Spring 2012

Medieval Law

SYLLABUS AND ASSIGNMENTS

Spring 2012

 

History 2080
(Medieval Law)

MEDIEVAL LEGAL HISTORY:

English Legal History: 1000–1600
Tentative Syllabus and Assignments

 Law 96710A
(Legal History Seminar:
English Legal History)

 

 

 

Prof. Donahue

 

  Spring, 2012

 

 

Requirements. If you have not taken Medieval Studies 117 (= Law 42200A ) (or had equivalent preparation elsewhere), you should attend the lectures in that course (Mon. and Wed. at 11:00) in the Yard, Room 102 in Harvard Hall . 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.

There is a rather large amount of reading listed for each seminar sesssion. In most of the sessions we will begin with some of the general statements that might be derived from the readings, but I certainly don’t expect you read everything. Where I know that we will want to discuss a particular piece, I’ll mention that fact in the previous week. Before the recent changes in the physical arrangements at HLS, I was able to maintain a reserve relevant books in a seminar room. (These are indicated below in parentheses. It is unclear how we’ll handle this this semester, but I should know by the first class.

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., (London: Butterworth, 2002) (Baker carries the story well beyond the Middle Ages; it is a required book for the course).

Week 1—Tue., 24 Jan.

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) (HLS copy has gone missing; there's one in Widener).  id., Legal Culture in the Early Medieval West: Law as Text, Image and Experience (London: Hambledon, 1999) (HLS copy has gone missing; there's one in Widener) (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) (HLS copy is checked out; I've recalled it).

Week 2— Tue., 31 Jan.

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).

Week 3—Tue., 7 Feb.

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); 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) (reserve shelf).

Week 4—Tue., 14 Feb.

The Church, the Learned Law, and the Problem of Proof

Primary reading: Selected cases from the ecclesiastical courts of the province of Canterbury (xerox). Review the cases in the Postead Saga and ask how they were proved.

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).

Week 5—Tue., 21 Feb.

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 on reserve shelf).

Week 6—Tue., 28 Feb.

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, The Fee Tail and the Common Recovery in Medieval England, 1176-1502 (Cambridge: CUP, 2001); Lloyd Bonfield, Marriage Settlements, 1601-1740: The Adoption of the Strict Settlement (Cambridge: CUP, 1983).

Week 7—Tue., 6 Mar.

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); 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.; 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.

Week 8—Tue., 20 Mar.

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).

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.

Week 9—Tue., 27 Mar.

Magna Carta, the King and the Origins of Parliament

Primary reading: Magna carta [Mats. § 5A]; Bracton on kingship [Mats. § 5E]; the Mise of Amiens [Mats. § 5C], Confirmatio cartarum [Mats. § 5C]; Records concerning Parliament (S&M 51 [Mats. § 5C])

Secondary Reading: J. C. Holt, Magna Carta, 2d ed. (Cambridge: Cambridge University Press, 1992) (to be skipped if you’re in time trouble) (reserve shelf); J. C. Holt, Magna Carta and Medieval Government (London, 1985). 316 p. (first essay) (reserve shelf); Michael Blecker, “The King’s Partners in Bracton,” Studi Senesi 96 (1984) 66–118; Charles T. Wood, Joan of Arc and Richard III (Oxford, 1988), pp. 48–100 (reserve); G. O. Sayles, The King’s Parliament of England (London, 1975) (History Dept: Hist 1766.379; Widener: WID-LC JN515.S35; Lamont: JN515.S35 1975) (reserve).

Week 10—Tue., 3 Apr.

Parliament

Primary reading: The deposition of kings [Mats. § 6G].

Secondary reading: Chris Given-Wilson, ed., Chronicles of the revolution, 1397-1400: The reign of Richard II, Manchester medieval sources series (Manchester, England: Manchester University Press c1993) (reserve shelf).

Week 11—Tue., 10 Apr.

The Tudor Revolution in Government; Marriage, Law, and Society

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.); Select Canterbury Cases (Materials § 9B and xerox).

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 (xerox on reserve shelf); J. H. Baker, Introduction to Spellman’s Reports, vol. II, Selden Society No. 94 (London, 1988), pp. 23346. (Some of this is pretty tough going, but it’s a remarkable piece of work [it earned the Ames prize for the best “book” about law in five years]; if you understand this, you really have mastered English legal history; a more up-to-date version of Baker's account of the story is found in his volume in the Oxford History of the Laws of England, but that's even longer); James A. Brundage, Law, Sex and Christian Society in Medieval Europe (Chicago: University of Chicago Press, 1987) (reserve shelf).

Week 12—Tue., 17 Apr.

Marriage; Law, Politics and Society (we won’t do all of this; we’ll do one or the other)

Primary reading: Calvin’s Case (xerox).

Secondary reading: 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):

  • Preservation of Order in Aethelberht’s Code (social structure and social order in 7th century Kent)
  • Aethelred’s London code as an indication of economic activity in London in the beginning of the 11th century
  • 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) (complicated patronage relationships in a “truly feudal world”)
  • 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?)
  • Barr c. Parage (Donahue Canterbury Cases (marriage c. 1200)
  • Bracton on Kingship (Thorne ed.)
  • The Statute Quia Emptores (1290) (argued that this was the only way possible to achieve its effect at this time)
  • Mortimer v. Mortimer [(1292), Sources, p. 264] and the Writ of Detinue for a Charter (property and obligation in the 13th century)
  • The court of the bishop of Ely at Littleport (from Maitland’s ed. in Select Pleas in Manorial Courts) (ecology in the 13th century)
  • Spicer v. Chapman (Mats.) (can we get the numbers to add up and can we make sense of what it going on in this case?)
  • Kerseye v. Ferrers (Mats.) (who were these folks and what light does that knowledge cast on this parliamentary appeal?)
  • Case Nos. 160 and 204, Northamptonshire Supervisors’ Roll 1314–16 (Derby v. Bonaventure) (a couple of teenagers playing frisbee with a cartwheel injure a passer-by; is this something that the keepers of the peace should be concerned about?)
  • The Statute of Labourers (1353) and the Action on the Case (YBB of Richard II)
  • 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 Legitimacy of Equity (Mats., § 7C) (how did fifteenth- century equity justify what it did?)
  • Chancellor Rotherham’s jurisprudence (based on cases in Sources) (argues that R’s view of equity was closer to St. German’s than it was to Wolsey’s)
  • 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)
  • Lord Dacre of the South (1535) (Sources, pp. 105–1) (an analysis of the arguments in an attempt to figure out how much of the case was “law” and how much “politics”).
  • Marsilius of Padua and the prologue to the Ecclesiastical Appeals Act
  • Carter v. Downish (1689) (is this when the common-law courts began to incorporate mercantile custom with regard to bills of exchange?).

 

 

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