¹ Earlier versions of this paper were presented at the Anglo-American Historical Conference at London University in July of 1983 and at a conference organized under the direction of Patrick Geary at the University of Florida on ‘The Structure of the Aristocracy in Feudal Europe 900–1200’ in April of 1985. I wish to express my gratitude both to those in attendance on these occasions and to Elizabeth A. R. Brown, Katharine M. Gilbert, Paul R. Hyams, and William I. Miller for their helpful comments. None of these people is responsible for any errors of fact or judgment in the following paper. Some of the research on which the paper is based was supported, at various times, by grants from the National Endowment for the Humanities, the American Council of Learned Societies, the American Bar Foundation, and Wesleyan University. The following abbreviations will be used throughout: A = Cartulaire de l'abbaye de Saint-Aubin d'Angers (ed. Bertrand de Broussillon; 3 vols.; Angers 1903); LB = Livre blanc de Saint-Florent de Saumur (Maine-et-Loire H 3713); MV = Cartulaire vendômois de Marmoutier (ed. de Trémault, ; Vendôme 1893); N = Cartulaire de l'abbaye de Noyers (ed. Chevalier, C.; Mémoires de la Société archéologique de Touraine 22; Tours 1872); T = Cartulaire de l'abbaye cardinale de La Trinité de Vendôme (ed. Charles Métais; 5 vols.; Paris 1893–1904); V = Cartulaire de l'abbaye de Saint-Vincent du Mans I 572–1184 (edd. Charles, Robert and d'Elbenne, Menjot; Mamers 1886). Except in the case of LB, references to which give folio numbers, the numbers following each of these abbreviations refer to the numbers of charters, not to pages.Google Scholar

² A 364.Google Scholar

³ MV 32 (1066–75).Google Scholar

⁴ V 481.Google Scholar

⁵ A 430 (1113).Google Scholar

⁶ LB fols. 36bis ^r–37^r. One of Drogo's three sons was callled Mauritius, who should not be confused with the Mauritius in A 430. Throughout the paper the case from LB is called the case of Drogo's sons, while A 430 is referred to as Mauritius' case.Google Scholar

⁷ Although the medieval Latin term calumnia sometimes carried a pejorative connotation, it was often used to refer to well-founded challenges, rather than to spurious ones. On the types of cases refered to here as ‘familial challenges,’ see Auffroy, Henri, Evolution du testament en France des origines au XIII^e siècle (Paris 1899) 471–72; Falletti, Louis, Le Retrait lignager en droit coutumier français (Paris 1923) 12–61 passim; de Laplanche, J., La Réserve coutumière dans l'ancien droit français (Paris 1925) 66–114 passim; Bloch, Marc, Feudal Society (tr. Manyon, L. A., 1961; rpt. Chicago 1962) 132 and n. 2; Bongert, Yvonne, Recherches sur les cours laïques du X^e au XIII^e siècles (Paris 1944) 47–48; Duby, Georges, La Société aux XI^e et XII^e siècles dans la région mâconnaise (1953; rpt. Paris 1971) 223–34; idem, ‘The Evolution of Judicial Institutions: Burgundy in the Tenth and Eleventh Centuries,’ in idem, The Chivalrous Society (tr. Postan, Cynthia; Berkeley 1977) 20; idem, ‘Lineage, Nobility and Knighthood: The Maconnais in the Twelfth Century — A Revision,’ in ibid. 71; White, Stephen D., “‘Pactum … Legem Vincit et Amor Judicium”: The Settlement of Disputes by Compromise in Eleventh-Century Western France,’ American Journal of Legal History 22 (1978) 281–308; idem, Custom, Kinship and Gifts to Saints: An Essay in the Laudatio Parentum in Western France, c. 1050 to c. 1150 (Chapel Hill 1988) esp. ch. 3; Weinberger, Stephen, ‘Les conflits entre clercs et laïcs dans la Provence du XI^e siècle,’ Annales du Midi 92 (1980) 269–79. Although women were occasionally involved in familial challenges as litigants or in other ways, the lay disputants in such lawsuits were usually male.Google Scholar

⁸ Milsom, S. F. C., Historical Foundations of the English Common Law (2nd ed.; London 1981); idem, The Legal Framework of English Feudalism (Cambridge 1976). Palmer, Robert C., ‘The Feudal Framework of English Law,’ Michigan Law Review 79 (1981) 1130–64; idem, ‘The Origins of Property in England,’ Law and History Review 3 (1985) 1–50; idem, ‘The Economic and Cultural Impact of the Origins of Property: 1180–1220,’ Law and History Review 3 (1985) 375–96. Some of the arguments made in Milsom's two books appear in Milsom, S. F. C., ‘Law and Fact in Legal Development,’ Toronto Law Journal 17 (1967); and idem, ‘Introduction,’ in Pollock, Sir Frederick and Maitland, Frederic William, The History of English Law before the Time of Edward I (2nd ed. [1898]; rpt. Cambridge 1968) xxiii–lxxiii. As Paul Hyams has pointed out (‘The Common Law and the French Connection,’ in Proceedings of the Battle Conference on Anglo-Norman Studies 4 [1981] 77–92 [text] and 196–202 [notes], at 79–80), Milsom's argument that in earlier medieval legal proceedings distinctions between ‘law’ and ‘fact’ were not routinely made was, in certain respects, anticipated in Cheyette, Fredric L., ‘Suum cuique tribuere,’ French Historical Studies 6 (1970) 287–99; and idem, ‘Custom, Case Law and Medieval Constitutionalism: A Reexamination,’ Political Science Quarterly 78 (1963) 362–90. For a later statement of Cheyette's views, see idem, ‘The Invention of the State,’ in Sullivan, Richard E. et al., Essays in Medieval Civilization: The Walter Prescott Webb Memorial Lectures (edd. Lackner, Bede Karl and Philip, Kenneth Roy; Austin 1980) 143–78. For valuable comments in earlier medieval legal proceedings see also Reynolds, Susan, Kingdoms and Communities in Western Europe, 900–1300 (Oxford 1984).Google Scholar

⁹ In our second case, Nihardus cannot be considered, strictly speaking, as an heir. See below, text at nn. 107–13.Google Scholar

¹⁰ Inheritance and, at least by implication, disinheritance have been treated by English legal and political historians in various discussions of fief-holding and politics. In addition to the works of Milsom and Palmer cited above in n. 8, see Thorne, S. E., ‘English Feudalism and Estates in Land,’ Cambridge Law Journal n.s. 6 (1959) 193–209; Holt, J. C., ‘Politics and Property in Early Medieval England,’ Past and Present 57 (1972); idem, ‘Feudal Society and the Family in Early Medieval England: I. The Revolution of 1066,’ Transactions of the Royal Historical Society 5th ser. 32 (1982) 193–212; idem, ‘Feudal Society and the Family in Early Medieval England: II. Notions of Patrimony’ [abbreviated hereafter as ‘Patrimony’], Transactions of the Royal Historical Society 5th ser. 33 (1983) 193–220; White, Stephen D., ‘Succession to Fiefs in Early Medieval England,’ Past and Present 65 (1974) 118–27. On the heritability of fiefs in France, see below, n. 156.CrossRefGoogle Scholar

¹¹ Throughout this paper, the term ‘ancestor’ is used to refer to the person whose heir an heir was or claimed to be.Google Scholar

¹² Milsom, , Historical Foundations 38.Google Scholar

¹³ For a general discussion of early common law actions, see Milsom, , Historical Foundations 119–51. For more detailed discussions, see idem, Legal Framework; and the works of Palmer cited above in n. 8.Google Scholar

¹⁴ Milsom, , Legal Framework 46; see also 17, 38–39, 45, 52, 60, 62, 65, 104. On Milsom's views about this kind of world, see Palmer, , ‘Feudal Framework’ 1134–35. Palmer prefers to speak of ‘a truly feudal world,’ which he equates with Milsom's ‘truly seignorial world’: ‘Feudal Framework’ 134, 135, 136, 137. Before the 1190s, according to Palmer, , ‘feudal relationships’ constituted ‘the primary bond structuring [English] society’: ‘Origins of Property’ 1, 7.Google Scholar

¹⁵ For a highly appreciative yet critical assessment of Milsom, , Legal Framework, see the review by Hyams, Paul R. in English Historical Review 83 (1978) 856–61. For other reviews of the same book, see the references in Palmer, , ‘Feudal Framework’ 1131 n. 2. For other valuable comments on Milsom's arguments, see Hyams, , ‘The Common Law and the French Connection.’Google Scholar

¹⁶ See below, n. 18.Google Scholar

¹⁷ The second edition of Historical Foundations provides the clearest introduction to Milsom's views.Google Scholar

¹⁸ Palmer, , ‘Feudal Framework’ gives a lucid exposition of Milsom's main argument in Legal Framework . In this review-article and in ‘Origins of Property’ and ‘The Economic and Cultural Impact of the Origins of Property’ Palmer extends and modifies certain parts of Milsom's original thesis.Google Scholar

¹⁹ Milsom, , Historical Foundations 38.Google Scholar

²⁰ Milsom often uses the term ‘seignorial court’ to refer to the court that a feudal lord held for his tenants by knight service. Other terms for the same kind of court are ‘feudal court’ and ‘honorial court.’Google Scholar

²¹ For the claim that seignorial courts exercised ‘sovereign’ powers, see Milsom, , Legal Framework 36, 41, 42. According to Frank Stenton the Anglo-Norman honor was a ‘self-contained feudal community’ (First Century of English Feudalism 1066–1166 [2nd ed.; Oxford 1961] 55) and ‘a feudal state in miniature’ in whose affairs the King did not intervene: First Century 51. On Milsom's use of Stenton's work, see below, nn. 39 and 202 and the text accompanying each note.Google Scholar

²² Historical Foundations 120. For a different picture of the same courts, see the article by Brand and Hyams cited below in n. 189.Google Scholar

²³ Historical Foundations 38–39. See also Legal Framework 2 and 4.Google Scholar

²⁴ Historical Foundations 39. Neither Milsom nor Palmer discusses the workings of ordeals. On this subject, see Hyams, Paul R., ‘Trial by Ordeal: The Key to Proof in the Early Common Law,’ in On the Laws and Customs of England: Essays in Honor of Samuel E. Thorne (edd. Arnold, Morris S. et al.; Chapel Hill 1981) 90–126.Google Scholar

²⁵ Historical Foundations 39.Google Scholar

²⁶ Historical Foundations 39.Google Scholar

²⁷ This idea is treated separately in Milsom, , ‘Law and Fact.’ See below, n. 149.Google Scholar

²⁸ Because Milsom provides few dates in his discussion of earlier medieval trials, it is often difficult to establish the precise chronological scope of his claims about how lawsuits were conducted prior to the development of common law remedies. In the articles cited above in n. 8, Palmer moves toward providing a more precise chronology.Google Scholar

²⁹ Historical Foundations 4.Google Scholar

³⁰ In Palmer's view, the question of how tenants — or, by implication, heirs — regarded their own claims is irrelevant to the question of how legal historians should now characterize those claims. ‘One who lost his land by disciplinary action or warfare would feel himself wronged, regardless of the merits; real life knows few stoics’: ‘Origins of Property’ 7.Google Scholar

³¹ The heir, in other words, was in no position to undertake legal action against third parties for the recovery of what he himself may have considered his inheritance: Milsom, , Historical Foundations 100–101; idem, Legal Framework 41–42.Google Scholar

³² Palmer, , ‘Feudal Framework’ 1134. This argument of Palmer's implies that studies on the so-called ‘practice’ of inheritance (see, for example, DeAragon, RaGena, ‘The Growth of Secure Inheritance in Anglo-Norman England,’ Journal of Medieval History 8 [1982] 381–91) do not necesssarily reveal very much about ‘inheritance’ in a technical, legal sense: ‘Feudal Framework’ 1134. In a theoretical discussion, however, Roberto Mangaberia Ungar argues that ‘for customary law, the issue of what in fact happens can never be kept clearly separate from the question of what ought to be done’: Law in Modern Society: Toward a Criticism of Social Theory (New York 1976) 49.Google Scholar

³³ Palmer, , ‘Origins of Property’ 4 n. 10. Attacking Holt's views on the heritability of fiefs (see the articles cited above in n. 10), Palmer insists that ‘social ideas about inheritance were controlled by social ideas about the lord's authority’: ‘Origins of Property’ 4 n. 10. Brand and Hyams suggest, however, that ‘social ideas about the lord's authority’ might also have been controlled by ‘social ideas about inheritance.’ See text below, at n. 189.Google Scholar

³⁴ Milsom, , Historical Foundations 100–101; idem, Legal Framework 36–37.Google Scholar

³⁵ Palmer, , ‘Feudal Framework’ 1134–35. While acknowledging that ‘the feudal relationship involved profound mutual obligations’ (‘Origins of Property’ 4), Palmer also insists that feudal tenants were subordinated ‘in all things’ to the lords to whom they did homage (‘Origins of Property’ 4) and that the control exercised by lords over their feudal tenants was only ‘moderated’ by mere ‘politico-moral considerations’: ‘Origins of Property’ 5. In this article, Palmer presents two complementary, yet distinct arguments against the view that twelfth-century feudal tenants had veritable property rights in the fiefs they held: First, ‘property rights were inherently antithetical to feudal holdings’: ‘Origins of Property’ 7. Second, ‘property derives from the state; it cannot exist prior to the state’: ‘Origins of Property’ 7.Google Scholar

³⁶ Palmer, , ‘Feudal Framework’ 1134–35; italics added.Google Scholar

³⁷ See, for example, Palmer's statements, cited above in n. 35, about property rights and the state. A similar method of argument is used by the same author when he insists that ‘reliance on “mine–yours” terminology results in an inadequate view of the nature of property’: ‘Origins of Property’ 7 n. 27.Google Scholar

³⁸ In ‘Origins,’ for example, Palmer supports statements about feudal relationships only by citing evidence postdating the accession of Henry II in 1154: ‘Origins of Property’ 4–5. This method is implicitly supported by his claim that ‘feudal relationships remained vital in England into the 1190s’: ‘Origins of Property’ 7. But to provide fully convincing support for the practice of using Angevin texts as evidence about ‘the truly seignorial world,’ one would have to demonstrate empirically that feudal relationships did not change significantly during the course of the twelfth century.Google Scholar

³⁹ Milsom, , Legal Framework 8. See Stenton, , First Century esp. ch. 2.Google Scholar

⁴⁰ Stenton, , First Century 42.Google Scholar

⁴¹ Stenton, , First Century 45.Google Scholar

⁴² Stenton, , First Century 42–47.Google Scholar

⁴³ See below, n. 184 and accompanying text.Google Scholar

⁴⁴ Some of the clearest evidence for the existence of feudal tenure in these regions can be found in charters indicating either that a gift to an abbey was approved by the donor's lord or that a gift made without the approval of the donor's lord became the subject of a calumnia initiated by the lord. Evidence of this kind is discussed in White, , Custom, chs. 2–4.Google Scholar

⁴⁵ The question of why scribes at such abbeys as Saint-Aubin and Marmoutier should often have provided so much more detail about disputes than did their Anglo-Norman counterparts merits separate investigation.Google Scholar

⁴⁶ Hyams, , ‘The Common Law and the French Connection.’ Google Scholar

⁴⁷ See below, sections III and VII.Google Scholar

⁴⁸ See Milsom, , Legal Framework 90, 122–24, 126, 127.Google Scholar

⁴⁹ These comments and subsequent ones are based on preliminary surveys of eleventh- and twelfth-century disputes involving the monasteries of Saint-Aubin d'Angers, Marmoutier, Noyers, La Trinité of Vendôme, and Saint-Vincent of Le Mans. These cases have been compared with similar ones involving other abbeys in this region, including Saint-Florent near Saumur.Google Scholar

⁵⁰ See Reynolds, Susan, ‘Law and Communities in Western Christendom, c. 900–1140,’ American Journal of Legal History 25 (1981) 205–24.Google Scholar

⁵¹ On negotiation, see Roberts, Simon, Order and Dispute: An Introduction to Legal Anthropology (Harmondsworth, Middlesex 1979) 72; idem, ‘The Study of Dispute: Anthropological Perspectives’ in Disputes and Settlements: Law and Human Relations in the West (ed. Bossy, John; Cambridge 1984) 1–24 at 11–12; and Gulliver, P. H., Disputes and Negotiations: A Cross-Cultural Perspective (New York 1979) 1–2. As Roberts notes, legal anthropologists have sometimes used slightly different terms and typologies: Order and Dispute 69.Google Scholar

⁵² V 459 (end of the 11th century). For other examples of negotiation, see A 750 (after 1097); T 166 (1063); V 271 (1100–10), 449 (1103–25), 684 (1100–20), 723 (1100–20).Google Scholar

⁵³ Roberts, , Order and Dispute 72–77; idem, ‘Study of Dispute’ 12.Google Scholar

⁵⁴ V 249 (1110–16). For other examples, see A 127 (1060–81), 319 (ca. 1099), 626 (1082–1106); V 105 (1110–20); T 74 (1047), 134 (1060), 322 (1066–85).Google Scholar

⁵⁵ On adjudication, see Roberts, , Order and Dispute 77–79; and idem, ‘The Study of Dispute’ 13.Google Scholar

⁵⁶ Disputes over properties held in the Vendômois by Marmoutier were brought before the following sorts of people: the bishop of Chartres (MV 2); the count of Vendôme (MV 31, 104); the lord of Château-Renault (MV 37, 52, 172; MV Appendix 21); the lord of Lavardin (MV 128); the lord of Montoire (MV 53, 87). Among those who adjudicated cases involving Saint-Aubin were the bishop of Angers (A 112); the bishop of Le Mans (A 340); the count of Anjou (A 178, 939); the lord of Malicorne (A 329); the lord of Durtal (A 300, 319). For cases in which one or another of these individuals heard cases without the participation of any court, see A 231, 327, 112.Google Scholar

⁵⁷ See, for example, A 65, 90, 216, 246, 303, 362, 368, 369, 372, 387, 905.Google Scholar

⁵⁸ Of the authors whose discussions of familial challenges are cited above in n. 7, Bongert focuses largely on adjudication, while the others deal, at least to some extent, with mediation and negotiation. In writings on England, non-adjudicatory methods of dispute-processing are not closely considered by Milsom or Palmer but have been treated, for example, in the works cited below in n. 185.Google Scholar

⁵⁹ Precise statistical findings about how often different methods of dispute-processing were used have only limited value.Google Scholar

⁶⁰ This statistical generalization seems valid, provided that we can assume that monks had an interest in recording the most authoritative decisions relating to their abbey's land and were therefore particularly likely to keep track of court judgments in their abbey's favor.Google Scholar

⁶¹ Cheyette, , ‘Suum cuique tribuere’ 292.Google Scholar

⁶² The existence of two-, three-, and four-tiered tenancies in these regions is most clearly revealed in the two kinds of charters mentioned above in n. 44.Google Scholar

⁶³ ‘Origins of Property’ 7.Google Scholar

⁶⁴ For examples of cases judged by the latter kind of ‘court,’ see the cases cited above in n. 57.Google Scholar

⁶⁵ On the absence of such rules in France during this period, see Bongert, , Recherches 57–71; and Cheyette, , ‘Suum cuique tribuere’ 292.Google Scholar

⁶⁶ See Bongert, , Recherches 57–71.Google Scholar

⁶⁷ This hypothesis seems consistent with Duby's findings about courts in the Mâconnais, : ‘The Evolution of Judicial Institutions’ 20–23.Google Scholar

⁶⁸ See Cheyette, , ‘Suum cuique tribuere’; and Duby, , ‘The Evolution of Judicial Institutions’ 20–23.Google Scholar

⁶⁹ See below, text at n. 151.Google Scholar

⁷⁰ See, for example, the case of Hugo, discussed below.Google Scholar

⁷¹ See, for example, the case of Mauritius, discussed below.Google Scholar

⁷² See White, , ‘“Pactum”’ 293–94, whose argument depends heavily on the one set forth in Cheyette, , ‘Suum cuique tribuere.’Google Scholar

⁷³ On this problem see Gulliver, P. H., ‘Case Studies of Law in Non-Western Societies: Introduction’ in Law in Culture and Society (ed. Nader, Laura; Chicago 1969) 11–23 at 22.Google Scholar

⁷⁴ See above, text at n. 54.Google Scholar

⁷⁵ See Case 4 in White, Stephen D., ‘Feuding and Peace-Making in the Touraine around the Year 1100,’ Traditio 42 (1986) 195–263 at 229–34.Google Scholar

⁷⁶ Legal anthropologists sometimes distinguish between two different sorts of adjudication, one carried out by arbitrators and the other by adjudicators. According to Roberts, for example, ‘The arbitrator derives his authority to decide the dispute from the invitation of the disputants themselves, who have voluntarily submitted to his decision; while the adjudicator, who derives his authority from some office in the community, intervenes to impose a decision by virtue of that office rather than by the invitation of the disputants’: Order and Dispute 70. Efforts to distinguish between different kinds of third parties are bound to be frustrated when we cannot tell whether third parties truly possessed institutionalized power. This problem is particularly intractable in cases where there must have been disagreement about the extent or even the existence of the third party's institutionalized power.Google Scholar

⁷⁷ T 134 (1060).Google Scholar

⁷⁸ See, for example, the cases cited above in n. 57.Google Scholar

⁷⁹ Claimant's court: A 861. Abbey's court: A 97, 105, 191.Google Scholar

⁸⁰ See V 459.Google Scholar

⁸¹ Cases of this type are legion.Google Scholar

⁸² Whereas only 20 to 25 per cent of the total sample of Saint-Aubin cases is made up of disputes ending in clear-cut victories for one side or the other, about 50 per cent of all adjudicated cases had this sort of outcome. The same finding also indicates, of course, that half of all adjudicated disputes led to compromises. In this particular instance, statistical calculations have the virtue of showing that it was not unheard-of for adjudication to result in compromises, rather than judgments.Google Scholar

⁸³ On Milsom's claim that feudal lordships were ‘sovereign,’ see above, n. 21 and below, n. 193.Google Scholar

⁸⁴ Milsom, , Legal Framework 2–3; Palmer, , ‘Feudal Framework’ 1130, 1132.Google Scholar

⁸⁵ On documents of this kind, see, for example, Duby, Georges, Le Chevalier, la femme et le prêtre: Le mariage dans la France féodale (Paris 1981) 101. For examples, see, in addition to the disputes discussed below, the seven cases analyzed in White, , ‘Feuding and Peace-Making.’Google Scholar

⁸⁶ There is no clear evidence that these two lords had any continuing relationship with Vivianus or with Vivianus' wife, son, or son-in-law. Vivianus, however, witnessed on behalf of Hucbertus' father, Radulfus, Viscount of Maine, a complex transaction between Radulfus and Saint-Aubin concerning the church of Luché: A 355. Later, Hucbertus gave up a calumnia concerning the rights in the same church that had previously been conveyed to Saint-Aubin by his father, Radulfus: A 356. At most these findings could support the hypotheses that Vivianus was a client of Radulfus' son and successor, Hucbertus, and that Hucbertus had some sort of indirect tenurial connection with the vineyards at Luché. Connections between Saint-Aubin, on the one hand, and both Hucbertus and Rotbertus, on the other, are better documented. During the period when Hucbertus was judging the dispute discussed in the text, he also confirmed the rights of Saint-Aubin over a chapel at Le Lude and in any other properties that the monks might later acquire in his casamentum: A 823. Rotbertus the Burgundian acted as a ‘judge’ in three different disputes involving Saint-Aubin (A 265, 329, 879), settled disagreements of his own with the monks (A 289, 381), made gifts to the abbey (A 880), and confirmed all gifts that had been made to Saint-Aubin from his fiefs at Durtal, Le Lion-d' Angers, Brion, Pincé, and Château-du-Loir: A 880.Google Scholar

⁸⁷ ‘Denarraverunt itaque calumpnie suae ut sibi videbatur rectitudinem Aremburgis et Rigaldus ac Sevinus’: A 364.Google Scholar

⁸⁸ ‘Aremburgis autem jussa a judicibus dicere quid calumpniabatur: “Ego,” ait, “ideo in eas calumpniam infero vineas, quia quando vir meus Vivianus duxit me in uxorem, donavit mihi illas in dotarium”’: A 364.Google Scholar

⁸⁹ ‘“Et ego,” ait Rigaldus, “quia quae patris mei fuerunt, mea post ejus decessum esse debebant”’: A 364.Google Scholar

⁹⁰ “‘Ego,” ait Sevinus, “nil ad presens calumpnior; sed tamen sonare volo quod et heredes mei, si ad eos res Viviani, avi sui, hereditario jure descenderint, has vineas eos non habere facile non erit. Quando tamen Vivianus dedit michi filiam suam, et vineas dedit mihi ad faciendum et accipiendum ad medietatem’”: A 364.Google Scholar

⁹¹ See above, n. 87, and below, nn. 94, 95. For other references in charters of Saint-Aubin to narrationes or to the act of narrating, see A 70 (1067–1109), 187 (1067–81), 329 (before 1096), 388 (1082–1106), 414 (1090–1116), 878 (1082–1106). For a reference to a narratio in a charter of Marmoutier, see MV 31 (1050–60). On English narrationes, see Milsom, , Historical Foundations 39–42.Google Scholar

⁹² ‘His omnibus objectionibus respondit solus Vivianus’: A 364. On Nihardus' case, see the text at nn. 107–13. In an earlier dispute between the monks of Saint-Aubin and Vivianus, the latter had promised to appear on a specified day with his warrantor but had failed to do so: A 362 (1061–81). For cases in which warrantors appeared, see MV 92, 172; A 300, 892; V 163, 252, 740. On English warranty, whose earlier history has been examined much more closely than that of French warranty, see Hyams, Paul, ‘Warranty and Good Lordship in Twelfth-Century England’ (Humanities Working Paper 116, California Institute of Technology; Pasadena 1986) and the literature he cites in n. 4. A revised version of this paper will appear in Law and History Review.Google Scholar

⁹³ A 364.Google Scholar

⁹⁴ ‘Ad haec respondit Aremburgis, uxor Viviani: “Vera quidem sunt, domini, omnia quae vir meus de vineis enarravit; sed ideo ego illas calumpnior, quia ille donavit unum arpennum monachis Majoris Monasterii illarum quas mihi dedit in scambium”’: A 364.Google Scholar

⁹⁵ ‘His auditis, judices responderunt: “Audivimus, domina, narrationem viri vestri et responsionem vestram ac filii vestri et generis vestri, et per justum judicamentum vobis omnibus judicamus, quod secundum illius dictum et vestrum responsum, nullum penitus in vineis habetis rectum. Non enim Vivianus, per quem vos clamatis, in eis unquam rectum habuit, et sicut ille secundum hoc quod hic, nobis audientibus vobisque non contradicentibus, enarravit, injuste emit de servo Sancti Albini super calumpniam monachorum, injuste tenuit quandiu tenuit, injuste aut vobis aut alii[s] donavit eas aut condonavit. Et ideo juste judicantes inter vos, affirmamus vobis quod nullus vestrum, secundum quod vos dixistis illique responderunt, rectum aliquod in vineis clamare potest”’: A 364. This judgment was made before four witnesses, including two men of Saint-Aubin.Google Scholar

⁹⁶ What follows consists of either loose translation or close paraphrase of the introductory sections of A 430.Google Scholar

⁹⁷ The verbs used by the scribe are calumpniari cepit, resposcebat, and reclamabat.Google Scholar

⁹⁸ ‘Abbas igitur Archembaldus et monachi Sancti Albini … calumpnias ejus evidenti judicio refutaverunt: partim, quia quasdam res poscebat quas non habebant, partim vero, quia, de illis rebus [quas] habebant, tam longo tempore sine ulla calumpnia tenuerant, ut jam inde nulli respondere deberent’: A 430.Google Scholar

⁹⁹ Because records of monastic litigation indicate that the lay adversaries of abbeys such as Saint-Aubin often carried on their disputes by seizing the property under dispute (see MV 6, 32, 108, 128; A 90, 97, 160, 167; V 191, 377, 424, 435; T 74, 89, 166, 259), by threatening the monks and/or monastic dependents (MV 94; A 887), by seizing herds or other movable property (MV 42, 47, 55; T 224; A 284; V 308), and by causing various forms of unspecified damage (MV 11, 92, 169; T 174, 246, 204; A 220, 235, 297, 887; V 369, 563), conflicts of this type clearly bore some resemblance to guerrae in which lay groups opposed one another. In fact, the Saint-Florent document discussed below characterizes the dispute carried on by this abbey's adversary Mauritius as a guerra: see below, n. 129. On guerra in this period, see White, , ‘Feuding and Peace-Making’ and the literature cited above, n. 1.Google Scholar

¹⁰⁰ Other charters show that excommunication by a bishop or pope sometimes constituted an integral part of the disputing process: A 340; V 206; N 221; T 353, 397, 405, 417, 418, 429, 439.Google Scholar

¹⁰¹ On Hucbertus de Campania (or Durtal), see below, nn. 143–45 and accompanying text.Google Scholar

¹⁰² ‘Quapropter apud Duristallum utrique placitaturi conveniunt. Auditis rebus omnibus et optime peroratis, Hucbertus juditium, accepta occasione, distulit. Unde factum est iterum atque iterum, sepe et sepe, pro eadem re predictum castrum supramemoratus abbas cum multis amicorum frequentaret, ubi, post multas lites et contemptiones, maximo juditio congregato, sic res illa finita est’: A 430.Google Scholar

¹⁰³ A 430.Google Scholar

¹⁰⁴ ‘Expositis ergo calumpniis, designati judices interrogant abbatem et monachos utrum, de illis rebus quas Mauritius ab illis expetebat, parentes illius aliquid tenuisse recognoscerent’: A 430.Google Scholar

¹⁰⁵ In the Latin text, the judges' decision, like that of Hucbertus, Viscount of Maine, and Rotbertus the Burgundian, is given in direct discourse.Google Scholar

¹⁰⁶ This agreement was witnessed not only by several men of the abbey, but also by some important men of Angers, including the prepositus of the count of Anjou.Google Scholar

¹⁰⁷ MV 32. For other cases in which a scribe described or reported a clear rationale for a decision reached in an adjudicated case, see MV 161, A 9.Google Scholar

¹⁰⁸ The background of the case is difficult to reconstruct, not only because several different people now had or had once had interests in the disputed mill, but also because Guismandus II cannot always be distinguished from his father, Guismandus I, and because the mill under dispute was close to another mill in which the monks and people related to both Nihardus and Guismandus II had interests: MV 25. The second mill also became the subject of several disputes (MV 23, 24, 29, 30, 31, 34, 173), including a calumnia initiated by Nihardus son of Gislibertus: MV 173. On Guismandus II, see MV 29, 30, 36, 116. On Nihardus, see MV 173. For a genealogical chart on which Guismandus I and Nihardus are represented, along with many of their kin, see Johnson, Penelope D., Prayer, Patronage and Power: The Abbey of La Trinité de Vendôme, 1032–1187 (New York 1981) 192.Google Scholar

¹⁰⁹ ‘[C]alumpniatus est eum [molinum] Nihardus filius Gisliberti, dicens Guismandus non potuisse illum dare, eo quod maritagium fuisset matertere sue, hoc est matris Guismandi’: MV 32.Google Scholar

¹¹⁰ Like some of the other men who were present when this case was discussed, Ingebaldus Brito appears frequently in charters relating to holdings of Marmoutier in the Vendômois, acting sometimes as a witness (MV 7, 9, 20, 25, 27, 29, 30, 31, 33, 47, 50, 64, 69, 82, 83, 86, 90, 115, 118, 119, 166) and sometimes in more prominent capacities (MV 30, 60, 75, 128, 129, 170, 175). He also appears in many charters of La Trinité and is discussed in Johnson, , Prayer, Patronage and Power 21, 89–90, 93. Other people present at the house of Ingebaldus also figure in other charters of Marmoutier: Wlgrinus son of Ingebaldus (MV 9, 11, 19, 60, 75, 82, 86, 90, 115, 128); Hamelinus of Langeais, lord of Montoire (MV 4, 12, 49, 55); Fulcherius de Turre, who was a kinsman of Nihardus and Guismandus II (MV 121); Ascelinus Chotardus (MV 4, 9, 25, 33, 60, 90, 121, 166, 172, 177); Salomon filius Ivonis (MV 9, 11, 25, 27, 29, 60, 90, 162, 172, 175); Gundacorus (MV 75); Rotbertus Brachetus (MV 9); Drogo de Aziaco (MV 4, 23, 26, 28); Hugo filius Salomonis (MV 174); Leufredus forestarius (MV 65); Gaufridus filius Ivonis (MV 82). As the genealogical chart cited above in n. 108 indicates, one of these men, Hamelinus of Langeais, was married to a woman who was Guismandus II's mother's brother's daughter and Nihardus' father's brother's daughter.Google Scholar

¹¹¹ MV 32. For other instances in which witnesses participated in cases processed through mediation or adjudication, see MV 2, 4, 12, 31, 57, 92, 161; T 52, 77, 257; N 100, 125, 151; A 246, 265, 329, 144; V 89, 246, 253, 621, 623.Google Scholar

¹¹² See above n. 110.Google Scholar

¹¹³ ‘[J]udicatum est calumniam ejus [Nihardi] injustam esse. Guismandus enim iste, cui Nihardus modo calumniabatur, emerat molinum tunc quando illas VII libras pro eo reddidit Salomoni, et quod emptio sua erat, poterat eum dare cui volebat sine ulla contradictione’: MV 32.Google Scholar

¹¹⁴ LB fols. 36bis ^r–37^r. The charter has been summarized in Inventaire sommaire des archives départementales antérieures à 1790, Maine-et-Loire, Archives ecclésiastiques II, Abbaye de Saint-Florent de Saumur (ed. Angers, Marc Saché 1926) 512. For a somewhat similar case, which is very fully reported, see A 167.Google Scholar

¹¹⁵ The case of Hugo, discussed below, also concerns a deathbed transaction.Google Scholar

¹¹⁶ As yet, I have been unable to trace Eblo or other third parties mentioned in the charter.Google Scholar

¹¹⁷ ‘Quod abbas Sigo prata … patri illorum solummodo indulserit’: LB fol. 36bis ^r.Google Scholar

¹¹⁸ ‘Ne ille [Drogo] ea heredibus suis relinqueret et monachis Sancti Florentii quorum fuerant et esse debebant cum moreretur restituerit’: LB fol. 36bis ^r.Google Scholar

¹¹⁹ ‘Huto de Salmuro abstulit monachis Sancti Florentii xiiii iuncta pratorum apud Plateam quorum medietatem dedit cuidam Drogoni in feudum’: LB fol. 36bis ^r.Google Scholar

¹²⁰ ‘Verum filii Drogonis clamaverunt sibi iure hereditario prata que viderant tenere patrem suum’: LB fol. 36bis ^r.Google Scholar

¹²¹ If Mauritius had lived to recover the disputed meadows, he might have either granted part of them to one or both of his younger brothers or arranged for Aimericus and Rodulfus to profit in some way from his successful claim against the monks of Saint-Florent.Google Scholar

¹²² For elaborate arguments designed to demonstrate that Norman and Anglo-Norman fiefs were heritable at this time and even earlier, see the articles of Holt cited above in n. 10.Google Scholar

¹²³ On attitudes toward deathbed gifts, see White, , Custom esp. chs. 3 and 5.Google Scholar

¹²⁴ It was not uncommon for those who quitclaimed property to abbeys to receive, in return, money and/or spiritual privileges. Relatives who approved quitclaims sometimes received similar countergifts: White, , Custom esp. chs. 2 and 3.Google Scholar

¹²⁵ On an English warrantor's obligation to provide escambium under these circumstances, see Milsom, , Legal Framework 62–63, 77, 105–106, 111, 174, 183–84; and Hyams, , ‘Warranty’ 5.Google Scholar

¹²⁶ See above, nn. 117–18.Google Scholar

¹²⁷ The process by which it was decided what the ordeal should test and which party should undergo it is not discussed by Milsom or Palmer. See Hyams, , ‘Trial by Ordeal’; and Colman, Rebecca V., ‘Reason and Unreason in Early Medieval Law,’ Journal of Interdisciplinary History 4 (1974) 571–91.Google Scholar

¹²⁸ ‘Quod homo ille probavit salusque portato iudicio apparuit. At filii Drogonis … dixerunt illum coctum esse tortumque monachorum et suum rectum palam venisse’: LB fol. 36bis ^v. The outcome of this ordeal appears to support Peter Brown's contention that ‘an ambiguity lies at the heart of every ceremony of ordeal’ and that an ordeal could be ‘as open-ended as a Rohrschach test’: ‘Society and the Supernatural: A Medieval Change,’ Daedalus 104 (1975) 133–51 at 139, rpt. in his Society and the Holy in Late Antiquity (Berkeley 1982), 302–32 at 315.Google Scholar

¹²⁹ ‘Primogenitus etiam eorum Mauricius nomine guerram in monachos movit et molendinum de Vado concremavit’: LB fol. 36bis ^v.Google Scholar

¹³⁰ For settlements that were reached when a litigant or a litigant's close relative was dying or recently deceased, see, for example, T 85, 91, 112, 202, 267, 268, 433, 492, 493; V 377, 403, 469, 631, 693.Google Scholar

¹³¹ Aimericus and Rodulfus renewed the dispute, ‘dicentes tota prata que Huto apud Plateam habuerat sui iuris esse’: LB fol. 36bis ^v. The brothers' decision to expand the scope of their claim is one of the most puzzling parts of the case.Google Scholar

¹³² Like the outcome in Hugo's case, discussed below, this conclusion to the dispute is open to several interpretations. For other cases in which a battle was first arranged but later called off, see MV 9, 159; MV Appendix 26; T 57, 189, 257; N 24; V 597; A 144, 264, 387, 878. For a case in which a battle was actually held, see MV 87. For cases in which ordeals were proposed or arranged but not held, see MV 31; A 65, 137, 189, 325, 388, 404; N 146, 147, 151, 154, 207. For ordeals that were held, see MV 37; N 101.Google Scholar

¹³³ V 480 (1068–69).Google Scholar

¹³⁴ See above, n. 123.Google Scholar

¹³⁵ ‘Et perrexerunt monachi Sancti Vincentii … placitare in curiam Chardurciarum, et ostenderunt hanc presentem cartulam cum testibus’: V 481. For other cases in which charters were used as evidence, see, for example, MV 4, 57, 128; T 470; N 100; A 70, 120, 325.Google Scholar

¹³⁶ ‘Et adjudicaverunt Hamelinus forestarius et Patricius Pertica et omnis curia, quod ipse puer non deberet calumpniari, necque auffere elemosinam patris sui, sed monachi deberent sibi dare aliquid caritatis’: V 481.Google Scholar

¹³⁷ See below, Section VI.Google Scholar

¹³⁸ See above, n. 110 and accompanying text.Google Scholar

¹³⁹ A 430.Google Scholar

¹⁴⁰ A 291. See also A 302.Google Scholar

¹⁴¹ A 307.Google Scholar

¹⁴² A 288.Google Scholar

¹⁴³ A 315.Google Scholar

¹⁴⁴ A 290, 294, 313, 314.Google Scholar

¹⁴⁵ A 300, 319.Google Scholar

¹⁴⁶ On ‘exceptions’ in common law pleading, see Milsom, , Historical Foundations 57–58, 140–41; and Baker, J. H., An Introduction to English Legal History (2nd ed.; London 1979) 67. Milsom believes that there was no room for exceptions in the ancient pattern of lawsuit: see below, n. 149.Google Scholar

¹⁴⁷ For cases in which a litigant challenged his kinsman's gift on the grounds that he or the person through whom he claimed had not given valid consent to it, see MV 3, 57, 79; T 52, 261. For cases in which gifts were challenged on the grounds that the property given formed part of the challenger's patrimonium or hereditas, see T 79, 143, 372.Google Scholar

¹⁴⁸ On the obligations of heirs to respect their ancestor's gifts in alms, see White, , Custom, esp. chs. 2 and 5.Google Scholar

¹⁴⁹ ‘How much law can there be,’ Milsom asks, ‘when a lawsuit is settled by testing a comprehensive oath affirming the justice of the one cause or the other, however rational or irrational the test?’: ‘Law and Fact’ 2. Milsom's answer is that ‘the kind of law which such a framework can support may be described, in childish terms, as being about claims and not about defenses. The circumstances in which a man is put to answer can be elaborated and classified. But the answer will be an impenetrable denial, its possible basis locked up in the judgment of God’: ‘Law and Fact’ 3. In this sort of system, Milsom maintains, ‘facts were not set out by way of argument or evidence to persuade, because there was no one to be persuaded. [The facts] were an integral part of the lawsuit; and the oath which would be taken by or on behalf of one of the parties and which, by being put to a divine test, would decide the action, was explicitly in affirmation or denial of the whole count. It follows that, while some facts were always asserted in court, no others could emerge so long as litigation was strictly within this mold’: ‘Law and Fact’ 3.Google Scholar

¹⁵⁰ Cheyette persuasively argues that in earlier medieval societies, rules were infrequently articulated clearly or applied systematically and routinely to the facts of lawsuits: ‘Suum cuique tribuere,’ and ‘The Invention of the State.’ His arguments on this point, however, do not rule out the possibility that in certain medieval societies, as in societies studied by legal anthropologists, norms were invoked implicitly in discussions of disputes. After noting that ‘the extent to which … regularities [of behavior] are matched by explicitly articulated rules, and the relative importance which is attached to such rules by members of the group, must be treated as variable,’ Roberts goes on to argue ‘that the comprehension of rules and the importance attached to them is not necessarily related to the degree of explicitness with which they are discussed. In some societies rules are of crucial importance in decision-making and yet few express references are made to them at all. As the anthropologist Fallers has put it, some people “very seldom talk about the law — about the reach of the concept of wrong. They talk instead about the ‘facts’ — about what happened — without articulating the legal significance of these events.” Where this is the case a claim may be made and the facts on which it is based adduced in such a way that the normative proposition on which it is founded is implicit’: Order and Dispute 170–71, citing Fallers, Lloyd, Law Without Precedent (Chicago 1969) 320. It could be argued, of course, that no real law exists when rules are not explicitly invoked and systematically applied. But the issue here is whether there was room in earlier medieval discussions of disputes for normative argument of any kind.Google Scholar

¹⁵¹ For references to cases in which battles or ordeals were either held or canceled, see above, n. 132.Google Scholar

¹⁵² There is no room for such factors in Milsom's and Palmer's model of ancient lawsuits. For remarks on the political dimension of cases settled by ordeal, see Hyams, , ‘Trial by Ordeal.’ Google Scholar

¹⁵³ It is possible, however, that here, as in certain Icelandic cases, litigants and third parties resorted to litigation in court with the knowledge that the case would eventually be settled by compromise: Miller, William Ian, ‘Avoiding Legal Judgment: The Submission of Disputes to Arbitration in Medieval Iceland,’ American Journal of Legal History 28 (1984) 95–134.Google Scholar

¹⁵⁴ It may still be significant, however, that Aremburgis chose to make this argument. Perhaps, under other circumstances, she might have succeeded in getting some property that would counterbalance her loss, either from Saint-Aubin or from Vivianus.Google Scholar

¹⁵⁵ This argument presumably comes from canon law, though it is not clear that only a canonist could have thought of it.Google Scholar

¹⁵⁶ French legal historians have been much less reluctant than some of their English counterparts to conclude that fiefs were heritable by an early date. According to F. Olivier-Martin, for example, ‘c'est un fait certain qu'en France l'hérédité des fiefs s'est introduite très tôt et sans difficulté.’ In support of this contention, he stressed that ‘les très rares contrats d'inféodation qui aient subsisté de l'époque ancienne sont accordés “à tel et à ses hoirs”’: Histoire du droit français des origines à la Révolution (1948; rpt. Paris 1984) 263. Although Maitland, Plucknett, and Stenton all maintained that English fiefs were heritable by an early date, such as 1066 or 1100 (see Thorne, , ‘English Feudalism’ 193–96), Thorne, Milsom, and Palmer all argue that heritability of feudal property only emerged at a later time, perhaps as late as 1200: Thorne, , ‘English Feudalism’ 195. According to Palmer, for example, a grant by a lord ‘to A. and his heirs’ was ‘originally’ nothing more than ‘an undertaking to A. It did not commit the lord to acceptance of any particular person or to heirs in perpetuity’: ‘Origins of Prosperty’ 6 n. 23. Arguing more cautiously, Milsom warns against assuming that a grant made to A. and his heirs ‘at first envisaged an indefinite succession’: Historical Foundations 106. Thorne's position, on which those of Milsom and Palmer are partially based, is similar to theirs: ‘English Feudalism’ 106–107. Although the French evidence considered by Olivier-Martin presumably differs somewhat from the English evidence considered by Thorne, Milsom, and Palmer, the differences between the views of these three writers, on the one hand, and those of Olivier-Martin, on the other, are primarily attributable to definitional, methodological, or theoretical disagreements.Google Scholar

¹⁵⁷ It is possible, however, that Mauritius' claim to his grandfather's lands was initially represented as a claim against the abbot of Saint-Aubin, in whose court the claim was initially judged.Google Scholar

¹⁵⁸ Raoul de Cambrai: Chanson de geste (edd. Meyer, P. and Longnon, A.; Paris 1882) lines 700–701. On the value of this text as an historical source, for certain purposes, see White, , ‘Feuding and Peace-Making’ 205 n. 43.Google Scholar

¹⁵⁹ On disputes of this kind see the works cited above in n. 7.Google Scholar

¹⁶⁰ For a case in which it was argued that a litigant had waited too long to make his challenge, see A 252. For a case in which an abbey's long possession of certain properties was given as a reason why the monks should not have to answer a claim to those properties, see V 74.Google Scholar

¹⁶¹ See, for example, MV 92.Google Scholar

¹⁶² See N 81.Google Scholar

¹⁶³ MV 32 (Nihardus' case) provides an unusually clear statement of the principle that emptiones were freely alienable. In another case (A 189), this principle was invoked but was not necessarily accepted. For evidence suggesting that the principle was far from being generally accepted in eleventh-century France, see Falletti, , Le Retrait lignager 22; and Laplanche, , La Réserve coutumière 87–88.Google Scholar

¹⁶⁴ On settlements of this type, see White, , ‘“Pactum”’ 292–98.Google Scholar

¹⁶⁵ See above, n. 136 and accompanying text.Google Scholar

¹⁶⁶ See The Treatise on the Laws and Customs of the Realm of England commonly called Glanvill (ed. and tr. Hall, G. D. G.; London 1965) VII.1 (p. 71).Google Scholar

¹⁶⁷ For a brief review of the literature on this subject, see White, Stephen D., ‘The “laudatio parentum” in Northern France during the Eleventh and Twelfth Centuries: Some Unanswered Questions,’ American Historical Association: Proceedings, 1977 (Ann Arbor 1978). For a fuller discussion, see White, , Custom esp. chs. 1–3.Google Scholar

¹⁶⁸ See Falletti, , Le Retrait lignager 38–39; Laplanche, , La Réserve coutumière 81, 104–105.Google Scholar

¹⁶⁹ See White, , Custom ch. 5. Another possibility is that the heir had acquired his right by virtue of an earlier grant that had been made to the heir's ancestor and that ancestor's heirs. On grants of this kind, see above, n. 156. On the differences between rights of inheritance and birthrights, see Pollock, and Maitland, , History II 248–55.Google Scholar

¹⁷⁰ On the problems involved in making this distinction when studying certain societies, see, for example, Roberts, , Order and Dispute 170–71. Cheyette makes a similar point when discussing dispute-processing in Languedoc before about 1250: ‘Suum cuique tribuere’ 188.Google Scholar

¹⁷¹ It could be argued that when the heir recovered the property he claimed, no record of this outcome would be likely to survive, unless the abbey later recovered the disputed property. But the fact remains that evidence of such recoveries by heirs is lacking.Google Scholar

¹⁷² ‘Suum cuique tribuere’ 291.Google Scholar

¹⁷³ See above, nn. 60 and 82 and the text accompanying each note.Google Scholar

¹⁷⁴ ‘Suum cuique tribuere’ 290.Google Scholar

¹⁷⁵ This hypothesis is considered in White, , ‘”Pactum’” 303–307.Google Scholar

¹⁷⁶ See Duby, , Le Chevalier 95–115, esp. 101–102. It is important to note that Duby's conception of a seignorial regime differs greatly from that of Milsom and Palmer. For him what is critically important in this kind of social order or mode of production — which he insists on calling ‘seignorial’ rather than ‘feudal’ — is not the fief or the bond between lord and vassal (‘le fief n'a rien à voir ici’), but ‘la seigneurie, la potestas, le droit de prendre dans une aire d'occupation militaire’: Les Trois Ordres ou l'imaginaire du féodalisme (Paris 1978) 189.Google Scholar

¹⁷⁷ These questions are raised, at least obliquely, not only in the writings of Milsom and Palmer cited above in n. 8, but also in the writings of Thorne, Holt, and White cited above in n. 10. They receive fuller treatment in Hudson, John, ‘Legal Aspects of Seignorial Control of Land in the Century after the Norman Conquest’ (diss. Oxford 1988).Google Scholar

¹⁷⁸ The first part of this contention depends, of course, on arguments from silence. But if the lord's court had been the principal forum in which these disputes were heard, we would expect this fact to emerge more clearly in sources that often provide relatively detailed evidence about how claims were handled.Google Scholar

¹⁷⁹ ‘Feudal Framework’ 1135.Google Scholar

¹⁸⁰ ‘Origins of Property’ 7. As Palmer points out, ‘the definitional element in all this is crucial’: ‘Origins of Property’ 7 n. 28.Google Scholar

¹⁸¹ See above, Section III.Google Scholar

¹⁸² This term is employed by Bourdieu, Pierre, Outline of a Theory of Practice (tr. Nice, Richard, 1977; rpt. Cambridge 1985) 40.Google Scholar

¹⁸³ On the disciplinary jurisdiction of lords, see, for example, Milsom, , Legal Framework 1–35; and Palmer, , ‘Origins of Property’ 6–7.Google Scholar

¹⁸⁴ Hyams, Paul R., ‘Henry II and Ganelon,’ Syracuse Scholar 4 (1983) 24–35 at 24–25. Customs belonging to this group prevailed in Normandy, Brittany, Maine, Anjou, the Touraine, and Poitou. See Hyams, , ‘The Common Law and the French Connection’ 81, citing Yver, Jean, ‘Les caractères originaux des coutumes de l'ouest de France,’ Revue historique de droit français et étranger 4th ser. 30 (1952).Google Scholar

¹⁸⁵ Clanchy, Michael, ‘Law and Love in the Middle Ages,’ in Disputes and Settlements 47–67; Stenton, Doris M., English Justice between the Norman Conquest and the Great Charter, 1066–1215 (Philadelphia 1964) 7, 8. On a later period see Powell, Edward, ‘Arbitration and the Law in England in the later Middle Ages,’ Transactions of the Royal Historical Society 5th ser. 33 (1983) 49–67; idem, ‘Settlement of Disputes by Arbitration in Fifteenth-Century England,’ Law and History Review 2 (1984) 21–43.Google Scholar

¹⁸⁶ Hyams, , ‘Trial by Ordeal.’ Google Scholar

¹⁸⁷ Bates, David, Normandy before 1066 (London 1982) 160–61 and nn. 57–58.Google Scholar

¹⁸⁸ ‘Henry II and Ganelon’ 24. On trial scenes in Old French literature, see also Howard Bloch, R., Medieval French Literature and Law (Berkeley 1977).Google Scholar

¹⁸⁹ Brand, Paul A. and Hyams, Paul R., ‘Debate: Seigneurial Control of Women's Marriage,’ Past and Present 99 (1983) 125.Google Scholar

¹⁹⁰ Holt, , ‘Patrimony’ 199.Google Scholar

¹⁹¹ Holt, , ‘Patrimony’ 211.Google Scholar

¹⁹² Holt, , ‘Patrimony’ 215–16.Google Scholar

¹⁹³ If Brand and Hyams are right, moreover, in arguing that the Anglo-Norman lordship was not the sovereign political and legal entity that Milsom and Palmer take it for, then there would be another reason for querying the claim of the latter two that a tenant's heir had nothing more than a personal claim against the tenant's lord to get the tenant's fief. Milsom's and Palmer's arguments on this point appear to depend, in part, on their assumptions about the nature of sovereign states. Because a truly sovereign power cannot, under a certain definition of ‘sovereignty,’ impose legal limits on itself, relations between a sovereign ruler and that ruler's subjects cannot, by definition, be legally regulated and cannot result in the creation of veritable rights that subjects can exercise against the ruler. If lordships were, by this definition, ‘sovereign’ in ‘a truly seignorial world,’ then no tenant or heir could have had a legal right of any kind against his lord. If, however, Brand and Hyams are correct in suggesting that it is inaccurate or misleading to represent lordships as sovereign states and lords as sovereign rulers, then the arguments just given for denying that an heir (or a tenant) had a right to his ancestor's fief lose some of their force.Google Scholar

¹⁹⁴ Earldom of Gloucester Charters: The Charters and Scribes of the Earls and Countesses of Gloucester to A.D. 1217 (ed. Patterson, Robert B.; Oxford 1973) no. 186.Google Scholar

¹⁹⁵ Legal Framework 59. In Milsom's version of this hypothetical case, William secures a writ patent.Google Scholar

¹⁹⁶ Legal Framework 60.Google Scholar

¹⁹⁷ ‘Notum sit omnibus tam presentibus quam futuris quod hec concordia facta fuit inter Hamone(m) de Valonis et Durandu(m) filium Rob(erti) de Toren(eia) coram Will(elm)o comite Gloec(estrie) apud Toren(eiam) de heritagio ipsius Hamonis apud Voisses et apud Plasci quod idem Durand(us) tenuit’: Earldom of Gloucester Charters no. 186.Google Scholar

¹⁹⁸ After the earl restored to Hamo the lands claimed by the latter, Hamo granted Durandus certain rents for life: Earldom of Gloucester Charters no. 186.Google Scholar

¹⁹⁹ The fact that Hamo appears frequently in other Gloucester charters, perhaps as an associate of Earl William, suggests that the outcome of the case may have been significantly influenced by the social positions of the litigants. On the relevance of such factors to the ways in which disputes were handled, see above, Section III; and Hyams, , ‘Henry II and Ganelon.’ Google Scholar

²⁰⁰ Milsom notes settlements of this kind. See, for example, Legal Framework 60.Google Scholar

²⁰¹ ‘Suum cuique tribuere.’ Google Scholar

²⁰² Stenton, , First Century 47–55, where three charters are analyzed.Google Scholar

²⁰³ Glanvill II.3 (p. 23).Google Scholar

²⁰⁴ Glanvill II.3 (p. 23).Google Scholar

²⁰⁵ Glanvill II.3 (p. 23).Google Scholar

²⁰⁶ Glanvill II.3 (p. 25).Google Scholar

²⁰⁷ English Historical Review 83 (1978) 858.Google Scholar