Spring 2009

ENGLISH LEGAL HISTORY Syllabus

Introduction Background Workload

Requirements Papers Office Hours

Syllabus _Topic_I _Topic_II

_Topic_III _Topic_IV Calendar

Introduction Return_to_index	This is a survey course on the legal history of England from the time of the Anglo-Saxon invasions to the 18th century. We begin with a barely literate, largely pagan, people, whose laws and institutions are best studied with the techniques of anthropology and historical linguistics, and we end with a world power, whose laws and institutions, though different from our own, are recognizably the ancestors of those of Great Britain and the United States today. Our chronological span covers roughly 1100 years, from Aethelberht (r. ?584–616) to Queen Anne (r. 1702–1714), and we have 25 lectures (Mon. and Wed. 11:10 to 12:00, when we will meet in the Yard with the students in Medieval Studies 117) and 12 “section meetings” (Tue. 10:40 to 12:00, when we will meet in the Law School by ourselves) in which to do it. Obviously we cannot cover in depth all aspects of English legal history in this long period. One way to handle the problem would be to deal with a few topics in depth and ignore the rest. Such an approach is tempting particularly for an historian who believes that legal history can only properly be understood in its social, economic and political context and who also believes that no one should study history after high school without looking at primary source material. On the other hand, there is something about that great sweep of development from the early Middle Ages to the early modern period that I find irresistible. Some place in the university someone ought to try to “put it all together.” Indeed, the need for such a course as part of general liberal education has led the Faculty of Arts and Sciences to ask that this course be made available to the undergraduates. Hence, this course is also being offered as Medieval Studies 117. There will be a separate section for the undergraduates, so that we can devote our Tuesday “section meetings” to more sophisticated analysis of legal topics. On Mondays and Wednesdays, we will meet with the undergraduates for general lectures, devoted both to “constitutional” and legal developments. I have tried to make the lectures and the sections fit together, but occasionally we will be a bit ahead in the sections. This characteristic is particularly prevalent at the end of the course, because we are going to consider some developments in the 17th and 18th centuries, while the undergraduates will stop, pretty much, at the end of the 16th century. While I believe that an overall survey is called for, I do not want to sacrifice my belief in the relationship between legal history and other kinds of history and my belief in primary materials. John Baker’s An Introduction to English Legal History (4th ed., Butterworth, 2002), which will serve as our text, seems to me to be deficient in these regards. (Otherwise, the book is first-class.) Baker is writing for English students. He can assume that they know who Edward I was, just as we know who George Washington was. Since he is writing for undergraduate law students, however, he cannot assume that they know much about the modern law of contracts, torts, etc. The book, therefore, is organized in two parts. The first traces the history of English legal institutions against an assumed background knowledge of the broader history. The second part of the book deals with the principal headings of substantive law, property, contract, tort, family and criminal law, each with its chronological development. Except for some sample writs and pleadings, Baker offers no primary materials. We are going to proceed somewhat differently. I have divided our 1100 years into four major periods: Anglo-Saxon, High Middle Ages, Later Middle Ages, Early Modern. In each period we will consider first the major historical developments, particularly the “constitutional” developments, in the period, then the legal institutions (courts, procedure, legal profession, legal literature) and finally, documents illustrating one or more of the central themes of the substantive law in the period. (For scheduling reasons, the order is reversed in the third topic.) Thus, the first part is devoted to the emergence of a concept of legal wrong in the Anglo-Saxon period, the second to how notions of private property developed in feudal England, the third to how the notion of wrong split into what today we call contract and tort, and the fourth to how ideas of equity shaped property, contract and tort in the early modern period. The focus on particular substantive topics in each period involves a judgment that these topics best illustrate our overall theme of how the relationship between “law,” on the one hand, and politics, society, and economics, on the other, changed over 1100 years. It also involves distortions. The first of these has to do with the topics themselves. Our story of how the ideas of tort and contract came to separate does not come to a head until Slade’s Case in 1602, considerably after our “age of trespass” has formally come to an end. In order to see how equity shaped the law of property in the early modern period, we are going to have to go back and pick up a story that we will have left at the Statute De Donis in 1285. These discontinuities, however, are not as troubling as what we will have to omit: Criminal law is the principal first-year topic that we will barely cover. The older views on this topic have been largely upset, but the modern research is too disparate and inchoate to summarize in a survey course. Nor will we deal with any other “public law” topic in depth. A diachronic study of any of the modern public law topics, with the possible exception of tax law, is fraught with difficulties, while a synchronic study of public law in any given period leaves us, at least in the present state of research, without much that we can carry over to the next period. We will, however, consider a number of public law topics in our surveys of constitutional developments. In the course of covering our topics we will read all of Baker, but in a very different order from that in which he wrote it. We will also examine in class a number of documents and read a few supplementary articles that are contained in the multilithed materials. (In previous years I have asked students to buy a book of documents J. H. Baker & S. F. C. Milsom (eds), Sources of English Legal History: Private Law to 1750 (Butterworth, 1986), which gave us some more documents to play with and is good for finding primary materials from which to write papers. The book is out of print but is on reserve in Langdell.) Baker himself teaches his own textbook somewhat out of order, and the sections of the book are designed to be read pretty much independently of each other; so the order should not be too much of a problem. You might, however, want to read Baker through, either at the beginning or at the end of the course, to see how he puts it all together. The advantage of proceeding out of topic order will, I hope, be that we will be able to see more clearly how it really was in any given period, how it changed, and maybe even why it changed. The undergraduates will be reading a somewhat different set of books and will have somewhat different assignments in the multilithed materials. If that fact leads you to want to sit next to an undergraduate during lectures so that you can look at what he or she is looking at, that’s fine. One of the things that I hope comes out of this experiment is a notion that people on one side of Cambridge Street have something to say to those on the other.
Background Return_to_index	There are no prerequisites for the course. Probably everyone in the course has some pieces of the necessary background knowledge—a course in Chaucer, for example, is a marvelous introduction to much of what we will be doing, as is, in a somewhat different way, a course in Shakespeare—and no one, including myself, has all the necessary background knowledge. I will assume that you have never taken a course in English history and that you know no Latin and no French. We will explain what you need to know of these topics in class. If you have taken a medieval and/or early modern English legal history course someplace else or if you have had an English constitutional history course that devoted some time to legal development in the same periods, you probably should not take this course. You should instead consider the seminar in English legal history that is being offered this semester. At the beginning of each section of the syllabus there is a list of “general readings.” These are not required readings for the course, but are designed to allow you to explore some of the topics. If you feel that the “straight history” part of the course is going too fast for your knowledge, you might want to look at some of the books suggested in these lists. In particular, Bryce Lyon’s A Constitutional and Legal History of Medieval England (2d ed., Norton, 1980) is recommended as a solid, if somewhat uninspiring, introduction to the constitutional history of medieval England. I have included some page references to Lyon and a number of other books in the general readings. I have also put a few extracts from Lyon in the materials to help us through the narrative history of our periods. (Lyon, together with the other books that the undergraduates will be reading, are on reserve in Langdell.)
Requirements Return_to_index	The reading load is fairly heavy. (I tell the undergraduates just the opposite, because for a history course, the reading load is fairly light.) Give priority to the documentary materials. Not all classes have documentary assignments, but those which do will devote a considerable amount of time to the documents, and you’ll be lost if haven’t read them in advance. When this course was expanded from a two-hour course to a three-hour course, I deliberately did not expand the coverage, because previous students suggested that I had too much material for two hours. Rather, I used the extra hour to devote more time to the documents and to class discussion. I do think that in a three-hour course we can do some writing. I am asking you to write a five-page paper, exclusive of footnotes that analyses some document in the materials or in Baker and Milsom. It may be a case or a statute or a piece of writing about the law. The paper should present an idea supported by evidence (primary materials please). The paper should illustrate some broad theme about the relationship of law and society. The first draft of the paper is due before the class on which we take up your topic. (I will relax that requirement for those dealing with early topics, but I want to spread the drafts out over the semester). I will return the draft with comments. You should turn in the final draft to my assistant, Ms. Reader, in Hauser 518 not later than 4:30 p.m. on Fri., 15 May. (I will have a more elaborate description of the paper requirement at our first “section meeting.”) There will be a take-home exam during the exam period, distributed on the last day of class, Wed., 29 Apr., and to be returned to my assistant (Ms. Reader again, Hauser 518) (not the Registrar’s Office) no later than 4:30 p.m. on Fri., 15 May. The exam will probably have two questions, one of which will focus on a document, like those contained in the class materials and Baker and Milsom, and the other of which will allow you to range quite broadly. (A copy of some of the recent exams will be posted on the website.) You may write a term paper in lieu of taking the exam. The paper must cover at least two of our four periods, and it must use primary materials. Students who have chosen the paper option in previous years enjoyed it but agreed that it involved a lot more work than just taking the exam. If you want to take the paper option, please let me know no later than the beginning of spring vacation (Sat., 21 Mar.). I will need to approve your topic.
Office Hours Return_to_index	My office is in Hauser 512 in the Law School. My assistant is Ms. Reader in Hauser 518, and my office hours are from 2:00–4:00 on Tuesdays, or by appointment. There is a sign-up sheet for office hours on the door. Signing up for the office hours is usually not necessary at the beginning of the term, but it will be by the end.
Syllabus Return_to_index	The following syllabus is arranged by topics and assignment numbers as well as by date. Each assignment will take roughly one class period, but I want to leave some flexibility. The calendar that follows the syllabus gives my current estimate of when we will deal with each assignment. Note: Baker = J.H. Baker, An Introduction to English Legal History, 4th ed. (London: Butterworth, 2002); Brown = A.L. Brown, The Governance of Late Medieval England (Stanford: Stanford U. Press, 1989); Elton = G.R. Elton, The Tudor Constitution: Documents and Commentary, 2d ed. (Cambridge [Eng.]; Cambridge U. Press, 1982); Jolliffe = J.E.A. Jolliffe, The Constitutional History of Medieval England, 4th ed. (New York: W.W. Norton, 1961); Loyn = H.R. Loyn, Governance of Anglo-Saxon England (Stanford: Stanford U. Press, 1984; Lyon = Bryce Lyon, A Constitutional and Legal History of Medieval England, 2d ed. (New York: W.W. Norton, 1980); Materials = C. Donahue, ed., Materials on English Constitutional and Legal History (available in Hauser 518); S&M = Carl Stephenson & F.G. Marcham, eds., Sources of English Constitutional History, vol. 1, rev. ed. (New York: Harper & Row, 1971) (all the cited S&M documents are in the Materials; there’s a table at the beginning that shows you where to find them); Warren = W.L. Warren, The Governance of Norman and Angevin England (Stanford: Stanford U. Press, 1987).

Syllabus

Topic I. The Age of Tort

General Readings: Baker, 1–10, 27–34, 212–19. Loyn (the whole book); or Jolliffe 1–138; or Lyon 3–103; or Warren 1–22 ( this last only recommended for those who are already familiar with Anglo-Saxon England).

	Assignment
Mon., 2 Feb.	1. Constitutional history of England from the invasions to Edgar — Materials § 2, pp. 22–48 (Anglo-Saxon documents and narrative).
Tue., 3 Feb.	2. Introduction; the legacy of the ancient world (herewith some brief remarks on Roman law and Christianity); the “reception” question — Materials § 1 (CD bk. rev., Letter to the Romans, outlines, Justinian extracts) (Section).
Wed., 4 Feb.	3. Constitutional history of England from Edgar to the conquest — Materials § 2, pp. 76–8 (notes on A-S dooms).
Fri., 6 Feb. Return_to_index	4. Kings, lords and families in Anglo-Saxon England; Aethelberht’s Code — Materials § 2, pp. 49–78 (Aethelberht’s code, Simpson article, notes) (Makeup class).

Topic II. The Age of Property

General Readings: Baker, pp. 12–34, 37–39, 53–76, 175–78, 223–47, 259–74, 479–97, 538–61 (sample documents) (pay particular attention to Baker, pp. 538–41 (A.i, B.i and B.ii) and pp. 542–5 (C.i and C.ii.)). Warren, pp. 24–229 and Brown, pp. 100–237; or Jolliffe, pp. 139–362; or Lyon, pp. 109–115, 127–99, 217–27, 244–99, 310–36, 351–407, 408–68, 496–561, 586–612.

	Assignment
Mon., 9 Feb.	5. The conquest of England and the feudalism debate — Materials §§ 3A–3B, 3D–3E, pp. 88–99, 115–32 (narrative, White bk. rev., Domesday Book extracts). [Try to get a sense for what the debate is all about and how one might use a document like Domesday Book to come to some conclusions about the debate.]
Tue., 10 Feb.	6. Norman and Angevin institutions: the Exchequer and the courts — Materials § 3C, 3E, pp. 99–115, 132–8 (narrative, Pipe Roll of 31 Henry I). The assizes of Henry II as seen at his death: Glanvill — Materials § 4A–4B, pp. 158–93 (Assizes of Northampton and Clarendon, Glanvill extracts) (Section).
Wed., 11 Feb.	7. Regnum and sacerdotium: learned law and politics, 1066–1215 — Materials §§ 3F–3G, pp. 139–57 (outlines and documents, narrative).
Tue., 17 Feb.	8. The Polstead saga — Materials § 4C, pp. 193–207 (Section).
Wed., 18 Feb.	9. The Polstead saga — Review Materials § 4C, pp. 193–207
Mon., 23 Feb.	10. The assizes of Henry II revisited — Materials § 4D, pp. 207–31 (Palmer bk. rev.).
Tue., 24 Feb.	11. Property and the family — Materials § 5B (Statutes De Donis and Quia Emptores) (Section).
Wed., 25 Feb.	12. The assizes of Henry II as seen by the barons: Magna Carta — Materials § 5A (Magna Carta and the Treaty of Winchester).
Mon., 2 Mar.	13. The king and the barons — Review Materials §§ 5C–5D.
Tue., 3 Mar.	14. Pleading and the legal profession — Materials § 7A (a Y.B. case). (Section will meet in the Root Room of the Harvard Law School Library).
Wed., 4 Mar.	15. Parliament — Review Materials §§ 5C–5D (pp. 275–6, A Record of Parliament; pp. 247–75, S&M Nos. 48–9, 51–2); read Materials § 5H (S&M No. 54G, pp. 307–8).
Mon., 9 Mar.	16. Court structure and social structure c.1300 — Review Materials §§ 5H, 7D.
Tue., 10 Mar.	17. The “old” personal actions: Debt, detinue, covenant and account — Materials § 7B (statutes, writs, and cases); Baker 360–71, 409–13, 440–45 (Section).
Wed., 11 Mar. Return_to_index	18. The theory of kingship and the English and French constitutions c.1300 — Materials § 5F, G (Bracton on kingship; French outline).

Topic III. The Age of Trespass

General Readings: Baker, pp. 76–81, 155–62, 165–7, 178–82, 186–8, 204–12, 317–50, 365–77, 379–90, 394–97, 401–9. Brown, pp. 1–99, review pp. 100–55; or Jolliffe, pp. 362–95; or Lyon, pp. 475–82, review pp. 496–561, 586–612.

	Assignment
Mon., 16 Mar.	19. Origin and development of trespass (Edward I to Edward III) — Materials § 7C (trespass writ, Brainton v. Pinn, Ferrers v. Dodford, Rattlesdene v. Grunston, The Humber Ferry Case, The Miller’s Case, The Innkeeper’s Case, Waldon, The Farrier’s Case, The Surgeon’s Case, Anon.).
Tue., 17 Mar.	20. Personal actions in courts other than Common Bench — Materials § 7D (cases); Baker 371–73 (Section).
Wed., 18 Mar.	21. Assumpsit — Materials §§ 7C, 7E (Watton v. Brinth, Anon., Watkin’s Case, Somerton’s Case, Anon., Doige’s Case, Dictum, Orwell, Pykering, Slade).
Mon., 30 Mar.	22. 14th century household, council, parliament — Review Materials §§ 6A–6B (Articles against Gavaston; S&M Nos. 57–8, 60–2, 63A–63E, 64; narrative).
Tue., 31 Mar.	23. Late medieval constitution and personal actions revisited — Materials §§ 6C–6E (chronology, documents [S&M nos. 66B–F, 67–70, 73–76, 79A–B] and narrative); review Materials §§ 6A–6B, §§ 7C, 7E..
Wed., 1 Apr. Return_to_index	24. King making and unmaking — Materials § 6G (documents concerning the depositions of Edward II, Richard II, and Edward V); review Materials § 6A (Articles against Gavaston).

Topic IV. The Age of Equity

General Readings: Baker, pp. 97–124, 126–32, 162–65, 167–72, 248–57, 269–76, 280–96, 347–61, 409–21. Elton, pp. 1–4, 12–14, 17–18, 20–23, 30–33, 39–45, 59–61, 80–82, 88–94, 102–5, 117–20, 129–34, 148–56, 163–6, 170–4, 187–90, 199–203, 218–26, 233–40, 245–54, 260–8, 290–6, 307–12, 327–30, 338–45, 378–83, 395–99, 419–23, 442–8, 462–8, 483–99 (this is basically his introductions to the documents); and one of the following: Brown, pp. 238–43, review pp. 1–99; or Jolliffe, 409–95; or Lyon, 567–74, review pp. 586–612, read pp. 613–49.

	Assignment
Mon., 6 Apr.	25. Order, social structure and the law, 1348 – 1500 — Materials § 6F (Statute of Labourers; wage rates; S&M Nos. 62D, 64C, Statute 1 Henry IV; Statute, 8 Edward IV; Sumptuary Statute; S&M Nos. 73F, 74I, 81C).
Tue., 7 Apr.	26. Survey of constitutional history from the Reformation through the Restoration — Materials §§ 8A-8C (chronology, documents, narrative) (Section).
Wed., 8 Apr.	27. Littleton, Fortescue, St. German: Idea of law, c. 1500 — Materials §§ 8A, 9A (S&M no. 73, 74A, S&M 74B–N; Littleton, Fortescue, St. German extracts).
Mon., 13 Apr.	28. The origins and development of equity; the search for a forum — Materials § 9C (S&M no. 71; petitions; cases; St. German).
Tue., 14 Apr.	29. Judges, lions and thrones; the reform movement — Baker 47–61, 97–110, 155–75, 208–14, 216–21, 223–33; Materials §§ 8D, 9D (Harding extracts); Baker 243–52 (again) (Section).
Wed., 15 Apr.	30. Ecclesiastical Jurisdiction, 1250–1600 — Materials § 9B (Donahue article; Circumspecte Agatis; Articuli Cleri; S&M Nos. 62E, G, 64F, 69B, 74B–C; Dolling c. Smith).
Mon., 20 Apr.	31. Uses and the Statute — Materials § 9C, 9E (S&M no. 71C; S&M nos. 64E, 74H).
Tue., 21 Apr.	32. The Duke of Norfolk’s Case — Review Materials § 9E (the case), Sources, pp. 169–76; Baker 318–35 (Section).
Wed., 22 Apr.	33. The English Reformation — Review Materials § 8A (S&M nos. 74B–E, G, L–M; 81A–B, E–G).
Mon., 27 Apr.	34. Slade’s Case — Review Materials § 7E (Orwell, Pickering, Holygrave, Slade’s Case).
Tue., 28 Apr. Return_to_index	35. The criminal law, an overview — Materials § 9E (Hay-Langbein debate); Baker 570–608 (Section).

CALENDAR

Mon., 2 Feb.	=	Assignment 1	Anglo-Saxon constitution
Tue., 3 Feb.	=	Assignment 2	Introduction; The legacy of the ancient world (Section)
Wed., 4 Feb.	=	Assignment 3	Anglo-Saxon constitution (cont’d)
Fri., 6 Feb.	=	Assignment 4	Anglo-Saxons (overview); Aethelberht (Makeup class)
Mon., 9 Feb.	=	Assignment 5	The conquest and feudalism
Tue., 10 Feb.	=	Assignment 6	Norman and Angevin institutions; Glanvill (Section)
Wed., 11 Feb.	=	Assignment 7	Regnum and sacerdotium, 1066–1215
Mon., 16 Feb.	=	Holiday
Tue., 17 Feb.	=	Assignment 8	Glanvill (cont’d); the Polestead saga (Section)
Wed., 18 Feb.	=	Assignment 9	The Polestead saga
Mon., 23 Feb.	=	Assignment 10	The assizes of Henry II revisited
Tue., 24 Feb.	=	Assignment 11	Property and the family (Section)
Wed., 25 Feb.	=	Assignment 12	Magna carta
Mon., 2 Mar.	=	Assignment 13	The king and the barons
Tue., 3 Mar.	=	Assignment 14	Pleading and the legal profession. (Section will meet in the Root Room of the HLS Library).
Wed., 4 Mar.	=	Assignment 15	Parliament
Mon., 9 Mar.	=	Assignment 16	Court structure and social structure c1300
Tue., 10 Mar.	=	Assignment 17	The “old” personal actions (Section).
Wed., 11 Mar.	=	Assignment 18	Theory of kingship and the English and French constitutions c1300
Mon., 16 Mar.	=	Assignment 19	Trespass
Tue., 17 Mar.	=	Assignment 20	Personal actions in courts other than Common Bench (Section).
Wed., 18 Mar.	=	Assignment 21	Assumpsit
Sat., 21 Mar.	—	Sun., 29 Mar.	Spring Vacation
Mon., 30 Mar.	=	Assignment 22	The 14th century—household, council, parliament
Tue., 31 Mar.	=	Assignment 23	Late medieval constitution and personal actions revisited (Section)
Wed., 1 Apr.	=	Assignment 24	King making and unmaking
Mon., 6 Apr.	=	Assignment 25	Order, social structure and the law, 1350 – 1600
Tue., 7 Apr.	=	Assignment 26	Constitutional history Reformation through Restoration (Section).
Wed., 8 Apr.	=	Assignment 27	Littleton, Fortescue, St. German: The idea of law c1500
Mon., 13 Apr.	=	Assignment 28	Equity
Tue., 14 Apr.	=	Assignment 29	Judges, lions and thrones; the reform movement (Section).
Wed., 15 Apr.	=	Assignment 30	Ecclesiastical Jurisdiction, 1250 – 1600
Mon., 20 Apr.	=	Assignment 31	Uses and the Statute
Tue., 21 Apr.	=	Assignment 32	The Duke of Norfolk’s Case (Section; last date for turning in short paper drafts).
Wed., 22 Apr.	=	Assignment 33	The English Reformation
Mon., 27 Apr.	=	Assignment 34	Slade’s Case
Tue., 28 Apr.	=	Assignment 35	The criminal law (Section).
Wed., 29 Apr.	=	Final Lecture	Take-home exam distributed.
Fri., 15 May Return_to_index	=	Due date	Final draft of short paper and takehome exam due in Hauser 518.

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URL:  http://www.law.harvard.edu/faculty/cdonahue/courses/elhlaw/syllabus/index.html
last modified:  01/09/09

Copyright © 2009. Charles Donahue, Jr.

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