Joshua C. Tate, Power and Justice in Medieval England: The Law of Patronage and the Royal Courts (New Haven: Yale University Press, 2022). ISBN 9780300163834. Pp. xiv, 255. $55 / £45.
Lorren Eldridge, Law and the Medieval Village Community; Reinvigorating Historical Jurisprudence (Abingdon: Routledge, 2023). ISBN 9781032375557. Pp. xiv, 238. $180 / £135.
Joshua Tate, in his reflective, assured study of the early common law, knows to hang a crucial question above the careful parsing of twelfth-century pleadings. The jury system of our modern day, Tate observes, should never be taken for granted. Nor should the fact that it was adopted and fostered by Angevin rulers. “It is quite remarkable that the English kings were willing to give way to ordinary men to decide disputes in which the king might have preferred a specific outcome.”[1]
On the surface, Power and Justice in Medieval England is an accomplished investigation of the writ of quare impedit, invented to allow monasteries the right to seek royal justice in cases involving advowsons, the right to appoint a rector to a religious benefice. As Tate summarizes:
“At some point between 1180 and 1196, after the first two components of the English advowson scheme were already in place, a significant change occurred. Donees were given a remedy of their own: the writ of quare impedit, a remedy that seems to have been designed specifically to meet the needs of religious houses claiming by gift. This time, however, the royal advisers did not turn to Romano-canonical learning but crafted something distinctly English.”[2]
More broadly, this book is a micro-history of how an innovative king and his judges fashioned writs that settled disputes for hundreds of years – in suits heard by royal courts, but in which facts were settled by commoners. Tate’s elucidation of quare impedit addresses the choice of Henry II to share royal power.[3]
Lorren Eldridge’s first book on legal history, Law and the Medieval Village Community, in a very strong debut, shows how and why the jury system could succeed. Eldridge writes to present the medieval English village community as “a functioning legal institution” that operated and evolved over centuries.
“The village community transitioned over time from an oral culture to a predominantly written one, from less formally defined to more rigidly categorized legal statuses and institutions . . . . Responsibilities and solidarities were altered; individual and collective autonomy was increased, reduced, or circumscribed by formal rules; [and] new conditions provoked new conflicts, allegiances, and methods of internal government.”[4]
As Eldridge concludes, “the procedure and substance of the rules in local courts were no ‘mere positive morality,’” as they have been condescendingly dismissed.[5] The manor courts proved so competent and reliable, within their sphere, that their assessment of local customs merited mention alongside those of higher authorities. They supplied their part of the laws and customs of their realm.
An advowson is the right to appoint a parson to a specific benefice. An incorporeal right, it was treated by the common law as a form of property, which could be owned or transferred like a physical asset. When a benefice fell vacant, the advowson owner named a new candidate, with the bishop allowed to reject a candidate who was unqualified.
As Tate explains, quare impedit was the third method provided by Henry to allow the bringing of an action in royal court to determine the rights to an advowson. The first, the writ of right of advowson (the writ of right) offered the opportunity to determine who owned the advowson. The second was the assize of darrein presentment, which allowed a party to sue if he or his ancestor had previously presented a parson to the living. A litigant could use darrein presentment to settle a dispute about the possession of an advowson, and then follow up to prove ownership with the writ of right.
As the system of writs developed, gaps were noted in its coverage. Darrein presentment could not be used by a plaintiff if neither he nor an ancestor had presented a parson. Furthermore, darrein presentment could only settle questions of possession. This assize “could not provide a final answer about who had the superior right to the advowson. Only the writ of right might offer the successful plaintiff assurance that the matter would not be taken up again.”[6] But the writ of right could only settle title for the future; it did not answer the question of who was to succeed to an advowson that was vacant in the present; and the methods it offered for trying title were either cumbersome (the two-stage procedures of the grand assize) or unsuitable for a churchman (trial by battle). Moreover, the writ of right posed a treacherous balancing test – a deciding not who held the right to the advowson, but which litigant had the greater right.
The English church of Henry’s day had not clearly emerged from an age in which individual churches were founded by barons, a priest held his benefice in return for ecclesiastical services to his lord, the priest’s son expected to inherit his father’s living, and church-founders and bishops battled over the right to name a priest’s successor. Increasingly, patrons had begun to donate advowsons to religious houses. However, as Tate elucidates, should a challenge be raised to a monastery’s candidate, the monastery often lacked a way to have the issue heard in the royal courts. A religious house “usually traced its right in an advowson back to some gift by a layman, and in many cases that layman, and not the religious house, had made the last presentation.”[7]
Quare impedit gave to a monastery (or any other person who held the advowson by gift) a way to reach the royal courts. The writ directed that the sheriff command the defendant that justly and without delay, he permit the plaintiff to present a suitable parson to a church living that is vacant, “and as to which he complains that [the defendant] impedes him unjustly.” The defendant’s failure to do so was to be answered by a summons to appear before the king’s justices at Westminster. In the plea rolls, the charge of unjustly impeding the plaintiff would be phrased “as a question, quare impedit, thus giving the writ its familiar name.”[8]
The early case-law indicates that monasteries were the primary litigants to rely upon quare impedit. Tate infers that such cases may have arisen when a donor wanted to donate a family church to a religious house, while retaining some control – perhaps to make an appointment at a later date – while a monastery claimed the gift of the advowson “as attested in a charter, and the dispute turned on the timing, validity, or effect of the gift.”[9]
Tate concludes that the chancery lawyers of Henry’s day – familiar with the Roman legal system’s categories of proprietas and possessio, equally familiar with the common law’s understanding of ownership and seisin – did not draw directly on classical jurisprudence. “After the creation of quare impedit, the donee had something that looks distinct from either ownership or possession,” Tate concludes, “a right that is good against the world unless and until it is revoked by the act of someone else.” Bracton called it quasi seisin. “Quasi seisin may not fit into Roman categories, but it made sense to the English justices, who seem to have wanted to give the donee a broad claim while allowing the donor to have a change of heart.”[10]
Monasteries were notorious for faking charters. Tate suspects that the judges were suspicious of charters that were too convincing – charters granting the advowson to the monastery, but where the church-founder had later named another parson; “or when a string of charters existed without additional evidence of transfer of seisin.”[11] The judges articulated rules to screen out such dubious evidence. One was the rule of subsequent presentation: when a donor, after making the alleged gift, had presented another candidate who was instituted as parson, that subsequent presentation revoked the alleged earlier gift. “Religious houses would likely have preferred to have a full right of ownership in their advowsons, so that a subsequent presentation by the donor would be irrelevant,” Tate reasons. By “extending the rule of subsequent presentation to quare impedit suits . . . the royal justices were working out a compromise that was more acceptable to lay donors.” That compromise took into account “the specific needs of English society at the time and the conflict between religious houses and laymen over the control of parochial appointments.”[12]
In Law and the Village Community, Loren Eldridge reviews the differing visions that legal historians have entertained of “the village community,” and then unsparingly interrogates these against a broader, closer, generationally accumulating understanding of the historical record. Her opening chapters pit Sir Henry Maine against Frederic Seebohm, Frederic Maitland against Sir Paul Vinogradoff – the politicized subtext of Victorian jurisprudence against the twentieth-century penchant for seeing communities and custom through the lens of collective agricultural labor. (Eldridge gives a quick nod of praise to the Toronto School, along with its critics, for their interest in peasants’ mentalities and culture of work; and it is good to see Eileen Power and her work remembered.)
Eldridge offers this assessment of prior scholars as a series of cautionary tales. She argues that law as actually practiced in the village community may vary – has indeed often varied – from the idea of “law” as envisioned by theory or doctrine.[13]
Eldridge writes lucidly. She offers sharp criticism, in every sense. Most notably, she quietly savages Maitland – for faulting village authorities as insufficiently ‘lofty’ to make holdings that count as law, for doubting that local communities could adequately make or enforce collective judgments, while ignoring the substantial quiet power that communities could exercise; and not least for writing that writing that “manorial custom very rarely, if ever, dignifies itself with the name of law.”[14]
In a brilliant final chapter, Eldridge maps what the records suggest about the actual workings and ambitions of village and manorial governments. Her villagers are much more formidable than Maitland’s. Their manor courts defined customs – “practical solutions to problems that particular community had encountered, and to reflect collective priorities.” Those courts could articulate local usages as custom so authoritatively that their rulings would be applied by common law courts. Like royal courts, they named juries to settle boundaries, set dates for the payment of fines and debts, and fix damages.[15]
Their view of community could be broad. “Self-government and law creation by the village community with both local and wider effect substantially qualified the supposed status of the unfree as non-existent. . . . Local custom gave the unfree a way to engage with the common law.” Villeins elected the reeve who managed their work, and the farmers and laborers of the community watched not only the reeve, but also the bailiff and steward above, keen to report peculation. It was not only tenants and villeins who valued manor courts: “However important the lord’s will was at common law, [lords] not only left the workings of custom to communities, but also complied with those customs.”[16]
These books can be read not only as examples of how Henry II brought reform to the common law, but as surveys of what his people wanted from the crown. What Henry supplied to England’s abbots and church-founders, with the advowson writs, was what he supplied to the villagers, with the assize of novel disseisin: the opportunity to seek justice in his courts, together with good reason to sue there.
Henry knew well the importance of advowsons – how they meant wealth to monasteries and offered barons patronage to dispense. In the earliest years of his reign, Henry reached out to command that the bishop of Norwich return the advowson of the church at Ranworth to the abbey of Saint Benet at Holme. In the first clause of the Constitutions of Clarendon (1164), an attempt to assert royal rule over the English church, Henry ordered that all disputes over advowsons and presentations be decided in his courts. The writ of right, darrein presentment, and finally quare impedit marked his efforts to write law for this area – to give his subjects a law to govern patronage.[17]
Even more critical as Henry rightly saw it, must have been the support of England’s village communities, subjects concerned with their rights to work farmland and pasture. For them he issued the assize of novel disseisin. The pains that Henry and his counselors took in drafting this passed into legend (multis vigiliis excogitatam et inventam, Bracton would put it).[18]
It is well-known that the idea of settling the dislocations of King Stephen’s reign, long years of simmering civil war, lay behind the assize of novel disseisin. It is less well appreciated that Henry owed the end of the civil war to the people of England. In the summer of 1153, when Henry and Stephen tried to square off against each other in a final decisive battle, the two royal claimants discovered that their barons had signed private armistices with each other, that their vassal armies simply would not fight each other, and that their allies in the church were keen to negotiate a solution. Unable to win a victory, Henry and Stephen forged a peace, which brought Henry to the throne as Stephen’s heir.[19]
Henry had learned the importance of winning his subjects’ hearts and minds. For him, for them, gratitude and self-interest worked together. Novel disseisin offered a way for English landholders to regain property from which they had been wrongly dispossessed, and gave them lasting reason to support Henry. Centuries later, across a generation of war in Afghanistan, Western attempts to bring regime change were stymied by the pre-war success of the Taliban court system; every landholder who had a Taliban court judgment in his favor had a vested interest in ensuring the Taliban’s eventual return to power.[20]
With novel disseisin, with darrein presentment and quare impedit, came the jury. The procedure of the proceedings – featuring jurors able to speak to the facts of a dispute, whose oath provided the basis for a royal judge’s action – allied the leadership cadres of English communities ever more closely with the Angevin regime. As James Masschaele has perceptively written:
“The jury was particularly well suited to dealing with the divisions and prevailing mistrust that characterized a country that had experienced a long civil war. . . . By giving jurors a stake in how the verdict was reached, Henry also gave them a stake in seeing that the verdict stuck when his justices left the county. The jurors’ duty to enforce the assize was often quite tangible, including the requirement of being physically present at the contested property to help readmit the tenant.”[21]
Eldridge concludes: “Whatever the reasons for using juries, it was not only lords who profited from making use of local knowledge, but the common law as a whole.”[22] Her book shows that the ordinary people of England had the strength and will to decide disputes, even those in which kings had an interest.
[1] Joshua C. Tate, Power and Justice in Medieval England: The Law of Patronage and the Royal Courts (New Haven: Yale University Press, 2022), 4.
[2] Tate, 151.
[3] Henry’s reforms are discussed by Joseph Biancalana, “‘For Want of Justice’: Legal Reforms of Henry II,” Columbia Law Review 88 (1988): 433-536.
[4] Lorren Eldridge, Law and the Medieval Village Community; Reinvigorating Historical Jurisprudence (Abingdon: Routledge, 2023), 161-2.
[5] Eldridge, 214.
[6] Tate, 75.
[7] Tate, 50.
[8] Tate, 38.
[9] Tate, 50.
[10] Tate, 85.
[11] Tate, 153.
[12] Tate, 85-6.
[13] Where local customs supplemented the common law, rather than contradicting it, “the evidence suggests that the justices of the king’s courts in this period found little difficulty about accepting all kinds of variation from the general rules of the common law” in towns and cities. Paul Brand, “Local Custom in the Early Common Law,” in P. Stafford, J. Nelson & J. Martindale (eds), Law, Laity and Solidarities: Essays in Honour of Susan Reynolds (Manchester: Manchester University Press, 2001), 150-60, 153-55.
[14] Eldridge, 163, 97, 100.
[15] Eldridge, 183, 167, 200.
[16] Eldridge, 173, 187, 193-94, 184.
[17] Eldridge, 119-21, 121-22.
[18] See, e.g., W. L. Warren, Henry II 334-43 (University of California Press, 1973), and two articles by Paul Brand, “Multis Vigiliis Excogitatam et Inventam: Henry II and the Creation of the English Common Law,” in P. Brand (ed), The Making of the Common Law (London: Hambledon Press, 1992), 77-102, and “Henry II and the Creation of the English Common Law,” in C. Harper-Bill and N. Vincent (eds), Henry II: New Interpretations (Woodbridge: Boydell Press, 2007), 215-41.
[19] R. H. C. Davis, King Stephen (Berkeley: University of California Press, 1967), 111-23.
[20] See, e.g., Whit Mason (ed), The Rule of Law in Afghanistan: Missing in Inaction (Cambridge: Cambridge University Press, 2011), and John Brathwaite and Ali Wardak, “Crime and War in Afghanistan: Part I: The Hobbesian Solution,” British Journal of Criminology 53 (2013), 179-96, citing David J. Kilcullen’s description of the Taliban as “an armed rule of law movement.”
[21] James Masschaele, Jury, State and Society in Medieval England (Basingstoke: Palgrave Macmillan, 2008), 66.
[22] Eldridge, 201.