Historical inquiry into the character of local dispute resolution and the operation of customary law in medieval England begins in manorial courts, since it is from those local courts that the most abundant documentation survives. Were the judgments of these courts “principled” in the sense of being rooted in substantive legal rules that courts ordinarily followed, or were they ad hoc determinations based on factual circumstances invisible to the modern reader? Can historians extrapolate behavioral norms and shared cultural values from the manor court records that survive in increasing profusion from the second quarter of the thirteenth century?
1. Bonfield, L., “The Nature of Customary Law in the Manor Courts of Medieval England,” Comparative Studies in Society and History 31 (1989): 514–34, 517; idem, “What did English villagers mean by ‘customary law’?” in Medieval Village and Small Town Society: Views from Manorial and Other Seignorial Courts, ed. Smith, R. M. and Razi, Z. (Oxford, forthcoming). Bonfield's suggestion that manorial courts were similar to modern ADR procedures is reminiscent of Father Raftis's observation that medieval manorial courts resembled courts of equity. Raftis, J. A., Tenure and Mobility: Studies in the Social History of the Medieval English Village (Toronto, 1964), 207.
2. Bonfield, “The Nature of Customary Law,” 514–34; idem, “What did English Villagers mean by ‘customary law’?”
3. The phrase plena curia, “open court,” is common in the records.
4. Other goals of ADR may be to reduce expense, to reduce stress, to reduce court congestion, and arguably to improve quality of final outcomes.
5. For judgments summarily rendered upon presentments, see Beckerman, J. S., “Procedural Innovation and Institutional Change in Medieval English Manorial Courts,” Law and History Review 10 (1992): 197–252, 197, 226–50.
6. The proposition that ADR usually proceeds in disregard of substantive law has been challenged by Brunet, E., “Questioning the Quality of Alternative Dispute Resolution,” Tulane Law Review 62 (1987): 1–56, 27–31. Cf. Folberg, J. and Taylor, A., Mediation: a comprehensive guide to resolving conflicts without litigation (San Francisco, 1984), 10 (noting that parties to mediation are not bound by rules of substantive law).
7. For a contrasting definition of the essentials of adjudication, see Fuller, L., “The Forms and Limits of Adjudication,” Harvard Law Review 92 (1978): 353–409, 357, 363 (adjudication is a form of social ordering characterized by presentation of proofs and reasoned arguments).
8. Bonneld, “The Nature of Customary Law,” 522–23.
9. Bonfield's view thus resembles Palmer's that “[a] court's custom, unless written down, would change to conform to new situations and to the notions of justice and right process held by the individual members of the court.” Palmer, R. C., The County Courts of Medieval England 1150–1350 (Princeton, 1982), 146.
10. P. R. Hyams, “What did Edwardian Villagers Understand by ‘Law’?” in Medieval Village and Small Town Society, ed. Smith and Razi. Emphasizing connections between different courts and the ways individual manorial jurisdictions fit into something approaching a nationally integrated legal system under the supervision of the royal common law in the years around 1300. Hyams is not deterred from seeking cultural norms in manorial court records.
11. Milsom, S. F. C., Historical Foundations of the Common Law, 2d ed. (London, 1981), 247.
12. James, F. Jr, Hazard, G. C. Jr, and Leubsdorf, J., Civil Procedure, 4th ed. (Boston, 1992), 149.
13. For example, S. F. C. Milsom and E. Shanks, eds., Novae Narrationes, Selden Soc. vol. 80 (1963), passim. The “pur ceo atort” clause of a count explicitly averred the facts that constituted the minor premise of the syllogism. The phrase “pur ceo atort” to introduce those averments implicitly invoked a general normative statement about behavior that constituted the major premise. Although it is possible that such customary rules of general application may in reality still not have reflected collective behavioral norms, I believe that they probably did.
14. Beckerman, “Procedural Innovation and Institutional Change,” 207–9. See also Note, “Proving the Will of Another: The Specialty Requirement in Covenant,” Harvard Law Review 105 (1992): 2001–20.
15. Typical general issues were non culpabilis est (he is not guilty), non debet (he does not owe), non fregit convencionem (he broke no agreement with him) and non fecit pactum (he made no agreement).
16. Beckerman, “Procedural Innovation and Institutional Change,” 241.
17. They also provide a more persuasive explanation for this failure than Hyams's recently articulated view that manorial lords “never really exercised a controlling jurisdiction” and “tended to receive … new rules from above … more or less whole” from the later thirteenth century. Hyams, “What Did Edwardian Villagers Understand by ‘Law’?” I have shown elsewhere that detailed consideration of facts in local courts in the thirteenth and fourteenth centuries was also retarded by use of presentment, which often resulted in summary convictions, and have argued that the contribution of local custom to the development of the common law after 1300 was negligible. Beckerman, “Procedural Innovation and Institutional Change,” 236–41.
18. Bonfield, “The Nature of Customary Law,” 522.
19. Hyams, P. R., Kings, Lords and Peasants in Medieval England: The Common Law of Villeinage in the Twelfth and Thirteenth Centuries (Oxford, 1980).
20. Milsom, S. F. C., “The Past and the Future of Judge-Made Law,” reprinted in Milsom, , Studies in the History of the Common Law (London, 1985), 209–22, 211.
21. As Maitland wrote, “We hesitate before we describe the serf as rightless even as against his lord, and, even if we infer want of right from want of remedy, we feel that we may be doing violence to the thoughts of a generation which saw little difference between law and custom.” Pollock, F. and Maitland, F. W., The History of English Law Before the Time of Edward I, 2d ed. (Cambridge, 1968), 1:430.
22. Hyams, P. R., “The Charter as a Source for the Early Common Law,” Journal of Legal History 12 (1991): 173–89, 183.
23. Bonfield, “The Nature of Customary Law,” 533.
24. Ibid., 526–29.
25. Ibid., 522–23, 526–28; idem, “What did English villagers mean by ‘customary law’?”
26. Observing that “nothing is more evident than that custom in the Middle Ages could be … changed,” Plucknett cited Azo for the proposition that “A custom can be called long if it was introduced within ten or twenty years, very long if it dates from thirty years, and ancient if it dates from forty years.” Plucknett, T. F. T., A Concise History of the Common Law, 5th ed. (London, 1956), 307–8.Homans, G. C., English Villagers of the Thirteenth Century (Cambridge, Mass., 1941, paperback ed. 1970), 6; Plucknett, Concise History, 314; and Milsom, Historical Foundations, 11, all comment on the geographical diversity of custom.
27. Allen, C. K., Law in the Making, 7th ed. (Oxford, 1964), 147.See also Jolliffe, J. E. A., “The Era of the Folk in English History,” Oxford Essays in Medieval History Presented to H. E. Salter (Oxford, 1934), 1–32, 8 (manorial obligation and custom descended from seventh-century folk-right).
28. Allen, Law in the Making, 148. According to Allen, history demonstrates that customs establish themselves because they fit the economic convenience of society's most powerful caste. Ibid., 92.
29. Plucknett, Concise History, 308. See also Homans, English Villagers, 404 (custom not compulsion imposed on others).
30. Simpson, A. W. B., An Introduction to the History of the Land Law (Oxford, 1961), 103. Homans noted that rents and services, before they could have been regarded as customs, “must in fact have been maintained unchanged for many years, and a tenant must have felt that after they had been rendered for so long, the lord had the right to require that they should continue being rendered.” English Villagers, 271–72.
31. For example, British Library, Add. Roll 28036 (Mapledurham, Hants., 1346) (where tenement was seized for waste and arrears of rent and services, nearest heir given first opportunity to take holding).
32. In periods of “high farming,” for example, when manorial lords needed a resident labor supply to cultivate their demesnes, tenants had to be both physically capable of working the land and mentally capable of managing their holdings, and long vacancies were not tolerated. See, for example, British Library, Add. MS. 40625 (“Park Court Book”), fol. 76v (Park, Herts., 1336) (on account of heir's feeblemindedness (fatuitas), lord seized holding as escheat and granted it to new tenant, saving right of any other possible heir); Cambridge University Library, MS. Dd.7.22 (“Winslow Court Book”), fol. 18r (Winslow, Bucks. 1337) (when pilgrim did not return as promised and it was not known whether he was alive, son inherited villein tenement saving pilgrim's right). In periods of population pressure and land shortage, the century before the Black Death in particular, peasants sought ways to keep land in the family, and there was a strong tendency among peasants to try to preserve inheritance customs. A change in custom at Park, Herts., in 1337, illustrates this tendency. Michael, Abbot of St. Albans, with the royal justice John of Shardlow advising him, and the Abbot's whole council, annulled in perpetuity the ancient usage that anyone sixteen years old and within England had only four halimote sessions to claim an ancestor's land by succession, after which he was barred. Park Court Book, fol. 77r; Levett, A. E., Studies in Manorial History (Oxford, 1938), 156. The change also brought custom into conformity with practice in the royal courts. Conversely, when demesnes were farmed out, population decreased and more land was available on better terms, as for example during the second half of the fourteenth century, there was less need and consequently less emphasis on preserving rights of inheritance. Faith, R. J., “Peasant Families and Inheritance Customs in Medieval England,” Agricultural History Review 14 (1966): 77–95, 86–87, 92.
33. Even with the modern doctrine of stare decisis, common law sometimes changes dramatically.
34. Bracton put it that “if like matters arise, let them be decided by like, since the occasion is a good one for proceeding a similibus ad similia.” Bracton, De Legibus et Consuetudinibus Anglie, ed. Woodbine, G. E., trans. Thorne, S. E. (Cambridge, Mass. 1968), 2:21 (“si tamen similia evenerint per simile iudicentur, cum bona sit occasio a similibus procedere ad similia”). The appeal of false judgment was of more theoretical and prophylactic value than practical importance in assuring regularity of adjudication in the thirteenth century, since the procedure was cumbersome and antiquated and, even if pursued successfully, only provided a damages remedy and not a reversal of a local court's judgment. Pollock and Maitland, History of English Law 2:666–67.
35. Glanvill, ed. Hall, G. D. G. (London, 1965), 139 (reasonable customs of lords' courts cannot easily be written down because of their number and variety); Bracton, De Legibus 4:52 (unwilling to include discussion of issuing of summonses to court of chief lord and number of defaults and essoins, because of different customs differently observed in different courts).
36. Oschinsky, D., “The Training of Stewards,” in Walter of Henley (Oxford, 1971), 61–65; Beckerman, “Procedural Innovation and Institutional Change,” passim. Palmer has observed a similar standardization, from much more fragmentary evidence, in medieval English county courts. Palmer, County Courts, 147.
37. Plucknett, Concise History, 313.
38. Homans, English Villagers, 9–10, 271–75.
39. Goody, J., The Logic of Writing and the Organization of Society (Cambridge, 1986), 136–40, cited by Bonfield, “What did English villagers mean by ‘customary law’?” This resembles the influence of the writ system on pleading. Pleaders had much more freedom in “counting” in proceedings commenced by plaint than those commenced by writ, since the count was not restricted to the elements of the writ. As a late thirteenth-century treatise on pleading in local courts put it, “Si par pleynte donque put le seriaunt counter plus greuousement en son counte par pleynte qe lem put par bref, kar le seriaunt deit tutdis pursiwre les poyntz et la nature de son bref ou altrement serroit variaunce entre counte et bref.” Harvard Law School, MS. 162, fol. 174r.
40. Beckerman, “Procedural Innovation and Institutional Change,” 219–26.
41. Homans, English Villagers, 197–98. Thirteenth-century court rolls yield many examples of persons charged with holding by a defective title or being summoned to show by what warrant they held their land. See, for example, Hertford County Record Office, Gorhambury Deeds, X.D.O: A, B, and C (“Kingsbury Court Book”), fol. 3r (Kingsbury, Herts., 1250) (jury confirmed hereditary right of one accused of holding injuste et non de jure hereditario); M. K. Dale, ed., Court Roll of Chalgrave Manor 1278–1313, Bedfordshire Historical Record Soc. vol. 28 (1950), 37 (Chalgrave, Beds. 1297) (tenant charged with holding cotland less justly than others of the same fee—minus juste quam alii de eodem feodo tenebant—offered lord one mark to establish right of succession to his heirs, so that heirs would pay lord one mark, more or less, at the lord's will, for the tenement).
42. Maitland reduced the law of descent to six basic rules to determine which of a decedent's relatives take precedence: “(1) A living descendant excludes his or her own descendants. (2) A dead descendant is represented by his or her own descendants. (3) Males exclude females of equal degree. (4) Among males of equal degree only the eldest inherits. (5) Females of equal degree inherit together as coheiresses. (6) The rule that a dead descendant is represented by his or her own descendants overrides the preference for the male sex, so that a granddaughter by a dead eldest son will exclude a younger son.” Pollock and Maitland, History of English Law 2:260.
43. Vinogradoff, P., Villainage in England (1892; repr. Oxford, 1968), 156–57, 246.
44. See, for example, Some Court Rolls of the Manor of Tottenham, Middlesex, trans. Marcham, W. (Borough of Tottenham, 1956), 37–38, 39–40, 42–43 (Tottenham, Mdx. 1348) (younger son of villein decedent heir for villeinage; elder son heir for three acres of free land).
45. Dodwell, B., “Holdings and Inheritance in Medieval East Anglia,” Economic History Review, 2d ser., 20 (1967): 53–66, 60–61; see also Homans, English Villagers, 109–20.
46. At Wakefield, Yorkshire, in 1285, two brothers came and sought admittance to their father's land after his death, each claiming to be the right heir. John, the younger, said that Robert, the elder, should not be heir for he was born before their parents' marriage was solemnized at church door. Robert answered that it was the custom in those parts for the elder brother, bom after trothplight, to be heir. An inquest taken by the graves of six villages said that Robert was indeed born after his parents betrothal and should therefore inherit, according to the custom of the district, although he was born before their marriage. Baildon, W. P., ed., Court Rolls of the Manor of Wakefield, Yorkshire Archaeological Soc. vol. 36 (1906), 2:213–14. The significance of this custom for contemporary views of marriage has been debated by Richard Smith and Bonfield. See Smith, R. M., “Marriage Processes in the English Past: Some Continuities,” in The World We Have Gained: Histories of Population and Social Structure, ed. Bonfield, L., Smith, R., and Wrightson, K. (Oxford, 1986) and Bonfield, “The Nature of Customary Law,” 522–30. On the subject of medieval English marriages generally, see Sheehan, M. M., “The Formation and Stability of Marriage in Fourteenth-Century England: Evidence of an Ely Register,” Mediaeval Studies 33 (1971): 228–63. Betrothal was widely regarded as a legal marriage. If persons were married by verba de presenti without publicity attendant upon marriages solemnized at church door, their children might mistakenly be regarded as bastards. See, for example, British Library, Add. Roll 1703A (Horningtoft, Norf., 1326).
47. For example, at Park, Herts., in the absence of a male heir, it was customary for land held “by the rod” to remain undivided to the eldest legitimate sister. Park Court Book, fol. 87v (1344). The same custom still existed for copyhold at Felsted, Essex, in 1576. Clark, A., “Copyhold Tenure at Felsted, Essex,” English Historical Review 27 (1912): 517–22, 518. Possibly a survival from a time when fragmentation of villein holdings was not permitted, this custom remained peculiar to the manor, but not to the entire St. Albans liberty. At Bramfield, for example, all inheritance was partible between co-heiresses in the absence of a male heir. Hertford County Record Office, Hertford County Council Records 40702–40705 (“Bramfield Court Book”) (40703), fol. 4r.
48. At Barnet, Herts., Walter Bartholomew had three sons: Walter (who had a son called Thomas), Robert, and John. Walter senior, by the lord's leave, granted one holding to John, his youngest son, and John died without an heir of his body. Robert entered the land, and Thomas, son and heir of Walter junior, sued him for it, claiming by hereditary right, for he said the right of reversion ought to belong (respicere) to the offspring of the elder brother. Issue was joined and the jurors said the holding should go to the next brother, on account of “nearness of blood in ascent” (propinquitas sanguinis in ascendendo) and not to the elder brother or his offspring. This usage, they made clear, was followed according to the custom of the halimote, not according to the common law. British Library, Add. MS. 40167 (“Barnet Court Book”), fol. 31v.
49. PRO SC2/179/16, m. 10 (Cranfield, Beds. 1312).
50. Pollock and Maitland, History of English Law 1:423, 2:397.
51. Villeins did not neglect to emphasize this in court. An involved verdict of 1307 from Wakefield, Yorks., tells us that the father of the tenant, after losing the land in court to the mother of the demandant, went to the earl “and complained that Ellen had recovered that land from him, and said that she was a free woman, and this was villein land (terra nativa), and asked the lord if he would allow his villein land to become hereditary in the hands of any free person; the earl caused Richard to be re-seised (fecit reseisire predictum Ricardum) of the land because he was his villein. Wakefield Court Rolls 2:81. Similar considerations operated in 1300 at Elton, Cambs., one of Ramsey Abbey's manors, where the free men and others witnessed in open court that Richard Trune, who held of the lord a cot and curtilage in Elton, had originally come from the vill of Fotheringhay, on the fee of the Abbess of Northampton. Richard had died and his son Gilbert had entered the cot to hold it of the lord for the due and accustomed services for a relief (gersum) that he had paid the lord. Because it was determined by all present in court that Gilbert was not the lord's villein (nativus domini), but the son of an adventicius from a foreign (alienum) homage, the steward told Gilbert either to give up the cot and seek a more suitable residence or to find four safe and substantial pledges that he and all his descendants would do in all things all kinds of servile customs, just as any cottar does, or villein does more fully in the same vill.” PRO SC2/179/10, m. 11d, printed in Elton Manorial Records, ed. Ratcliff, S. (Roxburghe Club, 1946), 97–98. Confronted with the choice of giving up the land or his free status, Gilbert chose to keep the land: he found the pledges and the steward accepted them, binding not only himself, but also his descendants, in order to keep his little plot of unfree land. At Ditton Valence, Cambridgeshire, in 1332, it was alleged that a party to a dispute over land was free and of free condition so that he neither had nor could have any right in a particular customary tenement. PRO SC2/155/56 m. 8.
52. Pollock and Maitland, History of English Law 2:592–95.
53. Beckerman, “Procedural Innovation and Institutional Change,” 243; Sutherland, D. W., “Mesne Process Upon Personal Actions in the Early Common Law,” Law Quarterly Review 77 (1966): 482–96.
54. Chapter 2 of the Statute of Marlborough of 1267 repeated the old rule that said that a lord could not distrain out of his fee; chapter 3 made it an offense to take an unreasonable distress. Plucknett, T. F. T., Legislation of Edward I (Oxford, 1949; repr. 1962), 58–61.
55. For example, in a late thirteenth-century treatise on how to plead personal actions, an exception is offered to the court's jurisdiction because the defendant was attached in a plea of debt, when he ought to have been summoned. The plaintiff's pleader replies, “Sir, what you say is true if on one side and the other we were resident in the lord's franchise or held land there, where the contract was made. But where you are beyond the lord's power over your possessions and the plaintiff is within his power, to summon you who are in another jurisdiction without attaching you would permanently foreclose the plaintiff from his claim in this court.” Harvard Law School, MS. 162, fol. 176v (“Sire, vous dite verite si nous fuisoms del vn part et del altre en la franchise le seignur receaunt ou terre tenaunt par la ou contract se prist, mes vous qe estes hors du poer le seignur de seyns et il deinz son poer, somoundre vous qe estes en altre iurisdictioun saunz vous attachier, issinc serroit la partie forclos de sa demaunde en ceste court a touz iours”).
56. See, for example, International Shoe v. Washington, 326 U.S. 310, 316 (1964) (“Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant's person…. But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”).
57. See, for example, British Library, Add. Roll 28051 (Mapledurham, Hants. 1381).
58. For example, at Park, Herts., in 1336, the Abbot of St. Albans took a messuage and virgate as an escheat on the tenant's death, because his sister and next heir was feebleminded (fatua). The abbot regranted the holding to a new tenant and his heirs in villeinage, salvo tamen jure cujuslibet. Park Court Book, fol. 76v. At Winslow, Bucks, in 1337, when John Ponteys, who went on a pilgrimage, did not return as promised and it was unknown whether or not he was still alive, his tenements were granted to his son and his son's heirs in villeinage, nevertheless saving John's right if he returned. Winslow Court Book, fol. 18r. Salvo iure clauses in admissions to peasant tenements were a common feature of the diplomatic of admittances to peasant tenements in the fourteenth century. See also British Library, MS. Stowe 849 (“Codicote Court Book”), fol. 49v (Codicote, Herts., 1326); PRO SC2/173/94 m. 24 (Tolleshunt, Essex, 1385).
59. Leges Henrici Primi, ed. Downer, L. (Oxford, 1972), c. 33, 7 (“Ieronimus: Equumiudicium est ubi non persona set opera considerantur”). For the tension between this concept in the Leges and conflicting legal principles based on differences of rank or status, see Beckerman, J. S., “Adding Insult to Iniuria: Affronts to Honor and the Origins of Trespass,” in On the Laws and Customs of England, Essays in Honor of Samuel E. Thome, ed. Arnold, M. S. et al. (Chapel Hill, 1981), 159–181, 161–62.
60. Obvious examples are the preference or priority enjoyed by villeins with respect to unfree land and the corresponding priority with respect to freehold given to persons of free status.
61. Leges Henrici Primi, c. 34, 1: “Si quis ira uel odio uel timore uel amore uel cupiditate uel quoquo respectu iniustum iudicet uel unlagam constituat….”
62. Glanvill, 1, 2 (“in subditis tractandis equalis iugiter appareat”; “Ibi etenim pauperem non opprimit aduersarii potentia, nec a liminibus iudicioram propellit quemquam fauor uel gratia”).
63. The Court Baron, ed. F. W. Maitland and W. P. Baildon, Selden Soc. vol. 4 (1891), 77 (“et honeste me portabo erga patriam scilicet erga divitem et pauperem”).
64. Ibid., 77 (“nec pro amore nee pro odio nec pro timore nec pro aliquo modo in mundo nec pro prece nec pro premio dicam aliquant falsitatem nec aliquant veritatem celabo super re de qua tractus sum in testimonium inter A. et B. coram vobis….”)
65. Ibid., 63 (“W., done vos poez mult hardiement mettre en les bones genz de ceste vile qe vost ne le emblastes pas.”
“Sire, nanail, ils sunt les uns que ount le quer gros envers moi e mult me hoent par acheison de ceste fame que mest mis sure.”
“W., quidez vos que li ait comander son cors e sa alme aui diables pur vos ov pur vostre amor ov pur vostre haunge: certes nanail, il sunt bone gent e leaus e vos hostez de ceste bon gent tuz ceus que vos avez en suspecion de vos mettre a dampnaciun….”).
66. Examining late fourteenth-century jury lists and perceiving an absence of jury challenges despite the theory that defendants could challenge jurors peremptorily or for cause, J. B. Post has concluded, “[i]f jury challenge were available in practice, it would have been used.” Post, “Jury Lists and Juries in the Late Fourteenth Century,” in Twelve Good Men and True, ed. Cockburn, J. S. and Green, T. A. (Princeton, 1988), 71. It appears from other examples, however, that juror challenges were tried before juries were respited for want of jurors; thus, Post's evidence is equally amenable to the inference that by the late fourteenth century, jury challenges were simply not important enough to be recorded. In the late thirteenth and early fourteenth centuries, jury challenges appear to have been used occasionally and with success. For example, in Wallace v. Archbishop of Canterbury, a late thirteenth-century case from the king's court, an entire jury was challenged in an assize of novel disseisin because all the jurors came from the liberty of the Archbishop, and the assize was respited for want of jurors. Casus Placitorum and Reports of Cases in the King's Courts, 1272–1278, ed. W. H. Dunham, Jr., Selden Soc. vol. 69 (1952), 92–94. Similarly, in the Eyre of London of 1321, jury challenges by those arraigned were allowed. The Eyre of London, 14 Edward II, vol. 1, ed. H. M. Cam, Selden Soc. vol. 85 (1968), 41. In the Eyre of Northamptonshire of 1329–30, in a suit brought by the king, after the challenges of jurors on the king's part were tried, Chief Justice Scrope admonished the jurors to challenge themselves if they were related by blood or marriage to the defendant; one did and was removed. The Eyre of Northamptonshire, 3–4 Edward III, vol. 1, ed. D. W. Sutherland, Selden Soc. vol. 97 (1983), 29–30.
67. In 1327, in the Bishop of Ely's court of Littleport, Cambs., the tenants of the lands and holdings which were Henry Whitring's gave the lord forty pence for an inquest whether widows ought to have dower in lands and tenements alienated or sold by their husbands in their lifetime, when such lands and tenements were of the husbands' inheritance or purchase, if the women did not consent to the alienation or sale in their husbands' lifetime. To resolve this question, an inquest was taken of twenty-four villeins, none of whom held any part of the lands or tenements that had belonged to Henry Whitring. Courts of the Bishop of Ely at Littleport, in The Court Baron, 147.
68. This is true of jurors in the royal courts, as well as in local courts. Green, T. A., Verdict According to Conscience (Chicago, 1985), 29.
69. Bonfield is doubtless correct in cautioning that custom's variety and change-ableness should give historians pause about generalizing too broadly about the prevalence of particular customs from manorial court roll evidence.
70. Three examples make this clear. Does the rule in Roe v. Wade, 410 U.S. 113 (1973) indicate shared cultural values by way of a consensus on a woman's right to choose to terminate her pregnancy? Did the rule in Brown v. Board of Education, 347 U.S. 483 (1954), indicate the existence of shared cultural values by way of popular agreement on a child's right to be educated in a school that is not racially segregated? Or does a new rule of liability declared as a matter of law, for example, Hicks v. United States, 368 F.2d 626 (4th Cir. 1966), represent a consensus on what the law should be? The answer to these questions obviously is “no.”
71. Ellickson, R., Order Without Law: How Neighbors Settle Disputes (Cambridge, Mass., 1991), 48–53, 65–66, 69–71.
72. Medieval English villagers, like persons in any other historical-cultural milieu, had informal means of resolving disputes as well as formal ones. Such mechanisms may have ranged from discussion and negotiation among interested parties, followed by settlement; the “love-day” (dies amoris), ritualized gift exchanges resulting in saving face, repairing reputations, and restoring ordinary social or business relations; submission of disputes to the guidance or decision of a third person (what we would think of as mediation or arbitration); and going to court. Obviously, these categories are neither exhaustive nor mutually exclusive. Bringing a dispute to court, however, which could but did not have to follow less formal efforts at dispute resolution, would have been for most persons an unusual step, not to be taken lightly. In going to court, a litigant seeks an adjudicated resolution that has society's sanction and authority behind it. One may need to invoke the court's power to compel one's adversary to respond or to give effect to the court's judgment. Seeking an adjudication, however, always involves the risks that one will not succeed, that one's adversary will retaliate and/or up the ante of the dispute, as well as the inevitable expense and delays inherent in invoking the court's procedures, getting the adversary to appear and answer, proving one's case and obtaining a judgment, and executing the judgment.
73. Implicit in Bonfield's concentration on the factfinding tasks of local inquests is a corresponding de-emphasis of their function of stating customs not yet reduced to writing. I have not been able to discover examples of the declaration of manorial custom by estate stewards, that is, “professionals,” before the first half of the fourteenth century.
74. The phrase is Dawson's, from his summary of a reason sometimes given for use of juries today: “the conscripting of laymen, even in a limited role, provides a means for adjusting law to the purposes and convictions of the community at large. There may lie concealed in this argument an assumption that legal rules may be not only incomplete but positively wrong, when measured against the standards evolved through broader social experience. At the least there is an assumption that law is better administered if it draws on the good sense and practical wisdom of persons in whom these qualities have not been severely warped by excessive exposure to law.” Dawson, J. P., A History of Lay Judges (Cambridge, Mass., 1960), 293.
75. Bracton, De Legibus 2:22 (“Consuetudo vero, quandoque pro lege observatur inpartibus ubi fuerit more utentium approbata, et vicem legis obtinet. Longaevi enim usus et consuetudinis non est vilis auctoritas”)
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