English Legal History and its Materials
Hello Professor,

The actual first draft of my second paper (the contingency paper) was accidentally submitted under the heading for my First Paper in late December. I apologize if my difficulties in navigating the Wiki created any confusion. Attached below is a revised copy of the Freedom/Contingency Essay and the revised Englishry Essay that was initially submitted in January. Sorry if submitting them together throws off the word count. Thank You!


Ryan Holmes


Introduction Surveying the development of freedom in the English law over the course of several centuries, it is apparent that there was no overarching plan or design that drove its development. It was a haphazard and decidedly uneven affair. Each of the incremental advancements in the freedom of land and people was in response to the events and circumstances of the day. These contingencies created tensions in society between various factions, whether they be the baronage and the Crown, mesne lords and their vassals, or the peasantry and the nobility as a whole. Change was largely brought about through compromise, but progress was rarely linear or guaranteed. Often, but not always, the faction attempting to maintain or reassert the status quo would make an initial attempt to resolve the tension through taking more restrictive measures, which frequently left land less freely alienable and individuals more bound to the land and their lords than before. When present, these restrictions usually precipitated a drastic reaction, either through violent uprising or legal innovation, that created the need for a new compromise. This gradual evolution generally left people freer and land more alienable. Tracing these patterns from the signing of the Great Charter through the Statute of Wills, it is clear that contingency, and response to it, are paramount drivers in the development of freedom in the English law.

Magna Carta The 1215 signing of the Magna Carta is a textbook example of how an incremental increase in the freedom of people was brought about by an attempt to resolve the immediate social and political tensions of the age. John was an unpopular king buffeted by conflicts with an ever more assertive Church and crushing military failure in France. Faced with rebellion by the baronage in the wake of the permanent loss of Brittany and Normandy in 1214, John’s hand was forced into making a series of guarantees to the nobility and the church that seemed to ensconce a modicum of due process in the English legal system. Though not considered a permanent settlement at the time, John’s untimely death and the subsequent repeated affirmation by later monarchs lead to the minimal guarantees of due process contained in the Magna Carta becoming the symbolic foundation of the English legal system.

The Crisis of the 14th Century: Plague, the Statute of Laborers, and The Peasant’s Revolt Perhaps the widest–reaching advancement in individual liberty during the medieval period was the gradual weakening of serfdom brought about by tumult of the second half of the fourteenth century. The immediate aftermath of the Black Death saw wages rise dramatically for agricultural laborers and increasing movement of people seeking work and demanding better conditions. Attempting to stem the tide and reassert the pre-plague status quo, Parliament passed the Statute of Laborers in 1351, which froze wages and prohibited the movement of workers. The Statute and its accompanying Ordinance were weakly enforced, but contributed to a general atmosphere of oppression of the working classes in the second half of the 14th century. As the economic crisis deepened in the 1370s, peasant discontent rose, and coupled with new theological reform movements like Lollardy, exploded in the Peasant’s Revolt of 1381. Though the jacquerie was ultimately put down, it posed a significant shock to the system, threatening London and executing the Archbishop of Canterbury along the way. Despite remaining on the books, the Statute of Laborers proved ineffective in restoring pre-plague conditions in the fact of the demographic and economic pressures that were weakening serfdom. The Revolt did not bring an immediate end to the institution, but it withered away in its aftermath, becoming almost nonexistent as a personal status in England by the end of the fifteenth century. The importance of social and demographic forces in driving the process is perhaps the greatest example of contingency advancing the freedom of individuals in the English law.

Uses, Wills, and the Reformation: Land Reform in the Reign of Henry VIII The Statute of Wills also demonstrates a model of how contingency drove the advancement of freedom. Granting landowners the right to devise their land through will, it represented a victory of landowners over the Crown, and freed the landowners from the strictures of mandatory primogeniture and excessive royal interference. This legal innovation came about through a drive to increase royal revenue, and Reformation, and outright rebellion. The stage was set with the passage of the Statute of Uses in 1536, an attempt by the Crown to end abuses of beneficial ownership and stymie the avoidance of the payment of incidents. Though these goals were almost immediately undermined through clever lawyering and the development of the trust, discontent over the Statute of Uses was a significant contributing factor, alongside the break with Rome and the Dissolution of the Monasteries, in the eruption of the Pilgrimage of Grace that fall. Gaining tens of thousands of followers and lasting for months, the rebellion was the most significant popular uprising against the religious and economic reforms of Henry VIII’s reign. Though royal authority was reestablished across Yorkshire in 1537, the Pilgrimage placed enormous political pressure on the Tudor state. The resulting compromise eventually led to the passage of the Statute of Wills in 1540, giving landowners the freedom to dispose of their land as they saw fit while avoiding the specter of royal escheat.

Conclusion Taken as a whole, contingency played a decisive role in the development of freedom in medieval England. This halting path to liberty, created by compromise and driven by the needs and contingencies of a given generation, shows that freedom in the English law was brought about by an organic and uneven process. The importance of events and the resolution of immediate social problems demonstrates that English liberty and was not the created through a grand design or derived from ancient indefinable rights, but was the product of a centuries-long human struggle that developed in response to specific events, and the social pressures they unleashed, as they unfolded over time.



The Englishry of the English law owes a great deal to the diverse traditions that contributed to its structure and substance. The medieval English law is in large part a product of the marriage of the Anglo-Saxon legal system, based in intensely local tradition and collective responsibility, and the expanding machinery of Norman central governance. The imposition of a Norman administrative super-structure in the aftermath of the Conquest created a truly national legal system that continued to evolve and grow throughout the period. Despite this expansion of national power, the system preserved instruments of local control and community decision making. The combination of these two traditions formed the basis for that most English of institutions: the common law. This inquiry demands a definition of Englishry, or what makes the common law system historically distinct. Using broad strokes, this quality of the system can be defined as the flexibility derived from its case-driven nature, encompassing both the absence of a comprehensive civil code and the centrality of judicial decisions and a significant degree of community involvement, either through compurgation or trial-by-jury.

The Foundation: Anglo Saxon Localism and Norman Administration

The various sources of the English law laid the foundation for legal system and enabled its later development and growth. The primary substantive source for the English law is the Anglo-Saxon law before the Conquest. It was influenced by several Germanic legal traditions and was by no means uniform across the entire country. Its concerns were intensely local, and it was underpinned by notions of collective responsibility and community justice. Though records are sparse, compurgation seems to have played a significant role is the decision of cases. The Normans brought two particularly significant innovations to the English legal system. The first of which was the development of a more robust royal administration, epitomized by projects like the Domesday Book, that allowed for the development of a truly national legal system and more efficient taxation. The second was the imposition of feudal tenure, a radically new system of land ownership. This combination of the Anglo-Saxon focus on local custom and community participation with Norman central governance and the military tenures provided the foundation of the English law, allowing for its later development and growth. The consolidation and expansion of royal authority and administration in the centuries following the Conquest led to the development of a national court system that governed the entire realm and developed new jurisdictions, causes of action, and novel uses of fictions to fit the legal needs of their times. The latter half of the 12th century saw dramatic increase in both royal power and the reach of national courts. Not only did royal justice begin to travel independently from the physical person of the king with the development of the eyres and later the assizes, but the judicial functions of the curia regis were functionally shifted to permanent courts with the creation of the Exchequer of Pleas, the Court of Common Pleas, and later the King’s Bench. The reign of Henry II saw the development and subsequent judicial use of novel disseisin and mort d’ancestor to ameliorate the abuses of the Anarchy. Later times saw the Chancery develop to remedy the perceived rigidity of the common law.

Procedural Innovations Within Royal System

Once established, these courts adopted new procedures that drove the law forward to meet the legal needs of contemporary society. This was occasionally done in novel ways. The Exchequer and King’s Bench greatly expanded their own respective jurisdictions with the Writ of Quominus and the Bill of Middlesex. In the 14th century, the common law courts drove the development of early tort law by expansively interpreting the vi et armis component of the writ of trespass as was done in Rattesdene v, Grunestone (YB 10 Edw II (54 SS) 140) and later doing away with the need for an allegation of force with the emergence of trespass on the case. A similar process is seen in the King’s Bench with development and affirmation of the use of assumpsit, much to the benefit of plaintiffs and the legal profession. Slade’s case Trin. 44 Eliz. 4 Co Rep 92b. The centrality of judicial action to substantive legal development and the national scope of these royal courts are part and parcel are part and parcel of the English law. They were created by the creation of Norman administrative state and evolved to the need to meet social, political, and economic needs of the day.

Local Participation

Despite the prominence of the royal courts in creation and development of a national legal system, the localism at the core of Anglo-Saxon law remained a defining aspect of the common law throughout the medieval period. Compurgation, or oath-helping through a combination of eyewitness accounts and character references, remained a key feature of litigation in the immediate aftermath of the Conquest. During the reign of Henry II, local participation grew into a more formal institution through the development of the jury. This took the form of the presenting jury of the grand assize and the also self-informing trial jury. The abolition of the ordeal by the Lateran Council of 1215 further encouraged the adoption of the jury trial. This right was later ensconced in the Magna Carta, securing community involvement through jury trial in a criminal proceeding as a fundamental right in the English constitutional system.


Though this essay speaks in broad terms and excludes many important themes, it seeks to establish that the diverse sources of the English law provided an essential foundation and account for the development of the common law’s defining characteristics. The institutions of the Norman state created a truly national legal system, and the institutional responses to contemporary social pressures through the years gave the common law much of its substance. Although the medieval English law operated within the confines of a national system, it remained an intensely local affair, with the jury in all its forms epitomizing the continued importance of the Anglo-Saxon tradition of localism and community involvement to the development of the common law.

Post Script: Despite what the heading reads, this is the evised 1st Paper. Reframed the question and moved away from constitutional questions.


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r2 - 27 Mar 2018 - 17:21:31 - RyanHolmes
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