English Legal History
4/29/2009
Outline

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SUMMARY

 

1.

A brief diachronic survey:

 

2.

Government—

 

a.

We begin with tribal chiefs—Aethelberht

 

b.

The country is unified in the Danish invasions

 

c.

The country is feudalized in the time of the Conqueror—it becomes much less feudal as a result of the reforms of Henry II

 

d.

Out of the struggle of the king, the barons, and the church emerges a mixed monarchy of king, council and parliament—lordship and borough—pope, bishops and priests

 

e.

The so-called rise of Tudor absolutism—the result of a weakening of the barons and of the church, the former as the result of the disturbances of the 15th century, the latter as the result of a Europe-wide phenomenon known as the Reformation

 

f.

The century of revolution—court and countryside, puritan and cavalier, Protestant and Catholic

 

3.

The courts and the legal profession can be seen as part of the political development, but they have a life of their own

 

a.

We begin with the Anglo-Saxon moots

 

b.

Never unified when the country was

 

c.

An overlay of feudal courts probably introduced by the Conqueror, including the curia regis which under Henry II becomes the most powerful court in the land because of property and crime, drawing the local royal courts to itself and reviewing the work of the feudal courts

 

d.

The profession develops around this court in the later M.A.—pleading and the Year Books

 

e.

The Tudor period sees the development of a multiplicity of central royal courts—engaged in an unseemly competition for jurisdiction—KB, CP—Conciliar courts—Chancery—Admiralty—even to a certain extent the church courts

 

f.

In the 17th c the jurisdictional lines harden again, the newer courts except for chancery lose out, the common law courts and the common law profession emerge triumphant

 

4.

Property—a story with intimate parallels both to the development of the courts and of government

 

a.

Of Anglo-Saxon property we know little—the glimpses suggest individual ownership and some feudalization

 

b.

Military feudalism, tamed by Henry II

 

c.

Later MA sees the working out of the consequences—Quia Emptores, De Donis—the rise of the use

 

d.

The Tudor Revolution—the S/Uses, restoring property at least in part to the common law

 

e.

17th century—working out the consequences of the S/Uses—old money and new—Norfolk’s Case, the compromise

 

5.

Tort and contract—here the parallels to the development of the governance and the courts are less easy to see

 

a.

AS personal actions are a legacy—the notion of wrong and probably the notion of debt

 

b.

The old personal actions—13th c.—dominated by ancient pattern of the suit—very shadowy emergence of trespass (finally broken off from crime)

 

c.

Later MA sees the separation of trespass from case

 

d.

The Tudor period sees the rise of a general action that can cover most of what we call contract, although the doctrines are still unrefined

 

e.

What is left is the law of torts, not generalized until the 19th c

 

6.

In the realm of larger ideas we traced a number of important themes

 

a.

The continued presence of Roman law long after the fall of Rome

 

b.

The presence of Judaeo-Christian Stoic ideas about law in general—particularly natural law

 

c.

The idea of the rule of law—a product, perhaps, of the struggle with the church

 

d.

The emergence of the notion of an estate in land and the distinction between legal and equitable interests in property

 

e.

An initial conceptual economy in personal actions—right (owing & promise) and wrong (trespass), how these ideas blur and merge and reshape themselves into a law of torts in the plural and contract in the singular

 

7.

What was the achievement of the English medieval constitution?  If I had to point to one thing:

 

a.

It is not parliament, as Stubbs thought it was.

 

b.

Nor was it the balance of power between the king and the 3 estates as Lyon suggests.

 

c.

Rather it was the growing appreciation in theory, and despite egregious departures, in practice as well, for the idea of the rule of law.

 

8.

What was the achievement of the medieval legal system?

 

a.

Conveyancing. The interplay of Chancery and common law—that’s the nodal point. The structural feature: the ancestor and the heir get together (the fundamental conflict breached).

 

b.

Contract. The decline of the merchant and local courts, that’s the process point. The structural element: pacta sunt servanda (the drive toward intentionality).

 

c.

Tort. Same point about the decline of local courts. Not doing is no trespass and a man acts at his peril.

 

 “... [H]owever disrespectfully one is prepared to use them, legal ideas have their own strength, and it shows itself in many ways. It shows itself first in the difficulty of change. Apart from the tiny extent to which, at any period of our history, the courts have felt themselves able to reverse an accepted rule, direct change can be made only by legislative act and that too was rare until Bentham’s work was done. Change has for the most part been indirect. All that the practitioner can do for one hit by a rule, whether yesterday’s taxing statute or some entrenched result of circumstances long dead, is to look for a way round it. If he succeeds, the rule is formally unimpaired. If the route that the special facts of his client’s case enabled him to take can be exploited and broadened by others, the result in the real world may be reversed, but the rule remains. Even when it is formally abolished or finally forgotten, its shape will be seen in the twisting route by which it was circumvented. And the ideas involved in the circumvention will prove their own strength. The first resort to them may have been artificial: but their natural properties will assert themselves, and consequences may follow as far-reaching as the ecological disturbances produced by alien animals or plants.

“The life of the common law has been in the unceasing abuse of its elementary ideas. If the rules of property give what now seems an unjust answer, try obligation; and equity has proved that from the materials of obligation you can counterfeit almost all the phenomena of property. [The S/Uses.]  If the rules of contract give what now seems an unjust answer, try tort. Your counterfeit will look odd to one brought up on categories of Roman origin; but it will work. [The rise of assumpsit.]  If the rules of one tort, say deceit, give what now seems an unjust answer, try another, try negligence.  [Warranty in the 18th and 19th centuries.]  And so the legal world goes round.

“But it goes round slowly, too slowly for the violence with which the conceptual economy is transformed to be felt, too slowly, in periods of rapid social change, for the law to keep pace with life. In the sixteenth centry the gap grew so wide that the system itself was perhaps in peril. In the twentieth we make use of legislation; and our familiarity with deliberate change makes it easy for us to misread history. How could our ancestors be so perverse in doing deviously what could be done directly?  Certainly if we view the common law on the eve of reform as a piece of social engineering, we see the spirit of Heath Robinson at his most extravagant. But the viewpoint is anachronistic and the questions unreal. It is a real question why nobody before Bentham was provoked, and a part of the answer is that nobody before Blackstone described the system as a whole. Lawyers have always been preoccupied with today’s details, and have worked with their eyes down. The historian, if he is lucky, can see why a rule came into existence, what social or economic change left it working injustice, how it came to be evaded, how the evasion produced a new rule, and sometimes how that new rule in its turn came to be overtaken by change. But he misunderstands it all if he endows the lawyers who took part with vivison on any comparable scale, or attributes to them any intention beyond the winning of todays’s case.”

S. F. C. Milsom, Historical Foundations of the Common Law (1st ed., 1969), pp. xi–xii.

 

 

 

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