The History of English Law before the Time of Edward I: In Two Volumes
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First published in , it remains a primary text for students of legal history and the social history of medieval England. Geselecteerde pagina's Titelblad. Populaire passages Pagina - If a dispute shall arise between a clerk and a layman, or between a layman and a clerk, in respect of any Pagina 47 The two phrases are, indeed, intimately connected; they come from the time when the king's protection was not universal, but particular, when the king's peace was not for all men or all places, and the king's highway was in a special manner protected by it.
Breach of the king's peace was an act of personal disobedience, and a much greater matter than an ordinary breach of public order; Pagina - The climax is reached in Richard's reign. We can there see the King's Court as it sits day by day. Often enough it was composed of the Archbishop of Canterbury, two other bishops, two or three archdeacons, two or three ordained clerks who were going to be bishops, and but two or three laymen.
Pagina 83 In the province of justice and police, with its fines, its gaols and its prisons, its constables, its arrests, we must, now that outlawry is a thing of the past, go as far as the gallows if we would find an English institution. Pagina xxxiv - And, in point of fact, there is no trace of the laws and jurisprudence of imperial Rome, as distinct from the precepts and traditions of the Roman Church, in the earliest Anglo-Saxon documents.
Whatever is Roman in them is ecclesiastical. Pagina - popish clergymen ' that our English common law is converted from a rude mass of customs into an articulate system, and when the ' popish clergymen,' yielding at length to the pope's commands, no longer sit as the principal justices of the king's court, the creative age of our medieval law is over. Pagina - He could here obtain a stronger and better commodity than any that was to be had elsewhere, a justice which, as men reckoned in those days, was swift and masterful; he could there force his adversary to submit to a verdict instead of finding that his claim was met by some antique oath with oath-helpers.
Pagina - No free man shall be taken, or imprisoned, or disseised, or outlawed, or exiled, or in any way destroyed, nor will we go upon him, nor will we send against him, except by the lawful judgment of his peers or by the law of the land. Pagina 35 - But we must remember that the thane had a definite legal rank.
Legal History: Anglo American Juries Research Guide
Out of all those disparate ingredients, Henry II and his court managed to put together the core of the Common Law. Much of their work would last centuries; the old formulary of writs, the notion of strict rigid law as opposed to equity, and the tripartite division of the courts lasted well into the 19th century. A few of the core ideas are at the root of our legal system still -- the adversarial process, juries as the finders of fact, the notion that a trial must start with fixed definite charges or claims.
The real drama of the book is the story of how the judges of the Angevin kings centralized the kingdom's laws in the royal courts, managed their conflicts with the ecclesiastical courts, and left their successors one of the foremost justice systems in the world. One of the points Maitland makes, which I think other writers concur with, is that the Common Law is the beneficiary of a quirk of timing. There's a period in the 12th century when the previous ordeal-and-oath legal systems are breaking down under the pressure of commerce, centralization, and recovered Roman law.
Everywhere else in Europe, Roman law simply displaces everything else and so the law tends towards non-formality and inquisitorial systems.
England started on the legal reform path a few decades earlier, and managed to go its own way, with a formulary system and juries. Maitland throughout the book traces the use and non-use of Roman law and the factors keeping it out of English jurisprudence. One thing you learn is that most of our folk-notions of the middle ages aren't really right. People who weren't rich or famous had legal rights that were enforced in court against their social betters.
Social status was not very clear -- people had different statuses depending on context. For instance, a villein has almost no rights in a dispute with his lord, but it equivalent to a free citizen in a dispute with anybody else. Another thing you learn is how familiar facts can be encompassed by unfamiliar theories. Early Medieval England, for instance, had no real notion of "corporate personality". Where we might talk about a gift to the Cathedral of St.
Paul a corporation , they thought of it as a gift to St. Paul -- the saint, as a person -- with the bishop and canons as guardians for the absent natural person. Aethelbert made a donation: "To thee Saint Andrew and to thy church at Rochester where Justus the Bishop presides do I give a portion of my land. Instead, they had the principle that all rights were property rights, and therefore salable.
For instance, lords had the right and duty to ensure that orphaned children of vassals had their property guarded and were properly married off. These are the rights of wardship and marriage. There was no rule nor even a social norm, against exploiting these rights for profit, so long as the ward was not unduly harmed. As a result, these rights were valuable, and were routinely bought for large sums. Put another way: The twelfth century had a market in marriage derivatives. Maitland is one of the best prose stylists I have encountered.
The History of English Law before the Time of Edward I: In Two Volumes
He tends towards a slightly condescending erudition, with long complex sentences enlivened with the occasional striking metaphor or paradox. To quote one paragraph that I thought was especially elegant: "Had we to write legal history out of our own heads, we might plausibly suppose that in the beginning law expects men to help themselves when they have been wronged, and that by slow degrees it substitutes a litigatory procedure for the rude justice of revenge.
There would be substantial truth in this theory. For a long time law was very weak, and as a matter of fact it could not prevent self-help of the most violent kind. Nevertheless, at a fairly early stage in its history, it begins to prohibit in uncompromising terms any and every attempt to substitute force for judgment. Perhaps we may say that in its strife against violence it keeps up its courage by bold words.
It will prohibit utterly what it cannot regulate. First read in early winter of , when I rated it a four. Reread in and uprated. Reread again and possibly a fourth time I haven't logged. I re-read this a lot. Shelves: english , history , law , washington-state-law-library.
On volume one: written about a year ago My jurisprudence professor tracked me down at a reception and told me to read this book. I was dubious. English Law before Edward I? And jerk me to the google, as it assumed I knew things I did not know. Certainly we cannot answer that it is the nature of kings to be conservative or solve the problem by an allusion to the inertness of a government bureau. In matters of law the royal power has been the great disturbing force, the king has been the radical reformer.
Also, yes. The world has changed, but property law? Okay, property law has fairly radically changed in my life time, but the echoes of feudal land tenure still ricochet through. If I live that long.
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And, probably, if I stay at the court that long. I do not think this book would be compatible with private practice.
This notion of justice as a community exercise as well as the judgment of those on high is part of who we are. Quite aside from that, the idea of legal institutions that govern the rich and the poor, the free and the villain, even if that was often more on paper than in fact, matters. Having better angels to reach towards, even if they are myths, is no bad thing. This book briefly surveys property, contract, trusts and estates, family law, crimes, torts, civil procedure, and appellate law as practiced in England There are moments when it seems very distant.
Even in the law of the present day it plays a part which must be studied by every lawyer; but in the past it was so important that we may almost say that the whole system of our land law was law about seisin and its consequences. But still. These words represent a strong feeling: mere human testimony is not enough to send a man to the gallows. The epidemic which was raging on the continent reached our shores; but it came here late and mild. Where there is no torture there can be but little witchcraft. The fallibility of confessions. The fallibility of confessions under torture.
As is our law, and world.
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We get a shout out on the last page. Those few men who were gathered at Westminister round Pateshull and Raleigh and Bracton were penning writs that would run in the name of kingless commonwealths on the other shore of the Atlantic Ocean; they were making right and wrong for us and for our children. I like that. Fairly incorporeal and so real, based on this shared fantasy of power under law. Fun read.
Project MUSE - The History of English Law before the Time of Edward I
Even if I had to stop and look up a lot of terms, which almost invariable led me to distraction. View 2 comments. Oct 21, Oliver Bateman rated it it was amazing. When you read legal history this great, you realize there's absolutely no chance that your petty contribution to the scholarship will stand the test of time.
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