Hi Don,

I forwarded your post to Lucia Diamond (our Robbins Collection 
Librarian) who is not a list member. This is her response (copied/pasted):
I don't know much post-medieval, but I think another approach might be 
to consider the law of enclosure (inclosures). From the 15th century 
through the nineteenth, the English landlords enclosed (fenced off) more 
and more of their land (for reasons that differed through time and 
place) ending rights in common (rights of others to use your land). 
There was much resistance to this (which also differed in time and 
place), but in general one might say that the landowners were able to 
defy those who claimed rights in common. Fleming's second sentence 
describes what happened with the loss of rights in common.

See, e.g.,
Gonner, E. C. K. (Edward Carter Kersey), Sir, 1862-1922
Common land and inclosure
London : Macmillan, 1912
Scrutton, Thomas Edward, Sir, 1856-1934
Commons and common fields; or, The history and policy of the laws
             relating to commons and enclosures in England. Being the Yorke
             prize essay of the University of Cambridge for the year 1886
Cambridge, University Press, 1887


Lucia Diamond
Robbins Collection
School of Law (Boalt Hall) MC 7200
University of California at Berkeley
Berkeley, CA 94720-0001
Tel. (510) 642-5095
Fax (510) 643-8770
>> On 07/11/2008, at 10:21 AM, Buffaloe, Donald wrote:
>>> Please excuse the cross-posting.  I have been researching an issue 
>>> involving the development of tort law and am hoping that someone can 
>>> provide some assistance.  It involves the law of negligence and 
>>> varying degrees of the duty of care owed by the occupier of land to 
>>> visitors divided into the categories trespassers, licensees and 
>>> invitees.  I am looking for a more in-depth discussion of this 
>>> statement:
>>> The law relating to responsibility on dangerous premises long 
>>> resisted the pervasive trend of measuring the existence and scope of 
>>> duties of care by the broad standards of foreseeability of harm and 
>>> reasonable conduct. *Until well into the middle of the nineteenth 
>>> century the prominence and social prestige attached to landholding 
>>> defied all serious challenge to the claim by occupiers to be left 
>>> free to in the enjoyment and exploitation of the demesne without 
>>> subordination to the interest of the general public.*
>>> John G. Fleming, An Introduction to the Law of Torts 68 (1985).
>>> The professor who asked me to research this issue thinks that the 
>>> in-depth discussion would appear in a treatise on the history of 
>>> English law and not a treatise on tort law, periodical article or 
>>> case law.  We have several treaties on the history of English law, 
>>> including Holdsworth, William S., A history of English law, 7^th 
>>>  ed.; edited by A.L. Goodhart and H.G. Hanbury (1956-1966) and 
>>> Fifoot, C. H. S., History and sources of the common law: tort and 
>>> contract (1949).  I could not find anything in these treatises.
>>> I have also looked in Blackstone, Commentaries; Stephen’s 
>>> Commentaries on the Laws of England and various treatises on tort 
>>> law: Fleming, Salmond, and Clerk & Lindsell.  When I have found some 
>>> discussion of this, it is usually under the index entry “occupier”.  
>>> I have also been able to find relevant materials using the table of 
>>> contents under the broad category “negligence” and the sub-category 
>>> “duty of care”.
>>> I would be very grateful if anyone has any suggestions on new ways 
>>> to approach this project or sources that would contain this in-depth 
>>> discussion.  Thank you.
>>> Don Buffaloe Senior Research Services Librarian Pepperdine 
>>> University School of Law 24255 Pacific Coast Hwy. Malibu CA 90263 
>>> E-mail: [log in to unmask] 
>>> <mailto:[log in to unmask]> Telephone: (310) 506-4823  
>>> Fax: (310) 506-4836

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