not true laws which were framed ‘by the Edicts of Princes or [even]
by Councils of Estates’ and ‘imposed upon the Subject before any Trial
or Probation made, whether the same be fit and agreeable to to the
nature and disposition’ of the people.^33 For Lord Stair, writing his
summaof the Institutions of the Law of Scotland(published in 1693),
the statutes were best which were simply ‘approbationary or correctory
of experienced customs’, because customary law grew by obliterating
outdated ways from memory while ‘in statutory written law, the
vestiges of all alteration remain... and become labyrinths’—witness
‘the rambling state of English law’.^34
It was thus as the tried and tested customs of peoples that the first
national systems of law were justified against Roman law and canonical
legislation, though in fact they rested largely on the will and authority
of kings and imported many elements of the ‘learned laws’.^35 A
chronicler records that Henry II decreed for Normandy ‘the statute and
custom’ (hoc statutum et consuetudinem statuit) that vassals should not
be distrained for the debts of their lords; and the Norman Très Ancien
Coutumiercontains a number of clearly legislative acts of the twelfth-
century dukes, indicated by phrases such as communi consilio et
assensu statutum est.^36 By 1200 the fast-developing procedures of
English law could be described as consuetudo regni or consuetudo
Anglie.^37
In England ‘provisions’ was the favourite term for legislation by king
and barons in Henry III’s reign,^38 and ‘statute’ triumphed in the reign of
Edward I as a cognate of stabilimentum, établissement, a French term
for an ordinance, which looks as if it was derived from the order at the
end of royal charters that the grants should be established (stabilireor
stabilitatis obtineat munimentum) for all time coming.^39 In France law-
making by grants of ‘liberties’ or abolition of ‘bad customs’ in favour of
particular, most often ecclesiastical, beneficiaries (grants which, despite
the public witnessing and assurance of perpetuity, required submission
Law-books, custom, and legislation 197(^33) Sir John Davies, Irish Reports(London, 1674), preface.
(^34) James, Viscount of Stair, The Institutions of the Law of Scotland, ed. D. M. Walker
(Edinburgh and Glasgow UPs, 1981), 83–4.
(^35) For statements of the source of Imperial laws see Constitutiones imperatorum et regum
1325–1330, 519. 10 and Constitutiones... 1345–1348, 182. 5 ; for the vigorous diocesan
legislation of the church, especially following the fourth Lateran Council of 1215, see
C. R. Cheney, ‘Statute-Making in the English Church in the Thirteenth Century’, Proceedings
of the Second International Congress of Canon Law, 1963, ed. S. Kuttner and J. J. Ryan
(Rome, 1965).
(^36) Jean Yver, ‘Le ‘Très Ancien Coutumier’ de Normandie: Miroir de la législation ducale?’,
Revue de l’histoire de droit, 39 (1971), 342–3.
(^37) R. E. Latham, Revised Medieval Latin Word-List(London, 1965), 110.
(^38) Above, 186.
(^39) Assurance of perpetua stabilitaswas, of course, a general feature of charters: for an indi-
cation of its use in Germany, see the index to Friderici I Diplomata, 1168–1180,at p. 567.