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CHAPTER 3: CUSTOM - Theodore Frank Thomas Plucknett, A Concise History of the Common Law 
A Concise History of the Common Law (Indianapolis: Liberty Fund, 2010).
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The conditions of society, and men’s attitude towards them, are slowly but constantly changing, and the law must do its best to keep in harmony with contemporary life and thought. The law, too, must therefore change, and one of the most instructive aspects of legal history is the study of the various means which have served to bring about the necessary revision of the legal fabric.
THE FLEXIBILITY OF CUSTOM
The modern age of legislation by means of laws deliberately set up and expressed in certain authoritative texts covers but a very small period of legal history. Preceding it the principal element in most legal systems was custom. There were, of course, other factors as well in many cases. In canon law, for example, there were authoritative texts from the Bible and elsewhere, and most systems had at least a few examples to show of deliberate legislation. But the great mass of the law into which these exceptional elements had to be fitted was custom. Our earliest Anglo-Saxon “laws” are modifications of detail and obviously assume that the legal fabric is essentially customary. The communal courts which survived into historical times, especially the hundred and the county, were customary in their origin, and declared customary law whose sanction was derived from custom. But the remarkable feature of custom was its flexibility and adaptability. In modern times we hear a lot too much of the phrase “immemorial custom”. In so far as this phrase implies that custom is or ought to be immemorially old it is historically inaccurate. In an age when custom was an active living factor in the development of society, there was much less insistence upon actual or fictitious antiquity. If we want the view of a lawyer who knew from experience what custom was, we can turn to Azo (d. 1230), whose works were held in high respect by our own Bracton. “A custom can be called long”, he says, “if it was introduced within ten or twenty years, very long if it dates from thirty years, and ancient if it dates from forty years.”1
The middle ages seem to show us bodies of custom of every description, developing and adapting themselves to constantly changing conditions. We can see the first beginnings of a custom and trace its rise and modification; we can even see it deliberately imported from one place to another; it is a common sight to see a group of townspeople examine the customs of more advanced communities, choose the one they like best, and adopt it en bloc as their own. Indeed nothing is more evident than that custom in the middle ages could be made and changed, bought and sold, developing rapidly because it proceeded from the people, expressed their legal thought, and regulated their civil, commercial and family life. The custom of a mediaeval community may well have been much more intimately a product of the work and thought of those who lived by it, than is a modern statute enacted by a legislature whose contact with the public at large is only occasional.
With the progress of history, therefore, we see the constant growth of new custom, which is the natural method of making provision for new communities and the more modern needs of old ones. Just as the communal courts declared the custom of those who were subject to them, so we find that the newer feudal courts developed and declared the custom governing the feudal relationship. Feudalism was a rearrangement of society upon a military rather than a capitalistic basis, designed to meet a grave emergency created by external invasion and the fall of the central authority. This rearrangement was effected and maintained by the development of new bodies of custom governing novel situations. In short, feudalism is a very striking example of the radical changes in society which can be effected by the rapid modification of custom. This flexibility of custom enabled society in the tenth and eleventh centuries to reorganise itself with much greater ease and responsiveness to changing conditions, than if all this had to be done by drafting and adopting explicit legislation. Later still, the decline of feudalism was likewise effected by changes in custom; the growth of heritability in feudal fiefs, the strict limitation of feudal services, the development of the supremacy of the Crown, were all in effect the recognition by shifting custom that the spirit had departed from feudalism.
With the decline of feudalism came the growth of the royal authority, and this at first took the form of customary modifications in the relationship between the Crown and its vassals. By this time society was developing so rapidly that changes in custom had to be made with unusual precision; conflicts of interests sometimes resulted in rebellion or civil war, which in turn produced drastic changes in custom by a new method—legislation. Typical of such incidents are the events leading to Magna Carta, and from that date onwards it becomes steadily more clear that the growing supremacy of the Crown will bring with it national legislation, and that this national legislation will be in the end compelled to destroy custom in self-defence. Such in the broadest outline is the history and ultimate fate of custom.
During the middle ages, however, the conflict was still undecided; until the rise of the modern state and modern ideas of sovereignty, custom still had a large if diminishing place in our legal history.
Feudal custom includes the relationship of Crown and nobles until the moment when this body of custom separates and becomes, first, the law of the prerogative, and then later still combines with the custom of the King’s High Court of Parliament to form modern constitutional law. Indeed, those changing “conventions of the constitution”, which needed all Dicey’s ingenuity to reconcile them with nineteenth-century jurisprudence,1 are just such a body of living, growing custom as existed in the middle ages. The King’s other courts rapidly produced a body of custom—the contrast between Glanvill’s tiny treatise and Bracton’s heavy folio shows how much custom could be developed in two generations—which is the basis of the common law. Very soon there is a substantial quantity of legislation, but nevertheless that legislation always assumes that it will be construed in the light of the whole body of customary law. In striking witness to this we have the curious phenomenon of some statutes gradually being assimilated into the common law; Magna Carta very soon became in theory as well as in practice part of the common law, and so did other statutes.2 Indeed, when English common law was being adopted in America there was sometimes a question as to how far certain statutes were to be regarded as inseparable from the customary common law.
THE ATTITUDE OF THE CANONISTS
Exactly parallel to the growth of national unity in England was the development of the primacy of the papacy. The same problems were involved; a large number of scattered communities had developed masses of ecclesiastical custom, and if Christianity was to maintain itself against the disruptive forces of feudalism the papal monarchy was a political necessity. That monarchy itself grew up largely through the operation of custom, and when its dominance was practically assured, its position was defined in dogmatic form. Then came the problem of the relationship between the Holy See and numerous bodies of local ecclesiastical custom which still survived, and which under newer conditions hampered the work of the papacy. To this situation many canonists devoted careful thought, and the result of their speculations was to provide a philosophical basis in justification of papal policy.1 It was the canonists who (building on the foundation of Roman law) devised a rational basis for a general attack upon custom. As the papal monarchy became more centralised, the canonists were laying down what was in effect the modern doctrine, and from them the common lawyers were to learn some very useful rules whereby custom could be subjected to the national sovereign.
The attack upon custom which had already begun in England before the close of the middle ages did not proceed with equal force; some types of custom for a long time were hardly affected. Beginning at the bottom we have that complicated economic unit, the manor, whose rural economy and social structure were almost entirely a matter of custom. Within the manor there proceeded a dramatic struggle between various groups of custom which has had the profoundest effects upon society. It is clear that the condition of the tenants of a manor is in fact the condition of the bulk of the population, and the changing social and legal condition of the peasant is an important part of the history of the modern working class. Originally free, or nearly so, the growth of feudal custom depressed the inhabitants of the manor to the position of serfs, and this change took place partly by the manorial courts developing and declaring local custom, and partly by the royal courts developing and declaring customary common law. The rapid rise to supremacy of the Court of Common Pleas had the practical effect that property in land was ultimately whatever the Court of Common Pleas should adjudge. Now, after a moment of hesitation, the Court of Common Pleas decided that it could not be bothered with the affairs of peasants. To say that the peasant’s property rights could not be defended in the Court of Common Pleas was almost immediately recognised as equivalent to saying that he had no property rights at all. This was the accepted theory from the beginning of the fourteenth century onwards; Westminster Hall expressed it in the form of the dogma that the freehold in a villein’s lands was in the lord.
THE RISE OF COPYHOLD
Then came the Black Death, and with it the economic revolution of the middle of the fourteenth century. This crisis emphasised tendencies which had already appeared long before the plague—tendencies which took the characteristic form of the growth of new custom. There grew up in the manors of tolerant lords the custom of allowing villeins to succeed by hereditary right to their ancestors’ holdings. They were permitted to buy and sell servile land; in some cases the lord’s manorial court would entertain litigation between villeins, using all the forms of Westminster Hall with their technical allegations of “fee and right which ought to descend” and so on. The only difference was that the villeins’ claims always concluded with the words “according to the custom of the manor”.
CHANGING CUSTOM AND SOCIAL REVOLUTION
By this means the villeins of many manors acquired all the benefits of common law ownership through the machinery of the custom of the manor. Many landlords, however, were shrewd enough to detect this tendency, and to take steps to prevent the growth of a custom. The courts of common law refused to recognise such a revolutionary custom; according to their reasoning the freehold was in the lord, and they refused to admit that the custom of the manor could have any effect upon the lord’s position in the Court of Common Pleas. Indeed, if this custom had been immediately recognised the effect would have been most startling, but in point of fact recognition came so late that public opinion was already thoroughly familiar with its implications. In this great work Coke played a prominent and honourable part,1 and a line of his decisions at the close of the sixteenth century finally established the principle that the customary interests of a villein in his lands under the custom of the manor could be recognised and defended in the Court of Common Pleas.
“The fate of the erstwhile villein is, therefore, linked with some of the momentous movements in our legal history, but this is not the place to pursue the discussion further. A thorough history of copyhold would occupy a very important position in the social and legal history of England. Here we shall make but one more observation, and that will be to remark upon the strange ebb and flow of property rights which the history of copyhold reveals. In the early days of Henry III, when Pateshull and Raleigh were judges, the villein was almost protected, even in the royal courts. Perhaps it would be more accurate to say, as Maitland has suggested, that he had hardly yet been entirely excluded from royal justice. But in any case the evil day was not far off, and soon the dogma takes shape which will deprive the villein of his property. Within two centuries the tide begins to turn. Custom will be recognised by the courts of equity and they will begin the sober task of ‘receiving rather than reforming’ manorial custom. Lords of manors, who for two centuries have been assured by the common lawyers that they own the freehold in their tenants’ copyhold and customary lands (‘freehold’ being now a word of great power), are informed that they are only ‘instruments of the custom’. Finally, even the common law courts will be drawn into the stream and allow the copyholder to bring ejectment as if he were a freeholder. In all this, moreover, a great part will be played by the illustrious Coke, who in other respects proved such a champion of conservative and propertied interests against innovation. And thus the heirs and successors in title of the fourteenth century villein are once again restored to their property rights. There are surely few movements in legal history so curious as this silent shifting of property back and forth. One need only glance at the corresponding processes in France and Russia to realise the gravity of this social revolution, which in England was effected without an insurrection, without legislation, and almost without deliberate thought.”1
THE REACTION AGAINST CUSTOM
By this time the Court of Common Pleas had grown a little bit afraid of this powerful force of custom. It became necessary to impose limits and to do something to check social changes carried out solely through custom. They were content to allow at least some of the villeins to achieve property rights under the new name of copyholders, but in order to prevent a too rapid transference of property rights from lords to copyholders, they confined the operation of the new doctrine to those cases where the custom was, or seemed to be, immemorially old. This was a new device and an effective one whenever the law courts wished to limit the operation of a custom; it was easy to say that the antiquity of a custom would have to be proved right back to the time of legal memory (3rd September, 1189, so too the date of limitation of the writ of right).2 Such a distinction was completely false; nothing is more certain than that there was no copyhold anywhere in the year 1189; but the doctrine served as a means of checking any further rapid growth of customary tenures, and in its practical effect it retarded, without completely stopping, the movement. When we get to this doctrine of immemorially old custom it is obvious that we are in modern and not mediaeval times.3 The whole idea is as artificial as the date of limitation which it set, and it is clear that in the sixteenth century, when this doctrine first appears, custom had largely ceased to be a familiar notion to the common lawyers, who regarded it henceforth as a troublesome and perhaps a dangerous anomaly which must be confined as strictly as possible within harmless limits. This idea is nowhere better exemplified than in the famous Case of Tanistry4 when the common law tests of custom were used to break up the social organisation of the Irish nobility, the case becoming a leading authority upon the law of custom.
An almost equally remarkable product of customary law occurred upon the Continent among the lesser free landowners down to the early thirteenth century. As the result of the coincidence of a number of different customs and practices, there developed the famous custom of community property between husband and wife, a system which obtains in most continental countries and in some parts of America.1
THE EXTENT OF CUSTOM IN ENGLAND
Many of the counties in England had customs of their own, some of them well known (like the recently abolished gavelkind), others much more obscure.2 Then, too, in England there were numerous customs of cities and towns which throw an extraordinary light upon law and society in the middle ages. The common law was the custom of the King’s Court, and an outgrowth of feudal conditions which applied particularly to the larger landowners; for the upper classes of society its rules were no doubt appropriate, but it is only in the local custom of numerous cities, towns and villages that we can see how different the life of the ordinary people was. In these customs, for example, we find that the position of the married woman was very different from that which the common law assigned her, the complete merging of personality being obviously out of harmony with bourgeois habits. Local customs frequently keep the woman’s property free from her husband’s control, accord her liberty of contract (which was denied at common law), and even allow her to trade separately upon her own account. The extent of these local customs is hardly known. Many custumals have survived,3 but many others have not. Indeed, it was typical of customary law that there was no need for it to be written down, and there can be no doubt that many communities had notable bodies of custom without ever possessing a written custumal. By the merest chance an example of this recently came to light. In defence to an action of account in 1389, it was pleaded that by the custom of the little village of Selby in Yorkshire a husband was not liable for the commitments of his wife incurred in the course of her separate trading.1 There is no extant custumal of Selby, and apart from this case no other indication is known of Selby possessing a body of customary law. Only the accident which raised the point in the Court of Common Pleas has enabled us to learn this important fact, which is a strong warning to bear constantly in mind that the common law, even so late as 1389, did not extend to all persons and places, and that there was an incalculably large mass of customary law involving very different principles in numerous different communities of which we only know a fraction.
THE CUSTOM OF MERCHANTS
Of these local customs, those which were developed in particular places where fairs and large mercantile interests existed naturally acquired strong mercantile characteristics. In this way we come to the growth of a body of mercantile law which was commonly called the law merchant. It seems to have grown out of strictly local custom, and all through its history local variations are conspicuous. Inevitably, however, there grew up forces which made for greater uniformity, and in the end, as we have seen, what used to be the custom of numerous towns and fairs became the unified custom of a particular class, that of the merchants.
On examining the vast mass of customary law of which we still have surviving evidence, we get the impression of great activity in countless small communities, which are constantly endeavouring to regulate their life by developing approved courses of conduct which can be imposed and enforced upon the recalcitrant in the name of custom. The great variety of customary provisions, and the eagerness with which new communities compared different bodies of custom in order to choose the one best suited to their needs, seem to show that we must not neglect custom if we would find initiative, experiment and new thought in mediaeval law. An examination of our earlier statutes will show that many of them adopt into the common law principles which had been developed already in some one or another custumal, and this confirms the impression that the common lawyers themselves in the formative period of their profession were glad to look to local custom and to choose from it those principles and devices which, having been tried, had been found satisfactory, and to extend them to the nation at large by enacting them as statute law.2
Wehrlé, De la coutume dans le droit canonique, 139-140. Cf. “twice makes a custom”, P. de Fontaines (c. 1259), Conseil à un ami, 492.
Dicey, Law of the Constitution, 1885; 8th edn., 1915.
Plucknett, Statutes and Their Interpretation, 134.
See in general, Lambert, La Fonction du droit civil comparé, i. 103-208; Wehrlé, De la coutume dans le droit canonique.
He wrote an admirably lucid little book on copyhold (as such customary tenure was later called).
Plucknett, Y.B. 13 Richard II, Introduction, pp. xlii, xliii.
This is the date of limitation fixed in 1275 (Westminster I, c. 39) for writs of right. It was also the limit in Normandy: Summa de Legibus,cxi. 13 and Arresta Communia (ed. Perrot), p. 33 n. 2. Its transference to custom was helped by the fact that in 1290 it was enacted that the user of franchises ever since that date would be an answer to a writ of quo warranto; st. 18 Edw. I. Below, p. 719.
Littleton, s. 170, states the rule but with doubt and disapproval; Coke is more positive, Co. Lit., in loc.
Case of Tanistry (1608), Dav. 28.
This is the most recent suggestion made by Lemaire, Les Origines de la communauté de biens entre époux, Revue historique de droit (1928), 584-645. Even in England we had customs which might have grown into a system of community (e.g. Leis Willelme, c. 27) had not the Crown insisted on so extensive a right of forfeiture (Rot. Parl., ii. 8 (13), 11). Cf. Maitland, Collected Papers, ii. 289. Similarly, we find a wife making a will (with her husband’s assent, it was said) of half the goods of her and her husband—a practice which in some places largely contributed to the growth of the idea of marital community: Y.BB. Edward II (Selden Society), x. 243 (1311).
For a list of county customs, see N. Neilson in Harvard Law Review, xxxviii. 483-484.
For the boroughs, their provisions have been arranged according to subject matter in one corpus by Mary Bateson, Borough Customs (2 vols. Selden Society). Borough charters have been similarly treated by Ballard and Tait. For royal charters empowering boroughs to ordain, amend and add fresh customs, see A. K. Kiralfy, Action on the Case, 236.
Plucknett, Y.B. 13 Richard II (Ames Foundation), 80, and Introduction, xlvi.
See the recent suggestive article by Schechter, Popu ar Law and Common Law, Columbia Law Review, xxviii. 269-299.