Just as medieval law was based upon precedent, so medieval society was governed by habit. Custom was the great law of life. The earliest written records show its importance. In the sixth century Aethelbert, the king of Kent, described his laws as those which had been long accepted and established; this would mean in practice that a large body of oral tradition was passed from generation to generation by the men of Kent. The witan or Anglo-Saxon assembly was to be made up of the wisest men, namely those who ‘knew how all things stood in the land in their forefathers’ days’. An eleventh-century treatise in Anglo-Saxon affirms that the landowner should ‘always know what the ancient tradition of the land is, and what the custom of the people is’. Surely ‘custom’ would go back into prehistoric times? This atavism was the expression of a deeply communal society, whereby the ties binding people together were almost unbreakable.
In the feudal society of the Normans the serf or villein was also known as consuetudinarius or custumarius, meaning ‘a man of custom’. His rights and duties were upheld by a body of customary law that would not allow outright oppression or enslavement. It would perhaps be better to say that the people of England lived by custom and not by law. Rights and duties were perpetual. No lord, however great, would willingly violate such a tradition. It would be against nature. At an important trial in 1072 the bishop of Chichester, Aethelric, was brought in a cart to expound and explain ‘the old customs of the laws’. So a continuity was maintained even after William the Conqueror’s invasion. It could not be otherwise. It was the essential life of the country. The unanswerable complaint of the labourer or the villager was that ‘we have never been accustomed to do this!’
Another aspect of this historical piety may be mentioned. Any institutional or administrative change, introduced by the king and council, had to be explained as a return to some long-lost tradition. Any innovation that had endured for twenty or thirty years then in turn became part of ancient custom. Nothing was good because it was new. It was good because it was old. It was closer to the golden age of the world. So the existing structure of things had at all costs to be protected. Any piece of legislation was said to be a ‘declaration’ of the existing law, the revelation of something previously hidden. In the reign of Henry III the barons of the realm announced ‘Nolumus leges Angliae mutari’ – ‘we do not wish the laws of England to be changed’. Government itself was established upon habitual forms and institutions. The Black Book or royal household manual of 1478, in the reign of Edward IV, urged the treasurer to seek out ‘good, old, sad [serious], worshipful and profitable rules of the court used before time’.
Custom was therefore immemorial. In the words of the period it was ‘from time out of mind, about which contrary human memory does not exist’. It was expected that the same practice and habitual activity would go on forever until the day of doom. There was no reason to envisage anything else. That final day might in effect be the day when the customary round grew ragged and creaked to a halt. Who could tell?
Customs could be of inexplicable mystery. If the king passed over Shrivenham Bridge, then in Wiltshire, the owner of the land was supposed to bring to him two white domestic cocks with the words ‘Behold, my lord, these two white capons which you shall have another time but not now’. If a whale was stranded on the coast near Chichester, it belonged to the bishop except for the tongue, which was taken to the king; if a whale landed anywhere else along the shores of his diocese, the bishop was permitted to have only the right flipper. There were urban, as well as country, customs. At Kidderminster in Worcestershire, on the day of the election of the bailiff, the town was controlled for one hour by the populace; they spent the time throwing cabbage stalks at one another before pelting the bailiff and his procession with apples. The porters of Billingsgate decreed that any stranger entering their market was obliged to salute a wooden post set up there and pay them sixpence; the man was then adopted by two ‘godparents’ among the porters. If an unmarried man was condemned to death in London, he was pardoned if a woman applied for his release on condition that he married her.
The nation itself represented the nexus of custom with custom, the shifting patterns of habitual activity. This may not be a particularly exciting philosophy of history but it is important to avoid the shibboleth of some fated or providential movement forward.
29
The warrior
