The History of English Law before the Time of Edward I. Frederic William Maitland
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read no law, would believe that they knew the law and custom applicable to the cases that came before them. Every man who does his duty knows a great deal of law and custom: the difficulty is to persuade him that he does not know everything.48
Local customs.The custom of the king’s court is the custom of England, and becomes the common law. As to local customs, the king’s justices will in general phrases express their respect for them.49 We see no signs of any consciously conceived desire to root them out.50 None the less, if they are not being destroyed, their further growth is checked. Especially in all matters of procedure, the king’s court, which is now obtaining a thorough control over all other courts, is apt to treat its own as the only just rules.51 A heavy burden of proof is cast upon those who would apply other rules; they must be prepared to show not merely that a local tradition is in their favour, but that this tradition has borne fruit in actual practice and governed the decisions of the local courts.52 The instances that we get of customs peculiar to [p.164] counties or other wide tracts of land, such as the episcopal barony of Winchester53 or the honour of Britanny,54 are of no great importance. The law about frankpledge, the law about the presentment of Englishry, may be somewhat differently understood in the various parts of England; and in the north there prevail certain forms of land tenure which are hardly to be found in the south:—but this is a small matter. The county courts are held under the presidency of sheriffs who will ask advice from Westminster when difficult cases come before them.55 Every manor will indeed have its own customs, and to the unfreemen these customs will be very important; such rights as they have against their lords, save the bare right to life and limb, will be but customary and will not be acknowledged by the general law nor sanctioned by the king’s court. Still these manorial usages are not so various as we might have expected them to be. If a custumal be put into our hands, only after a minute examination of it shall we be able to guess whether it comes from the west or from the east, from Somersetshire or from Essex. The great estates of the great nobles have been widely dispersed; the same steward has travelled throughout England holding all his lord’s courts, reducing their procedure to uniformity, and completing in a humbler sphere the work of the king’s itinerant justices.56 When the time comes for the king’s courts to protect that villein tenure which has become copyhold tenure, there will be little difficulty about the establishment of a set of uniform rules which will serve as a “common law” for copyholds. Within the walls of a chartered borough peculiar customs can grow vigorously, for the charter will serve to protect them against the meddling of the king’s justices. The consuetudo of the borough will be the lex of the borough, and sometimes it will be solemnly committed to writing.57 But even here there is less variety than we might have looked for. The aspiring [p.165] town was often content to receive as a privilege the custom of some famous borough, Winchester or Bristol or Oxford, and thenceforward in case of doubt it would send to its mother town for an exposition of the rules that should guide it.58 On the whole, the local variations from the general law of the land are of no great moment, and seldom, if ever, can we connect them with ethnical differences or with remote history. We can no longer mark off the Danelaw from Mercia or Wessex; we hear of little that is strange from Cornwall or from Cumberland. The strong central power has quietly subdued all things unto itself. It has encountered no resistance. No English county ever rebels for the maintenance of its customary law.
Kentish customs.Kent is somewhat of an exception; it has a considerable body of customs; there is a lex Kantiae.59 In Edward I.’s day a written statement of these customs was sanctioned by the king’s justices in eyre.60 In the main they are concerned with the maintenance of a peculiar form of land-tenure known as gavelkind. The name seems to tell us that the chief characteristic of that tenure is or has been the payment of gafol, of rent, as distinguished from the performance of military service on the one hand and of agricultural labour on the other.61 There is in Kent a large class of landholders, who are not knights, who are not gentle folk; they pay rent to their lords; their tenure is protected by law; they are not burdened with “week work.” They are freemen; indeed in Edward I.’s day it is said that every one born in Kent is born free.62 The customs of Kent are, at least for the more part, the customs of these gavelkinders; customs which fall within the province of private law, which regulate the wife’s dower and the husband’s curtesy, which divide the dead tenant’s land among all his sons, showing however a certain preference for the youngest, which determine the procedure that the lord must adopt if his rent be in arrear, and which, contrary to the general law, allow the sons of the hanged felon to inherit from him. [p.166] Thus the task of accounting for the lex Kantiae is that of explaining a passage in the social and economic history of England, and a difficult passage. There is little in Domesday Book that marks off Kent from the surrounding counties, little indeed to make us think that at the date of the survey it was a peculiarly free county, that it was as free as the shires of the Danelaw.63 We shall hardly find an answer to our question in the fact that the churches held wide lands in Kent: church lands are not the lands on which as a general rule we find many freeholders or many freemen. No doubt some traits in the Kentish customs may be described as archaic—they enshrine Old English proverbs, and a legend grew up telling how the men of Kent had made special terms with the Conqueror—but probably we shall do well in looking for the explanation of what has to be explained to the time which lies on this side of the Conquest.64 Kent is no mountain home of liberty, no remote fastness in which the remnant of an ancient race has found refuge; it is the garden of England, of all English counties that which is most exposed to foreign influences. The great roads which join London to the seaboard are the arteries along which flows money, the destructive solvent of seignorial power. The tillers of Kentish soil can maintain their ancient or obtain new liberties, because their lords have learnt to want money and will rather have current coin than manorial rights. The gavelkinders are prosperous; they purchase a royal charter from Henry III.65 There is general prosperity in Kent: even the knights of the county are anxious that the lex Kantiae should be observed.66 All classes in the county seem to be bound together by a tie of local [p.167] patriotism. They feel that they are better off than other Englishmen are.67 In course of time there must be “treatises on gavelkind” and learned books on “the tenures of Kent,” for when once a district has established an exemption from certain of the ordinary rules of law, the number of the rules from which it is exempt will be apt to grow.68 But on the whole, the brief Kentish custumal of the thirteenth century is only a small exception to the generality of the common law.
Englishry of English law.English law was by this time recognized as distinctively English, and Englishmen were proud of it. From time to time rumours went round that the king’s detestable favourites were going to introduce foreign novelties from Poitou or Savoy. In a case for which no English precedent could be found our king’s court refused to follow foreign, presumably French, precedents.69 But the main contrast to English law was to be found in the leges et canones. Bracton, having probably taken some Italian legist at his word, entertained the belief that in almost all countries the leges scriptae prevailed, and that only England was ruled by unwritten law and custom.70 This was a mistake, for the Roman jurisprudence was but slowly penetrating into northern France and had hardly touched Germany; but it served to make a great contrast more emphatic: England was not governed by the leges scriptae. All men know how at the Merton parliament the assembled barons declared with one voice that they would not change the laws of England.71 Perhaps we do well to treat this as an outburst of nationality and conservatism. English law is to be maintained because it is English, for as to the specific question then at issue, namely, whether bastards should be legitimated [p.168] by the marriage of their parents, we should hardly have suspected our barons of having a strong and unanimous opinion on so arguable a point. Curiously enough in the very next year the Norman exchequer decided to follow the church’s rule, perhaps by way of showing that, despite King Henry’s claims, the breach between Normandy and England was final.72 But it is