German kingdom and ‘instituted by emperors’, who also confirmed to
bishops ‘the rule and customs and law’ of cathedral cities.^20 By the
‘Laws of William’, the Conqueror was said to have granted the people
of England ‘the laws and the customs (les leis e les custumes)’ that they
held under ‘Edward his kinsman’, promising especially to preserve the
peace of the church.^21 A great plea brought by the archbishop of
Canterbury in 1072 and heard by the king’s command on Penenden
heath before the men of Kent, ‘particularly the English who were
acquainted with the ancient laws and customs’, both established
Archbishop Lanfranc’s landed rights over against Odo of Bayeux and
judged ‘archiepiscopal customs’ in his own lands to be equal to ‘royal
customs’.^22 After Henry I’s death in 1135 the magnates ‘did away with
the new ordinance’ he had promulgated on rights to what could be
salvaged from wrecked ships and restored the ancient ‘maritime
customs and royal liberties’ of Battle Abbey, saying that the king might
‘change the ancient rights of the country for his own time’ but not for
posterity.^23
Under Henry II’s assertive rule ‘the custom of the king’ and ‘of the
realm’ achieved a new definition and came into conflict with the pro-
cedures and principles of ecclesiastical justice. An earl lost his suit
(though brought by royal writ) for the advowson of a living into which
he said a clerk had been intruded ‘against the custom of the whole
church and realm of the English, the king’s edict and the ancient liberty
of all nobles’. Finding for the monks of Abingdon against an official
who tried to seize the community’s property into the king’s hands along
with the deceased abbot’s, Justiciar Glanvill said that ‘our customs were
instituted reasonably and wisely’ and the king did not wish to go against
them when they were so ancient and just.^24 But whether the Church
won or lost, it was secular custom which decided. According to its
chronicler, the abbey of St. Albans lost property in Luton because a
local jury was swayed by witnesses whose evidence was ‘admitted by the
custom of the country’, even though their wickedness was obvious to
all.^25 In 1164, in the so-called ‘Constitutions of Clarendon’, Henry II
deliberately set ‘the acknowledged customs and privileges of the realm’
against the liberties claimed by Becket for the clergy, and was careful to
add that there were ‘many other great customs and privileges pertaining
Law-books, custom, and legislation 195(^20) For examples: Conradi III... Diplomata, 136, 299; Friderici I Diplomata, 1181–90, 34,
56–7, 60, 62–3, 73–5, 93, 96, 112, 170.
(^21) Die Gesetze der Angelsachsen, i. 317, 319, 487, 492, 525.
(^22) English Lawsuits, 8–9.
(^23) Ibid.255–6.
(^24) English Lawsuits, 353 (no. 395), 618 (no. 570), and cf. 344 (no. 381: ‘the custom of the
realm’), 355, 549 (no. 495) , 558 (no. 506: the ordeal of hot iron as custom of the realm).
(^25) Ibid.468 (no. 436).