In 1964, the Chair of Legal History at ÐÓ°ÉÂÛ̳ - which was held since its creation in 1931 by Theodore Plucknett - was taken by S. F. C. (‘Toby’) Milsom. He had previously held posts at Cambridge and Oxford - with a brief interlude at ÐÓ°ÉÂÛ̳ in 1955 - and had already developed a radically innovative vision of the development of the common law. But it was in his years at ÐÓ°ÉÂÛ̳ that he wrote his most important works, including Historical Foundations of the Common Law (1969), and The Legal Framework of English Feudalism (1976). Like the great pioneer of English legal historical research F. W. Maitland, Milsom’s research on the early history of the common law depended on detailed archival work at the Public Record Office, then conveniently located around the corner in Chancery Lane.
Milsom’s genius lay in the imaginative insights he brought to the reading of these documents, which revolutionised some of the old orthodoxies. For Milsom, many of the puzzles found in the legal doctrines of the past could only be resolved if one tried to understand them through the eyes of the lawyers of the age, and to recover the unexpressed assumptions which informed their actions. For instance, it was by focusing on the very hierarchical nature of the feudal relationship around which all medieval landholding was based that Milsom was able to perceive that many of the cases which came before the king’s justices in the later twelfth century were disputes, not between social equals, but between tenants and lords.
This in turn led to the insight that the birth of the common law was to be attributed not to a conscious policy of the crown, but to the demands of tenants who had been denied justice by their lord’s court. As he later recalled, it was while waiting for a train home from Charing Cross that his key insight first struck him. Milsom’s project was also a broader one of historical jurisprudence, for his fine-grained research also revealed how legal ideas developed and mutated. In his view, legal change in the common law tradition was often the result of legal opportunism, as lawyers adapted old forms for new purposes simply to win the case for their clients. Although ÐÓ°ÉÂÛ̳ proved to be a congenial environment for him to develop his ideas, Milsom did not enjoy the atmosphere at the School in the age of student protests in the late 1960s, when he served on the General Purposes Committee, and in 1976 he returned to a chair in Cambridge. If out of sympathy with the student radicals of 1968, however, he was in his time at ÐÓ°ÉÂÛ̳ both an enthusiastic teacher and a dedicated colleague.