Spring 2018


Tentative Syllabus

Professor Donahue


Dr. Bartlett




Papers and Exams




Assignments (the Syllabus Proper)



For a “printer-friendly” version this syllabus (PDF), click here.


There are four requirements for credit in the course: (1) a short summary of the readings for each section turned in at the beginning of each section; (2) a short paper (no more than five double-spaced typed pages exclusive of notes); (3) an hour exam (Fri., Oct. 19); (4) a final exam (“take-home”). (We will consider allowing students to write a term paper in lieu of taking the final exam. More about this below under “Papers.”)




Meeting times.

This course is also listed as Law 2165. The FAS students will meet together with the law students for lectures on Mondays and Wednesdays from 10:30 to 11:45 (Room Sever 213). The law students and FAS graduate students will meet for “Section” on Tuesdays from 10:30 to 11:45 in the Law School (Room Hauser 102). There is a separate section for the undergraduates (time and place to be arranged; it’s listed below as if it were on Thursdays) and a separate “discussion class” for the undergraduates on Fridays from 10:30 to 11:45 (Room Sever 213). By and large, Dr. Bartlett will lead the section and Prof. Donahue the discussion class, but in some weeks the reverse will be the case.





None. See below under “Background”.




Work load

For a history course, the reading load is fairly light, but much of it is documentary material, and is thus relatively slow going. 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. This is why we have both a section (tentatively scheduled for Thursdays) and a “discussion class” on Fridays (without the law students). You should bring the multilithed documentary Materials (see below under “Readings”) in either digital or paper form with you to every class.

The key to keeping up with this course is preparation for each class, particularly with the documents, and attendance at classes and sections. Much of our time in class will be spent discussing the documents. When I have previously given this course, I have noted that students who read the documents and attended classes did well, even if they hadn’t done all the secondary reading.




The Course

This is a survey course on the constitutional and legal history of England from the time of the Anglo-Saxon invasions to the end of the Tudor period. 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 major European power, about to become 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 1000 years, from Aethelberht (r. ?584–616) to Elizabeth I (r. 1558–1603). We have 24 lectures, 11 “discussion classes”, and 11 sections (to be arranged) in which to do it.

Obviously we cannot cover in depth all aspects of English constitutional and 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 particularly tempting for historians like ourselves who believe that legal and constitutional history can only be properly understood in its social, economic and political context and who also believe 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 we find irresistible. Some place in the university someone ought to try to “put it all together.”

We have divided our 1000 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 and finally, documents illustrating one or more of the central themes of the substantive law in the period. Thus, the first part of the course is devoted to the emergence of the kingdom of England and of the concept of legal wrong in the Anglo-Saxon period. The second part is devoted to how institutions of royal governance interacted with the lords, tenants, and the church to produce notions of private property in feudal England. The third part is devoted to how the notion of wrong split into what today we call contract and tort against a backdrop in which Parliament emerged as a major force in English governance. And the fourth part is devoted to how ideas of equity shaped property, contract and tort during the political, social and religious conflicts of the late medieval and early modern periods.

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 1000 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 end 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 Quia Emptores in 1290. These discontinuities, however, are not as troubling as what we will have to omit: Criminal law is a 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.





Probably everyone in this 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 ourselves, has all the necessary background knowledge. We 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. There is a graduate reading course this semester (History 2080, formerly History 2126) for which you may be ready.





We will distribute in class, installments of:

C. Donahue, Materials on English Constitutional and Legal History (Materials)

The Materials contain all the documents that we will be discussing in class, and they also contain some secondary readings that we will be discussing in class. They do not, however, contain any attempt to give an overview of the themes of the course. For this, you should probably read a couple of good books, because there is no really good book that covers all that this course covers.

We are asking you to buy:

J.H. Baker, An Introduction to English Legal History, 4th ed. (London: Butterworths, 2002) (Baker) (a book that is also required for the law and graduate students).

For the rest, the assignments contain some additional suggestions for secondary reading, and some advice about each of them follows. As we said before, however, the gist of course is in the documents not in the secondary readings. Ideally one would read the extracts from Baker indicated in the assigments, and one relatively short additional book for each of the four sections of the course. There are substitutes if you get into time trouble. You should do some secondary reading, but what you read is up to you.

Baker is an English legal historian whose specialty is the 16th century. His book is designed for English law students (who, like you, are undergraduates). He treats the history of law almost entirely independently of constitutional developments. It’s a good book for its purpose, but it contains a great deal about developments after our period. When you read Baker, therefore, you should be particularly careful about dates. We have required Baker this year because previous students in the course found its discussions of legal doctrine helpful. Baker is arranged in an entirely different way from the way in which the course is organized, but we have included references in the syllabus at the relevant places.

The syllabus proper gives page references as possible secondary reading to: Brown = A.L. Brown, The Governance of Late Medieval England (Stanford: Stanford U. Press, 1989); 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); and Warren = W.L. Warren, The Governance of Norman and Angevin England (Stanford: Stanford U. Press, 1987).

Each of these books has its strengths and weaknesses. Lyon is a solid, if uninspiring, introduction to the constitutional and legal history of medieval England, a text book with all the deficiencies of the genre. It probably covers the area that we are going to cover in this course better than any other single book, and it is particularly recommended for those of you who find the “straight history” parts of the course going too fast for comfort. The most recent edition is on reserve in the Law School. An older edition is available in both Lamont and the Quad libraries. There are also a few extracts from Lyon in the Materials to help us through the narrative history of our periods.

Brown and Warren were both first-rate historians. They are writing, however, for English audiences, and they assume a familiarity with the basic narrative history of the periods with which we are dealing. (Loyn, the first volume in the Brown-Warren series, is particularly recommended for those who are interested in the early period.) You will discover that Brown and Warren’s idea of governance is not quite the same as the idea of constitution that we will try to develop in the course, and they treat legal developments only in passing.

Jolliffe was not written as a text book, and he assumes a basic knowledge of the material given in Brown and Warren. Jolliffe is not free from error, and the book is woefully unbalanced. His treatment of legal development, social and economic development, and the role of the church is quite inadequate. Yet, in some ways, the book is a flawed masterpiece. The organizing theme, the relationship between the exercise of governmental power and the community, is certainly one of the most, if not the most, critical in the development of the medieval English constitution. The book is, as Helen Cam said in her highly critical review of the first edition (EHR 54 [1939] 489), “brilliant, suggestive, provocative and provoking.”

In previous renditions of this course we have used Carl Stephenson and F.G. Marcham, eds., Sources of English Constitutional History, vol. 1, rev. ed. (New York: Harper & Row, 1971). That book is now out of print. Many of the documentary assignments in the Materials are drawn from it, and a list of documents from the book that are in the Materials can be found in the beginning pages of the Materials.




Papers and exams

The paper(s) should present an idea supported by evidence (primary materials please). The paper(s) should illustrate some broad theme about the relationship of governance, law and society. We will suggest paper topics to you on the basis of your one-paragraph summaries of the reading that you turn in at each section. If you have not already chosen a paper topic by Wed., Nov. 21, you must do so by that date. The first draft of the short paper is due no later than Wed., Dec. 05 (most of you, we hope, will do it much earlier than that). We will return the draft with comments. You should turn in the final draft before the end of reading period (Mon., Dec. 10). A fuller description of the paper requirement and some suggested topics will be available from Dr. Bartlett at the first section meeting.

If you wish to write a term paper in lieu of the final exam, you must take the hour exam and get our approval of your term paper topic. The term paper should cover material in at least two of our four periods. It may trace the history of a particular idea or institution from one period to another or it may compare ideas and institutions in two different periods. In order to get our approval of a term-paper topic, you will need to have completed your short paper and to turn in a one-page statement or outline of what you plan to write about by Wed., Nov. 21. Students in the past who have taken the paper option thought that it was fun but that it involved more work than taking an exam.





Prof. Donahue’s office is in Hauser 512 in the Law School. His assistant is Mr. Matthiessen in Hauser 518, and his office hours are from 1:30–3:30 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. Dr. Bartlett, who will be leading most of the sections, will have office hours at a time and place to be announced later.



To see the syllabus proper, click here.

To see the calendar, click here.

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URL:  http://www.courses.fas.harvard.edu/faculty/cdonahue/courses/ELH/elhfas/syllabus/index.html
last modified:  08/30/18

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