Jenks, Susanne, Jonathon Rose, and Christopher Whittick, eds, Laws, Lawyers and Texts: Studies in Medieval Legal History in Honour of Paul Brand.
This volume is both a worthy tribute to the person it honours, Professor Paul Brand, formerly of All Souls, Oxford, and recently visiting Professor in the University of Michigan Law School, and a significant contribution in its own right to the areas of research made possible by Brand's scholarship. As the Encomium by Barbara Harvey indicates, Brand's area of interest was the 'long' thirteenth century from the limit of legal memory in 1189 to the death of Edward I in 1307. In particular, Brand is perhaps best known for his 'authoritative account of the development of the legal profession' (p. xii) in England and the origins of the common law in the era of Henry II. His scholarship is characterised by its use of unpublished and manuscript material, evidenced in his role as editor of four volumes of the Law Reports for the Selden Society.
A series of chapters add nuance and complexity to Brand's account of the early legal profession. Sandra Raban's study reveals more information about the individuals and institutions that retained lawyers during the reign of Edward I (1272-1307), shifting the traditional focus (adopted by Brand) away 'from the vantage point of the lawyers themselves' (p. 201). Charles Donahue, Jr applies Brand's definition of what constitutes a 'profession' to the fourteenth century and concludes that the plural term 'professions' is more apposite to describe each of the variegated groups that constituted the common lawyers and canon lawyers who plied their business in that time. David Crook's chapter focuses on a senior justice of the bench from the mid-thirteenth-century, Robert of Lexington: his lack of legal training and longevity at the bench suggest a counterpoint to Brand's depiction of a professionally trained profession.
Several papers add detail to the 'Angevin legal revolution' that gave rise to the common law in the twelfth and thirteenth centuries (p. 51), a phenomenon for which Brand has proffered compelling evidence starting with his 1990 article 'Multis Vigiliis Excogitatem et Inventam' in the Haskins Society Journal. John Hudson's study suggests that the infamous clause 3 of the Constitutions of Clarendon (1164), dealing with criminous clerks, not only formed a platform for dispute between the King and his famous archbishop, Thomas Becket, but was also a central part of Henry II's legal reforms that sought to channel legal business into the King's court, via the chief justiciar. This subtlety is missing from Brand's account. In a different vein, Sarah Tullis takes the Glanvill treatise, 'the first detailed exposition of the English common law' (p. 327), and traces its afterlife in early modern England and colonial America as a vehicle for political polemics. In typically iconoclastic yet rigorous manner, Paul Hyams tackles the reasons for the 'technical discourse' (p. 21) that characterised the common law in its origins (and remains today), tracing linguistic depictions of land tenure (the 'fief') from its origins in 1066 as personal bonds to 1230 when it came to represent what we now understand as 'ownership'.
Running through several chapters in this collection is a theme that the 'learned law' (Roman and canon law) played a part in the development of the early common law--a contribution hinted at in Brand's work. Bruce O'Brien points to the continuing use of 'conquest-era' legal texts in the second half of the twelfth century and beyond, as exemplified in the Holkham lawbook, a legal encyclopaedia containing material from both Roman law and Saxon codes. David Ibbetson and Richard Helmholz also emphasise the possible influence of Roman and canon law on particular English common law writs, in their studies of the historical development of annuities and rights of re-entry, respectively. Although their conclusions are similar, their sources differ: Helmholz argues for the influence of the Roman and canon law sources, while Ibbetson suggests that the commentaries on these sources were as important.
There is much here for readers interested in the history of specific actions in the English common law: Henry Summerson explores the action of arson between 1200 and 1350 in England, in particular explaining its relative rare use; John Baker attempts to explain the requirement that arose after 1290 that certain contracts (or covenants) be in the form of a deed, that is in written form; Suzanne Jenks traces the history of the 'surety of the peace' between its establishment by the end of the thirteenth century and the fifteenth; Janet Loengard provides a study of the means available to litigate for the obstruction of light from one's windows after the thirteenth century; and Jonathon Rose provides a case study of medieval estate planning, or will-making, through the example of Sir John Falstaff (1380-1459).
Other chapters stand as independent contributions to the editorial forays that Brand has made into medieval legal history. David Carpenter's account of Henry III and the Jews in 1255 is a remarkable counterpoint to Brand's editorial scholarship on the Plea Rolls of the Exchequer of the Jews in England. Robert Palmer, in addition, describes his development of the digital archive, the Anglo-American Legal Tradition (AALT) web site (http://aalt.law.uh.edu), which contains an un-indexed and massive repository of single copy documents previously only available in the National Archives at Kew (of which Brand was Assistant Keeper from 1974).
This book deserves a wider readership than the specialist nature of its subject matter will no doubt allow. This is to compliment the editors and contributors for appositely paying tribute to their dedicatee; on the other hand, such rich scholarship deserves to read by all.
School of Law
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|Article Type:||Book review|
|Date:||Jul 1, 2013|
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