The Emergence of Professional Law in the Long Twelfth Century

The object of this article is to draw attention to an area of European legal history that I think deserves more investigation. It is the change in legal practice caused by the transition from the diffused, undifferentiated, customary law of the earlier middle ages to the various forms of expert, esoteric, professional law that dominated the higher courts of the later middle ages. The suggestion that this has not been much studied may seem odd but, though much has been written on the new study of Roman law, those who work on it have tended to concentrate on the intellectual achievements of the glossators and post-glossators, rather than on practice. Practice in canon law has received more attention, notably from legal historians trained in the Anglo-American tradition, but this has not focused closely on twelfth-century origins. 1

The beginnings of English common law have also been much studied and, since it started off as largely a matter of procedures, that has indeed meant looking at practice. The traditional teleology of legal history has, however, prevented much cross-fertilization with the history of other legal systems. One example of the consequent detachment of English legal history is the assumption of some English legal historians that Roman law procedures were followed in what they often characterize simply as “the Continent” more generally and earlier than seems to have been the case in most areas north of the Alps. Both in England and elsewhere many legal historians concentrate on the period from the thirteenth century on, when sources become more plentiful. Meanwhile, social historians of early medieval western Europe, including England, have argued—to my mind successfully, though I am hardly unprejudiced—that early medieval law was not just a weak, ritualized, and irrational response to feuds and violence, but their investigations tend to stop before the professionals took over. 2 The result is that, apart from recent pioneering work on twelfth-century Tuscany by Chris Wickham, the transition in court practice outside England has been neglected. 3

It should not be. The different forms that the new expert and professional law took need to be looked at both comparatively and against the background of the earlier law out of which they all grew. My argument, however tentatively put forward, is that the difference between the new forms was less than our teleological traditions assume and that, in some ways, they differed less from each other than they all did from the old kind of law. The change from unprofessional to professional law that began in much of Europe during what I am calling a very long twelfth century seems to me to constitute an important stage of legal history. That is not because it was a change from irrationality to rationality. Law before 1100 involved a good deal of discussion, which was rational, not in the sense of being conducted according to fixed rules, like later professional law, but because it was conducted by human beings who were apparently using their brains on matters they thought important.4 It is not that expert or professional law is either better or worse than law without professionals. But it is significantly different and its emergence makes a significant difference to the society that surrounds it.5

I am using the word “professional” loosely and shall continue to do so for convenience. Definitions of what constitutes a professional lawyer vary. I have no quarrel with those proposed, for instance, by Paul Brand or James A. Brundage, but I do not want to get involved in definitions here.6 Formal qualifications, control of professional standards, and the earning of a living through legal practice, for instance, are all important and became important at different stages in different areas. My focus here is on the way law became a specialism and the preserve of experts.7 I am not saying that there were no legal experts before 1100. Leaving aside the lawyers and law schools of Wales and Ireland (these lie outside my field, however rashly I extend it), some people in many parts of western Europe were acknowledged to know more about law and custom than others. Some, like the judges and notaries of the tenth- and eleventh-century kingdom of Italy, probably made their living out of their knowledge, including their knowledge of the proper way to write legal documents.8 Most of those who were respected for knowing about law, however, were not specialists but had learned through experience in assemblies and courts that dealt with politics as well as law. Their skill lay as much or more in getting a consensus on what was customary and right from those present, or the more senior among them, as in formal knowledge of written texts.

That changed after 1100. The old kind of law was, of course, never entirely superseded. Older practices continued in lower courts in the countryside, which everywhere saw fewer professional lawyers, while even in Italian cities some mercantile and craft courts tried to keep them out for centuries.9 By the thirteenth century, however, many kinds of business, from making wills or conveying land to litigating, had come to require advice from legal experts. It was not just that advocates and judges in higher courts had particular rules for presenting, arguing, and judging cases that no litigant could afford to ignore. The changing forms of charters and other documents also imply the wide diffusion of a different but related expertise. By the thirteenth century, if not before, many were apparently written or drafted by men who could claim to know enough law to give their clients a title to protect them from the more obvious challenges. Most of these scribes learned their law through some kind of apprenticeship rather than attendance at universities, and they were regarded as professionally separate from advocates and judges in high courts. They were, however, part of the trend that should, I suggest, interest legal historians.

The new law practiced both by the elite and by notaries or country attorneys involved far more rules than the old. These rules, together with ways to apply or circumvent them, had to be learned. Those who learned and applied them began to develop assumptions and values about law that tended to diverge from those more widely accepted in the societies they served.10 As a result, when one studies their law one needs to adapt the processual approach learned from the anthropologists, which has been so fruitful for the embedded, diffused law of the earlier middle ages, so as to suit more rule-centered processes. New ideas and new rules came from Roman and canon law. Tracing the stages by which the Corpus Juris Civilis was recovered and glossed and by which the texts of canon law were collected by Gratian, his predecessors, and commentators, however, is not enough to explain the changes in practice. The study of Roman law was only part of much wider social, economic, and political changes that produced, along with more education and literacy, more bureaucratic governments. In turn, these governments produced and preserved more records and made more systematic demands on their subjects. Rulers needed experts to advise them and subjects needed experts to argue back. Economic and demographic growth meant more disputes that needed faster and more consistent resolution.11 Forms of more or less specialist, expert law therefore developed, in varying ways and at varying speeds, in areas where procedures were relatively little affected by Roman law.

The way that academic education and study burgeoned alongside practical literacy undoubtedly had a powerful effect on the new procedures. There was clearly a great demand for intellectual stimulus and exercise, which was met by what became the characteristic scholastic method of starting from a text of high authority and enough difficulty and complexity to make it worth being lectured on, expounded, and argued about. The Corpus Juris Civilis was just such a text, but the methods of argument used by Romanists and canonists, comparing texts and making distinctions, could also be learned from studying the Bible and Fathers or indeed the texts of Lombard law.12 What Roman law offered to practice (and I am concerned only with practice) was not merely a method of rational argument, which could be learned in other ways and from these other texts, but a whole mass of prescriptions and distinctions from Justinian’s Corpus that the prestige of Rome made authoritative. Once dug out of the texts, they stimulated those trained in argument to work out principles behind, for instance, the different procedures used for different actions or the difference between property and possession, that they could try to apply to their own societies. Such new ideas, even when integrated into what historians consider “customary law,” reinforced the need for special knowledge by which the custom of courts became the custom of professional lawyers. 

At a more superficial level, a certain prestige and profit might be achieved by merely adopting Roman terminology. Legal historians sometimes give low grades to the drafters or scribes of medieval documents who use words from Roman law in ways that the historians consider incorrect.13 But that hinders the understanding of the way a new legal culture grows. Doing things differently from either ancient Roman or modern lawyers is not necessarily the mark of confusion or lack of legal technique. Adopting new words may be a sign of trying out new ideas so as to adapt them to different conditions, which is surely an intelligent thing to do. Incidentally, it would be easier to trace the first signs of this kind of Roman influence if historians avoided using Roman words that are not in their sources. They should not, for instance, imply that a document refers to sententia when it actually uses the traditional words judicium or arbitrium. 

Lawyers who could use information and ideas they got from the Roman texts in their own or their client’s interest presumably found it all the more profitable as their knowledge grew into a specialism in which they were the experts. But I suspect that the new expertise was not developed only for profit: it must have been fun. It was surely not only the writers of glosses and treatises who were fired by intellectual enthusiasm. Like the fourteenth-century English lawyers whose debates are recorded in the Year Books, some of those who argued cases in Italian city courts by 1200 (and some, though not so many, by 1100) must have enjoyed stretching their minds and scoring points. The taste for close argument may well have affected men who attended courts and took part in judgments in the traditional way without becoming in any real sense professionals. The way that problems arising from accusations of treason were discussed in narratives of vernacular fiction suggests that they had an audience capable of appreciating complex legal arguments.14 The relations between theory and practice, legal learning and court experience, cannot have been simple. 

Italy: The Cerea Case

I propose to illustrate some of the problems in the relationship between the study of Roman law and the development of new procedures by looking at a series of documents that were drawn up in the course of a long dispute about an estate belonging to the cathedral chapter of Verona. The case has attracted attention before now, most recently because it evoked the earliest consilia to survive from the middle ages.15 I shall argue that the records of its earlier stages are also worthy of attention for the suggestions, however slight, they offer of the development of legal procedures in Verona and of the growing expertise of Veronese lawyers.16 

In 1038 the provost and two other members of the chapter granted an estate at Cerea, about twenty-five miles (forty-two kilometers) south of Verona, to one Isnardus, to hold for twenty-nine years. They used the standard method of a libellus, much favored by Italian churches at this time.17 Though the document survives only in a damaged twelfth-century notarial transcript, which needs to be supplemented by two much later copies, its poor Latin grammar suggests to me that it was accurately copied in the twelfth century. The notary and judge of the royal palace who wrote the original libellus in 1038, if not a good Latinist, was nevertheless what I would call a professional in a way that the scribes of most charters (or cartulary memoranda) north of the Alps at this date were not. He had probably not been to a formal school of law, but most notaries public later in the middle ages were also apparently trained on the job rather than at a university. He knew less law than they would, but there was less law that needed to be taught and learned: the expertise of eleventh-century notaries, despite occasional citation of written law, came less from book learning than from the kind of training suggested by the formalism of eleventh-century records of proceedings in Italian royal courts and by the careful provisions and the repetitions (idem, predicti, and so forth) of the 1038 libellus.18 

In 1042, long before the twenty-nine year libellus expired, Isnardus transferred his rights to Boniface of Canossa, marquis of Tuscany (d. 1052), who was much too powerful a figure for the chapter of Verona to tangle with.19 By 1070 he or one of his successors had granted Cerea to a local family, the counts of San Bonifacio. It is not impossible that he or they meanwhile secured a formal extension of Isnardus’s original term: though they do not seem to have acknowledged that they held Cerea from the canons, his successors later apparently admitted that they held it from the bishop, while the San Bonifacio in turn acknowledged their subordination to Boniface’s successors and to the bishop.20 Neither bishop nor canons, however, had any chance of getting the estate back until after Boniface’s daughter, the countess Matilda, had died in 1115, and, even more importantly, until after the power of the San Bonifacio family collapsed in 1135, when Albert, count of San Bonifacio and marquis of Verona, died without children.21 The vicissitudes of the lordship in the meantime are suggested, if problematically, by ex parte allegations in various disputes and by depositions taken in 1145 from witnesses, some of whom claimed to remember events and names well back in the eleventh century.22 The story was complicated not only by the conflicts of emperors and popes, in which Verona and the counts of San Bonifacio were embroiled, but by disputes both between the bishop and the chapter and between the chapter and the inhabitants of Cerea, and also—for some of the witnesses, apparently, as well as for us—by the obscurities and complexities of the San Bonifacio genealogy.23 

As soon as the chapter heard of marquis Albert of San Bonifacio’s death in 1135, their officials stepped in and took possession of Cerea.24 Ten years later, in 1145, some cousins of Albert brought a lawsuit against the canons, claiming the districtus of Cerea as a hereditary fief (feudum hereditarium) held from the bishop.25 The depositions I have referred to were taken in this lawsuit, in answer to sets of questions submitted both by Albert’s cousins and by the chapter.26 They are interesting not only for their content but for being taken separately from individual named witnesses in very much the way that Ordines Judiciorum (handbooks of procedure in Roman and canon law) would soon prescribe.27 The ordines cite Roman law, papal decrees, and the Book of Daniel in such a way as to make depositions of this kind look like a product of the new academic law, but that is somewhat misleading. In what are called the public courts of Italy, evidence had been taken in much the same way since early in the eighth century, if not before.28 Testimony in these courts was sometimes given collectively,29 as was usual, I think, north of the Alps.30 Surviving records of cases, however, give the impression that witnesses in Italy, whether produced by the parties or summoned by the judge,31 had quite often been named and had given their testimony singillatim, unus ad unum, as some of the records put it. What happened in the twelfth century was that the procedure became more regular and elaborate, so that written sets of questions and notarial records of depositions became separate items in the burgeoning documentation of professional law.32 

The Cerea depositions seem to have come a little way along this process. They look as if they could have been made in answer to fixed sets of questions, though these may not have been written down.33 Some of the questioning was said to have taken place in the bishop’s palace, in presentia parium, and some before the consuls (presumably of Verona) and other witnesses, rather than privately and apart from each other, as became the standard system later.34 The first surviving ordo to require separate and private examination of witnesses seems to have been written c. 1182–85. It says that separate examination was introduced non per leges nec per canones, sed per Danielem: according to the biblical story of Susanna’s trial for adultery, Daniel defeated the wicked elders who accused her when he asked them separately under what kind of tree the act had taken place and they disagreed.35 Given the concern of some of the early ordines with canon law, and the need for written records in appeals to Rome, rules about taking evidence may have been made and elaborated first in ecclesiastical cases.36 However that may be, though the rules were new, and though records of depositions survive in increasing numbers from the twelfth century on, much of the common form they contain follows that of Italian notaries long before. That does not make the development of the procedure in the twelfth century less interesting.37 It deserves investigation, not only as possible evidence for the influence of academic law but also, given the earlier precedents, as a caution against exaggerating that influence by assuming the novelty of all that became standard romano-canonical procedure. Nevertheless, formulation and elaboration of rules about the procedure probably stimulated thinking about the evaluation of evidence.38 In addition, the need to produce written questions was surely a stimulus to professionalism: devising questions for witnesses to answer (“interrogatories” or “articles”) demanded skill. The ordines seem to have soon recognized it as a job for advocates.39 

Marquis Albert’s cousins made their claim in the bishop’s court and the depositions were taken in his palace on 22 and 23 August 1145. According to an undated and anonymous statement of the chapter’s case, Albert’s cousins wanted the case decided by the bishop’s vassals (apud vassallos episcopi), non legibus sed per usum regni. On 23 August, however, the canons of Verona objected to the bishop’s jurisdiction in a case that affected his own rights. They appealed to the pope, who appointed a cardinal to decide between them and the bishop.40 The cardinal confirmed the canons’ right to Cerea against the bishop, who accepted the sentence and transferred the property to them per fustem.41 The San Bonifacio cousins, as well as apparently taking direct action against church property, which provoked their excommunication and an interdict on the city, then took their case to the consuls of Verona.42 

Either the consuls or, more probably, the chapter decided at some stage to seek more expert—or more prestigious—legal advice than they thought they could get in Verona. The result was what are at present the earliest known medieval consilia, which were delivered by panels of judges and laymen (laici) in Brescia and Milan.43 It may have been for their information that another undated and anonymous statement of the canons’ case was written.44 As Antonio Padoa Schioppa has pointed out, this reflects a high intellectual level, embodying a well-constructed argument that is constantly connected with principles of Roman law.45 It starts with the original libellus and its transfer to Boniface of Canossa, iure locationis, and then uses the depositions, telling how Boniface’s daughter, the countess Matilda, was said to have given Cerea per feudum to the mother of marquis Albert of San Bonifacio. It also points out what Albert’s cousins had failed to prove and states the church’s argument that Matilda could not have granted in feudum what she had only iure conductionis and that the case should be decided by reason and laws (secundum rationem et secundum leges), not secundum usum feudi. Usus feudi here, I suspect, means the new learned law of fiefs.46 The statement also refers to the cardinal’s recent sentence, to papal and imperial charters to the church, and to the chapter’s quiet possession since Albert’s death. 

Though there is no hard evidence that the authors of either consilium saw this statement, the reference both made to Matilda’s holding iure conductionis makes me think that they used it: it seems altogether more probable that they took the point from the statement rather than the other way round. Both panels of consultants ruled in favor of the chapter. The Brescians started with points drawn from the depositions and thought it not proven that Albert of San Bonifacio had held Cerea nomine feudi. Public instruments (presumably the libelli of 1038 and 1042) showed, they said, that Matilda had held iure conductionis and not in beneficium. Neither she nor anyone since had acquired prescription against the canons. The Milanese consilium, to which two authors of early parts of the Libri Feudorum contributed, started and finished with what seem to me slightly pretentious allusions to Roman law. It maintained that possession should be confirmed to the church, since it had been given and confirmed by the emperor. Like the Brescians and the anonymous statement it said that Matilda had held Cerea iure conductionis and went on to say that she could not give it in fief because to do so was to do what a colonus could not. They rejected the plaintiffs’ demand that the case be decided according to feudi usum (here surely meaning the academic law of fiefs) rather than leges. What Matilda or her father would have thought of having their rights assimilated to those of coloni is hard to imagine. 

In May 1147 the consuls of Verona, meeting in the bishop’s hall and in his presence, issued their sententia (using this characteristically Roman law word) in favor of the chapter. The two notarial documents that record it were written by Paltonarius, a notary and jurisperitus who had worked for the canons for many years, gave evidence for them in 1145, and copied out the libelli of 1038 and 1042 and other documents about Cerea.47 Though the chapter also employed other notaries and causidici, it is tempting to wonder if it was also Paltonarius who wrote the two anonymous statements of the canons’ case that are referred to above. The consuls may have seen one or both of the statements, in addition to the consilia, or had them read to them. If they did see or hear any or all of the documents, they may have found the second statement the most useful of all in explaining the case, though the consilia presumably carried a greater weight of prestige. Whatever they did or did not hear or see, the only indication of reasoning in their sentence is that it sets out the canons’ case more fully than the plaintiffs’, including explicit references to the libelli and the church’s charters. In the absence of any evidence that the original term had ever been extended, that seems good enough. Besides, the real reason why the chapter won was surely political: the Canossa family was gone and the San Bonifacio no longer loomed over the city as the marquis Albert had done.48 

Obscure and complicated as this account of the disputes over Cerea may seem, it is in fact much simplified. There is a good deal in the documents that is unclear and that I may have got wrong. But so far as I understand them, they raise questions about the nature of the impact of Roman law on practice in at least this one case. The chapter had advisers with some knowledge of Roman law and of the nascent academic law of fiefs, but one or more of them had practical skills as well, like that of drawing up lists of questions to be put to witnesses. At least one of them knew how to do solid work in the chapter’s archives to find relevant evidence and how to use it along with the witness testimony to construct a clear statement of a case. The study of Roman law had no doubt helped to develop the analytical and argumentative ability displayed in the statements of the chapter’s case but it did not do so alone: wider intellectual currents and the stimulus of using new procedures and adapting them to the needs of their own time, place, and case must surely have contributed as much. Whatever Veronese notaries and judices learned from law books or attendance at law schools, their pragmatic skills must have been honed by regular practice in court and in humdrum uncontentious business, writing documents, finding evidence in the archives, and marshalling arguments. 

Roman law, even in Italy, was not a package deal that obliterated all other ways of thought and practice. Wickham draws attention to the way ecclesiastical judges in Tuscany in the last quarter of the century, including a leading canonist, seem to have had a very relaxed attitude to legal authorities, evaluating the evidence of documents and witnesses in the light of their “practical knowledge of norms and procedures, a ‘common-sense’ knowledge in effect (though circumscribed by the cultural assumptions of the time, as common sense always is) without citing any written law at all.”49 Roman law offered ideas and language that invited innovations in practice. But it was practice itself and the confidence of experience and expertise that allowed the innovations to be absorbed so that they settled into regular use. The authors of the Milanese and Brescian consilia may well have been more learned in Roman law than any of the Veronese notaries and judices, but the practical intelligence revealed in the two anonymous statements, and the work that lay behind them, seem to me to offer better evidence of the essential, if rudimentary, skills of professional, as distinct from academic, lawyers. 

England, North France, and Germany

Roman law cannot be the whole story. The obvious example of early professionalization with relatively little influence from Roman law, whether or not mediated through canon law, is England. Although the authors of Glanvill and, even more, Bracton used Roman categories to organize their work, it is pretty clear that the need to organize and to develop new skills arose from the greater complexity of practice in the royal courts, and especially the multiplication of standardized original writs.50 As the register of writs grew, it served the same purpose as the Roman texts, Gratian, or the Bible in stimulating argument, but it was a different argument from that of Roman or canon lawyers. English common lawyers were differently educated and the small, cohesive groups of serjeants who dominated the royal courts quickly developed their own rules and customs of argument.51 Some of them must have noticed what went on in church courts but they either ignored or rejected what had become the standard romano-canonical way of examining witnesses.52 The Year Books suggest that by the late thirteenth century their arguments concentrated on points of law, with a rather anecdotal use of precedents, untrammelled by doubts about the facts that litigants alleged, so that the common law of evidence did not begin to develop for centuries.53 

By Paul Brand’s standards the common lawyers did not form a profession until the thirteenth century. Abbot Samson of Bury St Edmunds, who had studied the liberal arts and scriptures before he became abbot in 1182, was then able to learn enough different kinds of law on the job to serve as a judge delegate, astound an undersheriff by his knowledge, and be labeled a barrator.54 Soon, however, abbots, whatever their general competence, would need to employ at least semi-professional attorneys and sometimes serjeants to represent them in royal courts. Tentatively, since not enough work has yet been done on enough twelfth-century private charters, I suggest that their forms were already becoming regular enough to suggest the beginnings of expertise at what one could call the lower end of the profession.55 The standard English habendum et tenendum clause may have originated in London around the middle of the century.56 Warranty clauses were beginning to be standardized by its end.57 

It is difficult to say more at this stage about anywhere else without more help from secondary work than I have found in my admittedly superficial search. For instance, so far as legal historians of either France or Germany are interested in professional law, they seem to equate it with Roman or canon law. The possibility of a professional expertise acquired outside universities and practiced in secular courts seems not to be considered much before the fourteenth century or even later.58 This is worth questioning, if only to turn it from an assumption to an argument. Legal professions may well have developed later in France and Germany than in Italy or England and no doubt developed differently in different jurisdictions. Dispersed jurisdiction, combined with only a small input from Roman law (except, of course, in southern France) presumably meant varied rules and procedures and thus relatively diversified professions. But it still seems possible that growing economies and increased demands of government (at whatever level) before the end of my long twelfth century had begun to stimulate a demand for expert advice made by people who could afford to pay for it. 

In France, as in England, charters had begun to be more standardized before 1200.59 Soon after that the practice of getting them locally confirmed and copied, first by ecclesiastical and later by secular authorities, presumably gave more employment to more or less professional scribes, sometimes called notaries.60 Notaries are said to have been responsible for spreading knowledge of Roman law, and they certainly began to use Roman words and phrases, but some of these, like renunciation clauses, may have been largely cosmetic, expressing old intentions in new ways.61 In any case, French notarial practice, at least in the north, differed from that of Italy.62 What mattered was knowledge of local law, not what was learned in universities. 

As for court practice in northern France, the king’s court received witness testimony in the Roman-canonical form, probably under the influence of canon law, as early as 1190, and did so quite often before the mid-thirteenth century.63 This suggests, incidentally, that Louis IX’s legislation about inquisitions (enquêtes) may not have had quite the importance traditionally ascribed to it.64 Practice probably varied for a while and did so even more in other jurisdictions where the new method was taken up, as the procedure was absorbed, adapted, and became settled into local custom.65 Where it involved devising written questions and arguing about the answers, litigants may well, as in Italy, have needed help from those with experience in local practice.66 The Parlement of Paris probably became a more exclusive preserve of professionals earlier than did lower courts, but by 1283 Beaumanoir thought that many people in the Beauvaisis needed advice and advocates to speak for them.67 Coutumiers and books of practice (styles) did not begin to multiply until late in the thirteenth century, so that they may stretch my long twelfth century rather too far. But it seems fair to guess that the expertise they reveal may have been developing for some time. Most of their authors were apparently judges or officials but some may have been independent practitioners. Whoever wrote them, coutumiers were presumably intended for practical use.68 Procedure in the courts of what are called the pays de droit coutumier was becoming more complicated, partly by the incorporation of bits of learned law and partly by the accumulation of written rules and precedents, however haphazardly recorded and followed. 

One clear sign of the presence of professionals that can be found in thirteenth-century France is hostility to lawyers. There does not seem to be any good reason to assume that the snares of eloquence and the cunning of advocates mentioned in a Mâconnais charter of 1279 came only from those with a university education in law.69 All this, however vague and tentative, makes me wonder whether legal historians should not look as far back as my long twelfth century for the first predecessors, however less numerous and less completely professional, of Guenée’s late medieval gens de justice.70 

As for Germany, I have argued elsewhere that disputes over property sharpened in the twelfth century, with arguments about ius beneficiale that suggest a new sophistication of argument, provoking hostile remarks about cunning and sharp practice. Frederick I seems to have taken careful and informed advice in dealing with Henry the Lion in 1180, while a charter of 1186 mentions the production of witnesses secundum ordinem iudiciarium in a case held in his court in Germany.71 By the early thirteenth century Eike von Repgow, though not apparently in all respects a professional, clearly combined what looks like a general education in letters with long experience of courts in Saxony, an acute awareness of new problems, and an intellectual interest in hard cases. He was what I would call an expert, and he cannot have been the only one in Germany to have gained his legal expertise in courts rather than in the schools.72 

Some Tentative Conclusions

What I am arguing is that there is enough evidence of change in legal practice in different parts of western Europe during a long twelfth century to be worth further investigation, preferably comparing the different ways it seems to have happened, and the different systems that came out of it. In particular, I suggest that law was becoming more complex and rule-bound and that this was both the cause and the result of the appearance of specialists in legal practice. The whole process was closely connected with the rise of Roman and canon law, but much as it gained from them, there was more to it than that. I do not want to seem to underrate either the intellectual quality of what the jurists found in the Corpus Iuris Civilis or what they did with it, but we might consider what Bruce Frier has said about the rise of the original Roman jurists, namely that it “depended less on the specific content or rational interrelationship of the norms than it did on the fact of the jurists’ professional presence, and on the opportunities for legal security that their presence seemed to provide.”73 In the twelfth century too there was a need for legal security and legal skills. The law that was produced to answer the need was shaped by preexisting norms, customs, and local circumstances as well as by what was found in the texts of Roman and canon law. 

The lawyers whom historians call learned were not the only ones to think about law and create new procedures. New thinking was going on everywhere and was creating new law, whether we call the result Roman, canon, customary, German, or English common law—or indeed commune ius. So far as practice and procedures were concerned, the writers of texts, glosses, and even ordines may have been less influential than the mass of humdrum practitioners, who, however trained, had learned enough to find and weigh evidence and use it to construct arguments—as, I suspect, did Paltonarius of Verona. The lower reaches of legal experts, including those who wrote deeds and contracts and gave advice on uncontentious business, not only deserve more study but may repay it in so far as their work can be studied through the diplomatic of the documents they produced. Outside Italy and England the sources for what needs to be studied are scarce and scattered but I cannot help thinking that looking for them might reveal more. Because I do not like to discuss law without citing the Master, I conclude with Maitland’s remark that “Of all the centuries the twelfth is the most legal.”74 I suggest that legal historians with more time and energy before them than I have might find it rewarding to investigate its legal practice and to do it, if possible, in the comparative way that he wanted. 

Susan Reynolds is a senior fellow of the Institute of Historical Research, University of London. Earlier versions of this article were read to groups at the universities of Michigan and London and at the meeting of the American Society for Legal History in Chicago on 10 November 2001. She is grateful for the comments she received at all these meetings, especially from Charles Donahue and Daniel Smail, from the readers for the Law and History Review, and most of all at an earlier stage from Chris Wickham.


1. E.g., James A. Brundage, Medieval Canon Law (London: Longman, 1995); Charles Donahue, “Introduction,” in Select Cases from the Ecclesiastical Courts of the Province of Canterbury, 1200–1301, ed. Norma Adams and Charles Donahue, Selden Society, 95 (1981), 37–71; Richard H. Helmholz, Marriage Litigation in Medieval England (Cambridge: Cambridge University Press, 1974); Jane Sayers, Papal Judges Delegate in the Province of Canterbury, 1198–1254 (Oxford: Clarendon Press, 1971).

2. E.g., Michael T. Clanchy, “Remembering the Past and the Good Old Law,” History 55 (1970): 165–76; R. V. Colman, “Reason and Unreason in Early Medieval Law,” Journal of Interdisciplinary History 4 (1973–74): 571–96; Stephen D. White, “‘Pactum … legem vincit et amor judicium’: The Settlement of Disputes by Compromise in Eleventh-Century France,” American Journal of Legal History 22 (1978): 281–308; Susan Reynolds, Kingdoms and Communities in Western Europe (Oxford: Clarendon Press, 1984; 2d ed. 1994), 12–38; Jürgen Weitzel, Dinggenossenschaft und Recht (Cologne: Böhlau, 1985): 435–615, 914–41, 1023–59; The Settlement of Disputes in Early Medieval Europe, ed. Wendy Davies and Paul Fouracre (Cambridge: Cambridge University Press, 1986); Stephen D. White, “Proposing the Ordeal and Avoiding It: Strategy and Power in Western French Litigation, 1050–1110,” in Cultures of Power, ed. Thomas N. Bisson (Philadelphia: University of Pennsylvania Press, 1995), 89–123. Cf. the different approach and argument in Maurizio Lupoi, The Origins of the European Legal Order, trans. Adrian Belton (Cambridge: Cambridge University Press, 2000).

3. Chris Wickham, “Ecclesiastical Dispute and Lay Community: Figline Valdarno in the Twelfth Century,” Mélanges de l’École française de Rome: Moyen Age 108 (1996): 7–93; “Derecho y práctica legal en las comunas urbanas italianas del siglo xii: el caso de Pisa,” Hispania 57 (1997): 981–1007; Legge, pratiche e conflitti: tribunali e risoluzione delle dispute nella Toscana del XII secolo (Rome: Viella, 2000).

4. The general character of early medieval law seems to fit quite well the definitions of customary law in David M. Walker, Oxford Companion to Law (Oxford: Clarendon Press, 1980), 328–29, and Alan Watson, The Evolution of Law (Oxford: Blackwell, 1985), 43–45, 55–56, though it was obviously different from the kind of “customary law” that is practiced by professional lawyers. See, e.g., A. W. B. Simpson, “The Common Law and Legal Theory,” in Oxford Essays in Jurisprudence, ed. A. W. B. Simpson (Oxford: Oxford University Press, 1973), 77–99.

5. Chris Wickham, “Conclusion,” in The Moral World of the Law, ed. Peter Coss (Cambridge: Cambridge University Press, 2000), 240–49; cf. Coss in ibid., 3. I have found all the following suggestive, though they say more about how professionalization affects law than how it affects society: Niklas Luhmann, A Sociological Theory of Law, trans. Elizabeth King and M. Albrow (London: Routledge and Kegan Paul, 1985); Watson, Evolution of Law, 117–19; Vilhelm Aubert, “Case Studies in Western Societies,” in Law in Culture and Society, ed. Laura Nader (Berkeley: University of California Press, 1969), 273–81; Pierre Bourdieu, “The Force of Law: Towards a Sociology of the Juridical Field,” Hastings Law Journal 38 (1987): 814–53.

6. Paul Brand, The Origins of the English Legal Profession (Oxford: Blackwell, 1992), vii–viii, 50–51; James A. Brundage, “The Rise of Professional Canonists and the Development of the Ius Commune,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Kanonistische Abteilung 81 (1995): 26–63. Lawyers in Society, ed. Richard L. Abel and Philip S. C. Lewis (Berkeley: University of California Press, 1988–89), illustrates the difficulty of defining even a purely modern “legal profession.”

7. See Bruce W. Frier, The Rise of the Roman Jurists (Princeton: Princeton University Press, 1985), xiii, 67 n. 78, 272.

8. François Bougard, “Falsum falsorum judicum consilium,” Bibliothèque de l’école des chartes 155 (1997): 299–314; idem, “La justice dans le royaume d’Italie aux ixe–xe siècles,” Settimane di studio del Centro italiano di studi sull’alto medioevo 44 (1997): 133–76; Chris Wickham, “Justice in the Kingdom of Italy in the Eleventh Century,” ibid., 179–250; Giovanna Nicolaj, “Formulari e nuovo formalismo nei processi del regnum Italiae,” ibid., 347–79; Charles M. Radding, “Petre te appellat Martinus. Eleventh-Century Judicial Procedure as Seen through the Glosses of Walcausus,” ibid., 827–58, and idem, The Origins of Medieval Jurisprudence (New Haven: Yale University Press, 1988), 29–30, 44–54, 66–67, 74–98, 113–16. For Catalonia, see Michel Zimmermann, “L’usage du droit wisigothique en Catalogne du ixe au xiie siécle,” Mélanges de la Casa de Velasquez 9 (1973): 233–81; Josep M. Salrach, “Práticas judiciales, transformación social y acción politica en Cataluña (siglos ix–xiii),” Hispania 57 (1997): 1009–48.

9. Susan Reynolds, “Medieval Law,” in The Medieval World, ed. Peter Linehan and Janet L. Nelson (London: Routledge), 485–502.

10. Luhmann, Sociological Theory of Law, 140–42, 221–26. Cf. A. M. Honoré, “Legal Reasoning in Rome and Today,” Cambrian Law Review 4 (1973): 58–67, at 65–66.

11. For the connection with bureaucracy, see Michael T. Clanchy, From Memory to Written Record (Oxford: Blackwell, 1979; 2d ed. 1993). Max Weber is fundamental. See Economy and Society, ed. and trans. Guenther Roth and Claus Wittich (Berkeley, 1978), 775–76, 784–865, 975–77. But his view of English law as affected by lack of bureaucracy hardly fits this period (ibid., 759, 801).

12. E.g., Pietro S. Leicht, “Leggi e capitolari in una querimonia amiatina dell’a. 1005/6,” in his Scritti Vari (Milan: A. Gioffrè, 1943–49), 2.1:29–46.

13. E.g., (among many others) Marie-Louise Carlin, La pénétration du droit romain dans les actes de la pratique provençale (xie–xiiie siècle) (Paris: Librairie générale de droit et de jurisprudence, 1967), 64–65, 116; Paul Ourliac and J. L. Gazzaniga, Histoire du droit privé français de l’an mil au code civil (Paris: Albin Michel, 1985), 39–41, 49–50, 100.

14. Stephen D. White, “The Problem of Treason: The Trial of Daire le Roux,” in Law, Laity and Solidarities: Essays in Honour of Susan Reynolds, ed. Pauline Stafford, Janet L. Nelson, and Jane Martindale (Manchester: Manchester University Press, 2001), 95–115.

15. Antonio Padoa Schioppa, “Il ruolo della cultura giuridica in alcuni atti italiani dei secoli xi e xii,” Nuova Rivista Storica 64 (1980): 265–89 (also published in French in Confluence des droits savants et des pratiques juridiques [Milan: Giuffrè, 1979]); Ingrid Baumgärtner, “Rat bei der Rechtsprechen,” in Legal Consulting in the Civil Law Tradition, ed. Mario Ascheri and others (Berkeley: Robbins Collection, 1999), 55–106, at 60 n. 18; Gérard Giordanengo, “Consilia feudalia,” in ibid., 143–72, at 144, 162.

16. Luigi Simeoni, “Le origini del comune di Verona,” Nuovo Archivio Veneto 25 (1913): 49–145, and “Per la genealogia dei conti di Sambonifacio e Ronco,” Nuovo Archivio Veneto 26 (1913): 302–23, are fundamental for the whole story, though he was not primarily interested in the history of legal procedure.

17. Archivio Capitolare, Verona, Italy [hereafter ACV]: pergamine I.5.2v, 4 gen. 1038 (old ref.: AC 70 m. primo, n. 10); MS DCCLXXXVI, f. 71v–72r (seventeenth-century transcript); MS DCCCLXXXV, 1038 ff. 3–4 (Muselli transcripts, IV: eighteenth-century); Ferdinando Ughelli, Italia Sacra (Venice: Sebastianus Coleti, 1717–22), 5: cols. 754–55, prints a not very accurate transcript.

18. Armando Petrucci and Carlo Romeo, “Scrivere ‘in iudicio’: modi, soggetti e funzioni di scrittura nei placiti del ‘Regnum Italiae’ (secc. ix–xi),” Scrittura e civiltà 13 (1989): 5–48; Paolo Cammarosano, “Laici ed ecclesiastici nella produzione italiana di scritture dall’alto medioevo all’eta romanica’ in Libri e documenti d’Italia: dai Longobardi alla rinascita delle città, ed. Cesare Scalon (Udine: Arti grafiche friuliane, 1996); Giovanna Nicolaj, “Il documento privato italiano nell’alto medioevo,” ibid., 153–98; François Bougard, La justice dans le royaume d’Italie de la fin du viiie au début du xie siècle (Rome: École française de Rome, 1995), 281–309; Wickham, “Justice in the Kingdom of Italy.”

19. For Isnardus, see Andrea Castagnetti, “Note di storia politica e sociale,” in Le carte della cattedrale di Verona, ed. Emanuela Lanza (Rome: Viella, 1998), pp. xxxiv–xxxv. Arnaldo Tincani, “Le corti dei Canossa in area padana,” in I poteri dei Canossa, ed. Paolo Golinelli (Bologna: Pàtron, 1994), 253–78, suggests that his original grant was organized by Boniface.

20. Lanza, Le carte, no. 120, also partially printed and discussed in Simeoni, “Per la genealogia”; Vittorio Cavallari, “Il conte di Verona fra l’xi ed il xii secolo,” Atti e memorie dell’accademia di agricoltura scienze e lettere di Verona, ser. 6, 20 (1968–69): 203–74.

21. Simeoni, “Le origini,” at 122 n. 3.

22. Lanza, Le carte, nos. 120–22, 126. Ibid., no. 42 (1120), suggests that the canons had retained or regained some rights in the area but not quite what are implied by Padoa Schioppa, “Il ruolo,” at n. 66.

23. Simeoni, “Le origini” and “La genealogia.”

24. Lanza, Le carte, nos. 78, 81, 92–93, 113, 117, 120 (pp. 222–24), 126; Diplomata Regum et Imperatorum Germaniae, 8: Dip. Lothar III (Monumenta Germaniae Historica, 1927), no. 95, Richenza no. 4.

25. Lanza, Le carte, nos. 120–21.

26. There are three surviving twelfth-century copies of these depositions or part of them, of which Lanza, Le carte, no. 120 contains the two longer. The three vary in completeness and in the order of the witnesses they include. Where they overlap they make the witnesses say almost the same thing, with some verbal variations. None of the three says which party called the witnesses but the eighteenth-century ACV MS DCCCXXXVI: 1145, ff. 9r–11v (Muselli transcripts, V), perhaps transcribed from the apparently twelfth-century ACV AC 65, m. primo n. 4, which Lanza, Le carte, p. 220, reports as lost, includes thirty witnesses, of which it says that nine appeared for the counts and eight for the canons. The position of the rest is unclear. The witnesses for the canons start with Paltonarius (see below, note 32 and text at note 47) and include one who is not in any of the other three versions. The MS Lanza calls B”’ omits all those who, according to MS DCCCXXXVI, appeared for the canons.

27. For early rules on the examination (apart from the qualifications) of witnesses and on the recording of their testimony, see Friedrich Kunstmann, “Ueber den ältesten Ordo judiciarius” (In principio, c. 1171), in Kritische Ueberschau der deutschen Gesetzgebung und Rechtswissenschaft, ed. L. Arndt and others, vol. 2 (Munich: Literarisch-artistische Anstalt, 1853), 10–29, at 19–20, 25; “Olim (quidem) edebatur” (after 1177), in Bibliotheca Iuridica Medii Aevi, ed. Augusto Gaudenzi, vol. 2 (Bologna: A. Gandolphi, 1892), 229a–48a, at 236a-237b; Johann Friedrich von Schulte, “Der Ordo iudiciarius des Codex Bambergensis” (Quia iudiciarius, soon after 1182), Sitzungsberichte der Kaiserlichen Akademie der Wissenschaften. Philosophisch-Historische Classe 70 (1872): 285–326, at 308–12; Ricardus Anglicus, “Ordo iudiciarius” (before 1190), in Quellen zur Geschichte des römisch-kanonischen Processes im Mittelalter, ed. Ludwig Wahrmund, vol. 2.3 (Innsbruck: Wagner, 1915), at 41–49; [Bencivenne da Siena], “Der Ordo ‘Invocato Christi nomine'” (soon after 1198), in ibid., vol. 5.1 (Heidelberg: C. Winter, 1931), 104–11; Erich Genzmer, “Eine anonyme Kleinschrift de testibus aus der Zeit um 122,” in Festschrift Paul Koschaker (Weimar: Böhlau, 1939), 3:376–401, at 398–99. On early ordines in general and the dates, etc., of these texts, see Linda Fowler-Magerl, Ordo iudiciorum vel ordo iudiciarius, Ius commune. Sonderheft 19 (Frankfurt am Main, 1984) and idem, Ordines iudiciarii and libelli de ordine iudiciorum, Typologie des sources du Moyen Age occidental, 63 (Turnhout, Belgium: Brepols, 1994). See also Statuti inediti della città di Pisa, ed. Francesco Bonaini (Florence: Vieusseux, 1854–57), 689–91, 865–68, which probably date from some time between c. 1160 and the early thirteenth century: Claudia Storti Storchi, Intorno ai costituti pisani della legge e dell’uso (Naples: Europa Mediterranea quaderno 11, 1998).

28. E.g., Codice Diplomatico Longobardo, ed. Luigi Schiaparelli and C. R. Brühl, Fonti per la storia d’Italia, 62–66 (1929–73), i, nos. 19–20 (715); Placiti del “regnum Italiae,” ed. Cesare Manaresi, Fonti per la storia d’Italia, 92, 96–97 (1955–60), e.g., nos. 3, 33, 42, 51, 53, 56, 71, 76, 92, 94, 110, and inquisitiones nos. III, VI–IX, XIII. Chris Wickham drew my attention to this early evidence of the procedure. On its relative rarity in the eleventh century, see Wickham, “Justice in the Kingdom of Italy,” especially 200–201.

29. E.g. (sometimes combined with separate testimony): Manaresi, Placiti, nos. 4, 36, 58, 450, 453 and inquisitiones nos. X, XII, XIV.

30. Though Capitularia Regum Francorum, ed. A. Boretius (Monumenta Germaniae Historica Legum Sect. 2, 1883–1901), nos. 44, 61 (not apparently for Italy, for which see no. 102) say that witnesses should be separately examined.

31. I am not concerned here with the differences between the two forms of proof (or the origins of inquisitions) discussed by Heinrich Brunner, “Zeugen- und Inquisitionsbeweis der karolingerischen Zeit,” in his Forschungen (Stuttgart: J. G. Cotta, 1894), 88–247 and Die Entstehung der Schwurgerichte (Berlin: Weidmann, 1871); Donald A. Bullough, “Europae Pater,” English Historical Review 85 (1970): 59–105, at 92–96; Bougard, La justice, 194–203, 332–36. Of these only Brunner, Entstehung, 117–23, discusses the taking and recording of separate, individual testimony.

32. Earlier depositions were sometimes incorporated in the record of final judgments, but separate notarial records of depositions had sometimes been made before (e.g., the inquisitiones in Manaresi, Placiti). For earlier depositions at Verona, see Ughelli, Italia Sacra, 5: col. 793 (Verona, 1151); Lanza, Le carte, nos. 100, 113 (1140–42) and possibly nos. 91, 98 (1139–40): three of these were recorded by Paltonarius (see below, at note 47) and two suggest knowledge of the nascent academic law of fiefs or at least of Conrad II’s ordinance of 1037, on which see Susan Reynolds, Fiefs and Vassals: The Medieval Evidence Reinterpreted (Oxford: Oxford University Press, 1994), 199–202, 215–19, 224–25. For depositions elsewhere in early or mid-twelfth-century Italy, see Wickham, Legge, 82, 201 n. 27, 203, 205n., 222–27, 296, 305–10, 366–404, 460–61; Regesto della città di Pisa, ed. Natale Caturegli, Regesta Chartarum Italiae, 24 (Rome: Istituto storico italiano per il medio evo, 1938), nos. 344 (1135), 421 (1130×50); Atti del comune di Milano fino all’anno MCCXVI, ed. Cesare Manaresi (Milan: Capriolo e Massimino, 1919), nos. 15, 25.

33. For the apparently first known set of questions, see Le carte della prepositura di S. Stefano di Prato, ed. Renzo Fantappiè (Florence: Olschki, 1977), 1:499–501, and Wickham, Legge, 307–8.

34. Lanza, Le carte, pp. 223, 226.

35. Vulgate, Dan. 13:45–60; Authorized (King James: Apocrypha): Susanna. Ricardus Anglicus and Genzmer’s text of c. 1200 (and later ordines) also refer to Daniel. See Genzmer, “Eine anonyme Kleinschrift,” 382–83, 391–92.

36. Cf. Ivo of Chartres (c. 1000) in Paul Fournier, Les officialités au moyen âge (Paris: E. Plon, 1880), 314–15.

37. For the use of depositions by social historians, see Wickham, Legge and “Ecclesiastical Dispute and Lay Community,” with reference to other works at 7 n.

38. Jean P. Lévy, La hiérarchie des preuves dans le droit savant au moyen âge (Paris: Librairie du Recueil Sirey, 1939), 68. On practice, see Helmholz, Marriage Litigation, 127–34; Donahue, “Introduction,” 52–55.

39. E.g., Kunstmann, “Ueber den ältesten Ordo judiciarius,” 19–20, 25; [Bencivenne da Siena], “Der Ordo ‘Invocato Christi nomine,'” 111.

40. Ughelli, Italia Sacra, 5: cols. 783–87.

41. Lanza, Le carte, nos. 121–22, 126.

42. Simeoni, “Le origini,” 128–32.

43. Surviving only in two eighteenth-century copies: ACV MSS 786, 836; Ughelli, Italia Sacra, 5: cols. 788–89 (a not very accurate transcript of one). Comments: Padoa Schioppa, “Il ruolo,” 281–82; Giordanengo, “Consilia feudalia.” Simeoni, “Le origini,” 127, thought they were made for the consuls but on balance I think it more likely that they were made for the chapter, if only because they were preserved in its archive. Cf. Padoa Schioppa, “Il ruolo,” n. 73.

44. Lanza, Le carte, no. 126.

45. Padoa Schioppa, “Il ruolo,” 282.

46. Reynolds, Fiefs and Vassals, 215–31.

47. Lanza, Le carte, p. 265, and Ezio Barbieri, “Il notariato veronese del secolo XII,” in ibid., pp. lxi–lxxviii. See above, notes 26 and 32.

48. Simeoni, “Le origini,” 125–32; Castagnetti, “Note di storia politica e sociale,” pp. lv–lvii.

49. Wickham, “Ecclesiastical Dispute and Lay Community,” 73.

50. John L. Barton, Roman Law in England, Ius Romanum Medii Aevi v.13.a (Milan, 1971); D. J. Seipp, “Roman Legal Categories in the Early Common Law,” in Legal Record and Historical Reality, ed. T. G. Watkin (London: Hambledon Press, 1989), 9–36; Donald W. Sutherland, The Assize of Novel Disseisin (Oxford: Clarendon Press, 1973), 21–24; Richard H. Helmholz, “The Early History of the Grand Jury and the Canon Law,” University of Chicago Law Review 50 (1983): 613–27.

51. G. D. G. Hall, “Commentary,” in Early Registers of Writs, ed. Elsa de Haas and G. D. G. Hall, Selden Society, 87 (1970), pp. cxxi–cxxv; Brand, Origins; idem, “Courtroom and Schoolroom,” Historical Research 60 (1990), 147–65 (reprinted in The Making of the Common Law (London: Hambledon Press, 1992); idem, “Inside the Courtroom,” in Moral World, ed. Coss, 91–112; Donald W. Sutherland, “The Brotherhood and the Rivalry of English Lawyers in the General Eyres,” American Journal of Legal History 31 (1987): 1–8.

52. Select Cases from the Province of Canterbury, and “Proof by Witnesses in the Church Courts of Medieval England,” in On the Laws and Customs of England, ed. Morris S. Arnold and others (Chapel Hill: University of North Carolina Press, 1981), 127–58. Something like it was used in 1235: F. W. Maitland, Collected Papers (Cambridge: Cambridge University Press, 1911), 3:12–16; cf. The Treatise on the Laws and Customs of England Commonly Called Glanvill, ed. G. D. G. Hall (Edinburgh: Nelson, 1965), 32 (II.7); “Bracton,” De Legibus et Consuetudinibus Angliae, ed. George E. Woodbine and Samuel E. Thorne (Cambridge: Harvard University Press, 1968–77), 2:404, 3:71; Mark Macnair, “Vicinage and the Antecedents of the Jury,” Law and History Review 17 (1999): 537–90, at 547, 551–52; Charles Donahue, “Biology and the Origins of the Jury,” ibid., 591–96.

53. Morris S. Arnold, “Law and Fact in Medieval Jury Trial,” American Journal of Legal History 18 (1974): 267–80; F. Joüon de Longrais, “La preuve en Angleterre depuis 1066,” Recueils de la Société Jean Bodin, 17 (Brussels, 1965), 193–274, at 225–30; Thomas A. Green, Verdict According to Conscience (Chicago: University of Chicago Press, 1985), 16–19, 37, 111; John H. Baker, Introduction to English Legal History, 3d ed. (London: Butterworths, 1990), 90–94, 119.

54. Jocelin of Brakelond, Chronicle, ed. H. E. Butler (Edinburgh: Nelson, 1949), 24, 33–34, 40, 42, 44.

55. Earldom of Gloucester Charters, ed. Robert B. Patterson (Oxford: Clarendon Press, 1973), 16–30; Charters of the Honour of Mowbray, ed. Diana E. Greenway (London: Oxford University Press for the British Academy, 1972), pp. lxvi–lxx.

56. Reynolds, Fiefs and Vassals, 357–58.

57. Transcripts of Charters Relating to the Gilbertine Houses, ed. Frank M. Stenton, Lincoln Record Society, 18 (1922), pp. xviii–xxxiv; though cf. Paul R. Hyams, “Warranty and Good Lordship,” Law and History Review 5 (1987): 437–503, at 474–76.

58. Though see Helmut Coing, Römisches Recht in Deutschland, Ius Romanum Mediae Aevi, 5.6 (Milan, 1964), 26–28.

59. Arthur Giry, Manuel de diplomatique (Paris: Hachette, 1894), 813–19.

60. Dominique Barthélemy La société dans le comté de Vendôme de l’an mil au xive siècle (Paris: Fayard, 1993), 78–80; L. Carolus-Barré, “L’ordonnance de Philippe le hardi et l’organisation de la juridiction gracieuse,” Bibliothèque de l’École des Chartes 96 (1935): 5–47.

61. Yves Jeanclos, “Les renonciations au xiiie siècle d’après quelques cartulaires champenois,” Mémoires de la société pour l’histoire du droit et des institutions des anciens pays bourguignons, comtois et romands 29 (1968–69): 437–54; Peter Riesenberg, “Roman Law, Renunciations, and Business in the Twelfth and Thirteenth Centuries,” in Essays in Medieval Life and Thought Presented in Honor of A. P. Evans, ed. John H. Mundy and others (New York: Columbia University Press, 1955), 207–25.

62. E.g., in the use of seals. See Carolus-Barré, “L’ordonnance de Philippe le hardi,” 11–12; Barthélemy, La société dans le comté de Vendôme, 78–80; Christopher Cheney, Notaries public in England (Oxford: Clarendon Press, 1972), 40–41, 112–15.

63. Actes du parlement de Paris, ed. Edgard Boutaric (Paris: H. Plon, 1863), 1: ccxcvii (2); Wacllaw Uruszczak, “Le juges délégués du pape et la procédure romano-canonique a Reims dans la seconde moitié du XIIe siècle,” Revue d’histoire du droit 53 (1985): 27–41, at 35; Recueil des actes de Philippe Auguste, ed. H. F. Delaborde and others (Paris: Imprimerie nationale, 1916–), nos. 643, 727, 1370, and cf. 992, 1497; Layettes du trésor des chartes, ed. Auguste Teulet and others (Paris: E. Plon, 1863–1909), 1: nos. 1159, 1061; 2: no. 2417; Boutaric, Actes, 1: cccii, ccciv–cccxxviii.

64. It is dated variously, e.g., Marguerite Boulet-Sautel, “Aperçus sur le système des preuves dans la France coutumière du moyen âge,” Recueil de la Société Jean Bodin 17 (1965): 275–325, at 315–16, says 1254 and 1258 but see, e.g., works cited by William C. Jordan, Louis IX and the Challenge of the Crusade (Princeton: Princeton University Press, 1979), 204.

65. Recueil des actes de Philippe Auguste, nos. 1214, 1238, 1276, 1298, 1388, 1644, 1659, 1668, for instance, are either noncommittal or seem likely to refer to traditionally collective testimony. From 1270 enquêtes par turbe (see Laurent L. J. M. Waelkens, “L’Origine de l’enquête par turbe,” Revue d’histoire du droit 53 [1985]: 237–46) seem to have formed a learnedly framed combination of the two forms. For variations elsewhere, e.g., Documents rélatifs au comté de Champagne et de Brie, 1172–1361, ed. Auguste Longnon (Paris: Imprimerie nationale, 1901), 2:491–506 (some witnesses giving separate testimony, some in groups); Philippe de Beaumanoir, Coutumes de Beauvaisis, ed. A. Salmon (Paris: A. Picard, 1899–1900), § 1149, 1224–59; Adolphe L. Tardif, La Procédure civile et criminelle aux xiiie et xive siècles (Paris: A. Picard, 1885), 101–7; Joseph R. Strayer, “Le bref de nouvelle dessaisine en Normandie à la fin du xiiie siècle,” Revue historique de droit français et étranger, ser. 4, 16 (1937): 479–88.

66. Les Olim, ed. A. A. Beugnot (Paris: Imprimerie royale/nationale, 1839–48), 2:321 (33).

67. Beaumanoir, Coutumes, §174, 178, 182–85; Barthélemy, La société dans le comté de Vendôme, 78; Jean Hilaire and Claudine Bloch, “Connaissance des décisions de justice et origine de la jurisprudence,” in Judicial Records, Law Reports and the Growth of Case Law, ed. John H. Baker (Berlin: Duncker und Humblot, 1989), 47–68. Ordonnances des roys de France de la troisième race, ed. Eusèbe J. de Laurière and others (Paris: Imprimerie royale, 1733–1847), 1:300–301 shows regulation of advocates in the Parlement, and complaints about them, by 1274.

68. Guido van Dievoet, Le coutumiers, les styles, les formulaires et les “artes notariae,” Typologie des sources du moyen âge occidentale, 48 (Turnhout, Belgium: Brepols, 1986).

69. Ourliac and Gazzaniga, Histoire du droit privé, 57–60; Recueil des chartes de l’abbaye de Cluny, ed. Auguste Bernard and Alexandre Bruel (Paris: Imprimerie nationale, 1876–1903), 6: no. 5264 (p. 684); Yves Jeanclos, L’arbitrage en Bourgogne et en Champagne du xiie au xve siècle (Dijon: Centre de recherches historiques, 1977), 193 (on strepitus advocatorum).

70. Bernard Guenée, Tribunaux et gens de justice dans le bailliage de Senlis à la fin du moyen âge, Publications de la Faculté des Lettres de l’Université de Strasbourg, 144 (Paris, 1963); also Fredric L. Cheyette, “La justice et le pouvoir royal à la fin du moyen âge français,” Revue historique de droit français et étranger, ser. 4, 40 (1962): 373–94.

71. Reynolds, Fiefs and Vassals, 446–47; Diplomata Regum et Imperatorum Germaniae, 10: Dip. Frid. I, no. 952 (1186).

72. Reynolds, Fiefs and Vassals, 451–56.

73. Frier, Rise of the Roman Jurists, 282.

74. Frederick Pollock and F. W. Maitland, 2d ed., History of English Law (Cambridge: Cambridge University Press, 1911), 1:111.