PRIESTS OF JUSTICE: CREATING LAW OUT OF ADMINISTRATION IN THIRTEENTH-CENTURY ENGLAND A Dissertation Presented to the Faculty of the Graduate School of Cornell University In Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy by Thomas Joseph McSweeney August 2011 © 2011 Thomas Joseph McSweeney PRIESTS OF JUSTICE: CREATING LAW OUT OF ADMINISTRATION IN THIRTEENTH-CENTURY ENGLAND Thomas Joseph McSweeney, Ph. D. Cornell University 2011 In the modern world, we tend to naturalize the idea of law. But law as we understand it today— as a separate sphere of activity with its own norms and discourses—is far from being natural. Law is a cultural construct, an artificial lens through which we view the world. In this dissertation I show that the justices of the English royal courts began to construct a separate legal sphere out of a mélange of Roman law and administrative practice in the thirteenth century. I read the plea rolls, the administrative records of the English royal courts, as evidence that the justices of the courts were beginning to think of the work that they did as something qualitatively different from and better than the work performed by other parts of the royal administration; they were beginning to think of it as law. In the middle of the thirteenth century we see, for the first time, people reading these terse and dull administrative texts for general rules and doctrines rather than for the administrative facts that they were designed to convey. The justices of the royal courts transformed these texts from administrative documents into legal literature and, in the process, transformed themselves from servants of the king into priests of justice. BIOGRAPHICAL SKETCH Thomas McSweeney graduated from the College of William and Mary in Virginia with a B.A. in history and government, magna cum laude, in 2002. He subsequently attended Cornell Law School, where he received his J.D. and LL.M., cum laude, in 2005. He was admitted to the bar in New York in 2006. He was awarded his M.A. in history by the graduate school at Cornell University in 2009. In his time at Cornell, he has been awarded fellowships by the Mellon Foundation and the Huntington Library, and has received three awards for his teaching. After he completes the requirements for his Ph.D. in the summer of 2011, he will be beginning a position as a visiting assistant professor at Cornell Law School. iii To Abby, ma gentil oisur iv ACKNOWLEDGMENTS This dissertation would not have been possible without the support of the many people who devoted their time and effort to helping me develop as a scholar. Cornell University, and particularly the history department and the medieval studies program, have supported me for the last five years with opportunities to teach, to learn, and to be part of a scholarly community. I have had wonderful teachers, colleagues, and students at Cornell and I look forward to working with them for the next two years. I could not have completed this dissertation without the generous support I have received for my archive research. The Huntington Library in San Marino, California, provided me with a grant to spend a month working with their legal manuscripts. The Graduate School at Cornell University, the Mario Einaudi Center for International Studies, and the Bibliographical Society of America sent me to England for a fruitful summer in the archives, the results of which will be apparent in this dissertation. The staff at Cambridge University Library, the British Library, the National Archives in Kew, the Wren Library at Trinity College, Cambridge, and Lincoln‘s Inn Library in London all gave me valuable access to their collections, and for that I am extremely grateful. The master and fellows of Trinity Hall Cambridge, in addition to giving me access to their collections, have given me permission to use images of one of their manuscripts in this dissertation. The Anglo-American Legal Tradition project of the O‘Quinn Law Library at the University of Houston has also been a wonderful resource. I cannot claim full credit for the ideas in this dissertation, since it has been written in dialogue with many friends and colleagues. I have to thank the participants at the various conferences where I have presented portions of this dissertation in progress—the Charles Homer Haskins Society Conference, the International Congress of Medieval Studies at Kalamazoo, the International Medieval Congress at Leeds, and the American Society for Legal History Conference—for their questions and critiques. Several scholars whose work I admire offered to comment on parts of this dissertation, particularly Paul Brand, Richard Helmholz, and Ken v Pennington, and their comments have made their mark on chapter three in particular. The Medieval Studies Student Colloquium and the European History Colloquium at Cornell have also been excellent venues for trying out my ideas. Academic work can be rather solitary, but the good friends I have made at Cornell have made it decidedly less so. I have been a part of two wonderful writing groups, one of which was generously provided for by the Society for the Humanities at Cornell, and my friends in both of those groups—Eliza Buhrer, Abigail Fisher, Sarah Harlan-Haughey, Ada-Maria Kuskowski, Guillaume Ratel, and Melissa Winders—have given me wonderful feedback. I have learned much about writing good scholarship while reading their tales of late medieval disability and theories of cognition, the criminal networks of early modern coiners, nature in English outlaw literature, the world of the coutumiers, the construction of truth in southern French courts, and aristocratic courtesy in the Welsh march. I have to say, I also had a lot of fun. I have been fortunate in having four committee members who have been deeply invested in seeing me succeed. Bernadette Meyler has opened my eyes to the poetic side of the law, Duane Corpis has pushed me to think about what my work might give back to the theory of history, David Powers has shown me how judges shape their identities in Arabic, as well as in Latin and Old French, and of course Paul Hyams, my Doktorvater, has believed that I could be a successful scholar right from the beginning and has given freely of his time to make that happen. They have all poured a lot of energy into reading my work and into writing letters on my behalf. I hope I prove to be worthy of the faith they have placed in me. As a native of the Finger Lakes region, I have been lucky to have the support of my family through the trials and tribulations of graduate school. My parents in particular have given me their support through law school and graduate school and it has been wonderful to be a mere forty-minute drive away for the last nine years. And finally, I have to thank the most important person in my life, my wife, Abby, who thought she was marrying a soon-to-be lawyer almost seven years ago, but who has patiently stood by me and given me her love and support as I followed my dream. vi David Powers once told me about an Islamic text that began with a disclaimer that the author owed anything that was right and good in his work to God and anything that was wrong and bad to the devil. I would modify this slightly and say that I owe anything that is right and good in this dissertation to all of those people I have listed above and the many I was not able to list. These are the family, friends, and scholars who have shaped me and helped me to become what I am. Of course, anything that is wrong or bad is still the devil‘s fault, not mine. vii TABLE OF CONTENTS Biographical Sketch iii Acknowledgments v List of Illustrations ix List of Abbreviations x Introduction: Law, History, and the Legal Sphere 1 Chapter One: A World Without Law 51 Chapter Two: The Culture of the Clerks 80 Chapter Three: Understanding Cases in the Mid-Thirteenth Century 132 Chapter Four: The Genres of Authority: Cases and Treatises as Legal Texts 176 Chapter Five: A New Plea Roll for a New Audience 208 Conclusion: An End or a Beginning? 245 Bibliography 260 viii LIST OF ILLUSTRATIONS Illustration 1: Trinity Hall, Cambridge MS 9, f. 39, Manuscript of Bracton 249 ix LIST OF ABBREVIATIONS BDL Bratton, Henry de, attributed. Bracton on the Laws and Customs of England. Translated by Samuel E. Thorne and edited by George E. Woodbine. 4 vols. Cambridge, MA: Belknap Press, 1968-1977. BNB Maitland, Frederick William. Bracton‟s Note Book. 3 vols. London: C.J. Clay & sons, 1887. CM Paris, Matthew. Chronica Majora. Edited by Henry Richards Luard. 7 vols. London: Longmans & Co., 1872-1883. CRR Curia Regis Rolls Preserved in the Public Record Office. 20 vols. London: Her Majesty‘s Stationary Office, 1922-2006. GDL Glanvill, Ranulph de, attributed. The Treatise on the Laws and Customs of the Realm of England Commonly Called Glanvill. Edited and translated by G.D.G. Hall. Oxford: Clarendon Press, 1965. EHR English Historical Review ODNB Oxford Dictionary of National Biography TI1 Samuel E. Thorne. Translator‘s Introduction to Bracton on the Laws and Customs of England, attributed to Henry de Bratton, Vol. 1., vii-xlviii. Translated by Samuel E. Thorne and edited by George E. Woodbine. Cambridge, MA: Belknap Press, 1968. TI3 Samuel E. Thorne. Translator‘s Introduction to Bracton on the Laws and Customs of England, attributed to Henry de Bratton, Vol. 3., xiii-lii. Translated by Samuel E.