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New book by W&M law professor studies early history of the common law

  • Thomas J. McSweeney
    Legal history:  Thomas J. McSweeney's first book offers a new understanding of the early history of the common law, the history of Roman and canon law, and the history of the legal profession.  Photo by David F. Morrill
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It’s been an eventful year for Thomas J. McSweeney. In August he was promoted to full professor with tenure at William & Mary Law School. During the fall semester, he was a visiting fellow at Clare Hall at the University of Cambridge, and in January, Oxford University Press published his first book.

That book, "Priests of the Law: Roman Law and the Making of the Common Law’s First Professionals," reflects McSweeney’s background as both legal scholar and historian. Published as part of the Oxford Legal History series, its bold agenda offers a new understanding of the early history of the common law, the history of Roman and canon law and the history of the legal profession.

"'Priests of the Law' is about a group of justices who were working in the courts of the common law, but who thought of themselves as jurists of the civil law,” McSweeney says. “We usually think of the common law and the civil law as two distinct legal systems, and there’s a tenacious narrative that presents the common law as a uniquely English, wholly insular, institution.”

McSweeney notes that there is often a heavy dose of superiority in this story, with people working within common-law systems often arguing that the common law is superior to the civil law.

“The justices I write about in 'Priests of the Law' didn’t think that way at all,” McSweeney says. “They wanted to make the case that the common law was actually part of a broader civil-law tradition.”

Launching his work from a close study of the thirteenth-century treatise "Bracton"one of the most important texts of the early common law — and decades of critical appraisal of "Bracton," McSweeney didn’t see much writing on what he thought was the really big question: why did anyone think it was important to produce such a massive, 1,200-page treatise?

His conclusion was that the group of judges who wrote "Bracton" believed that the practice of writing a treatise was as important as the end product.

“In the book I argue that the practice of writing this treatise, and some other texts produced by the same circle of justices, was actually a way of making the claim that these justices were jurists of the universal culture of Roman and canon law,” McSweeney says. “They had been trained in Roman and canon law and had learned through their study that jurists were characterized by the types of texts they produced. They set out to produce those types of texts.”

McSweeney’s book covers a lot of territory, and notes that the justices who wrote "Bracton" left another legacy of interest to modern lawyers, namely their dual, often conflicting, work as royal servants and as “priests of the universal law.”

“The justices were agents of royal power, but their worldview was also inscribed with a language for criticizing illegitimate exercises of royal power,” McSweeney says. “Law was a powerful tool of kingship, but it could also be used to limit kingship.”

McSweeney’s book grew out of his doctoral dissertation, and took him to several archives and manuscript collections. At the British National Archives, he looked at some rolls of cases decided by Henry of Bratton, one of the authors of the treatise, in the 1250s that are still considered public records. He also examined several manuscript copies of "Bracton" and a collection of cases in the British Library that has been dubbed "Bracton's Note Book."

“That one has marginal annotations that were probably made by Bratton himself,” McSweeney says. “It’s always cool to think you’re holding a book that was held by a royal justice nearly 800 years ago.”

McSweeney earned his B.A. from William & Mary, where he was a James Monroe Scholar, and continued his studies at Cornell University, where he earned a J.D./LL.M. as part of Cornell's program in international and comparative law, and an M.A. and Ph.D. in history. After completing his Ph.D., he worked for two years as a visiting assistant professor at Cornell Law School, teaching property and legal history. During his time at Cornell, he won three teaching awards and was awarded research grants to work at the Huntington Library, the British Library and the British National Archives.

McSweeney joined the William & Mary faculty in 2013. In 2015, he was selected as a fellow of the American Society for Legal History’s Hurst Summer Institute in Legal History. In 2018, William & Mary bestowed on him a Plumeri Award for Faculty Excellence, and in 2019 the graduating class at William & Mary Law School presented him with the Walter L. Williams, Jr., Memorial Teaching Award.

To learn more about Professor McSweeney’s "Priests of the Law" and other research, read this recent Q&A.