Full text: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte / Kanonistische Abteilung (3 (1913))


H. W. C. Davis,

expressly that in all other cases parents might do as they
pleased. He recognises, more explicitly than Otlio and
Ottobon, the received Interpretation of the law; but bis only
Innovation is to provide more effectively than they had done
for the “solemnity” of the two great baptismal seasons.
c) Stratford, in the Constitution Licet Bonae Memo-
riae1), forbids even the regulär clergy to farm out their
tithes to laymen. Lyndwood remarks that this appears to
conflict with a rescript of Innocent III., Vestra nobis rela-
tio2), which permits the religious to do this very thing. On
the other hand Stratford had in his favour a general ordi-
nance of Alexander III., Quamvis sit grave3) which forbids
the granting of tithes to laymen. Lyndwood succeeds, by
some ingenious interpretations, in reconciling the two appa-
rently discordant texts: and then finds a sense for Stratford's
Constitution which will spare him the necessity of repudiating
it. Stratford had obviously made bad law. But need we
suspect him of anything worse than an unconscious blunder?
Let us now consider the alleged mass of English customs
irreconcilable with the Jus Commune. It may be admitted
that Lyndwood’s doctrine of the nature and validity of custom
is logically inconsistent with an Austinian theory of Sove-
reign ty. But the doctrine is not peculiar to Lyndwood, not
of English origin. It is to be found in the Roman canon
law. First there is Gratian’s dictum, which we have already
quoted, and which was commonly used to defend any uni-
versally accepted custom. Secondly we have a ruling of
Innocent III. that a laudable custom, which is to the ad-
vantage of a particular church, ought to be upheld.4) Thirdly
there is the Statement of Gregory IX. that a custom may
stand, even against positive law, if it be reasonable and has
been prescribed for as the law requires.5) In regard to
custom the policy of Rome was statesmanlike, but not strictly
logical. It would have been impossible to extirpate every
custom which ran counter to positive law. The Latin world
could not be made to fast on Sundays during Lent.6) Every-
*) Provinc. Constitutiones, p. 44 (Oxford edition). — 2) c. 2 X. III,
18. — ') c. 17 X. III, 30. — * *) c. 42 X. V, 3. - ») c. 11 X. I, 4. —
•) c. 6 D. 4.


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