The anonymous author of the Laws of Henry I (Leges Henrici Primi) seems to undercut the value of the laws and courts of early-twelfth-century England by making a number of pessimistic comments about the capacity of formal legal proceedings to render justice. At a few points in this treatise, probably completed shortly after 1108, he also voices a preference for friendly agreement. Noting that similar predilections were widespread in medieval Europe, many recent scholars have seized on one of the author's remarks that explicitly compares these two approaches to conflict resolution by proclaiming: Pactum enim legem uincit et amor iudicium, which is translated by L. J. Downer, the work's most recent editor, as, “For an agreement supersedes law and amicable settlement a court judgment.”Footnote ¹ Ever since Stephen White and Michael Clanchy used this Latin sentence as, respectively, a title and an opening epigram in influential essays written over 25 years ago,Footnote ² it has become a scholarly commonplace, epitomizing what is now often seen as a deep-seated medieval preference for settling disputes through informal compromise.Footnote ³ Most scholars that refer to this aphorism, however, use it merely as an illustrative device, without exploring this provocative assertion's meaning in its original textual setting. When considered in light of the Leges Henrici Primi (henceforth: LHP) as a whole and this work's wider context, this statement proves more revealing of complex contemporary attitudes about agreements, conflict resolution, and law than the frequent reference to what is taken to be a categorical declaration of the superiority of friendly concord might suggest.

To begin with, this remark's brevity and universalizing pretensions give it a proverbial quality that tends both to oversimplify and to resist any single meaning. In a mere seven words this lapidary sentence combines two subject–object pairs whose meanings overlap but have different implications. Recent interest in amicable settlement, however, has led scholars to focus primarily on the opposition expressed in the second half of this sentence between “love” and “judgment,” while assimilating the rest of the statement to this theme. Although an interpretation in terms of conflict resolution may be valid when this sentence is taken by itself, it neglects the larger discussion in which the aphorism is embedded, which points in a different direction. Furthermore, frequent citation of this aphorism by itself implicitly but potentially confusingly lends the whole sentence the air of a proverb. In fact only its first half bears any resemblance to a known medieval proverb, and this legal maxim, “agreement supersedes law” (pactum or conuentio legem uincit – or in modern orthography: conventio … vincit), usually referred not to the settlement of disputes in or out of court, but rather to the legal flexibility required when making contracts and other non-contentious agreements. Concentration on the author's striking aphorism has also led to the neglect of the full range of almost twenty comments that he makes about amicable settlements, many of which, like the second half of the aphorism, use “love” (amor) or other terms such as “friendship” (amicitia), “peace” (pax), and “concord” (concordia), to describe either these friendly agreements themselves or the positive relations they fostered, in some cases reiterating the contrast with judicial decision.Footnote ⁴

Even when this aphorism is better contextualized within the LHP, however, this work's imprecise vocabulary and opaque rhetoric often render interpretation difficult. Compounding this problem of language are an apparently meandering organization, a complete lack of specific legal cases, and, in many sections, a heavy reliance on other texts. Yet once one accepts that the LHP, like many other early medieval legal works, provides neither a compendium of cases nor a complete, authoritative set of legal rules, one can appreciate it for what it is: the first lengthy treatise ever written on English law. As such, it offers much valuable testimony about legal thinking in a post-conquest, multiethnic society, in which due consideration had to be given to the respected but linguistically daunting heritage of written, Anglo-Saxon law, the special prerogatives of the clergy, and the customs of flourishing local courts of hundred, county, and lordship, all under the aegis of powerful Norman rulers such as Henry I (1100–1135). Indeed I argue that the work's enigmatic character reflects the still largely customary world of Anglo-Norman secular law better than an older tradition of scholarship, which took a dim view of both early medieval jurisprudence and legal practice, would allow.Footnote ⁵

Michael Clanchy's essay of 1983, “Law and Love in the Middle Ages,” while overlooking the distinctive connotations of the first half of the LHP's aphorism, remains the essential starting point for interpretation of this treatise's statements about amicable settlement and the larger questions they raise. Published in a pioneering volume that helped to introduce legal anthropology to historians of Europe, this essay claims, first, that this aphoristic remark and a few similar statements in the LHP reflect a widespread medieval tendency to contrast formal judgment and out-of-court compromise, an opposition that Clanchy saw as corresponding to “rule-centered” and “processual” methods of settling and understanding conflicts. Whereas the rule-centered paradigm focuses on the authorities and their legal codes, who maintain law and order from above by suppressing the temporary malfunctions that generate disputes, the processual one instead emphasizes the agency of the parties themselves and sees disputing as a normal part of social struggle, in which the parties' own needs for compromise find support in more or less routinized (in the Weberian sense) bonds of affection, mutual obligation, and social pressure. While noting that these two paradigms “both represent necessary and complementary areas of inquiry,” he forcefully asserts that a “persistent line of medieval thought [saw] law and love … as opposite ways of settling disputes,” consisting of, respectively, “a process duly done in court” and “an agreement out of court.”Footnote ⁶

Second, Clanchy observes that, whereas the contrast between compromise and judgment was widespread, the “specific idea” or “explicit principle” that describes “love…as being more powerful than law, which it prevails over or conquers (vincit) … seems to be confined to England.” Although considering this idea's origins only briefly, his discussion suggests that it may have derived most immediately from an Anglo-Saxon legal text that outlines a procedural choice between “love” (lufu) and “law” (lagu), a provision that the LHP's author followed very closely in a similar Latin passage, translating lufu as amicitia, but modifying the second term of this contrast—the source of the English word “law”—only in its ending (lage).Footnote ⁷ Although my investigations partially confirm Clanchy's conclusions on both counts, his wide-ranging essay was more concerned with describing a fundamental contrast between two ways of settling disputes, and to show its long-term persistence in England, than with analyzing the abovementioned aphorism in the context of the LHP itself. Moreover, since 1983, no one has taken up this task, notwithstanding a generation of research on medieval conflict resolution, clerical education in the eleventh and twelfth centuries, and legal writing in the Anglo-Norman period (1066–1154).

Most germane to the purposes of this essay, research has tended to both confirm and refine Clanchy's insights about medieval dispute settlement. On the one hand, it is now beyond doubt that a preference for amicable settlement was common across pre-modern Europe, by no means being limited to England. Explanations for the taste for negotiation and compromise generally focus on the importance of personal relations and local solidarities in the typically “small-scale” societies of the Middle Ages, in which central authorities and formal judicial institutions played secondary roles in many disputes. On the other hand, debate continues about the relative strength and coherence of courts and normative legal rules, which varied substantially in different regions and periods, and about the interrelationship between formal and informal methods of conflict resolution.Footnote ⁸

There is much evidence to suggest, for example, that under its later Anglo-Saxon rulers and their Anglo-Norman successors, especially Henry I, English judicial institutions were exceptionally robust.Footnote ⁹ In this sense, England contrasts markedly with western and southern France, regions from which Fredric Cheyette, Stephen White, and other leading proponents of the informal, negotiated model of conflict resolution draw much of their material.Footnote ¹⁰ Nonetheless, it would be rash to overdraw this contrast, if, as Paul Hyams has argued, neither the late Anglo-Saxon kings nor Henry I were capable either of eliminating all violence or of quashing their subjects' traditional rights to defend themselves and, within certain limits, pursue feuds or otherwise seek vengeance. In a “culture of vengeance” that saw formal pleading simply as one possibility among various other means of redressing wrong, judgment itself could be seen as a form of retaliation, albeit one in which the court took up the cause of the aggrieved party. In this view, peaceful compromise that gave each party something served as the only honorable alternative to vengeful punishment, judicial or otherwise.Footnote ¹¹ Therefore, the LHP's emphasis on amicable settlement, if not its precise wording, may have derived just as much from its author's contemporary, Franco-Norman culture as from Anglo-Saxon law.

The insights afforded by this new work also make it clear that Clanchy's argument in “Law and Love,” like other early contributions to the anthropological turn in medieval conflict studies, exaggerated the contrast between amicable and judicial approaches to disputes. In particular, he tended to conflate opposition in the type of resolution (compromise vs. judgment) with a contrast in setting (outside vs. inside a court). As a number of scholars have since pointed out, the relationship between adjudication and compromise is more complex than this: courts themselves often favor amicable settlements, whereas litigants might alternate between formal and informal methods of resolution over the course of a conflict.Footnote ¹² Indeed, I will show that the LHP's author allows for this kind of complexity, in particular by emphasizing that in many cases judges themselves should encourage or help implement amicable compromises. With respect to such cases, then, it might seem advisable to return to the older interpretation of friendly concord in the LHP proposed by Doris Stenton, who ascribed to its author “a conception of the law … which prefers peaceful settlements under the authority of a court to judicial decisions.”Footnote ¹³ Yet this formulation also needs qualification, because many early twelfth-century “courts” were themselves relatively informal, unspecialized gatherings of lordship or community, in which friends, neighbors, and lords played a variety of roles that are often difficult to disentangle. This still predominantly oral, customary judicial world would only gradually and partially give way before the growth of literacy and formal institutions over the later twelfth and thirteenth centuries, especially after the overhaul of royal justice under Henry II (1154–1189), as Clanchy himself has demonstrated so well.Footnote ¹⁴

I argue that the LHP's author did not so much reject judicial institutions as express ambivalence about the practical efficacy and moral validity of human judgment itself, in the context of a legal culture that sought to keep the peace through consensus and flexibility. In fact his attitudes toward agreement and judgment only become fully comprehensible when seen in the light of contemporary judicial practices, religious attitudes, and learned ideas. Hence one of this article's broader goals is, by at least partially rehabilitating an oft-maligned early work of jurisprudence, to contribute to current efforts to balance the study of law as a social practice with greater attention to legal ideas and norms.Footnote ¹⁵ Reasons of space, however, require that I focus here on the LHP itself and its context in terms of Anglo-Norman secular justice, leaving aside for now an exploration of the learned sources and textual parallels for the author's ideas. One must nonetheless keep in mind that this anonymous scholar, who wrote in Latin, insists on ecclesiastical liberties, and frequently indulges in moralistic diatribes against worldly corruption, was almost certainly a cleric. Just as his treatise reflects both Anglo-Saxon terminology and lay practices of dispute settlement, it also upholds scriptural and patristic values, as these had been reformulated by Carolingian, Anglo-Saxon, and more recent currents of thought. A lay preference for agreement and compromise therefore fused with clerical efforts to limit miscarriages of justice through an emphasis on mercy, love, and careful attention to the circumstances of specific cases.Footnote ¹⁶

The significance of the LHP's aphorism and related remarks about the role of agreements in the legal process also goes beyond what they say about the purely procedural dichotomy between judgment and friendly concord in another way. By joining in his aphorism the two ideas of amicable conflict resolution and non-contentious agreement, the author points to their underlying similarity. Like compromise settlements, contracts and similar agreements require legal flexibility, a willingness by courts and judges to allow parties to make their own arrangements, even when this entails bending or making exceptions to the rules. By virtue of this openness, the “formal” or “public” legal system invests such “informal” or “private” agreements with a share of its own legitimacy. The author's awareness of the similarity among these kinds of agreements underlines the interdependence between “rule” and “process,” usefully warning us against exaggerating the contrast between them. For many agreements embodied both principles, depending not only on the parties' initiative and goals, but also on legal norms, rules, and procedures whose acceptance and implementation by recognized authorities added greatly to their legitimacy.Footnote ¹⁷ The LHP's emphasis on both types of agreement highlights the fact that flexibility was a key condition for the viability of this—and perhaps of any—legal system.

This article begins with two sections that provide context for the author's ideas about agreements and judgments, considering in turn the character of the LHP and its approach to the legal past (I), and then the fluid judicial world he inhabited and his role in it (II). A third section takes up the author's now-famous aphorism, which, although it links the two topics of conflict resolution and non-contentious agreement, occurs within a discussion that is primarily concerned with the latter. Finally, turning to the settlement of disputes, section IV shows that the author, rather than categorically recommending avoidance of the judicial arena, allows for a range of options that correspond well with patterns of conflict resolution found widely in the Anglo-Norman world.

I. The Leges Henrici Primi between the Anglo-Saxon Past and the Norman Present

Scholars have found the LHP's authorship, provenance, and basic character puzzling. Even the title may initially confuse a modern reader, insofar as one might think that it refers to a collection of King Henry's statutes. In fact only a few passages correspond to this expectation, including excerpts from a writ of 1108 concerning local assemblies—which decree supplies the earliest possible date for the work's completion. Other evidence confirms that this treatise was completed in the first decade or two of Henry's reign, in particular a reference in the opening lines to Queen Matilda (d. 1118) as being alive, whereas the specification of Henry as “the First” (Primi) seems to have been added by later scribes. The author's usually obsequious attitude toward all things royal may indicate both that he worked in the orbit of the royal court and that he had received or hoped for Henry's patronage, but there is nothing more specific to show that his work ever benefited from any official support or endorsement. A concern with royal law was of course inseparable from the author's larger project, of which the LHP represents the capstone and final installment, namely the compilation and translation into Latin of a large corpus of Anglo-Saxon legal texts, a massive bilingual collection now known as the Quadripartitus.Footnote ¹⁸ This work also includes a small dossier concerning the later career and death of Gerard, a curial cleric who faithfully served three successive kings, first as a royal chaplain and chancellor (ca. 1086–1096), then as Bishop of Hereford (1096–1101), and finally as Archbishop of York (1101–1108). If our anonymous writer had a personal or professional connection to Gerard, it would place him within a step or two of the royal court. Yet he does not seem to have been in Gerard's service at York, and the precise nature of their relationship remains unclear. Apart from his references to the royal couple and this tantalizing dossier, the author makes no other explicit statements that might link him to any of his contemporaries.Footnote ¹⁹

The author did leave other clues, however, about his ethnic and professional identity. Mistakes in translating Anglo-Saxon and other evidence indicate that he was a French-speaking cleric, yet a Francophone who saw himself as at home in England, and therefore very likely born or brought there soon after the Norman Conquest. Historians have speculated that he most likely worked in an episcopal household, probably in southern or southwestern England, perhaps at Winchester.Footnote ²⁰ Yet he may also have had experience as a royal judicial official of some kind, a duty not uncommon for clerics in Anglo-Norman England, where the Gregorian reform's insistence on a sharp distinction between secular and ecclesiastical power was only beginning to be felt.Footnote ²¹ His profile therefore fits that of the anonymous authors of several other Anglo-Norman legal compilations or treatises, whose pioneering efforts were made at a time before the specialized study of law existed in England, and indeed anywhere in non-Celtic northern Europe. As clerics trained in theology and the liberal arts of grammar, rhetoric, and dialectic rather than law, these writers sought not only to describe current practice, but also to transmit venerable custom and enunciate general principles of morality and justice, to better shore up the rule of both God and King.Footnote ²²

The LHP stands out as one of the earliest, most ambitious, and most strongly royalist products of a broader project to legitimate Anglo-Norman authority by establishing links with the Anglo-Saxon past. Henry's coronation charter, with which the LHP begins, expresses this desire for legitimacy in a conciliatory manner, by promising to reject a number of recently introduced “evil customs,” some of which are associated with his father William I the Conqueror (1066–1088) or his brother William II Rufus (1088–1100), and to return to the laga Edwardi, that is, the laws of Edward the Confessor (1042–1066).Footnote ²³ The Norman claim to uphold tradition underlies not only the LHP's author's efforts to translate a large corpus of Anglo-Saxon legal materials, but also his recourse to these sources for about a third of the LHP's clauses, usually closely paralleling his own translations in the Quadripartitu s.Footnote ²⁴ A deep respect for Anglo-Saxon law is also reflected in the compilation known as the Textus Roffensis, dating from the 1120s, which combines a large selection of pre-conquest legal texts with a smaller sampling of canon law and a cartulary containing land deeds and other material to corroborate the rights of Rochester Cathedral Priory, in Kent.Footnote ²⁵ Several works echo Henry's coronation charter by making this backward-looking, memorializing function explicit, including the Quadripartitus, whose second preface describes it as an abridgment of the laws of Edward the Confessor, which themselves derived from King Cnut (1016–1035), and which have now been restored by Henry, who has “given us back the law of King Edward.”Footnote ²⁶ Similarly, two later treatises, the “Laws of Edward the Confessor” (Leges Edwardi Confessoris) and the “Laws of William” (Leis Willelmi), although probably written under King Stephen (1135–1154), claim to represent the laws and customs that had been in force under Edward, as these were approved shortly after the conquest by William I.Footnote ²⁷

Even though the LHP clearly participates in this larger project of legitimation, it puts relatively little emphasis on such claims to record earlier law. Aside from the promises included in Henry's coronation charter, the LHP makes only a few other references to earlier kings, most of which concern specific topics, and none of which figures prominently in the opening or first several chapters.Footnote ²⁸ Instead, the book begins by emphatically identifying its contents as “the laws of Henry,” in its title, its opening line, and, more obliquely, in a short preface that praises the “blessed joys of longed-for peace and liberty with which the glorious Caesar Henry … sheds radiance over all his kingdom in ecclesiastical laws and secular ordinances.”Footnote ²⁹ Notwithstanding this assertion, the LHP mentions, in addition to the coronation charter, only one other law or decree known to be issued by Henry: the writ of 1108 mentioned previously, relating to local assemblies.Footnote ³⁰ The scarcity in the LHP of laws deriving from Henry, as well as the virtual absence of any from his two predecessors, must be seen in the context of the overall rarity of Anglo-Norman legislation. Apparently considering secular law as being equivalent to custom, a traditional body of rules and usages that changed slowly if at all, the Anglo-Norman kings generally limited themselves to confirming “the good old law” of their predecessors.Footnote ³¹ However, the act of confirmation itself was evidently understood to involve a process of selection or modification, even if the texts do not spell out how this worked. Therefore, when in his coronation charter Henry states, “I restore to you the law of King Edward,” he specifies that this comes “with such emendations to it as my father made with the counsel of his barons.”Footnote ³² Similarly, in the “Argumentum,” the second preface to the Quadripartitus, the anonymous author invokes the image of Henry as restorer of the law, adding that this law was “strengthened … by the improvements introduced by his blessed father, [and] improved [by] his own laws.”Footnote ³³

These observations suggest that despite the author's sometimes heavy reliance on other sources, especially Anglo-Saxon law, it would be rash to approach the LHP as if it were largely an archaicizing “mirage.”Footnote ³⁴ Indeed modern commentators have not sufficiently emphasized the fact that only certain sections of the book are highly derivative, and that these are concentrated near the beginning and end of the ninety-four-chapter work. Thus most of the first fourteen chapters rely heavily on such sources as: Henry's coronation charter (ch. 1); Isidore of Seville's Etymologies, tapped for generalities about law and legal rhetoric (ch. 4); canonical compilations deriving from Pseudo-Isidore, Ivo of Chartres, and others, which serve to outline procedure in ecclesiastical cases (ch. 5); and Latin translations of the laws of Cnut and other pre-conquest kings, which lend material for a sketch of royal rights (ch. 10–14). Similarly, recourse to outside sources again becomes massive in many of the final thirty chapters, in which the author draws on both Frankish and Anglo-Saxon legal texts to describe traditional wergild compensations and other responses to injuries and homicides. But in most of the book, including almost all the material from chapters 15 to 63 and many passages before and after, the author is apparently much more self reliant, borrowing from other sources only intermittently and usually briefly. Centered on this middle section, the book focuses chiefly on the rights, types of cases, and procedures pertinent to such local secular courts as those of the county, the hundred (a subdivision of the county), the manor, and the lordly “honor.”

II. The Leges Henrici Primi and Judicial Practice: Courts and Judges

Although the space is lacking here to fully contextualize the LHP in terms of early-twelfth-century judicial practice, an examination of its comments on courts and judges in the light of what is known from other sources indicates that its testimony on these institutional particulars holds up quite well. It also suggests that the author's emphasis on flexibility in legal decision making grew naturally out of the fluidity of contemporary judicial practice. Indeed, to begin by invoking the idea of “institution” risks begging the question, for most references to assemblies that handled judicial matters, both in the LHP and in other contemporary sources, are quite vague with respect to their settings, schedules, personnel, jurisdiction, and legal character. In some ways the LHP is one of the worst offenders, as it never mentions any specific cases, people, or places, except to associate a handful of legal customs with particular regions or towns. Although charters, writs, and other documents that address individual cases are much more forthcoming in many respects, they provide little evidence of either fixed times and locations for hearings or clearly defined roles for participants.Footnote ³⁵ Furthermore, the sheer variety of venues mentioned by the LHP may seem to undermine any view of them as forming part of a coherent system, especially given the paucity of information about their areas of competence and interrelations. Scholars have worried in particular over the potential for conflict between the public or community assemblies of Anglo-Saxon origin that were based on the territorial circumscriptions of the county, hundred, and borough, and the seigneurial courts of manor and honor, whose jurisdictional claims depended more on tenurial relationships that had been reshaped in the aftermath of the Norman Conquest.Footnote ³⁶

At an even more basic level, the sources' terminology itself seems resistant to institutional specificity. This has clearly been seen as a potential stumbling block for modern readers, leading the LHP's translators to insert what amount to numerous explanatory glosses into the text. Therefore, Downer felt the need to supply the word “court” in dozens of passages where there is no corresponding Latin or Anglo-Saxon term, adding it, for example, not only to the amor [vincit] iudicium phrase but also to most of the LHP's references to the hundred and county assemblies. The anonymous medieval cleric, in contrast, was almost always content to denominate these gatherings very simply as “the hundred” (hundretum) or “the county” (comitatus), a few times substituting for the latter such slightly more specific alternatives as “the general pleas of the county” (generalia comitatuum placita), or the Anglo-Saxon “shire moot” (scyregemot). Although these assemblies are the only ones for which the text provides a modicum of organizational detail, they handled not only legal, but also a wide range of administrative, fiscal, and political business. Terms such as “court” (curia) or “moot” (gemot) do not necessarily imply any judicial specialization, and in any case the LHP uses both sparingly, except in reference to the court of the king (curia regis) or, more rarely, that of a lord (curia domini).Footnote ³⁷ But the LHP discusses neither of these in any detail.

Although the author never associates judicial meetings with any specific locations and only bothers to identify the type of gathering sporadically and usually very briefly, he nonetheless deploys a rich vocabulary to describe what would appear to be a complex legal world. This paradox makes sense if one assumes that for the author the type of suit and the parties concerned mattered far more than the setting; as Marjorie Chibnall puts it, he “distinguished procedures rather than courts.”Footnote ³⁸ The author typically sets the legal stage by using a number of general terms that evoke the judicial process as a whole, including both those that focus on how one initiates or defines a lawsuit and those that target its goals or results. Among the most common terms in the first category are the related words “to plead” (placitare), “to implead” (implacitare), and especially the very malleable noun placitum, which in the most general sense can simply refer to a discussion, and therefore also to a judicial assembly or a court session. Most often, however, it denotes a specific “plea,” “lawsuit,” or “case,” which the parties might pursue in more than one venue. In this latter sense of a “case,” placitum overlaps with the meaning of causa, which in turn more often refers specifically to the charge, reason for, or type of case, especially when these are divided among the “common” or “emendable” cases (causa communis or emendabilis), that is, those that may be compensated for by the payment of a fine, and the more serious “capital,” “criminal,” or “royal” cases (causa capitalis, criminalis, or regia). The text also sometimes distinguishes cases or “pleas” that pertain to the church (placita christianitatis).Footnote ³⁹ Notwithstanding some common terminology, these categories are very different from those that would develop later in the twelfth and thirteenth centuries, when, for example, the Roman-canonical contrast between criminal and civil law became more familiar and the emerging Common Law began to make a roughly similar distinction between crime and tort.Footnote ⁴⁰ The second set of terms for the legal process, many of which I will discuss in more detail subsequently, refers to its goals or results, including “to judge” (iudicare), to render, deny, or subvert “judgment,” “justice” or “right” (iudicium, iustitia, rectum), and to compensate (emendare) or reach a settlement or an agreement (concordia, amicitia).

These points suggest that the shadowy character of most courts as they appear in the LHP derives less from either authorial incompetence or legal chaos, as was often assumed in the past, than from the likelihood that many early-twelfth-century judicial assemblies met on an ad-hoc basis and lacked any precisely defined membership or jurisdiction. This is not to say that different types of venues did not have their principles of membership and areas of special focus. As Robin Fleming's analysis of 800 legal cases recorded in the Domesday Book of 1086–1088 shows, the great inquest relied most heavily on men who represented their hundred, whose testimony was especially vital in consolidating communal memory about previous holders of lands and rights, whereas the hundred and county were of roughly equal importance in cases concerning the rights of the church and the king and the activities of sheriffs and other royal officials. Finally, individual lords and their men provided testimony for a minority of cases on all these topics, while constituting the most important source of information about lands and rights that had been granted by the king or his barons to their followers or ecclesiastical beneficiaries. Abundant if indirect corroboration of the county assembly's central role comes from the numerous royal writs, including those announcing Henry's coronation and his ordinance on the local assemblies, which were addressed to a bishop, a sheriff, and all the king's barons (barones), faithful ones (fideles), and/or men (homines), both “French and English,” of a particular shire or of a few shires. It is nonetheless clear, however, that the competence of these different assemblies and lordships overlapped. Litigants and their lords chose judicial venues based on geography, the status of the parties, and the political maneuverings of all those involved. As Fleming concludes, “there was no area of law that was strictly limited to one kind of assembly or another and no absolute hierarchy of courts.”Footnote ⁴¹

By showing the centrality of the hundred and county assemblies, this evidence from Domesday and other sources also tends to confirm the soundness of the LHP's choice to focus on them as the key judicial venues at the local level. Perhaps because of their roots in local communities, these assemblies were able to combine resilience with flexibility. Royal statutes dating back to the tenth century show that these gatherings were supposed to meet regularly: the hundred monthly, the county twice a year, and the borough two or three times a year. In his writ of 1108, however, King Henry was concerned to resist a tendency toward more frequent or irregular meetings, ordering that “henceforth my counties and hundreds shall meet in those places and at those times as they did in the time of King Edward,” and adding that his sheriffs should not have them meet at any other times, except when summoned to do so by the king himself. In his summary of this writ, the LHP's author faithfully reproduces the emphasis on tradition and the prohibition of extra meetings, but he accords greater prominence to the county assemblies, specifies the schedules, and adds other details:

Whereas the LHP's author may have adopted these schedules from his Anglo-Saxon law books, both his summary and the original writ showcase the royal effort to supervise these assemblies for the crown's own interests. Both also suggest that actual meeting times and places may have been more variable and more subject to the needs of sheriffs and other royal agents than tradition would readily countenance. The use of summonses exemplifies both the capacity for ad-hoc gatherings and the potential for royal control. Flexibility characterized even those courts that were most strongly tied to local residence and a customary schedule.

Contemporary documents confirm the variability of judicial meetings, at least for the location, which is noted much more often than the date. The chief county towns made an obvious choice for county assemblies and sometimes for the hundreds as well. For the Domesday inquest of 1086 people swarmed to these towns, where men were impaneled in sworn juries of eight, twelve, or more to give testimony about their hundred, county, or lordship. Yet sites varied, not least because meetings of multiple hundreds and counties required relocation. The LHP notes that when a case could not be settled in one hundred, because of a shortage of judges or for any other reason, then it could be transferred to a meeting of “two or three or more hundreds.” This readiness to combine venues implied a desire to maximize local participation and publicity. These factors help to explain why the site for many county courts does not seem to have become fixed until the thirteenth century. Conversely, even hundred and honorial courts may not always have been local enough: the LHP notes that disputes among people of neighboring hundreds or lordships should be heard in the obscure “boundary” (divisae) courts, which were probably arranged only as needed. Similarly, whereas seigneurial courts may often have convened at the lord's chief residence, their location also varied.Footnote ⁴³ In sum, the LHP's vagueness about both the location and timing of courts was probably justified.

The amorphous character of the judicial context as it emerges from the LHP and other contemporary texts seems to reflect the fact that both people and cases moved easily between different instances. This fluidity may have allowed lords to rely on the community assemblies as venues for conducting their own judicial business, which would help to explain why specifics about seigneurial courts are so rare, a penury of evidence that contrasts markedly with the importance ascribed by many sources to both lords themselves and their rights of jurisdiction. Whereas the LHP says almost nothing about the inner workings of honorial (curia domini) and manorial courts (hallimota), it nonetheless emphasizes lords' robust rights of jurisdiction (priuilegia, socna), which extended over all those who held land or fiefs (feuda) from them or who otherwise depended of their manors (maneria) or honors (honores).Footnote ⁴⁴ Alternatively, if distinct seigneurial courts were more active than the sources reveal, they may have been less antithetical to the community assemblies than previously supposed, at least in the closely governed southern part of the kingdom on which the LHP concentrates.Footnote ⁴⁵

The LHP supports the impression that local judicial instances were interlinked and had overlapping jurisdictions, all under royal supervision, in at least three ways. First, the author felt strongly that the assemblies of hundred and county should be attended by a wide spectrum of local society, which would make them ideal places, for lords just as much as for others, to marshal support, confirm rights, and publicize decisions. Concerning the hundred, the LHP reworks a clause from Cnut's code to specify who was supposed to attend, at least twice a year when a “specially full sitting” was required: all the free men (liberi) of the hundred, one of whom presided as alderman (aldremannus). But for the author the most prestigious local venue was evidently the county, where he notes the activities of such royal agents as sheriffs (vicecomiti) and justices (iusticiae), who brought charges in cases affecting royal rights and summoned those required to attend. The author's extensive list of those who should attend the county assembly emphasizes both social rank and official function: “bishops, earls, sheriffs, deputies, hundredmen, aldermen, stewards, reeves, barons, vavassors, village reeves, and the other lords of lands.”Footnote ⁴⁶

Second, the author explicitly mentions several areas of overlap and interpenetration between the community assemblies and seigneurial justice. He portrays lords, to whom he refers variously with the generic term domini or with such specific titles as “vavassors” (uauasores), “barons” (barones), and “earls” (comites), as appearing regularly in the hundred and county assemblies to defend their own interests or those of their men. Recourse by lords to these venues must have been especially likely whenever two of them had different overlords, an eventuality foreseen both by the full text of Henry's writ of 1108, which requires that such cases be heard in the county, and by the LHP, which instead refers them to either the hundred or, when a defendant's overlord was a baron, to that baron's court. The author even allows that, when “any of the barons of the king or of other [lords]” (quis baronum regis uel aliorum) is absent from the county assembly, his steward (dapifer) may answer for him, or, if both lord and steward are absent, then “the reeve [prepositus] and the priest and four of the best men of the vill shall attend on behalf of all those who have not been summoned by name.” The scattered nature of much landholding, especially that of lords, would also have added to the pull of the community assemblies. “Superior justices,” who in some cases might be royal justices, were also able to intervene in a lord's court, and when present, their views could, so the LHP claims, prevail over the lord's own decision. This text does not consign the lords or justices to whom it refers to any one judicial context, but rather shows them all moving easily among different instances, wherever the rights subject to their jurisdiction were at stake. The two groups of people may have overlapped socially as well, as lords and magnates sometimes served as sheriffs and justices, along with the clerics and other “new” men of lower status that King Henry increasingly preferred.Footnote ⁴⁷

Finally, the author also emphasizes that all of these porous judicial arenas were linked in a loose hierarchy, as he considers the hundred as the court of first instance, and allows for cases to be transferred (transferre, transire) from it to the county, as well as from any local court to the king, especially in cases of “default of justice” (defectus iustitiae, destitutio recti). The fluid character of this system is simply the other side of the coin of the abovementioned conceptual centrality of the individual lawsuit or case. After explaining that a lord must support his man “everywhere …, sometimes in boundary courts … sometimes nearby on the land itself, sometimes at the court of the lord, sometimes in the hundred or several hundreds, sometimes in the county or boroughmoot or hallmoot,” he adds a characteristically gnomic comment: “for all cases have their own methods of procedure, whether they remain in the place where they began or are transferred from there to another.”Footnote ⁴⁸ Here again the text offers general statements about rights and types of cases expressed in varying terms rather than a systematic description of the mechanisms of appeal, the personnel involved, or a precisely defined hierarchy of jurisdiction. The royal court itself, although receiving great respect as the high court from which there was no appeal, and notwithstanding the author's careful enumeration of royal rights, seems to stand off on the horizon, at some remove from his own experience.Footnote ⁴⁹

In this context, then, who made judicial decisions, and how? Two basic points emerge clearly from many passages in the LHP, especially in a substantial section on secular jurisdiction and judgment (ch. 20–34): decisions were made by groups and those who helped to make them were chosen more for their social relations and status than for their professional training. Ecclesiastical cases constituted a partial exception to the primacy of social criteria, in that they required a distinct body of rules and judgment by fellow clerics. However, difference of treatment apparently necessitated neither a separate setting nor even a completely different panel of judges; the author explains that both priests and bishops should attend the meetings of the county, where the latter would join with “earls and other persons of high rank who shall pronounce upon [diffiniant] the laws of God and secular matters.” Other sources confirm that ecclesiastical affairs long continued to be adjudicated in secular courts, even if distinct church tribunals were beginning to acquire greater strength toward the end of Henry's reign.Footnote ⁵⁰

Beyond these two points, however, the LHP's account is vague about many other features of legal decision making. It is true that the fifth chapter on ecclesiastical procedure begins on a categorical note by quoting from Ivo, Bishop of Chartres (1090–1115), to the effect that in all cases, “both ecclesiastical and secular …, some are accusers, some defendants, some witnesses, and some judges,” and that these tasks should remain distinct. In practice, however, our anonymous cleric—again in common with most eleventh- and early-twelfth-century sources—rarely describes the decision-making process in detail. These texts often use passive constructions that avoid any explicit attribution of responsibility for a judgment, describe decisions as being made by an assembly as a whole, or mention some individuals or types of people involved in settling a case, but without categorizing their roles in any way. This vagueness seems to reflect certain assumptions that were widespread in medieval customary law, according to which decisions should be collective, ideally unanimous, and essentially passive. In this schema, the whole body of a court's legally competent members, sometimes called “suitors” (secuti), simply recognized an “immanent” right revealed by testimony or, in difficult cases, by divine intervention through one of the judicial ordeals.Footnote ⁵¹

The LHP's author emphasizes a local, peer-based approach to judgment in his treatments both of ecclesiastical procedure and of secular jurisdiction. Concerning the latter he announces such principles as: everyone should be judged by his or her peers (pares) from the same district, rather than by strangers or outsiders (peregrina); the defendant can accuse the judges of partiality; and the judges, at least in some places, are chosen by the parties. Moreover, the author sometimes speaks of defendants as “accepting,” “consenting to,” or alternatively “denying” or “contradicting” a judgment, in a way that seems to go beyond the formal right to appeal in cases of default of justice, by implying parallels with the negotiation involved in reaching an accord. Other passages show that the these principles of equality, locality, and choice were also operative for court-holders, when they set out to arrange a hearing: “if anyone has a plea [placitum] which is to be tried in his own court [curia] or in any judicial assembl[y], he shall summon his peers and neighbors so that, with the establishment of a body of judges [infortiato iudicio], he may provide justice.” Social relations also shaped more than just the body of judges, as when defendants sought “counsel … from their friends and relatives” (consilium … ab amicis et parentibus suis), one of whom might speak for them as an “advocate” (perorator).Footnote ⁵²

The ad-hoc, collective, socially embedded character of secular justice helps to explain why the LHP and many other texts make little distinction among the different roles of those involved in the judicial process, or do so only implicitly or inconsistently. In the LHP one finds, along with numerous mentions of judges (iudices), a few of “wise ones” (sapientes), who also had a decision-making role, many more of witnesses (testes), who both observed transactions or other events outside of judicial assemblies and provided testimony at these meetings, and finally a handful of references to oath-helpers (consacramentales or testes), who swore oaths on behalf of the accused, presumably attesting to his or her good reputation.Footnote ⁵³ Some contemporary documents suggest more clearly than the LHP the possibility of overlap among these roles, by including combined lists of “judges and witnesses,” or referring to a body of “jurors and judges.” It seems likely that, just as lords and royal or public officials overlapped socially, so the same people might act alternately or simultaneously as friend, counselor, mediator, witness, oath-helper, or judge.Footnote ⁵⁴ This ideal of collective justice by a body of one's peers by no means precluded consideration of social status and hierarchy. For example, although noting that both French and English witnesses may provide valid testimony, the author adds that if doubts persist, then “there shall be chosen from among the best men [de melioribus] those who will swear as to the merits of the case.” Not surprisingly, such criteria were flexible: in certain cases concerning fiefs, “any free persons” (quicumque liberi) may act as witnesses, “but if none can, then others [may do so].”Footnote ⁵⁵

In some passages the author's insistence on status and rank suggests that a distinct, more authoritative model of judgment coexisted with, or could even overshadow, the ideal of peer-based justice. The text reveals this contrast, for example, by proposing two different alternatives for dealing with the problem of disagreement among judges. For ecclesiastical cases, the author borrows a canonical principle from Ivo of Chartres to the effect that in “a judgment among peers” the decision of the majority will prevail. In a discussion of “capital” secular pleas, however, he asserts instead that the judgment of the best men (meliores) should win out.Footnote ⁵⁶ Elsewhere he states that the king's judges (iudices regis), i.e., those impaneled to consider royal cases, should be “the barons of the county [and] those who hold free lands [there],” whereas “villeins and cottars … and poor persons” should be excluded. While these criteria still left room for people of varying status, the author tellingly advises lesser members of the court, in the absence of barons (senatores) or a royal justice, to postpone their decisions about important matters. The author's frank recognition of the role of the powerful accords well with recent emphasis on the capacity of court-holders and lords to pack juries with their own men, intimidate witnesses, and otherwise shape judicial decisions in their favor.Footnote ⁵⁷

The legal scene laid before us by the LHP seems to be animated most of all by the ubiquitous judicial officials called simply “justices” (iustitiae), as well as by those that are further specified as “royal justices” (iustitiae regis) or “royal agents” (ministri regis), although all of them appear anonymously.Footnote ⁵⁸ The fact that in England many royal agents were also powerful men in their own right also means that the oral, non-professional, “customary” features of Anglo-Norman justice coexisted with others that were more “institutional.” The prevalence of such agents and officials thus tends to blur the sharp distinction some scholars have drawn between the informal, non-professional justice of Henry I's time and the more centralized, authoritative legal system that began to develop under his grandson Henry II.Footnote ⁵⁹

As for the author's own role as a judicial official, most of the evidence is merely suggestive, consisting, for example, of his use of the first person or other grammatical constructions that imply his personal experience. In four cases he also uses the terms professor or professio, apparently in reference to those with legal expertise. He identifies himself with this group in one instance, when, after apologizing for his own inability to make sense of “the great diversity of relevant matters,” he wonders whether or not his work can “teach anything relevant to our profession” (professioni nostre). Elsewhere he criticizes the rapacity and “hateful practices” that professores have introduced into legal practice, and twice worries that they will find fault with his treatise, which also implies that they were his peers. Whereas earlier scholars translated professor as “jurist” or “lawyer,” Richard Sharpe is undoubtedly right to prefer a more literal and vaguer term such as “practitioner.”Footnote ⁶⁰

Overall, his profile would seem to fit that of the curial clerics who, although they often had positions as chaplains, archdeacons, or bishops, devoted themselves to the king's legal and administrative business.Footnote ⁶¹ Although set apart by his clerical education from the “law-worthy” laymen upon whose testimony lords relied when conducting inquests, his role in a trial might have been somewhat similar: to offer advice and expert testimony, to participate in collective judgments, and perhaps to help preside. But there is nothing more specific to prove that he was himself a royal justice. In any case it is likely that, according to the strict requirements emphasized by Paul Brand and James Brundage, there were no full-time, professional lawyers or judges in England until the mid-twelfth century at the earliest.Footnote ⁶² Men such as the LHP's author almost certainly lacked formal legal education, nor were they likely to have earned their livings by providing legal services to paying clients. Nonetheless, as clerical administrators, they may well have received significant on-the-job training. They certainly spent a great deal of time performing judicial and administrative tasks, and some of them had impressive levels of specialized legal knowledge, which depended upon pragmatic familiarity with both written texts and customary practices. Even if such legal “practitioners” should not be considered as “professionals,” what might be called their “quasi-professional” role in customary legal systems merits greater recognition.Footnote ⁶³

Consideration of the wider judicial context helps to explain why the author focuses more on rights and procedures than on their precise social or institutional context. Leaning where he could on written sources that did not teach him the study of (hypothetical) cases, he fails to provide particulars concerning people, places, and concrete situations, no doubt because he both took them for granted and considered them inappropriate to his task. For a modern reader the result can be unsettling: a welter of guidelines for judges and litigants and of procedures for issuing summonses, making adjournments, and so forth, seems to hover over a dimly perceived landscape. But if his efforts were grounded in the experience of local courts of honor, hundred, and county, and if these instances were all more flexible and closely interrelated than historians used to think, then this haziness mars his account less than one might suppose. Whereas details may have varied locally, and should be checked against other sources wherever possible, there is every reason to think that the general patterns described by this book offer valuable insights into a vibrant legal culture, in which “rule” and “process” were virtually inseparable. In this judicial system, which combined flexibility with a pronounced hierarchical gradiant, neither the reality of power and negotiation, nor the predominantly oral character of secular culture, nor the virtual absence of specialized training in law, meant that rules and detailed procedural norms were irrelevant. They did require, however, deep local experience and, for a few, long study. Even then, as the LHP's author admits several times, the attempt to reduce to writing a system that was based heavily on local, oral custom might leave one feeling overwhelmed.Footnote ⁶⁴ Such feelings may help to account for his evident relish for maxims and other brief summaries of legal norms and procedures.Footnote ⁶⁵

III. Contracts, Procedural Agreements, and the LHP's Aphorism

Recent reference to the LHP's now-famous aphorism as a statement in favor of amicable settlement overlooks its complexity most obviously by neglecting its first half, “for agreement supersedes law” (pactum enim legem uincit). As previous generations of legal scholars recognized, and as Clanchy also notes in passing, this phrase appears to be the earliest known occurrence of a common proverb or legal maxim. Shorn of the reference to love, this adage spread widely from the mid-twelfth century onwards, usually in Latin as conuentio legem uincit or in French as couenance loi uainct, but also occasionally with the same three key words as in the LHP.Footnote ⁶⁶ This later usage as an adage applies, however, only to the phrase embedded in the first half of the aphorism. In contrast, I have found no evidence whatsoever that either the whole sentence or its second half, “love [supersedes] judgment” (amor [uincit] iudicium), were ever used outside this text. Nonetheless, both this remark as a whole and its second half share with the pactum legem uincit phrase many features of proverbial language, including: an authoritative-sounding comparative claim that implicitly gives advice; a high level of generality that tends toward truism or paradox; and such formal markers as pithiness and departure from ordinary syntax, which this sentence achieves through the use of parallelism and ellipsis of the verb in the second subject–object pair. Together these characteristics serve to set off this statement from its immediate context, as I will discuss subsequently. Here I draw on B. J. Whiting's classic definitions in order to distinguish between a proverb in a strict sense, which, like the pactum legem uincit phrase, circulates independently in a relatively fixed form, and an aphorism, sententia, or what he called a “sententious remark,” which might resemble a proverb, but which “has not crystallized into a specific current form.”Footnote ⁶⁷

The probable link with the proverb pactum/conuentio legem uincit provides a valuable hint that helps to unpack the meaning of the first half of the LHP's sententious remark, because it is a striking fact that in its later uses, this adage does not concern amicable settlements, final concords, or the context of conflict resolution at all. Instead, this dictum usually refers to the ability of private parties to agree on exceptions to generally applicable legal rules, a margin of flexibility that was especially useful when making contracts, adjusting judicial procedures for specific cases, and arranging other non-contentious agreements.Footnote ⁶⁸ For example, the late-twelfth-century treatise known as “Glanvill,” the first textbook of early Common Law, quotes this maxim in its chapter on contracts, within a discussion of purchase or sale (de emptione et uenditione). Glanvill explains that, although normally a sale is considered final either after delivery of the thing sold or after some payment has been made, the parties may nevertheless cancel the transaction at either stage if they had earlier agreed to allow for this option, “because it is generally true that agreement prevails over the law” (conuentio legem uincit).Footnote ⁶⁹ Here, just as in several other instances, Glanvill describes a standard legal practice, but then adds that exceptions can be made when the parties have agreed to do otherwise. This latitude also applies to such procedural matters as warranty: when more than one person acts as pledge or surety for someone else's debt, each pledge is normally held liable for the whole amount owed to the creditor, “unless it was otherwise agreed” when they pledged themselves.Footnote ⁷⁰

The same necessity of considering a broad range of types of agreement applies to Anglo-Norman texts, even if in this earlier period such distinctions usually emerge only implicitly and contextually, rather than through precise definition or consistent terminological usage. Many dispute settlements and political treaties, which were typically made between parties who were roughly equal, stand out clearly because the texts normally reserve for them such words as concordia, compositio, finis, foedus, pax, and treuga. But it was equally common to refer to settlements and treaties with such terms as conuentio, pactio, and pactum, which denote the idea of “agreement” in its most general sense, and therefore can refer to virtually any accord. These three generic terms were also used to refer to various (ostensibly) non-contentious agreements, including property conveyances, conditional arrangements such as rental contracts, and procedural accords. The word conuentio figures prominently in the Pipe Roll of 1130, the first surviving account book for the English monarchy, in which a standard heading for many counties reads, “New Pleas and New Agreements” (Nova Placita et Novae Conuentiones). This usage underlines both the wide currency and the ambivalence of the distinction between lawsuits (placita) and all other agreements, as after the heading both types of items are listed together.Footnote ⁷¹

Although the LHP's author's comments about agreements correspond well with the basic distinction between dispute settlements and non-contentious accords, he pays scant attention to property conveyances. He devotes only a handful of scattered mentions to such transactions, referring to them with such terms as “purchase” (emptio), “sale” (uenditio), and “gift” (datatio).Footnote ⁷² The neglect of property conveyances is typical of extant Anglo-Saxon and Anglo-Norman laws and legal treatises, despite the fact that land transactions constitute the main subject matter of contemporary charters, and are reported in their dozens, even hundreds, in the Domesday Book.Footnote ⁷³ The reasons why early medieval secular laws and legal treatises overlook this topic are obscure, but they probably include the weakness of the land market, a feeling that pious gifts to the church were a strictly ecclesiastical matter, and the primary focus of lay courts on jurisdiction, procedure, and the suppression of violence. The highest courts may also simply have lacked the interest and capacity to police a large number of relatively minor, often merely oral transactions. Glanvill corroborates this impression for the late twelfth century, because, even though it includes a chapter on contracts, it states that the royal court normally did not concern itself with “private agreements” (priuatas conuentiones) made elsewhere.Footnote ⁷⁴ But whatever the reason, and notwithstanding the LHP's coverage of a wider range of courts, it has no analogous chapter or section addressing contracts or land conveyances.

The LHP's author shows greater interest, however, in other types of non-contentious agreement, mentioning what he usually refers to as pacta or prelocutiones approximately a dozen times. These agreements deal with such procedural matters as the postponement of hearings or miscellaneous provisions for the disposition of property in cases of temporary custody or succession. The author's use of pactum together with amor in his aphorism constitutes, therefore, an exception to his typical usage of the former term. In this one case he blurs a distinction that he otherwise maintains between dispute-oriented concords and ostensibly non-contentious agreements, by dramatically emphasizing what they had in common.

That the LHP's aphorism lends itself to multiple meanings emerges from a closer look at its immediate context in a discussion of summonses. The author begins by noting that whereas some charges must be denied immediately, in other cases no answer is required until a summons (summonitio) has been issued and proceedings (placita) begin. There follows a series of general points about procedure, such as the need to call witnesses and to allow defendants counsel, interspersed with an analysis of the problem of someone who must face several different suits (causae) at once. Then, tackling another complex situation, the author states that:

“If several men of any one [lord] are impleaded at the same time, [then he] shall do justice [rectum faciat] in respect of all on one day at the same time, or in respect of individuals singly, according to the nature of the causes or the agreement made between them [secundum quod cause fuerint uel pactum inter eos]. For an agreement supersedes law and amicable settlement a [court] judgment.”Footnote ⁷⁵

The next sentence elaborates on the different types of cases, explaining that “in common causes, which are decided by the oath of compurgation or by the ordeal (lege sacramentali uel iudicio), complaints against several people can be tried at the same time, whereas those that are decided by battle (bellum), should be dealt with individually.”Footnote ⁷⁶ This explanation is intriguing on two levels. First, it serves as a reminder of the text's constant alternation between the general and technical meanings of many key terms. Immediately after invoking broader notions of lex and iudicium in his categorical assertion, the author uses these words more narrowly to refer to specific forms of proof.Footnote ⁷⁷ The “general” meanings themselves cover a range of ideas, including, in the case of lex: written law; the decrees handed down by a ruler; and, most frequently, legal rules in general, closely approximating the idea of “custom” (consuetudo), which seems to be the meaning of the word in the aphorism.Footnote ⁷⁸ Second, the mention of these other senses of both lex and iudicium so soon after the aphorism also suggests another reason why agreement of almost any kind might be preferable to these forms of “law” and “judgment”: these ordeals required the accused party to risk public shaming, bodily harm, and divine punishment.Footnote ⁷⁹

As for the term pactum, the abovementioned passage sheds very little light on its precise meaning. The author nonetheless accords these unspecified agreements made between individuals considerable importance, by placing them on a par with the causa, the charge, type of suit, or basic subject matter of a case, as factors to be taken into account in determining how to proceed. The second, more famous mention of pactum builds on this point, by implying that agreements, like amicable settlements, judgments, and even laws themselves, are all simply different means of rendering justice or “right” (rectum). In the LHP the term rectum is equivalent to justice in the sense of fulfilling one's legal obligations and doing the right thing.Footnote ⁸⁰ This helps to explain why agreements might prevail over law; more clearly than in modern English, here the idea of “law” refers to legal rules and guidelines that constitute only one of several ways, along with agreements and compromises, of (re-)establishing justice.

Therefore, whereas the sentence beginning Pactum enim legem uincit serves to extend, generalize, and confirm the point adumbrated in the preceding lines, it also appears on a more formal level as a commentary interjected in the midst of a straightforward treatment of procedural detail. Its declamatory, sententious character stands out clearly against the descriptive, matter-of-fact tone of the passage as a whole. The alternation between these two registers allows the author to juxtapose to the mass of legal detail moral principles that might both explain and extract lessons from it, an approach that may reflect echoes from both the lecture hall of early scholasticism and the courtroom.Footnote ⁸¹ Here, instead of providing any specific, technical definition of pactum, the author switches to aphorism, thereby emphasizing a broad notion of “agreement,” one that could include dispute settlements, property transfers, or other kinds of accord. By combining this statement of agreement's ability to supersede law with “love's” similar superiority to “judgment,” the author also tends to merge the idea of legal flexibility suggested by the phrase pactum legem uincit with that of amicable settlement, a theme that the book as a whole emphasizes more frequently and explicitly. At the same time, however, the aphorism's immediate context keeps the former idea in play.

The author returns to accords that were associated explicitly neither with conflict resolution nor with property conveyances approximately a dozen times, expressing the idea of “agreement” four more times with pactum, six times with the unusual noun prelocutio, literally a prior discussion or arrangement, and in a few cases using various verbal constructions. Three of these passages concern the custody or disposition of property, in one case translating an Anglo-Saxon legal rule. Following a text attributed to King Alfred (871–899), the author explains that when anyone entrusts a weapon to someone else for cleaning or safe-keeping, the latter is liable for any violence done with it during his custody, “unless by precise agreement beforehand [diffinitis prelocutionibus] he had divested himself of any liability.” Much as we have seen in the case of Glanvill, the fundamental need to allow for exceptions creates a space for agreements between private parties; and this long before the development of Common Law.Footnote ⁸² Even more clearly than in the case of amicable settlements, which as I argue do not represent for the author a categorical opposition to judicial decision, this sense of agreements as providing for exceptions to standard regulations is not understood as defying or undermining them. Allowing for flexibility instead serves to strengthen rules by fine-tuning them.

The author explicitly reiterates the somewhat over-dramatized idea expressed in his aphorism of agreements “overcoming” or offering a clear alternative to “law,” in two more of his references to pacta or prelocutiones. He pens both of these lines in a discussion of the postponement (contramandatio) of hearings, a context in which contingencies proliferate at every turn. In fact this topic accounts for more of his references to these types of agreement (five) than any other. In a passage echoing his aphorism, the anonymous cleric notes that in many cases parties can arrange adjournments among themselves, even if this contradicts standard guidelines: “If the day for a hearing is postponed by notice …, then … the hearing will be postponed—unless the cause is one which ought not to be postponed, or an agreement has been interposed which supersedes the law of postponements [uel pactum intercesserit quod legem contramandationis uicerit].”

Using the same three key words that appear in the aphorism, pactum … legem … uicerit, this sentence applies the capacity of agreements to “overcome” law only to certain specialized bodies of rules, the “law of postponements,” and even then only in certain instances. The author reiterates this idea in somewhat more expansive terms a few lines later: “We have recounted these things according to the law [secundum legem]; if anyone has made an agreement in other terms [pactum fecit aliter], he may have it; the legal rights which are agreed to by both parties [ius diffinitum utrimque] require precise agreement beforehand [diffinitis prelocutionibus].Footnote ⁸³

The underlying logic here is precisely analogous to the typical usage of the legal maxim conuentio legem uincit in works such as Glanvill: agreements can sometimes “trump” law in specific cases, without thereby vitiating the legal norm or principle in question. By recognizing that some legal guidelines allowed for flexibility, the LHP's author shows that, far from opposing legal technicality, he was quite at home with it.

Moreover, although the abovementioned comments about non-contentious agreements certainly reflect the author's awareness that customary norms were flexible, they go beyond the form of this idea most well known in recent scholarship. Stephen White, for instance, has argued persuasively that many customary norms, for example, that lords should reward their followers, or that gifts should be made with the approval of kin, operated similarly to the moral principles expressed in epic poetry, which “articulated only a general standard of customary practice,” and which remained open to contestation by different interpretations and by opposing but equally valid norms. Indeed, scholars have recognized that the preference for compromise was one of these general norms, especially since 1978, when White incorporated the LHP's aphorism in the title of his first article on medieval disputing, even though he used this statement merely to encapsulate more explicitly the preferences he found in western French conflict resolution.Footnote ⁸⁴

In contrast to these general norms, which do not entail a clear distinction between the legal arena and wider social and religious values, those targeted by the above-referenced discussion of flexibility in the LHP—with the partial exception only of the aphorism itself—are much more narrowly legal and procedural. It is no accident, of course, that such non-mandatory rules concern neither violence nor important royal or ecclesiastical rights. However, the fact that the author was able to formulate so explicitly and compactly this vital juridical idea—that detailed legal guidelines may be set aside when the parties agree to do so—speaks not only to his own intellectual abilities but also to the sophistication of the legal system with which he was familiar. William Miller has observed a strikingly similar approach in certain areas of twelfth- and thirteenth-century Icelandic law, which, like modern commercial law, provided “a default setting,” from which the parties could “bargain out.” Even if England under Henry I was more literate and politically centralized than Iceland, the latter's famously law-minded culture serves as a reminder that a socially relevant, differentiated legal system does not necessarily depend upon the existence of a formal bureaucracy staffed by literate personnel. Although the LHP's aphorism itself may be anomalous in this regard, the larger discussion of which it is part is indicative not of a culture that shunned the courts, but rather of one that was intimately familiar with juridical technique. Greater attention to such features of customary law may help to attenuate the stark contrasts scholars sometimes posit between earlier and later medieval legal practice and thought.Footnote ⁸⁵

IV. Amicable Settlements in the LHP

Although non-contentious agreements were important for the author, he returns more often to the amicable settlement of disputes. The LHP's emphasis on friendly concords seems to accurately reflect the key role that many scholars have ascribed to them as a means of regulating medieval conflict. The LHP's sententious remark is only one of seventeen statements in this work that focus on such settlements, which the author describes using four different nouns (in addition to his aphorism's use of pactum in its broader sense): amor and amicitia five times each, pax four times, and concordia three times.Footnote ⁸⁶ Before analyzing what these passages say in detail, it is important to note that, whereas in most of them these terms seem to be used more or less synonymously, this varying vocabulary reveals that the author lacked a precisely defined, unitary notion of amicable settlement. This fuzziness is partly the result of these terms' wide semantic ranges, which go well beyond this specialized usage. Even in discussions of settlements, these words sometimes carry different meanings. For example the author uses pax most commonly in contexts other than conflict resolution, often with a very general sense, indicating a hoped-for state of peace, or more specifically in reference to “the king's peace.”Footnote ⁸⁷ But occasionally the LHP also uses pax to denote a specific kind or component of a settlement, as when someone making amends offers “an oath of reconciliation” (iuramento pacis), or when a party involved in a violent altercation is forced to surrender and seek “reconciliation and mercy” (pacem et misericordiam). I will return momentarily to these specialized senses of pax.Footnote ⁸⁸ Most significantly, the LHP uses amor and amicitia to refer not only to amicable settlements, but also to the more general sense of positive affective relations. For example, the author points to the overlapping, intimate, but non-erotic senses of at least three different terms for love and friendship, when he states that a party may wish to reach an accord (amicitia) in order to have friendly relations, or literally “love” (dilectio), which will foster “good will” (amor) rather than “ill will” (odio).Footnote ⁸⁹ Moreover, in a few of the passages in which Downer translates amor or amicitia as “friendly concord” or “amicable settlement” in the sense of a specific act of agreement, it would also be possible to prefer the simpler meaning of “friendly relations.” However, the fact that most of these statements are made, as I will discuss subsequently, within fairly technical discussions of legal procedure, suggests that Downer—like earlier translators and commentators—was probably right to consider “agreement” as the primary meaning in these cases, even if the more general idea of “friendly relations” necessarily remains as a secondary sense.Footnote ⁹⁰

As in the case of the non-contentious agreements examined previously, the LHP provides no explicit criteria for distinguishing between the various amicable settlements it mentions. Although most of the seventeen statements considered here clearly concern bilateral (or multilateral), voluntary agreements meant to end disputes, there was evidently a continuum between such final concords and other types of legal decisions, including some that are less tied to conflict, such as the pacta and prelocutiones examined previously, and others that contain an element of surrender or compulsion. The latter type of decision typically targets someone whose culpability is assumed, and who is therefore compelled to seek reconciliation and offer compensation. Historians have noted that medieval law usually treats the pacification of disputes between relatively equal parties quite differently from the punitive justice by which the powerful penalized the offenses of their social inferiors. Recent scholars have concentrated above all on the former type of dispute settlement, which has been seen by many as a characteristic feature of feuding in the context of relatively weak states. The substantial autonomy enjoyed by nobles and some others, at least in some regions, meant that they had to negotiate for themselves the terms of any peace they were able to establish.Footnote ⁹¹ However, this distinction between voluntary and compulsory settlements does not always hold, for even in the context of a freely chosen accord, one of the parties may, at a certain stage of the process, or with regard to a particular injury, admit fault, beg for pardon, or otherwise throw himself on the mercy of another party.Footnote ⁹² And in many cases, the texts simply do not illuminate enough of the context to differentiate punitive from bilateral settlements. Decisions about wergilds, the payments made to compensate for injury or homicide according to a scale of monetary values, are a case in point, as they could easily figure in either scenario.

Insofar as one can distinguish the bilateral, voluntary kind of dispute settlement, to what extent were such agreements also extrajudicial in character? As noted previously in the introduction, recent scholars have emphasized that these two features were not necessarily associated: courts themselves often favored and helped implement concords, whereas extrajudicial agreements might represent only one step in conflicts marked by an alternation between formal and informal strategies.Footnote ⁹³ At first sight, however, the LHP offers support for a simpler opposition between amicable settlements and standard judicial proceedings. Of the abovementioned seventeen statements that refer to bilateral accords, slightly more than half, including the aphorism itself and eight others, explicitly mention the contrast between them and court judgments. Most frequently (three times) a contrast is virtually identical to that of the aphorism, between “friendly agreement” (amor, amicitia) and “judgment” (iudicium).Footnote ⁹⁴ In two cases the text instead uses the term pax to make a similar distinction, between “a plea or its peaceful settlement” (de placito vel de pace), or between having judges decide cases or resolving them by “friendly concord” (a iudicibus … discernende uel … potius pace honestande).Footnote ⁹⁵ One passage indebted to an Anglo-Saxon text contrasts amicitia to both law and judgment, by noting that when a party has a choice between “amicable agreement or legal proceedings” (amicitie uel lage), and he chooses the former, it should be as binding as “a legal decision” (iudicium). Finally, in two cases, the comparison is more complex, because the text lists “friendly agreement” (amor or concordia) as one option in a longer list of other possibilities, including judgment by battle, ordeal, and the oath of compurgation (bello uel iudicio uel lege sacramentali).Footnote ⁹⁶ The LHP evidently merits its reputation as a prime witness to attitudes that distinguished between amicable settlements and regular judicial proceedings.

In addition to the evidence of this repeated contrast, are there other indications to support the established interpretation of the LHP as favoring one side of this opposition, namely friendly concord? In fact, explicit statements of the author's inclination in this regard are few. Of course, his sententious remark itself clearly implies such an opinion through its categorical assertion that agreement and love are superior to law and judgment. Only one other sentence states this preference unambiguously, by appending it to a scripturally inspired injunction in favor of judicial impartiality: “All cases are to be determined by the judges with true understanding and are to be decided with equality without respect of persons, or, if it proves possible, are preferably to be settled by friendly concord [pace].” A few other passages may imply it, including two that contrast “friendly agreement” (amor or amicitia), which brings disputants together (congreget), to judgment, which separates (sequestret) them.Footnote ⁹⁷ The same implication might also emerge, as noted at the outset of this article, from the author's complaints about perjured oaths, conniving advocates, and corrupt or ignorant judges. The anonymous cleric concludes his most extravagant lament about such problems by claiming that it would be better to avoid altogether “the quite unpredictable hazard of the courts.” Even if this moralizing outcry cannot be taken at face value, the book's idea of “judgment” itself may suggest some sense of dishonor, coercion, or at least fear, given its extensive treatment of shameful crimes, the punitive fines and corporal punishments incurred by wrongdoers, and the appeal to divine judgment through the ordeals (iudicii, iudicii Dei) of hot water, iron, or battle.Footnote ⁹⁸

However, the author combines his relatively straightforward contrasts between settlements and judgments and a few emphatic declarations of preference for the former with other statements that suggest a more complex relationship between them. He does so in at least three ways: by portraying such concords either as 1) a normal aspect of legal procedure subject to judicial oversight; 2) supplementing official judgments rather than constituting an alternative to them in a strict sense; or 3) taking place in the context of a prescribed compensation that, as mentioned previously, cannot be clearly differentiated from punitive judgments.

First, the LHP makes clear that settlements were not seen as utterly removed from the judicial system. The author implies this in the injunction about judicial impartiality quoted previously, which points up the legal ambivalence of amicable settlements, by both linking them to and distinguishing them from judicial decision: judges themselves should encourage concord (pax) among disputants. Similarly, the author notes that in some cases the county assembly itself might encourage disputants to reach a concord, whereas in others the parties could make such an agreement in their lord's court. He also assumed that many settlements would be public, attested to by witnesses, guaranteed by oaths, and, sometimes, take place before royal justices. And where the text lists “love” (amor) as one option among others such as “decision by battle, or ordeal, or oath of compurgation, or duress,”Footnote ⁹⁹ the potential value of amicable agreement may lie more in the avoidance of coercive procedures than of legal formalities.

The author was nonetheless aware that such agreements might pose problems because of either their instability or their secrecy. On the one hand, he realized that at times an accord constituted no more than one step in a longer-term conflict in which the parties might have recourse to various strategies, in and out of court. Therefore he reiterates twice his belief that amicable settlements (amor, amicitia) should be as binding as court judgments. In one of these passages he expresses this idea more fully by explaining that, when an accord is reached (ex amore … conuenerit) before witnesses, neither party can annul it by means of a subsequent court judgment, “especially if a justice was present at the initial settlement.” Evidently, the author worried that people would go back on their agreements. His oblique criticism of such fickleness reveals an effort to shore up voluntary accords, a hope that they might more fully resemble formal judgments. On the other hand, private agreements had their limits, especially when it came to certain kinds of charges. Therefore, the text claims that anyone who has brought before a justice an accusation concerning such offenses as theft, “cannot make any secret or open settlement [reconciliationem], without the justice's consent.”Footnote ¹⁰⁰ It is true that here both the context of theft and the use of the term reconciliatio point to a compulsory, unilateral compensation, as distinct from the more honorable, bilateral kind of dispute resolution. Nevertheless, the author clearly felt that judicial officials should police what kinds of agreements individuals could make.

Second, the LHP describes various situations in which voluntary arrangements supplement, rather than replace official judgments. This theme emerges with particular clarity in a discussion of “those who spurn a just judgment,” and who thereby incur a special fine for this kind of disobedience (ouerseunesse). After detailing three rates for this fine depending upon whether the court was that of the king or queen (50 shillings), a bishop or an earl (25 shillings), or the hundred, a thegn, or a baron (12.5 shillings), the author addresses the problem of those who have lost the right to such fines, or whose claims to them are denied. Although he neither identifies these claimants nor reveals any specific reasons that might occasion such a loss of rights, the discussion implies that those with less judicial authority had to cede to those who had more, a process that, like appeals for default of justice, may ultimately have tipped the scales in favor of royal justice. The author begins by recommending that, even when someone cannot collect such a fine for an offense committed against himself or his men, he might nevertheless receive “honorable and proper amends,” but more “as a matter of friendly agreement [amicitia], not by way of mandatory obligation [necessitas].”Footnote ¹⁰¹ This is one of many passages in which the anonymous cleric seems to speak from the perspective of an experienced judicial official, dispensing advice to his colleagues: although sometimes it may be honorable to mollify a lesser lord whose rights in a certain case have been denied, this is a favor, not a requirement. In this passage neither the context, which concerns the hierarchy of jurisdiction between two claimants to judicial authority, nor the precise sense of amicitia, which invokes a two-way discussion only in order to effect a unilateral concession, fit the usual sense of a bilateral accord. Then, turning from the slighted lord to consider the culprit himself, the author goes on to recommend that, “if anyone makes amends to another for his misdeed …, and afterwards for the purpose of effecting a friendly accord with him [ex eius amicitia consequenda], offers him something along with an oath of reconciliation,” then this offer alone ought to satisfy the injured party.Footnote ¹⁰² In both of these examples, “friendly accords” are supplemental in the literal sense of depending upon and following after a decision that has already been made.

In these cases the idea of a friendly accord is also ambivalent in that it evokes an element of voluntary action, but in a context of distinct inequality between an offending subordinate and a superior whose authority must be acknowledged. In both of these passages the language of friendship serves as an idealizing gloss—the counterpart to the author's outbursts of pessimism—on the power relations of lordship and the judicial pecking order that mirrored them. Friendly agreements represent both a higher level of justice that goes beyond what the law requires to consider matters of honor, and the gracious gestures that serve to recognize a particular social and judicial position. In a way that scholars are coming to recognize was common in post-Carolingian Europe, the LHP's author deploys the language of friendship instrumentally, in this case in order to smooth relations within a judicial world teeming with lords and officials jealous of their prerogatives.Footnote ¹⁰³

Finally, five of the LHP's references to settlements concern the payment of wergild, the compensation owed by those who have injured or killed someone to the victim's kin. This context is ambivalent with regard to the balance between voluntary agreement and judgment. On the one hand, such compensations fit in perfectly with feuding, insofar as they represent an attempt to offer alternatives to another round of vengeance. Indeed, the LHP's lengthy description of wergilds has long served to show the survival of this system into the twelfth century. On the other hand, there is also evidence to suggest that by the reign of Henry I, wergild was being rapidly marginalized, if it was not already largely archaic, as royal justice claimed jurisdiction over a growing share of violent crime. In this view, even if wergild compensations survived, they were controlled more and more by royal and local courts.Footnote ¹⁰⁴

Overall the LHP's treatment of settlements in the context of wergild payments emphasizes voluntary agreement more than judgment, although not by a wide margin. Three of the text's five references to amicable settlement in this context seem to incline more toward the freely chosen, bilateral type of agreement. In one case the agreement is also supplemental in that it assumes a preliminary decision. In this passage the author, drawing on an Anglo-Saxon text, explains that after a schedule for payment of the wergild has been worked out and the first installments have been paid, “the parties may proceed by way of friendly agreement [per amorem procedere], if they wish to have the complete freedom to come and go as friends.”Footnote ¹⁰⁵ By allowing the parties to go beyond the required compensation, here amor evidently amounts to a local peace treaty, which ideally will eliminate suspicion and the threat of further violence. Taking place between roughly equal parties, this agreement resembles the bilateral accords characteristic of feuding culture. Two more of the LHP's references to wergild-related settlements also emphasize the parties' initiative or approval. At one point the author asserts that “in every [payment of] wergild it is better that the slayer's kin join in effecting a settlement [pacem] rather than arrange it individually,” whereas elsewhere he maintains that “a person who makes a friendly settlement [pacem] with anyone with respect to an injury or wrong that he has inflicted shall conclude it clearly with witnesses and the free agreement of the injured person's relatives.”Footnote ¹⁰⁶

In contrast, in two other cases, the LHP's mentions of wergild settlements evoke judgment more than voluntary agreement. In one instance, the author first strikes a harsh note by explaining that when a woman commits homicide, vengeance must be inflicted or she must pay compensation, whether or not she acted intentionally. But then he significantly qualifies this by adding, “however, friendly settlement and clemency [amicitie tamen et uenie] may also be possible, if the victim was at fault in some way, or if there are other extenuating circumstances.”Footnote ¹⁰⁷ Although the use of the term amicitia invokes some degree of voluntary, bilateral negotiation, both the charge of homicide against a woman and its close association with the idea of clemency suggest a context of punitive justice and merciful leniency. Similarly, a chapter devoted to homicide by magicians (malefici) begins severely by asserting that “homicide by means of poison or witchcraft … is not to be compensated for in any way.” The text goes on to outline three different possibilities for dealing with it: either the killer is handed over to the “mercy” of the victim's family and friends; or, if he fails to clear himself in formal proceedings, then he is “reserved to the bishop's judgment” (episcopi iudicio reseruetur); or, rather inconsistently, “by a favorable application of the law the matter may be brought to settlement by mercy or friendly agreement [misericordiam uel concordiam].” In the latter case, the magician must still pay off the victim's wergild and provide sureties for his future good conduct.Footnote ¹⁰⁸ Although by itself the phrase “settlement by mercy or friendly agreement” is somewhat imprecise, within the passage as a whole misericordia and concordia are closely associated, as both offer greater leniency than submitting the culprit to either irate kin or episcopal decision. In these cases of reconciliations in extremis for perpetrators who were not high-ranking males of good repute, therefore, settlements are largely subsumed within the judicial system.

In sum, the LHP's author's scattered remarks about amicable settlements add up to a complex picture of their role in the early twelfth century. Friendly concord constituted a vital technique for achieving this cleric's larger goal of keeping the peace in a society racked by sin, greed, and violence, one that in many cases appeared to him distinct from the formal judgments made at judicial assemblies. However, only a handful of comments state or imply a preference for concord. The most emphatic statements along these lines are also the vaguest and most general, and therefore, as with the author's aphorism, allow him to leaven his technical, legal discussion with moralistic advice. Taking into account the full range of the author's remarks on this topic, it becomes clear that for him amicable settlements often consisted of semi-formal agreements that were still subject to judicial oversight, that the judges themselves often encouraged, or that took place only after and pursuant to a judicial ruling.