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This short epilogue completes our story by giving a glimpse into what happened next. It surveys in outline some of the major developments affecting the common law after the Civil War. We return to the space ship, Freedonia and to our narrator the Man of Law as he reflects on the stories he has told and tells one last tale: of murder and trial by battle ... in nineteenth-century England.
Our penultimate chapter explores the extent to which the Tudor period saw a legal renaissance. It examines developments in the common law courts but also explores the development of new conciliar courts outside the common law, most notably star chamber and the court of equity, which were to prove influential. It also examines the further rise in the use and importance of statute law in this period, demonstrating that the Reformation statutes that split England from the Roman Catholic Church underscored the power of Parliamentary statute. Attention is also given to some developments in the common law courts during this period concerning the law of obligations (the development of the principle of consideration in contract law), property law (the development of the writ of ejectment that replaced the older land law writs and the origins of the law of trusts) and criminal law (the development of the distinction between murder and manslaughter).
This book seeks to tell you what you are unlikely to be told as part of your law course. It provides the ‘back stories’ of some of the main topics that you are likely to study during your degree. This book is designed to give you a head start and should mean that your study of the current law makes more sense. The chapters that follow tell some of the main stories of the history of English law. They focus on stories told about the origins of the common law, tracing elements of the development of English law from around the time of the Norman Conquest to the outbreak of Civil War in the Stuart period. This introductory chapter provides a run-through of some of the main arguments. It falls into three parts. The first part explains what the common law is and provides an introduction to Maitland, our chosen tour guide. The second part identifies seven reasons why a historical approach to law is needed. The third part of the chapter provides a brief guide to further reading and an outline of the chapters that follow, which will explore some of the stories of the common law.
This short prologue provides an introduction to the main features of the English law for those readers who are new to the study of law. It introduces our narrator, the Man of Law, as he explains some of the curious features of the common law.
This final chapter examines the early Stuart period in the years leading to the Civil War. This ending point, though necessarily arbitrary, has been chosen because of the entwinement between centralised royal power and the origins of the common law described in previous chapters means that it can be said that the common law had reached a level of maturity when it was able to survive for an extended period of time without a monarch. The Civil War further provides an appropriate conclusion to our survey given that it was the culmination of the conflicts between the king and his advisers, which date back centuries to Magna Carta and beyond. The chapter explores this final time period by exploring the work, behaviour and legacy of Sir Edward Coke, who has been likened to the Shakespeare of the law, and who is often seen as the bridge between the medieval and the modern laws.
Although we will be taking Maitland as our main tour guide, this chapter will explore the various storytellers by introducing the various perspectives. It will begin by distinguishing between what may be referred to as the intellectual history tradition in legal history, which explores the development of legal ideas within legal sources, and the social history tradition, which explores legal changes within their social context. It will demonstrate that both approaches complement one another and that, although Maitland is often regarded as a significant figure in the intellectual history tradition, some of his work can also be situated in the social history tradition. Further, it will be shown that Maitland’s work often demonstrated what may be styled a radical approach to legal history. The chapter will conclude by examining a number of radical perspectives that have been taken to the interaction between law and history, namely critical legal history, feminist legal history, critical race theory and my own call for a subversive legal history. These approaches are presented so that you can critique and apply insights from these perspectives as we re-tell and question the conventional stories of the genesis of the common law.
This chapter completes our examination of the long Plantagenet period, which culminated in the bloody War of the Roses. However, as the chapter title makes plain, the focus is on the impact that the deadly plague of this period had upon law and order. The chapter explores the different interpretations made of the importance of the Black Death and surveys developments of this period such as the origins of what we would today call employment law, significant increases in the effectiveness of the administration of justice chiefly through increased powers for justices of the peace and important developments in both law of obligations (exploring how actions on the case developed from the writ of trespass and how it further developed into the action on the case for assumpsit) and the criminal law (focusing on treason and murder).
This chapter explores the most well-known English constitutional text and the period that followed its enactment. It explores how Magna Carta was a much more mundane and feudal document than its reputation suggests. It also examines how it was by no means the sole kingly concession during this period and discusses the origins of Parliament and how this affected the common law. The chapter falls into three sections. The first section discusses the importance and effect of Magna Carta. It explores what Magna Carta said and what effect it had upon feudalism, the operation of courts, governance and upon immigration. The second section will then explore the debate concerning the role the charter played in the development of Parliament, examining what Magna Carta said and also the importance of alter developments during this period. The final section will examine the impact of the charter upon the position of women.
It was during the reign of Henry II (1154–89) that royal justice was available to anyone could bring their case within a certain formula, known as a writ. This is discussed in Chapter 5, ‘The Father of the Common Law (c.1154–1215)’, the title of which refers to the title often bestowed upon Henry II, the first monarch from the House of Plantagenet. The chapter focuses on the development of the writ system during and in the aftermath of Henry’s reign in relation to what we now call land law and whether this marked a move to centralisation that replaced the feudal system. The chapter begins by examining the Becket controversy but will then move on to argue that it is for other developments that Henry Plantagenet’s reign should be remembered. The second part of this chapter explored the developments to the legal system that occurred during this reign and that allowed for a common law to develop and be regularised. The final section will explore in detail the origins of the writ system, following Maitland’s legendary account of The Forms of Action as well as the revisions and criticisms put forward by Milsom.
This chapter begins our examination of the origins of the common law. Many accounts – including that of Maitland – begin just before the Norman Conquest and explore how centralised authority had developed in the late Anglo-Saxon period. This is the focus of this chapter, which explores the debate as to the importance of this period by examining the characteristics of the late Anglo-Saxon legal system. This chapter will explore what the Anglo-Saxon inheritance was. The first section will look at the historical debate as to where the history of English law begins and the importance that should be placed on the Anglo-Saxon period. It will contrast the still influential approach of Maitland with more recent scholars, most notably Patrick Wormald. The second section will then outline what is considered to be the major achievement of the long Anglo-Saxon period as a whole: the move from feud to compensation. The third and final section will then explore how what we would call the legal system had developed by the end of the Anglo-Saxon period. It will ask what did William the Conqueror inherit and to what extent this provided some foundation for the English common law.
This chapter explores the effect of the Norman Conquest as well as looking at the developments during the Norman period as a whole during the reigns of William I (1066–87), William II (1087–1100), Henry I (1100–35) and Stephen (1135–54). It falls into three sections. The first provides an overview of the main effects of 1066 in terms of law and order. The second and main section then discusses in detail what is often considered to be the most significant development under the Normans, the feudal system, and how this impacted upon law and order. Feudalism actually undermined the development of a common law by feudal lords presiding over their own feudal courts for their tenants. The king’s law and protection was only afforded to his own personal tenants. The third section then focuses upon two aspects that are often overlooked in accounts of the effect of the Conquest: the effect of the Norman era upon the position of slaves and women. The importance of the later Norman kings will be the focus of the conclusion.
The title of this chapter on ‘The English Justinian (c. 1272–1307)’ refers to the nickname given to Edward I who was likened to the Roman Emperor Justinian I who codified Roman law on the basis that Edward’s reign saw a significant increase in the number and importance of statutes. It falls into three sections. The first will discuss the main statutes of Edward I, focusing on the Statute of Westminster 1275, the Statute of Wales 1284 and the Statute of Westminster II 1285. The second part will examine statutes that had a particular effect upon feudalism: the Statute of Mortmain 1279 and Quia Emptores 1290 (also known as the Statute of Westminster III). The third and final section will explore a development in the common law that began before this time but blossomed in this period: the origins of what is now known as the law of obligations or the law of contract and tort (examining the writs of covenant and trespass). This underlines that, although the English Justinian is known for the growth of statute law, the era also saw the continued development of the common law.
There are some stories that need to be told anew to every generation. This book tells one such story. It explores the historical origins of the common law and explains why that story needs to be understood by all who study or come into contact with English law. The book functions as the prequel to what students learn during their law degrees or for the SQE. It can be read in preparation for, or as part of, modules introducing the study of English law or as a starting point for specialist modules on legal history or aspects of legal history. This book will not only help students understand and contextualise their study of the current law but it will also show them that the options they have to change the law are greater than they might assume from just studying the current law.