felony flies, h e can b e outlaw ed.16

At the time o f Glanvill too, these criteria seem to have

applied. W riting o f treason, he stated that ‘if the ordeal
convicts him o f this kind of crime, then ju d g m en t both as
to his life and as to his limbs depends on royal clemency,
as in o th er pleas of felony’.17 Less clear is w hether by
GlanvilΓs time there was a set list of felonies. In the
thirteenth century the following were so categorized:
hom icide, be it secretive m urder or simple killing, arson,
robbery, rape, m aim ing, w o u n d in g , burglary, la rc en y .18
N o t all o f these were explicitly m en tio n ed as felonies by
Glanvill, and only the first three appear by nam e in the

15. EHD, ii 25, c. 6. U nderstanding o f the link between serious offences

an d the oath to the king has been transform ed by Patrick W ormald,
see above, p. 30. Cf. S. F. C. Milsom, Historical Foundations of the
Common Law (2nd edn, L ondon, 1981), p. 406; also Pollock and
Maitland, ii 465. T he connection may also be related to the fact that
the lands o f e ith er type o f felon retu rn ed to his lord.
16. Pollock an d M aitland, ii 466.
17. Glanvill, xiv 1, Hall, p. 171.
18. Pollock an d M aitland, ii 470.

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Assize of N ortham pton, together with forgery and theft.19

Theft indeed exemplifies the problem s o f categorization.
The Assizes o f Clarendon and N ortham pton included theft
as one of the serious offences to be presented by juries, and
N ortham pton by im plication included it am ongst felonies,
bu t Glanvïll seems less certain o f its place as a crown plea.
He insisted that thefts which belong to the sheriff were to
be distinguished from his other crim inal pleas which
belong to the Crown. Meanwhile, distinctions between theft
and robbery may have rem ained unclear in many eyes.20
Overall, the im pression is of various attem pts at
categorization based on various criteria. The one constant
emphasis is upon the seriousness of the offence. Whilst a
w ound constituted a felony, a scratch did not, and the
am ount stolen m ight make theft a plea of the crown.21
However, oth er criteria com plicate the situation. Some were
procedural: rape was not included in the Assizes perhaps
because it was n o t considered suitable for presentm ent.22
O thers were jurisdictional: thefts to be heard before the
sheriff were n o t pleas of the crown. O thers still were a
m atter of royal interest: hence the wide variety o f crown
pleas heard by the eyre. The intellectual elegance of
G lanvilľs initial categorization is a sign o f the climate of

19. EHD, ii no. 25. O n forgery, see Pollock an d M aitland, ii 504, 540.
O n presentm ents m ade in the p eriod 1166-76 for offences o th er
than those specified in the surviving texts from C larendon and
N ortham pton, see N. D. H u rn ard , ‘T he ju ry of p resen tm en t an d the
Assize o f C laren d o n ’, EHR 56 (1941), 401.
20. EHD, ii nos 24, 25; see above, p. 159 for Λilward’s case. Milsom,
Historical Foundations, p. 286 suggests th at if Glanvïll h ad conceived
o f writing a list o f felonies, h e would have included theft, at least
above a certain am ount. N ote also Dialogus, pp. 102-3. Cf. TAC, lix,
Tardif, p. 50 attributes thefts to lords in Norm andy. In H enry I ll’s
reign, thefts are very p ro m in en t in the rolls o f commissions o f gaol
delivery. It is conceivable th a t such commissions took over
jurisdiction previously exercised by sheriffs. (I owe this p o in t to Dan
Klerman.)
21. See Bracton, f. 144, 151b, T h o m e , ii 407, 427-8; also Pollock and
M aiüand, ii 468-9; above, p. 160 for Ailwarďs case; Assize of
C larendon, c. 2, EHD, ii no. 24; F. W. M aitland, ed., Pleas of the
Crown for the County o f Gloucester (London, 1884), no. 20.
22. R. D. G root, ‘T he crim e o f rape temp. Richard I and Jo h n ’,Journal of
Legal History 9 (1988), 323-34.

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reform , n o t o f its substantive achievem ent, but nevertheless

late in the twelfth century we are seeing the beginning of
com m on law classification.

(ii) Wrongs and trespasses

After m entioning the crime o f theft, Glanυill then listed
certain o th er offences over which lords or sheriffs had
jurisdiction: ‘brawling, beatings, and even w ounding unless
the accuser states in his claim that there has been a breach
o f the peace o f the lord king.’23 Such offences would later
have been term ed trespasses. Trespass is familiar to us as a
rather archaic-sounding word for sin or wrong, ‘Forgive us
our trespasses’, and this general usage also existed
throughout the m iddle ages. However, it is also one of the
first legal words th at m ost m odern English children
encounter, on signs stating that ‘Trespassers will be
prosecuted’ or shortened to ‘Trespassers will’ outside W oľs
house in Winnie the Pooh. T he separation of the legal
category from the general word began late in our period,
and trespass is n o t a term used in any technical sense by
Glanυill or the early royal court rolls. Rather it m eant
wrongs in general: every felony was a trespass, though not
every trespass a felony.24 In the later m iddle ages, too, legal
usage was somewhat vague: even in its technical sense,
trespass denoted the residue o f an undifferentiated
category of wrongs. This residuary nature helps to explain
why it is so hard to treat the ‘em ergence’ o f the legal
category. Rather than emerging trespass remained, with the
divergence of other clearer categories, such as felony,
providing whatever bounds it had.
T here was no clear jurisdictional distinction character-
izing trespasses in our period or beyond. However,
beginning with the Angevin reforms, there em erged an
action o f trespass heard in the royal courts. A long tradition
existed of kings hearing their people’s com plaints of
wrongs, and then either prom oting a settlem ent or
ordering that the wrong be corrected. T he instruction to
this effect m ight be oral or by writ. Mostnotable in this

23. Glanυill, i 2, Hall, p. 4.

24. See Bracton, f. 119b, T h o m e , ii 337.

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context are a considerable variety o f writs which we see

being issued by the end o f the twelfth century, asking the
addressee to show why (ostensurus quare) they had taken a
certain action. After 1215 a lim ited num ber o f these would
develop into ‘writs o f trespass’. Again, we see n o t so m uch
the em ergence o f a category but the reduction o f a
previously less differentiated grouping. But how did the
reduction, and the routinization o f the procedure, occur?
How did there com e to be a so-called action o f trespass in
the king’s court? Rather as ad hoc decisions had always been
m ade about w hether to hear individual com plaints, so now
the royal court m ust have selected certain types of wrong
which it would handle on a regular basis.25 T he two key
elem ents seem to have been the threat to peace and the
contem pt of the king’s special orders and protections.26
The allegation o f breach o f the peace, o r o f the use of
force and arms, could develop into a form al m eans
whereby many wrongs were brought before the king’s
court. This broadened use o f trespass was to be very
significant, particularly as the th irteen th century
progressed. Extending royal jurisdiction beyond the few
serious crimes addressed by the Assizes and Glanvill, it led
to the routine treatm ent in the king’s court o f a wide range
o f m inor injuries, a developm ent which has been described
as ‘com parable in significance to H enry Iľ s introduction of
new actions protecting lan d ’.27
Yet within our period and beyond, it rem ained lords and
sheriffs who had jurisdiction over a wide variety o f the
wrongs which in later com m on law would be categorized as
trespasses. In addition to Glanvill m entioning brawling,
beatings and woundings which did n o t lead to claims of
breach o f the king’s peace, o th er records similarly show
lords dealing with a wide variety of wrongs, for exam ple
insults and m inor scuffles.28 If we had sufficient evidence to

25. S. F. C. Milsom, ‘Trespass from Henry III to Edward III’ in his Studies
in the History o f the Common Law (L ondon, 1985), p. 1; see also
above, p. 28.
26. Shropshire, pp. xlviii-xlix, Iviii.
27. Shropshire, p. liv.
28. Glanvill, i 2, Hall, p. 4; see also Bracton, f. 154b-155, T h o m e , ii
436-7; Pollock an d M aitland, ii 519-20 on the th irteen th century;
Milsom, Historical Foundations, pp. 286-7.

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analyse these types o f cases and still lesser ones, the pattern
of continuity through the Angevin reform s would be
re-emphasized. Whilst reform led to changes in jurisdiction
and procedure for the m ost serious cases, it had m uch less
o f an im pact on the most num erous. Moreover, trespass -
even when dealt with in the royal court - provided
continuity in settlem ent m ethod. It gave the plaintiff a
m eans whereby to exact punishm ent upon the offender
and to extract com pensation from him, both for material
loss and for the shame or dishonour suffered. It thus
clearly resembles the settlem ents discussed in chapter 3,
and the continuing desire for com pensation will rem ain a
them e o f this chapter.

THE CONTINUATION OF TRADITIONAL METHODS

Continuity is also apparent throughout our period and
beyond in the traditional m ethods o f peace-keeping and of
catching and prosecuting wrongdoers. Indeed, these were
sometimes re-em phasized by kings. T he Assize of
C larendon sought to ensure that w anderers be brought
u n d er surety whenever they entered a borough and that
frankpledge function properly, whilst the decree o f 1195
em phasized the obligation to raise the hue and cry.29
Offenders caught red-handed continued to be summarily
tried and executed, although such acts should be reported
to the eyre, and were then open to investigation. Actions
relating to theft continued to rely on a tracing o f the
possession o f the goods. Thus a 1201 eyre roll records that

R oger C o rb in , asked how h e a cq u ired a c e rta in cloak a n d

n ap k in w hich W illiam le B u rg u in in says w ere stolen fro m him
to g e th e r w ith o th e r things w hen his h o u se was b ro k e n in to
a n d b u rg led , com es a n d says th a t h e b o u g h t th e cloak a n d
n ap k in fro m R o b e rt Triz . . . . A nd h e vouches R o b ert Triz to
w arranty, a n d if h e does n o t wish to b e his w a rra n to r th e re in ,
h e offers to prove against h im as th e c o u rt shall adjudge.
R o b ert Triz com es a n d den ies a lto g e th e r th a t h e ever sold th a t
cloak o r n ap k in to him . A n d h e says th a t o n a n o th e r occasion
in th e full shire R oger h a d a p p ea led h im th e re o f a n d

29. EHD, ii no. 24, cc. 9, 15-16; SSC, p. 258.

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afterw ards to o k this back a n d v o u c h ed a n o th e r, W illiam son o f

R ichard, a n d th e w hole shire bears witness to this. A nd
because R oger was fo u n d seised o f th e stolen goods a n d varied
in his sta te m e n t a n d in vo u ch in g his w arran to r, it is ad ju d g e d
th a t h e b e h an g e d . L et R o b e rt T riz b e q u it th e re in . W illiam
son o f R ichard outlaw ed fo r this.30

As for prosecution o f o th er serious crimes, Glanvill

distinguished two types o f procedure.31 Historians o f the
Angevin reform s have tended to concentrate on
presentm ent, w here no specific accuser appeared and the
accusation was based on public notoriety. However, the
oth er type, in which a specific accuser appeared and the
case was prosecuted by appeal, continued to be m uch the
m ore com m on.32 Ailwarďs case provides one instance, but
m ore can be revealed by assembling the various stages of
an appeal from the plea rolls. Much rem ained similar to
the procedure sketched in chapter 3, and I therefore
em phasize the new elements, in particular the co ro n er’s
role.
Let us im agine a case o f w ounding in breach o f the
king’s peace, which along with robbery, rape, hom icide and
assault was the most com m on subject o f appeal.33 It was the
victim’s duty to raise the hue and cry,34 aim ing to obtain
help from his o r her own and neighbouring townships in
30. PKJ, ii no. 741; see also no. 347; Pollock an d M aitland, ii 157-66;
Dialogus, pp. 102-3; Glanvill, x 15-17, Hall, pp. 130-2; Bracton, ff.
150b-2, T h o rn e, ii 425-9.
31. Glanvill, xiv 1, H all p. 171.
32. See e.g. Lincs. O n appeals by approvers, see above, p. 75, C. A. F.
Meekings, ed., Crown Pleas of the Wiltshire Eyre, 1249 (Wilts.
A rchaeological an d N atural History Soc., Record Branch, 16, 1961),
pp. 91-2; note, however, H. Sum m erson, ‘M aitland an d the
crim inal law in the age o f Bracton , in H udson, Centenary Essays, p.
119, on the situation early in H enry I ll’s reign. See above, p. 162 on
the availability o f appeal as one criterion for felony in the
th irteen th century.
33. See e.g. the 1202 Lincolnshire eyre roll (Lines.); also Surrey, pp.
117ff. O n appeals by women, see below, pp. 235-6.
34. See Lincs., p. Iviii. Obviously in hom icide cases, appeal had to be
m ade n o t by the victim b u t his kin o r those b o u n d to him by
hom age o r lordship who ‘can speak ab o u t the d eath from w hat he
has seen h im self’; Glanvill, xiv 3, Hall, p. 174. This latter phrase
seems to m ean th at eith er he saw the killing or fo u n d the body; see
also Lincs., no. 931.

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order to capture the felon, and also bring the accusation

before the bailiff o r sergeant o f the h u n d red and the
coroner prelim inary to bringing an appeal in the county
court.35 T he victim showed his wounds to the strong-
stom ached coroner, who was responsible for m easuring
them. Failure to show wounds could lead to the appeal
being quashed.36 In other cases the h u n d red sergeant
m ight go with some knights to the w ounded m an and make
a view o f him. In the im probable event o f the accused
being present, the coroners and sergeants were responsible
for ‘attaching’ him , that is ensuring he had sureties to
appear in court, or, particularly if it looked likely that the
wounds would be fatal, for arresting him until it could be
decided w hether he was to be treated as a hom icide.37 In
practice, most felons fled immediately. T he coroners
recorded their names, and also those o f their tithings so
that these m ight be am erced by the eyre if the felon could
n ot be found. Either then, or in the next county court,
appellors had to give sureties, generally two, that they
would pursue their appeals. Finally, the appeal was m ade
before the county court, w here the coroner enrolled the
appeals verbatim .38
Cases then awaited the arrival o f the king’s itinerant
justices - a situation which may have grown less satisfactory
as the period between eyres becam e longer.39 However,
very few were actually pursued to a decision there in the
presence o f both parties. O ften the eyre records state that
an appellor did n o t prosecute or, less frequently, that he
withdrew himself.40 A lthough the difference between

35. R. F. H unnissett, The Medieval Coroner (Cam bridge, 1961), pp. 55-7;
Bracton, ff. 139b-140, T h o rn e, ii 394.
36. Lincs., no. 899. N ote also the c o ro n e r’s responsibilities in rape
cases; e.g. Lincs., no. 590.
37. Lincs., pp. xlv-vi; Bracton, f. 122b, T h o rn e, ii 345. Wiltshire, pp.
46-51 suggests th at the system o f attachm ent was ‘reasonably
efficient’.
38. Glanvill, xiv 1, Hall, pp. 171-2, see also i 32, p. 21; Lincs., p. Iii,
Wiltshire, p. 71. See e.g. F. W. M aitland, ed., Select Pleas o f the Crown
(Selden Soc., 1, 1888), no. 4 for display o f w ounds to county court;
see also above, p. 160, for the stages in Ailward’s case.
39. See above, p. 123.
40. T o g eth er these form the largest gro u p o f cases in e.g. the
Lincolnshire eyre roll o f 1202, Lincs., p. lix.

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non-prosecution and withdrawal is now somewhat unclear,

the court rolls seem firm in their distinction, which may
reflect the tim ing and formality o f the abandonm ent o f the
appeal: withdrawal m ight be m ore form al and take place
before the eyre justices.41 Why was non-prosecution so
frequent, despite measures such as the requirem ent for
sureties? Perhaps some were wild appeals, m ade in the
highly em otional afterm ath o f a crime. Perhaps others were
dismissed because o f some u n recorded failure in a
technicality; in the heat o f the m om ent and through mis-
understandings o f law, errors m ight be m ade in the initial
accusation, for example. Perhaps appellors grew scared of
confronting, and in particular o f fighting, their opponents
in court.42 Probably most, however, were cases settled
outside court by negotiation. Victims had n o t lost their
desire for com pensation. Out-of-court settlem ents m ight
allow sensitivity to particular circumstances; an accidental
w ound m ight m erit no punishm ent, b u t the victim a n d /o r
their relatives m ight still feel some m oral right to
com pensation.43 Settling outside court was n o t very
expensive. T he appellor’s am ercem ent for failure to
prosecute an appeal was generally only half a mark, which
the accused m ight reim burse as part o f any com pensation
payment.
Some, however, waited until they appeared before the
eyre justices in order to confirm their settlem ent: ‘William
[de la Dune] appeals William de la Bruere t h a t . . . [he]
came up and struck him on the head with a staff, so that he
m ade wounds on him. They are brought into agreem ent by
the licence o f the justices.’44 Such agreem ents cost m ore
than the am ercem ent for an appeal n o t prosecuted,45 but
did have certain advantages. They provided the parties, and

41. N ote e.g. Lincs., no. 1010; however, n o te also no. 671 ‘et non est
prosecutus quia retraxit se’.
42. See below, p. 173, for a widow Bela failing to prosecute som eone
with the th reatening sobriquet o f ‘the ch am p io n ’.
43. See also below, p. 182; generally for cases o f hom icide, H u rn ard ,
Pardon. Payments o f com pensation for w ounds survived explicitly in
some u rban customs; see e.g. Borough Customs, i 30-1.
44. PKJ, ii no. 385; see also no. 591 for an am ercem ent o f 100s for a
license to agree connected to this case.
45. See Lincs., e.g. no. 1033.

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in particular the accused, with a w ritten w arrant approved

by the justices. They thus reduced the possibility o f future
denial o f the agreem ent, and may have protected the
accused against future presentm ent for the offence.46 It is
significant, though, that the justices did n o t grant such
licences in cases o f hom icide.47
W hat of the occasions when the appeal was taken
further? Let us make the rash assumption that both parties
came to the court. The appellor m ade a statem ent such as:

A. appeals B. th a t [on a specified day in a specified place] the

said B. cam e w ith his force a n d attack ed h im in b re a c h o f the
k in g ’s p eace, feloniously, a n d in a p re m e d ita te d assault, a n d
d e a lt h im such a w o u n d in such a p a rt [o f his body] w ith such
a k in d o f w eapon. A nd th a t h e d id this wickedly a n d
feloniously h e offers to prove against h im by his body o r as the
c o u rt may aw ard.48

The appellee m ight simply deny this w ord for word, or he

m ight bring an exception, give a specific reason why the
appeal was incorrect. H e m ight claim th at the appeal had
n o t been properly pursued, for exam ple that wounds had
n o t been displayed. Such argum ents m ight be checked
against the records or testimony of the coroners and
sheriff. Alternatively, the appellee m ight claim that he was
no t a thief rem oving goods b u t a lord rightfully retrieving
his dead villein’s chattels.49 Particularly notable is the

46. See also pp. 189, 207-8, on royal attitudes to privatae conventiones.
For the value of a powerful w arrantor for a concord, see Lincs., no.
846. A m ercem ents for withdrawing were sim ilar to paym ents for
concord, perhaps reflecdng the g reater finality o f withdrawal as
opposed to non-prosecution: see R. D. G root, ‘T he ju ry in private
crim inal prosecutions before 1215’, American Journal of Legal History
27 (1983), 134, also e.g. Lincs., no. 1044. Following withdrawal,
appellees were generally said to go ‘q u it’ rath e r than sine die,
although see the alterations in Lincs., e.g. nos 615, 620-1, 624 for
o ne scribe’s confusion; also e.g. nos 563, 584, 1009 using ‘q u it’.
47. See H u rn ard , Pardon, p. 22, w here she suggests th a t the issuing of
such licenses in hom icide cases was a personal m onopoly of the
king. N one o f the licenses to agree following appeals in the 1202
Lincolnshire eyre roll relates to hom icide.
48. Bracton, f. 144, T h o rn e, ii 406.
49. See Lincs., no. 561; Ailward pleaded th at he was distraining, n ot
stealing, see above, p. 160.

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 CR IM E AND T H E ANG EVIN R EFO R M S

exception that the appeal was not brought in good faith.

T he bringing o f an appeal still contained elem ents of
vengeance: it gave the appellor a chance to fight the
accused, and if victorious to punish him. However, appeals
were n o t to be brought merely through hatred. The
appellee could purchase an inquest from the king as to the
appeal having been brought through ‘spite and h atre d ’
(odio et atia), and the issue was decided by a ju ry o f local
m en. Thus a certain Jo h n appealed his cousin Andrew of
going to the house o f Thorold, J o h n ’s father, and ejecting
T horold and his people, and so treating him that he was ill
until the day he died. Andrew also robbed T horold o f four
swords, four hatchets, two bows, fifteen arrows, two sheets,
five yards o f linen, and certain charters concerning his
inheritance. Andrew came and denied all the charges, but
stated that T horold was his uncle and the son o f a priest, so
th at the land should descend to him after T h o ro ld ’s death;
and that when T horold began to die, Andrew, w ithout any
force, en tered T h o ro ld ’s house which should descend to
him. Andrew gave the king ten marks to have justice
hastened and to have an inquisition as to w hether the
appeal was m ade by ju s t cause or by spite and hatred, and
to have a licence to make an agreem ent concerning
ano th er appeal. T he case is very interesting, not only in
revealing the m inor arsenal a m an m ight keep in his house.
It dem onstrates the way in which violence and inheritance
cases m ight becom e entwined, and suggests that the death
o f T horold saw the culm ination o f ill-feeling between his
n ear kinsm en.50
Inquests concerning hatred were to becom e com mon.
Generally they would decide w hether the appellee’s claim
concerning spite was true, and if so he would go free; if
they dismissed the claim, he would go to p ro o f by battle, or
w hen appropriate to ordeal. T he issue o f ‘spite and h a tre d ’
may have been taken very broadly, to cover the truth as
m uch as the motivation o f the appeal.51 Perhaps it was
assumed that all false appeals were in some sense motivated
by ‘spite and h atre d ’, perhaps the phrase came sometimes
to be a m atter o f form, the real issue being the guilt or

50. Lincs., no. 594.

51. See G root, ‘Private crim inal prosecutions’.

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innocence o f the appellee. At the same time, some inquests

were purchased simply into issues such as w hether a m an
was guilty o f a death or not.52 T he Lincolnshire roll o f 1202
contains three examples concerning ‘spite and h atre d ’ and
four w ithout m ention o f ‘spite and h a tre d ’. This may seem
very few in term s o f the total num ber of appeals, but is a
larger proportion of those where both parties appeared in
court, and very significant com pared with the four ordeals
and two duels adjudged.53 It may be that by the early 1190s,
and certainly by 1215, appellees had a strong chance of
insisting that such an inquest should precede physical
proof.
If no exception were successfully brought, the appeal
proceeded towards trial by battle. The parties produced
sureties and swore oaths to back up their position, and
then the battle would take place on the day fixed by the
court. The fight no doubt was fierce, and Bracton noted the
value of incisors - as opposed to molars or grinders - for
success in such a trial.54 The court was then notified of the
result, and ju d g m en t pronounced. However, in some cases
the appellee might, according to Glanvill,

refuse trial by battle . . . o n a c c o u n t o f age o r serious injury.

T h e age m u st b e sixty years o r over. Serious injury m eans a
b ro k e n b o n e , o r injury to th e skull by c u t o r bruise. In such a
case th e accused m u st p u rg e h im self by ord eal, th a t is by h o t
iro n o r w ater acco rd in g to his status: by h o t iro n if h e is a free
m an, by w ater if h e is a villein.

This option was also open to appellors, and it was of course

particularly likely in cases of w ounding that the victim
should have to plead as a m aim ed m an.55
Such an account would suggest that the royal justices
took a relatively passive role in cases brought by appeal, but

52. See e.g. Lincs., no. 555.

53. Lincs., pp. lvii-lx, nos 555, 561, 594, 607, 841, 909, 938.
54. Bracton, f. 145, T h o m e, ii 410. For fu rth er details on battle, see
Bracton, ff. 141b-142, T h o rn e, ii 399-401; see also above, pp. 75-6.
55. Glanvill, xiv 1, Hall, p. 173; see e.g. Lincs., no. 851, w here the
appellee is given a choice as to which of them will carry the h o t
iron; he chooses th at the appellor should do so, b u t in the en d
withdraws his appeal.

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 CRIM E AND T H E ANG EVIN REFO RM S

oth er evidence reveals their m ore active participation. They

sometimes insisted that the appealed appear before them
even though the appellor had n o t followed up his case,
sometimes allowed cases to be heard which m ight have
been dismissed on technicalities, sometimes rejected appeals
on seemingly tenuous technicalities.56 T heir enquiries
concerning an appeal m ight involve the ju ro rs present
before the eyre. T he ju ro rs’ role could take various forms,
and is perhaps peculiarly com m on in appeals by w om en.57
They m ight act as witnesses, concerning evidence of the
deed and the general character o f one party; o n e ’s honour,
o n e ’s standing in the com m unity rem ained im portant.58
O r, if the appellor had n o t pursued his case or had had it
dismissed because o f a technicality, the justices m ight then
ask the ju ro rs w hether or n o t they suspected the appellee:

E rn ald th e ch am p io n , W illiam his b ro th e r, P e te r his b ro th e r,

a n d W illiam son o f E rn a ld w ere a p p e a le d by Bela widow o f
R oger o f b ea tin g a n d w o u n d in g h e r a n d Bela has w ithdraw n
herself. . . . T h e ju ro rs, asked, say th a t Bela was so b e a te n by
th e m a n d th e re fo re le t th e m be taken in to custody.59

Alternatively, after the appellee had denied the accusation,

the ju ro rs m ight state that the appeal was bro u g h t through
hatred or give their opinion of the facts.60 O n other
occasions the whole shire bore witness after an appeal had
been withdrawn, or responded to a question as to the
character o f an offender:

56. PKJ, ii no. 744, Lincs., nos 855, 773; see also Bracton, ff. 137, 138b,
T h o rn e, ii 386, 390.
57. See the instances cited in the text below, an d also PĶJ, ii nos 265,
734, 735.
58. See e.g. PKJ, ii no. 285; cf. ii no. 399 w here the failure o f a w om an’s
appeal o f robbery is related to the ju ro rs ’ assessment o f h er as a
harlot.
59. PKJ, ii no. 310. Ju ro rs n o t suspect after appeal withdrawn: e.g.
Lincs., no. 540 (w ounding), PKJ, ii no. 329 (burglary). Technicality,
ju ro rs suspect appellee: PKJ, ii no. 265 (hom icide); ju ro rs n ot
suspect appellee, ii no. 383 (theft). See also PKJ, ii no. 351 and
Lincs., no. 1004 for cases where the potential appellor has died. See
also below, p. 178.
60. E.g. PKJ, ii nos 323, 345.

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Eva o f B ab ington appeals R ich ard F re n d o f th e d e a th o f R alph

h e r son a n d th a t h e w o u n d e d h e r in th e b reast, a n d this she
offers to prove etc. T h e k n ights o f th e shire, asked o f w hat
re p u te h e is, say th a t b e fo re this d e e d h e was accused o f sh eep
stealing a n d o f o th e r evil d eed s so th a t o n o n e occasion he
fled fo r suspicion in to th e c h u rc h a n d stayed in it a n d
afterw ards fled secretly. T hey also say th a t h e fled fo r the
aforesaid d e a th a n d h id h im self away a n d th e re fo re they
suspect him . R ichard com es a n d den ies th e w hole.

In this case, as in others, the opinion o f the ju ro rs or the

shire did n o t lead to the im m ediate punishm ent o f the
accused; rather he faced p roof - ‘J udgm ent, Let him purge
him self by w ater’.61
If defeated in battle or proved guilty in some other way,
the accused faced punishm ent. For the crim inal pleas of
the king, according to Glanυill the punishm ent was death
or the cutting off of limbs, whilst the Dialogue of the
Exchequer specifies that

W hoever is convicted o f a n offence against th e royal m ajesty is

c o n d e m n e d in o n e o f th re e ways acco rd in g to th e d e g re e o f
his offence to th e king. F o r m in o r w rongs h e is c o n d e m n e d in
all his m ov eab le goods; fo r m a jo r w rongs h e is c o n d e m n e d
in all his m oveable pro p erty , his lands a n d rents, so h e is
d isin h e rite d o f th em ; a n d fo r th e g rea test a n d m ost h e in o u s
offences h e is c o n d e m n e d in life a n d lim b.62

However, the prospect o f painful or deadly punishm ent

helps to explain why few o f the accused actually appeared
to answer appeals pursued before the justices, leaving their
sureties to suffer am ercem ent. Fear of the processes of law,
perhaps com bined with differing conceptions of liability
and doubts that royal adm inistration would ren d er justice,
also persuaded to flee those who had com m itted acts for
which they would probably have escaped punishm ent, for
exam ple accidental killing. In so doing, they m ight even
harm themselves. Flight m ight be taken as an admission of

61. PKJ, ii no. 742; see also e.g. nos 729, 739. N ote below, p. 179, on
the effect o f the abolition o f ordeal.
62. Glanυill, i 2, Hall, p. 3, Dialogus, p. 113: see also above, pp. 78-9, for
m utilation, below p. 179 on Ralph Diceto.

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guilt, thus leading to outlawry.63 And, as in the

Anglo-Norman period, it was with the flight and outlawry of
the accused that many prosecutions by im placable appellors
en ded.64
This analysis o f appeal dem onstrates notable continuity
from the earlier period. Most cases still began by appeal,
although few concluded with battle and the punishm ent of
one party. Individual action, the pursuit o f vengeance or
satisfaction through the courts, rem ained vital. The
procedure underw ent some modifications, notably with the
appearance o f coroners, b u t even some o f their duties may
previously have been treated by royal sergeants. T he major
change was the predom inance o f the eyre in the hearing of
appeals of felonies. T he extension o f royal authority with
regard to serious offences thus once again becom es a major
them e.

PRESENTMENT AND THE EXTENSION OF

ROYAL AUTHORITY
Pipe Rolls o f the 1150s and 1160s and the articles o f the
Inquest o f Sheriffs suggest that it had been quite norm al
for sheriffs or local justices to deal with crown pleas in the
county court.65 By the end o f our period, this was no
longer the case. The sheriff in his tourn still heard
accusations, including presentm ents m ade by repre-
sentatives o f each village or tithing. He would am erce those
whom a jury o f freeholders found guilty o f m inor offences.
However, those suspected o f grave crimes were merely
taken by the sheriff and held o r tem porarily released in
retu rn for sureties guaranteeing appearance in court. T heir

63. See e.g. PKJ, iii no. 736. PKJ, ii no. 267 records a whole village
fleeing an d being outlawed. Also H u rn ard , Pardon, pp. 131, 135-6;
Bracton, f. 132, T h o rn e, ii 371-2.
64. See above, pp. 68-9; cf. Dialogus, p. 102; Bracton, ff. 125-9b, T horne,
ii 352-64 (note the suggestion o f special conditions in the b o rd er
counties o f Gloucester and H ereford, p. 362). T he length of
treatm en t in Bracton shows the im portance o f outlawry. Even when
an appeal were quashed, if some o f the accused d id n o t appear
their sureties were still held to be in mercy; e.g. PKJ, ii no. 399,
cited above, p. 173 n. 58.
65. See above, p. 37.

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fate m ust await the com ing o f the royal justices.66 Again,
m ethods familiar at least from H enry ľ s reign were being
reinforced and integrated with the eyre.
Overall, the royal courts, particularly the general eyre or
lesser commissions, were hearing an ever-increasing
num ber of cases.67 Certainly in crim inal matters, the
extension was a m atter o f royal policy, exercised through
itinerant justices, and most clearly described in the Assize
of C larendon in 1166. Powerful barons and indeed
franchises were n o t to stand in the way o f the prosecution
of crim e.68 Co-ordination o f action between different
administrative areas was to be improved, with the sheriff as
the crucial co-ordinator o f local activities:

A nd if any sh eriff shall se n d w ord to a n o th e r sh eriff th a t m e n

have fled fro m his county in to a n o th e r county, o n ac c o u n t o f
ro b b ery o r m u rd e r o r th e ft o r th e h a rb o u rin g o f th em , o r o n
ac c o u n t o f outlaw ry o r o f a ch arg e c o n c e rn in g th e k in g ’s fo rest
let h im [the seco n d sheriff] arrest th em . A n d even if h e knows
o f h im self o r th ro u g h o th e rs th a t such m e n have fled in to his
county, le t h im arrest th e m a n d g u a rd th e m u n til h e has taken
safe sureties fo r th e m .69

The Assizes of C larendon and N ortham pton extended and

regulated presentm ent. T hrough presentm ent juries, the
Assizes targeted those accused or notorious of being
m urderers, robbers, or thieves, or receivers thereof, and
from 1176 also those accused of forgery or unjust
burning.70 All were to be p u t to ordeal. O th er proofs, such
as com purgation, were n o t available. Previously reserved

66. See above, pp. 124—5; Pollock an d M aitland, i 559.

67. O n lesser commissions, see e.g. Stenton, English Justice, pp. 83, 97;
in H enry I ll’s reign and after, commissions o f gaol delivery would
becom e extrem ely im portant.
68. See below, p. 180, on c. 11 o f the Assize o f C larendon.
69. Assize o f C larendon, c. 17, EHD, ii no. 24; see also H u rn ard ,
‘P resen tm en t’, 398. In practice, co-ordination o f different local
adm inistrative areas an d officials rem ained a problem .
70. See above, pp. 130, 132. For the m ethod of choosing ju ro rs, see
articles o f eyre for 1194, EHD, iii no. 15; cf. Bracton, f. 116, T h o rn e,
ii 328; b o th display a preference for knights; see also Pollock and
Maitland, ii 642-3. Even in 1198 cases could still be referred to as
carried o u t ‘according to the assize’, e.g. PKJ, i p. 133.

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primarily for hard cases, the use o f ordeal was thus being
extended - hence the need for the digging o f ordeal pits.
O rdeal by water, unlike h o t iron, gave an im m ediate result,
and so was preferable for the planned mass processing of
suspects. Those who failed the ordeal were, according to
the Assize o f N ortham pton, to lose a foot and their right
hand, the latter an addition to the punishm ent specified at
Clarendon. The use o f m utilation rather than the death
penalty seems peculiar in measures aim ed at ridding the
country of felons. Conceivably, there existed a sense that
the death penalty was n o t as appropriate in the new
procedures as in an appeal, w here the accuser had risked
his own life in combat. Nevertheless, following present-
m ent, even success in ordeal was n o t final. Men of
particular ill-repute, or presented for ‘m urder or some
oth er base felony’ had to ‘abjure’ the realm, th at is leave
England u n d er oath never to retu rn .71 T he penalization of
the notorious even if they passed the ordeal was n o t unique
to the Angevin Assizes, b u t its use does em phasize royal
single-mindedness.
Late twelfth- and early thirteenth-century records allow
us to see these and related procedures in action, with
m odifications such as the appearance of coroners. As with
appeal, the difficulty was actually laying hands on the
offenders. Swift action was necessary before they fled.72
Those m en o f ill-repute who were taken in possession of
stolen goods, and were unable to produce a ‘w arrantor’
who had given the goods to them , were n o t even allowed
the benefit o f ordeal.73 Those found guilty at a co ro n er’s
inquest into a death, if present, were arrested and given to
the sheriff to be kept in the county gaol. In cases other
than hom icide, those notorious were attached by sureties
‘to the first session of the king’s justices w hen they come to
these parts’, the sureties being am erced if the accused
failed to appear.
71. Assize o f C larendon, c. 14, N ortham pton, c.1, EHD, ii nos 24—5. O n
procedure, Hyams, Ό rd e a ľ , 121-4, esp. p. 123 n. 184 on ordeal by
water, which may also have been selected because o f its association
with lowly status; Bartlett, Trial, pp. 62-9, esp. pp. 67-9 on exile for
those who passed ordeal.
72. For flight, see e.g. PKJ, ii no. 51, iii no. 715.
73. Assize of C larendon, c. 12, EHD, ii no. 24.

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At the arrival o f the eyre, the coroners’ rolls were

produced and it was the sheriff and the coroners’
responsibility to ensure the presence o f those who had
been attached.74 Those whose nam es were presented and
who were actually in court or could be arrested m ight be
sent to ordeal immediately or have their cases further
investigated. A ccording to Glanvïll, in cases based on public
notoriety,

th e tru th o f th e m a tte r shall b e investigated by m any a n d

varied in q uests a n d in te rro g a tio n s b efo re th e justices, a n d
arrived a t by co n sid erin g th e p ro b ab le facts a n d possible
co n jectu res b o th fo r a n d against th e accused, w ho m u st as a
resu lt be e ith e r absolved entirely o r m ad e to p u rg e h im self by
th e o rd e a l.75

The justices’ main helpers in their enquiries were m en of

the locality, again showing the characteristic reliance of
Angevin reform upon the harnessing o f local power and
personnel. In particular there were the juries o f the
hundreds and villages who had m ade the original
presentm ents. T he rolls often make a distinction between
the com m unal accusation and the fu rth er opinion given by
the ju ro rs as their own: they stated w hether they suspected
the accused, and if so the accused was to go to ordeal.76
T he ju ro rs thus sifted the accusations brought by
com m unal opinion. T heir ju d g m en t m ight be based on a
fact which they believed to show the accused’s guilt, or -
and generally only in cases where no such fact was available
- by obtaining an additional opinion from the ju ro rs o f the
four neighbouring villages.77 Thus presenting juries had a

74. See Wiltshire, pp. 46-51.

75. Glanvill, xiv 1, Hall, p. 171.
76. See R. D. Groot, ‘T he ju ry o f p resen tm en t before 1215’, American
Journal of Legal History 26 (1982), 1-24, who notes th at the p attern is
n o t true o f all rolls. See also e.g. Lincs., nos 1488, 1496. They were
n o t am erced if th eir own opinion contradicted the com m unal one
which they had presented.
77. E.g. Lincs., no. 588d (translated p. Ii, an d n o te also the o th er cases
cited at p. lii). Occasionally we see the presenting ju ry being
overruled, for exam ple by the knights o f the shire; e.g. F. W.
M aitland, ed., The Rolls of the King’s Court in the Reign of Richard I
(PRS, 14, 1891), p. 86; see also e.g. PKJ, ii no. 621.

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certain adjudicatory function even before ordeal was

abolished in England early in H enry I ll’s m inority in
accordance with a decree o f the 1215 Fourth Lateran
Council. With the removal o f ordeal, the ju ro rs’ decision as
to w hether they trusted or suspected the accused grew very
close to a ‘n o t guilty’ or ‘guilty’ verdict. T he crim inal trial
jury, now one o f the most widely recognized characteristics
o f com m on law, was em erging.178
As for punishm ent, perhaps as the initial sweeps of the
countryside proved to be o f lim ited success, or as
p resentm ent was fully accepted, there cam e to be a greater
emphasis u p on the death penalty. A lthough he does not
specify w hether his concern is appeals, presentm ents, or
both, it is notable that Ralph Diceto in his account of 1179
recorded that hom icides were to be hanged, those guilty of
lesser crimes m utilated. Glanvill confirms the general
applicability o f such penalties, writing that ‘if the ordeal
convicts [the felon] . . . then ju d g m en t both as to his life
and as to his limbs depends on royal clem ency’.79 Mere
m utilation could thus be presented as merciful.
W ithin these procedures, as in appeals, royal justices
provided pressure for a com m on law. Some m ade general
statem ents o f law in court.80 They could also insist that a
court follow what the justices regarded as the custom o f the
king’s court. And cases heard in the localities m ight be
referred to royal courts after claims o f default o f justice.81
T he exceptional nature o f border regions and the rare
highly privileged areas becam e ever clearer as royal
procedures brought greater standardization to law and the
adm inistration o f justice.82
C om parison with royal action elsewhere in twelfth-
century Europe is also revealing. First, take an adm ittedly
78. See also above, pp. 170-2 on inquests an d the pleading of
exceptions. O n the abolition o f ordeal, see Bartlett, Trial, pp.
137-9; n o te also Wiltshire, pp. 51-3.
79. Ralph o f Diceto, Opera Historica, ed. W. Stubbs (2 vols, L ondon,
1876), i 434, Glanvill, xiv 1, Hall p. 171.
80. See e.g. Lincs., p. xxiii.
81. See also above, p. 51.
82. See e.g. Borough Customs, i 30, em phasizing com pensation for
hom icide in A rchenfield (H erefo rd sh ire), an area o f Welsh law; also
Holt, Magna Carta, p. 332 n. 167 on a lim itation o f am ercem ent in
W estm oreland.

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rath er exceptional but still highly revealing statem ent in

Frederick Barbarossa’s 1186 edict against fire-raisers:

c. 1.16 If an arsonist in his flight com es to a castle a n d th e

lo rd o f th e castle h a p p e n s to be his lo rd o r vassal o r relative,
th e n h e n e e d n o t h a n d him over to his pursu ers, b u t will h elp
him to leave th e castle fo r th e fo rest o r som e o th e r place th a t
h e deem s safe. B ut if h e is n e ith e r his lord, vassal n o r relative,
h e sh o u ld h a n d h im over to th e p u rsu ers o r h e will be guilty
o f the sam e crim e.

Now com pare particularly the first part o f the above

statem ent with clause 11 o f the Assize o f Clarendon:

A nd let th e re be n o o n e in a city o r a b o ro u g h o r a castle o r

w ith o u t it, n o t even in th e h o n o u r o f W allingford, w ho shall
fo rb id th e sheriffs to e n te r in to his la n d o r his soke to arrest
those w ho have b een accused o r are notoriously suspect o f being
robbers o r m urderers o r thieves o r receivers o f them , o r outlaws,
o r p erso n s ch a rg ed c o n c e rn in g th e forest; b u t th e king
co m m an d s th a t they shall aid th e sheriffs to c a p tu re th e m .83

Such a contrast again brings hom e the degree o f control to

which the Angevin reform ers were aspiring.

THE LIMITS OF ROYAL AUTHORITY

Clearly then, there was considerable aspiration and
considerable pressure towards greater royal control, greater
standardization, greater efficiency. But how effective were
such royal measures, and, indeed, the whole system o f
dealing with offences? We know that hundreds o f people
either fled o r w ent to ordeal after the Assizes of Clarendon
and N ortham pton. However, the surviving records, which
are financial and interested only in the accused’s forfeited
chattels, do not differentiate between those who were tried
and those who fled. The success o f the Assizes in ridding
the country of criminals - as opposed to filling it with
outlaws - cannot be assessed.

83. Monumenta Germaniae Historica: Legum, sectio iv, Constitutiones, t. 1,

451; EHD, ii no. 24. See also M. T. Clanchy, England and its Rulers,
1066-1272 (Oxford, 1983), pp. 144-5.

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Nevertheless, in our discussion, the limitations o f royal

capacity to deal with crime have been very clear. This
applies n o t only to the many lesser offences which were left
to local or seignorial courts b u t also to the select serious
offences which were the royal target.84 T here may have
been a mass of corruption am ongst powerful local officials,
such as Edward ľ s h u n d red roll enquiries would reveal a
century later; it m ight take the form of bribes received
from offenders seeking to escape the consequences of their
deeds or, as in the case of Ailward, from accusers wishing to
inflate their charges.85 T he other m ajor problem s were
ensuring that appellors pursued their appeals and getting
the accused, be he appealed or presented, into court. Only
very rarely was a suspect taken and persuaded to confess:

R ichard Francus, th e serg ea n t o f th e h u n d re d , with the

h u n d re d , bears witness th a t in th e h u n d r e d co u rt, called
to g e th e r a b o u t this, a n d befo re him a n d th e h u n d re d , P eter
acknow ledged th a t they m a d e th e w o u n d w h ence R eginald
d ied, a n d h e said th a t in th re e days h e was willing to be
h a n g e d h im self sh o u ld R eginald die o f th a t w ound. By the
assize, let P e te r be h a n g e d fo r his adm ission a n d let W alter
a n d M aud p u rg e them selves by th e ju d g m e n t o f iro n .86

Even once captured, criminals sometimes escaped the

clutches of local officials.87 Very few cases reached court. O f
those that did, many were then com prom ised or quashed
by the justices, perhaps because only those accused who
were confident of a reasonable settlem ent actually
appeared. Ordeals, duels and executions were few; if Ralph
Basset really did hang forty-four thieves at Ή u n d e h o g e ’ in
1124, his was a success o f which his Angevin and later
medieval successors would be jealous.88
Besides its lim ited efficiency, there are further reasons
for rejecting any view of the extension of royal justice as an
84. O n sheriffs and theft, see above, p. 163; on the ‘sh eriffs peace’, see
Lincs., p. 1.
85. See above, p. 160; for the later th irteen th century, see H. M. Cam,
The Hundred and the Hundred Rolls (London, 1930).
86. PKJ, ii no. 732.
87. E.g. Lincs., nos 986, 1011.
88. See above, p. 78; also Lincs., pp. li-lii, lx; for m id-thirteenth century
figures, see e.g. Wiltshire, pp. 79, 98ff., Surrey, p. 128.

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utterly overwhelming tide. T here are signs o f resistance,

leading sometimes to com prom ise, sometimes to defeat for
the royal efforts. H enry II clearly wished serious crim e to be
prosecuted as vigorously as possible. However, in the case
o f hom icide, there are hints that he faced some obstruction
from the families who dropped their appeals when they
settled out o f court. They sought to protect themselves
against any possible lim itation of their freedom for self-
help, w hether aim ed at revenge or at settlem ent. If the eyre
brought a m ore im personal elem ent to the doing of justice,
it may n o t have been at the desire o f the parties in
disputes; hence the prevalence o f uncom pleted appeals.89
M oreover, the reform s set u n d er way at C larendon had
only a lim ited im pact u p o n baronial franchises and
regional variations. Border areas were n o t brought un d er
frankpledge and preserved their own m ethods of
peace-keeping. N or is there any indication, for exam ple, as
to w hether H enry or his advisers ever expected the Assizes
o f C larendon and N ortham pton to apply in Cheshire.
H enry prom ised the bishop of D urham that the
enforcem ent o f the new procedures in his lands was from
necessity and would n o t form a custom. At the end o f the
century, Jocelin of B rakelond’s chronicle provides m uch
evidence for the jealousy with which privileged lords sought
to protect their rights.90
T he continuing exercise in particular of m inor franchisai
jurisdiction, most notably the right to execute thieves
caught red-handed, no doubt reflects royal acceptance of
the fact th at this rem ained by far the m ost effective way of
dealing with crim e.91 Lords rem ained an essential p art of
the Angevin regim e, alongside the king and his officials.
However, ambiguity in attitude to lords’ continuing role
89. See H u rn ard , Pardon.
90. G. V. Scartimeli, Hugh du Puiset, Bishop o f Durham (Cam bridge,
1956), ch. 5, esp. pp. 190-1; Jocelin, pp. 50-3, noting the
com binadon o f royal involvem ent and forceful self-help, 100, 102,
134-5; see also p. 45 for the abbot arranging a com prom ise
settlem ent following a com plaint o f rape. See in general N. D.
H u rn ard , ‘T he A nglo-Norman franchises’, EHRĘA (1949), 289-323,
433-60.
91. For in fan g en th eo f in H enry I ll’s reign, see e.g. the Tewkesbury
annals in H. R. Luard, éd., Annales Monastiά (5 vols, L ondon,
1864-9), i 130, 140, 144-5.

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may also reflect some divergence in the views o f the king

and certain o f his adm inistrators. T he latter sought to
prom ote standardization, at the expense, if necessary, of
seignorial power. T he king, on the other hand, does not
seem to have personally opposed franchises in general, and
indeed granted them himself. T he adm inistrators therefore
lacked the personal backing o f the king which they would
have n eeded if they were to take on seignorial interests.
Yet the most em phatic reverse to royal efforts came in an
area where advisers and king were united in their desire for
greater uniform ity o f procedure, that is in their attem pt to
bring clerical crim e u n d er royal control. We can be certain
that H enry did not intend the clergy to be excluded from
his clamp-down on crime. Yet his efforts to deal with
clerical w rongdoing through the royal courts quickly
becam e central to his dispute with Thom as Becket.92 Canon
law did n o t provide a definitive answer to the question, but
the m artyrdom o f Becket, together with a hardening o f
papal attitude, did. Following the negotiations o f the early
1170s, a settlem ent is recorded in a m em orandum sent by
the king to the pope, and recorded by the chronicler Ralph
Diceto: ‘a clerk shall not be brought in person before a
secular ju d g e for any crime, n o r for any wrong, except
wrongs o f my forest, and except about a lay fee from which
lay service is owed to me o r another secular lord.’93
Certainly, clerics still had to prove their ecclesiastical status
before they enjoyed the benefit o f being h anded over to
church courts; certainly, if a cleric fled before m aking his
p ro o f of status, he could be outlawed like any other
fugitive; and certainly, early in the thirteenth century there
are cases o f crim inous clerks having to abjure the realm.
Yet still H enry’s efforts had failed. T he court rolls reveal
clerics com m itting serious crimes and being h anded over to
the church courts.94 Particularly notable are certain cases
w here clerics jo in ed with laymen in com m itting crimes. As
was so often the case, the laymen fled; however, the clerics
stayed to face justice.95 Royal punishm ent could n o t strike
into them the fear that drove away their lay accomplices.
92. See above, p. 129-30.
93. Diceto, i 410.
94. E.g. Pig; ii no. 311.
95. E.g. PKJ ii nos 321, 322.

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CONCLUSIONS
T he limits o f royal power, and m ore generally o f m ethods
of dealing with crime, are therefore very clear. However,
o ur awareness o f such inefficiencies, and o f disparities
between royal aspirations and achievements, is undoubtedly
greater than that o f people at the time. T he system could
satisfy the interests of the various parties.96 From the royal
point of view, the eyre m aintained a check on the local
workings o f justice, ensuring that there was no politically
significant breakdown of order. Later visitations sustained
the efforts begun at C larendon and N ortham pton.97 The
eyre also collected useful revenue for the king, for exam ple
the forfeited chattels o f felons and a wide range of
am ercem ents. Furtherm ore, the king and his advisers may
have been aware that the very possibility o f royally enforced
justice and punishm ent encouraged parties to com e to
settlem ents, w hether within or outside court. T he same
possibility o f settlem ents m ust have been desirable both to
appellor and to appellee. O ne can im agine instances,
indeed, w here an appeal m ight be brought collusively, and
then withdrawn or concorded, in o rder to clear the
appellee’s nam e following local rum our. Alternatively,
parties could fight their feuds in part at least through the
royal courts.98 Finally, from the point o f view o f the local
community, the system generally succeeded in ridding
them o f disruptive criminals, usually because they fled,
occasionally because they were punished.
Moreover, contem porary perceptions were probably
determ ined n o t so m uch by continuing inefficiencies but
by the im pact of innovations and the displays o f justice
when it was applied. T he realm ’s rulers - kings,
adm inistrators, and lords - strove hard to m aintain respect
and, indeed, awe for crim inal justice. T he royal right of
96. Sum m erson, ‘M aitland’, independently com es to sim ilar conclusions
for a slightly later period.
97. Pipe Rolls figures m ight suggest th at 1166 an d 1176 m arked n o t so
m uch the beginning o f a royal clamp-down b u t its peak; however,
this stems from changes in the form o f Pipe Roll entries, as can be
shown by com parison with eyre rolls.
98. See e.g. Lincs., no. 931, PKĮ, ii no. 736.

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pardoning could both ensure royal popularity and

reinforce the im pression that the king was the fount o f all
ju s tic e ." O th er measures encouraged fear. T he fate of
those who were caught m ight be advertised. Following their
inquests into the deaths of the small proportion o f outlaws
who had been pursued and beheaded, the coroners m ight
send the outlaws’ heads to the county gaol where,
presumably, they were displayed.100 M utilation left a
shameful m ark upon a criminal, and one that announced
the ferocity o f royal justice.101 We have also seen the
publicly hum iliating and potentially fatal use o f the pillory.
Likewise, although we m ust n o t underestim ate the
spectator appeal of an execution, one o f the many
interesting features of Ailward’s case was that a crowd
m ight be compelled to attend a punishm ent session, an act
rem iniscent o f many an authoritarian regim e.102
Let us end, then, with an o th er story drawn from a
collection o f miracles, which well illustrates the fear, indeed
the paranoia, caused by the intrusions o f Angevin justice
into the localities:

By royal co m m an d , m e n w ho h a d c o m m itte d h o m icid e, theft,

a n d th e like w ere tra ce d in th e various provinces, a rreste d a n d
b ro u g h t b e fo re ju d g e s a n d royal officers a t St E d m u n d s a n d
p u t in ja il, w here, to avoid th e ir lib e ra tio n by som e ruse, th e ir
n am es w ere e n te re d o n th re e lists by c o m m an d o f th e ju d g es.
A m ongst th e m was o n e R obert, n ic k n a m e d th e p u trid , a
sh o e m ak e r fro m B anham , w ho was c ertain th a t h e saw an d
h e a rd h im self p u t o n th e list. In th e m idst o f his prayers,
afflictions, tears a n d devotions h e m ad e a vow to G od a n d St
E d m u n d th a t if h e saved him fro m this p eril h e w ould give
h im th e b est o f his fo u r o xen. A t daybreak, w hen they w ere
tak en o u t a n d th e ir nam es ch eck ed against th e w ritten list, fo r
th e m to be p u rg e d by th e o rd e al o f w ater, th e n a m e o f R o b ert
was fo u n d in n o n e . P leased a n d full o f jo y h e re tu rn e d h o m e
an d , n o t fo rg ettin g his vow, took th e ox a n d o ffered it to G od
a n d St E d m u n d w ith g rea t devotion. . . .103

99 .H u rn ard , Pardon, ch. 9.

100. H unnisett, Coroner, p. 34; PR7RI, p. 9.
101. See Sum m erson, ‘M aitland’, p. 138.
102. See above, pp. 125, 139, 160.
103.Lawsuits, no. 501.

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 Chapter 7

LAW AND LAND-HOLDING IN

ANGEVIN ENGLAND

Whilst H enry Iľ s own prim ary concern was the

m aintenance o f peace and the punishm ent of crime, new
procedures concerning land cases also featured
prom inently in the Angevin reforms. These developments
had an im pact n o t ju st upon the conduct of cases in court
b u t also the enabling and preventative functions of law, and
upon security o f tenure, heritability, and alienability.
However, it is vital to rem em ber that the changes in land
law in the Angevin period were not merely caused by the
reforms. Some influences, such as the learned law notions
o f possessio and proprietas, worked both through and
independently o f the reforms. Moreover, the various
longer-term causes which had been securing the position of
the tenant and his heirs by 1135 continued to work
th roughout our p erio d .1
As with crime, the circumstances in which many cases
arose rem ained similar to the earlier twelfth century.
Matters of h o n o u r and vengeance still lie hidden beneath
some lawsuits.2 Family disputes were frequent, as were ones
over particularly valuable econom ic resources, such as
meadows and mills.3 From c. 1180, inflation - as far as it
was perceptible - may have m ade lords expend still greater
efforts in ensuring that grants for life or shorter periods
retu rn ed to them as due. Control o f officials was vital to a

1. See above, pp. 103-5, 150, and below, pp. 212-13. See above p. 90 for
my concentration u p o n land-holding in the higher levels o f society.
2. N ote e.g. C. T. Flower, Introduction to the Curia Regis Rolls (Selden
Soc., 62, 1944), pp. 298-9.
3. E.g. CRR, vi 81-2, Lincs., no. 394, an d see below, pp. 194, 198.

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lo rd ’s success, and issues arising therefrom also resulted in

court cases.4 Political disruption, such as that during
S tephen’s reign or J o h n ’s attem pted usurpation of power in
the early 1190s, also produced rashes of disputes.5 To
obtain a m ore concrete im pression, let us look in detail at
the activities and concerns of one lord, passed down to us
by the chronicler, Jocelin o f Brakelond.

ABBOT SAMSON OF BURY ST EDMUNDS

Jocelin saw the quality of the lord as vital to the control of
the abbey’s estates. The ageing A bbot H ugh

was p ious a n d kindly, a strict m o n k a n d go o d , b u t in the

business o f this w orld n e ith e r g o o d n o r wise. . . . T h e villages
o f the a b b o t a n d all th e h u n d re d s w ere given o u t to farm ; the
w oods w ere destroyed, th e houses o f th e m a n o rs th re a te n e d
with ru in , a n d fro m day to day all w ent fro m b ad to w orse.6

In contrast is his description of Sam son’s acts on becom ing

abbot. Samson took the hom age of his m en. He asserted
his control over the officials who would serve him. M eeting
resistance to his dem and for an aid, he m ade his
displeasure known:

h e was angry a n d said to his frien d s that, if h e lived, h e w ould

re n d e r th e m like fo r like, a n d tro u b le fo r tro u b le . A fter this
th e a b b o t caused an en q u iry to be m ad e as to th e a n n u a l ren ts
d u e fro m th e free m e n in each m a n o r a n d as to th e nam es o f
th e peasants a n d th e ir h o ld in g s a n d th e services d u e from
each; a n d h e h a d th em all set dow n in w riting.

He also repaired, restocked, and extended the abbey’s

estates, appointed new officials, and produced a mass of
new records of his abbey’s rights. Sam son’s lordship was

4. E.g. CRR, i 109, H. Thom as, Vassals, Heiresses, Crusaders, and Thugs
(Philadelphia, PA, 1993), p. 63.
5. See e.g. Rotuli Curiae Regis, i 39-41, 47. For a case arising partly
from the division o f England from Norm andy, CRR, vi 81-2.
6. H. E. Butler, ed. an d trans, The Chronicle of Jocelin of Brakelond
(Edinburgh, 1949), p. 1; note also p. 38 on the n u m b er o f seals
having got o u t o f hand.

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active and very personal. W hen necessary he resorted to

vigorous self-help, b u t he could also act with a good lo rd ’s
generosity when com prom ise was desirable.7
As a lord, Samson heard cases in his honorial court, in
this instance a court reinforced by the liberties o f St
Edm und. O n one occasion, the justiciar Ranulf de Glanville
allowed a recognition, which had been sum m oned to be
m ade by twelve knights in the king’s court, to be held in
the abbot’s court at Harlow.8 Jocelin com m ented upon the
rigour of Sam son’s judgm ents, but these could still be
swayed by personal considerations, for exam ple the abbot’s
memory of hospitality he had received.9
In dealing with worldly business, Samson was regarded as
rath er unwilling to take counsel. However, from the start
he had at least one special adviser. Having rejected the
requests o f his kinsmen to be taken into his service, he
m ade one exception: ‘one knight he kept with him, an
eloquent m an and skilled in the law.’ Similarly, when he
becam e a papal ju d g e delegate, he both began to study
canon law and took counsel from two clerks experienced in
law. In 1194 Samson was sufficiently trusted in legal m atters
for him to act as an itinerant justice.10
So m uch for the nature o f Sam son’s lordship; what m ore
can be said o f his m ajor concerns? He strove to control his
rights in his liberty, his markets and their tolls, and
advowsons.11 Most obviously he strove to control his estates
and tenants. Again, a particular concern was that estates
leased out for lim ited periods m ight becom e hereditary.
This is epitom ized in the Cockfield case. T he Cockfield
family had gradually assembled various lands and rights,
held from the abbey.

O n th e d e a th o f R o b e rt o f C o c k field [in c. 1 1 9 1 ], h is so n
A d a m c a m e a n d w ith h im h is k in sfo lk , E a rl R o g e r B ig o d a n d
m a n y o th e r g r e a t m e n , so lic itin g th e a b b o t c o n c e r n in g th e

7. E.g. ibid., pp. 27-9, 31-2, 50-3, 59-60. See also pp. 63, 120 for
fu rth er record-m aking.
8. Ibid., p. 62.
9. See e.g. ibid., pp. 44-5.
10. Ibid., pp. 26-7, 24; PKJ, iii p. xcviii.
11. Jocelin, pp. 50-3, 59ff., 75, 95, 132-4; also p. 5 for concern about
the papal legate.

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ho ld in g s o f th e said A dam a n d m o re especially c o n c e rn in g the

h o ld in g o f th e h alf-h u n d red o f C osford, o n th e g ro u n d s th a t it
was his by h e re d itary right; fo r they said th a t his fa th e r a n d
g ra n d fa th e r h a d h e ld it fo r eighty years past a n d m ore. B ut
th e abbot, w h en h e g o t a ch an ce to speak, p u t two fingers
against his two eyes a n d said ‘May I lose th ese eyes o n th a t day
a n d in th a t h o u r, w hen I g ra n t any h u n d re d to be h e ld by
h ered itary right, unless th e king, w ho has pow er to take away
m y abbey a n d m y life, sh o u ld fo rce m e to d o so. ’

He explained that such a grant m ight im peril the abbey’s

liberty, and that anyway Robert had never claimed the
h u n d red hereditarily. As a result o f Sam son’s stout
resistance, according to Jocelin, Adam renounced his right
in the h u n d red , and received estates at Sem er and G roton
for life. This settlem ent m ade no m ention o f Cockfield.
Both Jocelin and the royal pleas rolls record the next
dispute, in 1201.12 W hen Adam died, he left a three-m onth-
old daughter as his heiress. After a struggle, the wardship
passed through the hands o f H ubert W alter to Thom as
Burgh, b ro th er of the king’s cham berlain. Thom as then
sought seisin o f Cockfield, Semer, and G roton, but the
abbot refused, on the grounds that R obert o f Cockfield on
his death-bed had publicly declared that he had no
hereditary right in Sem er or G roton, and that Adam in full
court had reconsigned those two m anors to the abbey,
confirm ing this with a charter. According to Jocelin,

T h o m as th e re fo re d e m a n d e d a w rit o f reco g n itio n in this

m a tte r a n d caused knights to be su m m o n e d to com e to
Tew kesbury a n d to swear b e fo re th e king. O u r c h a rte r was
re a d in public, b u t in vain, since th e w hole c o u rt was against
us. T h e kn ig h ts having b e e n sworn said th a t they knew
n o th in g a b o u t o u r c h a rte r o r o u r private a g reem en ts, b u t th a t
they believed th a t A dam , his fath e r, a n d his g ra n d fa th e r h a d
fo r a h u n d re d years back h e ld th e m a n o rs in fee farm , o n e
a fte r th e o th e r, o n th e days o n w hich they w ere alive a n d
d ead; a n d thus by th e ju d g m e n t o f th e c o u rt a fter m u ch
lab o u r a n d m u ch exp en se we w ere disseised, save fo r the
p a y m en t o f th e a n n u a l re n ts as o f old.

12. Ibid., pp. 58-9, 97-8, 123-4, 138-9; CRR, i 430; J. C. Holt, ‘Feudal
society and the family in early medieval England, (ii) N otions of
p atrim o n y , TRHS 5th Ser. 33 (1983), 193-8.

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The plea roll records that an assize o f mort dʼnncestor came

to recognize w hether on the day he died Adam had been
seised in dem esne as o f fee farm o f the m anors of
Cockfíeld, Semer, and G roton, and w hether M argaret was
his closest heir. The abbot argued that the assize should
n o t proceed about Sem er and G roton as A dam ’s father
R obert had held them only for life and had adm itted so at
the time o f the Saladin Tithe (1188) and on his death-bed.
Samson also produced a cirograph stating that the
subsequent grant to Adam had only been for life. Samson
adm itted that R obert had said Cockfield was his right and
his inheritance. The roll goes on to state that
It is d e c id e d th a t th e assize p ro c e e d a b o u t th e aforesaid two
m an o rs a n d th a t M arg aret have h e r seisin o f Cockfield. T h e
ju ro rs say th a t A dam fa th e r o f th e said R o b ert h e ld th e said
two m an o rs fo r a lo n g tim e, well, a n d in p eace, a n d d ied thus,
a n d th a t after h im R o b ert his son h e ld fo r all his life, a n d
A dam his son, fa th e r o f M argaret, h e ld th e m in th e sam e way
u n til his d e a th a n d h e d ie d h o ld in g th em . B ut they know well
a n d because o f th e lo n g te n u re o f th e aforesaid they believe
th a t A dam d ied seised th e re o f as o f fee farm . A n d they say th a t
M argaret is his closest heir. Ju d g m e n t. It is d e c id e d th a t
M arg aret have h e r seisin th en ce; a n d th e a b b o t is in m ercy.
Various points are notable here. T here are the differences
between the two records. T he plea roll omits an initial
stage, w here Thom as asked the abbot for seisin. It makes
the proceedings sound as if they progressed very formally,
in set stages; the chronicler is m ore concerned with the
court’s bias against the abbot and his church. Despite such
differences, significant points o f procedure and substance
em erge. T he abbot pleads an exception, a reason why the
assize should n o t proceed: the land is not hereditary. It is
rejected, and indeed Sam son’s acceptance that Cockfield
m ight have been held by hereditary right led to M argaret
being placed in seisin w ithout m ore ado. Docum entary
p ro o f was n o t decisive, and according to Jocelin was rather
contem ptuously dismissed.13 T he ju ro rs had their own ideas

13. T h ere may have been a technical reason for the rejection of
docum entary evidence; th at M argaret was a m inor, and a rule
p erhaps already existed against m inors having to answer deeds
produced against them in court. (I owe this p o in t to Paul Brand.)

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of p ro p er proof, and so in the case of Sem er and G roton,

long tenure was taken to constitute hereditary right.
C ontrol o f services was also of great concern to Samson,
and he risked entering a dispute with his whole body of
knights.

H e p u t to th e m th a t they o u g h t to do h im full service o f fifty

k nights in resp e ct o f scutages, aids, a n d th e like, since, as h e
said, they h e ld th a t m any k n ig h ts’ fees; why sh o u ld te n o f
those fifty knights d o n o service, o r fo r w hat reason a n d by
w hose a u th o rity sh o u ld those forty receive th e service o f ten
knights. T hey all re p lie d w ith o n e voice th a t it h a d always b e e n
th e custom fo r te n o f th e m to h e lp th e forty, a n d they n e ith e r
w ould n o r o u g h t to answ er n o r e n te r in to a p le a o n this
m atter.

T he case came to the king’s court, w hereupon the knights

em ployed delaying tactics. Eventually, the support o f the
justiciar broke the deadlock in the abbot’s favour, for the
justiciar stated ‘in full council that every knight ought to
speak for him self and for his own holding’. Gradually, the
knights adm itted the service they owed, with the exception
o f castle-guard at Norwich.

A n d because th e ir ack n o w led g em en t o f this in th e c o u rt o f St

E d m u n d was n o t sufficient, the a b b o t took th em all to L o n d o n
a t his own ex p en se a n d th e ir wives a n d those w om en w ho w ere
heiresses o f lands, to m ake th e ir ack n o w led g em en t in the
k in g ’s court. A n d each o f th e m rec eiv e d se p a ra te c iro g ra p h s.
. . . A ubrey d e V er was th e last w ho resisted th e abbot, b u t the
a b b o t seized a n d sold his beasts, so th a t h e was fo rced to com e
to c o u rt a n d answ er like his peers. A fter taking counsel, h e
finally acknow ledged th e rig h t o f St E d m u n d a n d th e a b b o t.14

Despite Sam son’s emphasis upon the preservation of

Bury’s liberties, the king was n o t entirely excluded from its
affairs.15 T he abbot looked to royal help in disputes over
rights to tolls and markets and in trying to prevent a
hereditary claim to the stewardship o f the abbey. T he abbot

14. Jocelin, pp. 65-7.

15. See ibid., p. 3 for the king becom ing involved because o f rum ours
o f A bbot H u g h ’s ill-m anagement; also pp. 46, 105.

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also obtained a royal writ in his attem pt to obtain the

knight service which the king was insisting that the abbey
provide for his campaigns overseas, although it is notable
that Samson ended up by reaching a com prom ise with his
knights.16
N ot ju st the king personally but also the Angevin reforms
m ore generally affected Bury and its affairs. This is most
striking in a dispute where the convent o f Bury asked
A bbot Samson to disseise the townsmen of some holdings.
Samson replied that he desired to do the convent justice in
so far as he could,

b u t th a t h e was b o u n d to p ro c e e d in acc o rd an ce w ith th e law

[ordine justiciario], a n d th a t w ith o u t a ju d g m e n t o f th e c o u rt h e
co u ld n o t disseise his free m en o f th e ir lands o r revenues
w hich, ju stly o r unjustly, they h a d h e ld fo r a n u m b e r o f years;
if h e d id so disseise th em , h e w ould fall u n d e r th e k in g ’s
m ercy by th e assize o f the realm .

As in the Cockfìeld case, we see a com bination o f the old

and the new. Long tenure greatly strengthened the te n an t’s
position, whilst the im pact of new royal measures, notably
novel disseisin, is clear both in settling disputes and in
shaping m e n ’s thinking.17

NEW PROCEDURES
C hapter 5 identified as key characteristics o f the Angevin
reforms their regularity and their use o f replicable forms,
most notably the eyre, the assize and the jury, and the
returnable writ. T he connection between writs and royal
control was close. By G lanvilľs time, it was a maxim that,
according to the custom o f the realm, no one need answer
in their lo rd ’s court concerning their free tenem ent
w ithout a royal writ. This rule was m ost likely of customary
origin, although its developm ent may have been affected,
for exam ple, by royal rulings that disseisins during the
king’s absence abroad were only permissible by royal writ.18

16. Ibid., pp. 27, 75, 85-7, 132-4.

17. Ibid., p. 78; see also below, p. 213.
18. Glanvill, xii 2, 25, Hall, pp. 137, 148 the form er specifying the lo rd ’s

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I shall concentrate upon three key procedures begun by

royal writs, those o f novel disseisin, o f mort dʼnncestor, and of
right. The eyre was the m ain forum for such cases, and eyre
records give an indication of their relative frequency.

Novel Mort A ctions o f

disseisin dʼnncestor rig h t for
lands

1198 H erts., Essex, M iddlesex 19 35 13

1202 B ed fordshire 11 37 8
1227 B u ckingham shire 89 87 6 2 19

(i) Novel disseisin

Novel disseisin became the predom inant land action in the
th irteenth century and its popularity is attested in the
earliest plea rolls by its use concerning small plots of
land.20 It is also the assize most closely related to H enry
and his advisers’ desire to m aintain peace in the realm.
According to Glanvill, ‘the defeated party, w hether he be
the appellor or the appellee, is always in the lord king’s
mercy on account of violent disseisin’.21 Novel disseisin
focused on the actions and antagonism o f the two parties.
It could be brought only against the disseisor, n o t his heir.
The disseisee was said to be com plaining o f the disseisin,
rath er than seeking his land as in mort dʼnncestor.22 Some

court. See J. Biancalana, ‘For w ant o f justice: legal reform s o f H enry

II’, Columbia Law Review 88 (1988), 448-9 n. 56; Milsom, Legal
Framework, pp. 57-64; H udson, Land, Law, and Lordship, pp. 255-6
n. 6 includes fu rth er refs.
19. D. W. S utherland, The Assize of Novel Disseisin (Oxford, 1973), p. 43.
O n o th e r actions, see e.g. Pollock an d M aitland; W. L. W arren,
Henry II (London, 1973), ch. 9; Lincs., pp. lxxv-vi.
20. Sutherland, Novel Disseisin, p. 48; n o te th at whereas initially the
assize dealt only with recen t disseisins, particularly in the later years
o f J o h n ’s reign the tim e lim it was extended, allowing ever-older
disputes to be heard; ibid., pp. 55-6. T he following account rests
initially on ibid., esp. pp. 64ff., which in tu rn draws largely u p o n
Bracton.
21. Glanvill, xiii 38, Hall, p. 170; on which see Sutherland, Novel
Disseisin, p. 27 n. 2.
22. But see e.g. Rotuli Cuńae Regis, i 48 for use o f the word ‘seeking’.

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am ercem ents for disseisin were very heavy.23 However,

novel disseisin was n o t merely a police m easure, but was
im portant within the whole range of land actions. It
ensured that a claim ant could n o t simply seize the disputed
land and then enjoy it th roughout the lengthy process of
establishing the greater right, or even argue that being in
seisin backed up his claim.24
Few recorded cases explain their underlying origins.
Some com plaints were against lords, oppressing their
vassals or simply enforcing their rights - the difference may
often have been in the eye o f the beholder. Alternatively, a
lord, having received new estates, was over-enthusiastic in
dispossessing sitting tenants if they did not subm it
immediately.25 A nother significant set o f cases concerned
nuisances, for exam ple the raising of mill-ponds to the
detrim ent o f an o th er’s mill. A series of such disputes m ight
occur, am ounting to a m inor feud.26
Feeling that a disseisin had occurred, the plaintiff
generally w ent to the chancery and purchased a writ:

T h e king to th e sheriff, g reetin g . N. has co m p la in e d to m e

th a t R. unjustly a n d w ith o u t a ju d g m e n t disseised him o f his
free te n e m e n t in such-and-such a place since my last voyage to
N orm andy. T h e re fo re I c o m m a n d you th at, if N. gives you
security fo r p ro se cu tin g his claim , you are to see th a t the
chattels w hich w ere taken fro m th e te n e m e n t are re sto re d to
it, a n d th a t th e te n e m e n t a n d th e chattels re m a in in peace
u n til th e Sunday after Easter. A n d m eanw hile you are to see
th a t th e te n e m e n t is viewed by twelve free a n d lawful m e n o f
th e n e ig h b o u rh o o d , a n d th e ir nam es e n d o rse d o n this writ.
A nd su m m o n th e m by g o o d su m m o n ers to b e b e fo re m e o r
my justices o n th e S unday after E aster, ready to m ake the
re co g n itio n . A n d su m m o n R., o r his bailiff if h e h im self
c a n n o t be fo u n d , o n th e security o f gage a n d reliable sureties
to b e th e re th e n to h e a r th e reco g n itio n . A nd have th e re th e

23. Sutherland, Novel Disseisin, p. 27.

24. O n awareness o f the practical advantage o f being in seisin, see
Jocelin, pp. 50-1.
25. See e.g. Rotuli Curiae Regis, i 62-3; note also e.g. Lincs., no. 477.
26. See e.g. Lincs., nos 121, 140, 324, 341, 371, 413; J. S. Loengard,
‘T he Assize o f Nuisance: origins o f an action at C om m on Law’,
Cambridge Law Journal 37 (1978), 144-66; also Sutherland, Novel
Disseisin, pp. 11-12; Flower, Introduction, pt. II ch. 18.

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sum m oners, a n d this writ, a n d th e nam es o f th e sureties.

W itness, etc.27

Next, usually in the presence of the sheriff, the plaintiff

had to nom inate two sureties as security that he would
prosecute his case; otherwise plaintiff and sureties would be
am erced. Likewise, the sheriff, generally through one o f his
bailiffs, ‘attached’ the defendant or, failing him, his bailiff;
that is, he had to provide two sureties that he would appear
in court on the specified day. Failure to appear would lead
to the sureties and the defendant being am erced.
Meanwhile, the sheriff formally instructed his bailiff to
em panel the necessary recognitors. The plaintiff and
defendant were invited to this em panelling, and m ight
challenge nom inations. More than twelve recognitors
m ight, therefore, be em panelled, to prepare for challenges
or later essoins. The recognitors were assigned a day in
court and then sent to view the land. In the presence, if he
so wished, o f the defendant or his bailiff, the plaintiff
indicated to the recognitors the disputed land or the
nuisance he claim ed to have suffered.
Now came the day for appearance in court. According to
Glanvill, ‘No essoin is allowed in this recognition. W hether
or n o t the disseisor comes on the first day, the assize shall
proceed.’ Default led to im m ediate loss o f his plea.
Similarly, the defendant was allowed no delay. If neither he
no r his bailiff appeared, the assize gave its verdict in his
absence. Only if too many recognitors essoined themselves
was the case postponed, although even then the court
would proceed as far as it could, short of a verdict.28
Even if both parties appeared, the assize m ight still not
have to proceed. O f ju st over sixty cases decided before the
1202 Lincolnshire eyre, in four the parties were granted
licence to agree and in another four the defendant
adm itted his wrongful deed. Plaintiffs too m ight not

27. Glanvill, xiii 33, see also e.g. 36 (nuisance), Hall, pp. 167-9.
Sutherland, Novel Disseisin, pp. 64-5 notes th at ‘if the disseisin had
been com m itted during a general eyre in the county, the justices in
eyre could issue the original writ themselves’.
28. Glanvill, xiii 38, Hall, p. 169; Lincs., no. 460; Rotuli Curiae Regis, ii
19-20. PKJ, iv 4051 shows th e assize proceeding in the d efe n d an t’s
absence; the recognition fo u n d against him, an d h e was in mercy.

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proceed; in six instances the case was n o t prosecuted, in

another five the plaintiff retracted, in one m ore he is
simply recorded as having placed him self in the king’s
mercy.29 T he majority o f cases, however, did proceed with
the assize. T he writ makes it sound as if the assize was taken
immediately the parties were in court. However, the plea
rolls reveal that the alleged disseisor or his bailiff was asked
w hether he wished to say anything in his defence, and
Bracton advised th at justices should n o t rush the assize but
should enquire into the case by a series o f questions. The
defendant m ight at this stage bring forward a technical
objection to the com plaint against him, for instance that
the plaintiff was a m arried woman suing w ithout her
husband.30 Alternatively, he m ight produce further
evidence and argum ents, for exam ple that the plaintiff had
given him the tenem ent, or that the disseisin was in fact by
judgm ent, or that the plaintiff was a villein or the tenem ent
n o t free.31 As in the latter instances, such exceptions often
adm itted that the disseisin had taken place, but that the
disseisor was acting within his rights. These pleadings m ight
require further action, the proffer o f a charter, the
appearance o f the suitors o f the court which had adjudged
the disseisin, or the production o f the plaintiff s relatives to
prove that he was a villein.32 If such a pleading depended
on a point o f law, it could be decided by a ruling o f the
court. M uch m ore often pleading turned on specific points
o f fact which led to a trial by jury. Sometimes a jury was
then sum m oned, but on other occasions it was constituted
by the existing recognitors being re-employed to try the
special issue.33

29. Lincs., nos 37, 84, 183, 423 license to agree; nos 51, 172, 410, 413
d efen d an t admits wrong; nos 52, 252, 376, 403, 419, 420; 24, 34, 93,
311, 371; 368, plaintiffs n o t proceeding. Failing to proceed could
again m ean th at an out-of-court settlem ent had been reached.
30. E.g. CRR, iii 345.
31. See e.g. Lincs., nos 36, 251, 423. See also PR16HII, p. 149;
S utherland, Novel Disseisin, pp. 12, 19-20; Milsom, Legal Framework,
p. 21.
32. E.g. D. M. Stenton, ed., The Earliest Northamptonshire Assize Rolls, AD .
1202 and 1203 (Northants. Record Soc., 5, 1930), no. 638; CRR, iii 126.
33. Such instances clarify the often confusing distinction in land cases
between an assize and a trial jury in its stricter sense at this time. An
assize (o th er than the G rand Assize) was sum m oned by the original

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If the assize went ahead, the parties were given a final

chance to challenge the recognitors. Next, the recognitors
took their oath: ‘H ear this, O justices, that I will speak the
tru th as to this assize and as to the tenem ents of which I
have m ade the view by o rder of the king.’ They then
deliberated in a private place, before returning to give their
verdict. Again the justices m ight give guidance, through a
series o f questions concerning the facts of the case and the
recognitors’ reasoning.34
According to Glanvill, ‘In this recognition the party who
has proved the recent disseisin can require that the sheriff
be o rdered to see that the chattels and produce, which
have in the m eantim e been seized by the com m and of the
lord king or his justices, are restored to h im ’.35 From 1198
the procedure changed and instead o f a restoration of
produce and chattels, the assize was called upon to assess
damages, the Lincolnshire eyre o f 1202 recording am ounts
varying from four pence to twenty marks.36 Finally, the
ju d g m en t was carried out. If the com plaint had been
successful, the sheriff restored the plaintiff to seisin, with
the recognitors pointing out w here the relevant land was.
T he disseisor was am erced and from him the sheriff was
entitled to an ox or the m onetary equivalent.37
This need not, however, be the end of the m atter. The
losing party could challenge the assize’s verdict. H e could
proceed by ‘attaint’, that is by obtaining - often at notable
expense - a jury o f twenty-four m en who m ight convict the
recognitors o f having m ade a false oath. O r he m ight
proceed by ‘certification’, that is by re-assembling the assize
justices, the opponent, and generally the recognitors before
an o th er court, normally the king’s. Either procedure m ight

writ, at the same tim e th at the d efen d an t was sum m oned, and
before any pleading took place; a ju ry was sum m oned to answer a
question raised in pleadings. See Pollock an d M aitland, i 149.
34. Bracton, f. 185, T h o rn e, iii 72; S utherland, Novel Disseisin, p. 73,
although n o te th at his earliest evidence comes from the 1220s.
35. Glanvill, xiii 38, Hall, p. 170.
36. E.g. Lincs., nos 103, 409; S utherland, Novel Disseisin, pp. 52-4.
Flower, Introduction, pp. 473-9, assembles clues as to the
relationship betw een dam age an d damages.
37. N ote am ercem ents for withdrawing or n o t pursuing com plaint, e.g.
CRR, iii 129, 137; Lincs., nos 52, 252.

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lead to the reversal o f the ju d g m en t.38 Alternatively, the

defeated party m ight accept the assize’s verdict b u t obtain a
writ o f right. Pleading in a case o f 1212 is particularly
revealing concerning such ‘dual process’:

H e rb e rt re p lie d th a t h e was n o t b o u n d to answ er . . . because

he h a d o b ta in e d this la n d against N icholas by ju d g m e n t in the
c o u rt o f th e lo rd king. N icholas re p lie d th a t h e h a d only
reco v ered seisin by w rit o f novel disseisin, a n d so h e was
no n e th eless b o u n d to answ er h im c o n c e rn in g right.

Thus dual process represents a practical m anifestation of

the distinction between seisin and right.39

(ii) Mort d ’ancestor

We first learn o f mort d ’ancestor from the Assize of
N ortham pton:

If th e lo rd o f th e fee den ies to th e h eirs o f th e d e a d m a n the

seisin o f th e deceased w hich they d e m a n d , th e ju stices o f the
lo rd king a re to m ake to b e h e ld c o n c e rn in g this a reco g n itio n
by twelve lawful m e n as to w hat so rt o f seisin th e d eceased h a d
th e re to o n th e day o n w hich h e was alive a n d d ead , a n d as it is
recognized, so they are to m ake restitu tio n to his h eirs.40

H ere the concern clearly is with the lord refusing seisin to

the heirs. He m ight be trying to hold on to the land for
himself, or a third party m ight have entered the land,
either seised by the lord or at least having gained his
recognition. Family gifts caused various problem s, as did
the succession of heiresses. O ther disputes tu rn ed on the
nature o f the tenure, sometimes on w hether the ancestor
really had held in fee, most notably on w hether the
tenem ent was held in villeinage.41

38. S utherland, Novel Disseisin, pp. 74—5; Lincs., no. 120; cf. Lawsuits, no.
650. Note, however, th at Glanvill is silent on these points.
39. CRR, vi 291; n o te also e.g. PRS, ns 31 (1957), p. 106; see above, p.
150.
40. EHD, ii no. 25, c. 4.
41. See Lincs., nos 155, 414, 416, Milsom, Legal Framework, p. 167,
Biancalana, ‘Legal reform s of H enry II’, 509.

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Q uite possibly from its creation, the assize was o f limited

scope. T he plaintiff and the cu rren t tenant m ust n o t be
kin, a p o in t on which a significant num ber o f claims fell.42
Moreover, the assize was available only to those relatives of
the deceased tenant whose claims to succeed were generally
accepted: sons, daughters, brothers, sisters, nephews,
nieces.43 If such close heirs had been excluded from their
inheritances it was very hard to deny that there had been a
default o f justice which justified a rem edy in the king’s
court. Also, in such cases, a group o f neighbours was likely
to know who was the closest heir. It is notable that the
scope o f the assize was n o t extended, only in H enry I ll’s
reign being supplem ented by the actions o f aiel, besaiel
and cosinage. These were available against m ore distant
relatives, and Bracton noted that some lords objected that
their jurisdiction was being infringed.44
In mort ďancestor, the plaintiff obtained a royal writ which
he took to the sheriff:

T h e king to th e sheriff, g reetin g . If G. son o f O . gives you

security fo r p ro se cu tin g his claim , th e n su m m o n by g o o d
su m m o n ers twelve free and lawful m en fro m th e
n e ig h b o u rh o o d o f such-and-such a place to be b e fo re m e o r
my ju stices o n a c ertain day, ready to d ec lare o n o a th w h e th e r
O . th e fa th e r o f th e aforesaid G. was seised in his d em esn e as
o f his fee o f o n e virgate o f la n d in th a t place o n th e day h e
died, w h e th e r h e d ie d a fte r my first co ro n atio n , a n d w h e th e r
th e said G. is his closest heir. A n d m eanw hile le t th e m view the
land; a n d you are to see th a t th e ir nam es a re e n d o rse d o n this
writ. A nd su m m o n by g o o d su m m o n ers R., w ho h o lds th at
land, to be th e re th e n to h e a r th e reco g n itio n . A nd have th e re
th e su m m o n e rs a n d this w rit.45

As in novel disseisin, the plaintiff had to give security that

he would pursue his case, and the disputants were

42. Flower, Introduction, pp. 153-4; Lincs., p. lxxiv, n o ting th at this

lim itation was apparently poorly understood.
43. Biancalana, ‘Legal reform s o f H enry II’, 486, 508; H udson, Land,
Law, and Lordship, p. 114 n. 26.
44. F. W. M aitland, The Forms of Action at Common Law (Cam bridge,
1936), p. 25; F. W. M aitland, ed., Bracton’s Note Book (3 vols,
L ondon, 1887), pi. 1215, Bracton, f. 281, T h o rn e, iii 318.
45. Glanυill, xiii 3, Hall, p. 150.

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sum m oned to be present at the selection o f recognitors.

These then m ade the view o f the tenem ent. However,
unlike in novel disseisin, the ten an t was allowed two
essoins; if he failed to appear on the third day, the assize
proceeded w ithout him .46 If both parties were present in
court, the ten an t m ight vouch a w arrantor.47 If not, he was
then asked ‘w hether he wishes to show cause why the assize
should n o t p roceed’. He m ight p u t forward various
exceptions, based on technical objections to the writ or on
the facts of the particular case.48 T he latter m ight be that
the plaintiff had been in seisin and then ‘sold or given as a
gift or quitclaim ed or in some other lawful way alienated
the tenem ent to h im ’, or that the plaintiff was illegitimate
or a villein. Unless the plaintiff simply adm itted his
exception, the defendant had to ask for a jury decision, or
- in the case of alleged conveyances - offer p ro o f by battle.
If no exception was pleaded, ‘the recognition shall proceed
in the presence o f both parties and by the oath o f the
twelve recognitors, according to whose verdict seisin shall
be adjudged to one or other of the parties’. If the case
ended in the d em andant’s favour, another writ ordered
that the sheriff deliver him seisin, and he was also to
recover seisin of everything found on that fee at the time
when seisin was delivered.49 Again the writ of right was
available to defeated parties.
Glanυill classified mort ďancestor and novel disseisin with
various other recognitions both in procedural terms and as
pleas which were concerned ‘only with seisins’, as opposed
to right. The emphasis is upon speed, notably through the
reduction of the num ber of essoins com pared with
procedure determ ining right. Whilst there came to be four
main recognitions, novel disseisin, mort ďancestor, utrum and
darrein presentm ent, this num ber was far from

46. See Lincs., no. 496 for an assize proceeding by default.

47. S. J. Bailey, ‘W arranties o f land in the reign o f Richard ľ , Cambridge
Law Journal 9 (1945-47), 202, Lincs., pp. lxxiv-lxxv; cf. G lanvilľs
doubts, xiii 30, Hall, p. 166. See also above, pp. 110-11, on warranty.
48. See e.g. Lincs., no. 404, Rotuli Curiae Regis, i 56-7; som eone held
after person n am ed in writ: Rotuli Curiae Regis, i 139-40, CRR, i 96;
Lincs., p. lxxiv.
49. Glanυill, xiii 7-11, Hall, pp. 151-6, q uotadon at pp. 155-6; Lincs.,
no. 392 for a split decision - n o te com prom ise settlem ent.

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preordained. T here were others in Glanvill, for exam ple

concerning w hether land was held in fee or only wardship,
and this and o th er procedures also existed in N orm andy.50
The lim itation in the num ber o f such recognitions was
accom panied by the appearance o f writs o f entry.51 Again,
the developing com m on law was taking a variety of
directions, n o t conform ing to some initial overall plan.

(in) Writ of right and grand assize

The reversal o f decisions o f recognitions was only one of
the uses o f the writ o f right. It could initiate hearings
concerning disputes begun by two parties claiming to hold
o f the same or different lords, by an aspiring tenant, or by
a lord seeking to take land from a ten an t and restore it to
his dem esne. Such disputes occurred in various
circumstances, for exam ple when an inheritance was
claimed outside the scope o f mort dʼnncestor, when a lord
retained land because o f d oubt as to the correct heir, when
problem s arose from various kinds o f family gifts, or when
rem arriage had led to a difficult inheritance dispute.52 The
d em an d an t obtained a writ, generally addressed to the lord
o f whom he claimed to hold:
T h e king to E arl W illiam, g reetin g . I co m m an d you to do full
rig h t w ith o u t delay to N. in re sp e c t o f te n carucates o f la n d in
M iddleton w hich h e claim s to h o ld o f you by th e free service
o f o n e h u n d re d shillings a year fo r all service, w hich lan d
R o b ert son o f W illiam is w ith h o ld in g fro m him . If you d o n o t
d o it th e sh e riff o f D evonshire will, th a t I m ay h e a r n o fu rth e r
c o m p lain t fo r d efau lt o f rig h t in this m a tte r.53
We know of some writs producing hearings in lords’
courts,54 and o f duels being fought there, b u t unfortunately

50. Glanvill, xiii 1, 14, Hall, pp. 148, 157-8; see also e.g. xiii 26-30, pp.
164-6; TAC, xix, lxxxvi-vii, Tardif, pp. 20-1, 96-8.
51. See above, p. 136, on the way in which these writs b ro u g h t cases
directly before the royal justices an d focused a recognition’s
attention on a specific flaw in the te n a n t’s title.
52. Milsom, Legal Framework, p. 84, 86, 90, 132, 137; CRR, i 1; 75; CRR, v
241-2.
53. Glanvill, xii 3, Hall, p. 137.
54. E.g. PRS, ns 31 (1957), pp. 87-8, Rotuli Curiae Regis, i 64; note also
e.g. CRR, iii 132.

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cannot tell w hether these are only the tip o f the iceberg: if
the lo rd ’s court came to an acceptable decision, no
evidence may survive since our records concern primarily
the royal courts. However, as we shall see, there are reasons
for believing that lords’ courts were growing less im portant.
O n occasion lords’ courts defaulted and the cases were
dealt with by the county. Alternatively, the king o r his
justices m ight determ ine cases over right to land, either
sum m oned directly by writ praeάpe or transferred from the
lo rd ’s or county court.55
Bringing the relevant parties to court was often a very
lengthy process because of the wide use o f essoins. O nce
there, the plaintiff m ade his claim. At the time o f the
earliest plea rolls, he could seek to establish his right
through an ancestor’s seisin on the day of H enry ľ s death,
although some looked back to the Conquest and beyond.56
T he tenant m ight ask for a view o f the land in order to
distinguish which of his lands in the place nam ed by the
writ were disputed, and he also m ight well vouch his lord to
warranty. If such questions were n o t raised, the ten an t put
forward his counter-claim. The ten an t m ight then choose
to defend him self by battle. T he dem andant had to be
represented by a cham pion, that is by one who would back
up his plea supposedly as a witness; in practice in the late
twelfth century cham pions were n o t real witnesses but m en
required as a m atter o f form to say that they or their
fathers had witnessed the seisin on which the dem andant
based his claim. Failure of the cham pion to act as witness
lost the case.57 The tenant m ight defend himself in person or
by a cham pion. H ired cham pions should n o t be allowed.58
T he vanquished cham pion was liable to a penalty and ‘to
lose all his law; that is to say, he shall never again be
allowed as a witness in court and therefore can never make
p ro o f for anyone by battle’. If the te n an t’s cham pion was
defeated, the tenant h ad to restore the land to the
dem andant, together with the produce found on the fee at
55. On the transfer o f cases, see below, p. 231, on praeάpe, below, p. 225.
For the county dealing with another writ of right, Lawsuits, no. 659.
56. See e.g. CRR, i 93; also Brand, Making, pp. 221-2 on the possibly
fairly recen t origin o f the 1135 date.
57. CRR, i 71.
58. Lincs., no. 260.

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the time when seisin was delivered. Cases settled by battle in

the king’s court were, according to Glanvill, settled for ever.59
However, the tenant had an alternative to battle - the
g rand assize. Glanvill presents this as a benefit, but
sometimes the procedure may n o t have been very desirable
for the tenant. In a dispute with the prior of Spalding,
which had reached the king’s court,

th e a b b o t o f C row land h a d n o t used d u e p re c a u tio n , because

h e h a d n o t b ro u g h t with h im th e royal c h a rte r n o r any stro n g
young m an w ho co u ld offer gage u p o n th e ow nership o f the
m arsh o n b e h a lf o f th e abbot. . . . A n d because th e a b b o t
co u ld n o t choose th e d u el, h e was b o u n d to co n se n t to a
reco g n itio n , a lth o u g h d a n g e ro u s to him . F o r th e k n ights o f
th e shire a re very far away fro m th e m arsh o f C row land a n d
know n o th in g o f its b o u n d a rie s a n d th e re is hardly anyone in
th e co unty o f L incoln w ho is n o t in som e way b o u n d e ith e r to
th e h o u se o f Spalding, o r to W illiam d e R o u m are, o r to o n e o f
those w ho h a d m oved a claim u p o n th e m arsh .60

T he grand assize automatically took the case into a royal

court. The d em andant had to decide w hether or n o t he too
would p u t him self upon the assize, and if he was unwilling
so to do, m ust show his reason. Glanvill singled out the
possibility o f kinship between the parties. If the tenant then
adm itted the kinship, ‘the assize shall n o t p ro ceed ’; verbal
pleading and enquiry would determ ine the rightful heir, to
whom the land w ent unless it could be shown that an
ancestor had wholly alienated or lost that right. If the
ten an t denied the kinship, the question o f their
relationship was p u t to the parties’ relatives who were
sum m oned to the court. If kinship was established, the
procedure was as already outlined. Otherwise, ‘if the court
and the lord king’s justices take the contrary view, then the
dem andant, who by pleading that the parties were o f the
same stock maliciously attem pted to frustrate the assize,
shall lose his case’.61

59. Glanvill, ii 3, Hall, p. 25.

60. Lawsuits, no. 641.
61. Glanvill, ii 6, Hall, pp. 26-8; also e.g. Flower, Introduction, pp.
139—40. O n the increasing use o f exceptions, see Brand, Legal
Profession, pp. 40-2.

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If the assize w ent ahead, ‘the te n a n t. . . should first

purchase a writ of peace’ in o rder to stop the case
temporarily:
T h e te n a n t w ho p u ts h im self u p o n th e assize secures p eace by
such writs u n til th e d e m a n d a n t com es to c o u rt a n d p u rchases
a n o th e r writ, w hich provides th a t fo u r lawful knights o f the
county a n d o f the n eig h b o u rh o o d shall elect twelve lawful knights
o f the same n eighbourhood, w ho are to declare on o ath w hich
o f th e parties has th e g re a te r rig h t in th e la n d sought.
Again, many essoins were available, and the procedure was
slow despite Glanvill's praise for its relative speed.62
Eventually, twelve knights were elected and arrived in
court. T heir recognition went ahead w hether or n o t the
tenant was present, but the dem andant·was allowed essoins.
According to Glanvill, if the twelve knights could n o t agree,
further knights were added, until at least twelve agreed in
favour of one party; however, lack of later evidence for such
added knights suggests that this practice soon died out. If
the knights declared
th a t th e te n a n t has th e g re a te r rig h t th e re in , o r m ake som e
o th e r fo rm o f d eclaratio n fro m w hich it sufficiently ap p e ars to
th e lo rd king o r his ju stices th a t this is th e case, th e n th e c o u rt
shall aw ard th a t th e te n a n t be se n t away, q u it fo r ever fro m the
d e m a n d a n t’s claim; m o reo v er th e d e m a n d a n t shall never
again effectively be h e a rd in c o u rt o n this m atter. . . . O n the
o th e r h a n d , if th e ju d g m e n t o f th e c o u rt b ased o n th e assize is
in favour o f th e d e m a n d a n t, th e n the o th e r party shall lose the
la n d in q u estio n , a n d shall resto re with it all p ro d u c e a n d
profits fo u n d o n it a t th e tim e seisin is deliv ered .63

Yet it would again be wrong to assume that m ost cases came

to such a decisive end. O f the assizes h eard at Lincoln in
1202, in one the dem andant would n o t let the assize swear
and adm itted the te n an t’s right, in another two the jurors
answered the question p u t to them by the justices. In ten
others it is specified that a final concord was m ade, and the
rem ainder reached no conclusion at Lincoln.64
62. Glanvill, ii 7-10, 12, Hall, pp. 28-32.
63. Glanvill, ii 18, Hall, p. 35.
64. Lincs., p. lxix; nos 149; 61, 188; 22, 76, 82, 117, 133-4, 139, 145,
148, 157; in addition nos 186, 196 were to en d with final concords,
b u t this is n o t m en tio n ed on the roll.

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THE IMPACT OF CHANGE

(i) Procedure
The reform s’ most obvious im pact was to bring a greater
nu m b er o f parties and cases into contact with royal justice.
This is reflected in the developm ent o f royal courts, the
changing role of local courts, and the decline of lords’
courts. The chronology is necessarily unclear, since formal
records of the royal courts only begin to survive from the
1190s.65 These records do, however, confirm the
im portance of the eyre: in the Michaelmas term 1194 the
court at W estm inster heard twenty novel disseisin cases,
whilst the eyre h eard twenty such cases in W iltshire alone.66
Various criteria helped to determ ine w hether a case went to
the central court or the eyre. T he plaintiff s choice was one
influence, as was his willingness and capacity to pay for a
hearing at his court of choice: the central court was
probably always m ore expensive than the eyre. A nother
influence m ight be a d efen d an t’s privilege o f only
answering before the king.67 In addition, there were some
u p p e r limits to the scale o f cases the eyre should hear;
the Assize o f N ortham pton m entions half a knight’s fee,
whilst the articles of 1194 set a m axim um o f lands worth
100 shillings a year for grand assizes before the eyre.68
However, this did not m ean that the central courts only
heard cases about large am ounts of land. Indeed, the
records of both the eyre and the court at W estminster were
largely concerned with lawsuits between m inor m en about
small am ounts of land. Thus nearly one-third of the
N orfolk final concords m ade before the 1209 eyre
concerned less than five acres. A lthough such m inor
actions involving royal justice were n o t new in the late
twelfth and early thirteenth centuries, they were surely

65. E.g. Hyams, ‘W arranty’, 478 sees the 1170s as a turning-point.

66. Sutherland, Novel Disseisin, p. 60 n. 1.
67. E.g. Lincs., no. 437.
68. EHD, ii no. 25, c. 7 and iii no. 15, c. 18 respectively; these am ounts
are reflected in the earliest register o f writs. All royal courts seem to
have insisted that esplees, the products o f the lands o r the value of
services, should be a m inim um o f 5s. p.a.

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becom ing m ore com m on.69 How far they were econom-
ically rational is very hard to tell. Rather, they show a
willingness to invest in litigation, to stand up for o n e ’s
rights and honour, and to look for the most decisive
possible source of justice.
Change affected n o t ju st the place b u t also the form of
litigation. The use and exam ination of w ritten docum ents
becam e m ore extensive. An interesting instance records
that a party in a dispute kept its charters locked in a chest;
w hen needed, the chest was produced and opened in
court.70 Certainly there was a continuing preference for
hum an witnesses, and an insistence that livery of seisin, not
the writing o f a charter was crucial to a conveyance.71
However, the treatm ent of docum ents in court was
becom ing m ore sophisticated, increasingly subjecting them
to technical close reading. Specific failings in writs, or
variation between the writ and the pleading m ight lead to
the dismissal o f the case, at least until a better writ was
obtained.72
In general, pleading grew m ore specific and technical,
tending to focus upon a single point o f law or fact. This
m ight be the case in any court, notably with the pleading of
exceptions, b u t was in particular associated with the use of
the ju ry in royal courts.73 The parties m ight agree to be
bound by a jury verdict concerning an issue of fact, or one

69. B. Dodwell, ed., Feet o f Fines for the County o f Norfolk, 1201-15 (PRS,
ns 32, 1958), pp. xxvi-vii; for central co u rt records, see e.g. CRR, i
35, 37, 38 etc.. For earlier cases involving small am ounts of land, see
above, p. 108 for H enry ľ s reign, p. 127 an d Stenton, English Justice,
pp. 28, 43 for th e early years o f H enry II.
70. CRR, vii 272; for careful exam ination of docum ents early in H enry
Iľ s reign, see Pollock an d M aitland, i 157-8.
71. N ote M. T. Clanchy, From Memory to Written Record (2nd edn,
O xford, 1993), esp. pp. 260-6; P. R. Hyams, ‘T he ch arter as a
source for the early com m on law’, Journal o f Legal History 12 (1991),
184; b u t the situation m ight have changed, see Bailey, ‘R ichard ľ ,
199.
72. See Flower, Introduction, pt. Ill ch. 1, esp. p. 344; CRR, iv 238; Lincs.,
nos 293, 320, 401; also below, p. 235.
73. N ote e.g. Lincs., no. 405; also Lawsuits, no. 641 (p. 684); see above,
p. 110 for A nglo-Norman precursors, and Lawsuits, no. 408, the
Anstey case from early in H enry Iľ s reign; also Hyams, Ό rd e a ľ ,
119.

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party m ight buy from the king an enquiry into the other
party’s claim.74
The enquiries whereby justices guided the handling of
cases also led to greater precision. Furtherm ore, the justices
m ight well be outsiders, less likely to be sympathetic to
local custom or the politics of local affairs. With the desire
for speedier justice, they m ight be m ore prepared than
earlier court presidents to rule certain m atters out o f court.
These tendencies are illustrated by Glanυill’s statem ent that
‘the court of the lord king is n o t accustom ed to protect
private agreem ents’.75 Moreover, from the later years of
H enry Iľ s reign the justices themselves, n o t the suitors,
appear to have m ade judgm ents.76 Even if these rested
heavily on the verdicts o f recognitions, the justices had
considerable influence, and the reform ers’ willingness to
look to the discretion of justices surfaces occasionally in
Glanυill77 The justices’ perceptions of correct procedure,
lordship, and land-holding practice m ight conflict with and
predom inate over those o f some others involved in the
case. The spread of royal justice was thus likely to produce
a m ore standardized, m ore rule-based legal procedure.
Change was n o t lim ited to procedure within court. The
availability o f the new royal actions led lords to modify their
extra-judicial activities, for exam ple in enforcing their
rights.78 T he increasing influence of royal justices came to
marginalize or delegitimize certain forms of self-help or of aid
which lords provided for their followers. In the 1170s or
1180s, Roger de Mowbray received the hospital of St Leonard,
York, into his own hand and defence, and ordered his m en to
guard and m aintain it in his absence. His seneschal was to
make anyone acting against the tenor o f his charter observe
it ‘as he loves me and the salvation o f my soul’.79 Yet whilst
74. See e.g. Lincs., nos 36, 119, 177, 511; also Pollock and M aitland, i
149, ii 611-18.
75. Glanυill, x 18, Hall, p. 132; also x 8, p. 124, Bracton, ff. 34, 100,
T h o rn e, ii 109, 286, an d see above, p. 189.
76. See above, p. 151.
77. E.g. GlanviĶ ii 12, Hall, p. 32; on privatae conυentiones, see above, p.
189.
78. See above, p. 192, below, pp. 213-14.
79. D. E. Greenway, ed., Charters of the Honour of Mowbray, 1107-1191
(London, 1972), no. 313, cited with other examples at Hyams,
‘Warranty’, 449.

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warranty was to rem ain p art of com m on law, such active

‘m aintenance’ would be, from the lord and his followers’
point o f view, at best a private affair, at worst the target of
royal action.
G reater care was also needed in transfers o f land and the
recording o f grants. Whilst grants continued to be m ade in
lords’ courts, the county or the king’s court became
increasingly attractive alternative or additional venues.80
C harter usage o f honorial addresses - to the d o n o r’s m en
and officials - declined, being replaced by m ore general
forms, for exam ple to all people present and future who
m ight see the charter.81 M oreover, the preferences o f the
royal justices may have had an effect on the very form of
the transfer or ‘livery’ of seisin. In the earlier twelfth
century a symbolic livery away from the land, for exam ple
by a knife, sufficed. However, in the late twelfth and early
thirteenth centuries a successful conveyance required not
only an initial m aking o f a gift but also an actual livery on,
or possibly in sight of, the land. The symbolic livery
perhaps had sufficed to announce the conveyance to the
suitors of the lo rd ’s court, but not to the potential jurors
upon whom the royal justices would rely.82
The drafting o f charters also becam e m ore careful. This
was n o t a purely English p henom enon,83 b u t it was surely
affected by the treatm ent of charters in courts, as discussed
above. C harter draftsm en had to guard against omissions
which m ight be exploited. For exam ple, it became
increasingly com m on to include a clause explicitly
prom ising warranty to the ten an t and his heirs. Parties paid
to have transactions or agreem ents registered on Pipe Rolls,
presumably in order to make them m ore than m ere
‘private agreem ents’.84 In addition, the expansion o f royal
justice prom oted the use o f final concords as a form of
conveyance and record. These recount th at a plea had

80. See e.g. CRR, iii 129 for a gift m ade in a lo rd ’s co u rt b ut then
an n o u n ced in the county. See also below, p. 216, on the partition of
lands am ongst heiresses.
81. H udson, Land, Law, and Lordship, p. 272 n. 69 and refs.
82. S. E. T h o rn e, ‘Livery o f seisin’, Law Quarterly Review 52 (1936),
345-64.
83. Hyams, ‘C h arter’, 179.
84. Ibid., 181.

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been bro u g h t before the royal justices, and that one party
recognized and quitclaim ed the disputed land to the other.
Such a final concord or ‘fine’ was conclusive proof in future
cases, and - unlike a charter - required no one to w arrant
it. H uge num bers of final concords survive, particularly
from certain areas such as East Anglia: the 1202 eyre
produced 150 Norfolk final concords within a few weeks at
Norwich, forty-one Suffolk final concords within a few days
at Ipswich. Obviously, their form makes it very difficult to
assess w hether such fines record genuine cases or collusion
aim ed at securing conveyances. O pinions differ, but even
some of the m ore m odest estimates of collusion cannot rule
out the growing use o f fines as records of conveyances.85
Fines thus relate to the enabling and preventative
functions o f law, enabling well-protected grants, preventing
future challenge. They helped in m aking aspects of land-
holding m ore certain, m ore predictable. M ethods such as
collusion reflect practical legal learning, and are connected
with an o th er contem porary developm ent, the increasing
need for m ore specialized legal expertise. This m ight take
the form of counsel in court or advice in obtaining an
appropriate and correctly drafted writ or charter.
Meanwhile, the royal justices’ enforcem ent to the letter of
reform s and actions, including technicalities which the
parties in disputes did n o t fully understand, increased the
need for such legal expertise.86

(ii) Limits of procedural change

Having focused upon the im pact of the Angevin reforms, it
rem ains necessary to emphasize elem ents o f continuity. The
concentration o f business upon the king’s court may well
have been gradual rather than im m ediate. At least at first

85. Dodwell, Norfolk Fines, esp. pp. xii-xiii, xx-xxi, xxiii, an d review by
G. D. G. Hall, EHR 75 (1960), 514-15; Flower, Introduction, p. 266;
Hyams, ‘C h arter’, 185.
86. Brand, Legal Profession, chs 2-4; Hyams, ‘C h arter’, 184; cf. above, chs
2, 5, below, ch. 8. J. R. M addicott, ‘Law an d lordship: royal justices
as retainers in thirteenth- and fourteenth-century E n gland’, Past and
Present Supplement no. 4 (1978) dates the start o f the retaining of
royal justices by lords to the second q u arter o f the th irteen th
century.

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the reform s’ concentration upon cases of default of justice

im plied a continuing role for the lo rd ’s court.87 Convey-
anees continued to be m ade there. Heirs continued to
come to ask for their inheritances. Actions concerning
lands continued to take place, and quite probably to be
concluded, in lords’ courts, even if they were begun by
royal writ. Disseisins were m ade by ju d g m en t o f the lo rd ’s
court.88 Lords could claim their courts if they felt cases had
been wrongly rem oved or started in the wrong court, and
in 1215 they still saw their courts as worth defending.89
W ithin the courtroom , royal, local, or seignorial, the
transform ation o f the late twelfth century was far from
com plete. Pleading m ight sometimes be technical, but
eloquence, cleverness, and sham ing retained their place.90
Royal justices m ight generally seek to limit, but did not
always exclude, personal and political considerations from
the decisions o f their courts. Such considerations rem ained
influential in lords’ courts, and in the m ultitude of
com prom ise settlem ents.91 A nd even in cases proceeding by
the new actions, parties occasionally still came up with their
own ad hoc m ethods of settlem ent.92
Moreover, m uch room rem ained for self-help,
particularly against weaker opponents. Lords probably
continued to see their forceful, indeed their violent actions
as legitimate - although they would have been less willing
to accept such actions by their opponents. T heir
perceptions clashed with those o f royal justices, but
sometimes victims m ust simply have been too scared to
bring incidents to the king’s notice.93 The early plea rolls,

87. See Biancalana, ‘Legal reform s o f H enry II’, esp. 441, 486-7, and
above, p. 145; n o te also, Brand, Legal Profession, p. 29 an d esp. n. 94.
Cf. for lords’ courts in Norm andy, TAC, xli, Tardif, pp. 34-5.
88. E.g. Lawsuits, nos 623, 652; see above, p. 188, for the Cockfield case;
Lincs., no. 326, CRR, vii 235. N ote also Lincs., no. 260.
89. Glanvill, xii 7, Hall, pp. 139-40, on which see Milsom, Legal
Framework, pp. 69-70, an d below, p. 225, on M agna C arta c. 34. O n
the county court, see Lincs., p. lxii.
90. E.g. Jocelin, p. 57; see also above, p. 110.
91. See above, pp. 188, 204; see CRR, i 96 for a com prom ise reached
because o f doubts concerning the facts; Flower, Introduction, p. 462.
92. E.g. Lawsuits, no. 643.
93. See e.g. Jocelin, p. 57 for parties appearing in co u rt in such a way
as to cow th eir opponents. O n fear in cases, see above, p. 12.

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therefore, reveal only that lim ited proportion o f incidents

which led to royal action.94 Even so, they do shed increased
light upon the ways in which violence entered into land
disputes. A trial by battle m ight degenerate into an
uncontrolled fight,95 whilst out o f court far m ore terrible
events m ight occur. Nicholas of Trubweek had quarrelled
with H ugh Sturmy over certain lands. Nicholas appealed
H ugh on the grounds that, although H ugh had given him
the king’s peace, he had:

se n t his two sons J o h n a n d H u g h a n d his n e p h ew D esideratus

to N icholas’s house. W ickedly a n d w ith p re m e d ita te d assault at
n ig h t they o p e n e d a w indow o f th e ho u se, a n d w h en N icholas
was sitting a t his h e a rth , o n e o f th e m sh o t an arrow , w hence
J o h n struck h im in th e skin o f his th ro a t a n d shaved it a little.
H u g h sh o o tin g a n o th e r arrow w o u n d ed him in his rig h t arm
thus th a t h e is m aim ed, a n d D esideratus struck h im with
a n o th e r arrow th ro u g h th e m id d le o f a testicle, w h ence h e is
m aim ed, th u s th a t th e re was a view in th e co u n ty a n d the
w ounds w ere re ce n t. A nd h e said th a t they cam e fro m H u g h
th e e ld e r’s ho u se to d o th a t evil a n d re tu rn e d th e re after th e
d eed . H u g h a n d those a p p e ale d den y everything.

Particularly in the m ore distant areas o f the realm, land

disputes could develop into m inor local feuds, scaled-down
versions of the m ajor conflicts of S tephen’s reign.96
However, some self-help was acceptable to royal justices
as well as to the self-helpers. Royal justice continued to
allow certain forms o f force, notably against villeins.97 Cases
also reveal th at a disseised tenant, although n o t allowed to
eject a disseisor who had enjoyed lengthy unchallenged

94. See e.g. Flower, Introduction, p. 248 for accusation o f forcible entry
to land during the female te n a n t’s last illness; P. R. Hyams, King,
Lords, and Peasants in Medieval England (Oxford, 1980), p. 254. See
below, p. 215, for Glanvill on heirs resisting the violence o f their
lords. N ote also e.g. the continuing use o f m oney to obtain o n e ’s
ends: e.g. Lincs., no. 87; Jocelin, p. 34; Flower, Introduction, pt. Ill
ch. 13; also below, ch. 8.
95. CRR, i 100.
96. CRR, i 101; also e.g. Lawsuits, no. 629, Thom as, Vassals, p. 64; see
above, pp. 120-1.
97. See generally Hyams, King, Lords, Peasants', also e.g. Thom as, Vassals,
p. 64.

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possession, was perm itted self-help when it occurred

w ithout un d u e delay; recent and unjust possession was not
the same as the seisin protected by the assize. Moreover,
self-help m ight be used against those who had enjoyed land
for a limited term and were refusing to give it up. Forceful
entry to the disputed tenem ent seems generally to have
been as permissible. However, reseisin should n o t involve
violence to the o p p o n en t’s person or action against his
personal property and perhaps should be carried out
unarm ed. Thus forceful action was lim ited rath er than
prohibited. Self-help was n o t to be private war.98

(iii) L and-holding: security o f tenure, heritability, alienability

Having concentrated largely upon procedure, let us turn to
m ore substantive issues. Regularized enforcem ent of
procedural norm s by royal justices during litigation may
have encouraged the perception that the tenant was the
true owner, or at least the true lord, o f the land. In various
cases pleading tu rn ed upon w hether the correct person was
answering the claim. A m ere farm er o f land should not do
so, but nor should one seised only o f the services. It was the
person seised o f the land in dem esne who should answer.
T he confusions which arose may indicate that such m atters
had n o t previously required so standardized and definitive
answers.99 The reforms thus reinforced the free ten an t’s
position, strengthening its proprietal aspect.
Similar developm ents are also evident with regard to the
interrelated issues o f security o f tenure, heritability, and
alienability. A lthough a te n an t’s position may sometimes
have been threatened by a greater possibility o f rivals
bringing claims relating to the distant past, reopening
previous decisions,100 in general the land-holder’s ability to
do as he wished with his land grew. This can be associated

98. S utherland, Novel Disseisin, pp. 97-125.

9 9 .E.g. Lincs., nos 360, 494; Rotuli Curiae Regis, i 20; CRR, i 93-4, 97.
N ote also Glanvill, iii 5, Hall, p. 40 on the te n an t who chooses to
answer w ithout vouching his w arrantor; also the im plications o f the
d eforciant clause in the writ o f right, on the em ergence o f which
see Biancalana, ‘Legal reform s o f H enry II’, 449-50 n. 59.
100. N ote esp. Milsom, Legal Framework, pp. 181-2, who may exaggerate
the contrast between pre- an d post-reform situations.

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n o t only with the Angevin reform s b u t also with other

developments, many already at work in the Anglo-Norman
period. The centrality o f lordship and the h o n o u r to social
relations tended to weaken. The power o f some vassals
relative to their lords increased,101 and long tenure
continued to help to reduce the personal elem ent in
hom age and in tenure.
The te n an t’s security during his life-time continued to
strengthen. Despite instances such as A bbot Sam son’s
treatm ent of Aubrey de Ver, the lo rd ’s disciplinary
jurisdiction was shrinking. As Samson him self adm itted, the
assize o f novel disseisin m ade it impossible to eject
established intruders w ithout ju d g m en t.102 Even seisin not
established by seignorial acceptance now had a routine
form of royal protection. Also, royal justices m ight
automatically apply the rule requiring a writ to com pel a
ten an t to answer concerning his free tenem ent. These
developm ents had a particular effect on newly succeeding
lords, who, like Abbot Samson, generally held an enquiry
concerning their predecessor’s tenants. It was becom ing
increasingly difficult for them to eject unw anted tenants.
The latters’ position was stronger in p art because o f long-
term changes distancing seisin from the lo rd ’s personal
acceptance. Also they m ight call upon the assize o f novel
disseisin for protection, and the recognition’s view of what
constituted unjust disseisin was influenced by those same
long-term factors as were favouring the tenant. A lord
wishing to take effective action through an enquiry
increasingly would be wise to obtain royal backing, in the
form of a royal writ concerning the free tenem ent or a
hearing in the king’s court.103

101. See e.g. Thom as, Vassals, pp. 15, 23, 32, 36, 44—7; P. Dalton,
Conquest, Anarchy and Lordship: Yorkshire, 1066-1154 (Cam bridge,
1994), pp. 249-55; Milsom, Legal Framework, p. 28. See also above,
pp. 91-2, on the em ergence o f the classifications ‘in villeinage’ and
‘in socage’, showing a continuing h ard en in g of the definitions of,
and distinctions between, types of land-holding.
102. Above, pp. 191-2; also Milsom, Legal Framework, p. 57. O n Sam son’s
treatm ent o f Aubrey in the general context of distraint, see
H udson, Land, Law, and Lordship, pp. 280-1.
103. Milsom, Legal Framework, ch. 2, esp. pp. 47, 54; Hyams, ‘W arranty’,
460-1, 494-6.

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At the same time, royal involvement was affecting

distraint. As we have seen, a statutum regni early in H enry
Iľ s reign required ju d g m en t before distraint by fee, and
early thirteenth-century practice is congruous with such a
requirem ent.104 T he insistence of royal justices may have
pressured lords to follow routine stages for distraint, earlier
m ore characteristic o f shire or hun d red , rath er than
honorial courts: the distrainee was sum m oned three times
to answer concerning the services, and thereafter m ight be
distrained first by chattels, and then by the tenem ent.
T here was also a further tendency away from distraint by
land, perhaps because of the danger of com plaint of
disseisin and o f acting w ithout a royal writ; the tenant
m ight say that the question involved the am ount o f services,
in which case, at least by the time o f Bracton, the lord seems
to have needed a royal writ. T he same factors prevented the
lo rd ’s enforcem ent of forfeiture of a tenem ent for
disciplinary reasons by ju d g m en t o f his court. For GlanviĶ
such power was still real, but from the evidence o f the plea
rolls it seems to have disappeared during J o h n ’s reign.
Lords m ight still proceed by royal writ, b u t a m ore
convenient solution was often to act w ithout court
ju d g m en t and distrain only by chattels. T he changes thus
left the ten an t m ore secure in his position, although far
from free to ignore his obligations to his lord.
The heritability o f land, already fairly secure for closer
relatives by 1135, continued to strengthen. Long tenure,
the increasing use o f charters, and the strengthening of
assumptions of inheritance all had an effect: for example,
jurors on occasion assumed that a grant for hom age and
service m ust m ean that it was to the grantee and his
heirs.105 According to GlanviĶ ‘heirs o f full age may,
immediately after the death of their ancestors, rem ain in
their inheritance; for although lords may take into their
hands both fee and heir, it ought to be done so gently that
they do no disseisin to the heirs. Heirs may even resist the

104. For this paragraph, see Brand, Making, pp. 307, 314; Milsom, Legal
Framework, esp. pp. 9 n. 2, 26-34; Hyams, ‘W arranty’, 478; H udson,
Land, Law, and Lordship, p. 28; Bracton, ff. 156-156b, T h o rn e, ii
440-1; e.g. CRR, iii 133-4; see above, p. 128.
105. CRR, iv 34.

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violence o f their lords if need be, provided th at they are

ready to pay them relief and to do the o th er lawful
services.’106 T here is no sign here that lords were regaining
any real control o f the land when there was a clear heir.
They continued to act if the heir failed to do hom age, and
to exact reliefs, but their discretion even in the latter field
was restricted as customary levels o f relief em erged. The
Dialogue of the Exchequer, Glanvill, and M agna Carta all took
100s. as reasonable for a knight’s fee.107
Matters were markedly different when there was no clear
heir:

W hen anyone dies w ith o u t a certain h e ir - fo r exam ple,

w ith o u t son o r d a u g h te r o r anyone w ho is u n d o u b te d ly the
n e a re st a n d rig h t h e ir - th e lords o f th e fees may, as the
custom is, take a n d k eep those fees in th e ir h a n d s as th e ir
escheats, w h e th e r such lo rd is th e king o r so m eo n e else. If
anyone late r com es a n d says th a t h e is th e rig h t h e ir, a n d is
allow ed by th e grace o f his lo rd o r by a w rit o f th e lo rd king to
p u rsu e his claim , h e shall sue a n d may recover such rig h t as
h e may have; b u t th e lan d shall m e a n tim e stay in th e h a n d o f
th e lo rd o f th e fee, because w henever a lo rd is u n c e rta in
w h e th e r th e h e ir o f his te n a n t is th e rig h t h e ir o r n o t, h e may
h o ld th e lan d u n til this is lawfully proved to him . . . . H owever,
if no -o n e ap p ears a n d claim s th e in h e rita n c e as h e ir, th e n it
rem ain s p e rm an en tly with th e lo rd as an escheat, a n d so h e
may dispose o f it, as o f his own p ro p erty , at his p le a su re .108

Overall, though, the existence o f royal rem edies, and in

particular mort d ’ancestor, strengthened the position o f heirs.
T he possibility o f claims to succeed n o t based on the norm s
o f succession was still further reduced.109 O ne m odel of
inheritance grew still m ore dom inant.

106. Glanvill, vii 9, Hall, p. 82; see also above, p. 132, for the Assize o f
N ortham pton, c. 4, which I take to be a statem ent o f good custom,
n o t a legislative innovation. By the en d o f o u r p eriod such
resum ption could be referred to as ‘simple seisin’.
107. Milsom, Legal Framework, pp. 168-9; H udson, Land, Law and
Lordship, p. 129. See also Dialogus, p. 121, an d Milsom, Legal
Framework, p. 163 on o th er limits o f discretion concerning relief.
108. Glanvill, vii 17, Hall, p. 90. See above, p. 199, on mort dʼnncestor
leaving aside h ard cases.
109. See e.g. Milsom, Legal Framework, p. 163 n. 4; however, see below, p.
226 on tenants in chief.

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Inheritance by women further illustrates these points. As

noted in chapter 4, the position o f heiresses was
strengthening, n o t ju st in England b u t elsewhere in
Christendom . From the 1130s the regular pattern in
England for inheritance by heiresses was division between
them . Yet there rem ained notable flexibility, for exam ple
relating to the the actual division o f the lands. The
possibility o f re-arrangem ents, for exam ple as heiresses
died, exacer- bated the problem s. Room rem ained for the
exercise o f lordly discretion. In the latter stages o f the
twelfth century the norm s h ardened somewhat, as royal
courts sought simple criteria by which to settle cases.110
Divisions, meanwhile, increasingly took place in the king’s
court, sometimes involving a final concord, and the precise
equality o f shares was em phasized.111 Certainly, some
flexibility continued to exist, for exam ple with a father still
able to give his daughter at the time o f h e r m arriage m ore
than h er share o f the inheritance. Also, difficult cases
rem ained, notably when political interests becam e involved.
Nevertheless, a hardening o f custom could be welcome not
only to the royal courts but also to tenants and lords, in
restricting the scope for dispute, aiding the arbitration o f
partitions, and helping to ensure that the king fulfilled his
role as a good lord.112
Alienability also seems to have strengthened. Whilst it
rem ains unlikely that substitution could be m ade w ithout
the lo rd ’s participation, subinfeudation was far less

110. S. L. W augh, ‘W om en’s inheritance an d the growth o f bureaucratic

m onarchy in twelfth- and thirteenth-century E ngland’, Nottingham
Medieval Studies 34 (1990), 76-83; S. F. C. Milsom, ‘Inheritance by
women in the twelfth an d early th irteen th cen tu ries’, in his Studies
in the History o f the Common Law (London, 1985), esp. pp. 243-5; J.
C. H olt, ‘Feudal society an d the family in early medieval England:
iv. T h e heiress an d the alien’, TRHS 5th Ser. 35 (1985), 1-28.
A djudication was sometim es by mort ďancestor, b u t this was n o t
available between sisters. T h e alternatives were a writ o f right
‘concerning reasonable p o rtio n ’, o r a writ praecipe which took the
case directly to the king’s court.
111. See W augh, ‘W om en’s in h eritan ce’, 83-8, who seems to assume th at
the cases in fines are collusive; for some examples, Dodwell, Norfolk
Fines, pp. xxiv-v.
112. W augh, ‘W om en’s in h eritan ce’, esp. 76, 89, 91-2.

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restricted.113 Distinctions between inheritance and

acquisition largely disappeared.114 A few cases still raised
issues of lords’ and heirs’ participation in grants or the
notion that a donor m ust n o t disinherit his heirs,115 but
these were n ot a frequent subject o f litigation in surviving
court records. Meanwhile, m entions of participation grew
even scarcer in charters from the 1160s. Rather, hom age
and warranty were taken to bar the lord or heirs of a donor
from claiming the land from the donee or his heirs, and
although Glanvill stated only that ‘the heirs o f donors are
bou n d to w arrant to the donees and their heirs reasonable
gifts and things given thereby’, the qualification of
reasonableness seems soon to have disappeared.116 With
the addition o f a plausible b u t unprovable enlivening of the
land-m arket in the later twelfth century, the pressures for
alienability are familiar from earlier discussions. For
example, the weakening o f the bond between lord and
vassal and o f the influence o f this bond upon land-holding
m ade alienation w ithout the lo rd ’s assent all the m ore
conceivable, whilst custom and new royal rem edies
protected the beneficiaries of alienation.
The te n an t’s freedom to alienate is reflected in attem pts
at restriction both by individual lords and m ore generally
in the M agna Carta o f 1217. Grants prohibited alienation to
religious houses. A few cases in J o h n ’s reign show lords
seeking to use the king’s court to regain control of lands
given by their tenants to the Church. However, both the
grants with their note o f special concern and the disputes
with their reliance on royal rem edies can be taken to
indicate that whatever degree of control lords had once
enjoyed over their tenants’ grants was in decline.117 M agna

113. Substitutions: Brand, Making, p. 233 n. 4. N ote that charters from

the late twelfth century increasingly m ention grants as to a m an and
his heirs and his assigns; H udson, Land, Law, and Lordship, pp. 124,
226.
114. However, see e.g. PRS, ns 31 (1957), p. 109.
115. E.g. Flower, Introduction, pp. 196, 277; CRR i 87; v 47-8 ; vi 342-3;
vii 190, 322-5.
116. Glanvill, vii 2, Hall, p. 74; Bailey, ‘Richard ľ , 194, 198-201; H udson,
Land, Law, and Lordship, pp. 57—8.
117. See Brand, Making, pp. 234—5; Flower, Introduction, p. 368; also
H udson, Land, Law, and Lordship, p. 223.

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Carta of 1217 expressed particular concerns about alien-

ation in two clauses. Clause forty-three will be considered in
the next chapter. O f m ore concern to us here is clause
thirty-nine, which stated that ‘no free m an may henceforth
give or sell to another so m uch of his land that he cannot
from the rem ainder adequately perform the service that he
owes to the lo rd ’: T here is little sign that the clause was
enforced; the move toward alienability was too com plete.118

CONCLUSIONS
D uring the Angevin period, therefore, the focus of
litigation in land cases shifted towards the royal courts, in
particular to the eyre. New procedures ensured that royal
justices heard even very m inor cases, which the reform ers
may n o t at first have intended to bring routinely to royal
courts and which m ight have been better settled in
seignorial ones. If the results of reform with regard to
crim e did n o t quite m atch the reform ers’ high aspirations,
their m ore lim ited aims with regard to land-holding were
notably surpassed. Indeed, the pressure on the royal courts
was becom ing such that attem pts were m ade to limit
business; this may be suggested by changes in the
procedure o f distraint, by the unwillingness to deal with
‘private agreem ents’, and also by the firm er exclusion of
the unfree from royal actions.119
The relationship between the reform s and the weakening
o f lordship, the decline o f the honour, are uncertain and
must have been com plicated. D em and for royal actions
from sub-tenants may reflect loosening bonds o f lordship,
b u t in turn the availability o f actions such as novel disseisin
reduced seignorial elem ents in land-holding. O f course
lordship continued to be o f im portance in relation to
land-holding, for exam ple with regard to warranty, but
increasingly it was lordship exercised through, or
118. Sutherland, Novel Disseisin, p. 88 finds ju st one case; concern over
services no d o u b t increased as the lo rd ’s capacity to distraint was
restricted, see above, p. 214. O n clause forty-three, see below, p.
229.
119. See above, pp. 189, 207-8, 214, and below, p. 236; n o te also the use
of justiάes writs to dep u te business to the county court. See also
Stenton, English Justice, p. 92 on eyres becom ing overburdened.

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reinforced by, royal measures, as epitom ized in the attem pt

o f the 1217 version of M agna Carta to control alienations
by tenants.120 The activities of seignorial courts are obscure.
They may well have continued to be im portant, and
certainly some strands of Angevin reform em phasized
co-operation, n o t conflict, between courts. However, that
honorial courts declined in p art because o f the Angevin
reform s seems undeniable.
T he proprietal elem ent o f land-holding was m ade the
m ore secure by the protection offered to tenants by routine
royal remedies. Lordly discretion was reduced. Whilst
different perceptions of land-holding no doubt persisted
according to the position o f the party in relation to the
land, these were constricted by royal justices m ore
rigorously enforcing one m odel, and their m odel coincided
m ore closely with that o f the ten an t than o f the lord
aggressively asserting his seignorial rights. Royal actions and
justices m ust also have reduced any rem aining regional or
honorial variation, rendering still m ore anom alous forms
such as Kentish gavelkind.121 The consistency o f custom
and the strength of the position o f the ten an t which we saw
in the Anglo-Norman period were thus supplem ented by
the new routine activities o f royal courts to form the basis
o f com m on law property.
Excluded from this process of routinization, however,
were two groups. The first were the unfree. T heir position,
and also the status o f land as unfree, was m ore rigidly
categorized as a result o f the im plem entation o f the new
royal measures. Villeinage holdings could be categorized,
indeed, as those n o t protected by the land reform s.122 T he
oth er group were the tenants in chief, for as we have seen
the reform s were aim ed at sub-tenants; the king’s position
as lord was little affected. The results o f this anom aly were
to leave their m ark on M agna Carta.

120. See also above, pp. 213-14, on customs and services, quo warranto.
For later reassertion of certain elem ents o f lordship over land, see
e.g. Sutherland, Novel Disseisin, pp. 86ff.
121. O n gavelkind, see PRS, ns 31 (1957), p. 106, CRR, vi 285. For a
possible honorial custom concerning allocation o f dower, see
Bracton’s Note Book, pi. 623.
122. Hyams, King, Lords, and Peasants.

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 Chapter 8

MAGNA CARTA AND THE

FORMATION OF THE ENGLISH
COMMON LAW

The Angevin reforms thus greatly increased the business of

the king’s courts. This growth may represent n o t ju st a
higher proportion o f a constant num ber o f cases. Some
m en believed that litigiousness had increased, and various
developments, including the reform s themselves, may have
contributed to rising litigation.1 However, whilst the royal
rem edies were often popular, the focusing o f business on
the royal courts helped to concentrate resentm ent of
injustice upon royal adm inistration. Criticisms o f royal
justices for their corruption and their lowly social origins
were n o t new, but they almost certainly increased during
the Angevin period. Ralph of Coggeshalľs ‘Vision of
T hurkilľ, written in 1206, admits o f a royal justice that he
was ‘famous th roughout England am ong high and low for
his overflowing eloquence and experience in the law’, but
criticises his avarice in taking gifts from both parties in
cases, and details with black enjoym ent the pains he was
suffering in Hell following his intestate and apparently
u n rep en tan t death.2
Some of the very ideals of reform also encouraged
criticism. T he reform ers sought to provide swifter remedies,
and no doubt claimed m uch credit for doing so. W hen
cases dragged on, therefore, the likelihood o f com plaint of
delay or denial o f justice was increased. Similarly, the
reform s often em phasized the standardization of
governm ent and opposed forceful lordship, yet irregular

1. N ote e.g. Milsom, Legal Framework, p. 87.

2. R. V. T u rn er, The English Judiciary in the Age of Glanυill and Bracton, c.
1176-1239 (Cam bridge, 1985), p. 7, an d generally chs 1 and 6.

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and often forceful exercise o f power rem ained an essential

p art o f royal rule.3 Moreover, the reform s helped to
educate potential critics by further involving them in royal
adm inistration, adding to their own legal interests.4 The
widespread participation o f knights and others in the
locality helps to explain why 1215 saw n o t ju st a rebellion
bu t a highly articulated critique o f J o h n ’s kingship. Whilst
the consum ers o f royal justice accepted the exercise o f a
certain am ount o f royal discretion, especially if in their
favour, their ideals are expressed in proffers, requests, or
dem ands to be treated according to the custom o f the
realm. Whole com m unities paid to enjoy certain privileges,
privileges which prefigured the liberties generally granted
by M agna Carta.5

KING JO H N AND THE ADMINISTRATION OF JUSTICE

T he personal focus on the king increased with J o h n ’s
accession. Certainly, the survival o f m ore detailed records
reveals what is only hinted at in earlier reigns. T he Assize of
N ortham pton had conceived of the eyre justices referring
cases to the king, for instance ‘by reason of their
uncertainty in the case’.6 However, the loss o f the
C ontinental possessions ensured that Jo h n was present in
England m uch m ore than had been his b ro th er or his
father. A lthough some o f his involvement m ust stem from a
desire n o t for justice but for financial benefit, Jo h n may
also have had a personal interest in judicial and legal
business. From the start of the reign, plea rolls include
notes that the justices should speak to the king concerning

3. See e.g. R. V. T urner, The King and his Courts (Ithaca, NY, 1968), pp.
57-70; Holt, Magna Carta, pp. 81-4; also the classic study by J. E. A.
Jolliffe, Angevin Kingship (London, 1955). O n the tardiness of
justice, n o t necessarily th ro u g h royal delay, see e.g. Lincs., pp.
lxiii-lxvii.
4. For one discussion o f a law-related m atter, drawing b oth on book
learning an d personal experience, see D. L. an d D. H. Farm er, eds
and trans, Magna Vita S. Hugonis (2 vols, O xford, 1985), i 19-21.
5. See H olt, Magna Carta, chs 3-4, an d esp. pp. 64-6, 69-70, 92-3,
97-8; also pp. 72-3 for the com plaints which G erald o f Wales m ade
a Lincolnshire knight called Roger o f Asterby take to H enry II.
6. EHD, ii no. 25, c. 7; n o te also no. 60.

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a m atter.7 People may have considered such an interest as

good kingship. Conceivably, though, royal adm inistrators
sometimes saw it as unwelcome royal interference in their
routine, and a m anifestation o f J o h n ’s characteristic lack of
trust.
W hatever its causes, the focusing upon Jo h n is reflected
in the growing judicial im portance, at least from 1204, of
the court which travelled with the king, the court coram rege.
In 1209 all business from the eyres and the bench at
W estm inster was transferred there. In the king’s absence in
Ireland in the sum m er o f 1210 all cases were adjourned,
rath er than being transferred to the justiciar’s court.
Contrary to what was considered good practice, judicial
visitations to the localities in 1210 often consisted o f the
sheriff acting as justice in his own shire, supported by other
specially recruited local m en. A second visitation followed,
by m en described in the Pipe Rolls as ‘autum nal justices’.
T he purpose o f these, and also of a visitation throughout
the kingdom by Richard de Marisco, appears to have been
prim arily financial. The bench was partially restored in
1212, but only when Peter des Roches becam e justiciar in
February 1214 was there some retu rn to normality.8
W hat o f the quality of justice Jo h n provided? It was far
from entirely unsatisfactory. Even when he had increased
reliance upon the court coram rege, he often showed a
readiness to ease access to his court, or to adjourn a case
until he reached the litigant’s area.9 H e sometimes
employed notions of the custom of the realm, encouraging
his subjects to look for such regularity. His own attem pts to
regain support from 1213 may have fu rth er whetted
baronial appetite for reform .10 However, the focusing of
justice upon the king reduced any blame that m ight attach
to a chief justiciar. The increased role of the court coram
rege led to postponem ents and lengthy travel which
restricted the availability of justice. Grievances also arose
both from J o h n ’s exercise o f his royal will and his crushing

7. See e.g. PKJ, i nos 3117, 3118, 3136.

8. Stenton, English Justice, ch. 4; PR12J, pp. xiv-xxiij; Surrey, p. 12.
9. Stenton, English Justice, ch. 4; note also H olt, Magna Carta, pp.
149-50.
10. H olt, Magna Carta, pp. 96, 203-6, T urner, Courts, pp. 103-10.

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of opponents through m ethods which had a basis in law.

The adm inistration o f ‘j ustice’ m ight seem merely the
expression o f royal favour and disfavour. Even if Jo h n often
ensured that justice was done, he left sufficient aggrieved
parties to encourage opposition.11
Underlying such grievances were some structural rath er
than personal problem s. Angevin reform s had established
considerable controls over lords’ actions and their courts.
Few such enforceable controls existed over the king and his
courts. Besides perm itting abuses in the field o f crime, this
situation left the tenants in chief in an anom alous position
in their dealings with the king, especially concerning land.
T heir own tenants em ployed the new regular actions to
establish their rights. Such actions were rarely available
against the king, writs could n o t be addressed against him,
and there was no superior lord to deal with royal default of
justice. The result was considerable royal discretion coupled
with uncertainty in the tenant in ch ie f s position, discretion
and uncertainty all the m ore noticeable since they were
now exceptional.12 Cases involving tenants in chief were
often particularly sensitive since they m ight challenge
kings’ past actions. Especially in com plicated cases, room
existed for profit by predatory royal officials and favourites,
such as William Briwerre, o r for the king him self to take
huge payments. Payment m ight have to be m ade even if the
case was lost; thus in 1199 William de Briouze offered £100
if he lost his case concerning Totnes, 700 marks if he won.
An anomaly in warranty practice also encouraged such
large proffers, often in our eyes lacking proportion to the
lim ited value o f the lands claimed. If a sub-tenant lost his
land, his lord m ight be obliged to give him an exchange,
and the sub-tenant could call upon the king to enforce this.
No such regular m echanism was available to the tenant in
chief, no exchange would necessarily appear to sweeten his
loss, and hence it was all the m ore necessary to bid
sufficiently high to ensure victory.
11. N ote esp. H olt, Magna Carta, pp. 185-7; Stenton, English Justice, pp.
103-14; M. T. Clanchy, ‘M agna Carta an d the Com m on Pleas’, in
H. Mayr-Harting an d R. I. M oore, eds, Studies in Medieval History
presented to R. H. C. Davis (L ondon, 1985), pp. 228-32.
12. For the rest o f this paragraph, see Holt, Magna Carta, ch. 5, esp. pp.
152, 161-4; on proffers, note also Dialogus, esp. p. 120.

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Even in J o h n ’s reign a partial solution was being created

for the anom alous position o f the ten an t in chief, with the
appearance o f the writ praecipe in capite.

T h e king to th e sheriff, g reetin g . C o m m a n d B. that, ju stly a n d

w ith o u t delay, h e r e n d e r to A. h a lf a k n ig h t’s fee in N. w hich
h e claim s to h o ld o f th e king fo r so m u c h service a n d w h ere o f
h e com plains th a t this B. has d efo rced him ; a n d if h e does n o t
d o this a n d th e said d e m a n d a n t shall have given you security
fo r p ro se cu tin g his claim , th e n su m m o n by g o o d su m m o n ers
th a t h e be b efo re o u r ju stices o n th a t day to show why h e has
n o t d o n e this, a n d have th e re th e su m m o n ers a n d this writ.

This text appears in the earliest register o f writs, which may

date from 1210. If such a writ were readily available, it
would give the tenant in chief a regular rem edy for land of
which he was being deforced by an o th er tenant, although
n o t necessarily for land which the king him self held.
However, by 1215 it had n o t sufficed to end the great
m e n ’s grievance.13 They looked instead to rebellion and a
royal grant o f liberties.

MAGNA CARTA
M agna Carta sought to provide a solution for many
grievances concerning law and justice. We have already
seen the background to some clauses, for exam ple clause
forty laying down that ‘to no one will we sell, to no one will
we deny or delay right or justice’. Clause seventeen stated
that ‘com m on pleas shall not follow our court, but shall be
held in some specified place’. Com m on pleas were those
which involved the king’s general or com m on jurisdiction
over all people, very m uch the type o f jurisdiction exercised
by the general eyre. The clause aim ed to prevent litigants
having to pursue the king’s court around the country.
Rather, the location for pleading should be specified in the
writ originating the plea. T he location m ight be the bench
at W estminster, b u t could also be a specific place during
the eyre’s next visit.14

13. E. de Haas an d G. D. G. Hall, eds, Early Registers of Writs (Selden

Soc., 87, 1970), p. 2; dating to 1210, Brand, Making, pp. 451-6.
14. Clanchy, ‘C om m on Pleas’, pp. 220-4.

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Also concerned with courts was clause thirty-four: ‘The

writ called praecipe shall n o t in future be issued to anyone in
respect of any holding whereby a free m an may lose his
co u rt.’ T he writ m ore fully known as praecipe quod, reddat
bro u g h t land cases directly before the king’s court, rath er
than via seignorial and local courts.15 Before M agna Carta,
lords in such cases could reclaim their courts by appearing
before the king or his justices to prove their right to hear
the plea. If such a capacity to reclaim was routine, clause
thirty-four was merely o f administrative convenience to the
barons, in ensuring that cases should go directly to their
courts rath er than having to be reclaim ed. Was Jo h n
employing the writ with increasing frequency in an
obnoxious fashion? Instances could be hidden by our
records, b u t the evidence suggests a peak in 1204, and no
great increase up to 1215. However, if the capacity to
reclaim was n ot routine, but m ight necessitate considerable
effort, the clause takes on rath er m ore significance: it
insists that cases proceed by due process rather than by a
power struggle between court-holder and royal
adm inistration.
Indeed, some barons in 1215 perhaps were concerned,
rightly or wrongly, that the king was in ten t on a general
reduction o f the jurisdiction o f their courts. T he Histoire des
ducs de Normandie states that one o f the desires o f the
barons in 1215 was ‘to have all powers o f haute justice in
their lands’.16 T he chronicler seems to have lacked precise
understanding o f events in England, w here few lords had
the serious crim inal jurisdiction referred to on the
C ontinent as haute justice. Yet he may have understood
baronial feelings rather better than m odern historians who
count actions on plea rolls: the barons o f 1215, like their

15. Holt, Magna Carta, pp. 174, 325-6; N. D. H u rn ard , ‘M agna Carta,
clause 34’, in R. W. H unt, W. A. Pantin an d R. W. S outhern, eds,
Studies in Medieval History presented to F. M. Powicke (O xford, 1948),
pp. 157-79; M. T. Clanchy, ‘M agna Carta, clause thirty fo u r’, EHR
79 (1964), 542-8.
16. Holt, Magna Carta, p. 271; n o te also the first clause o f the M agna
C arta o f Cheshire, which suggests th at the ea rľs barons feared that
he was seeking to reduce th eir courts; G. B arraclough, ed., The
Charters o f the Anglo-Norman Earls of Chester, c. 1071-1237 (Record
Soc. o f Lancashire an d Cheshire, 126, 1988), no. 394.

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predecessors faced with H enry Iľ s decree concerning

default o f justice, may have felt that the king was taking
away their courts.
The other point the Histoire des ducs singled out
concerning 1215 was that Jo h n ‘had to fix reliefs for land,
which had been excessive, at such a figure as they w ished’.
The king’s discretion in dealing with inheritance by tenants
in chief was thereby m uch reduced.17 Jo h n had taken very
high reliefs, such as the 7000 marks Jo h n de Lacy had to
offer for succession to the h o n o u r of Pontefract and other
lands held by his father. The very first clause o f the Articles
o f the Barons dem anded that heirs pay only the ancient
relief, and clause two o f M agna Carta stated that:
If any of our earls or barons, or others holding of us in chief
by knight service shall die, and at his death his heir be of full
age and owe relief, he shall have his inheritance on payment
of the ancient relief, namely the heir or heirs of an earl £100
for a whole earľs barony, the heir or heirs of a baron £100 for
a whole barony, the heir or heirs of a knight 100s. at most for
a whole knight’s fee; and anyone who owes less shall give less
according to the ancient usage of fiefs.

Typically, M agna Carta established law on the stated

grounds o f recording good custom: there were precursors
for these figures, stretching back to the mid-twelfth century,
b u t the case for the £100 relief for baron or earl really
being standard ancient usage was weak.
Court-holding and land were n o t the sole concerns of
M agna Carta. Clause twenty dem anded that:
A free man shall not be amerced for a trivial offence, except
in accordance with the degree of the offence; and for a serious
offence he shall be amerced according to its gravity; and a
merchant likewise, saving his merchandise; in the same way a
villein shall be amerced saving his tilled land [wainaggio]; if
they fall into our mercy. And none of the aforesaid
amercements shall be imposed except by the testimony of
reputable men of the neighbourhood.
The notion that penalties should be proportionate was an
old one. Again, the clause reveals the involvement of

17. H olt, Magna Carta, pp. 52, 190-1, 196, 271, 298-301, 304-6, 309.

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leading m em bers o f the local com m unity in the admin-

istration o f justice. And whilst the lim itation on royal
am ercem ent of villeins may partly have been designed to
protect the interests o f their lords, the clause’s phraseology
- ‘in the same way’ - suggests that the C harter was here
giving its protection from royal oppression n o t ju st to free
m en b u t to villeins.
Exam ination of these clauses reveals M agna C arta’s
relationship to the pattern o f legal developm ent already
discussed. It m ost obviously m ade use o f writing; as reissued
u n d er H enry III it would provide a m odel for legislation by
statute and took its place at the beginning o f Statute books.
T he C harter drew on a variety of sources, for exam ple
sometimes restating custom, sometimes greatly extending
existing practices, sometimes assembling supposed customs
which justified breaks from the past, and transform ed them
into m ore fixed, m ore regular rules. N ot all M agna C arta’s
suggestions succeeded. Clause eighteen’s desire that
specially com missioned justices hold recognitions o f novel
disseisin, mort ď ’ancestor and darrein presentm ent four times
a year shows the popularity of these assizes, b u t proved
impractical. Yet the aspiration of this clause and the rest of
the C harter shows the developm ent o f a m ore regular,
routine, and royally provided system of justice.

LAW AND LEGAL EXPERTISE

I argued in chapter 1 for the existence, although n o t the
absolute distinctness, o f the categories ‘law’ and ‘legal’
during the Anglo-Norman period. Categorization h ardened
during the period 1066-1216. We saw the m ixture o f rights
listed in Leges Henrici Primi, c. 10.1. The treatises o f the later
twelfth century distinguish m ore clearly between law and
finance. Indeed, it is obvious that the Dialogue was intended
primarily as a treatise concerning finance, Glanυill as one
concerning law and justice. T here was also a specialization
of personnel and o f courts, for exam ple with the separation
of the bench from the exchequer. M agna Carta, sometimes
implicitly, sometimes explicitly dem anded a separation of
finance and justice.
The hardening o f the category ‘legal’ m anifested itself in
oth er ways. Routinization of certain court activities brought

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various processes m ore clearly into the category ‘legal’, for

exam ple the dem and that settlem ents should only be made
with the licence o f the king or his justice. Courts sometimes
narrow ed the limits of m atter relevant in a case. Lords
gradually found themselves unable to discipline vassals in
ways which they and others considered quite suitable but
which were n o t perm itted by royal justice. Perhaps in-
creasingly, although surely not unprecedentedly, individuals
were am erced for technical reasons when a m ore general
sense o f justice seem ed on their side.
Moreover, whilst law had certainly not previously been a
simple reflection o f norm al social behaviour, the changes
during the Angevin period encouraged legal activity and
norm s to becom e m ore distanced from customary
perceptions of pro p er social practice. A very interesting
instance comes in Glanvill Having pointed out that a m an
with a son as his legitimate heir could n o t easily give land
to his younger son w ithout the h eir’s consent, he asked
‘Can a m an who has a son and heir give part o f his
inheritance to his bastard son? If he can, then the bastard
son will be better off in this m atter than the legitimate son;
notw ithstanding this, he can do so.’18 The socially obvious
answer, that the bastard should be worse off than the
legitimate younger son, had to be rejected in favour of the
legally correct answer. The problem may n o t have been
new, but in the stark form given by Glanvill, it witnesses to
the im pact o f the Angevin reform ers’ thinking on law.
At the same time, m en started to play with legal norm s
and devices in o rder to achieve not the usual outcom e of
these practices, but ends they found socially desirable. Early
instances appear in towns. In N ortham pton in c. 1190 it was
laid down that ‘no one can gage land to any one for a long
term or a short one unless the gagor and he who took the
gage will swear that they do not do this to defraud the lords
or the kin o f their rights’. This suggests that, for example,
dying m en were m aking lim ited term grants of lands, so
that when the grant ended, the land would revert to the
g ran to r’s heir, thereby freeing him from paying relief.19

18. Glanvill, vii 1, Hall, pp. 70-1.

19. Borough Customs, i 288; such grants m ight also be used to avoid
w ardship if the h eir were a m inor. Cf. the later enfeoffm ent to use.

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O utside towns, the most famous record of such

developm ents is clause forty-three of the 1217 M agna Carta:

it is n o t p e r m itte d to a n y o n e to give h is la n d to an y re lig io u s

h o u s e th u s th a t h e r e s u m e it to h o ld fro m th e sa m e h o u se ,
n o r is it p e r m itte d fo r a n y re lig io u s h o u s e to re c e iv e th e la n d
o f a n y o n e th u s th a t th e y h a n d it o v er to h im f ro m w h o m th e y
a c c e p te d it to h o ld . M o reo v e r, if a n y o n e . . . gives h is la n d to
a n y re lig io u s h o u s e in th is way a n d is f o u n d g u ilty o f it, h is g ift
will b e u tte rly v o id e d a n d th a t la n d fall to h is lo r d o f th a t fee.

T he concern seems to have been primarily the avoidance of

incidents; since a church never died, the lord lost his rights
of relief and wardship, and of course the m arriage o f a
church was an impossibility. Such learned and artificial
devices were to becom e a feature o f late medieval
conveyancing. The still familiar relationship between
legislator, court, parties, and lawyers was beginning to
develop.20
Such developments, therefore, relate to the em ergence
of m en specializing in law or the adm inistration o f justice.21
In chapter 5, we analysed developm ents in the
administrative mentality and the role of justices, particularly
u n d er H enry II. The judiciary u n d er his sons displayed
many similar characteristics. A large proportion o f those
nam ed as justices appeared only on a few occasions, the
bulk of the work being done by a core of less than twenty
in any one reign. These tended to com e from families with
traditions of administrative involvement. T here were no
dram atic changes in their social origins, although un d er
Jo h n the p roportion of clerics declined. Increasingly,
however, some concentrated on one field, be it finance or
justice. Growing business, with courts sitting for ever
lengthening term s rather than single days, coupled with the
possible influence of increased legal learning, produced an
ever m ore specialist and expert judiciary.22 Simon of

20. For o th e r devices, see e.g. S. J. Bailey, ‘W arranties o f land in the

th irteen th century’, Cambridge Law Journal 8 (1942-44), 293 an d n.
145 on the avoidance o f claims to provide exchange.
21. Cf. above, pp. 149-51.
22. See T u rn er, Judiάary; Brand, Making, pp. 93-4; also above, chs 5-7
on the standardizing im pact of justices.

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Pattishall seems to have been the first to specialize in a

judicial career, serving continuously for twenty-six years
from Richard ľ s reign. His witnessing of unusual writs and
his pronouncem ents recorded in plea rolls testify to his pre-
em inence in legal matters. Continuity and solidarity was
also provided by justices who had served as clerks of their
predecessors, for exam ple Simon o f Pattishalľs clerk
Martin. O thers drew upon a family tradition of legal
involvement at a local rather than royal level, as is the case
with the eyre justice H enry of N ortham pton, whose father
was nam ed first am ongst forty burgesses o f N ortham pton
responsible for recording the town’s laws.23
More full-time and expert justices, enforcing m ore
precise rules and m ore com plicated procedure, required
greater expertise from litigants. G reater skill was needed in
pleading and especially in bringing exceptions. The use of
expert counsellors and also o f pleaders to make o n e ’s case
in court was thereby encouraged. Meanwhile, particularly
given the distance to the royal court, the use of
representatives, o f attorneys, grew m ore frequent.24 Usually
these were relatives or friends, but by J o h n ’s reign some
m en acted on behalf of litigants who may otherwise have
been strangers to them . Occasionally, royal justices or
clerks were used as attorneys, as when in 1198 the bishop o f
Ely appointed his archdeacon Richard Barre as his attorney
for all pleas at W estminster: Richard was n o t ju st an
archdeacon, b u t also a royal justice.25 Such developm ents
in the judiciary, in representation, and in pleading laid the
foundation for the em ergence o f a legal profession by the
end o f the thirteenth century.

THE COMMON LAW

At the end o f chapter 1, it was suggested that general
applicability throughout the realm should be a key
characteristic o f com m on law, and in the intervening

23. Brand, Legal Profession, pp. 27-8; Stenton, English Justice, pp. 82-3,
85-6; T u rn er, Judiciary, p. 163. See above, p. 36, on Glanville’s
father.
24. For this paragraph, see Brand, Legal Profession, chs 2-4.
25. T u rn e r ,Judiciary, p. 282; note also pp. 152-4.

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chapters we have related such general applicability to royal

adm inistration of justice. Clearly there rem ained im portant
non-royal elem ents in law and justice in 1215. A mass of
m inor offences was dealt with in local courts, be it
hu n d red , shire, or some form o f seignorial court. A very
significant p roportion o f those serious offenders actually
p u t to death may have suffered at the hands o f privileged
lords, holders of the right o f infangentheof.26 Some areas
on the periphery o f the realm were n o t and would not be
covered directly by royal adm inistration, whilst others
enjoyed m ore lim ited privileges.27
Yet there had been a considerable shift n o t ju st in
im portant business b u t in m ental orientation towards the
king and his courts. More people were travelling to the
king’s court or to the chancery to obtain writs. More were
expectantly or fearfully awaiting the arrival o f the royal
justices in their locality. Some great m en were appointing
attorneys at the royal court in o rder to reclaim any cases
which they believed belonged to their own courts.28
Moreover, the local elem ents were being integrated m ore
closely into the royal, the jurisdictional framework was
becom ing clearer, m ore of a system. T he ideology of
royal-dom inated justice is very clear in Bracton, for whom all
jurisdiction relating to the realm, as opposed to the
C hurch, was either exercised by the king him self or
delegated by him. Glanvill is not so explicit, b u t the
pressures for integration are clear at the time he was
writing. For exam ple, cases could be transferred from lords’
courts to the county by the process known as tolt and, in
turn, from the county to the king’s court by that called
pone. Cases could also be transferred between royal courts,
m ost commonly from the eyre to the bench at Westminster,
on grounds such as the difficulty or seriousness o f the case.
It was also possible to miss out the interm ediate stages and
go straight to the king. We have seen some resistance to this

26. See above, pp. 165-6, 182.

27. See e.g. R. R. Davies, ‘Kings, lords an d liberties in the M arch of
Wales, 1066-1277’, TRHS 5th Ser. 29 (1979), 41-61; also above, pp.
45-7; an d n o te e.g. Lincs., nos 378, 380.
28. E.g. CRR vii 5. N ote also T urner, Judiciary,pp. 110-11 on churches
m aking grants to royal justices.

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in the case o f the writ praecipe for land, b u t in practice the

fact that the king’s court gave decisions which it was
extremely hard to overturn m ust have encouraged its use as
a court of first resort. Royal control continued to grow after
1215, for exam ple with a greater royal willingness to
prosecute crim inal cases in which the appellor had
withdrawn.29
W hen successful, integration would lead to the reduction
o f any variation of custom between courts; lords’ courts,
like the eyre, would have to follow the custom o f the king’s
court. Certainly, inconsistencies in law rem ained, even
outside privileged or peripheral areas. W ith reference to
county and honorial courts, Glanvïll still wrote o f the
diversity o f custom, perhaps primarily procedural diversity.
However, Glanvill may have chosen to exaggerate such
diversity in order to highlight the consistency and hence
the advantages o f his royal courts. T here was both m uch
consistency in Anglo-Norman law and fu rth er pressure for
consistent and routine adm inistration u n d er the Angevins.
Even in highly privileged areas such as the bishopric of
D urham , pleading in the bishop’s court was, according to a
charter o f Jo h n in 1208, to proceed according to ‘the
com m on and right assize o f the realm of E ngland’.30
Yet a theoretically consistent body o f law would be of
lim ited use if court-holders could override it. Angevin kings
em phasized and exercised their will. Glanvill left royal
justices and the king’s court a certain degree o f discretion.
Political considerations sometimes led to judgm ents which
at least the defeated party saw as inconsistent with law.31
The am biguous position of the justices exacerbated the
problem . They were not a judiciary separated from the
executive; rath er they were the king’s servants.32 They
recognized their duties such as raising revenue for the
king, and in retu rn enjoyed various special privileges and

29. N ote e.g. C. A. F. Meekings, ed., Crown Pleas of the Wiltshire Eyre;
1249 (Wilts. A rchaeological and N atural History Soc., Ree. Branch,
16, 1961), p. 70.
30. Holt, Magna Carta, p. 102.
31. See e.g. Glanvill, ii 12, Hall, p. 32; Lawsuits, no. 641; an d above, p.
223.
32. N ote e.g. Bracton, f. 109, T h o rn e, ii 309; T u rn er, Judiciary, pp.
268-77.

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protections, as well as rewards. F urther pressures, for

exam ple from relatives and other connections, as well as
money, could play on the justices.33
A nother elem ent of developing com m on law, therefore,
was the exclusion or at least restriction of discretion. Law
was contrasted with will, kingship with tyranny. According
to an early thirteenth-century L ondon text, ‘Right and
justice ought to rule in the realm rather than perverse will;
law is always what makes right, but will and violence and
force are n o t right.’34 Law should proceed reasonably, with
judgm ent. The Angevin reforms had fu rth er restricted the
exercise o f discretion by lords. Meanwhile, developing
notions of p ro p er practice which would be encapsulated in
Magna Carta also helped to im pose limits on the
continuing personal elem ents in kingship. Royal admin-
istrators themselves displayed awareness of the distinction
between royal arbitrariness and com m on law. Richard fitz-
Nigel contrasted standard procedure with Forest Law: ‘The
forest has its own laws, based, it is said, n o t on the com m on
law of the realm, b u t on the arbitrary decree of the king; so
that what is done in accordance with the forest law is not
called “ju s t” absolutely, b u t “ju s t” according to the forest
law.’ In the early plea rolls the great bulk o f cases went
ahead without special interference from king or justices; the
growth of business m ade routine inevitable and desirable.
Interestingly, the core justices of his reign did n o t all side
with Jo h n in 1215. William Briwerre continued to condem n
Magna Carta into H enry I ll’s reign, on the grounds that it
was extorted by force. O n the other hand, five justices
incurred the king’s suspicion sufficiently to lose their lands
temporarily in the period 1215-16. Recipients and
providers o f justice recognized the value o f due process.35
A fu rth er characteristic o f a com m on law, we suggested,
was that it should affect the whole population. Certainly

33. See e.g. T u rn er, Judiciary, pp. 122-3, 164, 167, 282-5; also above, p.
203.
34. Lieberm ann, i 635; see generally Jolliffe, Angevin Kingship, Holt,
Magna Carta.
35. Dialogus, pp. 59-60; T u rn er, Judiciary, pp. 168-71. At least until
J o h n ’s reign, arbitrary executive action may have been less com m on
than u n d e r the N orm an kings; see Royal Writs, on executive action
an d judicialization.

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Angevin justice intruded into many individuals’ lives.

Indeed, the very frequent eyres of H enry Iľ s later years
may have created greater contact between his subjects and
central governm ent than would occur again for some
generations. But how large a proportion o f the population
enjoyed access to the benefits o f law? To some in H enry Iľs
reign it was certainly too large a proportion, as m en
com plained that near rustics were bringing royal writs. A
m ore positive attitude was taken on occasion by the
providers o f royal justice, allowing different procedures for
poor litigants.36 The royal courts were used for disputes
and agreem ents concerning very small parcels of land.37
Lesser m en did bring actions against greater ones.38 And
whilst a m an ’s status m ight determ ine the categorization of
his activities, m en of influence, m em bers o f the knightly
classes, were sometimes prosecuted u n d er the same
crim inal law as m uch poorer m en.39 T here was no specially
legally privileged nobility. And famously, M agna Carta
granted liberties to freem en and very occasionally to
villeins, a m ore extensive body of beneficiaries than in
equivalent C ontinental grants.
However, if the availability o f royal justice to all was one
ideal, clearly access was n o t in practice truly equal. Fear
m ight deter the weak from seeking justice, especially since
the agents o f justice in the localities were themselves
sometimes the perpetrators o f lawlessness.40 W ealth eased
access to justice, for exam ple through paym ents for
hastening hearings.41 M ore generally, certain groups
enjoyed only lim ited access to, protection by, or freedom
within the law o f the realm.
The position of women was com plicated. Law and social
practice gave husbands very extensive control of their wives,
and the developed com m on law provided no civil rem edy

36. E.g. D. W. S utherland, The Assize of Novel Disseisin (Oxford, 1973), p.

65. N ote also PKJ, iii no. 743 on the o ffen d er’s h u n g er being used
to explain a crime.
37. See above, p. 205.
38. N ote Surrey, pp. 116-17, 120 on officials being sued.
39. See e.g. H. M. Thom as, Vassals, Hάresses, Crusaders, and Thugs
(Philadelphia, PA, 1993), pp. 61, 77-8, 83-4.
40. See e.g. Thom as, Vassals, ch. 2.
41. E.g. T u rn er, Courts, pp. 90ff.

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for abused wives. T he husband enjoyed control over his

wife’s moveable goods, and it was almost certainly difficult
for h er to ensure that h er husband provided for her
m aintenance. W om en could inherit lands; for exam ple a
dead m an ’s daughters succeeded if he had no sons.42
However, the heiress did not control h er own lands as an
heir would; if unm arried h er lord controlled them , if
m arried, h er husband.43 H er husband’s alienations o f her
land m ight require h er assent, b u t according to Glanvill,
the wife was bound to consent to all his acts ‘which do not
offend G od’. In practice, though, women seem to have had
rath er greater control o f the alienation o f lands they
bro u g h t to their m arriage than Glanvill would suggest.
W om en m ade grants in their own nam e with their
husbands’ consent, and following h er husband’s death a
wife m ight revoke grants he had m ade w ithout or even
perhaps with h er consent.44 In litigation, too, women
played a m ore significant p art than m ight at first be
apparent. W om en appointed their husbands as attorneys,
b u t husbands sometimes appointed their wives. In cases
concerning lands she had brought to the m arriage, a
m arried woman had to be sued jointly with h er husband. In
such a case, if a writ failed to m ention h er where
appropriate, it could be quashed, or a husband m ight
vouch his wife as w arrantor.45 As widows, women were
particularly prom inent litigants, with num erous actions
concerning dower.
As for crim inal law, according to the opinion o f a royal
justice recorded in a plea roll, women could not bring
appeals except concerning the death o f their husband or
concerning rape, whilst M agna Carta clause fifty-four
m entions only the death of h er husband. In rape cases, any
settlem ent was almost invariably out o f court, suggesting

42. In technical terms, although males o f th e same proxim ity to the

d eced en t were preferred to females, females were preferred to
males o f the n ex t closest degree; sons were p referred to daughters,
daughters to brothers, an d so on.
43. For a dispute involving a w oman purchasing land, see PRS, ns 31
(1957), p. 83.
44. See Glanvill, vi 3, Hall, p. 60; Pollock and M aitland, ii 409-13.
45. E.g. L in a ., no. 131. N ote also the case in Pollock and Maitland, ii
409.

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th at the law’s protection was somewhat indirect. In

hom icide cases, the courts sometimes required that the
woman actually witness the death o f h er husband. However,
although these instances suggest a very narrow restriction
in w om en’s access to crim inal law, there are other signs
that women could bring accusations concerning n o t ju st
rape but any physical harm done to them and on occasion
other offences as well.46
Despite the protection given to them by M agna Carta
and developm ents in H enry I ll’s minority, tenants in chief
were still disadvantaged by having a lord with no superior, a
situation Edward I exploited.47 Also excluded particularly in
the field of land law were villeins; indeed, the Angevin
reforms contributed to a hardening of the legal definition
o f villeinage. In crim inal law, villeins had in theory some
capacity to sue their lords for very serious physical harm
suffered, and somewhat greater rights against people other
than their lords, b u t in practice they probably found it very
h ard to pursue crim inal cases in the royal courts. However,
as we saw, they were defended as to am ercem ents by clause
twenty of the C harter.48 Finally, churchm en and church
m atters were only covered by the com m on law to a limited
degree. Property matters, such as advowsons and some land
cases did com e u n d er royal courts, but H enry II had failed
to bring clerical w rongdoing u n d er royal control.
Thus, at the time o f M agna Carta, lim itations rem ained
in the scope and regularity of the developing com m on law.
Even royal m anuals such as Glanvill and the Dialogue show
inconsistencies and uncertainties.49 Yet such limitations
would survive into Bracton s time and well beyond. The

46. Lincs., pp. lv-lvi, and e.g. nos 690, 834, 841, 855; PKJ, ii no. 730;
Glanvill, xiv 1, 3, 6, Hall, pp. 173-6; Surrey, pp. 123-5; Wiltshire, pp.
88-90. M ore generally, note Pollock and M aitland, i 482-5. For a
short an d lucid treatm en t of these and o th e r aspects o f w om en’s
position in com m on law, see P. A. Brand, ‘Family an d inheritance:
w omen an d ch ild ren ’, in C. Given-Wilson, ed., Illustrated History of
Late Medieval England (M anchester, 1996), ch. 3.
47. Holt, Magna Carta, ch. 5; K. B. M cFarlane, ‘H ad Edward I a
“ policy” towards the earls?’, History 50 (1965), 149-59.
48. See above, p. 226; P. R. Hyams, King, Lords, and Peasants in Medieval
England (Oxford, 1980), esp. ch. 9, cf. Pollock and M aitland, i
415-19; Glanvill, xiv 1, Hall, p. 173.
49. See above, p. 155.

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achievem ent o f the N orm an and Angevin periods was

immense. Key elem ents o f thirteenth-century and later
com m on law were established: a court system with a
definite focus on royal courts, local or central; m uch
substantive law with regard to land-holding; consistent
forms o f litigation in land cases; classification o f offences
against the person and moveable goods; the availability of
the jury to decide crim inal cases.50 A com m on law had
been form ed, both in the sense o f a law com m on
thro u g h o u t the realm and a law with definite continuity
into the com m on law o f later centuries.

CONCLUDING COMPARISONS
To com plete our assessment, let us look m ore widely for
standards of com parison. The king of France’s realm was
m uch m ore extensive than England, and by 1215 the entire
lands of Jo h n could n o t rival those o f Philip Augustus.
Geography, therefore, helps to explain why the French
king’s exercise o f justice within his realm was rath er m ore
lim ited than his English co u n terp art’s. His own court was
primarily for his tenants in chief, and tended to produce
com prom ise settlements. Otherwise royal justice concen-
trated u p o n the lands directly controlled by the king, lands
which were growing at this time, particularly with the fall of
Normandy. Whilst reforms were introduced w hen Philip
was setting off on Crusade in 1190, these too concentrated
on the areas of direct royal control. Even royal hearings of
cases o f default of justice were lim ited to these areas, only
very exceptionally extending beyond to cases arising in the
mass of lords’ courts.51 W hen treatises on custom
(coutumiers) appeared in France in the thirteenth century,
some contained law in many ways similar to E ngland’s, but
they covered regions, n o t the whole realm.

50. See also above, p. 179, on justices fam iliar with the custom o f the
king’s co u rt giving guidance towards ju d g m e n t in crim inal cases.
51. For this paragraph, see J. W. Baldwin, The Government of Philip
Augustus (Berkeley, CA, 1986), esp. pp. 37-44, 137-44, 264-6. For
fu rth er com parisons, see e.g. R. C. van Caenegem , ‘Crim inal law in
E ngland an d Flanders u n d e r King H enry II and C ount Philip of
Alsace’, in his Legal History: a European Perspective (L ondon, 1991),
pp. 37-60.

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T he im pression of comparatively restricted central

control is confirm ed in two smaller areas m ore closely
related to England. N orm an sources give no sign of the
requirem ent that land cases in lords’ courts should begin
only by writ, and the same rule is absent from Scotland
until the later thirteenth century. Scotland, indeed,
provides an interesting com parison, with a greater
decentralization o f law and justice, and the survival of
significant seignorial courts. In such circumstances, features
of land law such as distraint by fee, which disappeared in
England with the Angevin reforms, continued to exist in
Scotland.52
Why was England different? Certainly, the realm was
small com pared with Germany or France, b u t not with
N orm andy or Scotland. Size therefore was n o t the sole
reason. T here was the survival o f the Anglo-Saxon legacy of
strong royal and local administrative power, m anifest for
exam ple in the shire court which would be so im portant in
Angevin reform . In addition, there was the coherence of
N orm an custom, linked to the power of its duke. Conquest
and settlem ent further strengthened the regime, w ithout
creating very num erous and strong in d ep en d en t lordships.
The Anglo-Saxon legacy and the settlem ent pattern
com bined to ensure the im portance o f local self-
governm ent at the king’s com m and, and the vital role o f
local free m en and knightly society. Anglo-Norman
England h ad a powerful royal regim e and an already fairly
coherent and consistent body o f custom, to which could be
applied the developm ents o f H enry Iľ s reign, notably of
routinization and bureaucratization. The Becket dispute
may have given a peculiar spur to royal thinking about law
and governm ent.53 Before the other m ajor kingdom s of
n o rth ern Europe, England h ad available the variety of
materials from which the com m on law was constructed.
People in the twelfth and thirteenth centuries also
com pared their laws with others, and this self-consciousness

52. See J. Yver, ‘Le b ref A nglo-N orm and’, Tijdschrift υoor Rechsgeschiedenis
29 (1961), 319; H. L. M acQ ueen, Common Law and Feudal Society in
Medieval Scotland (E dinburgh, 1993), esp. chs 2, 4.
53. N ote also M acQ ueen, Common Law, passim on conflict with the
C hurch stim ulating legal developm ent in Scotland.

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gives us one final elem ent in the appearance o f the

com m on law. Ranulf de Glanville lauded the speed o f the
royal courts in com parison with ecclesiastical ones.54
Meanwhile English practices were being exported, for
exam ple to Ireland. In 1210, King Jo h n sought to
regularize these practices by issuing a charter ordering that
English law and customs be observed in the lordship of
Ireland. The charter may have recorded the m ain rules of
English law, m aking it the first official statem ent o f that
law. As part of the process, the earliest surviving register of
writs was probably written, and sent with a covering letter:

Since we desire ju stice acco rd in g to th e custom o f o u r realm

o f E n g lan d to b e show n to all in o u r realm o f Ire la n d w ho
co m plain o f w ro n g d o in g , we have caused th e fo rm o f writs o f
course, by w hich this is accustom ed to be d o n e , to b e in se rte d
in th e p re se n t w riting a n d tran sm itte d to you.55

The transfer o f English practice, although n o t wholly

successful, is highly significant. It shows again the emphasis
u p o n uniformity. It reveals that n o t ju st individual reforms
bu t the whole law was sufficiently coherent to be
considered reproducible. English law could be com pared
with and preferred to other laws. Such self-confidence was
n o t lim ited to com parison with the laws of those regarded
as barbarians. Let us end with a famous story from two
decades after our period. C hurchm en were seeking to
bring English law in line with canonical practice by
allowing the m arriage of a bastard’s parents to legitimize
the child. The case was discussed and the barons produced
a ringing endorsem ent o f practice: ‘we do n o t wish to
change the laws o f E ngland.’56 For the nobles in 1236 the
com m on law o f England was a subject o f pride.

54. W alter Map, De Nugis Curialium, ed. an d trans M. R. Jam es, rev. C.
N. L. Brooke an d R. A. B. Mynors (Oxford, 1983), p. 508.
55. Brand, Making, pp. 445-56; Early Registers, p. 1.
56. EHD, iii no. 30, c. 9.

239
 GLOSSARY

T he aim o f this glossary is to provide brief working

definitions for the reader. T he definitions are therefore
short, general, and dogmatic; they conceal both many
nuances o f sense and developm ent o f m eaning during the
period. Cross references within the glossary are indicated
by ‘qv.’. Fuller discussion is given in the m ain text, and is
accessible through the index. See also ‘Note on sources’,
below.

Abjure To leave a specified area, for exam ple the

realm, u n d er oath never to return.
Acquisition Lands or other rights acquired by the
cu rren t holder, as opposed to those which
he inherited.
Advowson The right o f nom inating a cleric to an
ecclesiastical benefice, e.g. a parish.
Aid Payment from a vassal to his lord, partie-
ularly payments owed on certain occasions
such as the knighting o f the lo rd ’s son.
Alienate To grant away land or other rights.
Alms (i) Lands granted to a church for spiritual
services; the tenure of such lands; (ii) any
charitable gift.
A m ercem ent A m onetary penalty, exacted from one who
had fallen into the king’s mercy because of
an offence.
Appeal A charge brought by one individual against
another, normally relating to theft or
violence.
A ppellor O ne who brings an appeal (qv.).

240
 GLOSSARY

Approver A crim inal who turns king’s evidence; he

m ust accuse and fight his form er crim inal
colleagues.
Assize (i) Legislation; (ii) procedures arising from
such legislation; (iii) the body carrying out
such procedures; (iv) the trial itself.
Attach To com pel a defendant to provide gages and
sureties (qv.) that he would appear in court
on a specified day.
Attaint A process for reviewing court decisions,
through a jury generally o f twenty-four m en
who m ight convict recognitors (qv.) of
having m ade a false oath.
Attorney A person who acts as a legal representative
for another, particularly in litigation.
Bench A tribunal o f justices, m ost notably in our
period the court of the royal justices - the
Com m on Bench - which sat at Westminster.
Bocland, An Anglo-Saxon form o f land-holding, at
bookland least initially m eaning privileged land
granted by charter (boc). By the late
Anglo-Saxon period, land characterized by
various privileges, and - in the case of
holding by laymen - by heritability and
alienability.
Bót C om pensation payable to a victim or h is /h e r
relatives; also paym ent e.g. to the king or
lord for an offence.
Carucate (i) A m easure o f land; (ii) a fiscal assessment
unit. The equivalent o f a hide (qv.).
Certification A process for reviewing a court decision, by
re-assembling the assize justices, the parties,
and generally the recognitors (qv.) before
another court, normally the king’s.
Chattels Moveable possessions.
Cirograph An agreem ent written out twice (or on
occasion three tim es), with the word
CIROGRAPHUM written between the texts.
T he parchm ent was then cut through this
word, and each party received one copy.
Collusion A case brought to court by one party against
another with the latter’s agreem ent, notably

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 T H E F O R M A T I O N O F T H E E N G L I S H C O M M O N LAW

in order to secure a conveyance (qv.).

Collusion may underlie many ‘final
concords’ (qv.).
Com m on Pleas relating to the king’s general or
pleas com m on jurisdiction over all his people.
Compur- An oath taken with the form al support of a
gation specific num ber o f others, in order to prove
or disprove a point in court.
Conventio An agreem ent.
Conveyance The transfer of land or other rights.
Crown- A cerem ony at a feast during which the
wearing en th ro n ed king wears his crown. Such
cerem onies show some regularity o f location
and timing.
D anegeld A form of taxation.
Danelaw (i) T he n o rth ern and eastern areas of
England once u n d er Danish dom ination;
(ii) the law o f that area.
Darrein A procedure using a recognition (qv.) to
presentm ent determ ine who is the lawful possessor of an
(assize of) advowson (qv.).
Default Failure to perform an obligation, e.g. failure
to appear in court.
Default of Failure to do justice.
ju stice/rig h t
Deforce To dispossess.
Demesne Land a lord kept for him self in his own
direct power (although with peasant
ten an ts), as opposed to land granted away to
others; often contrasted with fiefs (qv.).
Disseisin Dispossession; the taking away o f seisin (qv.).
Distraint (i) Tem porary seizure of moveable goods
a n d /o r land in o rder to enforce obedience
to a decision or order; (ii) the thing
distrained.
Dower Land apportioned for a widow to hold after
h er husband’s death.
Enfeoff To grant land as a fief (qv.) to be held of
the grantor.
Entry, writ of A writ setting in m otion a recognition (qv.),
and focusing upon one alleged flaw in the
ten an t’s title (see p. 136).

242
 GLOSSARY

Escheat (i) The reversion o f land to its lord; (ii) land

which has thus reverted.
Esplees The products o f land or the services deriving
from it.
Essoin An excuse for non-appearance at court.
Exception A plea by a defendant that his o p p o n en t’s
complaint or claim is inapplicable to the case,
for reasons o f fact or law; the defendant
should not, therefore, be required to make a
form al defence to the com plaint or claim.
Exchequer (i) The m eetings w here sheriffs’ annual
accounts were audited - from the exchequer
board on which these accounts were visually
calculated; (ii) a court, generally presided
over by the chief justiciar, dealing primarily
with financial m atters in the earlier twelfth
century; later in the century, until the
separation of the bench (qv.) in the 1190s,
the central royal court at W estminster,
normally although n o t always presided over
by the justiciar.
Exculpation Proof whereby the accused clears him self of
blame.
Eyre A visitation by the king or his justices.
G eneral eyre: a visitation by groups o f royal
justices th roughout the realm to deal with all
pleas; each group covered a circuit o f several
counties.
Farm (i) A fixed rent; (ii) land held at such a rent.
Fealty Loyalty; the oath of loyalty.
Fee See ‘fief’.
Fee farm (i) A fixed rent, generally from land held
heritably; (ii) land held at such a rent.
Felony, felon (i) Infidelity, treason. O ne guilty o f infidelity
to his lord; (ii) the m ost serious type of
offence; one guilty o f such an offence (see
pp. 161-3).
Fief Land, generally heritable land, held in
retu rn for service, usually military service.
Final concord (i) An agreem ent, generally one m ade in
the king’s court; (ii) the record o f such an
agreem ent.

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Fine (i) Payment for an agreem ent, or the ending

o f a lawsuit; (ii) a final concord (qv.); (iii)
foot o f fine: the third and bottom part o f a
three-part cirograph (qv.) recording an
agreem ent in the king’s court.
Franchise (i) A privilege; (ii) a privileged area. Also
‘liberty’.
Frankpledge A body of m en, generally ten or twelve, but
sometimes an entire village, acting as m utual
sureties (qv.) that they would n o t com m it
offences, and bound to produce the guilty
party when an offence was com m itted.
Fyrd T he Anglo-Saxon word for military service,
o r for a military force.
Gage (i) A thing given as security; (ii) gage of
land: land given tem porarily as security in
retu rn for a sum o f money which is to be
repaid.
Gavelkind A form of tenure in Kent, characterized in
particular by the division o f inheritance
between heirs.
H allm oot T he lo rd ’s local court for lesser men.
H ide (i) A m easure o f land, generally 120 acres;
(ii) a fiscal assessment unit.
H om age (Related to Latin homo - man.) The
cerem ony of becom ing a lo rd ’s vassal/m an.
H o nour A lordship, generally one held directly from
the king by a tenant in chief (qv.).
H ue and cry The raising of the alarm and pursuit
following the com m itting o f an offence.
Indictm ent P resentm ent (qv.) o f felonies (qv.).
Infangentheof T he right o f executing, after summary trial,
thieves caught red-handed.
K night’s fee A tenem ent owing the service o f one knight;
thus also e.g. half k night’s fee, twenty
knights’ fees, etc.
Lawful man A m an possessed of all the rights o f a
freem an.
Leges Unofficial legal tracts mostly o f the twelfth
century, com posed o f collections of
supposed laws, often based in part upon
translations o f Anglo-Saxon texts.

244
 GLOSSARY

Liberty (i) A privilege; (ii) a privileged area. Also

‘franchise’.
Livery of T he cerem ony of transferring land or other
seisin rights.
M ainpast Those for whom a head o f a household
stands as surety (qv.).
Mark Two-thirds o f a pound; 13s. 4d. (=66p).
Mercy See ‘am ercem ent’.
Mesne A co u rt’s interm ediate (=mesne) ju d g m en t as
ju d g m en t to which party in a dispute should provide
proof.
Mesne O ne who holds from a lord other than the
lo rd /te n a n t king.
M inor O ne who is not yet o f age; that is, according
to Glanvill, vii 9, Hall, p. 82, males u n d er
twenty-one for tenure by knight service,
u n d er fifteen for socage (qv.).
Mort ďancestor An assize (qv.) whereby an heir may claim
his inheritance through a recognition (qv.).
Murdrum (i) Secret hom icide; (ii) com m unal penalty
paid for the killing o f a Frenchm an (or
perhaps any foreigner) when the slayer
cannot be found; later a similar penalty for
the killing of any freem an (see pp. 62—3).
Novel A swift assize (qv.), m aking use o f a
disseisin recognition (qv.), to reverse recent, unjust
disseisins (qv.).
Papal ju d g e A ju d g e delegated by the pope to hear a
delegate particular case or cases.
Peers O n e ’s equals.
Pleas o f the The most serious pleas, particularly
crown connected with the king’s interests.
Pone A process for transferring cases from the
county to the king’s court.
Praecipe A writ conveying a com m and, disobedience
of which will lead to the m atter being heard
before the king or his justices.
Praecipe quod A writ ordering restoration o f land to a
reddat claimant; disobedience leads to the m atter
being heard in the king’s court.
Presentm ent An accusation brought by a sworn body of
men.

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Quitclaim (i) T he surrender o f lands or other rights

and all claim to them; (ii) a docum ent
recording such a surrender.
Recognition A process whereby a body of neighbours
gave a true answer to a question p u t to them
by the public official who had sum m oned
them.
Recognitor O ne o f the neighbours responsible for
m aking a recognition (qv.).
Relief A paym ent m ade to a lord by an heir for his
inheritance.
Returnable A writ setting specified judicial proceedings
writ in m otion, and retu rn ed by the addressee to
the royal justices hearing the case with
added inform ation written upon it.
Sake and Jurisdiction exercised by lords over various
soke offences (see pp. 43-5).
Scutage Payment in lieu o f knight service.
Seise To transfer lands or some o th er rights.
Seisin (i) Possession based on some justifiable
claim; (ii) the act of seising.
Sergeanty (i) T enure based on rendering some
personal service to the lord, normally
distinguished from knight service; (ii) land
held thus.
Socage (i) T enure based on rendering fixed
services, usually rent; (ii) land held thus.
Sokeman A classification o f m en, generally free men;
literally those owing suit o f court (qv.).
Subinfeud- T he g rant of land by a lord other than the
ation king to a m an to hold from him as a fief
(qv.).
Substantive T he elem ents o f law determ ining rights,
law claims, obligations; e.g., law as to whom an
inheritance should pass on the death o f a
tenant. Generally distinguished from
procedural law, concerned with the
m echanics o f court action.
Substitution A grant o f land whereby the cu rren t tenant
surrenders it to his lord, who in turn grants
it to a new ten an t to hold from him.
Suit of court T he obligation to attend court.

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 GLOSSARY

Suitor A person attending court.

Surety A person pledged to ensure an o th er’s
appearance in court or fulfilm ent of some
o ther obligation.
Team T he right to supervise processes whereby a
m an proved him self the rightful possessor of
chattels; note also ‘w arranty’ (i), below.
T en an t in O ne who holds directly from the king.
chief
T enem ent A land-holding.
T enure (i) The holding of land from a lord; (ii) the
land itself held from a lord; (iii) the terms
on which such land is held; (iv) doctrine of
tenure: the doctrine, n o t spelt out in writing
during our period, that all land is held
directly or indirectly from the king.
Tithing A grouping o f ten m en for m utual security;
see also ‘frankpledge’.
Toll T he right of taking tolls.
Tolt A process for transferring cases from a lo rd ’s
court to the county.
Tourn, T he sheriff’s biennial tour o f h u n d red
sheriff’s courts, notably to inspect the workings of
frankpledge (qv.).
Trespass (i) A wrong; (ii) a wrong less serious than,
for exam ple, a felony (qv.) (see p. 164).
Utrum An assize (qv.) using a recognition (qv.),
originally established to determ ine w hether
land was lay fee (qv.) or alms (qv.).
Virgate A quarter of a hide (qv.); generally about 30
acres.
Vouch See ‘warranty’.
W ardship (i) Custody of an heir who is n o t yet o f age
a n d /o r the h e ir’s land; (ii) land held for
this reason.
Warranty, The process whereby (i) a m an vouches that
voucher to he obtained a chattel (qv.) legitimately from
another; or (ii) a m an vouches that his lord
granted him a piece o f land or other rights.
Lords who failed to w arrant lands success-
fully to their vassals were obliged to provide
them with equivalent lands in exchange.

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Wer T he m onetary estimate o f a m a n ’s worth,

used for the calculation of paym ent
following his unlawful death (see ‘wergild ’)
or injury, the value of his oath, and penalties
to the king.
Wergild Payment to the kin in com pensation for the
slaying of a person.
Wite Payment by way of punishm ent, in general
to the king.
Wreck Royal rights relating to shipwreck.

248
 NOTE ON SOURCES

A wide range of sources has been used in this book, and

the approach which I have adopted reflects both the
prevalence of certain types of evidence, and the degree of
trust which can be invested in them . T here are some
general problem s, most obviously the fact that m uch legal
activity was never recorded in writing. Records which were
made need n o t survive. The preponderance of ecclesiastical
material reflects the greater emphasis the C hurch placed
on both record-m aking and record-keeping. Most lay
records come from the higher level o f society, especially the
king, b u t also the greater tenants in chief. Changes in the
am ount or type of evidence may seem to indicate
developm ents in law and the adm inistration o f justice
whereas in fact they only reveal what had previously left no
record. Most sources are in Latin, but one can also look for
help and inspiration to the vernacular literature o f the
period, its epics and romances. Such literature can both
help with analyses of disputes and also suggest the
vernacular words which lay behind the Latin o f the records.

Leges: If one were seeking to produce a com plete set of

legal rules which applied particularly in the first half o f our
period, it would be very tem pting to go to the various
post-Conquest texts com monly referred to as Leges (Laws),
most notably the Leges Henrici Primi (1114—18). These
p u rp o rt to be authoritative statem ents of law. In fact,
however, they are archaicizing texts, in ten t perhaps on
giving some idea o f what law should be, b u t also on
preserving and translating the legacy o f the Anglo-Saxon
past as its language and practices becam e less widely

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 T H E F O R M A T I O N O F T H E E N G L I S H C O M M O N LAW

com prehensible. The Leges draw on Anglo-Saxon legal texts

and also on other written sources, for exam ple canon law
or early C ontinental law codes. Any such statem ents based
on earlier texts m ust of course be treated with extrem e
caution: given the choice between cu rren t reality and past
written authority, the authors often favoured the latter.
More problem atic are the statem ents which have no written
source, and which may be based on personal experience,
for exam ple m uch o f the Leges Henriciʼn treatm ent of court
procedure. H ere the best m ethod is to accept such
statements only if they seem congruous with other, less
untrustw orthy evidence.

Dispute reports: Rather than the Leges, in my treatm ent of

the Anglo-Norman period I have relied heavily on accounts
of cases, preserved in chronicles, other narratives, or
charters. These allow analysis of the tactics adopted by
parties in and out of court, and also of the way in which
norm s both conditioned disputing and were used by
disputants. However, it m ust be rem em bered that such
accounts are not impartial, almost invariably being
produced by one party in the dispute, generally by the
winner.

Charters and writs: The records of land transactions

underlie m uch o f my analysis of land law. Such charters
generally record gifts or confirm ations of land by a lord to
a tenant or a church. Some variations in drafting practices
continued throughout our period, and these can be
informative. However, the form of charters, at least in the
twelfth century, is generally quite standardized. This allows
analysis of the frequency with which certain form ulae
appear, for exam ple with regard to the consent of family
mem bers to gifts o f land. However, there are also problem s
with analysis o f land law through charters, and not simply
that written records o f grants to laymen are rare in the
Anglo-Norman period. An apparently simple grant of land
in a charter may in fact record the settlem ent o f a dispute,
hence the need for the grant to be recorded in writing. It is
therefore desirable to find out as m uch as possible about
the circumstances which underlie any charter.
The great majority of charters are in letter or ‘writ’ form,

250
 N O T E ON SO U RCES

starting with an address to those to whom the docum ent

should be o f concern, and then spelling out the
transaction. They are therefore sometimes referred to as
‘writ-charters’. The word ‘writ’ is normally used m ore
narrowly for a letter, generally fairly brief, conveying an
o rd er or instruction. Such instructions can be o f wide
application, even constituting legislation, or very specific. In
the cu rren t book, analysis of writs has been particularly
im portant with regard to royal intervention in disputes; the
surviving writs are valuable o f themselves, and also give an
indication o f interventions for which written evidence
either does n o t survive or never existed.

Royal records: For the Anglo-Norman period, royal records

are relatively scarce. Domesday Book tells us m uch about
patterns o f land-holding and som ething o f the land law of
the period. It also records many disputes, but these
generally appear only as brief notes of claims. For some
towns and shires sets o f customs are recorded, including
customs concerning wrongs. T he 1130 Pipe Roll records
shire accounts m ade at the exchequer o f H enry I. These
provide m uch inform ation, for exam ple on the judicial
activities o f royal servants and the payments m ade to the
king in relation to law, justice, and land-holding.
Royal records are m uch m ore extensive for the Angevin
period. From 1155 we have a com plete run o f Pipe Rolls,
allowing financial and administrative trends to be analysed.
From the 1190s, when the first royal court rolls start to
survive, we have a reasonably com plete account of the
forms o f business com ing before certain types o f court.
T here is no official record o f royal legislation, b u t a variety
o f texts do survive, most notably in the chronicle of the
one-time royal justice, Roger o f Howden.

Law books: Also at the end of H enry Iľ s reign comes the

first legal m anual intended for the practical use o f royal
justices and their officers. This goes u n d er the nam e of
Glanvïll, since it was once held to have been w ritten by the
chief justiciar, R annulf de Glanville. Its significance is
considered at some length in chapter 5. A nother manual,
for financial adm inistrators, The Dialogue of the Exchequer,
includes m uch o f interest on law and justice. For the last

251
 T H E F O R M A T I O N O F T H E E N G L I S H C O M M O N LAW

decades o f our period, careful use must be m ade o f a far

larger law book than Glanvill Also called On the Laws and
Customs o f England, this is best known u n d er the title
Bracton, since it was once believed that its author was
another royal justice, H enry de Bracton. However, it is no
longer accepted that he was the author o f the work and
wrote in the 1250s. He was at most a substantial reviser of a
work prim arily com posed in the 1220s and 1230s; for
recent controversy over the date o f the work, see J. L.
Barton, ‘The mystery o f B racton’, Journal of Legal History 14
(1993), 1-142 and P. A. Brand, ‘The age o f Bracton in
H udson, Centenary Essays, pp. 65—89.
*

Translations: I have, in general, adopted translators’

versions o f texts; most o f my alterations have involved
giving m ore literal renderings in o rder to clarify legal
points.

252
 FURTHER READING

SOURCES
R. C. van Caenegem , ed., English Lawsuits from William I to
Richard I (2 vols, Selden Soc., 106, 107, 1990-91) usefully
presents court cases with English translations. O th er Selden
Society volumes also contain m uch relevant material. For
the later period, C. T. Flower, Introduction to the Curia Regis
Rolls (Selden Soc., 62, 1944), provides summaries of many
plea roll cases; see also D. M. Stenton, ed., Pleas before the
King or his Justices, 1198—1202 (4 vols, Selden Soc., 67, 68,
83, 84, 1952-67). R. C. van Caenegem, ed., Royal Writs in
England from the Conquest to Glanυill (Selden Soc., 77, 1959)
contains a long and im portant introduction, as well as a
selection of writs with translations.
Also available in parallel text are L. J. Downer, ed. and
trans, Leges Henrici Primi (Oxford, 1972), Glanvill, Tractatus
de Legibus, ed. and trans G. D. G. Hall (Edinburgh, 1965),
and Richard fitzNigel, Dialogus de Scaccario, ed. and trans C.
Johnson, rev. F. E. L. Carter and D. E. Greenway (Oxford,
1983). Many relevant texts are available in translation in
English Historical Documents, i, ed. D. W hitelock (2nd edn,
London, 1979); ii, ed. D. C. Douglas and G. W. Greenaway
(2nd edn, London, 1981); iii, ed. H. Rothwell (London,
1975).
Note M. T. Clanchy, ‘Rem em bering the past and the
good old law’, History 55 (1970), 165-76 for ideas on law
and law-making; H. G. Richardson and G. O. Sayles, Law
and Legislation from Aethelbert to Magna Carta (Edinburgh,
1966), for provocative ideas on legislation and legal texts;

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 T H E F O R M A T I O N O F T H E E N G L I S H C O M M O N LAW

T. F. T. Plucknett, Early English Legal Literature (Cambridge,

1958), ch. 2 for the Leges and Glanvill.

GENERAL
H istorians’ starting point - and often finishing p oint - is
Sir Frederick Pollock and F. W. Maitland, The History of
English Law before the Time of Edward I (2 vols, 2nd edn with
new introduction by S. F. C. Milsom, Cambridge, 1968).
T he History is supplem ented by F. W. Maitland, Domesday
Book and Beyond (Cambridge, 1897). A com panion piece is
J. G. H. H udson, ed., The History of English Law: Centenary
Essays on ‘Pollock and M aitland’ (Proceedings of the British
Academy, 89, 1996).
Essential new work on the Anglo-Saxon period is now
being produced by P. W ormald. A summary view is
provided by his ‘M aitland and Anglo-Saxon law: beyond
Domesday Book’, in H udson, ed., Centenary Essays. His
fullest statem ent is due to appear in The Making of English
Law (Oxford, forthcom ing). Note also, for exam ple, his
‘Charters, law and the settlem ent of disputes in Anglo-
Saxon E ngland’, in W. Davies and P. Fouracre, eds, The
Settlement of Disputes in Early Medieval Europe (Cambridge,
1986), pp. 149-68.
The N orm an background is discussed in C. H. Haskins,
Norman Institutions (Cambridge, MA, 1918) and D. Bates,
Normandy before 1066 (London, 1982); the latter contains
references to relevant material in French, notably the works
of J. Yver. D. M. Stenton, English Justice between the Norman
Conquest and the Great Charter (Philadelphia, PA, 1964) is the
best survey o f the adm inistration o f justice in our period. R.
C. van Caenegem, The Birth of the English Common Law (2nd
edn, Cambridge, 1988), has similar concerns to this volume
b u t a markedly different approach. P. R. Hyams, ‘The
com m on law and the French connection’, ANS 4 (1982),
77-92, 196-202 sets Anglo-Norman law in a wider French
context; see also j. Le Patourel, The Norman Empire (Oxford,
1976), an extremely im portant, wide-ranging book. O ther
relevant essays are contained in G. S. G arnett and J. G. H.
H udson, eds, Law and Government in Medieval England and
Normandy (Cambridge, 1994), and P. A. Brand, The Making
of the Common Law (London, 1992).

254
 F U R T H E R R E A D IN G

G eneral introductions for post-Conquest England are

provided by W. L. W arren, The Governance of Norman and
Angevin England (London, 1987), and M. Chibnall,
Anglo-Norman England (Oxford, 1986). Useful for
comparative purposes is O. F. Robinson, T. D. Fergus and
W. M. Gordon, A n Introduction to European Legal History
(Abingdon, 1985). T hree m ore general works of
considerable relevance are M. T. Clanchy, From Memory to
Written Record (2nd edn, Oxford, 1993); S. M. G. Reynolds,
Kingdoms and Communities in Western Europe, 900—1300
(Oxford, 1984) and h er Fiefs and Vassals (Oxford, 1994).

CHAPTER 1
A nthropological work has had considerable influence on
historians of law and disputing; a good starting point is S.
Roberts, Order and Dispute (H arm ondsworth, 1979). For very
good anthropologically influenced work, see S. D. W hite,
‘ “Pactum . . . legem vincit et amor iudidum”: the settlem ent
of disputes by com prom ise in eleventh-century western
F rance’, American Journal of Legal History 22 (1978),
281-308, and his Custom, Kinship, and Gifts to Saints (Chapel
Hill, NC, 1988). O n com prom ise settlem ent, see also e.g.
M. T. Clanchy, ‘Law and love in the m iddle ages’, in J.
Bossy, ed., Disputes and Settlements (Cambridge, 1983), pp.
47-67. Historians of law are increasingly using literary
sources; see, for example, P. R. Hyams, Ή en ry II and
G anelon’, Syracuse Scholar 4 (1983), 22-35; S. D. White,
‘T he discourse o f inheritance in twelfth-century France:
alternative models of the fief in Raoul de Cambrai', in
G arnett and H udson, eds, Law and Government, cited above.
Two perhaps com plem entary, if n o t always mutually
com plim entary, studies o f ordeal are P. R. Hyams, ‘Trial by
ordeal: the key to p ro o f in the early com m on law’, in M. S.
Arnold, T. A. Green, S. A. Scully and S. D. White, eds, On
the Laws and Customs of England: Essays in Honour of S. E.
Thome (Chapel Hill, NC, 1981), pp. 90-126 and R. J.
Bartlett, Trial by Fire and Water. The Medieval Judicial Ordeal
(Oxford, 1986).

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CHAPTER 2
In addition to the works o f M aitland, D. M. Stenton, and
van Caenegem already cited, a useful introduction is A.
H arding, The Law Courts of Medieval England (London,
1973). W. A. Morris, The Early English County Court
(Berkeley, CA, 1926) is now supplem ented by R. C. Palmer,
The County Courts of Medieval England (Princeton, NJ, 1982).
For the hundred, see H. M. Cam, The Hundred and the
Hundred Rolls (London, 1930). F. M. Stenton, The First
Century of English Feudalism, 1066-1166 (2nd edn, Oxford,
1961) provides vital background and m aterial for seignorial
courts.
Im portant m ore specific studies include J. A. G reen, The
Government of England under Henry I (Cam bridge, 1986), H.
A. Cronne, ‘T he office o f local justiciar in England u n d er
the N orm an kings’, Univ. of Birmingham Historical Journal 6
(1958), 18-28, and W. T. Reedy, ‘T he origin o f the general
eyre in the reign o f H enry ľ , Speculum 41 (1966), 688-724.
O n privileged areas, see N. D. H urnard, ‘The
Anglo-Norman franchises’, EHR 64 (1949), 289-323,
433—60. O n church courts, see F. Barlow, The English
Church, 1066-1154 (London, 1979); C. Morris, ‘William I
and the church courts’, EHR 82 (1967), 449-63; J. A.
Brundage, Medieval Canon Law (London, 1995).

CHAPTER 3
T here is no single introductory work on theft and violence
in this period, although note that T. F. T. Plucknett, Edward
I and Criminal Law (Cam bridge 1959) is largely concerned
with the centuries before 1272. W ormald, Making of English
Law, cited above, contains very im portant argum ents. J.
Goebel, Felony and Misdemeanor (New York, 1937) is an
im portant if difficult book. N. D. H urnard, The King’s
Pardon for Homicide (Oxford, 1969) is of considerably wider
relevance than its title m ight suggest. Conflicting views on
ex officio prosecution of offences are taken in N. D.
H urnard, ‘T he jury of presentm ent and the assize of
C larendon’, EHR 56 (1941), 374-410, and R. C. van

256
 F U R T H E R READING

Caenegem , ‘Public prosecution o f crim e in twelfth century

E ngland’, in his Legal History: a European Perspective
(London, 1991), pp. 1-36. W. A. Morris, The Frankpledge
System (New York, 1910) rem ains the only m onograph on
this subject.

CHAPTER 4
For N orm an background see E. Z. Tabuteau, Transfers of
Property in Eleventh-Century Norman Law (Chapel Hill, NC,
1988). For a straightforward introduction to land law
th ro u g h o u t the N orm an and Angevin period, and beyond,
see A. W. B. Simpson, A History of the Land Law (Oxford,
1986).
So fundam ental to the thinking behind this chapter that
they barely appear in the footnotes are S. F. C. Milsom, The
Legal Framework of English Feudalism (Cam bridge, 1976) and
various works by J. C. Holt, most notably ‘Politics and
property in early medieval E ngland’, Past and Present 57
(1972), 3-52 and ‘Feudal society and the family in early
medieval E ngland’, TRHS 5th Ser. 32-5 (1982-85). All too
pro m in en t in the footnotes, b u t giving a m ore extended
exposition o f my own views is J. G. H. H udson, Land, Law,
and Lordship in Anglo-Norman England (Oxford, 1994). Very
im portant articles are S. E. T horne, ‘English feudalism and
estates in lan d ’, Cambridge Law Journal (1959), 193—209 and
P. R. Hyams, ‘W arranty and good lordship in twelfth
century E ngland’, Law and History Review 5 (1987),
437-503. R. V. Lennard, Rural England, 1086-1135: A Study
of Social and Agrarian Conditions (Oxford, 1959) contains
m uch o f relevance.

CHAPTER 5
N ote especially the works o f Maitland, Milsom, Stenton,
and van Caenegem m entioned above. O f fundam ental
im portance are J. Biancalana, ‘For want o f justice: legal
reform s of H enry Iľ , Columbia Law Review 88 (1988),
433-536 and P. A. Brand, ‘ “ Multis vigiliis excogitatam et
inventam ” : H enry II and the creation of the English
Com m on Law’, in his The Making of the Common Law
(London, 1992), pp. 77-102. W. L. W arren, Henry II

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(London, 1973), gives a context for, and a clear exposition

of, H enry’s reforms. For a general account of S tephen’s
reign, see H. A. C ronne, The Reign of Stephen (London,
1970). Also im portant in contextualization are the works o f
M. Cheney, for exam ple ‘A decree of King H enry II on
defect o f justice’, in D. E. Greenway, C. Holdsworth and J.
Sayers, eds, Tradition and Change: Essays in Honour of Marjorie
Chibnall (Cambridge, 1985), and ‘The litigation between
Jo h n Marshal and Thom as Becket in 1164: a pointer to the
origin o f novel disseisin?’, in J. A. Guy and H. G. Beale, eds,
Law and Social Change in British History (London, 1984).
Note also J. Gillingham, ‘C onquering kings: some twelfth-
century reflections on Henry II and Richard ľ , in T. Reuter,
ed., Warriors and Churchmen in the High Middle Ages: Essays
presented to Karl Leyser (London, 1992), which plays down
H enry’s interests in m atters o f law.

CHAPTER 6
T he works cited for chapter 3 rem ain relevant. R. F.
H unnisett, The Medieval Coroner (Cam bridge, 1961) analyses
a long-lasting innovation o f this period. D. M. Stenton, ed.,
The Earliest Lincolnshire Assize Rolls, A.D. 1202-1209 (Lincoln
Record Soc., 22, 1926) provides a wide range of cases and a
very useful introduction, as does C. A. F. Meekings, ed., The
1235 Surrey Eyre, i (Surrey Record Soc., 31, 1979). O n
trespass, see A. H arding, ed., Roll of the Shropshire Eyre of
1256 (Selden Soc., 96, 1981). As records becom e plentiful,
further analysis can be m ade of the social context of crime;
see, for example, J. B. Given, Society and Homicide in
Thirteenth-Century England (Stanford, CA, 1977).

CHAPTER 7
T he works cited above for chapter 4 rem ain relevant. A very
im portant study is D. W. Sutherland, The Assize of Novel
Disseisin (Oxford, 1973). O n villeinage tenure, see P. R.
Hyams, King, Lords, and Peasants in Medieval England
(Oxford, 1980). O n women and land law, see 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), pp. 231-60; J. C. Holt,

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 F U R T H E R R E A D IN G

‘Feudal society and the family: iv. T he heiress and the

alien’, TRHS 5th Ser. 35 (1985), 1-28; and S. Waugh,
‘W om en’s inheritance and the growth o f bureaucratic
governm ent in twelfth- and thirteenth-century E ngland’,
Nottingham Medieval Studies 34 (1990), 71—92. Very
interesting for comparative purposes is H. L. M acQueen,
Common Law and Feudal Society in Medieval Scotland
(Edinburgh, 1993).

CHAPTER 8
Essential reading here is j. C. Holt, Magna Carta (2nd edn,
Cam bridge, 1992), which also contains m uch o f relevance
to earlier chapters. For detailed legal com m entary on the
G reat C harter, see W. S. McKechnie, Magna Carta (2nd
edn, Glasgow, 1914). O n Jo h n , note also Stenton, English
Justice, cited above. O n the judiciary and the em ergence of
lawyers, see P. A. Brand, The Origins of the English Legal
Profession (Oxford, 1992); also R. V. T urner, The English
Judiciary in the Age of Glanvill and Bracton, c. 1176—1239
(Cam bridge, 1985).

259
 INDEX

abduction, 29, 121, 139 to church, 8, 16, 86, 100, 103, 217
Abingdon (Berks), to family, 103, 198
Abbey, 12 for life, 98, 105, 107-9, 120, 186,
Faritius, abbot of, 12 190
Ingulf, abbot of, 120 alms, 86, 91, 129
Vincent, abbot of, 12 amercement, 63, 65, 72, 79-83, 125,
market, 12 133, 147, 169, 174, 177, 184,
abjuration, 130, 132, 177 194-5, 197, 206, 226-8, 236
by criminous clerks, 183 anger, royal, 54
accusation, 9, 52, 56, 65-6, 69-72, 74, Angevin reforms, 19-21, 93, 116-17,
130, 132, 161, 166-73, 175-9 Chapters 5-8
by archdeacons, 49 Anglo-Saxon Chronicle, 60
by royal officials, 53-6, 70-1, 83 Anglo-Saxon legacy, 20-2, 27, 34, 40,
loss of capacity to make future 50, 52, 63, 81, 84, 94, 116, 162, 238
accusations, 72 Anstey, Richard of, 5
through hatred, 7 appeals, 39 n. 57, 71-2, 75, 161-2,
acquisition, 101-3, 217 166-75, 177, 179, 181-2, 184, 193,
adoption, 106 211, 232
adultery, 59 by women, 173, 235
advowson, 127, 161, 188, 236 w ithdrawn/not prosecuted, 169,
agreements, 4, 16, 43, 66-7, 69, 95, 173, 182, 184
112, 137, 169, 170, 181, 192, 208, appeals, to papacy, 49, 119
234; see also settlements approvers, 75
licence for, 142, 169, 171, 195, 228 Archembald the Fleming, 114
private, 189, 207-8, 218 Arms, Assize of (1181), 133
in France, 237 revised, 135
aid, 187, 191, 240 arrest, 64, 67-9, 125, 130, 139, 168,
aiel, besaiel and cosinage, 199 175-80, 185, see also hue and cry
Ailward, a peasant of Westoning, arson, 29, 57, 71, 78, 161, 162, 176,
159-60, 167, 181, 185 180
aldermen, 36 Articles of the Barons (1215), 226
Alfred, king, 64 assault, 29, 45, 46, 58, 78, 167, 170, 211
laws of, 81 attaint, 197
alibis, 71 attorneys, 142, 230, 231, 235
alienation, 43, 48, 86, 92 n. 14, 95, Aubigny, Nigel ď , 96
100-4, 109, 186, 212, 216-19, 228, Avranches, Compromise of (1172); 148
235
family participation in, 101-3, 217 Babίngton, Eva of, 174
lord’s participation in, 43, 101-3, Ralph, her son, 174
217 bailiffs, 38, 168, 194—6

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banleuca, 46 Burton Abbey, 14—15

Barre, Richard, 230 Geoffrey, abbot of, 14-15
Basset, Ralph, 33, 54, 55, 56, 60, 78, Bury St Edmunds (Suffolk), 185, 192
181 Abbey, 13, 35, 38, 62, 187-92
Richard, his so n , 31, 33 Anselm, abbot of, 48
Bath, 106 Hugh, abbot of, 187, 191 n. 15
cathedral priory, 105-7 Samson, abbot of, 187-92, 213
diocese of, 146 privileges, 45—6
John, bishop of, 106-7 sacrist, 62
Battle Abbey, 26, 45—6 townsmen, 48, 61-2, 192
battle, trial by, 5, 7, 9, 42 n. 65, 66, their portmoot, 48
71-2, 75-6, 84, 111, 134, 151, 160,
169, 171-2, 175, 177, 181, 200-3, Cambridge, 47
211 canon law, 3, 4, 11 n. 40, 18, 49, 56,
use of teeth, 172 148, 150, 155 n. 110, 157 n. 2, 183,
beatings, 43, 164, 165, 173 188, 239
Bedford, 160 Canterbury,
Bedfordshire, 193 Anselm, archbishop of, 109
Bela, widow of Roger, 173 Becket, Thomas, archbishop of,
Bellême family, 47 59, 76, 129, 134, 142, 147, 148,
Benjamin, king’s sergeant, 32 150, 159-60, 183, 238
Benniworth, Roger of, 120 Guernes’ Life of, 128
bequest, 49, 105-7, 132 Gervase of, 136
Bernard, the king’s scribe, 113-14 H erbert le Poer, archdeacon of,
Alward, his father, 113 148
Bigod, Earl Roger, 188 Lanfranc, archbishop of, 13
Binham Priory, 86 Theobald, archbishop of, 86
Blackmarston, land in (Hereford), 113 Cartae Baronum (1166), 131, 143-4
Blackpool (Staffs), 15 castration, 78-9, 160, see also mutilation
blinding, 78, 79, 160, see also casus regis, 99
mutilation certification, 197
Blois, Peter of, 155 champions, 112, 202, 203
Boarshill, lands in (Berks), 120 chancery, 114, 126, 136, 147, 194,
Bolbec, Walter of, 42 231
bookland, 90 charters, 6, 7, 88, 90, 91, 97, 102, 104,
border regions, 64, 71, 84, 92, 158, 107, 121, 189, 196, 203, 208-9,
179, 182, 231, 232 214, 217
boroughs, 48, 64, 157, 166, 180, see Anglo-Saxon, 91
also towns locked in a chest, 206
neglect of borough work, 29 theft of, 171
Bracton, 18, 95, 159, 172, 196, 198, chattels, 49, 56, 132
214, 231, 236 Chatteris (Cambs), 53
Brakelond, Jocelin of, 182, 187-92 Chertsey Abbey, 45
brawling, 164—5 Cheshire, 45, 182
bribery, 12, 68, 160, 181, 220, 233 Chester, earldom of, 45, 47
Bricstan, 53-6, 58, 68, 77 Ranulf II, earl of, 121
his wife, 54, 73-4 Chichester,
bridge work, neglect of, 29 Aethelric, bishop of, 11
Briouze, William de, 223 Jocelin of, royal justice, 150
Brittany, 116 Church reform, 48, 91, 94, 105
Arthur of, 99 cirographs, 107, 137, 190-1
Br¡werre, William, 223, 233 Clacklose, hundred of (Norfolk), 38
Buckinghamshire, 193 Clare family, 12
Burgh, Thomas, 189-90 Gilbert, earl of, 120
burglary, 29, 45, 58, 159, 162, 166 Clarendon, Constitutions of (1164),
Burguinin, William le, 166 128-30, 139

262
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Assize of (1166), 130, 132, 140, seignorial, 24, 26, 40-7, 50-1, 88,
145, 147, 158, 162-3, 165-6, 96-7, 101, 105-8, 112-13, 117,
176-7, 180, 182, 184 119-20, 128-9, 139, 145, 157,
Cnut, king, 63 164-5, 181, 188, 191-2, 201,
laws of, 62 202, 208, 210, 214, 219, 223,
Cockfìeld (Suffolk), case concerning, 225-6, 231-2
188-92 in Normandy, 41, 238
Robert of, 188, 190 in Scotland, 238
Adam, son of, 188-90 king taking away, 226
Margaret, daughter of Adam, lords reclaiming, 210, 225, 231
189-90 Magna Carta, 210
Coggeshall, Ralph of, 220 m anor/hallm oot, 24, 26, 41,
coinage, corruption of, 29-30 45, 47
Colchester (Essex), 46 overlord’s, 42, 50-1, 113, 128,
commercial regulation, 133, 135, 140, 139
156 sheriffs tourn, 39, 65, 158, 175
common law, characteristics of, 16-19, shire, 24, 26, 32-7, 42 n. 64, 47,
116, 179, 230-9 49-51, 54, 56, 62, 69, 70,
common pleas, 224 113-14, 117, 122, 160-1, 164-6,
compensation, 16, 19, 53, 61, 67, 168, 175, 181, 202, 208, 211,
77-83, 158, 166, 169 214, 218 n. 119, 231-2, 238
compromise, see agreements; multiple, 33-4
settlements town, 24, 47-8
compurgation, 10, 76-7, 176 court president, 11, 16, 20, 25, 26, 33,
confession by offender, 72, 74, 181 35, 38, 41-2, 54, 56, 75, 111, 151,
Corbin, Roger, 166 207
cornage, 93 Coutumiers, 237
Cornwall, 45 crime, 20, 22, 29-30, 37, 39, Chapter
coronation oath, 27, 131, 145 3, 87, Chapter 5, Chapter 6, 218,
coroner, 33, 125, 137, 167-70, 175, 223, 227, 232, 234-7
177-8, 185 clerical, 58, 129, 183, 236
rolls, 137, 168, 178 Crowland (Lines),
corruption, 181, 220, see also bribery Robert, abbot of, 203
Cosford, half-hundred of (Suffolk), marsh of, 203
189 crown-wearing, 27
counsel, 11, 25, 43, 71, 106, 139, 188, curses and maledictions, 66, 107, 189
191, 209, 230 custom, 3, 5-8, 11, 17-18, 20-3, 27,
and consent concerning 34, 38, 42, 48, 50, 86-7, 89, 90,
legislation, 134, 156 94-105, 110-11, 116-17, 122, 126,
counter-gifts, 102 128-9, 156-7, 182, 191-2, 215-17,
courts, 1, 5-23, Chapter 2, 52-6, 58, 219, 226-7, 237-8
60, 62, 64-84, 96-7, 105-17, French, 102, 117
Chapters 5-8 in Domesday Book, 78, 80
ecclesiastical, 48-50, 129, 183, local/honorial, 18, 35, 48, 61, 80,
239 112, 116, 207, 219, 239
papal, 49 Norman, 101, 238
hundred/wapentake, 24, 37-40, of king’s court, 151, 179, 207, 232
47, 49-51, 62, 65, 70, 117, 122, of the realm etc., 6, 18, 54, 192,
181, 214, 231 221-2, 239
multiple, 46 Cynewulf, king, 107
royal, 9, 12, 18-22, 24, 26-34, 47,
50-1, 70, 112-14, Chapters 5-8, damages, 65, 83, 136, 197
see also eyre Dammartin, Stephen, 120
bench, 137, 205, 222, 224, 227, Danegeld, 29, 242
231 Danelaw, 17, 37, 84
exchequer, 30, 131, 149 darrein presentment, assize, 200, 227

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David, king of Scots, 58-9 Ethelred the Unready, king, 17

his first-born child, 58-9 Evesham Abbey,
death-bed, 105, 189-90 Aethelwig, abbot of, 31
gifts, 103, 107 monks of, 58
debt, 53, 133, 159 evidence, 11, 71, 102, 110, 111, 206
default in land cases, 110, 195, 200 exceptions, 110, 170, 171, 172, 190,
denial, 54, 56, 71, 77, 170-1, 173, 211 196, 198, 200, 206, 230
deterrence, 7, 16, 79, 139, 185 exchange, 115
devil, 53, 58, 59, 66 following failure to warrant, 111,
Devon, 36, 37, 114, 201 223
Dialogue o f the Exchequer, 18, 147, 152, exchequer, 30, 131, 135, 137, 149,
153, 155, 174, 215, 227, 236, see 227
also fitzNigel, Richard barons of, 148
Diceto, Ralph, 133, 147, 179, 183 Norman, 147
discretion/'w ilľ, 6, 13, 19, 99, 100, excommunication, 29, 66
109, 111-13, 201, 207, 215-16, execution, see punishment
219, 221-3, 226, 232-3 Exeter (Devon), 36
dishonour, 53, 58, 64, 166 eyre, 33-4, 37, 78, Chapters 5-8
disinheritance, 96, 108, 194, 217, see articles of, 123-5, 133, 135, 137,
also escheat; forfeiture 205
‘the disinherited’, 127, 140 forest, 131, 136, 138
disseisin, 97, 127-8, 131, 136, 145, rolls, 147, 166, 172, 178, 195, 197
189, 192-4, 196-7, 210-11, 214
distraint, 14-15, 64, 96-7, 103, 109, farm, 187, 212
128, 191, 214, 218, 238 fee, 90, 95, 183, 199, see also fief
Domesday Book, 47, 78, 80, 92, 93 land held in, Chapters 4, 7 passim,
Domesday Inquest, 33, 34 n. 35, 94, esp. 88, 90, 91, 94-105, 115-16,
108, 111 n n 114 ,58-9 ‫ ״‬n. 70 129, 198, 201
dower, 94, 116, 235 fee farm, 91, 93, 113, 189, 190
drengage, 92 felons/felony, 19, 22, 39 n. 57, 132,
drunkenness, 59, 158-9 160-4, 168, 170, 175, 177, 179, 184
dual process, 198 fetters, 54-5, 159-60
Dudo of St Quentin, 81 feud, 82, 158 n. 5, 184, 194, 211, see
Dune, William de la, 169 also vengeance
Durham, bishopric of, 47, 232 feudal incidents, 88, 229, see also aid;
marriage; relief; wardship
Eadmer, 74 fief, 42, 86, 90, 97, 129, 132, see also fee
Edward I, king, 181, 236 final concords, 134, 204-5, 208, 216
Edward the Confessor, king, 3, 24, 38 fines, feet of, 137
time of, 24, 35 fitzHervey, Osbert, 155
Edward, a knight, 112 fitzNigel, Richard, 18, 148, 149, 151,
eloquence, 11, 110 152, 233, see also Dialogue o f the
Ely, church of, 45, 53 Exchequer
Eustace, bishop of, 230 flight in battle, 29
Geoffrey Ridel, bishop of, 134, 150 Foliot, Gilbert, bishop of Hereford
Hervey, bishop of, 53-4 and London, 146-7
enfeoffment, 100, see also alienation forest, 29, 60, 64, 74, 132 n. 47, 176,
English, after the Conquest, 18 180, 183
enslavement, 82 Assize of (1184), 133
Ernald the champion and his family, renewed version of (1198), 138
173 law, 18, 233
escheat, 133, 215, see also forfeiture forfeiture, see also disinheritance;
Essex, 193, see also Mandeville escheat
essoins, 25, 110, 116, 132, 142, 151, of felon’s goods, 145, 157, 174
195, 200, 202, 204 to king, 54, 56, 77, 79, 130,
Essoiners, Assize of (1170), 132 162, 180, 184

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 IN D E X

of land to lord, 77, 95, 96, 162, 182-3, 186, 193, 207, 214, 221,
214, 229 226, 229, 234, 236, 238
of moveables, lands, and rents, 174 Henry the Young King, his son, 132
forgery, 57, 161, 163, 176 motivation for legal reform, 128
Fourth Lateran Council (1215), 179 Henry III, king, 18, 179, 198, 227, 236
France, 40, 237, 238 H erbert le Poer, son of Richard of
franchises, see privileges Ilchester, 148—9
Francus, Richard, 181 Hereford Cathedral, 113, see also
frankpledge, 39, 62-6, 71, 83, 84, 131, Folίot, Gilbert
158, 166, 182 Herefordshire, 45
Frederick Barbarossa, 180 Hertfordshire, 193
Frend, Richard, 174 Hervey, William, 137
‘Frisemareis’, Ougrim of, 115 Histoire des ducs de Normandie, 225-6
Fulk the reeve, 160 Holderness (Yorks), 45
£yrd service, 29 Holme, St Beneťs, abbey of, 127
homage, 88, 109, 112, 128, 153, 187,
gage, 194 213-15, 217
of land, 228 homicide, 29, 57-61, 66, 71, 81, 83,
Ganelon, 161 124, 130, 158, 161-2, 167-8, 170,
gavelkind, 92, 116, 219 177, 179, 182, 185, 235-6, see also
Geoffrey, son of Henry II, 99 murder
Germany, 180, 238 accidental, 60-1, 66, 81, 174
G lanviĶ 87, 103, 127, 132, 134, 142-5, Hormer, hundred of (Berks), 12
151-3, 155, 157, 160-5, 167, 172, household, 97
174, 178-9, 192-3, 195, 197, 200-1, king’s, 29, 100, 133
203-4, 207, 214-15, 217, 227-8, lord to keep his own in order, 43
231-2, 235-6 Howden, Roger of, 118 n. 1, 123, 133,
Glanville, Ranulf de, 142, 148-9, 152, 135, 138, 150 n. 95, 154
155, 188, 239 hue and cry, 64, 67, 137, 158, 166-7,
Hervey, his father, 36 see also arrest
Glastonbury Abbey, 45 Ή undehoge’ (Leics), 78, 79, 181
Gloucester, 66 hundred, 1, 9, 12, 32, 34-40, 44-5, 48,
earls of, 122 n. 18, 146 62-3, 65, 68, 70, 124-5, 130, 168,
Goxhill, Peter of, 120 178, 181, 187, 189, see also courts;
grand assize, 134, 142, 156, 201, wapentake
203-5 justice of, 32
Grandmesnil, Ivo of, 14 law of, 49
grants, see alienation H undred Roll enquiries, 181
Grenta of North Stoke, 105-7 hundredm en, 36
Groton (Suffolk), 189-91 H untingdon, 54

hamsocn, 45 Ilchester (Somerset), 146

Hanney (Berks), 120 Richard of, 134, 146—50
Harlow (Essex), 188 illegitimacy, 49, 105, 200, 228, 239
haute justice, 225 infangentheof, 44-5, 62, 70, 182, 231
Headington (Oxon), 112 inheritance, 5, 7, 20, 48, 86—8, 91, 93,
Henry I, king, 3, 12, 14, 21, 24-5, 27, 97-109, 114-16, 120, 122, 132, 136,
29-34, 38, 43, 46-8, 51, 53, 63, 78, 171, 186, 188-91, 198-201, 203,
81, 83, 87, 99-100, 107-8, 113-21, 210, 212, 214-17, 226, 228, see also
126-7, 129, 135 n. 57, 144-5, 152, relief
176 by women, 87-8, 98, 189, 191, 198,
coronation charter, 82, 99 216, 235
seisin on day of his death, 202 creation of heir, 105-7
William, his son, 106 disputes arising from remarriage,
Henry II, king, 19, 21-2, 33, 48, 65, 105, 201
84-5, Chapter 5, 161-2, 165, partible, 91, 116, see also gavelkind

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relating to son of a priest, 171 land-holding, 11, 18, 24, 29, 33, 35,
suitability of heir, 98-9 39, 43, 48, 50, Chapter 4, 122,
Innocent III, pope, 18 128-9, 141, 146, 150, Chapter 7,
inquest, 9, 171-2, see also jury; 223-6,234-7
recognition land-market, 217
concerning spite and hatred, 171 law, see also custom; legal profession;
coroner’s, 137 legislation
Inquest of Sheriffs (1170), 132, 144, and fact, 11, 110, 196, 206
175 expertise/learning in, 2 n. 3, 4, 6,
Institutes, ofjustinian, 153 11, 25, 72, 107, 136, 151, 188,
insult, 43, 58, 165 209, 227-30
Ipswich (Suffolk), 209 loss of, 202
Ireland, 17-18, 239 of the land/realm etc., 11, 18, 234,
export of English law to, 239 239
King John in, 222 personal, 17
ius, 4, 19 lawmen, 47
leases, 90 n. 11, 93, 109, 186, 188, 212
John, king, 99, 123, 134-9, 187, 214, legal profession, 22, 229
217, Chapter 8 Leges, 17, 57, 76, 78, 80-1
John, son of Thorold, 171 Leges Edwardi Confessoris, 3, 62, 81, 84
Andrew, his cousin, 171 London version, 233
judgm ent, 6, 7, 9, 13, 16, 25, 49, 54, Leges H enriά Primi, 17, 29, 34— 6, 38,
67-77, 101, 111-14, 128, 160, 162, 42, 63, 65, 68, 71, 81, 84, 117, 227
170-5, 178-9, 189, 192-204, 207, Leges Willelmi, 81, 84
210, 214 legislation, 17, 20, 21, 24, 81, 84,
false/unjust, 29, 33, 51, 115 Chapter 5, 229
mesne, 72, 107, 111 Rollo of Normandy against
judiciary, injustices robbers, 81
Judith, Countess, 58 Anglo-Saxon, 17, 47, 62, 76, 78,
jurisdiction, disputes over, 50 80-1, 90
jury, 9, 111, 113, 122, 140-1, 151, 163, supposed of William I, 78
171, 173-5, 179, 190, 192, 196, William I concerning church
200, 206, 214, 237, see also courts, 49
recognition Henry I against thieves, 78
justice, 1108 writ concerning courts, 28,
default of, 29, 51, 114, 115, 128, 34-5, 43, 51, 113
139, 145, 179, 198, 201, 210, concerning female inheritance, 98
220, 223 statutum concerning retrieval of
in France, 237 lands lost under Stephen, 127
delay or denial of, 220, 224 statutum regni concerning distraint,
profits of, 9, 25, 26, 38, 45, 53, 82, 128, 214
84, 125, 184, 221, 223 decree concerning default of
justices, royal, 26, 30-1, 37, 51, 54, 56, justice, 128, 145, 226
62, 70, 71, 114, Chapters 5-8 concerning disseisin, 127
acting as attorneys, 230 concerning sale of wine, 136
chief justice/justiciar, 30-1, 124, decree of 1195, 166
129, 134, 137, 149, 191, 222 by statute, 227
deciding cases, 151, 207 Leicester, Robert, earl of, 112, 128, 149
itinerant, see eyre Leighton Buzzard (Beds), 160
resident local, 31-3, 128, 175 lĕse-majesté, 161
lex, 3, 18
Kent, 37, 92, 116, 219 liability, 60-1, 174
liberties, see privileges
l’Aigle family, 100 Lincoln, 47, 125, 204
Lacy, John de, 226 bishop of, 38, 128
Laga Edwardi, 18, 21, 83 H erbert le Poer, canon of, 148

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 IN D EX

Richard of Ilchester, keeper of Milsom, S. F. C., 19, 21

vacant bishopric, 147 minors, 88-9, 94, 98, 190 η. 13, 228 η.
William de Roumare, earl of, 90, 19, see also wardship
120 miracles, 13-14, 55, 56, 67, 76,
Lincolnshire, 125, 127, 172, 195, 197, 159-60, 185
203, 204 Modbert, 105-8, 110-11, 114-15
litigiousness, 5, 87, 220 mort ďancestor , assize of, 132, 190, 193,
Litulf, 59 198-201, 215, 216 n. 110, 227
liturgy, 73 Morville, m other of Hugh de, 59
London, 29 n. 17, 48, 54, 135, 191, see Mowbray,
also Foliot, Gilbert Robert de, earl of
courts, 48 Northumberland, 28, 46 n. 84
justice of, 32 Morel, nephew of, 28
lordship, passim, esp. 1-2, 12, 20-2, Roger de, 207
28, 61-3, 87-9, 104, 213, 218 murder, 29, 33, 46, 63, 68, 70, 78, 130,
Louis VI, king of France, 100 162, 176-7, 180, see also homicide
‘love’, as opposed to law, 16, 52, 112 murdrum fine, 62-3, 68, 70, 84
Lucy, Godfrey de, 150 mutilation, 77-9, 130, 132, 160-2, 174,
Richard de, 130, 149, 155 177, 179, 185, see also blinding;
castration
madness, 59, 67
Magna Carta, 139, 215, 217-19, negotiation, 9, 15, 16, 25, 101, 109-10,
Chapter 8 see also agreement; settlement
Henry III reissues, 217-19, 227, 229 Newcastle, 48
maintenance, 207 Norfolk, 31, 205, 209
Maitland, F. W., 19-21, 86 Norman Conquest, impact on law, 17,
Malarteis, Robert, 53-6, 71 20-1, 34, 84, 88, 117, 238
Maldon (Essex), 46 Normandy, 27, 80, 94, 97, 101, 103,
Malmesbury, William of, 64, 78 109 n. 54, 141 n. 73, 147, 161 n.
Mandeville, Geoffrey II de, 32, 122 13, 163 n. 20, 201, 237, 238
Geoffrey III de, 130 North Stoke (Somerset), 105, 106
manuals, administrative, 151-5, 227, Northampton,
236, see also Dialogue; Glanvill Assize of (1176), 132, 140, 162,
Map, Walter, 27 163, 165, 176, 177, 180, 182,
markets, 12, 60, 159, 188, 191 184, 198, 205, 221
marriage, 49, 87, 99, 105, 201, 239 customs, 228, 230
gift to bride at time of, 216 Henry of, 230
legal position of wives, 234 Norway, 59
lord’s rights over, 89, 229 Norwich, 209
portions, 102 John of Oxford, bishop of, 134
royal control of, 133 notoriety, 72, 130, 157, 167, 176-8,
Marshwood, barony of (Dorset), 99 180
Matilda, Empress, 32, 118 novel disseisin, assize of, 131-2, 136,
Matilda, queen o f Henry I, 55 156, 192-200, 205, 212-13, 218,
Measures, Assize of (1196), 124, 135 227
Mercia, 31 nuisance, 194, 195
laws of, 17, 84
mercy, 67, 79, see also amercement; oaths, 9, 54, 71-7, 111, 113, 122,
pardon 124-5, 128, 130, 141, 157, 172,
royal, 79-80, 153, 162, 179, 190, 177, 189, 197, 199, 200, 204, 228,
193 see also compurgation
Merton, Statute of (1236), 239 general oath of good behaviour/
Messina, 135 loyalty to the king, 30, 56, 63,
Middlesex, 135, 193 162
Middleton (Devonshire), 201 on entry to frankpledge, 65
mills, 186, 194 offenders, status of, 58-9

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Oilly, Nigel ď , 12 pleas of the Crown, 29-30, 32-3, 39,

Old Testament, 3 44, 48, 56, 71, 79, 82, 84, 124-5,
ordeal, 5, 9, 14, 33, 45, 54, 56, 72-6, 157, 160-4, 175
79, 130, 132, 141-2, 159-60, 162, pone, 51, 114, 231
171-2, 174, 176-81, 185, see also Pontefract, honour of, 226
battle, trial by pope, 49, 119
Orderic Vitalis, 14, 53-5, 58 possession, as opposed to property,
Oundle (Northants), 92 150, 186
outlawry, 4, 29, 69, 162, 167, 175-6, prayer, 13, 58, 66, 74, 76, 86, 120, 185
180, 183, 185 presentment, 65-6, 70-1, 84, 130-2,
Over (Cambridgeshire), 119 140, 163, 167, 170, 175-81
Oxford, 58, 67 Preston (Lancs), 83 n. 91
John of, 134 prison, 54-6, 68, 157, 160, 177, 185
Oxfordshire, 37 private war, 14-15, 145, 212
privileges/privileged areas, 16, 18, 20,
palatinates, 47 28, 43-8, 85, 119, 141, 176,
papal judge delegate, 148, 188 179-80, 182-3, 188, 191, 205, 221,
pardon, royal, for homicide, 60, 185 231, 232
Passelew, Ralph, 31 proffers, 12, 25, 171, 205, 221
Pattishall, Simon of, 229 proof, 4, 9-10, 16, 17, 71-7, 107,
Martin, his clerk, 230 111-12, 166, 170-7, 190-1, 196-7,
peace, 7-9, 14, 27-8, 53, 56, 66-7, 75, 200, 202-4, 209, 215
82-4, 112, 115, 122, 131, 139, 140, of clerical status, 183
144, 152, 153, 157, 165, 186, 193, property, as opposed to possession,
204 150, 186
king’s, 28, 82-4, 161, 211 protection, king’s, 28-9, 165
breach of, 29, 33, 37, 46, 65, 161, punishment, 5, 7-8, 14, 16, 53-6,
164-5, 167, 170 68-70, 77-83, 125, 130-2, 139,
of God, 83 161-2, 166-7, 169, 171, 174-5,
peasants, 93, 127, 187 177, 179, 183-6
Pecche family, 119 death, 19, 20, 29, 44, 60, 68-9, 74,
peers, 11, 12, see also suitors 77-84, 160-2, 166, 174, 177,
peer pressure, 52, 65 179, 181, 185, 231
penalties, see also amercement; boiled in hot water, 60
punishment bound to the tails of four wild
financial, 52, 62-3, 77 horses and torn to pieces, 59
spiritual, 111 hanging, 3, 78, 167, 179, 181
penance, 5, 79 monetary, 77-80
Penenden Heath (Kent), 11, 13 of clerics, 50
perambulation, 113
Peterborough Abbey, 92 quitclaim, 43, 200, 209
Thorold, abbot of, 92
Pevensey castle, 46 Ramsey Abbey, 31, 39, 45, 119
Philip Augustus, king of France, Reginald, abbot of, 54
237 Walter, abbot of, 42
pick-pocket, 58-9, 67, 69, 78 rape, 29, 57, 161-3, 167, 168 n. 36,
pillory, 125, 139, 185 182 n. 90, 235, 236, see also
Pipe Rolls, 32, 33, 63, 80, 84, 99, 126, abduction
131, 133, 134, 135, 175, 184 n. 97, rationality, 19, 106, 141-2
208, 222 Reading Abbey, 46
Pitley (Essex), 120 reasonableness, 6, 11, 96, 97, 101, 103,
plea rolls, 57, 109, 132, 133, 137, 142, 128, 215, 217, 233
Chapters 6-8 passim receiver of criminals, 130, 176, 180
pleading, 9-11, 54-6, 71-2, 110-11, recognition, 122, 124, 129, 131-2, 136,
166-7, 170-1, 196, 198, 200, 202, 140-1, 143, 151, 188-90, 194-201,
203, 206, 210-12, 230 203-4, 207, 213, see also ju ry

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records, 8, 42, 125, 129, 133, 136, 143, security, 53, 55, 96, 194, 199, see also
147-8, 150, 170, 185, 187, see also gage; sureties
charters; cirographs; coroner, rolls; for debt, 159-60
eyre, rolls; final concords; fines, seisin, 88, 101, 132, 150, 190, 194,
feet of; pipe rolls; plea rolls 197-8, 200, 202, 204, 212-13
red-handed, offenders caught, 5, 44, livery of, 206, 208
61, 67, 69, 166, 177, 182 of stolen goods, 167
reeves, 26, 36 self-defence, 60-1, 66, 71
hundred, 37 self-help, 5, 8-16, 61, 70, 109, 182,
manor, 36, 41 188, 207, 210-12
royal, 160 Semer (Suffolk), 189-91
town, 125 sergeants, 32-3, 55, 71, 168, 175, 181
village, 36 sergeanty, 92
relief, 29, 88, 99, 100, 132, 215, 226, services, 88, 90-3, 95, 96, 97, 100-3,
228-9 106, 109, 112, 191-2, 214-15, 218
religious house, collusive grant of land settlements, 16, 61, 69, 70, 72, 83, 97,
to, 229 112, 184, 210, see also agreements
rent, 91, 93, 106, 136, 187, 189 out of court, 50, 52, 67, 81, 82, 83,
reputation, 72 142, 182
reward, 68 in rape cases, 235
Richard I, king, 22, 99, 123, 133, 134, settlement pattern, of England after
136, 149, 221, 230 1066, 40, 50, 103, 104, 117, 238
Crusade and in captivity, 123 sheriff, 24, 32, 34-6, 38, 42 n. 64, 65,
Richmond, honour of, 116 71, 124, 125, 132, 137, 143, 148-9,
right to land, 20, 88, 106, 134, 194, 157, 160-1, 163-5, 170, 175-8, 180,
202, 215 194-5, 197-201, 224, see also
as opposed to seisin, 88, 115, 150, courts; sheriff s tourn
198, 200 acting as justice in his own shire,
riot, 60 222
ritual, 16, 72-5, 79, 101-2 changes of personnel (early
roads, 60, 62 n. 23, 161 1160s), 128
assault on/destruction of king’s changes of personnel (1170), 132
highway, 29 shire, 1, 31-2, 34-7, 40, 42, 68, 130,
robbery, 28-9, 58, 60, 70-1, 81, 121, 167, 173—4, see also courts
130, 139, 159, 161-3, 167, 171, small shire of northern England,
176, 180, see also theft 92
Robert, nicknamed the putrid, 185 Shrewsbury, earl of, 47
Robert, son of Roger, 120 Shropshire, 45
Robert, son of William, 201 Shuckburgh, Robert of, 121
Roches, Peter des, 222 Isabel, his daughter, 121, 139
Roger the Poitevin, 14 William, his son, 121
Rollo, count of Normandy, 81 sin, 56, 59, 72, 79, 164
Roman law, 3, 4, 56, 150, 153, 160, socage, 91-2
161 Sock Dennis (Somerset), 146
Roumare, William II de, 203, see also soke, 180
Lincoln, earls of sokemen, 92
rumour, 2, 52, 53, 184 Song o f Roland, 161
Spalding Priory, 203
sacraments, 78 spite and hatred ( odio et alia), 7, 171-3
sake and soke, 43-5, 62, 70 St Benedict, 54-5
Salisbury, rule of, 3 n. 5, 53
H erbert le Poer, bishop of, 149 St Dunstan, 13
Roger, bishop of, 30, 106 St Edmund, 13, 185, 191, see also Bury
sanctuary, 68, 158, 174 St Edmunds
Scotland, 238 St Ecgwin, 58, 67
scutage, 191 St Etheldreda, 53-5

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St Frideswide, prior and canons of, tithing, 63-5, 68, 70, 77, 168, 175, see
112 also frankpledge
St Modwenna, Life of, 14 toll and team, 62, 246
St Sexburga, 55 tolls, 30, 48, 188, 191
Stamford (Lines), 47 tolt, 51, 114, 231
Stapenhill (Staffs), 15 Tortus, Richard, 115
Statute books, 227 Totnes (Devon), 223
Stenton, D, M., 19 tournaments, 135
Stephen, king, 14, 22, 32, 49, 59, 85, towns, 24, 47-8, 60, 61, 83, 125, 228,
108-9, 112, 118-22, 127, 129, 141, see also boroughs
144, 145, 146, 187, 211 transfer of cases, 37, 50, 231, see also
stewards, 36, 62, 70 pone, tolt
heritability of Bury stewardship, treason, 18 n. 63, 29, 78, 161
191 treasure trove, 29, 33, 54-5, 161
Sturmy, Hugh and family, 211 Treaty of Westminster/Winchester
subinfeudation, 100, 216, see also (1153), 119
alienation trespass, 83, 164-6
substitution, 100, 216, see also trial, 53-7, 69-77, 105-15, 133, 141,
alienation 159-60, 166-82, 188-212
Suffolk, 31, 209 Triz, Robert, 166, 167
suitors, 9, 25, 26, 34-5, 38-42, 71, 75, Trubweek, Nicholas of, 211
111, 151, 196, 207-8 Truce of God, 83
summoners, 194-5, 199, 224 Tunbridge castle, 46
summons, 42, 69, 110, 123, 129, 194 Tynemouth Priory, 46 n. 84
supernatural, 72, 74, 77, 142, see also
miracles usury, 53-5
sureties, 54, 63-4, 68, 125, 168 utrum, assize, 129, 131, 139, 161, 200
Sussex Rapes, 46
Valognes, Roger of, 86
technicality, 169, 173, 196, 200, 206, van Caenegem, R. C., 19
209, 210, 228 vavassours, 28, 36, 38
tenants in chief, 24, 28, 96, 99, 113, vengeance, 13, 52, 61, 66, 158, 171,
114, 115, 118, 128, 219, 223, 224, 175, 182, 186, see also feud
226, 236, 237 divine, 67
as royal justices, 134 Ver, Aubrey de, 191, 213
tenure, 86, 88-91, 94, 95, 107 villeins, 41, 43, 93, 196, 200, 211,
classification of, 89, 93, 107, 198 218-19, 227, 234, 236
security of, 95-7, 186, 212 amercement of, 226
testament, 105-7, 132 lord retrieving dead villein’s
testicle, arrow through the middle of, chattels, 170
211 villeinage, 93, 196, 198, 219, 236
testimony, see witnessing violence, 5, 7, 14, 15, 21-2, 37, 45,
Tewkesbury (Glos), 189 Chapter 3, 109, 111, 120-1, 139,
thanage, 92 Chapter 6, 210-12, 215, 233
theft, 3, 13, 21-2, 29, 37, 42 n. 65, ‘Vision of Thurkilľ, 220
44-6, 52-5, 57-61, 63, 67, 69-71, Vivian, sergeant of Peterborough
78-9, 81 n. 82, 83-5, 111, 121, 130, Abbey, 92
139, 159-64, 166, 170, 174, 176-7,
180-1, 185, see also burglary; Walcote, Warin of, 121, 139
pick-pocket; robbery Wallingford, honour of, 45, 180
accomplice, 63 Walter, Hubert, 136-8, 148, 149, 152,
amount justifying mutilation, 160 155, 189
oath not to participate in, 30 Theobald, his brother, 137
Thetford, Herfast, bishop of, 13 wapentake, 37-8, 124-5
Thorney, Robert, abbot of, 54 wardship, 89, 94, 201, 228 n, 19, 229,
tithes, 49 n. 94, 120 see also minors

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Warmington (Northants), 92 Woodstock (Oxon), 147

warranty, o f land, 110—11, 121, 131, Worcester, 66
200, 208-9, 212, 217-18, 223, 235 Wulfstan, bishop of, 49, 61, 66, 81
relating to moveable goods, 71, Wormald, P., 20
166-7, 177 wounding, 33, 46, 57, 71, 162—74, 181,
watch, 61, 65 n. 33 211
Well, wapentake of (Lines), 38 wreck, 29, 33, 135
Wessex, writs, 7, 13, 18, 29, 106, 108, 112, 114,
kings of, 34 119, 124-5, 127, 133, 140, 143,
laws of, 17, 84 145, 164, 165, 189, 192-204, 206,
Westminster, 147, 230 209, 213-15, 223-4, 230-1, 234-5,
G ilbert/H erbert, abbot of, 30 238
Westoning (Beds), 159 de cursu, 136, 239
will, w discretion de recto, 127
William Clito, 100 mort ďancestor, 199
William I, king, 11, 17, 21, 31, 46, 48, novel disseisin, 194
62, 78, 108, 109, 114 of entry, 136, 140, 143, 201
William II, king, 21, 31, 35, 38, 74, 78, su r disseisin, 136
91, 99 of peace, 204
William, son of Richard, 167 of right, 127, 193, 198, 200-4, 212
William the bald, 66 n. 99, 216 n. 110
William the Lion, king of Scots, 142 of trespass, 165
William, the reeve of Bardfield, 120 ostensurus quare, 165
William, nicknamed the bald, 61 praecipe, 202, 216 n. 110, 225, 232
Wiltshire, 38, 123, 205 praecipe in capite, 224
Winchester, 147 registers of, 143, 205 n. 68, 224,
William Gίíïard, bishop of, 79 see 239
also Ilchester, Richard of required to compel a tenant to
Windsor, council of (1179), 134, 140 answer concerning his free
Wine, Assize of, 124, 133 tenement, 192, 213
witchcraft, 55 returnable, 131, 141, 143, 192
wite, 80-1 sealed closed, 131, 143
witnessing, 9, 16, 25, 41, 43, 48, 67,
101, 106-7, 110-12, 130, 167, 173, York, 47
202, 206, 226, 236 hospital of St Leonard, 207
sales, 61, 71, see also toll and team St Mary’s, 115
women, legal position of, 87-8, 92 n.
14, 94, 98, 116, 173, 189, 191, 196,
198, 211 n. 94, 216, 234-6

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