An Armory of Writs: The Rewriting of the English Social Contract, 1066-1290

Abstract

It would not be unfair to note that Palmer himself is not the clearest of writers. v insufficient. After all, the form of property assumed by Hobbes and Locke arose through the formation of the Common Law; and yet the history of the land law tends to examine only the early Common Law's effect on…modern property law. Though this thesis is in large part a work of legal history, and will inevitably in some respects reflect the limitations of this method, I use this analysis to develop conclusions that cut across the various types of history. Drawing on the multidisciplinary background I have gained in the College of Social Studies, where I learned to bring history, social theory, government, and economics together, I have in this thesis made a connection that seems almost obvious: not only is the development of property law of great importance to legal history, but it had important social and political implications too. We owe to the English Middle Ages not only our Anglo-American Common Law and state institutions, but our fundamental understanding of the role of government. So, why write a thesis on such a "boring" and difficult subject? I hope that I have rebutted the former charge, and that my arguments answer the latter by demonstrating the value of such a study. vi NOTE ON SOURCES AND HISTORIOGRAPHY If all philosophy is but a footnote to Plato, then it is not unreasonable to say that all scholarship on the laws of medieval England is but a footnote to Frederic William Maitland. While his classic work History of English Law Before the Time of Edward I was coauthored with Frederick Pollock, Pollock acknowledged in the preface to the first edition (1895) and elsewhere that his own "contribution…was very limited." It has therefore become the convention among legal historians to refer to the text as having being written only by Maitland, crediting Pollock only in formal citations. This two-volume book, through Maitland's fine research and lucid writing, remains, if not absolutely authoritative, one of the most important works in the field. It has been critiqued perhaps most strongly by S.F.C. Milsom who, like Maitland, taught law at Cambridge. Milsom's The Legal Framework of English Feudalism is a dense but deeply influential book, and he has contributed many other works on legal history. Other law professors whose work I have engaged include S.E. Thorne, whose "English Feudalism and Estates in Land," while flawed, remains important; Joseph Biancalana, whose "For Want of Justice" is a valuable examination of the impetus for Henry II's legal reforms; and Robert Palmer, whose work builds upon Milsom's and represents a distinctly positivist approach to property rights. Several professors of history have also contributed to my views on the subject. J.C. Holt and Paul Hyams have both written very important works on Anglo-Norman and Angevin England, including Holt's "Politics and Property in Early Medieval England" and his classic Magna Carta, and Hyams's "Warranty and Good Lordship vii in Twelfth Century England." Paul B...