Norman customary law
Original features of Norman
customary law up to the mid-13th century
Having emerged as an entity in its own right at the beginning of the 10th century, Normandy was given some remarkable public institutions by its powerful dukes more than a century in advance of those of the royal domain. As far as customary law is concerned, meaning the collection of precepts governing the relationships between individuals, the first in the kingdom emerged in this great unified feudal state.
As we lack documents which are adequately specific on the subject, knowledge of the process by which the laws were formed remains somewhat uncertain, but we do know that when the Vikings established themselves in Normandy, the indigenous population obeyed judicial practices originating from Frankish law, which were diluted, while remaining relatively flexible, in order to be receptive to certain less refined customs of the Scandinavians. It was thus from a collection of more or less fluid practices, in turn more or less channelled by the strong ducal rule of law, that some fundamental concepts emerged during the second half of reign of William the Conqueror (1037-1087). They were affirmed and repeated in judicial decisions throughout the 12th century such that when they were revealed for the first time in the form of imperative precepts they were in fact the culmination of a slow maturation over three centuries.
Having been thus formed and stabilised, or crystallised, very early on, customary law was transcribed, once again much earlier than elsewhere, in two successive customaries, which were privately written works, composed in Latin by two judges for their own use or that of their colleagues: the "Très ancien coutumier" (Most Ancient Customary) (1200-1245) and subsequently above all the Summa de legibus Normanniae in curia laïcali (1235-1245), a major work, remarkable in its systematisation and in its qualities of clarity and rigour. The importance given to the early crystallisation of Norman customary law is critical as it explains the existence of the main principles which were to remain intact until the Revolution, principles of which, from the 13th century onwards, it is possible to gain a vivid picture via two dominant features.
The first feature is the very strong influence exerted over this law by feudalism. Fiefdom and justice were compounded together in it, with the lord of the fiefdom enjoying all the rights, which elsewhere belonged to the lord high justice (pronouncing over disinheritance, removal of goods, confiscation of property, the rights of a lord to the goods of a stranger deceased on his property, illegitimacy, matters concerning the obligatory use by tenants of certain facilities on the lord’s land and, above all, the guardianship of the person and goods of orphans of their vassals, a very specific institution that was highly profitable to the lord in his role as guardian of the individual). This extreme version of feudalism was also manifested in the naming of land: each tract was designated by the word feodum, and thus had to be matched with a social precision in terms of the homage due by its owner. Similarly, at the time, the law was apparently only able to take into account customs of the upper classes that had already been established – which did not yet have any identity as a nobility – in order to extend them to the entire population such that in Norman law there is no difference in the law between individuals of different social origins: the law is the same for all. Finally, it was the feudal share of 1/3 (the portion that the vassal can take from his fiefdom without forfeiting it to the lord) which determined the way the family assets were shared in respect of inheritance questions (for example, a portion of 1/3 for the widow, 1/3 inheritance for the daughters, for the younger children, etc...).
The second key feature is to be found in the importance given by custom to the family, the survival of which, over the generations, is a major preoccupation. Lineage is the central pivot of the inheritance system. All property descends ("like a weight") down to the most recent branches of the family who can legitimately make a claim; in default of an heir in the lineage, the goods that are compulsorily allocated to such a person, can under no circumstances be collected by relatives who are no part of that lineage.
Two principles dominate the inheritance process. The first is the exclusion of daughters as they are unable to ensure either the transmission of the family name or the maintenance of property within the estate derived from the ancestors. Although having the capacity to inherit, they are excluded from inheritance if there is a male family member such as a brother.
The second principle to be emphasised is the very strong emphasis on male domination, and furthermore the eminent and privileged position of the elder brother who, in relation to the lord and third parties in respect of (indivisible) fiefs, is the sole heir by virtue of the extraordinary institution of parage. However, through the action of compensations, a tendency towards equality between brothers is certain with a complete prohibition for the father to give any advantage to one of his offspring at the expense of the others.
Finally, strict rules existed relating to the retention within the family of héritages (buildings received through inheritance or already owned). There was, for example a prohibition against bequeathing buildings, and the reservation of 2/3rds, even in the case of gifts between living persons; the lineage deduction applied even to acquests, etc.
As for the matrimonial regime - subsequently referred to as ‘dotal’- there was the most original provision of the entire body of customary law which, until the Revolution, remained the only law to formally prohibit the common ownership of goods by spouses, which was applied everywhere else. A daughter only had the right to receive a husband from her father who, if he so wished, could opt to give her no maritagium (or dowry) or give her just a third part of her property.
A female orphan could only receive, from one or more of her brothers, an ‘endorsed marriage’, which was subjected to very strict conditions. The husband exerted a particularly restrictive authority over his wife when he became the owner of all her personal estate and goods acquired in common during their union, and became beneficiary of property received by her through a dowry or inheritance. These items were however very strictly protected against any act of harm on the part of the husband and he was not permitted to allow the property to pass into other hands even with the formal consent of his wife who remained the owner without the power to dispose of them. The principle of total inalienability is sanctioned after the death of the offending husband, by a legal provision - "bref de marriage encombré" - enabling the widow to recover in kind any property sold out of her dowry, from the hands of third party purchasers or owners!
As the widow was only the heir of her husband, she only had the right to a third or half of his movable property, depending on whether or not there were children. In addition, she received, as a result of the original marriage settlement, a third of the goods of the deceased. The widower, however, had the benefit, until his death (the right of widowhood), of all the goods of his deceased spouse, at the expense of her heirs (who were generally the children).
J. Musset
Université de Caen
