Extraordinary privilege: the trial of Penenden Heath and the Domesday inquest *. (Notes And Documents).

ONE of the reasons that the monks of Christ Church Canterbury held the memory of Archbishop Lanfranc so dear was their recollection of his strenuous work to establish and preserve the rights of the church. As the monks told it in the years after Lanfranc's death, this work included a long process of litigation to secure the lands and customs of his church against the depredations of William the Conqueror's half brother, Odo, bishop of Bayeux and earl of Kent. (1) Lanfranc was successful both in recovering the estates of the church and also in freeing `his men from the bad customs (malis consuetudinibus) which Odo wanted to impose on them'. (2) At the centre of this struggle was the trial at Penenden Heath.

This trial has been regarded as one of the most important events in the early history of English law because of the light it sheds on the relationship between Norman law and English law. The trial seems to serve as evidence of continuity, of Norman respect for the Anglo-Saxon legal tradition, and of the importance of memory in the transmission of this tradition. I would like to argue here, however, that the records of the trial are not wholly trustworthy, and that, especially in their claims about jurisdiction over offences committed on the highway, the longer accounts of the trial are fallacious. In fact, these accounts are spurious evidence concocted after the Domesday inquisitors refused to accept claims of inflated privileges for the church of Canterbury.

That the highway should be the object of such efforts may seem peculiar now, but it was an important issue to the monks of Canterbury: a memorandum of c. 1080 of'an inquiry subsequent to Pennenden (sic) by a sheriff or some other royal official' (3) states that the lands of the archbishop, of the abbey of St Augustine and of the late Earl Godwin are to be `free from every royal custom except on the old roads'. (4) Thus, freedom from the jurisdiction of royal officers over offences on these old roads through archiepiscopal lands would make those lands wholly free from outside interference. (5)

The narrative of events that has been taken as the principal source for the trial of Penenden Heath divides jurisdiction over these offences into two categories. Anyone caught digging in the `royal road that leads from city to city (regalem viam que vadit de civitate ad civitatem)' (6) or felling a tree across the same road (7) might subsequently be pursued and prosecuted by the king's officers without being caught red-handed. However, `if on the royal road (regali via), some [man of the archbishop] has spilt blood or committed homicide (sanguinem fuderit, aut homicidium) or has done something else which is in no manner permitted (aliud aliquid fecerit quod nullatenus fieri licet)', (8) that person fell under the king's jurisdiction only if he were held at once and gave a gage for his release. (9) In other words, the king's officers could not pursue into the archbishop's lands suspects who had not been detained in the act.

The privilege represented by this qualified jurisdiction appears in a document drawn up by the recipient of this privilege and thus may be viewed with suspicion. An examination of the various versions of the event justifies this suspicion. Apart from accounts in chronicles, the trial of Penenden Heath is known from seven manuscripts containing four closely related versions of the events. These have been summarized and labelled in separate articles by John Le Patourel and David Bates. (10) The shortest version (D) survives in a thirteenth-century roll at Canterbury. The manuscript has been asserted to be a copy of an `official' or `quasi-official' memorandum (11), on the basis that it is couched in restrained language and has a dating formula that matches the form of that in a document of 1072 relating to the struggle for primacy between Canterbury and York. The copy stops in mid-sentence, however, about a third of the way through the account given by the other versions. This is not because of lack of space in the roll. (12) As a result, D does not contain the section about the highway.

A longer version of events survives in two manuscripts: one (A) is a Rochester volume of the letters of St Paul, into which have been bound two folios as a separate gathering, containing the Penenden narrative and the first half of a charter of Henry I for Christ Church. (13) The other (B) is the twelfth-century Rochester cartulary, known as the Textus Roffensis, which was compiled in either 1123 or 1124. (14) Manuscript A has been dated palaeographically to `the late eleventh century or very early twelfth century', making it the oldest of the seven manuscripts. (15)

This approximate terminus ad quem for the compilation of this version receives some confirmation from the only other source to mention the particular jurisdictional rights won by Lanfranc over the roads; this is the Acta Lanfranci, the details of Lanfranc's life added to the Parker manuscript of the Anglo-Saxon Chronicle (i.e. Chronicle version A) at Christ Church. The section that includes the details of Penenden Heath was added as part of a block containing material from up to 1089; (16) the subsequent (and final) entry concerns Anselm's installation in 1093. Thus it may be assumed that the main section of the Acta was added during the vacancy of 1089-93. In the Acta Lanfranci's account of Penenden Heath, Christ Church's jurisdictional rights are greater than those in AB, so it is probable that the author of the Acta Lanfranci was working from AB, not vice versa. Thus we may assume that the longer version was available to the author and thus had been written by c. 1093.

A certain terminus a quo is offered by the inclusion of Arnost as bishop of Rochester among the witnesses, which pushes the creation of AB at least as late as 1075. Furthermore, AB's preamble suggests that it was probably written after William I's death, dating the trial to `tempore magni regis Willelmi qui Anglicum regnum armis conquisivit, et suis ditionibus subiugavit'. (17) More speculatively, the lauding of Lanfranc in the preamble might suggest that AB was compiled after his death in 1089. The simultaneous denigration of Odo could similarly be taken to suggest its compilation after Odo's final revolt and disgrace in 1088. (18) AB was therefore probably compiled c. 1090; indeed, it is perfectly possible that manuscript A was the form in which it was drawn up.

Two more Rochester manuscripts, one from the thirteenth century (C), the other from the fourteenth (E), contain another account almost identical to that in A and B, but with slight additions made in favour of Rochester. Finally, another version survives only in two fifteenth-century copies (F and G). (19)

Thus four distinct versions of events survive; of these, CE, a late version with elements interpolated solely to serve the interest of Rochester need not concern us here. So we are left with three: D, the truncated `official' version; AB, which can be dated to c. 1090; and FG. All three represent a genre of documents which was introduced from Normandy after the Conquest and became common in the early twelfth century, namely, as David Bates puts it, the `aide-memoire for their holders to relate the results of often complex pleading as well as, in many cases, its causes and circumstances'. (20) These documents would typically contain a narrative relating the iniquities of some villain that led to the case, settlement of the case in unquestionable circumstances by legitimate processes in front of eminent judges and numerous witnesses, inclusion of details of date and location of that settlement, plus a comment on the importance of preserving the memory of the event. (21)

The relationship between versions AB and FG has been studied by Bates. He has shown that, although it survives only in fifteenth-century copies, FG was compiled from AB in `the first decades of the twelfth century at the latest'. (22) In this case, as with other aide-memoires, the compiling of FG was used as an opportunity to enlarge upon the compilers' rights; as Bates puts it: `the "touching-up" of charters was an inevitable result of a situation in which records were generally kept by the beneficiary. Reports of pleas were extremely susceptible to such operations.' (23) FG was also the more precise record, according to Bates, and became the official version preserved at Canterbury, although later confirmations of the church's rights diminished its importance. (24)

Bates was only interested in the relationship between FG and AB. The relationship between D and AB has not been studied so intensively, because, as Bates puts it, `D may be earlier in origin than AB and may possibly be the formal record upon which it is based, but this hypothesis cannot be seriously tested since the section describing the franchise is almost all lost'. (25) I would like now to test the validity of AB in three ways: first, by examining its relationship to D; second, by examining its internal consistency; and third, by seeking independent confirmation of the privileges claimed.

(a) The relationship of AB to D: (26) AB and D contain enough identical phrases for it to be certain that one version was drawn up with the other at hand. For example, both state that `as conflict arose between royal and archiepiscopal customs, which could not be resolved on the first day, the whole county spent three days on the case'; and that the king ordered `the whole county to meet without delay and all the men of the county, the French and particularly the English who were acquainted with the old laws and customs, to come together'.

Nevertheless, there are four areas of difference between D and the corresponding section of AB. AB has a lengthy preamble; AB emphasizes the role of the English; AB inflates all the privileges granted by the addition of generalizing phrases; and AB has only a vague temporal clause whereas D has a specific dating clause. Let us examine these four differences in turn.

D and AB give different introductions to the trial. D states that the trial was convened at the order of the King and the request of the Archbishop `to deraign the liberties and customs which Christ Church has in its own lands and should have in the king's lands' and that disputes arose at the meeting between Lanfranc and Odo `who had usurped numerous lands of the archbishop'. In place of this, AB has a wordy preamble describing how Odo, `a man of such strength' that no one was able to resist him, arrived in England before Lanfranc and `exerting a considerable measure of might ... he seized numerous lands and quite a few customs of the archbishopric of Canterbury for his own use and by way of usurpation placed them under his domination'. When Lanfranc, however, was made archbishop of Canterbury and `primate of the whole of England', he, with great diligence and energy, discovered the truth and sought justice from the king. The purpose of this preamble is clearly to laud Lanfranc and denigrate Odo.

After the preamble, AB follows D in its narrative of the trial, but in so doing emphasizes the role of the English people present by adding small rhetorical flourishes. AB reinforces D's comment that the French and English assembled (convenire) by the seemingly redundant phrase `in unum'. (27) AB adds, furthermore, that they came together and sat down `equally (pariter)'.

When the narratives turn to the details of the trial itself and the specifics of the settlement, D and AB are again almost identical. However, AB enlarges each element of the settlement in Christ Church's favour by adding small generalizing phrases. Before the list of lands held by Odo's men, AB names as the men in question Herbert fitz Ivo, Turold of Rochester `and several others of [Odo's] men', plus Ralph de Courbepine, who appears in the both versions as a litigant in his own right. In AB, it is specified that it is not just the land which is sought but also `all the customs and possessions belonging to those lands'. Similarly, in the middle of the list of manors, the phrase `and many other small lands' is added. Where D concludes the list of lands with `all those lands he deraigned to be so free and quit that there was no man in the whole kingdom who could claim anything in them', AB adds `those lands and others' and `any claim no matter how small'. AB again adds `and others' to the mention of the lands in the next sentence. AB follows D in listing the confirmation of the conventional customs `soke, sake, toll, team, flymenafyrmthe, grithbrece, foresteal, haimfare, infangennedeof with all other customs equal or inferior to those, in lands and waters, woods, ways and meadows and in all other customs within the city and without, within the borough and without' but AB adds `and in all other places' to the last …