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Answer-to-Question-_1_
A
i) nature of the evidence:
The statute De donis conditionalibus, "of conditional gifts" was
promulgated by Edward I in 1285. A distinction between legislation
promulgated by king and council (ordinances) and that which was made in
a parliament (statute) had not yet emerged in the late 13th century. The
1279 Statute of Mortmain was made outside of parliament, as were some
statutes in the reigns of Edwards II and III (Baker). The statute
itself, then, does not reveal whether it was made in parliament, but it
may be significant that the cause of action it creates (more on this
later) is "suppl[ied]" by "the lord king" without mention of the consent
of the realm, or a similar phrase that would later become commonplace.
This may indicate that Edward and his council acted outside of
parliament.
ii) immediate political context:
Edward I was a relatively strong king whose barons did not seriously
challenge his rule. He fought many successful wars, including the
conquest of Wales, which may have begun a nascient nationalism by
defining the kingdon of England as "other" than the Welsh and Scots.
Edward also launched ambitious investigations into local exercises of
judicial power and claims to liberties and privileges via "quo warranto"
writs that caused these liberties to revert to the king if claimants
could not demonstrate "by what warrant" they exercised them. Finally,
his reign produced a spurt of legislative activity regarding property
including De donis and, in 1290, Quia Emptores (replacing subinfeduation
with subsitution).
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iii) legal issues addressed:
De donis concerns gifts of land by a donor (often "maritagium" gifts
from the father of a bride to his daughter and son-in-law). For example,
the donor might give land "to A (donor's daughter) and B (A's husband)
and the heirs of their bodies" with the intention of setting up the
first child of that marriage with an inheritance of land. As Littleton's
much-later Tenures informed us, the "heirs of their bodies" language
creates an interest in fee tail, meaning A and B have a life estate in
the land, but may not alienate it.
A practice arose of A and B deliberately misinterpreting these gifts as
granting A and B an interest in fee simple (the highest interest in
land) conditioned upon birth of a live child, whether or not the child
lived to inherit. On this reading, so long as the marriage produced a
child that was heard "to wail and cry within the four walls" of the
birthing chamber (to prove a live birth since men weren't allowed in), A
and B could thenceforward alienate the gifted land. This, of course,
defeated the donor's intent by either disinheriting the donor's
grandchild or, if the child died, preventing the land from reverting
back to the donor as the donor would have wanted.
The statute establishes that the donor's will should control (that
conditional gifts create in A and B an interest in fee tail, not fee
simple conditioned upon birth of a live child). To effectuate this
purpose, gifts of land revert back to the donor if A and B die without
living issue to inherit it, and A and B may not alienate the gift.
The statute also addresses "curtesy" by which a widower has a life
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estate in the lands of his wife. De donis refuses "curtesy" to second
husbands (say B dies and is replaced by C), and denies to any child of
the second marriage any interest in a maritagium gift. Instead, if B
dies and no child of A and B's marriage remains alive, the land
immediately reverts back to the donor. This is consistent with the
donor's intent because the donor could not have foreseen or wanted to
give an interest in the land to a second husband who was not in the
picture at the time the gift was made.
Though it is not apparent on the face of the statute, the remedy created
in the second paragraph would be enforceable by the writ of formedon in
the descender. This new private form or cause of action represents a
narrow innovation in property law.
iv) the statute in context:
De donis is a striking example of the private law legislation that took
place in Edward I's late-13th century England. This legislation, paired
with his quo warranto campaign, marked a general consolidation of law,
and a new self-aware use of law to intentionally accomplish desired
ends. Contemporaneous with this spat of legislation was a growing trend
on the continent of writing down law (Phillippe de Beaumanoir was
writing his treatise at this time, and Thomas Aquinas wrote on the
natural law a few decades earlier). But unlike the continental treatise
writers, Edward I's written legislation was not an attempt to codify
English law in a civil law-like manner. Instead it is best viewed as a
series of narrow-but-innovative ad hoc "fixes" responding to particular
problems. De donis addressed the discrete issue of sons-in-law
alienating gifts of land from their fathers-in-law contrary to the
gift's intention. Quia Emptores similarly addressed the specific problem
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of chief lords losing track of who owed them valuable incidents of
tenure because of subinfeudation (the practice of a vassal sub-letting
land to another tenant by taking homage from him thereby creating a new
link in the feudal chain). It also directly addressed the narrow issue
of mortmain, whereby landholders would convey land to the church and
then hold from the church directly to avoid incidents (the church never
dies or has children so no incidents would ever come due to the lord
from whom the church now held).
These reactive responses to discrete problems were not a conscious
attempt to programatically reform property law or end feudalism, but
they did combine to begin the gradual process of transition away from a
feudal system. The concept of a "feudal system" did not exist in the
13th century, property law at the time was not in fact "systematic" in a
modern sense, and it was not until the late 15th century that Thomas
Littleton innovatively consciously viewed English property law as a
"system" that could then be consciously reformed. It would therefore be
hugely anachronistic to argue that Edward I intended (or even dreamed it
was possible) to change the extant "system" of property law by
legislation. But these innovations did, in the aggregate, contribute to
the rise of important new ideas that made the long transition away from
feudalism possible. Whereas feudalism viewed land in terms of reciprocal
relationships between lord and vassal, De donis' creation of a cause of
action introduced the idea of personal property "rights" enforceable in
the royal courts. (This idea can admittedly be traced farther back to
Henry II's possessory assizes, but those allowed only for a judicial
determination of who was entitled to seisin, part of a feudal
relationship. De donis addresses transfers of interests outside of
feudal relationships). In combination with Quia Emptores' remedy of
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substitution- allowing a tenant to alienate property without permission
from the lord by stepping out of the feudal chain and replacing himself
with the new tenant- the idea that property transfers could take place
without homage and fealty took shape. In short, these innovations
unintentionally set the law on a path that ended with the modern concept
of personal property rights.
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Answer-to-Question-_2__
D.
i) nature of the evidence
Year Book reports were descriptions of royal court proceedings compiled
into books from the circulating notes of the students and practitioners
of the Inns of Court. They were collective efforts not standardized
until the Tudor era introduced printing and professional reporting by a
relative handful of individuals. The reports, though heavily abridged,
were often more detailed than the official plea rolls, giving "more
detailed narrative accounts" of cases in Law French compared to the
official reports in Latin, which tended to omit evidence, arguments, and
reasoning (Baker). Year Books began to appear regularly in the late 13th
century, and probably reflect a case method of teaching in the law
school then attached to Common Bench (later to give way to the Inns of
Court). Practioners likely used Year Book reports for guidance also.
ii) issues in the case:
In this 1409 anonymous case before Common Bench, the plaintiff sued a
carpenter alleging that he enterred an agreement to build the plaintiff
a house by a certain time, but never began construction. The plaintiff
pled the case as a tort (on a writ of "trespass on the case," or simply
"case").
The defendant's attorney (who must have been a serjeant because only
those admitted to the Order of the Coif could advocate before Common
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Bench) argues that the dispute presents an action in "covenant," not in
"case." Further, because "covenant" requires "specialty"- a sealed
written instrument to prove the existence of an agreement- the case must
be dismissed because the plaintiff has no sealed deed.
The Plaintiff's attorney responds that an action in "case" does not
require specialty. And that such an action is appropriate here because
it would lie if the carpenter had made the house badly (implying that
this is little different from failing to make the house at all).
Chief Justice Thirning agrees with the defense, explaining that actions
in "case" lie when something is negligently done, but not when "a man
makes a covenant and shows nothing done beyond the covenant." This
reflects the then-dominant view that "nonfeasance is no tort." Suits for
nonperformance of contracts had to be brought in "covenant." The
rationale was likely that covenant's "specialty" requirement prevented
plaintiffs from recovering damages from defendants for alleged breaches
of agreements that the defendant in fact never enterred into.
Justice Hill ultimately agrees, but first mentions an alternative to
covenant. The plaintiff might have tried to bring the action on the 1351
Statute of Laborers, which was interpreted to have created a cause of
action against laborers, including carpenters, who refused to work
according to the terms on which they were employed prior to the Black
Death in 1348-49. Hill remarks that "this action is too feeble" perhaps
because that cause of action was intended to address a situation now
more than 50 years in the past. Because the plaintiff brought the wrong
writ, he receives no recovery and is "in mercy"- fined for
inappropriately bringing suit.
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The litigation's focus on the writ rather than the merits of the case
illustrates how the Common Law generally, and pleading in particular,
developed around the writs (procedure) instead of around substantive
categories (in contrast to the civil law tradition).
iii) the case in context:
In the 14th and 15th centuries, the law of contract began to be
gradually subsumed into the law of tort. That process was completed in
1602 when Slade's Case blessed the absorption of the action of "debt on
the contract" into "assumpsit" (a subset of "case"). This 1409 case
represents a midway point in the that transition.
The anonymous plaintiff pleads a contract claim as a tort because a
"trespass on the case" claim offered plaintiffs serious advantages over
the "old personal actions" available for contract claims. First, as the
case illustrates, "case" claims did not require a sealed instrument,
whereas actions in covenant did. Other personal actions like debt (for a
sum certain) and detinue (for specific chattels) required a quid pro
quo- some partial performance or consideration to prove that an
agreement existed. "Case" also allowed for damages awards whereas the
old personal actions only permitted specific performance or the expected
value of performance. Last, trespass actions required trial by jury
whereas defendants in the personal actions could "wage their law"avoiding liability if they could find 12 compurgators to attest to their
general trustworthiness. These advantages induced plaintiffs to plead
contract claims as torts beginning with claims of negligent performance
in the 14th century.
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At first, plaintiffs used the general writ of trespass because "Case"
did not yet exist. They disingenuously alleged that the defendant
breached "with force and arms" and "against the peace" to meet these
formal requirements of a trespass action (the 1360s saw a suspicious
wave of horse murders by people named Smith). In the mid 14th century,
lawyers started dropping these formalities and substituted the "cum
clause" in which plaintiffs told the facts of their case in a
sympathetic light. This new form of writ was gradually accepted, and
became the action of "trespass on the case." This unplanned innovation,
unconsciously driven by individual lawyers focused solely on the case in
front of them, was an important development because it led to tort
liability for negligence whereas the general writ of trespass had
originally applied only to intentional actions.
Though initially controversial, the justices in our 1409 case
uncritically accept the legitimacy of "case" illustrating that the writ
was well established by then. The 1382 case Berden v. Burton confirms
this because there a royal justice explicitly states that "trespass on
the case" is the appropriate action for negligent or accidental harm.
Artful pleading had introduced the concept of negligence, but not yet
overcome the deeply rooted idea that "nonfeasance is no tort."
Nonperformance of a contract could not yet be brought as an action on
the case.
Chief Justice Thirning's concession that "case" would have been
appropriate had the carpenter built the house badly alludes to the
action of "assumpsit" (to undertake)- a subset of "case" that allowed
plaintiffs to recover when someone undertook an obligation to do
something and did it badly. Plaintiffs would continue to try to use
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assumpsit for nonfeasance just as the plaintiff in this case did, but
they would not succeed until the 16th century. It is not until 1532 that
we read of a case rejecting the "nonfeasance doctrine." Justice Spelman
in Pykyryng v. Thurgoode rejects the position that covenant lies for
nonfeasance and case for malfeasance. Using the exampls of a carpenter
(conveniently aligning with the facts of our Year Book report), Justice
Spelman argued that if a carpenter agrees to build a house, "and does
not make it before the appointed day...I shall have an action on my case
for this nonfeasance just as well as if he had made it badly." Pykyryng
could enjoy all the advantages of a tort action for a claim of
nonperformance of a contract. In 1409, these advantages were available
only for those contract claims that alleged negligent performance, and
in the 14th century were not available for contract claims at all (see
Waltham Hay Carrier's Case, 1348). That a "nonfeasance doctrine" held on
for more than 100 years is evidence that some ideas are too firmly
rooted to be overcome piecemeal by individual attorneys advocating the
best outcome for their clients in individual cases.
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Answer-to-Question-_3__
Milsom's general point is that legal change is by and large the result
of an incremental process by which individuals, whether lawyers or
jurors, advocate/vote for what they believe is the most desirable
outcome in the case immediately before them. They act, according to
Milsom, without conscious regard for the effect that their decisions
might have on "the law." It follows that legal change is mostly
unintentional. Milsom is correct on these points, especially in the
development of the "private law" of contract and tort (discussed in
question 2), and the "public" criminal law context. Milsom correctly
concedes that his argument applies with less force to other areas of law
such as equity, "conveyancing"-which I take to mean property, and change
produced by legislation. But, as the law of property/testamentary law
and what might be called "constitutional law" illustrate, Milsom
concedes too much when he posits that legal change produced by
legislation can be understood as the product of "a controlling mind
identifying deficiencies in the law and devising remedies." This
formulation ignores the role that widely shared social ideas played in
shaping the lasting changes that legislation produced. English legal
history shows that legislation produces the changes lawmakers have in
mind only when those changes are consistent with social ideas and
attitudes. When lawmakers legislate contrary to social forces, their
legislation produces either little change at all, or an unplanned change
representing a compromise with countervailing social forces.
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Property law/testamentary law:
My answer to question 1 discusses Edward I's property legislation and
how it can be understood as a series of band-aid fixes for particular
problems. Because this legislation, which produced or at least hastened
lasting social change, was consistent with prevailing social attitudes,
it fits within the description of legal change that I offer here. This
section will instead focus on Henry VIII's use of legislation to briefly
revive "fiscal feudalism," which, much more than Edward's legislation,
appears to be a "controlling mind's" programmatic attempt to devise
remedies for "deficiencies in the law" that it identifies. Henry
identified as a deficiency the "use"- a trust-like vehicle for
separating legal and equitable title to land allowing landholders to
will the beneficial use of land to their heirs contrary to Common Law
rules, and to avoid incidents of tenure. A landholder created a "use" by
conveying legal title to ("enfeoffing") a group of friends or other
reputable individuals ("feoffees") for the benefit of the landholder's
heir(s) (the "cestui que use"). Because the Common Law recognized only
the legal title held by the feoffees, the landholder could use this
method to devise land to younger sons or daughters, and, because legal
title remained with the feoffees, no incidents ever came due. This
presented a problem for Henry who relied on feudal incidents as a source
of income (and therefore power) independent of Parliament.
The legislative response was the 1536 Statute of Uses. Henry hugely
influenced it by intervening in Lord D'Acre's Case to get his justices
to hold that all testamentary uses were invalid. The Statute reunitied
legal and equitable title in the cestui que use. This meant that the
beneficial owner would always die seised of land allowing the feudal
incidents to attach upon descent to the heir. This represented Henry's
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preferred remedy, and, if Milsom's account of the effect of legal change
through legislation were complete, would have been the end of the story.
But the enduring legal change that came about was actually in the
opposite direction. Just 4 years later, public opposiiton forced
Parliament to retreat from the Statute of Uses with the Statute of
Wills. That statute allowed landholders to devise their land by will
without incidents attaching (save for 1/3 the value of incidents of land
held by knight-service). Society had embraced the idea that feudalismbased concerns about warranting lands and primogeniture should no longer
stand in the way of devising real property by will. Henry saw this as a
problem and tried to act as a "controlling mind" legislating a remedy.
But this legislation sparked lasting legal change very different from
what his "controlling mind" had envisioned. A backlash of political
pressure led to a pragmatic legislative settlement between opposing
social forces.
This episode in English property law illustrates how legislating against
the current of social forces does not bring into being the designed
remedy of a "controlling mind," but rather an undesigned, unforeseen
pragmatic settlement between lawmakers and opposing social ideas.
"Constituional" law:
Milsom's description of legal change through legislation is strongest in
the context of constitutinal law- public law on the structure and
operation of government. However, close examination of this area of law
proves that Milsom erred even here by failing to account for the role of
social ideas among the lower classes who cannot be said to have been
part of a "controlling mind's" conscious plan for change.
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The point is best illustrated in Henry VIII's stepwise legislative
subjugation of the clergy and split with the Roman Catholic Church. The
creation of the Anglican Church (a major shift in the constitution of
English government)was certainly a lasting change, and especially
appears to be Henry's (or Thomas Cromwell's) calculated response to
defiiciencies in the law that he identified (the Pope's refusal to
annull his marriage to Catherine of Aragon, and, more broadly,
ecclesiastical influence on English law and governance). It was also
brought about quite suddenly and by legislation. 1534 saw the Supremacy
Act, First Act of Successsion, and an Act for Submission of the Clergy
and Restraint of Appeals.
The English Reformation period therefore probably is an example of
conscious legislative legal change designed by a few high-ranking
individuals to address deficiencies they had identified in the law. But,
further investigation suggests that such change was only possible
because the change that the "controlling mind" hoped to produce was
consistent with the current of more broadly held social ideas and
attitudes. Henry's legislation succeeded becuase longstanding forces
combined to produce a social attitude that coincidentally aligned with
Henry's intentions.
One of these forces was a reformist attitude. The Reformation period saw
a revival of Lollardy, and, more importantly, a widely perceived need
for financial reform in the Catholic Church. Related to this was growing
anticlericalism largely attributable to resentment against the church's
great wealth despite many clerical orders' supposed commitment to
poverty. Finally, increased English nationalism, probably produced in
part by increased competition with foreign nations over trade made it
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possible for the 1533 Act in Restraint of Appeals to declare that
"England is an empire...governed by one supreme head" and composed of "a
[single] body politic." Other conflicts between the king and pope in
English history suggest that, absent these social ideas, a split with
Rome would have been impossible. It would have been inconceivable, for
example, for Henry II to split with the Roman church in response to his
struggles over the extent of ecclesiastical jurisdiction, and John could
not conceive of creating his own Church when Innocent III placed England
under a seven-year interdict for John's refusal to accept Stephen
Langton as Archbishop of Canterbury.
Moreover, at least one of Henry VIII's attempted legislative
prescriptions for constitutional change failed because it ran contrary
to social ideas. It ended up producing an unplanned compromise with
those ideas, and achieved almost nothing of what Henry intended. In 1539
the "controlling mind" of Henry and his council sought to give
themselves emergency power to create law that carried the force of an
Act of Parliament. But the idea that, other than the historically
recognized and limited royal prerogative, law was not to be made or
changed outside of Parliament, had too firmly taken hold. The House of
Commons inserted limitations that eviscerated any practical affect that
the Statute of Proclamations- Henry's chosen vehicle to give himself
more power- might have. Proclamations wer not to impose the death
penalty, lead to confiscations of property, or alter or controvert any
"acts, common laws... or laudable customs of this realm." The Statute
represents a compromise between opposing social forces that effectively
produced little, if any, lasting practical change.
Public law legislation of an earlier period drives home the point that
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legislation cannot produce lawmakers' choice of legal change when their
preferred remedy stands in the way of social ideas and forces. The
multitude of sumptuary laws and prohibitions against livery and
maintenance- which tried to impose social control by prescribing what
members of each class of society may wear and forbidding meddling in
others' lawsuits-betray the fact that they were all ineffective. These
laws aimed at preventing upward social mobility and the blurring of
lines between social classes, but could not prevent members of lower
classes from seeking higher status.
I have tried to add to my analysis of legal change in questions 1 and 2
by arguing that Milsom's statement that legal change through legislation
can be understood as "a controlling mind identifying deficiencies in the
law and devising remedies" is at best incomplete. Henry VIII's
legislation in property law and "constitutional" law confirm that change
wrought by legislation reflects the designed remedy of "a controlling
mind" only when that remedy aligns with more diffuse social ideas. When
social ideas and a legislating mind conflict, the result has been either
an impotent statute or a compromise position that no one set out to
achieve.