Confusion and Incompleteness
Bill Long 12/17/04
Searching for a Method
The great English legal historian C. Patrick Wormald died at the end of September 2004 at age 57. His most stunning achievement was his 1999 book The Making of English Law, in which he tried to push back the roots of many important English legal concepts from the 12th and 13th centuries, where Maitland had placed them, to the late Anglo-Saxon period. His quotation of historian Charles Plummer at the beginning of his work seems to add to the difficulty:
"I must confess that the study of the Anglo-Saxon laws often reduces me to a state of mental chaos. I may know, as a rule, the meaning of individual words; I can construe, though not invariably the separate sentences. But what it all comes to is often a total mystery (p. 3)."
[*A former student of Prof. Wormald, Gareth Mann, kindly wrote to me correcting an error I made in an earlier version of this page. Mr. Mann's comment was that though Plummer may have said this, "As far as I recall, he (Wormald) never admitted being mystified by anything.]
The problem of historical work on the early common law is compounded not only by the scanty sources and incomplete records, but by the interpretive superstructures that generations of legal historians have built on these records. In addition, when records are incomplete, one is tempted to inject vocabulary of sweeping import into what survives, both as a way to bring some order to the field as well as to give a framework for the non-expert who really needs to have some easily-accessible "handles" to capture or describe a period.
Thus, when I come upon the field of the common law legal tradition, and try to interpret it for you, I do so with hundreds of little pieces of information swimming in my head, pieces that all add up to a "total mystery," to quote Wormald. On the one hand, I was tempted to just write a series of essays on this site that would skim the surface of dozens of phenomena. It would have been relatively easy to do so, and I would have ample materials to aid me. Thus, if I wanted to do some writing on the early common law, I could have articles on Domesday Book, and the Charters of Henry I and Magna Carta and The Statutes of Westminster and The Statute of Mortmain. I could have written articles on the nature of early English land law, quoting Holdsworth and others about land law's crucial importance to early England.
I could write articles on the origins of fee simple, of the fee tail, of various aspects of the common law court systems, of the incidents of feudalism, of feudalism itself, of the "English Justinian"--Edward I, of laws merchant and subinfeudation and the origin of uses, and chancery taking over uses and the statute of uses and wills and Henry VIII and disestablishment of the monasteries and hues and cries and ordeals and wagers of appeal and pipe rolls and yearbooks and early forms of action and the assize of novel disseisin. I could have quoted Maitland endlesslessly when he is so eloquent--when he describes the ceremony of livery of seizen, for example. There were so many safe topics I could write on that would actually be useful for people to understand. They are so useful and so "standard," but I just didn't think I could devote my attention completely to them.
Questions that Interest Me
So, that leaves me in a bit of a methodological crisis. I want to exposit the Statute of Mortamain (1279), for example, but I don't want just to repeat the lines that everyone says--that it prohibited certain kinds of conveyances to churches because such conveyances took the property off the royal tax rolls and curtailed feudal incidents owed to the feudal lords. I don't even want to repeat the fact that this statute tried to shore up a weak provision of the Magna Carta on the same subject or that the statute was of little effect because the king could authorize exceptions "for a fee." What I really want to understand, with respect to the Statute of Mortmain, for example, are some of the following things:
1. What were the various ways that one could convey property to the Church in the 11th-15th centuries? How did this change over time? Who or what was behind the changes? How much land was actually so conveyed?
2. What kind of gifts were made to the Church in the century or so before 1279? What does an individual transaction look like? What kind of "leaseback arrangement" may have been developed? What was the percentage of land ownership of the Church to total land ownership in England at various times? Once the land was conveyed to the Church, did the common law courts have anything to say about the land?
3. What was the social and intellectual reality, the "lived" reality for people in the 13th century, for example? That is, the "mental world" for Americans in the 21st century differs from place to place and circumstance to circumstance, but there are common threads that one can draw between people.
I would like to understand legal history as a means to understand the minds and hearts of people, the decisions they faced and made, and the way that social and intellectual realities defined their frontiers. I am searching for concepts that make sense to me and that illumine this quest for making people alive. I like the general treatment of a subject, to give me my "bearings" but I long for much more. I will read a description of the ceremony of "livery of seizin," but then I wonder how prevalent such a ceremony was, for how long it was practiced, how necessary it was, how well attested it was, etc.
I have tons of books and articles that try to tell me about things from about 1000 -1650 in England. Some of them are even useful. But I think I am searching for the throbbing reality of people's experiences behind all the impersonal terminology. I can raise questions about Bloch's treatment of feudalism or Maitland's descriptions of manorial life, and I will fill out my mental checklist of items that I need to know something about, but I really would like to write essays like my treason essays, which present a problem and show the way that real people responded to the problem.
Conclusion
Do not expect, therefore, from this page a nice overview of common law legal history, with a page on each of the 100 or so topics that should be "covered" in such a history. I will refer, no doubt, to all of those topics, but I will be seeking to reach to the personal, the human story, the clash of ideas that stand behind the profusion of terminology and the apparent impersonality of statutes. I don't reall know if this is possible. But this is what I would like to do here.
Copyright © 2004-2008 William R.Long |