There comes a time, I suppose, in the study of anyone who works on early England, when you come up against the writings of the late lamented Patrick Wormald, and find him disagreeing with you. Then, as I remember from meeting him, it is wise to take careful stock of what you know, because the odds are pretty good that it’s not as much as he did.
I have just been reading his paper in Davies & Fouracre’s Property and Power, and in it he discusses at length the 1086 claim of the bishopric of Worcester, in the person of the other Bishop Wulfstan, to hold the triple hundred of Oswaldslow and all the revenues from justice that are collected there. It has been argued, and was indeed being argued right then by Wulfstan, you see, that this is an ancient immunity that implies that the Anglo-Saxon kings were, like the Carolingians, giving away their rights to powerful supporters. Patrick proves to my satisfaction that these are recent claims, not supported by the evidence except that which Wulfstan had confected or arranged, and that as far as can be told Anglo-Saxon royal officials could always carry out justice in lords’ territories, at least as far as the rules were concerned.
The problem is, for me, that at the edges this seems like rules-lawyering. Patrick says:
… there may be a relationship between socage [the right to summon someone to your court for their crimes] and the lord’s jurisdiction over what would later be called his ‘manorial’ court. But ‘manorial’ jurisdiction is no more to be confused with franchisal rights than is ‘seigneurial’ with ‘feudal’ lordship.
And at that point my personal alarm bells go off because I think there is every possibility of confusion between seigneurial lordship and feudal lordship. The difference he’s hanging this on is that a seigneurial lord, or someone owning a manor, has judicial rights over the inhabitants because he owns them outright; a ‘feudal’ lord or someone with a franchise is taking judicial profits that correctly belong to the state, with varying degrees of legitimacy. I see the difference in theory, but I would find it very hard to draw it in practice, and I wonder how much it mattered.
Consider this parallel, if you want. In one imaginary state, for whatever reason, the government caves into a powerful business lobby and sticks administrative charges or whatever up so high that small shops can no longer make money, and the supermarkets and malls become the only outlets for goods. In another, instead, the supermarket owners merely take advantage of their greater capital and ability to buy stuff wholesale that the small shops can’t, and strangle them with market share; the government legislates to protect small business, but ineffectively and the shops all fold. People in the UK are arguing which of these things, if either, is happening to small shops at the moment, but the result is the same; the shops die off, the supermarkets cluster round the edges of town, everything functioning in town centres is part of a much bigger company and it all gets a bit Reaper Man. Similarly: if a medieval lord can draw people to his ability to give justice, I don’t know if it matters whether the state has commissioned him to give it or if their own courts continue alongside looking more and more useless. This latter is what seems to happen in Catalonia; it’s been argued that the former happened in France. Patrick would have argued, I guess, that neither happened in England, and I accept that. But neither can be assumed, and I don’t find the labels very helpful because they probably weren’t in use at the time and anyone who did perceive them would have had an interest in calling it one way or the other. I guess I need to track his thinking a bit more deeply and read The Making of English Law. It may just be that I’ve misunderstood, in which case feel free to suggest modifications…
The paper in question is Patrick Wormald, “Lordship and Justice in the Early English Kingdom: Oswaldslow revisited” in Wendy Davies & Paul Fouracre (edd.), Property and Power in the Early Middle Ages (Cambridge 1995), pp. 114-136, with quote at p. 130. For the decline of courts in Catalonia see Jeffrey Bowman, Shifting Landmarks: property, proof, and dispute in Catalonia around the year 1000 (Ithaca 2004) and for France, I guess, Jean-Pierre Poly & Eric Bournazel, The Feudal Transformation, transl. Caroline Higgit (New York 1983).
A Corner of Tenth-Century Europe 
The thing is that the entire basis of much medieval legal/economic history is to understand the exact complex mechanisms and principles on which lords do the dirty on peasants. Because otherwise you can just talk about a thousand years of medieval lords oppressing peasants and move rapidly onto the next topic. In practice the peasants always lose (at least before the Black Death), but a legal historian needs to explain why they lose in subtly different ways in 800 and 1000.
I guess the distinction would be, to whom does it make a difference what’s happening? And it seems to me that it’s not the lord; if he’s got increasing jurisdiction, his position is the same whether there’s a public remnant outside his power or whether he is the public power gone independent. So I guess it matters to royal vassals, to officials and of course to the king. But it doesn’t, arguably, make much difference to the peasants either. Just the public superstructure, such as it were.
But the lords were always part of that superstructure, so they must be choosing not to be any longer, or else to break bits off it and take them over. This is what I keep coming back to: why does it get more interesting for lords to serve themselves and not the king? And if we can explain that, for example by political fragmentation and dynastic failure at the same time as an increasing agrarian resource base in the localities, does everything else follow from it, or are we still confused? Because if it’s just that, why do we still have the debate?
The other question of course is can the peasants really lose continuously between 800 and 1300? Doesn’t that make the c. 800 peasants really quite well off? And so on. I realise that these are not new questions… Just trying to find the questions that give the right answers.
Perhaps a bit of perspective from the other side of the Conquest:
The standard presentation of English legal history sees the origin and growth of the common law in the 12th-14th centuries was essentially the king (and what became the royal courts) offering a competing, and in the end, superior product, to what the local lords were making available–especially in those cases where the suit was really between the lord and a vassal. Of course, this was available only to the upper echelons and not the peasants–in fact, the definition of peasant eventually boiled down to who could and could not bring suit in the royal court. But this idea assumes that two levels of courts could be competing with each other.
To link it to Wormwold’s thesis, there’s three options:
1) Wormald is right and standard legal history is right=the situations changed at the time of, or as a consequence of, the Conquest.
2) Wormald is right and standard legal history is wrong=the situation preConquest was similar to the situation postConquest.
3) Wormald is wrong and standard legal history is right=same as (2), but with different facts.
Oh, yes, DEFINITELY read Making of English Law. Regardless of the thorny problem of disagreeing with Patrick Wormald, Making of English Law is a surprisingly good read. It’s funny, it’s informative, and it avoids that horrible dense unreadableness that academics fall prone to so often.
I would also recommend his collection, “Legal Culture in the Early Medieval West,” especially the essay, “Inter Cetera Bona Genti Suae.”
I think that there’s a very useful idea right at the end of Rob Moore’s First European Revolution, when he starts talking about comparisons with China. I haven’t got a copy to hand, but he quote a China specialist saying that the Chinese emperor wasn’t interested about disputes over fishponds, he was too important. And Moore made the point that European rulers were interested in such relatively petty disputes, and that was significant to future developments. And I’d also bring in Charles West’s ideas about a gradual reification of rights from the Carolingian period onwards: so one general right, say of being an advocate, became a series of discrete smaller rights that you could trade separately.
I think those ideas of the contrast between big (and often loosely defined) rights and small specific rights are helpful for talking about the relations of kings, lords and peasants. If you wanted a big right, then only the king could provide it, which was OK until the king couldn’t or wouldn’t give it to you. But while you could get small rights via the king, you could also gain them by sneaky practices on the ground or via a sharp lawyer, so you could benefit even when the king wasn’t usefully on your side. So lords (and also less powerful rulers) gradually learned to work this system of small rights and detailed legal argument (in contrast to the German kings who stuck to old-fashioned kingship and dispute resolution, and not new-fangled appellate courts).
What this means at the local level is you can build up a lordship based on a number of small exploitative claims on the peasantry (1d for rent, 2d for mariage rights etc) rather than one big exploitative claim (6d because I’m your lord). What I mean by the peasants always losing (which I think Chris Wickham also argues for in the period 800-1200) is that they get the same rough deal all the time, but on a different legal basis. There is a legal (and possibly emotional) difference betwen being able to take a case to a public court and only being able to use a lord’s court, but if the court always decides for the lord either way, it’s not a difference with much practical result.
Kishnevi, I think somewhere in there you have the nub of my discomfort with this: that there need to be two concurrent levels of court. In Catalonia it’s clear that there are, but I’m not sure that it is in England, and it’s an unproven assumption in this article as far as I can tell. Thankyou, you’ve pulled up the root. I clearly do need to follow Highly’s and Michael’s recommendations, as you’re not the only people so saying.
Magistra, I think that as ever you and I have started our personal argument around this question rather than talking about much to do with the post… but that’s fine :-) In reverse, then, if the court always decides for the lord, why do people even use it? I can find you some Catalan examples, few, but some, where the lord loses. The trouble is of course winner’s preservation: unless we’re extremely lucky, or the winner is a church, that winner’s document doesn’t survive so we have no idea how often this happened. But if it never happened… the courts simply wouldn’t have any traffic at all.
The second paragraph implies the same sort of long continuity of development of strategies over generations that family dynastic policies must, and I’ve never been happy with these. This is possibly because the Catalan counts come from a very dysfunctional family if so: each generation seems to try messing up the previous one’s plans… So why are the lords’ children learning how to work this system and the public rulers not learning how to stop them? Is it a structural weakness at root? In which case we don’t need this dubious learning curve anyway, the possibility exists and that implies that people will have seen it and exploited it.
As for the gradual reification, I don’t buy it. Definitions get more precise, I will agree: some new ideas are come up with, even, but a skim of Eckhard Müller-Mertens’s Karl der Grosse, Ludwig der Fromme, und die Freien. Wer waren die Liberi Homines der Karolingischen Kapitularien (742/743-832)? Ein Beitrag zur Sozialgeschichte und Sozialpolitik des Frankenreiches, Forschungen zur Mittelalterlichen Geschichte 10 (Berlin 1963), will show you loads of examples of ways in which early Carolingian lords could stitch up the peasantry, mostly by their control of army musters. That’s a detailed right, not a general `I am the lord and am therefore owed money’ one. I don’t think there are such rights, really, beyond possibly a lion’s share of booty, and that too is a detailed right that, for example, Irish laws argue out in great and schematic detail. It’s not that I deny lots of social change too, but on this particular front I’m with Barthélemy (and concomitantly not with Charles, although he and I do agree about the tightening of definitions happening too): the documents are newly recording things that were already, broad-brush, quite usual. The malos consuetudines are new in detail, but other ones are old, and it’s always about what the rules you’ve negotiated allow you to do, not some UrJurisdiction that slowly gets hewn and whittled into laws and customs.
By the way, does anyone know the status on volume II of “Making of English Law?” I had heard at Kalamazoo a couple of years ago that someone had been pegged to edit and finish what Dr. Wormald had completed thus far. I haven’t heard anything since.
Michael,
I don’t know about the status, but the best person to contact if you needed to find out would be Stephen Baxter of Department of History King’s College London, who is Patrick’s literary executor.
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