An Uncommon Approach to Common Law
By John Masson
Aug. 14, 2012
Any scholarly book that contains a prefatory thank-you to the author's family Labrador (and a compliment about that Lab's excellent command of "dog-Latin") is bound to be more entertaining than expected.
So it certainly is with the recent work of Michigan Law professor John Hudson, whose Oxford History of the Laws of England Volume II: 871–1216 forms a key part of the landmark, 13-volume series covering the evolution of English law from 597 to 1914.
Prof. Hudson, a William W. Cook Global Law Professor at Michigan whose full-time appointment is at Scotland's St. Andrews University, brings his subject to life with a number of telling anecdotes. The very first, an apparent business dispute concerning an unfortunate 13th-century Englishman named John, involved a group of thugs led by a local noble bursting in on John as he ate, dragging him to his bed, and setting fire to his beard and face. More violence somehow seemed to be called for, though, so the group also tore out his tongue. They rifled his safe, removed two royal charters and one from an archbishop, then set fire to two of the three documents atop John's already damaged face.
And that was before John's assailants got around to cutting his head off. Which, perhaps fortunately for John at that point, is what happened next.
Later John's son, Simon, accused the local noble, Thomas, of the crime. And in doing so, Hudson writes, Simon draws some important legal distinctions that might not have been drawn a couple of hundred years earlier. Simon notes, for example, that Thomas did the killing "wickedly and in felony and in the peace of the lord king and at night and in murder." He also refers to the burning of the charters as being "to the dishonor of the lord king."
"This sort of thing may go back to Alfred, this more refined idea that certain offenses are offenses against the king and the victim," Prof. Hudson said. "We have an idea here of the development of the king's peace."
The book has been in the works for Prof. Hudson since 1994, when the series editor, Cambridge professor Sir John Baker, approached him about it. Baker is the driving force of the series, although a further inspiration may well have been the late, legendary Michigan Law professor Brian Simpson.
"They wanted someone who could take the story from the ninth through to the thirteenth century," Hudson said. And that's somewhat unusual, he added, because "almost everything in English history splits" in the eleventh century, at 1066, after the Norman King William invaded England from France and radically changed the country's culture.
The book starts near the dawn of the tenth century, Hudson said, because it's fair enough to begin talking about a uniquely English law around the time of Alfred the Great.
"Before that, it's very divided up" across the length and breadth of England because of the large number of small, competing kingdoms. "But Alfred's law code is sort of the founding law code, so the start of Alfred's reign was an obvious place to start."
Developments like the hundred and county court system that began in Wessex under Alfred later spread across the whole country.
Similarly, Magna Carta, signed under duress by King John at Runnymede in 1215, was a logical place for Hudson's volume to stop.
One of the challenges involved in producing such a book, which is meant as an authoritative reference work, is the goal of including everything that's relevant. The problem in an age such as the one Hudson examines, of course, is that not everything relevant is known. Sources aren't always very good.
Hudson said that, crucial as he thought was the importance of his period, the one immediately following might actually be seen as more important to the development of key aspects of law in England, because of the rapid development of the legal profession, which began in earnest in the thirteenth century.
"Prior to that, amateur knowledge was sufficient," Hudson said. "If I turned up to a land case, as a moderately rich person, the proceedings would seem sensible to me. Come 1250 and certainly by 1300, I wouldn't have understood what was going on, partly because of legal rules that operated in counterintuitive ways. Why did they operate that way? Well, because they're legal rules. And that is the real shift that's happening by the end of my period."
That's why the legal profession developed rapidly in the common-law courts in the thirteenth century, and in ecclesiastical courts in the twelfth, he said. Prior to that, such expertise wasn't needed to the same extent.
"In terms of the profession of law, what the book shows is that by then end of my period, law has reached the point where a legal profession is necessary," Hudson said. "And then it develops over the next 100 years." (The thirteenth century will be covered in the same series by another William W. Cook Professor, Paul Brand, in a volume now under way).
As for the violent dispute between John, his son Simon, and the apparently bloodthirsty noble Thomas, that was settled with perhaps unexpected amity, given the background.
Thomas gave Simon 10 marks. Simon gave up any further claim against Thomas and his henchmen. And Thomas was required to "make a monk for John's soul."
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