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Spring 2007 |
Medieval LawSYLLABUS AND ASSIGNMENTS |
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History 2126 |
MEDIEVAL LEGAL HISTORY: English Legal
History: 1000–1600 |
Law 96710A 1/S |
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Prof. Donahue |
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Spring, 2007 |
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Requirements. If you have not taken Medieval Studies 117 (= Law 42200A 1/S) (or had equivalent preparation elsewhere), you should attend the lectures in that course (Mon. and Wed. at 11:00) in the Yard, room Sever 102. Law students should sign up for an hour of “optional written work,” unless you are writing your third year paper in conjunction with this seminar. The sessions of this reading course will focus on the “primary readings” listed below in the light of the “secondary readings.” The primary materials will come either from my “coursepack,” Materials on English Legal and Constitutional History (Mats.), or J. H. Baker and S. F. C. Milsom (eds), Sources of English Legal History: Private Law to 1750 (London: Butterworth, 1986), or from xeroxes that I will provide. A research paper is not required (except for those law students who are doing their third-year papers in conjunction with this seminar). Rather, you should prepare three five-page papers each focusing on one or more of the texts to be discussed in the seminar. (More on this requirement below under “Papers.”) Syllabus: This syllabus is not cast in bronze. We could, for example, do more on the church and the learned law and less on English secular administration. If you let me know what your interests are fairly early on, we can make some accommodations. Background
generalities: Very quickly (we’ll spend some time on this in the first
session) we need to review some basic history, some basic constitutional
history, and some basic legal history.
I have to assume that you have read some of these books, but here’s
one way of getting at these topics relatively painlessly. Three quick paperbacks on basic history:
Christopher Brooke, From Alfred to
Henry III, 871–1272 (New York: Norton, 1961); George Holmes, The Later Middle Ages, 1272–1485 (New
York: Norton, 1962); A.F. Myers, England
in the Late Middle Ages (1307–1536) (Baltimore: Penguin, 1952). Two short but not so quick books on
constitutional history: W. L. Warren, The
Governance of Norman and Angevin England (Stanford: Stanford U. Press,
1987); A. L. Brown, The Governance of Late
Medieval England (Stanford: Stanford U. Press, 1989). A first-class (but long) book on legal
history: J. H. Baker, An Introduction
to English Legal History, 4th ed., ( The legacy of the Anglo-Saxon world. Primary reading: Aethelberht’s Code [Mats. § 2C]. Secondary reading: H. R. Loyn, Governance of Anglo-Saxon England (Stanford: Stanford U. Press, 1984) (course reserve); Patrick Wormald, The Making of English Law: King Alfred to the Twelfth Century (Oxford: Blackwell, 1999) (reserve shelf). id., Legal Culture in the Early Medieval West: Law as Text, Image and Experience (London: Hambledon, 1999) (collected essays of which the following are particularly important: “Lex Scripta and Verbum Regis: Legislation and Germanic Kingship, from Euric to Cnut,” “‘Inter cetera bona ... genti suae’: Law-Making and Peace-Keeping in the Earliest English Kingdoms,” “Lordship and Justice in the English Kingdom: Oswaldslow Revisited”); Lisi Oliver, The Beginnings of English Law (Toronto: University Press, 2002). The Conquest, Domesday Book, and Administration Primary reading: Selections from Domesday Book [Mats. § 3E with xerox additions]; Richard Fitzneale, Dialogus de Scaccario = The course of the Exchequer (Oxford: Clarendon, 1983) (reserve shelf) Secondary reading: F. W. Maitland, Domesday Book and Beyond (Cambridge: Cambridge University Press, 1897; repr. many times, copies all over the place); Peter Sawyer (ed.), Domesday Book: A Reassessment (London: Edward Arnold, 1985) (reserve shelf); Robin Fleming, Domesday Book and the Law (Cambridge: Univerity Press, 1998) (reserve shelf, introduction only); S. B. Chrimes, An Introduction to the Administrative History of Mediaeval England (Oxford, 1966) (esp. chs. 1–3) (reserve shelf). Feudalism and the Law Primary reading: Extracts from Glanvill [Mats. §§ 4B, 7B]; The Polestead Saga [Mats. § 4C] Secondary reading: S. F. C. Milsom, The Legal Framework of English Feudalism (Cambridge: Cambridge University Press, 1976). 201 p. (reserve shelf) (to be read in conjunction with the Palmer review in Mats. § 4D). Critics of Milsom: Susan Reynolds, Fiefs and Vassals (Oxford: Clarendon, 1994) (chapters on the libri feudorum and on England) (available in “e-book” format: http://nrs.harvard.edu/urn-3:hul.ebookbatch.ACLS_batch:MIU01000000000000003865580); John Hudson, Land, Law and Lordship in Anglo-Norman England (Oxford: Clarendon, 1994) (reserve shelf); Paul Hyams, Rancor and Reconciliation in Medieval England (Ithaca, NY: Cornell University Press, 2003). The Church, the Learned Law, and the Problem of Proof Primary reading: Selected cases from the ecclesiastical
courts of the Secondary reading: Secondary reading: General background: R. W. Southern, Western Society and the Church in the Middle Ages (Harmondsworth: Penguin 1970); James A. Brundage, Medieval Canon Law (London: Longman, 1996), 264 p. (pp. 120–54 are particularly important); either Paul Vinogradoff, Roman Law in Medieval Europe (Oxford: Clarendon, 1929) or Manlio Bellomo, The Common Legal Past of Europe (Washington, DC: Catholic University, 1995), xix, 252 p. Specifically for the seminar session: Robert Bartlett, Trial by Fire and Water: The Medieval Judicial Ordeal (Oxford: Clarendon Press, 1986), 182 p. (reserve shelf); Paul R. Hyams, “Trial by Ordeal: The Key to Proof in the Early Common Law,” in On the Laws and Customs of England (Chapel Hill, NC, 1981) 90–126 (reserve shelf); Charles Donahue, “Proof by Witnesses in the Church Courts of Medieval England: An Imperfect Reception of the Learned Law”, in id., 127–58; T. A. Green, Verdict According to Conscience (Chicago: Chicago U. Press, 1985) (reserve shelf) (you may need to review Baker, Introduction, pp. 570–608 to make sense out of this). The Legal Profession and Legal Education Primary reading: Early Registers of Writs; Brevia Placitata; Novae Narrationes; Readings and Moots (extracts) Secondary reading: Paul Brand, The Origins of the English Legal Profession (reserve shelf); C. Donahue, draft chapter on the legal profession in 14th century England (xerox). Note: From 10:40–12:00 that morning, I will be doing a “show-and-tell” in the Root Room of the HLS Library. One of the main purposes of the display is to show the various kinds of tools that were used by medieval English lawyers both for educational and practice purposes. You are more than welcome to come. The Statute De Donis, the Statute of Uses and Their Aftermath Primary reading: Statute De Donis; Lord Dacre of the South
[Sources, pp. 105–11]; Statute of Uses; Selected Cases (xerox) Secondary Reading: Paul Brand, Kings, Barons, and Justices: The Making and Enforcement of
Legislation in Thirteenth-Century England (Cambridge: CUP, 2003) (reserve
shelf); Joseph Biancalana, Country and town (herewith of villeinage) Primary reading: Lex mercatoria and selected cases from the manorial, borough, and mercantile courts [Mats. § 7D; xeroxes]. Secondary reading: J. L. Bolton, The Medieval English Economy, 1150–1500 (London: Dent, 1981) (not a classic but a solid modern overview) (reserve); Paul R. Hyams, King, Lords, and Peasants in Medieval England: The Common Law of Villeinage in the Twelfth and Thirteenth centuries, Oxford historical monographs (Oxford [Eng.]: Clarendon Press, 1980) xxii, 295 p. (reserve shelf); R. H. Hilton, The English peasantry in the later Middle Ages: The Ford lectures for 1973 and related studies (Oxford: Clarendon Press, 1975) 256 p. Widener (3 copies), Hilles, Lamont HD594.H54. The Old Personal Actions and Trespass Primary reading: Materials §§ 7B, 7C. Secondary reading: Robert Palmer, English Law in the Age of the Black Death (Chapel Hill: UNC Press, 1993) (you may need to review Baker, Introduction, pp. 374–464 to make sense out of this). Magna Carta, the King and the Origins of Parliament Primary reading: Magna carta [Mats. § 5A]; Bracton on kingship [Mats. § 5E]; the Mise of Secondary Parliament Primary reading: The deposition of kings [Mats. § 6G]. Secondary reading: G. O. Sayles, The King’s Parliament of England (London, 1975); R. G. Davies and J. H. Denton (eds), The English Parliament in the Middle Ages (Philadelphia: U. Penn., 1981) 214 p.; E. B. Fryde and E. Miller (eds). Historical Studies of the English Parliament (Cambridge: CUP, 1970), 2 vols. (no law against reading the whole thing, but at a minimum you should read the introductions to both volumes and essays 3 (Maitland) and 13 (Wilkinson) in vol. 1, and essays 1 (Brown), 3 (Lander), 7 (Elton), and 10 (Roskell) in vol. 2). The Tudor Revolution in Government Primary reading: G. R. Elton, The Tudor Constitution, 2d ed. (Cambridge: CUP, 1982). (You don’t have to read all the documents, but read all the introductions and as much of the documents as you think are necessary to make sense of the introductions.) Secondary reading: Christopher Coleman and David Starkey, Revolution
Reassessed: Revisions in the History of Tudor Government and Administration
(Oxford: Clarendon, 1986). viii, 219 p. Widener:
WID-LC JN181.R48 1986; Lamont: JN181.R48 1986; Hilles: JN181.R48 1986; J. H.
Baker, Introduction to Spellman’s Reports, vol. II, Marriage; Law, Politics and Society Primary reading: Select Canterbury Cases (Materials § 9B and xerox); Calvin’s Case (xerox). Secondary reading: James A. Brundage, Law, Sex and Christian Society in Medieval Europe (Chicago: University of Chicago Press, 1987) (reserve); Ernst Hartwig Kantorowicz, The King’s Two Bodies: A Study in Medieval Political Theology (Princeton: Princeton Univ. Press, 1957). xvi, 568 p. Hilles: 321.6 K16. Littauer: JC385.K25 Reserve=Gov2022 F’87. Lamont: JC385.K25. Widener: Gov 210.257. Child Memorial: JC385.K25. Papers. You should prepare three five-page papers each focusing on one or more of the texts to be discussed in the course. (As the semester goes on we can broaden the texts to include texts in which you are interested but which we will not be discussing in class.) The papers should offer an idea supported by an analysis of the text and by appropriate external evidence. You should prepare a draft of your paper before (preferably) or shortly after we take up your text in class. I will comment on your draft, and in the light of the comments, you should prepare a final draft. The final drafts are due by the end of reading period. Here are some examples of suitable paper topics (all of these have been successful paper topics in the past):
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The Fee Tail and the Common Recovery in
Medieval England, 1176-1502 (Cambridge: CUP, 2001) (reserve shelf); Lloyd
Bonfield, |
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