Análisis PEST

In L’Ancien Coutumier de Champaigne, the law book author, as a character, is less intrusive than in our other texts. Subjective judgements on morality are completely absent from the text. Instead, this author seems to root his authority in knowledge of local custom, just as the author of Glanvill roots his authority in his knowledge of the custom of the king’s court. As we have seen, several authors refer to custom; it is one of the most common rhetorical techniques. The rhetoric of L’Ancien Coutumier is marked by the use of certain repeated, recognizable phrases to gesture toward custom to accredit the legal code; the writer of L’Ancien Coutumier de Champaigne does so to a fastidious degree.

With only a couple of exceptions, every clause in L’Ancien Coutumier de Champaigne opens with a variation of the phrase “Il est coustume”. The variations on this opening statement include “Coustume est en Champaigne”, “Item il est encore coustume”, “Generalz coustume est en Champaigne”, “Encore use len”, and the interesting and somewhat perplexing “use len et len usé”. Current translators and dictionaries do not provide precise or satisfactory definitions of this final phrase. They are particularly delinquent in their lack of a definition for the term “len”. “Len” could be interpreted as a variant spelling of the Old French “long”. This would intimate that the phrase could be a rhetorical refrain with the sense of “it is the longstanding custom/usage”. More literally, it could be translated as “it is the longstanding custom and the custom has been used as such for a long time”.

“Use len et len usé” certainly has more of an almost musical or poetic quality. It should also be noted that it sometimes acts as a clause’s closing statement. The clauses in L’Ancien Coutumier de Champaigne end in one of two formulaic ways. Either they finish with a variation on the phrase “Ensinc en us’on generalment en Champaigne”, or they sign off with case evidence using real figures from local areas, usually either Champagne or Troyes. The case evidence is usually introduced by a variant on the phrase “Ce fu jugié à”.75 This phrase is also characteristic of this author’s favoured transmissive mode.

L’Ancien Coutumier de Champaigne uses these rhetorical techniques when tackling the issue of marriages among people of varying status. The text first

considers what happens when a noble woman (noble femme) marries a common man (homs de pote).

The long-standing custom in Champagne is that if a noble woman were to take a villain as a husband, the lord from whom she holds her fief need not take him as his man if he does not wish to. And if the woman has heirs who survive her after her death, they are disinherited, and the lord takes the whole fief into his domain: for the children should follow the worse condition.

Encore use len en Champaigne, que se noble femme home de pote à mari, li sires de qui elle tient de fié ne le prent à home se il ne vuelt. Et se la damoiselle a hoirs apres son decez, il sont desheritez, & li sires prent tout le fié en son demaine: pour ce que li enfens fuyent la pieur condition.76

The lord from whom the noble woman holds her fief has the right to refuse to “take as a man” her common husband. All of her heirs are disinherited, although it is unclear if such disinheritance occurs if the lord does choose to accept the commoner. The text seems to suggest that upon their mother’s death, her lands revert back to the lord. The text does not clarify whether the disinherited “hoirs” are the product of her marriage to the home de pote. The coutumes explain that this disinheritance occurs because “the children should be the worse condition”. Here, the inherited status of the children is not being constructed in the context of male or female transmission. Rather, we see the “worse” condition prevailing over any gentillece, regardless of whether the

gentillece belongs to the mother or the father. What is most striking about this passage is the disinheritance of the children, who are forcibly excluded from the landholding class (although the matter is unclear, the mother probably only loses the fief held from the lord objecting to her marriage).

The author also frequently uses case evidence to support the written law. For example, he describes how if a female serf were to take a free man in marriage, and he died without heirs of his body, she would remain free:

It is the custom in Champagne, that if a female serf takes a free man in marriage, and the free man dies without heirs of his body, that the woman should…become and remain free of any servitude all her life, because of the nobility of the free man whom she took as a husband…as long as she does not take a villein as a husband after the free man’s death. And if she takes a villain as a husband, and he

76_{Nouveau Coutumier General, ed. Bourdot iii, pp. 521-522. There is no English or modern French}

version of the Coutumes available, so this thesis will only consider them in the (rather approachable) Old French, and all translations are mine.

dies before she does, she reverts to a state of servitude, and back into the condition she had left.

Il est coustume en Chāpaigne, que se serue femme prent franc homme, & li frans homs se muert senz hoirs de son corps, que la femme emporte toutes manieres d’auentages, & de franchises, & demeure franche toute sa vie de toute seruitutes, pour la noblesse dou franc homme, qu’elle a eu à mary, & ne reuient, par la coustume qui est telle, en nulle seruitute de Seigneur, se elle ne reprent homme de poote. Et s’il estoit ainsi, qu’elle repreist homme de poote à mary, & it se meuroit deuant lie, elle reuenroit en la seruitute, & en la condicion, dont elle se seroit deuant partie. Ce fu rapporté à Troyes, par le conseil des Maistres tenans les Iours, l’an M. cc. IIII. xx. & xv. par la bouche Florent de Royes, aux Requestes.77

Here, the “noblesse dou franc homme” has a sort of transformative power over the woman. This remains even after his death, shielding her from returning to “seruitute de Seigneur”. In this text, “franc” seems to mean “noble”, whereas in other texts, such as Beaumanoir, “franc” means free but not necessarily noble. The “noblesse” of her deceased husband does not exert a completely irrevocable force over her status, however. Should she remarry to a “homme de poote”, and should he die before her, she would revert to servitude. It is unclear whether she would remain free during her marriage to the “homme de poote”, with her freedom only ending at the point of his death.

One of the most notable characteristics of the Coutumes is the insistence on basing the authority of the written code on judgments from what seem to be “real- life” cases. The case examples in the Customes of Champagne are usually introduced by the phrase “C’est assauoir” (“it is to be noted”) or “Item”.78 _{Take the case of}

Biaultrix de Poisson, of Iainuille, who took “un villain” from the land of Vaucouleur in marriage. The text informs us that “Messr. de Iainuille ot toute la remenance”; essentially, “The lord of Iainuille took all the inheritance”.79 The text also corroborates the written code with another case, wherein a nobleman took a common woman. The text tells us that Erars de Tinteville takes a common woman from Doulancourt, and as a result, he was disinherited.

Item Erars de Tinteuille ot la remenance de Corpie, qui ot une damoiselle de Doulancourt, que estoit suers Oudinaut. Et lor ossioit li sires de Iainuille, & lidiz

77_{Nouveau Coutumier General, ed. Bourdot iii, p. 544.} 78_{AND < http://www.anglo-norman.net/cgi-bin/form-s1>.} 79_{Nouveau Coutumier General, ed. Bourdot iii, pp. 521-522.}

Erars, à faire droit à la coustume de Champaigne, & il ne l’oserent actendre, & furent desheritez.80

The inclusion of case evidence, in addition to corroborating the author’s point, also expands our understanding of the ideal “teacher of law”. This rhetorical technique could demonstrate an authorial concern with incorporating real examples, perhaps the records of which the student may be able to consult. This emphasis on tangible evidence diverges from Beaumanoir’s use of hypothetical situations. Beaumanoir uses imagined figures to demonstrate the different ways law should be interpreted and applied. The coutumes, by contast, supply concrete examples of how the law has already been interpreted and applied.

Conclusion

The use of rhetorical devices to transmit norms of law, conduct, and justice expands our conception of the legal author to include storyteller and even poet. Indeed, contemporary literature seems concerned with many of the same issues as the legal texts, such as legal procedure, elite conduct, and the administration of justice. One piece of literature, when taken in conjunction with the legal dictates on lordly honour seen above, potentially sheds light on how a lord could work within the sanctioned set of lord–vassal honour codes to his benefit. In Graelent, one of Marie de France’s lais, the queen suggests to the king that it might be valuable to retain his vassal in order to prevent the vassal from testifying against him. She counsels the king not to pay Graelent very much so that he cannot leave or take service with another lord: “La Roïne li desturneit,/ Au Roi diseit è conseilleit/ Ke nule rien ne li donast/ Por le cunroi qu’il n’en alast:/ Povre le tenist entur lui,/ Qu’il ne péust servir autrui”.81 Her advice demonstrates how a lord could function within the bounds of legal norms to achieve strategic ends. By studying the thematic crossovers between literature and legal texts, we can gain further insight into how both genres potentially contain templates of behaviour.

Examining the literary mechanics of norm transmission is closely related to the study of the characterization of the authorial voice. The authorial voice is obviously deeply embedded in the issue of transmission. In the context of written

80_{Nouveau Coutumier General, ed. Bourdot iii, pp. 521-522.}

81 _{Marie de France, Poésies i, ll. 147-152; “The Queen turned aside to the King, and said to him and}

counselled him to give him nothing, no provisions or anything, so that he could not leave and go to serve another lord” (my translation).

sources, the writer could be conceived of as the ultimate transmitter. This examination of authorial voice both connects to our understanding of the paradigms of norm transmission and contributes to the discussion of ideals of instruction and expertise. This is particularly pertinent in our analysis of the legal texts. Due to the very nature of the texts (i.e. purportedly expository and non-narrative in the same way as a romance or epic is narrative), transmissive modes such as direct speech between characters and transmission by example are less readily apparent. The authorial voice is in some ways more closely connected with the voice of the narrator. This is a connection we must make cautiously and dubiously with the law book author and one that we should not, in keeping with scholarly convention, make between the literature narrator and author. Because of this closer affiliation in law books, we can speak about the characterization of the law book author more readily than we can speak about the characterization of the literature author, where we must draw stricter devisive lines between narrator and author. However, just as the fiction author crafts a story with the full arsenal of direct speech, narratorial comment, and transmission by example at his disposal, so the law book author tells the story of the law and its administration using certain methods and devices. This is the locus of the comparison between paradigms of transmission in literature and law.

Both literature and law books can tell us the story of how individuals interact with institutions. In literature, this story is told through depictions of accusations, trials, deliberations, and general courtroom dramas. In law books, this story is told through the transmissive modes examined in the previous chapter. This chapter has sought to demonstrate that law books would benefit from being examined for models of transmission. This examination sheds light on the way authors felt it was appropriate to discuss the imposition of institutional boundaries in society. Two of many manifestations of these instutional boundaries are the regulations on status law and redemption. These regulations restrict participation in certain spheres of society to certain groups. They draw lines between who can and cannot be a knight. They regulate land distribution based on kinship groups, thereby restricting land- and power-holding.

This brings us to a central question of this thesis: are norms, as they are presented in literature, institutionalized? To answer this, we must return to the discussion of institutionalization that we began in the Introduction to this thesis. Institutionalization requires regularity, and regularity requires institutional memory-

keeping. The law book is born out of these requirements. One of the main ways that people interact with institutions is by seeking institutional redress for an issue that affects their lives. In the process of institutional redress, regularity is sought after as a component of justice. We have shown in this chapter that certain norms are contained within the law books. The norms contained in the law books will necessarily be referred to as part of that process of redress. This could therefore point to what might be understood as institutionalization of norms. Norms are not just part of the institutional memory-keeper, but they are referred to as part of a living process of engaging with the institution.