15.06.44, Escobar-Vargas, ed., Law's Dominion

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Geoffrey Koziol

The Medieval Review 15.06.44

Escobar-Vargas, M. Carolina, ed. Law's Dominion: Medieval Studies for Paul Hyams. Reading Medieval Studies, 40 (Special issue, 2014). Reading: University of Reading: Graduate Centre for Medieval Studies, 2014. pp. x, 208. ISBN: 9780704915527 (paperback).

Reviewed by:
Geoffrey Koziol
University of Calilfornia, Berkeley

A number of years ago I was told that academic presses do not like to publish Festschriften because they do not sell. I have always thought this a shame, for over the years Festschriften have taught me more interesting things about more topics than entire runs of most journals. And so in reviewing this volume, one might first of all thank Reading Medieval Studies for publishing it and wonder whether other journals could follow its lead. Then, of course, one should thank the contributors ("The Collective," as they wryly call themselves in their introduction) for honoring Paul Hyams by writing articles that capture the wide range of his interests and something of his own spirit: incisive, funny, provocative, and always intelligent.

Danuta Shanzer's essay focuses on two letters of Augustine (Epp. 77–78) that hint at a scandal among the clergy of Hippo when a priest and a monk each accused the other of making homosexual advances. The accusations became even more of a headache for Augustine because while he wanted to support the priest, the laity in his congregation supported the monk. Augustine's solution was to export the problem by sending both men to the shrine of Felix in Nola, not for penance but to test their respective claims by a bilateral oath. Shanzer maintains that this is the first known example of what became canonical purgation, a practice rooted in Hellenistic and Roman customs but sharpened by the church's growing promotion of the power of saints at their shrines.

In contrast, Thomas Hill argues that the Anglo-Saxon ordeal of cold water was a fundamentally Germanic practice that clergy needed to find a way to Christianize. Highlighting an issue that consistently puzzles undergraduates, Hill suggests that it already puzzled the Anglo-Saxon Christian priests who had to "conjure" the water used in the ordeal: why was it thought that the body of a guilty person would float but that of an innocent person sink? The priests' solution was not the one I have always taught — the one James I argued for — that as the element of baptism water would accept the pure and reject the impure. Arguing from two contemporary conjuring prayers, Hill shows that virtue was thought to have weight (pondus virtutis) that led the virtuous to sink.

Richard Abels returns to a well-known charter of Æthelred (Sawyer 877) to argue against the "maximalist" interpretation of late Anglo-Saxon government. The charter rehearses all the misdeeds of the then Wulfbald, who appears to have ignored at least four adverse judgments by the king's court and died still in possession of the property he had been ordered to surrender. Abels holds that Wulfbald's apparent defiance points to a characteristic in the exercise of Anglo-Saxon royal power: kings did not strongly intervene in others' disputes save when their own interests were directly affected. As long as Wulfbald's dispute had remained within his own family, the king showed little desire to bring the conflict to a head. Only after Wulfbald's death, when the dispute erupted into widespread violence that the king could not ignore, was Æthelred moved to take direct action.

Stephen White's article stands as an introduction to his and Elizabeth Carson Pastan's just-published book on the Bayeux Tapestry. [1] White argues that the tapestry was not commissioned by Odo of Bayeux, as usually thought, but rather by the abbey of St. Augustine's of Canterbury, and that the individuals depicted in the tapestry often identified as Odo's vassals were in reality vassals and tenants of St. Augustine's, making the tapestry the product of that Canterbury monastery.

From cases heard in the court of the archdeacon of Paris between 1483 and 1505, Ruth Karras examines those that concerned breach of a promise to marry. Her findings are fascinating, not least because the parties were often le menu peuple of Paris whose lives are hard to get at. Karras finds that they often engaged in very long-term sexual relationships, effectively clandestine marriages. Since, for a valid marriage, the church required only a promise to marry followed by intercourse, many of the cases became "He said/She said" arguments, the woman claiming a promise of marriage followed by gifts, the man claiming to have made only a lover's gifts with no promises attached. Karras is rightly struck by how lightly promises to marry seem to have been made and accepted, perhaps because within these social classes marriage did not create the property entanglements that it did for the wealthier. Interestingly, court judgments are quite varied and show no consistent discrimination against the women bringing the charges. On the contrary, often enough the courts believed that a woman had been treated unfairly and demanded that the man provide her with some form of compensation. Analyzing one case, Karras concludes that the woman, having been a man's mistress for nearly two decades, brought suit because she was offended when he refused to marry her after his wife's death. Finally, she notes the procedural rule which, in the absence of witnesses, allowed the defendant to defer an oath to the accusing plaintiff, so that the plaintiff could win her case merely by swearing to the truth of her claims. Karras is surprised by how often men were willing to defer the oath to women. In one instance, the court fairly forced the man to do so, taking his refusal to defer as evidence of his own bad faith. In any case, Karras believes that the frequency of such deferrals indicates a fundamental good will of the parties and a real reluctance to commit perjury.

Eliza Buhrer traces the origins of the practices for testing mental competency in English courts. Some slight evidence (one wishes Buhrer had written more on this) hints that the early practice concerned the ability to tell right from wrong. From the fourteenth century on, individuals were asked their age, the names of their children, the number of days in the week, and also to measure an ell of cloth and to calculate the equivalency of different coins and moneys of account. Buhrer develops one case study involving King's Lynn to show how such cases could become enmeshed in jurisdictional struggles between the borough and the Crown. From the same case, she argues that tests about measurement and currency reflected the values and expertise of newly important mercantile classes and might not have been fair to women. I was not wholly convinced, given that this particular woman did not know her son's name and could not name the days of the week.

Paul Brand contributes a detailed analysis of a set of petitions addressed in early 1290 to Edward I and his council in which the abbot and convent of Reading complain of bonds that had been forged with their seal to the benefit of Jewish merchants. At the same moment, allegations of forged bonds involving Jewish creditors were made concerning two other monasteries (St Alban's and Osney). Exactly who Brand believes was to blame for these forgeries and who they benefited is not clear to me. However, Brand suggests that that such allegations increased sentiment against Jews in the months immediately before the decision to expel Jews from the kingdom.

Chris Briggs and Phillipp Schofield are preparing, for the Selden Society, an edition of cases heard in English manorial courts on debt, detinue, and covenant. Here they use these cases to revisit Paul Hyams' important article, "What Did Edwardian Villagers Understand by 'Law'?" [2] They find that many of Hyams' instincts were correct. Far from being left outside the influence of the Common Law courts, English manorial court records are replete with procedures and terms borrowed from Common Law courts. The authors focus especially on charges of "illicit litigation," cases in which a manorial lord accused a villager of having wrongly brought suit in an external court. They find that such accusations were brought only when both parties were tenants of the lord. Accordingly, villagers, even the unfree, had a great deal of experience pleading in both royal courts and church courts.

Ada Maria Kuskowski introduces readers to recent scholarship which argues that the spread of French vernacular was due less to the influence of the French royal court than to its value as an international language, useful not only in bridging the many dialects of French in the kingdom itself but also as a common language shared by elites in England and the Levant, to the point that Brunetto Latini wrote Li Livres dou Trésor in French (c. 1260–67) because, he explained, the language was "more common to all people." After summarizing this scholarship, Kuskowski documents the large number of customaries and procedural manuals written in French from the middle of the thirteenth century in both France and in England. The reason for these writers' overwhelming preference for French was the same as Latini's: French was simply more accessible to more people. The result was that "law" French came to incorporate so many technical terms from Roman and canon law that it became ever more useful. Indeed, those who intended to study the learned laws often began with these vernacular texts, simply because they provided easier introductions to the subject.

Thomas J. McSweeney seeks to understand the logic of the royal pardon: what sense did it make for a king to free convicted criminals or to absolve the fines of those who had been amerced? His explanation is that amercements did not conform to a logic of law but to a logic of salvation: to pardon was a meritorious act that benefited the king's soul. However, what intrigued me more were the details McSweeney provides in making this argument. A royal pardon of amercements did not free the individual from paying damages or compensation to other party. Kings were not the only ones who pardoned; so did juries and justices. Kings might issue pardons in return for military service, but homicides committed in self-defense or by mischance were routinely pardoned and most pardons were issued in consideration of an individual's poverty. Kings celebrated (and publicized) important events with mass pardons, but when doing so, even John required killers to settle with the victim's kin before being freed.

Richard Kaeuper takes his point of departure from a short book by John Ruskin, Unto this Last (1862), in which Ruskin distinguished five professions: soldier, pastor, physician, lawyer, and merchant. For Ruskin, the first four were meritorious because each would suffer death rather than abandon the ideals of their profession. As to the merchant, asked Ruskin, "what is his 'due occasion' of death?" Kaeuper believes that Ruskin actually hit on an important aspect of the middle ages' own understanding of what made "knighthood" an "order": the capacity for self-sacrifice which alone distinguished the soldier from the knight and whose alleged absence justified the same antipathy towards mercantile activities in the middle ages that Ruskin displayed 600 years later. As an anonymous fourtheenth-century collection had it, God created clerics, knights and workers; it was the Devil who "thought up" (excogitauit) townsmen and usurers.

Finally, Peter Coss examines one of the thorniest problems of later medieval social and legal history, the subject of Hyams' 1980 book on English villeinage: exactly what was a nativus? [3] He begins with entries from an early fifteenth-century register of Coventry Priory that distinguish, in passing, alongside free tenants and cottars, nativiand those "holding neifly" (native tenentes). After reviewing past historiography, Coss promotes Hyams' own argument that villeinage developed as an unintended consequence of the Angevin legal reforms: if Common Law possessory assizes were restricted to "freeholds," then by definition there had to be "unfreeholds" excluded from them. Coss also accepts Hyams' belief that free and unfree tenures did not correspond to wealth or social importance and that a man who held freeholds might hold other lands as a tenant in villeinage. Hence, for Hyams, the development of the "action of neifty," used to determine whether or not an individual was a plaintiff's villein for the land at issue in a dispute. Use of the action led courts to stress easily provable signs as evidence of villeinage (in particular the obligation to pay merchet). Nevertheless, real dependent servility continued to decline. As to Coventry Priory and its handful of nativi by status rather than tenure, Coss believes the house was trying to restore a distinction that made less and less practical sense.



1. Elizabeth Carson Pastan and Stephen D. White, The Bayeux Tapestry and its Contents: A Reassessment (Woodbridge, UK: Boydell Press, 2014).

2. In Medieval Society and the Manor Court, ed. Zvi Razi and Richard M. Smith (Oxford: Clarendon Press, 1996), 69–102.

3. Kings, Lords and Peasants in Medieval England: The Common Law of Villeinage in the Twelfth and Thirteenth Centuries (Oxford: Clarendon Press, 1980).

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