Medieval Law and the Foundations of the State

404 Pages·2002·1.5 MB·English

by  Alan Harding

Medieval Law and the
Foundations of the State

Medieval Law
and the
Foundations of the State
ALAN HARDING
3
3
Great Clarendon Street, Oxford, ox2 6dp
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© Alan Harding 2001
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First published 2001
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Harding, Alan
Medieval law and the foundations of the state / Alan Harding.
p. cm
Includes bibliographical references and index.
1. Law, Medieval. 2. Law–Europe–History. 3. State, The–History. I. Title.
KJ147 .H37 2002 340.5'5'094–dc21 2001036406
ISBN 0-19-821958-x
1 3 5 7 9 10 8 6 4 2
Typeset in Sabon
by Regent Typesetting, London
Printed in Great Britain
on acid-free paper by
T. J. International Ltd, Padstow, Cornwall
Preface
Tracing the growth of the State has become something of an histor-
ical industry, but the subject still needs definition. The history of the
State has to be more than a history of strong government: it must show
how an abstraction, a piece of metaphysics, came to dominate political
consciousness as a thing not only believed to have real existence but
loved for its promise of social order and hated for its threat of coercion.
The power of the State rests on an idea which is unique in commanding
both the levels of political thought discerned by Charles Taylor: the
‘common-sense . . . pre-theoretical understanding of what is going on
among the members of society’ which is necessary for any political
activity, and the high theory of the philosophers who criticize and sys-
tematize these working notions.1 Graffiti urge the smashing of the same
State about which Aquinas, Machiavelli, Hobbes, and Hegel theorized.
This book is primarily concerned with the ‘pre-theoretical under-
standing’ of what constituted a ‘state’ among rulers and ruled in the
middle ages. It is not a history of state-theory and therefore makes little
use of ‘the learned laws’, i.e. Roman and Canon Law, but an account of
the complex of procedures and institutions perceived as constituting ‘the
state of the realm’ in a medieval kingdom, and of how that perception
developed into the early modern idea of the State. The introductory
chapter does, however, seek to define the meaning of the word ‘state’ as
it has been used in political thought back to the middle ages, and finds
that its use in a theoretical way begins with Thomas Aquinas in
the later thirteenth century. The following chapters trace the growth of
systems of justice in the period before that time, when ideas of state
must be looked for in the legislation and written actaof kings and their
ministers. This is where ‘state’ appeared as part of a constellation of
‘constitutional’ words and notions, along with peace and custom, fief-
holding and liberty, statute and ‘the common good’. In the main part of
the book the sources are therefore the volumes of charters and laws in
such printed series as the Monumenta Germaniae Historica, the
Recueils des Actes and Ordonnances of French rulers, the Regesta
Regum Anglo-Normannorum, and the English Statutes of the Realm,
along with the records of the administration of justice and the law-
books which summed up a country’s legal practice. The final chapters
1 C. Taylor, ‘Political theory and practice’, in Social Theory and Political Practice, ed. C.
Lloyd (Oxford: Clarendon Press, 1983).
vi Preface
return to the political theorists of the late medieval and early modern
period who, in a climate of war and religious conflict, developed the
legally defined ‘state of the king and the kingdom’ into a more modern
concept of the State.
The study focuses on the systems of laws and courts in the kingdoms
of France and England. Their foundations in Frankish and Anglo-Saxon
justice (Chapter 2) might appear to have been shaken by the franchisal
courts of feudal lords and communes of townsmen (Chapter 3), but
French and English kings succeeded in integrating these into centralized
polities (Chapter 5). Unlike the Italian cities on the one hand and the
empire on the other France and England were both large enough to
demand, and small enough to make possible, the centralized adminis-
tration from which the notion of the State could develop. The ‘orga-
nized peace’ which was the bed-rock of judicial systems manifested itself
most impressively in the German Landfrieden, but within an unwieldy
empire these led to the crystallization of Kleinstaaterei (Chapter 4)
rather than a pan-German state.
Politically, the state was a far more potent idea than the nation,
because it signified a structure, which demanded continual criticism and
reform. Chapter 6 shows how the notion of ‘the state of the kingdom’
was used by the critics of royal justice in the English parliament and
French estates general (Chapter 6). In Chapter 7 the state in England
and France is described as a legislatively ordered structure of ‘estates’,
each estate defined by its legal rights and duties. The vicissitudes and
understanding of the late medieval ‘monarchical state’ are the subject of
Chapter 8, and the final chapter shows the continuity of the word and
concept from a medieval and legal context into the politics of ‘the
modern state’ (Chapter 9).
My thanks are due to the Universities of Liverpool and Edinburgh for
appointing me to honorary fellowships on my retirement from full-time
teaching, to the ‘special collections’ departments of the libraries of both
universities, and above all to my wife Marjorie, without whose support
and infinite patience the book would never have been completed.
A.H.
Edinburgh
January, 2001
Contents
abbreviations x
1. INTRODUCTION. STATE: WORD AND CONCEPT 1
State as regime 2
State as commonwealth 5
2. FRANKISH AND ANGLO-SAXON JUSTICE 10
The first courts 10
Grants of property and protection 13
Pleas before the king 16
Keeping the peace 22
Legal order 31
‘The state of the realm’ 38
3. THE COURTS OF LORDS AND TOWNSMEN 43
The growth of feudal society 43
Seignorial jurisdiction 48
Justice in the towns 55
Competitors for jurisdiction and power 61
The place of the king 64
4. THE SPREAD OF THE ORGANIZED PEACE 69
The peace of God 69
The peace of the land 79
German Landfrieden 88
The territorial states of Germany 99
5. THE JUDICIAL SYSTEMS OF FRANCE AND ENGLAND 109
Justice on complaint to the king of France 109
Stabilimenta 123
Justice by royal writ in England 128
‘Our state and our kingdom’s’ 139
viii Contents
6. NEW HIGH COURTS AND REFORM OF THE REGIME 147
Complaints against officials 147
Plaints and reform of the status regni 155
The bill revolution and parlement 160
English parliaments 170
Petitioning parliament for justice 178
Statute-making 186
7. THE LEGAL ORDERING OF ‘THE STATE OF THE
REALM’ 191
Law-books, custom, and legislation 191
The law of land-holding 201
Property and liberty 211
Estates of people 221
The law of injuries and the public peace 240
8. THE MONARCHICAL STATE OF THE LATER
MIDDLE AGES 252
‘The state of the realm’ and political continuity 252
‘The state of the king’ and government for the common
good 257
The contested state of Richard II 263
The king in the French body politic 271
France as l’état monarchique 278
9. FROM LAW TO POLITICS: THE GENESIS OF ‘THE
MODERN STATE’ 295
Comparing and criticizing states of commonwealths 296
State and sovereignty 306
Jean Bodin on the state 316
State, nation, and politics in France 321
The English ‘Commonwealth and Free State’ 327
10. CONCLUSION: LAW AND THE STATE IN HISTORY 336
bibliography 341
Law codes, chronicles, and treatises 341