exam94b

MEDIEVAL STUDIES 117:
ENGLISH CONSTITUTIONAL AND LEGAL HSTORY

Professor Donahue, Ms. Boggs

May 25, 1994: 9:15 a.m. - 12:15 p.m..

INSTRUCTIONS

This is an open-book exam. You may bring with you and use any materials that you wish.

This exam has two questions that will be given approximately equal weight. For the first question you are to choose one of the three subparts. For the second question you are to write on the one of the two subparts. You have an hour and a half to write each essay. You should not write furiously for the full hour and a half. Rather you should spend some time outlining what you are going to say and revising what you have written. The result should be two coherent essays.

I.

A.

Examine the following extract from Glanvill (Mats. p. 5-29):

"The king to the sheriff, greeting. N. has complained to me that R. unjustly and without a judgment has disseised him of his free tenement in such-and-such a vill since my last voyage to Normandy. Therefore I command you that, if N. gives you security for prosecuting his claim, you are to see that the chattels which were taken from the tenement are restored to it, and that the tenement and the chattels remain in peace until the Sunday after Easter. And meanwhile you are to see that the tenement is viewed by twelve free and lawful men of the neighborhood, and their names endorsed on this writ. And summon them by good summoners to be before me or my justices on the Sunday after Easter, ready to make the recognition. And summon R., or his bailiff if he himself cannot be found, on the security of gage and reliable sureties to be there then to hear the recognition. And have there the summoners, and this writ and the names of the sureties. Witness, etc."

Write a commentary on this quotation. You should, of course, examine the prior and subsequent history of the institutions to which it refers, but your principal focus should be on the passage itself and its meaning.

B.

Examine the following case from Materials, p. 14-9:

Anon.
Y.B. Mich. 11 Hen. 4, f. 33, pl. 60
A.D. 1409

"A writ was brought against a carpenter sur tiel mattere [on such (this) matter], that, whereas he had undertaken make the plaintiff a new house within a certain time, he had not made the house, a tort [wrongfully], etc.

"Tildesley [the serjeant representing the defendant]: Sir, you see well how this matter sounds in a manner of covenant, of which covenant he shows nothing. Now therefore we ask judgment if he shall have an action without a specialty.

"Norton [the serjeant representing the plaintiff]: And we ask judgment, sir; for if he should have made my house badly and should have destroyed my timber, I should have had an action sure enough on my case without a deed.

"THIRNING, C.J. [i.e., chief justice of Common Pleas]: I grant well your case, because he shall answer for the tort he has done, quia negligenter fecit [because he did it negligently]. But if a man makes a covenant and shows nothing done beyond the covenant, how shall you have your action against him without a specialty?

"HILL, J. [another justice of Common Pleas]: He could have had an action on the Statute of Laborers in this case, supposing him to have been retained in his service to make a house, but this action is too feeble. Because, therefore, it seems to the court that this action, which is taken at common law, is founded on a thing which is covenant in itself, of which nothing is shown, the court awards that you take nothing by your writ, but be in mercy."

Write a commentary on this case. Your principal focus should be on the case itself and its meaning. You should, of course, also examine the prior and subsequent history of the institutions to which it refers, but a good essay will probably not reach back much before 1348 nor go much further than 1506.

C.

Examine the following extract from Doctor and Student (Materials, pp. 30-43 to 30-44):

"Doctor: ... I pray thee touch shortly upon some of the causes why there hath been so many persons put in estate of lands to the use of others as there have been, for, as I hear say, few men be sole seised of their land.

"Student: There have been many causes thereof, of the which some be put away by divers statutes, and some remain yet. Wherefore thou shalt understand that some have put their land to feoffment secretly, to the intent that they that have right to the land should not know against whom to bring their action, and that is somewhat remedied by divers statutes that give actions against pernors [roughly "takers"] and takers of profits. ... And sometime they were made to use of mortmain, which might then be made without forfeiture, though it were prohibited that the freehold might not be given in mortmain. But that is put away by the statute of Richard the Second. And sometime they were made to defraud the lords of wards, reliefs, heriots [a payment due a lord upon succession to the land of a villein], and of the lands of their villeins, but those points be put away by divers statutes made in the time of king Henry VII. ... And yet remain feoffments, fines and recoveries [types of conveyance] in use for many other causes, in manner as many as there did before the said statute[s]. And one cause why they be yet thus used is, to put away tenancy by the courtesy and titles of dower. ... And sometimes such uses be made that he to whose use, etc., may declare his will thereon, and sometime for surety of divers covenants in indentures of marriage and other bargains. And these last two articles be the chief and principal cause why so much land is put in use."

Write a commentary on this quotation. You should, of course, examine the prior and subsequent history of the institutions to which it refers, but your principal focus should be on the passage itself and its meaning.

II.

A.

We have dealt with a number of institutions of English governance in this course. In particular, we have spent a considerable amount of time on the king's council and on parliament. Some historians in discussing these institutions emphasize their essential continuity; others emphasize their discontinuity. Write a coherent essay on these institutions in which you try to give a balanced picture of the extent to which these institutions remained the same over the course of time and the extent to which they changed.

B.

Consider the following quotation from Harold Berman's Law and Revolution (Cambridge: Harvard University Press, 1983) 292:

"The idea of the secular state, which was implicit in the Papal Revolution [Berman's term for the Gregorian reform of the 11th century and its aftermath] from its inception, and the reality of the secular state, which emerged out of the historical struggle between ecclesiastical and secular force that constituted the Papal Revolution, were in essence the idea and the reality of a state ruled by law, a `law state' (Rechtsstaat). This meant, first, that the respective heads of each body, the ecclesiastical and the secular, would introduce and maintain their own legal systems, that is, would regularly enact laws, establish judicial systems, organize government departments, and, in general, rule by law. Second, it meant that the respective heads of each body would be bound by the law which they themselves had enacted; they could change it lawfully, but until they did so they must obey it--they must rule under law. (This was implicit in the subordination of the sovereign's legislative power to his judicial power.) It meant, third, that each jurisdiction would also be bound by the law of other jurisdictions insofar as that law was itself lawful; each state existed within a system of plural jurisdictions. This last meaning undergirded the other two meanings. If the church was to have inviolable legal rights, the state had to accept those rights as a lawful limitation upon its own supremacy. Similarly, the rights of the state constituted a lawful limitation upon the supremacy of the church. The two powers could only coexist peacefully through a shared recognition of the rule of law, its supremacy over each."

Evaluate this quotation in the light of English constitutional history from 1100 to 1600. To what extent were the "secular state" and the "rule of law" in each of the three senses that Berman uses the term "realities" during this period? Illustrate your argument with specific examples. medieval and early modern England.

Download this file.

[Home Page] [Syllabus] [Exams]

Please send comments to Charles Donahue

URL: http://www.courses.fas.harvard.edu/faculty/cdonahue/courses/echfas/prevexams/exam94b.ECH.html
last modified: 12/13/08

	MEDIEVAL STUDIES 117: ENGLISH CONSTITUTIONAL AND LEGAL HSTORY Professor Donahue, Ms. Boggs May 25, 1994: 9:15 a.m. - 12:15 p.m..
	INSTRUCTIONS
	This is an open-book exam. You may bring with you and use any materials that you wish. This exam has two questions that will be given approximately equal weight. For the first question you are to choose one of the three subparts. For the second question you are to write on the one of the two subparts. You have an hour and a half to write each essay. You should not write furiously for the full hour and a half. Rather you should spend some time outlining what you are going to say and revising what you have written. The result should be two coherent essays.
	I.
	A.
	Examine the following extract from Glanvill (Mats. p. 5-29): "The king to the sheriff, greeting. N. has complained to me that R. unjustly and without a judgment has disseised him of his free tenement in such-and-such a vill since my last voyage to Normandy. Therefore I command you that, if N. gives you security for prosecuting his claim, you are to see that the chattels which were taken from the tenement are restored to it, and that the tenement and the chattels remain in peace until the Sunday after Easter. And meanwhile you are to see that the tenement is viewed by twelve free and lawful men of the neighborhood, and their names endorsed on this writ. And summon them by good summoners to be before me or my justices on the Sunday after Easter, ready to make the recognition. And summon R., or his bailiff if he himself cannot be found, on the security of gage and reliable sureties to be there then to hear the recognition. And have there the summoners, and this writ and the names of the sureties. Witness, etc." Write a commentary on this quotation. You should, of course, examine the prior and subsequent history of the institutions to which it refers, but your principal focus should be on the passage itself and its meaning.
	B.
	Examine the following case from Materials, p. 14-9:
	Anon. Y.B. Mich. 11 Hen. 4, f. 33, pl. 60 A.D. 1409
	"A writ was brought against a carpenter sur tiel mattere [on such (this) matter], that, whereas he had undertaken make the plaintiff a new house within a certain time, he had not made the house, a tort [wrongfully], etc. "Tildesley [the serjeant representing the defendant]: Sir, you see well how this matter sounds in a manner of covenant, of which covenant he shows nothing. Now therefore we ask judgment if he shall have an action without a specialty. "Norton [the serjeant representing the plaintiff]: And we ask judgment, sir; for if he should have made my house badly and should have destroyed my timber, I should have had an action sure enough on my case without a deed. "THIRNING, C.J. [i.e., chief justice of Common Pleas]: I grant well your case, because he shall answer for the tort he has done, quia negligenter fecit [because he did it negligently]. But if a man makes a covenant and shows nothing done beyond the covenant, how shall you have your action against him without a specialty? "HILL, J. [another justice of Common Pleas]: He could have had an action on the Statute of Laborers in this case, supposing him to have been retained in his service to make a house, but this action is too feeble. Because, therefore, it seems to the court that this action, which is taken at common law, is founded on a thing which is covenant in itself, of which nothing is shown, the court awards that you take nothing by your writ, but be in mercy." Write a commentary on this case. Your principal focus should be on the case itself and its meaning. You should, of course, also examine the prior and subsequent history of the institutions to which it refers, but a good essay will probably not reach back much before 1348 nor go much further than 1506.
	C.
	Examine the following extract from Doctor and Student (Materials, pp. 30-43 to 30-44):
	"Doctor: ... I pray thee touch shortly upon some of the causes why there hath been so many persons put in estate of lands to the use of others as there have been, for, as I hear say, few men be sole seised of their land. "Student: There have been many causes thereof, of the which some be put away by divers statutes, and some remain yet. Wherefore thou shalt understand that some have put their land to feoffment secretly, to the intent that they that have right to the land should not know against whom to bring their action, and that is somewhat remedied by divers statutes that give actions against pernors [roughly "takers"] and takers of profits. ... And sometime they were made to use of mortmain, which might then be made without forfeiture, though it were prohibited that the freehold might not be given in mortmain. But that is put away by the statute of Richard the Second. And sometime they were made to defraud the lords of wards, reliefs, heriots [a payment due a lord upon succession to the land of a villein], and of the lands of their villeins, but those points be put away by divers statutes made in the time of king Henry VII. ... And yet remain feoffments, fines and recoveries [types of conveyance] in use for many other causes, in manner as many as there did before the said statute[s]. And one cause why they be yet thus used is, to put away tenancy by the courtesy and titles of dower. ... And sometimes such uses be made that he to whose use, etc., may declare his will thereon, and sometime for surety of divers covenants in indentures of marriage and other bargains. And these last two articles be the chief and principal cause why so much land is put in use." Write a commentary on this quotation. You should, of course, examine the prior and subsequent history of the institutions to which it refers, but your principal focus should be on the passage itself and its meaning.
	II.
	A.
	We have dealt with a number of institutions of English governance in this course. In particular, we have spent a considerable amount of time on the king's council and on parliament. Some historians in discussing these institutions emphasize their essential continuity; others emphasize their discontinuity. Write a coherent essay on these institutions in which you try to give a balanced picture of the extent to which these institutions remained the same over the course of time and the extent to which they changed.
	B.
	Consider the following quotation from Harold Berman's Law and Revolution (Cambridge: Harvard University Press, 1983) 292: "The idea of the secular state, which was implicit in the Papal Revolution [Berman's term for the Gregorian reform of the 11th century and its aftermath] from its inception, and the reality of the secular state, which emerged out of the historical struggle between ecclesiastical and secular force that constituted the Papal Revolution, were in essence the idea and the reality of a state ruled by law, a `law state' (Rechtsstaat). This meant, first, that the respective heads of each body, the ecclesiastical and the secular, would introduce and maintain their own legal systems, that is, would regularly enact laws, establish judicial systems, organize government departments, and, in general, rule by law. Second, it meant that the respective heads of each body would be bound by the law which they themselves had enacted; they could change it lawfully, but until they did so they must obey it--they must rule under law. (This was implicit in the subordination of the sovereign's legislative power to his judicial power.) It meant, third, that each jurisdiction would also be bound by the law of other jurisdictions insofar as that law was itself lawful; each state existed within a system of plural jurisdictions. This last meaning undergirded the other two meanings. If the church was to have inviolable legal rights, the state had to accept those rights as a lawful limitation upon its own supremacy. Similarly, the rights of the state constituted a lawful limitation upon the supremacy of the church. The two powers could only coexist peacefully through a shared recognition of the rule of law, its supremacy over each." Evaluate this quotation in the light of English constitutional history from 1100 to 1600. To what extent were the "secular state" and the "rule of law" in each of the three senses that Berman uses the term "realities" during this period? Illustrate your argument with specific examples. medieval and early modern England.