PANEL: Texts and Reality
Saturday, October 24, 8:30-10:00
Chair: Bruce O'Brien, Department of History, Mary Washington College
When Ships are Lost at Sea in Bracton's De legibus
Timothy G. Sistrunk, Department of History, California State University at Chico
In March of the year 1250, Matthew Paris observed that the moon shown red and that stormy seas swallowed ships struggling on the English Channel. The loss of vessels at sea in circumstances like these created many legal difficulties in this period. English maritime custom, expressed in the Code of Oléron, had established various procedures for dealing with shipwrecks and provided for goods salvaged on the shore, particularly, by distinguishing whether or not they were lost or abandoned. This code borrowed explicitly from Roman law which had treated the loss of ships and cargo in many contexts that are not easy to reconstruct fully. Some of the ancient law's most important provisions were based on earlier rules developed by the maritime peoples of Rhodes, which seemed to allow salvagers to despoil a wreck with impunity. Medieval civil lawyers considered these texts and together with legislation by Frederick Barbarossa, they qualified their provisions. Popes and canon lawyers directly addressed the question as well. The ideas of the learned lawyers were inherited by English Common law jurists who were articulating their own practices in the service of kingly prerogatives and mitigating the customs of English coastal towns. This process is observable in Henry Bracton's famous treatise. In the context of defining the King's jurisdiction over maritime matters, Bracton utilized the law of wreck fashioned by the Ius commune and altered it to express an English notion of monarchical sovereignty over the seas.
Extraordinary Privilege: The Trial of Penenden Heath and the Domesday Inquest
Alan Cooper, Department of History, Harvard University
The trial of Penenden Heath of 1072 has a famous place in the early history of English law. Over the course of three days, Archbishop Lanfranc argued for and won his church's right to lands and customs usurped by William I's half-brother Odo of Bayeux, earl of Kent. According to the accounts of the trial, Lanfranc's victory was secured by arguments based on Anglo-Saxon law, which were vindicated by the presence of Aethelric, bishop of Chichester, "a very old and wise man, learned in the laws of the land, who was brought at the king's request in a cart." This image has served to represent the relationship of Anglo-Saxon and post-Conquest law. The trial is, however, known from two narratives, one of which, the older, only survives in a truncated version. The other, slightly later version, contains an inflated version of the privileges, and, moreover, concludes with a long description of the jurisdiction of the archbishop over offences committed on the king's highway. A close analysis of the relationship between these two documents, and of related documents, suggests that the longer document was compiled after the monks of Christ Church, Canterbury failed to have their claims to these extraordinary privileges enshrined in Domesday Book. This interpretation of the Penenden Heath narratives suggests that they should serve less as proof of the continuation of Anglo-Saxon law and custom after the Conquest, and more as an example of the undermining of Anglo-Saxon governance by the power of private interests.
Giovanni da Legnano and the Law of War
Jasonne Grabher O'Brien, Department of History, University of Kansas
The first systematic legal treatment of questions arising from war and other forms of sanctioned violence in a single work was completed by Giovanni da Legnano about 1360. His Tractatus de bello, de represaliis et de duello summarized the work of previous medieval thinkers, and laid the foundation for subsequent early works on this branch of international law. Medieval legal scholars had long concerned themselves with the law of war, but Giovanni was the first to use equally both Roman and canon law; he created the first true ius commune law of war. In addition to this blending of the learned laws, Giovanni also took into account the political and social realities of fourteenth century practice. His work, therefore, is not simply a catalogue of previously formulated theories, but an attempt to update ius commune principles to ensure their continued vitality. Giovanni's work is therefore important as both a case study in ius commune legal formation and a vital first step toward the creation of an early modern international law of war.
Comment: The Chair
tory would reunite the perspective of social history with that of recent intellectual history. At the core of this agenda would be the deconstruction of the existing canon of American constitutional history. The critique of the canon contains two inter-related methodological process: ideological deconstruction and historical reconstruction. The first step is designed to expose the ideological forces that have shaped the creation of an approved body of texts and demonstrate the historical forces that favored some texts over others. The second step involves unearthing those texts that did not achieve canonical status. When the canonical and non-canonical are examined together, it is possible to restore a voice to alternative constitutional visions. In place of the dominant Whig and declension narratives that shaped so much writing about American constitutional history, a post-modern constitutional history would focus on the past as a contested terrain in which competing visions vied for dominance.