to holy Mother Church and to the lord king and the barons of his realm
which were not in that document’.^26 In 1195 King Richard I insisted
that a long drawn-out dispute about the abbot of Crowland’s marsh be
decided ‘according to the custom of England’, meaning the procedures
of his courts.^27
It was an effective strategy for Henry to appeal to custom in his
conflict with Becket, because in England as in France and elsewhere the
customary rights of the crown, churches, and communes, and local
practices concerning marriage-contracts, the endowment of wives, and
the making of wills, were being turned by the selective enforcement of
kings and an embryonic legal profession into coherent bodies of terri-
torial law. To the statute-making of the universal church could be
opposed a supposedly ancient and unwritten customary law which was
the heritage of a particular people, though in fact it often consisted of
royal edicts of recent date. Glanvill and Bracton asserted that the
laws of England, though unwritten, were true laws because they were
promulgated by the king with the counsel of his magnates.^28 In the
Sachsenspiegel, Eike von Repgow insists that the papal legislation alter-
ing the prohibited degrees of matrimony cannot make right what the
German law of inheritance rejects,^29 and Bracton gives prominence to
the declaration of the English barons at Merton in 1236 that they
‘would not have the laws of England changed’ to comply with the
principle of canon law deeming children born out of wedlock to be
legitimized by their parents’ subsequent marriage and so (contrary to
feudal custom) able to inherit.^30 The compilation of 1272–3 known as
Les Établissements de Saint Louishas the great king insisting in his
orders to his baillisthat justice be done to plaintiffs ‘according to the
customs of the locality and the country’ (selonc la coustume dou pais et
de la terre).^31 Compiling his Summa Theologiaeat the same period,
Aquinas judged promulgation in writing by the governor of the com-
munity as ultimately essential to law, but accepted that the customary
practices of the people showed that conjunction of will and reason
which was also necessary to valid law-making.^32 The political struggles
of early modern Europe would reinforce the idea that law was best
made by the people out of their wisdom and experience, ‘like a silk
worm that formeth all her web out of her self’: the written laws were
196 Legal Ordering of ‘the State of the Realm’
(^26) Stubbs, Charters, 164–7; cf. English Lawsuits, 410, 428, 433–57.
(^27) English Lawsuits,683–4.
(^28) Davies, ‘The Peoples of Britain and Ireland: Laws and Customs’; Glanvill, ed. and tr.
Hall, 2; Bracton on the Laws and Customs of England, tr. Thorne, ii. 19.
(^29) Sachsenspiegel Landrecht, ed. Eckhardt, 76 (I, 3. 3).
(^30) Bracton on the Laws and Customs of England, tr. Thorne, iv. 296.
(^31) Les Établissements de Saint Louis, ed. P. Viollet (4 vols., Paris, 1881–6), ii. 414–15, iv.
265, 309–10.
(^32) Aquinas, Summa Theologica, I–II, q. 97, art. 3.