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1.
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Generalities about the 13th century.
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a.
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Gothic art and architecture
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b.
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The high point of scholastic philosophy and theology
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c.
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New religious orders (Dominicans and the Franciscans)
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d.
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Height of the temporal power of the papacy
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e.
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The great glosses of Roman and canon law; Bracton and Beaumanoir
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2.
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English Chronology (Mats.,
p. V–15):
Henry III — 1216–1272 — 57 years — died at age 65
Edward I — 1272–1307 — 35 years — died at age 68
1232 — end of Hubert de Burgh’s justiciarship
1258–59 — Provisions of Oxford,
Provisions of Westminster, Treaty of Paris
1264 — Mise of Amiens, Battle of Lewes, Simon de
Montfort’s Parliament
1265 — Battle of Evesham
1266 — Dictum of Kenilworth
1284 — Statute of Wales
1292 — Judgment for John Baliol, beginning of Scottish
wars
1295 — “Model” Parliament
1297 — Confirmatio cartarum
1303 — Treaty of Paris
with Philip the Fair
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3.
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Developments in governance, chief justiciar and chancellor (early Henry
III). The former office is converted
into the chief justices of the court before the king (coram rege) and of the common bench (bancum commune). The chancellor seems to lose power in this
period, and the wardrobe (a household department) emerges as the most
important department dealing with money.
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4.
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Foreign politics and nationalism (Henry III)
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5.
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The Barons’ Wars (1258–1266) (S&M 47, Mats., pp. V–15 to V–25)
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a.
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Henry agrees to reform: That “the state of our realm [status regni nostri] be ordered,
rectified, and reformed.” The importance of the phrase status regni.
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b.
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The Petition of the Barons (1258, Mats., pp. V–15 to V–19). Notice that like Magna Carta
the topics that they treat begin with the problem of inheritance. Notice
also clause 27, the beginning of a development that will end in the statute
De Donis (1285).
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c.
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The provisions of Oxford (1258, Mats., V–19 to
V–21): “Thus swore the community of England
at Oxford …
.” The notion of community, the notion of the chief officers, the wardrobe.
The 3 annual parliaments may or not be the ancestor of the modern institution.
An elaborate scheme, 12 representatives of the community and 12
representatives of the king choose 4 who, in turn appoint 15 permanent
councillors. On major matters the 12 from the community are to be summoned.
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d.
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The reforms of the provisions of Westminster
(1258, Mats.,
V–21 to V–22). Much that has to do with the justices in eyre, and much that
has to do with lords’ courts. Most renewed in the statute of Marlborough of 1267. A
division between public and private law?
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e.
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Summoning of knights of the shire for the meeting at Windsor (1261, Mats., pp. V–22 to V–23).
Probably not to be connected in any direct way with the shire knights of
parliament.
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f.
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The mise of Amiens
(1264, Mats.,
pp. V–23). The saintly king of France was called upon to
arbitrate the dispute between the king and the barons. There are those who
think that he just followed what the pope had already said on the topic.
That seems to be wrong. I also don’t find the document to be as autarchic
as some do. Much depends on the confirmation of customary practices at the
end.
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g.
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The battle of Lewes, May 1264.
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h.
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The first and second parliaments of Simon de Montfort (1264–5, Mats., pp. V–23
to V–24). The second is famous, perhaps too famous, because it contains a
summons of the burgesses of the boroughs.
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i.
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The battle of Evesham, August 1265. Death of Simon de Montfort.
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j.
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Dictum of Kenilworth (1266, Mats., pp. V–24
to V–25). Announcing the principle of no private revenge didn’t prevent it
from happening, but it did at least establish the principle.
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6.
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The reign of Edward I
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a.
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The Welsh wars (culminates in the Statute of Wales of 1284)
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b.
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The Scottish wars (begin 1292)
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c.
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The French wars (end 1303)
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d.
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Statutory and parliamentary activity (throughout the reign)
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e.
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Confirmatio cartarum (1297)
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f.
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Quo warranto (1278–1294)
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g.
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Carta mercatoria (1303)
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7.
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The legislative activity of Edward I (focusing on Quia emptores [1290] and De
donis [1285]).
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a.
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The fee simple is freely alienable and not devisable because of the
logic of warranty. The development had already taken place around the
beginning of the 13th century. The statute Quia Emptores simply put an end to a practice whereby lords
were being deprived of the feudal incidents, the only thing about lordship
that was worth much any more; it did so by abolishing subinfeudation. All
conveyances of the fee must be by way of substitution. The lords gave up their now nominal right
to object to new tenants.
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b.
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De Donis is the product of a
much more complicated development, that begins
with the gift in maritagium.
Because no warranty is taken in such gifts, the law must develop rules
shorn of the key element that it has used in other areas. First comes curtesy, what would have happened if the lord had
taken his son-in-law’s warranty. Then comes the
curious rule that upon the birth of issue the couple have the right to
alien the fee simple. This is reversed by the statute De Donis that says that if this happens
the heirs of the body of the couple may bring what is called a new form of
action called formedon in the descender to get it back.
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c.
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All of this would suggest that the legislation of Edward I must be seen
for what it was, fixes. Taken together the fixes were important. They were still
lecturing on the legislation of Edward I in the Inns of Court in the 17th
century. It was not, however, legislation in the modern sense. No one in
the time of Edward I thought that the whole system could be reformed by
legislation.
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8.
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The legislation of Edward I in the broad
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a.
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We now have at least an answer to some very curious aspects of English
land law, but most of that was in place before the legislation.
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b.
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The legislation of Edward I must be seen for what it was, fixes. Taken
together the fixes were important. They were still lecturing on the
legislation of Edward I in the Inns of Court in the 17th century. It was
not, however, legislation in the modern sense. No one in the time of Edward
I thought that the whole system could be reformed by legislation.
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c.
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The source of English law is not the written law of Rome or of the church. This is not to say
that both were unimportant, but that is not where law comes from. The
source of English law is custom, and custom means a lot of things. It can
refer to ideas that develop over centuries, such as, that a widow is
entitled to a life interest in some of her husband’s lands, or it can refer
to the practice of a particular court (and the central royal courts are
clearly the courts whose practices are becoming dominant), but it can also
refer to what is right. There are those who argue that the legislation of
Edward I is not conscious of innovation. I’m not
sure that that is quite right. It might be better to imagine it as
innovative, but innovative within a rather narrow context.
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