C. MED. H. VOL. V. THE EMPIRE AND THE PAPACY - CH. XXI cont.
ROMAN AND CANON LAW IN THE MIDDLE AGES.
732 Legal studies in the West
Let us now turn to another aspect of the history of Roman and
Canon Law in the Italian Middle Age. Great schools of law arose in Italy
in which these two closely related legal systems were studied and taught by
scholars. In one sense an account of the rise and the work of these
schools belongs to Italian history. But when we contemplate the far-
reaching influence of these seats of learning and instruction in Roman and
in Canon Law, particularly when we observe Bologna's world-wide effect
on constitutional and legal development and on political and juridical
thought, we can see at once that we are dealing with one of the most vital
aspects of the general history of civilisation. In law, as in art, letters,
and other features of culture, Italian history is at the same time world
history.
Throughout the darkest period of the Middle Age — from the fifth to
the tenth century — legal studies in the West were never entirely
interrupted. Although there seem to have been no organised law
schools and no juristic studies of the highest order, there was
neverthe-
less, as a part of the general culture of the times, a partial salvage
of
Roman legal materials and some scholarly attention to their form and
content. Monks and ecclesiastics made transcripts and abstracts from
the juristic fragments which had survived from antiquity; and these
formed the basis of study in the schools of arts. In the curriculum
above
the rudiments law found its place under dialectic at the end of the
trivium of grammar, rhetoric, and dialectic. For a long time legal
instruction in Italy was for the most part in the keeping of the
practitioners of the law; judges and notaries taught their successors
and thus
preserved from generation to generation the traditions of the
profession.
The Frankish period marks, however, the beginning of a far-reaching
movement. Law gradually came to be regarded more and more asascience.
Books
were written dealing with the practice, the theory, and the history of
the
law. The methods of legal education were steadily improved. There
arose in Italy great schools or universities of law. The legal
renaissance
spread from Italy to all parts of Europe.
The Italian law schools of the early Middle Age were of two kinds.
There were schools of Lombard Law at Milan, Mantua, Verona, and
Pavia; while, apart from schools kept by bishops and monks, the chief
schools of Roman Law were at Ravenna and Bologna. The emphasis
placed either on Lombard or on Roman Law in each one of these several
schools corresponded to the legal conditions prevailing in the localities
where the schools were situate. Legal conditions were constantly
changing, however, as a result of the struggle between Lombardic and
Roman Law in the practice of the courts; and this struggle in legal life
was reflected in the work of the schools.
The chief of the schools of Lombard Law was at Pavia, the capital of
the Lombard kingdom ; and by the close of the tenth century the Pavese
school had risen into fame. There had been at Pavia a grammar school,
The Italian law schools 733
in which law was of course included in the curriculum from an early
time;
but, chiefly owing to the fact that the Palace Court, the supreme
tribunal,
was located at Pavia, legal studies were in general in the charge of the
judges and practitionei-s. Out of this system of apprenticeship
university
instruction in law slowly developed; and, although the precise date of
the
founding of the Pavese school is no better known than that of the other
early
Italian schools of law, we learn much of its history from an "Exposition
of Lombard Laws" written towards the close of the eleventh century, at
a time when the Pavese school of Lombard Law was declining and when
the Roman Law was already being cited as the lex generalis. From this
book it is clear that the Pavese jurists belonged to two distinct
schools
of thought. The antiqui or veteres devoted their time and thought to the
national Lombardic law and its interpretation ; and these jurists
flourished
down to the beginning of the eleventh century. The moderni, on the other
hand, were the jurists learned in the Roman Law and interested in it as
the source of rules and principles for the development and improvement
of the national Lombardic Law; and in the second half of the eleventh
century this modernist school of thought was in the ascendency. The
most prominent of the Pavese lawyers belonged to one or other of
these two groups. Thus, Valcausus and Bonifilius were among the antiqui,
while Gulielmus and Lanfranc belonged to the moderni Lanfranc,
the son of a judge, early rose to a place of eminence among the Pavese
jurists; and, later in life, not only did he found a school at the abbey
of
Bee, where students flocked to his lectures, but he became adviser to
William the Conqueror and Archbishop of Canterbury. The best of the
moderni were expert Roman lawyer, deriving their knowledge not from
mere practice-books, but from the Roman legal sources themselves. In its
later period, before its decline towards the end of the eleventh
century,
Pavia could be reckoned, therefore, among the schools of Roman as well
as of Lombard Law.
At Rome itself the teaching of Roman Law, which in the time of the
classical jurists had been a voluntary and private undertaking, appears
to have continued down at least to the end of the eleventh century.
Theodosius seems, however, to have given the Roman schools an official
organisation. Certainly before the fall of the Western Empire the
teachers
at Rome were in receipt of official salaries; and this arrangement was
continued by the Ostrogothic kings and by Justinian. By his decree
Omnem (533) Justinian assigned official schools to Rome and
Constantinople, and by his Pragmatic Sanction (554) he decreed that the
salaries
of law teachers should continue, so that the youth might not fail of
good
instruction. When the Empire's authority yielded to the Church's
authority at Rome, studies in Roman Law suffered a change.
Ecclesiastical
authorities maintained a thorough acquaintance with Justinian's law
books and an interest in Roman legal science, but by giving to Roman
legal studies a purely ecclesiastical tone they deprived the Roman Law
of
734 Rise of the Bolognese school
its former Roman spirit and independence of thought. By the end of the
eleventh century Rome itself was in a state of decadence, owing to its
sack by the Normans in 1084; and Odofred, the Bolognese jurist, tells
us that, in consequence, Roman legal studies were transferred from Rome
to Ravenna. The origin of the Ravennese school may well go back to
the period of the Exarchate, a time when Ravenna was the only seat of
Roman authority in Italy ; but certain it is that at the close of the
eleventh century it was a well-organised and flourishing centre of Roman
legal study. Odofred asserts that Ravenna's success as a school was due
to the taking of the manuscripts of Justinian's law-books from Rome,
and that at a later time Bologna's success was equally caused by carrying
them there from Ravenna ^
Various other causes contributed, however, to the rise of Bologna as
the most illustrious of all the Italian law schools of the Middle Ages —
the very centre of juristic learning and of its diffusion throughout the
civilised world. Bologna's central geographical position and its
judicial
and commercial importance, the political favour shown to the law school,
and the genius of its teachers, were among the leading factors in
establishing the fame of the school. But of special importance were the
qualities
which early distinguished its teaching. The school assimilated and
united
all of the legal elements derived from the past, and took a broad and
independent attitude towards the various divergent tendencies in
juridical
thought. It adopted and combined the features of legal science already
evolved in the schools of Constantinople, Pavia, and Ravenna ; and it
enjoyed the favouring influences of Pisa and the adjacent Tuscan
regions,
such as their Renaissance spirit. Byzantine juristic studies formed a
background. The method of glosses and of parallel passages already
applied
by Pavese jurists to the texts of Lombard Law was none other than the
method chosen by the early Bolognese glossators. Pisa was long in
possession of the most complete and most famous of all the manuscript
texts of Justinian's Digest, the manuscript now in the Laurentian
Library
at Florence ; and distinguished Tuscan jurists, such as Pepo and
Gratian,
the founder of the new school of Canon Law, taught at Bologna. Finally,
owing to the political conditions of the time, Bologna possessed the
exceptional advantage of being the one city in Italy where Roman legal
study could best establish itself afresh, with every prospect of great
success, under its traditional imperial patron.
The revival of Roman legal studies at Bologna resulted in a return
to the treatment of law as a science which had characterised the work of
the classical jurists eight centuries before. The popular Roman Law which
1 On the Pisan (later the Florentine) MS. of the Digest and the other MSS. of the
Justinianean law at the disposal of the Bolognese jurists, see Kruger, Geschichte der
Quellen und Litteratur des Romischem Rechts, § .52 ; Bruns — Pernice — Lenel, Geschichte
und Quellen des Romischen Rechts, §77 (Holtzendorff, Encyklopaedie der Rechtswissenchaft, 6th edn, by Kohler, Vol. i).
Manuscripts of Justinian s law-books 735
had been evolved in practice, in response to the social needs of the
intervening feudal epoch, was disregarded by the jm-ists, their sole aim
being
to know the texts of the Justinianean codification and to expound them
scientifically. Not only was law separated from dialectic and other
branches of study and given its own separate place in education, but it
was also deprived of its character as a mere handmaid to the
practitioners.
These methods and purposes of legal study spread outwards from Bologna.
In the coui-se of the thirteenth and fourteenth centuries old law
schools
were given fresh life and new schools were established. From Bologna
there were migrations of teachers to other places where schools were set
up ; and some of these, such as the schools at Padua, Siena, and Pisa,
became permanent and influential seats of legal learning. Rulere also
restored or founded schools on the Bologna pattern, this being the
origin
of the State schools, such as those at Naples and Rome. In many schools
Canon Law was added to Roman Law as one of the important branches of
study. As the universities gi*ew they sought the support of the Emperor
or the Pope ; and nearly all of them obtained the privileges and pro-
tection afforded by Papal bull or imperial charter.
The Bolognese jurists possessed manuscripts of all parts of Justinian's
codification — Digest, Institutes, Code, and Novels ; and the peculiar
state or form of the manuscripts largely controlled the course of their
study. Thus, there were several texts or readings of the Digest known
as literae. The text of manuscripts which were earlier than the Pisan
manuscript, or which differed from it, was known as litera vetus (litera
communis, litera antiqua); the Pisan manuscript was designated as the
litera Pisana ; while a composite text, formed by a collation of all the
other texts for school use at Bologna, was called the litera vulgata.
Likewise there was a peculiar three-fold division of the contents of the
Digest. That part of the Digest which extended from the beginning to
Book XXIV, title 2, was known as Digestum Vetus; the part onwards to
the end of Book XXXVIII was designated as the Infortiatum ; while
the remainder, from Book XXXIX to Book L, was called the Digestum
Novum. This very remarkable classification of the parts of the Digest,
which long persisted in European scholarship, has been explained, on
the basis of the traditional views of the glossators, as the result of
the
transfer of the Justinianean manuscripts from Ravenna to Bologna.
Irnerius, when he began to work on the manuscripts at Bologna, did not
have the full text of the Digest ; and, when he afterwards became
familiar
with the missing portion in the middle of the manuscripts, he named it
the Infortiatum (the " fortification " or " fortifying addition ").
Whatever may be the value of this traditional view, reported by Odofred,
one
of the Bolognese glossators, and now generally accepted by scholars, it
clearly points to the fact, as Calisse, in his Storia del diritto
Italiano,
has pointed out, that this triple division of the Digest's contents must
have been made at Ravenna before the time of Irnerius. It was but
736 Methods of the Glossators
natural that a long manuscript, such as that of the Digest, should have been physically divided into parts for the scholar's or student's convenience ; but, as remarked by Calisse, " why the division should have fallen at those particular books is the unexplainable feature ; unless we regard it as a reminiscence of Justinian's own instructions (persisting into the Middle Ages), for the study of his law-books."^
The Glossators treated the several parts of Justinian's codification as
an entirety and as forming, together with certain other legal sources, the
Corpus iuris civilis. They distributed the matters of the Corpus iuris
civilis into five volumes (volumina). The three parts of the Digesta,
formed in the manner already explained, they placed in the first three
volumes ; while in the fourth volume they put the first nine books of
the Codex. The fifth volume embraced all the rest of the subject-matter
of the Corpus Iuris Civilis ^ namely, the Institutiones, one hundred and
thirty -four of the Novellae in Latin (known as the Authenticum) and
the remaining three books of the Codex (tres libri). In addition to all
these Justinianean materials the Glossators also inserted in the fifth book
of the Corpus iuris civilis — immediately after the Authenticum — the text
of the Lombard feudal law (libri feudorum) and several laws of the
Emperors Frederick I, Frederick II, and Conrad. Inasmuch as
the fifth volume, with its miscellaneous contents, could not be
referred to by its general character, as in the case of the first four
volumes, it was known by the Glossators as Volumen simply, or, by reason
of the fact that it was much smaller than the other volumes, as Volumen
Parvum.
The method adopted by the jurists who established the fame of the Bologna law school was that of the gloss (Grk. yXcHxTaa, 'Glossa', equivalent to verbum^ lingua, vox), or textual interpretation. The jurists themselves thus came to be known as the Glossators ; and it was they who gave to the school its earlier tendency and character. Glosses were not a new thing ; within the field of law they had already been employed in the study of medieval Lombard and Roman Law. The new feature of the Bolognese school, the one which gives it its unique position, was the application of the glossa- torial method for the first time to the texts of the law-books of Justinian. The adoption of this method at Bologna came about quite naturally, inasmuch as the law school was itself an outgrowth of the grammar school ; and there was also the additional reason to be found in the persistent tradition of Justinian's order that his laws should not be altered in sense by a liberal as distinct from a literal interpretation. Literal interpretation, moreover, was particularly needful as a means of arriving at a correct text of the Justinianean codification. Although at first, therefore, the gloss was but a short explanation or interpretation of a difficult single word in terms of an equivalent, it soon became also,
* Constitutio Omnem, prefixed to the Digest. See Bucklaad, Roman Law from Augustus to Justinian, p. 49.
The Glossators and their works 737
in the hands of the jurists, an explanation of a passage or of an entire
lex or even of a legal principle embodied in the text. These two forms
of the gloss became known respectively as the "interlinear" ^ and the
"marginal." The explanation of a single word was placed above it,
between the lines (" interlinear "), while the explanation of a passage
was
placed beside it on the margin of the text ("marginal"); and to each
gloss the glossator affixed his initials or some other mark or
indication
of his identity. As the work of the school advanced, the gloss became
more and more elaborate and lost its original signification. It became,
in fact, the means of embodying the results of the master's legal
researches. "It included," ^ says Calisse', "critical notes on the
variant
readings (variantia) of different manuscripts. It brought together loci
paralleli, which helped to elucidate the point. When these passages were
in conflict (antinomia), it sought to reconcile them or to decide on
the preferable one. Thus, finally, we find the gloss developing into a
genuine commentary, with all its proper appurtenances — the summary
(summa), the putting of illustrative cases (casus), the deduction of a
genuine maxim (brocardus) and the discussion of concrete legal problems
(quaestiones)."
The creative work of the Glossators falls within the period from the
early part of the twelfth to the middle of the thirteenth century. Pepo,
the Pisan jurist who migrated to Bologna, was the one who first taught
by the new method, but the real establisher of the glossatorial school,
the lucerna iuris, was Irnerius. His glosses covered the whole range of
the Justinianean texts, and, inasmuch as he had practised at the bar and
had close touch with the actualities of legal life, his teaching combined
in a striking manner both theory and practice. The work of Irnerius was
followed by that of the famous "Four Doctors"" — Bulgarus, Martinus,
Jacobus, and Hugo — the activities of these four Glossators constituting
perhaps the most illustrious period in the whole history of the Bologna
school. Two pupils of Bulgarus — Johannes and Rogerus — were at the
same time the teachers of Azo and Hugolinus. Azo's greatest work was
his Summa of the Institutes and the Codex, a work which superseded,
within its field, all previous productions of the school. At the bar there
was a proverb that "who has not Azo, goes not to court (chi non ha Azzo,
non vada a palazzo)." In the study of Roman Law Azo's Summa was
regarded as essential as the very text of the Corpus iuris civilis itself;
and a knowledge of it was necessary to one who would enter the gild of
judges. To the school of Glossators belonged also other distinguished
jurists, among them being Placentinus, Vacarius, Burgundio, Carolus of
Tocco, and Roffredus of Benevento. Accursius, the last of the pro-
minent Glossators, is also the most famous of them all. He was born near
Florence in 1182. After a period of study at Bologna, he taught there
1 See General Survey of Events, Sources, Persons and Movements in Continental
Legal History (Continental Legal History Series, VoL i), p. 137.
C. MED. H. VOL. V. CH. XXI. 47
738 The Accursiana
for over forty years, retired in order to finish his gloss, and died
about
1260. The gloss of Accursius was marked off from those of all the other
Glossators as the Accursiana or Ordinaria. Accursius and his gloss soon
came to represent everything that the Bologna school meant in juris-
prudence. His work embodied the results of all his predecessors ; and,
in
a way, he supplanted all of them. The accumulated glossatorial learning
of a century and a half was confusing, in the wealth of its details and
in
the variety of juridical opinions, to the practitioners in the courts.
They
found it difficult or even impossible to make their way through the maze
which the Glossators had gradually erected. To the practitioners, there-
fore, the comprehensive and orderly collection of Accursius was the new,
the up-to-date luminary of the law which the work of Irnerius had
been at an earlier time. In the schools the Accursiana supplanted all
the
other glosses and even the Justinianean text itself. In the practice of
the
courts the saying, Quidqud non agnoscit glossa nec agnoscit curia, a
variant of the proverb, chi non ha Azzo non vada a palazzo, was
prevalent^ ; the gloss of Accursius, that is, was held by the courts to
be the
law. This very saying in the courts shews us, however, that the school
of the Glossators was already in rapid process of decay. For a time
Accursius was followed by other Glossators, such as Odofred ; but, on
the whole, it is fair to say that the great gloss of Accursius virtually
terminated the work of the school of Glossators. The Accursiana was
itself the main symptom of decadence in the school. The original intent
of the Glossators, in the days of Pepo and Irnerius, had been to focus
attention upon the texts of Justinian's codification as the primary and
pure sources of the law. To the early Glossators the revival of the
Justinianean law meant that the texts themselves should be the basis of
study and practice alike. The discarding of the text for the gloss, the
mechanical following of the Accursiana, indicated that the science of
the
pure Roman Law had yielded place to practice; for it was the gloss which
adapted and applied the sixth-century texts to the practical course of
thirteenth -century judicature. What society in the fourteenth century
needed, therefore, was a new juristic method in place of the stereotyped
mechanism of the Accursiana represented by the maxim, Quidquid non
agnoscit glossa nec agnoscit curia. The time was ripe for the emergence
of a method of jurisprudence which should base itself upon contemporary
Roman Law, and not upon the Roman Law of the classical jurists and of
Justinian in times gone by. The method which was developed to supply
this social need of medieval Italy and Europe was the method of the
Post-
Glossators — the "Commentators."
The method of the Commentators — the one which had its rise in the latter part of the thirteenth century at a time when Accursius was still in his ascendency — represented a reaction against the gloss. The path
^ On the history of this saying in Germany, see Deruburg, Pandekten, 6th edn.
§§3,4.
The Commentators and their methods 739
chosen by the jurists of the newer tendency was the well-worn path of
scholasticism as distinct from the route marked out for them by the
fourteenth-century literary writei-s of the Renaissance, such as Dante,
Petrarch, and Boccaccio. To the claims of this great intellectual
awakening the lawyers, bound as they were by tradition and narrowed
by the practice of courts, did not respond until, at a much later
period,
they turned from the narrow path of scholasticism into the broader ways
of the humanists. Calisse remarks that, when the system of the Commen-
tators "after a formative period was finally developed, it stood forth
as
the apotheosis of a painstaking logic. The jurist^s ideal now was to
divide and subdivide; to state premises and then to draw the inferences;
to test the conclusion by extreme cases sometimes insoluble and always
sophistical; to raise objections and then to make a parade of over-
throwing them — in short, to solve all problems by a fine-spun logic. He
who nearest reached this ideal was accorded the highest fame in his
science.*" Although already antiquated by the time of the Commentators,
the dialectic method as followed by them no doubt put new life into
juristic studies. But decay set in rapidly. Prolixity upon easy topics
and
silence upon difficult ones became the rule. Cujas justly passes this
sentence upon the Commentators as a school: Verbosi in re facili, in
difficili muti, in angusta diffusi. A copious mass of books, written in a
crude harsh style, poured forth: a mass which, it is said, would have
made multorum camelorum onus. Once more the original texts of the
Justinianean law were lost to view in the intricacies of the dialectic
exercises of the Commentators. The worship of authorities followed as a
necessary consequence; it is said that lecturers, practitioners, and
judges
did hardly more than cite authorities by name and treatise. Ultimately
came the doctrine of communis opinio, the doctrine that the juristic
view
which had the greater number of supporters in the books was the sound
view; and thus, after the lapse of nearly ten centuries, there was
practically a return to the famous Law of Citations of Theodosius II and
Valentinian III (426). Judged by the standards of the classical jurists
of
Rome, or by those of the Glossators in their period of brilliance, the
Commentators stand on a far lower plane in respect of originality and
fruitfulness of juristic thought. One of the main reasons is that they
stood aloof from the spirit and purpose of the Renaissance. It is,
however,
generally agreed by scholars that the school of the Commentators had
merits as well as faults. Although their modes of thought and their
methods were of the past, their gaze was upon the present. The
Glossators
sought only to know the Roman Law of Justinian's time ; the Commentators
endeavoured to know the Roman Law of their own day. The real
achievement of the Commentators consisted in their adaptation of the
older law of Justinian to the legal conditions of their time, their
harmonising of the Justinianean texts with the other legal sources
invoked
by the coui"ts, notably the city statutes, feudal and Germanic customs,
CH. XXI. 47 2 .740 Bartolus of Sassoferrato
the rules and principles of Canon Law. In the words of Calisse, "the
old science was made over into a new one; and Roman law was trans-
formed into an Italian law." The special talent of the Commentators
created a literature — a body of commentaries on Romano-Italian Law
— which acquired the force of binding law and played a role of great
importance in legal life. Their method — known as the mos Italkus or
Italian method — was itself destined to have a far-reaching influence;
for it was adopted in other European countries, chiefly in France and
Germany.
To the school of the Commentators belonged the poet Cino of
Pistoia (1270-1336), Albericus of Rosate (ob. 1354), Bartolus of
Sassoferrato (1314-1357), Baldus of the Ubaldi (1327-1400), Luke of
Penna
(lecturer in 1345), Bartholomew Salicetus (1330-1412), Raphael Fulgosius
(1367-1471), Paul of Castro (ob. 1441), Marian and Bartholomew
Socinus of Siena, Philip Decius, and Jason Mainus. Of all the
Commentators, Bartolus of Sassoferrato, who died at the age of forty-
three in his early prime, stands out as the greatest and most in-
fluential. He studied under Cino at Perugia and also under Raniero of
Forli ; at the age of twenty he became a lecturer at Bologna, later
moving to Pisa and finally to Perugia ; and, among his public
appointments, he held the post of councillor to the Emperor. His
writings,
which cover nearly the whole range of the law and are of a higher
quality than those of the other Commentators, include lectures at
Bologna, commentaries on all the titles of the Digest, legal opinions
(consilia) and many treatises or essays on various branches of public
and
private law. The chief title of Bartolus to fame rests upon his great
contribution to the work of his school in transforming the legal growths
of the past into the law of the fourteenth century. The lawyers of his
school came to be known simply as "Bartolists." The eminence of
Bartolus is also strikingly manifest in the professional maxim that no
one
is a jurist who is not a Bartolist (Nemo iurista nisi sit Bartolista).
In
many parts of Europe the opinions of the gi*eat Commentator were held
to be the law itself. The most distinguished of all the successors of
Bartolus was his own pupil, Baldus of the Ubaldi, who was a Canonist
as well as a Romanist ; he taught not only at Bologna, but also at Pisa,
Florence, Padua, and Pavia.
The school of the Commentators long held dominance in Italy. Even
the attacks of Dante, Petrarch, and Boccaccio, and the great movement
of humanism in the fifteenth century, did not turn the jurists to freer
and more enlightened methods of legal science. Boccaccio's remark, that
law had ceased to be a science at all, summarised the antipathy of the
new scholarship to the communis opinio ^ the casuistry, the mos Italicus, of
the Commentators. The attack of the fifteenth-century humanists re-
sulted in a protest against the Corpus iuris civilis itself. Tribonian was
reproached for mutilating the writings of the classical jurists; and even
Influence of Humanism on legal studies 741
the fragments of those writings embodied in the Digest were now,
declared
the humanists, buried beneath a mass of crude medieval commentaries.
These attacks, however, did not turn into new channels the main current
of professional thought and activity. Even into the sixteenth and
seventeenth centuries the lawvers proceeded on the lines marked out by
Bartolus.
The "practical jurists" continued the work of the Commentators by
adapting the mass of Roman legal materials to the needs of daily
practice
in the courts. For them practice, as distinct from legal science or the
theory and the history of the law, was the main thing. Despite the
defects of the school of practical jurists, their work was nevertheless
of
real value ; for it brought prominently to view the fact that the law
was
changing day by day, and that the Roman element in the law must be
shaped and adapted to social needs. Only in modem times has this view-
point of the Commentators and the practical jurists been fully
recognised
as a true contribution to the science of law.
Humanism was not without its effects upon Italian legal studies in
the fifteenth century; but, on the whole, the new movement was
represented, within the domain of law, by the work of classical scholars
and poets and not by that of professionally-trained lawyers. Lorenzo
Valla (ob. 1457), Pomponius Leto (1428-1498), and Angelo Politian
(1454-1496), were among the leaders of the new humanist school of legal
science; and to the enthusiastic study of the Roman legal texts — not
only the Justinianean codification but more especially the earlier materials,
such as the fragments of the classical jurists and the Theodosian Code —
these scholars turned their learning and their skill. Their aim was to
restore the Roman Law of the classical jurists as the basis of Justinian's
law-books and of later legal growth; they sought to establish legal
science on the broad foundations of history and philosophy. Legal
research, both in textual criticism and in methods of dealing with the
substantive law embodied in the texts, was thus given new and more
advanced tendencies. While preserving contempt for the Commentators,
these early Italian humanists in law always recognised the soundness of
the methods of the Glossators. Their full sympathy with the general
movement of humanism, however, enabled V alia, Leto, Politian, and their
successors to disregard the limitations which bound the Glossators; and
it is the general view of scholars that their work meant indeed a real
advance in Romanist legal studies. The work of these earlier humanists
was carried on by Andrew Alciat (1492-1552), whose legal writings and
career have given him a deserved place of fame among Italian jurists and
have caused him to stand out as the personification of the new school of
legal thought. His main work, however, was done abroad; for, in 1518,
he proceeded to Avignon and transplanted to France the methods of the
science he had learned in Italy.
Let us for a moment retrace our steps to consider the study and
teaching of Canon Law in the Italian Middle Age.
742 Study and teachmg of Canon Law
We have already seen that Gratian himself taught Canon Law in the
convent of St Felix at Bologna, and that in many of the schools influenced
by the great law school of Bologna the Canon Law, no less than the
Civil Law, formed a part of the curriculum. The schools or universities
made doctores decretorum as well as doctores legum. In the teaching of the
Canon Law the magistri gave oral lessons (lecturae) based directly on the
text; and it was the short remarks, originally written in the margin of
the text, in explanation of its words, which became the glosses of the
masters. The glosses, constantly increased by additions, took permanent
form. They were reproduced in later copies of the manuscripts and finally
included in the printed editions of the Corpus iuris ca?ion}ci, notably in
the official Roman edition of 1582 prepared by the correctores romani in
the Pontificate of Gregory XIII. The Italian school of Glossators was
not, therefore, confined to the civilians, embracing as it did the magistri
who glossed the canonical texts; and this is a feature of the revival of
juristic studies, at Bologna and other Italian schools, of far more than
ordinary interest.
Among the chief glossators of the Decretum were Paucapalea,
Gratian's first disciple, Rufinus (1160-1170), John of Faenza (c. 1170),
Joannes Teutonicus (c. 1210). The gloss of Teutonicus, as revised and
completed by Bartholomeus Brixiensis (of Brescia), became the glossa
ordinaria decreti. Vincent the Spaniard and Bernard of Botone (Bernardus
Parmensis, who died in 1263) wrote glosses on the Decretals,
that of the latter being the glossa ordinaria. The well-known Joannes
Andreae (c. 1340) was the author of the glossa ordinaria on the Liber
Sextus. That on the Clementinae, begun by Andreae, was finished by
Cardinal Zabarella (ob. 1417),
Apart from the glosses, the writings of the canonists, like those of the
civilians, fall into several groups. Thus, the canonistic literature consists
chiefly of Apparatus, Summae, Quaestiones, and Consilia. But while,
owing to differences in method, different schools of the civilians may be
distinguished, the canonists are not in general divided into schools, except
upon questions as to the relations of the Papacy to the national Churches
and the secular powers. The systematic Canon law of the Middle Age is
embodied very largely in the Summae. Some of the early disciples of
Gratian wrote Summae, including Paucapalea (1150), Roland Bandinelli
(later Alexander III, c. 1150), Rufinus (c, 1165), Ltienne of Tournai
(Stephanus Tornacensis, c. 1168), John of Faenza (c, 1170), Sicard, Bishop
of Cremona (c. 1180), and, perhaps more important than all, Huguccio
or Hugucius (c. 1180), Writers of Summae of the Decretals include
Bernard of Pavia (c. 1195), Sinibaldo Fieschi (Innocent IV, c. 1240),
Wilhelmus Durantis (Durandus), .Ioannes Andreae, and Nicholas de
Tudeschis. The Summa Aurea or Summa Hostiensis, written by Henry
of Susa (ob. 1271), who was Cardinal-bishop of Ostin, is a work of
the highest value. The numerous treatises dealing with canonical pro-
Roman and Canon Law in Spain 743
cedure, which form a special branch of canonistic literature, are called
Ordines Iudiciarii and are to be compared with the similar treatises of the
legistae or civilians. The Ordo Iudiciarius of Tancred (1214-1216)
largely displaced the works of earlier canonists on this subjects The
fifteenth century, although it is identified with the Spaniard John of
Torquemada and the Italian Panormitanus, is not as rich in canonistic
literature as the earlier ones. In the period after the Council of Trent
many distinguished canonists wrote commentaries on the Corpus Iuris
canonici.
VII. It is time to glance at the history of the spread of Roman and Canon Law in medieval Spain.
The mixture of racial elements in the peninsula from the very
beginning of its history gives to Spanish legal history a complexity
which
distinguishes it from the histoiy of most of the other bodies of
European
Law. Even today Spanish Law reflects the historical movements and
changes which finally produced the Spanish nation and gave it political
unity and imperial dominion. Of all the factors which have created the
Spanish legal system in a long process of evolution Roman influence has
been predominant; back to the law of Rome, Spain, of all the nations of
Western Europe, traces her law in most direct descent. Numerous legal
sources survive to prove that Roman legal influence was profound and
that it left an indelible imprint on the law of succeeding ages. In many
ways the history of peninsular law under the domination of the Romans
constitutes one of the most enlightening chapters in the history of the
spread of Roman Law to the provinces before the disappearance of the
Western Empire. Profound as was the Romanisation of law in Spain, it
was nevertheless not absolute. In Spain, as in other provinces of the
Empire, the Roman Law came into contact with native (here Ibero-Celtic)
customs and possibly also with Phoenician and Greek Law introduced by
the early colonists from the East. Native law persisted, at least
in some regions, after the coming of the Romans; though there is no
evidence that it still persisted in the latest period of the Western
Empire.
Apart from the place filled by pre-Roman Law in the Roman period, there
was also the opportunity for the growth of indigenous legal
institutions;
and it is clear from the evidence that down to the last the mos
provincialls
was recognised. Hybrid legal institutions were created by the contact
of native and Roman legal types, and indigenous variants were either
juxtaposed or fused with the legal forms of the Roman province. Some
of these indigenous legal growths survived the Roman period; thus, the
betrothal custom of Cordova as to kisses — the penalty of lessened
^ Pollock and Maitland, History of English Law, 2nd edn. Vol. i, p. 20 : Bracton
''levied contributious from the canonist Tancred."
CH. XXI. 744 Roman and Visigothic times
inheritance for kissing the bride, before marriage, except in the
presence
of eight relatives or neighbours — was adopted as general law by a
constitution of Constantine in 336, included in the Lex Rumana
Visigothorum, and embodied in Castilian codes of medieval and modern
times.
Indeed, at many points native peninsular law influenced the Roman Law;
and this influence was one of the main factors in the growth of Roman
provincial law in Spain. Roman Law, both public and private, was in fact
introduced into the peninsula and there moulded, under the political and
social influences of the time, into that Roman provincial law, partly
customary and partly regional written law, which was revealed in some
measure, a century after the fall of Rome, in the Lex Romana
Visigothorum
of the Germanic conquerors. The stages in the evolution of this
provincial Roman Law in Spain follow in general the main lines of the
development of provincial law throughout the Empire: two of these
stages are marked by the growth of the jus gentium and the grant
of citizenship to the inhabitants of the provinces. In divers ways,
indeed,
the introduction of Roman Law materially affected the growth of law in
Spain. It meant, in the first place, that the legal institutions and
doctrines of the Romans in respect to persons, things, and obligations
were to serve as one of the fundamental bases of future legal
development;
and, in general, it led to the substitution of individualism for the
communistic ideas which had formerly permeated the law of the
peninsula. But the Germanic invasions and the fall of the Western
Empire interrupted this evolution. The stream of Roman Law still
continued to flow under Visigothic rule: it now flowed, however, partly
in
the old and partly in new channels.
In this period of the Germanic invasions and Visigothic dominion
(400-700) the outstanding feature of Spanish legal history is the
introduction of the Germanic Law of the Visigoths into regions long
governed, in the main, by the peninsular system of Roman Law. The
meeting of these two different bodies of law produced results of the
highest importance and gave to the Spanish Law of later times some of
its
characteristic features. There was an influence of the Roman Law on the
Visigothic and of the Visigothic Law on the Roman. One of the ultimate
effects of these influences and counter-influences was the growth of
hybrid
legal institutions — a feature of legal evolution which was
characteristic of
the Romano-Germanic civilisation of Europe in general. A striking
example of these hybrid growths is furnished by the Formulas Vislgoticas
(615-620), the formularies or models of public documents.
Until the time of Chindaswinth (642-653) the Spanish population —
composed of the Hispano-Romans and the Visigoths — lived under a legal
system based on the principle of the personality of law. The first king
who gave law to the Visigoths was Euric (467-485), whose code, although
largely a written statement of Germanic custom, displayed nevertheless
some traces of Roman influence. Euric's code was applied to the
Visigoths ;
The Fuero Juzgo 746
and such of its parts as embodied public in contrast with private law were
also applied to the whole population generally. In respect of their own
inter-relations the Hispano-Romans continued to live under Roman
private law, modified somewhat bv Germanic custom. Alaric's Breviary
— the Lex Romana Visigothorum (506), based on the Gregorian, Hermo-
genian, and Theodosian Codes, as well as upon other imperial sources
— solemnly confirmed to the Roman population their own code of
personal law. Private relations between the Hispano-Romans and the
Visigoths were governed, however, by the code of Euric.
With Chindaswinth (642-653) an important change took place. The
Lex Romana Visigothorum was abrogated. A common code — the Fuero
Juzgo {Forum Judicum) — was promulgated for both peoples, a code
which harmonised and fused the Germanic and Roman legal rules and
ideas. Some of these rules and ideas of the Fuero Juzgo shew a
preponderance of Visigothic Law, as in the case of the law of marriage
and of persons. Others are especially marked by Roman influence, as in
matters of inheritance, prescription, and contract. On the whole,
Chindaswinth's code represents the firm establishment of Germanic legal
institutions within a region which had been highly Romanised in the
pre-Visigothic period. The tide of Romanist influence was to flow more
freely and with greater force in later times.
In the period of the Christian and Moorish kingdoms (700-1300)
vast transforming processes were at work in the law of the several regions
of Spain; but many of the details and even some of the main tendencies
of this development are as yet but imperfectly understood. The history
of the Ftiero Juzgo in this period has not yet been written. But we
know in a general wav that this code, compounded of Germanic and
Roman elements, remained as one of the principal bases of practice in the
several kingdoms. Apart from the prevalence of the Romanic features of
this code, a code which in some regions at least was a sort of common law,
Roman influence — although it may be detected in the municipal fueros^
the chartei-s, the acts of councils and cortes, and the judgments of
courts — appears to have been, on the whole, slight. The Church exerted
an influence upon the growth of the law; but, in its general character,
this was more a moral than a legal influence. Not until the period of
the Christian reconquest were ecclesiastical legal tendencies marked. Cer-
tain features of Spanish Law, such as partnership, are said to be derived
from Muslim legal culture. French Law was indubitably influential, not
only in the Pyrenean regions but also in other parts of the peninsula.
One of the outstanding features of the legal history' of Spain in this
period, and especially from the early part of the eleventh century-
onwards, is the firm establishment of four distinct and different legal
regions — the Castilian, the Aragonese, the Catalan (including in its
influence Valentia and the Balearic Isles), and the Navarro-Basque, the
latter of which was in large measure a mingling of Castilian and Aragonese
746 Spread of Justinianean and Canon Law
origins. This fourfold differentiation, based on many social, economic,
and legal causes, it is well for us to remember; for, when we come to
the next period of Spanish legal history (1252-1511), we shall see that
the Justinianean and Canon Laws were worked into the legal systems
of these four regions in varying degrees of intensity and effect. The way
for this renaissance of Romanism in the later Middle Age was partly
prepared during our present period (700-1300) by the study of Roman
and Canon Law in the several kingdoms, and by the establishment,
notably in Aragon, of right reason and equity as supplementary sources
of the law. But, although Romanism during the period from the middle
of the thirteenth century to the end of the Middle Age came into Spain
as a unifying force, it had in fact differing effects in the four several legal
regions — effects which corresponded to the reaction opposed to Romanism
on the part of each one of the indigenous legal systems.
We must remember, indeed, that the dominant characteristic of legal growth in this period of the Christian reconquest and the political unification of the peninsula (1252-1511) is the spread of the Justinianean and the Canon Laws in the several kingdoms. The whole period was rich in legal sources, more particularly in legislative acts ; and one of the chief tasks of the legal historian is to describe the process by which this mass of legal materials was influenced by the legislation of Justinian and the Canon Law. In periods prior to the one now under review, Roman and Canonical institutions and principles of law had exerted a notable influence on the law of Spain. So far as Roman Law is concerned, indeed, this influence was in large measure an influence of the pre-Justinianean law. Even before the thirteenth century, however, the law of Justinian had not been without its influence in Spain ; and it is possible that it was introduced into the Spanish territories ruled by the Byzantines. But from the end of the eleventh century onwards the western European re-birth of the codification of Justinian, due in large measure to the work of Italian and French jurists, produced clear and unmistakable effects in the peninsula. In the twelfth and thirteenth centuries Roman Law was studied by Spanish jurists. The texts of Justinian were diffused throughout the kingdoms. Works inspired by the legal system of Justinian were written in Spain by Spanish lawyers. Indeed, the thirteenth century may be taken as the time when the Roman Law, in the form given to it by the great legislator at Constantinople, acquired real importance in the Spanish kingdoms ; and from that time onwards the influence of the Justinianean law upon Spanish law steadily increased. Coincident with this Romanising process there was also a steady diffusion of the Canon law. Not only was the Canon Law enforced in the ecclesiastical courts of the peninsula, it was also employed as an instrument for the modification of the secular law.
The details of this development in the several kingdoms — during the period from 1252 to 1511 — are of absorbing interest. The temptation
The Fuero Real. Las Partidas 747
to sketch the main features of the Romanising process, as it penetrated
into all parts of the peninsula, must, however, be resisted. We may but
glance for a moment at Castile and Leon in the thirteenth century.
The Fuero Real^ issued by Alfonso X in 1254, is the only legal work
of a truly legislative character that was inspired by the Justinianean law
during the thirteenth century in Castile, The elements which compose
the Fuero Real are, however, predominantly indigenous. The code has
as its basis the earlier fueros^ including the Fuero Juzgo, but with
additions ; and it preserves, with some changes, the general character
of the Visigothic, Castilian, and Leonese law evolved during the first
centuries of the period of reconquest. While the Roman element in the
Fuero Real is thus in part due to Roman influence upon the eai-lier
sources taken up into it, it is also, in part, the result of direct borrowings
by the compilers from the Roman and Canonical legal systems. Among
the novelties introduced in this way into Castilian law from the Roman
Law a considerable part of the theory of contracts, the accession of insula
rmta, certain of the iniles of intestate succession and testamentary
executors, may be mentioned. Likewise in the matter of adoption, the
compilers of the Fuero Real adjusted the indigenous law to the system
of Justinian.
In the history of Roman and Canon Law in Castile and Leon the
reign of Alfonso X is also notable by reason of the compilation of the
Libro de las Leges, a great legal encyclopedia, which, owing to its
division into seven parts, came to be known in the fourteenth century
as the Leges de Partidas or Las Partidas, names which are still used to
designate it. The jurists who compiled the Partidas under the super-
vision of the king, between the years 1256 and 1265, drew upon three
classes of sources : the customs and fueros of Castile and Leon, including
the Fuero Juzgo, the Fuero Real, and the Jiteros of Cuenca and Cordova;
the accepted Canon Law (the Decretals) ; and the writings of the Roman
jurists included in the Digest, together with the works of Italian jurists
dealing with the law of Justinian. The main materials drawn upon by
the compilers were the sources of the Roman and Canon Laws. Indeed, Las
Partidas may best be described as a systematic compendium of these two
legal systems, modified in some particulars by Alfonso's jurists in order
to adapt them to Spanish conditions. In the legal history of Castile the
Partidas is of supreme importance ; for it not only adds new elements to
the law, but also modifies materiallv the earlier Visicjothic and indigenous
foundations of the Castilian system. In fact, it seems to have been the
king's pui'pose to express in his compilation the new influences of Roman
and Canon Law, to impose the code as a conunon law upon all his subjects,
and thus to annul the municipal fueros, the Fuero Juzgo, and even the
Fuero Real itself. Although this latter purpose was not effected, ihe fueros
retaining their force, the Partidas — embodying many fundamental featuifes
of the Roman and Canon systems — steadily gained ground. Among
748 Spanish legal science
lawyers and students Alfonso's work was used as a reference and text-
book ; and ultimately it was confirmed both in the practice of the courts
and by act of the Cortes. The compilation of Las Partidas thus marks
an important stage in the gradual adoption of Roman and ecclesiastical
legal rules and principles, a process which by the close of the Middle Age
had given a dominant stamp to the legal system of Castile.
The permeation of the legal systems of Spain by Roman and Canon
Law in the later Middle Age furthered the growth of Spanish legal science.
The Spanish jurists of the period include civilians and canonists of great
ability. They were teachers in Spanish, Italian, and French schools of
law ; they were writers of legal treatises ; they were editors of legal texts.
Among them may be mentioned Juan Garcia el Hispano, who lectured
on Civil and Canon Law at Bologna and wrote learned works ; Cardinal
Torquemada, who lectured at Paris and wrote commentaries on Gratian's
Decretum ; Raymond de Penafort, professor at Bologna and compiler,
by order of Pope Gregory IX, of the Decretals in the Liber Extra ; and
Antonio de Nebrija (1444-1522), who revised the glosses of Accursius
and wrote Observaciones sobre las Pandectas and a Lexicon Juris Civilis.
By the close of the Middle Age Spanish Law, in its several regional
growths, had assumed its main permanent features.
VIII.
The main characteristic of legal growth in France before the twelfth
century, as it was also the central feature of the history of law in
other
parts of Europe during the same period, was the meeting and the
mingling of Germanic law and the Roman and Canon Laws. Under the
system of the personality of law the leges Romanae and the leges
Barbarorum were both in force within their respective spheres. While
under
this system the Church as an institution lived by the Roman Law, the
evolution of the Canon Law meant that in France, as elsewhere, the
Church courts, within their own province, enforced this newer or
secondary
body of Roman legal doctrine. The process of feudalisation furthered
the growth of the notion that law was territorial ; and the Capitularies
of the Frankish rulers introduced a body of imperial law, applicable to
all subjects, which embodied Roman and Canonical principles and had
territorial validity as law in contrast with the various systems of
personal law.
In time, as Esmein has pointed outS the personal laws and the Capitularies fell into desuetude. In their place many territorial customs gradually developed. The Roman Law, in certain regions at least, ceased to be invoked as written law, its rules being regarded as a part of unwritten custom. This process — developing during the chaotic period of the tenth and eleventh centuries and coming to a definite result in
1 Histoire du Droit Francais, 7th edn, pp. 706-707.
Roman and Canon Law in France 749
the course of the twelfth century — determined in many ways the whole
future history of law in France. In the second part of the eleventh
century, however, the Roman written law emerged once more as with
a re-birth; and during the next two centuries it plaved a highly
important
role. It either had validity alongside custom or it shaped and modified
custom itself. Down to the very end of the ancien regime the Roman
Law remained in force as binding law, but in a measure which varied
with subject-matter and locality. In the course of the twelfth century
a new and vigorous source of law appeared in the form of royal
legislative power. From the fourteenth century onwards the ordonnances
of
the kings evolved a body of public and private law of very great
importance ; and during the course of the sixteenth century they
transformed most of the important coutumes into true lois.
Meanwhile, during the centuries when this long process of development
was taking its course, the Canon Law, profoundly influenced by the
renaissance of Roman Law, had slowly taken its place as a world-wide
system of j urisprudence. In France the canonical system not only
exerted
on many parts of the secular law a remarkable influence, but, down to
the close of the ancien regime, it also retained, up to a certain point,
the
character of a body of laws binding the State as well as the Church.
The period from 1100 to 1500 is of special interest. The gradual
adoption of the principle that law was territorial and not personal, an
evolution due in large measure, as we have seen, to the establishment of
feudalism, led to the division of France into two parts, the regions of
written law (pays de droit ecrit) and the regions of customary law (pays
de coutumes). The pays de droit ecrit is the southern part of France, about
one-third of the entire country; while north of an irregular line of
boundary, running from the He d'Oleron to the Lake of Geneva, lies the
pays de coutumes. The place of Roman Law in each one of these two
distinct parts of France forms one of the most instructive chapters in the
history of French medieval law.
In the south the Roman population greatly exceeded in numbers the
Germanic population. Under the system of the personality of laws the
Roman Law had been applied to the Romans, and when the principle of
the territoriality of laws was established the Roman Law, being the law
of the majority, was applied to all persons, Roman and Germanic, as the
customary and common law of the southern regions. The point that
Roman Law was applied as the Custom of the South is worthv of special
note. The authority of the Roman Law in the pays de droit ecrit was
not derived from any official promulgation in the Roman or Germanic
periods of French history; it was derived from its character as local
custom, and as such it was recognised as binding by the rulers of the
southern regions. The fact that the Roman Law was applied as custom
helps us to undei-stand why it varied, in respect of its scope and force,
from province to province and from century to century, and why, from
750 Pays de droit ecrit. Pays de coutumes
time to time, one set of Roman legal sources supplanted another as the
guide to the nature of legal rules and principles. For the very reason
that the Roman law in those regions was treated as custom, the earlier
sources of that law were easily abandoned for the later ones as repositories
of custom ; and we find indeed that the gradual spread of the Justinianean
compilations displaced not only the Theodosian Code but also the
Breviary of Alaric and the Lex Romana Burgundionum. For the same
reason we find that the customary Roman Law was modified by local
statutes.
In the north — the pays de coutumes — the place of the Roman legal
system was different. In these regions the customary law was composed
of diverse elements: mixed remnants of Germanic and Roman Law, Canon
Law, the Capitularies which had not fallen into desuetude, and local
usages. From an early time the Roman liaw — the common law of all
Christian peoples — possessed, even in the pays de coiitumes, a very great
authority as the embodiment of juristic theory. From the universities
came the lawyers; and in the universities the Roman and Canon laws
were the only subjects of legal study. At an early period the texts of
the Digest and the writings of the Bolognese jurists were translated into
French. In the interpretation and application of the coutumes, courts
and legal writers alike employed the Roman Law as a kind of universal
legal logic and as the fountain of supplementary rules, helpful analogies,
and principles of interpretation. During the sixteenth century Roman
Law played so important a role in legal education, in the practice of the
courts, and in the literature of the law, that jurists raised the question
whether the Roman Law was not, after all, the common law of the pays
de coutumes. The question thus raised has been the subject of learned
dispute from that day to this ; and French lawyers have never really
reached full accord. The better view seems to be, however, that in the
regions of the coutumes the Roman Law did not become, as it did in the
regions of the droit ecrit, the common law. In the north, as distinct
from the south, Roman Law possessed a theoretical or juristic authority.
This authority, although it was not absolutely binding, had persuasive
power, influencing judges, practitioners, and legislators. The authority
exerted was the authority of legal reason ; and as legal reason the Roman
Law spread throughout the regions of the coutumes and influenced them,
ultimately colouring them when they were reduced to writing.
In the manner and with the effect thus briefly indicated the Roman
Law established itself in both parts of medieval France — the pays de
droit ecrit and the pays de coutumes. Transmitted in this form to later
ages, the Roman Law was ultimately embodied, as one of its fundamental
elements, in the codified Civil Law of modern France.
The influence of the Roman and Canon Laws on the development of
medieval law in France is to be observed in the legal literature of the
time. Thus, in his compilation of the customs and usages of Vermandois,
Legal literature and legal education 751
Pierre de Fontaines, one of the councillors of St Louis, translates
passages
from Justinian's Digest and Code. The private work known as the
Anciens Usages d'Artois (1283-1302) has citations from Roman and
Canonical legal sources; while the Livre de Jostice et de Plet, a work
concerned with the usages of Orleans and probably written shortly after
1259,
is for the most part a translation of Roman texts. Philip de Remy, lord
of Beaumanoir (1246 or 1247-1296), employs as the sources of his
Coutumes de Beauvaisis not only the settled usages and the judgments of
courts, but also the Roman Law, "the law which is common to the whole
of France." Jehan Boutillier, who died about 1395, gives us in his Somme
Rural — which is a sort of encyclopedia of the whole of the French Law
at
the close of the fourteenth century — the picture of a confused mingling
of Roman and Canon Law with the customary law. At an early time the
writings of Bolognese jurists, including the Summa of Azo, were
translated
into French.
In the Middle Ages the Civil and Canon Laws were both taught in the
French universities ; but not until modern times was French Law added
to the curriculum. A break in the continuity of teaching Roman Law
occurred, however, in the thirteenth century. Honorius III in 1219, by
the Papal decretal Super specula, expressly forbade the teaching of
Roman Law at Paris ; and a century later, in 1312, Philip the Fair
confirmed the decretal in a royal ordinance. Down to 1679, when it was
brought back once more into the official curriculum, Roman Law could be
taught at Paris only privatim; Cujas, the great Romanist of the
sixteenth
century, was obliged to secure the express authority of the Parlement in
order that he might teach it. It is not difficult to see that the Church
had an interest in strengthening the position of Canon Law, at the
expense
of Civil Law, in the very centre of European theological studies.
Inasmuch
as the Ile de France, with Paris as its capital, was a region of custom
as
distinct from written law, there was of course less practical need for
the
teaching of Roman Law at Paris than at other French universities.
Nevertheless, the prohibition of the King of France seems at first sight
surprising. The explanation may well lie, as Brissaud suggests, in a
fear
of the political influence of the civilians of Bologna, who were at that
time teaching the doctrine that the King of France was a subject of the
Holy Roman Emperor.
Instruction in Roman law at medieval French universities other
than Paris was encouraged by the Church. In the period of the
personality of laws the Church had lived by the Roman Law (ecclesia
vivit lege
Romana); and the Roman Law had contributed much to the formation
of the Church's system of Canon Law. These features of the legal history
of the Church seem to have played a part in leading the ecclesiastics to
take a favourable view of the teaching of Roman Law at all the French
universities except theological Paris. Furthermore, many jurists of the
Middle Age were canonists as well as civilians; and a considerable
number
752 Influence of Italian jurists
of them seem to have supported the Papacy's ultramontane doctrines.
This factor in the situation may also have influenced Church policy as to
Roman Law teaching.
The medieval civilians and canonists of France were greatly influenced,
as were civilians and canonists in all European countries, by the methods
of the Italian jurists — the Glossators and the Commentators.
A little
later, humanistic learning spread from Italy to France: it was Alciat, the
Milanese, who carried to France the new jurisprudential methods of the
humanists in the early part of the sixteenth century. In France — at
famous Bourges and also at other universities — a flourishing school of
humanistic legal thought soon came into being, which included such great
Romanists as Cujas, Baudouin, Doneau, Douaren, and Hotman. Pothier,
in the middle of the eighteenth century, summed up the work of the
school in his Pandectae Justinianeae in novum ordinem redactae (1748). It
was the work of this school which prepared the way for the great Code
Civil and the many codes of civil law in other countries that have
drawn their inspiration and much of their form and substance from
Napoleon's.
IX.
In the early periods of the history of law in the regions now mostly
within the German Republic — the Germanic epoch and the age of Frankish
ascendency — the basis of the law was a great variety of
Germanic customs. In the course of time the customs had been some-
what modified by the Roman and Canon Laws as they slowly penetrated,
by direct or indirect channels, into the regions held by the various
Germanic peoples; and in the days of the Frankish Empire these foreign
influences were more marked than in the earlier centuries. But, looking
at Germany as a whole at the close of the tenth century, we can see
that,
save for the natural modifications due to the progress of the several
peoples in the scale of civilisation, their laws still retained, in most
fundamental features, their original Germanic character.
From the eleventh to the fifteenth centuries the main characteristics
of legal growth in Germany were particularism and diversity. The
written laws of the earlier period — the laws of the Saxons, Franks, and
other Germanic peoples, and the Capitularies of Charlemagne and his
successors — had gradually fallen into a state of disuse in German territories;
for in Germany, in contrast with Italy, Germanic legal sources had not
been made constantly the subject of legal instruction, nor had they formed
the basis of a legal literature. Political and social changes vitally affected
legal development. The principle of the personality of law was displaced,
largely as the result of the rise of feudalism, by the notion that law was
territorial and that it applied to every inhabitant. The old tribal laws
were transformed, therefore, into the unwritten customary laws of localities.
Legal growth in Germany. The Sachsenspiegel 753
It is true that there were royal courts and even royal-enacted laws ;
but
there was no coherent central judicial organisation of sufficient
strength
to combat particularistic tendencies. German tenitories were covered by
a network of special courts, such as the courts of feudal lords and of
towns, and in these courts German Law was enforced. In Germany
as a whole there was no legal unity, no common law. Legal particularism
and diversity split the law into many laws enforced by many
courts.
When we remember these legal conditions, we need not be surprised
to find that German jurists endeavoured to produce orderly and consistent
treatises of German Law out of the complex and diveree materials which
they collected. Nor need it be a source of surprise to discover that these
juristic efforts failed to achieve their main purpose of German legal unity
ere the rising tide of foreign legal inHuence submerged large portions of
the native law by the introduction or reception of Roman, Canon, and
Lombard feudal Law. One of these native juristic attempts to produce
order out of the chaos of German legal conditions deserves special notice.
At a time when the Italian Glossators were reaching the end of their
laboui-s and Gregory IX's collection of decretals (1234) was added to the
corpus of Canon Law, Eike von Repkow, a German knight who had long
served as a lay -judge, seems to have realised the danger to the native law
of his race from the foreign and rival systems.
In the Sachsenspiegel
composed between 1198 and 1235, and probably in the third decade of
the thirteenth centurv, Eike brought together the principles of Saxon
customary law and gave them coherence and systematic order; and upon
Eike's famous work some of the most important of the later treatises on
German Law were based. A comparison of the Sachsenspiegel with the
contemporary treatise of Bracton on the law of England shews us that
Eike's work is distinguished from Bracton's by its originality and its
freedom from the influence of the Glossators. Eike's book of Saxon native
jurisprudence and the works of other German lawyers helped for a time
indeed to stem in some fashion the rising influence of Roman Law in
northern Germany. But the conflict between German Law and the foreign
laws was an unequal one from the beginning. The Sachsenspiegel marks,
in fact, the end of the creative period in the evolution of German national
law. Most of the main factors which determine legal growth in a period
of conflict between competing laws — the fact, for example, that the
Roman law-books contained a systematic corpus of general principles
suitable to an advancing civilisation — were on the side of the foreign
laws. Their reception in Germany turned — and turned permanently —
the whole current of legal evolution into new channels. Even to-day the
law of Germany is still flowing in the channels cut deep down into the
^ It is possible, however, that the Sachsenspiegel owes something to the writings
of Italian canonists. See K. Zeumer's essays cited in the bibliography appended to
this chapter.
C. MED. H. VOL V. CH. xxi. 48
754 Reception of Roman and Canon Law
soil of German life and civilisation by this vast process of adopting the
extraneous laws. The BuTgerliches Gesetzbuch of 1900 is a code of German
private law — but at the same time it is a code of German private law in
which Romanistic legal traditions form a constituent element as pervasive
and important as the Germanic.
The "Reception" of foreign laws in Germany means the adoption of
three systems — Roman Law, Canon Law, and the Lombard feudal law. Of
the reception of the Lombard feudal law nothing need here be said ; and
of the Reception of Roman and Canon Law only the barest sketch can be
given. First of all, let two things be specially noted. The reception of
these two bodies of foreign law formed a long historical process extending
through several centuries ; it was not accomplished by a single sovereign
fiat. Furthermore, although the reception of the two Romanic systems
constituted, in a sense, but one single process, yet this process embraced
two movements which differed one from the other in respect of their
causes and their course. Scholars still dispute in regard to the matter of
chronological priority as between these two movements. Brunner regards
the Reception of Roman Law as first in point of time and of influence, and
treats the Reception of Canon Law as its consequence, while Stintzing holds
that the Canon Law came first into Germany, and, preparing the way,
drew the Roman Law after it. When Brunner and Stintzing have spoken
and have disagreed, other doctores iuris utr'msgue may be tempted to
exercise the scholar's prerogative of silence.
In the history of the Reception of Roman Law two stages are to be
distinguished — the stage of the theoretical and the stage of the practical
Reception. The one consists of the gradual rooting of the conviction in
the minds of German rulers, statesmen, and jurists that Roman Law may
rightfully claim to be the law of Germany; the other consists of the
actual embodiment of Roman Law in German judge-made law.
The theoretical Reception has its beginnings in the notion that the Roman Empire of the German nation was a continuation of the Roman Empire of ancient times, and that, in consequence, the Roman Law of the ancient Empire possessed subsidiary force in the medieval Empire, This notion gained ground in proportion as the native German Law became more and more enmeshed in the complex web of particularism. The spread of the knowledge of Roman Law by the many German students who obtained their legal education in the Italian law schools also furthered the growth of the idea. German legal literature — for example, the Schwabenapiegel, probably written about 1275, the glosses on the Sachsmspiegel, and the works of Nikolaus Wurms and .Johannes von Briinn — shewed an influence of the Roman Law, German kings interpolated certain of their own laws into the Corpus iuris civills.
The practical Reception of Roman Law has its beginnings with the
appointment of judges who were trained in the foreign law. In the first
instance jurists learned in the Roman Law were appointed by the king
Switzerland and the Netherlands
to advise him as to the law in cases which he personally decided ; later
they were appointed to his Kammergericht. After the establishment of the
Reichskammergei'icht in 1495 Roman Law gained entry into this highest
imperial court of justice itself. One half its members were required to be
men learned in the law, and all its members were obliged to swear that
they would judge cases in accordance with the "common laws of the
Empire," Roman Law being included within this formula. Courts of lower
instance — the territorial and city courts — followed the example of the
imperial tribunals; but the village courts long kept themselves free from
Roman influence, preserving the native law of the people. The struggle
between the native and the Roman laws thus centred in the tribunals of
justice. Step by step, however, Roman Law was adopted by the courts in
their decisions; and it was thus incorporated in the German Law as one
of its most vital elements. By the first half of the sixteenth century the
Roman Law was decisive in the practice of the courts.
By the beginning of the twelfth century ecclesiastical jurisdiction had
acquired an importance in Germany at least equal to that of the civil
tribunals, and in the ecclesiastical courts the Canon Law was of course
enforced. From the twelfth century onwards many German clerics
proceeded to Bologna, Padua, Paris, and other foreign univei*sities to
study the Roman and Canon Laws; and this was one of several main
factors making for the spread or reception of the Canon Law in the
homeland of the students. Not only was the Canon Law administered in
the courts of the Church; it also permeated the secular law. In many
ways Roman Law and Canon Law went hand in hand in the work of
modifying and shaping the laws of the German medieval communities.
In Switzerland during the pre-Confederation period (up to 1300)
the various Germanic racial branches who dwelt there lived under their
own folk-laws, which included the Leges Alemannorum and the Lex
Burgundionum. Small communities grew rapidly from the eleventh
century onwards, and each one of them developed a special law based
on the old Germanic folk-law, Germanic medieval law being thus preserved
in Switzerland in purer form than elsewhere in the German
Empire. In Switzerland there was no "Reception" of Roman Law in
the sense in which there was a Reception of Roman Law in Germany.
In the period of the Old Confederation (1300-1800) there was indeed a
Reception of Roman Law in the cantons; but it stopped short of the
wholesale adoption of Roman rules and principles which marked the
usual course of events in Germany. In fact in 1499 was signed the
treaty by which for practical purposes Switzerland was severed from the
Empire. In Catholic Swiss regions the Canon Law — in cases of marriage,
usury, unchastity, and, in some jurisdictions, in cases of testamentary
dispositions — retained its validity down to modern times.
The Roman Law influenced the laws of the Netherlands from a very
CH. XXI.
756 Roman and Canon Law in England
early time. This influence increased, as time went on; but it cannot be
said that there was ever a formal practical Reception in the sense in
which this term is applied elsewhere in Germany. The truth of the
matter seems to be that, owing to the decentralised conditions of
political
and legal evolution, an opening was made for the entry of the Roman
Law as one of the important subsidiary legal sources, and that this
influence of the Roman system was not equally strong in all the
provinces. At an early time the Codex Theodosianus (a.d. 438) left its
mark on tribal customs; and, similarly, the Frankish Law, which had
been in contact with the Roman Law, influenced the customary law. The
renaissance of Roman Law in the Italian law schools had important
results
in the Netherlands as in the rest of Germany. What, too, has been
said of the influence of the Canon Law in Germany generally, also holds
true in the provinces of the Netherlands.
X.
Law travels by sea as well as by land. Separated from the Continent
by the intervening narrow seas, the British Isles came nevertheless
within
the reach of the influences of Roman and Canon Law. Of these influences
one may not speak in detail. Nor is it possible to describe the spread
of the Romanic Laws to Scotland, Ireland, and Wales. Our attention
for the moment must be restricted to England.
The law of England before the Norman Conquest was fundamentally
Germanic in character, even though Celtic custom may here and there
have left its trace on the customs and written laws of the Angles,
Saxons,
and Danes. Roman legal institutions do not appear to have survived the
abandonment of Britain by the Romans ; at least they do not appear to
have contributed materially to the formation of the laws of the
pre-Norman period of English history. " We speak of law," declares
Maitland,
" and within the sphere of law everything that is Roman or Romanized
can be accounted for by later importation And, in point of fact, there
is no trace of the laws and jurisprudence of imperial Rome, as distinct
from the precepts and traditions of the Roman Church, in the earliest
Anglo-Saxon documents. Whatever is Roman in them is ecclesiastical.
. . .This inroad of the Roman ecclesiastical tradition, in other words,
of
the system which in course of time was organized as the Canon Law,
was the first and by no means the least important of the Roman
invasions, if we may so call them, of our Germanic polity." The Franks
^ "The canon law of Scotland before the 10th century was generally that of the
continent of Europe. The usages of the church were similar to those in France, and
had not the insular character of those in England and Ireland. The canon law
regulating marriage, legitimacy and succession was taken over by the Scottish secular
courts and survived as part of the common law of the land almost unimpaired."
Leonard Phillimore's(?) article on "Canon Law in England and in the Anglican Communion" (Encyclopaedia Britannica, 11th edn, s.v. Canon Law).
Civilians and canonists 7o7
had, however, taken over Roman legal materials and embodied them in
their own system ; and, through English intercourse with the Franks,
some of these Roman materials were imported into England. Roman
influence of this character seems to have played upon the form and
content of the Latin charters or land-books of the Anglo-Saxons.
Roman legal elements assimilated by the Franks had been adopted
by the Normans in Normandy as a part of the Frankish legal system
which they made their own. The Norman Conquest brought many of
these elements into England, where they were to exert an important
influence upon the growth of English Law, more especially perhaps the
law of procedure. Nor, when we consider the Frankish-Roman influence,
must we forget that Lanfranc, the Pavese lawyer, was William the
Norman's counsellor. The fashion thus set by the Conqueror was followed
by later kings. Many of the Roman legal influences that affected the
growth of the prerogative and other features of England's constitutional
and legal system were due to the advice and the work of royal legal
counsellors trained in Roman and Canon Law. Henry III had Henry of
Susa by his side, Edward I had Franciscus Accursii, the son of the great
Glossator. Archbishops no less than kings imported foreign jurists trained
in the Civil and Canon Laws. Archbishop Theobald brought from Italy
a jurist who left his mark on English legal education and English civilian
literature. Vacarius not only taught Roman Law in England — almost
certainly at Oxford, where a law school was just then developing — and
gathered round him a gi'oup of disciples, but he also wrote both the
Liber Pauperum, which was a book on Roman Law for poor students who
had not the means to acquire the Roman texts, and a tract on the law
of marriage. There are other evidences that the Roman and Canon Laws
were being more and more studied in England. The disciples of Vacarius
glossed his glosses. Manuscripts were copied. John of Salisbury gave
a sketch of civil procedure in his Polycraticus. A manual of procedure
is attributed to William Longchamp, King Richard's chancellor. William
of Drogheda, law teacher at Oxford, wrote a Summa Aurea. In the
fourteenth century an English canonist, John de Athona, wrote a gloss
on the legatine constitutions which displays knowledge of Justinian's
law-books. William of Lyndwood, still one of the leading English
authorities on Canon Law, finished in 1430 his commentary on the provincial constitutions of the Archbishops of Canterbury.
English students early proceeded to Bologna to acquire knowledge
of the Civil and the Canon Laws at the fountain-head. Schools of the
two laws grew up at both Oxford and Cambridge, where degrees in each
one of the laws were conferi'ed. Some English lawyers were trained in
both laws ; and in various ways it was an advantage to them to be vereed
in Civil and Canon Law alike. The civilian, if he knew little or no Canon
Law, might be employed as a teacher or as a servant of the king in the
council or the chancery or in diplomacy, and he might also engage in
758 Azo and Bracton
practice in the courts of admiralty and the courts of the universities.
But, on the whole, the civilian found less to do than the canonist.
Canonists were not only required for the work of the ecclesiastical courts;
they were also given employment in the royal service as clerks, as
justices in the courts, and as chancellors.
The great law school at Bologna, which spread its influence throughout
Europe, left its permanent mark on English juridical thought and
on English law and procedure. What one may call -the Bolognese factor
in English medieval legal history worked subtly in two ways ; for it
meant the importation into England of Canon no less than of Roman
legal ideas, rules, and processes. Closely related upon the Continent,
these two legal systems were also closely related in England. Their
separate influences flowed through many channels, but oft-times the two
streams of influence united and flowed in one and the same channel.
Only by a detailed and penetrating survey would it be possible to per-
ceive and distinguish all the cuiTents that were Roman and all the
currents
that were canonical. The revival of the ancient Roman Law as embodied
in Justinian's books was the work of the Bolognese Glossators, and that
work fell within the period from the early part of the twelfth to the
middle of the thirteenth century. Tidings of the legal revival were not
slow in reaching England, and for a full century — from the middle of
the twelfth to the middle of the thirteenth century — the new learning
materially affected the evolution of the English Law. Italian influence
is
to be seen in GlanvilFs law-book ; but it is chiefly noticeable in
Bracton's
great treatise, the main part of which appears to have been written
between 1250 and 1258. The names of Azo and Bracton will always be
linked together in legal literature. In the writing of his treatise on
English law and procedure, Bracton, the ecclesiastic and the royal
justice,
while depending chiefly on the cases in the plea rolls, also made use of
various Roman and Canonical legal materials, and among them, first and
foremost, the writings of the great Glossator Azo. From these sources
of the Romano-canonical jurisprudence of the Middle Age, and chiefly
from Azo, Bracton derived his general notions as to what a law-book
should be and how it should be written ; and from them he also obtained
specific legal rules and maxims. His main indebtedness to the civilians
and canonists is to be found, however, in the form and arrangement of
his book, for in its substance the De Legibus et Consuetudinibus
Angliae^
the book which Pollock and Maitland describe as " the flower and crown
of English medieval jurisprudence," is fundamentally English in
character.
In the matter of civil procedure, however, there was a noticeable
influence
of the canonical system, and this influence may be studied in Glanvill's
and Bracton's books. English civil procedure was rationalised under
canonical influence ; and, in some instances, it became indebted to the
foreign system for direct borrowings. It borrowed from the exceptions
against witnesses in the ecclesiastical courts the " exceptions," or "
chal-
Romanic influences on English Law 759
lenges," that can be made against jurors : it borrowed much of the
science
of pleading from the civilians and canonists. The actio xpolii of
canonical
legal procedure was suggestive to English lawyers in the framing of
their
own action of Novel Disseisin. But, even though the main substantive
features of Bracton's book represent English as distinct from Romano-
canonical jurisprudence, we may nevertheless agree with Sir Paul
Vinogradoff when he says that * "the most important English contribution
to
Romanesque jurisprudence" in the Middle Age was made by Bracton.^
Down through the centuries this Romanesque learning of Bracton, even
though it was not very profound, has continually influenced not only
English juridical thought, but also English legal rules and principles.
In its origin and its essential features the foreign influence handed
down
by Bracton has been the influence of Azo and the other Italian
Glossators.
Great schools of law always live through the ages and continuously
radiate waves of thought to places near and remote in the ever-changing
world. Such a school of law was founded bv the Glossators at Bologna.
As Pollock and Maitland, in the History of English Law have
pointed out, "the rapid and, to a first glance, overwhelming flow of
Romanic learning," from the middle of the twelfth to the middle of the
thirteenth century, " was followed in this country' by an equally rapid
ebb.' From Bracton's day onwards the English Common Law developed
on its own lines as a system distinct and different from both of the
foreign systems now the object of our study. Some of the foreign
elements which the Common Law had already assimilated it preserved ;
but, on the whole, the Common Law of post-Bractonian centuries seems
to have adopted but little from either the Civil or the Canon Law. In
the age of the Renaissance there was, indeed, the danger of a "Reception''
of the foreign laws. But, as Maitland has taught us in his brilliant essay
on English Law and the Renaissance, although English Law did not form
a part of university education until modern times, it was nevertheless
academically taught in the Inns of Court during the later Middle Age;
and it was this teaching of English Law to the profession which " saved
English law in the age of the Renaissance.^ In the words of Lord Justice
Scrutton, in his Influence of the Roman Law on the Law of England^
" the working out of an Equitable Jurisdiction, and the decisions of the
Ecclesiastical and Admiralty Courts were building up svstems largely of
Civilian origin, but in the Common Law, the influence of Roman Law
has rather retrograded than advanced since the time of Bracton."
Equity, as a distinct system of justice supplementary to the Common
Law, has its beginnings in the later Middle Ages although not until
modern times does it acquire many of its present-day features. The chief
moulders of medieval Equity were the king's council and chancery ; and
many of the men who sat in these tribunals were ecclesiastics. Some of
the ideas and principles applied by these courts, and certain of the
^ Roman Law in Mediaeval Europe, p. 88.
760 Canon Law and ecclesiastical courts
features of their procedure, were unquestionably borrowed from the civil
and canonical systems. But the extent of this foreign influence, both in
medieval and in modern times, has long been a matter of dispute. Spence
maintains that Equity's debt to Civil and Canon Law is very great ;
Mait-
land and Mr Justice Holmes contend that the chancellors had no intent
to Romanise English Law and that indeed Equity does not in any way
consist of wholesale borrowings from the foreign systems. The recent
investigations of scholars seem to confirm the latter view. So far as
the
medieval period is concerned, the chief indebtedness of the council and
chancery seems to have been to ecclesiastical procedure. Various
important features of the procedure of the Courts Christian were taken
over and adapted to the purposes of procedure in Equity.
In the English ecclesiastical courts, from the time of William the
Conqueror to the Reformation, canonical jurisprudence had a wide field
of application. In accordance with the older view, the English Church
was always an independent national church, and, although it was subject
to the general principles of the ius commune ecclesiasticum, it was not
bound by particular constitutions of the Councils or of the Pope unless
such constitutions had been "received"" in England as part of English
ecclesiastical law. Contrary to this view, which has persisted down to
our own day, and is still held by some scholars, Maitland holds — basing
his view on a study of Lyndwood's Provincial and other authoritative
sources — that the law enforced in the English Church courts in the
pre-Reformation period is none other than the Canon Law of the Western
Church, of which the English Church forms an integral part ; and that
the Papal decretals were, therefore, as binding on the English
ecclesiastical
courts as they were on any other courts of the Western Church as a
whole.
" Whereas the English State was an independent whole,"" declares
Maitland, " the English Church was in the eyes of its own judges a
dependent
fragment whose laws had been imposed on it from without." ^
Without pursuing this controversy further, and remarking only that
Maitland's view has been adopted by many scholars of eminence, let us
take note of the fact that in the medieval struggle between State and
Church in England the delimitation of the respective spheres of lay and
ecclesiastical jurisdiction, and hence of the respective spheres of Common
Law and Canon Law, played a role of the greatest importance. This
contest between lay courts and laws and ecclesiastical courts and laws
was not peculiar to England ; it was a contest waged in nearly every
country of medieval Europe. But in each one of these countries the
struggle possessed its own local features ; and the struggle in England
was no exception to this. The claims of the English Church courts to
wide jurisdiction were growing at the very time when Henry II was bent
on the centralisation of justice in his realm, the strengthening of his own
royal courts, and the expansion of their jurisdiction. The struggle
1 English Historical Review, July, 1896, p. 476.
Lay and Ecclesiastical jurisdiction 761
reached its climax in the dispute between Henry and Becket. Out of
that dispute the king emerged the victor, and also in future disputes
between the champions of the two jurisdictions the champions of the lay
courts and of the Common Law were generally the victors. The victory
of Henry VIII and his Church settlement marked the end of the long
medieval struggle and the beginning of a new epochs
Much of the subject-matter of the jurisdiction claimed by English
Church courts in the Middle Age was purely ecclesiastical and spiritual.
These matters were not claimed by the State as matters which fell within
the proper competence of the royal tribunals ; they were left to the
Courts Christian. Apart from such matters, however, there was a wide
field of law which the courts of the Common Law, with the greatest
propriety, might well have occupied exclusively. It is, indeed, a
striking
feature of English legal history that, from the middle of the twelfth
century onwards, the ecclesiastical courts exercised jurisdiction over
many
matters which can hardly be termed ecclesiastical in any true sense'.
Thus, the ecclesiastical courts claimed jurisdiction in matrimonial
causes
— marriage, divorce, and legitimacy ; and these claims neither Henry II
nor his suceessors disputed. The claim to exercise jurisdiction in
testamentary causes was likewise successfully asserted by the Church
courts;
they pronounced on the validity of wills and interpreted them, they
regulated the acts of the Church's own creature, the testamentary
executor, they decided all cases of succession to moveable property ab
intestato.
Despite prohibitions issued by the royal courts, ecclesiastical
tribunals
long enforced contractual promises made by oath or by pledge of faiths
The jurisdiction of the ecclesiastical courts over most of these matters
was retained by them down to 1857.
In one direction the Civil Law exerted an influence on the growth of
English Law which is worthy of special notice. In the course of the four-
teenth century the Court of Admiralty acquired a jurisdiction to punish
crimes, including piracy, committed at sea, and it also assumed a civil
jurisdiction over shipping and commercial matters. While the law ad-
ministered by the Admiralty was embodied in the great maritime codes of
the Middle Age, as a supplementary law the Civil Law was also enforced ;
and the procedure of the Court was modelled on that of the Civil Law
system. In the Admiralty, therefore, civilians found the opportunity to
practise and to sit as judges. Although the criminal jurisdiction of the
Court of Admiralty was transfeiTed to the Common Law courts over three
hundred years ago, its civil jurisdiction was retained down to our own
1 See Tanner, Tudor Constitutional Documents, 1922, pp. 13-98, 357-374.
2 It is not to be forgotten, however, that medieval views as to the nature of some
of these matters differed widely from modern views.
' Compare the scope of the jurisdiction of French ecclesiastical courts in the
Middle Age. See Brissaud, History of French Public Law (in Continental Legal
History Series, edited by J. H. AVigmore and others, Boston), 1915, pp. 182-191.
762 Inner history of the two laws
times. In the course of the centuries English maritime law lost much of
its international character. But it still retains, even today, certain
features which it derived from the Roman system.
XI.
Difficult as it is to sketch in outline the history of the general
development, the spread, and the sources of Roman and Canon Laws in the
Middle Age, it is more difficult still to give, in a short compass, any
clear
conception of the medieval history of the rules and principles embodied
in those systems. This difficulty in sketching the " inner," as distinct
from the " external," history of Roman and Canon Laws arises in part
from the fact that the historian is concerned with the several branches
of each one of two extensive bodies of public and private law, and that
he must study the rules and principles of each system in their relation
to those of the other system. Nor is it sufficient to study these two
Romanic systems in isolation. Not only their relations to each other,
but also their relations to other bodies of law, such as the Greek and
Germanic systems, feudal custom, town laws, and territorial legislation,
must be taken into account. There are legal influences and counter-
influences, in all the many parts of Europe, which produce modifications
of older rules and doctrines and which lead to the introduction of new
ones, the general result being an almost infinite variety of legal
types.
The difficulty of sketching the history of the rules and principles of
the
Roman and Canon Laws is increased by the further fact that these laws
are never at rest ; at all times and in all places they are subject to
change
in response to the pressure of the many forces at work in society. The
words of Mr G. W. Cable, the novelist, are not inappropriate as an
expression of legal change: for law is constantly "shifting like the
fragments
of colored glass in the kaleidoscope." The true picture of the law in
its
development is not obtained by methods similar to those of the older
photography; it is obtained only by using methods that produce the
impression of life and movement — methods comparable to those which now
create the living and moving picture shewn upon the screen.
To the student of the inner history of Roman and Canon laws in the
Middle Ages the vast range of the subject, both in time and place, is
forbidding. An evolution — or, rather, a whole complex of diverse but
related evolutions — extending through many centuries is spread over the
entire surface of the Eastern and Western parts of the European world;
and everywhere, in all the regions of the world, this evolution is
intertwined with the other features of the history of medieval civilisation.
How enlightening this inner history of the two laws may be made is
evident to any reader of Zacharia von Lingenthal's Geschichte des
Griechisch-Romischen Rechts and of the writings of other modern scholar's
dealing with the rules and principles of Roman and Canon Laws in their
Graeco- Roman and Romano-Germanic Law 763
medieval environments. The history of patria potestas in the East after
the
time of Justinian mav be taken as an illustration. This distinctive
feature of the older Roman Law, this power or bundle of powers so
intensive in the period of its full vigour that it was sometimes
referred to
as patria maiestas, was slowly modified in the course of Roman legal
history, especially in the time of the Empire. Shorn of many of its
older and harsher features it was given a place in Justinian's system ^:
and
as a part of his great codification it played a role in the development
of
Graeco-Roman Law. Zacharia von Lingenthal has shewn- how the
fortunes of the Justinianean patria potestas fluctuated in later Eastern
history, how the rules of Justinian in regard to it were displaced,
modified, allowed to fall into disuse, or revised, in accordance with
the
varying fortunes of Justinian"'s codification as a whole, two of the
important stages in this development being marked by the appearance of
the 'E/fXo7^ rSiu vofioiv' and 'Ta BaaiXiKo', (Grk. 'Ekloga ton nomon'
and 'Ta Basilika' ?).
Many illustrations of the importance of studying the inner history
of the two laws in the Middle Age may be drawn from the leges Romanae
and the leges Barbarorum of the West. Rules of the ancient Roman
Law, either in their original form or in modifications adapted to the
needs of Germanic societies, were incorporated in these codes. The leges
Barbarorum are even more interesting than the leges Romanae as
embodiments of Roman legal rules; they are more interesting because they
shew
us more clearly the inroads of Romanic rules upon Germanic custom.
Thus, the laws of Euric, the most ancient of all the written laws of the
Visigoths, contain rules of Roman Law, some of which run counter to
Visigothic custom. Sir Paul Vinogradoff's ^ has drawn special attention*
to
the declaration in Euric's laws that donations extorted by force or
intimidation (vi aut metu) are to be null and void; and he cites this as
a
rule which breaks through the purely formalistic treatment of
obligations natural to barbaric law.
When the student of the inner history of the two laws reaches the
period of the revival of juristic studies in the West, he is appalled at the
mass of the materials which lie to his hand. The very bulk of the Corpus
Iuris civilis and the Corpus Iuris canonici is forbidding. Each one of
these bodies of law is an extensive and complicated system, in which
many branches are included; each system has its constitutional law, its
law of persons, property, inheritance, contracts, and delicts, its law of
procedure. In addition, each one of these two huge bodies of law is
enveloped by a vast medieval literature: there are the glosses, the
* See Buckland, Roman Law from Augustus to Justinian, pp. 103-105.
^ Geschichte deg Griechisch-Romischen Rechte, 2nd edn, §§ 17-24.
' An instructive comparison of patria potestas in Byzantine law with its influence
on Western secular law may be made by reading the works of Brissaud, Brunner,
and other historians of European legal systems.
* Roman Law In Mediaeval Europe, p. 20.
CH. XXI.
764 The two cosmopolitan legal systems
summae, and all the other writings of the medieval civilians and canonists.
The writing of a history of the rules and principles of these two great
legal systems involves the tracing of origins and development, the setting
forth of the relations of the several parts of each system one to another,
the statement and criticism of the doctrines elaborated by the civilians
and canonists; the recounting of the part played by each system in the
legal history of many countries of the world in later medieval and in
modern times ^ It is clear that no adequate picture of the inner history
of these two cosmopolitan legal systems can be given in a few words ; any
attempt to give such a picture at the end of the present chapter would be
a grandiose project destined to failure.
1 Gierke's Staats und Korporations Lehre des Alterthums und des Mittelalters und ihre
Aufnahme in Deutschland (Das deutsche Genossenschaftsrecht, Vol. iii) is one of the
most brilliant of all the modern studies of the doctrines of medieval civilians and
canonists. See also Maitland's illuminating Introduction to his translation of a small
part of Gierke's volume {Political Theories of the Middle Age, pp. vii-xlv).
2 For the influence of Canon Law on the several branches of secular law, see
Brissaud's Histoire du Droit Francais and Hinschius' essay on the history and sources
of Canon Law in Holtzendorff's Encyklopaedie der Eechtswissenschaft, 5th edition, 1890.