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Published online by Cambridge University Press: 11 July 2014
The birth of the common law in medieval England has given rise to a long paternity suit. Too often most of the credit is given to Henry II and his advisers burning the midnight oil crafting assizes for the governance of the realm. Here, the king created something new: a system of royal justice, namely the king's court at the Exchequer and the eyre, in which justices passed judgment based on common rules and kept records of their proceedings. The problem with this picture is that it forgets that, when Henry and those advisers sprang to the task at hand, constructing a royal law for the entire realm, the tools they needed for the task were already in their hands. The county courts, for example, on which Henry II's extension of royal jurisdiction over seigneurial courts depended, were in place and eager to administer royal laws. The Anglo-Saxons had set up these shire, as well as hundred and wapentake, courts long before, in the tenth and eleventh centuries. Almost as important, the literacy that Henry must have relied on to communicate his orders to the Exchequer, eyre, counties, hundreds, and wapentakes was ready and waiting. This legal literacy, in fact, should be considered the sine qua non of the common law, for without it, the centralization of the courts, which was the catalyst for the emergence of the common law, would have remained a royal fantasy. From where did the extensive literacy of the late twelfth-century kingdom come? Without an answer to the question of how the late twelfth-century kingdom had become so literate, the explanation of the development of the common law, dependent as it was on its rolls and writs, is sadly incomplete.
I would like to thank Paul Meyvaert, the late John Boswell, Paul Brand, and Bob Stacey for their comments on earlier versions of this paper. In penultimate form, it was presented to the Southeastern Medieval Association, Williamsburg, VA 28 September 1992.
1 This is the picture in the narrative sources. The firmest statements in favor of Henry II come from Maitland, F. W. in Pollock, Frederick and Maitland, Frederic W., The History of English Law before the Time of Edward I, 2 vols. (2nd ed.; Cambridge, 1899), 1: 136-39, 144–62Google Scholar, and Stenton, Doris M., English Justice Between the Norman Conquest and the Great Charter, 1066–1215 (Philadelphia, 1964), pp. 30-32, 52–53 Google Scholar; and most recently Brand, Paul, “‘Multis Vigilis Excogitatam et Inventam’: Henry II and the Creation of the English Common Law,” Journal of the Haskins Society 2 (1990): 197–222 Google Scholar. Some scholars trust a more serendipitous explanation: see Van Caenegem, R. C., The Birth of the English Common Law (Cambridge, 1973), p. 28 Google Scholar, Milsom, S. F. C., Historical Foundations of the Common Law, (2nd ed.; London, 1981), pp. 3, 11–36, esp. 25–27 Google Scholar, and idem, The Legal Framework of English Feudalism (Cambridge, 1976). A path between these extremes has been detected by Biancalana, Joseph, “For Want of Justice: Legal Reforms of Henry II,” Columbia Law Review 88 (April 1988): 433–536 CrossRefGoogle Scholar.
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17 Stenton, , English Justice, pp. 116–23Google Scholar; a contemporary abridgment of this account has been calendared in Regesta Regum Anglo-Normannorum, vol. 2, ed. Johnson, C. and Cronne, H. A. (Oxford, 1956), pp. 210–11 (no. 1511)Google Scholar, and edited in the appendix to the same volume, p. 358 (no. 197). Both documents have been collected and translated in Van Caenegem, R. C., English Lawsuits from William I to Richard I, 2 vols. (Selden Society 106, London, 1990), 1: 216–19 (no. 254)Google Scholar.
18 Sawyer, P. H., Anglo-Saxon Charters: An Annotated List and Bibliography (Royal Historical Society, Guides and Handbooks, no. 8, London, 1968), no. 808 (hereafter cited as S[Sawyer] 808 [etc.])Google Scholar; text in Kemble, J. M., Codex Diplomaticus Aevi Saxonici, 6 vols. (London: English Historical Society, 1839–1848), 2: 412–13 (no. 519)Google Scholar.
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23 The text of Odo's charter is in Historical Manuscripts Commission, Fifth Report (London, 1876), Appendix, p. 457 Google Scholar; William I's charter is printed in Calendar of the Patent Rolls Preserved in the P. R. O. (1232–1509), 52 vols. (London, 1891–1916), 12 Hen. VI, p. 416.Google Scholar; both are calendared in Regesta Regum Anglo-Normannorum, vol. 1, ed. Davis, H. W. C. (Oxford, 1913), pp. 26–27 (nos. 101, 102)Google Scholar.
24 This charter is a general confirmation of liberties and rights, to which a special clause concerning the “portum etiam de Sandwico et omnes exitus et consuetudines” granted by Odo has been added: see Foedera, Conventiones, Litterae et cuiuscunque generis Acta Publica, ed. Clarke, A., Holbrooke, F., and Caley, J. (London, 1816), vol. 1, p. 5 Google Scholar; the charter is calendared in Regesta, 1: 87 (no. 336).
25 Text in Elmham, Thomas, Historia Monasterii Sancti Augustini Cantuariensis, ed. Hardwick, C. (London, 1858), pp. 353–54Google Scholar; calendared in Regesta, 2: 143 (no. 1189); now available in Van Caenegem, , English Lawsuits, 1: 180–81 (no. 212)Google Scholar.
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27 The Chronicle of Battle Abbey, ed. Searle, E. (Oxford, 1980)CrossRefGoogle Scholar, and Chronicon Monasterii de Abingdon, ed. Stevenson, J. (London, 1858)Google Scholar. On charter-chronicles in general, see Chibnall, M., “Charter and Chronicle: The Use of Archive Sources by Norman Historians,” in Church and Government in the Middle Ages: Essays presented to C. R. Cheyney on His 70th Birthday, ed. Brooke, C. N. L., Luscombe, D. E., Martin, G. H., and Owen, D. (New York, 1976), pp. 1–17 Google Scholar.
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33 The location of this note first raised my interest in the case. While reading Textus Roffensis, the collection of charters and Anglo-Saxon and Anglo-Norman laws compiled at Rochester under the direction of Bishop Ernulf around 1123, I came across, on folio 57 verso, a summary of a charter that struck me as odd. First, it was inserted in that half of Textus Roffensis devoted to Anglo-Saxon and Anglo-Norman law codes, not the other half, which constitutes the cartulary of St. Andrew's cathedral, Rochester. Furthermore, it concerned Christ Church, and not Rochester. Last, the note's terms were peculiar. It reads as follows: “<C>nud rex Anglorum dedit ecclesie Christi brachium sancti Bartholomei apostoli cum magno pallio, et sui capitis auream coronam, et portum de Sandwic, et omnes exitus eiusdem aque ab utraque parte fluminis, ita ut natante naui in flumine cum plenum fuerit quam longius de naui potest securis paruula super terrain proici: Debet a ministris ecclesie Christi rectitudo nauis accipi. Nullusque”: Textus Roffensis, 2 vols., ed. Sawyer, P. H. (Early English Manuscripts in Facsimile, 7, 11. Copenhagen and Baltimore, 1957–1962), fo. 57vGoogle Scholar. Sawyer points out that this is a different hand from that of the main text. Nevertheless, it is still contemporary with that hand. The full charter is in Napier, and Stevenson, , Crawford Collection, pp. 27–29, and notes ad locGoogle Scholar.
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41 “[T]heoloneum Sandewici portus, consuetudines omnes maritimas ex utraque parte fluminis…et nauiculam ad transfretandum, solomodo pertinere ad archiepiscopum et monachos ecclesie Christi Cantuarie”: Stenton, , English Justice, pp. 120–21 (trans, is Stenton's)Google Scholar.
42 Oral witness is explicit in the majority of the cases in Van Caenegem's English Lawsuits, but the use of written evidence, by itself or with oral testimony, is perceptibly increasing by Henry II's reign: see, e.g., 2: 307 (nos. 352-3), 308 (no. 356), 309 (no. 358), 323-25 (nos. 361-62), 331 (no. 369), 334 (no. 374), 343 (no. 380), 344-45 (nos. 382-83), 349 (no. 389), 351 (no. 393), 359-60 (no. 398). Under the Norman kings, recourse to written evidence was rarer: see, e.g., 1: 6-7 (no. 4), 119-20 (146), 126-27 (158-59), 134-35 (166), in addition to the evidence of Domesday Book.
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44 I.e., Anglo-Saxon, Norman, and Ecclesiastical.
45 Text in Le Patourel, J., “The Reports of the Trial on Penenden Heath,” in Studies in Medieval History presented to Frederick Maurice Powicke, ed. Hunt, R. W., Pantin, W. A., and Southern, R. W. (Oxford, 1948), p. 23 Google Scholar; reprinted with additional documents and translated in Van Caenegem, , English Lawsuits, 1: 7–15 (no. 5)Google Scholar, and translated in English Historical Documents, vol. 2, ed. Douglas, D. C. and Greenaway, D., (2d ed.; London, 1981), p. 482 Google Scholar; the most recent study is by Bates, David, “The Land Pleas of William I's Reign: Penenden Heath Revisited,” Bulletin of the Institute of Historical Research 51 (May 1978): 1–19 CrossRefGoogle Scholar. While the assembled suitors made the final judgment, they seem, nevertheless, to have needed the guidance of Bishop Æthelric.
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47 Not all monks or clerics were English in speech and identity, but the Englishness of a house can be assumed while the Normanness must be proved. Some monasteries probably saw an increase in the number of English monks, as Emma Mason suggests for Worcester, because entrance into the religious life remained the only path of security and advancement open to those dispossessed by the Conquest: see Mason, Emma, St. Wulfstan of Worcester, c.1008–1095 (Oxford, 1990), p. 131 Google Scholar. The evidence for the presence of Norman or foreign monks or clergy is weak except for those who rose at least to the level of archdeacon. While these newly appointed Norman bishops probably brought with them their own household clerics, there is very little evidence to prove this. Chroniclers rarely record such household migrations. Only in the case of new foundations is there better evidence. Not surprisingly, for houses such as Reading, these monasteries were filled from the beginning with foreign monks: see Reading Abbey Cartularies I, ed. Kemp, B. R. (Camden 4th Series, vol. 31, London, 1986), pp. 14–15 Google Scholar. For Normans in the English Church, see the works listed above, note 9. Some indirect support for the continuing presence of English monks at many of the larger Benedictine houses is provided by the surviving manuscripts produced in their scriptoria. Neil Ker pointed out that traditional English minuscules are used with care and skill into the mid twelfth century, when both post-Conquest continental imports and existing traditions blend into a new form: see Ker, N. R., English Manuscripts in the Century after the Norman Conquest (Oxford, 1960), pp. 22–39 Google Scholar. Illumination also shows continuity in the monastic scriptoria: see Wormald, F., The Survival of Anglo-Saxon Illumination after the Norman Conquest (London, 1944)Google Scholar. The often-cited hostility between English and French traditions depends for its illustration on a few well-reported incidents (e.g., the 1070 depositions) which might not reflect the full situation: see Pfaff, Richard, “Lanfranc's Supposed Purge of the Anglo-Saxon Calendar,” in Warriors and Churchmen in the High Middle Ages. Essays Presented to Karl Leyser, ed. Reuter, Timothy (London, 1992), pp. 95–108 Google Scholar. Further signs of coexistence, even accommodation, through patronage and lay fraternities are discussed by Tsurushima, H., “The Fraternity of Rochester Cathedral Priory about 1100,” Anglo-Norman Studies 14 (1991): 313–37Google Scholar.
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58 Guerno's confession was reported by Archbishop Hugh of Rouen to Pope Hadrian (c. 1155): Literae Cantuarienses, 3 vols., ed. Sheppard, J. B. (London, 1887–1889), 3: 365–67Google Scholar; discussed by Levison, , England and the Continent in the Eighth Century, pp. 206–11Google Scholar; Brooke, , “Approaches,” pp. 105-06, 110–11Google Scholar; and Constable, , “Forgery and Plagiarism,” p. 8 Google Scholar. The term fraus, used often to describe forgery, is also used very frequently to signify the Devil's crime, which suggests how forgery was viewed by the clergy: see Lambert of Arras, Epistolae, no. 23 (Patrologia latina 162) col. 656. Brown, Elizabeth A. R., “ Falsitas Pia siue Reprehensibilis: Medieval Forgers and Their Intentions,” Fälschungen im Mittelalter, 1: 101–19Google Scholar, counters the all too often accepted dictum that monastic forgery was not viewed as a crime by the monks themselves.
59 John of Salisbury, The Letters of John of Salisbury, (1153–1161), ed. Millor, W. J., Butler, H. E., and Brooke, C. N. L. (London, 1955), pp. 97–98 (no. 57)Google Scholar, 109 (no. 67), 116-17 (no. 73), 134-35 (no. 86), 137-38 (no. 88); John of Salisbury, The Historia Pontificalis of John of Salisbury, ed. Chibnall, M., (rev. ed.; Oxford, 1986), pp. 86–87 Google Scholar.
60 Chronicle of Battle Abbey, pp. 156-59, 214-17. It was not just the crown which responded in this way: Waleran of Meulan in 1141 personally read the abbey of Meulan's charters, checking their seals and witness lists to determine authenticity; see Crouch, David, The Beaumont Twins: The Roots and Branches of Power in the Twelfth Century (Cambridge, 1986), pp. 207–08, and n. 82CrossRefGoogle Scholar. The monks of Ramsey Abbey were especially satisfied with documents sealed by kings; see Chronicon Abbatiae Rameseiensis, ed. Macray, W. D. (London, 1886), p. 69 Google Scholar, cited by Gransden, Antonia, Historical Writing in England, c.550–c.1307 (Ithaca, 1974), p. 276 Google Scholar. Falsarii are not always merely “coiners of false money,” as Downer translates the phrase in his edition of Leges Henrici Primi, (Oxford, 1970), 10,1, pp. 108–09Google Scholar, though see 13,3, pp. 116-17; Glanvill clearly includes any type of forgery or counterfeiting under the label crimen falsi: The Treatise on the Laws and Customs of England Commonly Called Glanvill, ed. G. D. G. Hall, with a guide to further reading by M. T. Clanchy (Oxford, 1993), bk. 14, c. 7, pp. 176-77; see also the Assize of Northampton, ed. Stubbs, William, Select Charters and Other Illustrations of English Constitutional History from the Earliest Times to the Reign of Edward I, ed. Davis, H. W. C. (9th ed.; Oxford, 1921), p. 179 (c. 1)Google Scholar; discussed by Hurnard, N., “The Jury of Presentment and the Assize of Clarendon,” English Historical Review 56 (July 1941), p. 401, n. 9Google Scholar; Richardson, H. G. and Sayles, G. O., The Governance of Mediaeval England from the Conquest to Magna Carta (Edinburgh, 1963), pp. 198-99, 438–44Google Scholar; Liebermann, Felix, Die Gesetze der Angelsachsen, 3 vols. (Halle, 1903–1916), 1: 314–15 (II Cnut 8,1), 158-59 (II As 14, 1), 234 (IV Atr 5,3), 523 (Hn mon. 2,1)Google Scholar.
61 For a provocative argument about the direct relationship between forgery and the development of critical approaches to texts during a later period, see Grafton, A., Forgers and Critics: Creativity and Duplicity in Western Scholarship (Princeton, 1990)Google Scholar.
62 See Poole, Reginald Lane, Studies in Chronology and History, ed. Poole, A. L. (Oxford, 1934)Google Scholar; Duggan, C., Twelfth-Century Decretal Collections and their Importance in English History (London, 1963), p. 41, nn. 1-2Google Scholar; Clanchy, , Memory, pp. 323–27Google Scholar.
63 I surveyed Latin usage in legal documents for signs of technicality in western and northern French cartularies and individual documents (comparing them to saints lives, narrative histories, chronicles, and letters), and found no consistent signs of technicality during the late eleventh or early twelfth century, even within a single scriptorium during a single decade: see O'Brien, Bruce Roland, “Studies of the Leges Edwardi Confessoris and their Milieu,” (Ph.D. diss., Yale University, 1990), pp. 262–72Google Scholar. Others disagree: see White, Stephen, Custom, Kinship, and Gifts to Saints: The Laudatio Parentum in Western France, 1050–1150 (Chapel Hill, 1988)Google Scholar, passim, but esp. 10-11, 32-44, though White's focus is on the oral ceremony and he only claims that scribes were accurate about the names of the laudatores (p. 43); and Tabuteau, Transfers of Property, cc. 3-10, though she is very sensitive to scribal vagaries and admits that “[o]n rare occasions a church uses a nearly set phrase to indicate the nature of a type of alienation. These formulaic elements do not, however, bulk large in the charters as a group. There is, instead, great fluidity of language concerning even the simplest transactions” (p. 12).
64 This is a very difficult judgment to make, considering the rather uncritical quality of most editions of cartularies; nevertheless, it seems justified. Compare, for example, the surveys of forged Anglo-Saxon and Anglo-Norman documents in Sawyer, Anglo-Saxon Charters, passim, Regesta, passim, and the works listed above in nn. 48, SI, with the better editions and calendars of French charters, such as Recueil des actes des dues de Normandie (911–1066), ed. Fauroux, M. (Mémoires de la Société des antiquaires de Normandie, vol. 36, Rouen, 1959)Google Scholar; Lot, Ferdinand, Études critiques sur l'abbaye de Saint-Wandrille (Paris, 1913)Google Scholar; Actes des comtes de Flandre, 1071–1128, ed. Vercauteren, Fernand (Brussels, 1938)Google Scholar; Les chartes de l'abbaye de Waulsort. Étude diplomatique et édition critique, vol. 1 (946-1199), ed. Despy, Georges (Brussels, 1957)Google Scholar; Guillot, Olivier, Le comte d'Anjou et son entourage au XIe sèicle, 2 vols. (Paris, 1972), 2: 275–310 (28 forgeries versus 444 authentic acts)Google Scholar. The differences between England and the continent are not just, in any case, matters of amount, but also of subject: see Tabuteau, Transfers of Property, who points out that Norman clerics forged “privileges of exemption rather than property” (p. 194), and that the development of chirographs and seals in the late eleventh century are signs that forgery was a problem, though the actual extent of it and the way in which courts overcame this problem remain a mystery because descriptions showing the use and testing of charters are so few (pp. 211-22, esp. 220-22).
65 The sources reveal only irregular movement towards a sense of diplomatics on the continent: the monks of the abbey dispute the authenticity of various documents and their seals in Lambert's Libellus de loco sepulturae Floriberti abbatis contra monachos Sancti Sauonis, ed. Holder-Egger, O. (Monumenta Germaniae historica, Scriptores, vol. 15, part 2, Hannover, 1887), pp. 641–44Google Scholar. Flemish monks studying an old deed recognized that it was written in “barbarae litterae,” in Wery of Saint-Pierre de Gand's Vita de sancto Bertulpho, abbatie Renticensis, Acta Sanctorum, Feb. 1 (1863), p. 691. Some fuss is made over seals in Vita Sancti Simonis, comitis Crespeiensis, Acta Sanctorum, Sept. 8 (1863), pp. 744-51; Ivo of Chartres, who would probably have known, advised a correspondent that if his charters were good, his church would surely win its quarrel (pp. 202-03), a position which he later undercuts by telling them to submit their dispute to the pope, who would be able to decide the case, though without prejudice to their documents, which suggests that the pope would rely on much more than a few charters to reach a decision (pp. 204-05): see Ivo of Chartres, Correspondance, ed. LeClercq, J. (Paris, 1949), vol. 1, pp. 202–05Google Scholar. For further examples, see Cartulaire Blésois de Marmoutier, ed. Métais, C. (Blois, 1889–1891), no. 50Google Scholar; and Cartulaire de l'abbaye de Saint-Aubin d'Angers, ed. de Broussillon, A. Bertrand and Kong, E., 2 vols. (Paris, 1903), 1: 118–22 (no. 106)Google Scholar.
66 On the origin of record types: see Clanchy, , Memory, pp. 62-73, 76-77, 132–35Google Scholar. The earliest evidence we have is the Dialogus de Scaccario, which describes in detail the various rolls and records associated with the Exchequer: see Nigel, Richard Fitz, Dialogus de Scaccario, ed. Johnson, C., with corrections by F. E. L. Carter, and D. E. Greenway (Oxford, 1983), pp. 17-18, 26-35, 61, 65, and passim Google Scholar.
67 For Glanvill's subterfuge in claiming English law was unwritten, see my forthcoming “Propaganda, Forgery, and the Orality of English Law,” in English Legal Treatises, 1000–1800: Explorations and Reassessments, ed. Jonathan Bush.
