Some Proposed Legislation of Henry VIII

1936 ◽  
Vol 19 ◽  
pp. 119-144 ◽  
Author(s):  
T. F. T. Plucknett
Keyword(s):  
Legal History ◽  
Common Law ◽  
Henry Viii ◽  
Legal Thought ◽  
Human Material ◽  
History Of ◽  
The Common ◽  
Law Reports

One of the most fascinating features in the study of the history of the common law as revealed in six centuries of law reports is the possibility of tracing the growth of legal thought over long periods of time; hints, suggestions, unsuccessful attempts to establish a rule or a doctrine often appear in such sources long before the innovation has received the final approbation of the courts, and so we are privileged to watch the progress of legal speculation, to overhear the debates upon new departures, and to estimate the forces which produced or obstructed some projected innovation. It is this possibility which gives such life and vividness to legal history. In many fields of thought we are mainly confined to those considered statements of results which have been deliberately left to us by philosophers, theologians, or politaical theorists, but the historian of the common law has more intimate and more human material at his disposal.

scholarly journals INFIDELS IN ENGLISH LEGAL THOUGHT: CONQUEST, COMMERCE AND SLAVERY IN THE COMMON LAW FROM COKE TO MANSFIELD, 1603–1793

2017 ◽  
Vol 16 (02) ◽  
pp. 375-409
Author(s):  
EDWARD CAVANAGH
Keyword(s):  
Intellectual History ◽  
Political Change ◽  
Common Law ◽  
Legal Thought ◽  
Starting Point ◽  
The Common ◽  
Law Reports ◽  
To Receive

English common law reports are dense with ideas. Yet they remain mostly untapped by intellectual historians. This article reveals how intellectual history can engage with law and jurisprudence by following the notion that “infidels” (specifically non-Christian individuals) deserved to receive exceptional treatment within England and across the globe. The starting point is Sir Edward Coke: he suggested that infidels could be conquered and constitutionally nullified, that they could be traded with only at the discretion of the monarch, and he confirmed their incapacity to enjoy full access to the common law. This article uncovers how each of these assertions influenced the development of the imperial constitution in the seventeenth and eighteenth centuries, when it came to war, trade and slavery. Identifying each of the major moves away from Coke's prejudices, this article argues that sometimes common lawyers responded to political change, but at other times anticipated it.

Baker and Milsom Sources of English Legal History

2019 ◽  
Author(s):  
John Baker
Keyword(s):  
English Translation ◽  
Legal History ◽  
Common Law ◽  
Private Law ◽  
History Of ◽  
The Common

This book contains selected cases, statutes, and a few other texts, relating to the history of English private law between 1194 and 1750. (Cases after 1750 are mostly available in the English Reports.) It may be used as a companion to the textbooks written by the compilers, but the purpose is different from that of a textbook. The original materials are here allowed to speak for themselves, without commentary. Most of them are reports of cases, which show how the common law evolved through argument. The losing arguments help to explain those which prevailed, and it is often instructive to know what was not argued. Most of the reports were written in law French, but they are here given in English translation, corrected or augmented from manuscripts, together with notes from the enrolled Latin records. Much of this material is not available in English translation elsewhere. The second impression (2019) contains corrections and additions.

Legal History as Doctrinal History

2018 ◽  
Author(s):  
Joshua Getzler
Keyword(s):  
Legal System ◽  
Legal History ◽  
Common Law ◽  
Historical Scholarship ◽  
History Of ◽  
Political Conditions ◽  
The Common ◽  
History Of Doctrine

This chapter investigates the idea of doctrine as a focus of historical scholarship, asking how the doctrinal mentality arose, and how historical approaches to doctrine emerged strongly in both common-law and civilian or Romanistic legal cultures. It first defines the meaning of ‘doctrine’, and sets out a guiding thesis. It argues that an important dimension of doctrine is communication; and jurists become fascinated by the history of doctrine when social and political conditions necessitate an expansion or transfer of the legal system, with concomitant transfers of doctrinal thought. The chapter then traces the development of doctrinal history from Gaius to the common law tradition.

Not Doing is no Trespass

1954 ◽  
Vol 12 (1) ◽  
pp. 105-117 ◽  
Author(s):  
S. F. C. Milsom
Keyword(s):  
Legal History ◽  
Common Law ◽  
Standard Work ◽  
Secondary Purpose ◽  
History Of ◽  
The Common

This article will tell some elementary stories about the history of contract and tort. Its purpose is primarily pedagogic: although the stories are largely old, they are not very clearly explained in the books, and in particular they are done something less than justice in the standard work, Mr. Fifoot's invaluable History and Sources of the Common Law. Since the present aim is to explain what the stories are, rather than to prove that they are true, their telling will be as little encumbered as possible with old cases and their technicalities. A secondary purpose is to set the stories together, and show how far they turn out to be the same story. It is doubtful whether even Ames, who first stated the most important of them, fully realised how far the point was the same in each; and since in one guise or another it is the point of much legal history it deserves more emphasis than it has had. Finally, since Professor Plucknett freed us from the sterile delusion that case was somehow “like” trespass, there has grown up a new background of ideas in which the old stories must be set afresh.

scholarly journals THE COMPARATIVE LEGAL HISTORY OF LIMITATION AND PRESCRIPTION

Obiter ◽  
2018 ◽  
Vol 39 (3) ◽  
Author(s):  
Eltjo Schrage
Keyword(s):  
Legal History ◽  
Common Law ◽  
Civil Law ◽  
The Other ◽  
Legal Systems ◽  
Oliver Wendell Holmes ◽  
History Of ◽  
The Common ◽  
The Law ◽  
The One

Within both the civil law and the common law (as well as in mixed legal systems), there are means of acquiring and losing rights, or of freeing ourselves from obligations with the passage of time. The reason for this is at least twofold: on the one hand, for a claimant, a dispossessed owner or a creditor, limitation and prescription provide stimuli for bringing the action; on the other, this sanction upon the negligence of the claimant implies in many cases a windfall for the defendant. If a creditor is negligent in protecting his assets, the law at a certain stage no longer protects him or her. As Oliver Wendell Holmes, Jr. said aptly some 100 years ago: “Sometimes it is said that, if a man neglects to enforce his rights, he cannot complain if, after a while, the law follows his example”.

On the Liberty of the English: Adam Smith’s Reply to Montesquieu and Hume

2021 ◽  
pp. 009059172110397
Author(s):  
Paul Sagar
Keyword(s):  
Rule Of Law ◽  
Legal History ◽  
Adam Smith ◽  
Common Law ◽  
The Rule Of Law ◽  
Administration Of Justice ◽  
History Of ◽  
Status Goods ◽  
The Common ◽  
Nuanced Understanding

This essay has two purposes—first, to identify Adam Smith as intervening in the debate between Montesquieu and Hume regarding the nature, age, and robustness of English liberty. Whereas Montesquieu took English liberty to be old and fragile, Hume took it to be new and robust. Smith disagreed with both: it was older than Hume supposed, but not fragile in the way Montesquieu claimed. The reason for this was the importance of the common law in England’s legal history. Seeing this enables the essay’s second purpose: achieving a more thorough and nuanced understanding of Smith’s account of liberty. This requires us to go beyond repeating Smith’s famous claim that modern liberty was the result of the feudal barons trading away their wealth and power for inane status goods. As I demonstrate, this is only one part of a much wider story: of liberty requiring, and also being constituted by, the rise of the regular administration of justice, and ultimately the rule of law. Although Smith’s history of the English courts and common law has been almost entirely neglected by scholars, it is indispensable to understanding both his reply to Montesquieu and Hume and his wider political theory of modern freedom.

scholarly journals Conversations with Sir John Hamilton Baker QC: Aspects of Resolving the Legal History of the Common Law

2018 ◽  
Vol 18 (1) ◽  
pp. 10-20 ◽  
Author(s):  
Lesley Dingle
Keyword(s):  
Legal History ◽  
Common Law ◽  
Second World War ◽  
Grammar School ◽  
World War ◽  
Law Faculty ◽  
History Of ◽  
University College London ◽  
The Common ◽  
Second World

AbstractProfessor Sir John Baker was born in Sheffield in April 1944 towards the end of the Second World War. His path into legal history was via the Edward VI Grammar School in Chelmsford, and University College London (UCL) in the early 1960s. It was his good fortune that lecturing arrangements still in place at UCL as a wartime legacy caused him to fall under the inspirational guidance of Professor Toby Milsom at LSE for his legal history tuition. By the time John Baker moved to Cambridge in 1971 he had been called to the Bar at the Inner Temple, and his interest in the development of the common law in the late mediaeval/early Tudor period was firmly grounded. The next forty years were spent at Cambridge, where he established an enviable reputation as an innovative and meticulous scholar, whose publications output has become legendary. He retired from the Downing Chair of the Laws of England in 2011, and was knighted for his services to legal history in 2003. This article by Lesley Dingle attempts to highlight some aspects of Professor Baker's illustrious career, and should be read in conjunction with his entry in the Cambridge Eminent Scholars Archive, both of which are based on interviews that she conducted with Sir John in the Law Faculty in February-March 2017.

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