Paul Brand

title.none: Hudson, The Formation of the English Common Law (Brand)

identifier.other: baj9928.9802.013 98.02.13

identifier.issn: 1096-746X

description.statementofresponsibility: Paul Brand, All Souls College, Oxford,

publisher.none: .

date.issued: 1998

identifier.citation: Hudson, John. The Formation of the English Common Law : Law and Society in England from the Norman Conquest to Magna Carta. New York: Longman, 1996. Pp. xvi, 271. $22.50. ISBN: ISBN 0-582-07026-0.

type.none: Review

relation.ispartof: The Medieval Review

The Medieval Review 98.02.13

Hudson, John. The Formation of the English Common Law : Law and Society in England from the Norman Conquest to Magna Carta. New York: Longman, 1996. Pp. xvi, 271. $22.50. ISBN: ISBN 0-582-07026-0.

Reviewed by:

Paul Brand
All Souls College, Oxford

Legal historians are generally regarded by their colleagues working in the fields of political or social and economic history as masters of an arcane, austere and inward-looking discipline, working on obscure topics with little or no relevance or interest to their colleagues in other fields. There are, however, a few topics which fall within the field of English medieval legal history which are by general consent conceded to be of general importance: indeed, sufficiently interesting to ensure that they are regularly covered in undergraduate courses in English medieval history. The prime example of such a topic is the 'birth' of the English Common Law, the creation of a centralised system of royal justice in England and the associated emergence of a set of general legal rules (the Common Law of England in its narrower sense), a phenomenon which legal and other historians have generally associated with the reign of king Henry II (1154-1189). There has been a steady flow of work in this area by legal historians ever since the time of F.W. Maitland, the founder of modern 'scientific' English legal history. Initially this did little more than to qualify and add depth to Maitland's broad outlines. Of particular importance here was the the work of Doris Mary Stenton and R.C. Van Canegem. More recent work has posed a radical challenge to Maitland's whole picture of the process. Here the pathfinder was S.F.C. Milsom and Milsom's work found a ready follower and populariser in Robert C. Palmer. John Hudson's first major contribution to this subject was his 1994 book, Land, Law and Lordship in Anglo-Norman England, which concentrated on the development of legal norms relating to the tenure of land in Anglo-Norman England as evidenced by the charters of the period. This successfully challenged many of the assertions Milsom and Palmer had made about the transformative effects of the reforms of the reign of Henry II on the legal norms relating to inheritance and security of tenure. He has now gone on to write a more general text-book on the formation of the English Common Law, which develops and extends the argument of his earlier work. Hudson's thesis is that if one examines carefully the two most important areas of the emerging English Common Law (land law and criminal law) what is most striking is the degree of continuity between the law of the English royal courts in the years around 1200 and the legal custom that had developed in England prior to the reign of Henry II and the importance in both these areas of developments which had already taken place by 1154.

Hudson's first introductory chapter establishes the importance of law in the eleventh and twelfth centuries and looks in a general way at the various functions which law played in English society and the social background against which that law operated. He also provides a clear, albeit necessarily sketchy, outline of how litigation worked and how the process of formal dispute resolution within the courtroom was related to less formal methods of carrying on and resolving disputes outside courtrooms. More interesting is his demonstration that even before the emergence of the Common Law there existed in England a concept of law and of distinctively legal norms and legal institutions which clearly distinguished them from common social practice, social rules and other kinds of social institution: a salutary reminder that some of the models borrowed from the work of social anthropologists who have studied societies where law, legal rules and courts do not exist as separate conceptual or institutional categories may not be wholly appropriate to the England of the eleventh and twelfth centuries. The least satisfactory element in the chapter is his discussion of the concept of a 'common law'. Here a general analysis of the necessary constituents of such a phenomenon as seen from a present-day perspective sits a little awkwardly with a discussion of the disappearance of regional law and custom and the appearance of the concept of a 'common law' in twelfth and thirteenth century England.

The next three chapters are all concerned with the legal institutions and legal norms of Anglo-Norman England. Chapter 2 provides an admirably clear and succinct survey of the main structural characteristics of the different types of court found in Anglo-Norman England: who participated in the work of these courts and made legal decisions in them, the different kinds of business with which they dealt and the frequency of their sessions. Hudson also notes their common characteristics: the possession of social as well as legal functions; the presence of a split between the court's presiding officer and the court's judgment-makers and the absence of any written record of the court's proceedings. Chapter 3 discusses the way the legal system of the period dealt with serious crime. Hudson here acknowledges his debt to the published and unpublished work of Patrick Wormald. He looks at various institutions whose purpose was to help prevent crime and to capture offenders; at the different forms of criminal prosecution (of which private prosecution at the suit of the victim or his kin was the most important) and at the outcome of successful prosecution of offenders, insisting on the increasing importance during this period of punishment as against compensation. The least convincing part of the chapter is the analysis of offences, offenders and their motivation. This is avowedly based mainly on the anedotal evidence of miracle stories and similar narratives and it is far from clear that these necessarily provide anything like the representative cross-sample which would be needed for some of the more general conclusions Hudson tries to draw from them. In chapter 4 Hudson carefully explains the importance of land law within Anglo-Norman society and then looks at its main constituent elements. He discusses the various categories of landholding that existed in this period (what a later generation was to call 'tenures'), at the various indicators which mark the strength of the tenant's interest in his holding (the degree of security of tenure he enjoyed, the degree to which land was heritable and how far the tenant's interest in land was alienable) and why the tenant's interest in land was growing in this period and becoming more secure; and at the reasons for and conduct of land disputes during this period. Much of this chapter will be familiar to those who have read Hudson's earlier monograph, but for those who have not Hudson provides a brief and lucid summary of his earlier work. The chapter disappoints only in its relative neglect of the family dimension to twelfth-century land law: saying very little about arrangements providing for widows' life tenure of part of their husbands' lands (dower) or about the beginnings of marriage grants for daughters or about arrangements for the care of the lands and persons of inheriting children (wardship). It might also have been clearer if Hudson to have avoided the use of the term 'fee' for what is generally described by legal and general historians as 'tenure by knight service' or 'tenure by military service', particularly in view of the many later uses of the term for a variety of other and quite different purposes.

Chapters 5-7 are all concerned with the legal reforms associated with the reigns of Henry II and his sons Richard and John. Chapter 5 sets the legal reforms of Henry II's reign in their contemporary context, that of the need to recreate royal authority in England after the Civil War during Stephen's reign and provides a chronological survey of the main legal reforms. Hudson also discusses the nature of the reforms, insisting that their real significance was in bringing a much larger group of the king's subjects into contact with the royal administrative and judicial machine on a regular basis and introducing bureaucratic routine into the function of the judicial system, and argues that the reforms were more the product of the small group of expert administrators around the king than of individual kings themselves. Chapter 6 looks at the impact of the Angevin reforms on the working and administration of the criminal law. Little changed, he argues, in methods of peacekeeping and catching and prosecuting wrongdoers or in the general overall effectiveness of the criminal law in capturing or deterring offenders. There was some extension and regularisation of the public presentment of crimes and criminals in the Assizes of Clarendon and Northampton although private prosecution remained more significant as a way of initiating criminal trials. Jury trial began to be used in criminal cases but side by side with trial by battle and the ordeal and sometimes merely as a preliminary to them. In chapter 7 Hudson looks at the impact of the Angevin reforms on the land law. He provides a brief introduction to the two new royal procedures introduced during the reign of Henry II for the recovery of land in the king's courts (the assizes of novel disseisin and mort d'ancestor) and to the working of the writ of right, a form of litigation generally initiated in the lord's court though through a royal writ and which might subsequently be removed into a royal court. All this was clearly new. Hudson emphasises, however, the continuities: the continuing room for self-help, the continued importance within the courtroom of personal factors, the continuing importance of lord's courts in exercising jurisdiction over land. His discussion of substantive land law focusses on the rights of tenants over their lands. Hudson sees the increasing security of tenure of individual tenants and their strengthening ability to transmit their lands by inheritance to their heirs and to grant their lands away during their lifetimes to third parties as mainly the result of longer-term trends already discussed in chapter 4 which tended to strengthen the tenant's hold over his holding but as also owing something to the Angevin reforms and the new land law remedies. While the overall picture painted by the chapter is convincing Hudson's grasp of the detailed technicalities is not always wholly reliable. The defendant in the action of right did not for example make a 'counter-claim' (as suggested on page 202) but a formal 'denial'. This did not need to disclose the basis of the defendant's own title to the land, but had merely to deny the plaintiff's claim and his basis for making it.

Hudson's final chapter (chapter 8) on "Magna Carta and the Formation of the English Common Law" combines an attempt to place the more narrowly legal clauses of Magna Carta in their immediate context with a wider attempt to gauge whether or not a real 'common law' had emerged in England by 1215. He also makes an illuminating comparison of the degree of royal centralisation and control of justice in England in 1215 with the much more limited degree of royal control of justice in France and Scotland at the same date. The discussion of the background to Magna Carta in the events of John's reign is inevitably somewhat hurried, but there should have been enough space to remind readers that one major reason for John's experiments with the structure of royal courts may well have been his difficulty in finding enough justices willing to serve an excommunicated king. Hudson's comment apropos the marginal notes on the plea rolls of John's reign that the justices need to speak to the king on particular matters, that "Conceivably ... royal administrators saw it as unwelcome royal interference in their routine, and a manifestation of John's characteristic lack of trust" (page 222) unfortunately totally misconstrues them. These are not responses to royal expressions of interest on particular matters, but notes which indicate that the justices themselves have decided that they need to consult the king (and his council) about a particular matter: the initiative on these consultations lay with the justices and not with the king who only knew of them once the justices had brought them to his attention.

Hudson's book is generally clear, judicious and well-balanced. The tone throughout is that of the confident lecturer with plenty to capture an audience's interest, starting with the dramatic multiple hanging pictured on the cover, and plenty to retain it, plenty of colourful stories. Experts in the field will find material of interest to them but this is not really a book intended for them. Thus there is no real engagement or argument at any kind of length with those with whom Hudson disagrees: for that would interrupt the flow of the exposition. The real audience for the book is undergraduate students, the intelligent lay reader, perhaps even the non-specialist medievalist. It is a book which will meet their needs and can be thoroughly recommended to them.