President of the Association, 1943
Presidential address delivered before the American Historical Association at New York on December 29, 1943. Published in the American Historical Review 49:2 (January, 1944): 199-211.
The Early Pattern of the Common Law
It 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 generalizations 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 offer 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 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 regulations. 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 post-Conquest adaptations of that custom.1 Maitland speaks of 1066 as the midnight of legal history and emphasizes 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 conqueror upon a conquered people.2 Perhaps some of William's patience with lack of uniformity in his conquered country was due to his tolerance of tradition 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 dealing with conditions as it found them. It grew slowly with the increasing understanding of the "tremendous empire of the kingly majesty."3 It was the general law as accepted by the courts, not yet clearly enacted in statute,4 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 pays, mos est, mos comitatus, consuetudo comitatus, consuetudo rape, consuetudo christianitatis, consuetudo marisci or burgi or ville, or manerii, custom and law of London, of Wales, of Scotland, of Normandy, of the manors of the king, custom and liberty of the vill, usage defait commune ley que usage usee parmi le pays, and other like phrases.5
The consuetudo 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.6 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 common 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 editor.7 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.
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 Prerogativa 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 occasionally 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 variation 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.8 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 question was sufficient to establish its identity.9 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 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 delay in procedure if he spoke out and said, "Have law." Such picturesque survivals can be seen best in Mary Bateson's Borough Customs,10 but even her two large tomes are by no means exhaustive. Manuscript material discloses many more local customs, 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 descriptions of old procedure. I have been specially interested in the part played by the old men in drawing lines of division through ancient waste,11 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 intercommoning 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 arrangements 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 villagers.12
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 tiers 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" over the lord. The king was still ruler, demanding loyalty and exercising a certain amount of control, in different degree in different franchises, especially over defaulters and traitors.13
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 jurisdictions 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 certiorari, and the peace that was broken was the lord's, not the king's. Recourse might be had to parliament, however, and the king was regarded as the ultimate dominus. The building up of the great Lancaster fief and the accumulation of lands finally in the hands of the Black Prince, from the earldom of Chester and the earldom of Cornwall and other great lordships, is also very instructive. The threads of local liberties and customs were without question gathered up in Westminster and London.
Durham, a very great liberty on the northern border of England, brings in an additional factor, the ecclesiastical courts and church law, for its lord was a bishop. Durham was a border district and often the subject of dispute between English Northumberland and the Scottish kings. It was almost more Scottish than English. In Dr. Lapsley's famous and admirable book15 on this franchise we can watch the working of palatinate law and the contact of the franchise with common law and church law. Only crime or an attack upon the king was subject to immediate royal jurisdiction. The maxim developed, "quicquid rex habet extra, episcopus habet infra." The bishop speaks of pax nostra. Even here, however, fell the shadow of the crown; not all was left to custom and local law. The king could be reached by petition and the powers of the bishop varied at different times, being at their height from 1292 through the fourteenth century. There are traces of northern custom still remaining in this northern franchise; for example, rewards are paid for the heads of decapitated robbers. Among these great jurisdictions should be mentioned the Channel Islands, where the custom and law of Normandy prevailed, and the Isle of Man, once belonging to Norway.
Within England were many smaller franchises which varied in the amount of exemption they had from common-law procedure. Most extensive of the liberties in privilege, but very small in the extent of territory, were the banlieux of monasteries and ecclesiastical foundations. Within a limited territory the king's writ did not run, but the abbot or ecclesiastical officer was the lord. Within the Four Crosses of St. Edmund, for example, such jurisdiction was exercised, and common-law officers were excluded. Very rewarding in this connection would be a study of some of those bundles of writs preserved in the Record Office, not yet calendared and still largely unused. They furnish a good field of investigation for some student of early English history. There often is a bundle of five or six hundred for each of the four law terms of the Common Bench in a given year. Even the later ones, those of early Edward III, the only ones which I have used, are full of detailed matters of importance. Those in any bundle dealing with liberties show the sheriff delivering the writ to the bailiff and the bailiff returning it, or not, with notes on its adventures within the liberty. If the bailiff has not delivered it, the writ ne omittas propter libertatem is issued to the sheriff, which enables him to enter the liberty and perform his duties. In cases where the king's writ did not run the substantive common law is found within the liberty, and the difference was one of procedure, but even here old custom would also be recognized:
And as in good St Edwards days
So must it go, St Use allows,
When Norman lords, ride English ways.
While not very much may be known of the early law of exempt jurisdictions, some light is thrown on them in the great volumes wherein are printed the Hundred Rolls and subsequent proceedings. The English Justinian before and after his accession in 1272 tried to cut down on private jurisdiction wherever it lay by questioning the ancient warrant for it, and, even when accepting the efficacy of its charter or claim of prescription, by preventing its extension--and incidentally by taking large fines for settlement of the cases. There is a good deal of information on this in early Year Books dealing with franchises and their legal status. An interesting example arose in the liberty of Durham; the question is asked: May the king's sheriff enter the liberty on the king's command? The answer is that the bishop has such franchise that he has royal power, and no minister of the king may enter except on default of franchisal justice. It is objected that the king's prerogative is above any franchise, and if a sheriff distrains in a liberty he does it in contempt of the king, who has by his prerogative created the liberty.16
Other exemptions from the application of the common-law courts and their rules were functional in character. Districts lay outside the corpus comitatus, for example, because they were furnishing mines and their products. Mines for precious metals, gold and silver, belonged to the king, and his claim was accepted generally. Non-precious metals were mined in the usual way, although Richard I tried to claim special control over them. They went with the land, and the owners had their rights, as they had over the rest of their soil. But there was a third class of miners more interesting from the point of view of exemption from common-law rules. In some places where there were tin and lead mines, for example, in Cornwall and Devon, there had grown up groups of miners from very early times who formed semi-independent communities with their own customs and their own courts.17 Besides courts they had executive convocations and perhaps legislative meetings as well, and no tinner might be subpoenaed by any other court for any matter determinable in his own court. Their workings were divided into five districts in each county, each with its own court and steward, and there were larger courts under wardens. The Pipe Rolls refer to their privileges in 1243 and 1297, and there are earlier references. Richard I's charter of 1198 gives some picture of the organization as it was at that time, but the tin mines were much older even than this and were probably pre-Conquest in origin, forming little states of great solidarity.
Similar communities of miners may be found in the Mendips and in the Forest of Dean in Gloucestershire and elsewhere, for example, in Cumberland and Derbyshire. I suppose that the crown insisted on maintaining its courts in order to keep the metal flowing. Common-law procedure took too long. Here, too, definition of the miners' privileges and place of work restricted their extension. They were clearly not always welcome neighbors to the owners of the soil. A late protest states, for example, that more than sixty tinners entered on the Black Prince's demesne and soil, "which was bearing corn, barley, oats, beans, and peas as fine as any in Cornwall, and have conducted water in, by reason of which they deluge the land, and nothing remains but stones and gravel."
Still other regions in England that were in early times under special jurisdiction of their own in regard to certain matters of daily living were those which had to be defended against natural dangers arising from the sea and the flooding by rivers. Very clear provisions were made for the regions of salt marshes and the fenlands. Great fens stretched sometimes far inland in low-lying countryside, and the "sweet waters" of the downrushing rivers meeting low plains and the high tides of the sea were piled back and the land along their course was thus flooded. From the earliest time local safeguards had to be set up to protect the inhabitants. One remembers the old stories of the stilt-walking and skating Gyrvians, the fenmen of the Wash, and their rude ways. Here there grew up the custom of the maintenance of walls and dykes and ditches, the extension of the duty of maintenance over all living in the region, and the heavy punishments of those who failed in their duty. In like manner great salt marshes along the seacoast where the sea overflowed and had to be kept walled out were from Saxon days treated specially and severely. The negligence of one might endanger all. Romney Marsh is a very good example; its great churches are an evidence of the close habitation of the region in early times, and we know of the great "innings" from the sea made by early archbishops. In time ordinances and rules were made and officers appointed for the maintenance of old safeguards, including within them all of the ancient customary arrangements that were possible.18 Thus the old sea wall of Dymchurch, made famous in our time by Kipling, was retained, and also some of the old regulations made necessary by the white steeple of Lydd church, which drew into the sandy shore ships laden with raisins and spices.
A very delightful variation in common-law procedure is found in the beautiful regions called forests. You may remember Chaucer's lines:
Thorgh me men gon into that blysful place
Of hertis hele and deadly woundis cure,
Thorgh me men gon unto the welle of grace
There grene and lusty May shall ever endure.
This is the weye to all good aventure.
The dark obscurity of the Conquest period makes it difficult to see the exact development of the forest administration. We know of William's assignment of New Forest and certain other regions mentioned in Domesday Book to be forests and so to be distinguished from the usual silva or boscus, the ordinary woodland. We know of pre-Conquest charters which speak of hunting parties in certain regions, but it is probable that the pre-Conquest wood was not forest in the technical sense in which the word is later used, and it is clear that early English forest organization owes much to the already existing forests of Normandy. One finds many familiar arrangements in the Forest of Eu in Normandy, for example.
To understand the technical use of the word forest in England we must give up its usual connotation as statio ferarum, home of wild beasts, wild wood, or waste. After the Conquest the word refers to a region probably largely wood and waste, it is true, but also a region under forest law and not necessarily excluding all habitation. Such districts were usually the king's but not always. There are a few private forests also, like Whitby's in the East Riding, or Coupland in Cumberland, and down through early English history there are forests which disappear later in the rapes of Sussex and in Lancaster regions in the north and elsewhere. Within the forests both the red and fallow deer and the boar are preserved for royal hunting and for any disposition the king may wish to make of them. He may grant them to his sister, or to a bishop, or to lords passing through the forest, or to Westminster Abbey, with a hunting menee sounded as they are put on St. Peter's altar. To the poor are sometimes given those that are putrid and not fit for ordinary use!
In these lands there was built up a very clear and exacting system of punishment and fine. Sad was the lot of the jolly huntsman who let himself be caught doing any injury to vert, that is, bush high enough to cast a shadow, or venison. Forest fines were very profitable to the king, if looked at from that point of view! There were many royal officers, forest justices in eyre, foresters for special forests, some of whom held their office in fee and had many perquisites. There were courts held for forest trespasses and offenses, and records of their procedure give a clear view of many forest arrangements.
There are, however, some points where questions arise. It is clear enough that the common law operated in forest regions for offenses not concerned with the forest code. Such cases may be studied in common-law records of villages, for example, that lay within the forest boundaries and where other kinds of offenses might also well occur. In the wilder regions the offenses would usually be only forest cases tried by forest law. There still remain from early days, however, some puzzling questions, resulting largely from the confusion regarding the status of given regions. Districts were put in or out of forest law, and uncertainty of boundaries prevailed. Such questions, however, would be satisfactorily answered as time went on and clear definition appeared. It is obvious that the king would enjoy a wide district to hunt in and perhaps still more obvious that he would enjoy the fines his officers could collect. But it is also clear that feudal lords objected to the curtailment of their liberty implied in afforestation, and still more clear that commoners in land once free would object to interference with their cattle going to and from pasture and with the cutting of wood for fuel. Did common-law officers and forest officers always reach a happy adjustment in these matters? The number of forests even in the restricted days after the great disafforestations of Edward III was listed at approximately seventy, and the extent of their liberty must once have been greater.19
The forests had other uses. They were used as breeding places of the king's studs, his great horses, his mares, his cows. They seem sometimes to have been part of defense units, as in the rapes of Sussex, and also they became sometimes, by the king's command, refuges for those in danger from invasion by the Scots.
Merchant law and maritime law also present many interesting features that differ from the common-law procedure.20 They are concerned very often with those who were not Englishmen, or those Englishmen who lived away from the neighborhood where the particular cases were coming to trial or peaceful settlement. The word foreigner was used for both these classes. Foreign merchants in our sense of the word came into England in groups for trade purposes and as a rule used the code of laws which English ports preferred, the so-called code of Oléron, originating in Barcelona but widely used elsewhere, just as merchants of the Mediterranean used often the Consolato del Mare. These codes, established in coast towns of the countries using them, were of much importance in the growth of merchant law. We find the code of Oléron clearly in use in the days of Edward II. There is not very much evidence of earlier procedure.
There was in very early days a somewhat mysterious custuma maritima on the sea coasts for trade or protection. The courts of admiralty do not develop clearly until the days of Richard II. The main problem of these early coastal courts was to secure speedy justice. Foreign merchants were "come today and gone tomorrow" and procedure in ordinary courts of common law was extremely slow. So special arrangements were made. In Grimsby, for example, cases relating to foreign fish had to be settled within three tides, those related to foreign corn within three days. The judges in these courts were the merchants, and the procedure, except in land cases, was summary. It was pointed out long ago by Professor Gross that these courts helped to extend a reasonable method of proof against the slower methods of compurgation and ordeal, assize, and outlawry used in the common-law courts. Thus at Yarmouth, courts sitting at tide time had to render their decision by the next tide.
There is a certain picturesque side to the contact of the king's courts with old customs and regulations such as I have enumerated. Except where customary procedure is definitely encountre la ley, as the court puts it, there is a desire to maintain the old tried familiar ways and to adapt them to new ends. Reasonable conditions will be maintained, and dull uniformity is not in itself considered meritorious. The king's prerogative, which might well become a danger to just, established, and reasonable procedure, is in practice required to conform with reason. Four times the early courts as described in the Year Books decide in a case before them that the king has not proved his right to have certain advowsons to churches. Once his order to execute a delinquent is not obeyed. The answer given to him may be couched in courteous terms: "The king would not have asked for this if he had known the circumstances which would make assent to it unjust"; "the king has forgotten that he had already appointed to this post." It is assumed that the king will govern with justice and support the courts in the maintenance of old tradition where it is just. The royal prerogative while a very important factor in the administration of law is in practice restrained within reasonable limits. The king too must adapt himself to the customs of the kingdom, sometimes upholding them as in ancient desmesne, in the thought that to himself may sometime escheat the land in question.
One would not today perhaps like Serjeant Maynard of old choose a year book to divert one in one's travels, but one can still read legal records with profit to see how the free governments of the English-speaking peoples have come into being. Professor McIlwain has spoken recently of the "barrier" of the common law against tyranny and injustice. I should like to add, in concluding my remarks, those well-known words of Sir Francis Bacon: "The king is bound by the law he makes. He cannot exceed the limits of that law. If he does wrong he is nothing but tyrant. Ideo cor regis bene regentis dicitur in manu dei." Nurtured in the common law we Americans too have pledged against what seems to us to be tyranny "our lives, our fortune, and our sacred honour."
Nellie Neilson was a professor emeritus of history at Mount Holyoke College. She was the first female president of the AHA.
1. Compare the statement from Bracton, De Legibus et Consuetudinibus Angliae, ed. George E. Woodbine (New Haven, 1915), folio ia: 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 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.
2. Frederic W. Maitland, Constitutional History of England (Cambridge, 1908), pp. 6-10; Frederick Pollock and F. W. Maitland, History of English Law before the Time of Edward I (Cambridge, 1903), I, 94-110.
3. See Leges Henrici Primi in Felix Liebermann, ed., Die Gesetze der Angelsacke (Halle, 1903-16), 6, 2; Pollock and Maitland, I, 107.
4. Theodore F. T. Plucknett, Statutes and Their Interpretation in the First Half of the Fourteenth Century (Cambridge, 1922), pp. 11, 12.
5. William S. Holdsworth, History of English Law (3rd ed., London, 1922), III, 167-70; William C. Bolland, ed., Year Books of Edward II: 7 Edward II, XV (London, Selden Society, 1918), 212.
6. Neilson, "Custom and the Common Law in Kent," Harvard Law Review, XXXVIII (1925), 482-98.
7. See William Lambarde, Perambulation of Kent (London, 1826), pp. 513 ff., for one version of the custom.
8. See especially Paul Vinogradoff, Villainage in England (Oxford, 1892), essay i, chap. iii.
9. For example, see Year Books, 33-35 Edward I, p. 310; F. W. Maitland, Year Books, 2 Edward II, I (London, 1903), p. 60; W. C. Bolland, Year Books, 5 Edward II, XI (London, 1915), p. 126.
10. Publications of the Selden Society, XVIII, XXI (London, 1904-1906).
11. Neilson, ed., Terrier of Fleet, Lincolnshire (London, 1920), introduction.
12. Ibid., introduction.
13. Caroline A. J. Skeel, The Council in the Marches of Wales (London, 1904), introduction; Thomas F. Tout, Chapters in the Administrative History of Mediaeval England (3 vols., New York, 1920-33); Eleanor C. Lodge and Robert Somerville, eds., John of Gaunt's Register, 1379-1383 (2 vols., London, 1937); Holdsworth, I, 117 ff.
14. Vinogradoff and Frank Morgan, eds., Survey of the Honour of Denbigh, 1334 (London, 1914).
15. Gaillard T. Lapsley, Count Palatine of Durham (New York, 1900).
16. Year Books, 5 Edward II, XI, 62 ff.
17. George R. Lewis, The Stannaries: A Study of the English Tin Miner (Boston, 1908); L. Margaret Midgley, ed., Ministers' Accounts of the Earldom of Cornwall, 1296-1297 (London, 1942).
18. Neilson, ed., Cartulary and Terrier of the Priory of Bilsington, Kent (London, 1928), introduction; Henry C. Darby, The Medieval Fenland (Cambridge, 1940); William Dugdale, History of Imbanking and Drayning of Divers Fenns and Marshes (London, 1662).
19. James F. Willard and William A. Morris, eds., The English Government at Work, 1327-1336, I (Cambridge, 1940), chap. ix, where many references are given; also Elizabeth Cox Wright, "Common Law in the Thirteenth-Century English Royal Forest," Speculum, III (1928), 168 ff.
20. See especially Holdsworth, I, 526 and passim; Select Essays in Anglo-American Legal History, compiled by various authors and edited by a committee of the Association of American Law Schools (Boston, 1907-1909), I, chap. ix; Ephraim Lipson, Economic History of England (London, 1915-31), I, 196 ff.; Charles Gross, The Gild Merchant: A Contribution to British Municipal History (Oxford, 1890).