Customary law before the Conquest

Customary law before the Conquest

By Derek Roebuck

Amicus Curiae, Issue 68 (2006)

Introduction: In trying to discover how disputes were settled by mediation in Anglo-Saxon England, I found that the practice must have relied on a quite sophisticated law of property. In a dispute between a religious house and the heir of someone who had given it land, the mediators could suggest and the parties regularly accepted the grant of a life interest to the heir, provided no objection was made to the assembly confirming the house’s title. The Fonthill Case is the best known example of such a dispute (“The Fonthill Letter” in Michael Korhammer ed. Words, Texts and Manuscripts: Studies in Anglo-Saxon Culture Presented to Helmutt Gneuss on the Occasion of his 65th Birthday Cambridge, Brewer 1992 53–97). A life interest at any time must incorporate implied terms of considerable refinement, relating to waste if nothing else and probably restrictions on alienation. The first relevant legislation was the Provisions of Westminster 1259 (re-enacted by the Statute of Marlborough 1267) but the implied terms remained largely a Common Law matter. What supplied those terms? It could only be customary law. But where had it come from and how had it developed? I decided to start at the beginning.

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