The legal revolution and the discourse of dispute [625947]

2
The legal revolution and the discourse of dispute
in the twelfth centuryPaul Hyams
European attitudes toward secular law and dispute regulation in
general were transformed through a veritable legal revolution starting
in the eleventh century, but with its main thrust coming only after
about 1150. How cases were argued and processed before this date es-
tablished the place and character of law within the political culture of
the West with some permanence. A lawyer-dominated world came into
being. The timing and manner of the professional ’s advent on the scene
transformed the character of significant sectors in medieval life.
Law and dispute deserve a more prominent place in medieval
culture than they usually receive, especially during the “long ”twelfth
and thirteenth centuries. Conflict always reaches into life ’s core, which
makes the discourse with which we try to handle it culturally central too.
Beyond this, the Francophone world rethought its law just when its
most enterprising writers were rethinking fiction to create the romance.
The two seminal transformations shared many stimuli and influences.
Both homed in on psychology, intention, and motivation, privileging
questions about how people act. We see in each a similar puzzlement
concerning how we know what we think we know, and how in God ’s
name to be sure. Faced by the twin challenges of proof and truth, bothromancers and lawyers felt the lure of the miraculous to sort out the hard
cases, magic potions, fairies, ordeals, and God ’s judgment. In the mean-
time, each plied his trade toward money and advancement by relyingheavily on the gift of words. Rhetoric and grammar must have been quite
as essential to lawyers as logic. A juxtaposition of texts from the two
fields patently has much to offer to the decoding of each.
As numerous scholars have shown, literary sources can in fact provide
unique insight into law and dispute in this pre-professional era, and
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guide us in the reading of other sources. This is so for several reasons.
One concerns an atypical stage in the evolution of noble culture. Early
medieval noblemen had long used force of arms to impress their women-
folk and beat down their competition, on the battlefield or in the coun-
cils that framed their more violent activities. By the twelfth century
other options had emerged. A gentleman could distinguish himself
from his rivals by delivering a pretty plea in prose or verse directly
to his lady, or cut a courtly figure by a variety of relatively peaceful
means, such as demonstrating a new method of butchering deer after
the hunt.1For a relatively brief period in the twelfth and early thirteenth
centuries, he could also win admiration by his ability to plead in Frenchthe other kind of conte, a winning tale in some lawsuit. We see this best
from entertainment literature, best of all from the literature in French
(the medieval equivalent of today ’s fashion-leading American English)
that –like new forms of law –took off in the course of the twelfth
century.
Literary studies stand to gain too. Past studies by literary scholars
frequently fail to convince historians, on the ground that they draw on
assumptions abandoned by the specialists, concerning the workings of
medieval law. We need to cooperate across disciplinary lines in order
thereby to grasp better the expectations and goals of trials in the twelfthcentury and how people sought to implement them.
The trial as process
I start with some assumptions about the shape and thrust of the pre-twelfth-century trial. The aggrieved needed the opportunity to tell theirtales of loss and harm to those with the power to grant the redress they
sought, and do so in an effective manner to achieve their particular goals.
They had to address not just the lordly figure at the center of the scene,
but also many other people who moved on and off stage as they gathered
information and formed views that developed into court judgments.
Proof was the structuring goal of trial process. One should first try to
recover the ways in which contemporaries understood proof. Proof does
not always refer to the final, conclusive demonstration of truth. Theword often means something closer to mere evidence, that is, facts and
argument controvertible by counterproofs adduced by the opposition.
Yet not infrequently, discussion slides quietly and conveniently from thesecond meaning toward the first. In the twelfth century, Latin probare ,44 Paul Hyams
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French prover and their derivatives show the same ambivalence. Their
core sense of “test ”can be ambiguous as to whether it is still to be faced
or not. Since clear instances where such “proof ”words denote conclusive
proof in the strong sense seem rare, one must always be on the lookout
for a weaker sense.
The vocabulary of proof presents further problems. Only in the course
of the twelfth century did the Latin word evidentia (in classical Latin,
“clearness of speech, ”“distinctiveness of language”) cease to be a merely
adjectival neuter plural participle and begin to function routinely as a
substantive, “evidence. ”In this sense, it denoted the human side to a
procedure that was, in principle or devout theory, attributed for the mostpart to omniscient God, who alone could deliver conclusive decisions incourt, or for that matter on the battlefield. God ’s Judgment –in a form
that favored their side –was the goal toward which all parties tried to
move. It constituted a theoretical representation that certainly implied
nothing precise about the actual degree and depth of religious belief and
feeling among the actors. Within this framework, we find in the literary
texts much highly instrumental action by all concerned.
One would think that a divinely omniscient judge would need no
pleading of any kind. Certainly, we cannot yet expect anything like later
rules of evidence. But human actors want to satisfy each other that theyreally know God ’s mind, in the hope that what they present as His
judgment may end conflict. Human discomfort with uncertainty per-haps explains why the core notion underlying human proof is so visual.
Humans can never know hearts and minds as God does. They have to
make their decisions from surface appearances. Robert Grosseteste draws
a proper conclusion from judgments “per faciem. ”Full truth is beyond
human powers; only God, who sees into hearts and minds, can knowintentions.
2So, too, embedded within the word “evidence” is the notion
of visibility, that only seeing is believing. Something similar is implicitin the Old French word enseigne , much used in the romances to denote
something very like evidence, whose primary meaning is some kind of
visual sign such as a banner or pennant.
3Truth, it seems, should ideally
be as easy to see as the heraldic identification that knights relied on to tellfriend from foe on the field of battle. A champion in a judicial duel must
normally swear to the truth of his principal ’s case by what he had
personally seen or heard before taking arms for a duel.
4In a criminal
accusation, the most conclusive evidence (apart from a confession) was
the eye-witness testimony of two witnesses, a principle that had startedThe legal revolution and the discourse of dispute 45
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in Roman law but was adopted by the canonists and argued from a
variety of biblical texts.5A central part of the court ’s function, therefore,
was to commit its personnel to warrant what they had seen anddone in the course of the lawsuit, which helps to explain why parties
brought their supporters with them and courts were afforced with extra
suitors for important cases.
6One can see why the learned jurists of the
thirteenth-century law schools in search of a test for the degree of vehe-ment presumption on which to put a suspect to torture also fixed on a
visual cue. The case must be, they said, luce clarior , clearer than the light
of day.
The initial plaint, roughly equivalent to what lawyers today term a
statement of claim, was often called conte,“tale, ”the word used for such
other forms of storytelling as fairy tales and fables. This “count ”(as it
came to be called in law English) was met by a defense that was less
formal and verbally rigorous than legally trained scholars have some-
times thought. One story met another. The focus of these pleas is worth
close study. Literary pleading often centered less on the precise details of
what happened than why and how. The parties sought to persuade their
audience of their moral worth, that they were good people and in the
right, as we might say. Rational argument was clearly part of the story.
But the most convincing fictional examples tend not to come in thecounts. Instead, authors often present the suitors –partisans of each
side –as those who argue the merits of the case on the facts in the rational
and logical fashion we think we might use (e.g., Violette , lines 5385 –468,
6305 –11). If they got their arguments from the parties and their counse-
lors, this must have happened outside open court and beyond our
gaze. Authors treated the counts as a kind of mise-en-scène , intended to
direct the argument along routes favorable to the litigants’ purpose and
their own.
Each party sought an intermediate ( mesne ) judgment that awarded
proof in a form that gave its side the best chance of success. Pleading in
open court and much that went on behind the scenes was directedtoward this esgart (award) or iudicium . This declared, in effect, both the
issue, the question to be put to God for Him to answer, and the meansby which this should be put. Since God was not available for cross-
examination, the form of the question could be decisive. The esgart
more or less declared the court ’s view of right and wrong, which there-
fore became most likely. Everyone present, suitor and spectator alike,
knew that this allotment of proof would probably prove crucial. They46 Paul Hyams
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had been vigorously discussing the issues for some time and were well
aware of the differences between proofs, between, for example, a simple
oath, and the terrifying prospect of carrying a hot iron which the ordeal
required –proving innocence by a clean healing, and guilt by infection,
and which they preferred. Fiction writers certainly exaggerated the fre-quency of ordeals, and even of judicial duels. But the oath was ubiquitous
in both real and fictional trials. The underlying principle could be repre-
sented as the same. The swearer invoked the testimony of God or the saints
on whose relics he swore to warrant (confirm and guarantee) his case, the
premise being that God could then act to demonstrate truth or, in the
event of perjury, rectify the situation. The debate among suitors on this
esgart was therefore the real nub of the whole trial, all too rarely visible in
charter narratives of actual lawsuits. Fiction authors, however, naturally
press these debates into the foreground. Their assignment of set speeches
to leading proponents of each side may make less historical than literary
sense. But the issues and arguments have to be taken seriously as indica-
tions of genuine concerns of the day.
The organizing theme around which the disputants and their sup-
porters debated their opposing stories was a notion of wrong. Before the
late twelfth century there was no differentiation between crime and
tort, criminal and civil offenses.
7The complainant recounted events to
explain the manner in which he had been wronged and to seek redress
(e.g., Violette , lines 5128 –49); his opponent ’s defense first denied the
complainant ’s story, then customarily contended that the facts did not
support it, sometimes challenging it as untrue, more often contending
that the events did not occur in a genuinely incriminating manner. Much
turned on “how ”questions, matters of intention and style hard for
humans to judge with certainty. The goal of the pleading exercise wasto move a great man, some king or lord endowed with jurisdictional
authority, to act on your behalf. It was a petition for the justice that good
lords owed their followers. But complainants had more strident options
than this. They might, for example, challenge their adversary to defendhimself and his conduct physically in battle. The complaint behind this
“appeal ”shared the same underlying logic of wrong as was prominent
outside the law courts, in feud and warfare. Here Old French apeldenotes
a summons of a special kind (not the modern concept of “appeal, ”a
procedure to get an adverse judgment reconsidered): one “calls out” the
enemy to physically defend his person and actions before all eyes and,
more to the point, through the judgment of God. Direct vengeance was aThe legal revolution and the discourse of dispute 47
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further possibility. The quest to avenge wrongs, real and imagined, was a
major theme of the literature and surely also of the general culture.
The first problem for the aggrieved wishing to sue in court preceded
the storytelling. He had to persuade some court-holding lord to entertain
his plea, a need shown by the seriousness by which “denial of justice ”was
regarded. There were several moves a complainant must make to gain ahearing. His first problem was to gain access to the great man. Old English
laws confirm that this could be a challenge for anyone outside the
charmed circle of royal intimates. Having gained his hearing and told
his initial story, he must convince the great man of his seriousness and
good faith. This is the reason for the offer of proof, by which one promised
to do whatever the court deemed necessary or appropriate to establish theclaim to justice (usually in a formulaic phrase at the end, such as “prest
sumes del auerrer par quant la court e le Rey agarde ”[“we are prepared to
confirm (our plea) by whatever means the court and the king judge
appropriate ”],
8or in plea-roll Latin something like “per legem et consid-
eracionem curie ”). Most important, by this means the complainant com-
mitted himself to suffer in the event of failure whatever penalties he had
sought against his adversaries. Whoever sought an enemy ’sl i f ea n db o d i l y
members put his own on the line. This is the message behind the formalduel challenge. Since there were many opportunities to backslide, courtsexpected some kind of security that a complainant would appear on the
appointed day to carry out his often onerous and risky obligations. The
most dramatic manifestation of this was the throwing down of a gauntlet
as gage (symbolic deposit) for their intentions, but one might have to offer,
voluntarily or at the court ’s demand, friends as sureties, plus money or
other guarantees that one would come on the day set. A person used assecurity was called in Old French plege, Latin plegius ,m o d e r nE n g l i s h
surety ;f o r “pledge ”in the sense of an inanimate object, Old French used
gage, Latin vadimonium orvadium , and Old and Middle English wed.
The listening lord might still need persuading to adopt one’ s problem
as his own. It was necessary to convince him not to turn a deaf ear. Asmart complainant would seek to put his lord in a position where he
could not afford to be inactive. The best strategy was to represent one’ s
wrong as bringing shame and harm also to the lord. You were the lord ’s
servant, like your father before you. The act that had harmed you was
committed in breach of the lord ’s peace, in a manner that shamed him as
well as you. Such lines of argument, easily documented from fictionaltrials, became enshrined in time as the formal methods by which48 Paul Hyams
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thirteenth-century English plaintiffs gained a royal court hearing in the
common law action of trespass, fossil memories of the way things were
done before the advent of the new forms of law (e.g., Rose, lines 4744 –90).
Success in litigation required the support or threat of coercive power.
Recognition that one was in the right was an empty triumph if the
opponent never turned up. The aggrieved needed the lord to issue or
authorize a formal summons to bring into court on the appointed day an
adversary who might simply refuse if he thought he could get away with
it. Delay usually being in his interest, this summons was basic in the
same kind of way that the “serving ”of a writ over a debt or divorce may
still be today. In thirteenth-century England, recipients of royal writssometimes ostentatiously broke them to show their contempt.
9There are
cases of litigants actually being forced to eat the writs they carried –not
as hard as it may seem, since from c. 1176, writs were sealed close, that is,
folded up very small.
The appearance of both parties in court prepared to argue their case
was the exception not the rule. Here both literary trials and the lawyers ’
leading cases convey a false impression. The force required to securecourt appearance –a necessity in any legal system –had by the twelfth
century mostly been tamed into the cluster of rules that lawyers callprocess and distraint. But even in the twelfth century, many a villainmust simply have ignored unwanted summonses and citations to court.
Secular lords and kings had on occasion to mount military expeditions to
bring the recalcitrant to justice. Churchmen recognized their lack of this
kind of coercive power all too well. They were, therefore, both among the
first petitioners for royal assistance in twelfth-century England and very
imaginative in the various, often supernatural, means by which they
sought aid.
The need for coercive sanctions behind the legal process is shown at
many other stages of trials too. This was equally true in cases settled by
agreement, always the most desired outcome. Romance authors show
little interest in these non-trials, disputes that never generated drama.They were drawn to the literary possibilities offered by forensic speeches.
Much that they thought to find there differed greatly in character from
what would be expected in, or indeed acceptable to, a modern court. The
prudent man used all forms of persuasion available. The norms invoked
in court covered moral and prudential matters, and even extended to
proffers of money and other benefits, and blatantly political reliance on
influence and power (e.g., Rose, lines 4874 –77, 4914 –46, 4922, 4954 –55,The legal revolution and the discourse of dispute 49
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4976 –77). In such situations, it is not clear that one can expect rules of
evidence as such. Law school standards of appropriate discourse in court
were slow to win acceptance. Courtholders had first to appoint judges
inclined to take note of newfangled ideas from the professors, and let
them assume the authority to make litigants conform.
To claim that courts should hear only argument that is in some sense
“legal ”in character entails that courtrooms merit special rules of behav-
ior. There was little of this before 1150. A trial was an extraordinaryoccasion that excluded certain otherwise routine acts. There should be
no weapons, for example, too close to the area marked for the proceed-
ings (i.e., between the proverbial four benches). But secular trials had no
special venue. They happened in the same halls and other locations(including the open air) that hosted other kinds of assembly. And some
of the most important action took place out of the public eye. Unlike
respectable case narratives, fictional accounts reveal the considerable
amount of physical movement on and off the public stage, as it were,
in the course of a trial. It is in the first place evident that much of the
discussion from which the court made up its mind and formulated the
issues of the cases took place in the intervals between formal court sessions.
Nobody seems to have thought this inappropriate. Some procedural stagesof the trial process that were taken for granted by contemporaries, butopaque to us –such as the “view ”of disputed land and perambulation of
boundaries –seem designed to facilitate informal negotiations within the
community toward the verdict. The process did not end with public
pleading in the trial proper. When the presiding lord or judge deemed
the time ripe, he invited the suitors to consider their judgment and they
would often, perhaps normally, leave the scene to generate and orally
debate rival drafts in private. The aim was to facilitate free discussion.
This is democracy of a kind, beyond the easy control of lord and judge.
The modern term “pleadings ”is potentially misleading. Much court
talk was conversation of a very informal nature in various locations. Yet
the trial ’s progress was marked by a series of specific moments when the
exact words used were clearly very important. One obvious example lies
in the framing of oaths (discussed below). The general principle seems to
be that all speakers were in their own way maneuvering toward an issue
for God. The court had to decide on an issue more or less acceptable to all
concerned. This determined the wording of oaths that might either be
probative in themselves or simply define the questions to put to God
through an ordeal or duel.50 Paul Hyams
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This was the decisive forensic moment. Though its structuring sur-
vived into later law, experienced (if not professional) lawyers now did
much of the actual speaking in courts governed by carefully defined rules
on the need for a litigant to ratify the commitments his pleader had
entered on his behalf before the court would agree on the issue on which
to decide the case. The explicit evidence for this comes from Edward I ’s
reign, but the principle can be traced back to around the start of extantplea rolls, c. 1200, and surely derived from earlier practice. The mode of
proof, mostly jury trial by that time, had changed more than a basicpattern originally of parties speaking for themselves.
After the argument and the proof, the court still had to perceive the
result and implement it in such a manner that it would hopefully endconflict for good. Neither task was trivial. One reason for the growing
preference for the duel over other ordeals was the apparent clarity of its
denouement. A firm declaration of judgment might go far to determine
future events, for life naturally continued after the trial.
These pivotal moments of verbal precision and commitment at proof
and judgment were exceptional. This is a capital point. Fictional authors
relished the opportunity to wring drama from a high-tension staging
point, when their characters must tell the truth in the right way or come
to grief. We can understand such passages without resorting to the kinds
of interpretation of early medieval law in terms of procedural and verbal
rigorism that once dominated learned discussion. One must resist the
temptation to read back into the eleventh and twelfth centuries a verbal
exactitude documented from the later professional literature, which was
designed to train full-time lawyers in the increasingly written and com-
plex law of the thirteenth century. Thirteenth-century English law gen-
erated a rich professional literature, mostly written in French. Both
“practitioners ’aids ”and the Yearbook case reports that began slightly
later convey an impression of little fluidity in the pleading of issues.Literary trials constitute a more reliable guide to the open pleading style
of eleventh- and twelfth-century trials. There are no obvious signs of fearof verbal slips. Defenses do not seem, for example, to be “word for word ”
responses to the terms of the original complaint or conte (e.g., Violette ,
lines 2102– 49). If verbal precision was required in actual trials, it is
surprising that authors did not choose to highlight this in their fiction.The equivocal oath theme (discussed below) is a major exception here.
Open pleading also better suits the more political nature of earlier law,
and favors the kind of negotiation toward compromise that so oftenThe legal revolution and the discourse of dispute 51
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characterizes the style and content of legal argument in this period
before professional lawyers.
A discourse of dispute
Francophone culture of the eleventh and twelfth centuries was full ofconflict. Men, and often women too, had to argue their cases in courtsituations and justify their actions outside them. There has to have
been a shared discourse of dispute, through which they declared, argued,
opposed, interpreted, manipulated, and distinguished the norms by
which they claimed to have acted.
Stephen D. White was the first legal historian to direct attention
explicitly toward discourse, and his various studies are all required read-
ing. But much remains uncharted. One of the most intriguing chal-
lenges for an alliance of literary and historical scholarship to tackle has
to be the delineation of this discourse and its situation within the other
overlapping discourses of the general culture. Clearly, the result will
largely overlap with what White has called a “discourse of honor ”that
was in broad essentials common to both England and (at least) those
areas of western France that were at various times politically linked to
it.
10Our guarantee of this is the degree to which the nobility read and
listened to the same tales of justice meted out by King Arthur and evadedby Renart the Fox, then sat in each other ’s courts to advise on suits and
their judgment. In such ways, they exchanged customary notions andbrought their sometimes very different political and economic situations
into some kind of linguistic unity. But “honor ”alone is not the only term
of common understanding. Compatible conceptions of justice and right
circulated and set fashions throughout a Francophone world of Western
Christendom whose bounds reached as far as Jerusalem. Not everything
was done in the same way all over this area, but they understood each
other’ s language in important ways.
Space precludes more than a few examples of shared discursive
modes. One fundamental notion is the “undifferentiated ”notion of
wrong by which pleaders entered the discourse and maneuvered throughit. Much of the argument lay between contested views of who had been
wronged and in what way, moving on to consider how the wrongs might
be removed or mitigated without excessive loss of face on either side. A
full lexicographical study of Old French “wrong” words would likely
demonstrate the ubiquity of this approach to justice. There is a striking52 Paul Hyams
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absence of the distinction between criminal and civil law, between crime
and tort, so deeply embedded in modern Western culture and as familiar
to modern lay people as lawyers. It is a mistake to expect to read “crime ”
in the modern sense into twelfth-century literature.
This and other absences reflect the profound changes in European
attitudes caused by the reintroduction into the West of the teaching ofRoman law in the twelfth century, whose principles changed law in
Italian cities as well as the Church ’s canon law, and which set entirely
new standards for all secular laws.
11It also introduced a series of dis-
tinctions, drawn in writing to a quite new degree. The most important of
these for present purposes was that between law and fact, from then on a
distinctive feature of Western law, which can be shown to have enteredEuropean political culture through the law schools about the middle
of the twelfth century. This underpins today ’s influential myth that
(lay) jurors are judges of fact, while the (professional) judge declaresthe law. Before this, we encounter a seamless mix of factual and moral-
normative argument. It is not that people confused law with fact in
the eleventh century; the distinction simply did not normally occur to
them.
Foundational as this distinction is in principle, the actual transfor-
mation can be easily exaggerated. One can certainly find eleventh-century cases that turn on apparent factual issues. Nevertheless, one
has to ask whether any case could ever turn on a “clear issue of fact” in
any simple sense.
12And is there any such thing? The apparently straight
informational questions put to assize juries by the Angevin law reforms
turn out on examination to be a mixture of normative and factual
inquiry.13When twelve men of the neighborhood were asked to declare
whether a deceased landholder had been seized of his holding “in
demesne as of fee ”(this is the assize of mort dancestor ), they were being
invited to say a good deal more than whether they had seen him inphysical control of the land. Such factual seizin (crudely equivalent to
our notion of possession) could easily have been wrongful and illicit,which was often the point of the complaint. The assize jurors were being
asked for a preliminary opinion on the right to land, a question with more
far-reaching implications that ultimately only God was thought capableof answering. This and other similar novel legal procedures drew on the
old modes of inquiry, designed for an omniscient God, interested more in
the maximization of salvation than the details of any particular incident,
who neither needed nor recognized any law– fact distinction.The legal revolution and the discourse of dispute 53
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In early law, lexdid not yet denote lawyer talk or any extraordinary
discourse specific to the courts. In the thirteenth century, factum came to
denote a deed, the document recording a property disposition or similar
act. Not until at least the sixteenth century did it acquire the modern
English meaning implied by analytical discussion of the law– fact dis-
tinction. One might wonder if we should not treat all apparently factualstatements that arise in the course of trial narratives as “legally charged, ”
in the sense that they were infused with meaning for the adjudication ofthe disputed issues.
14Before the thirteenth-century distinction, there
was no distinction. When it arrived, it seriously affected the generalcultural balance of Western Europe, helping greatly to distance law
and lawyers from ordinary people and the general culture.
Norms and legalitas
For many lay people, and some legal analysts, norms and rules constitute
the very essence of Law. The classic account is H. L. A. Hart ’sConcept of
Law (1961). Law requires and implies the existence of rules. The worst
villains acknowledge this truth in their defenses. In the Chanson de
Roland , the traitor Ganelon invokes norms in plausible fashion to sup-
port his case for remaining at peace with the Saracens (lines 72 –73,
218–19). In what remains, I take up three basic points about norms that
apply equally to literary and real twelfth-century trials. I ask first whichof those cited in our trial narratives were distinctively legal, as a way to
explore legal culture and assess how much autonomy to ascribe to its
discursive space. I then seek to assess the degree to which we can expect
our texts to make explicit the norms to which the actors refer. I close witha discussion of God ’s judgment and the phenomenon of the equivocal or
ambiguous oath.
To what extent was there already in the eleventh century a domain of
the legal? Very few people seem as yet to have felt that their lawdemanded its own autonomous sphere of action. It follows that, pending
fuller inquiry, we should not be too quick to import modern legal
parlance into either our translations of twelfth-century fictional trial
scenes or our commentary on them. Non-lawyers today mostly believe
that their law should be stated explicitly in writing somewhere, so that
the courts can cite the rules on which they base their decisions. How
explicitly this is done is one way to classify and rate a legal system.Norms could certainly be stated explicitly even in the eleventh century.54 Paul Hyams
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The Decalogue , a text all churchmen were supposed to know, is one
excellent example. “Thou shalt not kill ”is disarmingly direct and simple
in form, but much more complicated in practice. The twelfth-century
schools were busy deducing from their texts similarly direct rule state-
ments; from the time of Pope Gregory VII, a genuinely learned literature
of canon law (the Church ’s own legal system) emerged out of the schools
to serve the Church ’s needs. Alongside, and at first largely in Italy, came
the study texts essential to the revival of Roman law.15Individually and
combined into the ius commune (law that took its principles directly from
Roman and canon law), these collections and commentaries with their
glosses gave the schools a standard by which to measure the law-ness, so
to speak, of courtroom language. But references to actual laws or prece-dents are conspicuous by their absence from secular courts.
Yet most cultures make at least some rules explicit, and may deploy
their norms with various degrees of explicitness according to circum-
stances.
16A nice case in point is that of the treatise Glanvill (c. 1187 –89),
which should be recognized as the earliest French coutumier . Any reason-
ably careful reading reveals a whole range of rule statements from more
or less direct quotation from recent royal legislation all the way to the
fuzziest of statements of what we did last time. Here and in the refer-
ences to judicial discretion as something to be carefully defined andconstricted, I think we are seeing a new kind of secular lawyer starting
to inject distinctions from the schools, and a new kind of rational order
into secular courts.
We should not expect anything directly comparable to this from the
softer customary world of earlier law and twelfth-century fictional trials.
Yet the young need to acquire their norms somewhere, and there are
normative texts available for rote learning: the proverb and its first
cousin the legal maxim. These pithy statements of good and bad practice
informed men and women in quite explicit terms about right behavior in
different circumstances. Their overall message is never simple, for they
had the exasperating habit of frequently coming in pairs, with oneencouraging what the other prohibited. We know them only from writ-
ten texts, which may distort, amend, or mistake originally oral messages
by making them seem more authoritative and stable in form than they
really were.
The corpus of legal maxims that continued in some measure to
influence legal thought into the nineteenth century began to take on
something like its lasting form in the twelfth century.
17The history ofThe legal revolution and the discourse of dispute 55
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proverbs at this time is less clear. The study of norms from both sources
will greatly enrich our overall cultural understanding. Proverbs and
maxims look as if they ought to have been used to educate the young.
Otherwise, the most probable means of transmission was, with a perti-
nent exception treated below, largely experiential. Children imbibed
their basic normative stock literally in their mother tongue along with
the milk from their mothers or nurses. Later they might learn how to
apply their norms to actual cases, by overhearing the discussions of
their elders in between court sessions, or when permitted to accompany
parents or other relatives to attend actual court sessions, as Hervey de
Glanvill recalled doing in East Anglia early in the twelfth century.18
Here, as elsewhere, literature supplemented direct experience.
Certain genres such as fable and fabliau encourage the direct statement
of some normative moral at their close. More often, better writers took
authorial pride in presenting lessons organically within their narratives,
so their audiences might discover them for themselves. Our romances
constantly reinforce simple normative lessons of right and wrong for
their audience. Some authors problematized with relish the difficult
questions, thus, signaling difficulties for sensible men to avoid in real
cases by negotiated settlements. The literary debates round an esgart can
show us not just the types of argument felt to be acceptable or persuasive,
but something of the way the author believed suitors to deploy their
norms in practice. In so doing, they figure among the most promising
evidence for the general character of the legal culture assessed by the
degree of explicitness with which it stated its norms.
Ami e Amile : a forensic and theological puzzle
This is one of many indicative points to emerge from any close reading ofAmi e Amile, a twelfth-century French romance where the focus on friend-
ship and sacrifice is sharpened by a trial.
19Amile is a house-guest of
Charlemagne ’s. One dark night Charlemagne ’s beautiful daughter,
Belissant, steals quietly and unannounced into the chamber where he
lies in bed. Her intentions, to secure him in marriage, were more hono-
rable than her chosen means. Amile, unable to see who she is, all too
easily reassures himself that she must be some serving wench, whose
unsolicited offer he can safely accept and enjoy on a cash basis. Alas, the
evil Hardré in the next room overhears what they are up to. Afterwards,
when Amile realizes whom he has slept with, he is horrified. He is atonce aware that he is likely to lose his head, even before Hardré shouts56 Paul Hyams
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through the wall that he will tell ( “conter ”) the emperor (lines 711 –13). In
the morning, Hardré tells Charlemagne what has happened and accuses
Amile of having shamed his daughter in bed and invites him to burn the
count at the stake (lines 726 –27).
The author does not bother stating that fornication is wrong. Clearly,
neither he nor his audience see anything wrong in sex with an unmarried
girl of low rank lacking champions. Nor does he think to tell his readers
that it is inadvisable to sleep with the king ’s daughter in an age
when this could still be construed as a political act amounting to thestaking of a claim on the realm itself. Such an act constituted a manifest
but undefined offense, if only because of the way it shamed her and
(more importantly) her royal father. There is evidence of conquerorslaying claim to land and lordship by bedding heiresses before 1100;
the 1352 statute that declared sleeping with the king ’s eldest daughter
to be “treason ”in England was certainly not making new law.
20
Disconcertingly, the label of traitor is reserved here for Hardré and
never applied to Amile. The intention can only be to declare opposition
to particular heinous acts. Trahison denotes an aggravated breach of
trust in acts comparable with the killing or betrayal of a lord. The authorgives no explicit statement of the relevant norms at all in this part of his
story.
None of this helps Amile anyway. He was in trouble because he had
been fooled, yet could not honorably save himself by explaining how. Ina Church court, Amile might have pleaded that he had made a material
error of fact, as in Gratian ’sDecretum , C. 22. 4, pt. III, and chapter 9 of the
book of Joshua.
21But this would have entailed a dishonorable accusation
that shamed Belissant, whom he was slated to marry. In the subsequent
confrontations with a very angry emperor, Amile staves off immediate
death with great difficulty and gains only the right to defend himself in
battle after a seven-month delay. This delayed disaster does little to set
his mind at rest. Everybody, author, characters, and audience alike, seem
to have taken for granted the existence of an active God who would dojustice as He deemed best. The author never permits Amile to doubt that
the outcome of the battle lay in God ’s hand, nor does he think to portray
him as considering confession and prayer for that God ’s mercy. Our hero
is left in dread of the outcome, not out of cowardice but because he knew
he had done the deed, and thought himself guilty. He could not deny the
deed, and so apparently saw himself as destined by God to be overcome
in the duel. The possible defenses or pleas in mitigation (or evenThe legal revolution and the discourse of dispute 57
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thoughts of flight) that we might harbor are simply beyond Amile’ s
conception, ruled out of court, had they come to his mind,
by contemporary notions of proper behavior. Escape, it seems, was
impossible.
Only at this point does the audience receive an express norm state-
ment, whose importance is signaled by aphoristic repetition: “Hom qui
tort a combatre ne se doit” (lines 994, 1016). No man, we are warned,
should knowingly fight a duel when he is in the wrong, or the conse-
quences will be bad, which on this occasion meant, in addition to Amile’ s
own end, the death of his sureties, Charlemagne ’s queen and her chil-
dren. But the author has made abundantly clear where he wants his
audience ’s sympathies to lie. Hardré is the traitor and called all the
nastiest names, despite the factual accuracy of his accusation.
Tension is now acute, yet the eventual escape route is already per-
ceptible. Amile has an identical twin, as it were. He and Ami, born to
different parents in widely separated locations but at the very same hour,
are impossible to tell apart. This is crucial, for an enraged Charlemagne
denies Amile the usual rights of an accused nobleman to find himself a
defender (lines 1023 –26). Ami cannot, therefore, fight openly as Amile’ s
champion. Oddly this might not have helped. The rules held that afterthe litigant ’s avowal, his champion became to all intents his exact
equivalent. This ought to have prevented the verbal trick by which our
author resolved his plot problem.
On the day Ami fools everybody, including the queen and Belissant,
who are now in despair, seeing their only hope to lie in God ’s miraculous
mercy. They know, however, that this is unlikely, since in order for God topardon Amile it would be necessary for an innocent man (as they viewed
the hated Hardré) to suffer shaming defeat and probably death. They
think that their man, whom everyone believes to be Amile, is lying in the
sight of God when he swears his oath, and that Hardré is telling the truth
(lines 1434 –40). The perjurer, should he even survive, must leave the field
publicly shamed and ready to be hanged (lines 1392 –93). His sureties will
also die.
Our author stresses the seriousness of the occasion in the exception-
ally stringent way he sets the scene for battle. The king, deeply wrongedin everyone ’s eyes by a bootless offense that richly merits dismember-
ment and burning, will not ransom Amile for all the gold in the world(lines 1247 –50; and compare Rose, lines 4884– 901). There is to be no
settlement (lines 1396– 98). He solemnly calls for silence and forbids58 Paul Hyams
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outside contact with the combatants until one of the pair cries “craven ”
(lines 1472 –75). This proclamation may have been necessary to restrain
hotheads among a highly partisan crowd.
The enemies then swear their oaths and declare in definitive form the
issue for God to determine. Hardré sets up his ultimate demise by the
terms of his oath. He clasps Ami by the right hand (and his left), an
evocative gesture retained in late thirteenth-century English formularies
that appear to have fixed forms of words. Hardré declares, “Hear now
Charles son of Pippin and all of you great and small, so help me God andthe saints who are here ”(meaning the relics laid out before him) “and all
the other confessors and martyrs, that I found this man whom I hold here by
the hand naked together with Belissant as if they were husband and
wife …So help me God that this is how it was ”(lines 1415 –24). Ami
has no difficulty averring in response that he lied, that hehas never slept
with Belissant or felt her white flesh in the nude, so he calls upon God to
let him leave the field safe and whole (lines 1425 –30). Notably, though
answering Hardré ’s accusation point, he is made neither to offer a gen-
eral denial nor a word-for-word response, in the way that older accounts
of early law might lead one to expect. The ensuing duel is a close-run
contest; Ami, who has begun to fear that he was up against diabolical
powers that he could never defeat, finally beheads the villain with hissword. Those who thought they knew what had really happened that
night are astounded, though nobody cries foul or denies a result that all
have seen.
What was the audience to conclude from this episode? The intended
lesson was surely not that either having sex with the king ’s daughter or
committing perjury by a trick was laudable or even licit in anythinglike normal circumstances. It may be permissible to conclude that men
could on occasion work to make God ’s judgment come out right, and
thus avoid the kind of decisions that made for the later maxim that“hard cases make bad law. ”Wicked men ought to lose their lawsuits.
This thought may become relevant only where those involved actively
sought God ’s mercy, and where their opponent placed himself so obvi-
ously beyond God ’s grace as Hardré had here. But the victory did not
come without cost. It is surely not by chance that our heroic duo had
much suffering to come before they were to live happily ever after. Such
considerations draw me finally to consider more directly the role of
God in real and fictional justice, along with the challenges of final
proof.The legal revolution and the discourse of dispute 59
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God ’s judgment, oaths, and justice
Amile’ s escape is patently due to a judgment of God. His author appears
never to doubt the routine operation of an active divine providence in
everyday life. His characters, like most others in medieval French fiction,
call upon God ’s aid at will. “Se Dex m ’est en aie, ”they cry, “So help me
God!, ”in order to summon God to support or (if he refused) punish
them.22Our author expected his readers to rejoice in justice triumphant.
The divine judge apparently chose to go by the allegata , even though
these included a substitution trick that could not conceivably have
escaped His omniscience. And if a divine judge is in some sense bound
to follow the allegata , tempered only by His assessment of the moral
worth of the parties, then surely human judges should follow suit. One
purpose behind the display of divine omnipotence may have been to
promote a less power-driven model of good law. But the devout approach
God from below as petitioners; they do not expect to bind God, however
cleverly they phrase their prayers, to be refused or granted. This leads to a
second point. You phrased your petitions, written or oral, to the best of
your rhetorical ability, showing your respect for your lord, by gestures
such as bowing, kneeling, or even full prostration before him. Then you
held your breath and awaited the response from on high.
This must be the context for the equivocal or ambiguous oaths that
feature in several contemporary fictional works. Here lay a sensitive spotin the legal culture of the real world. Since people lie, and never more
than in court, the men and women of the twelfth and thirteenth centu-
ries would doubtless have been as attracted by polygraph lie detectors as
many were in the last century. They stood committed, in principle at
least, to approximate their own adjudications to the infallibility of a
divine justice that always stood as a measure of human failure. Where,
then, should they turn if not to God himself?
Oaths, the main means to persuade God to validate truth, were a
major source of worry for all interested in justice. Some kind of recourse
to oaths, often as asseverations of truth guaranteed by a higher power, isnearly universal. That oaths are found everywhere in medieval fiction
surely reflects their importance in the general culture. They represent
the strongest of disputative moves. This is a double-edged fact. The oath
was too strong for many consciences. The Church was always afraid that
people would take God ’s name in vain the way the Second
Commandment told them not to (Ex. 20: 2 –19; Deut. 5: 7 –21). Moreover,
people knew that they and others lied, and that we sometimes try to60 Paul Hyams
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cover ourselves with ambiguous forms of words. Fictional authors could
make a joke out of this. Readers of Renart , Branch 10, lines 140 –50, 172– 78,
know in advance how to read Hersent ’s defense to the charge of adultery
with Renard, when she protests that Reynard had done no more to her
than he would to his mother, and that she has done no worse with her
body than a nun.23Since oaths were patently superfluous for an omnis-
cient God, orthodox doctrine was always in two minds on the topic. Thesimple word ought to suffice: “Let your yea be yea, and your nay be nay. ”
Oaths should certainly not be used frivolously or too often (Mt. 5:37).Yet in this fallen world the imperfect needed help to raise the odds that
sinful men and women would be truthful when this was crucial. So
professors asked the ancient question: must one tell the whole truth? orwas it enough not to lie?
In the end virtually all the theologians come down where we should
expect in a twelfth century obsessed by motive and intention. Peter the
Chanter (d. 1197) had taught his Paris theology students to be fully
truthful for the health of their souls.
24A concealed lie remained a lie,
whatever the form of words. If made on oath it constituted perjury, amortal sin.
25These schools discussions include some quite persuasive
contra arguments, supporting verbal understandings of truth, a position
assisted by Gratian ’s inclusion in his dossier of an extract from Isidore,
“Concerning one who swears by verbal trickery, ”which seems to aver
that God receives oaths in the way that the human recipient understandsthem.
26His point was, presumably, to warn the weak that God will judge
oaths by comparing the truth, as He knew it, to the way a recipient waslikely to understand the wording. Though later commentators were at
pains to emphasize this correct understanding, there was scope here for
one who so wished to suppress conscience and frame ambiguous oaths in
an hour of need, perhaps on the ground that “right ”was really theirs
anyway.
The questions remained indisputably live into the thirteenth century,
to an extent that indicates a continuing controversy outside as well as
inside the schools and law courts. Even churchmen felt the lure of the
accurate untruth on occasions when the morally justified were caught in
the net of a tight rule or unfortunately formulated litigation issue. The
canonist doctrine of equitas , inherited from Roman law, may sometimes
have helped to relieve clerical consciences.
27Canon law is, after all,
unusual among legal systems in its privileging of the maximization of
salvation above particular cases. The avoidance of scandalum , seen as theThe legal revolution and the discourse of dispute 61
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kind of publicity that harms simple souls in the mass, sometimes justi-
fied casuistry in ways not too distant from the ambiguous oath of
literature.
The key perhaps lies in those undifferentiated notions of wrong
discussed above, and in the way that a merciful God, all-knowing and
concerned above all to maximize the number of saved souls, dealt with
sin. God judges the whole person; he is less interested in specific allega-
tions than individual salvation. All serious wrong harms him, but can
(usually) be discharged after a full and wholehearted confession by
proper penance. This makes the sinner a new person, and thus arguably
immune from the earthly penalty for an offense committed by his pre-
vious person. After confession the former thief could therefore licitlyswear innocence in some appropriate form of words and so evade the
human consequences of his old self ’s evil act. This ingenious view of
confession, that privileged divine justice over human, had some currencyin the thirteenth century.
28It spawned a line of vivid ordeal stories, in
which guilty heretics, persistent fornicators, and adulteresses escapedconviction by a sincere confession followed by appropriate penance. It
sometimes happened, however, that a temporary penitent later backslid
and then found God ’s justice when, for example, a now several-days-cold
hot iron scorched his hand. The message, that God will go to great
lengths to give sinners the chance to repent but does not forget, was so
fundamental that the withdrawal of Church support for the unilateral
ordeals barely slowed the stream of retellings.
These two lines of argument go far to explain what fictional authors
were doing when they introduced ambiguous (or equivocal) oaths into
their narratives. I take Yseut ’s famous oath in Béroul ’sRoman de Tristan as
my illustration.
29The situation is that Yseut and Tristan have been
committing adultery with great frequency but have contrived to keep
Yseut ’s husband, King Marc, uncertain of their guilt. At length, Marc
promotes the formal accusation of Yseut and has his court award that shepurge her guilt with a public oath. He clearly hopes to resolve thesituation for good. But he has underestimated Yseut ’s resourcefulness.
She carefully arranges that on the day fixed for the oath Tristan, dis-guised as an ugly leper, will be at hand.
Béroul at first plays this for laughs. The chosen site resembles Ascot
racecourse on a foul, rainy Gold Cup day. Yseut is dressed up for the
occasion, yet must somehow cross a deep bog to reach the chapel without
messing her outfit or destroying her resolve and morale. She permits the62 Paul Hyams
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disguised Tristan to carry her across piggyback. She then shrugs off
various attempts to word her oath to offer her own precisely weighed
formulation:
Qu’entre mes cuises n ’entra home,
Fors le ladre qui fist soi some,
Qui me porta outre les guez,Et li rois Marc mes esposez.Ces deus ost de mon soirement,Ge n ’en ost plus de tote gent.
(lines 4205 –10)
[That no man entered between my thighs, apart from the leper whoacted as beast of burden to carry me across the ford, and king Marc myhusband. These two I exclude from my oath, but I do not excludeanyone else in all the world. (author’ s translation)]
After her successful path, all suspicions should have been at an end.
Yseut seems at first glance to have escaped the charge with supernatural
ease, and in doing so to have proved –to use Hatto ’s all too brilliant
phrase from a different version of the tale –that verbal trickery could
manipulate a God “as pliant as a windblown sleeve. ”30But for Béroul this
conclusion is far from obvious. The couple return to their adulterous bedthen die the tragic deaths that transform this entertaining and morallydisreputable tale into one of Western culture ’s most enduring myths.
A contemporary audience might well read the outcome in the light of
the theologians discussed above. Béroul set up Yseut ’s oath from early in
his work. Yseut has planned her defense ahead of time, and is unfazed bythe possibility of an ordeal (lines 3232 –46). She lacks kin to help her secure
a favorable proof award (lines 2353 –54, 2362 –65). In any case, the accusers
are the felons and their hatred vitiates their case. God has already given the
couple a second chance, after a full confession under the guidance of thehermit Ogrin (lines 1370 –91). It no doubt helped that author and audience
believed that the appearance of wrongful love was refuted by the love
potion that caused their passion in the first place. Had they persisted in
their new guiltless personas, all might have been well. After their further
fall from grace, though, it is no wonder they die unhappily and alone.
In this reading, Béroul ’s poem ends tragically. It would then not
support any hypothesis that the decades surrounding 1200 saw a general
crisis of faith over the ordeal (or even of Truth itself), except possibly in
the sensitive consciences of some clerical intellectuals. Nobody at this
date, not even Gottfried, dared directly to deny an active providence. TheThe legal revolution and the discourse of dispute 63
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prohibition of clerical participation in the hot iron and water ordeals
enacted by the Fourth Lateran Council in 1215, as much human policy
decision as theological pronouncement, purported to cover duels ( mono-
machia ) too. Yet men ignored this to continue adjudging and fighting
duels; women continued to be impressed by them; and many authors
resorted to them for set-piece thrills or plot resolution. There is no sign
anywhere of skepticism over God ’s miraculous powers, still less of a new
level of concern about truth. Literary duels never validate known falseoaths and usually come to the “right ”conclusion.
The ambiguous oath stands ultimately as a splendid witness to a
tension underlying the whole discourse of dispute. The premise behind
its proof of right and wrong is an inerrant God prepared to declare truthand make his judgments manifest in human courts. Yet many men
prosecuted their feuds and disputes from motives of personal interest,
with expectations quite as self-centered as any litigant today. They were
equally disinclined to leave the results to chance or –worse still –the
choices of clerics and court officials whom they could not control. Sosome bribed or relied on the influence of the great and powerful, others
lied and perjured. Our authors knew this in more detail than we can ever
hope to gain, and they knew their audiences knew it too.
Notes
1.For example, Gottfried, Tristan , trans. A. T. Hatto (Harmondsworth, 1960, rev. 1967),
pp. 78 –82.
2.Robert Grosseteste, De Decem Mandatis, eds. Richard C. Dales and Edward B. King
(Oxford, 1987), 2.13 –14 (p. 29); 8.1, 3, 6 –7 (pp. 80– 82).
3.For example, Le Roman de la Violette ou de Gerbert de Nevers par Gerbert de Montreuil , ed. Douglas
Labaree Buffum, Société des anciens textes français (Paris, 1928), lines 551– 56, 955, 969 etc.;
Jean Renart, L er o m a nd el ar o s eo ud eG u i l l a u m ed eD o l e , ed. Félix Lecoy (Paris, 1963), line 3589.
4.Brevia Placitata (1951 for 1947), pp. 116, 127; Novae Narrationes (1963), B 11 –3, C 11 –3.
5.Paul Hyams, “The Proof of Villein Status in the Common Law, ”English Historical Review
89 (1974), 721 –49, at 728.
6.*Brand, Origins of the English Legal Profession (1992), pp. 10 –12.
7.*Hyams, Rancor and Reconciliation (2003), chs. 4 –7.
8.*Brevia Placitata ,p .1 6 .
9.For example, Curia Regis Rolls , 8 John– 10 John (1207 –9) (1931), v. 197; 11 John –14 John
(1210 –12) (1932), vi. 118, 128.
10.*White, “The Problem of Treason ”(2001), p. 107.
11.Bellomo, The Common Legal Past of Europe: 1000 –1800 (1995), offers a good survey, so long as
readers understand that the ius commune (legal systems combining the best principles of
Roman and canon law) is quite distinct from the English “Common Law. ”
12.*White, “Inheritances and Legal Arguments ”(1987), p. 89.64 Paul Hyams
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13.Mike McNair, “Vicinage and the Antecedents of the Jury, ”Law and History Review 17
(1999), 537– 90, at p. 546 n. 29; *Hyams, “Trial by Ordeal: The Key to Proof in the Early
Common Law, ”inOn the Laws and Customs of England: Essays in Honor of Samuel E. Thorne
(1981), pp. 90 –126.
14.John Hudson, “Court Cases and Legal Arguments in England, c. 1066 –1166, ”
Transactions of the Royal Historical Society 6th series, 10 (2000), 91 –116, at 104.
15.*Brundage, Medieval Canon Law (1995), ch. 3.
16.John L. Comaroff and Simon Roberts, Rules and Processes (Chicago, 1981), ch. 3.
17.Peter Stein, Regulae Legis: From Juristic Rules to Legal Maxims (Edinburgh, 1966).
18.*English Lawsuits from William I to Richard I (1990 –91), i, no. 331.
19.Ami et Amile , ed. Peter F. Dembowski (Paris, 1969).
20.Margaret Clunies Ross, “Concubinage in Anglo-Saxon England, ”Past and Present 108
(1985), 3– 34; Eleanor Searle, “Women and the Legitimization of Succession at the Norman
Conquest, ”Anglo-Norman Studies 3 (1981), 159 –70; *Bellamy, Law of Treason , (1970), ch. 4.
21.*Gratian, Decretum (1879 –81), cited by causa ,questio ,capitulum .
22.Christiane Marchello-Nizia, “De l ’art du parjure: Les ‘serments ambigus ’dans les
premiers romans français, ”Argumentation 1 (1987), 399 –405, outlines the case for this
Augustinian reading. Grosseteste, DeDecem Mandatis , 2.10 –11 (pp. 26– 28), rehearses the
ghastly consequences of perjury.
23.Le Roman de Renart , eds. N. Fukumoto, N. Harano, and S. Suzuki (Paris, 2005).
24.Peter ’sVerbum Abbreviatum , c. 120 ( PL, vol. 305, cols. 309C –11C), cited by John
W. Baldwin, “The Crisis of the Ordeal, ”Journal of Medieval and Renaissance Studies 24 (1994),
328–53.
25.*Gratian, Decretum (1879 –81), C. 22 q. 5 c. 12.
26.*Gratian, Decretum (1879 –81), C. 22 q. 5 c. 9.
27.J. Rambaud, in G. Le Bras, Ch. Lefebvre, and J. Rambaud (eds.), L’Âge classique, 1140–1378 ,
Histoire de droit et des institutions de l ’Église en occident 7 (Paris, 1965), pp. 352 –66, is a
decent introduction to canonical equity.28.Thomas of Chobham, Summa Confessorum , ed. Rev. F. Broomfield, Analecta Medievalia
Namurcensia 25 (Louvain, 1968), pp. 529 –30; Simon of Tournai, Disputationes , ed. Joseph
Warichez, Spicilegium Sacrum Lovaniense 12 (1932), pp. 70 –71; and Guido de Orchellis,
Tractatus de Sacramentis , eds. D. and O. Van den Aynde (Louvain, 1953), p. 130, all rehearse
this view before concluding against it.
29.Tristan et Iseut , ed. Daniel Lacroix and Philippe Walter (Paris, 1989).
30.Gottfried, Tristan , trans. Hatto, p. 248. Robert Bartlett, Trial by Fire and Water: The
Medieval Judicial Ordeal (Oxford, 1986), pp. 18– 19, cites this passage as evidence of skepticism
about the judicial ordeals. But without any indication that it comes from Thomas ’mostly
lost source version, Gottfried’ s remark looks to be his brilliant own.The legal revolution and the discourse of dispute 65
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