Bruce R. O'Brien's God's Peace and King's Peace: the Laws of Edward the Confessor consists of two parts. The first part is an essay on the once notorious Leges Edwardi Confessoris, their authorship, their content and their long influence on English law and politics. The second part is a new edition and translation of the Leges.
The Leges purport to be the laws confirmed by William I after the Norman Conquest. According to the treatise's own prologue, in 1070 William collected the nobiles of the counties of the land and they related to him the laws of the kingdom. When at last he declared his own fondness for the Norwegian law of his ancestors and proposed to import that wholesale, the nobiles objected and begged for the laws of Edward the Confessor. Taking their wise counsel, William acquiesced and confirmed the laws of his predecessor.
Since the late seventeenth century, this story has been recognized as nonsense. There was no such council, and the laws contained in this treatise have no connection with a single royal pronouncement of this kind. This story was, however, a matter of high politics in seventeenth-century England, since the Leges and their subversive, antiquarian fans had used it to demonstrate the supposed antiquity of Parliament and its role as a check on royal prerogative.
The political downfall of the Leges was followed rapidly by their historiographical demise. Scholars recognizing the duplicity contained in the treatise's avowed intent, discarded the whole treatise in favor of texts that would stand up better to the scrutiny of rigorous, scientific history. The most famous culmination of this hostility was the denunciation of the Leges by Maitland, who complained that the treatise "has gone on doing its bad work down to our day," misleading the unwary and confusing the past.
The treatise has recovered somewhat from this low point, and its value as a source for the attitudes and even the actual law of the early twelfth century has long been recognized. Not since Felix Liebermann, writing around 1900, however, have the Leges received a thorough study on their own terms. Bruce O'Brien has done an admirable job of filling that void and opening up a fascinating source both for further critical study by scholars and for exploration by students.
The first chapter is a general scene-setting, placing the Leges in their general post-Conquest context, and making some very general remarks about the quality of law experienced by Normans and English before and after the Conquest. Much of it is framed in broad questions that O'Brien sees the treatise as trying to answer: what was the relationship between Norman and English? What was the relationship between the king and the law?
The heart of the book lies in Chapter 2, which contains O'Brien's arguments about authorship. These arguments are built of supposition upon supposition, as O'Brien admits repeatedly, but they are sound and judicious. The argument that the Leges were composed at Lincoln, by someone of Continental background connected to the court of Bishop Alexander (bishop 1123-1148), nephew of Roger of Salisbury, fits well with the treatise's content and interests. O'Brien wisely does not attempt to push the attribution further; despite running through several named candidates, he settles for leaving the authorship with a broad rank of middle officials, from deans and archdeacons to reeves. The dating is a little more tricky. In the almost complete absence of directly dateable elements (all we know is that it must be after 1096, and probably not soon after), dating by content is a hazardous business, and necessarily undercuts the more important business of relating the contents to their context. Dating by the oldest manuscript only provides a terminus ante quem and is imprecise (before c. 1175). Dating by motive for composition leads into an endless guessing game. O'Brien concludes that there is nothing to argue against a date in the first half of the twelfth century. He is also inclined to connect the opening section of the treatise on the peace enjoyed by the Church to Stephen's charter of ecclesiastical liberties (1136), and to attribute the motive for composition to a desire to clarify the privileges of the see of Lincoln connected to the granting of this charter. It makes good, broad sense, but O'Brien is wise not to insist on the date overly strongly.
Chapter 3 is a broadly ranging chapter that contains most of the technical legal arguments. O'Brien moves rapidly across a range of subjects, all of which are central to our understanding of twelfth-century law: rights of sanctuary, limits of ecclesiastical jurisdiction, the extent of royal peace-keeping measures (especially tithings and the murder fine -- and including the disputed place of women and Jews in the former), royal pardons and outlawry. O'Brien seems to fall firmly into the new orthodoxy championed by Patrick Wormald that holds that continuity and strength of institutions is the best way to understand the post-Conquest situation. He trusts his author well enough to take on board his vision of a well structured government composed of courts and reeves, each passing on cases from one to another. He tends to concentrate on what he admits is the "ideal" imagined by the author (p. 102), over the hints of violence and corruption (cc. 26, 28).
Chapter 4 follows the influence of the Leges in the twelfth century and beyond in a manner of scholarship mapped out by J.C. Holt's study of Magna Carta. In the twelfth century, it seems that no English legal treatise was more popular, both for the applicability to practical situations (testified by the existence of small, portable manuscripts) and its ideologically potent contents. Here was a treatise that gave both churchmen and townsmen ammunition in their fights for their liberties. The Leges were adapted, expanded and translated into French. In one expanded form, interwoven with Galfridian legend, they helped inspire the resistance to King John that culminated in Magna Carta. After that time the Leges gradually ceased to be so influential, although the author of Bracton used them, until they were revived by the antiquarian parliamentarians of a later age.
The second part of God's Peace and King's Peace consists of the technical meat of the book: the introduction to the edition, which constructs an appropriately complicated stemma and discusses the fourteen principal manuscripts, and the edition and translation themselves. The methods adopted for the edition are sensible, although with fourteen manuscripts to handle, O'Brien necessarily has to sacrifice some comprehensiveness, omitting, for example, the various spellings of the English terms used by the author and including only those of the oldest manuscript. The translation is for the most part clear and straightforward, without imposing such qualities unduly on the source. Where translation cannot help a particularly opaque passage, there is clarification in the end-notes. (One side note: University of Pennsylvania Press has produced a good-looking book: the dust jacket juxtaposes a king in majesty with a thief at the moment of hanging; the font, paper and layouts are elegant. It is sad, however, that in a book such as this which surely does not aspire to a wide popular audience, it did not allow us foot-notes instead of end-notes -- the bane of scholarly reading!)
I have only one real criticism of O'Brien's book. O'Brien is very firm in his belief that, because the author was a foreigner and was not just deriving his information from older works that he only half understood, his views are more useful and direct than other contemporary witnesses. He seems to want to restore the reputation of his source against the barbs it has suffered since the 1680s. This seems a little over-stated in the light of O'Brien's awareness that foreign models permeate the treatise and inform many of the authors' interpretations (for example, of the tithing system). O'Brien is keen, moreover, to accept the treatise's historical elements, such as its version of the origins of the murder fine, which attributes the draconian peace-keeping measure to Cnut rather than William I, to whom it has been traditionally attributed (here he summarizes the argument from his article: 'From Mor[th]or to Murdrum: the Pre-Conquest Origin and Norman Revival of the Murder Fine,' Speculum 71 (1996), 321-357.). The pre-conquest origins make sense, but I do not see good grounds for accepting the Cnut story: O'Brien's argument that the fine was only levied outside the Danelaw and therefore in places where Cnut's men would be most at risk seems tenuous. Would not this pattern and the nature of the fine make better sense if the murder fine had origins with the peace-keeping reforms of the West Saxon dynasty?
In a similar vein, I was struck that while O'Brien mentions various other visions of the peace in his section on that topic, he does not mention Geoffrey of Monmouth's Dunvallo Molmutinus and his Molmutine Laws. Geoffrey was, after all, writing at exactly the same time as our author and was connected to the same bishop, if O'Brien is to be believed, and the fictional Molmutine laws bear a striking resemblance to the peace described here. Maybe the closeness of Geoffrey on this topic makes O'Brien nervous about his belief in the overall usefulness of the treatise. Elsewhere O'Brien notes the author's use of false etymologies, rather like Geoffrey's (and those of all other writers of the time for that matter). Might not the author also be engaging in similar historical fictions in his comments about Anglo-Saxon legislative activities?
The treatise almost gives hints to the fictions. It claims that when "wiser men saw that fools freely committed offenses against their neighbors" they appointed decani to administer groups of ten tithings (c.28). O'Brien notes that this is a borrowing from Carolingian legislation and that there is no independent evidence of such a system in England. The treatise hints at other moments of discord on the issues of tithes (c. 8.3a) and danegeld (c. 11.3), and in both cases it produces laws that favor the Church.
All in all, O'Brien recognizes that the treatise had immediate usefulness for those who wanted to make a case in favor of ecclesiastical or municipal checks on royal power, yet he does not seem to want to admit that such uses might have been part of the author's purpose. To admit this would take us back to Maitland, and perhaps that is the point of O'Brien's emphasis: to recite the biases of the Leges covers old ground, and he is moving forward in an effort to make the source speak on other issues. When, however, O'Brien observes in his epilogue that in the early twelfth century there was a great movement to preserve Anglo-Saxon law, of which the Leges were a part, I could not help but wonder that if everyone is preserving their own version of Anglo-Saxon law, then maybe no one was really preserving Anglo-Saxon law at all.
This is a fine and timely book, combining meticulous erudition with original insight. It should be read with interest by scholars of law and of social change. And I for one cannot wait to throw the new translation at my students.