|
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 mooots
|
|
|
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.
|