for form sake. Having thus created an ambiguous appearance, they look to the presumption in favor of constitutionality to disarm criticism.

It has become the fashion in many fields to try to compromise in this way with constitutional restraint. When the influence of such cases as the Ben Avon Borough case has made itself felt, such compromises may lose some of their plausible appearance. Samuel C. Wiel.

SAN FRANCISCO.

CUSTOM AND THE COMMON LAW IN KENT

HE study of rural conditions in the countryside of medieval England leads into paths that are beset with danger for the student of history who is unlearned in the law. Yet an important approach to the study of the origin of the common law lies through the investigation of regional custom, which is distinctly the concern of economic as well as of legal history, and no study of early legal development can be complete which does not reckon with the affirmation, denial, or modification by the king's courts of such customary usages as lie, in the words of the Year Books, hors de la ley commune, or even encountre commune dreyt. By contrast with what lies outside it we may seek to limit more clearly the field of the common law. It is possible, in other words, to follow a little further in detail, although slowly, Maitland's brilliant definition of the common law in terms of what it was not.

The lines separating even the most marked of the contrasting fields of common law, on one hand, and special law and custom, on the other, are sometimes difficult to follow in a given instance. If, to take a specific example, the printed Year Books of the reign of Edward I be examined from the point of view of the relation between common law and specialty, a large number of cases will be found involving the competence of the king's courts in matters of prerogative, church law, law merchant, the law of Jewry, the forest law. From this point of view, too, the question of whether statute law in a matter in dispute confirms or defeats the common law or the custom formerly observed, becomes of great interest. For example, these Year Books state that the provisions of the statutes of Merton and of Westminster II" with regard to pasture, were "against the common law "; — as indeed must necessarily have been true, if to every free tenement of anciently arable land in the village there was originally appendant the right of common of pasture for all its cattle, levant

1 Y. B. 20-21 Edw. I, 355, 435; 21–22 Edw. I, 63. Cf. BRACTON, f. 229. 2 C. 4.

3 C. 46.

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4

and couchant, during all the year over all the waste. With such a customary right approvement of any portion of the common waste allowed by statute to lord or neighbour would obviously interfere. Another contrast prominent in these Year Books is that between the rules of common law and the privileges of the ancient demesne of the king. Certain tenements are said to be devisable by will and hence not held at common law: are they then, it is asked, in free borough or ancient demesne? Again, will an ordinary common-law writ (not the little writ of right close which was the peculiar privilege of ancient demesne) run for the recovery of a tenement in ancient demesne in the case of one who has the estate of the king in that tenement, for a parson whose only remedy is the utrum? Much is said also of the relation of common-law procedure to the customs of boroughs. Such customs might be exotic, originating in franchise, or they might be already existing regional customs embodied in franchise, an example of the second kind may be the curious payment, sometimes called "fulstingpound" in rural Ramsey manors, which closely resembles the twelve-penny amercement of burgage tenure, derived by Miss Bateson from Breteuil.

6

5

There remain a large number of cases, usually less clear in their outline and less often studied by legal historians, amongst which, from one point of view, those having to do with ancient demesne privilege or the indigenous customs of boroughs might be included, where the "custom of the country," consuetudo loci or patrie, vsage du pays, the custom prevalent in the region in question, is urged in the pleading before the court by either party. The best known "custom" is that of Kent," but the

4 Y. B. 21-22 EDW. I, 71; 33-35 EDW. I, 311. Cf. Y. B. 6-7 Edw. II (Seld. Soc.), 54; and 3 EYRE OF Kent (Seld. Soc.), 155, where gavelkind tenants are said to be nearer the common law than ancient demesne socmen.

5 Y. B. 20-21 EDW. I, 379: "Tut ne seyent le tenements dedeyns le maner a la commune ley, si nous, ke avioms le estat nostre seygnur le rey, ne pusum aver nostre rekeveryr par la commune ley."

6 Ibid., 449. Cf. ibid., 393; Y. B. 30-31 EDW. I, 19; 32-33 EDW. I, 101 et seq. 7 For example, Y. B. 20-21 EDW. I, 221, 265, 307; 21-22 EDW. I, 55, 287; 30-31 EDW. I, 461, 545; 32-33 Edw. I, 409, 511; 33-35 Edw. I, 73, 77, 83, 117. 8 Cf. M. Bateson, "Laws of Breteuil," 16 ENG. HIST. REV. 92; N. Neilson, Customary Rents," 2 OXFORD STUDIES IN SOCIAL AND LEGAL HISTORY, 52, 91, 119, 177 et seq.

9 Y. B. 20-21 EDW. I, 327; 30-31 EDW. I, 165 et seq.; 33-35 EDW. I, 351.

21

custom of Cornwall,10 the custom of the north where cornage prevailed," and the custom of the county of York,12 also emerge clearly in these Year Books. Here or elsewhere too, are indications of the custom of the county of Gloucester,13 the custom of the county of Norfolk,1 the "custom of the fen," 15 seen both in measures for defence and also in pasture rights, the use of the forest defendue of Coupland in Cumberland,16 the usages of Dartmoor,1 of the woods of Essex,18 of the weald of Kent,19 of the tenements of the boscage in Sussex,20 the customs with regard to partibility of tenement elsewhere than in Kent,"1 and the custom of borough English, especially in southern Sussex.22 These are undoubtedly only a very few of the possible examples of the consuetudo loci; further study of different regions will reveal more" of the customs of counties, cities, boroughs, and vills," recognized as such, it will be remembered, by Bracton,23 and will throw further light on those already known. Perhaps in the end, especially if the search for evidence be extended from pleadings before courts to the many examples of the " custom of the manor" of which the royal courts may rarely have to take cognizance, it will be possible to know something of the regional custom of most parts of England, over which the law of military tenements has been laid.

The consuetudo loci was evidently territorial in the sense of

Cf. also 1 STAT. OF REALM, 223–225, 226–227; EYRE OF KENT (Seld. Soc.), passim; ABB. PLAC., 44, 144; et passim in legal records.

10 Y. B. 30-31 EDW. I, 165 et seq.

11 Y. B. 30-31 EDW. I, 65 et seq.

12 Y. B. 30-31 EDW. I, 545; 33-35 Edw. I, 239, 457.

13 See De Prerogativa Regis, 1 STAT. OF REALM, 226.

14 Y. B. 6-7 EDW. II (Seld. Soc.), 54.

15 See N. Neilson, "Terrier of Fleet," 4 BRIT. ACAD. RECORDS, xlix et seq., lvi et seq.; BLACK BOOK OF ST. Augustine, G. J. Turner and H. E. Salter ed., I BRIT. ACAD. RECORDS, 99.

16 See "Terrier of Fleet," supra, 106.

17 See S. A. Moore,

66

Rights of Common," I DARTMOOR PRESERVATION

SOCIETY.

18 See FISHER, FORESTS OF ESSEX; J. H. Round, "Forest of Essex," 3 JOUR. ARCHAEOL. ASSN. (N. S.) 36 et seq.

19 See, for example, FURLEY, WEALD OF KENT.

20 See Lambeth MS. 1212, ff. 85, 225, 422.

21 See, for example, I STAT. OF REALM, 227; REID, COUNCIL OF THE NORTH, 6. See especially 2 POLLOCK AND MAITLAND, HISTORY OF ENGLISH LAW, 270, and note. 22 See 6 SUSSEX ARCHAEOL. Soc. 164 et seq. 23 BRACTON, DE LEGIBUS, f. 1.

having force within a given region, but within that region it was applicable to certain classes only, not to all dwelling there. Not all tenants of manors in ancient demesne had the privileges of the special remedies, but only those called free sokemen; not all dwellers in a borough had the custom thereof, but only the burgesses; not all tenants in Kent held in gavelkind, although the legal assumption within all the county was in favour of gavelkind and contrary condition had to be proven as specialty; not all tenements in wild and waste regions of fen and wood had the benefit of certain pasture rights, but only the ancient tenements. Thus rights of common for cattle "horn under horn" in the waste of several vills, pur cause de vicinage, were appendant only to land anciently hided, de tut temps hide; newer tenements paid for the privilege of commoning in the waste.24

Perhaps in this attempt to block out some of the fields of custom or law which lie outside the common law, a word should be said of the great and difficult tenure of socage, whose history is yet to be written. While probably generally considered a common-law tenure, it was yet closely akin to ancient demesne and the gavelkind practices of Kent, and might for purposes of argument at least be placed by a hard pressed lawyer hors de la ley commune.2 If the common law was regarded, as seems frequently but not invariably to have been the case, as primarily the law of military tenements, it is clear that socage, the survival of earlier conditions, would require at least an extension of that law to cover it. Definition is lacking, however, and contradictory evidence can be educed from the pleadings. Generalization on such matters was wisely avoided by the law.

25

No region of England affords more important evidence for the study of local custom, vsage du pays, than the county of Kent. Its position across some of the most travelled roads communicating with the continent led even in Norman times to an early self-consciousness and a formulation of customary arrangements with regard to lands and persons, too clearly recognized to be

24 See "Terrier of Fleet," supra, x et seq., xlix et seq.

25 See Y. B. 6-7 EDW. II (Seld. Soc.), 54: "Toudeby: En cel socage qe nest mye accordaunt a la commune ley la ou les tenementz sount entremellez . . . Herle: La graunte chartre parle generalment qe tant auant fet a entendre de sokage cum descuage."