Published online by Cambridge University Press: 08 February 2012
The anonymous author of the Laws of Henry I (Leges Henrici Primi) seems to undercut the value of the laws and courts of early-twelfth-century England by making a number of pessimistic comments about the capacity of formal legal proceedings to render justice. At a few points in this treatise, probably completed shortly after 1108, he also voices a preference for friendly agreement. Noting that similar predilections were widespread in medieval Europe, many recent scholars have seized on one of the author's remarks that explicitly compares these two approaches to conflict resolution by proclaiming: Pactum enim legem uincit et amor iudicium, which is translated by L. J. Downer, the work's most recent editor, as, “For an agreement supersedes law and amicable settlement a court judgment.” Ever since Stephen White and Michael Clanchy used this Latin sentence as, respectively, a title and an opening epigram in influential essays written over 25 years ago, it has become a scholarly commonplace, epitomizing what is now often seen as a deep-seated medieval preference for settling disputes through informal compromise. Most scholars that refer to this aphorism, however, use it merely as an illustrative device, without exploring this provocative assertion's meaning in its original textual setting. When considered in light of the Leges Henrici Primi (henceforth: LHP) as a whole and this work's wider context, this statement proves more revealing of complex contemporary attitudes about agreements, conflict resolution, and law than the frequent reference to what is taken to be a categorical declaration of the superiority of friendly concord might suggest.
1. Downer, Leslie J., ed., Leges Henrici Primi (Oxford: Clarendon Press, 1972), 164 (chap. 49.5a)Google Scholar. Subsequent citations of the text itself will include only the abbreviated title, LHP, and the chapter and section numbers, whereas the editor's introduction and commentary (pp. 1–79, 305–460) will be cited as “Downer,” with the page numbers. Also indispensable is the earlier edition by Liebermann, Felix, Die Gesetze der Angelsachsen, 3 vols. (Halle: Niemeyer, 1903–16) (hereafter GA), 1:547–611Google Scholar, whose chapter and section numbers Downer adopted, with only a few minor exceptions (Downer, 73). For the date, see: Sharpe, Richard, “The Prefaces of ‘Quadripartitus’,” in Law and Government in Medieval England and Normandy: Essays in Honour of Sir James Holt, ed. Garnett, George and Hudson, John (New York: Cambridge University Press, 1994), 148–72Google Scholar; idem, “The Dating of Quadripartitus Again,” in English Law Before Magna Carta: Felix Liebermann and Die Gesetze der Angelsachsen, ed. Jurasinski, Stefan, Oliver, Lisi, and Rabin, Andrew (Boston: Brill, 2010), 81–93Google Scholar.
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3. See, for example, King, Edmund, “Dispute Settlement in Anglo-Norman England,” Anglo-Norman Studies 14 (1991): 116Google Scholar; Hudson, John, The Formation of the English Common Law: Law and Society in England from the Norman Conquest to Magna Carta (New York: Longman, 1996), 16, 112Google Scholar; Wormald, Patrick, The Making of English Law: King Alfred to the Twelfth Century (Malden, MA: Blackwell, 1999), 414, 467Google Scholar; Hyams, Paul, Rancor and Reconciliation in Medieval England (Ithaca, NY: Cornell University Press, 2003), 118Google Scholar; and Lemesle, Bruno, “‘Ils donnèrent leur accord à ce jugement.’ Réflexions sur la contrainte judiciaire (Anjou, XIe–XIIe siècle),” La justice de l'an mil (Collection Histoire de la Justice, 15) (Paris: Association française pour la histoire de la justice, 2003), 144Google Scholar.
4. See Sections III and IV.
5. For the “impenetrability” of the LHP's Latin, see Sharpe, “Prefaces,” 148. For a sample of older, critical assessments of the LHP and other contemporary legal treatises, see: Plucknett, Theodore F., Early English Legal Literature (New York: Cambridge University Press, 1958), 24–30Google Scholar; Richardson, Henry G. and Sayles, George O., Law and Legislation from Æthelbert to Magna Carta (Chicago: Edinburgh University Press, 1966), 41–45Google Scholar; and Caenegem, Raoul van, The Birth of the English Common Law, 2nd ed. (New York: Cambridge University Press, 1988), 15–19CrossRefGoogle Scholar; for a more recent skeptical view, see Hudson, Common Law, 57, 249–50. For more positive views, see: Chibnall, Marjorie, Anglo-Norman England 1066–1166 (New York: Blackwell, 1986), 170–72Google Scholar; Green, Judith, The Government of England under Henry I (New York: Cambridge University Press, 1986), 95–100CrossRefGoogle Scholar; Wormald, Making of English Law, 407–15, 465–76; O'Brien, Bruce R., God's Peace and King's Peace: The Laws of Edward the Confessor (Philadelphia: University of Pennsylvania Press, 1999), 62–134CrossRefGoogle Scholar; Hyams, Rancor and Reconciliation, 116–19, 137–45; and sections I and II of this article. A significant new argument for a positive view appeared too late to be fully incorporated here: Nicholas Karn, “Rethinking the Leges Henrici Primi,” in English Law Before Magna Carta, ed. Jurasinski, 199–220.
6. “Law and Love,” quoted at 51 (citing Simon Roberts, “The Study of Disputes: Anthropological Perspectives,” in Disputes and Settlements, ed. Bossy, 6), 61, and 50. Clanchy quotes only four other of the LHP's statements that contrast friendly concords to court judgments, and cites a fifth one, all in the first three pages of his essay, at notes 2, 3, 4, and 11, which cite LHP, 7.3a, 46.4, 54.3, 57.1a, and 76.5b; he also quotes two other lines from this work that refer to court judgments or love, but without contrasting them, at notes 3 and 5, citing LHP, 6.5 and 6.6.
7. Clanchy, “Law and Love,” 49, noting that LHP, 54.3, derives from III Atr 13.3, ed. Liebermann, GA 1:232; Robertson, Agnes J., ed., The Laws of the Kings of England from Edmund to Henry I (Cambridge: Cambridge University Press, 1925), 70–71Google Scholar. For a second borrowing from Anglo-Saxon law concerning amicable settlement, at LHP, 76.5b, see below, n. 105. My references to all Anglo-Saxon and Anglo-Norman legal texts, except the LHP itself and the Laws of Edward (for which see the relatively recent critical editions cited in notes 1 and 5 by, respectively, Downer and O'Brien), begin by identifying the specific passage using the standard abbreviations and paragraph numbers developed by Liebermann, GA 1:ix-xi (e.g. III Atr 13.3). Then for each passage I cite its location both in Liebermann, GA, vol. 1, and, for most texts, in one of the two later editions of Anglo-Saxon law that are derived from his and that provide facing-page English translations, including Robertson (cited in this note) and Attenborough (cited in note 82). For some texts I also cite the translations in the EHD (below, note 23). Robertson and Attenborough left out a number of texts edited by Liebermann, including the prefaces to the Quadripartitus, for which I cite the translations of Sharpe, “Prefaces” (above, note 1). For ongoing efforts to re-edit all of this material, see the “Early English Laws” project, which includes descriptions, bibliographies, and progress reports for each text, at: http://www.earlyenglishlaws.ac.uk/.
8. Recent reviews of debate on this topic include: Barthélemy, Dominique, “La vengeance, le jugement, et le compromis,” in Le règlement des conflits au Moyen Âge. XXXIe Congrès de la Société des Historiens Médiévistes de l'Enseignement Supérieur Public (Paris: Publications de la Sorbonne, 2001), 11–20Google Scholar; Brown, Warren and Górecki, Piotr, “What Conflict Means,” and “Where Conflict Leads,” the bookends of their edited volume, Conflict in Medieval Europe: Changing Perspectives on Society and Culture (Burlington, VT: Ashgate, 2003), 1–35, 265–85Google Scholar; Wickham, Chris, Courts and Conflict in Twelfth-Century Tuscany (New York: Oxford University Press, 2003), 1–15, 277–312Google Scholar; and Reynolds, Susan, “The Emergence of Professional Law in the Long Twelfth Century,” Law and History Review 21 (2003): 347–66CrossRefGoogle Scholar, with responses by Piotr Górecki, Charles Radding, Paul Brand, and Reynolds, pp. 367–92. See also two important works that appeared too late to be addressed here: Bisson, Thomas, The Crisis of the Twelfth Century: Power, Lordship, and the Origins of European Government (Princeton: Princeton University Press, 2009)CrossRefGoogle Scholar; and Brown, Warren C., Violence in Medieval Europe (New York: Longman, 2010)Google Scholar.
9. Wormald, Patrick, “Charters, Law and the Settlement of Disputes in Anglo-Saxon England,” in The Settlement of Disputes in Early Medieval Europe, ed. Davies, Wendy and Fouracre, Paul (New York: Cambridge University Press, 1986), 149–68CrossRefGoogle Scholar; and Wormald, , “Giving God and King their Due: Conflict and its Regulation in the Early English State,” Settimane di Studio del Centro Italiano di Studi sull'Alto Medioevo 44 (1997): 549–90Google Scholar; both now in his Legal Culture in the Early Medieval West: Law as Text, Image and Experience (Rio Grande, OH: Hambledon Press, 1999), 289–311, 333–57Google Scholar; Green, Government of England, 95–117; Hudson, Common Law, 24–51, 114–15; Hudson, John, Land, Law and Lordship in Anglo-Norman England (New York: Oxford University Press, 1994), 5–6, 145–50Google Scholar; Hudson, , “Court Cases and Legal Arguments in England, c. 1066–1166,” Transactions of the Royal Historical Society, 6th ser., 10 (2000): 91–115CrossRefGoogle Scholar; Hollister, C. Warren, Henry I, ed. Frost, Amanda C. (New Haven: Yale University Press, 2001), 358–60Google Scholar; and Green, Judith, Henry I: King of England and Duke of Normandy (New York: Cambridge University Press, 2006), 114–17, 235–47Google Scholar.
10. Cheyette, Fredric, “Suum Cuique Tribuere,” French Historical Studies 6 (1970): 287–99CrossRefGoogle Scholar; Cheyette, , Ermengard of Narbonne and the World of the Troubadours (Ithaca: Cornell University Press, 2001), 199–247Google Scholar; and White, Stephen, “From Peace to Power: The Study of Disputes in Medieval France,” in Medieval Transformations: Texts, Power, and Gifts in Context, ed. Cohen, Esther and Jong, Mayke De (Boston: Brill, 2001), 203–18Google Scholar, which offers a restatement of his position in the context of recent work; his many articles on disputing have now been collected in Feuding and Peace-Making in Eleventh-Century France (Burlington, VT: Ashgate, 2005). See also Geary, Patrick, “Living with Conflicts in a Stateless France: A Typology of Conflict Management Mechanisms, 1050–1200,” in his Living with the Dead in the Middle Ages (Ithaca, NY: Cornell University Press, 1994), 125–60Google Scholar; and Geary, , “Extra-Judicial Means of Conflict Resolution,” Settimane di Studio del Centro Italiano di Studi sull'Alto Medioevo 42 (1995):569–603Google Scholar. For contrasting views from the perspective of northeastern France, see: Koziol, Geoffrey, Begging Pardon and Favor: Ritual and Political Order in Early Medieval France (Ithaca: Cornell University Press, 1992)Google Scholar; and Robert Jacob, “Conclusions: logiques et langages du procès autour de l'an mil,” in Justice de l'an mil, 149–67.
11. Hyams, Rancor and Reconciliation, 71–154; and similarly, if more cautiously: Hudson, Common Law, 8–16, 52–85, 105–15. Although Hyams argues for the use of the term “feud,” others prefer the more general notion of “customary vengeance;” see: Guy Halsall, “Violence and Society in the Early Medieval West: An Introductory Survey,” and Bennett, Matthew, “Violence in Eleventh-Century Normandy: Feud, Warfare and Politics,” both in Violence and Society in the Early Medieval West, ed. Halsall, Guy (Rochester, NY: Boydell, 1998), 1–45, 126–40Google Scholar.
12. Davies and Fouracre, “Conclusion,” in their Settlement of Disputes, 207–40, at 235–37; Hudson, Common Law, 15–16, 66–67; and “Court Cases and Legal Arguments,” 113–15; Stephen White, “From Peace to Power;” and Brown and Górecki, “Where Conflict Leads.” For how recourse to adjudication or negotiated compromise might vary depending upon types of cases, litigants' social status, and differences in political culture and judicial institutions, see: Miller, William Ian, Bloodtaking and Peacemaking: Feud, Law, and Society in Saga Iceland (Chicago: University of Chicago Press, 1990), 221–99CrossRefGoogle Scholar; Koziol, Begging Pardon, 110–12, 255–56, 281–83; Hyams, Rancor and Reconciliation, 3–33, 111–54; and Wickham, Courts and Conflict.
13. Stenton, Doris, English Justice Between the Norman Conquest and the Great Charter 1066–1215 (Philadelphia: American Philosophical Society, 1964), 7 (the emphasis is mine).Google Scholar
14. Clanchy, Michael, From Memory to Written Record: England 1066–1307, 2nd ed. (Malden, MA: Blackwell, 1993)Google Scholar; see also Reynolds, Susan, Kingdoms and Communities in Western Europe 900–1300, 2nd ed. (New York: Oxford University Press, 1997), 12–66Google Scholar; and Brand, Paul, The Origins of the English Legal Profession (Cambridge, MA: Blackwell, 1992)Google Scholar. Skepticism is also required, however, concerning Clanchy's implication in “Law and Love” that friendly concord manifested itself in a similar way in the early twelfth and the later thirteenth centuries. His most substantial evidence for an enduring preference for amicable settlement in late medieval England concerns the recourse by disputants in local and manorial courts to “lovedays” (dies concordandi, dies amoris, or jours d'amour), meetings where conflicts were settled out of court (pp. 49–50, 57–67). However, the earliest references to the loveday date only to the mid-thirteenth century, when such para-judicial practices, such as the late medieval arbitrations that mimicked court procedures, would have been more likely to develop. On the loveday, see: Liebermann, GA 2: 13 (amicitia), 136 (lufu, def. no. 3), 636–38 (Schiedsgericht); Downer, 315, 354; Bennett, Josephine W., “The Mediaeval Loveday,” Speculum 33 (1958): 351–70 (whose general treatment remains unsurpassed)CrossRefGoogle Scholar; and, for a recent case study: Maurer, Helen, “Margaret of Anjou and the Loveday of 1458: A Reconsideration,” in Traditions and Transformations in Late Medieval England, ed. Biggs, Douglas, Michalove, Sharon D., and Reeves, Albert Compton (Boston: Brill, 2002), 109–24Google Scholar. On late medieval arbitration, see: Powell, Edward, “Arbitration and the Law in England in the Late Middle Ages,” Transactions of the Royal Historical Society 5th Ser., 33 (1983): 62CrossRefGoogle Scholar; and my conclusion to this article.
15. Brown and Górecki, “Where Conflict Leads;” for an exemplary study of an Anglo-Norman legal work, see O'Brien, Laws of Edward.
16. For possible echoes in this work of the contemporary clerical emphasis on tempering the rigor of the law, in addition to statements about friendly concord, see: LHP, 4.5; 5; 9.3, 6–7; 11.16a; 28.2–6; 33–34; 40.3–4; 48–49; 59.20–20a; 63.2; 64.1a, 1e; 66.8; 68.2; 70.12c; 70.17; 72; 88.6b; 90.11, 11d; and Downer, 385. For the elaboration of this theme by Ivo, Bishop of Chartres (1090–1115), for Ivo's influence on the LHP, and for the prevalence of similar ideas among Anglo-Norman clerics, see: Cramer, Peter, “Ernulf of Rochester and Early Anglo-Norman Canon Law,” Journal of Ecclesiastical History 40 (1989): 483–510CrossRefGoogle Scholar; Philpott, Mark, “The De iniusta uexacione Willelmi episcopi primi and Canon Law in Anglo-Norman Durham,” in Anglo-Norman Durham 1093–1193, ed. Rollason, David et al. (Rochester, NY: Boydell, 1994), 125–37Google Scholar; Hudson, John, Land, Law, and Lordship in Anglo-Norman England (New York: Oxford University Press, 1994), 231–32Google Scholar; Somerville, Robert and Brasington, Bruce, ed., Prefaces to Canon Law Books in Latin Christendom: Selected Translations, 500–1245 (New Haven: Yale University Press, 1998), 132–58Google Scholar; Wormald, Making of English Law, 465–76; Hyams, Rancor and Reconciliation, 137–45; Brasington, Bruce, “Lessons of Love: Bishop Ivo of Chartres as Teacher,” in Teaching and Learning in Northern Europe, 1000–1200, ed. Vaughn, Sally N. and Rubinstein, Jay (Turnhout, Belgium: Brepols, 2006), 129–47Google Scholar; Brasington, , “Canon Law in the Leges Henrici Primi,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Kanonistische Abteilung 92 (2006): 288–305CrossRefGoogle Scholar; Terlizzi, Francesco Paolo, La regalità sacra nel medioevo? L'Anonimo Normanno e la Riforma romana (secc. XI–XII) (Spoleto: Centro Italiano di Studi sull'Alto Medioevo, 2007)Google Scholar; and Rolker, Christof, Canon Law and the Letters of Ivo of Chartres (New York: Cambridge University Press, 2010)CrossRefGoogle Scholar.
17. For recent arguments that emphasize the interplay of rule and process in twelfth-century legal practice, see Hudson, “Court Cases and Legal Arguments;” and Wickham, Courts and Conflict, 303–10.
18. Liebermann, Felix, Quadripartitus, ein englisches Rechtsbuch von 1114 (Halle: Niemeyer, 1892)Google Scholar, who gave this collection its modern name because of an inscription he found in a sixteenth-century manuscript. See: Patrick Wormald, “Quadripartitus,” in his Legal Culture, 81–114.
19. Liebermann, Quadripartitus, 151–66; Downer, 1–45; Sharpe, “Prefaces;” Wormald, “Quadripartitus.”
20. Downer, 37–45; Wormald, “Quadripartitus,” and Making of English Law, 465–76. On the changing notions of ethnic identity in this period, see Thomas, Hugh M., The English and the Normans: Ethnic Hostility, Assimilation, and Identity 1066–c. 1220 (New York: Oxford University Press, 2003)CrossRefGoogle Scholar, with comment on the LHP's author at 77–78.
21. Barlow, Frank, The English Church: 1066–1154 (London, 1979)Google Scholar; Bartlett, Robert, England under the Norman and Angevin Kings, 1075–1225 (New York: Oxford University Press, 2000), 395–412Google Scholar; Hollister, Henry I, 370–457; Green, Henry I, 254–83.
22. On the liberal arts, see Wagner, David L., ed., The Seven Liberal Arts in the Middle Ages (Bloomington, IN: Indiana University Press, 1983)Google Scholar; and Vaughn and Rubinstein, Teaching and Learning.
23. C Hn Cor, ed. Liebermann, GA 1:521–23; Robertson, Laws of the Kings, 276–83; also translated in Douglas, David C. and Greenaway, George W., ed., English Historical Documents, II. 1042–1189 (New York: Oxford University Press, 1953) (hereafter: EHD 2), 400–402Google Scholar. For convenience, I retain the traditional term “charter” for this document, although technically it is better termed an “edict,” or legislation in the form of a writ. See: Stafford, Pauline, “The Laws of Cnut and the History of Anglo-Saxon Royal Promises,” Anglo-Saxon England 10 (1982): 173–90Google Scholar; Green, Judith A., “‘A Lasting Memorial’: The Charter of Liberties of Henry I,” in Charters and Charter Scholarship in Britain and Ireland, ed. Flanagan, Marie Therese and Green, Judith A. (New York: Palgrave, 2005), 53–69CrossRefGoogle Scholar; Green, Henry I, 42–52; and Garnett, George, Conquered England: Kingship, Succession, and Tenure, 1066–1166 (New York: Oxford University Press, 2007), 105–20CrossRefGoogle Scholar.
24. Wormald, Making of English Law, 413, estimates that one-third of the approximately 950 clauses into which the chapters were divided and numbered by Liebermann quote Anglo-Saxon law from the Quadripartitus, although many of these clauses or paragraphs consist only partly of such quotations.
25. Sawyer, Peter H., ed., Textus Roffensis: Rochester Cathedral Libray Manuscript A.3.5, 2 vols. (Early English Manuscripts in Facsimile, vols. 7, 11) (Copenhagen: Rosenkilde and Bagger, 1957–1962)Google Scholar. See: Patrick Wormald, “Laga Eadwardi: The Textus Roffensis and its Context,” in his Legal Culture, 115–37; and Wormald, Making of English Law, 236–52.
26. Quadr. Arg. 27, ed. Liebermann, GA 1:535: qui … lagam regis Eadwardi nobis reddidit; transl. in Sharpe, “Prefaces,” 167.
27. Leis Wl, ed. Liebermann, GA 1: 492–520; Robertson, Laws of the Kings, 252–75. For discussion, see: O'Brien, Laws of Edward, 31–61; and Wormald, Making of English Law, 407–11.
28. LHP, 8.6, 20.3, and 88.12.
29. LHP [Prooemium 1:] beata pacis ac libertatis exoptate gaudia quibus toti regno suo gloriosus cesar Henricus in diuinis legibus et secularibus institutis … irradiat. See Downer, 7–9.
30. LHP, 7.1, 7.4; cf. Hn com, ed. Liebermann, GA 1:524; Robertson, Laws of the Kings, 286–287; and Douglas and Greenaway, EHD 2:433–34.
31. Among the few morsels of pre-Henrician Anglo-Norman law in the LHP, see 64.3a, which records a provision from a text attributed to William the Conqueror (Wl lad 3.2, ed. Liebermann, GA 1:484; Robertson, Laws of the Kings, 232–33); and perhaps LHP, 8.1b and 18.1. See: Downer, 317, 334, 375; and Hudson, Common Law, 17–22.
32. C Hn cor 13, ed. Liebermann, GA 1:522: Lagam regis Eadwardi uobis reddo cum illis emendationibus quibus pater meus eam emendauit consilio baronum suorum; as translated in Douglas and Greenaway, EHD 2:402.
33. Quadr. Arg. 27, ed. Liebermann, GA 1:535: beati patris eius emendationibus roboratam, propriis institutionibus honestauit; translated in Sharpe, “Prefaces,” 167. See also the titles of the preface and of the opening of what Liebermann considered the Quadripartitus's second book: Quadr. II Praef., ed. GA 1:542, 544; the first is translated in Sharpe, “Prefaces,” 169.
34. Hudson, Common Law, 57, uses this term, but with qualifications; indeed my argument here builds on his acknowledgment on pp. 249–50, that those parts of the LHP which have no known written source may well be drawn from personal experience. For the observations that follow in this paragraph, see also the similar but more detailed arguments of Karn, “Rethinking the Leges Henrici Primi.”
35. For records of lawsuits for the period between the Norman Conquest and the end of Henry I's reign (1066–1135), see the collections of texts by: van Caenegem, Raoul, ed., English Lawsuits from William I to Richard I, 2 vols. (London: Selden Society, 1990–91), vol. 1, William to Stephen (Nos. 1–346), containing 287 lawsuits through ca. 1135Google Scholar; and Fleming, Robin, ed., Domesday Book and the Law: Society and Legal Custom in Early Medieval England (New York: Cambridge University Press, 1998)CrossRefGoogle Scholar, which provides English translations of 3217 brief legal narratives or transactions recorded in the Domesday Book, although only approximately 1000 of these explicitly recorded legal testimony (111 of these were already included in Van Caenegem's selection). See also the more comprehensive calendars of royal acts by: Davis, Henry W. C., Whitwell, Robert J., Johnson, Charles, Cronne, Henry A., and Davis, Ralph H. C., Regesta Regum Anglo-Normannorum 1066–1154, 4 vols. (Oxford: Clarendon Press, 1913–68) [hereafter RRAN]Google Scholar, the first two volumes of which calendar 1991 acts through 1135, with appendices containing editions of 46 acts for William II and 327 for Henry I; and Bates, David, ed., Regesta Regum Anglo-Normannorum: The Acta of William I (1066–87) (Oxford: Clarendon Press, 1998), which edits 353 acts, effectively replacing most of Davis et al., vol. 1Google Scholar.
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37. For two uses each of the two alternatives for the county, see LHP, 7–7.1 and 7.3a–4. Most of the text's uses of curia that are not explicitly specified as being either royal or lordly do not refer to judicial assemblies at all, but rather to: a “courtyard,” i.e., a precinct or enclosed area near a house (ibid., 80.1, 7, 11c; 91.2); an estate or manor (ibid., 51.6); a protected area within which crimes are punished more severely (ibid., 38.1); or the right of jurisdiction (ibid., 26.1, 3; 33.3a). See: Downer, 348, 398; and Baker, John H., “The Changing Concept of a Court,” in his The Legal Profession and the Common Law: Historical Essays (London: Hambledon, 1986), 153–69Google Scholar.
38. Chibnall, Anglo-Norman England, 194, citing LHP, 57.8b, for which see below, at note 48.
39. See especially the opening lines of chaps. 5 and 9, which distinguish causae as being ecclesiastical or secular (chap. 5), whether or not they can be compensated for by payment, and those which belong to royal jurisdiction (chap. 9). In some of these contexts, causa can also be translated as “crime” or “charge.” See Downer, 427–30; Niermeyer, Jan F., Mediae Latinitatis Lexicon Minus, 2 vols. (Boston: Brill, 2002)Google Scholar, s.v. causa, definitions nos. 2 and 3.
40. Downer, 427–30; Charles Donahue, Jr., “The Emergence of the Crime-Tort Distinction in England,” in Conflict in Medieval Europe, ed. Brown and Górecki, 219–28; Hyams, Rancor and Reconciliation, 144–54, 220–24.
41. Domesday Book, 36–52, quoted at 39; for a similar argument, see also Brand, Legal Profession, 5–13; and for similar patterns in the late Anglo-Saxon period, see: Kennedy, Alan, “Law and Litigation in the Libellus Æthelwoldi episcopi,” Anglo-Saxon England 24 (1995): 134–52CrossRefGoogle Scholar. For royal acts addressed to shires, see: C Hn cor, Hn mon, and Hn com, ed. Liebermann, GA 1:521–24; Robertson, Laws of the Kings, 276–87; and Davis et al., RRAN 2. Of the first 100 acts listed for Henry's reign in the latter source (nos. 488–588), fully 33 are addressed to one or more particular shires; one precept (no. 528) is more explicit: it orders the sheriffs of Berkshire and Oxfordshire to obtain testimony from the men of these shires. For comment, see Maddicott, John R., The Origins of the English Parliament, 924–1327 (New York: Oxford University Press, 2010), 80–83CrossRefGoogle Scholar.
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43. Multiple hundreds: LHP, 7.5; boundary courts: ibid., 9.4; 34.1a; 57; lord's courts: ibid., 9.4; 34.1a; 55.1; 56.2, 4; 57.1a, 8; Downer, 320; and Van Caenegem, Lawsuits, nos. 136, 164, 165, 174, and 208. See: Cam, Helen, “Early Groups of Hundreds,” in her Liberties and Communities in Medieval England (New York: Barnes and Noble, 1963), 91–106Google Scholar; Palmer, Robert C., The County Courts of Medieval England, 1150–1350 (Princeton: Princeton University Press, 1982), 3–27Google Scholar; Kennedy, “Law and Litigation,” 140–41; Hudson, Common Law, 34–40; Fleming, Domesday Book, 11–17.
44. Lords' rights and jurisdiction: LHP, 8.2a–5; 9.4; 11.17; 19.2; 20.1–2; 23; 25; 27; 43–44; 55–57; 59.6, 11–13; 60.2–3; 61; 63.2–4; 64.2–3; 65.4; 67.2; 80.6–6a, 9a; 82.3–6; 83.6a; 86.1–2; 87.4–4a, 6a; 88.9a, 10, 20; 94.1–3; manorial courts: ibid., 9.4; 20.1a–2; 34.1a; 56.1, 4; 57.8; 78.2; fiefs (variously feud- and feod-, neuter –um and masc. –us): 43.5, 8; 48.10–12; 55.1b; 56.2; 59.12a; 61.13, 13b; 70.21; 80.7a; 88.15; see Downer, 319–20, 323, 357.
45. Of the total of 20 entries listed in the index of Van Caenegem, Lawsuits 2:777, for seigneurial courts through the end of Henry I's reign, only one case concerns a secular lord's court (no. 217), and this belonged to the exceptionally independent Earl of Chester. Although the precise roles of and degree of autonomy enjoyed by honorial courts remain controversial, most scholars agree that such courts probably had more importance than the very sparse direct evidence for them, especially for the period before 1120 or thereabouts, might indicate. See for example, in addition to the works cited above, note 36: Stenton, Frank, The First Century of English Feudalism 1066–1166, 2nd ed. (Oxford: Clarendon Press, 1961), 42–63, 90–112Google Scholar; Milsom, Stroud F. C., The Legal Framework of English Feudalism (New York: Cambridge University Press, 1976)CrossRefGoogle Scholar; Hudson, Land, Law, and Lordship, 131–43; and Hudson, Common Law, 40–47. For a more skeptical view, see Reynolds, Susan, Fiefs and Vassals: The Medieval Evidence Reinterpreted (Oxford: Clarendon Press, 1994, 375–79Google Scholar.
46. LHP, 7.2; see also ibid., 7.3–8; 8.1–2; 29; 30.1; 31.1–3; 51.2; 53.1. See: Brand, Legal Profession, 6.
47. Lords in hundred and county courts: LHP, 7.2, 7–8; 30; 41.7; 48.3; 56.5; 59.6; with different overlords: ibid., 25.1; 57; vavassors with rights of jurisdiction: ibid., 7.2; 26.3; 27.1; superior justices: ibid., 26.1; 33.3; 59.3; 61.3; and see Downer, 314–16, 320, 348, 363. On sheriffs and justices, see: Green, Judith, English Sheriffs to 1154 (London: HMSO, 1990), 9–23Google Scholar; Green, Henry I, 242–47.
48. LHP, 57.8–8b: Omnes enim cause suos habent pertractationum modos, siue in statu quo cepere permaneant siue de eo in alium transeant; here I prefer to translate status as “place,” rather than Downer's more technical “jurisdiction.” Elsewhere the author uses status causae to refer more generally to the nature or character of a case; see: LHP, 49.2; 61.18b; and Quadr. Arg. 32, ed. Liebermann, GA 1:535; translated in Sharpe, “Prefaces,” 168. For appeals, see: LHP, 7.5–6; 9.4–5; 22.1; 26.1; 31.4; 33–4; and Downer, 320; on denial of justice: LHP, 9.4; 10.1; 33.1a; 34; 57.5; 59.19; 61.19; 74.3; 82.1, 2c; 83.2; and Downer, 344, 403.
49. LHP, 6.2a; 9.1, 10a–11; 10–17; 19; 24; 31.4: recordationem curie regis nulli negare licet (“no one may dispute the record of proceedings in the king's court”); 43.1; 49.4. See Hudson, Land, Law, and Lordship, 136–39.
50. LHP, 31.3; see also 7.2–3; 8.1a; 11; 20.3; 21; 57.9–9a. See: Downer, 315; Brett, Martin, The English Church under Henry I (London: Oxford University Press, 1975), 148–61, 205–8Google Scholar; Barlow, English Church, 145–76; Chibnall, Anglo-Norman England, 192–207; Christopher Harper-Bill, “The Anglo-Norman Church,” in Companion to the Anglo-Norman World, ed. Harper-Bill and Van Houts, 165–90.
51. LHP, 5.1; 29.1c. See: Downer, 316, 341; Pollock and Maitland, English Law, 1: 547–49; 592–94; Helen Cam, “Suitors and Scabini,” in her Liberties and Communities, 49–63; Reynolds, Kingdoms and Communities, 12–38; Bartlett, Robert, Trial by Fire and Water: The Medieval Judicial Duel (New York: Oxford University Press, 1986)Google Scholar; Brand, Legal Profession, 5–13; Kennedy, “Law and Litigation,” 173–83; Lupoi, Maurizio, The Origins of the European Legal Order (New York: Cambridge University Press, 2000), 173–231CrossRefGoogle Scholar.
52. Judgment by peers, not outsiders, of one's choosing, in ecclesiastical cases: LHP, 5.2, 3a, 5, 6, 13, 24; and in secular cases: ibid., 31.7–8; and 33.5 (which repeats 5.5). Peers and neighbors as judges: ibid., 33.1; acceptance of judgment: ibid., 5.3a; 33.2–2a; 61.13a; counselors and friends: ibid., 4.6; 46.4–5; 49.2a; cf. 59.9a–b.
53. For judges (iudices), in addition to those cited in the previous note, see: LHP, 7.2, 5, 8; 9.8–9; 24.1; 28.1–2; 29.1, 4; 31.6; see also note 57. Sapientes: LHP, 75.5b; 88.15; 93.37; cf. 71.2; witnesses (testes): ibid., 5.1, 3a, 11, 15, 16, 27; 28.3; 41.2; 45.1a; 48.2a, 4, 5, 9–11; 49.3c; 54.1–2; 57.7a; 59.2a, 7; 63.2; 64.6b; 70.11; 78.1–2; 80.7b; 82.1, 2a; 87.6; 88.15; oath-helpers (consacramentales, testes): ibid., 13.9; 31.8–8a; 64–67; 87.6. On oath-helpers, see Downer, 430–35.
54. Combined lists of iudices and testes or iudices and iuratores: Van Caenegem, Lawsuits, nos. 205, 214; see also no. 163–B, D; Hunter, Joseph, ed., Magnum Rotulum Scaccarii vel Magnum Rotulum Pipae Anno Tricesimo-Primo Regni Henrici Primi (London: Public Record Office, 1833) (hereafter: PR31HI), 34Google Scholar. See: Lemesle, “Ils donnèrent leur accord.”
55. LHP, 48.2a, 11; translation slightly modified.
56. LHP, 5.6: uincat sententia plurimorum; 31.2: uincat sententia meliorum See Brasington, “Canon Law,” 300, who notes that for the first statement the author drew on Ivo of Chartres (e.g., Panormia 3.2), which may also apply to the second as well. But there is also a parallel with III Atr 13.2, ed. Liebermann, GA 1: 232; Robertson, Laws of the Kings, 68–69.
57. Royal judges (iudices regis, fiscalis): LHP, 24.1; 29.1–1c; 63.1; royal agents (ministri regis, principis): ibid., 9.11; 26.3–4; 82.2c; 83.2. For a discussion of the LHP's judicial terminology that makes many of these points, though to somewhat different ends, see: Richardson, Henry G. and Sayles, George O., The Governance of Medieval England from the Conquest to Magna Carta (Chicago: Edinburgh University Press, 1963), 182–84Google Scholar. For the packing of juries, etc., see Fleming, Domesday Book, 17–28.
58. Justices, explicitly royal (iustitiae regis, eius): LHP, 42.2; 48.1a; 52.1; 53.1; 59.1a; 59.11; 66.9; 75.6a; 91.1; 92.3; “superior” justices (iustitiae maiores): LHP, 26.1; 33.3; 59.3; 61.3; and Downer, 339; unspecified justices: LHP, 29.1b; 31.2; 34.5, 7; 46.1; 48.4; 51.5; 52.1c; 54.2–3, 5; 59.4a, 10, 14, 27–28; 60.1–1b; 61.8; 66.9a; 88.20a; 92.4, 9, 12; and Downer, 361. The terminology and specific functions of royal judicial officials remained very vague under Henry I, with evidence for traveling justices resembling the later justices “in eyre” appearing only from the middle of the reign. On this controversial topic, see: Cronne, Henry A., “The Office of Local Justiciar in England under the Norman Kings,” University of Birmingham Historical Journal 6 (1957): 18–38Google Scholar; Richardson and Sayles, Governance, 173–90; Reedy, William T., “The Origins of the General Eyre in the Reign of Henry I,” Speculum 41 (1966): 688–724CrossRefGoogle Scholar; Hollister, C. Warren and Baldwin, John W., “The Rise of Administrative Kingship: Henry I and Philip Augustus,” American Historical Review 83 (1978): 882–85CrossRefGoogle Scholar; Green, Government, 107–10; Mooers, Stephanie L., “A Reevaluation of Royal Justice under Henry I of England,” American Historical Review 93 (1988): 340–58CrossRefGoogle Scholar; Hudson, Common Law, 30–34; Hollister, Henry I, 349–69; Green, Henry I, 14, 235–47; Hagger, Mike, “A Pipe Roll for 25 Henry I,” English Historical Review 122 (2007): 133–40CrossRefGoogle Scholar.
59. For the significance of royal agents even earlier, see Campbell, James, “Some Agents and Agencies of the Late Anglo-Saxon State,” in Domesday Studies: Papers Read at the Novocentenary Conference of the Royal Historical Society, ed. Holt, James C. (Woodbridge: Boydell Press, 1987), 201–18Google Scholar. For what might be called a “maximalist” view of royal justice under Henry I, see Mooers, “Reevaluation of Royal Justice;” for a “minimalist” view, against which my argument here is directed, see Brand, Legal Profession, 5–13. Although Mooers, “Reevaluation,” 343, criticizes the LHP for not mentioning itinerant justices, the recent proposal by Sharpe, “Prefaces,” to date the completion of this text to approximately 1108, ten years earlier than previously supposed, would mean that the author was writing before itinerant justices became important.
60. For use of the first person, see: LHP, 5.25; 7.8; 45.5; 64.6b; and 83.1. That caution is needed in considering the significance of this grammatical usage is shown by the passage at 5.25, where this phrasing seems to be taken directly from the author's source in Ivo of Chartres, Panormia, 4.102; see: http://project.knowledgeforge.net/ivo/panormia/pan_4_1p4.pdf. For professor and professio, see: LHP, 6.3a; 8.7; and 9.8; and Quadr. Ded. 24 and 38, ed. Liebermann, GA 1:531–32. For discussion, see: Downer, 38–42, 313–14; Sharpe, “Prefaces,” 159 (where he argues that the author equates professores with iudices, in the sense of “jurors” or “judgment-finders”), 162; and most recently and provocatively, Karn, “Rethinking the Leges Henrici Primi.”
61. Green, Government, 134–93; Christelow, Stephanie M., “Chancellors and Curial Bishops: Ecclesiastical Promotions and Power in Anglo-Norman England,” Anglo-Norman Studies 22 (1999): 49–69Google Scholar; Wormald, Making of English Law, 465–76; and O'Brien, Laws of Edward, 44–61, 111.
62. Downer, 37–44; Brand, Paul, “The Origins of the Legal Profession,” Law and History Review 5 (1987): 31–50CrossRefGoogle Scholar; and Legal Profession, vii–viii, 1–32; and Brundage, James, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago: University of Chicago Press, 2008), 1–8, 46–84CrossRefGoogle Scholar.
63. For the need for more attention to those at the lower end of the legal profession, such as scribes and notaries, see Reynolds, “Emergence of Professional Law,” and the ensuing discussion; and David Bates, “Charters and Historians of Britain and Ireland: Problems and Possibilities,” in Charters and Charter Scholarship, ed. Flanagan and Green, 1–14.
64. LHP, 6.3–6; 8.7; 57.8a; 63.4; all of which go beyond stereotyped authorial apologies for inadequacy in that they include more specific criticisms of legal diversity, the innovations of practitioners, and lordly power. But see also his more rhetorical self-criticisms in Quadr. Ded. 3, 24–25, 38; Quadr. Arg. 29–30; and Quadr. II Praef. 13, ed. Liebermann, GA 1: 529, 531–32, 535, and 543; translated in Sharpe, “Prefaces,” 151–52, 159, 162, 168, and 171–72.
65. In addition to the author's now-famous aphorism, see also: LHP, 28.6; 46.6; 48.1c; 57.7b; 61.14; 61.21; 70.12b; 77.2a; 84.2–4; 88.6a; 90.11a; and for comment: Liebermann, Felix, Über das englische Rechtsbuch Leges Henrici (Halle: Niemeyer, 1901), 25Google Scholar; Wormald, Making of English Law, 467; Hyams, Rancor and Reconciliation, 117–18. Although work on medieval legal maxims has focused on Roman and canon law, their importance as interpretive tools in jurisprudence and courtroom argument also applies to customary and Common Law. See: Stein, Peter, Regulae Iuris: From Juristic Rules to Legal Maxims (Edinburgh University Press, 1966), 124–32Google Scholar; Pennington, Kenneth, “Maxims, Legal,” in Dictionary of the Middle Ages, ed. Strayer, Joseph R. et al. , 13 vols. (New York: Scribner, 1982–89), 8: 231–3Google Scholar; Carruthers, Mary, The Book of Memory: A Study of Memory in Medieval Culture (New York: Cambridge University Press, 1990), 112–14, 174–9Google Scholar; Clanchy, Memory to Written Record, 248–50, 272–78; Brand, Paul, “Courtroom and Schoolroom: The Education of Lawyers in England Prior to 1400,” in his The Making of the Common Law (Rio Grande, OH: Hambledon Press, 1992), 57–75, at 60, 74Google Scholar; Hyams, Paul, “Due Process versus the Maintenance of Order in European Law: The Contribution of the Ius Commune,” in The Moral World of the Law, ed. Coss, Peter (New York: Cambridge University Press, 1999), 86–90Google Scholar; and John Hudson, “From the Leges to Glanvill: Legal Expertise and Legal Reasoning,” in English Law Before Magna Carta, ed. Jurasinski, 221–249.
66. Walther, Hans, Proverbia Sententiaeque Latinitatis Medii Aevii, 9 vols. (Göttingen: Vandenhoeck and Ruprecht, 1963–86), 2:723 (no. 13709)Google Scholar; 3:692 (no. 20557), 4:975 (no. 29125), 4:1001 (no. 29298); and 8:294 (no. 37872c1). Three previously unremarked Latin forms of the maxim dating to the 1130s appear in : Fredborg, Karin M., ed., The Latin Rhetorical Commentaries by Thierry of Chartres (Toronto: Pontifical Institute of Medieval Studies, 1988)Google Scholar, 190: de pacto dicitur huiusmodi proverbium, “conventio vincit legem” (“concerning pacts this proverb is said: ‘agreement overcomes law’”); 257: secundum quod dicitur: vincit conventio leges (“as it is said: agreement overcomes laws”); and 276: unde rustici: “pactum legem vincit” (“concerning which rustics [say]: ‘agreement overcomes law’”). A French version is documented by ca. 1150–70; see AFriend, lbert C., “The Proverbs of Serlo of Wilton,” Mediaeval Studies 16 (1954): 195CrossRefGoogle Scholar, no. 27: cuuenant lai ueint (“agreement overcomes law”). For somewhat later occurrences, see: Morawski, Joseph, Proverbes français antérieurs au XVe siècle (Paris: Champion, 1925), 16 (no. 431)Google Scholar; Singer, Samuel, Sprichwörter des Mittelalters, 3 vols. (Bern: Herbert Lang, 1944–47), 2:92 (no. 259)Google Scholar, with German and Italian versions as well; and Roland, Henri and Boyer, Laurent, Adages du droit français, 4th ed. (Paris: Litec, 1999), 113–15 (no. 61)Google Scholar. It does not appear in Hassell, James W., Middle French Proverbs (Toronto: Pontifical Institute of Mediaeval Studies, 1982)Google Scholar. For the German version, see: Schmidt–Wiegand, Ruth, Deutsche Rechtsregeln und Rechtssprichwörter: Ein Lexikon (Munich: C. H. Beck, 1996), 124, 220, 352Google Scholar.
67. Whiting, Bartlett J., “The Nature of the Proverb,” Harvard Studies and Notes in Philology and Literature 14 (1932): 273–307Google Scholar. For recent discussions of the notoriously difficult problem of the definition of proverbs, specifically in the context of medieval sources, see: Taylor, Barry, “Medieval Proverb Collections: The West European Tradition,” Journal of the Warburg and Courtauld Institutes 55 (1992): 19–35CrossRefGoogle Scholar; Deskis, Susan E., Beowulf and the Medieval Proverb Tradition (Tempe, AZ: Arizona State University, 1996), 1–11Google Scholar, to whose discussion I am particularly indebted; and Pfeffer, Wendy, Proverbs in Medieval Occitan Literature (Gainesville, FL: University Press of Florida, 1997), 1–11Google Scholar. More generally, see: Mieder, Wolfgang, ed., Wise Words: Essays on the Proverb (New York: Garland, 1994)Google Scholar.
68. In addition to two articles devoted specifically to this maxim: Scholten, Paul, “Convenances vainquent loi,” Mededeelingen der Konniklijke Akademie van Wetenschappen, Afdeeling Letterkunde 70 (1930): 187–211Google Scholar; and Hagemann, Hans–Rudolf, “Gedinge bricht Landrecht,” Zeitschrift der Savigny–Stiftung für Rechtsgeschichte, Germanistische Abteilung 87 (1970): 114–89Google Scholar; see also: Esmein, Adhémar, Études sur les contrats dans le très-ancien droit français (Paris: Larose et Forcel, 1883), 5–9, 28–30Google Scholar; Pollock and Maitland, History of English Law, 1: 177–78; Spies, François, De l'observation des simples conventions en droit canonique (Paris: Sirey, 1928), 145–74Google Scholar; Simpson, Alfred W. B., A History of the Common Law of Contract: The Rise of the Action of Assumpsit (New York: Oxford University Press, 1975), 12 (n. 1)Google Scholar; and Berman, Harold J., Law and Revolution: The Formation of the Western Legal Tradition (Cambridge: Harvard University Press, 1983), 476Google Scholar.
69. Hall, George D. G., ed. and trans., The Treatise on the Laws and Customs of England, Commonly Called Glanvill (London: Thomas Nelson, 1965)Google Scholar, 129: quippe generaliter enim uerum est quod conuentio legem uincit.
71. Hunter, PR31HI, 9, 14, 21, 32, and 43. See also: Fleming, Domesday Book, 507–17 (I. Transactions); Van Caenegem, Lawsuits, nos. 8, 15, 134, 136, 139, 190, 209, and 220. For Norman parallels, see Tabuteau, Emily, Transfers of Property in Eleventh-Century Norman Law (Chapel Hill: University of North Carolina Press, 1988), 31–3Google Scholar, 297 (n. 45), 310 (n. 188), 312 (n. 212), 313 (n. 225), 314 (n. 234), 315 (n. 248), 325–6 (n. 392), etc. See the relevant entries in Niermeyer, Lexicon; and Latham, Ronald E., et al. , Dictionary of Medieval Latin from British Sources (London: Oxford University Press, 1975)Google Scholar. For discussion, see: Mooers, “Reevaluation of Royal Justice,” 351–52; King, “Dispute Settlement;” David Crouch, “A Norman ‘Conventio’ and Bonds of Lordship in the Middle Ages,” in Law and Government in Medieval England and Normandy, ed. Garnett and Hudson, 299–324; and Kosto, Adam, “The Convenientia in the Early Middle Ages,” Mediaeval Studies 60 (1998): 1–54CrossRefGoogle Scholar, who at p. 26 points out that the early medieval usage of pactum in its most generic sense is consonant with one of its meanings in Roman law, “an agreement not adhering to a recognized contractual form,” even if this similarity was almost certainly unrecognized.
72. LHP, 20.2: per emptionem uel cambitionem; 51.6: uendat; 70.21: emptiones; 75.11: testamenta traditionis uel uenditionis; 81.1: dationi uel emptioni; 88.14a: datatione uel uenditione. Although the text's few mentions of almsgiving are broad enough to encompass gifts of land, they do not do so explicitly: ibid., 70.22a; 72.2b–3.
73. Most references to buying and selling in Anglo-Saxon and Anglo-Norman laws and treatises concern cattle, slaves, or other moveable goods, or the regulation of urban markets. See: IV Atr 2; V Atr 2; V Atr 13.1; VI Atr 44; Wl Art. 5; Wl Art Retr. 10; Leis Wl 41, 45; ed. Liebermann, GA 1: 233–4, 238–9, 240–1, 258, 487, 491, 515, 517; Robertson, Laws of the Kings, 70–3, 78–9, 82–3, 104–5, 238–41, 248–9, 270–3; LHP, 76.3; and O'Brien, Laws of Edward, 200–3, nos. 38–9. For a few exceptions or general statements about transactions that might include land, see: III Atr 3; II Cn 81; Leis Wl 23; Hn Lond 10; ed.Liebermann, GA 1: 228; 366–67; 510–11; 525; and Robertson, Laws of the Kings, 64–65; 216–17; 266–67; and 290–91. For a convenient list of transactions recorded in Domesday Book, see Fleming, Domesday Book, 507–17, which includes hundreds of gifts and exchanges, and dozens of sales or purchases, leases, and mortgages or pawns.
74. Hall, Glanvill, 124, 132. See: Hyams, Paul, “The Charter as a Source for the Early Common Law,” The Journal of Legal History 12 (1991): 173–89CrossRefGoogle Scholar; Hudson, Common Law, 169–70, 207–8; and, for the probably widespread use of indentures or chirographs as a means of recording lay transactions in late Anglo-Saxon and Anglo-Norman times: King, “Dispute Settlement,” 126–29.
75. LHP, 49.5–5a: Si plures alicuius homines simul inplacitentur secundum quod cause fuerint uel pactum inter eos, de omnibus una die simul uel de singulis singillatim rectum faciat. Pactum enim legem uincit et amor iudicium. Translation slightly modified.
76. LHP, 49.6: In causis uero communibus tractande simul et finiende sunt querele de pluribus que lege sacramentali uel iudicio promouentur; in quibus uero bellum est singulariter fiant. Translation slightly modified.
77. Niermeyer, Lexicon, s.v. iudicium, def. nos. 6–9. In the LHP, the terms used for these forms of proof partially overlap, with both sometimes referred to as types of lex examinationis (62:1, 87:6; see Downer, 408); but the judicial oath also occurs as iuramentum (Downer, 321; 353–54).
78. Niermeyer, Lexicon, s.v. lex, definitions nos. 1–3, 10. In the LHP, see, for a contrast between written law and custom or usage accepted as law: 4.3a (taken from Isidore of Seville); for law as custom: ibid., 76.7g; for the laws of rulers (in addition to the book's title): 9.10a; 20.3; for the law as legal rules: 4.5; 8.1a–b. For discussion, see: Pollock and Maitland, History of English Law, 1: 174–76; Hudson, Common Law, 2–6; Wormald, Making of English Law, 465–83.
79. On the preference for avoiding ordeals, see White, Stephen, “Proposing the Ordeal and Avoiding It: Strategy and Power in Western French Litigation, 1050–1110,” in Cultures of Power: Lordship, Status, and Process in Twelfth-Century Europe, ed. Bisson, Thomas (Philadelphia: University of Pennsylvania Press, 1995), 89–123Google Scholar; and Hudson, Common Law, 72–7; and “Court Cases and Legal Arguments,” 102.
80. LHP, 8.3–4; 41.6; 42.1; 43.4; 52.1a–c; 53.6; 57.1; 81.1. See: Downer, 317–18; and Niermeyer, Lexicon, def. nos. 2 and 7.
81. For these and other characteristics of legal argument in early-twelfth-century England, see: Cramer, “Ernulf of Rochester,” 507.
82. LHP, 87.3, which is based on Af 19.3; ed. Liebermann, GA 1:60–61; and Attenborough, Frederick L., The Laws of the Earliest English Kings (New York: Russell and Russell, 1963), 74–75Google Scholar. This passage is the only one concerning pacta or prelocutiones in which the author is known to draw on Anglo-Saxon law. On pactum in the LHP, in addition to the above two uses (49.5–5a), see also: 54.1; 59.1; 59.2c; 60.2c; and Downer, 358. On prelocutio, see: LHP, 10.4; 19.1; 59.2c; 61.11; 78.5b; Downer, 326; and Hudson, Land, Law, and Lordship, 158. The other two agreements concerning property are: LHP, 54.1; and 78.5b.
83. LHP, 59.1, 59.2c; here I translate ius as “rights,” where Downer has “rules.” For other cases concerning postponements, see: ibid., 59.4a; 60.2c; and 61.11; concerning royal jurisdiction: ibid., 10.4; and 19.1; concerning seigneurial jurisdiction: ibid., 61.13a; and concerning wergild: ibid., 87.1.
84. “Pactum … Legem Vincit;” Custom, Kinship, and Gifts to Saints: The Laudatio Parentum in Western France, 1050–1150 (Chapel Hill: University of North Carolina Press, 1988), quoted at 73–74Google Scholar; and “The Discourse of Inheritance in Twelfth-Century France: Alternative Models of the Fief in ‘Raoul de Cambrai’,” in Law and Government in Medieval England and Normandy, ed. Garnett and Hudson, 173–97. For a similar argument concerning legal rules in Glanvill, see Hudson, Land, Law, and Lordship, 183. More generally, see Reynolds, Kingdoms and Communities, 13–34.
85. Miller, Bloodtaking, quoted at 228, who applies the idea of a “default setting” to “most rules, such as those governing land, livestock, marriage, and driftage,” supplying a few examples at 149, 253–54. But he does not develop this point in detail because the sagas that provide his principal sources focus on feuding and peacemaking, not property or procedural law. Hudson, “Court Cases and Legal Arguments,” 109, also quotes approvingly Miller's line about “default setting,” implying it could apply to legal rules in England in the period ca. 1066–1166, but again without developing the point. See also Davies and Fouracre, “Conclusion,” in their Settlement of Disputes, 214–28, who argue for the pertinence of formal judicial procedures across early medieval Europe, though without discussing the type of default mechanism described here.
86. Amor: LHP, 7.3a, 45.1a, 49.5a, 54.2, 76.5b; amicitia: ibid., 36.1b, 36.2, 54.3, 57.1a; 70.12c; pax: ibid., 3.1, 46.4, 70.11, 88.17; cf. 59.4; and concordia: ibid., 62.1, 71.1c, 81.1a.
87. LHP, 59.4: et tunc inter eos firma pax et diffinita plenaque consistat (“and after that a firm, established, and undivided peace shall stand between them”); 68.2: uel quoquomodo securam pacis tranquillitatem preferat (“or in whatever capacity he secures the untroubled calm of peace”). For the “the king's peace,” see: ibid., 10.1, 13.1, 52.3, 76.1b, 79.3–4, and 81; for the peace of the Church or of God, see ibid., 12.1a; and 81.1.
88. LHP, 36.2: see below, at note 102; 83.1b: Si tamen se reddiderit et pacem ac misericordiam uel inuitus quesierit, non occidatur (“If however he surrenders himself and seeks a reconciliation and mercy even against his will, he shall not be killed”). In another passage, the more specific term pacatio is used for an “oath of reconciliation”; 36.1d: Quodsi iuramentum pacationis exigitur, iuret (“But if an oath of reconciliation is demanded, [the offender] shall swear”).
89. LHP, 36.2–2a.
90. See, e.g.: III Atr 13.3, ed. Liebermann, GA 1: 232–33; Robertson, Laws of the Kings, 70–71; and LHP, 7.3a, as translated in Douglas and Greenaway, EHD 2:459.
91. See, e.g.: Koziol, Begging Pardon, 241–88; and Hyams, Rancor and Reconciliation, 13–15, 111–54.
92. The LHP rarely mentions ritual supplications of the kind studied by Koziol, Begging Pardon, 202–7, 229–34, and Althoff, Gerd, Family, Friends and Followers: Political and Social Bonds in Early Medieval Europe (New York: Cambridge University Press, 2004), 125–30, 147–52Google Scholar. A legal treatise may be less likely to describe such gestures than would the charters and narrative sources on which Althoff and Koziol focus. In some cases the text does imply similarly abject attitudes, when someone is required to submit to (royal) justice and mercy (e.g., LHP, 11.16a; 79.5; 83.1b). Alhough in other respects the LHP's author had a strongly theocratic perspective (see above, n. 16, and my conclusion to this article), the paucity of ritual supplication in the LHP would fit Koziol's argument that, compared to nearby regions on the continent, Anglo-Norman political culture put less emphasis on the sacred character of secular authority; see his “England, France, and the Problem of Sacrality in Twelfth-Century Ritual,” in Cultures of Power, ed. Bisson, 124–48. For an additional parallel with the findings of Althoff and Koziol, see here below, at n. 103. But also see Buc, Philippe, The Dangers of Ritual: Between Early Medieval Texts and Social Scientific Theory (Princeton: Princeton University Press, 2001)Google Scholar, who sharply criticizes Althoff and Koziol for what he sees as their overly “functionalist” arguments. On this debate, see the essays by: Koziol, , “Review Article: The Dangers of Polemic: Is Ritual Still an Interesting Topic of Historical Study?,” Early Medieval Europe 11 (2002): 367–88CrossRefGoogle Scholar; Walsham, Alexandra, “Review Article: The Dangers of Ritual,” Past and Present 180 (2003): 277–87CrossRefGoogle Scholar; and Buc, Philippe, “The Monster and the Critics: A Ritual Reply,” Early Medieval Europe 15 (2007): 441–52CrossRefGoogle Scholar.
93. Davies and Fouracre, “Conclusion,” in their Settlement of Disputes, 235–37; Hudson, Common Law, 15–16, 66–67; White, “From Peace to Power;” Brown and Górecki, “Where Conflict Leads.”
94. LHP, 7.3a: Et quoscumque scyregemot discordantes inueniet uel amore congreget uel sequestret iudicio (“Those whom the county court finds in dispute it shall bring together in friendly agreement or separate by judgment”); 57.1–1a: Si inter compares uicinos utrimque sint querele … in curiam domini sui eant …, et illic eos amicitia congreget aut sequestret iudicium (“If there are disputes opposing neighbors of the same standing … they shall proceed to the court of their lord … , and there friendly agreement shall bring them together or a judgment shall separate them”); 54.2: Si quis cum socio uel compari suo causam habuit et inter eos super hiis ex amore et testimonio conuenerit, si deinceps utrumque uel alterum peniteat, non possunt tamen per iudicium ad placiti principium remeare, maxime si iustitia interfuit (“If anyone has had a matter in dispute with his partner or colleague and it is settled amicably and before witnesses, should one or the other thereafter regret [it], they cannot nevertheless go back by means of a judgment to the beginning of the plea, especially if a justice was present [at the initial settlement]”). Translations modified.
95. LHP, 46.4: In consilio suo fiducialiter rerum ueritatem fateatur, ut de placito uel de pace salubrius uideatur (“in taking counsel he shall faithfully state the truth of the matter so that circumstances may appear to the best advantage with respect to the plea or its peaceful settlement”); and 3.1: see below, at note 97.
96. LHP, 54.3: Vbi uero aliquis eorum optionem habet per iustitiam, amicitie uel lage, et amicitiam elegit, stet hoc ita firmum sicut ipsum iudicium (“Where any of them has the choice, in accordance with justice [or: given by a justice?], of amicable agreement or legal proceedings, and he chooses amicable agreement, this shall be as binding as a legal decision itself”). Lists of options: ibid., 45.1a: nec causa huiusmodi que bello uel iudicio uel lege sacramentali uel timore uel amore mereatur promoueri (“nor is there any cause of this kind which deserves to be carried on to a decision by battle or ordeal or the oath of compurgation or duress or friendly agreement”); 62.1: non est tempus leges faciendi, id est uel iusiurandum (nisi pro fidelitate domini uel concordia) uel bellum uel ferri uel aque uel alias legis examinationes tractari (“[this] is no proper time for establishing one's case in court, that is, for swearing an oath–except of fealty to one's lord or in support of an agreed settlement–or for battle or for performing the ordeal of the hot iron or of water or any other judicial ordeals”).
97. LHP, 3.1: Omnes cause uera consilii ratione discutiende sunt a iudicibus et sine personarum acceptatione cum equalitate discernende uel si facultas admiserit potius pace honestande. The biblical precept appears in Deut 1:17, Gal 2:6, and 1 Peter 1:17; a more immediate source for the LHP's author may have been Isidore of Seville, Sententiae III, 52.2–4, 53.1–2; ed. Cazier, Pierre, Isidorus Hispalensis Sententiae (Corpus Christianorum Series Latina, 111) (Turnhout, Belgium: Brepols, 1998), 305, 308Google Scholar; see Downer, 306. Disputants brought together or separated: LHP, 7.3a and 57.1a (see note 94); and see Clanchy, “Law and Love,” 47. Finally, LHP, 81.1a suggests that a preliminary agreement (concordia) might obviate the need for formal proceedings.
98. Complaints about judicial corruption: LHP, 6.3a–6; 7.2; 9.1b; 22.1; 28.2–6; 33–34; “hazard of the courts”: ibid., 6.6; on denial of justice, see above, n. 48. Ordeals: LHP, 9.6, 18.1, 45.1a, 49.6, 62.1, 64.1, 65.3–5, 67.1b–f, 87.6, and 89.1a. See: Bartlett, Trial by Fire and Water, 65 and passim; White, “Proposing the Ordeal;” Hudson, Common Law, 72–77.
99. In county or lord's court: LHP, 7.3a and 57.1a (see note 94). Public character: ibid., 54.2 (see note 94); 62.1 (see note 96); 70.11 (see below, at note 106); 71.1c (see note 108). Amor as an option: LHP, 45.1a (see note 96).
100. LHP, 54.2 (see note 94); 59.27: nullam inde sine licentia iustitie latentam uel patentam reconciliationem faciat. On the second passage, see: Hudson, Common Law, 82, 169–70; Hyams, Rancor and Reconciliation, 118–19. The LHP's author may have drawn on VI As 11, ed. Liebermann, GA 1:182; and Attenborough, Laws of the Earliest English Kings, 168–69: Gif eower hwilc forgymeleasað 7 me hyran nelle …, 7 he geþafað þa dyrnan geþingo (“If any of you [reeves, etc.] is neglectful and unwilling to obey me …, and if he permits secret compacts”). For discussion, see: Liebermann, GA 2: 264 (Abfindung 1a); and Kennedy, “Law and Litigation,” 170.
101. LHP, 34–35; 36.1–1a; and 36.1b: Amicitie tamen est, non necessitatis, ut in quibus causis ouerseunessam suam quis amittit, dignis satisfactionibus honoretur.
102. LHP, 36.2: Si quis alii malefactum suum emendauerit …, et postmodum ex eius amicitia consequenda aliquid ei cum iuramento pacis offerat. The author follows this with a further, partly redundant explanation (36.2a): Satis enim esse debet si ex iudicio forisfactum emendauit et pro habenda dilectione se ipsum ei quodammodo exposuit (“For it ought to be sufficient, if the offender has made amends for his misdeed in accordance with a judgment and, for the purposes of establishing relations of friendship, has in some measure offered himself to the accuser”).
103. See Althoff, Family, Friends and Followers, 65–90; Koziol, Begging Pardon, 247–88; and Cheyette, Fredric and Chickering, Howell, “Love, Anger and Peace: Social Practice and Poetic Play in the Ending of Yvain,” Speculum 80 (2005): 75–117CrossRefGoogle Scholar. For Anglo-Norman parallels, see: King, “Dispute Settlement;” Crouch, “A Norman ‘Conventio’ and the Bonds of Lordship;” and Christelow, Stephanie M., “The Royal Love in Anglo-Norman England: Fiscal or Courtly Concept?” Haskins Society Journal 8 (1999): 27–41Google Scholar. See also above, n. 92.
104. Hurnard, Naomi, The King's Pardon for Homicide before A.D. 1307 (New York: Oxford University Press, 1969), 5–30Google Scholar; Hudson, Common Law, 79–83; and Hyams, Rancor and Reconciliation, 137–49.
105. LHP, 76.5b: Deinde liceat per amorem procedere, si perfectam uelint amicorum intrandi et exeundi licentiam habere, which draws on Wer 6.1, ed. Liebermann, GA 1: 392: Syððan man mot mid lufe ofgan, gif man wille fulle freondræddene habban (“Afterwards one may proceed by way of friendly agreement, if one wishes to have full friendship”). See also LHP, 36.2a, for amor as good will, in a contrast to odio, ill will.
106. LHP, 88.17: in omni weregildo melius est ut parentes homicide pacem simul faciant quam singillatim (translation slightly modified); 70.11: qui pacem facit cum aliquo de uulnere uel malo quod inflixerit, distincte cum testibus et gratuita parentum eius unanimitate finiat.
107. LHP, 70.12–12b; 70.12c: Amicitie tamen et uenie proprius uel remotius erit si meritum eius qui occisus est interfuit, et sicut acciderit. Translation modified.
108. LHP, 71.1–1b; 71.1c: si beneficio legis ad misericordiam uel concordiam pertrahatur. Translation modified.
109. “Convenientia in the Early Middle Ages,” 50. See also above, at n. 85.
110. Koziol, Begging Pardon, 214.
111. Cheyette, “Suum Cuique Tribuere;” Davies and Fouracre, “Conclusion,” in their Settlement of Disputes, 235–40.
112. On the thirteenth–century anti-settlement policy and the rise of trespass, see: Klerman, Daniel, “Settlement and the Decline of Private Prosecution in Thirteenth-Century England,” Law and History Review 19 (2001): 35–45CrossRefGoogle Scholar. On arbitration in the later Middle Ages, see: Powell, “Arbitration and the Law;” Powell, Edward, “Settlement of Disputes by Arbitration in Fifteenth-Century England,” Law and History Review 2 (1984): 21–43CrossRefGoogle Scholar; Gauvard, Claude, ‘De grace especial’: crime, état et société en France à la fin du Moyen Âge, 2 vols. (Paris: Publications de la Sorbonne, 1991), 1:17–26, 2:941–2Google Scholar; Attreed, Lorraine, “Arbitration and the Growth of Urban Liberties in Late Medieval England,” The Journal of British Studies 31 (1992): 205–35CrossRefGoogle Scholar; Claude Gauvard, “Conclusion,” in Règlement des conflits, 369–91; and Michael D. Myers, “The Failure of Conflict Resolution and the Limits of Arbitration in King's Lynn, 1405–1416,” in Traditions and Transformations in Late Medieval England, ed. Biggs, 81–107. For an argument for substantial continuity from a different perspective, see Hyams, Rancor and Reconciliation, 189–266.
113. Maine, Henry Sumner, Ancient Law: Its Connection with the Early History of Society and its Relation to Modern Ideas , 15th ed. (London: John Murray, 1894), 374Google Scholar; quoted in Holdsworth, William, A History of English Law, 7th ed., 17 vols. (London: Metheun, 1956–72), 14: 187Google Scholar. For royal agents as mediators in the LHP, see also Hyams, Rancor and Reconciliation, 143.
114. Koziol, Begging Pardon, 214–34, quoted at 217 and 231; see also: Hurnard, King's Pardon, 14; Loyn, Henry R., “De Iure Domini Regis: A Comment on Royal Authority in Eleventh-Century England,” in England in the Eleventh Century: Proceedings of the 1990 Harlaxton Symposium, ed. Hicks, Carola (Stamford: Paul Watkins, 1992), 17–24Google Scholar; and above, at n. 16 and n. 92.