Good afternoon, Im Neil Jones.

Im here to say a little about the English

Legal History paper, paper 35, which will be lectured this year by myself and
Professor David Ibbetson, Mr Henry Mares, and Dr David Waddilove. Well do
that as a team in the sense that usually more than one of us will be at each
of the seminars. The syllabus is here, its simple and also comprehensive, the
course is on English legal history and the main focus is as it says, will be on
the period before 1850 though in some cases it makes intellectual sense to
follow developments a little beyond that date. We wont say much about the
20th century, and the bulk of the course will be pre-1850. The syllabus
doesnt mention a starting point but we will in practice say little about the
period before 1066 before the Norman Conquest, that isnt to say that the
Anglo Saxon period is unimportant in several respects it is, but theres a limit
to what can be done in a year.

In terms of the content of the syllabus four bullet points, the sources of
literature of English law, the leading institutional and procedural
developments in English law, the relationship between the common law and
equitable conciliar and civilian forms of justice in England, and the history of
substantive English law both civil and criminal. Aspects of all of these areas
will be covered during the course; we can fully understand the history of the
common law only, for example, by considering the evolution of the courts
and the development of the legal professions which practiced in England. We
can understand the history of the common law only by examining its sources
and its literature for example treaties writing and the production of law
reports. We can understand the common law only by reference to other
forms of justice in England, the jurisdiction for example of the Court of
Chancery which came to be known as equity and the jurisdiction of the courts
of the church, but there is also of course the history of substantive law itself
and that will be the bulk of the course having looked at the sources and
literature, the institutions and the relationship with other jurisdictions.

Well look at the history of the law of tort, the history of the law of contract,
the history of what earlier generations called the law of quasi contract, the
history of the law of real property and aspects of the history of equity
including the history of trusts, and to some extent at the history of the
criminal law though its fair to say that that is a relatively small proportion of
the course. The emphasis therefore will be on the history of the substantive
civil side of the common law and the approach will be largely doctrinal, the
course is concerned with the history of the law as such and with the ways in
which legal ideas and legal processes have been handled by judges, lawyers
and litigants in the historical context in England. Because of that doctrinal
focus I think its safe to say that you need have no prior training in general
English history in order to take the course, I have no formal qualification
including school qualifications in general English history. Professor Sir John
Baker, Professor Worthingtons immediate predecessor as Downing Professor
of the Laws of England who is probably now the greatest living English legal
historian did science at school before he came to university to do law, and
Professor SFC Milsom, probably the greatest English legal historian since FW
Maitland, also a member of this faculty who died earlier this year, came up to
Cambridge in the early 1940s to read natural sciences and his tutor then told
him he couldnt read natural sciences because he wasnt good enough at
maths. So the question then was what was he going to read if he wasnt
going to read natural sciences, and the tutor said, Well what about English?
And Milsom said, I dont want to be a school teacher, so the teacher then
said, Well, what about Law? Milsom said, Done. Arguably the greatest
member of this faculty since FW Maitland became an English legal historian
through that accident without very much in the way of formal general
training in the history of English law before he started.

Another thing I think you neednt worry about unduly is whether youve done
a previous course in English legal history, many if not most of the candidates
who have taken this paper in the recent past have studied it as beginners at
Masters level but nevertheless as beginners and theyve done well and
theyve enjoyed it. Similarly, weve had people taking this course both from
civilian and from common law backgrounds and both types of lawyer have
done well and have enjoyed it. What I think you do need is an interest in
history in relation to English common law and an interest in history for its
own sake. We want to look at the history in order to understand how our
predecessors thought about and manipulated the law to deal with their own
problems in an absolute past rather than a past seen as interesting only in
relation to the present. The point of doing legal history is not primarily to
solve modern problems though it may well explain why the modern problems
are problems, but rather to examine the thinking and practices of our
forerunners. History should not be the handmaid of dogma and what is
required is therefore an interest in history of the law as such.

As to organisation, well have one two-hour seminar a week as is fairly

standard, we will assign readings beforehand. Out of the 16 sessions there
will be 14 dedicated to specific topics and then two at the end concerning
themes of the course bringing together aspects which cut across the 14
specific topics. The thesis option is available, it can be challenging because of
the nature of the sources and it hasnt very commonly been done, but if you
are interested in that do get in touch. The two-hour exam at essay option is
not available its either a thesis or the three-hour paper and the paper will be
closed book on questions which will be pretty certainly essay questions rather
than problems, setting legal history problem questions is a little bit of a
difficulty since legal history is about change over time and one has a
snapshot in a problem question.
Could I just also mention that we do not do the history of the constitution in
this course or the history of international law, or indeed the history of
jurisdictions other than England? Finally I should give you some propaganda,
you can be a practitioner and you can operate the machinery of the law
perfectly adequately without having any idea why its like it is and why the
strange things in it are in it in the first place, this is Roger North to say truth,
Although it is not necessary for counsel to know what the history of a point
is but to know how it stands resolved, yet it is a wonderful accomplishment
and without it a lawyer cannot be accounted learned in the law, and this is
TFT Plucknett quoting FW Maitland.

Legal history has the great merit of being a completely different method and
approach, it gets completely outside the law and surveys and criticises it
from a distance, it embraces the alien thought of other ages, it is
marvellously concrete, it has a wholesome discipline of critical thought, it is
one with all other history exact and yet humane, and what more could one
ask? Legal history allows you to stand back from the minutiae of the modern
law to look from outside the law at change and how and why change has
happened over a period of time, how English lawyers in the past have dealt
with legal concepts and processes, and how those problems and the common
law itself emerged in the period from the 12th century.

I took this paper in 1990, Professor Milsom was then in charge and he went
round the class and asked people what other papers they were doing and
they said things like, international commercial litigation and corporate
finance, and Milsom said to them, Ah yes, well, you all have to have at least
one money making subject. So legal history is your non-money making
subject, think about it, and if you take it I hope youll enjoy it, youre very
welcome to audit in the early days if you want to see a little bit more of what
were doing, and there is reading and a guide to the course on the Moodle
page if you want to look at that for further information. There is my email
address, ngj10, if you have any questions please do get in touch, otherwise I
will hope to see at least some of you on Monday, thank you.