English Legal History: Reading Group

Harvard Law School: HLS-2502-1

Fall 2012

Charles Donahue

Meeting Time: M 5:00 PM - 7:00 PM, WCC Room 4056

Professor Charles Donahue
1 classroom credit HLS-2502-1

Since the course in English Legal History will not be offered this year and may not be offered next year, I would like to give students an opportunity to read something about English Legal History. I’ve chosen selections from Pollock and Maitland, History of English Law Before the Time of Edward I. The book is old, but it’s a classic, and beautifully written. Well spend some time talking about areas in which our contemporary vision of English legal history no longer matches that of Pollock and Maitland.

THE BOOK

The book is F. Pollock and F.W. Maitland, The History of English Law Before the Time of Edward I, 2 vols., 2d ed. reissue, with an introduction by S.F.C. Milsom (Cambridge University Press, 1968) [referred to by volume number as ‘P&M1’ and ‘P&M2’, below]. It is almost entirely the work of Maitland. It would be great if we could read it through in the order in which Maitland wrote it, but experience with a similar reading group a few years ago suggests that we can’t get through the approximately 1500 pages in the two volumes in the time that we have. There is also an argument, which we will consider, that the way in which Maitland (and to some extent Pollock) organized the material lead them to missing some important features of the common law in the 12th and 13th centuries. I have therefore made selections from the book, trying to keep each assignment under 150 pages. These assignments take extracts from different parts of the book, putting together things that we would now argue go together. This is particularly true of the assignments for Oct. 1 and Oct. 22, where we combine substance and procedure, which P&M keep quite firmly separate.

After an organizational meeting on Sep. 10, we consider first (Sep. 24) two summary chapters, which still give a remarkable overview of the developments in the 12th and 13th centuries respectively. While some of the details in these chapters have been found to be incorrect, I agree with Professor Milsom that no one since Maitland has summarized the developments in these critical centuries as well as Maitland did more than a century ago. Our next two sessions (Oct. 1 and Oct. 15) consider the land law, the relationship between seisin and right (Oct. 1) and conveyance (Oct. 15). Disageement with Maitland on these topics is rife, but there are those who would still argue that he got it right. In the next two sessions (Oct. 22 and Oct. 29), we consider the personal actions: first, those that are arguably contractual, and, next, those that have their modern descendants in crime and tort. Maitland’s vision here is powerful, but quite problematical. We will have to ask why. In the final session (Nov. 5), we should consider Milsom’s elliptical criticism of Maitland. We may have time for another topic. I would suggest marriage and family, but I’m open to suggestions of other topics that interest you.

PROPOSED SCHEDULE

Mon., Sep. 10—Organizational Meeting. We’ll spend some time talking about the attached outline, which one wag has called “everything that Professor Donahue knows reduced to one page,” the attached chronology, and the attached detailed table of contents of P&M.

Mon., Sep. 24—P&M1, pp. 135–225 (‘The Age of Glanvill’ and ‘The Age of Bracton’). (September 17 is a Jewish holiday.)

Mon., Oct. 01—P&M1, pp. 229–82, 527–32, 571–94; P&M2, pp. 1–80, 558–73 (tenure, jurisdiction, seignorial jurisdiction, seisin and right, the forms of action).

Mon., Oct. 15—P&M1, pp. 329–49; P&M2, pp. 80–106, 232–313, 326–42 (conveyances, descent, wills). (October 8 is a holiday.)

Mon., Oct. 22—P&M1, pp. 532–67; P&M2, pp. 149–183, 184–232, 598–641 (jurisdiction (cont’d); detinue, debt, covenant, and account; pleading and proof).

Mon., Oct. 29—P&M2, pp. 448–557, 641–58 (crime and tort).

Mon., Nov. 05—Milsom on Maitland, P&M1, pp. xxiii–lxxv. This may be enough. If we have time for more, we might do something on marriage and the family: P&M2, pp. 364–436.

The second edition of P&M was published in 1898 and is out of copyright. Only the introduction by Milsom is still in copyright. The book is worth owning, and I’ll leave to you as to which of the various printings you might want to buy. Amazon has a hard copy of the first volume of the paperback 1968 reprint, but it’s rather pricey, unless you want to read it on Kindle. There is a pdf version of the whole thing on the website for the reading group broken up into ten files, basically by chapters: P&M1.1 (pp. i–cviii), P&M1.2 (pp. 1–225), P&M1.3 (pp. 226–406), P&M1.4 (pp. 406–525), P&M1.5 (pp. 526–688), P&M2.1 (pp. i–xv, 1–183), P&M2.2 (pp.184–363), P&M2.3 (pp. 364–447), P&M2.4 (pp. 448–557), P&M2.5 (pp. 558–691).