C. MED. HIST. - VOL. V. THE EMPIRE AND THE PAPACY
697
CHAPTER XXI.
ROMAN AND CANON LAW IN THE MIDDLE AGES.
I.
The age of the Crusades was also the age of the revival of legal
studies in Italy. These studies were devoted chiefly to two legal
systems
closely related to each other not only in their historical origin and
evolution but also in their form and content. Neither the Civil Law nor
the
Canon Law had originated in the medieval centuries immediately preceding
the Italian legal renascence. Both of these systems were outgrowths
of the age of antiquity ; both of them were integral parts of the
civilisation which the Middle Ages inherited from the ancient world. The
Civil
Law — the medieval Roman Law — was a system created by the ancient
Romans and transmitted by them to the peoples of the East and the
West ; while the Canon Law, an adaptation and expansion of the
Roman Law to meet the purposes of the Christian Church, was in its
origins and earlier development not less a creation of the Roman legal
genius than the Civil Law itself.
At the time, however, when by slow processes of movement and change
ancient society was gradually transforming itself into medieval society,
these two bodies of law were in different stages of evolution. The Roman
Law had already passed the period of its maturity in the time of the
classical jurists and was in process of adaptation to meet the altered social
conditions of the world. Canon Law, on the other hand, was still in the
earlier stages of its growth. This difference between the state of Roman Law
and the state of Canon Law at the beginning of the medieval epoch — a
difference marked by the character of the sources and the literature of the
two systems and by the scope and manner of the application of these
legal materials to human affairs — determined in many ways the main
lines of their separate but related histories in the Middle Age. In the
case of the Roman Law the work of the medieval centuries was to adapt,
modify, and apply a system which the Romans of antiquity had already
perfected ; while in the case of the Canon Law, on the other hand, the
work of the Middle Age was to develop, expand, and apply a system which
the ancient Roman world had only begun to evolve for the needs of the
youthful Church.
The main purpose of the present chapter is to sketch in outline the
history of these two systems of law throughout the medieval age. Two
preliminai'y mattei*s must engage our attention, however, at the very
outset of the enquiry. It will be necessary, in the first place, to observe
698 Origins in antiquity
the processes of the inner growth and the world-wide spread of the
Roman Law in the age of antiquity, for this earlier development lies at
the very basis of the history of the Roman system in the Middle Ages;
and, at the same time, we must gain some notion of the nature of the
Roman legal materials that were to influence the growth of law in
medieval times. A second subject of study, not less important than the
first, is the history of the origins of Canon Law in the age of antiquity,
and of its general development and its sources in the periods of the
Middle Age. Not until we understand these two preliminary matters can
we proceed to the study of our main subject, the history of the Roman
and Canon Laws in the Later Roman Empire of the East, in the Germanic
kingdoms of the West during the early medieval centuries, and in the
several national areas — Italy, Spain, France, Germany, and England —
of the later Middle Age. What were the processes whereby the Roman
and Canon Laws spread throughout the world — in the East as well as
in the West — during the medieval epoch .f* What was the result of the
contact of these laws with other legal systems "^ Where and how were
the two Romanic systems studied ; and what was the influence of such
studies ? These are some of the historical problems with which we shall
be concerned.
We shall not, therefore, restrict our attention to the age of the
Crusades and the revival of juristic studies. To do so would result in the
loss of perspective and conceal from our gaze all but a small part of the
complete picture. The complete picture, however, must be at best but
a rough sketch, an impressionist design. The sources and the literature
of the history of Roman and Canon Law in ancient and medieval times
fill thousands of volumes. Only a few of these can be drawn upon for
the purposes of this chapter^ Only a few of the rich and varied colours
of medieval legal life can be spread upon our canvas. All but the barest
outlines must be left undrawn.
Let us begin with the two preliminary subjects which are to furnish
us with the background of our picture.
II.
The history of the evolution of the Roman Law and of its world-wide
extension can be traced in unbroken continuity throughout twenty-
five centuries. In one sense the ancient history of this greatest of all
the legal systems of antiquity reaches its end when the decay of the
classical jurisprudence set in, as a part of the general decline of the
Roman world, about the middle of the third century after Christ. In
another sense, however, the ancient period of Roman legal history does
not finally terminate until the completion and promulgation of Justinian's
^ The bibliography to this chapter contains certain of the more important
sources and writings.
Periods of Roman legal history 699
codification in the first part of the sixth century. The transition from
ancient to medieval times was in fact a slow process of centuries ; and in
no respect is this more noticeable than in the history of the law. Legal
decay, adaptation, and transformation were at work in the regions of the
West long before the time of Justinian; and from his time onwards these
processes also became a marked feature of the legal history of the East.
In legal history the chronological boundaries of great eras cannot be
marked out with nicety and precision. Transition sometimes takes decades
or even centuries.
Let us for the moment fasten our attention upon the authenticated
evolution of Roman Law during the ten centuries before the death of
Justinian ; for the first three hundred years of the city we are without
adequate historical evidence. Within this long period of a thousand
years ^ the customs of a small city-community were transformed into an
elaborate system of justice and extended by conquest to the ancient
world. During the epoch from the establishment of the Republic until
the subjugation of central and southern Italy, the composite of fas, ius,
and boni mores which characterised the ancient custom of the regal
period became the ius civile, the ius proprium civium Romanorum, and
was codified in the Lex XII Tabularum (b.c. 451).
The latter half of
the Republican age was marked by the growth of the ius gentium and
the ius honorarium. Various influences affected both the form and the
substance of the law ; and among them were provincial conquests, the
growth of commerce and the influx of foreigners, the institution of the
peregrin praetorship, the simplification of procedure, and the introduction
of new remedies under the Aebutian law. The spread of literature and
philosophy, as well as the decline of religion and morals, also influenced
the law. The gi'owth of the law — which in this period was composed of ius
civile, ius gentium, and ius honorarium — owed little to legislation; but the
law's debt to custom, to the edicts of magistrates, and to professional jurisprudence, was very great.
The centuries of the Empire before the time of Diocletian were the age of the ius naturale and the maturity of Roman jurisprudence; while the age of codification stretched from Diocletian to Justinian — an age when the Emperors were supreme as the sole legislators and when Christianity, as the religion of the State, exerted a powerful influence on legal growth. Within these chief periods of Roman legal history, so briefly sketched, the law was not only altered in its form and substance, but it was gradually diffused throughout all the provinces of the Empire. The inner growth of the law as a system of justice and its world-wide extension went hand in hand as aspects of one and the same historical process. Certain features of this process demand our attention. Both Roman policy and Roman Law recognised the personality of
^ Details will be found in the two volumes of Karlowa's Romische Rechtsgeschichte, A shorter account of Roman legal history is given by Puchta in the first volume of his Institutionen.
CH. XXI
700 Ius civile and Ius gentium
law as a fundamental principle.1 By conquest Rome brought within her
dominion many non-Roman peoples in all parts of the ancient world,
peoples who at the time they became subject to Rome were already living
under their own national customs and laws. On the principle of the
personality of law the Roman ius civile applied only to Roman citizens ;
while
the peregrini, even under Roman rule, continued to live according to
their native systems of law. Thus, there existed under Roman political
sway many diverse legal systems, of which the Roman ius civile was only
one ; and the Roman Law did not, therefore, dominate the entire
territory
of the Roman State from the beginning. Indeed, it was only gradually,
by along process of development, that the Roman system displaced native
legal institutions in the provinces ; and even in the end it did not
everywhere supersede them. In many parts of the Empire native systems
persisted and survived Roman rule ; they contributed their share to the
development of law in the Middle Ages.
The existence within the Roman domain of many diverse bodies of
law — the ius civile of the Romans and the laws of the peregrini —
raised
the problem as to which of these several national laws should be applied
to the relations of Romans with peregrins and of peregrins of one
nation-
ality with those of another. The Romans solved this problem, not by
the development of a system similar to modern international private law,
or the conflict of laws, but by the evolution of a third body of law
different from either one of the national laws of the two parties. This
third body of law was known as the ius gentium. Gaius states that the
ius gentium was the law common to all peoples; and the words of Gaius
find their place in due time in the Digest^. But this theory of the
nature
of the ius gentium does not correspond with the facts, for in truth the
ius gentium, was a branch or part of the Roman Law itself : it was that
part of the Roman system which had been evolved, both by the edicts of
the Roman magistrates possessing jurisdiction over peregrins and by the
work of the Roman jurists, to regulate the inter-relations of persons of
different nationality. The principles of the ius gentium were drawn in
part from the Roman ius civile; in part they were new principles,
distinct
from Roman ius civile ^ derived in large measure from the national laws
of the peregrins, but shaped, both in form and spirit, in accordance
with
Roman ideas of justice. The iiis gentium embodied the newer legal ideas,
and at many points it was in conflict with the principles of the ancient
ius civile. Applied in the first instance to the cases where there was a
collision of two national laws, the ius gentium was later invoked in
cases
involving two members of the same nation and thus in cases between two
Roman citizens ; and in fact the ius gentium was used extensively in the
settlement of disputes between Roman citizens. The evolution of the ius
gentium as a new and integral part of the Roman system was thus a
1 See Kipp, Geschichte der Quellen des Romischen Rechts, 3rd edn, §§ 2, 3.
2 Gai. I, 1 = D. i, 1,9.
Spread of Roman Law in ancient times 701
powerful factor in the spread of Roman Law and in the process of the
unification of law throughout the Roman dominion.
Another factor of no less importance was the gradual extension of
Roman citizenship to the peregrini; for each extension of citizenship
meant the extension of the application of the Roman his civile. This
development reached its climax in the beginning of the third century,
when Caracalla, in his famous Edict (212), abolished the distinction
between citizens and peregrini by granting full citizenship (civitas) to
all
in the Roman worlds In theory at least, the main result of the Edict
was that all (omnes, partes?) in the Empire were now amenable both to
the ius civile and the ius gentium. In fact, however, the general
application of the ius civile throughout the Empire was never fully
earned out
in practice. Even after the Edict the distinction between citizens and
peregrini was not completely obliterated; for there still continued to
be
inhabitants of the Empire who were not citizens.2 There is evidence,
furthermore, that in various parts of the Empire the old national laws
of the peregrins survived not only Caracalla's Edict but also the
Justinianean legislation. For the persistence of those laws in certain
of
the eastern provinces of the Empire the Syrian-Roman Law Book^ is
ample authority.
The history of the evolution and spread of Roman Law in the ancient
world is in divers ways enlightening to the student of the medieval
history
of that system. Not only does it give him clear ideas as to the nature
of
the system, its component parts, its rules and principles, its sources
and
its juristic literature ; but it also shews him that, extensive as was
the
spread of the Roman Law, it never completely obliterated all the other
legal systems of antiquity. Although an account of the concrete rules
and principles of Roman Law, as they are to be found in Roman legal
sources, more particularly in the Theodosian Code and in Justinian's
law-books, does not fall within the compass of our present survey, we
must
nevertheless take pains to observe two main results of the evolution and
1 D. I, 5, 17 '. Ulpianus libro vicensimo secundo ad edictum. In orbe Romano qui
sunt ex constitutione imperatoris Autonini cives Romani effecti sunt. Scholars are
in general agreement that Ulpian's statement of the effect of Caracalla's Edict (the
text of which has not been preserved) is too wide. Kipp, op. cit. §3, remarks : Es
ist unzweifelhaft , dass damit zuviel gesagt ist. On the effect of the Edict, see Girard,
Manuel elementaire de Droit Romain, 3rd edn, p. 114; Buckland, Roman Law from,
Augustus to Justinian, 1921, pp. 99-101, where references to the ancient and modern
literature of the subject will be found. For a fuller discussion of the subject, see
Mittels, Reichsrecht und Volksrecht in den ostlichen Provinzen des Romischen Kaiser-reichs, Chap. vi.
2 Buckland, op. cit. p. 99: "[It] is clear that even under Justinian, Barbarian
inhabitants of the confines of the Empire, some originating there, some immigrant,
and some settled by compulsion, were not treated as cives."
^ For a brief account of this remarkable law-book and of recent researches concerning it, see Kipp, op. cit. § 23.
* See supra, Vol. ii. Chapter iii.
702 Survival of non-Roman laws
spread of the Roman system during the periods of ancient history, for
these results materially affect the medieval development.
Let it be noted, in the first place, that the world-wide diffusion of
the
Roman Law in antiquity partly prepared the way for its further extension
in the Middle Age. The Roman Law penetrated far and wide, in the East
and in the West, and gave the ancient world a legal unity such as it had
never before enjoyed; and yet this legal unity was of the kind which
left
in force, even though altered, many local laws and customs of non-Roman
origin. Medieval times began, therefore, with the Roman Law in
possession of only parts, though extensive parts, of the world-wide
legal field.
In the East the Greek Law had never been wholly absorbed or obliterated
by Roman Law in ancient times; it lived on in many regions under
Roman rule^ In the period of the Byzantine Empire it continued to
come into contact with the Roman Law, more particularly the Justinianean
law, and it helped to fashion the Graeco-Roman Law of the East. Likewise
in the West the Middle Ages began with Roman Law in only partial
occupation of the field. The Western provinces of the ancient Empire
had been Romanised in varying degrees of intensity; the Romanisation
of Italy differed widely from that of Britain. The differences between
the
legal histories of Western regions in medieval and modern times are due
in no small measure to the differences in the extent of Romanisation in
antiquity. The historian of European Law must constantly take account
of the fact that the planting of Roman culture, including culture in
law,
had been intensive in some regions, partial or slight in others. In no
extensive region of the West was Roman Law the sole law at the
beginning of the Middle Age. Throughout vast areas Germanic racial
customs held dominance. Nor were Germanic customs the only rivals
of the Roman Law as the world passed into the medieval epoch. In
various regions Celtic customs had survived the changes effected by the
spread of Roman power and, later, by the migrations of the Germanic
tribes. Indigenous customs other than Celtic also lived on during the
periods of Roman and Germanic movement and pressure. Here and there
Greek Law, planted in southern Europe during the days of Hellenic
colonisation, still persisted.
The second main result of the ancient development of Roman Law,
in so far as that development affects medieval law, was the accumulation
of a mass of legal sources. The history of Roman Law in the Middle Age
is, to a large extent, the history of the world-wide diffusion of the
manuscripts of these legal texts and their employment by legislators,
judges,
practitioners, and jurists in the work of adapting Roman Law to medieval
social conditions. The facts of this vast process are so complex, so
intimately interwoven in the network of medieval events, movements, and
tendencies, so bound up with' diverse social, political, and economic
conditions in the many parts of the world, that they are bewildering
even
* The establishment of this fact is one of the valuable results of
Mitteis' researches.
Legal characteristics of the Middle Ages 703
to one who is trained to single out the main and determining lines
of historical development. In truth, to write the medieval history of
Roman Law in all its fulness would mean the writing of the history of
medieval civilisation — the life of Europe ever moving,ever changing, in the
course of the centuries. Not forgetting this wider aspect of Roman legal
history in the Middle Age, let us observe that, so far as the diffusion of the
texts of the Roman Law is concerned, there are two features of the complex
historical process which illumine our path and guide us to underetanding.
The first point which we have to note and remember is that the medieval
world is not one vast community under a single system of law and
movement; it is a world made up of many communities, differing one from
another in race, in language, in social and legal institutions. Within
the
Byzantine Empire there is an appreciable degree of political and legal
unity; and, at times, there is also political and legal unity of a sort
in the
West. But the dominant note in the political and legal history of the
Middle Age is particularism, diversity, disunion. The system of the
personality of law in the early Middle Age means particularism and
diversity; and, with the growth of feudalism and the idea that law is
teiTitorial, as distinct from personal, regional divereities take the
place of
racial diversities in law. As a result, there is at first no tendency to
uniformity in respect of Roman Law throughout medieval Europe as a
whole.
A limited legal uniformity is at length introduced by the Frankish
Capitularies; but, on the whole, uniformity in law is more marked in
modern than in medieval times, and even in modern times it is but a
partial
uniformity based in large measure on common origins. Since the time of
the ancient Roman Empire, Europe has never been one State with one law.
Even in the period of the medieval Empire and the medieval Church it
was composed of many States, each with its own separate legal system.
There is, secondly, the point to be remembered that during the
Middle Ages each political unit adopts and adapts in ways of its own the
texts of the Roman Law that come to its hands. There is no power
from above which imposes certain texts over the whole of Europe^.
Some of the texts which are adopted and adapted bv the separate units
are pre-Justinianean, while some of them are parts of Justinian's
codification itself. In the early Middle Age in the West the
pre-Justinianean texts
have at first a preference: it is only gradually that the Justinianean
materials
acquire a dominance over the earlier ones. Nor is it surprising to find
that of
all the texts of the Roman Law the institutional treatises and
svstematic
1 The legal map of medieval Europe is not unlike the legal map of the United
States of America today ; for the States of the Federal Union — nearly fifty in number
— all possess their own separate legal systems. Save in Louisiana, where the Civil
Law prevails, uniformity in law throughout the Union is based in large measure on
the reception of the Common Law of England by the separate States.
2 The effect of the Frankish Capitularies should, however, be noted. See pp.
727-8, infra.
704 Diffusion of Roman legal texts
codifications have the greatest influence upon the spread of Roman legal
rules and ideas in the Middle Ages for these materials are easier to
grasp
and to embody in legislation and the practice of courts than are the
texts
of a more limited and special character. Furthermore, they are more
comprehensive and they thus meet more completely the social needs of the
time.
Of the pre-Justinianean texts there were three which exerted a
far-reaching influence in spreading Roman Law: the two private
compilations
or codes, known as the Codex Gregorianus (about a.d. 300) and the
Codex Hermogenianus (probably before a.d. 323), and, notably, the great
Code of the Emperor, the Codex Theodosianus (a.d. 438). Although the
Gregorian and Hermogenian Codes were private works, they were
nevertheless regarded as authoritative down to the time of Justinian,
and they
were not superseded by the far more important Code of Theodosius; for
while the Codex Theodosianus did not embody materials before
Constantine,
the Gregorian Code reached back to the time of Hadrian ^ In the East
the Codex Theodosianus was superseded by the codification of Justinian ;
but in the West it long influenced legal growth in the Germanic
kingdoms,
large parts of it being embodied in Alaric's Breviary and other legal
sources. In the East, Justinian's codification — gradually moulded,
especially in the Basilics, to meet Eastern needs — was of paramount
importance
from Justinian's time down to the fall of the Byzantine Empire and even
later. In the West, the pre-Justinianean sources, particularly the
Theodo-
sian Code, long continued to play a greater role than the texts of
Justinian. With the progress of time, however, the Institutes, Digest,
Code,
and Novels of Justinian spread everywhere throughout the regions of the
West. The revival of juristic studies in Italy was by far the most im-
portant of all the factors making for this far-reaching influence of the
Justinianean law. Not only were the law-books of Justinian the subject
of
study and instruction in the law schools; they were incorporated in the
law itself by the practice of the courts and by the acts of the
legislators.
Ultimately they became the very essence of the medieval Roman Law of
Western countries — the Corpus iuris civilis.
Other aspects of the medieval history of Roman Law will be considered
in later parts of this chapter. For the moment let us turn our attention
to the second preliminary subject of our study — the history of the origins
of Canon Law in antiquity and of its general development and sources in
the periods of the Middle Age.
III.
While the Canon Law is the law of the Christian Church, a law
created and enforced by organs of the Church, it embodies nevertheless
rules derived from the Old Testament and thus from times long before
the birth of Christ '^; and, in general, the Canon Law no less than the Civil
1 Buckland, op. cit. pp. 38-40.
2 Canones et Decreta sacrosancti Oecumenici Concilii Tridentini (Sessio Quarta )
Differences between Civil and Canon Law 705
Law is a bequest from antiquity. Not only do the earlier stages in the
growth of the Canon Law fall within the period from the birth of Christ
to the end of the age of antiquity, but the Canon Law itself is in large
measure an off-shoot from the main stem of Roman legal growth, deriving
from the older system many of its rules and principles. In its origins and
in much of its later development the Canon Law is as much the product
of Roman civilisation as the Civil Law itself.
From the point of view of medieval history there are, however, many
points of difference between the Civil law and the Canon Law. Not only
is the Civil Law primarily the secular law of the State, while the Canon
Law is primarily the law of the Christian Church ; the difference
between
the stages of growth reached by the two laws at the close of ancient
times
also affects materially their medieval courses of evolution. As we have
seen, the Middle Age adopts and adapts a system of Civil Law which
antiquity had perfected, while it takes over and slowly brings to
perfection a system of Canon Law which antiquity had only begun to
develop:
the Canon Law is the younger system. This difference leaves its mark on
the history of the sources of the two systems during the medieval epoch.
It accounts for the fact that the historian of Canon Law, as distinct
from
the historian of Civil Law, must spend much of his time in tracing the
evolution of a growing and expanding system and in describing and
explaining the successive additions to the sources of that system
before,
during, and after the formation of the Corpus Iuris canonici.
The fortunes of the Church followed the fortunes of the Empire,
within the frontiers of which it had its origin and earlier growth. The
division of the Empire into its western and eastern halves resulted in a
corresponding division of the Church. This process of ecclesiastical
division was practically complete by the end of the sixth century; but
only in 1054 was the schism of Eastern and Western Churches finally
consummated ^ The eastern and the western halves of the Church
thus went their separate ways as the Greek Catholic Church and
the Roman Catholic Church; and this splitting of the one Catholic
Church into two necessarily resulted in the division of the Canon Law
into two bodies of rules and principles, the Eastern or Greek Canon Law
and the Western or Latin Canon Law. These two bodies of Canon Law
possess common elements; they are closely related to each other in
various ways; but yet they are distinct one from the other in many other
ways and their histories must be separately traced. The early Greek
Canon Law consists only of Eastern conciliar canons; it admits no purely
Latin elements; and it cannot, therefore, lay claim to universality.
decretum de canonicis scripturis) : ...omnes libros tam veteris quam novi testamenti,
cum utriusque unus Deus sit auctor . . . pari pietatis affectu ac reverentia suscipit et
veneratur. According to Gratian only the moral rules of the Old Testament form
ius divinum. See Decretum, prima pars, distinctio VI, c. in ; Friedberg, Kirchenrecht,
4th edn, § 31. Compare Galante, Elementi di Diritto Ecclesiastico, pp. 15-17.
1 See supra, Vol. iv, Chapter ix.
C. MED. H. VOL. V. CH. XXI. 45
706 Eastern and Western Canon Law
Early Latin Canon Law is itself composed largely of Greek materials;
but to this Greek nucleus Latin elements, chiefly the canons of local and
ecumenical Councils and the Papal decretals, are continually added.1 The
medieval history of both of these canonical systems falls within the
compass of our study; but it is the Western Law which must chiefly
engage our attention.
In respect of the history of Western Law let us note three main
points. In the first place, the history of the Canon Law passes through
the same stages of development as does the Church itself. Two of the
principal stages we may designate the Conciliar and the Papal.
Corresponding to the constitutional history of the Church the canons of
the
earlier centuries are chiefly the work of the Councils, whereas in the
later
centuries the canons are for the most part the product of the
legislative
power gradually acquired by the Popes and they are embodied in the
decretals. In the second place, the term Canon Law has a wider and
a narrower meaning; and it acquires its narrower significance only after
the law itself has developed into a system and been made the object of
study. Whereas in its broader signification Canon Law is the sum or
aggregate of the rules which have been recognised or evolved by the
organs of the Church for the governance of the ecclesiastical body, in
its
narrower meaning it is the law contained in a definite and closed group
of law-books known as the Corpus Iuris Canonici. Thirdly, let us note
that jurists sometimes use the term ius ecclesiasticum as equivalent in
meaning to ius canonicum. This usage leads at times to confusion; for
the
term ecclesiastical law is also employed to designate a branch of the
law
of the State as distinct from the law enforced by the Church itself. The
(Kavove^) canones regulae, were very early distinguished from the
secular laws, the
(Grk.vofioc) nomoi(?), leges; and hence the Canon Law is sometimes
referred to as the
canones, sacri canones.
Turning to the history of the sources of Canon Law, more especially
the sources of the law enforced by the Roman Church, let us observe, in
the first place, that they consist of three main kinds : the Holy
Scripture, traditions and customs, and the legislation of Councils and
Popes. In dealing with these sources, modern canonists draw a
chronological and theoretical line of distinction between the ancient
and
the new law. The ius antiquum is the law developed and enforced
prior to the time of Gratian ; while the ius novum is the law em-
bodied in Gratian's Decretum and the other parts of the Corpus iuris
canonici. To distinguish it from the ius antiquum and the ius novum,
the law established by the Council of Trent and subsequent Papal
constitutions-
1 See supra, Vol. i, pp. 181-2.
2 Hinschius, Geschichte und Quellen des kanonischen Rechts (in Holtzendorff,
Encyklopaedie der Rechtswissenschaft, 6th edn. 1800, pp. 187-8).
3 This distinction is drawn by Houdiniion. Tardif, Histoire des Sources du Droit
Canonique, p. 5, says, however, that "le droit ancien est le droit anterieur au Concile
de Trent; le droit nouveau derive de ce concile."
Ius antiquum and Ius novum 707
is known to canonists as the recent law, the ius novissimum.
Canonists also draw a distinction between the ins scriptum^ the written
laws which emanate from Councils and Popes and which are embodied in
the collections of sources, and the ius non scriptum, or unwritten law, a
body of traditional and customary rules based in large measure on
natural
equity. A further distinction should also be remembered. The common
law, the ius commune, is the general law intended to regulate the whole
ecclesiastical bodv; while special or local law is the law which, by
derogation from or addition to the common law, is concerned with certain
categories of persons or certain regions. The function of legislating
for
the whole Church belongs only to the episcopate, assembled in general or
ecumenical Council, and to the Pope as its chief: local councils or in-
dividual bishops or prelates have authority to make only special or
local
laws. Most of the canons which constitute the ius antiquum, including
such of those canons as are embodied in Gratian's Decretum, emanate
nevertheless from local councils or individual bishops, not from the
supreme authorities of the Church. These canons have gradually come
to form parts of the ius commune by reason of the fact that canonical
collections which include these local canons as their principal element
have been
adopted generally in all parts of Christendom as of binding authority.
Both the ius antiquum and the ius novum fall within the compass of
our present survey, and of each one of these divisions of the law a few
words must needs be said. Let us glance therefore, first of all, at the
history of the sources of the ius antiquum, the law before the time of
Gratian and the formation of the Corpus Iuris Canonici.
In the first centuries of the Christian era, before the close of the
period of persecutions, the life of the Christian communities was governed
by the Scriptures and by ecclesiastical tradition, the unwTitten kuvcov or
regula. The various Churches early came to have their own traditions
and usages, and these they obeyed as their unwritten customary law ;
apart from the Scriptures the early Church law was not embodied in any
written code. Not until the time of Constantine and the other early
Christian Emperors was it possible for the ecclesiastical legislative power
to act freely and to create a body of written law. The new position of
the Church in its relation to the State formed the constitutional basis of
a new movement which led to the establishment of a written law of the
Church somewhat after the pattern of the Roman Civil Law. The organs
which expressed the mind of the federated Christian communities in the
matter of law, no less than in that of creed, were the early ecclesiastical
Councils of the fourth century ; and the codes formed during the decade
305-315 by the Councils of Elvira, Ancyra, Neocaesarea, and Aries are
the earliest of the conciliar materials preserved in the later body of the
Canon Law. These codes possessed, however, no binding authority out-
side the localities in which they were issued. The opportunity to issue a
code for the whole Christian Church finally presented itself at the
CH. XXI. 45 2
708 Eastern collections of canons
Ecumenical Council of Nicaea (325): and the issue of such a code of law
was a part of Constantine's policy of bringing about the unity of the
Church and its close alliance with the Empire. The Nicene canons, in
which were incorporated some of the canons of the Eastern Council of
Ancyra and of the Western Council of Arles, constitute the earliest code
of Canon Law for the whole Church. In the course of time many other
codes possessing no connexion with the Nicene Council were placed by
collectors of canons in the Nicene code and were thus given its authority.
Particularly in the West the Nicene code acquired a position of high
authority in the realm of discipline. Innocent of Rome in the cause of
St Chrysostom writes that "other canon than the Nicene canons the
Roman Church receives not."^
The compilation of collections of canons began in the East. The
elaboration of these collections, with certain additions drawn from the
West, such as canons in the Latin collection of Dionysius Exiguus,
resulted
ultimately in the formation of the official collection of the Greek
Church
as it was recognised and sanctioned by the Council in Trullo (692). As
defined by the Council, the Greek collection consists of several classes
of
documents : firstly, the eighty-five Apostolic Canons ; secondly, the
canons of the Councils of Nicaea, Ancyra, Neocaesarea, Gangra, Antioch,
Laodicea, Constantinople (381), Ephesus, Chalcedon, Sardica,
Constantinople (394), Carthage (the one of 419, according to Dionysius);
thirdly,
the canonical letters of several great bishops, such as Dionysius of
Alexandria, Peter of Alexandria (the Martyr), Athanasius, Basil, Gregory
of
Nyssa, Amphilochus of Iconium, and Gennadius of Constantinople. To
this official collection were added at a later time the twenty-two
canons
of the Second Council of Nicaea (787). As thus completed, the official
canonical collection of the Greek Church had several medieval
commentators, such as Photius (883), Zonaras (1120), and Balsamon
(1170); but
it has remained unchanged down to the present day. As pointed out by
Boudinhon, the later growth of the Eastern Canon Law — that is, after
the Council of Nicaea (787) — was due to the work of the Byzantine
Emperors before the fall of the Empire in 1453.
In its fifth-century state the Greek collection was translated and introduced into the West. The one hundred and two canons elaborated by the Council in Trullo (692) did not become part of Western Law until a much later time, and then upon the initiative of Pope John VIII (872-881). Meanwhile local collections of canons were made in the West from the fifth century onwards. Within the sphere of the see of Constantinople a tendency towards the unification of ecclesiastical law manifested itself as early as the fifth century; but in the West collections were purely local until in the eighth and ninth centuries, as the result of passing on the several collections from one region to another, there were the beginnings of a process of unification.
1 See further, supra, Vol. i, pp. 13, 176-182.
Western collections of Canons 709
The most ancient, and in some respects the most homogeneous and
noteworthy, of all these Western local collections is that of the Church
of Africa. By the time of the Vandal invasion the African collection had
already acquired special importance as an official code ; but our knowledge
of it is now derived chiefly from incomplete and confused accounts in
the collection of Dionysius Exiguus and the Spanish collection known as
the Hispana. About the middle of the ninth century Fulgentius Fenandus,
a Carthaginian deacon, made a methodical arrangement of the African
collection in the order of subjects ; and this is now known as the
Breviatio canonum.
The Roman Church in its early history governed itself largely by its
own traditions and customs and by papal letters called decretals. Of non-
Roman sources of canonical law it officially recognised, before the sixth
century, only the canons of Nicaea and Sardica, At the beginning of the
sixth century, however, the Roman Church adopted the double collection
— composed of Latin translations of Greek canons and thirty-nine
decretals of the Popes from Siricius (384-398) to Anastasius II (496-498)
— made by the Scythian monk Dionysius Exiguus ; and this collection,
its second part receiving successive additions as further decretals appeared,
remained the only official body of Canon Law for the Roman Church until
the reforms of the eleventh century. Pope Hadrian I in 774 gave this
double collection of Dionysius to the future Emperor Charlemagne as the
canonical book of the Roman Church ; and hence it is known as the
Dionysio-Hadriana. This collection, officially received by the Frankish
Church at the Council of Aix-la-Chapelle in 802, and thereafter recognised
and quoted as the liber canonum, became the code of Canon Law of almost
the whole of the Westera Church. In the hands of Pope Hadrian I, and
of Charlemagne and the Franks, the work of Dionysius was thus a
powerful factor in the growth of a unified Western Canon Law.
Gaul was exceptional in not possessing a code of local Canon Law. The
Church had not been centralised, as in many other regions of Europe,
round some principal see ; and the political territorial divisions had
not
been stable. In the fifth and sixth centuries only the Church of Aries
constituted a canonical centre of any real influence oyer its
surrounding
region. The main collection of canonical sources — known from its
seventeenth-century editor as the " Quesnel Collection " — contained
valuable
materials, chiefly Eastern and African canons and Papal letters, but no
canons of the local Gallic councils. When it was introduced into Gaul,
the Dionysio-Hadriana did not, therefore, displace any local and
generally-accepted collection. Unifying tendencies in the development of
Canon Law thus came from without and not within the Gallic Church. In
this process the alliance between the Carolingian power and the Papacy,
and the acceptance of the Dionysio-Hadriana, or liber canonum, marked
an important stage.
The Spanish Church differed fundamentally from the Gallic ; for it
710 The False Decretals
had been effectively centralised round the see of Toledo. As a result
the
Spanish Church possessed an important collection of Spanish Canon Law,
the Hispana^, dating from the early part of the eighth century, which,
although not strictly speaking an official collection, was everywhere
received. The Hispana includes in its first part the canons of Greek,
African, Gallic, and Spanish Councils, the canons of Spanish Councils
forming the local section of the collection ; while the decretals of the
Popes are in the second part, as in the case of the collection of
Dionysius.
The Hispana emerged into a position of great importance in the period
beginning in the middle of the ninth century, for it then served as the
basis of the False Decretals.
Although the Churches of the British Isles remained longer than most
other Churches outside the centralising movement and the tendency to a
unification of Western Canon Law, they contributed nevertheless to the
growth of the law as finally embodied in the Corpus iuris canonici. This
contribution consists fundamentally of two things: firstly, the collections
of penitentials, including those of Theodore of Canterbury (ob. 690),
the Venerable Bede (ob. 735), and Egbert of York (732-767); and,
secondly, the Irish collection, dating apparently from the eighth century,
which introduced the practice among canonists of quoting passages from
the Scriptures and the writings of the Fathers. Apart from these two
groups of materials, the sources of British local Canon Law were not
known to Gratian's predecessors nor to Gratian himself; and they did
not, therefore, influence the form and content of the Decretum.
About the middle of the ninth century there appeared the famous
collection known as the "False Decretals." Round this collection there
has arisen a vast controversial literature which it is impossible, within
the limits of the present chapter, to summarise or appraise*^. Certain it
is that the collection is based on the genuine Spanish collection known
as the Hispana or Isidoriana. The author, whether he was the mysterious
Benedictus Levita, to whom the False Capitularies, a collection closely
akin to the False Decretals, have been attributed, or whether he was
some other person, assumed the name of Isidore, Bishop of Seville,
who had been credited with the greater part of the Hispana or Isidoriana
collection: and hence the False Decretals are sometimes known as the
Pseudo-Isidore. Whoever the author may have been, it is now agreed on
all sides that the collection had its origin within the Frankish Empire^
* The collection is also known as the Isidoriana, because it has been attributed (but without reason) to Isidore of Seville.
* But see the works cited by Hinschius in his Geschichte und Quellen des
kanonischen Rechts (Holtzendorff's Encyklopaedie der Rechtswissenschaft
, 5th edn. 1890,
p. 193). A list of older works will be found in Phillips and Crouzet, Du
Droit
Ecclesiaatique dans ses Sources, Paris, 1852, pp. 42, 43.
3 It was at first thought that the False Decretals originated in the province of
Mayence. It is now held by Brissaud and other scholars that the False Decretals
must have been written in France, probably at Rheims. See Continental Legal History
Series (ed. by J. H. Wigmore and others), Vol. i, (1912), p. 710. Several recent
The False Decretals 711
The collection contains as many canons of Councils as Papal decretals;
and the decretals in it are not all forgeries. It is best described as an
amplification of the genuine Hispana by the interpolation of spurious
decretals. Of the three parts of the collection, the first is completely
spurious. It contains, after introductory matter, seventy spurious letters
attributed to Popes before the Council of Nicaea (325), all of these letters
being the forgery of the false Isidore except two spurious letters of
Clement which were already in circulation. The second part of the
collection contains the canons of Councils. Most of these are genuine, the
few foi-geries, including the famous Donation of Constantine, being
already known. The third part is a continuation of the series of
decretals — which in the first part of the collection had ended with the
date of the Nicene Council — down to St Gregory the Great (ob. 604) ;
but it contains also one letter of Gregory II (715-731). The authentic
decretals of the Popes begin only with Siricius (385), and these the
Pseudo-Isidore includes in his collection ; but he adds also spurious
decretals both for the time before and the time after 385. Most of the
forged decretals are not composed entirely of freshly fabricated material.
The author draws upon the Liber Pontificalis and ecclesiastical writings
for some of his matter. Thus, the genuine Councils and decretals, and
even this genuine matter falsely put into the mouths of the Popes, served
to cloak the skilfully fabricated stuff of the forger and to give it credence.
Blended thus of genuine and spurious matter, the collection rapidly circulated throughout the West and long passed as a valuable source of Canon Law. All the later collections drew materials, genuine and false indiscriminately, from the Pseudo-Isidore. Not until the fifteenth century were suspicions aroused as to the true character of the collection : Cardinal Nicholas of Cusa (o6. 1464) and Juan Torquemada (ob. 1468) expressed in no uncertain terms their doubts as to its authenticity.
In
the sixteenth century Erasmus, as well as Dumoulin (ob. 1568) and
Le Conte (ob. 1577), the two editors of Gratian's Decretum, decisively
refused to accept the Pseudo-Isidore. Gradually the history of the
forgery
has been pieced together by scholars ; and the false character of parts
of
the collection is now universally admitted.
authors have, however, suggested the province of Tours as the home of
the collection.
See the article on the "Decretals, False" by Boudinhon in the
Encyclopaedia Brittannica, 11th edn. Vol. vii, and the authorities there
cited; and Tardif, Histoire
des Sources du Droit Canonique, Paris, 1887, pp. 1-40-158.
1 While the Pseudo-Isidore quickly spread its influence from France to Italy and
other European countries, including England, it found a very slow reception at Rome
itself. It has been pointed out by M, Fouruier and other scholars that, while the
collection exerted a slight literary influence on papal letters of the ninth and tenth
centuries, the use of the forged material of the False Decretals did not become
prominent at Rome until about the middle of the eleventh century. 'Iliis ultimate
reception at Rome was due in large measure to the circulation of the canonical
collections in which the False Decretals held a place, no doubt at that time being
cast upon the authenticity of the forged documents.
712 Canonical collections before Gratian
The object of the forger appears to have been the reform, or better
application, of the Canon Law. He desired to prevent bishops from being
unjustly accused or deprived of their sees, and to protect the property
and persons of the clergy against the encroachments of bishops and
nobles. He desired also to increase the strength and cohesion of the
Churches ; and he made the Papacy the very centre of his ecclesiastical
edifice. These objects the wide acceptance of the False Decretals no doubt
furthered Certainly they served as a powerful factor in the movement,
within the Frankish territories, towards the centralisation of power in
the See of Rome.
Opinions differ as to the extent of the modification and corruption of
Canon Law itself occasioned by the influence of the False Decretals.
However this may be, there is no doubt that by furthering the tendency
towards its unification the False Decretals mark an important stage in
the history of the law. In yet another respect the Pseudo-Isidore is
noteworthy ; for it is the last of the long series of chronologically
arranged
collections of the texts of Canon Law. From this time onwards the
canonists arranged the Conciliar and Papal canons in systematic order
according to subject-matter and not according to time ; and thus they
gradually prepared the way for the systematic codification of the ius
commune in the Decretum of Gratian and the other integral parts of the
Corpus Iuris Canonici. Furthermore, from the time of the False Decretals
onwards the canonists not only arranged and systematised the materials,
gradually bringing local canons into the general mass of the common law;
they also added to the bare texts their own conclusions and discussions,
thus clothing the texts with canonist learning and theory.
During the three centuries between the appearance of the False
Decretals and the time of Gratian about forty canonical collections were
made. Among the most important of them are the Decretorum Libri XX
of Burchard, Bishop of Worms, written between the years 1012 and
1023, and the three works — the Panormia, the Decretum^ and the
Tripartite Collection — attributed to Ivo of Chartres, who studied under
Lanfranc at Bee and was the last of the great canonists of the period of
the itis antiquum. Although many of these collections dating from the
middle of the ninth to the middle of the twelfth century were of practical
and theoretical value, no one of them rose into eminence as the standard
or classical collection which embodied in the most orderly and concordant
form the whole mass of the materials of Canon Law that had grown up
in the centuries of Christendom. Gratian, garnering the rich harvest
which he found in the canonical works of his predecessors, finally provided
this standard collection at the very centre of the revival of juristic
studies. With Gratian and his monumental Decretum the period of the
ius novum had its beginnings, the period which was to see the completion
of the Corpus Iuris Canonici.
The gradual formation of the Corpus Iuris Canonici covers a period of
C.MED. H. CH. XXI
Gratian's Decretum 713
over three hundred years. As finally completed it consists of five separate
parts.
(1) Gratian's Decretum forms the first and in many ways the most
important part: it constitutes in truth the basic part of the entire Corpus
Iuris canonici. It is known that Gratian was a Camaldulensian monk of
the convent of St Felix at Bologna, where he taught Canon Law;
although only a few details of his life have come down to us. His
great work — dated between 1141 and 1150, or, as it is now thought,
between 1139 and 1141 ^ — bears in the older manuscripts the title
Concordia discordantium Canonum, [harmony of Discordant Canons], but is better known as the Decretum.
The Decretum is based on earlier collections, including the works of Ivo
of Chartres, but is much more than a compilation or collection. So
skilfully has Gratian ordered and treated his materials that his work
is essentially a treatise on the Canon Law in which the authorities
themselves are included. There are three parts or divisions of the work.
The
first part deals with the sources of the law and with ecclesiastical
persons;
the second with ecclesiastical jurisdiction, procedure, property, and
marriage; the third with consecration, sacrament, and liturgy. The
portions of these parts that are Gratian's own personal contribution are
known as the Dicta Gratiani, while the notes by Paucapalea, a twelfth-
century disciple of Gratian, as well as those of a few other scholars,
are
called Palcae. Very soon after its appearance Gratian's Decretum was
treated as if it were official; while in the law schools it was used as
the
foundation of teaching in Canon Law. Like the texts of the Justinianean
codification in the hands of the Glossators, the Decretum Gratiani was
soon provided with glosses. Before 1215 glosses were written by Johannes
Teutonicus, and about the year 1236 by Bartholomew of Brescia. It is
difficult to overestimate the vast influence which Gratian's work
exerted
for centuries upon the study and spread of Canon Law throughout the
Christian world. No other single book of Canon Law can vie with it in
importance and influence.
(2) To complete Gratian's Decretum, five compilations — known as the
Quinque Compilationes Antiquae — were made before the time of Gregory
IX. The first of these, compiled by Bernard of Pavia about 1190, was divided
into five books, as follows:
(1) ecclesiastical hierarchy ; (2) procedure ;
(3) functions and duties of the clergy; (4) marriage; (5) penal law.
This
order of subjects adopted by Bernard became the accepted order in future
compilations of Canon Law. Later scholars have summed it up in the
well-known verse : "Judex, Judicium, Clerus, Connubia, Crimen." The
last of the remaining four compilations of this group — the Quinque
Compilationes Antiquae — was an official collection of the decretals of
Honorius
III, 1216 to 1226.
By the Bull Rex pacificus (1234) Gregory IX sent to the Universities
^ On the date of the Decretum, see Schulte, Geschichte der Quellen und Literatur
des canonischen Rechts von Gratian bis auf die Gegenwart, Vol. I, p. 48.
714 The Corpus Iuris Canonici
of Bologna and Paris a compilation of the decretals of Popes since the
completion of the Decretum of Gratian. This official compilation, known
as the Decretals of Gregory IX, or 'Extra' (that is, "Decretales extra
Decretum vagantes" ), and abbreviated as "X" (meaning "extra"), was in
reality a continuation of Gratian's Decretum, which now became in law
what it had always been in fact — an official Code of Canon Law. The
author of the Extra was Gregory IX's confessor, Raymond de Penafort,
a Spaniard, who, following the arrangement of Justinian's Code, divided
the compilation into books, titles, and canons. Bernard of Parma, who
died in 1263, added glosses.
The Quinque Compilationes Antiquae were superseded by Gregory's
collection and by it deprived of all their authority.
(3) Boniface VIII collected in 1298 the decretals subsequent to the
Extra-, and he published the new compilation in the manner adopted
previously by Gregory IX in the case of the Extra — by sending it to the
Universities of Bologna and Paris. Boniface VIII's collection constituted
the Sextius or Liber Sextus Decretalium, the five earlier books being those
embodied in the Extra. In 1348 the Sextus was glossed by Jean Andre.
(4) In 1313 Clement V published another collection of decretals,
including his own, which is known as the "Clementinae." John XXII,
Clement's successor, recast the collection and sent it to the Universities
in 1317.
(5) The "Extravagantes" , or the decretals omitted from the above-
mentioned compilation ( extra-vagantes), are of two groups: (a) the
Extravagantes of John XXII (twenty constitutions),
(b) the "Extra-vagantes Communes" including the decretals issued by various Popes, since
the publication of the Sextus, from Boniface VIII to Sextus IV (1484). The
collection of Extravagantes differs from the earlier ones just mentioned in
not being an official compilation. But it found its place in editions of the
Corpus Iuris Canonici; and, inasmuch as all its documents were authentic,
it was treated as if it were official.
As completed and closed by the Extravagantes, the Corpus Iuris
Canonici is thus composed of: (1) the Decretum Gratiani ; (2) the Decretals
of Gregory IX (Liber Extra); (3) Boniface VIII's Liber Sextus Decretalium; (4) the Clementiniae (5) the Extravagantes.
The term Corpus iuris canonici, used as the antithesis of the term
Corpus iuris civilis when applied to the whole of the Roman Law, is to
be met as early as the twelfth century. In the sixteenth century the term
acquired, however, a technical sense, being used to denote the entirety of
the five sets of texts already described. From 1563 to 1580 the correctores
romani, a commission of cardinals and scholars, worked at Rome in order
to form a better text than that of the manuscripts and publications
then in use. The results of the labours of the commission appeared in
1582, under the Pontificate and by the orders of Gregory XIII, as the
official edition. Thus formed and completed under the direction of the
Eastern and Western legal history 715
Church, the Corpus Iuris Canonici constitutes the ius novum as distinct from
the ius antiquum ; and it is still the foundation of the Canon Law. The
complete body of Canon Law today includes also the ius novissimum , the
law that has been evolved since the Council of Trent (1545); but the ius
novissimum forms no part of the Corpus iuris canonici in its technical sense.
The gradual evolution of the law embodied in the Corpus iuris
canonici, a development extending through more than fifteen centuries of
the Christian era, is one of the outstanding features of ancient and
medieval history. It is an evolution comparable in many ways to the
slow growth of the law contained in Justinian's great codification and
later in the Corpus iuris civilis. With certain aspects of the medieval
history of the Canon Law we shall be concerned in later portions of this
chapter. We shall see how the Canon Law, as the law of the Church,
spread throughout the medieval world, how it influenced secular law and
juridical and political theory, how in short it became an integral and vital
part of medieval civilisation.
IV.
The history of Roman and Canon Law in the Middle Age falls
naturally into two main geographical divisions: the dividing line is
formed by the boundary between the East and the West. Although these
two parts of our history are closely related to each other — there ai'e legal
influences and counter-influences that play back and forth between the
two vast provinces of Christendom — we must nevertheless study each part
singly ere we can see these relations in their true perspective and gain a
complete picture of the vast process of legal evolution in medieval Europe
as a whole. First of all, then, let us briefly survey the historv of the
Roman and Canon Laws in their eastern home within the Later Roman
Empire.
Two events of the reign of Constantine the Great mark the definite
beginnings of the division of European legal history into its eastern and
its western parts. Each one of these events produced far-reaching and
lasting results within the domain of law; each one of them shaped and
transformed laws and customs in all parts of the world; each one of them
was a factor of the highest importance in the history of Roman and
Canon Law both in the East and in the West. The first of these two
events was Constantine's adoption of Christianity. Henceforth a new
order of ideas was given full play in all parts of the ancient world; and
these ideas moulded many of the processes of legal growth not only in
the period from Constantine to Justinian but throughout the medieval
era. The history of Roman and Canon Law among the Hellenised peoples
of the East and among the Germanic societies of the West displays in
many striking ways the after-influence of the recognition of Christianity
in the days of Constantine; and yet these after-influences in the East
differ markedly from those in the West. A second event of almost equal
716 Roman and Canon Law in the East
significance in the history of law was the making of Byzantium a second
capital of the Roman Empire. The centre of gravity in the Empire had
been slowly shifting to the East for a considerable time before Constantine;
the establishment of Constantinople accelerated this process and gave to
the Eastern half of the world-wide imperial domain a definite preponder-
ance. With the loss of the Western provinces, caused by the expansion
of the Germanic peoples, the ancient Roman Empire persisted only in the
East. Until it finally succumbed to the power of the Ottoman Turks in
1453, this Later Roman Empire — this "Greek" or "Byzantine" Empire
— was the true Roman Empire, its Emperors being the legitimate
successors of Augustus in an unbroken line of continuity; and down at
least to the beginning of its decline in the middle of the eleventh century,
except in the lifetime of Charlemagne, it was the first political power in
Europe. This transference of the Roman Empire from the West to the
East led to legal as well as political results of the highest moment; some
of them are to be seen by a comparison of the history of Roman and Canon
Laws in their Eastern and in their Western environments.
As the heir of antiquity the Later Roman Empire became the true
guardian of the legal traditions of the ancient Empire. In the first half
of the sixth century these traditions were, in certain respects, maintained.
Justinian, the great codifier of the accumulated mass of Roman legal
materials derived from the past, was an Eastern Emperor; his codification
was made and promulgated in the East. What, it should now be asked,
was the fate of the law of Justinian in its Eastern home.-^ Were the
ancient Roman legal traditions still further preserved .? Did the law
continue to develop in the spirit of the classical jurists ? Was the East to
inherit the legal genius of the West .'' The answers to these questions are
of far more than ordinary historical interest.
Three main characteristics of the Later Roman Empire determined
the future course of legal history and gave to medieval Roman and Canon
Laws in this part of the world certain of their marked characteristics.
Whereas, throughout the greater part of its history, the ancient Empire
had been predominantly Western, Pagan, and Roman, the Later Roman
Empire down to its fall in 1453 was fundamentally Eastern, Christian,
and
Greek. Here we may find the main key to the legal history of the East.
The general geographical situation of the Later Roman Empire,
particularly its proximity to the Slavs and Eastern peoples, and the
social,
economic, and religious conditions of its several parts, were
determining
factors in the evolution of the Roman and Canon Law within the imperial
frontiers. But this is only expressing in different terms the same
cardinal
fact: the Empire was Eastern, Christian, and Greek, and its law evolved
along the lines of imperial development.
The history of the Justinianean law in the East may be sketched by
a brief consideration of the legal sources in the successive periods of
imperial history.
Juristic studies. The 'EKXoyq (Grk. Eklognu ?) 717
Justinian declared that his codification was to be the sole statement
of the law; nothing outside it was to be regarded. In case of need,
resort
could be had only to the Emperor himself, inasmuch as he was the sole
source of the law. The Emperor authorised literal translations into
Greek, indexes, and irapdrLrKa (Grk. Paratitla ?)or summaries of
parallel passages or
titles; the writing of commentaries and general summaries, as an
interference with the Emperor's prerogative of interpretation, was
sternly
forbidden. But despite these prohibitions — prohibitions designed to
restrict the law to the imperial law-books — notes, abridgments,
excerpts,
general summaries, and commentaries appeared even in Justinian's own
lifetime and for half a century thereafter. These writings appear to
have
been intended chiefly for use in the law schools; most of them were
prepared bv professors (antecessores). Soon, however, they were in the
hands of practitioners and judges; and they thus came into general use.
One of the best known of these writings is the Greek Paraphrase of
the Institutes, which has survived in various manuscripts. It is usually
attributed to Theophilus, one of Justinian's commissioners and a
professor in the law school of Constantinople; but Ferrini, its latest
editor, holds that the authorship of Theophilus rests on inadequate
evidence. He contends that the work is a reproduction of Gaius in Greek,
that it was originally drawn up at Beyrout, that it was remodelled at a
later time on the plan, and with some of the matter, of Justinian's
Institutes. The Paraphrase of the Institutes formed the subject-matter
of commentaries by Dorotheus and Stephanus; while commentaries on
Justinian's Digest, Code, and Novels, written by various Eastern jurists,
also appeared.
This period of the jurists' study of Justinian's codification soon came
to an end. The codification itself had been rendered into Greek and had
formed the basis of scholarly, literary treatment ; but, once that had been
accomplished, juristic studies rapidly decayed. During the profound social
disturbances of the seventh century the law-books of Justinian seem to
have been hardly understood. The practice of the courts was largely
influenced by Greek Christian ideas and ecclesiastical canons; and, with
the decline of Roman traditions, these influences shaped legal growth and
gave character to the period of legislative activity in the eighth century.
Within the domain of legislation the outstanding feature of the century
was the appearance of the 'EyXoy' (Grk. Eklognu ?); of Leo the Isaurian (740), an abstract
of the whole codification of Justinian as amended and rearransred in
accordance with Greek and Christian ideas of the time. The legislation
of Leo represents indeed a wide departure from the Justinianean rules and
principles in nearly every branch of the law, a departure so coloured by
ecclesiastical notions of justice that the 'Eyxkoy' (Eklognu ?) itself has been called a
Christian law-book. Thus, for example, while Justinian treated marriage
as a contract, dissoluble at the will of the parties, Leo III introduced the
Church's doctrine that marriage was an indissoluble bond. The period of
718 The Basilics
the Isaurian (Syrian) and Phrygian (Amorian) Emperors (717-867) was
a time in which the law was developed through practice away from the
Justinianean model and little or no thought was given to scientific legal
studies.
At the beginning of the period of the Macedonian dynasty (867-1057)
a great change took place. Basil I (867-886) and his son Leo the
Philosopher (886-912), at the end of the ninth and beginning of the
tenth centuries, pursued the policy of a return to Justinian's law and a
revival of legal studies. Basil repealed the 'Eyxoy' (Eklognu ?) of Leo the Isaurian as
a departure from Justinian's law which it professed to summarise; and he
set himself to the task of producing an authoritative Greek version of the
whole of the Justinianean codification, but with the omission of obsolete
matter and the introduction of the most desirable parts of the legislation
enacted since the death of Justinian. The legal materials were subjected
to a treatment somewhat similar to that accorded by Justinian and his
commissioners in their day to the writings of the classical jurists and the
other accumulated sources. The first result of the new legislative policy
was Basil's issue in 879 of a kind of institutional work entitled (Grk. 'o ttjOo Yet/ao?
vofjLOf' o proheyros ?); ("the law as it is"), composed of extracts from Justinian's Institutes,
Digest, and Code. This handbook was revised and republished by Leo
under the title (Grk. ¥j7ravayoryr rov vofiov). The main work of the Emperors,
however, was the famous Basilics (Grk. Ta Baa-iXiKo - Ta Basilica?), a collection of all the
laws of the Empire, prepared by legal commissioners. They were begun
in the time of Basil and completed under Leo.
The Basilics are composed of sixty books, subdivided into titles, in
accordance with the general plan of Justinian's Codex. Within this
framework the law on any particular subject, whether derived from
Justinian's Institutes, Digest, Code, or Novels, is arranged
consecutively.
The so-called 'rapaypafai rSiv TraXatSiv' (Grk. Paragrafei ton palaion?)
is an addition to the Basilics^
consisting of an official commentary collected from the writings of the
sixth-century jurists, published by Leo's son, Constantinus
Porphyro-genitus. This work, now referred to as the scholia to the
Basilics^ has
proved of great value to modern civilians in their work of
reconstructing
the Roman legal texts. Annotations by jurists of the tenth, eleventh,
and
twelfth centuries, also referred to as scholia^ are of less value. In
many
points of civil as distinct from criminal law the Basilics discard the
rules
of the Ecloga in favour of those to be found in the Justinianean
codification. An example of this tendency of the Basilics is to be found
in their
revival of Justinian's law of divorce, with the result that in the East
there
thus arose in respect of this matter a contradiction between the Civil
and
the Canon Law. Although the Basilics retained their statutory authority
down to the fall of the Byzantine Empire in 1453, they had long before
that time been neglected in practice.
The Basilics were in fact the one really great codification of Graeco-
Roman Law in the Later Roman Empire after the time of Justinian; the
Graeco-Roman Law 719
successors of Basil the Macedonian and Leo the Philosopher did not
legislate on a grand scale. Somewhat more than a century after Leo there
was, however, a marked revival of juristic studies under Constantine IX
(1042-1054), who founded a new law-school. Many jurists continued
down to the fall of the Empire to write commentaries, epitomes, and
compendia; but of these jurists only John Xiphilin, Theodore Balsamon,
and Constantinus Harmenopulus, of the eleventh, twelfth, and fourteenth
centuries respectively, need be mentioned here. The decadence of
juristic
studies is represented in a striking way by the 'E^a/3/ySA.os' (Grk.
Etsabiblos ?) ^ of Harmenopulus, a work which appeared about 1345, and
which Bruns has
characterised as " a miserable epitome of the epitomes of epitomes."
The inner history of the Byzantine or Graeco-Roman Law — the
history, that is, of its rules and principles, as distinct from the history of
its sources and general development— is of more than usual interest to
the student of the medieval history of Roman Law in central and western
Europe. It shews him how the Justinianean law, as embodied in the
Institutes, Digest, Code, and Novels, further developed under Eastern
conditions; and it thus gives him an opportunity to compare contem-
porary development in the Germanic West. By means of comparison he
is enabled to see clearly the similarities and the differences between the
two evolutionary processes, and to study the underlying social, economic,
religious, and political causes which produce divergence and convergence
in legal growths. Of special interest is a comparison of legal medievalism
in East and in West; for the Byzantine regions, no less than the
Romano-Germanic regions of the West, passed through corresponding
stages of medieval growth in the domain of law. The medieval legal
development of the East, from the sixth to the ninth century, is
interrupted by a restoration of the Justinianean law which corresponds in
some ways to the revival of the study and influence of that law in Italy
and Western Europe from the time of the Glossators to the Reception.
Only by bringing into our studies both the Eastern and the Western
modes and processes of legal growth, decay, and revival, together with
their background of racial, social, and political conditions, ever changing
and ever acquiring new colours drawn from the life of civilisation itself,
can we hope fully to grasp the nature and significance of the vaster
movements in medieval legal history.
In certain parts of Eastern Europe, Graeco-Roman Law survived
the fall of the Byzantine Empire and the vicissitudes of the following
centuries. The civil code of Moldavia, published in 1816-17, is a
codification of Byzantine Law. The civil law of modem Greece is also
largely indebted to it. The Basilics were sanctioned as law in 1822, but
were displaced in 1835 in favour of the epitome of Harmenopulus;
although in framing her civil code Greece followed the Napoleonic code
as her model, she professes nevertheless to base the law in theory upon
the edicts of the Emperors as embodied in this "miserable epitome of the
720 Greek Canon Law
epitomes of epitomes" written by Harmenopulus. In his Geschichte des
Griechisch-Romischen Rechts Zacharia von Lingenthal expresses a most
favourable opinion of the Moldavian code of Byzantine law; and he
regrets that Greece did not adopt it as the basis of her own codification.
In an earlier part of this chapter reference has already been made
to the growth of Greek Canon Law during the Middle Ages. Here it is
only necessary to observe that the relation between Graeco-Roman Civil
Law and Greek Canon Law was very close. Under ecclesiastical influence
many of the texts of the Civil Law — the 'E«Xo7r7' (Grk. Ekloga ?), for example — were
permeated with the principles of canonical jurisprudence. The evolution
of the ecclesiastical law itself was due in large measure to the work of
the Emperors. The two bodies of law developed side by side as two
aspects of the same historical process. The so-called Nomocanons
illustrate this. In these great compilations the imperial civil laws and
the ecclesiastical canons on each subject were placed side by side and
contrasted. Jurists abridged these compilations and also recast them in
systematic treatises (syntagmata). The 'NofioKavcov' (Grk. Novokanon ?) of John of Antioch,
a learned priest made Patriarch of Constantinople by Justinian in 564,
was revised and enlarged by Photius and published under Basil in 883.
Many of the jurists were as good canonists as civilians. Among the
most distinguished canonists were John Zonaras and Theodore Balsamon,
both of the twelfth century.
Let us turn our attention from the East to the West. In this part
of the medieval world the background of the history of Roman and
Canon Law is formed by three vast processes : the decay and fall of the
Western Roman Empire ; the expansion of the Germanic peoples and
the establishment of their several kingdoms ; the growth of the Church
and of its law. With the history of the Canon Law itself in the Germanic
era — the history of its sources and constituent elements — we are not now
immediately concerned ; but it should be noted that, as the Church
developed, its law also developed and that the ecclesiastical courts of
Western Christendom everywhere enforced it. Our present object of study
is the part played by the Roman and the Canon Law in the life of the
Germanic kingdoms during the period of the decay and fall of the
Western Roman Empire. What was the influence of those laws on the
legislation of the Barbarians ?
The establishment of the Germanic kingdoms within the Western
provinces of the Empire brought Roman Law and Germanic Law face to
face. The problem as to which of these two bodies of law should govern
was solved by the Germanic rulers on the principle which had already
been followed by Rome in meeting a similar problem raised by the spread
of Roman power and Roman Law to regions inhabited by non-Roman
Leges Romanae and leges Barbarorum 721
peoples. On the principle of the personality of law^ the Germanic rulers
allowed the Roman population to live under Roman Law and the Germanic
population to live under their own native laws and customs. There
were exceptions to this principle, as we shall see ; but, in general, it
long
governed Germanic legislative policy and judicial practice.
Owing to the pereonality of law the written laws of the Germanic
kingdoms were of two main kinds : the so-called leges Romanae^ intended
for the Roman population ; and the so-called leges Barbarorum, designed
for the Germanic population. Apart from these there were the
Capitularies of the Frankish imperial rulers. Our study must now be
directed to a brief consideration of these three sorts of Germanic
legislation.
In 506 Alaric II, King of the West Goths, gave his Roman subjects
their own code of laws, the Lex Romana Visigothorum, known also as the
Breviarium Alaricianum ; and this proved to be the most important of
all the leges romanae of the Germanic realms. Alaric's purpose was to
epitomise the leading rules of practice and thus to remove the
prevailing
confusion and uncertainty due to the many texts of Roman Law then in
use. The commission of jurists appointed by the king for the execution
of this purpose proceeded upon a plan similar to that adopted by the
lawyers of Justinian's commission at a later time. Unlike the compilers
of the Justinianean legislation, however, Alaric's commissioners neither
altered nor mutilated the passages of the texts which they chose ; they
simply deleted those portions of the texts which were no longer
appropriate to the social conditions then existing. In selecting texts
they drew
upon both the Ius and the Lex of the Roman system. From the ius they
adopted the Liber Gai; a condensed re-statement or compendium of the
Institutes of Gaius which had been designed for employment in court
practice and much used in Roman schools of the fourth and fifth cen-
turies; and they also selected portions of the Sententiae of Paulus as
well
as a passage from the Responsa of Papinian. From the lex the
commissioners took over by far the greater part of the Codex
Theodosianus,
as well as the Novels of Theodosius, Valentinian III, Marcian, Majorian,
and Severus, and some constitutions from the private compilations
known as the Codex Gregorianus and the Codex Hermogemanus. The
compilers also incorporated in Alaric's Breviary an official but
worthless
interpretatio of all its parts except the liber Gat ; the latter text,
having
been originally adapted to practical use, needed no further commentary.
The interpretatio was not composed, as sometimes thought, by the Gothic
compilers of the Breviary ; it was drawn from writings of Roman Law
teachers of the later period of the Empire in which the earlier texts
had
been adapted to the conditions then prevailing. When the commissioners
* But compare Bruns — Pernice — Lenel, Geschichte und Quellen des Romischen Rechts, § 73 (Holtzendorff, Encyklopedie der Rechtswissenschaft , 6th edn, by Kohler, Vol. i).
C. MED. H. VOL. V. CH. XXI 46
722 Alaric's Breviary. Lex Romana Burgundionum
had completed their task, the Breviary was approved by the popular
assembly at Aire in Gascony in the year 506 ; and it was then
promulgated by the king as the sole code for his Roman subjects.
Henceforth all other Roman laws were to be ignored.
>P>
Alaric's Breviary represents in a striking'manner the decay of Roman
Law in the West. 1 At best it is a crude and incomplete compilation if
we compare it with the codification prepared in the East by Justinian's
commission a short time afterwards. But we must not forget that it was
the work of a barbarian king and as such a rather remarkable achievement
; and it certainly possessed the merit of being adapted to the social
needs of the debased Roman population of Alaric's kingdom. Besides,
it helped to preserve some of the texts of Roman Law in a part of the
old Roman world largely submerged by Germanic barbarians ; and it
also exerted an influence on the later development of Roman Law in the
West which entitles it to a conspicuous place in European legal history.
In many parts of Western Europe the Breviary maintained a high
authority throughout the Middle Ages.
Attention should also be drawn to the lex Romana of the Burgundians.
Gundobad, King of the Burgundians (474-516), promulgated two law-
books for his subjects. The so-called Lex Gundobada was a collection of
royal ordinances, issued about the year 495, applicable to the
Burgundians
and intended also to govern the legal relations between the Burgundians
and the Romans. But by issuing the Lex Gundobada the king did not
deprive his Roman subjects of the privilege of living under the Roman
Law ; in fact he promised and gave them a Roman code of their own.
This code, the so-called Lex Romana Burgundionum, embraces criminal,
private, and procedural law. It was intended as an instruction to judges
and not as a complete codification of the Roman Law ; Roman Law not
included in the Lex Romana Burgundionum continued to have validity.
The sources upon which the code is based are the three Codices^, the
Sententiae of Paul, a writing by Gaius (apparently the Institutes), and
school interpretations. After the Frankish conquest the Breviarium
Alaricianum was used to enlarge or supplement the Lex Romana
Burgundionum. Owing to the fact that Alaric's Breviary and the Lex
Romana
Burguiulionum were often placed together in manuscripts, a stupid
mistake arose as early as the ninth century. A short passage from
Papinian's
Responsa formed the conclusion of the Breviary. Hence it was thought
that the Lex Romana Burgundionum, which immediately followed the
Breviary in the manuscripts, was merely a continuation of the passage
from Papinian. The Lex Romana Burgundionum itself thus came to be
known as the " Papian," an abbreviation for Papinian : a designation
which, despite the fact that it had and has no meaning, still persists
in
legal literature.
1 Cf. Vinogradoff, Roman Law in Medieval Europe, pp. 6-12.
2 Gregorianus, Hermogenianus, and Theodosianus.
Edictum Theoderici 723
The Edictum Theoderici holds a special place among the Germanic
leges which we are studying. In establishing his Ostrogothic kingdom
in Italy (493) Theodoric had no intention of obliterating the Roman Law.
He differed indeed from other Germanic rulers in making the preservation
of the unity of the Roman Empire a cardinal feature of his policy ; and
many of his constitutional and legal anangements were based on this
conception. The Goths lived in accordance with their own laws, the
Romans by Roman Law ; while disputes between Goths and Romans
were settled in accordance with Roman Law. The Edictum Theoderici,
promulgated probably between the years 511 and 515, arose out of these
conditions. It was based on Roman legal materials, chiefly the three
CodiceSy the writings of Paul, and interpretations ; but it contained
also
new rules. It was designed as a means of preventing or settling disputes
between Goths and Romans, and was applied to both peoples
alike.
The Lombards differed from the Ostrogoths in their determination
to preserve intact their own Germanic institutions. When they became
masters of northern Italy (568), they treated the Romans as a conquered
people and completely set aside Roman administrative arrangements. To
the Romans as well as to the Lombards Germanic constitutional law was
applied ; Germanic law also governed the relations of Romans with
Lombards. To the relations of Roman with Roman, as well as to matters
of Roman family relationship and inheritance, the Roman Law seems,
however, to have been applied. The Lombard Law itself was preserved in
its Germanic purity, free from Roman legal influence, down to the middle
of the seventh century (Edictum Rotharis). Not until the extension and
strengthening of the Empire was Roman influence noticeable : as, for
instance, in documents. After Charlemagne, in alliance with the Pope,
had succeeded in subjugating the Lombards, the Frankish principle of
the personality of law — the principle that each people should live
under
its own laws — was apphed ; and the Roman Law thus came into full force
for Romans in Lombardy.
Although no special code or law-book was promulgated for the Romans within the Frankish realm in northern Prance, they lived, nevertheless, under Roman Law. Prom the sixth to the tenth century the Visigothic Breviary of Alaric was used in practice within this region as the general source of the Roman Law ; but it was never given real statutory authority. In the north the Roman population seems indeed to have been of far smaller proportions than that of southern France. As a result, the Germanic customary law was of predominant importance in the north, while in the more Romanised south it played a lesser role, Roman Law being more generally applied. This early difference lies at the foundation of the later distinction between northern and southern France as the pays du droit coutumier and the pays du droit ecrit^.
^ See pp. 749-50, infra.
CH. XXI. 46 — 2
724 Lex Romana canonice compta
It is to be observed, finally, that the Church as a juristic person or
institution — although not the clergy as individuals — was judged by
Roman Law in accordance with the principle ecclesia vivit lege Romana.
This principle was embodied in the earliest Germanic folk-laws ; and the
reason for its firm establishment among the Germanic peoples is that
the Catholic Church had been derived from the Roman Empire and
hence had been maintained as a Roman institution. In the legal writings
and decisions, as well as in the collections of ecclesiastical law, the
validity of Roman Law seems to have been at all times assumed ; the
principle ecclesia vivit lege Romana seems indeed never to have been
contested. In the earlier medieval period the chief source of the Roman
Law as applied to the Church was Alaric's Breviary ; while from the ninth
century onwards Justinian's Institutiones, Codex, and Novellae were also
in use. Not until the eleventh century were the Pandectae of Justinian
similarly applied to the Church.
Especially illuminating as one of the main sources of Roman Law in
the early Middle Age is the Lex Romana canonice compta, a collection
of Justinianean materials for ecclesiastical use dating from the ninth
century and originating, to all seeming, in Italy. The chief materials
upon which the compiler has drawn are Justinian's Institutiones and
Codex and the collection of Novels known as Juliani epitome
Novellarum'^.
These materials the compiler has arranged, in general, according to
their
subject-matter; but it is difficult, as Maassen points out, to find in
the
collection a systematic plan consistently carried out. Materials of
heterogeneous content are sometimes thrown in at places where one would
least expect to find them. The Lex Romana canonice compta not only
served a practical purpose in providing ecclesiastics with rules of
Roman
Law that might be useful to them, but it also helped to preserve the
texts of the Justinianean law for the employment of future generations*.
Furthermore, it was one of the many Roman legal materials of the
Middle Age which influenced the growth of the Canon Law. Towards
the end of the ninth century it was drawn upon by the compiler of the
collection of canons that was dedicated to Archbishop Anselm of
Milan.
The leges Romanae of the Germanic kingdoms hold a special place of
their own in the history of Roman Law in the Middle Ages. They represent
the decay and Barbarisation of the law in the West ; but at the
same time they represent the salvage of a part of the ancient legal
culture
^ See the account given by Maassen, Geschichte der Quellen und der Literatur des canonischen Rechts, Vol. i, pp. 888-896.
^ See Kruger, Geschichte der Quellen und Litteratur des Romischen Rechts, pp. 366, 884.
* On other collections of Roman Law for ecclesiastical use, notably the Mosaicarum
et Romanorum legum Collatio and the Excerpta of Bobbio, see Tardif, Histoire des
Sources du Droit Canonique, pp. 260-269.
The Germanic codes 725
of the Romans in the midst of the vast disturbance and transformation
of European society in the early medieval centuries. The leges Romanae
were themselves teachers of Roman legal ideas to the Germanic peoples ;
they helped to prepare the way for the fusion of Roman and Germanic laws
in the legal systems of later times throughout many parts of
Europe.
More significant still, from the point of view of Roman and Canonical
legal influence on Germanic law, are the so-called leges barbarorum.
During the period from the fall of the Western Roman Empire to
the beginning. of the ninth century the various Germanic peoples who
settled within the former provinces of the Empire put their ancient
tribal
customs, or at least a part of them, into WTiting juxta exemplum
Romanorum. It seems to have been feared that unless the customs were
reduced
to writing they would suffer in their competition with the more highly
developed system of Roman Law. Thus, in addition to the leges rornanae,
the codes for the Romans in the various Germanic states, there arose
many Germanic popular codes, the so-called leges barbarorum. Many of
these codes of Germanic law bear marks of Roman and ecclesiastical legal
influence, not alone in their form but also in their substance. Although
originally the enactments of popular assemblies, they shew an increasing
influence of Rome in that the king acquires more and more power in
legislation ; his share in the making of the codes tends ever to
increase.
Some of the terms applied to the codes, such as edlctum and decretum,
are merely copied from the phraseologv of Roman Law ; but certain of
the codes, particularly those in which the people took but a slight
share
as compared with that of the king, shew distinct Roman influence in
their subject-matter. Apart from the laws of the Anglo-Saxons, which
are in the native language of the folk, all of the leges barbarorum are
in
Latin — not the classical, but the low Latin from which in due time the
Romance languages developed : and this use of Latin is a testimony to
the influence of Rome upon Germanic law. Many of the codes shew a
mixture not only of Germanic and Roman elements, but also a mingling
of two or more Germanic systems due to migrations and various counter-
influences.
It is usual to classify the codes in four groups ; but this and all other classifications, particularly those based on resemblances and differences, must be treated with some caution. On the four-fold classification, the Gothic group includes the Visigothic and the Burgundian codes ; the Prankish group embraces the Salic, Ripuarian, Chamavian, and Thuringian codes ; the Saxon codes include the Saxon, the Anglo-Saxon, and the Frisian ; in the Swabian group are the Alemannic code and its offshoot the Bavarian code. The Lombard code is sometimes classed with those of the Saxon group ; but in many ways it occupies a distinct place of its own.
The codes of the Burgundians and the Visigoths are of special interest
726 Burgundian and Visigothic codes
from the point of view of Roman influence. Both the Burgundians and
the Visigoths had formed kingdoms under the Roman Empire before its
fall ; and both peoples were deeply Latinised and under the strong
influence of the Roman Law. The result is to be seen in their codes,
which
are attempts to formulate complete systems covering both public and
private law, after the Roman fashion, in contrast with the usual
Germanic
compilation of a limited number of the most important rules. In
substance, also, the codes of the Burgundians and the Visigoths shew
marked
features of Roman origin. The deep imprint of Roman Law on these
codes in large measure explains the distinct characteristics^ of later
legal
growth in the southern provinces of Gaul — lower France and upper Italy ;
for, in contrast with the Germanic character of legal growth in the
northern part of Gaul, the law in the southern parts was, in a very
marked degree, of Roman derivation.
It has already been observed that the Burgundian code of King
Gundobad (474-516), known as the Lex Gundobada, was applicable to
Burgundians and Romans alike in their inter-relations, the Roman Law
being left in force for the Romans as their personal law, Roman
influence
upon Gundobad and his successors is to be seen in various ways, not
least
in the fact that, like the Roman Emperors, they issued decrees
supplementary to the Lex Gundobada which were known in Roman fashion as
novellae. Even after the fall of the Burgundian kingdom (534), the code
still possessed validity under Frankish rule as the personal law of the
Burgundians.
The Visigothic code, more important than that of the Burgundians,
passed through two distinct stages of evolution. As the so-called
Antiqna,
the code contained laws of King Euric (466-483), the first of the
Germanic rulers to give written laws to his people, with revisions and
enlargements by Leovigild (569-586) and Recared (586-601). The
Antiqua influenced the Salic, Burgundian, Lombard, and Bavarian codes;
and it continued to be the fundamental law of the Visigothic kingdom
until changed social conditions necessitated a radical legal reform,
resulting in the second Visigothic code, the one known as the Leges
Visigothorum. Two main factors produced this code: the ever-increasing
power of the Church and the slow but well-nigh complete fusion of the
Germanic and Roman populations into one people. Owing especially to
the latter fact, the existence of two distinct legal systems — the
Antiqua
for the Visigoths and the Lex Romana Visigothorum (Breviarium
Alaricianum) for the Romans — became an anachronism. Inasmuch as it was
not possible to give either one of the codes legal validity for the
whole
population, in the reigns of Chindaswinth (641-652) and Receswinth (649-
672) the two codes were fused into one, to meet the new social needs.
Receswinth abolished Alaric's Breviary of Roman Law ; but he preserved
parts of the Antiqua in the new Leges Visigothorum. Promulgated in
654 and made binding on Visigoths and Romans alike, the new code
The Frankish Capitularies 727
became law throughout the Visigothic kingdom of Spain and southern
France. Both in arrangement and in substance the code of Leges
Visigothorum was strongly influenced by the Roman system, including the
Justinianean codification ; and this was likewise one of the main
features
of the later Visigothic compilation which was attributed to King Erwig
(680-687) and known as the Lex Visigothorum Ervigiana. This latter
code of the Visigoths, superior to most if not all of the other Germanic
codes and taken as a model in other Germanic kingdoms, followed closely,
in many ways, the Roman Law and the canons of the Church.
Many of the other leges barharoium of the Gothic, Frankish, Saxon,
Swabian, and Lombardic groups, even the laws of the Anglo-Saxons,
displayed the influence of the laws of Rome and the Church in varying
degrees of intensity ; and this influence tended to increase with the
progress of time. The full story of the permeation of the Germanic
le^s with Roman and canonical legal elements is fascinating and of
fundamental importance, but it is at the same time long and complex ;
it cannot be recounted in this chapter.
Let us, however, take note of the fact that the rise of the Frankish
Empire as the resurrected Roman Empire in the West meant a vast
increase in the influence of the doctrines and rules of Roman and Canon
Law throughout Europe. The many peoples united under the single
sway of the Franks continued in general to live under their own laws
on the Frankish principle of the personality of laws. Charlemagne,
indeed, decreed in 802 at Aix-la-Chapelle that all the Germanic customs
should be put in writing ; and the survival of personal laws was a
salient feature of Frankish policy. But over these systems of tribal
personal law stood the Empire itself, claiming the prerogative of
lawmaking. The imperial power was in large measure based both on the
Roman principle that the Emperor was the source of law and also
on the ecclesiastical doctrine that imperial authority was divinely
bestowed. Founded thus upon Roman and Christian ideas, the Emperor's
authority opened the way for a new and vigorous imprint of Roman and
canonical principles upon the law of Europe. Imperial legislation
reached
to the farthest corners of the Empire, and assisted in moulding the laws
of many peoples into forms that fitted them to be the basis of the
systems of national territorial law which ultimately developed in the
several parts of Europe. The main instruments of the imperial law-
making power were the Capitularies ; and these were general laws which
had application to all subjects of the Empire and which possessed
territorial as distinct from personal validity, cutting across and
modifying
the many systems of personal laws in force throughout the imperial
domain. To this there was one important exception. Although on the
imperial theory the Frankish Emperor succeeded to the authority of the
ancient Roman Emperor, no Capitularies of the Frankish Emperor
supplemented the Roman Law as a system of personal law ; the reason of
728 German and Roman legal foundations
the legislators themselves being that no one could imagine the Roman
Law capable of improvement. In many directions, however, the
Capitularies as general territorial law for the Empire embodied
principles of
Roman and Canon Law; and these principles the imperial judges applied
in their decisions. Judicial power is ever a potent factor in the spread
of a legal system. It was potent in the time of the Frankish Empire.
It was potent at a later age in the process of the Reception of Roman
and Canon Law in Germany. In our own day it has been, and still is,
a potent factor in the introduction of English Law into Roman-Dutch
and other legal systems within the British Imperial Commonwealth. Not
supplanting the pre-existing systems of personal laws, the leges Romanae
and the leges Barbarorum, but standing beside them, and in a sense over
them, the Capitularies as applied by the judges nevertheless aided the
development of these laws and produced a certain unity of legal
evolution
throughout Europe, the effects of which were not fully manifest till
later
times. Like the Constitutions of the Roman Emperors, the Capitularies
of the Frankish Emperors were a civilising and unifying force in which
Roman and Canon Law played a role of high significance.
The history we have here so briefly sketched is the history of the
foundations of the several legal systems of modern Western Europe.
These foundations were Germanic customs and Romanic ideas and principles
of civil and canonical law. In the period of the Germanic kingdoms
these two main legal elements — the Germanic and the Romanic — were
partly combined, partly fused. But everywhere, in all the many parts
of Europe, the fusions differed one from another in form and scope ;
everywhere legal growth meant particularism and diversity. Unity there
was of a sort, the unity based on the commingling and combination of
Germanic and Romanic elements. But within this general scheme of
unity there were almost countless detailed combinations, variations,
types ;
and throughout Europe almost innumerable new growths, arising out of
economic and social life, added themselves to the luxuriant garden of
Germano-Roman stocks.
Another historical factor tended also to produce variety in legal
growths. The gradual spread of feudal institutions turned personal laws
into territorial laws ; the principle of the personality of law gave
place
to the principle of the territoriality of law. Feudalism meant that law
was no longer to be carried about by the members of tribes wherever they
might wander ; that law was now in a sense affixed to the soil, that it
governed the affairs of all the men in a region, a territory. The fact
that in the feudal age Europe was composed of a vast number of
territorial lordships, large and small, involved the existence of an
equal
number of feudal systems of law and custom. Feudalism, no less than
tribalism, thus led to particularism, multiplicity, and diversity in the
domain of law. But in the territorial systems of law that arose as a
result of feudalism much of the substance of the supplanted personal
Roman Law in Italy 729
systems, including both Germanic and Romanic elements, was incorporated. ^
Still another important feature of the early Middle Age should be
noticed. On the map of this age the national lines of modern Europe
were nowhere to be seen ; but social and political conditions of the time
were slowly preparing the way for them. In the course of the eleventh,
twelfth, and thirteenth centuries modem geographical and political
boundaries were gradually forming themselves ; Europe was slowly
passing from the age of Germanic kingdoms to the age of the national
states of later medieval and of modem times. In our history of Roman
and Canon Law we must now take cognizance of these new frontiers in
Westem Europe; we must deal separately with Italy, Spain, France,
Germany (with Switzerland and the Netherlands), and England. In the
history of each one of these countries we must, however, go back to the
early Middle Age to study the laying of the foundations of the law.
Nor shall we find that in any one of these regions of Europe there
was much of legal unity. Within each country particularism in legal
growth — the particularism of feudal regions, of political divisions and
sub-divisions of territories, of towns, of different legislatures and courts
— was one of the main features of the time. Only slowly, and in some
cases only in modern times, was unity in law attained in the different
countries. England, with her centralised and unified system of medieval
common law, was the first to attain it.
VI.
Maitland has taught us that "Italy was to be for a while the focus of
the whole world's legal history." It is to Italy, then, that we must first
direct our thoughts.
From the fall of the Western Empire to the end of the Middle Age —
throughout the periods of domination by Ostrogoth, Greek, Lombard,
Saracen, Norman, and Frank — the Roman law never ceased to be in force
in the Italian peninsula. Although this continuity in the history of
Roman Law in Italy was at one time disputed, it has long since been
established by the researches of Muratori, Donati D'Asti, Guido Grandi,
and, finally, by von Savigny's great work on the history of Roman
Law in the Middle Ages. Despite the decay of Roman political power,
Roman civilisation preserved a stronger hold upon Italy, the very centre
of Roman history, than upon the other provinces. Roman Law was a vital
part of that civilisation, and it persisted tenaciously in the face of all the
1 An interesting illustration is furnished by the history of Catalonian feudalism.
The Usatges, which Raymond Berengar I put forth in 1064-69, are the earliest known
feudal code, they were modified by later monarchs and supplemented by the
introduction of Roman jurisprudence. See Merriman, Rise of the Spanish Empire,
Vol. 1, p. 476. On law under the feudal system, see General Survey of Events, Sources,
Persons and Movements (Continental Legal History Series, edited by J. H. Wigmore
and others, Vol. i), pp. 71-83.
730 Roman influence on Lombard law
foreign invasions. Already entrenched in the life of the peninsula
before
the fall of the Empire, the Theodosian Code long retained a certain
primacy among the sources of the Roman Law in Italy. The Church
itself had an interest in maintaining the Code of Theodosius, the
ecclesiastical constitution and privileges having been founded under
Roman governments prior to the time of Justinian. Likewise the books
in use at the bar and in the schools were based on this Code.
Nevertheless, the codification of Justinian was put into force in Italy
by the
enactments of the Emperor himself; and, although it did not supplant
at once the earlier Code, making indeed but slow progress in this
direction, it ultimately acquired a leading place in the legal life of
parts
of the peninsula. In the regions that were governed from Byzantium the
Graeco-Roman or Byzantine Law — particularly in the form of its
elaboration by the legislative reforms of the Eastern Emperors, such as
Leo the
Isaurian (ob. 740), Basil the Macedonian (ob. 886), and Leo the
Philosopher (ob. 912) — was also extensively applied in practice.
Under Lombard rule Roman Law persisted and even influenced the
Germanic Lombard Law itself. The legal history of the Lombard kingdom
possesses indeed many features of special interest to the student of
medieval Roman Law; and certain of these features are brought into
clear light only through an understanding of the main characteristics of
Lombard civilisation and Lombard law. The Ostrogoths had been mere
military adventurers in Italy; and under the Byzantine Empire's recon-
quest they disappeared both as a national and as a legal influence. Wholly
different is the story of the Lombards. When, in the sixth century, they
entered Italy, they were in point of civilisation far behind the Roman
population. But they were so strong in body and mind and so aggressive
in temperament that they soon conquered a large part of Italy and held
it tenaciously. Hostile both to the Empire and to the Church, they were
determined to control all Italy and to hold fast to their own ancient
civilisation and customs.
Our interest for the moment centres in these ancient Lombard
customs. Their history in Italy is like that of other bodies of Germanic
law in one fundamental particular: contact with the Romans brought
about their reduction to writing and their modification in form and
substance. Seventy-five years after the entry of the Lombards into Italy,
Rothari gave their customary law its written form in his famous Edict of
643. Later kings made supplements to the Edict: Grimoald in 668,
Liutprand between 713 and 735, Ratchis in 746, and Aistulf from 750
to 754. What, now, were the Roman influences that played upon this code
of Lombard Law.^ Not only was the idea of a written code derived from
the Romans; the designation of the code as an "edict" was a result of
Roman conceptions still prevalent in Italy. The very language of the
code was that of the conquered people; and it is possible that Romans,
more particularly Roman ecclesiastics, took some part in the framing of
Ecclesiastical influence on secular law 731
the Edict and its supplements. The text of the Edict, especially that of
the supplements, bears abundant evidences of the incorporation of Roman
and Canon Law. In his preamble Rothari transcribes expressions used in
the Gothic and Roman codes. The Edict or its supplements contain, in
identical or nearly identical words, texts of the imperial decrees, the
Bible, the canons, and the Fathers of the Church. Roman and Canonical
legal influence tends to increase as the Lombard code is amended and
enlarged bv the supplements to Rothari's work. This tendency is
strikingly illustrated by the supplements of Liutprand (713-735). The
influence of Roman Law may be seen in Liutprand's imitation of its ideas
and terms and in many points of substantive law; thus, Liutprand
introduces reforms, based on Roman Law, in respect of wills, women's
rights of succession, the guardianship of minors, prescription, and
mortgages. Even more significant is the influence of Canon Law on
Liutprand's legislation. During his reign the influence of the Church
grew steadily; and he was the Church's main agent in the moulding
of Lombard Law in conformity with the Church's law. Many provisions of
Canon Law were thus purposely incorporated in the code of the Lombards;
for example, canonical doctrines as to impediments to mariage, the
privileges of ecclesiastics, the recognition of the Pontifical primacy, and
penalties upon the pagan practices still surviving. Ratchis and Aistulf
followed in Liutprand's footsteps.
Strong ecclesiastical influence on the legislation of Germanic rulers is
characteristic of legal growth throughout many parts of the West in this
period; but it is especially striking in the case of Lombardic
legislation.
The permeation of the code of Rothari and his successors by the rules
and
principles of Canon Law shews us clearly how the Church, as the framer
and interpreter of divine law, inspires the modification of secular law
to
suit the precepts of divine law. Comparisons between legal growth in the
West and legal growth in the East, in the successive periods of medieval
history, are ever enlightening. Let us not forget, then, that, at the
very
time when the Church is moulding the Lombardic Law along Latin-
Christian lines in the reigns of Liutprand and Ratchis, the same Church
influence is effecting a profound change in the law of the East. In the
West, Liutprand supplements in 713-735, and Ratchis supplements in
746, the Edict of Rothari ; while in the East, Leo the Isaurian's famous
'EkcXoy' (Gr. Ekloga ?), an abstract of the Justinianean codification so
coloured by
Greek ecclesiastical ideas and principles that it may be described as
a Christian law-book, appears in 740. Not only in this period does
Canon Law exert a moulding influence on secular law throughout the
world. Throughout the whole of the Middle Age that influence is
continually shaping the form and content of Graeco-Roman Law in the
East and Germanic-Roman Law in the West. In some periods the
ecclesiastical influence on secular law is stronger than in others; but
at all times there is a steady tendency in that direction.
[ CH 21 Continued .... ]