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Patrick Wormald Papers Preparatory to the Making of English

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Patrick Wormald Papers Preparatory to the Making of English Patrick Wormald Papers Preparatory to The Making of English Law: King Alfred to the Twelfth Century Volume II From God’s Law to Common Law Edited by Stephen Baxter and John Hudson UNIVERSITY OF LONDON EARLY ENGLISH LAWS 2014 Published by UNIVERSITY OF LONDON EARLY ENGLISH LAWS http://www.earlyenglishlaws.ac.uk © Patrick Wormald 2014 ISBN 978-1-909646-03-2 Contents Preface v Abbreviations vi Editorial Introduction xi PART III: THE ORIGINS OF AN ENGLISH ROYAL LAW 1 Chapter 7B. Re-introductory: The Limits of Legislative Evidence 1 Chapter 8. Church and King 16 What is due to God 18 (i) Church taxation 18 (ii) Fast and Festival 54 (iii) Continence 64 What is due from God 72 (i) Ordeal 72 (ii) Reprieve and Pardon 90 Chapter 9. The Pursuit of Crime 98 The Meaning of Treason 100 (i) Forfeiture 100 (ii) The Oath 112 (iii) Burials 129 The Quality of Mercy 141 The Dynamics of Prosecution 161 Chapter 10. The Machinery of Justice 192 Introductory 192 Shire and Hundred 192 (i) Courts before the Tenth Century 192 (ii) The Tenth Century Revolution in Local Government 193 Centre and Locality 198 ‘Public’ and ‘Private’ 201 (i) The ‘Pleas of the Crown’ 202 (ii) The Judicial Duties and Perquisites of Lordship 204 (iii) ‘Sake and Soke’: the Private Hundred 208 Chapter 11. The Foundations of Title 212 ‘Bookland and Folkland’ 212 (i) Folkland 212 (ii) Bookland 214 The role of the king 217 Heirs and Legatees 220 (i) Wills 220 (ii) Litigation 226 (iii) Inheritance 226 Tenant and Lord 228 Chapter 12. The Viability of Law Enforcement 230 PART IV: IMPLICATIONS AND SPECULATIONS: THE BIRTH OF A DISTINCTIVE ENGLISH LAW 231 Chapter 13: The Timing of Continental Influence 232 iv Chapter 14: Emerging Lineaments of a ‘Common Law’: Possible Turning-points 233 Chapter 15. Epilogue: Glanvill, Father and Son 234 Introductory 234 The Anglo-Saxon heritage 234 (i) Enforcement 235 (ii) Variation 237 The Place of 1066 240 (i) Inquest 240 (ii) ‘Feudalism’ 241 Essence of the ‘Angevin Leap Forward’ 242 (i) Crime and ‘Felony’ 245 (ii) Disseisin 246 (iii) Writ of Right 247 (iv) Control of courts 248 Conclusion 249 Appendix 1. Plan and Prospectus I 251 Appendix 2. Plan and Prospectus II 260 Appendix 3. Fragment of ‘Chapter 11: Foundations of Title’ 265 List of tables Table 1. List of pre-1066 sheriffs recorded in Domesday Book 200 Table 2. Pre-conquest ‘private’ hundreds 210 Table 3. Dispositions in Anglo-Saxon Laymen’s Wills 221 Table 4. Forfeitures of property, 897–1066 236 Table 5. Shire customs in Domesday Book 239 v Preface It is hard to believe that it is ten years since Dad passed away. Looking back to 2004, the immediate aftermath of his passing has taken on a dreamlike quality, but the outpouring of affection for him as a person, teacher and thinker that followed – and which helped make the pain more bearable – remains vivid. There followed a truly gargantuan effort on the part of many to bring some of the projects that Dad had underway to a suitable conclusion, and to reflect on the impact of his work. This resulted in a series of publications, culminating in a memorial volume published in 2009 containing contributions by many of his friends and colleagues from around the world. There seemed no better way to complete the project of bringing Dad’s work to a close. A close, we thought, until now. It has long been our hope that something could be done with the material for Volume II of The Making of English Law, but the nature of the material precluded print publication. Some of it was almost finished, some little more than draft notes; it all seemed insurmountable and destined to be left as it was. Fortunately, the creation of this marvellous resource, and the editorial work of Stephen Baxter, John Hudson and Bruce O’Brien among others made electronic publication feasible. Tom, Mum and I are all extremely grateful for all the efforts of all those involved in making this happen. Scholarship moves on, as Dad himself knew, even if he might find that notion somewhat uncomfortable. We, though, can see his work continue to make a contribution to the subject he was so passionate about. This is an even better point of conclusion to his oeuvre than we might have hoped. And in closing, I cannot resist in wondering what he, with his great interest in and love for Scotland, would have made of the momentous events happening at the moment. As I write this, the referendum is yet to happen; as you read it the result will be known. Whatever else, this proves that history goes on, and I think Dad would like that. Luke Wormald, 18 September, 2014 vi Abbreviations [This list of abbreviations follows that printed in Patrick Wormald, The Making of English Law: King Alfred to the Twelfth Century, Volume I, Legislation and its Limits (Oxford, 1999), except that works not cited in the present collection have been omitted.] Order is primarily alphabetical and secondarily that of an Abbreviation’s following or next distinguishable letter, whether or not acronymic; i.e. CCSL (Corpus Christianorum) precedes CDL (Codice Diplomatico Longobardo), DB (Domesday Book) precedes Dec. Ch. (Decretio Childeberti), etc. Ab. Ch. Charters of Abingdon, ed. Kelly. Abt Laws of Æthelberht, ed. Gesetze. Af Laws of Alfred, ed. Gesetze. ANS [Proceedings of the Battle Conference on Anglo-Norman Studies I–IV (1978–81), edited by R.A. Brown] Anglo-Norman Studies V – (1983– ). Ans. Collectio Capitularium Ansegisi/Kapitulariensammlung des Angsegis, ed. Schmitz. ASC ‘Anglo-Saxon Chronicle’. ASE Anglo-Saxon England. [I–VI] As [+As Alm] Laws of Æthelstan, ed. Gesetze. [I–X] Atr Laws of Æthelred, ed. Gesetze. Að Að, ed. Gesetze. Bede, Hist. Eccl. Bede’s Ecclesiastical History, ed. Colgrave and Mynors. Blas. Be Blaserum, ed. Gesetze. Burt. Ch. Charters of Burton, ed. Sawyer. Can. Eg. Wulfstan’s Canons of Edgar, ed. Fowler. Cap. Capitularia Regum Francorum, ed. Boretius and Krause. vii CCSL Corpus Christianorum Series Latina (Turnhout). CDL Codice Diplomatico Longobardo I–V, ed. Schiaparelli, Brühl, Zielinski. CHn cor Coronation Charter of Henry I, ed. Gesetze. Chron. Ram. Chronicon Abbatiae Rameseiensis, ed. Macray. [I–II] Cn Laws of Cnut, ed. Gesetze. Cn 1018 Kennedy (ed.), ‘Cnut’s law code of 1018’. Cn 1020 Cnut’s Letter to England (1020), ed. Gesetze. Cn 1027 Cnut’s Letter to England (1027), ed. Gesetze. Coll. Can. Hib. Collectio Canonum Hibernensis = Irische Kanonensammlung, ed. Wasserschleben. Concil. Concilia Aevi Karolini. ‘Conf.’ Fowler (ed.), ‘Late Old English Handbook for use of a Confessor’ Corp. Iur. Corpus Iuris Civilis, ed. Mommsen, etc. CP Maitland, Collected Papers, ed. Fisher. DB Domesday Book, ed. Farley, etc. (with Phillimore edition numbering system in parentheses) DBB Maitland, Domesday Book and Beyond. Dec. Ch. Decretio Childeberti, ed. Eckhardt, Lex Sal. DHII Heinrici II et Arduini Diplomata, ed. Breßlau. Disputes Davies and Fouracre (eds), Settlement of Disputes. Ed. Ro. Edictum Rothari, ed. in Leg. Lang. EETS Early English Texts Society. [I–IV] Eg Laws of Edgar, ed. Gesetze. EGu ‘Peace of Edward and Guthrum’, ed. Gesetze. EHD I English Historical Documents I, ed. Whitelock. EHD II English Historical Documents II, ed. Douglas. viii EHR English Historical Review. [I–III] Em Laws of Edmund, ed. Gesetze. ELS English Lawsuits from William I to Richard I, ed. R. C. Van Caenegem, 2 vols, Selden Society 106–7 (London, 1990–91). Episc. Episcopus, ed. Gesetze. [I–II] Ew Laws of Edward the Elder, ed. Gesetze. Exc. Can. ‘Excerptiones de Canonibus’, i.e. ‘Excerptiones Ecgberhti’, in Ancient Laws, ed. Thorpe; or in Aronstam, ‘Latin Canonical Tradition’. Formul. Formulae Merowingici et Karolini Aevi, ed. Zeumer. Forf. Forfang, ed. Gesetze. Gesetze Die Gesetze der Angelsachsen, ed. Liebermann. Glanvill Treatise commonly called Glanvill, ed. Hall. Grið Grið, ed. Gesetze. Had. Hadbot, ed. Gesetze. Hl Laws of Hlothere and Eadric, ed. Gesetze. Hn ‘Leges Henrici Primi’, ed. Gesetze. Hom. Homilies of Wulfstan, ed. Bethurum. Hom.N Wulfstan, Sammlung Homilien, ed. Napier. Hu. ed. Gesetze. Ine Laws of Ine, ed. Gesetze. Inst. Pol. Die ‘Institutes of Polity’, ed. Jost. Iud. Dei Iudicia Dei, ed. Gesetze. JW Chronicle of John of Worcester, ed. Darlington and McGurk. KCD Codex Diplomaticus, ed. Kemble. Laws (At) Laws of the Earliest English Kings, ed. and tr. Attenborough. Laws (Ro) Laws of the Kings of England from Edmund, ed. and tr. Robertson. ix Leg. Alam. Leges Alamannorum, ed. Lehmann/Eckhardt. Leg. Burg. Leges Burgundionum, ed. de Salis. Leg. Lang. Leges Langobardorum, ed. Bluhme (with Boretius). Leg. Liutpr. Leges Liutprandi, ed. in Leg. Lang. Leg. Vis. Leges Visigothorum, ed. Zeumer. Leis Wl ‘Leis Willelme’, ed. Gesetze. Lex Bai. Lex Baiwariorum, ed. de Schwind. Lex Fris. Lex Frisionum, ed. Eckhardt and Eckhardt. Lex Rib. Lex Ribuaria, ed. Beyerle and Buchner. Lex Sal. Pactus Legis Salicae, Lex Salica, ed. Eckhardt (MGH). Lex Sax. Lex Saxonum, in Gesetze des Karolingerreiches III, ed. Eckhardt. Lex Thur. Lex Thuringorum (Angliorum et Werinorum), in Gesetze des Karolingerreiches III. Lib. Æth. Anglo-Saxon Ely, ed. Keynes and Kennedy. Lib. El. Liber Eliensis, ed. Blake. LS Wormald, ‘Handlist of Anglo-Saxon Lawsuits’. MGH Monumenta Germaniae Historica (Hannover, unless stated otherwise). Northu. ‘Northumbrian Priests’ Law’, ed. Gesetze. Ord. Ordal, ed. Gesetze. Pact. Pactus pro tenore pacis (regum Childeberti et Chlotharii), ed. Eckhardt, Lex Sal. PBA Proceedings of the British Academy. Penit. Ps.Th. The Penitential of (pseudo-)Theodore, in Ancient Laws, ed. Thorpe. PL Patrologia Latina. PM Pollock and Maitland, History of English Law. Rect. Rectitudines Singularum Personarum, ed. Gesetze. RoASCh Anglo-Saxon Charters, ed. Robertson. x Romscot ed. Gesetze. S Anglo-Saxon Charters, ed. Sawyer. S* Sawyer’s Anglo-Saxon Charters, revised Kelly and Keynes [now the Electronic Sawyer] SE Maitland Maitland, Select Historical Essays, ed.
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