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Medieval Law and the Foundations of the State Medieval Law and the Foundations of the State Medieval Law and the Foundations of the State ALAN HARDING 3 3 Great Clarendon Street, Oxford, ox2 6dp Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Athens Auckland Bangkok Bogotá Buenos Aires Cape Town Chennai Dar es Salaam Delhi Florence Hong Kong Istanbul Karachi Kolkata Kuala Lumpur Madrid Melbourne Mexico City Mumbai Nairobi Paris São Paulo Shanghai Singapore Taipei Tokyo Toronto Warsaw and associated companies in Berlin Ibadan Oxford is a registered trade mark of Oxford University Press in the UK and certain other countries Published in the United States by Oxford University Press Inc., New York © Alan Harding 2001 The moral rights of the author have been asserted Database right Oxford University Press (maker) First published 2001 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this book in any other binding or cover and you must impose the same condition on any acquirer British Library Cataloguing in Publication Data Data available Library of Congress Cataloging-in-Publication Data Harding, Alan Medieval law and the foundations of the state / Alan Harding. p. cm Includes bibliographical references and index. 1. Law, Medieval. 2. Law–Europe–History. 3. State, The–History. I. Title. KJ147 .H37 2002 340.5'5'094–dc21 2001036406 ISBN 0-19-821958-x 13579108642 Typeset in Sabon by Regent Typesetting, London Printed in Great Britain on acid-free paper by T. J. International Ltd, Padstow, Cornwall Preface Tracing the growth of the State has become something of an histor- ical industry, but the subject still needs definition. The history of the State has to be more than a history of strong government: it must show how an abstraction, a piece of metaphysics, came to dominate political consciousness as a thing not only believed to have real existence but loved for its promise of social order and hated for its threat of coercion. The power of the State rests on an idea which is unique in commanding both the levels of political thought discerned by Charles Taylor: the ‘common-sense . pre-theoretical understanding of what is going on among the members of society’ which is necessary for any political activity, and the high theory of the philosophers who criticize and sys- tematize these working notions.1 Graffiti urge the smashing of the same State about which Aquinas, Machiavelli, Hobbes, and Hegel theorized. This book is primarily concerned with the ‘pre-theoretical under- standing’ of what constituted a ‘state’ among rulers and ruled in the middle ages. It is not a history of state-theory and therefore makes little use of ‘the learned laws’, i.e. Roman and Canon Law, but an account of the complex of procedures and institutions perceived as constituting ‘the state of the realm’ in a medieval kingdom, and of how that perception developed into the early modern idea of the State. The introductory chapter does, however, seek to define the meaning of the word ‘state’ as it has been used in political thought back to the middle ages, and finds that its use in a theoretical way begins with Thomas Aquinas in the later thirteenth century. The following chapters trace the growth of systems of justice in the period before that time, when ideas of state must be looked for in the legislation and written acta of kings and their ministers. This is where ‘state’ appeared as part of a constellation of ‘constitutional’ words and notions, along with peace and custom, fief- holding and liberty, statute and ‘the common good’. In the main part of the book the sources are therefore the volumes of charters and laws in such printed series as the Monumenta Germaniae Historica, the Recueils des Actes and Ordonnances of French rulers, the Regesta Regum Anglo-Normannorum, and the English Statutes of the Realm, along with the records of the administration of justice and the law- books which summed up a country’s legal practice. The final chapters 1 C. Taylor, ‘Political theory and practice’, in Social Theory and Political Practice, ed. C. Lloyd (Oxford: Clarendon Press, 1983). vi Preface return to the political theorists of the late medieval and early modern period who, in a climate of war and religious conflict, developed the legally defined ‘state of the king and the kingdom’ into a more modern concept of the State. The study focuses on the systems of laws and courts in the kingdoms of France and England. Their foundations in Frankish and Anglo-Saxon justice (Chapter 2) might appear to have been shaken by the franchisal courts of feudal lords and communes of townsmen (Chapter 3), but French and English kings succeeded in integrating these into centralized polities (Chapter 5). Unlike the Italian cities on the one hand and the empire on the other France and England were both large enough to demand, and small enough to make possible, the centralized adminis- tration from which the notion of the State could develop. The ‘orga- nized peace’ which was the bed-rock of judicial systems manifested itself most impressively in the German Landfrieden, but within an unwieldy empire these led to the crystallization of Kleinstaaterei (Chapter 4) rather than a pan-German state. Politically, the state was a far more potent idea than the nation, because it signified a structure, which demanded continual criticism and reform. Chapter 6 shows how the notion of ‘the state of the kingdom’ was used by the critics of royal justice in the English parliament and French estates general (Chapter 6). In Chapter 7 the state in England and France is described as a legislatively ordered structure of ‘estates’, each estate defined by its legal rights and duties. The vicissitudes and understanding of the late medieval ‘monarchical state’ are the subject of Chapter 8, and the final chapter shows the continuity of the word and concept from a medieval and legal context into the politics of ‘the modern state’ (Chapter 9). My thanks are due to the Universities of Liverpool and Edinburgh for appointing me to honorary fellowships on my retirement from full-time teaching, to the ‘special collections’ departments of the libraries of both universities, and above all to my wife Marjorie, without whose support and infinite patience the book would never have been completed. A.H. Edinburgh January, 2001 Contents abbreviations x 1. INTRODUCTION. STATE: WORD AND CONCEPT 1 State as regime 2 State as commonwealth 5 2. FRANKISH AND ANGLO-SAXON JUSTICE 10 The first courts 10 Grants of property and protection 13 Pleas before the king 16 Keeping the peace 22 Legal order 31 ‘The state of the realm’ 38 3. THE COURTS OF LORDS AND TOWNSMEN 43 The growth of feudal society 43 Seignorial jurisdiction 48 Justice in the towns 55 Competitors for jurisdiction and power 61 The place of the king 64 4. THE SPREAD OF THE ORGANIZED PEACE 69 The peace of God 69 The peace of the land 79 German Landfrieden 88 The territorial states of Germany 99 5. THE JUDICIAL SYSTEMS OF FRANCE AND ENGLAND 109 Justice on complaint to the king of France 109 Stabilimenta 123 Justice by royal writ in England 128 ‘Our state and our kingdom’s’ 139 viii Contents 6. NEW HIGH COURTS AND REFORM OF THE REGIME 147 Complaints against officials 147 Plaints and reform of the status regni 155 The bill revolution and parlement 160 English parliaments 170 Petitioning parliament for justice 178 Statute-making 186 7. THE LEGAL ORDERING OF ‘THE STATE OF THE REALM’ 191 Law-books, custom, and legislation 191 The law of land-holding 201 Property and liberty 211 Estates of people 221 The law of injuries and the public peace 240 8. THE MONARCHICAL STATE OF THE LATER MIDDLE AGES 252 ‘The state of the realm’ and political continuity 252 ‘The state of the king’ and government for the common good 257 The contested state of Richard II 263 The king in the French body politic 271 France as l’état monarchique 278 9. FROM LAW TO POLITICS: THE GENESIS OF ‘THE MODERN STATE’ 295 Comparing and criticizing states of commonwealths 296 State and sovereignty 306 Jean Bodin on the state 316 State, nation, and politics in France 321 The English ‘Commonwealth and Free State’ 327 10. CONCLUSION: LAW AND THE STATE IN HISTORY 336 bibliography 341 Law codes, chronicles, and treatises 341 Contents ix Records and dictionaries 347 Secondary works 352 index 368 Abbreviations CJ Journal of the House of Commons Concilia Mansi, Sacrorum Conciliorum Collectio CRR Curia Regis Rolls DRTA Deutsche Reichstagsakten EHD English Historical Documents EHR English Historical Review LJ Journal of the House of Lords MGH Monumenta Germaniae Historica RP Rotuli Parliamentorum RRAN Regesta Regum Anglo-Normannorum SR Statutes of the Realm ST Aquinas, Summa Theologica TAmPhilSoc Transactions of the American Philosophical Society TRHS Transactions of the Royal Historical Society UP University Press chapter one Introduction. State: Word and Concept Yves Congar1 and Gaines Post2 have shone light on the use of ‘status’ in the late Carolingian period and the high middle ages respec- tively, and Wolfgang Mager3 and Paul-Ludwig Weinacht,4 among others, have discussed the development of the modernen Staatsbegriffe from the late medieval period onwards.
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