The Medieval Review 11.10.04

Worby, Sam. Law and Kinship in Thirteenth-Century England. Studies in History. Woodbridge: Boydell Press, 2010. Pp. 198. $95. ISBN 9780861933051. . .

Reviewed by:

Joel Rosenthal
State University of New York, Stonybrook

The main focus of this book is on the way in which canon law defined kinship, which mostly meant enunciating, clarifying, and then trying to enforce rules relating to marriage. Who could marry whom was a serious issue in medieval society, since between the Church's abiding concerns with "incest" (or its prohibitions touching what today would usually be considered as a fairly remote relationship) and the visible and critical role of family and kinship in society, almost everyone and at every level of life (except perhaps most of the celibate clergy) was apt to be affected. And in this world of competing or complimentary jurisdictions, the canon law definitions of kinship heavily colored those of the common law as the rules regulating marriage (and sexual activity) were understood and accepted--if not necessarily obeyed--by men and women in 13th century England.

That canon law largely set the tone for what and how the common law interpreted kinship is the thesis of Worby's monograph: "People may not have accepted the canon law kinship system in its entirety, but it is telling that they seem to have been more willing to accept the more intuitively obvious consanguinity rules" (103). In 13th century England three codes or bodies of law were known, though of these three the civil law was mostly confined to being a university subject and therefore with little effect on society (though Bracton tried, without success, to reconcile what civil and common law said regarding kinship). But canon law, as pronounced by councils and in decretals, as well as in the expositions of canon lawyers and theologians, and the common law, as expounded by legal writers (such as Bracton and Britton and Glanville) and by the judges in the courts, operated along lines that sometimes ran parallel to each other and sometimes crossed. Worby does not explore the question of "why" the Church was so concerned to define kinship in a wide fashion, building as it did upon Roman practice. Rather, his detailed focus really begins with the narrowing of the boundaries of prohibitions regarding marriage as they had been spelled out at the Fourth Lateran Council of 1215 (coming down in prohibition from 7th degree kinship to 4th degree). His close reading of some critical texts on kinship picks up with the Quia tractare intendimus of Raymon of Penyafort (around 1235), though the earlier contributions of such as Isidore of Seville, Gratian, and Alexander III, among others, are also discussed. Key passages of Raymon's treatise, in Latin, are given in the appendix of the volume, along with excerpts from three other relevant treatises.

Canon law (or canon lawyers) saw three basic categories of kinship: by consanguinity (blood)--and then by analogy--by affinity (through marriage) and by spiritual ties, as created (as impediments) by those standing as co-sponsors at a baptism. The focus of concern and investigation was on seeing that potential marriage partners were not prohibited, by virtue of being caught in any of these nets, from marriage (and pre-marital sex with parties related to the proposed partner was also an impediment--as were other obstacles like insanity, impotence, frigidity, an undisclosed servile status, force or fear regarding the union, and various kinds of false identity or collusion). It is not only a wonder that anyone could find anyone with whom to make a legitimate/valid marriage, but that court cases indicate a greater concern to preserve already-made-marriages than to prohibit them. As in the quote above from Worby, people had a reasonably informed idea of those who were considered as (too close) kin and of what the Church, usually in the person of the parish priest and often as bolstered by the "moral economy" of the community, thought of as being within acceptable boundaries. The announcing and posting of banns helped flush out problems--preferably in advance of the marriage--and various interpretations of who had slept with whom and how relationships could be traced, as people arose to tell their tales, enrich Worby's narrative.

One distinction between the two laws, and one that I think Worby might have delineated more clearly, is that of focus or motive. What was the focus of concern, or the motive behind all this discussion and regulation? Canon law looked at who could properly marry whom, and therefore the definition of kinship had a marital bias (or an anti- marital one, as we might choose to see the heavy hand of social control and ecclesiastical ambivalence about sexual activity). The common law, on the other hand and yet still mostly working within the Church's definition of kinship, was primarily concerned with inheritance: in what pecking order did heirs stand when claims were made for inheritance. As in the famous "I Love Lucy" episode where she is taught that three of a kind (in poker) beats two pair, so we explore on what basis it was determined that a second cousin came before a nephew's grandson, or whatever exotic permutation of kin one could offer in the search for the propositus ("the last person who had died rightfully seised"). Worby does offer data to illuminate these problems. In a search for the propositus (Table 5: p. 122) he lists 26 different kinds of "kinsmen" (sic!) in a "common law sample" that draws upon cases as reported in the Early English Law Reports and some proceedings from Shropshire. In this table we see that "father" is named 60 times, "uncle" 22, and grandfather 13, we have but single listings for such as "first cousin four times removed" or "great-great uncle."

Law and Kinship talks much more to the realm of law and legal history than it does to that of social history. The emphasis is on legal definition, with the many complications and ramifications thereof. The references are to cases that, to some degree or other, clarified knotty issues and offered definition, though even a stentorian judicial opinion did not always end debate and we have the common dilemma of learning about many contested claims and opposing principles but not their resolution. Worby's cases are largely based on those as published and treated in various works by Charles Donahue, Paul Brand, and Richard Helmholz, with some look at those analyzed by Michael Sheehan (and a fair amount of proper deference to F. W. Maitland). This is a good way to go and it gives confidence that Worby is touching the most important bases. But for those concerned with kinship from a social as well as a legal perspective, some aids to the reader are sorely missed. There are two figures in the book, one being a tree of consanguinity, one a tree of affinity (the former from a Bracton ms., ca. 1300: BL Add. 41258; the latter from an undated manuscript in Paris, BN ms Latin 4000). Given the complexities of the two figures and of the dilemmas they were designed to resolve in their reach for four generations (and in four directions) from ego, more such illustrations--and some modern ones drawn by Worby--would be of considerable help. Worby might well have turned to the early Inquisitions Post Mortem (in print from Henry III and Edward I) and tested theory about "the order of heirs" with what juries offered when the transmission of land was in dispute. This would give us an insight into the depths of common knowledge about descent and about how well legal theory matched what men of substance, on the ground, offered in "real" cases.

However, there is an old and proper adage that a book should not be taken to task for what it did not do, provided that it does a good job with what it does offer. This is certainly the case here. Worby has worked to unravel a very tangled skein, with not only two kinds or bodies of law, but each with its own internal dynamic. Neither canon law nor common law stood still, neither was without internal contradictions and back-tracking, and neither could develop without at least some covert eye on what could "be sold" to the laity, at least high if not low. If marriage partners, legitimate children, and the transmission of real property were too important to be left just to the whims of the laity, they were also too important to be governed by legal and theological theory that was remote from practical measures. For a short volume Worby offers useful guidance in these matters. His book probably would have helped people contemplating a marriage or a case at law in 13th century England. It certainly is of value as we turn to examine the motives, claims, and aspirations of those who married, who reached out to their kin, and went to (canon and common) law in that strange country of the past.