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The History of English Law before the Time of Edward I - Volumes I and II -
specific precedents (exempla) may have been alleged in court 1; in Edward I.'s day the pleaders are already citing and 'distinguishing' previous cases 3; but as a general rule the judges, [p. 163] assisted by clerks, who were on their way to become judges, would regard themselves as having an implicit knowledge of the consuetudo curiae and would not feel bound to argue about past cases. The justices of the bench would often be fully justified in behaving thus; many of them were experienced men who had worked their way upwards through all the ranks of the king's court and chancery. And so even the knights who were employed to take assizes in their shires, though they had read no law, would believe that they knew the law and custom applicable to the cases that came before them. Every man who does his duty knows a great deal of law and the difficulty is to persuade him that he does not know everything2. The custom of the king's court is the custom of England, and becomes the common law. As to local customs, the king's justices will in general phrases express their respect for them4. We see no signs of any consciously conceived desire to root them out5. None the less, if they are not being destroyed, their further growth is checked. Especially in all matters of procedure, the king's court, which is now obtaining a thorough control over all other courts, is apt to treat its own as the only just rules2. A heavy burden of proof is cast upon those 1 Note Book, pi. 1213: the Earl of Chester appeals to cases concerning other palatine earls. Ibid. pi. 1227: in the exceedingly important case raising the qnestion whether a palatinate can be partitioned, the magnates reject foreign precedents; 'nec voluerunt iudicare per exempla usitata in partibua transmarinis.' In 1291 the Earl of Glouces...
1379 pages, Hardcover
First published January 1, 1968
About the author
Frederic William Maitland
188 books8 followersFrederic William Maitland, FBA was an English historian and lawyer who is generally regarded as the modern father of English legal history.
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Displaying 1 - 4 of 4 reviews
June 24, 2020
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? Really? This book was a slog some times, but as my attention would start to wander, it’d jerk me back. And jerk me to the google, as it assumed I knew things I did not know. Words. E.g., Leyrwite (A fine for fornication imposed on bondswomen); Amerced (to punish by imposing an arbitrary penalty); Glebe (you don’t want to know).
And after I’d spend a half hour on two pages, there would be observations like this: “Why has the king here shown himself as a conservative? 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.” (at 400, in the section on land tenure). Wow. Also, yes. I’ve seen that.
It was fascinating to see how different the social/legal world was at the time when a lot of our legal principles got entrenched. 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.
I’ll be reading this again. If I live that long. And, probably, if I stay at the court that long. I do not think this book would be compatible with private practice.
On volume two
I’m told that historians have come to doubt the accuracy of the history in this book; that since it was written, doubt has been cast on the development of common law institutions, particularly the jury. I don’t know enough to judge that as a matter of history. To some extent, I’m not sure it matters; the myth of the jury is important quite apart from its historical accuracy. 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.
Anyway. This book briefly surveys property, contract, trusts and estates, family law, crimes, torts, civil procedure, and appellate law as practiced in England 1154-1272. There are moments when it seems very distant. At one point it says, “In the history of our law there is no idea more cardinal than that of seisin. 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.” (29). And it’s another world. The closest thing we have is sitting at the table at closing and/or recording deeds. (Which, okay, maybe isn’t so far; financial institutions and government agents witnesses the transfer of rights the same way the community watched the dirt pass from hand to hand. At least before MERS. But still. Dirt.)
But then: “It was a different thing to sentence a man who had been allowed no chance of proving his innocence by any of the world-old sacral processes. ‘No one is to be convicted of a capital crime by testimony,’ said the author of the Leges Henrici. These words represent a strong feeling: mere human testimony is not enough to send a man to the gallows.” (650 quoting Leg. Henr. Sec. 5: “Et nemo de capitalibus placitis testimonio convincatur.’”). And I’m breath taken. We’re dealing with the painful fallibility of eyewitnesses testimony every day. Or “[T]he king’s council began to take notice of sorcery, and accusations thereof were used for political purposes. 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.” (555) Where there is no torture there can be little witchcraft. The fallibility of confessions. The fallibility of confessions under torture. We’re fighting about that right now.
“The realm of medieval law is rich with incorporeal things.” (124). Yes. As is our law, and world.
We get a shout out on the last page. Spoiler. “Nor can we part with this age without thinking once more of the permanence of its work. 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.” (674) Writs running in the name of kingless commonwealths. I like that. Fairly incorporeal and so real, based on this shared fantasy of power under law.
Fun read. Even if I had to stop and look up a lot of terms, which almost invariable led me to distraction.
My jurisprudence professor tracked me down at a reception and told me to read this book. I was dubious. English Law before Edward I? Really? This book was a slog some times, but as my attention would start to wander, it’d jerk me back. And jerk me to the google, as it assumed I knew things I did not know. Words. E.g., Leyrwite (A fine for fornication imposed on bondswomen); Amerced (to punish by imposing an arbitrary penalty); Glebe (you don’t want to know).
And after I’d spend a half hour on two pages, there would be observations like this: “Why has the king here shown himself as a conservative? 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.” (at 400, in the section on land tenure). Wow. Also, yes. I’ve seen that.
It was fascinating to see how different the social/legal world was at the time when a lot of our legal principles got entrenched. 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.
I’ll be reading this again. If I live that long. And, probably, if I stay at the court that long. I do not think this book would be compatible with private practice.
On volume two
I’m told that historians have come to doubt the accuracy of the history in this book; that since it was written, doubt has been cast on the development of common law institutions, particularly the jury. I don’t know enough to judge that as a matter of history. To some extent, I’m not sure it matters; the myth of the jury is important quite apart from its historical accuracy. 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.
Anyway. This book briefly surveys property, contract, trusts and estates, family law, crimes, torts, civil procedure, and appellate law as practiced in England 1154-1272. There are moments when it seems very distant. At one point it says, “In the history of our law there is no idea more cardinal than that of seisin. 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.” (29). And it’s another world. The closest thing we have is sitting at the table at closing and/or recording deeds. (Which, okay, maybe isn’t so far; financial institutions and government agents witnesses the transfer of rights the same way the community watched the dirt pass from hand to hand. At least before MERS. But still. Dirt.)
But then: “It was a different thing to sentence a man who had been allowed no chance of proving his innocence by any of the world-old sacral processes. ‘No one is to be convicted of a capital crime by testimony,’ said the author of the Leges Henrici. These words represent a strong feeling: mere human testimony is not enough to send a man to the gallows.” (650 quoting Leg. Henr. Sec. 5: “Et nemo de capitalibus placitis testimonio convincatur.’”). And I’m breath taken. We’re dealing with the painful fallibility of eyewitnesses testimony every day. Or “[T]he king’s council began to take notice of sorcery, and accusations thereof were used for political purposes. 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.” (555) Where there is no torture there can be little witchcraft. The fallibility of confessions. The fallibility of confessions under torture. We’re fighting about that right now.
“The realm of medieval law is rich with incorporeal things.” (124). Yes. As is our law, and world.
We get a shout out on the last page. Spoiler. “Nor can we part with this age without thinking once more of the permanence of its work. 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.” (674) Writs running in the name of kingless commonwealths. I like that. Fairly incorporeal and so real, based on this shared fantasy of power under law.
Fun read. Even if I had to stop and look up a lot of terms, which almost invariable led me to distraction.
October 9, 2018
You wouldn't expect 1400 pages about English medieval law to be interesting, but it is. Fascinating, even. Looking at the law is a good way to understand what medieval society, and the medieval mindset, were like: it shows you how they understood disputes, social roles, evidence, and more.
This book is nominally "Pollock and Maitland"; in fact Maitland wrote all but the first chapter, and the ideas and prose are basically his. I'll refer to him as the author throughout.
The book is nominally about the law from Saxon times until 1290, but the real focus is the period from 1160 to 1275 -- roughly, the period from Henry II to Edward I. This is an interesting and important period: at the time of Henry, England had an incredible jumble of legal ideas -- traditional germanic law, the positive law of the Saxon kings, canon law, some recovered Roman law, and Frankish law. 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."
Likewise, the medieval lawyers had no real notion of contract. 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. 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."
The complete work is available online in a friendly format: http://oll.libertyfund.org/titles/pol...
(First read in early winter of 2008, when I rated it a four. Reread in 2017 and uprated. Reread again 2018 and possibly a fourth time I haven't logged. I re-read this a lot.)
This book is nominally "Pollock and Maitland"; in fact Maitland wrote all but the first chapter, and the ideas and prose are basically his. I'll refer to him as the author throughout.
The book is nominally about the law from Saxon times until 1290, but the real focus is the period from 1160 to 1275 -- roughly, the period from Henry II to Edward I. This is an interesting and important period: at the time of Henry, England had an incredible jumble of legal ideas -- traditional germanic law, the positive law of the Saxon kings, canon law, some recovered Roman law, and Frankish law. 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."
Likewise, the medieval lawyers had no real notion of contract. 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. 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."
The complete work is available online in a friendly format: http://oll.libertyfund.org/titles/pol...
(First read in early winter of 2008, when I rated it a four. Reread in 2017 and uprated. Reread again 2018 and possibly a fourth time I haven't logged. I re-read this a lot.)
November 25, 2009
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 . Alas, alas, alas...
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August 23, 2007i uh downloaded this book from google library. unfortunately, it's on my work computer so I never, ever, ever read from it. I contemplated it as a long term read, but at this rate "long term" may mean 2009.
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