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English Legal History Materials

English Legal History Materials

I. Initial Orientation


II. Before the Common Law: a Discretionary Society

Communal Courts

The Assumption of Neutrality: Battle Abbey; Becket [unavailable]

III. Beginnings of the Common Law and of Property

Origins of the Common Law

The Law in 1188

Rules of Law

The End of the Displinary Jurisdiction

Magna Carta; Elaboration of the Law
IV. The Reign of Edward I: Rationalizing a Legal System
[The Whilton Dispute: I]

The Right to Enter

The Writ of Entry: Lawyers

The Statutes of Edward I: Quia Emptores; De Donis

Lawyers and their Work

V. The Black Death: The Beginnings of a Government of Inherent Authority, 1348-1381
Uses and the Chancellors Court of Conscience

Whilton Dispute

VI. The Reign of Edward I: Common Law Change

Debt litigation

Detinue litigation

English Legal History: Course Objectives

The sole objective of this course is the analysis of the ways in which law changes, examined through the historical base of English legal history from the twelfth to the eighteenth century. It is crucially important at the very beginning of the course to recognize that analyzing the ways in which law changes is different from merely recounting the actual changes. Analysis requires moving the consideration up at least one level from an understanding and accurate retailing of the changes themselves into a consideration of the precise kind of process taking place.

The substantive issues in regard to legal change

1. The Milsom models. S.F.C. Milsom is a senior British legal historian at Cambridge University. He has been writing English legal history since 1958. He is the person who made the processes of change the central issue in the development of English legal history; he also upgraded the standards used in legal historical research. In most ways, his thought has dominated English legal history since 1958. His research was initially centered in the fourteenth century, and he has progressively worked backward into the twelfth century. He has been unconcerned with statutory change, not because he denies that law changes by statutes, but because he regards that as a relatively uninteresting form of legal change. In all his work he cautions against positing a legislator; for the larger issues of legal change, his fundamental postulate is that there was no legislator. "Legislator" for Milsom must be taken in the broad sense, that is, a person or several persons who shaped the law purposefully. The real initiators of legal change are not legislators (whether members of Parliament, Chancellors, or justices of the king's court), but everyday lawyers. Such lawyers are unconcerned with the ideal structure of the law and conceptual problems; their concerns are rather the success of their client. They are thus willing to circumvent obstacles erected by formal law. If they are successful in such a circumvention and others follow, the law has in fact been changed, but not from abstract concerns and not with any attention paid to the larger issues. Legal change issuing from lawyers' attempts to succeed for their clients is myopic and will distort legal conceptual structures without concern for those concepts or for the overall effect on society.

He has also proposed a somewhat different, but no more purposive model based on the nature of regulation. Regulation even along the lines of enforcing already accepted norms can convert those norms into rules. Rules by their nature are not as flexible as norms and thus determinations will be different in a small number of marginal cases from what would have been expected societally. That rigidity introduces into society distortions of social patterns that can have relatively large effects. While the regulation may be purposive, those societal results probably are not. The actual results of regulation in such ways are obviously larger than the intended results. In a broader way, however, regulation can never maintain continuity in social situation. The introduction of a possible resort to a determinative third party into a relationship transforms the power distribution between the parties. Even enforcement of accepted norms, stated as precisely and as flexibly as possible, would produce such unintended results for people who were not acting outside those norms, but completely within the societally accepted limits.

For Milsom, then, large-scale and interesting legal change occurs in a non-purposive manner. The individual act, of course, has a purpose, but the results of the act exceed by far the intended result. The law thus develops without "legislative" shaping. This can be the case even when a justice acts purposely to change the existing law, because the usage of the law will have changed to the point at which such a change becomes necessary, the intent the justice will have will probably be very narrow, and the consequences of the change will far exceed what he could imagine.

2. The Arnold model

Morris Arnold is currently a federal district judge at Fort Smith. Prior to that he was a senior academic at the University of Pennsylvania law school and President of the American Society for Legal History. He has now stopped writing legal history, but during his career as a legal academic he was heavily involved in fourteenth century legal history and investigated issues of legal change. While heavily influenced by Milsom, his approach stresses different influences and thus constitute a different model, one that resembles part of the approach to legal change described by Oliver Wendell Holmes, Jr. Arnold posits local custom as relatively defined and knowable by the judiciary. In presiding over the taking of jury verdicts on circuit through the counties, the justices could take account of numerous different local customs. Much of what actually happened in the interaction between justices and jurors was hidden in fact underneath general verdicts (as in "guilty" or "not guilty"). Those matters that were gradually taken away from the jury and made a part of formal law were products of general agreement, so that formal law can be used as accurate indicators of social values. Law, in this model, is firmly rooted in social values and accepted standards.

3. Maitland model

F.W. Maitland was the Cambridge University academic who first pulled English legal history together as a discipline during the last two decades of the nineteenth century and the first decade of the twentieth century. An extraordinarily good historian (although a lawyer without a history degree);, Maitland's work is still a starting point for many questions. Milsom, Arnold, and Palmer consider his overall approach to change outdated. Sutherland (now deceased) and Paul Brand, both very substantial legal historians, found Maitland's approach still viable and productive even after Milsom's attack. Maitland's approach (here retailed unfairly) assumes a fairly close relationship between intention and actual result. Maitland assumed a legislator, a superior guiding hand in every effort, making Henry II, for instance, a far-sighted English king who took successive, modest individual actions that together were intended to and in fact did accomplish the erection of a national legal system as the heart of a (comparatively) centralized state dominated by the monarch by undermining the judicial authority of magnates. Maitland never wrote explicitly about the nature of legal change, but his writings encourage thinking about legal change as purposive and shaped by the superior guiding hand of a legislator.

4. Palmer additions

Palmer is eclectic; you will find different changes described in terms of each of the three models. A particular addition to the models already suggested, however, is that of manipulation of the law. Legal manipulation is different from fictions. Fictions are acknowledged by the court, and the court is complicit in allowing the fiction: it is completely formalized within the court. Legal manipulation is the making use of set legal structures in ways completely tangential to the direct purpose of the actions, but not in ways that do not necessarily subvert those direct purposes. Thus, the action of detinue of charters was designed to recover physical possession of a written instrument that would give particular advantage to a plaintiff in another suit for land or to enforce a debt. By manipulation, it was made the lynch-pin in a mechanism for enforcing agreements to submit to arbitration or to abide by leasehold covenants: a charter recognizing an indebtedness was given to a trusted third party to be delivered to the non-defaulting party on default that would serve as a penalty for non-performance. The non-defaulting party gained possession of the instrument on default by use of detinue of charters. The interaction between the actions of detinue of charters and debt thus allowed the establishment in society of an effective method for securing leasehold covenants and for a reliable arbitration system. Neither of those results were contemplated as the goal of detinue of charters or of debt. Such legal manipulation constitute a vital part of the law, even though they are not part of the formal law. They also change social expectations and produce changes in the formal law.

A different model, more specific than some of Milsom's but not entirely different, is the way in which large-scale political decisions introduce legal change, that then produces, through successive modifications based on a variety of impulses (fairness, excessive caseload, inability to change writ forms or lower court practices), a variety of effects in both formal law and legal institutions.

A third addition, not completely unlike Maitland's, is a rehabilitation of the action of the legislator, a superior guiding hand in the major changes of English law. While the justices would probably not act without having a case before them, the initiation of new remedies was often directly mandated and controlled by Chancery, the governmental office that issued the writs that began cases, and initiated in ways that reinforced Parliamentary statutes. Very purposive legal change, although without complete knowledge of the consequences, can be ascribed in areas hitherto thought initiated very myopically by present-minded client-oriented lawyers.

I. The Nature of Courts and the Law Before 1176.
Anyone who has studied modern law will think reflexively about law and legal systems in certain ways. It is essential for understanding the origins of the common law, however, to understand what went before, and for this certain preconceptions must be discarded. The following documents will introduce you to jurisdictions and court structure of the law before 1176. You should be thinking about the relationship of court structure, discretion and rules of law, and the implications of a non-bureaucratic society on conceptions of law.

England is divided into counties (which in turn are subdivided into hundreds), which constituted substantial communities with their own customs, evidenced and created by the county court. The county courts should be considered the "natural" venue for all cases, unless for some specific reason an individual case or a class of cases is withdrawn elsewhere. In nature, it is omnicompetent and needs no authorization to hear a case, although for specific reasons, such as sheriffly inactivity, the king might order it to hear a case. Likewise, in the twelfth and thirteenth centuries, increasing restrictions were placed on the county courts; and written authorizations or orders to handle cases (such orders being called "writs") became commonplace. Nevertheless, keep it in mind that county jurisdiction is by nature omnicompetent; they are the natural venue and any other venue must be explained. It will be easy to forget this, since the course will be concentrated so heavily on the king's central courts, which by and large are courts of special jurisdiction and can only operate by virtue of an express royal order to hear a case, by virtue of a writ. The writ system, central to the growth of the common law, derives from the fact that, since the counties were the natural venue, the king's court had to have express authorization for the exercise of jurisdiction.

I.A. A writ of Henry I concerning the holding of county and hundred courts; date: circa 1110.

Henry king of the English to Samson and Urse of Abetot and all his barons French and English of Worcestershire, greetings.

Know that I grant and order that henceforth my county and hundred courts shall sit in the same places and at the same terms as they sat in the time of King Edward and not otherwise. And I do not want my sheriff to make them sit otherwise for anything necessary for him which shall pertain to him. But when I shall want, I will make to summon them sufficiently at my will for those things necessary for my demesne.[1] And henceforth if a plea arises concerning the division of lands or concerning a seizure, if it is between my own barons, let the plea be treated in my court.[2] And if it is between the vassals of any baron of my honor, let it be treated in the court of their lord.[3] And if it is between the vassals of two lords, let it be treated in the county court.[4] And if it shall not be settled in them, let it be done by duel.[5] And I will and order that all those of the county court go to the county and hundred courts as they did in the time of King Edward;[6] and let it not remain because of any peace or quittance of mine; rather they ought to follow my pleas and my judgments as they did at that time.

Witness R. bishop of London and Roger the bishop and Ranulf the chancellor and R. count of Meulan, at Reading.

1. What is the allocation of jurisdiction in pleas concerning land? What is the rationale for that allocation?

I.B. Henry I's Coronation Charter: 1100 AD

Henry I became king in 1100 on the death of his brother, for whose death he was somewhat suspect. The following is his coronation charter, designed to convince people that he was a worthy king and would not continue the oppressive exactions of his brother. Two vital points have to be made about the context. (1) England as yet had no real bureaucratic governmental department, nothing that worked mechanically by rules that ignored individual situations. In that social setting, it is unlikely that a coronation charter could have been meant to work in any way like a governmental constitution. As times changed, as the king was accepted and grew stronger, the undertakings would change to provide justice in the new context. (2) The social setting is one in which feudal[7] relations were intense, establishing private vertical bonds in society that were a primary source of governmental cohesion.

[The traditional view of early law is that the law was there, but simply not well worked-out. Deviations from the norm represented unjust conduct simply, and unjust conduct seemed more prevalent. The view presented here is that the law was simply normative, not defectively elaborated, and that normative law adjusted to fit situations. A good portion (but of course not all) of the seeming unjust conduct was the product of normative law in a society that expected decisive action in a context in which bureaucratic underpinnings did not provide that continuing structure that lessens the societal importance of interpersonal conflict: personal relations were almost, but not quite, all there was.]

Henry, king of the English, to Samson, bishop [of Worcester], and to Urse d'Abetot, and to all his barons and faithful men of Worcestershire, both French and English, greetings.

1. Know that by the mercy of god, and by the common counsel of the barons of the whole kingdom of England, I have been crowned king of the same kingdom. And since the kingdom had been oppressed by unjust exactions, I, through fear of God and through the love that I have for you all, in the first place make the Holy Church of God free, so that I will neither sell nor put at farm nor, on the death of an archbishop, bishop, or abbot, take anything from the demesne of a church, or from its men, until a successor enters upon it. And I henceforth remove all the bad customs through which the kingdom of England has been unjustly oppressed; which bad customs I here in part set down.

2. If any one of my barons, earls, or other men who hold of me dies, his heir shall not redeem his land as he did in the time of my brother, but he shall relieve it by a just and legitimate relief.[8] In the same way, furthermore, the men of my barons shall relieve their lands from their lords by just and legitimate reliefs.

3.[9] And if any one of my barons or other men wishes to give in marriage his daughter, sister, niece, or female relative, let him talk with me about this matter; but I will neither take anything from him for this permission nor prohibit him from giving her, unless he wishes to wed her to any enemy of mine.[10] And if, on the death of a baron or other man of mine, a daughter remains as heiress, I will give her, together with her land, by the counsel of my barons.[11] And if, on the death of a husband, his wife survives and is without children, she shall have her dower[12] and marriage portion,[13] and I will not give her to a husband unless it is in accord with her own wish.[14]

4. If, moreover, the wife survives with children, she shall yet have her dower and marriage portion so long as she keeps her body legitimately,[15] and I will not give her except in accord with her wish. And the guardian of the land and the children shall be either the widow or another one of the relatives who more justly ought to be guardian.[16] And I command that my barons shall conduct themselves in the same way toward the sons or daughters or wives of their men.[17]

5. The common monetagium, which has been collected throughout the cities and counties, and which did not exist in the time of King Edward, I utterly abolish for the future. If anyone, whether a moneyer or some one else, is taken with false money, let right justice by done thereof.

6. I pardon all pleas and debts that were owed to my brother, except my lawful farms and except those [payments] which were agreed on for the sake of others' inheritances or of those things that more rightly affected others.[18] But if any one has pledged anything for the sake of his own inheritance, that I pardon, as well as all reliefs that have been agreed on for the sake of rightful inheritances.

7. And if any one of my barons or men becomes infirm, as he himself shall give, or provide to be given, his chattels, I grant they shall be thus disposed. But if he, prevented by arms or infirmity, has not bestowed his chattels or provided for their bestowal, his widow or his children or his relatives or his liegemen shall divide them for the good of his soul as may seem to them best.[19]

8. If any one of my barons or men commits an offence, he shall not give a gage in the mercy of his chattels, as was done in the time of my father and my brother; but he shall pay compensation according to the measure of the offence, as was done before the time of my father, in the time of my other predecessors. But if he is convicted of perfidy or evil, let him make amends, as shall be just.

9. I also pardon all murders [committed] before that day on which I was crowned king, and those that have been committed afterwards are to be paid for by just compensation according to the law of King Edward.

10. By the common counsel of my barons, I have kept in my hands the forests as they were held by my father.

11. To knights who hold their lands by military service I grant, of my own gift, the lands of their demesne ploughs quit of all gelds and of all work; so that, inasmuch as they are thus relieved of a heavy burden, they may the better provide themselves with arms and horses, to be fit and ready for my service and the defence of my kingdom.

12. I establish my firm peace throughout the whole kingdom and command that it be henceforth maintained.[20]

13. I restore to you the law of King Edward, together with those amendments by which my father, with the counsel of his barons, amended it.

14. If anyone, since the death of my brother William, has taken anything from what pertains to me or from what pertains to anyone else, let him at once restore it without penalty; but if any one keeps anything [of that sort], he on whom it may be found shall pay me heavy compensation.

Witnesses: . . . . At Westminster, when I was crowned. Farewell.

1. Regarding the third and fourth provisions: what is the position of the widow? In the thirteenth century one will also talk about the widow's dower, marriage portion, and inheritance. What is the difference? Why does a wife get dower? Is it a property right? that is, is it a right which she has in herself? Who determines who the heir will marry? Why should it matter whether or not the wife who survives with children keeps her body legitimately? Do these provisions establish inviolable rights for womankind?

2. Regarding the fourth provision: by the reign of Henry II it is very clear that the guardian of the heir will not be the widow or a relative, but the lord of the dead tenant. Is this a diminution of the family? Is lordship stronger in the reign of Henry II than in the reign of Henry I?

3. What concern does Henry I have with the way in which his tenants behave toward their tenants?

4. Considering provisions 9 and 12, what is the nature of the king's peace?

5. The big question concerns chapter 6. What does it mean if the passage stands as it is? Can that be made to coincide with some sense of justice? Professor Sam Thorne suggested the following: "It is unlikely that Henry intended to remit all payments except those that belonged to the inheritances of others, or to pardon all reliefs, whether reasonable or not. A few simple emendations seem needed to restore the proper sense of the original, which, if they are acceptable, will then stand thus:

I remit all payments and debts owed to my brother, except my rightful dues and except those promised for the heirs of others or for the lands that belonged to others, and all rightful reliefs agreed upon for inheritances. If anyone has promised something more than is right for his inheritance, that I remit."

What is at stake? Can the original version make sense?

I.C. An Account of a Joint Session of the County Courts of Norfolk and Suffolk between 1148 and 1153.

The following is one of the few surviving accounts of a case held in county court. The session is unusual, in that it is a joint session of Norfolk and Suffolk and in that a special royal representative other than the sheriff of Norfolk and Suffolk presided. Note how judgments are rendered by the community and not by the presiding officer. What does this do for the nature of justice? Note also the emphasis on compromise. Without strong and pervasive and bureaucratic state authority, the preferred method of settlement would always be to avoid dividing people by judgment: compromise and bring together, assuring compliance and furthering amicable relations.

[Traditional views regarded county courts as quasi-democratic meetings of all the knights in that county; they would decide cases according to very particularized county custom and discuss and decide political issues.]

During the reign of the most noble king Stephen at a certain time the two counties of Norfolk and Suffolk were summoned by royal order to come before him on a specified day at Norwich. After they had gathered together in the bishop's courtyard, William Martel, seneschal of the king, sat by official status as judge to discuss matters pertaining to the public interest. At the cases were the venerable people: Nigel bishop of Ely, and William bishop of Norwich, and Ording the venerable abbot of the church of St. Edmund, and Daniel abbot of Holm, and many barons of the area, to wit, Walter fitz Robert seneschal of the king, and Robert de Vere constable of the king, and Reginald de Warenne, and Fulk de Oilly, and Hugh fitz Eudo, and William de Chetneye son of Robert, and Henry de Ry. Therefore, while these and many other prudent and wise men and orators were sitting in assembly, two men of the court -- Jordan de Blossevyle and Richard de Waldari -- came and led in with them a certain young man named Herbert, putting him in the middle of the assembly before everyone. Then Jordan began and said: "Lords and liegemen of the king, listen to what this youth whom you see here shall announce to the king. He says that last year he was with Robert fitz Guibert and served him. It happened, however, that the lord our king at a certain time gathered together his army and went against his enemies who held the castle and his city of Bedford against him. Whereas, while on a certain day the king had a conference with his barons on the meadows near the city, the abovesaid Robert and Adam de Horningsherth were in the same army, Robert and Adam (as this youth asserts) had conference and counsel with the king's enemies, to wit, with Ralph de Halstede and Roger his brother, concerning the handing over and death of the king; they had come out of the city secretly and had come to them. There they also exchanged their horses, shields, and saddles.[21] Should they wish to deny and defend this, this youth is willing to prove it against them. Whereof the lord king ordered that the abovesaid knights should be heard, and according to their response you [lords and liegemen of the king] should make the judgment for him."

When the lord abbot of the church of the blessed Edmund heard this, he got to his feet, turned to the justice, bishops, barons, and the whole assembly and said, "Lords and friends, the knights concerned here are men of the blessed Edmund king and martyr and of our church; I have never before heard this plea and accusation; and, as the privileges and muniments of our church testify, that plea ought to be treated and conducted in the court of the blessed Edmund and of our church. Wherefore I pray for the love of St Edmund that you refrain from making judgment on this matter until I shall have spoken with the lord king. For I believe, in the power of God and of the Holy Spirit, that the lord king will take nothing away from the blessed Edmund nor diminish anything from the right and liberty of our church."[22]

After this was granted, the lord abbot gathered together the friends, monks, and barons of his church and went to the lord king. Having shown him the privileges and muniments of the church, he besought him suppliantly concerning this matter. The king answered him: "Let the privileges be brought to my justice and to the county court and there be read; and whatever right or liberty to which the barons of the counties shall testify that Saint Edmund ought to have concerning this or other pleas I grant and will that he have it without subtraction or diminution."

When the privileges had accordingly been read to the counties and recited in public, different people made different comments. Wherefore Hervey de Glanvylle,[23] formerly active, put in an appearance and, standing in the middle, said: "Wise and most prudent men, it is a long time since I first heard the benefactions of blessed Edmund which have been read here, and they have always been authoritative up to the present time. I want you to know, therefore, that I am, as you see, a man of very advanced age; and I remember many things which happened in the time of King Henry [I] and before, when justice and right, peace and fidelity flourished in England. More so, even, because in a time belabored by war justice fled and the laws were silent, the liberties of the churches just like other goods have perished in many places. Notwithstanding, as a certainty I say, testify, and assert that fifty years have gone by since I first took to attending the hundred [a subdivision of the county] and county courts with my father, before I was set up independently. And thereafter until now, as often as any plea concerning any man of the eight and a half hundreds, whosesoever man he was, arose in the county courts, the abbot of St Edmund or his seneschal or his ministers by proving took the plea with them to the court of St Edmund and there conducted whatever plea or accusation there was, except of treasure trove or murder."

After these things were heard, the aforementioned bishops and the beforenamed barons assented.[24] And with them Roger Gulafre and William Casnei who were sheriffs at that time and Hervey fitz Hervey and Robert de Glanvyll and many others of the honor of Warenne and of the honor of earl Hugh and of the honor of Eye attested to the same thing. The barons therefore presented the testimony which had been put forward concerning the right and liberty of the church of St Edmund to William Martel, justice of the king. William thereupon taking certain of the barons notified the king in detail of all the testimony of the barons and counties. When the king heard this, he ordered that the testimony be ratified and firm. And he ordered the abbot to set a date for them [the accused] in his court and to do right to those of his abovesaid men. And the abbot did this.

On the same day, in the same place, and in the same assembly came Walter fitz Robert seneschal of the king from the king to the justice. He made a complaint concerning William de How that he had wasted his warren of Hempnall. And to amplify his complaint he made to be brought forward the snares which his ministers had discovered in his warren on the men of the abovesaid William. When the abbot heard this, he obtained this plea by the same authority and by the same proof as he had obtained the abovesaid plea. Therefore, after a few days the king came to St Edmund where the abbot by the counsel of the barons of the king made peace between his abovesaid knights and the king and between William de How and Walter.

These things have been written down lest it be concealed from posterity how great the liberty of the church of St Edmund is and how constantly and how forcefully both the prelates and the wise men who were in the church worked to maintain and preserve the same liberty.

And let it be known that the abovewritten account may openly be found in the psalter of the chapel of the lord abbot usually kept before the same.

1. What is the institutional structure of this court? That is, what does the judge/justice do, who gives the judgments, what are all the magnates (bishops, abbots, earls) doing in court, and how does Hervey de Glanvylle figure in all this? In answering these questions you will be defining a "communal court."

2. What does it mean for law if the primary and natural venue is a communal court? A legal system demands not only a structure of courts, but also the ability to apply known and ascertainable law to facts. Do you see any evidence in the case of statutory or written law, from which law may be or may seem to be, objectively determined, such that the real work is matching the facts to the known law?

3. Keep in mind, in all this, that there was no one in the king's service (or elsewhere) who specialized full-time in adjudication; nor was there any legal bureaucracy at all. Presiding over pleas, even, was only one part, and an occasional part, of any individual's job. County courts met, for instance, only one or two days a month; hundred courts met irregularly, but perhaps one day every three weeks. And, except for the king's treasury, the whole royal apparatus of government was mobile. The only bureaucracy one can find was precisely the treasury, called the exchequer. This institution began in the early twelfth century (suspended for a time under King Stephen) and had a very regular routine. Its primary function was collection of and accounting for the royal revenue. On the side it was occasionally mandated to handle litigation, but not regularly or as a principle part of its duties. As a bureaucracy, however, it had little impact on society at large, because it dealt mostly with the sheriffs, who were concerned with peace keeping, management of royal estates and collection of royal revenue, and duties in county and hundred courts. Litigation could also come before the king himself, but this did not involve a bureaucracy and certainly not a set venue: it could be anywhere in England or abroad. Is it important for the existence of a legal system for there to be a legal bureaucracy? What difference does the existence of a legal bureaucracy or not make for communal courts?

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