And this is where I have got with the paper on The Prior’s Case for the SLS Legal History section. This may find its way into a ‘proper’ publication at some point, but probably not in this form … anyway, for anyone who stumbles upon it and fancies a bit of medieval-to-modern musing, here you go …
Of priors and precedent: tradition and truth in Land Law
DRAFT VERSION
One of the oldest cases still referred to in modern legal writing, and in litigation, is a case from 1368: Y.B. Hil. 42 Edw. III f. 3 pl. 14.[1] This was introduced to me, as a second-year undergraduate studying Land Law, as The Prior’s Case, though it is sometimes known as Lawrence Pakenham’s Case, and, occasionally, Prior’s Case or The Prior of Packenham’s Case). It has a place in the Land Law canon in the area of freehold covenants, and, specifically, that of the running of the benefit of covenants. A recent use of it, in the judgment of Nugee LJ in Bath Rugby v Greenwood [2021] EWCA Civ 1927, shows the standard account of the case in legal practice.[2] Nugee LJ referred to The Prior’s Case as ‘example of noticeable antiquity’, and summarised it in the following way:
The … prior of a convent had covenanted that he and his convent would sing all week in the chapel of a manor for the lords of the manor. … a successor in title to the manor was able to enforce the covenant: “for the covenant is to do a thing which is annexed to the chapel, which is within the manor, and so annexed to the manor”, as it is there said.[3]
The legal rule for which this case is often said to be authority, then, is that the benefit of covenants may pass or ‘run’, via annexation to land or property rights.[4] It may well be that the area of freehold covenants does not command great enthusiasm outside black-letter legal scholarship and practice, but this use of a medieval source in modern legal practice (and writing) does, however, have implications beyond covenants, and beyond Land Law doctrine. To put it bluntly, The Prior’s Case does not support the ‘rule’ for which it is routinely cited, this has been known for a considerable period of time, but the inaccuracy persists. That it does persist is telling, in terms of attitudes and methods of lawyers with regard to history and older legal sources, and should be brought into the discussion of uses of history in legal contexts which has developed in the last few decades, alongside the more common focus on the validity of particular legal propositions or historical facts, on constitutional matters or the interpretation of legislation.[5] A recent book has argued that there is a need for Land Law students and practitioners in particular to be aware of older doctrine in that area.[6] Consideration of The Prior’s Case and its treatment indicates that what might be thought of as the evidential side of the legal use of history – the way in which modern lawyers and legal scholars handle the documentary evidence of law’s own past – is also an issue which could and should be taken more seriously by those incorporating historical legal materials into their arguments about modern law.
The problem with the standard account
The Prior’s Case, and specifically Y.B. Hil. 42 Edw. III fo. 3 pl. 14, is often cited as authority for a rule it does not support. In fact, it is not possible to say that it stands for any particular rule, since there is no evidence of a clear decision in the case. This lack of an outcome is apparent from Y.B. Hil. 42 Edw. III fo. 3 pl. 14 itself, from the related plea roll,[7] from translations of the report and roll entry which have long been available, and it has long been noted in published work by more historically-sensitive or knowledgeable legal commentators. The same sources also show that, while there seems to have been some argument for something along the lines of the running of the benefit of covenants with land or rights in land, this was not first choice of argument of the claimant in The Prior’s Case, but sat alongside arguments focusing on the transmission of a right to the claimant as heir to the original covenantee, and those based on something like prescription of the right. Furthermore, an additional source in a medieval cartulary, which I have examined, suggests that the real facts behind the case involved a situation even less easily comparable to a modern freehold covenant scenario than the Year Book report has seemed to suggest to later lawyers.
There is no room for argument about the lack of a conclusion in the Year Book. Y.B. Hil. 42 Edw. III fo. 3 pl. 14 states that the case was adjourned. Although this source is in Law French with some Latin (the statement about adjournment being in Latin), and no modern English lawyer should be expected to be familiar with the ancient languages of the common law, it is not unreasonable to criticise inaccuracy here, since anyone going to look at the source cited could see that it is not in English, and seek a translation; and published translations, which make it quite clear that the case was adjourned, are available.[8] It seems difficult not to conclude that: (a) there has been a history of inaccurate citation in this area; and (b) some lawyers are content to cite cases they have not understood (or, perhaps, read at all).
It is also worthy of note that secondary work has long since picked up the lack of a conclusion in this case, and that an honourable minority of modern writers have seen this. There was discussion and debate about it on both sides of the Atlantic in the nineteenth century. It is clear that Sugden, for example, actually did go back to the Year Book, looked at the report so often cited, and noted what it did and did not say in this context.[9] The plea roll entry was found and set out, translated, in an article by G.E. Woodbine in the 1920s.[10] Considerable information was thus available to those who consulted academic literature. If this knowledge faded into obscurity, at least in England, A.W.B. Simpson’s 1975 history of ‘the law of contract’ again amplified the point about a lack of clarity as to what was actually decided in The Prior’s Case.[11] This was picked up in the 2000 edition of ‘Megarry and Wade’,[12] and so brought within the corpus of material one might reasonably expect to be consulted by those with a serious, scholarly, interest in Land Law. It does not, however, seem to have ended the simplistic accounts of the case in court or practitioner text in England: a matter which some of us might take to be a sad indication of the limited ‘impact’ on legal practice of even leading academic authors.
I will return to the matter of inaccuracy with regard to the outcome of the case shortly, but will, first, note one further issue which speaks of citation without reading, and that concerns the name given to the case. As mentioned above, there is variation in the names assigned to Y.B. Hil. 42 Edw. III fo. 3 pl. 14. Such variation is neither unusual nor necessarily objectionable. The Vulgate Year Book which is cited does not give the case a name, and does not fully name the parties. There is, in fact, an ‘official source’ which does give the parties’ names: the plea roll, which, as mentioned, has long been known to legal historians.[13] This shows that the claimant was a certain Lawrence Pabenham and the defendant(s) the prior (and convent) of Canon’s Ashby, Northamptonshire.[14] If one were confined to using the Year Book source cited alone, one would not have that information, of course. Having read only that source, whether in original, or in translation, one might well call the case after one of the parties. Since a small error crept into the Year Book, misreading a B as a K and calling the claimant Lawrence Pakenham, rather than Pabenham, it might be called ‘Laurence Pakenham’s Case’ (which would be more conventional) or ‘The Prior’s Case’. ‘The Prior of Packenham’s Case’, [15] however, muddles the parties in a way which is hard to imagine would be done by anybody who had skimmed Y.B. Hil. 42 Edw. III fo. 3 pl. 14 or a translation of it.[16] Leaving aside the fact that Pa(c)kenham, in Suffolk, never actually had a priory,[17] a cursory glance at the Year Book report cited would demonstrate that it neither assigns the defendant in this case that title nor says he was prior of such a priory. The chapel in which the singing was desired by the claimant was said to be in the claimant’s manor ‘of K’, so there is no reason to deduce from that the fact that the prior was ‘Prior of Pa[c]kenham’, and nor must it be supposed that the prior in this case had a priory located in the place from which the surname of the claimant was derived. This does seem to be a matter of some carelessness with the cited source.
Looking only at the source which is usually cited, then, we can conclude that there is a lack of fit between what the evidence says and the account which is given of it in some modern legal argument. If we go beyond that single source, however, as would be standard practice for the legal historian, and as Woodbine did, almost a century ago, the discrepancy between orthodox account and the facts of the medieval dispute is reinforced, and, indeed, becomes starker. The plea roll backs up the Year Book account of adjournment,[18] and of the alternative arguments to enforceability of the covenant made for the claimant, based on claims of heirship and prescription.[19] We learn that the problem with his claim ‘as heir’ was that another living person had a better claim to be the covenantee’s heir: a minor called Margaret, who was descended from the covenantee via a senior branch to that from which Lawrence sprang.[20] In addition, both the plea roll and also an additional source give some further information about the underlying ‘deal’ for the singing of divine service, which serves to take it further away from the modern ‘running of the benefit of freehold covenants’ situation, with which it tends to be connected. Lawrence’s case, as set out in the plea roll, is based on an agreement, made by indenture in 1229-30, between his great grandfather, Hugh, and the then prior and convent of Canons Ashby. This agreement provided for singing at the chapel of Hinwick (Bedfordshire) three times per week, in perpetuity. Lawrence claimed that, though the obligation had been performed for almost a century, it had not been done for twenty years: he had not been able to get the prior and convent to keep to their agreement, and he claimed 40 l damages for this. A copy of a composition document in the cartulary of Canons Ashby appears to add another fact: this was not a unilateral undertaking, or full exchange for a grant of land: Hugh and heirs had undertaken to give the canons eight shillings a year.[21] The inclusion of a payment from Hugh and his heirs heightens the sense of ‘contractual’/exchange, or perhaps personal obligation, over an idea of modern-style ‘annexation to land’ in this arrangement. To a legal historian, it is a reminder of the breadth of the fact-scenarios to which actions of covenant might conceivably be thought relevant at this time, going well beyond those anchored to land, and also of the involved and dynamic story of the development of writs and thinking in this area of promises or bargains with regard to the performance of divine services, which might be framed in a number of different ways.[22] In short, although Lawrence Pabenham’s action was made within the framework of the action of covenant, that really does not make the case a clear authority on modern freehold covenants, considered in the Land Law context. The word ‘covenant’ may be something of a ‘false friend’ here, and this appears to intensify the sense that reference in modern legal practice and writing to The Prior’s Case is less than helpful in this context. I am not suggesting that it would be appropriate to expect modern lawyers to chase down plea rolls or cartularies, but the additional facts do reinforce the point that this case was not decisive on the benefit of covenants in the modern sense running with land.
Law v. history: historical hearsay and unreliable evidence
Some of the most prominent recent work on misuse of medieval legal sources has been in the area of abortion rights, a much more controversial area than freehold covenants.[23] There is a lot less heat in discussions of the running of the benefit of covenants: we might debate the merits of a system of private property in land, but if we have such a system, the idea that the benefit of covenants might run is relatively sensible, and unlikely to bring people out on to the street. The lack of political heat in the area, however, makes it, in many ways, a good place from which to start a consideration of the issue of the (mis)use of history in law, free from possible accusations of instrumentalism.
As far as the practical workings of the common law are concerned, it probably does not really matter that one of the sources cited for a rule about the running of the benefit of freehold covenants may be incorrect. Pragmatism and a sort of doctrinal prescription are likely to win out over historical purity, and there is unlikely to be an outbreak of legal Donatism, tearing down the whole doctrine because of this longstanding inaccuracy with respect to one particular piece of medieval litigation. There is, however, a point in raising the issue of modern lawyers’ use of older ‘authorities’, and that point is to strengthen the quality and reputation of legal scholarship and practice as intellectual endeavours. Clearly, it is not essential for lawyers and legal writers to ‘name-check’ very old material in this context: both academic texts and practitioner books can certainly manage to give a coherent account of freehold covenants without mentioning The Prior’s Case at all.[24] Including it, therefore, is a clear choice, calculated to give a certain impression, both of the law (as ancient) and of the author (as learned). From the point of view of the legal historian at least, inaccuracy with older legal sources looks like intellectual pretension: making a show of knowledge, based on an idea that it is impressive to hark back to the distant past, even if this is not necessary, but without the willingness to do the work of understanding it. We might see it as inconsistent both with general academic standards, and also with the common law’s own reservations about hearsay evidence,[25] though, in another sense, there is a certain continuity with the strong ahistorical streak running through common law practice, from at least the time of Edward Coke.[26] Modern legal scholars certainly do not seem unduly perturbed by the possibility that ‘what a later judge declares to be the ratio of a case might actually be a different proposition than what the judge giving the initial judgment intended’.[27] Still, this is not quite the same as saying that an older law report said X when it clearly did not, and it does seem worth considering why this happens.
One contributing factor is certainly the fact that most lawyers have not studied legal history. Legal history is not a compulsory part of law degrees, and, of course, not all lawyers have law degrees in any case. It is certainly unrealistic, now or in the near future, to expect modern legal practitioners to become experts in medieval sources or legal history. Nevertheless, there are some fairly straightforward aspects of ‘practical legal history’ which could be acquired fairly straightforwardly, and would avoid some of the misunderstanding and misuse seen here. In particular, for those citing medieval ‘Y.B.’ sources, a basic understanding that there may be a difference between older and modern legal categories, and that there is a difference between older and modern legal sources does not seem too much to ask.
A key misunderstanding which is revealed by the treatment of The Prior’s Case is the apparent assumption that Year Book material is essentially similar to a modern law report. These items, however, are profoundly different in nature to a report from the post-1865 period, or a modern judgment of the sort published online by courts.[28] They were not ‘official’ publications, were not treated as authoritative texts of the modern sort in their own time, and, as The Prior’s Case demonstrates, did not necessarily include either an outcome or a ratio.[29] They were writings produced for the instruction of lawyers pleading in the royal courts, modelling arguments by lawyers, exchanges with the judges, as they undertook the task of reaching a single issue to be put to proof. The way in which premodern courts and lawyers worked was very different to those in the ‘post-enlightenment’ world. As Joshua Getzler has put it, ‘The common law until well into the eighteenth century may be described as a type of tacit or craft knowledge, learnt by doing, and resistant to formal or rational doctrinal statement.’[30] Minimal additional training or study would probably be some restraint on lawyers and legal writers who wish to present its sources as if they were such formal, rational, doctrinal statements.
There are also some obvious ways in which methods of reasoning and use of authority in common law make distortions of older sources more likely. One of these is the technique of reading history backwards, favouring recent sources over sources contemporary to events in legal history. As F.W. Maitland, for example, noted long ago, while a historian would instinctively start from the earliest, original sources, this is not the technique of the common lawyer.[31] This remains the case. For example, even when writing for a book arguing for greater historical sensitivity amongst Land Lawyers, a lawyer-author reaches for the eleventh edition of Blackstone and a nineteenth-century edition of Coke, rather than those versions published in the eighteenth and seventeenth centuries respectively.[32] If we return to the Bath Rugby case, and look at how Nugee LJ’s account of The Prior’s Case was arrived at, it becomes apparent that he has used a ‘tracing back’ method, starting with a judgment from In Re Ballard’s Conveyance, a case from the 1930s,[33] and working backwards through a line of precedents, to an account of The Prior’s Case in Sir Edward Coke’s report of Spencer’s Case (1585).[34] It does not appear that he thought it necessary to go any further. Such a method, hallowed by common law practice as it may be, is, clearly, likely to increase the chances of distortion. This is made all the more likely by the particular reliance upon, and deference to, Sir Edward Coke seen here and in the work of many others who cite the Year Book account of The Prior’s Case. Coke was a very important figure in the history of law, but one long known by legal historians to have been – as we would now see it – free with facts in his accounts of litigation from his own time, and with older legal sources.[35] This is not the place for an in-depth assessment of Coke, and his interpretations do not necessarily need to be seen as dishonest, but rather an effort to tidy things up, to bring an older legal world within the norms of his own day. It should be noted, however, that his approach might serve to present as substantive rules parts of a tentative discussion about pleading, as here, and that later lawyers’ lionisation of Coke and tendency to take his work uncritically and deferentially, can perpetuate and amplify his distortions.[36]
On a smaller scale, distortions may also be perpetuated or amplified by another tradition in the literature of modern legal practice: the ‘textbook tradition’, and specifically the ‘practitioner work tradition’. This sees a substantial hallowed work on a particular area of law passed on over an extended period, to be curated by new editors.[37] Such new editors are, of course, at liberty to change a book radically, but may find it to be the line of least resistance not to do so, perhaps particularly when the ‘line of descent’ is personal as much as professional. In the relevant context of freehold covenants, there is a good example of this: the tome known as ‘Preston and Newsom’, which passed from these paired authors, after the early death of C.H.S. Preston, to Newsom alone, then to Newsom’s son, later joined by a junior barrister in Newsom junior’s chambers.[38] This latest edition of the work continues to list ‘The Prior of Packenham’s Case’, and to give the old story of the case, while the author of its main rival, which first came out in 1999, starting afresh and unburdened by existing text, did not feel the need to bolster its intellectual credentials with this appeal to the medieval at all. There certainly seems to be a good argument for legal writers to avoid distortions and the appearance of intellectual pretension by following this practice, and for those responsible for new editions of older works to pay attention to the accuracy of their use of historical legal material.
Concluding thoughts
A memorial brass to Lawrence Pabenham (and his two wives) in the church at Offord D’Arcy, gets the date of his death wrong (or at least gives a date different to that to be found in ‘official records’).[39] Lawrence, the claimant in what has come down to us as The Prior’s Case, thus seems to have been a man who attracted inaccuracy and re-interpretation, from a point soon after his death. We cannot, of course, hope to obtain ‘the whole truth’ about a man of the fourteenth century from the documents and other evidence left behind, and it would certainly be naïve to assume that he, or his legal representatives, told his story in the litigation with which we are concerned in ways entirely ‘unspun’ and consonant with the truth. Nevertheless, while the whole historical truth, especially at such a distance, is unattainable, there is still some merit in avoiding clear untruths.
While citation of the Year Book report of The Prior’s Case for a proposition regarding the benefit of covenants has tradition behind it, as this paper has emphasised, the usual account of the case is inaccurate and heavily dependent upon second hand, and more remote, summaries of the report. In the predominant account of The Prior’s Case, legal practice has, in effect, created its own rewritten versions of the past, for use in modern law. Fiction, or disregard for the truth, has not been unknown to the common law, over its long history, and elements of fiction remain in some parts of Land Law in particular.[40] Gratuitous inclusion of supposedly historical ‘colour’ (perhaps a particular issue in Land Law)[41] and the casual attitude to the Year Book report in this case which is not infrequently seen, do not, however, do anything to uphold the reputation of intellectual rigour of the common law.
What might be done to cure this problem? As an academic legal historian, I would certainly be in favour of a greater place for legal history within the Law School syllabus, as Russell Sandberg suggests,[42] in order to ensure a better grasp of the history of law in general, or else of the widespread use of legal historians as (well-paid) consultants in cases with a historical element, but, more modestly, some improvement in this area might be secured by some instruction for students, judges and advocates in the nature, limitation and appropriate use of older law reports and other legal sources, in order to ensure that these were only used when necessary, and were not used incorrectly. An hour or two with some Year Book translations would do a great deal to make sure that the differences from modern law reports was understood, and there was an appreciation of what lay behind those ‘Y.B.’ citations in footnotes. A class on not being unthinkingly deferential to Coke’s versions of legal events would also be useful. Those who write about law could also be encouraged to to be more honest in their citation practices. It does not seem an unreasonable expectation that those who cite older sources in their published work should either actually have read them, or should make it clear that they have not. Those of us who mark student dissertations expect this level of truth, after all: should legal writing not also live up to this standard? Challenging inaccuracy, and questionable method, is one way in which academics should seek to have an ‘impact’ upon the profession, and, returning to the theme of the SLS conference, if they are prepared to admit their need, one area in which practising lawyers might have something to learn from academic legal historians.[43] There are lessons here for legal historians too, however. Most of us would bridle at the suggestion that legal history is in a ‘comatose state’,[44] but it would probably not be inaccurate to say that, while it is fully conscious, it is not very adept socially, and has tended to remain on the margins of legal academia and wider legal discussion. This, I hope, is changing, but those of us involved in legal history, and medieval legal history in particular, an area seen as something of a niche, technical, ‘geeky’ area, would certainly be well advised to learn to communicate with lawyers and legal academics in a clear, inclusive and engaging way. Talking to strangers at parties: a challenge. Maybe blogs count though?
Gwen Seabourne
August 2024.
[1] It is sometimes assigned the date 1369: see, e.g., Law Commission Consultation Paper No 186, Easements, Covenants and Profits à Prendre, 7.12. For modern references, see, e.g.: M. Dixon, J. Bignell and N. Hopkins (eds), Megarry and Wade the Law of Real Property 10th edn (London: Sweet and Maxwell, 2024), 31-014; L. Turano, ‘Intention, interpretation and the “mystery” of s. 79 of the Law of Property Act 1925’, Conveyancer and Property Lawyer (2000) 377-97, 379; G.L. Newsom, E. Paton, C. H. S Preston, and G. H Newsom, Preston & Newsom Restrictive Covenants Affecting Freehold Land, 11th edn (London: Sweet and Maxwell/Thomson Reuters, 2020), Table of Cases and 1-023.
[2] This was a case concerning a 1922 covenant against certain commercial uses of a piece of land, and whether it prevented a rugby club from developing the land as desired.
[3] at 37, quoting Clauson J, in In Re Ballard’s Conveyance [1937] 1 Ch 473 at 482, who was, in turn, coming at The Prior’s Case through Coke’s account in Spencer’s Case (1585) 5 Co Rep 17 b.
[4] Use of the YB report as authority for the rule that the benefit of a covenant can pass to the covenantee’s successors by annexation to the land, see, e.g.: B. McFarlane, The Structure of Property Law (Oxford: Hart, 2008), 43; K. Gray and S.F. Gray, Elements of Land Law 5th edn (Oxford, 2008) 3.3.4; Law Commission Consultation Paper No 186, Easements, Covenants and Profits à Prendre, 7.12.
[5] For US discussion, see, e.g., M.J. Festa, ‘Applying a usable past: the use of history in law’, Seton Hall Law Review 38 (2008) 479-554. For criticism of the use of history in modern court proceedings, see, e.g., C. Wide, Protest and the Criminal Law (Westminster: Policy Exchange, 2022). For discussion of meaning and time in the context of legislation see, e.g., M.D. Kelly, ‘Applying laws across time: disentangling the ‘always speaking’ principles’, Oxford Journal of Legal Studies 20 (2024), 1–28. See also P. Goodrich, ‘Poor illiterate reason: history, nationalism and common law’, Social and Legal Studies 1 (1992), 7-28, 17.
[6] M. Wonnacott, Forgotten Land Law (Clark NJ: Talbot Publishing, 2022).
[7] The ‘record’, or ‘official’, government, source, The National Archives, Kew, at CP40/430 m.60 (1368H).
[8] For a translation, see, e.g., H.A. Bigelow, Introduction to the Law of Real Property: Rights in Land (St Paul: West Publishing Co., 1919), 427-9.
[9] E. Sugden (now Lord St Leonards), A Concise and Practical Treatise of the Law of Vendors and Purchasers of Estates 13th edn (London: H Sweet, 1857) 474-475: ‘The case stands alone, but the grounds upon which it depends have never been explained’; T.A. II, ‘Covenants for title running with Land’, American Law Register 11 (1862-3), 193-211, 257-73, 201. Attention seems to have been greater in the US. For example, O. Wendell Holmes, The Common Law (London: Macmillan, 1881), 395, and Pakenham’s Case is in J. Chipman Gray, Select Cases and Other Authorities on the Law of Property, 2nd edn, (Cambridge MA: Harvard University Press, 1906-1908) , vol. 2, 357.
[10] G.E. Woodbine, ‘Pakenham’s Case’, Yale Law Journal 38 (1929), 775–81.
[11] A.W.B. Simpson, A History of the Common Law of Contract: the rise of assumpsit (Oxford: Clarendon Press, 1975).
[12] C. Harpum, M. Grant, S. Bridge (eds), Megarry and Wade The Law of Real Property (London, Sweet and Maxwell, 2000) 16-014.
[13] See Woodbine, ‘Pakenham’s Case’.
[14] CP 40/430 m.60; ‘Houses of Austin canons: the priory of Canons Ashby’, in R.M. Serjeantson and W.R.D. Adkins (eds), A History of the County of Northampton: Volume 2 (London: Victoria County History, 1906), 130-133.
[15] See Newsom and Paton, Preston & Newsom Restrictive Covenants 11th edn, Table of Cases and 1-023.
[16] This version is neither to be found in the Year Book, nor the passage from Coke on Littleton, 385a, nor Smith’s Leading Cases (also cited in Preston and Newsom).
[17] See, e.g., D. Knowles and R. N. Hadcock, Medieval Religious Houses of England and Wales (London, Longman, 1953); ‘Religious Houses: Introduction’, in W. Page (ed.), A History of the County of Suffolk: Volume 2, (London, 1975), 53-56.
[18] The conventional formula showing that the court declined to give judgment at present was employed: see J. Rose, ‘Doctrinal development: legal history, law, and legal theory’, Oxford Journal of Legal Studies, 22 (2002), 323–340, at 328.
[19] The argument based on land holding was that Lawrence was tenant in tail of the land or manor to which the chantry was appurtenant (Hinwick), so, while Margaret might be ‘senior’ in terms of blood, he had the link via the land, and that meant that only he could in fact sue on this.
[20] We may note that in the Year Book, in Coke and ever thereafter, Margaret is written out of the story, which becomes one of an older and younger brother. This is interesting in its instinctive effacing of females, but ultimately not crucial to the legal argument.
[21] British Library MS Egerton 3033 sv Hynewyke, unnumbered membrane, ‘Copia cantarie de Pabenham’.
I am left wondering whether the payments were kept up, and also whether part of the background to Lawrence’s dispute with the canons might have been that it was an attempt to obtain an advantage without fulfilling the other side of the bargain. In the circumstances, since Lawrence was not Hugh’s heir, might success for him have resulted in the situation that he obtained an advantage from the canons, while the covenantee’s actual heir(ess) had the obligation to pay the annual sum to the canons? He may also have been attempting to bypass the enforcement/dispute mechanism apparently set up in the composition document. Furthermore, we may also note that, despite suggestions of the irrelevance of the covenantor’s landholding, Canons Ashby priory did in fact have land in Podington/Hinwick): ‘Houses of Austin Canons’. Canons Ashby Priory’s cartulary is MS Egerton 3033 in the British Library. For reference and descriptions, see: G. Baker, History and Antiquities of the County of Northampton 2 vols (London, 1822), II, 10; G.R.C. Davis, Medieval_Cartularies_of_Great_Britain_and_Ireland (revised by C. Breay, J. Harrison and D.M. Smith (London: British Library, 2010), 157.
[22] See, e.g., R.C. Palmer, English Law in the Age of the Black Death, 1348-1381: a transformation of governance and law (Chapel Hill: University of North Carolina Press, 1993), 66-8; T.F.T. Plucknett, Legislation of Edward I (Oxford: Clarendon Press, 1949), 92-92); D.J. Ibbetson, Historical Introduction to the Law of Obligations (Oxford: Oxford University Press, 1999), 38.
[23] K. Shoemaker, M. Pardon and S. McDougall, “Abortion was a crime”? Three medievalists respond to ‘“English cases dating all the way back to the 13th century corroborate the treatises’ statements that abortion was a crime”’, The Docket: Law and History Review (2022).
[24] See, e.g., M. George, Antonia Layard, and M. P. Thompson, Thompson’s Modern Land Law 8th edn (Oxford: Oxford University Press, 2022), 12.3.2; M. Dixon, Modern Land Law 11th edn (Abingdon, Oxon: Routledge, 2018); A. Nair and J-A. MacKenzie, Textbook on Land Law 19th edn (Oxford: Oxford University Press, 2023), c. 26; A.M. Francis, Restrictive Covenants and Freehold Land: A Practitioner’s Guide 5th edn (Lexis/Nexis, 2019).
[25] See, e.g., R. Munday (ed.), Cross and Tapper on Evidence (Oxford: Oxford University Press, 2018), c. 12.
[26] See Goodrich, ‘Poor illiterate reason’, 17.
[27] A. Gillespie and S. Weare, The English Legal System, 9th edn, (Oxford: Oxford University Press, 2023), 78.
[28] See, e.g., J.H. Baker, Introduction to English Legal History 5th edn (Oxofrd: Oxford University Press, 2019), 188-95.
[29] Woodbine, ‘Pakenham’s Case’, 775.
[30] J. Getzler, ‘Legal history as doctrinal history’, in M.D. Dubber, and C. Tomlins (eds), The Oxford Handbook of Legal History, (Oxford, 2018) 171-92, 185.
[31] F.W. Maitland, ‘Why the history of English law is not written’, in H.A.L. Fisher (ed.), Collected Papers of F.W. Maitland, vol 1 (1911), 480-97, 491: ‘What the lawyer wants is authority and the newer the better; what the historian wants is evidence and the older the better.’. See also the comments on Coke’s questionable use of medieval sources.
[32] M. Wonnacott, Forgotten Land Law (Clark NJ: Talbot Publishing, 2022), vii. For an example from a different area of law, see, e.g., R. v. Brown [1994] 1 AC 212, 239E, 262B, 277B, where definitions of mayhem/maim, an offence in existence from the medieval period, is taken from the eighth edition of Hawkins’s Pleas of the Crown, from 1824.
[33] Clauson J, in In Re Ballard’s Conveyance [1937] 1 Ch 473 at 482
[34] 5 Co Rep 17 b. See, similarly, A.E. Randall, ‘Covenants running with the land’, Law Quarterly Review 25 (1909), 280-283, 280.
[35] See, e.g., J.H. Baker, ‘New light on Slade’s Case’, Cambridge Law Journal 29 (1971), 51-67; Getzler, ‘Legal history as doctrinal history’, 185.
[36] Maitland, ‘Why the history of English law is not written’, 491; G. Seabourne, ‘Coke, the statute, wives and lovers: routes to a harsher interpretation of the Statute of Westminster II c. 34 on dower and adultery’, Legal Studies 34 (2014), 123–42.
[37] In the academic textbook context, this has been commented on by, for example, David Sugarman and Russell Sandberg: Sandberg, Subversive Legal History, 204-205; David Sugarman, ‘Legal theory, the common law mind and the making of the textbook tradition’, in W. Twining (ed) Legal Theory and the Common Law (Oxford: Blackwell, 1986) 26-61, 28, 52.
[38] This work was originally written by Cecil Herbert Sansome Preston and George Harold Newsom, its first edition being in 1939, its most recent, at the time of writing, in 2020. After Preston died in 1940 (see Times, 8th June, 1940, 4; Times, 17th June 1941, p. 7., his collaborator, Newsom, published the second to fifth editions. G.H. Newsom was assisted for the sixth and seventh editions by his son, George Lucien Newsom, a barrister at Guildhall Chambers, Bristol, and later a first tier tribunal (property chamber) judge. Newsom junior took over alone for the eighth to tenth editions, and then was joined by a member of his chambers and New College, Oxford, graduate, and later a tribunal judge, Ewan Paton, for the eleventh edition. The personal connections between the authors/editors are emphasised in the introduction to the 2020 edition.
[39] This gives his death as 10th June, 1400, while records put it at 1399: W. Lack, H.M. Stuchfield and P. Whittemore, The Monumental Brasses of Huntingdonshire (London: Monumental Brass Society, 2012).
[40] Consider, for example, the doctrine of lost modern grant: see, e.g., Thompson’s Modern Land Law 11.6.2.2.
[41] See, e.g., A.L. Brophy, ‘Doing things with legal history: historical analysis in property law’, in Dubber and Tomlins, Oxford Handbook of Legal History, 923-940, 923. Certainly, the scholar of modern Land Law with some knowledge of legal history will notice the lack of reticence at bringing in medieval materials is not confined to ‘law reports’, but includes, for example, references to the treatise known as Bracton, included without necessarily showing a grasp of current legal historical thinking on the nature of this treatise. See, e.g., Rahman v Zaman [2024] EWHC 1290 (Ch) at paragraph 65, and compare T.J. McSweeney, Priests of the Law: Roman Law and the Making of the Common Law’s First Professionals (Oxford: Oxford University Press, 2019), 1-2; P. Brand, ‘The date and authorship of Bracton: a response’, Journal of Legal History 31 (2010) 217, 220–22, 225 and works cited therein.
[42] Russell Sandberg, Subversive Legal History: a manifesto for the future of legal education (Abingdon: Routledge, 2021).
[43] It has been noted in another context that common law courts see old law as their domain, part of their tradition, and may not be willing to take correction from those with expertise in history: S. Erman, and N. Perl-Rosenthal, ‘Historians’ amicus briefs: practice and prospect’, Dubber, and Tomlins, Oxford Handbook of Legal History, Oxford, 2018), 1095-1114, 1102.
[44] Daniel Siemens, ‘Towards a new cultural history of law’, InterDisciplines 2 (2012) 18, 19, noted in Sandberg, Subversive Legal History, 199, which expresses the problem in more informed and measured fashion.