The History of English Law before the Time of Edward I
In Two Volumes
Publication Year: 2012
Published by: Liberty Fund
Title Page, Copyright
Volume 1 Contents
Preface to the Second Edition
In this edition the first chapter, by Prof. Maitland, is new. In Book II, c. ii. § 12, on “Corporations and Churches” (formerly “Fictitious Persons”), and c. iii. § 8, on “The Borough,” have been recast. There are no other important alterations: but we have to thank our learned critics, and especially ...
Preface to the First Edition
The present work has filled much of our time and thoughts for some years. We send it forth, however, well knowing that in many parts of our field we have accomplished, at most, a preliminary exploration. Oftentimes our business has been rather to quarry and hew for some builder of the future than to leave a finished building. But we have endeavoured to make sure, ...
List of Abbreviations
List of Texts Used
Additions and Corrections
In the First of the two Books into which our work is divided we have endeavoured to draw a slight sketch, which becomes somewhat fuller as time goes on, of the general outlines of that part of English legal history which lies on the other side of the accession of Edward I. In the Second Book we have tried to set forth at some ...
BOOK I: SKETCH OF EARLY ENGLISH LEGAL HISTORY
1. The Dark Age in Legal History
Such is the unity of all history that any one who endeavours to tell a piece of it must feel that his first sentence tears a seamless web. The oldest utterance of English law that has come down to us has Greek words in it: words such as bishop, priest and deacon.1 If we would search out the origins of Roman law, we must study Babylon ...
2. Anglo-Saxon Law
This book is concerned with Anglo-Saxon legal antiquities, but only so far as they are connected with, and tend to throw light upon, the subsequent history of the laws of England, and the scope of the present chapter is limited by that purpose. Much of our information about the Anglo-Saxon laws and customs, especially as ...
3. Norman Law
Of the law of Normandy as it was on the eve of William’s expedition, little is known for certain. To illustrate the period which had elapsed since the settlement of the Northmen in Neustria, there are no written laws, no books on law and very few charters, while the chroniclers have not much to tell about the legal structure of the duchy, and what they tell is not always trustworthy. ...
4. England under the Norman Kings
The Norman Conquest is a catastrophe which determines the whole future history of English law. We can make but the vaguest guesses as to the kind of law that would have prevailed in the England of the thirteenth century or of the nineteenth had Harold repelled the invader. We may for example ask, but we shall hardly answer, the question, whether the history of law in England would not have ...
5. Roman and Canon Law
In any case the restoration of order after the anarchy of Stephen’s reign and the accession to the throne of a prince who would treat England as the buttress of a continental empire must have induced a critical period in the history of English law. But we must add that in any case the middle of the twelfth century would have been critical. ...
6. The Age of Glanvill
The reign of Henry II. is of supreme importance in the history of our law, and its importance is due to the action of the central power, to reforms ordained by the king.1 Still it was rather as an organizer and governor than as a legislator that Henry was active. He issued no code; we may even doubt whether he published any one new ...
7. The Age of Bracton
The reign of Henry III. (1216–72) is in the history of our law an age of rapid, but steady and permanent growth. At the end of that period most of the main outlines of our medieval law have been drawn for good and all; the subsequent centuries will be able to do little more than to fill in the details of a scheme which is set before them as unalterable. ...
BOOK II: THE DOCTRINES OF ENGLISH LAW IN THE EARLY MIDDLE AGES
How best to arrange a body of medieval law for the use of modern readers is a difficult question. Of the two obvious methods each has its disadvantages. On the one hand, if we were to adopt the arrangement which would be the best for a code or digest of our modern law, though we might possibly succeed in forcing the old ...
2. The Sorts and Conditions of Men
Of the divers sorts and conditions of men our law of the thirteenth century has much to say; there are many classes of persons which must be regarded as legally constituted classes. Among laymen the time has indeed already come when men of one sort, free and lawful men (liberi et legales homines) can be treated as men of the common, the ordinary, we may perhaps say the normal sort, while ...
3. Jurisdiction and the Communities of the Land
In an exposition of any system of law, ancient or modern, a large space must be given to the composition and competence of courts. In a statement of modern law, however, we should hardly place this topic in the forefront. Courts exist for the purpose of defining and enforcing the rules of substantive law. But when we are dealing ...
Volume II Title Page, Copyright
Volume II Contents
Additions and Corrections
4. Ownership and Possession
We have already spoken at great length of proprietary rights in land. But as yet we have been examining them only from one point of view. It may be called—though this distinction is one that we make, rather than one that we fi nd made for us—the stand-point of public law. We have been looking at the system of land tenure ...
The law of contract holds anything but a conspicuous place among the institutions of English law before the Norman Conquest. In fact it is rudimentary. Many centuries must pass away before it wins that dominance which we at the present day concede to it. Even in the schemes of Hale and Blackstone it appears as a mere supplement to the law of property. The Anglo-Saxon dooms tell us but ...
If before we speak of our law of inheritance as it was in the twelfth and thirteenth centuries, we devote some small space to the antiquities of family law, it will be fi lled rather by warnings than by theories. Our English documents contain little that can be brought to bear immediately or decisively on those interesting controversies ...
7. Family Law
The nature of the ancient Germanic marriage has in our own day been the theme of lively debates.1 The want of any first-rate evidence as to what went on in the days of heathenry leaves a large field open for the construction of ingenious theories. We cannot find any fixed starting point for our speculations, so completely ...
8. Crime and Tort
On no other part of our law did the twelfth century stamp a more permanent impress of its heavy hand than on that which was to be the criminal law of after days. The changes that it made will at first sight seem to us immeasurable. At the end of the period we already see the broad outlines which will be visible throughout the coming ...
After all that has hitherto been said, and now that we are nearing the end of our long course, we have yet to speak of the most distinctively English trait of our medieval law, its “formulary system” of actions. We call it distinctively English; but it is also in a certain sense very Roman. While the other nations of western Europe were ...
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Page Count: 1579
Publication Year: 2012
Edition: New Edition
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