often bad, particularly the consuetudines, the customary liberties and
exactions, of the feudal aristocracy.^13
Yet ‘custom’ was the best word to describe the royal grants, pro-
cedural rules, and court judgments which made up the emerging bodies
of national law. In the plural consuetudinesmeant the rights and
exactions permitted to lords.^14 In the singular ‘custom’ was used by a
late Anglo-Saxon tract on ‘the rights and ranks of people’ for the service
required of the peasantry; ‘customary tenants’ became the term for
unfree peasants, just because the level of labour services depended on
local need, and ‘the laws and customs of countries are many and
varied’.^15 From Merovingian times ‘custom’ had been paired with ‘law’
to describe the practices, sanctioned by antiquity but varying from place
to place, by which husbands endowed their wives at marriage and
distributed property to their families and to the church at death.^16
The ‘Barbarian Laws’ may be seen as Roman law modified by the
customary practices of the provinces of the Roman Empire.^17
The practices of courts were ‘custom’. A Frankish formulary cites a
‘custom of this place [Tours] and also of the law of earthly justice’ that
whoever suffers the burning of his property and title-deeds should go
into the public court and get two letters certifying what he held quieto
ordine, one to be put up in the market-place, the other to be shown to
king or prince to obtain a new charter.^18 In a Sens formulary there is a
written agreement between a vendor and an emptor, such as ‘reason and
custom’ demands; a notitiacertifying, according to ‘law and custom’,
that a killing was in self-defence; and a mandate for the appointment of
an advocate in a form ‘instituted by laws and preserved over the years
(per tempora) by custom’.^19
Peace oaths and judicial ordinances could be seen as additions to
custom. The protection of the clergy was both ‘an ancient custom’ of the
194 Legal Ordering of ‘the State of the Realm’
(^13) Gratian, Decretum, distinctionesVIII, X, XI, XII; G. Le Bras, Histoire du droit et des
institutions de l’église en occident, vii (Paris, 1965), 399–402, 553–7; La Coutume: Custom,
Transactions of the Jean Bodin Society for Comparative Institutional History, 52 (Brussels,
1990), especially cap. 3: J. Gaudemet, ‘La Coutume en droit canonique’; J. Gilissen, La
Coutume(Typologie des Sources du Moyen Âge Occidental, Turnhout, 1982).
(^14) For examples: English Lawsuits from William I to Richard I, ed. R. C. van Caenegem,
Selden Soc. 106–7 (London, 1990–1), 7, 254, 617–18.
(^15) Die Gesetze der Angelsachsen, i. 261.
(^16) Formulae Merowingici et Karolini Aevi, 16. 25 , 20. 20 , 23. 15 , 24. 30 , 70. 1 , 142.20,
- 25 , 164. 1 , 208. 1 , 210. 10 , 247. 1 , 502. 5 , 539. 20 , 590. 15 , 591. 25 ; Heinrici III Diplomata,
428; Conradi III... Diplomata, 133, 261; A. Gouron, ‘La Coutume en France au moyen âge’,
in La Coutume: Custom, 196, 199.
(^17) P. S. Barnwell, ‘Emperors, Jurists and Kings: Law and Custom in the Late Roman and
Early Medieval West’, Past and Present,168 (2000).
(^18) Formulae, 151.9, cf. 4. 4 , 21.31, 28. 17 , 37. 15 , 97.15,48.4, 171. 11 , 17,192. 7 , 216. 22 ;
Die Gesetze der Angelsachsen, i. 42, 46 (49 and 49.8), 171 (1,2), 320 (15.2) for Anglo-Saxon
dooms or iudiciawhich seem to make substantive law.
(^19) Formulae, 186.5.