If the coutumiers were written as a response to a specific question, then surely that question was ‘What is custom?’ Its substance was obvious in some ways and not in others. Custom could refer to a wide range of personal and social habits. The coutumier authors were writing in response to a question about custom as a form of law, about practices and rules that were understood to have gained legal force.Footnote 1 Despite this specification, the question could still be answered in multiple ways – both implicitly by choosing which set of individual customs counted as ‘the custom’ of a particular place and in choosing how to discuss them, as well as explicitly through attempts to define the term itself.Footnote 2 Indeed, coutumier authors were not the only ones tackling the question. As they embarked on the task of defining custom and figuring out how to write about it, communities of canonists and Roman lawyers had already started wrestling with the notion of custom and continued to do so throughout the thirteenth century.
Each of these communities approached custom in overlapping yet distinct ways because of different interests, source material, and practical concerns. Jurists who studied Roman law tried to make sense of custom by theorizing its definition as well as its applicability through the notion of proof. Meanwhile, medieval ecclesiastics and canon lawyers sought to understand the place of custom in the framework of the church.
These different communities have given rise to different modern fields of study, and histories of custom in these fields have different starting points and emphasis. The history of custom in Roman law might touch on a Greek legacy but normally begins with Cicero and then turns to imperial jurists and codes of late antiquity. It often elides the early medieval period before looking to the Roman law revival and the robust juristic commentary practices on custom that developed thereafter. The history of custom in canon law normally begins with biblical notions of custom (usually with the New Testament), and then turns to the bishops of antiquity and the continuity of the tradition in the early medieval period, before looking to the great books and pronouncements on the subject in the central and high Middle Ages.
The history of custom in secular law, for northern France, generally divides into two periods. One covers the early Middle Ages to the end of the eleventh century, understood as a period of customary law because legal practice was not professionalized and notions of law blurred with other forms of moral imperative.Footnote 3 The next phase of this history begins around the twelfth century, when custom came to describe the primary norm of common transactions and lay lordships. Sources on the practice of the lay courts thus began to emphasize a consistency with practice, with ‘usage’ or ‘custom’, as justification for following a certain rule or procedure rather than, for instance, justifying it with an official act of lawmaking by a specified authority.
Some scholars describe this as the ‘crystallization’ of custom, by which individual customs that usually expressed a lordly exaction coalesced into rules or procedures tied to a specific lordship and were labelled by contemporaries as usages or customs.Footnote 4 They see crystallization in expressions that appeared in charters recording various transactions that tied custom to territorial lordship – ones such as ‘secundum consuetudinem partrie’ or ‘ad usus et consuetudines Normanniae’, where the particular rule or procedure followed the custom of the land or accorded with its usages and customs.Footnote 5 Other scholars describe the ‘emergence’ of custom, which is similar language for a different idea. By this interpretation, local or regional custom materialized under the influence of Roman law, which enjoyed an intellectual renaissance in twelfth-century universities and provided a new vocabulary, new legal categories and methods, and a new framework for understanding legal life.Footnote 6 Lastly, the appearance of the coutumiers is also explained by the history of literate practices: as orality shifted to literacy, these histories argue, oral legal practices were transferred into the written lawbook.Footnote 7
I begin in a different place from these studies, with concepts and texts. This chapter provides a history of the idea of custom and of texts about lay legal life that predate the coutumiers. The first part of the chapter examines the struggle to define custom from late antiquity to the time of the coutumiers. It shows that the conceptualization and definition of custom in its legal dimension was no obvious thing: common definitional elements existed, but debate and a lack of consensus around the definition of custom would continue through the thirteenth century onward.
I speak here of Roman and canon law communities not to assess their influence on the coutumiers but to show the intellectual churn around the concept of custom.Footnote 8 The coutumiers were composed at a time when the question ‘What is custom?’ sparked lively debate. Academic communities discussed how to prove individual customs and how to define the term generally. Definitions that later proved marginal, unpopular, or fleeting are as important as the ones that left a lasting imprint in legal thought because together these all show the breadth of ideas about custom in the twelfth and thirteenth centuries. My goal is to shift the discussion from the well-worn analysis of ‘influence’ towards different community cultures of customary law in Romanist, canonist, and secular circles.
The second part of the chapter briefly examines custom as a subject of literary practice. It begins by considering where and how secular practice was written about in the period before the first coutumiers and ends with brief descriptions of each of the coutumiers at the heart of this study. My first goal is to place the coutumiers not just in the history of the lawbook, as has been done before, but more generally in the history of descriptive or expository writing about secular law.Footnote 9 This shift in approach reveals a long interest in and desire for the written exposition of secular law and permits the inclusion of theological and monastic writings that do not get meaningful attention in the history of the coutumiers. My second goal is to provide descriptions of the coutumiers of thirteenth-century northern France in order to show that, notwithstanding obvious and important commonalities, each text actually showcases a unique approach to writing custom. This reveals the importance of authorial approach and an element of subjectivity inherent to the contents of the coutumiers. It adds a key element to the current background narratives of the coutumiers, which focus on how individual practices and rules were identified as territorial customs, the pre-eminent influence of Roman law, and the shift from oral to written form. Also, some coutumiers are better known and more studied than others, so the descriptions in this chapter permit the group to be viewed as a whole.
Custom and Law in Late-Antique Juristic Thought
Dictionary definitions of custom might seem obvious or natural, but they are the product of a long history. The Roman law of late antiquity played a fundamental role in the history of custom as a form of law in the European Latin West. Its language and categorization had such an impact that modern definitions derived from them still follow them closely. This history shows how the definition of custom developed in contrast to developing notions of law, especially legislation, and that custom is not a static notion but one that changed over time. The jurists of late Roman antiquity, just as later medieval thinkers, found it difficult to choose precisely when and how certain practices came to be obligatory. What tipped the scales from habitual practice to law? Why should unlegislated norms be enforced? A look at the late Roman legal tradition helps illuminate what medieval Romanists constructed out of that tradition as well as the coutumier authors’ quite different understanding of custom.
We know about Roman views on custom from the writings of orators and jurists. Orators, advocates who did the pleading in court, commonly used arguments from custom in litigation, drawing variously on the wide range of terms for custom: consuetudo, usus, mos.Footnote 10 Cicero (106–43 BCE), in De Inventione, was already defining custom according to what would become its classic attributes: ‘what age has approved by the will of all in the absence of statute’.Footnote 11
The classical jurists (fl. first to third century CE) developed a more technical interest in custom as they sought to account for unlegislated aspects of the civil law, reframing the political ideals of mos maiorum (ancestral custom, or the way of the ancestors) into an explanation for contemporary legal practices and institutions.Footnote 12 For them, custom with the appropriate sedimentary layers of age accrued into something like law.Footnote 13 The second-century jurist Julian (Salvianus Julianus), for instance, explained that ‘age-encrusted custom [inveterata consuetudo] is not undeservedly held as law [pro lege], and this is a kind of Law [ius] which is said to be established by habit [mos]’.Footnote 14 The third-century jurist Modestinus echoed this sedimentary aspect of custom but saw it as a source of law rather than a form of law: ‘every rule of Law [ius] is either made by agreement, or established by necessity, or solidified [firmavit] by custom [consuetudo]’.Footnote 15
Classical jurists saw custom as a practice or factual circumstance that acquired legal force through recognition by statute, imperial rescript, magistrate’s edict, or the consistent opinion of jurists.Footnote 16 For instance, if statute law was ambiguous, Septimus Severus (r. 193–211) indicated that it ought to be interpreted through custom or an unbroken pattern of similar judicial decisions.Footnote 17 Unlike later medieval jurists, they were not particularly interested in elaborating a theory of customary law as a form of legal obligation in its own right but rather in understanding how to use custom in specific legal contexts, most notably, provincial contexts.Footnote 18 Even references to geographically specific custom seem to indicate less a fixed, longstanding, and established custom than a dynamic interest in how the concept could be deployed in legal argumentation.Footnote 19
Juristic writings and imperial rescripts from the late third and fourth century show that the nature of custom continued to be unsettled and opinions on the subject contradictory. Hermogenian, a jurist under Diocletian (r. 284–305), emphasized length of time in his characterization of custom while pushing its theory a little further: ‘we also keep to those rules that have been sanctioned by long custom [longa consuetudine] and observed over many years [per annos plurimos observata]; we keep to them as being a tacit agreement of the citizen, no less than we keep to written rules of law’.Footnote 20 Custom still had to be long, but he clarified ‘long’ as several years. Longevity, however, was not sufficient to elevate custom to the same force as law: it also had to have been observed through time.Footnote 21 That this gave custom the force of law was not necessarily the received view, as can be seen in Constantine’s (r. 306–37) statement that longstanding (longaevi) custom (consuetudo) and usage (usus) were ‘of not insignificant authority’ but that they did not contravene reason or law (lex).Footnote 22
Custom achieved firmer standing as a legal norm in itself, one distinct from general habitual action, with the post-classical jurists from about the fourth century onward. Notably, jurists of the pre-eminent law school of the late-antique Roman world at Beirut tended to equate custom with law.Footnote 23 In fact, it was at this time that jurists are thought to have developed the theory of desuetude: the abrogation of custom by inaction or silent agreement over time.Footnote 24
Christian theology had also been developing a doctrine of custom. This doctrine first appears in the writings of Tertullian (ca. 160–240), who justified the authority of custom for the church by looking to secular law, which turned to custom in the absence of law.Footnote 25 However, he wrote that custom should only be granted by this authority if it was reasonable and conformed to Christian truth.Footnote 26 Custom and truth were not necessarily comfortable allies. It was the same Tertullian who first noted that Christ had called himself ‘the Truth’ and not ‘the Custom’, a dictum that would have traction in the medieval period.Footnote 27
Indeed, custom came to be linked to resistance to truth, and thus to heresy.Footnote 28 While arguments from custom were made at church councils, these could be invalidated by allegations that the custom in question went against reason.Footnote 29 Basil (ca. 330–79) described custom as having force of law.Footnote 30 Augustine (354–430) held that where Holy Scripture had left uncertainties, the custom of the people of God or the institutions of the ancestors should be held as law.Footnote 31 Myriad practices, rituals, and ceremonies were fine if they did not contravene ‘true doctrine’ or ‘sound morality’ and led towards a better life.Footnote 32 However, practices not contained in Scripture, established by councils, or reinforced by the custom of the universal church – practices that varied enormously by place and habit – should be unhesitatingly ended when the reasons for them were no longer perceptible.Footnote 33 We can see here a tension around the idea of custom in Christian thinking, one that did not seem to be a preoccupation in the work of jurists. The latter were less interested in judging customs as good or bad than the former, but, this judgement aside, Christian thinkers and jurists deployed very similar if not identical definitions of custom.
The Theodosian Code (438) placed a new onus on custom by reserving an entire section for the subject of customary law, titled ‘Longstanding Custom’ (De longa consuetudine), although it was buried at the end of the fifth book of the Code and contained only one provision: ‘To insist upon things established of old [veteribus institutis] is the discipline of future times. Therefore, when nothing that is in the public interest interferes, practices which have long been observed [quae diu servata sunt] shall remain valid.’Footnote 34 This went beyond earlier statements, as it made practices that have been observed over a long period of time legally valid as long as they were not against the public interest. Emperors Leo and Anthemius went beyond this in 469, stating that ‘Custom, approved of old and tenaciously adhered to [antiquitus probate et servata tenaciter consuetudo], also imitates and upholds the statutes themselves.’Footnote 35
By the time of the great compilation of the Corpus iuris civilis, completed between 529 and 534, the authority of custom did not sound too different from that of legislation. The introductory handbook for students, the Institutes, stated clearly that ‘long-standing custom [diuturni mores] founded on the consent of those who follow it is just like legislation’.Footnote 36 Custom shared a title with laws and decrees of the senate (senatus consulta) in the Digest and an independent title in the Code detailing how long custom should be understood, ‘Quae sit longa consuetudo’.Footnote 37
The definitions and debates of jurists and theologians of the Roman world had a great impact on understandings of custom in the Middle Ages. The technical language of this custom had not been definitively set, and the boundaries between the various words for custom, consuetudo, mos, and usus, were rather blurry. However, the lexical and rhetorical concepts of custom described here would be deployed and redeployed throughout the medieval period. Late-antique Christian thought established a tension between truth and custom, an uneasiness about how to negotiate unity and diversity, and an emphasis on the subservience of custom to reason. Late-antique jurists’ categorizations and descriptions of custom – as longstanding, unwritten, assumed to express the tacit consent of ‘the people’, sometimes the rival of lex (law) and sometimes its interpreter – provided medieval thinkers with a set of resources from which to construct their own theories of custom.Footnote 38
Defining Custom in Medieval Canon Law and Roman Law
The terminology and classification of legal norms found in late-antique Roman legal texts were not at the forefront of legal thought in the early Middle Ages. The exception to this was Isidore of Seville (ca. 560–636), who echoed Roman definitions in the fifth chapter of his Etymologies, the first half of which was devoted to laws and was essentially a very brief abridgement of the key ideas of Roman law. Isidore, like his Roman predecessors, pitted custom against law (lex), describing it variously as ‘usage tested by age’; unwritten law, although it was immaterial whether it was written or unwritten; and a longstanding and common usage drawn from mores, taken as law in the absence of law.Footnote 39
The early Middle Ages is known as an age of customary law. At the same time, those who composed the early medieval laws, once known as barbarian laws, described the texts as laws or legislation.Footnote 40 Defining custom and separating it from law was not a preoccupation in these texts, which are best known for listing compensation payments for specific infractions. The Lex Baiuvariorum, or Bavarian Laws (mid-eighth century), was an exception within this group in that it reflected uniquely on Roman categories of law and custom. While the prologue traces the Bavarian laws back to Merovingian times, the text in the form we know was a product of Carolingian scriptoria and reflects ideologies of these latter times.
The preface of the Bavarian Laws argued that the text itself was legitimate law. The first two-thirds of the preface was drawn directly from Isidore of Seville’s Etymologies with some small but important changes. The text began with a genealogy of lawmakers, from Moses to the Greeks to the Twelve Tables to codification by emperor Theodosius (429–34). Rather than ending with the Theodosian Code as did Isidore, the Bavarian Laws then noted that a new age began after the Code, one where ‘each people selected their own law from customary practice’.Footnote 41
The preface next incorporated Isidore’s definitions of law and custom but fashioned these into an argument in favour of law. After noting that custom was a type of law, the preface stated that Theoderich, king of the Franks, asked men learned in ‘ancient laws’ to write the ‘laws’ of the Franks, Alamans, and Bavarians, keeping what was necessary and discarding the rest.Footnote 42 The prologue referred to those norms as ‘law’ and afterwards differentiated them from ‘custom’, making this a term associated with a pagan past.Footnote 43 Echoing late-antique theologians who opposed heretical custom to Christian truth, the text explained that pagan ‘customs’ were displaced by ‘Christian law’.Footnote 44 The preface to the Bavarian laws was clear: it was significant to have a written law, one that reflected Christian law, rather than consuetudines, which here were now relegated to pagan customs.Footnote 45 Roman law via Isidore’s Etymologies combined here with a theological tradition that understood custom as a valid norm but also associated it with wrong forms of religious thought, whether pagan or heretical.
Only later, in the twelfth century, however, did a real distinction between law and custom gain traction once again in Christendom.Footnote 46 Before then, there were certainly norms and legislation, but these were generally not taxonomized or articulated as a body of rules. Rather, they infused specific grants, individual agreements, and occasional though rare legislation.Footnote 47 While there were courts and while there was dispute resolution, the world of law was not based on a professional practice and often blurred law and morality, principle and specific instance, and law and fact.Footnote 48
For legal historians of France, this raises the question of when and how law as a concrete category ‘emerged’ from all of this.Footnote 49 Answers tend to point to the rebuilding of ‘public’ power and the study of Roman law at universities. This question, and the answers, are partly connected to the debate over the extent to which order fell apart in the post-Carolingian West and thus the extent to which domination and violence had supplanted law and the extent to which the ability to think theoretically about law could continue in a world where public governmental institutions had been displaced by banal rights and exactions. The answer is also partially connected to whether, if we accept a world of domination and fines, we accept the university study of Roman and canon law as the necessary condition for a return to legal theory. Those scholars who emphasize the study of Roman law at universities as an explanation generally hold one of the following two positions. The maximalist viewpoint claims that the very use of the term consuetudo (as opposed to other normative terms) was itself an indication that an author was not only using the categories of learned law but, beyond that, also signalling their desire to be understood as a branch of learned law.Footnote 50 Others more moderately argue that the idea of custom as a category of law resulted from the influence of university study of Roman and canon legal texts.Footnote 51
The predominant definition of consuetudines in France in the eleventh century was customary dues, or exactions – the rights and duties owed to a lord, usually translated into monies or services to be paid or done for various obligations or privileges.Footnote 52 Yet this was not the sole use of the term. There was some continuity in the notion of consuetudo as norm from the sixth to the twelfth centuries, alongside uses of the term that ranged from various forms of habit to exaction.Footnote 53 Consuetudo was used between the eighth and eleventh centuries on its own but also collocated with law. That is evident in the Lex Baiuvariorum. We can also see it in the Carolingian formula ‘law and custom demands…’.Footnote 54 Abbo of Fleury (ca. 945–1004) invoked the concept of custom in his Collectio Canonum, a definition he took from Cicero.Footnote 55 Abbo quoted Cicero’s definition of custom but shifted its focus from natural law to civil law, reorienting the source for his own purposes.Footnote 56 References to custom as exaction abound in early eleventh-century sources, but instances of custom as norm also persisted.Footnote 57
The desire to further develop the concept of custom can be seen in glimpses before the Roman revival. While the phrases jus consuetudinarium and lex consuetudinaria did not appear in Roman legal texts and had long been attributed to the legal renaissance of the twelfth century, they have been traced back earlier to eleventh-century texts in northern France and Germany, before Justinianic learning spread to that area.Footnote 58 While not frequent, these expressions do point to the existence of the concept of a ‘customary law’, though one that largely designated fiscal dues or privileges.Footnote 59 It was at the very end of the twelfth century, in large measure due to canonists and Romanists trying to understand the nature of custom, that these expressions began to designate a broader customary law in opposition to jus scriptum and jus ecclesiasticum.Footnote 60 Thus, a notion of and vocabulary for ‘customary law’ as a body of law existed though only later came to designate the norms of particular jurisdictions.
In other words, the meaning of the term consuetudo as norm or the idea that it could designate a body of rules were not completely lost or absent and then rediscovered or created apace with the ‘rediscovery’ of Roman law in the later eleventh century. Nonetheless, the renewed study of Roman law is indeed vitally important to this history. Without a doubt, the popularization of Roman law categories discussed above, the development of these categories by medieval authors, and their dissemination by university-trained graduates led to their diffusion and, by the thirteenth century, their ubiquity.
And indeed, it was canonists who first dusted off older ideas about custom to wage new political battles.Footnote 61 Famously, Pope Gregory VII (1021–85) revitalized the late-antique dictum that Christ had identified himself as the truth and not the custom and utilized it in the effort to wrest the church from secular control.Footnote 62 In his words, ‘any custom, no matter how old and no matter how widespread, must certainly be considered secondary to truth and a usage that is contrary to truth must be abolished’.Footnote 63 In this way, a succession of popes curtailed the importance of custom as a form of law in canon law, changing it from an autonomous form of law to one that was subject to aequitas canonica.Footnote 64
Canonical collections also touched on the subject of custom. Generally, the canonists of the twelfth century agreed that the diversity of customs was not a threat to the unity of the church; that truth vanquished custom; and that law superseded a custom that was contrary to it, but custom that confirmed law should be approved.Footnote 65 From Ivo of Chartres to Gratian’s Decretum, emphasis was placed on custom that conformed to reason.Footnote 66 Gratian opened his Decretum by saying that the human race was ‘ruled by two things, namely, natural law and customs [iure et moribus]’.Footnote 67 Gratian took up Isidore’s definition, noting that consuetudo-custom was a form of law established by common usage, recognized as legislation in the absence of the same, and confirmable by writing or reason.Footnote 68 He did not make the difference between mos and consuetudo entirely clear.Footnote 69 Beyond that, he also seems to collapse the difference between custom and legislation.Footnote 70
Gratian also described a genealogy for the origins of customary law, one that placed the creation of custom after the creation of natural law, when human beings began to live together.Footnote 71 He explained that it nearly disappeared with the Great Flood and reappeared in the time of Nimrod, at the moment when he along with some others began oppressing people, who then foolishly submitted to him.Footnote 72 In its ecclesiastical origin fictions, custom was associated with lordly dominance and oppression.
The thirteenth century was characterized by a tremendous proliferation of decretals, papal decrees on issues of canon law, and conciliar legislation. As the authority of the papacy expanded, custom increasingly came to be identified with the voice of dissention. This can be seen in the Third Lateran Council (1179), the main goals of which were to address the problem of schism and the dispute between the pope and the Holy Roman emperor. Canon 16 explicitly confirmed the authority of the majority vote against those who made arguments from consuetudo.Footnote 73 Arguments based on custom were described as linked to individual will rather than reason, and custom was not to be upheld unless supported by reason and in accord with sacred decrees.Footnote 74 This solidified that reason as a general category overrode custom.Footnote 75
In the history of custom, the Fourth Lateran Council (1215) is normally cited for prohibiting clerical participation in judicial rituals that involved the ‘judgment of God’ – ordeal and judicial duel – and thus pushing secular jurisdictions towards the so-called rational procedure of the inquest.Footnote 76 Importantly, however, it also included an affirmation of the separation between ecclesiastical and secular jurisdiction:Footnote 77
Canon 42. Clerics and laity are not to usurp each other’s rights. Just as we desire lay people not to usurp the rights of clerics, so we ought to wish clerics not to lay claim to the rights of the laity. We therefore forbid every cleric henceforth to extend his jurisdiction, under pretext of ecclesiastical freedom, to the prejudice of secular justice. Rather, let him be satisfied with the written constitutions and customs hitherto approved, so that the things of Caesar may be rendered unto Caesar, and the things of God may be rendered unto God by a right distribution.
The importance of Canon 42 is less a matter of novelty than of emphasis: it shows that the contestation of jurisdictional boundaries was an important issue from both ecclesiastical and secular perspectives. It speaks to why jurisdictional issues were such a common theme throughout the thirteenth century, as evidenced in legal texts ranging from the Fourth Lateran Council to the cases before the French royal court in and before the Olim, as well as in the coutumiers, as we shall see.
Beyond this, the canons show the importance of the rhetoric of custom to the church. It could be used to diminish particular local rites that may seem uncomfortably foreign, for instance, the customs and rites of the Greeks (Canon 4). At the same time, these rites were often to be accommodated: bishops had to provide celebrants of divine services for multicultural communities ‘having one faith but different rites and customs’ and languages (Canon 9). Various canons also reveal custom to be a common base of counterargument or protest.Footnote 78 The worst of these may be defences of simony based ‘on the grounds of long-established custom’, which ‘should rather be termed a corruption’ than custom (Canon 63). Custom whose observance led to mortal sin had to be disregarded, and rights were subject to good faith.Footnote 79 While some particular or regional customs had a neutral or positive valence, other regional customs had to be suppressed.Footnote 80
Martial customs are one example of the tension between and co-existence of universalism and regionalism in canon law, whereby regional custom could continue even within an increasingly unitary church.Footnote 81 While scholars tend to associate the regionalism of custom with secular law, especially in France, we can also see its importance for the church. It not only referred to minority or foreign practices but also to much broader regional trends: consuetudo romanae ecclesiae and consuetudo generalis Gallicanae ecclesiae.Footnote 82
The term consuetudo was used frequently in the Decretals of Gregory IX (1234), also known as Liber Extra, composed by Raymond of Peñafort for the pope. Mos and usus fell by the wayside, and consuetudo was the term for a legal form of custom, as opposed to other types of habit or use, though it continued to designate exactions as well.Footnote 83 While the great authority of custom was acknowledged, it was not authoritative enough to set aside natural law and could only set aside positive law if it was reasonable and established legitimately by the passage of time.Footnote 84
Henry of Segusio (ca. 1200–71), known as Hostiensis, synthesized this foment of ideas though, importantly, did not finalize it. His innovation was to bring together various elements used to define custom: ‘Custom is a rational usage prescribed or hardened by an appropriate amount of time, not interrupted by any contrary act, introduced by two acts or by contrary judgment or by something that no longer exists in memory; a usage approved by those who make use of it.’Footnote 85 He had much to say about what exactly each of these elements meant: what could make a custom reasonable or unreasonable; how much time it takes to form a custom, which he relates to the very similar concept of prescription; the number of acts (i.e. cases) it takes to introduce a custom, and so on.Footnote 86
Beyond definition, he was also interested in how custom was proven. That there was disagreement on the subject is clear from his detailing of various views on the question held by different jurists, with whom he disagreed.Footnote 87 He proposed the following methods, each of which he presented with much qualification and potential sources of vitiation.Footnote 88 The people or the sovereign introduced an unwritten custom over an extended time period. Two judgments made according to the alleged custom over a long duration of time introduced a custom if there were no contradictory judgments. A custom was introduced by a contradictory judgment.Footnote 89 A custom was introduced if the practice was so old and widespread that no one did anything else.
This process of defining custom continued in the thirteenth century, notably by Thomas Aquinas, and in the fourteenth century by more professors, popes, councils, and synods. Ideas, definitions, and modes of proof relating to custom were in a continuous process of appraisal and reappraisal in the canonistic communities of the thirteenth century and beyond.
This was also the case for medieval Roman jurists who, like their late-antique counterparts, had many different opinions about custom. Many of these opinions developed alongside canonistic developments with clear similarities, as both were erected on late-antique Roman law, although with somewhat different concerns, as well. For Irnerius (d. ca. 1125), custom was an unwritten law (ius non scriptum) that went beyond the memory of man, but it was an opinion and not something that could be known.Footnote 90 In the second half of the twelfth century, Roman lawyers had developed a definition of custom as ius non scriptum moribus populi diuturnis inductum: an unwritten law created by social habit and the passage of significant time.Footnote 91 This definition was found in the work of Placentius and proved popular afterwards, including with Azo (d. ca.1220) who used it verbatim in his Summa Codicis in the early thirteenth century.Footnote 92
It was not enough for Azo to define custom, however – he wanted to bring some precision to the concept. Late-antique Roman sources, he said, only provided obscure answers to what, exactly, constituted a long custom. In fact, there were also many different contemporary scholarly opinions on the subject. For Azo, a long (longa) custom was ten or twenty years old, a very old one was thirty years old (longissimo tempore), and a custom of great age (longaeva) was forty years old or more.Footnote 93 He compared custom to prescription, which was deemed longa when it lasted ten years.Footnote 94 Some jurists said that a long custom is one whose introduction does not exist in memory, but Azo responded in no uncertain terms, ‘That does not please me.’Footnote 95
Azo identified three methods to determine whether a custom had been introduced: if it was received without contradiction, without petitions of complaint against it, and if upon contradiction it was judged by the court to be custom.Footnote 96 While it was generally agreed that once did not a custom make, opinions differed widely beyond that as to how many times or how much time it took to generate custom.
Azo also defined custom in a way that likened it to nature rather than law: ‘The word custom signifies a common habit and we also say that, in a different definition, custom is “other” nature.’Footnote 97 This dichotomy between nature and custom went back to the pre-Socratics in Western thought, beginning with the distinction between nature (physis) and man-made law (nomos).Footnote 98 But it was Aristotle who distinguished between a primary and secondary nature, the latter being custom (ethos), which approached or took the place of nature.Footnote 99 He described the link between repetition and permanence that animated the notion of custom in his Rhetoric: ‘that which has become habitual becomes as if it were natural; for the distance between “often” and “always” is not great, and nature belongs to the idea of “always,” and custom to that of “often”’.Footnote 100 This idea of custom as ‘other’ or ‘second’ nature proved popular among medieval jurists, as a gloss by Accursius confirms, and was even more important later, in early modern conceptions of custom.Footnote 101
While enormously influential, Azo’s Summa was by no means the last word on custom, and jurists continued to debate definitions, status, and proof throughout the thirteenth century and into the next. One of the difficulties, for instance, was distinguishing the different custom terms – consuetudo, mos, and usus – from each other. For his part, Accurisius effectively collapsed the difference between usus and consuetudo in his Glossa ordinaria (ca. 1230).Footnote 102 And what was custom’s relationship to law? Some jurists emphasized its subsidiary role, while Accursius placed custom above law by declaring that ‘custom abolishes law’.Footnote 103
There was also a question about who generated custom – the people or the prince, or both. Roman jurists began to discuss custom in terms of consent and the will of the people. They found in Roman law descriptions of the legislative right of the people: ‘What pleases the prince has the force of law, by the Regal Act relating to his sovereign power, the people conferred on him its whole sovereignty and authority.’Footnote 104 The Romanist interpretation was that the prince had a delegated power in the form of legislation and that the people reserved some of this law-making power in the form of custom.Footnote 105 Though they expressed it differently, canonists also understood this passage as an affirmation of a legislative right of the people.Footnote 106
But who counted as ‘the people’? Generally, this meant the populus christianus, and not those of other faiths living in the Latin West, and could refer to any sort of community, small or large, that adhered to a particular custom.Footnote 107 ‘The people’ was reduced further to those with full legal capacity, sometimes to the exclusion of those considered ignorant.Footnote 108 Beyond that, ‘the people’ was an abstraction that could be represented by ten individuals.Footnote 109 While on the surface, placing the custom of the people above the law of the prince may sound radical, the voice of the ‘people’ was often that of the judiciary, jurists, or high-status people, lay and ecclesiastical.
The ideas of two jurists from the law school of Orleans exemplify the foment of ideas as well as different interpretations generated by Romanists at the time the first coutumiers were being written.Footnote 110 For Jacques de Revigny (ca. 1230–96) custom did not have to be unwritten, but for Pierre Belleperche (ca. 1230–1308) unwrittenness was one of its essential characteristics.Footnote 111 Previously, usage had seemed to generate consuetudo, but Jacques de Revigny saw the consent of the people, whether explicit or implicit, as the special ingredient.Footnote 112 Pierre de Belleperche added to implicit or explicit consent the passage of time.Footnote 113 If statute and custom dealt with the same issue, then Jacques felt the older of the two should be followed, while Pierre felt the court could choose either one.Footnote 114
Both the Bolognese and Orleanais doctors agreed that judicial precedent was one way of establishing custom but was not necessary to its formation. Judicial precedent had probative value for them in that it could be used to indicate popular consent, and, indeed, the notion of judicial precedent as constitutive of custom would become generally accepted by scholars only at the end of the Middle Ages.Footnote 115
The fourteenth century was a watershed in the history of custom, notably in its relation to ‘the people’. Bartolus (1313–57) ultimately went back to Isidore’s definition that custom was a form of law (ius) instituted by habit (moribus institutum), which is seen as legislation (lege).Footnote 116 However, he refined this by describing ‘tacit consent’ as the proximate or efficient cause of consuetudo, relegating usus and mos to ‘remote causes’.Footnote 117 For Bartolus, ‘custom represents the will of the people’.Footnote 118 He would also submit custom to the inquisitorial rule of proof by two witnesses.Footnote 119 The idea of ‘the people’ only became meaningfully concrete later: Bartolus’ student Baldus (1327–1400) understood the populus as a legal personality, one filtered through the idea of the corporation (universitas).Footnote 120 While the corporate nature of the ‘the people’ cannot be assumed for the period before Baldus, it was certainly a key development for ideas of popular sovereignty and of a rhetoric of custom as a form of resistance that would develop in early modern Europe and beyond.Footnote 121
There is no doubt that aspects of definitions of custom and ideas about its proof in canon law and Roman law made their way into the coutumiers – texts that occupy a space somewhere between legal practice and academic thought. They also made their way into practice itself, with the ever-increasing number of law school graduates entering the judiciary as the thirteenth century gave way to the fourteenth. This is well known, but I want to emphasize that despite the impression of static immutability that accompanies the notion of custom as tradition and repetition, the concept of custom was itself not only mutable but also debated. It varied between communities as well as within communities. At the time the coutumier authors composed their texts, many different voices offered many different opinions about what custom was, how it was made, and how it could be recognized. The capaciousness of consuetudo continued far beyond this time. From the glossators to elite canonists of the fifteenth century, scholars continued to struggle when they tried to describe the difference between consuetudo as exaction and as norm.Footnote 122 Even after many centuries of defining, parsing, and interpreting, Jason of Mayno (1435–1519) would still describe the question of custom as profound and ambiguous.Footnote 123
The variety of ideas about custom in learned communities testify to its enduring conceptual haziness. Definitions abandoned are as important as definitions embraced and lastingly popular because, together, they attest to a society that continued to grapple with the perplexing question of what, exactly, custom was and how, exactly, it could be identified.
It was the great preoccupation of medieval canonists and Romanists to domesticate custom with words. Thinkers constructed methods of proof, attempting to make custom tangible and knowable based on their definitions. The lexical history of the term thus cannot be dissociated from ideas about methods of proof, the other preoccupation of learned jurists.
Writing about Secular Legal Practice before the Coutumiers
Coutumiers authors wrote about the practice of secular law in northern France because there was no other holistic description of the subject available, at least in written form and likely not in oral form either.Footnote 124 To look for written legal ideas about the courts of laymen or associated with lay people before the coutumiers means to look through scattered sources, ones that were not necessarily ‘legal’ and often were not even lay, but ecclesiastical. A brief look at the history of writing secular law in the couple of centuries before the coutumiers reveals a desire and attempt to write about lay legal ideas and practice and so give them greater clarity, specificity, and accessibility.
Glimpses of custom, or at least habitual practice, can be found in the multitudes of documents that contained records of transactional law. These sometimes indicate a specific custom, or a pattern can be identified among them that indicates a habitual practice. These are not addressed in this section because the goal here is to examine writings that sought to synthesize ideas about the norms and practices of the courts of lay lords or lay people.Footnote 125 This section begins a little before the papal revolution, covers the general efflorescence in written and normative secular law in the twelfth century and ends around the mid-thirteenth century when the coutumiers began to be written. I give more space to ecclesiastical writing than is normally done because this receives very little attention as background for the coutumiers but is vital to this history.
The era of papal reform and ‘rebirth’ of Roman law was a great watershed in law, both secular and ecclesiastical.Footnote 126 Written record- and document-making increased sharply, leading to new forms of writing and documentation as well as expanded bureaucracies.Footnote 127 However, the demand for legal texts existed before all of this.Footnote 128 Even with their heavily oral and ritualistic nature, both secular and ecclesiastical law continued to make use of text in the early Middle Ages.Footnote 129 But where exactly could writing about secular law be found in the time leading up to the coutumiers?
The correspondence of Fulbert of Chartres (ca. 960–1028) provides a glimpse into different aspects of secular law. Several manuscripts of his letter collection were in fact preserved by others for later legal use.Footnote 130 Fulbert indicates which legal texts might be considered of value to a highly educated ecclesiastic around the turn of the millennium. His book chest included a collection of Carolingian capitularies, the collection of capitularies compiled by Ansegisus of Fontanelle, the forged capitularies of ‘Benedict Levita’ (the pseudonym of the author who purported to continue Ansegius’ collection), and the Pseudo-Isidorian Decretals.Footnote 131 His familiarity with legal writing extended beyond the cache in his book chest. Notably, he quoted from Roman law in the Theodosian Code, which he likely knew from the Breviary of Alaric.Footnote 132
Fulbert’s famous description of the feudal oath shows lay people demanding the theorization of legal practice. Replying to William V, Count of Poitou and Duke of Aquitaine, he said: ‘Asked to write something concerning the form of fealty, I have noted briefly for you on the authority of the books the things which follow.’Footnote 133 The resulting mini-tractate on feudal obligations was to have a very long legal history, wending its way into secular law, canon law, and academic law.Footnote 134
Fulbert composed his theorization of fealty in response to a secular lord’s desire for concrete written explication of this form of obligation. Fulbert answered not based on observation but on books. Presumably, this was exactly what William wanted, since he himself would have been familiar with instances of fealty in practice. This episode reveals the lay desire to go beyond impressions provided by their own experiences and to seek out a normative – if idealized – statement of these practices. This also shows that we must look for secular law in ecclesiastical writing, as those who study charters of this period well know.
We also must look to collections of canon law that assembled the rules and procedures of the church for early theorization of legal ideas and practice. While their heyday is considered to be the later eleventh century onward, such collections were not only written in the tenth and early eleventh century, but a number were even better organized than later ones.Footnote 135 Alongside these collections were numerous unsystematic collections, some of which have been shown to be influential through the eleventh and into the twelfth century.Footnote 136
Burchard of Worms (c. 965–1025) is interesting in this regard because he both composed a collection of canon law and was the instigator of a collection of laws for secular governance. Burchard obtained full control of all justice of the familia of Worms from Emperor Henry II with a charter of immunity from interference by local lords in 1014.Footnote 137 In his view, these lords had been oppressing the community with their laws and judgments. Burchard therefore had a set of guidelines or precepts composed, known as ‘Laws of the familia of Worms’, and these ‘laws’, which applied equally to both rich and poor, were to be followed thereafter.Footnote 138 A series of rules and prohibitions followed, presented in the language of legislation, which offer a rare insight into crime, property, and family law.Footnote 139 Burchard also compiled a practical manual of canon law in his Decretum based on principles that unify the canonical tradition that he had identified, as well as examples of the concrete application of these principles.Footnote 140
Burchard’s Decretum and several other collections of canon law circulated in northern France, influencing the next generation of writers, including Ivo of Chartres (ca. 1040–1115). Unlike Burchard, who separated his canonical collection from laws of general governance that included the laity, Ivo chose to incorporate it.Footnote 141 Not only was that an unprecedented move, but the chapter devoted to lay affairs was one of the longest and most elaborate portions of his canonical collection.Footnote 142 Additionally, he included a great deal of secular legislation: the Theodosian Code, Justinian’s Code, the Institutes, the Digest, the Sententia Pauli, the Epitime Juliani, and Alaric’s Breviary, as well as both genuine and forged Carolingian capitularies.Footnote 143
The late eleventh century also saw greater assessment of ecclesiastical procedure in writing: while earlier sources only shed a ‘faint’ light on it, more common references were made to the ordo iudiciarius by the 1070s.Footnote 144 The writing of French bishops illuminates the development of thought about the ordo iudiciarius before it was affected by the diffusion of Roman legal thought from the universities.Footnote 145 Indeed, in his letters, Ivo not only included detailed and studied descriptions of procedure but also integrated Roman law into his argument and used it for probative value.Footnote 146 The body of works on ecclesiastical procedure only continued to grow afterwards, and, by the twelfth century, much of it heavily incorporated or was based on Roman legal procedure.Footnote 147 While this may seem like a straightforward reception, there was actually much debate about procedure, and legists and canonists wrote many, many works treating different aspects of the trial throughout the twelfth and thirteenth centuries.Footnote 148
Monastic communities were also early and prolific compilers of rules and regulations. This went back to the sixth-century rule of Benedict, but from the late tenth century onward, there was a new enthusiasm for monastic rule-making.Footnote 149 The writing of liturgical custom began at Cluny around 990, and that text later came to be known as the consuetudines antiquiores.Footnote 150 Thirty years later, the so-called Liber Tramitis began to be written, a text with broader range that included technical matters of administration, policy, and procedure.Footnote 151 Around the 1070s, a monk of Cluny named Bernard composed a new text at the behest of Abbot Hugh I to capture their practice as it had developed and was currently used.Footnote 152 Yet another set soon appeared, a little after 1079, by another monk of Cluny, named Ulrich, for William abbot of Hirsau, who wanted to introduce ‘customs’ to his monastery for the purpose of reform.Footnote 153
These forms of regulatory writing contain important lessons for legal history.Footnote 154 English monks, for instance, were developing sophisticated juridical thinking before Roman-law influence, which shows that the development of sophisticated legal thinking was possible as an organic intellectual development and not necessarily the result of influence of university-level Roman law.Footnote 155 Indeed, this helps explain why Roman law attracted eager interest. We can see monks, for instance, embracing Roman law. The customs of the abbey of St Gilles, for instance, were compiled in the twelfth century. We have this text in an edited thirteenth-century version, but it is likely that the Roman law, in the form of Justinian’s Code (probably via the Provençal summa Lo Codi) and some of the Novels, was already part of the twelfth-century version.Footnote 156
Regulatory writings also flourished in lay contexts. City customs began appearing in the eleventh century, associated with the communal movement. These could be part of a peaceful process or of dramatic founding moments that pitted lords against communities and produced charters in which the rights and responsibilities reflected a new balance of power. These city customs were negotiated rights, like a contract. Galbert of Bruges provided a dramatic account of revolt that led to the founding of a commune and its charter in 1127.Footnote 157 This ‘little charter of agreement’ between the count and the citizen, which he described as ‘about the remission of the toll and the ground rent on their houses’, was actually the product of radical urban self-assertion.Footnote 158
Beyond this, custom also designated the protections subjects received from their lord and so, in this sense, designated a category of rights.Footnote 159 Lords could also make men personally free by granting them franchisa, meaning free tenure, and numerous villages and townships paid significant fees for this freedom.Footnote 160 Charters of liberties outlined freedoms and rights demanded by and granted to subjects, as well as the powers and obligations of their rulers. The Coronation Charter of Henry I of England, issued around 1100, included such protections and responsibilities, and Magna Carta (1215) became the most famous example. While ‘liberty’ was primarily an attribute of lordship, litigation action seeking to protect franchises and liberties in the thirteenth century reveals that a notion of individual, personal liberty was also at play.Footnote 161
Charters of municipal rights known in Iberia as fueros appeared in the tenth century.Footnote 162 Burgos and Castrojeriz received their fueros then, and the counts of Castile also made their earliest grants of this kind at this time.Footnote 163 Notably, a collection of ‘usages’ known as the Ustages of Barcelona appeared in Catalonia in the mid-twelfth century, composed during the rule of Count Ramon Berenguer IV of Barcelona (1131–62).Footnote 164 It aimed at overriding old Visigothic laws because these were no longer seen as a good fit for current issues. These ustages were not described as practices repeated over time – the preface insisted three times that they were decreed – but the description of what was essentially legislation as ustages still suggests a conceptual shift.Footnote 165
The recovery and renewed study of Justinian’s Digest began in the last quarter of the eleventh century.Footnote 166 The ‘rediscovery’ of Roman law through the books of Justinian’s Institutes, Code, Digest, and Novels grew into a fundamental conceptual transformation about what law was and how it should be done. These texts began to be read, studied, and taught and formed the basis of the early university in Bologna around the end of the eleventh century. The enthusiasm for these new legal studies was captured in a letter written around 1127 by a Benedictine monk to his abbot at Saint Victor in Marseille, in which he described crowds of students flocking to Bologna to study law and noted the great benefit this knowledge could have for the monastery in its legal disputes.Footnote 167 This was the seed of an intellectual revolution that would ultimately transform legal and political thought in Europe, even though the impact of Roman law on medieval legal practice varied by region and was uneven and diverse.Footnote 168
The impact of ancient Roman jurists on medieval notions of custom was vast.Footnote 169 Their definitions and modes of thought gave medieval society a new way of thinking – one might even say a new language – with an expansive vocabulary and a rhetoric based on precision of thought. James Brundage writes that they found new ways to ‘frame sophisticated legal arguments, how to manipulate legal categories, how to analyse problems, and how to find solutions to them’ that proved to be intellectually exciting but also of practical utility.Footnote 170
That Roman law was seen as having contemporary relevance in its medieval context is evident from the incorporation of a text of secular legal practice into the corpus: the Libri feudorum. This was a compilation of treatises of earlier Lombard origin that had been composed layer by layer by various authors in Pavia and Milan and was used as a sort of manual by communal judges and advocates in those cities.Footnote 171 In the early thirteenth century, the text was appended to the Corpus Iuris by Hugolinus, accrued layers of glosses, and was used in university teaching as well as occasionally in court practice.Footnote 172 It is from this text that, later, lawyers and then historians drew a feudal vocabulary that they then used to describe a ‘system’ throughout Europe.Footnote 173
Imaginative literature provided an additional forum where lay society could explore ideas of law. The crises of power and of lordship in the twelfth century proved fertile ground for literary narratives that exposed tensions and enabled critiques of the political order as well as of justice and its dispensation.Footnote 174 Raoul de Cambrai was a commentary on inheritance, lordship, different understandings of the ‘fief’, and the relationship between vengeance and justice.Footnote 175 The trial of Ganleon in the Song of Roland explored the responsibilities of men to their lords, notions of treason and felony, and the dispensation of justice. Beyond notions of justice and injustice, romances and chansons de geste were permeated with procedural questions, perspectives on punishment, and other juridical themes.Footnote 176 These dramatic enactments of law revealed the ethical dimension of society.Footnote 177
Through its themes, language, narrative, and assumptions, imaginative literature showed a society thinking about and questioning its political and normative order. Andreas Capellanus, in On Love (1184/6), developed a complex legal universe complete with illustrative cases and a set of laws.Footnote 178 The notion of custom, specifically, was also explored. The various compositions of Chrétien de Troyes mentioned custom on numerous occasions, sometimes a ‘custom of the castle’ arbitrarily imposed and to be circumvented, sometimes a form of obligatory community behaviour.Footnote 179
Romano-canonical legal thought and methods were brought to bear on the writing of secular law. The Assizes of Ariano (also known as the Assizes of Roger II) were composed around 1140 by authors familiar with Roman law. This text was unique because no other secular ruler in the early twelfth century had promulgated such a body of law, one that was not only systematically organized but displayed some strong connections to the developing study of Roman law in northern Italy.Footnote 180
The Anglo-Norman world had a long tradition of legal writing from Old English laws to post-Conquest Leges – texts that presented themselves as legislation and that foregrounded the early legal literature of English Common Law.Footnote 181 The ‘first textbook’ of English royal law, the Laws and Customs of England, known as Glanvill because it was once attributed to Ranulf Glanvill, appeared around 1188.Footnote 182 It was framed not as assizes or constitutions but as ‘laws and customs’.Footnote 183 Arguably an ‘early, somewhat unusual coutumier’, Glanvill described the Anglo-French custom that was administered in the king’s court by itinerant justices.Footnote 184 Soon afterwards, around 1200, the first part of the Très Ancien Coutumier de Normandie was composed, and thus the era of the ‘first’ coutumiers began.
Texts focused on secular law proliferated throughout the European West by the 1230s. The jurists who composed the Constitutions of Melfi (or Liber Augustalis) for Frederick II in 1231 incorporated more than half of the earlier Assizes of Ariano into their Constitutions.Footnote 185 Eike von Repgow was finishing his German-language Sachsenspiegel, or Saxon Mirror, by 1235. Various texts of Danish laws – the Laws of Scania, Valdemar’s Law of Zealand, Erik’s Law of Zealand, the Law of Jutland – were written also in the vernacular between 1150 and 1250.Footnote 186 By about 1240, various authors layered their writings to produce the similarly named Laws and Customs of England, once attributed solely to Bracton.Footnote 187 The Coutumes d’Anjou et du Maine was composed in 1246, Pierre de Fontaines’ Conseil in 1253, and the Summa de legibus Normannie was likely composed between 1254 and 1258. At a similar time, the Siete Partidas were compiled for Alfonso X of Castile (1252–84).Footnote 188
The writing of the northern French coutumiers was deeply associated with the developments described above: the persistent desire for exposition and assessment of practice, the arguments and ideas that animated the lay courts, the foment in ecclesiastical regulatory and procedural writing, the study of Roman law and various types of writing that developed around it, royal and imperial legal literatures, forms of vernacular legal literature (see Chapter 2), and, behind this, the ever-increasing sophistication of legal business in various forms and contexts. The coutumiers’ discussions of procedure, jurisdiction, and (to some extent) their use of sources certainly situates them in a larger, familiar movement in legal composition throughout Latin Europe.
At the same time, this group is also unique. From the 1240s, at least one new coutumier was composed in northern France every decade of the thirteenth century. This shows an exceptional zeal for theorizing the activities of lay courts. This dynamism in legal writing characterized not just the top royal or imperial level but also lower jurisdictions, which speaks to the political background of the texts; namely, the expansion of Capetian power. The regions associated with the first coutumiers of northern France became part of the Capetian demesne in one way or another in the thirteenth century, though they were not always under specifically royal control, because of the practice of granting apanages to younger sons. The coutumiers thus reflect both local and regional aspects as well as common ones relating to royal jurisdiction.
The ‘first’ coutumiers of northern France were written in a short period of time, in regions that were geographically close, and in a political context that was relatively similar. Beyond this, some of the coutumier authors from the later thirteenth century knew the earlier ones.Footnote 189 And yet, no two authors constructed their texts in exactly the same way. There were similarities, certainly, but each author elaborated their text uniquely and distinctively. The first coutumiers thus show an experimentation with the writing of custom, framing, the use of sources, subject matter, and authorial voice. In other words, they show that there were different ways to think about the question of ‘What is custom?’ for the secular courts.
The following brief descriptions of the first coutumiers illustrate the individual character of each text and provide a general sense of its contents. This is neither meant to be a taxonomy nor to provide an exhaustive list of the contents, sources, and methods of all of the texts. Rather, the descriptions are intended to show the particularity of each text before they are treated as a group in the remainder of this book. The work inherent to composing a comprehensive vision of custom included gathering and assembling information – specific legal facts, rules, or procedures – but also an element of subjectivity and originality. This means that the coutumiers afford us a glimpse into the minds of some of the authors who were creating a professionalized customary law in the thirteenth century.
Brief Descriptions of the ‘First’ Coutumiers
Très ancien coutumier de Normandie (ca. 1200 and ca. 1220)
Ernest-Josef Tardif, author of the critical editions of the Très ancien coutumier de Normandie, described the text as a composite of two works written anonymously: one around 1200 before Normandy was taken by Philip Augustus for the French crown, and the other around 1220.Footnote 190 The text comes in both Latin and French versions. Tardif had three incomplete Latin manuscripts and a more complete French manuscript, and thus used the incomplete Latin version filled in with the later French version to construct his critical editions of the texts. However, we now have a new Latin text in a Vatican manuscript that was unknown to Tardif while editing the text, one that is more complete and the basis of a new edition.Footnote 191 The Très ancien coutumier de Normandie has no prologue, but the new manuscript provides the title of ‘Antiqua consuetudo normannie’. It begins with a discussion of the dukes of Normandy, and the second part begins with an inquest that took place in the reign of Henry II.Footnote 192 It has been suggested that the first part is a later text and presents a version of earlier Norman customs adapted to the needs of the later thirteenth century.Footnote 193 The subjects of the first part include the duties of the duke, excommunication, inheritance, dower, wardship, land tenure, homicide, punishment, trial procedure, service, and jurisdiction. The subjects of the second part include homicide, ecclesiastical liberties, actions to recover dispossessed land (desseisin), possession, bastardy, minors, dower, marriage, trial procedure, jurisdiction, warranty, trial by battle, fiefs, outlaws, gifts of land to the church, and the sale and grants of land. The earliest manuscripts are from the late thirteenth century, and all the manuscripts of the Très Ancien Coutumier de Normandie also include the Grand Coutumier de Normandie, either in Latin or French.
Coutumes d’Anjou et du Maine (1246)
The Coutumes d’Anjou et du Maine was composed in French in 1246 by an anonymous author.Footnote 194 We have two manuscripts of the text, one of which opened with ‘These are the customs of Anjou and Maine,’ which gives us the title. The text has no preface to indicate authorial intention or ideology. It does not often refer to the concept of custom. Rules and procedures are rather validated ‘par droit’, so ‘by Law’ or ‘by Right’. The contents include a great variety of subjects briefly presented, without obvious reasoning for the order. Anjou et Maine goes back and forth between substance and procedure. Much of the text envisages different sorts of problems that different sorts of people might face. The text treats diverse subjects such as inheritance, dower, jurisdiction, marriage between classes, theft of animals, guaranteed peace, consorting with murderers and thieves, co-holding of fiefs, rape, army summons, novel desseisin, court procedure, heretics, usurers, foreigners, bastards, seizure, quit-rents, excuses for not appearing in court, appeals, mills, gifts, status, issues for commoners, slander, redemption; it ends with lost bees, dower, and judicial battle between brothers and judicial battle fought by champions for the infirm. This text regularly mentions the sorts of things said in court and appropriate responses to them. It does not cite the learned laws, nor does it discuss specific cases. Anjou et Maine was used as the basis of Book I of the Établissements de Saint Louis some twenty or so years later in the early 1270s.
Le conseil de Pierre de Fontaines (1253)
The Conseil was written in French by Pierre de Fontaines (see Figure 1.1). Pierre was employed in various courts, notably in the service of Countess Mahaut of Artois (the widow of Louis IX’s brother Robert) and then became a royal justice.Footnote 195 He began his career in Vermandois, the region commonly associated with this book. He eventually became counsellor to Louis IX.Footnote 196 He appeared in Jean de Joinville’s Life of Saint Louis, where he dispensed justice on the king’s behalf under the oak tree in the Bois de Vincennes, and also sat several times in Parliament.Footnote 197
Figure 1.1 Pierre de Fontaines’ Conseil. Some coutumier manuscripts contained text without illuminations. This thirteenth-century manuscript of Pierre de Fontaines’ Conseil was unembellished outside of decorated capitals and section titles written in red ink, which made it easier to locate desired sections of the text. Coutumier texts were generally either alone in a manuscript, as in this one, or coupled with other legal texts either composed in French or in French translation.
The text is presented as advice written for a friend’s son.Footnote 198 Scholars have long speculated about the identity of this friend. It is quite commonly claimed that Pierre wrote the text for Philip III at the behest of his father, Louis IX. This view does not seem likely. This is supported by one manuscript from the late thirteenth or fourteenth century.Footnote 199 Another manuscript claims the book was written for ‘Queen Blanche’, Louis IX’s mother, while another simply says it was written for a queen of France.Footnote 200 Most manuscripts do not specify who the friend or his son were.Footnote 201 It seems rather familiar for Pierre to address Louis IX or his son as ‘friend’, and rather odd not to use the authority of Louis IX, his son, or mother to amplify the prestige of the text if any of these were indeed the original addressee of the text. A manuscript recently sold at auction, claimed by the auction house to be the earliest version, simply began with ‘Here speaks [parole] my lord Pieres de Fontaines of the rights, and laws and customs of Vermandois’.Footnote 202 It is more likely that the association with Louis IX and his mother and son is a later thirteenth-century development associated with the promotion of Louis’ memory by his successors.Footnote 203
The text has a pedagogical tone and is written as the teacher’s side of a conversation between teacher and student. Pierre had some legal education and incorporated significant portions of a French translation of Roman law into his text, most heavily Justinian’s Code but also the Digest, without citation details. This Roman law is sometimes incorporated into the text and sometimes indicated as the speech of individual Roman emperors. The text treats summons, continuances, sureties, advocates, judges, minors, contracts, fraud, cases concerning people abroad, arbitration, taverners, judgments, appeals for false judgment, how to structure a complaint and initiate a suit, noting days when suits are not permitted, judges, jurisdiction, different subjects of suits, wills, gifts, and good and bad faith. Pierre notes some, but not many, cases in which he participated.Footnote 204 Pierre appraises arguments and ideas but does not provide examples of words to use when pleading or arguing. The goal of the text is to understand how courts work, relevant rules, and connections to Roman law.
Summa de legibus Normannie (between 1254 and 1258)
Summa de legibus Normannie in curia laicali was composed by an anonymous author either sometime between 1235 and 1258 or, more narrowly, between 1254 and 1258. Footnote 205 The latter date is supported by much more evidence. Footnote 206 It was composed first in Latin and then translated into French prose, and later into French verse as well.Footnote 207 It is also referred to as the Grand coutumier de Normandie; this title is sometimes used for the French text only and sometimes for the Latin text as well. There are many manuscripts. Tardif used twenty-four manuscripts for his Latin edition that he grouped into nine families and three principal types: those with a long and complete text, those that end a little earlier (at chap. cxxiv), and a third group that ends even earlier (at chap. cxii.4).Footnote 208 The largest number of manuscripts are from the first type, with the longest text, but the text ‘varies so much and offers so little unity’ that it is in fact difficult to see it as the work of one author.Footnote 209 Tardif concluded that the shortest type (ending at chap. cxii) constitutes the earliest version of the Summa to which were added additional texts, some inserted within the text itself and others appended at the end.Footnote 210 Viollet found seventeen manuscripts of the French version.Footnote 211 There is also a French verse translation of the Latin text composed around 1280.Footnote 212 The prose Latin text has two prefaces, the first of which is concerned with how the book is organized, and the second with why the author decided to write it. He explains that his intention was ‘to declare the laws and statutes of Normandy [jura et instituta Normanniae]’; that is, the laws and statutes legislated by Norman princes on the advice of prelates, counts, and barons.Footnote 213 The duke is, of course, the king of France at this point.Footnote 214 The text refers to places in western Normandy and may have been written there. It does not reveal much about the identity of the author, who may have been someone named Maucael.Footnote 215
In form, the text is a summa – a genre of writing that aimed at synthesizing the entirety of a subject, commonly used in scholastic writing and in the work of canonists and romanists.Footnote 216 The author thus takes a scholastic approach, and his tone is expository. It combines substance and procedure throughout. The text begins with basic definitions associated with law and justice, judicial organization, the jurisdiction of the duke, services and dues owed to the duke from his vassals, succession, and forms of tenure. It then moves to the trial and courts: delays, excuses, claims, secular court, the clamour of haro, the assise, the exchequer, complaints, pledges, summons, witnesses, lawyers, and conducting views.Footnote 217 Next it returns to suits of specific types and how they are conducted: murder, jurors, assault, breach of truce, suits of women, sanctuary, compurgation, possession, debt, and contracts.Footnote 218 It proceeds to claims related to landed inheritance, the shape of the inquest, novel disseisin, mort d’ancestor, dowry, records (both oral and written), advowson, various claims relating to fiefs, records (made orally), proof, compurgation again, judicial duel, and prescription.Footnote 219 Sections on specific legal claims generally show the form of the writ one should use. The text rarely mentions oral language to be used at court and refers to no specific cases.Footnote 220 It sometimes offers examples or hypotheticals using contemporary medieval names such as Robert and Richard.Footnote 221 Roman and canon law are not cited overtly in the text.Footnote 222 There is vague Roman influence in that the text very loosely follows the divisions of the Justinian’s Institutes and employs some Roman law terms.Footnote 223 However, more generally, the text gives the impression of a clerical author familiar with scholastic thought and canon law.Footnote 224 He also used secular sources, such as Louis IX’s ordinance from 1254. The author did not make his sources obvious and rephrased and moulded them for his own purpose.
Li livre de jostice et de plet (ca. 1260)
The Livre de jostice et de plet was written in French by an anonymous author around 1260.Footnote 225 There is one sole manuscript.Footnote 226 The manuscript begins with Louis IX’s great ordinance on the reform of the kingdom (1254), much of which addressed the royal baillis, and a royal ordinance on trial procedure – the latter also forms the beginning of the Établissements de Saint Louis composed about a decade later.Footnote 227 The text refers to the ‘customs of France’, meaning the royal domain, and many times to ‘king Louis’.Footnote 228 The Livre de jostice et de plet is commonly grouped with the coutumiers, but it is an awkward fit for the corpus because it inserted instances of medieval customary legal practice into what was mainly a text of Roman law in translation, while other coutumiers that deploy Roman law do the opposite. The text chiefly consists of a French translation of large swathes of Justinian’s Digest, and its plan follows the Digest: it begins with general concepts of law and justice, moves on to legal officers, and turns to trial procedure, judgments, and then legal issues by subject.Footnote 229 The author included significant material from canon law, most significantly from the Decretals of Gregory IX. He weaves in descriptions of cases, examples and passing references to issues drawn from contemporary society. The names of Roman jurists in the Digest are often but not always replaced with those of prominent royal judicial officers of the mid-thirteenth century.Footnote 230 Some have argued that the text was the notebook of a student or in some way associated with the University of Orleans, where professors made an effort to integrate Roman law and customary law.Footnote 231 Others have argued that it is the work of a royal bailli, based on the fact that the judicial officers mentioned by name in the text are preponderantly royal bailli and officers of the king.Footnote 232 The cases and examples described by the author offer insight into the administration of royal justice, from the cases of butchers and drapers to disputes within and between cities, in the Orléanais, the Gâtinais, Bauvaisis, and the Vexin region of Normandy.Footnote 233
Les établissements de Saint Louis (1272 or 1273)
The Établissements de Saint Louis was a French-language text created by an unknown compiler (see Figure 1.2).Footnote 234
Figure 1.2 Établissments de Saint Louis. Illuminations in the coutumiers captured scenes that reflected the action of the lay courts. Scenes of the judge sitting in judgment and perpetrators being caught were some of the most common throughout the coutumiers. In addition to these, this thirteenth-century manuscript of the Établissments de Saint Louis includes an image of the judge receiving this book, a witness taking their oath, a trial by battle, a guilty person being punished by hanging, and two relating to homage and fealty. Illuminated coutumiers were not so ornately decorated as manuscripts of canon law or Roman law could be. Those coutumier manuscripts that were illuminated commonly contained, with a few exceptions, between one and ten images.
We have over twenty manuscripts of the text, as well as other derivative texts.Footnote 235 Beyond this, parts of the text were also copied into or paraphrased in later coutumiers.Footnote 236 This text is generally identified in manuscripts as a description of regulations (établissments) of the king of France for the châtelet of Paris and Orleans. The king is commonly unnamed earlier on and the royal aspect is not emphasized until later. The compiler-author created the Établissements by putting together two royal ordinances with two earlier texts of customs and then incorporating numerous citations into the text, many of which referred to the Roman law of the Code and Digest and to the canon law of the Decretals of Gregory IX.Footnote 237 Three late thirteenth-century manuscripts contain an added prologue that presents the text as an ordinance issued by Louis IX in 1270 (just before his last crusade and death in Tunis), one that he imposed in all the secular courts of the kingdom and within his own domain. This later tradition has Louis IX as proactive originator of the text, which this prologue presents as composed by a commission of ‘wise men’ and ‘good clerks’, and makes the text part of his program of reform of law, justice and the judicial and administrative personnel.Footnote 238
Book I begins with the procedure of the Châtelet in Paris, covering judicial duties, proof, jurisdiction, and appeal. It continues with the Coutume de Touraine et Anjou, which is heavily based on the Coutumes d’Anjou et du Maine described above, and follows the earlier text closely. The contents are about the same, although the compiler of the Établissements did make some changes to the text.Footnote 239 Book II contains the court procedure in the baronial courts of the Orleans region. It discusses arrests, requests and complaints, jurisdiction, appeals, summons, duties of advocates, judging, the king’s rights, fines, vassal–lord relations, and execution of judgments and ends with complaints to the king against those who come onto one’s land armed without right. The manuscripts vary as to the regional attributions of the texts. Both books regularly explain how one should speak to make various sorts of legal claims. The Établissements does not refer to specific cases.
Le livre des constitutions demenées el Chastelet de Paris (between 1279 and 1282)
This text was written in French by an anonymous author and survives in one known manuscript dating from the beginning of the fourteenth century.Footnote 240 The title is drawn from the explicit, which labels the text as the ‘Book of constitutions carried out in the Châtelet of Paris in all cases’.Footnote 241 The Demenées is a book for pleaders and ‘teaches how one should intend to speak before all judges and especially in lay courts’.Footnote 242 Unlike the other coutumiers studied here, most of the text concerns trials where non-nobles would be tried before a lone judge (as opposed to a noble tried by peers or appealing to a sovereign).Footnote 243 It has a procedural framework that begins with the initial complaint and takes the reader through various aspects of the trial process, though it presents these in a mixed order rather than following the trial from beginning to end. Substantive law is woven into some sections, for instance, descriptions of types of proof or the nature of custom. Much of the text is devoted to advising pleaders on how to present information and arguments at various stages of a trial and depending on the nature of legal issue. The tone is expository, and explanations are brief. The text makes several references to the ‘custom of France’, meaning the custom of the royal domain. It draws very little on texts of canon law and Roman law, which are mentioned once each, and does not refer to specific cases. French scholarship refers to highly procedural texts like this one that describe the manner of proceeding in court as a style (or stile).
Philippe de Beaumanoir, Coutumes de Beauvaisis (1283)
This text was written in French by Philippe de Beaumanoir (1247–96) while he was a justice in the County of Clermont in Beauvaisis for Count Robert of Clermont, one of Louis IX’s younger sons.Footnote 244 Amédée Salmon has fourteen manuscripts for his critical edition.Footnote 245 Local to this area, Beaumanoir was made bailli of Clermont in 1279 and held the position until 1284.Footnote 246 It was while in this post that he composed his coutumier and was knighted close to the end of his tenure in Clermont. He then went into royal service as an administrative and judicial officer as sénéchal of Poitou (1284–87), sénéchal of Saintonge (1287–89), bailli of Vermandois (1289–91), bailli of Touraine (1291–92), and bailli of Senlis (1292–96).Footnote 247 He and his father were for some time mistakenly thought to be one person. His father, known as Philippe de Rémy, was a bailli in Artois and writer of imaginative literature such as Jehan et Blonde and La Manekine.Footnote 248 Phillipe de Beaumanoir was his third son, a comital and royal bailli as well as a great jurist. His was by far the largest of the first coutumiers, with seventy chapters which are each in-depth treatments of a subject. The arc of the text is based on the trial process, beginning with judges, summons, lawyers and complaints, issues of jurisdiction and proof, and ending with judicial battles and judgments. Within this narrative, Beaumanoir treats a variety of subjects at length, including wills, inheritance, minority, illegitimacy, consanguinity, highways, measurements, crimes, novel desseisin, written legal documents, loans, rental, arbitration, property of various types, creditors’ remedies, marital maintenance, private war, truces, usury, cases that arise out of bad luck (‘misadventure’), and gifts. He discusses the form of written legal documents, from wills to advocate’s appointment letters, as well as legal language – how one should make different sorts of claims or statements and their implications. The Coutumes de Beauvaisis is written with erudition and has been lauded by later commentators as the most important, best, and most original juridical work of medieval France.Footnote 249 Though clearly familiar with ideas from the learned laws, Beaumanoir never cited or quoted texts of Roman law or canon law. Consequently, from the 1840s onward, scholars have debated the nature of his education and his textual sources, variously arguing that at the base of his thinking lay Tancred’s Ordo, Justinian’s Digest, other ordines judiciarii, or the Établissements de Saint Louis.Footnote 250 Beaumanoir chose neither to reveal his textual sources nor to borrow their language directly and instead wrote a text whose erudition was evident but presented without debts or ties to outside authority.Footnote 251 However, he did refer to practice throughout the text. He made many comparisons between the functioning of lay courts and ecclesiastical courts and cited close to a hundred cases in secular courts that he had either seen, tried himself, or heard about from other counties.Footnote 252
L’ancien coutumier de Champagne (ca. 1295)
The Ancien coutumier de Champagne was written in French by an anonymous author around 1295, after Champagne had been incorporated into the royal domain through the marriage of Philip the Fair to Joan of Navarre.Footnote 253 This was when the Grands Jours de Troyes, the court of the count of Champagne (who was now also the king), was in transition from one composed of barons to one manned by royal commissioners.Footnote 254 Nine known manuscripts of the text survive, the earliest – four of the texts – dating from the fourteenth century. The text begins with an ordinance about the division of inheritance among male children, which was issued in 1224 by Thibaut IV Count of Champagne and King of Navarre with the consent of his nobles. This ordinance gives the text the appearance of legislation, but the rest of the text is an exposition of substantive law. With a few exceptions, each section begins with a substantive rule of law introduced by the locution ‘It is custom in Champagne that … ’ or ‘The manner in which we do things in Champagne is … ’.Footnote 255 Nearly half of these statements of substantive law were supported with cases, described in varying degrees of detail.Footnote 256 The text begins with inheritance, dower, guardianship of minors, escheat, forest law, warranty, mortmain, seisin, punishments and fines, marriage between people of different status, and generally includes law relating to the governance of the county.Footnote 257 The text does occasionally touch on procedural questions, but reading this text would not be enough to learn court procedure.Footnote 258 The substantive law comes in the form of concrete rules and not as an explanation of terminology or abstract principles. It contains no Roman or canon law.
Coutumier d’Artois (between 1283 and 1302)
This text was written in French by an anonymous author sometime during the last couple of decades of the thirteenth century or the beginning of the fourteenth.Footnote 259 It is preserved in two manuscripts written in different dialects.Footnote 260 The text was composed during the rule of Robert II (1250–1302), Count of Artois, grandson of Louis VIII, and nephew of Louis IX.Footnote 261 Robert II was an absentee lord, and the county was governed without his presence.Footnote 262 Unlike in other regions, the baillis of Artois had important duties relating to the administration of justice but did not have their own courts; rather, they called together the men of the count who judged in the count’s name at the level of the castellany.Footnote 263 The Coutumier d’Artois author explains in the preface that the text contains the ‘customs and usages’ of Artois, as they should be and have been practised, part of which conform to the ‘written law’ of Rome and the church.Footnote 264 The text begins with trial procedure – summons, exceptions, delays (essoins) – and then turns to more substantive material on the role of attorneys and jurisdiction of the king, barons, and minor nobles. It then returns to procedure and initiating cases, before coming back to substantive issues of inheritance, succession, and dower. It finishes with appeals, criminal procedures, and the duties of judges. The author used a wide range of sources. He incorporated sections of Pierre de Fontaines’ Conseil and the Établissements de Saint Louis into his text and cites Roman law, Decretals, ordines iudiciarii (procedural manuals for canon law), Horace, and the Bible. The author discussed several cases he saw at court himself. The details in these case discussions vary but usually included the court where the proceeding took place, the nature of allegations, and the judgment.Footnote 265
Li usages de Bourgogne (date uncertain, perhaps end thirteenth century)
Li usages de Bourgogne was composed in French by an anonymous author.Footnote 266 Recent opinion places the text in the thirteenth century, although dating is difficult: while the extant manuscript is from the late fourteenth century at the earliest, some provisions seem to go back to the late twelfth or early thirteenth century, and it is possible the text dates to the thirteenth century.Footnote 267 The thirteenth-century dating is plausible as the concern of the text is to show the reader how to plead in court using witnesses, and clarifying inquisitorial procedure for lay contexts was certainly a preoccupation of the thirteenth century.Footnote 268 Despite the difficulty of dating the text with certainty, I am adding it here – conditionally and pending potential future manuscript discoveries – because it provides an intriguing addition to the corpus and widens the idea of what it meant to write a coutumier, although everything said about this text must be taken with the proviso of uncertain dating.
The Usages de Bourgogne is an introduction to pleading, and the trial is entirely framed in terms of argumentation. The author thus focuses on explaining the sorts of things one should say in court, the sorts of replies one might get, and the sorts of responses one should make. Despite this similarity to aspects of the coutumiers described above, the Usages de Bourgogne pays a lot of attention to the preoccupations of rural society. Substantively, the text focuses on the contractual obligations of farmers and wrongs committed by animals.Footnote 269 The text begins with how to plead, bring witnesses, types of witness, actions of debt, disagreement among judges, pledges, things purchased at markets and outside markets, lost animals (betes), borrowed animals, killing a neighbour’s animals, lending animals to others, pigs and other animals that cause damage, how to defend oneself from the charge of being a thief, encroachments on land, delays in paying the cens, defences against accusations of treason, defences against accusations of murder, trial by battle, defences women should use if accused of sorcery, defences against accusations of being a leper, and a last incomplete provision on inheritance. The text is thus generally focused on procedure, though aspects of substance are incorporated, and the text refers to the us de Borgoigne and justifications of rules or procedures ‘by Law’ (par droit). The text mentions ecclesiastical courts and treats proof by witnesses but does not cite, quote, or paraphrase texts of Roman law or canon law. Aspects relating to royal justice do not appear in the text.
Additional Note
The coutumiers were not the only texts that testified to the energy and experimentation invested in finding a good way to discuss the inchoate stuff of customary law and the business of secular courts. There were shorter texts of various types composed in the thirteenth century on aspects of the lay courts. These tracts do not often appear in recent historiography of the coutumiers but are important because they show that the coutumiers were part of a broader productive foment surrounding the lay courts and that their authors, while singular for writing more extensive works, were part of an intellectual milieu that was receptive to if not eager for such works. While they are comparatively short, these tracts could be listed with the coutumiers because they also deal with cases, abstract rules, or pleading in some way. That I do not include them in my corpus is not a reflection of their importance but of a desire to keep manageable what is already a large source base. It also reflects my view that these texts need their own in-depth study. I provide two examples of these shorter works here, for perspective.
A text known as the Assises de Normandie was composed by an anonymous author who was attached in some way to the baillage of Caen. It exists both in Latin and French. The title gives the impression that this a formal court record of cases and the author framed it as a record of what he saw at assises: ‘The year of the incarnation of the Lord 1234, the Tuesday before the feast of blessed Michael, in the month of April, in Caen. The following Wednesday, I heard what follows in the assise.’Footnote 270 However, while the text is based on court judgments rendered between 1234 and 1237 at various Norman assises, the case descriptions are extremely brief, and many have no case at all but are descriptions of abstract principles or procedure.Footnote 271 The author’s goal seemed not to be recounting the specifics of individual trials but writing down the principles he saw at play in them.Footnote 272
Another example is a tract on the customs of Anjou known today as the Compilatio de usibus Andegavie, to which tradition has given a Latin title, even though the text was entirely in French.Footnote 273 We have only one manuscript, which also contained the Établissements de Saint Louis and was written in the early fourteenth century.Footnote 274 Beautemps-Beaupré did not find a date for the text but leans towards the later 1270s, while Paul Viollet places it after 1315.Footnote 275 The text refers to usage and right/law (drois) of the courts in almost every provision, starting virtually every provision with ‘it is usage that’ or ‘it is usage and law that’. The text has no overt citation of Roman or canon law. The provisions in this text are very short and are forms of rules and procedures formulated in their most pithy essence, perhaps best described as customary ‘regulae iuris’.
