THE ORDERING OF THE CUSTOMARY LAW

Humanist jurisprudence was not confined to the civil law. In the later fifteenth century much of the law applied by courts throughout Europe was essentially conceived as traditional custom.

A few French customs had been put into written form, but in the absence of such a record, recourse had to be made to the folk-memory of the community and unless the scope of a particular custom was notrire, or recognised by all, an enquete par turbe was required, in which senior members of the community were interrogated about the custom in question. This was a costly and time-consuming procedure and from the middle of the fifteenth century the French kings sought to require local communities to record their law in writing. At first the royal com­mands were met by local inertia but then a procedure was devised which combined royal authority, the participation of professional lawyers and popular acceptance. Meetings of the local assemblies were convened to approve the formulation of the local custom. The government sent senior lawyers, usually judges of the provincial courts, the Parlements, to preside as royal commissioners.

In the first half of the sixteenth century all the French regional customs were ‘codified' in this way and, being now cast in authoritative and intelligible form, became the subject of academic comment and interpretation in the civil law manner. It became easier to identify what were the elements common to all or most of the customs. The most important exponent of the customs was Charles Dumoulin (Molinaeus) (1500-66). He studied at Orleans, where he was steeped in the traditional learning of Bartolus and Baldus. He also imbibed, however, much of the spirit of humanism and thus applied the Bartolist learning with a freer spirit than earlier writers. This was partly because, as a Protestant and nationalist, he had a vision of restoring the good old customary law that he considered to be a feature of an earlier, purer, France. In particular he rejected the Bartolist idea that written customs, statuta, which conflicted with the ius commune, should be given as narrow a construction as possible.

Dumoulin's main work was his Commentary on the Custom of Paris, which appeared in 1538. The custom had been given definitive form in 1510 and the commentary was written in Latin. Dumoulin's approach may be illustrated by his treatment of feudal tenures. He questioned the legal force of the Libri feudorum in the Corpus iuris. Their compiler Obertus had no official position and it was wrong to regard his collec­tion as having the validity of Justinian's texts, although it had been so regarded for over three hundred years [Opera omnia, 1681, 1.115,815). When, however, he came to expound the detail of fiefs, as contained in the Custom of Paris, Dumoulin was prepared to use the traditional learning of the commentators.

Traditionally the categorisation of the vassal's interest was based on the description of Obertus, who stated that the vassal had the right to use and enjoy the land. To a civil lawyer, this made the vassal's interest sound like a civil law usufruct, but one which, unlike an ordinary usu­fruct, passed from generation to generation. Civil lawyers had also called the vassal's interest dominium utile, by contrast with the dominium directum of the lord. Dumoulin was content to accept this traditional understand­ing of the vassal's interest as giving the vassal a permanent usufruct.

So far as the vassal's duties to the lord were concerned, there had been a tendency to characterise them as merely variations of the debtor-cred­itor relationship. To treat feudal relationships as purely economic, however, was, in Dumoulin's view, to omit a significant aspect, namely the honour and respect due from the vassal to his lord, in addition to any payment that he might have been obliged to make. Dumoulin wanted to restore the true character of the feudal relationship and was able to exploit what at first sight might have seemed a trivial point, derived from the Commentators. Baldus distinguished between ordinary debts and debts due by vassal to lord, on the ground that in an ordinary debt the creditor had either to fix the place of payment contractually or else to come to the debtor to collect it, whereas the feudal debtor, since he owed respect to his lord, had to come to the creditor. Although the Custom of Paris was silent on the place of payment of feudal dues, Dumoulin insisted that feudal tenure required the vassal, as part of his duty of respect for his lord, to seek him out to make his payment. In this way Dumoulin used the learning of the civil law Commentators in an eclec­tic manner to combat the idea that the feudal relationship had become purely economic and to re-establish older notions, which in his view were part of the fabric of traditional French society.

In his Oratio de roarordia et unione ronsuetudinum Fraoriae (Omnia opera, 1681, 11.690), Dumoulin argued for the existence of an agreed core of rules, common to all customs, from which gaps in individual customs could be filled rather than from the civil law. This idea was taken up by Guy Coquille (1523-1602) in his Institution au droit Jraocais. Despite its compre­hensive title, this work was concerned only with the fields of law dealt with in the customs and royal legislation and Coquille had to admit that, in order to fill gaps, it was sometimes necessary to have recourse to the civil law. The latter was, however, clearly a subsidiary law of last resort.

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