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).