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13.09.46, Jenks, Rose, and Whittick, eds., Law, Layers and Texts

13.09.46, Jenks, Rose, and Whittick, eds., Law, Layers and Texts

The notable scholar of medieval English legal history, Paul Brand, has enjoyed a distinguished career that took him from the National Archives of the U.K. (then called the Public Record Office) to academic positions in London, Oxford, and the United States. His extensive researches in thirteenth-century legal history, with perhaps The Origins of the English Legal Profession (1992) and Kings, Barons and Justices: The Making and Enforcement of Legislation in Thirteenth-Century England (2003) standing as his best-known works to date, has made him required reading for anyone whose work encompasses anything at all to do with the systems of law and justice in Anglo-Norman lands. Indeed, Brand's work is the watchword for accessible, meticulous, and informative legal history and serves as the model for scholarship in the field. This festschrift is a richly-deserved tribute to Brand's continuing collegiality and influence.

Comprised of seventeen articles and prefaced by an encomium by Barbara Harvey, the collection acts less as an extension of Brand's own work than it does as a showcase of the scholarship of his friends, colleagues, and protégés. With such a large number of articles, a full assessment of each is impossible; I can include only the briefest descriptions and will follow with an assessment of the collection as a whole and a bit more on particular standouts in the volume.

The collection does not really follow a distinctly chronological or thematic order, but there is a general flow from the twelfth to the seventeenth centuries in all but the final essay. After the front matter, which includes the charming and affectionate encomium by Harvey, the collection begins with John Hudson, whose article "Constitutions of Clarendon, Clause 3, and Henry II's Reforms of Law and Administration" premises that the clause was designed not just to address the issue of "criminal clerks" and their putative protection by church courts, but to funnel all cases and punishments relating to crimes against the king's peace into the court of the chief justiciar regardless of their secular or ecclesiastical jurisdiction.

Paul R. Hyams's article "Notes on the Transformation of the Fief into the Common Law Tenure in Fee" investigates the origins and development of the term feudum from one relating to the rights of the lord to a description of a heritable tenancy: the feudum militare.

Bruce O'Brien, in "An English Book of Laws from the Time of Glanvill," looks at four texts of pre- and immediate post-Conquest English law that were included in twelfth-century compilations and discusses their relevance to the development of common law procedure as presented by Glanvill.

Richard H. Helmholz's essay "Annuities and Annual Pensions" locates the origins of the writ of annuities (aka annual rents) in canon law regulation of annual pensions and the litigation over such pensions.

David Ibbetson, in "Civilian and Canonist Influence on the Writ of Cessavit per Biennium," traces the writ, which was developed in the period of Edward I's reign (1272-1307) and concerned a tenant's failure to pay rent, to similar laws found in the Corpus Iuris Civilis and in canon law.

Henry Summerson's article "Burning Issues: The Law and Crime of Arson in England, 1200-1350" focuses on the relatively infrequent charge of arson and how it was prosecuted from the thirteenth to the mid-fourteenth century.

David Carpenter, in "Crucifixion and Conversion: Henry III and the Jews in 1255," discusses Henry III's involvement in the prosecution of the Jews following the death of a young boy who was allegedly kidnapped, tortured, and crucified by Jews in Lincoln shortly after the death of Bishop Robert Grosseteste, and who was eventually canonized as "Little" St. Hugh of Lincoln.

In "Robert of Lexington, Senior Justice of the Bench, 1236-1244," David Crook provides a chronology of the career of Robert of Lexington, who was a justice of the Bench in various royal courts for over twenty-five years.

John Baker's article "Deeds Speak Louder Than Words: Covenants and the Law of Proof, 1290-1321" discusses his premise that actions of covenant, which did not initially require a written deed but could be prosecuted on oral argument alone, transitioned in the period between 1290 and 1321 into an action that required written proof in the form of a deed.

Sandra Raban's essay, "Lawyers Retained by Peterborough Abbey in the Late Thirteenth and Early Fourteenth Centuries," develops a more prosopographical study on both the personnel Peterborough Abbey retained as lawyers (i.e. pleaders and serjeants of both the common and canon law courts) and the ways in which they were retained through pensions and other grants.

Charles Donahue, Jr in "The Legal Profession of Fourteenth-Century England: Serjeants of the Common Bench and Advocates of the Court of Arches" uses four biographical studies to compare the different ways by which serjeants--who by the period under study were substantially secularized and who formed the group from which Bench justices came--and advocates in the canon law Court of Arches (Canterbury jurisdiction) were compensated and rewarded.

Susanne Jenks's article "Writs De Minis and Supplicavit: The History of Surety of the Peace" traces the development of the provision of sureties from the non-returnable writ de minis, which relied on personal reputation or fama, to the returnable writ supplicavit, which included monetary penalties for failure to keep the peace.

In "Common Law and Custom: Windows, Light, and Privacy in Late Medieval England," Janet S. Loengard outlines the different suits in use to charge neighbors with obstruction of light and invasion of privacy because of building or other innovations. Although most of the writs relating specifically to nuisance fell out of use, the loss of light remained actionable under the notion of the right of "ancient light."

Jonathan Rose, in "Medieval Estate Planning: The Wills and Testamentary Trials of Sir John Fastolf," focuses on the failure of Sir John's executors to fulfill his fundamental testamentary desire to build a college at his estate of Caister, Norfolk and the litigation that resulted from confusion over the contrast between his numerous written wills and his final noncupative testament.

Sarah Tullis's article "Glanvill After Glanvill: The Afterlife of a Medieval Legal Treatise" traces the popularity of references to Glanvill following its printing in the sixteenth century, as compared to its complete disappearance from the manuscript record for the previous two hundred years.

The final article, Robert C. Palmer's "The Construction of an Online Digital Archive: The Anglo-American Legal Tradition Website Project" offers a brief history of the planning and development of the AALT site and an explanation for some of the site's idiosyncrasies that make it both more comprehensive and less user-friendly than other digital archive websites.

The volume concludes with a complete bibliography of Paul Brand's published works, compiled by Alexandra Nicol, which is a useful tool for people looking to find some of his more obscure publications.

Taken as a whole, this collection not only stands as a testament to the influence of Paul Brand himself on his friends, colleagues, and students, but as a testament to the high quality of scholarly production among current historians of medieval English law. The fact that there are some topical gaps in the articles--especially the absence of any work on women's interactions with the law, despite the inclusion of Loengard, Raban, and Harvey all of whom have written extensively on the topic--is also to a large extent a lacuna in Brand's own work and is, therefore, unsurprising. Some articles are more interesting or challenging than others (also unsurprising in a collection of this type), but all demonstrate the kind of meticulous scholarship and accessible presentation for which Brand is justifiably well known.

Most of the articles are worth reading in their own right, divorced from the requirements of the festschrift genre. Particular standouts include Carpenter and Jenks, both of whose articles are examples of the best in scholarly writing about the English legal system. Carpenter mined and analyzed multivalent sources, a methodology that characterizes his sophisticated presentation of political history, to discover a series of connections between Henry III and the prosecution of the Jews of Lincoln for their supposed part in the murder of the boy Hugh. He traces the linkages between King Henry, the crime, and two of the brothers of Robert of Lexington--the chief justice featured in David Crook's article--John of Lexington, Henry's steward, and Stephen of Lexington, abbot of Clairvaux, and tied the prosecution of the crime to King Henry's own preoccupation with the Jews of England. Carpenter's expert navigating through a large variety of sources, both historical and documentary, and the delicacy and intimacy of his presentation make this one of the most fascinating pieces of scholarship I have read for a long while.

Jenks, an independent scholar who is also vice-administrator of the AALT Project and co-edited the festschrift, wrote on a topic--the development of surety for the peace--that might have been dry and tedious in less deft hands. In hers, however, the result was a fascinating study of a system that was both popular with litigants and profitable for the crown, the product of a prodigious investigation of a tremendous array of documentary sources. This is "traditional" legal history at its best, in the hands of someone whose familiarity with the records combined with an appealing and accessible writing style to produce a finely tuned piece of scholarship.

Loengard's article on windows, "ancient light," and notions of privacy is more eccentric in topic than the other articles and, as such, does not mesh as well with the rest of the collection as another topic might have done. However, this is an interesting departure from Loengard's other published work, which focuses on women and the law, and might represent a new and exciting thread of scholarly inquiry for her. In addition, it is a fine piece of work on a topic that I have not encountered before: the issue of what constitutes a right to privacy in the middle ages, in particular in urban environments where privacy is a commodity in very short supply.

The inclusion of Robert Palmer's article in AALT requires a bit of a cognitive stretch because it shares little in topic, presentation, or methodology with any of the other articles. It is easily conceivable that Brand has been supportive of the project, and the website certainly makes the kinds of documents Brand has utilized over his long career in public records more easily available to researchers who cannot spend all their days at the National Archives at Kew. Nevertheless, it is a rather peculiar article in many ways, perhaps most of all in its apologetical tone. I admit to wondering if Palmer used this opportunity to answer his critics about the website. I have been a frequent visitor to the AALT site, which I have used since 2008 and which I regularly recommend to students whose paleographic skills make the site accessible to them (or as a place to practice those skills). Its user interface, especially the decision not to include catalogue and/or membrane numbers in the jpeg titles, can be astonishingly "unfriendly" to the uninitiated. This can discourage people from investigating the archive despite the tremendous value of the materials digitized on it. Palmer's explanations for decisions made about presentation of those images lead me to be more sympathetic with the painful choices he must have had to make, but it does not make the site any easier to access. And it does not make his article really hang together with the other pieces in the collection.

In the final analysis, this is not only a welcome addition to the body of work on English law and procedure, it is also a fitting tribute to one of the most productive and significant members of that community. Those interested in the topics of the articles themselves will find much to value in them; those curious about the state of English legal history today will find it well represented here.