An earlier version of this paper was read at the Social Science History Association's Conference in October, 1986. I am grateful for the comments of the participants: Jacques Beauroy, Elaine Clark, Ed Dewindt, Larry Poos and Michael Sheehan, who participated in the session. When the paper was subsequently presented to a faculty colloquium at the University of Iowa College of Law, the ensuing discussion assisted the author in sharpening what may have been rather dull ideas. Thanks are also due to Chris Dyer and Richard Wall for their careful reading and useful comments.

¹ An increasing number of legal historians of premodern England trained as lawyers have appended a consideration of its effects upon society and economy to their discussion of legal development. For example, see The Reports of Sir John Spelman, Baker, J. H., ed. (London:Selden Society, 1976–77) Vol. 93–94;Google ScholarDonahue, Charles, Jr.'s attempt to explain the difference in the types of matrimonial cases heard in France and England, “The Canon Law on the Formation of Marriage and Social Practice in the Late Middle Ages,” Journal of Family History, 8 (1983), 144–58;CrossRefGoogle ScholarGreen's, Thomas work on the development of the jury, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury (Chicago:University of Chicago Press, 1985),CrossRefGoogle Scholar and my own study of Marriage Settlements 1601–1740; The Development of the Strict Settlement (Cambridge:Cambridge University Press, 1983). This list is, of course, incomplete; my apologies to those excluded.Google Scholar

² Again, an inexhaustive list. Perhaps the most fertile area has been the history of crime, see Beattie, J. M., Crime and the Courts in England, 1660–1800 (Princeton, N.J.:Princeton University Press, 1986);Google Scholar the essays in Gatrell, V. A. C., Lenman, Bruce and Parker, Geoffrey, eds., Crime and the Law: the Social History of Crime in Western Europe since 1500 (London:Europa Publications, 1980);Google Scholar and those in Hay, D., Linebaugh, P. and Thompson, E. P., eds., Albion' s Fatal Tree: Crime and Society in Eighteenth Century England (London, 1975; 1st American ed., New York:Panthenon Books, 1985);Google ScholarHanawalt, Barbara, Crime and Conflict in English Communities, 1300–48 (Cambridge, Mass.:Harvard University Press, 1979);Google ScholarSharpe, J. A., Crime in Seventeenth–Century England: A County Study (Cambridge:Cambridge University Press, 1983).Google Scholar Also local studies of village communities, see Wrightson, Keith and Levine, David, Poverty and Piety in an English Village: Terling 1525–1700 (New York:Academic Press, 1979);Google ScholarSpufford, Margaret, Contrasting Communities: English Villagers in the Sixteenth and Seventeenth Centuries (Cambridge:Cambridge University Press, 1974).CrossRefGoogle Scholar Medievalists have been well served by at least two of Hilton's, R. H. many works, A Medieval Society: the West Midlands at the End of the Thirteenth Century (London:Weidenfeld & Nicolson, 1967)Google Scholar and The English Peasantry in the Later Middle Ages: the Ford Lectures for 1973 and Related Studies (Oxford:Clarendon, 1975).Google Scholar See also Homans, George, English Villagers of the Thirteenth Century (Cambridge, Mass.:Harvard University Press, 1941);CrossRefGoogle ScholarDyer, Christopher, Lords and Peasants in a Changing Society: The Estates of the Bishop of Worcester 680–1540 (Cambridge:Cambridge University Press, 1980);Google ScholarHanawalt, Barbara, The Ties that Bind: Peasant Families in Medieval England (New York:Oxford University Press, 1986).Google Scholar Also notable is Alan Macfarlane's use of legal records to reconstruct English culture and values in The Origins of English Individualism: The Family, Property and Social Transition (Oxford:B. Blackwell, 1978)Google Scholar and Marriage and Love in England: Modes of Reproduction 1300–1840 (Oxford:B. Blackwell, 1986).Google Scholar

³ The Social Science History Association (United States) has a network in “Criminal Justice/Legal History.” The next meeting of the Conference on British Legal Manuscripts will focus on the social and economic ramifications of legal doctrine.

⁴ Law and History Review, published since 1983 by the American Society for Legal History and Cornell Law School; and Continuity and Change, published since 1986 by the Cambridge University Press, in association with Tulane University Law School and the Cambridge Group for the History of Population and Social Structure. Past and Present has consistently published interdisciplinary legal history.

⁵ The Past and Present Series, published by the Cambridge University Press, and the joint publication of volumes by the Cambridge University Press and the Editions de la Maison des Sciences de L'Homme are examples.

⁶ To the work of Hilton, and Dyer, , add Marjorie McIntosh, K., Autonomy and Community: The Royal Manor of Havering, 1200–1500 (Cambridge:Cambridge University Press, 1986);Google Scholar and the monographs from the “Toronto school”: Britton, Edward, The Community of the Vill (Toronto:Macmillan of Canada, 1977);Google ScholarDewindt, Edwin, Land and People in Holywell–cum–Needingworth (Toronto:Pontifical Institute of Medieval Studies, 1971);Google Scholar and the trilogy, J. A. Raftis's, The Estates of Ramsey Abbey: A Study in Economic Growth and Organization (Toronto:Pontifical Institute of Medieval Studies, 1957);Google ScholarTenure and Mobility: Studies in the Social History of Medieval English Village (Toronto:Pontifical Institute of Medieval Studies, 1964);Google Scholar and Warboys: Two Hundred Years in the Life of an English Medieval Village (Toronto:Pontifical Institute of Medieval Studies, 1974). Articles are too numerous to cite; some are mentioned below.Google Scholar

⁷ Razi, Zvi, Life, Marriage and Death in a Medieval Parish: Economy, Society and Demography in Halesowen 1270–1400 (Cambridge:Cambridge University Press, 1980).Google Scholar

⁸ Raftis, , Tenure and Mobility, 129–82;Google ScholarRaftis, , Warboys, 13–152, 264–5;Google ScholarPoos, L. R., “Population Turnover in Medieval Essex: The Evidence of some Early–Fourteenth Century Tithing Lists,” in The World We Have Gained: Histories of Population and Social Structure, Bonfield, Lloyd, Smith, R. M., Wrightson, Keith, eds. (Oxford:B. Blackwell, 1985), 1–22.Google Scholar

⁹ Smith, R. M., “Kin and Neighbours in a Thirteenth Century Suffolk Community”, Journal of Family History, 4:3 (Fall, 1979).CrossRefGoogle Scholar

¹⁰ Bennett, Judith, Women in the Medieval English Countryside (New York:Oxford University Press, 1987).Google Scholar

¹¹ See the debate between Razi, Smith, and L. R. Poos in the pages of Law and History Review: Poos, L. R. and Smith, R. M., “'Legal Windows Onto Historical Populations'? Recent Research on Demography and the Manor Court in Medieval England,” Law and History Review, 2:2 (1984), 191–200;CrossRefGoogle ScholarRazi, Zvi, “The Use of Manorial Court Rolls in Demographic Analysis: A Reconsideration,” Law and History Review, 3:2 (1985), 523–35;CrossRefGoogle ScholarPoos, L. R., Smith, R. M., “Shades Still on the Window: A Reply to Zvi Razi,” Law and History Review, 3 (1985).CrossRefGoogle Scholar

¹² Hilton, , Medieval Society; idem, English Peasantry;Google ScholarHomans, , English Villagers;Google Scholar also, members of the Toronto School. Smith, R. M., “Marriage Processes in the English Past: Some Continuities,” in The World We Have Gained, Smith, Bonfield and Wrightson, , eds., 43–49.Google Scholar

¹³ Smith and Poos use this metaphor in Law and History Review, 3 (1984),Google Scholar and reply to Razi in volume 4. Hilton, R. H. uses the term “mirror” in Medieval Society, 73.Google Scholar

¹⁴ I regard it as sufficiently reckless for an early modern legal historian to jump headlong into the turf of medieval social historians without further invading the discipline of legal anthropology. My use of the term means simply that behavior is prescribed by a particular society and somehow embedded in the collective consciousness. Peter Laslett terms them “noumenal normative rules” and defines them as “programmatic principles embedded in collective attitudes.” See his “Demographic and Microstructural History in Relation to Human Adaptation: Reflections on Newly Established Evidence,” in How Humans Adapt: A Biocultural Odyssey, Ortner, D. J., ed. (Washington:Smithsonian Institution Press, 1983), 343–70, 358.Google Scholar

¹⁵ The purpose of this paper is to begin an inquest (and I stress begin) into the legal nature of customary law by testing the assumptions articulated above. To do so will require the discussion of particular research; in short, the pointing of fingers at named individuals. My intention, however, is not to belittle the painstaking work of others; rather in the spirit of “cohabitation,” to develop a theory of customary law that may assist in employing court rolls to illuminate medieval English social history.

¹⁶ An example of the depth of this premise of modernity is Eleanor Searle's statement that a villain had no appeal to a higher court, as if redress for erroneous decisions was recognized in medieval English jurisprudence. “Seignorial Control of Women's Marriage: The Antecedents and Function of Merchet in England,” Past and Present, 82 (1979), 3–43.CrossRefGoogle Scholar Review of decisions through a regularized system of judicial appeal was not integral to the medieval English system of jurisprudence. See Baker, John, An Introduction to English Legal History, 2d ed. (London:Butterworth, 1979), 116–23.Google Scholar

¹⁷ For a general discussion of the law of villeinage, see Hyams, Paul, Kings, Lords and Peasants in Medieval England: The Common Law of Villeinage in the Twelfth and Thirteenth Century (Oxford:Clarendon, 1980).Google Scholar

¹⁸ Selden Society, London, 1889, Vol. 2, xi.

¹⁹ Ibid., lx.

²⁰ Searle, , “Merchet in Medieval England”; Jean Scammell, “Freedom and Marriage in Medieval England,” Economic History Review, 2d Ser., 27:4 (01, 1974).Google Scholar

²¹ See for example, Hilton, R. H., “Freedom and Villeinage in England,” in Peasants, Knights and Heretics: Studies in Medieval English Social History, Hilton, R. H., ed. (Cambridge:Cambridge University Press, 1976) 174–91.Google Scholar

²² Raftis, Tenure and Mobility, 108.

²³ See for example the printed Sussex customals: Peckham, W. D., ed., Thirteen Customals of the Sussex Manors of the Bishop of Chichester (Sussex Record Society, 1925), Vol. XXXI;Google ScholarRedwood, R. C. and Wilson, A. E., eds., Customals of the Sussex Manors of the Archbishop of Canterbury (Sussex Record Society, 1958), Vol. LVII;Google ScholarWilson, A. E., ed., Customals of the Manors of Laughton, Willimingdon and Soring (Sussex Record Society, 1961), Vol. LX. The dispute over the millstone was to be resolved by a search of the “the register of their customs and services,” Raftis, Tenure & Mobility, 108.Google Scholar

²⁴ . Ibid., 69.

²⁵ Peckham, , ed., Thirteen Customals, 55.Google Scholar

²⁶ Maitland, , Select Pleas, xlv.Google Scholar

²⁷ Clark, Elaine, “Some Aspects of Social Security in Medieval England,” Journal of Family History, 7:4 (Winter, 1982), 307–20.CrossRefGoogle Scholar

²⁸ Milsom, S. F. C., “Law and Fact in Legal Development,” University of Toronto Law Journal, 17 (1967), 1–19.CrossRefGoogle Scholar

²⁹ The notable exception is John Beckerman's unpublished 1972 University of London Ph.D. thesis, “Customary Law in English Manorial Courts in the Thirteenth and Fourteenth Centuries”; see also Smith, R. M., “Some Thought on `Hereditary and ‘Proprietary’ Rights in Land under Customary Law in Thirteenth and Early Fourteenth Century England,” Law and History Review, 1:1 (1983), 95–128.CrossRefGoogle Scholar

³⁰ Smith, “Marriage Processes,” 52–63.

³¹ I recognize that precedent in historical context may have rather a different technical meaning than its present one. In the instant context, I mean simply that the manor court felt compelled to reach a decision in a particular case because a previous case with similar and indistinguishable facts was decided in a given way.

³² For a discussion of the concepts of substantive due process and equal protection, see Levy, Leonard, Karst, Kenneth and Mahoney, Dennis, eds., Encyclopedia of the American Constitution, 4 vols. (New York and London, 1986) Vol. 2, 589–90, 640–7.Google Scholar

³³ Smith, , “Marriage Processes in the English Past,” 52, citing Hilton, The English Peasantry;Google Scholar and Hanwalt, Barbara, Crime and Conflict in English Communities. Maitland was the first historian that I could find who refers to marriage in this vein.Google ScholarPollock, Frederick and Maitland, F. W., The History of English Law Before the Time of Edward I, 2d. ed., 2 vols. (Cambridge, 1968) Vol. 2;, 369.Google ScholarSmith's, view of peasant marriage is strikingly similar to that of Homans, English Villagers, 163–6.Google Scholar

³⁴ For a fuller discussion, see Hehnholz, R. H., Marriage Litigation in Medieval England (Cambridge:Cambridge University Press, 1974), 26–31;Google Scholar and Donahue, Charles, Jr.'s two interesting articles: “The Policy of Alexander the Third's Consent Theory of Marriage,” in Proceedings of the Fourth International Congress of Medieval Canon Law, Kuttner, Stephen, ed. (Vatican City, 1976), 251–81;Google Scholar and “The Canon Law on the formation of Marriage and Social Practice in the Later Middle Ages,” Journal of Family History, 8:2 (Summer, 1983), 144–58.CrossRefGoogle Scholar

³⁵ Smith, “Marriage Processes,” 52.

³⁶ Although Smith equates trothplight with marriage in the minds of English villagers, he never defines it. Because he makes the argument that the villagers' view conformed to the Alexandrine position, I am assuming that he considers the verbal requirement in its broadest sense as promises to marry using either words of present consent or future consent. For the latter to bind would require intercourse, and as a practical matter, it is difficult to see how the community perceived it. It is relatively easy to envisage a community norm that regarded words of present consent as binding. In this sense a promise to marry is treated no differently than any other contract or undertaking to pay a debt. On the other hand with promises of future consent the words themselves have no binding effect. It was the act of intercourse, of which presumably they might be ignorant (at least for a while) that would transform the promises into marriage. One might argue that the manor court made decisions based upon evidence of what had previously transpired but does this mean that it was a court judgment which created the marriage in the mind of the villager?

³⁷ Ibid., 57.

³⁸ Ibid., 69.

³⁹ To some extent, his process of deduction is questionable. In the first place, Smith, while arguing on the one hand that conceptions of entrance into marriage are fixed and therefore marriage is not informal, concedes that many cases of fornication must be attributable to uncertain trothplights. Regardless of which ceremony prevailed in the minds of medieval villagers as tantamount to a formal union, the argument that exactly what constituted entrance into marriage was uncertain is surely substantiated if significant numbers of villagers misunderstood the ceremonial mechanics required in its formation, be it trothplight or church solemnization. Moreover, if the Alexandrine position had captured the hearts and minds of the peasantry sufficiently to affect property relationships, present consent or words of future consent followed by sexual intercourse rather than plighting troth (which did not establish a valid marriage under Alexander's rules) should have been the event that established a valid marriage.

⁴⁰ Pollock, and Maitland, , The History of English Law, Vol II, 374.Google Scholar

⁴¹ For the reference to the Social Security case, see 42 United States Code Annotated, Sec. 402, 416(a); see also Chlystek v. Califano, 599 F. 2d, 1270 (1979).Google Scholar

⁴² In Super v. Burke, 367 So.2nd 93 (La. App. 4th Cir. 1979) a man sought to annul his marriage on the grounds that a foreign divorce that he obtained from his first wife was invalid. While the court held the second marriage null, the woman was entitled to alimony under the Louisiana Civil Code.

⁴³ Further examples, as provided for me by Professor Harvey Couch include Oregon Rev. Stat. § 656.226 (although a person is unmarried, the partner and his/her children will receive workman's compensation payments); and Estate of Borax v. Commissioner, 349 F.2d 666, 2nd. Cir. 1965 (although a man's Mexican divorce was invalid and therefore his second marriage void, the man and his partner would be considered married for tax purposes).

⁴⁴ Smith, “Marriage Processes,” 64, esp. n. 78.

⁴⁵ Bennett, , Women in the Medieval English Countryside, 165.Google Scholar

⁴⁶ PRO.DL30.65.817 (10-May 1361): Ad istam curiam venit Thomas Bowyere bedellus do–mini cum Galfridus Poynaunt in sua magna egritudine tamen sanus mente secundum conseutudines manerij ut dicitur et reddidit tria quarteria terre customarie cum suis pertinentiis vocata Yonges boven et modo in ista plena curia venit predictus Thomas et sursumreddit in manum domini predicta tria quarteria terre … ad opus Johannis Poynaunt … et quia videtur senescallo curie quod nullus tenens ad voluntatem domini possit se dimittere de terris et tenementis … absque licencia domini et hoc in plena curia prefata redditio … non allocatur sed pro nullo tenetur … et statim venit communitas villate de Alta Estre et similiter communitas de Waltham et dicunt quod est consuetudo usitata in utraque villata et a tempore quo non existat memoria … quod quilibet nativus domini et quicumque tenens in bondagio domini eger et languens non potens ire ad curiam … potuit reddere in manum praepositi seu bedelli villatarum predictarum tenementa sua … ita quad ipse praepositus aut bedellus in curia … sursum redderet illud tenementum in manum domini ad opus perquisitorum… I owe this reference to Professor L. R. Poos, with whom I am engaged in a study of marriage and family law in manorial courts 1300–1550 and that is to be published by the Selden Society.

⁴⁷ Bennett, , Women in the Medieval English Countryside, 109.Google Scholar

⁴⁸ Ibid., 112.

⁴⁹ Ibid., 124.

⁵⁰ The case is noted as follows: The land held by John, s. of Nicholas Kenward, to be seized into the lord's hands, because he is dead. And as Nicholas, his elder son, was born before marriage, and Thomas, his younger son, after, —counsel is to be taken thereon with the Earl's advisers [consuland' est inde cu' consilio d'ni Corn'].

Admittedly, the roll does not state whether Nicholas was born before marriage or after trothplight; but if the court was so uncertain here, how strong could have been their understanding of marriage formation rules? Lister, ed., Wakefield Court Rolls III, 91.

⁵¹ It is generally accepted that inheritance customs varied in English manors. Homans, , English Villagers;Google Scholar and Faith, Rosamond, “Peasant Family's and Inheritance Customs in Medieval England,” Agricultural History Review, 14 (1966) 77–95.Google Scholar

⁵² Toms, E., ed., Abstract of Chertsey Abbey Court Rolls, Surrey Record Society, 21 1937), 151–2.Google Scholar

⁵³ Ibid., 22,28,29,30, (among others).

⁵⁴ Ibid., 151–2; Razi, , Life, Marriage and Death, 65–6.Google Scholar

⁵⁵ Walker, J. W., ed., Court Rolls of the Manor of Wakefield: from October 1331 to September 1333 (Yorkshire Arch. Soc., 1982), iii, 161.Google Scholar

⁵⁶ Beckerman, John, “Customary Law in Manorial Courts in the Thirteenth and Fourteenth Centuries” (Ph.D. thesis, University of London, 1976), 156–7.Google Scholar

⁵⁷ Smith, “Marriage Processes in the Past”, 58, n. 52.

⁵⁸ For a fuller discussion, see Bonfield, Lloyd and Poos, L. R., “The Development of the Deathbed Transfer in Medieval English Manor Courts,” Cambridge Law Journal, 47:3 (1988).CrossRefGoogle Scholar

⁵⁹ Smith, “Some Thoughts,” 106–7.

⁶⁰ Searle, “Merchet in Medieval England,” 6.

⁶¹ In his comment to a version of this article presented at the Social Science History Conference, Professor Dewindt suggested that historians might better avoid the use of the term “customary law” and refer to the governing principles as “custom.” It may be salutory advice. It is well worth recalling Father Raftis's remark that “customary law was far too vital … to require exposition in the court rolls” (Tenure & Mobility, 55).

⁶² The literature on alternative dispute resolution is nearly boundless. The American Bar Association has published a bibliography: American Bar Association Special Committee on Alternative Means of Dispute Resolution, A Selected Bibliography (Washington, D.C., 1982).Google Scholar

⁶³ “Paths to Justice: Major Public Policy Issues of Dispute Resolution: Report of the Ad Hoc Panel on Dispute Resolution and Public Policy,” National Institute for Dispute Resolution (1983), reproduced in Kanowitz, L., Cases and Materials in Alternative Dispute Resolution (St. Paul, 1986), 26.Google Scholar

⁶⁴ For an historical discussion of “communitarian” dispute resolution in America, see Auerbach, Jerold, Justice Without Law (Oxford:Oxford University Press, 1980).Google Scholar See also, Nelson, William E., Dispute and Conflict Resolution in Plymouth County, Massachusetts, 1725–1825 (Chapel Hill, N.C.:University of North Carolina Press, 1981).Google Scholar

⁶⁵ Kanowitz, Cases and Materials, 13.

⁶⁶ Edwards, H. T., “Hopes and Fears for Alternative Dispute Resolution,” Williamette Law Review, 21:3 (Summer, 1985), 425.Google ScholarWahrhaftis, Paul, “Non–Professional Conflict Resolution,” Villanova Law Review, 29:6 (10, 1984), 1466.Google Scholar

⁶⁷ Kanowitz, , Cases and Materials, 12, 14.Google Scholar

⁶⁸ McKais, Robert, “Civil Litigation and the Public Interest,” Kansas Law Review, 31 (Spring, 1983), 355–76.Google Scholar

⁶⁹ Toms, , ed., Chertsey Abbey Court Rolls, 105–6.Google Scholar

⁷⁰ I am engaged in research on a Selden Society volume on “Family and Property Law in Manorial Courts” with Professor L. R. Poos.