Spring 2012

Legal History
English Legal History





 Law 42200A
(Legal History:
Introduction to English Legal History)

Medieval Studies 117
(Constitutional and Legal History
of Medieval England)



Prof. Donahue

  Spring, 2012





  This page contains general information about the course. For current announcements check MyHLS or click here.


I am offering both a course and course/seminar this semester in English legal and constitutional history. Each offering is listed in both the FAS and the Law School catalogues. The requirements for the course are a bit different, depending on whether one is an undergraduate, a law student, or an FAS graduate student.

The basic information and requirements for undergraduates are given in the fact sheet for undergraduates. For more details on the course and its requirements, see the syllabus.

The basic information and requirements for the law students are given below in the fact sheet for law students. For more details on the course and its requirements, see the syllabus.

GRADUATE STUDENTS IN THE FAS SHOULD FOLLOW THE COURSE FOR THE LAW STUDENTS. FAS graduate students need not cross-register to take this course. They should register for Medieval Studies 117, but they should follow the course as described here.

The course/seminar is History 2080 (Medieval Law) and Law 96710A (Seminar: Legal History English Legal History) is a graduate-level reading course/seminar with short papers. It meets on Tuesdays from 5:00–7:00 in Room 5044 in WCC (that’s the new building on the corner of Mass. Ave. and Everett Street). It will cover many of the same topics as this course, although in a somewhat different order and in more depth. For more information see the website.



Law 42200A
(Legal History: Introduction to English Legal History


Mon., Wed. 11:10–12:00, Room 102 in Harvard Hall (in Harvard Yard)


Tue., 10:40–12:00, Room 3019 in WCC (that’s the new building on the corner of Mass. Ave. and Everett Street) (in the Law School; for law students and FAS graduate students).

Required books 

Donahue, Materials on English Legal and Constitutional History (multilith, available in HLS Distribution Center.
Baker, Introduction to English Legal History (This should be available at the HLS Coop.).


Short paper (see below), take-home exam (distributed Mon., 23 Apr. , due Fri., 4 May ; see syllabus).



As I mentioned in the syllabus, you should turn in your first draft of your paper during the week in which we take up the topic of your paper in class, but the drop-dead deadline for the first draft is Tue., 10 Apr. (I will make some exceptions to the ‘week of the topic’ rule  if the rule leads to too many people doing seventeenth century papers.) I will read your draft and make some suggestions. (This is the reason why I want the drafts spread out over the semester; if they get jammed up at the end, I haven’t got time to do an adequate job in commenting.) The final draft is not due until the end of exam period (Fri., 4 May , Ms. Reader , Hauser 518), but you may turn it in at any time. The paper should focus on a particular document. It may be any document in the Materials, any document in Baker and Milsom’s Sources, C. H. Fifoot’s, History and Sources of the Common Law, or a document that you find on your own. It should be no longer than five double-spaced pages, exclusive of footnotes. It should contain an idea, supported by evidence. The principal body of evidence should be primary source material, i.e., the document(s) on which the paper is focused. Here is a list of the kinds of topics that people have written successful papers about in the past:

Women in Aethelberht’s Code (2 papers)—One argued that women were just like slaves, the other that their position depended on their wealth.

Writs precipe before Glanvill [van Caenegem, Royal Writs]—revisited the old debate about whether these writs changed from “executive” to “judicial.”

The Stone Priory Case (1150) [van Caenegem, Cases before Richard I]—complicated patronage relationships in a “truly feudal world.”

Roman Law Influence on Glanvill [Mats.]—what do we mean by “influence”?

The Assize of Northampton [(1176), Mats. p. 137–40]—focused on the background of the rebellion of the king’s sons.

The Assize of Mort Dancestor: An Analysis [Sources, pp. 25–30]—can what it was being used for in 1200 be used to figure out the purpose was in 1176?

Meriden c. Giffard [Select Canterbury Cases (1270)]—why did the bishop of Worcester refuse to institute a man who seems to have been properly presented to a benefice?

An Analysis of Quia Emptores [Mats., § 5B]—politics and property at the end of the 13th century.

Bracton on maritagia and Gifts Subject to modus [based on the Thorne edition of Bracton]—came to the conclusion that the pre-De Donis state of the law was not as clear as De Donis suggests.

The Court of the Bishop of Ely at Littleport [from Maitland’s ed. in Select Pleas in Manorial Courts]—ecology in the 13th century.

Hamo of St. Edmunds at the Fair court of St. Ives [based on Selden Society edition of the rolls of the court]—told a wonderful story of how the court made trouble for an alnager who thought he was going to throw his weight around.

Paris v. Page (1302) [Mats., § 7A]—the law and the decline of villeinage.

Excuse under the Statute of Labourers [from Ames Foundation eds. of YBB of Richard II].

The Sumptuary Law of Edward III (1363) [Mats. § 6F]—relationship of the statute to the cloth trade.

Mills and the Miller’s Case [Mats. § 7C]—nice placing of the case in context by finding material on the changing business arrangements concerning mills in the late 14th century.

The Church and the Chancery: A Study of The Case of the University of Cambridge [Mats., § 7C]—using some readily available printed material the author was able to cast a wholly new light on this case by illuminating both the prior and subsequent history of the transactions involved.

Chancellor Rotherham’s Jurisprudence [based on cases in Sources and Mats]—argues that R’s view of equity was closer to St. German’s than it was to Wolsey’s.

Treason Never Doth Prosper: Rex v. Merks (1401) [88 Selden Society 102]—treason and benefit of clergy in the early 15th century.

Laissez-Faire in the Fifteenth Century? (Case of Gloucester School [(1410), Sources, p. 613])—The development of the concept of damnum absque iniuria, or the notion that economic competition is no wrong.

Rex v. Excester (from the Selden ed. of a Yearbook of Henry 6 (1423))—Damon Runyon in the 15th century.

Debt in Equity [begins with Mats and St. German then goes to W.T. Barbour’s book on contracts in early equity]—doubts that the development was quite as clean as St. German makes it out to be.

St. German on the Enforcement of Naked Promises [Sources, p. 483]—conscience and Roman law in the sixteenth century.

Lord Dacre of the South (1535) [Sources, pp. 105–11]—an analysis of the arguments in an attempt to figure out how much of the case was “law” and how much “politics.”

Early Defamation Actions in the Central Royal Courts (mid-16th c.) [Helmholz, Select Cases on Defamation to 1600]—the common law takes over an action from the church courts, ideas and all.

Copyholds and the Common Law in Dell v. Hygden [(1595), Sources, p. 203]—When copyholds are incorporated in the common law did that mean fees tail too?

The Duke of Norfolk’s Case (Mats.)—what was really going on?

Transformation of Personal Actions in English Law: Slade v. Morley [(1602), Sources, p. 420] and Eason v. Newman [(1596), Sources, p. 537]—the imposition of the Roman ideas of property and obligation on the English scheme of actions.

The Roads to Aldred’s Case [(1610) HSCL, p. 100]: Obstructions of Light in Early English Law—when an agreed-upon principle really isn’t agreed-upon?

Bushell’s Case [Vaughn 135, 124 Eng. Rep. 1006 (1671)]—the principle of non-coercion of the criminal trial jury.


Just print out the sheet (click here for PDF), circle your general area of interest, and turn the sheet into me. You can, of course, range outside these topics, but I want to spread it out over the semester a bit better than we did last time. (Remember what is below is the ‘general area’; the paper itself should be about one or two documents within that area.)

Your Name:




Tue., 24 Jan.

Roman law or canon law ideas in English law

Tue., 31 Jan.

Aethelberht’s Code (or other A-S material)

Tue., 7 Feb.

Land law and dispute resolution before Glanvill



Tue., 14 Feb.

Ecclesiastical jurisdiction (early period)


13th century plea rolls

Tue., 21 Feb.

Criminal Law (any period)

Tue., 28 Feb.

Debt, detinue, covenant or account



Tue., 6 Mar.

Personal Actions in Local Courts

Tue., 20 Mar.



The Legal Profession


Origins and development of trespass



Tue., 27 Mar.

King making and unmaking


Order, social structure and the law

Tue., 3 Apr.

Tudor or Stuart Constitutions



Tue., 10 Apr.

Ecclesiastical jurisdiction (later period)


The conciliar courts


Uses and the statute

Tue., 17 Apr.

Slade’s Case and its aftermath


Property and the family (early modern)


Trespass or case in the early modern period


[Home Page] [Syllabus]

Please send comments to Rosemary Spang

URL:  http://www.law.harvard.edu/faculty/cdonahue/courses/ELH/elhlaw/info/index.html
last modified: 01/16/12

Copyright © 2012 Charles Donahue, Jr.