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A custom will not prevail over a statute, A teleological interpretation of an ancient statute by the Great Council of Malines

Gewoonte breekt geen wet, Een teleologische interpretatie van een oude ordonnantie door de Grote Raad van Mechelen in 1587

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image of Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review

Since the mid-twelfth century, the Lords of Pamele-Oudenaarde had been in possession of the toll on goods shipped over the 'Spei' at Pamele, a sluice on the river Scheldt near Oudenaarde. The toll was levied by appointed collectors whose task included the assessment of the type and quantity of the goods in transit. In 1562, Jacob van Joigny, who held at the time the lordship of Pamele-Oudenaarde, farmed out the tolls. At the same time, he published a list of toll-tariffs on a poster put up at the 'Spei' of Pamele. The publication provoked protestations from the franchised shipmasters of Ghent, later joined by those of Douai, Tournai and Mons, who all complained that the published tariffs contained new and higher tolls. They sued the Lord of Pamele-Oudenaarde, first before the Council of Flanders, then (as respondents in appeal) before the Great Council of Malines, demanding that the defendant should only levy the tolls which had been established in an ordinance of Margaret of Constantinople on 3 May 1271. The Lord of Pamele-Oudenaarde refused, claiming that the 1271 ordinance, supposing it had ever been implemented, had become obsolete by an immemorial custom which had caused the statute to fall into disuse. He also claimed that the wording of 1271 had become unintelligible and could no longer be applied to the sixteenth-century navigation on the Scheldt. However, both the Council of Flanders and the Great Council decided that the ordinance of 1271 was to be fully enforced. The judges of the Great Council (in their final judgement dated 23 March 1587) went as far as to apply a teleological construction to the original ordinance, interpreting the outdated thirteenth-century French phrases so as to ensure their application in the context of sixteenth-century commercial navigation.


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