A Natural History of the Common Law

S. F. C. Milsom

• Publisher: Columbia University Press
• Year: 2003
• ISBN:
  9780231503495
• Topic: Storia
• Subtopic: Storia mondiale

How does law come to be stated as substantive rules, and then how does it change? In this collection of discussions from the James S. Carpentier Lectures in legal history and criticism, one of Britain's most acclaimed legal historians S. F. C. Milsom focuses on the development of English common law—the intellectually coherent system of substantive rules that courts bring to bear on the particular facts of individual cases—from which American law was to grow. Milsom discusses the differences between the development of land law and that of other kinds of law and, in the latter case, how procedural changes allowed substantive rules first to be stated and then to be circumvented. He examines the invisibility of early legal change and how adjustment to conditions was hidden behind such things as the changing meaning of words.

Milsom points out that legal history may be more prone than other kinds of history to serious anachronism. Nobody ever states his assumptions, and a legal writer, addressing his contemporaries, never provided a glossary to warn future historians against attributing their own meanings to his words and therefore their own assumptions to his world. Formal continuity has enabled nineteenth-century assumptions to be carried back, in some respects as far back as the twelfth century. This book brings together Milsom's efforts to understand the uncomfortable changes that lie beneath that comforting formal surface. Those changes were too large to have been intended by anyone at the time and too slow to be perceived by historians working within the short periods now imposed by historical convention. The law was made not by great men making great decisions but by man-sized men unconcerned with the future and thinking only about their own immediate everyday difficulties. King Henry II, for example, did not intend the changes attributed to him in either land law or criminal law; the draftsman of De Donis did not mean to create the entail; nobody ever dreamed up a fiction with intent to change the law.

NOTES

INTRODUCTION

1. Below, essay 1 at n. 31.

2. F. W. Maitland, introduction to YB I and 2 Edward II (17 Selden Society) xvii.

3. F. Pollock and F. W. Maitland, History of English Law, 2 vols. (Cambridge, 1898 [1895]). The terminal date excluded discussion of year books, and it is noteworthy that the one examination of a year book case (II:180) did prompt related observations, below, essay 1 at n. 8.

4. End of essay 1.

5. See Select Canterbury Cases (95 Selden Society), introduction, 45–52, and “Early Cases (c. 1200),” 1–48.

6. A separate consequence, irrelevant in the present context but still potentially interesting to legal historians, was the representation of some arrangements as licences rather than leases.

7. F. W. Maitland, “Why the History of English Law Is Not Written” (inaugural lecture), Collected Papers (Cambridge, 1911), I:480 at 493–94.

8. T. F. T. Plucknett, Early English Legal Literature (Cambridge, 1958), 13.

9. Published as T. F. T. Plucknett, Statutes and Their Interpretation in the… Fourteenth Century (Cambridge, 1922).

10. He explained the late appearance of discussions of fault on the basis that all early trespass actions were for deliberate wrongs, without asking himself what would happen when an accident victim sued; below, essay 4 at nn. 9, 10. And in connection with the Humber Ferry Case he acknowledged a textual correction from “or” to “and not” without altering his translation or realizing that it turned formalistic bickering into a serious legal argument (below, essay 2 at n. 35 for the case, and essay 4, n. 24 for the correction). And there is legal insensitivity in his understanding (Legislation of Edward I [Oxford, 1949], 94–95, 104) that the statute Quia emptores was only declaratory of a result which had been reached three-quarters of a century earlier; see S. F. C. Milsom, The Legal Framework of English Feudalism (Cambridge, 1976), 104, n. 1.

11. For an illustration of this point, see the last of these essays at nn. 57–63. And it is worth observing that S. E. Thorne, the most perceptive historian of the common law since Maitland, made important contributions to our understanding of the law in every century from the twelfth to the seventeenth.

12. Below, essay 4 at nn. 39–43.

13. P. Brand, “Milsom and After,” in The Making of the Common Law (London and Rio Grande, 1992), 203, esp. at 222–23. Cf. D. W. Sutherland, The Assize of Novel Disseisin (Oxford, 1973), esp. at 30–31. Professor Sutherland did, however, agree that the writ was “consciously directed” and “constantly used” against lords; but, similarly equating “disseise” with “dispossess,” he did not accept that protection against lords was its original purpose. Cf. below, essay 4 at n. 41, especially on the mention in the writ of the defendant’s bailiff.

14. This was Miss Elsie Shanks, who had been working on Novae Narrationes for many years. For the Selden Society year book editions were undertaken by other linguists, Miss Dominica Legge and Professor J. P. Collas. The linguistic study had been pioneered by Maitland himself in his first year book volume (17 Selden Society).

15. “Commentary on the Actions” in Novae Narrationes (80 Selden Society, 1963).

16. The earliest direct attempt was “Law and Fact in Legal Development,” 17 University of Toronto Law Journal (1967) 1; Studies in the History of the Common Law (London and Ronceverte, 1985) 171.

17. Especially in his first two publications, “Not Doing Is No Trespass,” [1954] Cambridge Law Journal 105 (Studies 91) and “Trespass from Henry III to Edward III,” 74 Law Quarterly Review (1958) 195, 407, 561 (Studies 1), and then in his London inaugural lecture, “Reason in the Development of the Common Law,” 81 Law Quarterly Review (1965) 496 (Studies 149). A habit of suspicion toward words may have been formed when doing a fellowship dissertation about the writ of false judgment. Glanvill VIII 9 says that if this is found against a lord’s court the lord perpetuo curiam amittet. This had been taken to mean loss forever of the right to hold a court (Pollock and Maitland, History of English Law II:667). But, as in “claims of court,” curia here means just jurisdiction over the case concerned.

18. As a university law student, on the assumption that he would spend his life with the subject at the bar, he was advised to choose another option. He therefore had to take the bar examination in real property, for which he had the good fortune to be taught together with a future lord chief justice by a future vice-chancellor. But he had a hard time when he came to giving tutorial classes himself, and undertook the radical cure of volunteering to lecture on the subject.

19. It is testimony to the binding force of Maitland’s analysis that one crucial point of difference did not dawn on the writer until a quarter of a century later. It is discussed in the fourth of these essays at nn. 82–84.

20. Below, essay 4, n. 40.

21. Published as S. E. Thorne, “English Feudalism and Estates in Land,” [1959] Cambridge Law Journal 193; reprinted in Essays in English Legal History (London and Ronceverte, 1985), 13. One can wonder whether the word feudalism itself predisposed historians to dismiss the lecture. Maitland treated feudalism with unaccustomed contempt, S. F. C. Milsom, “Pollock and Maitland: A Lawyer’s Retrospect,” in The History of English Law: Centenary Essays on “Pollock and Maitland,” ed. John Hudson, 89 Proceedings of the British Academy (1996), at 246. See also n. 31 below.

22. Below, essay 4, text preceding n. 80.

23. Thorne never seemed so exhilarated as he was at a party after the lecture, and a recollected snatch of conversation may strike a chord with those who remember his habit of talk: “I think that’s got mort d’ancestor right—good old Mort.”

24. “How on earth could he have been so excited about that? There’s nothing good in it.”

25. Pollock and Maitland, History of English Law (reissue at 1968) I:lxxxv.

26. S. F. C. Milsom, Historical Foundations of the Common Law, 1st ed. (London, 1969). Cf. 2d ed. (London, 1981).

27. S. F. C. Milsom, The Legal Framework of English Feudalism (Cambridge, 1976).

28. Ibid., chapter 1.

29. See Milsom, The Legal Framework, esp. ch...