CIVIL LAW AND CUSTOM

We have noted that those who were primarily concerned with the canon law of the Church courts normally prepared themselves with some study of the civil law, which was increasingly seen as a universal law.

Even the feudal law could be accommodated within the broad frame­work of the civil law. In the first half of the twelfth century Lombard scholars made a collection of feudal customs, the Libri feudorum, intro­duced by a Milanese judge called Obertus, which soon gained general acceptance as a convenient statement of the rules governing the rela­tionship of lord and vassal. Towards the end of the century the civil lawyers calmly incorporated the Libri feudorum into the volumenparvum, or fifth volume of the Corpus iuris, together with the Institutes, the Tres libri and the Authenticum in nine Collationes.

prevent the lucrative work arising out of feudal disputes from falling into the hands of their rivals, the canonists.

They still had to accommodate the realities of the feudal relationship with the Roman law of property, which held that ownership (dominium) was indivisible. They noted some similarity between the feudal vassal and the Roman emphyteuta, or long lease-holder. Noting that the latter had a special version of the owner's action, called aindicatio utilit, while the owner had a aindicatio directa, they inferred that these actions corre­sponded to two different kinds of ownership: the feudal vassal had domin­ium utile, while the lord had dominium directum.

An important problem for all medieval jurists concerned the validity of a local custom which appeared to contradict the imperial law of the Corpus iuris. Despite Justinian's assurances to the contrary, the texts did not speak with one voice on this point. On the one hand, there was the Digest text of Julian (1.3.32), which affirmed that both custom and written law were based on popular acceptance and so custom could abrogate a prior law. On the other hand, there was the Code text (8.52.2), giving Constantine's rule that the authority of custom does not extend to the point where it contradicts either reason or a lex.

The glossators debated the problem fiercely. Irnerius held that Julian's text referred to a time when the people still enjoyed the power to lay down the law and so could abrogate legislation by tacit consent. In his own time, however, such power had been transferred to the emperor and the people could no longer by their practice affect the validity of impe­rial law. Irnerius's pupil, Bulgarus, distinguished between a general custom and a local custom. The former must always prevail over an earlier law, whether customary or written. The latter could abrogate the earlier law only if it was introduced with knowledge of its existence, and then only within the bounds of the locality.

The Accursian Gloss gives the views of Bulgarus and Martinus but does not decide between them. In southern France, where Martinus's

63 influence was strong, the general view was that the imperial law must prevail over custom. In England, on the other hand, doctrine moved strongly in the opposite direction. The local situation provided the context.

In the second half of the twelfth century, King Henry II imposed a central government over the whole of England. One of its expressions was the introduction of a royal court, which could deal with cases arising in every part of the country and from all sections of the people, Norman or Saxon. It was too early to adopt the Romano-canonical procedure, which was still in its infancy. Every action was started by a writ issued by the royal Chancery, at the request of the plaintiff'. It ordered the king's representative in the area to bring the defendant named in the writ to answer the plaintiff’s claim before the king's judges. The writ specified the circumstances which, if proved, would entitle the plaintiff to a verdict in his favour. The royal judges would decide precisely how the facts, as asserted by the parties, fitted with the terms of the writ and then the case was sent to a lay jury of twelve men from the locality, who heard the evi­dence in public and gave the verdict. In the requirement that every legal action should begin with a writ, provided by a state official, who could therefore control the type of matters that were brought to the king's court, and end with the decision of a lay tribunal on the facts of the case, the procedure of the courts of common law recalls the formulary pro­cedure of classical Roman law.

The decisions of the royal judges on the effect of the various writs were said to be based on custom. Unlike the local customs applied in the local courts, which were derived from actual practice, however, the custom of the common law courts was largely elaborated by the judges themselves. It had to be discovered in the records of the courts. The glosses on custom to Vacarius's Liber pauperum go further than any conti­nental gloss in supporting the validity of custom and thus give a theoret­ical foundation to the new customary common law, developed by the king's court.

Customary practice was strong in all aspects of law, even in the canon law. Although papal decretals were normally expressed in language which suggested that they were to be applied consistently throughout the Church, they were in practice often modified by local usage in the different ecclesiastical provinces. That this practice could be legitimated in the doctrine of Roman civil law was important for all lawyers.