The Early Pattern of the Common Law

The Early Pattern of the Common Law Nellie Neilson The American Historical Review, Vol. 49, No. 2. (Jan., 1944), pp. 199-212. Stable URL: http://links.jstor.org/sici?sici=0002-8762%28194401%2949%3A2%3C199%3ATEPOTC%3E2.0.CO%3B2-2 The American Historical Review is currently published by American Historical Association. Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at http://www.jstor.org/about/terms.html. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at http://www.jstor.org/journals/aha.html. 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XLIX, No. 2 The Early Pattern the Common Law I T HAS been pointed out to me by a kind and helpful critic that of late years scholars sitting in this "sliddery" seat, as King James would have called it, have more often presented for your consideration certain generaliza- tions drawn from their own experiences in the study of history than specific subjects of discussion drawn from their own field. My life has been spent in the Middle Ages, however; my field of work lies there, and I can not forego the opportunity to talk about them, especially since they seem to me to oAer material pertinent to our own time. Medieval English law seems very far from the world of today, and in the opinion of many may well be left unstudied until the war is over and we can once again enjoy the pleasant pursuit of the nonessential. Perhaps the differing of opinion among medievalists is only self-delusion, but I hope not. Surely it is essential that the history of the great contestants should be known, not only for its own sake but also for the growth of political and social ideas "Presidential address delivered before the American Historical Association at New York on December 29, 1943. The author is professor emeritus of history at Mount Holyoke College. '99 - - 200 Nellie Neilson whose birth lies hidden in the remote past but whose influence has had an important share in forming present opinion and action resulting therefrom. The roots of the present lie deep in the past, a truism that we cannot today despise if we seek a solution of our own difficult problems. Especially, I believe, we should study those characteristics of English history which make her different from other countries, her constant stress on the particular forms of self-government and civil liberties which she has developed and which, we must gratefully acknowledge, she has in part passed on to us. Much of her history is our history. Our own law is in part derived from her law and legal procedure. We think in large measure the same legal thoughts, in spite of many political and social differences. The same lawbooks and legal dictionaries are used by both of us, and we cannot appropriate so much of her essential framework without some recognition and knowledge of the model from which we have acquired it. The pattern of her common law she began to build very long ago, and throughout her history she has continued to elaborate it quietly without violent breaks or changes. It is a living organism and one the knowledge of which is especially essential to US Americans in war and in peace.. The medieval pattern of her law was well formulated by England in the two hundred years that followed the Norman Conquest, the period when there was most danger, perhaps, of the imposition of alien rules and regula- tions. The legal interest of this faraway and somewhat obscure period centers in the growth of the king's justice and its contact with already existing laws and customs. I have chosen this period for several reasons. It has to my mind intrinsic interest, and we are a little inclined to neglect it, or, rather, in the - dearth of material it has to offer, we are often inclined to endow it with some of the conditions that belong clearly to later times. But most of all I have chosen it because it illustrates the English method of gentle change. It is the period when the first lines of the magnificent common law were graven deep into their legal foundation, never to be erased by later edifices. The meeting during this period of the common law with church law, the ius commune of the universal church, is a great subject by itself and one that I am not competent to deal with. I must leave that to church historians. It has also, however, contacts with another and more manageable condition existing in England, namely, English customary law in its various forms, some pre-Conquest English custom, some postConquest adaptations of that custom.' Maitland speaks of 1066 as the midnight of legal history and empha- 1 Compare the statement from Bracton, De Legibus el Consttefudinibus Angliae, ed. George E. Woodbine (New Haven, 191j), folio la: There are many and diverse customs in England according to the diversity of places. For the English have many things by custom which they do 201 The Early Pattern of the Common Law sizes how little written law the Normans had of their own and how English law is far more than a meeting of two thin streams, English and Norman, and is really formed out of all the complex events and currents of the history of the time. It is by no means simply made out of a law imposed by a con- queror upon a conquered p e ~p l e . ~ Perhaps some of William's patience with lack of uniformity in his conquered country was due to his tolerance of tradi- tion and to the old idea, now passing, that the law of the conqueror was too good for the conquered. The Conqueror promised, it will be remembered, to maintain the. law of Edward the Confessor. What were then some of the variations in law and custom that were present in England after the Conquest and how among them did the so- called common law become of transcendent importance for later history? First and most important is its evident basis in the law of the royal court, of the king's court, and in the method of that court in dealin'g with conditions as it found them. It grew slowly with the increasing understanding of the "tremendous empire of the kingly maje~ty."~ It was the general law as ac- cepted by the courts, not yet clearly enacted in statute; in contact with local customs, with the ideas and conditions that lay along its always extending boundaries. With such conditions it dealt variously, rarely by denying their force, more often by adapting them to common-law notions, or by adopting them entirely and enshrining them in common-law rules. In later times these variations became unimportant, but in speaking of the early formative days it is necessary to see that the law was exposed to different variations and that it molded these slowly and reasonably into the growing pattern of king's law and court procedure. It is a mistake to think of early English law as too immature to be reasonable. Even early pleading shows a desire to understand differences and to make a peaceful adjustment with existing conditions. Recognition of special custom occurs again and again in early English legal material. Very commonly in early Year Books and other material one meets the words consuetudo loci-the best-known phrase-usage de pgys, mos est, mos comitatus, const~etudo comitatus, consuetudo rape, consuetudo christianitatis, consuetudo marisci or burgi or uille, or manerii, custom and law of London, of Wales, of Scotland, of Normandy, of the manors of the not have by law, for example, in diverse counties, cities, boroughs, and vills where always one must inquire what is the custom of a given place and how those who allege customs use them. 2Frederic W. Maitland, Constitutional History of England (Cambridge, 1go8), pp. 6-10; Frederick Pollock and F. W. Maitland, History of English Law before the T ime of Edward I (Cambridge, 19o3), I, 94-1 10. See Leges Henrici Primi in Felix Liebermann, ed., Die Gesetze der Angelsacke (Halle, 1903-16), 6, z ; Pollock and Maitland, I, 107. *Theodore F. T. Plucknett, Statutes and Their lnierpretation in the First Half of the Four- teenth Century (Cambridge, 1922), pp. 11, 12. Nel l i e Ne i l son king, custom and liberty of the vill, usage defait commune ley que usage usee parmi le pays, and other like phrases? The consuetude loci refers in general to the local custom of particular places. Such custom has always had for me a peculiar fascination, I suppose because it takes one so far back into the past, unknown but imaginable. From certain regions such custom excludes all or part of the operations of the king's law, the law of the king's courts. What will the natural desire for legal uniformity do with these? Perhaps the most important of such customs and in some ways the clearest, because it lasted down into times of definition and was too strong to be obliterated, is the well-known custom of Kent. The story goes, but there is no proof of its truth so far as I know, that William, marching through Kent after Hastings, was met by the moving wood of Swanscombe, composed of men in armor, carrying trees, and that William thereupon agreed to let them have their customs intact. In later times the custom included at least fourteen points, of which some were evidently accretions.' The most famous of them were partibility of tenement amongst heirs, which was of course not peculiar to Kent but was found elsewhere in that great socage tenure which was accepted as part of the common law and which is crying for its historian. Secondly, the payment of gafol, from which the gavol-kind tenure of Kent takes its name, a name not used elsewhere in England in early documents, but, I am informed, occasionally found in South Scotland. Thirdly, a lesser age for attaining majority than that of the com- mon law and also a different ruling on dower, on the awarding of the custody of a minor to the procheym ami, usually the mother instead of the lord; again a relief paid on entrance into property of double the rent, a special jury system, and in cases of felony, poetically, "the father to the boghe, the son to the ploghe." In addition several economic rules regarding rights of way and the cutting of trees in Kent, the county of dennes, appear. Such rules were regarded as selon l'usage de Kent, and the various manuscripts in which they were recorded await an e d i t ~ r . ~ I suppose that the explanation of their long endurance against the pressure of common law is the fact that Kent was in part the much-traveled road to the Continent, where formulation of rules would occur early, and in other part was covered by the weald, which was backward and inaccessible. William S. Holdsworth, History o f English Law (3rd ed., London, 1922), 111, 16770; William C. Bolland, ed., Year Books of Edward 11: 7 Edward 11, XV (London, Selden Society, 1918), 212. =Neilson, "Custom and the Common Law in Kent," Haruard Law Review, XXXVIII (1925), 482-98 7 See William Lambarde, Perambulation of Kent (London, 1826), pp. 513 ff., for one version of the custom. 203 The Early Pattern of the Common Law Other counties too had once their own customs, but we know little of these because they were assimilated into the common law at an early date. The Pruogativa Regis in the statute book speaks of the custom of the county of Gloucester. The custom of the counties of York and Norfolk is very oc- casionally mentioned without much definition, and also the custom of a Sussex rape, of the honor of Brittany, and of "the north where cornage prevailed." Cradle right, the succession of the youngest son to the holding, while a varia- tion of the common rule of the succession of the eldest, was sufficiently prevalent to have a place of its own. It seems sometimes to have been in force in certain distinct localities, especially in mid-southern England. Of a nature similar to county peculiarities were the long-prevailing rules regarding tenements called ancient demesne of the king. In these instances royal influence preserved them as separate entities in some legal matters. Much has been written about them.' Land in ancient demesne was land which at the time of the Conquest was royal land and had descended as such from Edward the Confessor and was so entered in Domesday Book. The more exact definition seems to have been land that was King Edward's on "the day he was alive and dead," which allows for some changes between 1066 and 1086. For all intents and purposes, however, the picturesque summoning of Domesday Book into court to give evidence that King Edward had held the land in questiong was sufficient to establish its identity. I am at present engaged in preparing for the Dugdale Society the great book of ancient demesne customs, the Stoneleigh Leger Book. It shows the special writs for lands which had to be brought in the Stoneleigh court and were excluded from the king's courts. These were the little writ of right close, so called in contrast to the usual proprietary writ of right, and the monstraverunt against increase of services in such manors. The king insisted on the maintenance of the peculiar writs of ancient demesne, even where the land had been given away by him, feeling that if it should escheat at any time in the future he himself would have more control over it in the manorial court than in the Common Bench. In time the little writ of right when brought for such land in the manor court could by "protestation," as it was called, be changed into some other form of land action. There is much that is of interest in ancient demesne procedure and some points that are not yet clear, but it is clearly accepted as outside common-law jurisdiction. Other variations in custom are found in boroughs where the borough 8 See especially Paul Vinogradoff, Villainage in England (Oxford, 1892), essay I , chap. 111. For example, see Year Books, 3 3 3 5 Edward I , p. 310; F. W.Maitland, Year Books, 2 Edward I I , I (London, 1903)~ p. 60; W.C.Bolland, Year Books, 5 Edward I I , XI (London, 1915)~p. 126. 204 Nellie Neilson court administered its own law in all its own ancient peculiarities. The twelfth century burgess in Cardiff went free of summons, for example, if he could prove that he had one foot in the stirrup and was about to leave the town. Another defendant elsewhere could gain a deiay in procedure if he spoke out and said, "Have law." Such picturesque survivals can be seen best in Mary Bateson's Borough Customs,lo but even her two large tomes are by no means exhaustive. Manuscript material discloses many more local cus- toms, which, it is true, add little to her main classifications. Miss Bateson lays great stress on the transference to English boroughs of the customs of boroughs in France, but I think that sometimes the transference is rather due to the appearance in the English borough of customs already imbedded in the surrounding countryside. Similar variations in customs are found in manors and vills. Manorial court records are full of regulations which are often applicable to unfree and free alike and are important because they sometimes preserve old uses and have a definite influence on the development of ideas of freedom and self-government. The old men, seniores, of the village are often called into court or are consulted in order that they may give descrip- tions of old procedure. I have been specially interested in the part played by the old men in drawing lines of division through ancient waste,ll used from antiquity for common pasture by the men of adjacent sokes, villages, or groups but now to be partitioned among them and their practice of inter- commoning thus stopped. Interesting instances of this procedure appear to antedate the strict control by feudal lords. Also it is of interest to see how the village itself regulates the intercommoning of tenants, in other vills outside its group, and the admissions of the cattle of other villages for a sum of money for specified times of pasture. Villages in the great stretches of fen in Holland in Lincolnshire furnish much interesting information on arrange- ments that are derived from old local conditions of pasture and the use of the waste, which indicate free discussion and common action on the part of villager^.'^ Another variation from ordinary common-law procedure of a somewhat different kind occurred in the great franchises of Norman England. The legal side of these units is interesting. They were built up before and after the Conquest, in the main for purposes of defense along an unruly border in the north and west. Each was composed of fiefs under an overlord whose position in his domain was in some cases almost that of a king. The "sword of Chester" was in some ways almost equivalent to the "crown of St. Edward" Publications of the Selclen Society, XVIII, XXI (London, 1904-1906). Neilson, ed., Terrier of Fleet, Lincolnshire (London, ~gzo), introduction. l2 Zbid.. introduction. - - The Early Pattern of the Common Law 205 over the lord. The king was still ruler, demanding loyalty and exercising a - certain amount of control, in different degree in different franchises, espe- cially over defaulters and traitor^.'^ The most marked characteristic of these great franchises was the usual exemption from the authority of the common-law courts and variations in procedure. From some points of view the palatinates of Chester, Durham, and Lancaster may be considered as the most instructive in their varied history. In ordinary matters the lord took the place of the king, always theoretically by the king's consent. If royal justices appeared within their boundaries it was with the lord's consent, unless there had been a default in feudal justice. The king's writ did not run, although procedure on the lord's writ might be like that of the ordinary courts. Most of the exempt jurisdic- tions had their general centers in the gateways into Wales, at Shrewsbury, Hereford, and Gloucester, and their lands were in part at least conquered lands. Shrewsbury ceased to be a palatinate in the time of Henry I; Chester went back to the crown in 1237 and was given to Prince Edward in 1254. He finally conquered it, together with Flintshire, Denbighshire, Cardigan, and Carmarthen, and in 1284 the ordinance annexing Wales, which resulted in a compromise between Welsh and English law, was issued. The later survey of the honor of Denbigh, edited by Sir Paul Vinogradoff's seminar,14 shows some of these points of contact of English and Welsh law and custom, part of the inhabitants living under Welsh custom, part under English. The king's writ did not run in some parts of the liberty, and the king's problem of how to attain a peaceful government was a difficult one. There was no writ of error, no writ of certiorar