Bruce R. O'Brien

title.none: Hudson, Land, Law, and Lordship in Anglo-Norman England

identifier.other: baj9928.9503.001 95.03.01

identifier.issn: 1096-746X

description.statementofresponsibility: Bruce R. O'Brien, Mary Washington College

publisher.none: .

date.issued: 1995

identifier.citation: Hudson, John. Land, Law, and Lordship in Anglo-Norman England. Oxford: Clarendon Press, 1994. Pp. 320; 2 figures. $79.00. ISBN: ISBN 019820437-X.

type.none: Review

relation.ispartof: Bryn Mawr Medieval Review

The Medieval Review 95.03.01

Hudson, John. Land, Law, and Lordship in Anglo-Norman England. Oxford: Clarendon Press, 1994. Pp. 320; 2 figures. $79.00. ISBN: ISBN 019820437-X.

Reviewed by:

Bruce R. O'Brien
Mary Washington College

F. M. Stenton's honorial world has finally been put to rest by a remarkable study of lordship and law by John Hudson, now of the Department of Mediaeval History at the University of St. Andrews. Working primarily from royal and private charters, Hudson traces the development of security of tenure, heritability, and alienability from the Conquest to Henry II's legal reforms and finds that, contra Stenton, S. E. Thorne, and S. F. C. Milsom, the legal world of the Angevin monarchs was essentially the same as that of Henry I, that there had been no Angevinleap forward, but rather a "mental and practical process of extension and hardening" of norms established by the end of Henry I's reign (153). Hudson accepts Henry II's reforms as important, but tries "to reconcile [with that conclusion] the evidence that the Anglo-Norman world was not one of autonomous lordships but of considerable royal involvement, and that the social effects of customs in Anglo-Norman England did not differ greatly from those of Common Law rules" (253).

Hudson's argument stands on a rather simple point of perspective. Instead of taking Henry II's assizes as statutory innovations, Hudson sees them as statements of good custom, gnd reads the charters accordingly. From this position, he argues that the rules which characterized the land law of the late twelfth-century Common Law were clearly the norms which governed tenure in the early twelfth century. These norms arose during the years between the early twelfth century's two most important succession problems, the death of Henry's son William in the White Ship disaster of 1120 and his own death in 1135 which left his daughter Matilda as an unpopular, and to some unacceptable, heir. During these years, and building mostly on precedents to be found under William I and William II, a number of norms appeared which defined English land law for the rest of the century. As this law derived not from legislative acts of the Anglo-Norman kings, but principally from sanctioned usage as witnessed by charters, Hudson can present no straightforward legal history for these changes, as he does for Henry II's reforms. Nonetheless, the picture is clear. In some places, his conclusions follow from previous work; for example, Hudson accepts Paul Hyams' argument that warranty was expected by tenants from the "middle of Henry I's reign" (54). Elsewhere, Hudson is our primary guide. The heir's claim to succeed was, for example, "considerably stronger" in Henry I's later years than was argued by Thorne (71). Hudson rests his case on the evidence for the development of a technical vocabulary to describe certain types of tenure and heirs. The heres of Henry I'si coronation charter, for example, is, Hudson claims, "not dissimilar to later usage" under the Angevins (79). Other phrases betray in their technicality a growing ability on the part of laymen to think about land abstractly; in feudo et hereditate, technical by the 1120s, and in elemosinam, common by 1135, both reveal a more specific usage than the language describing tenures in Norman and English charters of the early eleventh century (91, 94-5). Advance confirmations, "whereby lords confirmed in advance all future gifts" of vassals (225), sharply increase in Normandy and England between 1120 and 1135, an increase which not only supplements these changes in vocabulary, but also points toward Hudson's explanation for the early appearance of land-holding norms, which is of course what is most novel in this study. Hudson traces this increasing use of inheritance language in charters to five things: discussions of inheritance provoked by succession problems in c. 1086 and 1120; the growing literacy of the age; contact with the church and its learned and abstract law; the very nature of the settlement of the conquerors themselves, which forced the new lords "to work out the terms on which their new lands were held" (105); and royal involvement. What was produced by 1120, or in some cases by 1135, was a language capable of expressing abstractly the rights and obligations incurred through inheritance, a vocabulary which became the basis for the rules of the Common Law concerning land. As Hudson puts it: "A man in 1100, certainly in 1135, had the language with which he could readily have explained custom to a man two or three generations later, and the latter would no doubt have found the situation described not merely comprehensible but familiar" (281).

Hudson is at his best when exploring royal involvement in honorial justice. Here, we discover that Norman kings, Henry I in particular, responded much like Henry II would later to requests from their subjects for help in disputes over land. Henry I, despite often irregular intervention, enforced, for example, the church's own emerging $distinction between alienable and inalienable land by helping the church regain what had been improperly alienated. Henry's lay vassals witnessed this service and sensibly asked for much the same sort of thing. Hudson does not deny that Henry I did not provide this service as predictably and frequently as Henry II. However, Hudson changes the terms of this old debate by arguing that "by 1135 for laymen as well as ecclesiastics, the threat, if not the routine, automatic administration, of royal justice had already been shaping the norms of seignorial action and of land-holding" (280). Case in point, Hudson explains the regularity of succession in Anglo-Norman England in part by pointing out that "Henry I was sufficiently involved in seignorial affairs not only to affect individual cases, but to force lords to take the possibility of royal involvement into account in their regular dealings with their tenants" (131). Henry II was not disingenuous, then, when he claimed he was restoring the status quo under his grandfather. That the law changed under Henry II is clear. That it did so through sometimes conscious planning is also accepted. But that it remained essentially the law of Henry I's day is the ovesarching conclusion.

There is much else of interest in this study. Hudson's critique of Thorne and Milsom, though published in part elsewhere, is particularly useful here accompanied by the full weight of Hudson's charter evidence. His equation of distraint with violence, which might very well constitute a breach of the peace, warns us of the dangers in seeing in terms like distraint too formal and clinical a legal action. Distrainors might quickly become robbers and so fall on the other side of the law. Hudson's distinctions between ecclesiastical and lay lords' understanding of heritability and alienability is exceptionally sensitive to nuance. What is also remarkable here is how far Hudson has been able to tease out of the sources the influence ecclesiastical norms might have had on the development of lay attitudes and norms concerning land-holding. Laymen, recognizing the benefit the Church gained from having the king as a protector, sought a similar relationship. As Hudson neatly puts it: "they may have had little choice, for the only answer to a church with a royal writ might be the obtaining of a royal writ of one's own" (251). It is indeed Hudson's important 1991 article in Anglo-Norman Studies that brings this out most fully, but here we find it integrated in a much more comprehensive treatment. Finally, Hudson's last chapter constitutes a description and evaluation of Henry II's legislative activity which, while it will no doubt be adjusted in its parts, will as a whole become a starting point for studies of Henry II as a maker of laws.

Any work as bold and imaginative as this will not persuade readers on every point. In some cases, the criticisms are of emphasis rather than conclusions. For instance, to read Glanvill's prologue as reveille for the standardization of juridical norms, rather than as a firm statement of royal authority, is, I think, too selective. It is also curious why the inquest behind Domesday Book seems to have had so little an effect on notions of land-holding; Hudson mentions it occasionally, but usually only as context for greater changes c. 1120 or 1135. In other cases, Hudson's arguments may lead to valid conclusions, but the evidence cited is insufficient to carry the day. For example, in order to make a general statement about the alienability of acquisitions, Hudson should have given us more than the single charter cited (206 & n. 136). That evidence of Henry I's assistance to churches attempting to regain lands is "much more plentiful" than that from William II's reign requires more than the half dozen charters of Henry I against the three of Rufus (242-3). In still other places, the argument seems strained. Hudson, in tracing standardization of Latin vocabulary under Henry I, points out that while rationabiliter begins to appear between 1120 and 1135 in royal charters, it only "becomes common in Henry II's later confirmations, and also appears in private charters, at least for the 1140s" (226-7). The easiest explanation for this is to posit the {nfluence of canon law under Stephen and Henry II; but this is too late for Hudson, who is willing to speculate on how technical the word had become under Henry I and to point out that it "certainly had a canonical usage" and was resonant of the fashionable ratio, but is unwilling to see significant development of these norms after Henry I.

It is with Hudson's general approach to some of his sources that I have more general questions. Hudson trusts none of the legal treatises produced during the twelfth century. That he can find little use for such works as the Leges Edwardi Confessoris or Leges Henrici Primi is understandable; little of the land law can be found in these early twelfth-century treatises. That he has difficulties with accepting some of Glanvill's explanations is also to be expected; the days when Glanvill's tidy commentary was accepted without reservation as royal, official, and unexceptional are long past. But Hudson rarely explains why he distrusts these works. When he does say why, he provides only half answers. To say that the sections of the Leges Henrici Primi on alienation cannot reflect a "twelfth-century reality" because some "rests heavily on Alf, 41" is too conservative (182, n.35). Such a reliance by twelfth-century treatises might very well be evidence for continuity of practice, rather than a sign of the legal writer's unwillingness to reflect contemporary thought. That Hudson should be suspicious when an older text is serving as a model for an Anglo-Norman statement is fair; but then Hudson must also be suspicious of the ability of a late twelfth-century charter to reflect an Angevin reality when it employs language similar to a charter from the same scriptorium drawn up two, three, or four generations before. That Hudson must work first and foremost from the charters goes without saying. That he should treat them any less critically than ancillary sources such as the lawbooks reveals perhaps too great a faith in their integrity.

My last point about Hudson's use of charter evidence raises a final question. Hudson works almost entirely from Latin documents. Only rarely, and far too briefly, does he consider vernacular usage of cognates, which he correctly presumes lie behind the Latin. In the few places where he does turn to the vernacular, he provides evidence of usage mostly from French works produced in Normandy or in England in the twelfth century. In only one place does he acknowledge that English may lie behind some of his Latin documents (103, n.173). One must wonder, however, whether the Latin of Hudson's charters, like that of the legal treatises, may not often be a shell which must be filled with meaning by the vernaculars, English and French. When, for example, we read of an exul in the Instituta de legibus regum Anglorum (II Cn 48,2), we should really be thinking of the semantic field of utlah. This translation only makes clear the dependence all of these legal texts had on their vernaculars. In the space of this review I can only offer a few comments on this subject, but I do think this approach should in some cases influence our interpretation of many high medieval Latin documents. The earliest charters of the Anglo-Norman kings are in part in English. Later bilingual documents reveal the vernacular behind royal writs, which is what we would expmct from a politically conservative king like William I. But what of the charters of Henry I's reign? That some Anglo-Norman barons' households spoke English first seems clear from Orderic Vitalis' story of his own childhood. That English scribes and illuminators continued their work and traditions through the first half of the twelfth century is also clear. That England up to the Angevins was dependent primarily on oral proof in court, with only a slow and halting development of trust in whe written word, is also arguable. All of these are variables that need to be considered before the charter evidence can be fully arrayed. Hudson may very well be right to see continuity from Henry I to Henry II in the Latin vocabulary used to classify land-holding; the question is whether a court (baronial or royal) in 1120 would read it the same way as a court in 1180. The Latin might not have changed, but what is to say that the vernaculars have not?

What Hudson has done, then, is quite remarkable, but his insights might be expanded on and extended. He has put kings with authority (but unpredictable energy) back into the honor, and has integrated developments of ecclesiastical thought on law with developments in lay norms concerning land-holding. That he has not laid to rest all questions concerning the development of Common Law norms is hardly a surprise. This is a pioneering work into the thoughts and deeds of the most crucial period for studying the origin of the Common Law and Hudson is one of the first to try to tell the tale without the anachronistic assumptions of the plea rolls (and their students) to cloud his vision. The Press is also to be commended for producing a text with a minimum of errors (Earldam on 1616, n. 22).