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Proofs of the accuracy of this distinction made by Bracton, and of its great importance in medieval England and elsewhere, are scattered all through the historical sources of the period, official and nonofficial. The earliest clear case I recall is one in the during Stephen's reign, in which the justices quashed a royal order of Henry I which infringed certain rights of Battle Abbey granted by the Conqueror.23 A king might be strong enough to enforce such an illegal provision during his own life, as the suggests,24 but it is none the less illegal. The closing words of Henry II's great assize of Clarendon of 1166, "and the lord King wills that this assize shall be binding in his realm as ,"25 show that this was one of those enactments which the king, as Bracton says, has in his own discretion ().26 But its content is administrative only, and from a very early time it was clearly recognized that a right, or a custom defining such a right, or an official promulgation of what such a custom truly means, was a far different thing from these mere administrative orders. Such a custom, Glanvill said, the king does not will and does not to change.27 When all courts of law had been finally absorbed in the royal jurisdiction as they had been by Bracton's time, no writ ran against the king; and a right, if against the king, could be made good only by petition. Nevertheless, an infringement by the king was a wrong and the law clearly recognized it as such.28 When recorded cases become available, they furnish innumerable instances of the principle from the opening of the thirteenth century to the end of the middle ages and afterward.
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Moreover, while in almost all regions they use and a written law, England alone employs within her boundaries an unwritten law and custom. In this at least without a writing what usage has approved becomes law. But it will not be absurd to call the English laws even when unwritten, since whatever is justly defined and approved with the counsel and consent of the magnates and the common engagement () of the republic, the authority of the King or prince preceding, should have the force of a . ... The English and customs, by the authority of kings, sometimes command, sometimes forbid, sometimes take vengeance and inflict a penalty upon transgressors. These laws, since they have been approved by the consent of those using them and confirmed by the oath of kings, can neither be changed nor destroyed without the common consent of all those with whose counsel and consent they have been promulgated.5
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