((ornfU Slaw f'rlyonl Eibtaty
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Cornell university Library
KJA 160.S55 1917
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ROMAN LAW
IN THE MODERN WORLD
BY
CHARLES PHINEAS SHERMAN, D.C.L. (Yale)
.17 Professor of Roman Law in Yale University; Member
of the Bar of Connecticut, of Massachusetts, and of the
United States Supreme Court; Curator of the Yale Wheeler
Library of Roman, Continental European, and Latin-Amer-
ican Law; ex-Instructor of French and Spanish Law in Yale
University ; ex-Librarian of the Yale Law School Library
VOL. I
HISTORY OF ROMAN LAW AND ITS DESCENT INTO ENGLISH,
FRENCH, GERMAN, ITALIAN, SPANISH, AND
OTHER MODERN LAW
BOSTON, U.S.A.
THE BOSTON BOOK COMPANY
1917
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uxor alma julia
Comes Inspirans ^n Roma
TIBI Consecratum
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PREFACE
The revival in the United States of the study of the Civil
Law has already assumed ample proportions which are yearly
increasing, and its full fruition with many far-reaching con-
sequences is but a question of time. The greatest contribution
of this revival to American law will be a powerful influence
operating for the betterment of the private law of the United
States, purging it of its present dross of redundancy, prolixity,
inconsistency, and lack of uniformity, and crystallizing it into
the compact form of a codification.
The following work is dedicated to the continuing success
of this movement so fraught with benefit to the progress of
American jurisprudence. It is designed to meet the require-
ments, both similar and dissimilar, of various classes of readers :
the general reader, the non-professional student, the law
student, and the law teacher. For the law and administration
of Rome are to-day a living force constantly employed by the
jurist, the publicist, the historian, and the theologian, as well
as by others for constructing their theories or demolishing
those of their opponents.
The first volume of my work is a historical introduction
to the development of modern law, beginning with the genesis
of Roman law as a local city law, describing its evolution into
a body of legal principles fit to regulate the world, portraying
its establishment as a world law, and ending with an account
of the universal descent or reception of the Civil Law into
modern law.
The second volume contains the principles of the Civil Law,
more especially private law, arranged systematically in the
order of a code, and illustrated, as to their survival, from
Anglo-American law and the Modern Codes as copiously
as space will permit. For almost all the Roman law of Jus-
tinian's era is still living to-day in the modern world.
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vi PREFACE
The third volume contains Roman and modern guides to
the subjects of the entire book, an exhaustive general biblio-
graphy of Roman law, and the index.
For the convenience of law students and teachers the text
of the volumes is divided into sections. For the same reason
the volumes are indexed according to sections. Exponent
figures are employed to indicate the edition cited of any book
which has passed through several editions: for instance
Girard, Manuel de droit romain^, means the fifth edition of 191 1 .
C.P.S.
Yale University,
June 1, 1916.
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LIST OF PRINCIPAL ABBREVIATIONS USED IN
ROMAN LAW TREATISES
B.; Bas. = Basilica of Leo VI.
C; Cod.; Code = Code of Justinian. (Code, 8, 10, 6 is 8lh book, 10th title,
6th law or constitution.)
C. Th.; Cod. Theod. = Code of Theodosius. (It is cited like the Code of
Justinian.)
Collatio = Mosaicarum et Romanarum legum coUatio.
Const. = Constitution, sometimes referring also to a prefatory constitution
of the Code or Digest, e.g. Const. "Omnem.''
D.; Dig.; Digest; P. = Digest or Pandects of Justinian (Dig. T7, 1, 25 pr.
is 17th book, 1st title, 25th -fragment, principium or first paragraph.)
Frag. Vat. = Vatican Fragments.
G.; Gaius = Institutes of Gaius. (Gaius, 2, 1 is 2d book, 1st section.)
I.; Inst.; J. = Institutes of Justinian. (Inst. 2, 6, 10 is 2d book, 6th title,
10th section.)
1. = Constitution, law, or fragment.
L. = Book. (Unless it is the numeral "50.")
N.; Nov.; Novel = Novels of Justinian. (Nov. 18, 3 is 18th novel, 3d
chapter.)
Paul. Sent.; Sent. P. = Sententiae of Julius Paulus.
Pr. ; pr. = Principium, the first paragraph and preliminary section of the
Institutes, or of a fragment of a title of the Digest, or of a constitution
or law of the Code.
SC. = Senatusconsultum or decree of the Senate.
Theophilus; Theoph. Inst. = Paraphrase of the Institutes of Justinian by
Theophilus.
Ulpian Reg. ; Reg. = Regulae of Domitius Ulpian.
XII Tab.; XII Tables = Law of the XII Tables.
§ = Section.
The latest modern Civilians or Romanists, including the author, cite
the Corpus Juris Civilis from the stereotyped edition of Krueger,
Mommsen, Schoell, and KroU; and the Code of Theodosius, from
Mommsen's edition.
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CONTENTS OF VOLUME I
INTRODUCTION
CHAPTER I
The Value of Roman Law to the American Lawyer
OF To-day
Section Section
4
5
Roman law still lives in the
modern world
Advantages obtainable from
the study of the Civil
Law
Ethical value of Roman law
Intellectual value of Roman
law
1. The practical benefit . .
2. The philosophical ben-
efit
3. The strictly profes-
sional benefit
CHAPTER n
The Value of
Section
Law a science governed by
evolution 8
Scope of our investigation. . 9
1. The development of
Roman law 10
2. The survival or recep-
tion of Roman law in
modern law 11
The world-mission of Roman
law since Justinian 12
Legal History
1. To mold the private
law of every modern
State
2. To cause uniformity of
law in every modern
State, — one law for an
entire country
3. To embody the uni-
form law of every mod-
ern country in a codifica-
tion
Section
13
14
15
CHAPTER HI
Ante-Roman Sources of Law
Section
Babylon probably the real
mother of law 16
Influence of Babylonian
law on Egyptian law.
A well developed Egyp-
tian law antedates Greek
law 17
Influence of Egyptian and
Phoenician law on Greek
law 18
A well developed Greek law
antedates Roman law . . .
Crete '.
Rhodes
Sparta
Magna Graecia or Greek
Southern Italy and Sicily
Athens
Egypt after the Macedonian
conquest
Section
19
20
21
22
23
24
25
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X CONTENTS OF VOLUME I
CHAPTER IV
Periods of the History of Roman Law
Section Section
Two periods 26 Roman law as a world law . . 28
Roman law as a local city
law 27
PART I
ROMAN LAW AS A LOCAL CITY LAW,— THE
ANCIENT ROMAN LAW: 753-89 B.C.
Section
A period of over 6.50 years 29
CHAPTER I
The Roman Monarchy: 753-510 B.C.
Section Section
Semi-legendary part of the Royal statutes (leges regiae) 32
ancient Roman law 30 The law of the Monarchy was
Credibility of early Roman the archaic jus civile only 33
history 31
CHAPTER II
The Roman Republic to 89 B.C.
Section
Historic part of the ancient Roman law 34
I. The Early Republic, or first half of the
Republic, prior to the conquest of Central and
Southern Italy and the appointment in 242
B.C. of a praetor for foreigners (praetor pere-
grinus) : period of the historic jus civile alone
Expulsion of the Tarquin Growth of Roman law for the
dynasty; class struggles of next three centuries is by
the patricians and pie- interpretation of the XII
beians soon engross the Tables 39
young Republic 35 The jus civile was for citizens
The Law of the XII Tables only; it was administered
fixes the commencement of at Rome by the city prae-
historic Republican Rome 36 tor ( praetor urbanus) cre-
The Law of the XII Tables, ated 367 B.C. Character
450-449 B.C 37 of the jus civile 40
Character of the Law of the Birth of the jus honorarium 41
XII Tables 38
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CONTENTS OF VOLUME I xi
II. The Later Republic, or the latter half
of the Republic following the creation of the
■ praetor peregrinus: period of the beginnings
of the jus gentium as an adjunct to the jus
civile
Section Section
The Roman conquest of Roman law into jus civile
Southern and Central Italy 42 and jus gentium 44
Growth of commerce; crea- Secularization of the legal
tion of a praetor for profession; the secret legal
foreigners (praetor pere- knowledge of the college
grinus) in 242 B.C 43 of priests divulged. De-
Beginnings of the ' Roman velopment of the functions
law for foreigners or jus of the Roman jurisconsult
gentium ; separation of or lawyer 45
PART II
ROMAN LAW AS A WORLD LAW: 89 B.C. TO THE
PRESENT TIME
Section
A period of over 2,000 years 46
CHAPTER I
The Last Half Century of the Roman Republic:
89-27 B.C.
Section
Consolidation of Italy with Rome in 89 B.C.; Roman law became
widely territorial and national 47
1. SOURCES OF ROMAN LAW DURING THE REPUBLIC
Section
Three sources 48 2. Edicts of magistrates
1. Statutes of the assem- (edicta) 50
blies (leges, plebiscita) . . 49 3. Writings of the jurists 51
2. FAMOUS REPUBLICAN JURISTS
The dawn of jurisprudence. . 52 Famous Republican jurists 53
CHAPTER II
The Roman Empire, 27 B.C.-A.D. 1453
Section
The Roman Empire lasted nearly 1500 years 54
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xu
CONTENTS OF VOLUME I
1. THE EARLY EMPIRE, 27 B.C.-A.D. 284: FROM AUGUSTUS
TO DIOCLETIAN
Section
Dual nature of the govern-
ment of the Early Empire;
the Principate
Dual nature of the Roman
lawof the Early Empire ..
The classical period of
56
Roman law, A.D. 98-244
Caracalla's Edict of A.D. 212
The four forces which trans-
formed Roman law into a
world law
Section
57
58
59
(1) The Praetorian Edict and other Edictal Law
and scope of
Definition
Edicts
Edicts compiled by Julian
and made perpetual by the
60 Emperor Hadrian in A.D.
131
61
(2) Greek Philosophy, Especially Stoicism
An external, not an internal,
force 62
Debt of Roman law to Greek
culture and philosophy , . 63
The exact point of contact
between Stoic philosophy
and Roman law was the
Stoic theory of the Law of
Nature 64
The "natural law" entered
into and liberalized the
Roman jus gentium. Rise
of the conception of Equity 65
Survival to modern times of
the doctrine of "'natural
law" 66
Ethical completion and ma-
turity of Roman law at-
tained during the Early
Empire 67
(3) Influence of the Jurisconsults
A. THE jus RESPONDENDI AND RESPONSA PRUDENTIUM
Augustus licensed jurisconsults to give responsa, or opinions on
questions of law, binding the courts 68
B. CONVERTING ROMAN LAW INTO A SCIENTIFIC JURISPRUDENCE
By assisting the Emperors in Through definitions and
legislation 69 maxims . . .' 72
Through the jus respond- Through methods of inter-
endi 70 pretation 73
Through legal literature 71
C. THE TWO SCHOOLS OF IMPERIAL ROMAN JURISTS: SABINIAN AND
PROCULIAN
The lawyers of the Early Empire divided into two opposing parties.
Rise of the two great Roman law schools of the Sabinians and
Proculians 74
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CONTENTS OF VOLUMP: I
D. FAMOUS JURISTS OF THE EARLY EMPIRE
Section
The greatest Imperial jurists
Specific contributions of Im-
perial jurists to Roman law
Africanus
Aristo
Calliptratus
Capito
Cassius
Celsus (pater)
Celsus (fiUus)
Clemens
Florentinus
Gaius
Hermogenian
Javolenus
Julian
Labeo
Maecian
Marcellus
76
77
78
79
80
81
82
83
84
8.5
86
87
90
91
92
Section
93
94
95
96
97
98
99
Pegasus 100
Marcian ....
Modestinus .
Neratius
Nerva (paler)
'Her\a.filius .
Papinian ....
Paulus
Pomponius
Proculus
Sabinus (IViasurius)
Sabinus (Caelius). . .
Scaevola
TertuUian
Tryphoninus
Ulpian
Venuleius
Vivian
101
102
103
104
105
106
107
108
109
110
(4) Sources of Roman Law During the Early Empire
1. Statutes of the assem-
blies (leges, plebiscita) ... Ill
2. Praetorian and other
Edicts 112
3. Opinions of jurisconsults
(responsa prudentium) ... 113
4. Decrees of the Senate
(senatusconsulta) 114
5. Imperial statutes (con-
stitutiones) 115
(5) Influence of Mature Roman Law on Early Christianity
St. Paul
Ritual of the Church
116
117
TertuUian .
Lactantius
118
119
2. THE LATER EMPIRE, A.D. 284-1453: FROM DIOCLETIAN
TO THE OVERTHROW OF THE EASTERN ROMAN
EMPIRE BY THE TURKS
Constitutional and political
changes made by Diocle-
tian and Constantine .... 120
Names descriptive of the
Roman Empire from the
4th to the middle of the
15th century 121
Diocletian's abandonment
of the Republican civil
procedure of the Early Em-
pire soon obliterated all re-
maining differences be-
tween the jus civile and jus
honorarium
The 5th century Valen-
tinian Law of Citations
122
123
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XIV
CONTENTS OF VOLUME I
(1) Ante-Justinian Codes of Statutes and Collections of
Jurisprudence
Section
The Roman law of the Later Empire prior to Justinian exhibited a
tendency toward codification, which finally was accomplished by
Justinian 124
A. OFFICIAL ROMAN CODES OF STATUTES
Section
The 3d century Gregorian The 5th century Theodosian
Code 125 Code 127
The 4th century Hermo- The 5th century post-The-
genian Code 126 odosian Novels 128
B. PRIVATE UNOFFICIAL ROMAN COLLECTIONS OF JURISPRUDENCE
The 4th or 5th century The 5th century Syrian-
Comparison of the Mosaic Roman Law Book 131
and Roman laws 129 The 5th or 6th century Con-
The 4th or 5th century rultatio 132
Vatican Fragments (Frag-
menta Vaticana) 130
C. TEUTONIC CODES OR LEGES ROMANAE BARBARORUM
Three 6th century Roman codes compiled by German Kings from
ante-Justinian law 133
(2) The Codification
The reign of Justinian
The 6th century codification
of Justinian, — now called
the Corpus Juris Civilis . .
The Code of 529 ; second and
revised edition, 534
The Digest or Pandects of
533
The Institutes of 533
The Novels of 535-65
(3) The Influence
Christianity an external force
affecting Roman law from
Const antine to Justinian
Constantine's Edict of Milan
in 313
Constantine's later legislation
Controversy as to the debt of
Roman law to Christianity
Hpw Christianity affected
Rorran law
of justinlan, — now known as the
Corpus Juris
134 Abbreviations for the Code,
Digest, Institutes, and
Novels 140
135 The modern mode of citing
the Corpus Juris 141
136 The medieval mode of citing
the Corpus Juris 142
137 How Justinian's codification
138 was introduced into Italy
139 and Western Europe .... 143
OF Christianity on Roman Law
1. Promulgation of new
law 149
144 2. Amendment of the ex-
isting law of persons . . . 150
145 3. Amendment of the cx-
146 isting law of property . . 151
4. Amendment of the ex-
147 isting criminal law .... 152
Sources of information as to
148 influence of Christianity. . 153
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CONTENTS OF VOLUME I
XV
(4) Roman Law Schooi^ and Legal Education
Roman law schools prior to
Diocletian and the 4th cen-
tury A.D. were pri\ate law
schools 154
The state law schools of the
Later Roman Empire .... 155
A five years course of study
prescribed for Roman law
schools of the Later Em-
pire 156
First year 167
Second year 158
Section
Third year 159
Fourth year 160
Fifth year 161
Law school government ;
names of the various
classes of students 162f
Admission to the Bar 163
Nature of the Roman system
of legal education 164
Roman legal education re-
veals the right way to -
study law 165
(5) Post- Justinian Law to the End of the Roman Empire in 1453
Vitality and elasticity of the The 8th century adminis-
Later Empire subsequent trative reorganization of
to Justinian; the Eastern the Empire by Leo the
Roman Empire a bulwark Isaurian 173
for Western Europe 166 The 8th century Ecloga of
After Justinian, Greek sup- Leo the Isaurian 174
planted Latin as the The 9th century Prochiron
official language of the and Epanagoga of Basil
Empire 167 the Macedonian 175
Names descriptive of post- The 9th century Basilica of
Justinian Roman law .... 168 Leo VI 176
The 6th century Greek jurists Character of the post-Basil-
of the Justinianean school 169 ica Roman law to the end
Rise of the Moslem power of the Empire in A.D. 1453 177
in the 7th century; Con- 10th century Roman law . . . 178
stantinople saved from the 11th century Roman law .. . 179
Saracens by Leo the Isau- 12th century Roman law . . . 180
rian (Leo III) in A.D. 13th century Roman law . . , 181
178 170 14th century Roman law . . . 182
Neglect of jurisprudence in Fall in 1453 of the Eastern
the 7th century; the law Roman Empire; dispersion
school of Constantinople of Greek culture and the
closed in the year 717 . . . 171 knowledge of antiquity
The 8th and 9th centuries into Western Europe; fate
are the period of post-Jus- of Roman law in Eastern
tinian legislation 172 Europe 183
(6) Sources of Law during the Later Empire
Imperial legislation the sole source of the law of the Later Empire 184
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xvi CONTENTS OF VOLUME I
CHAPTER III
Roman Law since Justinian to the Present Time, —
The Modern Realm of Roman Law
Section
The modern Civil Law 185
1. ABYSSINIA
Justinian Roman law the basis of modern Abyssinian law 186
2. MOHAMMEDAN COUNTRIES, ESPECIALLY THOSE
ORIGINALLY PARTS OF THE EASTERN ROMAN EMPIRE
Section
Islamic private law tinctured Turkey 189
with Byzantine Roman law 1 87 Cyprus 190
Instances of the similarity Egypt 191 .
of Mohammedan and Mohammedan India 192
Roman law 188.
3. MALTA
Maltese law is of Roman origin and codified 193
4. GREECE
The Eastern Roman Hexabiblos made in 1835 the Civil Code of
modern Greece 194
5. BALKAN STATES
Roumania, Bulgaria, Serbia, Montenegro 195
6. RUSSIA
The 10th century conversion The partial Russian codi-
of the Russians to Chris- fications of the 17th and
tianity as introduced from 18th century 198
the Eastern Roman Empire 196 The 19th century codifica-
The great influence of Byzan- tion of Russian law in the
tine art, culture, and law in reign of Nicholas I ; the
Russia prior to the fall of Civil Code of 1835 199
the Eastern Empire in the Poland 200
15th century 197
7. ITALY
Debt of the modern world Periods of Italian legal his-
to Italy 201 tory 202
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CONTENTS OF VOLUME I
xvii
I. Italy from the middle of the 6th to the
middle of the 11th century: period of the pre-
servation of Justinian's law and the legal
teaching of the Eastern Roman Empire
Section Section
The Roman-barbaric period 203 until nearly the ]2th cen-
The 6th century reconquest tury 206
of Ita'y by Justinian and Law School of Ravenna .... 207
the introduction of his Revival of the Western
Corpus Juris 204 Roman Empire by Charle-
San Marino 205 magne in the 9th century 208
A part of Italy was governed Discovery of the Florentine
by the Eastern Empire manuscript of the Digest 209
II. Italy from the middle of the 11th to
the middle of the 13th century: period of the
revival of Roman law by the Glossators
Rise of the Glossators 210 Famous Glossators : Irnerius,
The 13th century revival Vacarius, Placentinus, Azo,
of Roman law, -often Accursius 213
called the Bologna revival 211
Founding of law schools and The Consolato del Mare ... 214
universities 212 Rise of the Canon Law 215
III. Italy from the middle of the 13th to
the 16th century: period of the Commentators
Rise of the Commentators; formed by fusing Roman
difference between them and Teutonic law 217
and the Glossators 216 Introduction of scholas-
T,, ^ . . T, .. ticism; revival of the
The Commentators Italian- ^ ,
Greek and Roman doc-
ized Roman law, and trine of the Law of Nature 218
showed that a national Famous Commentators:
jurisprudence could be Cinus, Bartolus, Baldus . 219
IV. Italy from the 16th century to the
rise of the modem kingdom of Italy in" the
19th century : period of diversity of law
Diversity of Italian law in French codes introduced
the 16th, 17th, and 18th inl-o Italy 221
^ . nnn Italian law after the downfall
centuries 220 t ,. xt i • t- ■
of the Napoleonic Empire
Incorporation of Italy in the and prior to the formation
Napoleonic Empire; the of modern Italy 222
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xviii CONTENTS OF VOLUME I
V. Modern Italian law: period of uniform-
ity and complete codification of law
Section Section
Formation of modern Italy; The Italian Civil Code of
culmination of the risorgi- 1866 and modern Italian
mento italiano 223 law 224
8. THE MODERN CANON LAW, —AN OFFSHOOT OF
ROMAN LAW
The relation of Canon law to form. Parts of the Cor-
Roman law 225 pus Juris Canonici 228
The Corpus Juris Canonici The Corpus Juris Canonici
and modern Canon Law .. 226 j^ ^ counterpart of the
The Corpus Juris Canonici Justinian codification as to
is a counterpart of the , ^ „_„
^ . . ,.^ . substance 229
J ustiman codincation as to
jj^g 227 T^^ Corpus Juris Canonici
The Co pus Juris Canonici is a counterpart of the Jus-
is a counterpart of the tinian codification as to
J uslinian codification as to authority 230
9. AUSTRIA-HUNGARY
Austrian law prior to The Austrian Civil Code of
its 19th century codifica- 1812 and modern Austrian
tion 231 law 232
10. FRANCE
Debt of the modern world Periods of French legal his-
to France 233 tory 234
I. France from the 6th to the 13th century :
period of partial preservation of ante-Justinian
Roman law
Survival of Roman law in Laws of Oleron, — the 12th
Gaul (France) after the century French maritime
destruction in A.D. 476 of and commercial law 236
the Roman Empire in
Western Europe 235
II. France from the 13th to the 16th cen-
tury: period of the introduction of Justinian
Roman law into France via the Bologna revival
Spread of the Bologna revival Difference in law between
of Roman law to France; the North and the South
founding of French law of medieval France 238
.schools and universities . . 237
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CONTENTS OF VOLUME I xix
III. France from the 16th century to the
19th century Code Napoleon: period of
diversity and partial codification of law
Section Section
French made the language (6) Denis and Jacques
of the law courts in the Godefroy 247
16th century by Francis I. (7) Begat, Brisson, and
Continued diversity of law Gaultier 24S
in France: the droit ecu- Domat, the greatest French
tumier and the droit ecrit 239 jurist of the 17th century 249
Compilation of the droit ecu- Pothier, the greatest French
tumier by royal authority 240 jurist of the 18th century 250
The Renaissance, and rise Attempts to codify French
of the Humanists in the law; ordinances or partial
16th century 24] codifications of Louis XIV
Famous French jurists of the and Louis XV 251
16th century: The French philosophers of
(1) Alciat 242 the Natural Law 252
(2) Dumoulin 243 Overthrow of the monarchy:
(3) Douaren 244 the French Revolution of
(4) Cujas 245 1789 253
(5) Doneau 246
IV. Modern French law: period of uni-
formity and complete codification of law
Project of a Civil Code for Code Napoleon 256
all France, and its realiza- Other parts of the Napoleonic
tion in 1804 by Napoleon 254 codification 257
Napoleon's share in the work 255 Influence of the Napoleonic
Character and scope of the codification on the world 258
11. FRENCH LAW PARTS OF THE BRITISH EMPIRE
French law still employed^ Guernsey, Alderney, Sark,
in parts of the British Herm, and Jethou 260
Empire 259 Mauritius and Seychelles 261
The Channel Islands: Jersey, Quebec 262
12. FRENCH LAW PARTS OF THE UNITED STATES
Louisiana 263 The Louisiana Civil Code of
1825 264
13. BELGIUM
Modern Belgian law is the Napoleonic codification 265
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XX CONTENTS OF VOLUME I
14. HOLLAND
Section Section
Dutch law prior to The Dutch Civil Code of
its 19th century codifica- of 1838 and modern Dutch
tion 266 law 267
15. ROMAN-DUTCH LAW PARTS OF THE BRITISH EMPIRE'
The modern Roman-Dutch South Africa 270
law countries 268 British Guiana 271
Ceylon 269
16. MODERN INTERNATIONAL LAW, — AN OFFSHOOT OF
ROMAN LAW
Internal ional law not Revival of international law
founded by Grotius: exist- in the 17th century: Gentili
ence of a system of inter- and Grotius the fathers of
national law in ancient modern international law 273
Greece and Rome 272 The successors of Grotius 274
17. THE SCANDINAVIAN COUNTRIES
Denmark, Norway, Sweden 27.5
18. PORTUGAL
Portuguese law prior to its of 1868 and modern Por-
19th century codification 276 tuguese law 277
The Portuguese Civil Code
19. BRAZIL (ORIGINALLY PORTUGUESE AMERICA)
Modern Brazilian law is uniform and codified 278
20. SPAIN
Periods of Spanish legal history 279
I. Spain from the 6th century to the reign
of Alfonso the Wise in the middle of the 13th
century: period of partial preservation of
ante-Justinian Roman law
The 6th century Lex Romana The Christian reconquest of
Visigothorum or Breviary Spain from the middle of
of Alaric II 280 the 11th to the middle of
The 7th century Visigothic the 13th century 284
Code, also known as the The Uth century Consulado
Fuero Juzgo 281 del Mar (Consolato del
The early and lasting in- Mare)and the 12th century
fiuence of the Canon Law Fuero de Leyron (Laws of
in Spain 282 Oleron) 285
The 8th century Moham- Great diversity and localiza-
medan conquest of tion of medieval Christian
Spain 283 Spanish law the fueros. . 286
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CONTENTS OF VOLUME I
XXI
II. Spain from the middle of the 13th
century to the end of the reign of Ferdinand
and Isabella in the 16th century: period of the
introduction of Justinian Roman law into
Spain via the Bologna revival
Continued diversity of law in
the separate kingdoms of
Christian Spain , . . . 287
Spread of the Bologna re-
vival of Roman law to
Spain; founding of uni-
versities 288
The 13th century Castilian
Royal Fuero (Fuero Real),
Septenario, and EspScuIo
of Alfonso X 289
The 13th century Castilian
Siete Partidas of Alfonso X 290
Section
The 15th century Castilian
Ordinance of Montalvo . . 291
Famous medieval Spanish
jurists 292
Extirpation of the Moham-
medan power in 1492 .... 293
Influence of Mohammedan
law in Spain 294
The early 16th century Ca -
tilian Laws of Toro (Leyes
de Toro) 295
III. Spain from the 16th century and the
reign of the Emperor Charles V to the unifica-
tion and codification of Spanish law late in the
19th century: period of partial codification of
law
Ascendancy of Spain in FamousSpanish jurists of the
Europe during the 16th 16th and 17th centuries . . 300
century 296 xhe 18th century Ordinances
The 16th century Castilian of Bilbao 301
Nueva Recopilacion of 18th century efforts to unify
Philip II 297 Spanish law 302
Decline of Spain in the 17th xt » •
century. Advent of the ^he 19th century Novisima
Bourbon dynasty 298 Recopilacion of Charles IV 303
The 17th century Laws of the Later 19th century partial
Indies (Recopilacion de codifications of Spanish
las leyes de las Indias) ... 299 law 304
IV. Modem Spanish law: period of uni-
formity and complete codification of law
The Spanish Civil Code of 1889 and modern Spanish law
305
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xxu
CONTENTS OF VOLUME I
21. SPANISH AMERICA
Section Section
The government of the The modern Spanish-Ameri-
Indies or American pos- can republics codified
sessions of Spain 306 their law during the latter
The law of the Spanish- half of the 19th century . . 308
American colonies 307
22. SPANISH LAW PARTS OF THE UNITED STATES
Spanish law in the con- the Philippines, and the
tinental United States . . . 309 Panama Canal Zone 310
Spanish law in Porto Rico,
23. JAPAN
The great influence of the Boissonade's draft of a Japan-
French Civil Code in Japan ese Civil Code, which
after the overthrow of the almost went into effect . . 312
Shogunate and the Restor- The Japanese Civil Code of
ation of the Imperial au- 1898 and modern Japanese
thority 311 law 313
24. GERMANY
Modern Germany is of recent Periods of German legal his-
creation 314 tory 315
I. Germany prior to the 15th century:
period of almost exclusively Teutonic law
Ancient Germany, a country Germany after Charle-
never subject to Roman magne 317
rule, formed part of the The 13th century Sachsen-
medieval Roman Empire spiegel 318
of Charlemagne and his The 13th century Schwaben-
successors 316 spiegel 319
Development of a native The 13th century Laws of
customary feudal law in Wisby 320
II. Germany from the 15th to the 17th
century: period of the introduction of Justin-
ian Roman law into Germany via the Bologna
revival
Spread of the Bologna re- Effect of the 16th century
vival of Roman law to Protestant Reformation on
Germany; founding of the German reception of
German universities and Roman law 323
law schools 321 Famous German jurists of
Nature of the reception of the 16th century:
Roman law into Ger- (1) Zasius 324
raan>- 322 (2) Oldendorp 32.5
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CONTENTS OF VOLUME I
III. Germany from the 17th century to the
unification and codification of German law
very late in the 19th century: period of
diversity and partial codification of law
g
Section
Section
Rise of the German Natural
The 19th century influence
Law jurists in the 17th
of the Austrian Civil Code
century
326
in Germany
337
Famous German jurists of
Rise of the modern historical
the 17th century:
school of jurisprudence in
(1) Giffen and Althusius
327
the 19th century ; Hugo its
(2) Conring
328
founder, Savigny its dis-
(3) Pufendorf
329
tinguished representative .
The study of pure Roman
338
The 18th century movement
law reintroduced into
for codification in Ger-
many. The Prussian Land-
Germany by Savigny ....
Division of the historical
339
recht of 1794
330
school into Romanists and
Famous German jurists of
Germanists
340
the 18th century:
] 9th century efforts to codify
(1) Leibnitz
331
German law prior to the
(2) Thomasius
332
establishment of the mod-
(3) Beyer
333
ern Empire of Germany . .
341
(4) Heineccius
334
Establishment of the modern
(5) Cocceji ,
335
Empire of Germany in
The 19th century influence
1871; ,dire necessity for
of the Code Napoleon in
one uniform codified sys-
Germany
336
tem of German private law
342
IV. Modern German law: period of uni-
formity and complete codification of law
Success of the movement for ,
national codification of Ger-
man law after the forma-
tion of modern Germany 343
The German Civil Code of
1900 344
Famous German Romanists
of the 19th century:
(1) Hugo 345
(2) Savigny 346
(3) Savigny 's pupils:
Bluhme, Bocking, Dirk-
sen, Goschen, Keller,
Puchta 347
(4) Thibaut 348
(5) Mackeldey 349
(6)
(7)
(8)
(9) Mommsen
(10) B r u n s, Heimbach
Huschke, Krueger,
Zachariae von Lingen-
thal, Schrader, Stude-
mund
(11) Baron, Bekker, Dern-
burg. Fitting, Gliick,
Gradenwitz, Karlowa,
Kohler, Pernice, Sal-
kowski, Sohm, Van-
gerow, Voigt, Wind-
scheid
Marquardt 350
Mittermaier 351
Ihering 352
353
354
355
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xxiv CONTENTS OF VOLUME I
25. SWITZERLAND
Section Section
The formation of modern The Swiss Civil Code of 1912
Switzerland 356 and modern Swiss law , . . 358
Swiss law prior to its com-
plete codification in the
20th century 357
26. SCOTLAND
Scotch law prior to the 18th Scotch law since the Union
century and the Act of with England in the 18th
Union with England in century. Modern Scotch
1707 359 law 360
27. ENGLAND, ENGLISH LAW PARTS OF THE BRITISH
EMPIRE, AND THE UNITED STATES
England also belongs to the Periods of English legal his-
modern realm of Roman tory 362
law since Justinian 361
I. England from the Anglo-Saxon conquest
in the 5th century to the Norman conquest
in the 11th century: period of almost exclu-
sively Teutonic Anglo-Saxon law
Britain, a province of the Britain became known in the
Roman Empire, was 9th century as ' England."
governed by Roman law 363 Legislation of Alfred the
The Anglo-Saxon conquest
of Britain late in the 5th Great, Canute, and Edward
century 364 ^^^ Confessor 366
Religious connection with Obscurity of Roman law in
Rome restored by the t? i j r ^u c
. , . , tngland from the Saxon
conversion of the Anglo-
Saxons to Christianity . . 365 to the Norman conquest 367
II. England from the Norman conquest
in the 11th century to the end of the reign of
Edward I early in the 14th century: period
of the introduction of Justinian Roman law
into England via the Bologna revival
Improvements made in Eng- The new Bologna revival of
lish law during the reigns Roman law brought to
of William the Conqueror England in the middle of
and his sons after the the 12th century by Vaca-
Norman conquest 368 rius 369
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CONTENTS OF VOLUME I
XXV
ENGLAND -
Section
The 12th century Laws of
Oleron 370
Rise of the English Common
Law in the 12th century;
the jury and the system
of original writs introduced
under Henry II 371
The 12th century Glanville 372
The 13th century Stephen
Langton and Magna
Charta 373
— continued
Section
Bracton, the greatest English
jurist of the 13th century 374
13th century legal literature
of Edward I 's reign : Thorn-
ton, Fleta, Britton, the
Mirrorof Justices 375
English law at the end of the
13th century and during
the reign of Edward I . . . 376
Character of the English
reception of Roman
law 377
III. England from the 14th century to the
17th century triumph of the Court of Chan-
cery over the Common Law courts: period
of rivalry between Common Law and Equity,
the two great systems of English law
Decline of the authority of in the lith century by
Roman law in the Common Edward III 381
law courts after Edward I 378 Rivalry between the courts
Rise of the Court of Chan- of Common Law and the
eery late in the 14th cen- Court of Chancery began
tury and the development j^ the 15th century 382
of Equity in imitation of ^^^ ^5^^ ^^^^^^ Littleton,
the Roman equity (aequi- ^^^ ^^^^ ^^^^ expositor of
^^^' ^"^ the Common Law 383
Other 14th century English ^^^ ^^^^ ^^^^^^ ^^^j^^, ^^
tribunals adoptmg Roman ^^^^ j^^ ^^^^^ j^
law principles: the Eccle- England. Rise of the
siastical Courts, Court of p^^^^^^. Commons 384
Admiralty, the military »t , . 1 ■ , . ,■ ,
.court of the Constable and Rotable legislation of the
Eari Marshal, the privl- ""^'S"^ °f ^enry VIII and
leged University Courts . . 380 Elizabeth 385
English made the language Gentili, the greatest English
of the Common Law courts jurist of the 16th century 386
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XXVI
CONTENTS OF VOLUME I
IV. England from the 17th century tri-
umph of Equity over Common Law to the 19th
century consolidation of the Court of Chancery
and the Common Law courts by the Judicature
Act of 1873: period of gradual amelioration of
the ancient Common Law by statutory enact-
ments and judicial reform
Section Section
The centuries-old contest English law in the first half
for supremacy between of the 18th century: Lord
Common Law and Equity Holt and Lord Hardwicke 394
settled in the ] 7th century Blackstone, the renowned
by James I in favor of 18th century expositor of
Equity 387 the Common Law 395
Statutory improvements of Present authority of Black-
the ancient Common Law stone's Commentaries in
during the 17th century 388 the United States 396
Lord Coke, the eminent 17th English law in the second half
century expositor of the of the 18th century: Lord
Common Law 389 Mansfield expanded the
Famous 17th century English Commoil Law by adopting
jurists acquainted with the principles of the Law
Roman law: Merchant 397
(1) Lord Bacon 390 English law transplanted in
(2) Arthur Duck, John India, Australia, New Zea-
Selden, Richard Zouche, land, and South Africa
Lord Hale, Thomas during the 18th and 19th
Hobbes 391 centuries 398
English law transplanted in Lord Stowell, the great 19th
North America du.ing the century Admiralty judge 399
17th and 18th centuries 392 Statutory improvements of
Judicial reform of English English law during the
law, chiefly by Equity, first half of the 19th cen-
during the 18th century 393 tury 400
V. Modern English law in England, the
British Empire, and the United States of
America: period of partial codification of law
Consolidation of all the How the English law parts
courts of England into one of the British Empire and
supreme court by the the United States made
Judicature Act of 1873; legal progress during the
fusion, so far as possible, 19th century 402
of Common Law and ExtentoftheRomanizationof
Equity 401 English and American law 403
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CONTENTS OF VOLUME I
xxvn
ENGLAND -
Section
Partial codifications of law in
Great Britain and English
law parts of the British
Empire 404
One code for all the United
States the only remedy to
cure American law of its
confusion and uncertainty 405
Objections against one and
only one system of codified
private law for the entire
United States: Objection 1
— Anglo-American law is
essentially non-codifiable 406
Objection 2 — A republic
cannot codify its law: to
do this necessitates a
monarchy or an empire . . . 407
Objection 3 — Uniformity of
American law can be ob-
tained by making state
- continued.
Section
legislation uniform: there
is no necessity for a uni-
form codified federal sys-
tem of private law 408
Objection 4 — A federal
codified jurisprudence ab-
rogating the private law
of the states is impossible
without impairing the' in-
tegrity of the several states 409
Objection 5 — The effect of
one federal code for the
entire United States would
cause American law to be-
come atrophied 410
The 19th century and present
revival of Roman law
study in England and
America :
(1) England 411
(2) The United States . . 412
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INTRODUCTION
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INTRODUCTION
CHAPTER I
THE VALUE OF ROMAN LAW TO THE AMERICAN
LAWYER OF TO-DAY ^
Roman law still lives in the modern world. In spite of the § 1
recent progress of American legal education there still lingers
in some places that now time-worn belief that a knowledge
of Roman law is of no use at all in the legal profession.
This view of the present value of Roman law is obviously
superficial. It is based on the assumption that, because the
Roman State and tribunals perished centuries ago, therefore
Roman law itself also has long been dead. Now this con-
ception of the fate of Roman law is historically inaccurate
and false. The spirit of Roman law did not die, — on the
contrary it is still very much alive in our midst. Moreover
i\ was the majestic and beneficent Roman law which more
than any other single element brought civilization back to
Europe following the barbaric deluge of the Dark Ages.^
From Rome we have inherited our conceptions of law, the
State, and the family.^ The high, firm, secure legal position
of woman in European and American civilization, which
makes our civilization superior to all other types, is a legacy
from the Roman law. The Civil Law was the first to work
out and recognize the equality of women with man.*
The inability of the superficial observer to discern the
- living Roman law of to-day is on account of its modern dress:
1 A part of this was published by the author in 60 Penn. Law Review
and Am. Law Reg., p. 194, Dec. 1911, under the title of The value of Roman
law to the American lawyer of to-day, and is reprinted by permission.
^ See Taylor, The medieval mind, London, 1911.
' See Chamberlain, The foundations of the nineteenth century, London,
1911, whose work has already gone through eight editions.
*Id.
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2 INTRODUCTION
in place of its original Latin garJD, Roman law is now clothed
in a twentieth century garment of various patterns 'such as
the Roman-German law, the Roman-French law and the
Ronian^nglish law. The past and present in law are inex-*'
Tficably woven together.
§ 2 Advantages obtainable from the study of the Civil Law. But
it may be argued that, admitting the survival of Roman law
into all modern legal systems, what actual, concrete, present
or future professional advantages can now be derived from
the study of Roman law? This is the answer: that Roman
law should be studied fervently with a view to the betterment
of our American law, which sadly needs improvement and
which in so many respects — particularly by its lack of codi-
■"fication — is greatly inferior to other modern legal systems.
Our system of precedents and case reports is breaking down
from its own weight and is becoming decadent^: how soon
will codification take its place? We must study Roman law
with this aim in view, as have the French and Germans, if
we wish our law to attain foremost rank — its proper station —
in the modern world.
Perhaps the most alarming portent of the twentieth century-
in the United States is the general unpopularity and growing
disrepute into which law and the administration of justice
are falling.' All this must be remedied or grave national
peril will slowly but surely follow. The remedy for profes-
sional incompetency is to destroy the evil at its very source —
before admission to the Bar — by requiring, as is already
inaugurated in America, a higher standard of character and
legal education. The profession of the law needs better men
with a wider professional horizon. Moral perceptions and
the sense of justice must be cultivated while the intellect is
being trained.
There is one study which combines ethical and intellectual
advantages, — Roman law. It is largely because of the past
non-attention to Roman law in America that the progress of
'• See Sheppard, The decadence of the system of precedent, 24 Harvard Law-
Review, pp. 298-305.
' See Coudert, The crisis of the law and professional incompetency, 3
American Law School Review, p. 31 (1911).
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VALUE OF ROMAN LAW 3
our law has been so difficult and at times almost stationary:
the Roman conception that law should be synonymous with
justice ^ has been too often overlooked. When the study of
Roman law shall be a prerequisite for admission to the Bar,
as in Great Britain and other European countries, the advance-
ment of our law will be so perceptibly stimulated that the
fires of American popular discontent with the law -will burn
low and soon die out.
Ethical value of Roman law. Of inestimable advantage is § 3
the ethical benefit derivable from Roman law study. To
conceive of the value of knowledge as based upon its utility
for the acquisition of wealth or material success is to com-
pletely overlook the chief purpose in all education, — ^ namely
the development of character as well as intellect. Twenty-
three centuries ago Plato laid the greatest emphasis on the
adapting of the curriculum in the most perfect manner for
the promotion of virtue.' This truth our own Milton restated
nearly 300 years ago in defining education as "that which fits
a man to perform justly all the offices, both public and private,
of peace and war."' How pertinent all this is when we turn
to legal education! The ideal lawyer is not one who has
obtained the best legal equipment for the practice of his pro-
fession, ■'if that professional training has not developed his
character along the lines of what is just and right.
What the world needs to-day is not more law, hut more justice.
The great danger to our profession is that its ideals are in^'
peril of becoming commercialized. In other words, the prac-
tice of law is in danger of becoming a mere trade and of losing
its professional nobility, thus accurately described by the
Roman jurist Ulpian: "When a man means to give his atten-
tion to law he ought first to know whence the term 'law' is
derived. Now law [jus] is so called from justice: in fact
. . . it is the art of what is good and fair. Of this art we
may deservedly be called the priests; we cherish justice and
profess the knowledge of what is good and fair, we separate
'See Digest 1, 1, 1, pr. and 1: jus (law) is so-called from justitia
(justice).
* See Republic, book ii.
' Tractate on education.
y
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4 INTRODUCTION
what is fair from what is unfair, we discriminate between what
is allowed and what isfoi'bidden, we desire to make men good,
not only by putting them in fear of penalties, but also by
appealing to them through rewards, proceeding, if I am not
mistaken, on a real and not a pretended philosophy."^"
The Roman jurists breathed deeply the pure air of
ethics; they taught the never-to-be-forgotten truth that
law and ethics are very closely related. An acquaintance
with the loftiest system of jurisprudence the world has
ever seen cannot fail to give first of all an enormous uplift to
character.
§4 Intellectual value of Roman law. The intellectual value
of Roman law study is incalculable, because it is many-sided.
The most salient advantages of a Roman law knowledge are
these three: the practical benefit, the philosophical benefit,
the strictly professional benefit.
§5 I. The practical benefit. There is a very practical side
of the intellectual value of Roman law: the study of Roman
law greatly assists the acquisition of a correct style of legal
expression. Does not the possession of a correct style help
a lawyer? The style of the Roman jurists is simple, clear,
brief, terse, nervous and precise. In the matter of legal
expression Roman jurisprudence is far superior to the Anglo-
American, and is worthy of imitation in this respect. It
should never be forgotten that "Law," as Sir Henry Maine
says,^i "is the chief branch of Latin literature; it was the only
literature of the Romans which has any claim to originality;
it was the only part of their literature in which the Romans
themselves took any strong interest and it is the one part
which has profoundly influenced modern thought."
§6 2. The philosophical benefit. There is also a far-reaching
philosophical aspect of the intellectual value of Roman law.
The study of Roman law inevitably produces an ever-widening
realization that Roman law is of enormous historical value to
modern nations. It is at hand, ready for use and able to shed
copious light on the solution of the numerous complex prob-
lems which confront the modern civilized world. How vast is
^0 Digest 1, 1, 1 pr. and 1 (Monro).
'^'^ Early history of institutions, p. 308.
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VALUE OF ROMAN LAW 5
the scope of this aspect will be briefly indicated. In his Vale- (§6)
dietary Roman law lecture at Oxford Professor James Bryce'^
most lucidly observed that "the Roman law is indeed world-
wide for it represents the whilom unity of civilized mankind.
There is not a problem of jurisprudence which it does not
touch : there is scarcely a corner of political science on which
its light has not fallen." ^^ With this great truth should be
carried the fact that the Roman social system more nearly
resembled our own of to-day than ours does that of England
two hundred years ago. Notice some of the resemblances
of Rome to us: at Rome the free man constituted the State;
there were no distinctions of rank except such as tenure of
office temporarily gives: ownership of land was allodial or
absolute; land was freely transferrable ; intercourse between
the Roman provinces was easy and frequent; and the face
of the Roman empire was dotted with rich and populous towns
and cities.^*
Roman life and the fall of Rome are and have been an object
of comparative study to the modern world. Authors,
teachers, preachers, lawyers, and even rulers constantly draw
upon Rome to substantiate a position taken as to some doc-
trine or theory of an economic, political, social, legal, or moral
nature : the evidence of this is enormous and shows no diminu-
tion of bulk or interest. For instance Professor Petrie, in
attacking trade-unionism, declares and offers much evidence to
prove that it, and not slavery and vice, wrecked the Roman
empire, and will wreck the modern world if it is not careful .^^
Another comparison is synthetically striking: "Rome, again,
can teach us that the elimination of militarism and of national
rivalries is not all unmixed good ; that socialism in many of
its forms has actually been tried, and that it drained the State
of industry, energy and vitality; that it is dangerous and in
the end disastrous, to encourage the unfit at the expense of
the fit and thrifty ; that it is a very false economy to pillage
^ Now Lord Bryce, formerly British Ambassador to the United States.
Viscount Bryce is the most famous of modern English Civilians.
^^ Studies, p. SQ8.
" See Morris, History of the development of law, p. 186.
'* See Janus in modern life, 1907.
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6 INTRODUCTION
s 6) the rich in the supposed interests of the poor ; and that finally
a bureaucracy is the worst of human plagues; . . . and
that the tax-gatherer was more destructive to the Roman
empire than all the barbarians together ... At any rate
these causes destroyed a magnificent and beneficent civiliza-
tion, and plunged the West of Europe into darkness for a long
1000 years. Who will venture to say that many of these
causes are not operating among ourselves to-day, and tending
in very ominous directions?" ^^ If our civilization is dis-
regardful of the ideals, warnings, and lessons given us from
past civilizations, and especially that of Rome, it can never
expect to reach a very high plane."
If philosophical comparison between the Roman and the
modern world be now turned specifically to jurisprudence,
what a grand opportunity to liberalize our preconceived ideas
of justice is afforded by instituting a comparison of Roman
and American law! It is a great privilege which we have of
placing Roman and our law side by side for parallel comparison
in order to cultivate the philosophical spirit of inquiry. This
results in stamping upon the memory that law is the subject
of a science. For instance, it is truly scientific to study the
centralizing movements of the Roman law in order to throw
light upon the question of how to behave with regard to the
tendency in the United States to centralize the constitutional
power of the Federal Union. i*
Moreover there is a most useful field for comparative study
of Roman and American law along this line, — ■ to observe
the effect upon each jurisprudence of the different conditions
of society under which the Roman and English systems
developed. For Roman law was the product of a highly
civilized people secured for centuries in the enjoyment of
peace within their borders ; while the English Common Law
is the product of a people emerging from barbaric conditions
of society, fond of strife, — it is non-philosophical and ethically
harsh, the very opposite of Roman law.
" The Spectator, p. 450, London, Sept. 25, 1909.
1' See Address of Prof. Tracy Peck, 20 Yale Alumni Weekly, p. 989.
'5 Leonhardt, American remembrances of a German teacher of Roman
law, 18 Yale Law Journal, p. 584.
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VALUE OF ROMAN LAW 7
Again, in dealing with rules of private law, if the American
and Roman rules as to a doctrine of law differ, the student
is led to ask why. This gives him a better view of the origin
and range of the American rule by perceiving wherein it varies
from the Roman, or perhaps the Roman rule will seem the
more just. By such methods as these we approach a com-
plete comprehension of the true nature of private law. We
cannot fail to observe as we proceed in our comparative study
that the Romans were the first "to perfect a completed system
of private law,"^' a jurisprudence which has best approximated
the conception of what private law would be if the legislator
were perfectly wise.
3. The strictly professional benefit. There is also a §7
strictly professional side of the intellectual value of Roman
law. It is concerned with the influence of Roman law on
American law. This is a wonderfully fascinating aspect.
It is beyond all others of vital interest to American lawyers.
The study of Roman law soon awakens and then continually
quickens this great perception : that the present development
of American law into a jurisprudence is almost entirely due
to its assimilation of Roman jurisprudence, and that what
American law needs most to-day is more of the invigorating
eternal influence of Roman law. This strictly professional
point of view covers the entire history, past and present, of
Anglo-American law. It embraces most extensive and varied
details. And it will reveal that the goal of Roman law
influence on American law has not yet been reached. For
a twentieth century lawyer who wishes to reach the front
rank of his profession an acquaintance with the Civil Law
forms to-day a highly important element of his necessary
legal equipment, and will have to be obtained either before
or after admission to the Bar.
Yale was the first American law school to recognize the
professional value of Roman law to the American lawyer.
For many years Yale was as a light shining in ^ross darkness.
But the blackness of ignorance and prejudice is now being
rapidly dispelled. The leading American law schools, such
as Harvard, Columbia, Chicago, Pennsylvania, Stanford, and
^' See Lefroy, Private law, etc., 20 Harvard Law Review, p. 606.
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8 INTRODUCTION
(§7) numerous minor schools and colleges are now giving instruc-
tion in Roman law. Moreover this Roman law movement
has proceeded still further. Already in some American states,
as in England, a knowledge of Roman law is required for
admission to the Bar .2"
Ignorance and prejudice — so potent in past centuries in
England and America — no longer obscure the great debt of
Anglo-American law to the law of Rome and the truth that
knowledge of Roman law is knowledge of our own law. It
is a fact that the beginner in the law will make almost as
rapid progress in American law by starting with Roman as
he would if he began with our own law : for, in learning Roman
law, one learns the elements of law in general and therefore
of Anglo-American law in particular .^1 The Institutes of Jus-
tinian are to be best explained as a common source of the
fundamental ideas of Anglo-American as well as Continental
European jurisprudence. "It must be owned," said Lord
Chief Justice Holt, "that the principles of our law are borrowed
from the Civil Law and therefore grounded on the same reason
in many things. "^^
England and the United States, although not so com-
pletely as the countries of Continental Europe and Latin
America, are to-day under the dominion of Roman juris-
prudence. Anglo-American law, like French or German,
is Roman law of the twentieth century.
A cursory study of Roman law reveals the great debt of
our law to it. The American law of Admiralty, of Wills and
Probate, can show a direct descent from the imperial juris-
prudence of Rome. From the Civil Law Lord Mansfield intro-
duced into English Common Law much of our Law Merchant
or Mercantile Law. The basic principles of Equity are of
Civil Law origin. The fundamental doctrines of the law of
Persons (including Corporations) and of our law of Property
" Louisiana and Kansas. Some Roman law instruction is necessary
properly to apprehend the law of California,Texas, Porto Rico, and the
Philippines. See Rules for admission to the Bar, pp. 56, 62, 18, 160, 140,
143 (West Pub. Co., 1913).
2> Bryce, Studies, pp. 895, 896.
22 12 Modern Reports, 482; Bryce, Studies, p. 871.
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VALUE OF ROMAN LAW 9
(especially Obligations, Contracts, and Successions) came from (§7)
Roman law. The basis of Anglo-American law — if not its
predominant element — is the Civil Law of Rome.
More than this. As a country we are now repeating the
activity of Rome in legislation. The development of our
American law into jurisprudence has been, especially during
the last century and a half, most usually by a return to the
Civil Law of Rome. And this returning is still in progress.
The most striking illustrations — and there are many — are
these three. (1) The feudal Common Law ideal that husband
and wife are one and that one is the husband, has been repu-
diated in nearly all American states. Married women now
have restored to them the power to control their separate
property independently of their husbands. And this is simply
the re-enactment of the doctrine of Roman law as to the
freedom of married women. (2) Every American state has
laws of inheritance similar to those of Rome. (3) The most
pressing terrible necessity of our times is how to frame out
of the gigantic mass of our reported case law an organized
body of rules, — in other words how to codify our law. All
civilized countries of the world except Great Britain and the
United States have followed the example of Rome and codified
their law. France, Germany, Spain, Italy, Austria, the Latin-
American States, and Japan have adopted the Roman Emperor
Justinian's solution of this problem. Our lawyers are being
driven — whether they like it or not — to examine the means
and results of codification. In the future — the immediate
future — those in the legal profession who can do this work
will reap its rewards.
Finally, no one can intelligently practise law in Louisiana,
Texas, New Mexico, Arizona, California, or competently
investigate the law of Porto Rico, the Philippines, the Cana-
dian province of Quebec, and all the Latin-American republics
without a knowledge of Roman law, out of which was carved
the French or Spanish law which is the basis of the law of
these states, territories, and countries.
The strictly professional value of Roman law to the Ameri-
can practitioner at the Bar looms larger as our investigation
continues. A knowledge of Roman law is now bringing from
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10 INTRODUCTION
(§7) foreign sources professional advantages which are constantly
increasing. Speedy and frequent communication is making
the world rapidly smaller. Business long ago ceased to be.
confined by national boundary lines. Law business of an
international character is continually increasing in our large
cities, especially those along the Atlantic seaboard. Not
only does Roman law throw light upon many of the doctrines
of international law,^^ but it is the key which unlocks the legal
systems of modern Continental Europe as embodied in their
Modern Codes. These codes have been imitated in Latin-
America, Asia, and Africa. The professional benefit arising
from a familiarity with the Modern Codes is self-evident.
The field of professional usefulness open to the twentieth
century American Civilian is now extensive. Its limits are
constantly expanding. An abundant harvest of increasing
opportunities of power as a legislator and of international
leadership at the bar awaits the American lawyer possessed
of a Roman law knowledge.
'' See Phillipson, The international law and custom of ancient Greece and
Rome, London, 1911.
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VALUE OF LEGAL HISTORY 11
CHAPTER II
THE VALUE OF LEGAL HISTORY
Law a science governed by evolution. The maxim of the §§
philosophers Ex nihilo nihil fit — 'something does not come
from nothing' — may be taken as the keynote to all legal
history. To know how the development of law occurred
not only imparts a realization of the incalculable benefits
given to the world by lawyers throughout the ages, but also
stamps upon the mind an indelible impression that law is a
science developed by evolution. Maitland, the most brilliant
of English legal historians and whose works are an imperish-
able monument of the nineteenth century, thus truly em-
phasizes the value of legal history: "Strenuous endeavors
to improve the law are not impeded but forwarded by a
zealous study of legal history. . . . To-day we study the
day before yesterday, in order that yesterday may not paralyze
to-day, and that to-day may not paralyze to-morrow. "^
'The memory of mankind' as to law reveals the fact that
subsequent nations are large debtors to earlier peoples for
their law and j urisprudence. The quantum of legal knowledge
is never lost; it descends from age to age; from people to
people ; it has periods of marked growth and progress ; it also
has periods of obscurity, followed usually by re-emergence,
recovery, and further progress.
The history of modern law is but an offshoot of the history
of ancient law. The line of demarcation is not easily dis-
cernible and may be invisible. "Ancient" and "modern" are
at best but relative terms: that which seems to be "modern"
may be found to be quite "ancient." Not only do all modern
nations enjoy to a greater or less extent a heritage of Roman
law, but Rome herself was debtor to Greece for legal prin-
ciples. And Greece in turn probably borrowed from Babylon
via Egypt.
'■ Collected papers, "A survey of a century," vol. iii, pp. 438-9.
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12 INTRODUCTION
§ 9 Scope of our investigation. The scope of our investigation
is intended to cover two fields of legal history : the develop-
ment of Roman law, and the survival or reception of Roman
law in modern law. In reality these two fields, owing to their
adjacent situation, are but one territory : the history of modern
law is the last and widest phase of the history of Roman law.
Our investigation is intended to constitute a historical intro-
duction to the history of law from Roman to modern times.
An exhaustive treatment of all the multitudinous details which
a complete history of law involves is impossible on account of
lack of space. Our investigation will necessarily lead to an
acquaintance with the legal literature of Rome and all modern
countries.
§10 I. The development of Roman law. A brief consideration
of the ante-Roman sources of law will preface our investiga-
tion of the development of Roman law proper. This will be
followed by an account of the origin of Roman law as the
local law of a city, its gradual growth to a complete system
of jurisprudence, and its establishment as the law of the
world. The causes of this evolution will be ascertained. The
work of the Roman Emperors in transforming the chaos of
Roman law into order and certainty will be examined.
Special attention will be paid to the work of the Roman
jurists, the influence of Greek culture and philosophy on
Roman law, and how Christianity affected Roman law.
Moreover that vexed modern question of the right method
of law study will be investigated from Roman sources. The
Roman answer will be found to solve all our difficulties; it
has lost none of its virtue by lapse of time.
The inevitable outcome of all this will be a profounder
realization of this fact: that "the genius of the most legal-
minded people the world ever has known developed step-by-
step out of the archaic customs of a petty tribal town until
the whole of the civilized world prospered under the lofty
principles of justice and right worked out by the great lawyers
of the Republic and the Empire."^
§11 2. The survival or reception of Roman law in modem law.
A historical account of the universal descent or reception of
* Commemorative addresses A. S. Wheeler, 1905 (E. V. Raynolds), p. 21.
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VALUE OF LEGAL HISTORY 13
Roman law into all modern systems of law will conclude our (§11)
investigation. "Rome," says Ihering, "conquered the world
three times: first by her armies, second by her religion, third
by her law. This third conquest, most pacific of all, is per-
haps the most surpassing of all." ^ A work of judicial con-
quest has already been completed, the magnitude of which
is most amazing. The modern domains of Roman law extend
far beyond the vast empire of the Caesars. The entire con-
tinent of Europe, the entire New World with its twin Americas,
and an ever increasing portion of Asia and Africa constitute
the provinces of the vast modern realm of Roman law. In
its palmiest days the population of the Roman Empire num-
bered about 54,000,000*; to-day over 870,000,0006 people,
or sixteen times the population of the Roman Empire, are
living under law very largely traceable to Roman law. All
civilized and even many semi-civilized peoples of modern times
bear witness to this universal survival or reception of Roman
law. We shall investigate the facts of this Survival as found
in English, French, German, Spanish, Latin- American, Italian,
Russian, Swiss, Scandinavian, Japanese, Roman-Dutch, and
other systems of law.
Of the whole earth nothing now remains unconquer'ed by
the powers which may be called the offspring of the Roman
Empire, but Abyssinia, Japan, Turkey, and China. In Abys-
sinia much of Christianity and Roman law still remains to-day ;
Japan has obtained from Western civilization among other
things her codes of law largely Roman in essence; and even
degenerate Turkey has been indirectly influenced by Roman
law both as surviving in Mohammedan law and received in
her modern codes modeled on the Codes Napoleon. Conse-
quently these three Oriental countries are after all not wholly
without the pale of Roman jurisprudence. All the countries
of the world save China, and eventually China will be included,
^ See Brissaud, Cours d'Mst. gen. du droit frangais, vol. i, pp. 192-3.
* Brodie's estimate of the Roman Empire A.D. 14. See Harper's Book
of facts, "population."
5 World almanac 1916, pp. 450, 451. This estimate includes the inhabi-
tants of Europe, both Americas, India, Egypt, Australia, New Zealand,
South Africa, Japan.
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14 INTRODUCTION
have now come under the rule of the Roman laws framed in
the Eternal City and codified by Justinian. All this reveals
the eternal character of Roman law, which, firmly retaining
the world it has conquered, changes merely its dress with the
passing centuries. "The conquest of the world by the Roman
Empire has passed away, but the conquest of the world by
Roman law has not passed away and there is no sign that it
will pass away so long as mankind endures. It rules to-day
a wider empire than the Caesars ever knew, and its empire
is ever widening."^
§ 12 The world-mission of Roman law since Justinian. Gibbon's
most wonderful History of the decline and fall of the Roman
Empire bears a misnomer in the title: it should be entitled
"The history of European civilization." ' But to use the
expression "History of Roman law since Justinian" to describe
the survival of Roman law in modern law is quite accurate,
for it is but another expression for "The history of modern
law." Roman law survived the deluge of the barbarian inva-
sions, which overwhelmed the Roman Empire ; it furnished the
light of progress in the darkness of the Medieval Ages; and
it was revived and received with fervor and was studied as
never before, — the effects of this revival have not yet passed
away in the modern world. Roman law since Justinian has
had and still possesses a special world mission of its own,
which, as the legal history of modern countries reveals, is
either accomplished or in process of being fullfilled. This
world-mission will be seen to have been effectual along man>'
lines of human activity — all making for progress in medieval
and modern law. Some of these are of profoundest import-
ance, others are of a minor value.
The minor features of the world-mission of Roman law
since Justinian are numerous. The oldest things in modern
Occidental civilization are Roman law and the Christian
Church. It was Roman law which to a very large extent
caused the Revival of Learning and the Renaissance, — that
great movement which marks the beginnings of modern
times. The oldest educational institution in the modern
^Commemorative addresses A. S. Wheeler, 1905 (E. V. Raynolds) p. 21.
' A favorite expression of the late Prof. A. S. Wheeler of Yale University.
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VALUE OF LEGAL HISTORY / 15
f
world is the law school. To study law — Roman law — was
ordinarily the chief purpose for which medieval universities
were founded. The first European university — Bolognaj:^
began with a law school, to which other faculties were sub-
sefjuently added.* And wherever Roman law was revived
universities with law schools sprang up, as we shall see.
Another minor feature of the world-mission of Roman law
since Justinian is the long roll of medieval and modern jurists,
to whom by reason of their Roman law knowledge are due
creations or betterments of the law of their age. These are
the men who actually did the work of recovering Roman law
for posterity's benefit. And our investigation would not be
complete without some mention of this galaxy of most illus-
trious Romanists and their special labors.
But it is the following major features of the world-mission
of Roman law since Justinian which should be emphasized
because these have directly caused enormous contributions
to the progress of modern law.
1. To mold the private law of every modem State. This §13
explains why the Roman element is the predominating element
in all modern law.
2. To cause uniformity of law in everj^ modern State, — § 14
one law for an entire country. This is a strikingly large
feature of the modern influence of Roman law. Some coun-
tries, such as France, Germany, and Italy, have fully realized
this ideal; others, like Great Britain and the United States,
are still a long way from this realization. Not only has the
modern influence of Roman law caused uniformity of law
within a country, but to-day it is also operating to cause the
laws of different countries to become uniform and cease to be
diverse. It was Austin who first made so plain that there
is in the modern world a universal jurisprudence, to which
all systems of law including the English must tacitly conform.
This is but another side of the world influence of Roman law.
The progress of the world is toward uniformity of law.' Each
modern country, as did Rome herself, has developed its
law under the stress not only of internal politics, but by
' See Colquhoun, Roman civil law, § 136.
» Bryce, Studies, p. 123.
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16 INTRODUCTION
ii4) reason of the external influence exerted upon it from other
countries.^" For instance, the catholicity of jurisprudence
administered in the two greatest courts of the world cannot
fail to have eventually a reflex effect of paving the way for
universal uniform laws.
The world's greatest court is the British Privy Council
Judicial Committee, which possesses jurisdiction over nearly
400,000,000 people." In its modest Downing Street home,
close to the London residence of the Prime Minister, the Privy
Council frequently deals with questions of French law which
prevails in Canada, Mauritius and Seychelles, questions of
Roman-Dutch law which is the common law of Ceylon, South
Africa, and Guiana, and questions of Mohammedan law which
is found in India and into which to some extent Roman law
has filtered. By reason of this varied jurisdiction the Jus-
tinian Corpus Juris, the Code Napoleon, Grotius' Jurispru-
dence, or Pothier's Commentaries may be appropriately cited
as authorities before this majestic imperial British tribunal.!^
The next largest court in the world is the Supreme Court
of the United States with a jurisdiction over nearly 110,000,000
people.^' In addition to entertaining cases in American law,
this august court may hear cases involving French law which
is found in Louisiana, and Spanish law which is the common
law of Porto Rico and the Philippines and partly survives
in several of our southwestern American states.
The modern world has learned to think 'world-wise'
largely because of the modern influence of Roman law. As
Ferrero rightly says: "Rome is still in the mental field
the strongest bond that holds together the most diverse
peoples ... ; it unites the French, the English, the
Germans in an ideal entity which overcomes in part the
diversity in speech, in traditions, in geographical situation
" World almanac 1916, p. 451.
^ The Judicial Committee of the Privy Council hears not only Colonial
appeals but also appeals from the ecclesiastical courts of England. But all
other English appeals, all Irish and Scotch appeals go to the House of
Lords, which is the supreme appellate tribunal for Great Britain.
" Id. p. 450.
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VALUE OF LEGAL HISTORY 17
and in history." i* To Rome's influence in the modern world
is due in no small measure the acknowledged fact that Europe
and America are to-day "for intellectual and spiritual purposes
one great federation," as Matthew Arnold said.
3. To embody the uniform law of every modem country § 15
in a codification. To bring about a system of codified law
in modern countries is perhaps the crowning feature of the
modern influence of Roman l&w. How effective this has been
is seen at a glance, when attention is directed to the fact that
nearly all modern civilized States to-day possess a codified
law. The way to accomplish a codification suitable to our
age was first blazed by the French Codes Napoleon only a
little more than a century ago, — ■ in 1804. And in this path-
way have since followed nearly all the modern civilized
nations. Even the two great exceptions among nations —
Great Britain and the United States — are slowly yielding
to this universal trend toward codification, as will subse-
quently be shown.
The leaven of Roman law influence is seen at work in
modern American law, in that lucid description of a codi-
fication made by David Dudley Field: "To reduce the bulk,
clear out the refuse, condense and arrange the residuum, so
that the people and the lawyer, and the judge as well, may
know what they have to practise and obey — this is codi-
fication, nothing more and nothing less."i* To lose this price-
less classical heritage in law and politics out of our civiliza-
tion would be the commencement of a reversion to barbarism.
" Characters and events in Roman history, p. 257.
15 Legal Bibliog ., n. s. 10, p. 11 (June 1912).
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18 INTRODUCTION
CHAPTER III
ANTE-ROMAN SOURCES OF LAW
§ 16 Babylon probably the real mother of law. The question of
the origin of Roman law is now not easily answerable. But
one thing is quite certain other nations of an earlier date
than Rome had a law of established and well developed prin-
ciples long before Roman history commences. The ultimate
beginnings of law are undoubtedly ante-Roman and non-
Roman.
One of the greatest German Romanists of our era — the
renowned Ihering — ^was thoroughly convinced that if we
would search out the origins of Roman law we must study
Babylon. "^ This is also the view of two other eminent modern
Civilians, the French Revillout^ and the American Morris.'
And even a cursory examination of the recently discovered
Code of Hammurabi* reveals that over 4000 years ago Baby-
lon or Chaldaea had a complete system of law and courts.^
Agency, bailment, banking, carriers, pledge, warehousemen,
and navigation were topics familiar to Babylonian law.
§ 17 Influence of Babylonian law on Eg3T)tian law. A well
developed Egyptian law antedates Greek law. It is now be-
yond dispute that never yet has civilization evolved from
barbarism without external assistance. That Chaldaean
'■ Vorgeschichte der Indo-Europder (1894) ; Maitland, Prologue to a history
of English law, 14 Law Quart. Rev., pp. 13-33; Essays on Anglo-American
law, vol. i, p. 7.
'Les origines egyptiennes du droit civil romain (particularly p. vi),
Paris, 1912.
' History of the development of law, pp. 11-86, Washington, 1909. Judge
Morris lays emphasis on Israelitic as well as Babylonian law as an early non-
Roman source of law, although the second is the more ancient source.
* Found in 1902 at Susa, the old Babylonian capital. It is now on
exhibition at the Louvre, Paris.
' See Harper's English translation of The Code of Hammurabi, King of
Babylon, about 2250 B. C, Chicago, 1904.
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ANTE-ROMAN SOURCES OF LAW 19
civilization was largely influential in originating and shaping
Egyptian civilization is historically correct. That Egyptian
civilization in turn exercised a potent influence upon Greece is
well known. That Greek civilization served in many respects
as a model for the later Roman civilization is equally true.
The influence of Babylonian law traveled beyond the
borders of Babylon : eastward into the law of Hindustan and
especially the famous Code of Manu^; westward into Egyp-
tian,^ Phoenician, and Judaean law. In course of time Egypt
developed an elaborate system of private law the details of
which were carefully worked out.* The Egyptian law of per-
sons,' property, 1" obligations, ^^ and actions, ^^ is scientifically
constructed and excellent in character. Egyptian law has
contributed much to the philosophy of law.^' The Greek
historian Diodorus" mentions five Egyptian monarchs as
great legislators: Menes, Sasychis, Sesostris, Boccharis,
(called the Wise), and Amasis.^^ The last two belong to the
period of the late monarchy. The view that much of Babylon-
ian law descended into Rome" via Egypt and Greece must not
be treated lightly or with disdain.
Influence of Egyptian and Phoenician law on Greek law. § 18
Archaeological research in Greece since 1870 has revealed to
us the very early Minoan and Mycenaean ages of Greek
6 Written between 200 B.C. and A.D. 200. See Morris, History of the
development of law, p. 75 et seq.
' See Revillout, Precis du droit Sgyptien, vol. i, p. xviii, note (1).
8 Revillout, Precis du droit Sgyptien, 2 vols., Paris, 1903, see also pertinent
note (1) , p. xviii; also his Origines Sgyptiennes du droit civil romain, especially
pp. 97-149.
9 Id., vol. ii, part 2, pp. 881-1151.
"7d., vol. i, part 1, pp. 1-776; vol. ii, pp. 777-880.
" Id., vol. ii, part 4, pp. 1150-1355.
12 Id., vol. i, part 5, pp. 1356-1508.
" Id., vol. ii, part 6, pp. 1509-61.
" Diodorus Siculus, a contemporary of Julius and Augustus Caesar,
was born in Sicily. He traveled in Egypt 60-57 B.C.
1* All these and their legislation are discussed by Revillout in his Precis
du droit Sgyptien.
"See Revillout, PrScis du droit Sgyptien, vol. i, p. xviii, note (1), also
pp. xix-xxi. The text of his two volumes contains very frequent compari-
sons of Roman and Egyptian law.
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20 INTRODUCTION
civilization and has pushed back the starting point of Greek
history to 3000-4000 B.C. SchHemann's excavations at Troy,"
at Mycenae,^* and Tiryns in ArgoHs,^* and those of Evans in the
island of Crete ^'' confirm the ancient traditions that Greece was
debtor to Egypt and Phoenicia for many of her earliest
principles of art, religion, and law.^^ Such was the inevitable
outcome of the active commerce of these maritime civilized
countries with early Greece.^^ From Phoenicia came those
ancient Greek rulers, the semi-legendary Minos of Crete and
Cadmus of Thebes and Illyria. In later historic times the
famous Greeks Pythagorus and Herodotus visited and were
familiar with Egypt, — the former living, it is stated, for
twenty-two years in the land of the Pharaohs.
§ 19 A well developed Greek law antedates Roman law. The
value of ancient Greek law as a branch of comparative juris-
prudence has been too long ignored. Perhaps this is due to
the fact that no systematic collection of Greek laws has
survived to us. An examination of the law of Greek States
reveals that long before the 5th century B.C. Roman law of
the XII Tables Greece had developed a law of persons, family
law — ^ including adoption, marriage, and inheritance — -law
of property and contracts, constitutional law, and inter-
national law,^' all of which were far superior to the then law
of Rome and became influential in assisting the subsequent
development of Roman jurisprudence. That most eminent
modern authority on Athenian law, the French Beauchet,
lays much stress on the great debt of Roman law for legal
ideas and conceptions borrowed from Greek jurisprudence.^
" 1870-73.
" 1876.
" 1884.
2» Since 1900.
^' See Hogarth, Aegean civilization (in Encycl. Britan." vol. i, pp. 245,
247, 248, 250); Evans, Crete (in 8 Encycl. Britan." pp. 421, 422, 426);
Walker, Greece, (in 12|Encycl. Britan."p. 441); Revillout, i'c&M du droit
egyptien, vol. i, pp. 484, 565; Howe, Studies in the civil law^, p. 87.
*^ Walker, Greece (in 12 Encycl. Britan." p. 445).
^^ See Phillipson, International law of Greece and Rome, 2 vols., London,
1911.
^ See Beauchet, Hist, de droit privi de la repub. athen., 4 vols., 1897.
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ANTE-ROMAN SOURCES OF LAW 21
But the Romans were not slavish imitators, — they trans-
formed what they borrowed into a thoroughly Romanized
product fashioned by the Roman consummate legal genius.
As recently as A.D. 1895 in their revision of the Code of
Civil Procedure, the New York commissioners to revise
declared that the essential principle of trial by jury was
probably borrowed by the Romans from Athens — the
Roman jiidices who decided questions of fact resemble the
Greek dicasterion (SiKaor^joiov) .^ Finally, it should never
be forgotten that the modern ideas of freedom, democracy,
and the duty of the individual to the State are based on the
writings of a few great men of ancient Greece.
The most important Greek law is that of Crete, Rhodes,
Sparta, Magna Graecia or Southern Italy and Sicily, Athens,
and Egypt after the Macedonian conquest.
Crete. Manifestation of law in Greece begins with the §20
earliest age of Greek civilization, — the Minoan.^* About
1500 B.C. there reigned in the island of Crete a semi-legendary
King, Minos, whose name became to the Hellenes symbolical
of law and legislation. His famous code of laws^' exercised
great influence on the law of subsequent Greek States as a
model law. In his palace at Cnossus has been recently un-
covered the celebrated labyrinth constructed by Daedalus.^*
The 7th century B.C. Cretan laws known as the Laws or
XII Tables of Gortyna discovered in 1884 reveal a very well
developed family and property law.^'
Rhodes. Less than seventy-five miles to the northeast §21
from Crete and directly in the usual course of mariners from
Phoenicia to the Aegean sea lies the island of Rhodes, a mari-
time State and at one time mistress of the Mediterranean in
early Hellenic history about 900 B.C.^" But it was the
Rhodian law which has given this little island everlasting
=» 62 Albany Law Journal, pp. 390-99, 408-14.
=« Evans, Crete (in 8 Encycl. Britan.^^ p. 426).
2' Herodotus, iii, 122; Thucydides, i, 4.
28 Evans, Crete (in 8 Encycl. Britan." p. 422).
2" See Roby, XII Tables of Gortyna, 2 Law Quart. Rev., p. 135 (1886),
who gives an English translation thereof.
'"See Diodorus, v, 55-9; xiii-xx passim.
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22 INTRODUCTION
fame. This law was composed of rules as to maritime transac-
tions. '^ From Rhodes the Romans confessedly derived their
maritime and admiralty law.'^ Consequently, as all modern
law on this subject is based on the Roman, there is a per-
petuity in our admiralty, and maritime law of about three
thousand years, all of which is a remarkable tribute to the
enduring excellence of Rhodian law.
§22 Sparta. Institutions and laws were prescribed for the
Lacedaemonians by Lycurgus, the traditional date of which is
884 B.C. The inspiration of the Spartan lawgiver is the
Cretan laws of Minos.^' Lycurgus reflects the Creto-Egypto-
Phoenician influence.^ Lycurgus' laws were, however, merely
a body of traditional observances; for, according to Plutarch's
biography,^* these were never committed to writing.
§23 Magna Graecia or Greek Southern Italy and Sicily. In
the 7th century B.C., Greek law was reduced to writing, this
symptom of progress being first manifested in the western
Greek colonies outside of Greece proper. In 663 B.C. Zaleucus
gave a written code to the inhabitants of Locri Epizephyrii.
Over two centuries later the people of Thurii adopted this same
code. The Sicilian Charondas became the lawgiver of Catana
and of other Greek colonies in both Italy and Sicily.'^ Andro-
damas of Rhegium gave laws to the Chalcidians of Thrace
in Greece proper." And Pythagoras'^ in 529 B.C. became the
legislator of Crotona, a Dorian colony in Southern Italy
situated on the Gulf of Tarentum. Returning home to Samos
from his travels in Egypt and other foreign lands, he was
driven away, according to tradition, by the tyranny of Poly-
crates and finally emigrated to Magna Graecia in the West,
settling in Crotona. Here at the invitation of the citizens he
'' The leading authority in English on the Rhodian law is Ashburner,
The Rhodian sea law, Oxford, 1909.
32 See Dig. 14, 2.
''Morris, History of the development of law, pp. Ill, 112.
^Id.
'^Lycurgus, 13.
=6 Aristotle, Politics, ii, 12, 11, vi (iv), 13, 2.
" At about this time Philolaus of Corinth became lawgiver to the
Thebans. See Aristotle, Politics, ii, 12, 8-14.
'^ Born c. 582, died c. 497.
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ANTE-ROMAN SOURCES OF LAW 23
established republican institutions along philosophical lines,
combining aristocratic and socialistic principles. It is inter-
esting to note that this attempt of the great Samian phil-
osopher to give practical operation to the doctrines of socialism
did not long survive his death.
Athens. In the year 621 B.C. was compiled and published §24
the celebrated code of the Athenian Draco. To the Athenians
is given the credit of the invention of lawsuits by a Roman
writer.'^ Draco's laws were extremely severe, and this explains
the peculiar modern significance of harshness attached to our
"Draconian." By the laws of Draco a creditor was given the
right to seize the person of his debtor as security for his debt.
Some thirty years later in 594 B.C. appeared the greatest
legislator of Athens, Solon ^^ the most famous of the "Seven
Wise Men of Greece." Chosen to revise the code of Draco,
Solon prepared a new code of law which was the best law in
all Greece. Solon's legislation affected both the private and
public law of Athens. He remodeled the courts and gave
•to every citizen the right of appeal to them. Solon was the
first to give the right to Athenians to make a will.^^ By the
laws of Solon land descended equally to all male children and
to females if there were no male offspring. He forbade slavery
of debtors by their creditors. He provided for the appoint-
ment of guardians of orphans. Adoption was authorized by
law, and adopted children inherited from their adopter
equally with other children. He prohibited any increase of
interest on money lent when once fixed. His punishments
for defamation and theft resemble the same in Egyptian law
whence these were probably borrowed .^^ Solon's laws were the
basis of Athenian institutions and legislation down to the
Roman conquest of Greece, suffering only two revisions, one
by Aristides about a century after Solon's death, the last by
Pericles a half century later. Solon's laws were accepted
39 Aelian, Var. Hist, iii, 38.
*" To him is attributed the profound maxim " Know thyself."
" See Plutarch, 5oioM, 21 ; Maine, Ancient law, ch. vi. This right was,
however, Hmited to citizens without male descendants.
*' As to other borrowings from Egyptian law, see Revillout, Precis du
droit egyptien, vol. i, pp- 484, 565.
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24 INTRODUCTION
finally by most of the other Greek States, especially the
Ionian, and came to exercise great influence on the subsequent
law of Rome.
! 25 Egypt after the Macedonian conquest. When Greece under
Alexander the Great overcame in the 4th century B.C. the
whole of civilized Asia and Africa, Egypt herself was thereafter
ruled by the Greek Ptolemies for four centuries until Cleo-
patra's tragic death to avoid gracing the triumph of Augustus
Caesar. Copies of wills and other legal documents of Greek
soldiers settled in Egypt under the early Ptolemaic Pharaohs
prove that the art of legal conveyancing was very familiar
to the Greeks as early as the 3d century B.C. and earlier.
For instance, in their wills is used that familiar modern ex-
pression "being of sound mind and good understanding"
(vocov Koi <f)povS)v).^
" Conveyancing under the Ptolemies, 8 Law Quart. Rev., p. 56. As to
the influence of Macedonian-Egyptian law, see Revillout, Pricis du droit
egyptien, vol. i, pp. 603-14.
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PERIODS OF ROMAN LAW 25
CHAPTER IV
PERIODS OF THE HISTORY OF ROMAN LAW
Two periods. The history of Roman law and its descent §26
into modern law is divisible into two great periods or parts:
Roman law as a local city law, and Roman law as a world law.
These periods of the history of Roman law do not ignore the
subdivisions into various Roman eras, or the decisive changes
in the government of Rome, or the modern nations which have
arisen since the destruction of the Roman Empire. Further-
more, this arrangement of the subject emphasizes the actual
juridical connection between the ancient and modern worlds.
Roman law as a local city law. The first period extends from § 27
the founding of Rome in 753 B.C. to the consolidation of
Italy with Rome in 89 B.C. This is the period of the ancient
Roman law. It embraces all of the Monarchy and nearly all
of the Republic, the last half century of the latter excepted.
Roman law as a worid law. The second period or part of § 28
our history commences in 89 B.C., when Roman law became
truly territorial and national by the union of the Italian
peninsula with Rome. It embraces the last half century of
the Republic and the whole of the Empire, the Eastern Empire
beitig finally destroyed in A.D. 1453 by the Turks. It also
embraces the subsequent fate of Roman law after the barbarian
Teutonic overthrow of the Roman Empire in Western Europe.
An account is given of the survival and revival of Roman law
in medieval and modern times, including the development of
modern Anglo-American law and the Modern Codes of
France, Germany, Italy, Spain and other civilized countries
through the fusion of Teutonic and Roman law.
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PART I
ROMAN LAW AS A LOCAL CITY LAW—
THE ANCIENT ROMAN LAW: 753-89 B.C.
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PART I
ROMAN LAW AS A LOCAL CITY LAW—
THE ANCIENT ROMAN LAW: 753-89 B.C.
A period of over 650 years. Roman law as a local city law § 29
— the ancient Roman law — had a duration of over six and
a half centuries. These include the almost entirely legendary
period of the Roman Monarchy and all the historic period
of the Roman Republic, except the last half century. As a
result of the Social War, the Italians in 89 B.C. obtained the
rights of Roman citizenship. Thereafter Roman law took
on a national character and no longer remained merely the
law of a city.
CHAPTER I
THE ROMAN MONARCHY: 753-510 B.C.
Semi-legendary part of the ancient Roman law. The §30
traditional date of the founding of Rome is 753 B.C. Romu-
lus, the founder, established a monarchical form of government
which lasted for nearly two and a half centuries. In this semi-
legendary era were the beginnings of the ancient Roman law
or archaic jus civile.
Credibility of early Roman history. All Roman history, not § 31
only of the Monarchy but of the Early Republic, has been
fiercely attacked as incredible by the English Sir George Lewis,'
the Italian Pais,^ and the French Lambert.' To a large extent
their views are correct, and as a result all future historians
' See his Credibility of Early Roman history.
^ See his Storia di Roma, pp. 550-605.
3 See Nouv. revue hist. (1902), pp. 646-76, 631-5; Revue generate du
droit (1902), nos. 5 and 6.
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30 THE ROMAN MONARCHY: 753-510 B.C.
must on no account ignore their conclusions. Fact and fiction
are so closely interwoven in early Roman history that it is
most difficult to-day to separate traditions from actual
occurrences. But the principal features of early Roman history
are not falsified ; that there was a Monarchy, that it was over-
thrown — the traditional date being 510 B.C., that there was
a struggle between the two Roman classes of patricians and
plebeians, that a Republic was instituted with a senate and
two legislative assemblies — the comitia curiata and the com-
itia centuriata — all three coming down from the regal period,
are not fables.
§32 Royal statutes (leges regiae). The jurist Pomponius has
described the preservation of the whole of the statutes of
Romulus and subsequent kings in a collection known as the
jus Papirianum, which compilation he says^ was extant in
his own time, — that of Hadrian. But this collection of royal
laws mentioned by Pomponius was probably a private apocry-
phal compilation made, toward the close of the Republic,^
of the "copies of ancient matter which had been thrown into
the form of rules or ordinances."^
That there were royal statutes which are sources of Roman
law is without doubt true.'' Certain isolated fragments of
royal statutes are extant,* such as those credited to Servius
Tullius on contracts and delicts.^ Probably the royal laws
were in the nature of "ordinances made by proclamation,
. and in some cases perpetuated by public inscription." Enact-
ments by a popular legislative assembly are improbable in the
Regal period of Roman history. "^^ Our scanty remnants of the
" Dig. 1, 2, 2, 2.
^ Sohm, Institutes of Roman law (Ledlie*), § 12, p. 54, note 4; Girard,
Textes^, p. 3, § 1; Mommsen, Staatsrecht, §3, pp. 46-50; Karlowa, Rom.
Rechtsgeschichte, pp. 105-7; Krueger, Quellen, etc., pp. 3-8: Girard,
Manuel^, pp. 14—15; Girard, Ord. judiciaire, p. 27, note 1; Dirksen, Ver-
suche zur Kritik, etc., pp. 234^358.
" Clark, Sources, p. 19.
' Clark, Sources, p. 19.
' See collection of each "leges regiae'' made by "Sruns, Pontes Juris ^,
pp. 1-22, Girard, Textes, pp. 1-9.
" See Dion, iv, 13; iv, 15; iv, 22 and 25; Bruns, Font. Juris «, p. 14.
" Clark, Sources, p. 19.
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THE ROMAN MONARCHY: 753-510 B.C. 31
Roman royal statutes are derived from the works of writers
of the Later RepubUc or Early Empire.
The law of the Monarchy was the archaic jus civile only. § 33
The private law at Rome under the Monarchy was for citizens
only, and did not concern itself with foreigners, who were
not subject to its jurisdiction. Hence its appropriate name —
the jus civile, or law belonging to Roman citizens only.i'
Moreover, its name indicates another characteristic: it was
the law of a city^^ — a local law strictly.
" Civile and civis (citizen) come from the same root.
1^ Civile has the same root meaning as civiias (city).
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32 THE ROMAN REPUBLIC TO 89 B.C.
CHAPTER II
THE ROMAN REPUBLIC TO 89 B.C.
§ 34 Historic part of the ancient Roman law. From the over-
throw of the Monarchy in 510 B.C. to the consolidation of
Italy with Rome in 89 B.C. is over 400 years. These four
centuries constitute the historic jus civile of the Republic
or the historic part of ancient Roman law.
I . The Early Republic, or first half of the
Republic, prior to the conquest of Central
and Southern Italy and the appointment in
242 B.C. of a praetor for foreigners (praetor
peregrinus) : period of the historic jus civile
alone
§35 Expulsion of the Tarquin dynasty; class struggles of the
patricians and plebeians soon engross the young Republic.
As a result of expelling the Tarquin Kings, thereafter the
Romans forever hated the name of 'King.' At the time
of the overthrow of the Monarchy Rome was but a small,
insignificant country town which had to struggle hard for life
against its neighbors and the adherents of the monarchy.
The new Republic became engrossed with the class struggles
of the patricians and plebeians. The patricians — originally
meaning "the sons of senators," ^ — and the plebeians — from
a Greek word^ signifying "crowd" or "mob" — occupied
the first two centuries of the Republic with their political
and economic strife. Finally, the plebeians achieved full
political, civil, and social equality, and were protected by a
'Bernard, La premiire annee de droit romain, §3; Sherman's transla-
tion, The first year of Roman law, § 3.
2 T6 nx^flos.
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FIRST HALF OF THE REPUBLIC 33 ,
magistrate — the tribune of the plebs — elected annually,
inviolable during his term of office, and possessed of the power
to arrest by his "veto" (I forbid) all magisterial and legislative
acts done within the city of Rome.
The Law of the XII Tables fixes the commencement of §36
historic Republican Rome. The beginning of the non-legend-
ary Roman Republican period is definitely fixed by the Law
of the XII Tables enacted in the middle of the 5th century
B.C. The modern inquiry of Professor Goudy, "Are the XII
Tables authentic?"' is but a continuation of the attacks of
Lewis, Pais,* and Lambert * on the credibility of early Roman
history. These writers attacked the XII Tables as legendary,
and argued that the decemvirate never existed, nor were the
XII Tables compiled under the early Republic, but that on
the contrary the collection known to the ancients under this
name is an apocryphal work made in the late Republican
period.*
But the battle as to the authenticity of the XII Tables was
won in 1902 by their able defender, the French Girard ^ of the
law faculty of the University of Paris, who successfully refuted
all these contentions.
The Law of the XII Tables, 450-449 B.C. The compilation § 37
of the XII Tables was due to the persistent demands of the
plebeians for a written law, and resulted directly from the
proposal of one of their tribunes, Terentilius Arsa. According
to Latin historians,* commissioners were sent into Greece to
study Hellenic laws: this probably was Magna Graecia —
^ 17 Juridical Review, p. 93.
Storia di Roma, i, 1, pp. 650-606 (1898).
5 Nouv. revue historique (1902), pp. 646-76, 631-6; Revue generale du
droit (1902), nos. 6 and 6.
" In the 6th or 6th century of Rome, — Girard, Texles^, p. 9.
' Nouvelle revue historique de droit (1902), pp. 381-436. Professor
May, in Revue des etudes ancienne? (1902), 3, pp. 201-12, agrees with
Girard. See also Girard, Textes"^, pp. 9-11; Clark, Sources, p. 29.
* For the Roman account of the XII Tables, see Livy xii, 9-67; Cicero,
De repub. ii, 36-37; Diodorus, xii, 23-26; Dionysius, x, 1-60; Digest, 1, 2,
2, II 3, 4, and 24 (Pomponius). See also Mommsen, Staatsrechi, iv, pp.
441-3;' Krueger, Quellen, etc., II 9-14. Girard, Manuel^ pp. 22-8.
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34 THE ROMAN REPUBLIC TO 89 B.C.
the Greek colonies in Southern Italy — which for Romans was
the easiest point of contact with Greek civilization.'
When the commissioners returned, ten magistrates, called
Decemvirs, — the most celebrated of .whom was Appius
Claudius — were appointed to codify the laws, or, more
accurately, to reduce them to writing. The first year of their
magistracy, 450 B.C., ten Tables were published in the forum,
followed by two more the next year 449 B.C. This decem-
viral legislation was exhibited to the people in the form of a
popular statute (lex) .
The now existing fragments of the XII Tables i" were
expressed subsequently by various Latin authors living four to
six centuries later, the contents of the XII Tables being
"probably handed down by . . . copies from time to
time renewed. "11 Things were not much improved even at
the very close of the Republic: Cicero himself complained
that in his time there was no official depository of the laws,
which had to be sought for in private collections. '^ "For all
the Roman law prior to 200 B.C. when the basis of Justinian's
vast structure had long been laid, we have to rely on the
secondary evidence of writers who lived in the beginning of
the Christian era or just before it."i'
§38 Character of the Law of the XII Tables. The XII Tables
are a compilation or reduction to writing of the then existing
customary unwritten law of Rome. That Greek elements
entered into the Roman XII Tables "is beyond doubt," says
the famous modern German Romanist Bruns.^* And this
' Such is the view of Cuq, Institutions, etc., vol. i, p. 131, who is quite
sceptical as to the commissioners going to Greece proper; Girard, Manuel',
pp. 22-8.
^^ For the text, see Bruns, Pontes Juris^, pp. 15^1 ; Girard, Textes de
droit remain^, pp. 5-23. The XII Tables have been translated into English
by Howe, Studies in the CivilLaw", pp. 47-59; Hunter, Roman law*, pp. 17-
22; and by Mears, in his Inst, of Justinian, London, 1882.
'' See Clark, Sources, p. 22; Bruns, Pontes Juris^, p. 22 et seq. ; Girard,
Textes^, p. 9.
12 About 46 B.C., — see De legihus iii, 20, 46.
1' Clark, Sources, p. 29. Such secondary authorities include Cicero,
Livy, Plutarch, Pliny, Dionysius.
"Geschichte und Quellen des rom. Rechts, § 14; see Holtzendorff, Ency-
clopddie der RechtswisfenschJ, p. 92.
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FIRST HALF OF THE REPUBLIC 35
view is substantiated by comparative study of contemporary
Greek law/^ especially the Tables of Gortyna, which embody
Hellenic law much earlier than the Roman XII Tables.^* But
on their face the XII Tables are very little Greek in character,
especially the peculiarly Roman constitution of the patriarchal
family with absolute power wielded by the head of the family,
and the extremely Roman procedure of legal actions furnished
by statute (legis actiones) .
The XII Tables embodied the jus civile or law for Roman
citizens. Commerce being small at this time and the world
moving but slowly, the XII Tables took cognizance of but
few juristic acts and these principally relating to land, the
chief property of citizens.
• Growth of Roman law for the next three centuries is by §39
interpretation of the XII Tables. After the XII Tables were
enacted their contents were worked out for over 300 years
by a process of interpretation. Under the Republic statu-
tory changes in matters of private law were exceptional."
To meet the exigencies of the growing State and the demands
of a commerce which increased with the ever widening Roman
conquests, new regulations of law were required : these were
always represented by the interpreters of the law, as con-
tained in the Law of the XII Tables, either by logically deduc-
ing them from that statute, or by the employment of legal
fictions, which left the letter of the statute intact while develop-
ing its spirit — thus making new juristic transactions possible.
For example, by application of a legal fiction to mancipatio
(the ancient Roman law conveyance of sale) was evolved a
new transaction resting on credit — the pledging of property
for a loan: the mancipatio was made really fictitious by
being conditioned on an understanding (fiducia) that the
property would be reconveyed by the creditor to the debtor
when the latter paid off his debt.
" See Goodwin, XII Tables pp. 6 and 7; supra §§ 19 et seq.
'« See supra, 1 20.
" For extant leges subsequent to the XII Tables, see Bruns, Pontes
Juris", pp. 46-160; Girard, Textes de droit romain', pp. 24-117; and infra
vol. iii, § 945.
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36 THE ROMAN REPUBLIC TO 89 B.C.
§ 40 The jus civile was for citizens only; it was administered at
Rome by the city praetor (praetor urbanus) created 367 B.C.
Character of the jus civile. Inasmuch as the statute law
bound the citizens of Rome, it was collectively called jus
civile, i.e. the law for citizens — -the "civil law." It was
administered at Rome in the court of the city praetor {praetor
urbanus), who was created 367 B.C.^* The jus civile was
for the exclusive benefit of Romans only, and did not
concern itself with foreigners and Roman provincial sub-
jects, who were outside its jurisdiction and purview. No
alien or non-citizen could appear in the court of the praetor
urbanus.
Roman law under the Republic was personal, not territorial.
Wherever a Roman citizen went, he carried his law with him.
Although its seat was at Rome, yet with the advent of con-
quered provinces their governors became empowered to ad-
minister the jus civile for any Roman residing abroad. This
law for citizens, or Quiritary law,^^ had certain peculiar char-
acteristics: it , was very forpial, rigid, and personal. Its essen-
tial rigidity was not changed by any interpretation, and its
formal ceremonies survived the use of fictions.
§ 41 Birth of the jus honorarium. The creation of the praetor
urbanus in 367 B.C. had one very lasting consequence: it
eventually gave birth to the jus honorarium or edictal Roman
law. For by the power iimperium) of the praetorship the
praetor had authority to issue orders - — edicts — as to the
remedial processes necessary to be employed in his court.
Although it is not likely that the city praetor began at once
to use this great power, yet gradually this power came to be
exercised, and, after the creation of the praetor for foreigners
{praetor peregrinus) , this praetorian power became of the
utmost importance and was the means of developing the
Roman law for foreigners ^"^ — ultimately the most equitable
part of Roman law. The jus honorarium originally was
purely praetorian law, but in the Later Republic and Early
'' By the lex Licinia, "Qui jus in urbe diceret" are Livy's words (vi, 42,
11). See Dig. 48, 19, 17, 1.
'' From Quirites, the ancient title of Roman citizens.
2» See infra § 44.
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THE LATER REPUBLIC 37
Empire it also included the edicts of other magistrates such as
aediles and provincial governors.
II. The Later Republic, or the latter half
of the Republic following the creation of t?he
praetor peregrinus; period of the beginnings
of the jus gentium as an adjunct to the jus
civile
The Roman conquest of Southern and Central Italy. In the § 42
4th century B.C. Rome began the subjugation of Italy. After
a half century of effort following the Second Samnite War, all
the Italian peoples were brought under the Roman yoke. Not
even the Greek armies of King Phyrrus of Epirus could prevent
the Roman conquest of Southern Italy. Between 326 and 272
B.C. Campania, Umbria, Lucania, Etruria, Picenum, and
Tarentum were subjugated. Rome became supreme mistress
of Italy from the Rubicon to the Sicilian Straits. And her
conquest of Italy survived the terrific strain of the Punic
Wars with Carthage, in spite of the wonderful genius of
Hannibal. But Rome treated the Italians as subjects. The
Italians were regarded as subject foreigners (peregrini).
Not until two centuries after the conquest of Italy were the
Italians given Roman citizenship.
Growth of commerce; creation of a praetor for foreigners §43
(praetor peregrinus) in 242 B.C. What changed Roman law
from a local rigid formal law into a world-wide rational formless
jurisprudence? The answer is: the growth of foreign trade
and commerce, the legal problems of which were solved by the
praetor's application of the rules of the law of nations {jus
gentium). With the increasing territorial conquests of Rome,
foreign commerce developed enormously. Foreigners flocked
in great numbers to Rome. Legal transactions arose in large
volume. Two centuries after the XII Tables, in the year
242 B.C.,^' a special praetor to dispense justice to foreigners
==1 Livy (Epit. 19) says it was in 512 A. U. C. Lydus (Z>e Magistr. i, 38,
45), says it was 507 A. U. C.
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38 THE ROMAN REPUBLIC TO 89 B.C.
was created — -the praetor peregrinus. He had charge of
Htigation in which aUen foreigners or subjects were involved. ^^
§ 44 Beginnings of the Roman law for foreigners or jus gentium;
separation of Roman law into jus civile and jus gentium.
With the advent of the praetor peregrinus began that equitable
praetorian adjunct to the Civil Law^' which was Icnown as the
jus gentium or Roman law for foreigners and subjects not
citizens. The Roman source of this jus gentium was the
law made by the magistrates or jus honorarium. Practically
the whole of the newer equitable law was to be found only in
the magisterial law, and the only way it could be enforced was
through the medium of legal procedure — by granting or
refusing a right of action or a right of defense.
Roman law now began to develop along parallel lines. There
was the old law for citizens — • the jus civile. There was the
new law for non-citizens (foreigners and subjects) — • the jus
gentium. The jus civile was composed of statutes and customs
having the force of law. It was largely legislative law. The
jus gentium was law made by magistrates, who drew partly
on the jus civile and very largely on those rules of law common
to all nations, particularly the neighboring Greeks, as the
sources of their inspiration. It was a body of rules which
the Roman praetor thought worthy to govern the intercourse
of Roman citizens with the members of all, originally inde-
pendent but now subject, foreign nations.^ Occasionally,
however, the Romans use the term jus gentium in its modern
sense of the "law of nations," that is, "international law."
These two systems of law^ — -jus civile and jus gentium — ■
continued down through the Later Republic into the Empire,
when finally the older jus civile became fused with the jus
gentium losing in the refining process all its local narrowness
and formal strength. The combined product became the juris-
prudence of a world, — a universal and no longer a local law.
^^ Mentioned in Republican legislation and inscriptions as "Praetor qui
inter peregrines jus dicit," or "Praetor qui inter cives et peregrinos jus
dicit," or simply "Praetor peregrinus." See Dig. 1, 2, 2, 28.
''^The Romans meant by "civil law" the jus civile or law for citizens
only, never "private law" as in modern legal phraseology.
^ Poste, Gains*, p. 3.
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THE LATER REPUBLIC 39
Secularization of the legal profession; the secret legal §45
knowledge of the college of priests divulged. Development
of the functions of the Roman jurisconsult or lawyer. The
knowledge and practice of the law, so long the secrets of the
pontifices or college of priests, were gradually communicated
to the world as plebeian influences, penetrated the sacred
college, and finally law became secularized. This process of
secularizing the law, which began in the 4th century B.C.
when the actions furnished by statute {legis actiones) were
divulged ,^^ was given an enormous impetus in the 3d century^*
B.C. by the first plebeian pontifex maximus Tiberius Corun-
canius, who was the first to give public consultations to persons
needing legal advice. By the 1st century B.C. men giving legal
advice and answering legal questions were called jurisconsults
(jurisconsulti, skilled in the law), and the lawyer had long
since ceased to be a priest. Moreover, the lawyer's practice
soon became the stepping stone to the highest offices of the
Roman State.
The functions of the lawyer or jurisconsult were developed.
These were like those of his modern descendant : to give legal
opinions,^' to act in court for clients,^* and to draw up legal
papers,^' such as contracts and wills. Cicero had a thorough
Roman understanding of what a lawyer should be when he
said that he must be "skilled in the laws and the usages among
private citizens, and in giving opinions, in bringing actions,
and in guiding his clients aright."^"
^' Flavius published them 302 B.C., Aelius in his Tripertiia published
them together with the XII Tables and their interpretation about 204
B.C., — see Sohm (Ledlie^), Roman law, p. 89.
28 C. 254 B.C.
" Respondere.
^^ Agere.
2' Cavere.
'" See Duties of an attorney by Judge Gager, 21 Yale Law Journal, p. 73,
wherein this is quoted and its applicability to modern lawyers set forth.
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PART II
ROMAN LAW AS A WORLD LAW-
89 B.C. TO THE PRESENT TIME
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PART II
ROMAN LAW AS A WORLD LAW—
89 B.C. TO THE PRESENT TIME
A period of over 2000 years. Roman law as a world law § 46
has already endured twenty centuries. This vast period
includes the last half century of the Roman Republic, and
the Roman Empire which existed for fifteen centuries until
Constantinople was taken by the Turks in A.D. 1453. It
also includes the modern realm of Roman law since Justinian
to the present time, or the modern Civil Law.
CHAPTER I
THE LAST HALF CENTURY OF THE REPUBLIC:
89-27 B.C.
Consolidation of Italy with Rome in 89 B.C. ; Roman law § 47
became widely territorial and national. As a result of the great
Italian war 90-89 B.C., called rather loosely the Social War,
the revolted Italian allies and subjects of Rome obtained
Roman citizenship and were enrolled in the thirty -five Roman
tribes. The consolidation and incorporation of Italy with
Rome was the final outcome of the Roman conquest of Italy.
During the last half century of the Republic and continuing
after the establishment of the Empire by Augustus in 27 B.C.,
Roman citizenship belonged to all the Latin peoples of the
Italian peninsula. Roman citizenship and law became widely
territorial. Rome and Italy thus became synonymous —
the peninsula constituting the Roman State.
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44 LAST HALF CENTURY OF THE REPUBLIC
L SOURCES OF ROMAN LAW DURING
THE REPUBLIC
§48 Three sources. The sources of law during the Roman
Republic were : statutes of the legislative assemblies, edicts of
the praetor and other magistrates, and opinions and writings
of the jurisconsults.
§49 I. Statutes of the assemblies (leges, plebiscita). The
earliest source of Roman law consists of the statutes enacted
by the various legislative assemblies. The principal Roman
assemblies were these four: (1) the comitia curiata or assembly
of the patricians, (2) the comitia centuriata or military assembly
of all citizens, both patrician and plebeian, (3) the comitia
tributa or assembly of all citizens by districts, ^ (4) the concilium
plebis or assembly of the plebeians. The first two assemblies
originated under the Monarchy. Although the assembly
of the plebeians originally legislated to bind the plebs alone,
the binding force of the acts of this assembly was extended by
the lex Hortensia of 288 B.C. to bind the patricians also.
The enactments of all these Roman assemblies were statutes,
which, as in modern times, were of a general or special nature.
The enactments of all the legislatures except the assembly
of the plebeians were termed leges. Laws passed by the
assembly of the plebeians were termed plebiscita. The lex
bears the names of the two consuls for the year, e.g. lex
Valeria Horatia, while the plebiscitum bears only the name
of the tribune who proposed it. Sometimes both lex and
plebiscitum were confused, — for instance the famous lex
Aquilia and the lex Falcidia were actually plebiscita. Fre-
quently the legislation of a provincial governor ordered to
endow his province with laws is called leges datae.
Senate acts or the decrees of the Senate (senatusconsulta)
were not ordinarily a source of Roman law during the Republic.
In the Republican period the Senate, which originated under
'■ Tribus here means a "quarter" of the city. The people were grouped
according to residence in wards or districts. The assembly voted by dis-
tricts. The balance of power was preserved for the better classes of citizens
by dividing the districts into four urban and twenty-four suburban, — the
great mass of the people residing in the urban districts.
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SOURCES OF LAW DURING THE REPUBLIC 45
the Monarchy, did- not often legislate.^ The functions of the
Senate during the RepubHc were: to prepare bills for laws, to
take care of the public administration, and to register the laws
enacted by the popular assemblies. Although the Senate
was the real sovereign of the Republic, it was a sovereign not
usually armed with legislative power.
2. Edicts of magistrates (edicta) . Another early source of §50
law in the Republican period of Roman history is the edicts
of magistrates, especially the praetor. When the praetor, the
chief judicial magistrate of the Republic, entered annually
into office, he published his edict which stated the collection
of rules he intended to apply while in office. To this so-called
'permanent edict' he added from time to time decisions of
cases for which his permanent edict did not apply.
In imitation of the praetor, the aediles (police magistrates)
and the governors of provinces published their edicts. And
this sort of law was known as the praetorian law or the law of
the magistrates {jus honorarium) in contradistinction to the
law for citizens (jus civile) . The edictal law will be treated
in a more detailed manner when the Imperial Roman law is
reached.' The other magistrates of senatorial rank — consuls,
censors, pontifices, quaestors, and the rarely existing dictator
— were not judicial officers and contributed nothing in the way
of judicial legislation.
3. Writings of the jurists. The activities of the lawyer had § 51
one very important juridical consequence : the development of
a legal literature, as is evidenced by the composition of
treatises on legal subjects by distinguished jurisconsults of
the Republic.
2. FAMOUS REPUBLICAN JURISTS
The dawn of jurisprudence. With the advent of the juris- § 52
consults began the gradual conversion of Roman law into a
world law. Jurisprudence commenced with the writings of
the jurists. Q. Mucins Scaevola,who was consul* a few years
2 But toward the end of the Republic the decrees of the Senate began to
be regarded as equivalent to leges, — see Amos, Roman Civil Law, p. 73.
3 See infra §§60-61.
<95 B.C.
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46 LAST HALF CENTURY OF THE REPUBLIC
before the Social War broke out, was the father of Roman
jurisprudence.^ The RepubUcan jurisconsults shaped the
beginnings of Roman law; the jurisconsults of the Empire
developed Roman law into a mature jurisprudence fitted to
be a world law. The lives and toil of these jurists mark the
steps and boundaries of progress in Roman law.
§ 53 Famous Republican jurists. Of the vast host of lawyers of
Republican Rome some forty-five are mentioned by Roman
writers as renowned for their legal talents or famous for their
learning. Pomponius* — a celebrated jurist of the Imperial
period — -Gellius, and Cicero ate our chief sources of informa-
tion as to the Republican jurists.''
A celebrated early Republican jurist is Cato the younger,*
the son of Cato the Censor. He is referred to in both the
Institutes and Digest of Justinian. He died while praetor-
designate in the lifetime of his father. From Cato the younger
was probably derived the Regula Catoniana — a doctrine of
testamentary law to the effect that a legacy invalid at the
time of making a will is also invalid whenever the testator
dies.^
Three Republican jurists were renowned for their construc-
tive ability: Brutus, Manilius, and Scaevola. They con-
tributed enormously to the development of a Roman legal
literature. From Brutus i" (not the one who conspired against
Caesar but an earlier Brutus) came a familiar doctrine now
encased in the modern law of bailments. Brutus held that if
a man borrowed a beast of burden and used it otherwise
than had been agreed upon, as for example for a longer
journey or for a different journey, he is guilty of theft." To
' Cuq, Institutions, etc., vol. ii, p. 1, starts the "classical Roman law"
with Scaevola.
« See Dig. 1, 2.
' As to their writings now extant, consult Lenel, Palingenesia juris
civilis, 2 vols., Leipzig, 1889.
' See Roby, Introduction to the Digest, p. xcv.
° Dig. 34, 7, 1 ; Bernard, La premiire annee de droit romain, and First
year of Roman law (Sherman translator), § 890.
1° His full name was M. Junius Brutus, See Roby, Introduction to the
Digest, pp. xcv-xcvi.
11 Gellius, vi (vii), 15; see also Dig. 47, 2, 77 (76), pr.
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JURISTS OF THE REPUBLIC 47
Manilius,'^ who was consul at the siege of Carthage/' is largely ( § 53)
due the development of the doctrine of treasure trove."
Scaevola,^^ who was consul the year of Tiberius Gracchus'
legislation, 1^ was a thorough jurist and decided many novel
questions of law." This P. Mucius Scaevola was the father of
a still more famous son/^ usually called the Pontifex.^'
It was Scaevola the younger^" who, when governor of Asia,
provided in his edict that want of good faith can be pleaded
against the validity of a transaction, — a principle of modern
law.^'- This Q. Mucius Scaevola composed many other legal
principles.^^ The glory of Scaevola as a jurist consists in the
fact that he was the first to write a systematic treatise on the
jus civile. It was composed of eighteen books. Scaevola's
works were so valuable that these later received commentators,
among these being the Republican jurist Sulpicius^' and the
Imperial jurists Gains ^* and Pomponius.^* Scaevola is the
earliest Republican jurist whose writings are cited in the
Digest of Justinian. Scaevola had some famous pupils.
Among these were Cicero^^ and Aquilius Gallus."
1^ His full name was M. Manilius P. F. P. N. See Corp. Inscrip.. Lat., i,
p. 438; Roby, Introduction to the Digest, pp. xcvi-xcviii.
1' 149 B.C.
" See Dig. 41, 2, 3, 3.
^^ P. Mucius Scaevola, ■ — Roby, Introduction to the Digest, po. xcviii-c.
'^ In 133 B.C. Tiberius Gracchus died the same year.
" See Dig. 24, 3, 66; Dig. 47, 1, 10 and 15; Cicero, Fam., vii, 32; Dig.
49, 15, 4; Dig. 50, 7, 18 (71); Cicero Or. i, 40; Roby, Introduction to the
Digest, pp. xcviii-c.
^^Q. Mucius Scaevola, usually called "Q. Mucius" to distinguish him
from Cervidius Scaevola, a jurist of the Early Empire.
^'To distinguish him from his counsin Scaevola the Augur, consul 117
B.C., who bore the same names.
^^ Q. Mucius Scaevola, — Roby, Introduction to the Digest, pp. cv-cviii.
21 Cicero, Att., 6, 1, 15.
22 See Roby, Introduction to the Digest, pp. cvii-cviii.
=3 Dig. 27, 2, 30; Gellius iv, 1, 20.
2* Gaius 1, 188.
^Dig.A^, 1, 53 and 64.
26SeeZ?ig. 1, 2, 2,41.
"' Cicero Am. 1 ; Rob\-, Introduction to the Digest, p. cvii.
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48 LAST HALF CENTURY OF THE REPUBLIC
(§53) As to Cicero,^^ the best opinion is that, although the greatest
advocate ever called to the Roman Bar, he was not a great
lawyer in the sense of being a j urist. But Cicero's oratory and
writings bear a stamp of brilliancy and literary greatness
excelled by no other ancient orator or writer — certainly of the
Latin race. To Cicero must be ascribed whatever we inti-
mately know of the Roman law of the Republic, especially
of its judicial forms and remedies.
C. Aquilius Gallus, contemporary and friend of Cicero, was
the most learned and juridically ingenious of all the pupils
of Scaevola the younger. It was Gallus who advanced the
doctrine that a postumous child can be heir to a succession.^'
Gallus was the author of several other new principles in
Roman law.'"
Sulpicius,'^ the famous pupil of Gallus, was regarded by the
Digest writers as the greatest lawyer of the Republic. Stung
one day by the reproach of Scaevola the younger '^ as to his
ignorance of the law, he engaged in the study of law and later
became a learned and prolific jurist, having written, it is said,
180 books on law. Sulpicius had many renowned pupils,
such as Varus, Gellius, Tucca, Namusa, Ofilius.'' Most
of these are cited in the Digest of Justinian.
Aulus Ofilius deserves a special mention. He was a great
jurist and wrote works which dealt with all branches of the
Civil Law.'* It is a suggestive coincidence of his intimate
friendship with Julius Caesar that Caesar himself, amongst
other plans formed before his assassination, had in mind the
project of codifying and digesting Roman law,'* — a task not
however accomplished until six centuries later in the time of
Justinian, whose fame to-day comes from his codification.
28 His full name was Marcus Tullius Cicero (106-43 B.C.).
"» Dig. 28, 2, 29. He was the author of the Aquilian stipulation, — see
Roby, Introduction to the Digest, p. ex.
"• Roby, Introduction to the Digest, pp. cix-cx.
'1 His full name was Servius Sulpicius, Q. F. Lemonia Rufus, — see
Roby, Introduction to the Digest, pp. cx-cxiii.
'2 Q. Mucius Scaevola, see supra this § 53.
^' See Roby, Introduction to the Digest, pp. cxiii et seq.
^ Id. pp. cxiv-cxv.
''Suetonius, Jul., 44.
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JURISTS OF THE REPUBLIC 49
Tubero'^ was a pupil of Ofilius. He was very learned and (§53)
is often cited in the Digest.
Trebatius,^' contemporary of, but younger than, Cicero, is
often cited in the Digest. It was Trebatius who was instru-
mental in introducing the doctrine of codicils into Roman
law.'*
'" His full name was Q. Aelius Tubero, — see Roby, Introduction to the
Digest, pp. cxxii-cxxiii.
"His full name was C. Trebatius Testa, — see Roby, Introduction to
the Digest, pp. cxvii-cxx.
=8 Inst. 2, 25.
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60 THE ROMAN EMPIRE, 27 B.C.-A.D. 1463
CHAPTER II
THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
§ 54 The Roman Empire lasted nearly 1500 years. The Roman
RepubHc in Caesar's day was fast becoming an empire; it
had markedly outgrown its archaic city government ruled by a
narrow, corrupt, and tyrannical oligarchy which rapaciously
plundered the Roman people as well as the provinces. It
became necessary to reconstruct Rome if the Roman con-
quests and the Roman State were to be saved. The Graeco-
Latin civilization was in great danger of being lost to the
world. Julius Caesar applied himself to the much-needed
task of reconstruction. What this wonder of the human race
with his most astonishing political and military genius might
have finally accomplished was untimely cut short by the dag-
gers of his assassins. His clemency, unparalleled in a cruel age,
was largely responsible for his martyrdom. But the eternity
of Rome for which Caesar lived and died was preserved in
spite of Caesar's murderers. 'J'he work of reconstruction
finally devolved upon Augustus. ^ The Empire was established
in 27 B.C., and continued for nearly fifteen centuries until
A.D. 1463 when the Eastern Roman Empire at Constanti-
nople was overthrown by the Turks.
I. The Early Empire, 27 B.C.-A.D. 284:
from Augustus to Diocletian
§55 Dual nature of the government of the Early Empire; the
Principate. Although Augustus apparently re-established the
Republic on conservative lines, restoring the authority of the
people and the Senate,^ yet this surrender of sovereign power
1 Octavian, the nephew of Caesar, received the title of Augustus in 27
B.C. This title was subsequently incorporated by the later Emperors,
not members of the Julian family, as part of the Imperial title.
2 "Rem publicam ex mea potestate in senatus populique Romani
arbitrium transtuli." — Mon. Ancyr. 6, 12.
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THE EARLY EMPIRE, 27 B.C.-A.D. 284 51
was but theoretical and illusory. Augustus ostentatiously (§55)
divided the sovereign authority between himself and the ,
Senate, but by the terms of this division he made the Senate
the weaker body and himself the ultimate though unacknowl-
edged source of all authority whatever. Although the regime
established by Augustus gave a preponderance to the Emperor,
yet, because the Principate or Early Imperial government was
a dual government of Senate and Emperor as opposed to the
single absolute monarchical power of Diocletian and Con-
stantine, the government of the Early Roman Empire prior
to Diocletian is fittingly described as the Imperial duarchy.
Apparently the Republic continued to exist along constitu-
tional lines with all the familiar legislative assemblies and
elective magistrates exercising their usual functions. No
magistracy was abolished: there were, just as during the Re-
publican era, consuls, praetors, and tribunes. The Roman
provinces were divided, as to administrative control, between
the Senate and Augustus, — the latter taking care to give to
the Senate only the more peaceful ones requiring scarcely any
troops. The public treasury of the State, the aerarium, still
received the taxes from the senatorial provinces, but the taxes
from the provinces of Caesar went into the Emperor's treasury,
the fiscus. Augustus received the constitutional title of
Princeps,^ and this title of professed humility became a formal
title of his successors* during the Early Empire. Theoretically,
the Senate elected the Emperor; and it could depose him, as
it did with respect to Nero.
But in reality Augustus was far more than seemingly the
first citizen of Rome: he had been made Imperator, which
implied that his authority was supreme; he had also the
tribunician power which made his person inviolable and gave
him the right of veto over all magistrates ; he was possessed of
the censorial power which enabled him to fill the ranks of the
^ In 28 B.C. the Senate conferred the title of Princeps Senatus upon
Octavian.
* In course of time the Heir Apparent of the Emperor became known
as Princeps Juventutis, 'Crown Prince' or 'Prince Imperial,' — see Hill,
Historical Roman coins: "Caius Lucius Caesares, Augusti filii, consules
designati, principes juventutis. ' '
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52 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
Senate or expel a Senator; he was Pontifex Maximus, which
gave him the religious authority formerly exercised by the
Kings of Rome ; and he had full proconsular authority, which
gave him the command of all the armies of the Empire.
Finally, Augustus gradually allowed the Senate — which he
really held in the hollow of his hand — to usurp the legislative
powers of the comitia. The successors of Augustus received
the same powers, all at one time, upon their accession by the
effect of a statute originally re-enacted for each Emperor —
called the lex regia or lex de imperio? It was passed by the
Senate and originally ratified by oile of the comitia, probably
the comitia tributa. With the decline of the legislative assem-
blies in course of time the existence of a lex regia applicable
to all Emperors became implied.^
§ 56 Dual nature of the Roman law of the Early Empire. The
antithesis between the Roman law for citizens (jus civile) and
the Roman law for non-citizens (jus gentium) which began in
the latter half of the Republic, persisted under the Early
Empire for over two centuries until the Edict of Caracalla in
A.D. 212. Moreover, that very practical Republican division
of Roman law, according to sources, into statutes and customs
(jus civile) and law made by the magistrates (jus honorarium),
endured under the Early Empire down into the reign of
Hadrian, when the importance of this division was nullified
by the jurist Julian's compilation of the Edictal law, which
was promulgated in the form of a statute.'
§ 57 The classical period of Roman law, A.D. 98-244. The cul-
mination of the development of Roman law from a local city
law into a world law occurred under the Early Empire. But
this culmination came gradually and was not caused suddenly
as if by the blast of a hurricane. The jus civile was slowly
submerged by the jus gentium, because the latter was more
^ See Code, 1, 17, 1, 7; Dig. 1, 4, 1, pr. There is still extant a part of the
lex regia de imperio which conferred imperial' power upon Vespasian, — see
Girard, Textes de droit romain^, p. 105. The practice was a survival of the
lex curiata of the regal era of Rome, — see Cicero, De republica, ii, 13, 17, 18,
20, 21.
^See Const. Deo auctore, §7 (one of the prefaces to the Digest of
' Justinian).
' See infra § 61.
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THE EARLY EMPIRE, 27 B.C.-AD. 284 53
inherently reasonable and just and more in accordance with
the private law of other nations. From the 2d century to the
middle of the 3d century A.D. was the Golden Age of Roman
jurisprudence, beginning with the jurist Celsus^ and ending
with Modestinus.^ Through the labors of the Imperial jurists,
Roman law in the century of the Antoninesand Severi attained
to such marvelous perfection that the whole period from the
reign of Hadrian i" — ^ better, Traj an '^'- — until shortly after the
close of the reign of Alexander Severus'is commonly called
the "classical Roman law."*^ During this era the activity of
Roman jurists reached its climax. The Imperial jurisconsults
accomplished the larger part of the gigantic task of creating
a jurisprudence composed of eternal principles of justice and
fitted for all subsequent ages of the world. And because of the
great excellence of the private law of Rome about A.D. 100,
the Romans attained to a height of civilization never reached
by Rome's successors until very modern times.
Carracalla's Edict of A.D. 212. In the year 212is the Em- §58
peror Garacalla promulgated a law^^ bestowing citizenship on
all free inhabitants of the Empire. ^^ Thereafter, but few traces
of the long-standing Roman antithesis between complete
and partial citizenship remained, and these'' were formally
■' P. Juventius Celsus filius, legal adviser of the Emperors Trajan
(reigned A.D. 98-117) and Hadrian (reigned 117-138). See infra § 83.
» Died after A.D. 244. See infra § 94.
'"See Cuq, Institutions juridiques des remains, vol. ii, p. 1; Leage,
Roman law, pp. 29-30.
'^ Leage, Roman law, p. 29.
12 See Cuq, Institutions juridiques des romains, vol. ii, p. 1 ; Leage,
Roman law, pp. 29-30.
"The year is stated variably: A.D. 212, — Krueger, Quellen, p. 16;
A.D. 211-17,^ — Smith, Diet, of Greek and Roman antiq.^, vol. i, p. 450;
A.D. 212-17, — Muirhead, Roman law\ p. 318.
" See Bry, L'edit de Caracalla de $1S d'apres le 'papyrus Jfi de Giessen
(in itudes d'hisloire juridique off. a P. F. Girard, vol. i, pp. 1-42, Paris,
1913).
1* "In orbe Romano qui sunt, ex constitutione imperatoris Antonini
cives Romani effecti sunt": Dig. 1, 5, 17. See infra vol. ii, § 443.
1* The Latina libertas of the Juniani and the peregrina libertas of the
dediticii: see Sohm (Ledlie*), Roman law, pp. 175, 170. These were of
little importance during the Later Empire.
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54 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
abolished by Justinian. Caracalla's Edict wiped out the old
Republican distinction between Roman citizens and Roman
subjects, and set up a new Imperial citizenship. Local citizen-
ship and a local private law became replaced by universal
citizenship and a universal private law. The jus civile became
the jus vetus}'' Only actual foreigners- — -persons not subjects
at all of the Roman Empire — ■ and Romans who had forfeited
citizenship were restricted to the old ante-Caracalla separate
law for foreigners. 1*
§59 The four forces which transformed Roman law into a
world law. During the Empire four forces were at work con-
verting Roman law from a local into a world law. These were :
the praetorian Edict, Greek philosophy especially Stoicism,
influence of the jurisconsults, and Imperial legislation. The
first three operated during the Early Empire; the last during
the Later Empire accomplished the supreme task of codifying
Roman law.
(1) The Praetorian Edict and Other Edictal Law
§60 Definition and scope of Edicts. The Roman praetor,
unlike the judge of modern times, was not subject to the law:
he was superior to it. When in 367 B.C. the consuls were
deprived of their judicial functions,^' they lost the sovereign,
almost unlimited judicial authority which they had inherited
from the Kings : this fell upon the praetors.
The edicta were orders promulgated by the praetor. At
first probably each case was decided on its merits, and it was
rarely that the praetor promulgated any orders as to the
granting of legal assistance. It soon became the practice,
however, "to post up in the praetor's court a list of legal
formulae or processes for the better information of parties
to an action."^" Gradually other tablets came into use, —
the orders of the praetor as to matters of law, or real edicts.
These praetorian tablets intended to last for a year only were
made of wood and painted white, hence their name album.
" See Stephenson, History of Roman law, p. 291.
18 Wg. 48, 19, 17, 1.
" By the lex Licinia.
' " Sohm (Ledlie'), Roman law, § 15, p. 75.
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EARLY EMPIRE: PRAETORIAN EDICT 55
In course of time, each new praetor, upon entering office, (§60)
became obliged by law to publish his Edict.^i The quickest
way to do this was to revise the album or tablets of Edicts of
his predecessor and put up new ones. This annually pub-
lished Edict finally became known as the edictum perpetuum
because of its relatively 'permanent' character. It soon
became the practice to repeat much of the Edict of the pre-
ceding praetor, which portion repeated came to receive the
appropriate special name of edictum iranslatitium. Down to
67 B.C. the magistrate issuing the annual edict might dis-
regard it at will during his term of office, but at that time it
was made illegal for a praetor to depart from his published
Edict.^^ Edictal orders issued during a praetor's term of
office, as to matters not covered by the annually published
edictum perpetuum, were known as edicta repentina or 'occa-
sional' Edicts.
Notice what a convenient instrument the Edict was for
giving new principles a trial, for the Edict lasted but a year
and then the innovation could be dropped. The way the
Edict worked out equitable law was: not by far-reaching
generalizations, but by laying down rules for a particular case
clearly understood. A second concrete case would be added
to the first, for the praetors hesitated to strike out anything
which had once found its way into the Edict. Hence the Edict
became on its face a collection of rules as to the granting of
actions, rules as to pleadings, etc., the phraseology of which
was not very pleasant reading. But it was a channel for the
transmission of the wisdom and experience of former ages.
The work of the praetorian law was concretely exhibited
along three lines : first to give complete effect to the jus civile,
next to supplement it, third — and boldest task of all — to
reform it. The following is an illustration of the work of
the praetors in reforming the jus civile. One person obtains
something from another by means of threats or fraud. The
jus civile generally treated the act as valid, irrespective of
the threats or fraud. But the praetor gave the aggrieved
21 "Ut scirent cives, quod jus de quaque re quisque dicturus esset":
Dig. 1, 2, 2, § 10.
22 By a lex Cornelia : see Sohm (Ledlie^), Roman law, p. 77.
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56 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
party either a right of action or a right of defense. The view
of the jus civile is opposed to that of the jus honorarium.
Now the praetor did not openly aboHsh the jus civile; its
theoretical legal force remained untouched ; but practically
it was thus thoroughly reformed by remedial relief.
§ 61 Edicts compiled by Julian and made perpetual by the Em-
peror Hadrian in A.D. 131. With the advent of the Empire,
the office of praetor was gradually shorn of its power. The
praetorian Edicts became stereotyped and barren, for any
change sought to be made in it by the praetors could be nulli-
fied by an edict or decree of the Emperor. In the reign of
Hadrian the regular reissue of the praetor's Edict had become
a mere matter of form. The development of the praetor's
Edict really reached its climax under the Republic.
By instructions from Hadrian, the famous jurisconsult
Julian^' revised the Edicts, and made them forever perpetual.
Julian also defined the relation existing between the Imperial
power and the edict. He revised both the Edict of the praetor
urbanus for citizens, and the Edict of the praetor peregrinus
for foreigners and subjects, and added to his labor portions
of the Edict of the curule aediles. The whole was then ratified
by a senatusconsultum of the year 131^* and forbidden to be
thereafter changed.^^ By this statute^' magistrates were
compelled to issue the Edict as arranged by Julian.^' There-
after the Emperors decided ambiguities, and added supple-
ments to be found in the Imperial statutes. The legislation
of the Emperors became the jus novum}^
Julian's revision and compilation of the edictal law is known
as the Edictum Hadrianum or Julianum. It foreshadowed
« See infra § 89.
^* See Krueger, Gesckichte d. Quellen d. rbm. Rechts, p. 86.
^ For text of the Edicts see Bruns, Pontes Juris', pp. 202-37, and infra
vol. iii, § 946.
28 This SC. did not apply to the whole Empire, hence the contents of the
Edict were not applicable to Roman subjects. It did not convert the jus
honorarium into jus civile. See Krueger, G. d. Quellen d. rbm. Rechts, p. 91;
Sohm (Ledlie'), Roman law, §17, p. 86, note 4.
^* See Stephenson, History of Roman law, pp. 291 et seq.
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EARLY EMPIRE: GREEK PHILOSOPHY 57
the codification of Roman law which occurred during the Later
Empire, and it was of much service to Justinian's codifying
commission.^'
(2) Greek Philosophy, Especially Stoicism
An external, not an internal, force. So far we have noticed § 62
the influence of internal forces on the development of Roman
law into a world law. But the incomparable unity of form
and subject-matter of the Roman law was not due solely to
the existence of certain judicial officers or even to the Emperor
himself. Although the Emperor was head cf the State and
supreme lawgiver, yet the unity caused by his political
position was by itself merely formal and artificial. There
were two external forces which powerfully affected for good
results the progress of the Roman law: Greek philosophy,
particularly Stoicism, which influence was effective during
the Early Empire; and Christianity, the influence of which
operated during the Later Empire.
Debt of Roman law to Greek culture and philosophy. In §63
a public classroom of the University of Edinburgh, Scotland,
there is one embellishment, — a statue of Socrates under
which are inscribed these words of Lord Mansfield: "I will
take the liberty of calling him the great lawyer of antiquity,
since the first principles of all law are derived from his philo-
sophy."^" While Socrates' philosophy may be regarded as
indirectly influencing the Civil Law of Rome, it is certain that
"the influence of his successor Zeno made a deep impression
upon later Roman jurisprudence. Indeed ... to Stoi-
cism rather than to Christianity . . . must be attributed
that ameliorating influence which manifests itself in the his-
tory of Roman law. The doctrine of the jus naturale — a
doctrine which Stoicism made peculiarly its own — as it
became gradually incorporated with the jus civile, was one
of the main features in the amelioration of the latter, and only
in so far as Stoicism was influenced by Christianity (e.g., the
2S See infra § 137.
"> Gibson, Influence of Christianity on Roman law, 31 Law Mag. and Re-
view, p. 386, (Aug. 1906).
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58 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
effect upon Seneca by his contemporary St. Paul) can Chris-
tianity, in its early years, be said to have any influence on
Roman law." '^ Or, as Professor Muirhead says, "The teach-
ing of Seneca did quite as much, nay, far more, to influence it
than the lessons that were taught in the little assemblies of
the early Christian converts."'^
Under the Republic the praetorian law as well as the jus
civile had grown up and was tinkered for improvement through
empirical and administrative methods, ■ — through procedure.
But the law of the Empire is characterized by the belief that
law is founded upon ethics. After the conquest of Greece in
146 B.C. Roman thought began to be influenced by Greek
culture and philosophy. The Stoic philosophy in particular
appealed to the more intelligent Romans of the Later Republic.
Cicero accepted the tenets of this philosophy. And from
Cicero to Alexander Severus the ethical principles of Stoic
philosophy played a prominent part in Roman education and
culture. The Roman mind took naturally to the dignity,
righteous simplicity, and austerity of Stoicism. Stoic philo-
sophy finally ascended the throne in the person of Marcus
Aurelius, perhaps its greatest philosophical exponent.
§ 64 The exact point of contact between Stoic philosophy and
Roman law was the Stoic theory of the Law of Nature. Says
Sir Henry Maine: "To live according to nature was to resist
passion and to rise above the disorderly habits and gross
indulgences of the vulgar to higher laws of action which
nothing but self-denial and self-command would enable the
aspirant to observe. It is notorious that this proposition —
live according to nature — ■ was the sum of the tenets of the
famous Stoic philosophy. The alliance of the Roman lawyers
with the Stoic philosophy lasted many centuries . . .
The strength of Stoicism on Roman jurisprudence resided
. . . in the single fundamental assumption lent to it.
After nature had become a household word in the mouths
of the Romans, the belief gradually prevailed among Roman
lawyers that the old Jus Gentium was in fact the lost code
'^ Gibson, Infliience of Christianity on Roman law, 31 Law. Mag. and
Review, pp. 385, 386.
'^Muirhead, Roman Law^, p. 355.
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EARLY EMPIRE: GREEK PHILOSOPHY 59
of nature and that the praetor in framing an Edictal juris-
prudence on the principles of the Jus Gentium was gradually
restoring a type from which law had only departed to deterior-
ate." ^^
Consequently the Roman jurists gave the name of jus
naturale — natural law, law of nature • — to describe the natural
or ethical foundation on which the civil law must rest. Stoi-
cism declared that the world was possessed by an all-pervading
soul, which could be regarded from two different points of
view, as a universal force or a universal reason. This soul
is revealed both in the external law of nature and the original
nature of man. Man participates in the universal reason.
Hence the law of nature is the highest rule of human conduct;
the great duty of man is to discover and conform to the highest
law of reason. Before Cicero it was thought law was founded
in custom or convention; after Cicero, the first Stoic, it is
regarded as being founded in the very nature of things.
"There is," says Cicero, "a true law, a right reason conform-
able to justice, diffused through all hearts, unchangeable,
eternal, which by its commands summons to duty, by its
prohibitions deters from evil. Attempts to amend this law
are impious, to modify it is wrong, to repeal it is impossible." ^^
The "natural law" entered into and liberalized the Roman § 65
jus gentium. Rise of the conception of Equity. The Greek
doctrine of the law of nature first entered Roman law via that
branch known as the jus gentium, and strongly affected its
progress for the better. The praetors had collected some
laws common to all nations. The very fact that they were
common to all nations would seem to show that they were
derived from universal rational principles inherent in the very
nature of things : hence they are the remains of the primitive
law established for all men by the universal reason. The jus
gentium soon acquired a philosophical significance: it was
then regarded as a body of principles founded on the law of
nature. It had become a part of the praetor's edict and was
definitely sanctioned. Being broader and more liberal than
the jus civile it was early called the jus aequum, equitas or
52 Maine, Ancient law 3d. Am. edition, ch. iii, pp. 62-4.
^* Cicero, De republica, iii, 23; De legibus i, 6, ii, 4; Gibson, Id. p. 390.
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60 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
equfty. The characteristics of the speculative Roman jus
naturale are : "its potential universal applicability to all men,
among all people, and in all ages, and its correspondence with
the innate conviction of right." And its leading propositions
are: "the recognition of the claims of blood, the duty of
faithfulness to engagements, the apportionment of advantage
and disadvantage, gain and loss, according to the standard
of equity and the supremacy of voluntatis ratio over words
and forms. "^^ The aim of the Roman jurists now became
this: to bring the Civil law into harmony with natural jus-
tice, — that is with what is ethically right. Such was finally
the lofty standard of Roman jurisprudence.
The jus gentium thus became thoroughly identified with
the jus naturale, — based on the universal principles of right
and justice. ^^ What shall serve as a moral standard by which
the existing positive law shall be justified or its defects
exposed or corrected? Equity,- — the moral code of nature.
"Equity will suggest this interpretation, although the law is
deficient," says the Imperial jurist Paulus, in interpreting a
provision of the praetor's Edict. "The contribution of the
Stoics to legal studies consisted more in the informing spirit
than in any definite conceptions which were borrowed. . . .
Directly as private law was conceived of as a system to be
developed by a process of reasoning working on fundamental
principles of justice and common sense, and not consisting
merely of ancient customs and ceremonies, or of rules arbi-
trarily imposed by authority, a true concept of law had been
reached . . . this is indisputably the true conception of
lex naturae, law of nature. To conceive of law in this way
was the achievement of Rome.""
! 66 Survival to modem times of the doctrine of "natural law."
The Roman theory of natural law and its universal applica-
bility has survived to modern times and in great vigor. The
so-called "natural law" or "natural philosophers" of the 18th
^ Muirhead, Roman law'', pp. 281-2.
^^See Inst. 1, 2, 11. Savigny {System, vol. i. Appendix), declares that
the jus gentium and jus naturale were at last really the same. Von Holtzen-
dorf (EncycL* p. 121) notices the same fusion.
" Lefroy, Rome and to-day, 20 Harv. Law Review, pp. 614, 617.
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EARLY EMPIRE: GREEK PHILOSOPHY 61
century, such as Rousseau, Montesquieu, repeat the tenets
of the Greek philosophers, especially the Stoics. All the
familiar phrases of the "natural rights of man to life, liberty,
and the pursuit of happiness" and many other expressions
cherished by the modern world as embodying eternal prin-
ciples of justice merely repeat the phrases of the Roman law as
furnished by philosophy. Our wonderful Declaration of
Independence — a monument to 18th century philosophy —
enshrines many a tenet of Roman jurists who confessed the
alliance of philosophy with law. "By natural law all men are
equal," is the famous statement of the great Ulpian.'*
Ethical completion and maturity of Roman law attained § 67
during the Early Empire. From Augustus to Diocletian
Roman scientific jurisprudence was fully developed. and just
before Diocletian's reign attained its final maturity. The
formative period of Roman law closed with the jurist Papinian.
The jus gentium with its tenets of "natural" law and justice
had now triumphed over the jus civile. Roman law became
truly a world law, — suited for the wants of all mankind.
After the accession of Diocletian, the development of Roman
law practically ceased; it was then merely summed up by
men of genius and crystallized in the form of codification.
How came Roman law to reach "its commanding position
as the most magnificent system of jurisprudence ever given
to the world" ?^* Why does it to-day form the basis of all
the systems of law of the modern civilized world? Because
such Roman jurists as Papinian, Paulus, and Ulpian "evolved
and applied principles which are applicable for all time, and
amid the most various conditions of rriankind. Philosophers
in the sphere of law, searchers after ultimate truth, they were
able at the same time to apply in the concrete what they had
found and to give it the force of law. ' ' ^^ ' 'That which is always
equitable and good is called law: such is the natural law,"
says the jurist Paulus. ^^ Notice to what high dignity Ulpian
'^Dig. 50, 17, 32. See also Inst. 1, 2, 2: "Jure enim natui;ali ab initio
omnes homines liberi nascebantur."
" Gibson, Id. p. 391.
« Dig. 1, 1, 11.
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62 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
considered the lawyer was called. "They call us priests of
justice," he says, "for we cultivate justice and profess a
knowledge of goodness and equity, — separating what is
lawful from what is unlawful, the right from the wrong; a
true philosophy, if I mistake not, and not a sham."^^ While
another of his sayings approaches the high ideal of the Sermon
on the Mount. Says Ulpian: "The precepts of the law are
these : to live uprightly, not to hurt a neighbor, and to render
to everyone his Own.*'
(3) Influence of the Jurisconsults
A. the jus respondendi and responsa prudentium**
§ 68 Augustus licensed jurisconsults to give responsa, or opinions
on questions of law, binding the courts. Roman jurisprudence
dates, as we have seen,** from the pontifices or priests, the
learned class of early Rome. Pontifical jurisprudence having
ceased to be the authoritative monopoly of the priests, subse-
quently legal learning became widespread during the Republic,
and private persons other than priests freely gave responsa or
legal opinions. These secular persons were known as lawyers
(jurisconsult!, jureconsulti, jurisperiti, jurisprudentes) . Their
responsa were devoid of any authority. But with the advent of
Augustus a remedy was devised whereby authority should be
restored to professional legal opinions. Augustus did not, how-
ever, return this monopoly to the pontifices, but he authorized
certain able jurisconsults to make responsa, which decisions he
sanctioned by his authority. In other words Augustus licensed
certain lawyers to render legal opinions citable as authority
in court and binding upon judges. This new privilege granted
to favored lawyers was called jus respondendi. And "juris-
consult" now began to mean the privileged class of Roman
lawyers possessing the jus respondendi. The opinion of such
a licensed jurisconsult was required to be delivered in writing
« Dig. 1, 1, 1.
"Pig. 1, 1, 10.
"Or Responsa prudentum: see Hunter, Roman law*, p. 76. "Pruden-
tium" is preferable.
^' See supra § 45.
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EARLY EMPIRE: JUS RESPONDENDI 63
and sealed, and when so submitted the judge was bound to
decide accordingly, unless a conflicting opinion of another
licensed jurisconsult was submitted.** Professor Muirhead*'
uses the English expression "patented counsel" to describe
Roman jurists having the jus respondendi, while Professor
Walton*^ employs the rather slight analogy of the British
King's Counsel.
The famous Sabinus*' was the first jurisconsult to obtain
from Augustus this license of jus respondendi.*" The successors
of Augustus during the next two centuries continued his policy
of licensing certain jurisconsults to exercise the jus respondendi.
Soon the same authority was extended to previous opinions,
which no longer existed, written and sealed as required by law,
but only to be found in the literature of the responsa. Hence
their force became extended to legal literature, which is con-
verted into a source of law. At the close of the 3d century
A.D. exercise of the jus respondendi by Roman lawyers had
become very rare and had practically ceased ; the last recorded
holder of this privilege was Innocentius, who received his
authorization probably from the Emperor Diocletian." The
Emperors alone gave responsa in the form of rescripts.
B. CONVERTING ROMAN LAW INTO A SCIENTIFIC JURIS-
PRUDENCE
By assisting the Emperors in legislation. Roman lawyers § 69
had during the Early Empire a great share in the government
of the Empire. Often the Emperor had been the pupil of some
law teacher.*^ It was the custom of the Emperors to consult
the leading lawyers of the Empire as well as the immediate
■•^ See Hunter, Roman law*, p. 76.
" Roman law, pp. 291-3.
■•* Roman law, p. 135.
■" Masurius Sabinus, — see infra § 103.
s» Dig. 1, 2, 2, 48-50.
*' See GlaLSSon, £iude surGaius, p. 102; Buckland, Equity in Roman law,
p. 134. It may be that Constantine authorized Innocentius to act, although
this seems doubtful.
'^ E.g. Septimius Severus was the pupil of the famous Scaevola, — see
infra § 105.
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64 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
Imperial Council in framing laws or developing constitu-
tional principles. All these opportunities gave Imperial Roman
lawyers chances to put into practical operation the philosophic
spirit of their age as they assisted in drafting Imperial legisla-
tion. The following are instances :
1. Slaves. To inflict unnatural cruelty upon — and finally
to kill — a slave was prohibited by Augustus, Claudius, and
Antoninus Pius. Moreover, because by natural law all men
were born free and equal, ^' the Emperor often restored to
slaves the status of a f reeborn person.
2. Children and parents. Trajan punished cruelty to a
son by emancipation. Proprietary rights were given by the
Emperors to children under paternal power.
3. Citizenship. The Emperors finally put all citizens and
free subjects on a level of equality. The legislation of Car-
acalla is an instance of this.
§70 Through the jus respondendi. Under the Early Empire
much Greek philosophy was converted into legal principles by
that privileged class of Roman lawyers possessing the jus
respondendi^* or the right to give opinions on questions of
law which could be cited in courts as authoritatively binding
the judge. By virtue of this privilege, jurisconsults of ability
indirectly legislated the philosophical spirit into Roman law
by infusing opinions or decisions rendered with liberal ideas
of justice. Any questions might be discussed in these opinions
of these intellectual leaders of the Bar, which when once given
bound also the Roman Bench.
§ 71 Through legal literature. Another indirect instrumentality
was legal literature or the writings of the jurists. The philo-
sophical theories of Greece did not exist in the Roman mind
as mere speculative theories : these were put into actual con-
crete practice by the Roman legal writers of the Empire.
What were their methods? (l) To emphasize general prin-
ciples in dealing with specific cases : thus declaring that a right
depends upon something more ultimate than custom or stat-
ute. (2) To distinguish properly between law and morality:
" See Dig. 50, 17, 32.
" See supra § 68.
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EARLY EMPIRE: SCIENTIFIC JURISPRUDENCE 65
namely, that although law fundamentally rests on morality,
no moral duty is transformed into a legal duty except by the
express or tacit sanction of some public authority.
Through definitions and maxims. The scientific spirit of §72
the Roman jurists is seen, furthermore, in their definitions^*
and maxims** : their definitions are made so as to afford a safe
passage between the Scylla of looseness of language and the
Charybdis of technical rigidity ; their maxims are regarded as
self-evident truths, and form the highest ethical conceptions
of Roman law, ^ — ^such as Pomponius' maxim "It is just by
the law of nature that no one should be enriched through
another's disadvantage or injury.""
Again, did the letter and spirit of positive law conflict?
"Follow the spirit," says Julian**; "Adopt an application of a
rulewhich isnotharsh,"saysModestinus*'; "Verbal quibbling
is not apprehension of the law," says Celsus.™ Is there an
ambiguity? "Follow the beneficial interpretation," says Mar-
cellus.^i "Construe law as a whole, and each part thereof
with reference to all other parts," says Celsus.*^
Through methods of interpretation. The Roman jurists §73
developed scientific methods of interpretation. Suppose the
existing law were too broad or too narrow and so deficient for
the case in hand? If too broad, Julian says, "Interpret it by
deduction to meet the case so as to regard such case as coming
under its general provision." ^^ This is restrictive interpretation.
"If too narrow, then extend some law, the letter of which
does not comprehend the case in hand," the same jurist
Julian declares. *■* This is extensive interpretation.
'* See especially Dig. 50, 16 De verborum significatione.
'" See especially Dig. 50, 17 De diversis regulis, etc.
" Dig. 50, 17, 206.
"SiJig. 1, 3, 15.
'''Dig. 1,3,25.
«» Dig. 1, 3, 17.
'^ Dig. 50, 17, 192.
1^2 Dig. 1, 3, 24.
« See Dig. 1, 3, 10 and 11.
" See Dig. 1, 3, 12 and also Dig. 1, 3, 13 (Ulpian).
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66 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
C. THE TWO SCHOOLS OF IMPERIAL ROMAN JURISTS
SABINIAN AND PROCULIAN
§ 74 The lawyers of the Early Empire divided into two opposing
parties. Rise of the two great Roman law schools of the
Sabinians and Proculians. Beginning in the lifetime of
Augustus and continuing for about two centuries as late as
the reign of Marcus Aurelius,*^ the lawyers of the Early
Empire were divided into two "opposing parties"*^ or schools:
the Sabinians and Proculians. These schools were originally
founded by the famous jurists Capito" and Labeo.** From
Capito's eminent disciple Sabinus/' the first lawyer licensed
to exercise the jus respondendi, the Sabinians derived their
name; from Labeo's distinguished disciple Proculus^" the
Proculians received their name. The Sabinians were some-
times called Cassians, from Cassius Longinus,'' a disciple of
Sabinus, while the Proculians infrequently were called Pegas-
ians from Pegasus,'^ a disciple of Proculus. The essential
differences between the Sabinian and Proculian schools of
jurists cannot now be determined. Originally the Sabinians
seem to have been more devoted to the jus civile, while the
Proculians gave more attention to the praetorian law.'' But
the Proculians were inclined to abide by traditional rules and
methods — to prefer the letter of the law to its spirit — while
the Sabinians preached progress for Roman law and tried to get
rid of its then old-fashioned formalism and rigidity. ^^
These two schools were also something far more than oppos-
ing camps into which Roman lawyers were divided; they
*' Reigned A.D. 161-180. See Clark, Roman private law: sources, p. 128.
^* Roby, Introduction to the Digest, p. cxxvii.
" See infra § 80.
«8 See infra § 90.
" See infra § 103.
'" See infra § 103. Proculus was the second in succession to Labeo,
Nerva (infra § 96) being Labeo's immediate successor.
"See infra §81.
« See infra § 100.
"See Dig. 1,2,2,47.
'^ The best account of the actual controversies of these two schools is by
Roby, Introduction to Roman law, pp. cx,\x-cxli.
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EARLY EMPIRE: TWO SCHOOLS OF JURISTS G7
became societies organized to impart legal instruction — ^ in ( § 74)
other words, law schoolsJ^ The opposition of these schools was
somewhat like the vague rivalry of modern universities, such
as that between Oxford and Cambridge, Yale and Harvard.'^
Much of the divergence of these two great Roma,n schools was
due to the personnel of the teachers.
The first Roman jurist to originate a real law school was
Sabinus,''' who seems to have adopted the mode of giving in-
struction through a corporate organization which had been
prevalent among Greek schools of philosophy. These were
societies of which the students were the members and the
professor''* was the president. Each student upon entering
paid a fee for tuition. Certainly Sabinus was in the habit of
taking fees from his pupils, — according to the jurist Pom-,
ponius, Sabinus supported himself by giving legal instruction.'^
The jurist Ulpian also speaks of the fee payable to the pro-
fessor.*" The other school, the Proculians, became organized
in the same way. One professor used to succeed another as
president*'- by legal succession. Pomponius always uses*^ the
word succedit in enumerating the presidents of the Sabinians
and Proculians, — a term avoided in enumerating the jurists
of the Republic.
From Augustus to Hadrian the heads of these two schools
were*': of the Sabinians,- — ^Capito, Masurius Sabinus, Cas-
sius Longinus, Caelius Sabinus, Javolenus, Valens and Tus-
cianus and Julian; of the Proculians, ^ — ^Labeo, Nerva,
Proculus and Nerva. filius, Pegasus, Celsus pater, Celsus filius,
'* As to Roman la-w schools and legal education in detail, see infra §§ 154
et seq.
" Walton, Roman law, p. 138.
" See infra § 103.
'* Magister, antecessor, or professor.
''^ Dig. 1, 2, 2, 50: "Huic nee amplae facultates fuerunt, sed plurimum
a suis auditoribus sustenatus est."
»» Dig. 50, 13, 1, 5.
*' Sometimes the presidency was divided bet-ween two or more, all of
whom were full presidents.
«2 See Dig. 1, 2, 2, 51.
*^ See Dig. 1, 2, 2; Clark, Roman law: sources, pp. 107-29; Roby,
Introduction to Roman law, p. cxxvii.
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68 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
and Neratius Priscus. The jurist Gaius** mentions contem-
porary teachers of the Proculians, but their names have not
come down to us. The organized opposition of the two schools
or societies lasted down into the reign of Hadrian, ^^ when
owing to the reputation and influence of the then head of the
Sabinians, the illustrious Julian, the Proculians gradually
died out and all became Sabinian.^^
Early in the 2d century A.D. attempts began to be made to
reconcile the views of the two schools of the jurists: this
is the first indication that a true spirit of scientific jurispru-
dence was affecting the welfarp of Roman law. These attempts
finally resulted in a fusion of both the jus civile and the jus
honorarium, now stationary, with the new Imperial statutory
law into one harmonious whole.
D. FAMOUS JURISTS OF THE EARLY EMPIRE
§75 The greatest Imperial jurists. Some sixty distinguished
jurists^'' of the Early Empire survived their own age, and are
recorded in Justinian's Digest,^* which was compiled*' about
three centuries later than the last great Imperial jurist'" and
^ Died after A.D. 180.
'* Reigned A.D. 117-138. See Clark, Roman private law: sources, pp.
119, 128.
'* Karlowa, Rom. Rechtsgeschichte, i, p. 709.
*^ Roby records sixty-eight jurists. For theirnames and biography, see
Roby, Introduction to Roman law, pp. cxxiv-ccviii; and Clark, Roman
private law: sources, pp. 107-44. For a restoration of the texts of their works
compiled from extant sources, particularly Justinian's Digest or Pandects,
see Lenel, Palingenesia juris civilis, 2 vols. Leipzig, 1889.
** In Const. Tanta, §§ 17 and 20, Justinian gives an account of the work
of making the Digest, stating that a very large number of books were
collected, being furnished principally by Tribonian, chairman of the Digest
commission, and those from which extracts were made are stated to have
been set down in a list prefixed to the Digest. In the Florentine MS. of
the Digest (the oldest MS. in existence) there is preserved such a list —
now called the Florentine Index — which contains the names of 38 jurists
and 207 treatises in 1544 volumes, — see Roby, Introduction to the Digest,
p. xxiv. This list of jurists is not complete: it omits those furnishing no
materials for the Digest.
8" It was promulgated Dec. 16, A.D. 633.
"" Modestinus, the latest authentic date in whose life is A.D. 244:
Clark, Roman private law: sources, p. 138.
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EARLY EMPIRE: IMPERIAL JURISTS 69
over 550 years after Augustus established the Empire. The (§75)
greatest Roman jurist was Papinian, whose briUiancy has
never been dimmed by any modern rival. Modern criticism
endorses Justinian's praise of his genius as "sublimely great,
profound, keen, lucid, and brilliant. "'"^
In the 5th century, about 200 years after the last jurist of
eminence,'^ the Romans thus ranked their great jurists; first
Papinian, then these four: Paulus, Gaius, Ulpian,and Modest-
inus.'^ But this selection is defective because it ignored all
the jurists save the four latest holders of the jus respondendi
and Gaius. It should be enlarged to include the following
eleven earlier jurists, all of whom were eminent — some of them
pre-eminent for their legal genius and attainments: Labeo,
Sabinus,'^ Nerva, Cassius, Proculus, Javolenus, Celsus,^^
Julian, Pomponius, Marcellus, and Scaevola.
The renowned jurist Ulpian is the largest contributor to
Justinianean Roman law,'^ the next being Paulus,^' Papinian,
Pomponius, Gaius, Julian, Modestinus, and Scaevola, — in the
order named.'^ Largely through the writings of Ulpian and
Paulus have the labors of the Imperial jurists operated on
subsequent ages. More than one-third of Justinian's monu-
mental Digest is made up of Ulpian's works, ^' which form its
groundwork. More than one-sixth of the Digest is derived
'1 See Const. Deo auctore, § 6; Const. Omnem, §§ 1, 4.
12 Modestinus (died after A.D. 244), see infra § 94.
'^ This is the Roman order of appreciation as set forth in the famous
statute known as the Valentinian "Law of the Citations," A.D. 426,
whereby the Imperial sanction was given to the writings of Papinian and
the four jurists above mentioned as authorities for the then Roman law.
See Cod. Theod., 1, 4, 3.
^ Masurius Sabinus.
^^ Celsus filius.
^ For this reason Clark, Roman private law: sources, p. 136, calls Ulpian
"the greatest Jurist."
" He was the most prolific writer of Roman literature: see Roby, Intro-
duction to the Digest, p. cci.
'* Roby, Introduction to Digest, ch. x-xv. In the Digest of Justinian are
2464 extracts from Ulpian, 2081 from Paulus, 601 from Papinian, 578 from
Pomponius, 535 from Gaius, 456 from Julian, 344 from Modestinus, and
306 from Scaevola. See infra §§ 108, 99, 98, 101, 86, 89, 94, 105.
"' Roby, Introduction to the Digest, p. cxcix.
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70 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
from the works of Paulus."" Both Ulpian and Paulus have
contributed over one-half of Justinian's Digest.
§76 Specific contributions of Imperial jurists to Roman law.
From the time of Hadrian to Alexander Severus^^ was the
greatest activity of the Imperial jurists in contributing to
Roman legal literature. Distinguished jurisconsults and
teachers early wrote institutional or elementary treatises for
the use of law students. Roman elementary treatises were of
many varieties. Gaius/"^ Ulpian, Marcian, Callistratus, and
Florentinus published Institutes'"^; Neratius, Scaevola, Ulpian,
and Modestinus published Regulae; Paulus was the author of
three elementary works ^"^i Pomponius published zn Enchiri-
dion (Handbook) ; Hermogenian an Epitome; Papinian wrote
a famous work known as Definitiones'"^^ ; and Modestinus was
the author of a treatise entitled Differentiae.
Various jurists published case-books of Roman law. Mar-
cellus, Scaevola, Papinian, Paulus, Ulpian, and Modestinus
published Responsa, which are the principal works of the case
literature. But Gains' book De casibus, the Epistulae of Javol-
enus and Pomponius, and the Decreta of Paulus belong to the
literature of the cases.
The dogmatic and exegetical treatises of the Early Imperial
jurists were many and of the highest excellence. The most
important dogmatic works were: Sabinus' work on the Jus
civile; the works of Pomponius, Gains, Ulpian, and Paulus on
Fideicommissa (Trusts) ; that of Gaius on verbal obligations ;
Ulpian's treatise on the office of various magistrates and
officials 1""' ; those of Paul and Callistratus on the law of the
fiscus (Imperial treasury and revenue) ; the works on military
law by Menander and Macer; and Paulus' works on wills and
adultery. The principal exegetical works were : the Commen-
1™ Id. p. cciii.
"lA.D. 117-235.
"2 Gaius also published an elementary treatise entitled Aurea or Res
cottidianae.
'"' Institutiones.
iM Sentenliae, Manualia, and Brevia.
1°' Q. Mucins (Scaevola), the Republican jurist (see supra §53), was the
author of a work bearing the same title.
'"* Such as the proconsul, consul, praefectus urbi.
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EARLY EMPIRE: IMPERIAL JURISTS 71
taries on Sabinus written by various subsequent jurists who
wrote whole treatises to discuss texts of ancient writers, —
literature somewhat analogous to the work of the English Coke
on Littleton; the Commentaries on the Edicts; the treatise
of Gains on the XII Tables, Pomponius onMuciusScaevola'"';
and the works of Paulas, Marcian, and other writers on specially
important Roman statutes, such as the lex Julia et lex Papia
Poppaea, lex Falcidia, SC. Turpilianum.
Roman legal literature was also enriched by various im-
portant miscellaneous works. In the category of discussions
belong the Quaestiones of Scaevola, Papinian, Africanus,
Tertullian, and Paulus; the Disputationes of Ulpian and
Tryphoninus; and probably the Publica of Maecian, Marcian,
Venuleius, and Macer.i"^ Of great excellence and value are
Labeo's celebrated works the Pithana and Libri posteriores;
the Digesta of Julian, Celsus, and Marcellus; the Pandectae
of Ulpian and Modestinus; the Membranae of Neratius; and
the Variae lectiones of Pomponius. The great epoch of Roman
legal literature was during the Early Empire. The construc-
tive legal ability, excellence of style, and charm of the Imperial
Roman jurists have never been surpassed in subsequent ages.
A sketch of each of the principal Roman jurists now follows.
Africanus. Sextus Caecilius Africanus (died before ^^ A. D. §77
169-175) was probably a pupil of the great jurist Julian.""
Aulus Gellius"! gives an account of the Law of the XII Tables
as discussed by Africanus, — which constitutes a large part of
what is now known about that ancient Roman statute. Afri-
canus was the author of Epistulae and Quaestiones . In the
Digest of Justinian are 131 extracts from the latter work."^
Aristo. Titius Aristo (died after A.D. 105) is probably the §78
name of this jurist who was a warm friend of Pliny the younger.
Aristo was a pupil of Cassius."* He was the author of notes
"' The Republican, not the Imperial, Scaevola: see supra § 53.
i°* Roby, Introduction to the Digest, pp. Ixxxvii.
"' Clark, Roman private law: sources, p. 120.
"» See infra § 89.
"1 XX, 1.
"2 Roby, Introduction to the Digest, p. clxx.
1" See infra § 81.
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72 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
on some of the works of Labeo, Sabinus, and Cassius. Aristo
was a member of the Council of Trajan. In the Digest of
Justinian Aristo is referred to eighty times. "^
§79 Callistratus. This 3d century jurist (died after "* A.D. 211)
was probably a Greek. He wrote these important works:
De cognitionibus, Edictum monitorium, De jure fisci, Institu-
tiones, and Quaestiones. In the Digest of Justinian there are
101 extracts from Callistratus."^ The following passages are
from Callistratus' works: "Custom is the best interpreter of
the laws.^^' The good faith of witnesses should be diligently
examined.""*
§ 80 Capito. Caius Ateius Capito (consul sufifectus "' A.D. 5,
died A.D. 22) was the great rival of the jurist Labeo. Capito
obsequiously favored the Imperial government, and was pre-
ferred by Augustus to the sturdy Republican Labeo. In
addition to his consulship, he received the appointment in
A.D. 16 of curator aquarum^^'^ (water commissioner of Rome),
which office he held until his death. Tacitus the historian
calls him a skilled lawyer. Capito wrote the Conjectanea,
and books on the pontifical law and the senatorial office. He
is cited twice "^^^ in the Digest of Justinian. Capito was the
founder of that party of Roman lawyers later known as the
Sabinian school.
§81 Cassius. Caius Cassius Longinus (died c.^^^ A.D. 69-79)
was the grandson of the famous Republican jurist Tubero
and great-grandson of the well-known Republican jurist
Sulpicius.^^' Cassius was a member of that family to which
1" Roby, Introduction to the Digest, p. clvi.
11^ See Dig. 1, 19, 3, 2, and Clark, Roman private law: sources, p. 140,
note 220.
"* Roby, Introduction to the Digest, p. cciv.
11' Dig. 1, 3, 37.
"8 Dig. 22, 5, 3.
"' A sort of vice-consul available to act as consul if the latter died or was
disabled.
i2» Frontinus, Aq. 102.
121 Dig. 8, 2, 13, 1 and Dig. 23, 2, 29.
1^ During the reign of Vespasian: Roby, Introduction to the Digest,
p. cxivi.
12' See supra § 53.
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EARLY EMPIRE: IMPERIAL JURISTS 73
the conspirator against Caesar belonged. Consul ^^^ in A.D. 30,
propraetot of Syria in A.D. 49, he was of stern and dignified
character. Falling under the Suspicions of Nero, he was
banished in A.D. 65 to Sardinia, but was recalled by Vespasian
during whose reign he died.
The fame of Cassius as a lawyer was great, so much so that
the school headed by Capito and Sabinus was frequently
called the Cassian.^^^ The subsequent jurists Aristo^^^ and
Javolenus'" wrote notes on some of Cassius' works. In the
Digest of Justinian there are more than one hundred refer-
ences to Cassius. "^^^
Celsus pater. Juventius Celsus (c.i^s A.D. 70-96) was the §82
successor of Pegasus as head of the Proculian school founded
by Labeo. If Celsus is mentioned without pater, it means
his son who was more famous than the father. Celsus pater
is mentioned a few times in the Digest of Justinian.^'"
Celsus (filius) . Of Publius J uventius Celsus Titius Aufidius § 83
Oenus Severianus"^ (died after A.D. 129) very little is known.
He was a member of the Emperor Hadrian's Council; and
consul for the second time in A.D. 129, during which year
the important statute SC. Juventianum was enacted, being
named after this Juventius Celsus. This Celsus was the son
of Celsus pater P^ When the pater is not added to Celsus,
the son alone is meant. Celsus succeeded his father as head
of the Proculian school originally started by Labeo.
Celsus was "a man of sharp temper and vigorous expres-
sion."'^' During the Middle Ages the expression responsum
Celsinum was a proverbial expression for a sharp answer. '^^
^^ Suffectus, see supra § 80.
^^ PVmy, Ep. vii, 24: Gaius 1, 196; Vatican Frag. 1; Ulpian, Regulae,
11, 28; Dig. 1, 2, 2, 52; Dig. 39, 6, 35; Dig. 47, 2, 18.
126 See supra § 78.
1" See infra § 88.
'2' Roby, Introduction to the Digest, p. cxlviii.
12' Clark, Roman law: sources, p. 112.
"0 See Dig. 12, 4, 3; Dig. 31, 20, 29; Dig. 17, 1, 39.
"1 Id. 5, 3, 20, 6, gives his full name.
"2 See supra §82.
''^ Roby, Introduction to the Digest, p. clxi.
^^ Roby, Id. ; Girard, Melanges, vol. i, pp. 1-26 (Responsum Celsinum).
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74 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
This epithet thus arose: on one occasion Celsus was con-
sulted by a certain Domitius Labeo, — the Digest ^^^ report
(taken from Celsus' own Digest) gives an interesting account
of the particulars: "Domitius Labeo to Celsus, greeting: 'I
ask this question, whether one who has been summoned to
write a will, and has written and sealed it, may be counted
as one of the witnesses to the will?' Juventius Celsus to
Labeo, greeting: 'Either I do not understand why you have
consulted me, or your question is extremely foolish; for it is
more than ridiculous to doubt whether a man can act as a
witness when he himself has written the will.' " And the name
of the questioner was also applied in the Middle Ages to
proverbially denote a foolish question, — quaestib Domitiana.^^^
Celsus was a jurist of the first rank, and his opinions were
very highly regarded by subsequent jurists. His style was
epigrammatic and elegant. Celsus was the author of several
very valuable works : the Digesta in thirty-nine books, Quaes-
tiones,Epistulae, and Commentarii. In the Digest of Justinian
there are 141 extracts and 176 citations from Celsus. i"
The following passages from Celsus show his style: "To
know the laws is not to apprehend their words, but their force
and power. ^^' Justice is the art of what is just and right.^^'
That which the very nature of things prevents is not to be
established by any law."" An action is nothing else than a
right to obtain in court what is due to a person. ^^^ There is
no obligation as to things which are impossible."^ The sea-
shore extends as far as the highest tide reaches."' A lawful
marriage is not contracted against the will of the parties."*
He is in possession who possesses in the name of another."^
No indulgence is allowable for fear that is unfounded.""^
§ 84 Clemens. Terentius Clemens (c."' A.D. 161) was the
author of a famous book on the Leges Julia et Papia Poppaea,
"5 Digest of Justinian, 28, 1, 27. "' Dig. 44, 7, 51.
"" Roby, Id.; Girard, Id. '" ^k- 50, 17, 185.
'" Roby, Introduction to the Digest, =' ' '
, .. 1 ... ^^^ D%g. 23, 2, 22.
pp. clxu-clxm. ».Zp441,2,18.
"»Zlig. 1, 3, 17. "epig. 50, 17. 184.
"^Dig.\,\,l,pr. "'Clark, Roman private law:
"» Dig. 50, 17, 188. sources, p. 120.
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EARLY EMPIRE: IMPERIAL JURISTS 75
thirty-five extracts of which are contained in Justinian's Digest.
The following is from Clemens: "He is deemed in being, who
at the time of the decedent's death was in utero." ^^^
Florentinus. The jurist Florentinus (died after i« A.D. 161) § 85
was the author of Institutiones in twelve books, from which
forty-two extracts have been inserted in the Digest of Justinian,
and a few in the Institutes of the same Emperor. i^" The fol-
lowing passages are from Florentinus : "Freedom is the natural
right to do as one pleases except as prevented by violence or
law.^" Betrothal is the declaration and mutual promise of a
future marriage. '^^^ The ownership of property deposited with
another remains in the depositor." ^^^
Gaius. This talented jurist (died after i^* c. A.D. 180) §86
lived in the latter half of the 2d century during the reigns of
Hadrian, Antoninus Pius, Marcus Aurelius, and Commodus.
Gaius is perhaps the Roman jurist best remembered by
moderns. ^^^ Who Gaius was is not known, — not even his
family name is known, for "Gaius" is only a first name or
praenomen. It is supposed that Gaius was a Greek. Cer-
tain German scholars make the very curious claim that Gaius
was really a woman, i*'' — but such seems naturally impossible
because of Gaius' remarkable legal genius. Gaius undoubtedly
was a public teacher and law professor. To Gaius are due
the beginnings of Comparative Jurisprudence: he was the
first to compare Roman law with that of other nations on
specific points of law.'^"
"8 Dig. 50, 16, 153.
'■^^ Dig. 41, 1, 16 where he calls the Emperor Antoninus Pius "divus"
(deceased). See Clark, Roman private law: sources, p. 139.
'^^ Roby, Introduction to the Digest, pp. ccv-ccvi.
isiZPig. 1,5, 4.
^^^ Dig. 23, 1, 1.
153 Dig. 16, 3, 17, 1.
1** Poste, Gaius*, p. Iv.
155 On Gaius, see Great jurists of the world, pp. 1-16 (vol. ii, Continental
Legal History Series, Boston, 1914).
"n Deutsche Juristen-Zeitung, 1 Oct.-15 Dec. 1908. See also Dig. 35, 1,
63, 1, "Si verum amafnus durior haec condicio est quam ilia ... 'si
non nubserit' "; Gaius, 1, 144 and 190.
1" Gaius 1, 193, as to contracts of married women and infants, — with
the law of the Bithynians; Gaius 3, 96, as to obligations contracted by
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76 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
(§86) The great fame of Gaius arises from the royal road he made
to the study of law when he composed his wonderful and very
celebrated Institutes,^^ ■which have served as a model for all
subsequent writers of text-books on law, especially elementary
treatises, including our own Blackstone and Kent. Gaius'
Institutes have never been surpassed in excellence as an ele-
mentary law book for students. His work reveals an accom-
plished teacher, possessed of the power of clear and precise
analysis and using no superfluous or poorly chosen words.
Gaius hit most successfully the happy medium "between
pedantic precision and loose generality of statement. "^^' The
charm and excellence of his Institutes lived for centuries after
his death. Justinian's Institutes are largely a revision of
Gaius, made four centuries later. The manuscript of Gaius'
Institutes is a modern discovery made by Niebuhr in A.D.
1816 in the library of the Chapter at Verona. i^"
Gaius was a very voluminous writer. He wrote a Commen-
tary on the Provincial Edict in thirty-two books; a Com-
mentary on the Edict of the praetor urbanus ; fifteen books
Ad leges (various statutes) ; a work De verborum obligationibus,
a work De manumissionibus ; a book on Trusts; books on
Cases, Rules, Dowry, and Hypothec; his work of Institutes
mentioned above ; and the Res cottidianae, or, as later admirers
called it, Aurea, which was intended to supplement the Insti-
tutes and went more into details for practitioners. In the
Digest of Justinian are 535 extracts from Gaius.^^i With
Gaius, a Sabinian, the opposition of the Sabinian and Proculian
schools — founded by Capito^^^ and Labeo^^^ respectively —
came to an end.
oath, — with the laws of foreign states upon search; Gaius, 1 , 65, as to the
paternal power, — with the law of the Galatians. GHmmerings of the value
of comparative law study are found in Caesar, De bell. Gall, i, 65.
168 Institutionum juris civilis commentarii quattuor.
16' Roby, Introd. to the Digest, p. clxxxiii.
IS" The text is given in vol. i of Collectio lihrorum juris ante-Justiniani
(Krueger, Mommsen, Studemund), Berlin. Among English translations of
Gaius' Institutes are those of Poste, Muirhead, arfd Abdy and Walker.
See infra vol. iii, § 948.
i*"- Roby, Introduction to the Digest, p. clxxxii.
i«2 See supra § 80. "' See infra § 90.
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EARLY EMPIRE: IMPERIAL JURISTS 77
The following are interesting excerpts from Gaius: "A
man's house is his castle. i^* In the whole is also contained a
part."^ Now the law which we use relates either to persons, or
to things, or to actions. ^^^ Actions in personam are not
generally available against an heir.i" Defendants rather than
plaintiffs are to be more favorably treated. ^^* Always in
ambiguities (as to legacies) , the more favorable interpretation
should be preferred. ^^' A creditor who permits the thing
pledged to be sold loses his security."" Want of skill is
equivalent to negligence"'-."
Hermogenian. The 4th century jurist Hermogenianus who §87
lived during the reign of Constantine the Great (A.D. 306-37)
is customarily included in the list of the jurists of the Early
Empire, for in the Digest of Justinian there are 107 extracts
from Hermogenian's works. "^ Hermogenian is probably"'
the same Hermogenian who was the author of the Hermo-
genian Code (Codex Hermogenianus), which is a collection
of Imperial statutes compiled in the reign of Constantine the
Great.
Hermogenian was the author of Juris epitomae and perhaps
Fideicommissa (the latter, however, is now thought"* to be a
work of the earlier jurist Ulpian"*). The following extracts
from Hermogenian show his style: "The State always has a
right of lien."^ It is useless to make a promise how another
person will act."' Contumacious persons are those who,
when they ought to obey, refuse to do so."* Sureties are
"* Dig. 2, 4, 18. See Broom, Maxims, p. 321.
165 Dig. SO, 17, 113.
"spjg. 1,5, 1.
1" Dig. 50, 17, 111, 1. See Broom, Maxims, p. 702.
"8 Dig. 60, 17, 125.
"" Dig. 50, 17, 56.
""Dig. 60, 17, 183. See also, Phillimore, Maxims, p. 249.
"1 Dig. 50, 17, 132. See also Phillimore, Id. p. 230.
1" Roby, Jntroductioii to the Digest, p. ccviii.
1" Clark, Id. Contra, Roby, Id. See infra § 126.
1'* Clark, Roman private law: sources, p. 143.
i'6 See infra § 108.
>" Dig. 49, 14, 46, 3.
i'''' Dig. 4=9, 1, 65.
^■'^ Dig. 42, 1, 63, §2.
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78 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
not liable unless they promise to pay or do something in the
future.™"
1 88 Javolenus. Of Caius Octavius Tidius Tossianus Javolenus
Priscus (consul before A.D. 90) little is known except his very
odd name.i^" He received the privilege of jtis respondendi
during Trajan's reign, and in A.D. 106 or 107 was a member of
Trajan's Council. Javolenus succeeded Caelius Sabinus^*'^ as
head of the Sabinian school of jurists originally started by
Capito.i^^ Javolenus wrote a large book of Epistulae and
Commentaries on works of Labeo, 18' Cassius/^^ and Plautius.^^^
In the Digest of Justinian there are 206 extracts of Javolenus'
works. '^^^ The following passages were written by him : "The
State cannot lose a public highway by non-user. ^^^ In all acts
of transferring ownership there must be a meeting of the minds
of the contracting parties. i^'"
! 89 Julian. Fublius Salvius Julianus (died beforei^' A.D. 169)
held high offices of state including the praetorship, consulship,
and city prefect (praefectus urbi) . He was also a member of
the Emperor Hadrian's Council. i^" He was the grandfather of
the unfortunate Emperor Didius Julianus, who succeeded
Pertinax in A.D. 193 and was murdered in the same year.""^
The jurist Julian ^'^ succeeded Javolenus"' as one of the heads
of the Sabinian school originally founded by Capito.^^* So
I'spig. 46, 1, 65.
""Clark, Roman private law: sources, p. 114.
181 See infra § 104.
"2 See supra § 80.
i«3 See infra §90.
iM See supra §81.
1*5 Plautius was a jurist of note of about the time of Vespasian (A.D.
69-79) or later in the 1st century.
1** Roby, Introduction to the Digest, p. clx.
1" Dig. 43, 11,2.
188 x)jg. 44, 7, 65.
1*' Clark, Roman private law: sources, p. 119.
i™ Hadrian reigned A.D. 117-138.
"1 Spartianus, Did., Jul., 1.
1'^ An interesting book on him has been written by Buhl, Salvius Julianus,
Heidelberg, 1886.
i»3 See supra §88.
i»< See supra § 80.
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EARLY EMPIRE: IMPERIAL JURISTS 79
great was his ability that the Sabinian school finally triumphed
over its ancient rival the Proculian, which finally died out.
Ultimately all became Sabinian. ^^^
The Emperor Hadrian instructed Julian to revise and ar-
range the Edicts of the praetors — both the praetor for citizens
{praetor urbanus) and praetor for foreigners {praetor pere-
grinus) — and parts of the edict of the curule aediles. When
Julian had completed this great and difficult task, his work was
ratified by a senatusconsultum '^^ of the year A.D. 131. There-
after references to the Edictum perpetuum meant Julian's
compilation of the Edict.''' And thereafter the Imperial re-
scripts performed the legislative function of praetors prior to
Julian.
Julian was the author of several works of very great value.
His principal work, the Digesta, was in ninety books. In the
Digest of Justinian there are 456 extracts and 620 citations of
Julian's works. '^^ The following excerpts show Julian's style:
"Whenever a phrase expresses two meanings, that is to be
accepted which is the more fitted for accomplishing the acf ' (in
question) . A person is deemed to have entered into a contract
in that place where he has obligated himself to perform. ^^
He ceases to be a debtor who has a just defense not incon-
sistent with natural equity .^"1 An inheritance (hereditas) is
nothing else than an entire succession to a deceased person .^"2"
Labeo. Marcus Antistius Labeo (c. 50 B.C. — A.D. 20) §90
was a pupil of several prominent jurisconsults of the last half
century of the Republic, particularly the famous Trebatius,^"'
from whom largely he received his legal training. Labeo was
sternly opposed to the Imperial government of Augustus,
being Republican in politics. And at times he was not afraid
1"* Karlowa, Rom. Rechtsgeschichte, vol. i, p. 709.
"« Const., Tanta, §18; Const. MSunev, §18. See also Code 4, 5, 10;
Code, 6, 61, 5.
1" See Dig. 31, 77, 29; Code, 2, 1, 3.
"* Roby, Introduction to the Digest, pp. clxvii-clxviii.
"» Dig. 60, 17, 67.
=»»nig. 43, 7, 21.
^"1 Dig. 60, 17, 66. See also Phillimore, Maxims, p. 214.
=»2 Dig. 60, 17, 32.
''"^ See supra § 53.
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80 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
(§90) to manifest his animosity to the Imperial rule, so much
so that he rejected an offer of Augustus to make him con-
sul,^"* for which Tacitus the historian greatly praises him.^o^
Labeo's great rival was the jurist Capitol,^"' whom Augustus
favored.
Labeo was profoundly versed in Roman legal antiquities,
and was a stickler for the old constitution. Being a man of
wide culture and trained in philosophy, Labeo's criticism of
the Imperial regime undoubtedly operated along scientific
as well as practical lines, and indirectly assisted in developing
the Imperial law into a consistent whole. Labeo was the
founder of that party of Roman lawyers later known as the
Proculian school.
Labeo's knowledge of the Roman law of his day was emin-
ently profound. It was Labeo who removed all doubts as to
the validity of codicils,^"' in his day an entirely new develop-
ment of the Roman law of testamentary disposition. The
2d century jurist Pomponius^"^ says that Labeo wrote 400
legal treatises, many of which were still useful to lawyers
living one hundred years after Labeo.
Labeo's two works, the Pithana and Posteriores libri, were
well-known to subsequent jurists. The Pithana (Probabilities)
was abridged by the 3d century jurist Paulus,^"' and there are
thirty-four extracts of this abridgment of Labeo in the Digest
of Justinian. 21" Labeo's Posteriores libri were abridged by the
2d century jurist Javdlenus^"; and in the Digest of Justinian
there are seventy-four extracts of Labeo abridged.^'^ Labeo
wrote also works on the law of the Pontifices and on the
XII Tables. Labeo is cited 540^1' times in the Digest of
Justinian.
2»'i Consul suffectus, explained, supra § 80.
2"Mre. iii, 75.
"8 See supra § 80.
«»' Inst. 2, 25, pr.
2°s See infra §101.
2»9 See infra § 99.
'^'' Roby, Introduction to the Digest, p. cxxvi.
»i See supra § 88.
^'^ Roby, Introduction to the Digest, p. cxxvi.
^'^ Roby, Introduction to the Digest, p. cxxvii.
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EARLY EMPIRE: IMPERIAL JURISTS 81
Maecian. Lucius Volusius Maecianus (died^" A.D. 175) §91
was instructor of law of the Emperor Marcus Aurelius, while
heir to the throne, and subsequently became one of his Council.
It is quite possible that Maecian was a pupil of the great
jurist Julian.21* Maecian, while governor of Alexandria, was
killed in A.D. 175 by the army, because he took part in an
insurrection against his Imperial pupil.
Maecian was the author of several valuable works : Fideicom-
missa, Publica, on the lex Rhodia,^i^ and a short elementary
treatise addressed to Caesar — probably Marcus Aurelius.
In the Digest of Justinian there are forty-four extracts and ,
seventeen citations from Maecian.^" The following passage is
characteristic: "In doubtful expressions the best interpreta-
tion is the purpose of the person using them.''^^'
Marcellus. Lucius Ulpius Marcellus (died after "s A.D. §92
166) was a member of the legal Councils of Antoninus Pius
and Marcus Aurelius, and probably Imperial legate pro
praetore in Lowe ■ Pannonia. Some authorities identify him
also with that Ulpius Marpellus sent by the Emperor Com-
modus to Britain on a military expedition against the Britons,
and who was so successful that he just escaped being put to
death in A.D. 184 by that Emperor.^^o
Marcellus wrote notes on the jurists Julian ^^^ and Pom-
ponius.^^^ Marcellus was the author also of Digesta in thirty-
one books, a work Ad leges, and a book of Responsa. The
3d century jurist Ulpian ^^s wrote notes on Marcellus' writings.
In the Digest of Justinian there are 161 extracts from Mar-
cellus.^^* The following passages from Marcellus are interest-
ing: "An heir does not inherit a criminal action against the
2» Capitolinus, Vita M. Ant., 25.
216 Dig. 34, 2, 30, 7.
"8 See Dig. 14, 2, 9.
^" Roby, Introduction to the Digest, p. clxxiii.
218 Dig. 50, 17, 96. See Phillimore, Maxims, p. 296.
2'' Clark, Roman private law: sources, p. 123.
22" Dio Cassius, Ixxii, 8.
2" See supra § 89.
222 See infra § 101.
223 See infra § 108.
2" Roby, Introduction to the Digest, p. clxxxv.
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82 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
deceased ^^^ (ancestor) . A gift mortis causa takes effect
immediately .22^ When equity clearly is demanded relief must
be fumished.^^'' In a doubtful matter it is more just as well
as safe to follow the more favorable interpretation. ^2'"
§93 Marcian. Aelius Marcianus (died after ^^a A.D. 217) was
a jurist of great ability. He wrote several important
works : De appellationibus (on Appeals) ; on Rules ; on Publica
(Criminal Procedure) ; De delatoribus (on Informers) ; on
Hypothec; notes on the jurist Papinian's ^^^ De adulteriis;
and Institutiones in sixteen books. In his Institutes Marcian
pursued the plan of Gains' ^^^ Institutes, but in greater detail
and with an addition of Public Law.^'^ The Institutes of
Marcian were made use of by the 6th century Tribonian and
his colleagues in writing Justinian's Institutes.^''
Marcian was a heavy contributor to the Digest of Justinian,
which contains 283 extracts from his works.^** The following
excerpts show Marcian's style. "The burden of proof always
rests on him who makes a claim.^'^ A gift is that which with-
out any legal compulsion or duty is voluntarily bestowed. ^'^
(Of two dying together in a common disaster) neither is pre-
sumed to survive the other .^""
§94 Modestinus. Herennius Modestinus (died after ^'s A.D.
244) is the last Roman jurist to succeed to eminence. He was
probably a pupil of the famous jurist Ulpian.^'^ Modestinus
was at one time a law teacher to the Emperor Maximin's son,
who with the father was murdered A.D. 238. In the year
225 Dig. 39, 1, 22.
225 Dig. 39, 6, 38.
=" Dig. 50, 17, 183.
228 Dig. 50, 17, 192, 1.
22' Clark, Roman private law: sources, p. 141.
23« See infra § 98.
231 See supra § 86.
232 Krueger, Quellen, etc., pp. 229, 300; Clark, Id. p. 141.
233 See Inst. 4, 3, 1.
23* Roby, Introduction to the Digest, p. cciv.
236 Dig. 22, 3, 21.
23° Dig. 50, 16, 214.
23' Dig. 34, 5, 18, pr.
238 Clark, Roman private law: sources, pp. 138, 139.
2'» See infra § 108.
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EARLY EMPIRE: IMPERIAL JURISTS 83
244 Modestinus was a high officer of state (a praefechis vigi-
lum^*°) under the Emperor Gordian.
Modestinus was the author of fifteen works, the chief of
which- are: Responsa (nineteen books), Pandekton (twelve
books), Regulae (ten books). Differentiae (nine hooks) , Excusa-
tiones (six books) , and Punishments (four books) . TheExcusa-
tiones^*^ (grounds for relieving guardians from acting as such)
are unique in that this work was not written in Latin, but
in Greek. Modestinus contributed very heavily to the Digest
of Justinian, which contains 344 extracts from Modestinus.^*^
The following passages show that the high reputation of
Modestinus as a jurist was well deserved: "The scope of
law is this: to command, forbid, allow, punish.^"" Subsequent
statutes have more force in law than earlier ones.^^* A debtor
is understood to be a person from whom against his will money
can be exacted .^''^ A legacy is a gift left by a will. ^*^ Who-
ever, although very remote in degree, become heirs to a
deceased person are regarded as heirs just as much as if they
are heirs of the first degree.^*' Persons related by affinity are
the relatives of husband and wife.^^' There are no grades of
affinity .249"
Neratius. Lucius Neratius Priscus (consul A.D. 83 or 98) §95
was a member of the Emperor Trajan's^^" Council. At one
time he was so influential with Trajan that it was supposed
that he, and not Hadrian, was intended as his successor.
Neratius and Celsus ^i^w^ ^^"^ succeeded Celsus pater ^^^ as joint
heads of the school started by Labeo.^^' Neratius wrote some
important works: the Regulae, Membranae, and Responsa.
In the Digest of Justinian are 64 extracts and 128 citations
^^'' See the Lis fullonum, Bruns, Pontes juris'', pp. 362, 3.
"iSeei>»g. 17, 1.
^■■^ Roby, Introduction to the Digest, p. ccvii.
■»^Dig. 1, 3, 7.
^* Dig. 1, 4, 4. See Brown, Legal Maxims, p. 23.
2«.Djg. 60, 16, 108.
^■'i' Dig. 31, 36. See Phillimore, Maxims, p. 340.
2" Dig. 50, 17, 94. 251 See supra § 83.
«8 Dig. 38, 10, 4, 3. ^^ See supra § 82.
«» Dig. 38, 10, 4, 6. 2" See supra § 90.
25° Reigned A.D. 98-117.
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84 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
of Neratius' works.^^* The following are important pass-
ages: "Fraud is always punishable. ^^5 Nowhere in law should
ignorance of fact and ignorance of law be put on the same
footing ; the wisest may be mistaken on construing a f act.^^^
Three members make a corporation. 2^'"
§96 Nerva {pater). Marcus Cocceius Nerva (died A.D. 33)
was the grandfather of the Emperor Nerva.^^* Nerva the
jurist succeeded Labeo^^' as head of his school. Nerva held
high offices of state including the consulship 2"'' and curator
aquariim (water commissioner of Rome). Nerva is cited
over thirty times in the Digest of Justinian.^^i Nerva was the
father of a jurisconsult less distinguished than himself, —
Nerva. filius. When Nerva alone is employed, it means Nerva
pater.
§97 Nerva (filius). This jurist Nerva (praetor designate A.D.
65) is called filius to distinguish him from his father. ^^^ Nerva
the son was joint head with the famous Proculus^^^ of the
school started by Labeo.^^* Nerva was probably the father
of the Emperor Nerva. The opinions of Nerva the son are
frequently cited in the Digest of Justinian.
§98 Papinian. Aemilius Papinianus (died A.D. 212) was the
greatest of Roman jurists. He came to Rome from the East,
perhaps from the province of Syria. At one time Papinian
probably taught law at Berytus — • modem Beirut — (which
place during the Later Empire became the seat of a very
famous Roman law school) . Papinian ^^^ was a pupil of the
^* Roby, Introduction to the Digest, p. clix.
255Z)tg. 44, 4, 11, 1.
2*6 Dig. 22, 6, 2. See Phillimore, Maxims, p. 96.
^' Dig. 50, 16, 85 (Neratius as reported by Marcellus).
2*8 Reigned A.D. 96-8.
259 See supra § 90.
2^° Suffectus, — explained supra § 80.
2*' Roby, Introduction to the Digest, p. cxliv.
2*2 See supra § 96.
2«3 See infra § 102.
26« See supra § 90.
2"* On Papinian, see Great jurists of the world, pp. 17-31 (vol. ii of Con-
tinental Legal History Series, Boston 1914); Costa, Papiniano, 4 vols.,
Bologna, 1894-98.
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EARLY EMPIRE: IMPERIAL JURISTS 85
distinguished jurist Scaevola,^'^ studying under him at the same (§98)
time when the future Emperor Severus did. Papinian became
an intimate friend and connection by marriage of Severus,
who made him magister libellorum ("master of petitions,"^"
whose duty was to draft the Imperial rescripts) and in A.D.
203 praetorian prefect {praefectus praetorio^^^, the highest
officer of state next to the Emperor) . The praetorian prefects
had not only large military power, but exercised the highest
criminal and civil jurisdiction next to the Emperor.
Papinian's court must have been a remarkably able tribunal,
for at one time the famous jurists Ulpian^''' and Paulus^^" were
among his assistant judges.^'"^ This court visited the island
of Britain during Severus' reign. Papinian was at York at
the time of Severus' death in A.D. 211. Before Severus died,
he commended to Papinian his two sons Caracalla and Geta.
When Geta was murdered by his imperial colleague, Papinian
was asked by Caracalla to justify the murder of his brother
before the Senate and people, — but refused, saying that "It
was easier to commit than to defend parricide. "^'^ This
answer cost Papinian his life. But his death was thoroughly
in accord with his lofty standard of human conduct that
"whatever is immoral we should consider to be impos-
sible." "»
Papinian was the author of Quaestiones in thirty -seven books,
Responsa in nineteen books, Definitiones, De adulteriis, and a
treatise written in Greek ^''* the Latin title of which would be^'^
De officio aedilium curulium. The Digest of Justinian draws
2«« See infra § 105.
2^' Roby, Introduction to the Digest, p. cxci.
268 Papinian had probably already served as judge (assessor) in the court
of the praetorian prefect: Dig. 22, 1, 3, 3.
269 See infra § 108.
"» See infra § 99.
"'iSpart. Pescen. 7; Lampr. Alex. Sev. 26. See Dig. 12, 1, 40; Roby,
Id. p. cxciii.
2'" Spartian, Caracal. 8.
"' See Dig. 28, 7, 15.
""The Greek title was '"Ao-Turo/ii/cAs /uoxii^i/SXos."
2™ Karlowa, Rom. Rechtsgeschichte, i, 737; Clark, Roman private law:
sources, p. 130.
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86 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
(§98) very heavily upon Papinian, — 601 extracts and 153 citations"^
from the "prince of jurisconsults." Papinian followed the
casuistic methods of Scaevola. The style of Papinian is
clear and profound, very adequate in expression, not too many
or too few words, the right word in the right place.^" He is
the master jurist.
The 4th century Constantine the Great took away^'^ all
authority from the notes of Ulpian and Paulus on Papinian,
thus showing how high was his authority. The 5th century
Theodosius H and Valentinian III decreed that in disputed
questions of law the opinion of Papinian should be decisive
as against all other jurists.^^^ The 6th century Justinian
decreed that third-year law students should be called Papin-
ianistae^^'^ in memory of Papinian, whom Justinian praises as
splendissimus, summi ingenii, sublimissimus, acutissimus, pul-
cherrimus, maximus }^^ In Papinian Greek and Roman cul-
ture found its highest combined expression. After Papinian
Roman jurisprudence began to decline.
The following extracts from Papinian's works exhibit his
brilliant legal genius: "This is considered a gift which is
yielded under the compulsion of no legal right.'^^ No one may
change his purpose to the violation of another's right.^^ A
person is not regarded as having lost property which he did not
own.^^^ The law always draws an inference of fraud not from
the event alone but from the intention .^^ In all law particular
words derogate from general words, and that expression is the
most potent which points to a specific object. ^*^ Whatever has
been paid by mistake, or illegally, or for a cause followed by
^'' Roby, Introduction to the Digest, p. cxcvi.
^" See Esmarch, Rom. Rechtsgeschichte', § 133.
"8 Cod. Theod. 1, 4, 1.
"9 Cod. Theod. 1, 4, 3.
^^ Const. Omnem, § 4. A feast was always given to celebrate the first
lecture on Papinian.
2*' See Const. Deo auctore, § 6; Const. Omnem, §§ 1, 4.
282 Dig. 50, 17, 182.
2S3 Dig. 60, 17, 75. See Phillimore, Maxims, p. 31.
28^ Dig. 60, 17, 83. See Phillimore, Id. p. 63.
285 Dig. 50, 17, 79. See Phillimore, Id. p. 42.
286 Dig. 60, 17, 80. See Phillimore, Id. p. 50.
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EARLY EMPIRE: IMPERIAL JURISTS 87
no effect, may be recovered by an action.^^' A rule of public
policy cannot be changed by a private contract.^'^ "
Paulus. Julius Paulus289 (died after^s" A.D. 222) was a pupil § 99
of the famous jurist Scaevola.^'^ Paulus was a contemporary
of the jurist Ulpian^''^ and with him was an associate judge in
the court of the praetorian prefect — the highest court of the
Empire save the Emperor in Council — while the brilliant
jurist Papinian^s' was prefect. Paulus himself subsequently
served as praetorian prefect under the Emperors Caracalla or
Elagabalus and Alexander Severus. Whether Paulus shared
the fate of Ulpian is not known.
Paulus is the most prolific writer cited by the Digest of
Justinian, being the author of seventy works, the chief of
which are: a Commentary on the Edict in eighty books;
Quaestiones in twenty-six books ; Brevia in twenty -three books ;
Responsa in twenty-three books ; Commentaries on the earlier
jurists Sabinus^^* (sixteen books), Plautius^'^ (eighteen books),
Vitellius^'^ (four books), and Neratius^^' (four books) ; Notes
on the earlier jurists Scaevola^'* and Papinian^^'; Epitomes
of Alfenus Varus'"" and Labeo^"^; Ad leges (Julia et Papia
Poppaea) ; Ad legem Sentiam; Fideicommissa; De censibus;
2" Dig. 12, 6, 54. See PhiUimore, Id. p. 69.
2»8 Dig. 2, 14, 38. See PhiUimore, Id. p. 66.
^*' Although the modern French and many English Civilians (e.g.
Amos, Bryce, Hunter, Muirhead, Walton) call him "Paul," the name
Paulus is not a praenomen or first name, but a family name; and to avoid
confusion it is preferable to retain the Latin family name (as is done for
L. Aemilius Paulus who conquered Macedonia in 168 B.C.), — and such
is the practice adopted by Sohm (Ledlie translator), Williams, and Leage
in their modern Roman law works.
^^^ Clark, Roman private law: sources, p. 132.
2« See infra §105.
'^ See infra § 108.
293 See supra §98.
2=4 See infra § 103.
2'^ Lived c. Vespasian or a little later.
29* Lived prior to A.D. 98, — the end of Nerva's reign.
2'' See supra § 95.
29' See infra § 105.
299 See supra § 98.
«»» Died after 39 B.C.
»»i See supra § 90.
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88 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
^99) De jure fisci; De officio proconsulis; De adulteriis; Decreta;
Regulae Sententiae^'^ ; Institutiones ; Manualia; and forty -eight
monographs on all kinds of legal subjects.'"' More than a
sixth of the Digest of Justinian is taken from Paulus.'"*
Paulus contributed 2081 extracts,'"^ — the largest contribu-
tion of any other Roman jurist, Ulpian alone excepted.
The following excerpts from Paulus are evidence of his
ability as a jurist: "Ignorance of the law does not excuse;
ignorance of fact does.'"^ No one should be dragged out of his
house to court."" Later statutes repeal earlier statutes.'"*
Equity is to be regarded in all things especially in administer-
ing the law.'"" It is in accordance with natural equity that the
benefits of property should go to him who suffers its incon-
veniences. 'i" No one commits an actionable wrong unless he did
that which he had no legal right to do.'" No one is a wrongdoer
except him who does what the law does not permit."^^ What-
ever was originally void cannot be cured by lapse of time.'"
He acts fraudulently who sues for what he must restore.'^^
Change of domicil is accomplished by actions, not by a mere
declaration."^^ No one can leave to his heir a greater advantage
than he himself had.'^^ He who is silent does not admit as
""' For the text see vol. ii, Collectio librorum juris ante-Justiniani (ed.
Krueger, Mommsen, Studemund). There is a French translation of the
Sententiae: see French translation of Corpus Juris Civilis, "Le tresor,
etc." See also infra vol. iii, §948.
'"' See Roby, Introduction to the Digest, p. ccii, for a list of these.
=<« Roby, Id. p. cciii.
■ "» Roby, Id.
^o'Dig. 22, 6, 1. See Code 1, 18, 10 and Broom, Legal Maxims, p. 185.
30' Dig. 2, 4, 21. See Broom, Legal Maxims, p. 321.
^"^ Dig. 1, 3, 26. See also Dig. 1, 4, 4 (Modestinus) and Broom, Legal
Maxims, pp. 23-5. With Paulus' statement goes well the following from
Code, 1, 14, 7: "A law ought to be prospective and not retrospective in its
operation."
3»« Dig. 60, 17, 90. See PhiUimore, Maxims, p. 265.
3i» Dig. 50, 17, 10. See PhiUimore, Id. p. 138.
311 Dig. 60, 17, 151.
^^'Dig. 12, 6, 63. See PhiUimore, Id. p. 71.
3" Dig. 60, 17, 29. See PhiUimore, Id. p. 82.
3"X»ig. 60, 17, 173, 3. See PhiUimore, Id. p. 233.
316 Dig. 60, 1, 20. See PhiUimore, Id. p. 162.
si« Dig. 60, 17, 120.
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EARLY EMPIRE: IMPERIAL JURISTS 89
well : but yet it is true that he does not deny.'" He who can
do the greater can do the less.^'* "
Pegasus. The jurist Pegasus (probably consul'^'' A.D. 78 §100
or 79) held all the high offices of state and several provincial
governorships before becoming praefectus urbi (city prefect)
in the reign of Vespasian. Two very important statutes'^"
were enacted during his consulship, '^^ the more important of
which was the famous SC. Pegasianum concerning trust-
bequests (fideicommissa) . So able a jurist was he that he
succeeded Proculus^^^ as head of the school founded by
Labeo.^^' Pegasus is cited twenty-eight times in the Digest of
Justinian.^^*
Pomponius. Sextus Pomponius (died after'" A.D. 161) §101
apparently was a pupil of the famous jurists Pegasus '^^ and
Aristo.'^'' Pomponius was a voluminous writer. He was the
author of a Commentary on Sabinus in thirty-five books, a
Commentary on Q. Mucins'^* in thirty-nine books, a Com-
mentary on the Edict in probably seventy-nine books, and
other works entitled Enchiridion (Handbook) , Senatusconsulta,
Epistulae, Variae lectiones, and Notes on Aristo.'^^ In the
Digest of Justinian are 578 extracts and over 400 citations of
Pomponius' works.''" The following are characteristic of
Pomponius: "The laws are adapted to cases which most fre-
quently occur.'" What is ours cannot, without an act of ours,
be transferred to another."^ Whatever any one suffers through
his own fault does not damage him.'" Whatever not owed
»'Pig. 50, 17, 142. =2° See Gaius 1, 31; 2, 254 and 258"
318 Dig. 60, 17 10. '21 His colleague was Pusio.
'" Inst. 2, 23, 6. '22 See infra § 102.
'^3 See supra § 90.
*^ Roby, Introduction to the Digest, p. cli.
''^ Clark, Roman private law: sources, p. 117.
326 See supra § 100; Dig. 31, 43, 2.
3" See supra § 78.
'28 Scaevola, the famous Republican jurist: see supra § 53.
329 See supra § 78.
33° Roby, Introduction to the Digest, p. clxxii.
331 Dig. 1, 3, 3. See Broom, Legal Maxims, p. 35.
.^^^Dig. 60, 17, 11. See Phillimore, Maxims, p. 278.
333 Dig. 50, 17, 203. See Phillimore, Maxims, p. 247.
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90 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
is paid by mistake, this or as much may be recovered.^'* In
every obligation in which no time (for performance) is set,
performance is due immediately.''^ There is an opposition
from the very nature of things between the words 'testate' and
'intestate.' ="6"
§ 102 Proculus. Sempronius ''' Proculus probably was a con-
temporary of the Emperor Tiberius ''* and his immediate suc-
cessors. What is really known about him is the statement
of Pomponius''^ that Proculus succeeded Nerva'^" as head
of the school founded by Labeo.'*' Because of his eminence
as a jurist the school founded by Labeo was finally known as
the Proculian.'^^ Proculus wrote a valuable work of opinions
on cases submitted to him, entitled the Epistulae. In the
Digest of Justinian there are 37 extracts and 134 citations
of Proculus' works.'^' Proculus is always quoted with great
respect, — for instance, Proculum, sane non levem juris auc-
torem.^'^*
§103 Sabinus (Masurius). The jurist Masurius Sabinus (died
c.'^^ A.D. 64) was the first licensed jurisconsult to exercise the
privilege of jus respondendi, being appointed by Augustus c.'**
A.D. 14. Sabinus was the author of three famous books on
the jus civile, upon which three great subsequent jurists —
Pomponius,'*^ Ulpian,'*^ and Paulus '^^ — wrote celebrated com-
mentaries.'^" But Sabinus' own work is not cited at all in the
Digest of Justinian, although in the latter there are over 200
3« Dig. 12, 6, 7. ^' Reigned A.D. 14^37.
335 Dig. 50, 17, 14. 339 See supra § 101.
336 Dig. 50, 17, 7. 340 See supra § 96.
33' Given in Dig. 31, 47. 34i See supra § 90.
3«2 Ulpian, Regulae, 11, 28; Vatican Frag. 266; Inst. 2, 25.
3*3 Roby, Introduction to the Digest, p. cl.
3« Dig. 37, 14, 17, pr.
3*5 He commented upon the SC. Neronianum, the date of which may be
as early as A.D. 54 or as late as 64. See Gaius 2, 218; Moyle, Inst, of
Justinian, vol. i (5th ed.) p. 290; Clark Roman law: sources, p. 108, n. 41.
3*6 Clark, Id.
3*' See supra § 101.
3*8 See infra § 108.
3*» See supra § 99.
"» Pomponius' commentary was in thirty-five books, Ulpian's in fifty-
one, and Paulus' in sixteen books.
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EARLY EMPIRE: IMPERIAL JURISTS 91
references to Sabinus' other works. '^"^ Sabinus was the suc-
cessor of Capito in his school, and gained such a reputation
as a law teacher '^^ that this school of law was finally called
the Sabinian.
Sabinus. (Caelius) . Cnaeus Arulenus Caelius Sabinus § 104
(consul '^' A.D. 69) was the successor of Cassius as head of the
school started by Capito. He became a high authority during
Vespasian's reign. ^^^ He is cited a few times in the Digest of
Justinian.^*^ When Sabinus alone is mentioned, it generally
refers to Masurius Sabinus.'^'
Scaevola. Quintus Cervidius Scaevola (died after ^" A.D. §105
193) was the principal legal adviser of the Emperor Marcus
Aurelius. The Republican jurist Scaevola ^^^ is generally
referred to as Q. Mucins; when Scaevola alone is used, it
usually means the Imperial jurist Q. Cervidius. Scaevola
was a Greek by birth. He adopted the casuistic method of
setting forth Roman law, expounding it by answers to con-
crete legal cases. Among Scaevola's pupils were the future
Emperor Septimius Severus,'^' the jurist Paulus^*" who later
became eminent, and the brilliant Papinian'^' — greatest of
Roman jurists.
Scaevola wrote some very valuable and important works:
Digesta in forty books ; Quaestiones in twenty books ; Responsa
in six books ; Regulae in four books ; De quaestione familiae ; and
Quaestiones publice tractatae. The later jurists Paulus ^^^ and
5^1 Such as his Memoralia; Responsa; Ad edictum praetoris urbani;
Ad Vitellium; Fasti; Commentarii de indigenis. See Roby, Introduction
to the Digest, p. cxliv.
352 See supra §74.
3*' Suffectus, — explained supra § 80.
'"See Tacitus, Hist, i, 77: Dig. 1, 2, 2, 53. Vespasian reigned A.D.
69-79.
366 See Dig. 21, 1, 14, 17, 20, 38 and 65; Dig. 35, 1, 72, 7.
'5* See supra § 103.
35' Clark, Roman private law: sources, p. 128.
'58 See supra § 53.
^^ Spart., Caracalla, 8.
3™ See supra § 99.
361 Papinian (see supra § 98) was a lecturer in Scaevola's school: Roby,
Introduction to the Digest, p. cxci.
362 See supra § 99.
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92 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
Tryphoninus ^*' wrote notes on his works. Scaevola con-
tributed very much to the Digest of Justinian, which con-
tains 306 extracts and 61 citations of Scaevola. '^^
The following passages show his style: "It is theft when
anyone knowingly has received money not owed to him.'^^
Whatever is written in a will in such a way that it cannot be
understood, is regarded as if it had not been written at all.'''
What the majority o^ a local governing body (curia) does
is regarded as if done by all."''^
106 Tertullian. Perhaps the jurist Tertullianus who wrote his
works prior''* to A.D. 212 is the same person as the famous
Christian Church father Quintus Septimius Florens Tertul-
lianus "^ (c. 155-c. 122) . The ecclesiastical Tertullian was well
acquainted with Roman law, which he studied at his birth-
place, Carthage, and later at Rome where, Eusebius says,
Tertullian became an eminent jurist. The ecclesiastical
Tertullian was converted to Christianity in his mature man-
hood, and he never forgot his earlier life as a lawyer in his
later career as a Christian presbyter — his extant ecclesias-
tical works abound in legal figures and exhibit the profes-
sional art of the advocate."" But to connect Tertullian with
the SC. Tertullianum is not well founded. '''
The probabilities are that the ecclesiastical Tertullian is the
same Tertullian who wrote Quaestiones in eight books and De
castrensi peculio. In the Code''^ and Digest^" of Justinian
there are five extracts and four citations from Tertullian.^'^
=«3 See infra § 107.
'^^ Roby, Introduction to the Digest, p. clxxxvii.
'65 Dig. 13, 1, 18.
»!! Dig. 60, 17, 73, 3.
I" Dig. 50, 1, 19.
'6' See Roby, Introduction to the Digest, p. clxxxix.
'6' See Roby, Id. p. cxc.
''" See Glover, The conflict of religions in the Early Roman Empire, ch. x.
'" This SC. is of uncertain date, being generally referred to the time of
Hadrian (A.D. 117-38) or Antoninus Pius, (A.D. 138-61). See Roby,
Introduction to the Digest, p. clxxvi.
"2 Code, 5, 70, 71.
'"See particularly Dig. 29, 1, 23 and 33; Dig. 49, 17, 4: Dig. 1, 3, 27;
Dig. 41, 1, 28; Dig. 29, 2, 30, 6.
"* Roby, Introduction to Digest, p. clxxxix.
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EARLY EMPIRE: IMPERIAL JURISTS 93
Tryphoninus. Claudius Tryphoninus (died after "6 A.D. 213) § 107
is sometimes referred to as Claudius. Tryphoninus served
with the jurist Papinian"^ in the Council of some Emperor, —
probably Severus.^'^ Tryphoninus seems to have been a pupil
of the famous jurist Scaevola,"^ on whose Digesta he wrote
notes."' There are eighty extracts in the Digest of Justinian
taken from Tryphoninus' Disputationes written in twenty-one
books.^*" The following is an interesting extract: "There is
no indulgence in the law on account of age for him, who, while
invoking the law, breaks the law."'^'
Ulpian. Domitius Ulpianus (died A.D. 228^82) ^^s a Syrian § 108
by birth, born of a Tyrian family. ^^' It is quite likely that at
one time Ulpian was professor at law at Berytus,^84 modem
Beirut (which during the Later Empire became the seat of a
very famous law school). Removing to Rome, Ulpian with
the jurist Paulus^^^ became an associate judge of Papinian,'^^
the greatest of Roman jurists, then praetorian prefect. Under
the Emperor Alexander Severus, Ulpian filled high ofifices of
state,'*'' and in A.D. 222^*8 became praetorian prefect, the
office next highest to the Emperor. Six years later while insti-
tuting reforms — probably trying to subject the military to
the civil power — Ulpian lost his life in a tumult of the soldiers
against him.
5'* There is a rescript of Caracalla's, A.D. 213, addressed to Tryphoninus;
see Code, 1, 9, 1.
"^ See supra § 98.
3" Dig. 49, 14, 50.
3'8 Dig. 20, 6, 12, 1 ; Dig. 49, 17, 19, pr. ; and supra § 105.
3" Dig. 26, 7, 58, 1; Dig. 18, 7, 10.
''° Roby, Introduction to the Digest, p. cxci.
381 Dig. 4, 4, 37.
'*^ Clark, Roman law: sources, p. 136.
3«3 Dig. 60, 15, 1, pr.
'*'' Bremer, Die Rechtschulen, p. 87; Roby, Introduction to the Digest,
p. cxcvii.
'^ See supra § 99.
'^^ See supra § 98.
'" Praefectus annonae, — see Code, 8, 37 (38), 4; Magister ad libellos, —
Spartianus, Vita Pesc. Nig. vii, 3, 4.
388 On Dec. 1 : Code, 4, 65, 4.
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94 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
\wx) Ulpian was the author of twenty-three works. His huge
Commentary on the Edicts in eighty-three books is his
greatest work. He also wrote an exhaustive Commentary on
Sabinus^^' in fifty-one books, a treatise Ad leges (Julia et
Papia Poppaea) in ten books, Disputationes in ten books,
De omnibus tribunalibus in ten books, De officio proconsuUs
in ten books, Fideicommissa in six books, De censibus in
six books, De officio consulis in three books, Institutiones in
two books, De officio praetoris tutelaris in one book, De
appellationibus, De adulteriis in five books, De officio
praefecti urbi, Regulae,^^ Pandectae, Ad legem Sentidm in
four books, and notes on the earlier jurists Papinian'^^ and
Marcellus.392
Of all Roman jurists Ulpian is the largest contributor to
the Digest of Justinian, which contains 2464 extracts from
Ulpian.'^' More than a third of Justinian's Digest is taken
from Ulpian .35^ No other Roman jurist was paid by Jus-
tinian's commission such a tribute in the use of his writings as
was Ulpian.
Ledlie's characterization of Ulpian's great genius is very
illuminating: "Thanks to the liberal extent which Justinian's
compilers drew on his works in composing the Digest, Ulpian
has probably exercised a larger influence over European juris-
prudence than any other jurist. . . . Ulpian was not a
lawyer of the strong originative type like Labeo, Salvius
Julianus, and Papinian, the type that may be said to create —
or, rather,, to discover the law. Ulpian's powers did not lie
in the direction of arduous pioneer-work. His was rather the
faculty of lucid, orderly exposition. . . . He is a consum-
mate master of lucid expression — indeed with Gaius, the
'83 See supra § 103.
"" The text of this work is given in vol. ii, Collectio librorum juris ante-
Justiniani (ed. Krueger, Mommsen, and Studemund). Among English
translations of the Regulae are those of Muirhead, and Abdy and Walker.
See infra vol. iii, § 948.
''1 See supra § 98.
'»2 See supra § 92.
''^ Roby, Introduction to the Digest, p. cc.
''^ Roby, Id., p. cxcix.
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EARLY EMPIRE: IMPERIAL JURISTS 95
greatest master of clear exposition amoBg the Roman
jurists." ^^^
The following extracts are evidence of Ulpian's greatness:
"No one by his own wrongdoing can make his condition
better. '^^ No one can transfer a greater legal right to another
than he himself had."^ Nothing is so opposed to consent
. as force and threats.'^' For honest advice there is
no liability ; but if fraud and cunning intervene an action for
fraud will lie.''' The beginning and the consideration of every
contract are to be considered.*"" Ratification is equivalent
to a command .^""^ The partner of my partner is not my
partner.*"^ The act of the majority done publicly binds ■every-
body.'"'^ In obscure phrases we follow the least obscure.*"*
The judgment of a court is accepted as the truth.*"*"
Venuleius. Venuleius Satuminus (died after*"" A.D. 161) §109
presents an interesting problem of identification. Three
persons of the name of Satuminus are mentioned in the
Digest,*"' all of whom are of the age of the Antonine Emperors.
Probably these three are one, and Venuleius' full name was
Quintus Claudius Venuleius Satuminus.*"* He was governor of
a province under Hadrian, an officer of state under Anton-
inus Pius, and praetor under Marcus Aurelius.
^^^ Great jurists of the world, p. 39 (vol. ii, Continental Legal History
Series, Boston, 1914).
Si's Dig. 50, 17, 134. See Phillimore, Maxims, p. 224.
3" Dig. 50, 17, 54.
398ZPig. 50, 17, 116.
s'9 Dig. 50, 17, 47. See Phillimore, Maxims, p. 237.
too Dig. 17, 1, 8, pr. See Phillimore, Maxims, p. 336.
o"! Dig. 46, 3, 12, 4. See Brown, Legal Maxims, p. 674.
^<^ Dig. 50, 17, 47, 1. See Phillimore, Maxims, p. 188.
'«'Dig. 50, 17, 160, 1. See Phillimore, Id. p. 76.
<« Dig. 50, 17, 9. See Phillimore, Id. p. 390.
^ra Dig. 50, 17, 207. See Phillimore, Id. p. 287.
*»« He wrote certainly after the death of Hadrian in A.D. 138, and
probably lived into the reign of Marcus Aurelius. See Clark, Roman
private law: sources, p. 121.
"' Dig. 48, 19, 15 and 16; Dig. 17, 1, 6, 7; Dig. 34, 2, 19, 7; Dig. 12, 2,
13, 5; Dig. 4, 3, 7, 7; Vatican Frag. 223.
^os Clark, Roman private law: sources, p. 122; Karlowa, Rom. Rechts-
geschichte, i, p. 730. Contra: Roby, Introduction to Digest, p. clxxxiv.
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96 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
Venuleius was the author of five well-known works: Stipu-
lationes , Actiones , De officio proconsulis, Puhlica, and De poenis
paganorum. In the Digest of Justinian there are seventy-one
extracts from Venuleius.^"' The following passages show his
style: "Buildings go with the land.^'^" There is no room for
conjecture as to that which is definite and ascertainable. "i"
§110 Vivian. The jurist Vivianus must have lived during the
1st century A.D., for he reports*'^ decisions of Sabinus,"'
Cassius,^!* and Proculus.^'^ His own opinions were so valu-
able as to be referred to by the 2d century jurists Pom-
ponius,*!^ Scaevola/^^ and Ulpian."'^ Vivian is cited sixteen
times in the Digest of Justinian. *i^
(4) Sources of Roman Law During the Early Empire
§111 I. Statutes of the assemblies (leges, plebiscita). Although
the Republican legislative assemblies were not abolished by
Augustus in establishing the Empire and under the first two
Emperors continued to pass laws, yet with the gradual in-
crease of the Imperial power the authority of the various
comitia declined. By the end of the 1st century A.D. the Sen-
ate had superseded the various legislatures*^" of the Roman
people as the law-making body. In the reign of Nerva ^^^ was
passed the last recorded lex. There are, however, some note-
worthy Imperial leges, such as the celebrated marriage laws
enacted under Augustus — the leges Julia *^^ and Papia
Poppaea.''^^
^"^ Roby, Introduction to the Digest, p. clxxxiii.
"° Dig. 43, 24, 10.
«i Dig. 45, 1, 137, 2. See PhiUimore, Maxims, p. 368.
«2 See Dig. 29, 7, 14.
«3 See supra § 103.
*" See supra § 81.
«s See supra § 102.
««Z?ig. 13, 6, 17, 4; see supra § 101.
41' Dig. 29, 7, 14; see supra § 105.
418 Dtg. 4, 2, 14, 5; see supra § 108.
41' Roby, Introduction to the Digest, p. cliv.
42" See supra § 49.
421 A. D. 96-8.
4'2I,e3c Julia de maritandis ordinibus, enacted A.D. 4.
42' Enacted A.D. 9.
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EARLY EMPIRE: SOURCES OF LAW 97
2. Praetorian and other Edicts. For the first century §112
and a half of the Empire the jus honorarium as embodied
in the edicta of magistrates was a source of Imperial Roman
law. But when in A.D. 131 the jurist Julian, acting under
instructions from the Emperor Hadrian, finished the great
work of compiling the praetorian and aedilician Edicts, the
Edictal law became fixed and permanent. ^^* Thereafter the
jus honorarium ceased to grow, for magistrates were com-
pelled to issue the Edictum Hadrianumas arranged by Julian.
Ambiguities were decided by the Emperors, and supplements
were added by Imperial statues.
3. Opinions of jurisconsults (responsa prudentium). An §113
important source of law during the Early Empire were the
opinions of the Imperial jurists, particularly those juriscon-
sults licensed by Augustus and succeeding emperors to exer-
cise the jus respondendi — thus imposing upon judges the
authority of their decisions.^^^ Responsa of jurisconsults were
a source of Early Imperial Roman law until the middle of the
3d century ,^28 if not later.^"
4. Decrees of the Senate (senatusconsulta). In A.D. 16 § 114
through the efforts of the Emperor Tiberius an attempt was
made to transfer to the Senate *^^ the legislative power of the
assemblies of the people, which was quite successful.^^' The
Seriate continued to put forth more and more enactments,
the validity of which as statutes was fully recognized prior
to the reign of Antoninus Pius*^" and the middle of the 2d
century.
At the close of the 1st century, senatusconsulta had entirely
superseded leges : thereafter Senate acts or decrees were the
normal source of law during the Early Empire until the reign
^2* See supra § 61.
*i5 See supra § § 68 et seq.
^^ The last jurisconsult who arose to eminence was Modestinus (died
after A.D. 244) : see supra § 94.
«' See supra § 68.
«* During the Republic the Senate rarely legislated : see supra § 49.
429j5ig. 1, 1, 2, 9; Tacitus, Annales, 1, 15: "Turn primum e campo
comitia ad patres translata sunt." But some authorities hold that this
passage refers to the electoral comitia and not to the legislative bodies.
«»A.D. 138-61.
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98 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
of Septimius Severus in the beginning of the 3d century /''^
when senatusconsulta were in turn superseded by the statutes
of the Emperors. The decrees of the Senate were regarded
by the Imperial jurists as statutory jus novum, — law often
widely different from the old jus civile and more in harmony
with the principles of the Edict.
A senatusconsultum was quite different in form from a lex
in that it lacked the imperative character of the latter ^'^:
the presiding Consul or Emperor as princeps senatus laid his
proposed law before the Senate in an oratio and this received
the approval (auctoritas) of the Senate; the next step would
have been to send the bill to the comitia^'' for its action, —
but under the Empire this reference soon ceased. And at
the end of the 2d century the supremacy of the Emperor had
become so pronounced that the oratio principis was quoted
as law instead of the Senate resolution which gave it legislative
sanction.
§115 S' Imperial Statutes (constitutiones). By virtue of his
supreme authority the Emperor possessed power to legislate
directly. Originally and perhaps for the first century of
the Empire, the Emperors were invested with absolute power
by a lex regia which gave him Imperial authority, thus appar-
ently recognizing the supremacy of the Senate — the Emperor
was only the "first citizen" of the State.*^* Later the
existence of such lex regia became presumed.*^*
Until however the decline of senatusconsulta became rapid,
the Emperor legislated but rarely. But beginning with the
age of the Antonines statutory and direct expressions of the
Emperor's will — known under the general term of "Con-
stitutions" — became an ever- increasing source of Roman
■ law. And although in the 3d century A.D. the Senate theo-
retically had the right to legislate, yet it is doubtful if it
actually legislated after the reign of Septimius Severus.^^^
«iA.D. 193-211.
^'^ For examples of senatusconsulta, see Bruns, Pontes juris^, pp. 160-202.
^'^ Usually the Comitia tributa.
**" See supra § 55.
^* See Const. Deo auclore, § 7 (one of the prefaces to the Digest of Justin-
ian).
"6 His reign ended A.D. 211.
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EARLY EMPIRE: SOURCES OF LAW 99
From this time onward down into the 6th century and the
reign of Justinian, Imperial statutes became the normal
source of the Later Imperial Roman law.
The Imperial Constitutions were of three sorts: edict,
decree, and rescript. An Edict (edictum) was a general ordin-
ance or statute. A Decree {decretum) was a judgment in a
suit submitted to the Emperor. It made law: courts must
thereafter apply the Imperial solution to analogous cases.
A Rescript (rescriptum) was an opinion on a point of law, —
called technically a Mandate (mandatum) when addressed to
an ofhcial who had solicited the Emperor's advice, or Epistle
(epistola) when the rescript was addressed to an individual.
(5) Influence of Mature Roman Law on Early
Christianity
St. Paul. While Roman law was proceeding to its maturity, § 116
the birth of Christianity occurred and the Christian religion
became formulated. Roman jurisprudence provided early
Christian teachers, from the apostolic times of the 1st century
down to Constantine the Great, with language and modes of
thought which were used to express the truths desired to be
propagated. For three centuries apostles, martyrs, bishops,
and clergy drew on the storehouse of Roman law for linguistic
weapons and ethical doctrines.
St. Paul was the only apostle with a legal training, and his
personifications in his writings are always legal. Into the
language of theology St. Paul incorporated the significance
legally of the Roman law adoption*^''; it is peculiar to St. Paul
and no other sacred writer has used it. St. Paul frequently
uses the legal metaphor of the Roman law hereditas (inheri-
tance or heirship*^^) and the phraseology of the Roman law
of guardianship. ^^^
Ritual of the Church. The ritual of the early Christian §117
Church reveals the influence of Roman law : parts of the modern
ceremony of baptism^'^'^ must have been originally framed upon
*" Ball, St. Paul and the Roman law, pp. 4 et seq.
«s Id. p. 13.
«» Id. p. 14.
"» Ball, Id. pp. 12, 38 et seq.
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100 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
the pattern of the Roman stipulatio (question and answer)
and the claiming with the rod (vindicta) as practised in the
Roman law adoption. The Roman stipulatio (question and
answer) is also seen in the marriage service'^^ even as existing
to-day.
§118 Tertullian. In the writings of Christian writers of the 2d
and 3d centuries the influence of Roman law phraseology is
marked. During these centuries Roman jurisprudence was
at the height of its intellectual activity. Tertullian, one of the
fathers of the church, who was converted to Christianity in
A.D. 185 — ■ five years after the death of the Emperor Marcus
Aurelius- — was the first to employ the word "Trinity" to express
the Godhead. ^^ Tertullian employed the word "Person" to
differentiate the Father, Son, and Holy Spirit. He imported
into the sphere of theology the Roman legal conceptionof a
person **^ as an individual actingin some particular capacity or
condition, and also the corollary that a single person might
play many parts (personae); hence God, although a unit,
might play several parts (personae) namely Father, Son, and
Holy Spirit. How came Tertullian to get this conception of
the manifold personality of the Deity? He was a lawyer ^"^ by
profession, and had practised a number of years at Rome
prior to his conversion.
§119 Lactantius. Another noted Church father, Lactantius, who
died in A.D. 825, — the very year of the Nicene Council —
called his principal work The Divine Institutes, '^^ wherein he
tries to explain the mystic relationship between God and
Christ on the basis of the Roman law relationship of the pater-
familias and his son in power. The reason of this is that Lac-
tantius was once a lawyer. He gave his book a name hitherto
immemorially reserved for Roman legal text-books, namely
"Institutes." 446
**i Ball, St. Paul and the Roman law, pp. 43 et seq.
"« Id. p. 82.
«3 Id. p. 80.
*•* Perhaps actually the noted jurist Tertullian: see supra § 106.
'^ Ball, Id. pp. 92-4.
**" Ball, St. Paul and the Roman law, p. 92.
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THE LATER EMPIRE, A.D. 2M-f^i
II. The Later Empire, A. D. 284-l\5^: Ifdi^
Diocletian to the overthrow of the %^p^^^
Roman Empire by the Turks
Constitutional and political changes made by Diocletian § 120
and Constantine. Diocletian and his successor Constantine
the Great completely reorganized the Roman Empire, trans-
forming it into a highly centralized open absolutism. The
principate and duarchy came to an end. The autocratic power
of the Emperor was no longer concealed as during the Early
Empire. All power was vested in the Emperor. The person
of the Emperor was made more highly respected. Diocletian,
and after him Constantine, adopted the diadem and robes of
an Asiatic monarch. This transition was easy, for during the
Early Empire arose the use of the words "sacred"^*" to denote
the "Imperial" dignity of a living Emperor, and "divine" ^^^ to
mean a "deceased" Emperor.
Constantine, who had a consummate genius for organization
far greater than that of Diocletian, centralized thoroughly the
Roman Empire, and gave it much of the final form which it
preserved for over 1100 years from the first to the last Constan-
tine.^^* Moreover, this later Roman imperialism-has exercised
enormous influence on modern governments, and has reap-
peared in the monarchies of Western Europe. The organiza-
tion of the Roman Catholic Church is largely modeled on the
Imperial organization of Constantine.
Constantine made the military power subject to the civil.
He deprived provincial governors of their military authority
enjoyed under the Early Empire, which had been too often
used to resist the Emperors themselves. The control of the
"' I.e. the adjective sacer, sacra, etc., usually means "Imperial."
**' I.e. the adjective divus or dimnus usually means "deceased." On the
decease of every Emperor the custom was introduced, beginning at the
death of Augustus, that the Senate might solemnly place him among the
gods or deify him. See Gibbon, Decline and fall of the Roman Empire, vol.
i, ch. iii.
^' But the 8th century Leo III returned to Augustus' policy as to the
organization of provinces, see infra § 173.
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102 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
(§120) army was centralized in the Emperor, who appointed distinct
military officers not exercising civil authority. Constantine
thus stamped out military despotism and local revolts.
Constantine completed Diocletian's work of reorganizing
the provincial governments. He divided the entire Empire
into four parts, called prefectures: the East, Illyria, Italy,
and Gaul. Each prefecture was ruled by a praetorian prefect
subject to the Emperor. The prefectures were then sub-
divided into dioceses, each administered by a vicar who was
subject to the praetorian prefect. The dioceses were sub-
divided into provinces, each under the authority of a provin-
cial governor known as rector, president, duke, or count.
Below these were the cities and towns, — the municipal cor-
porations. The government of each city consisted generally
of a city council (curia), over which magistrates known as
duumvirs**" or quattuorviri^^i presided. The inhabitants of
the municipality were later*^^ protected in their rights by a
defensor populi, — somewhat analogous to the old Republican
tribune.*^'
Constantine removed the capital of the Empire from Rome
to Byzantium. The natural situation of Byzantium, renamed
Constantinople in honor of Constantine, was most favorable
for the exercise of a central authority and for purposes of
defense and commerce. Constantine adorned his new capital
lavishly, and invited the senators and noble families of old
Rome to remove to the new city. Doubtless many of them
accepted this invitation which was scarcely distinguishable
from a command. To those who maintained a house in the
new capital Constantine granted hereditary estates from the
Imperial domains in Pontus and Asia.^^* He endowed the new
capital with a Senate,*** and gave to the citizens the privileges
450 Xwo in number.
^^ Four in number.
*52 In the reign of Valentinian I., A.D. 364-75.
■•^'As to the law concerning all these administrative officers, see infra
vol. iii, § 956.
^^* Gibbon, Decline and fall of the Roman Empire, vol. ii, ch. xvii.
«5 Gibbon, Id.
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THE LATER EMPIRE, A.D. 284-1453 103
of the old capital Rome/^^ including frequent and regular dis-
tributions of food, wine, and oil."'
Constantine also transformed the Imperial court on an Orien-
tal basis. He instituted a new nobility with high-sounding
titles: the nobilissimi, illustres, spectabiles, egregii. A large
retinue attended the Emperor at court, and gave him obeisance.
The absolute powers of the Emperor were exercised through
members of his court, whom the Emperor ennobled for their
services. The departments of state were managed by court
officials*^*: the Imperial palace, by the Lord Chamberlain,"'
the reception of ambassadors and the supervision of court
officials, by the Chancellor; public revenues, by a Lord
Treasurer; the proclaiming of laws, by the Quaestor; the
management of the Emperor's private property, by the Lord
of the Privy Purse; the Imperial bodyguard, by two military
officers of high rank. The debt of modern royal courts to
the Imperial court of Constantine for their organization is a
large one.
Constantine's political wisdom was shown by the adoption
of Christianity as a state religion. ^^^ The Empire had already
become largely Christian. Constantine did not, however, pre-
scribe the pagan worship, which was tolerated for many years
later. "The new capital of the East gloried in the singular
advantage that Constantinople was never profaned by the
worship of idols. ''^^ Constantinople alone enjoyed the advan-
tage of being born and educated in the bosom of the (Christian)
faith. ""2
Names descriptive of the Roman Empire from the 4th § 121
to the middle of the 15th century. The Roman Empire from
Diocletian to Constantine XIII has been described by many
names: "Lower," "Later," "Greek," "Graeco-Roman,"
«6 Cod. Theod. 14, 13; Cod. Justinian, 11, 21.
«' Gibbon, Id. ; Cod. Theod. 14, 16.
^°' See infra vol. iii, § 956.
^°' This and immediately following English titles are but approximations
of the Latin titles.
«" See infra § 145.
"''■ Gibbon, Decline and fall of the Roman Empire, vol. ii, ch. xx.
«2 Id.
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104 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
(§121) "Byzantine," "Eastern," "Eastern Roman." But although
these descriptions are convenient and useful, the strictly
correct name is Roman: for an unbroken continuity existed
from Augustus to the last Constantine. To the very end the
Emperor always proudly bore the title of "Roman Emperor"
and his subjects were always "Romans." The heir to the
throne was called "Caesar," as was the usage in Diocletian's
time. The Emperor himself never lost his peculiar title of
"Augustus" (Se/Sao-Tos, in Greek), — which memorialized the
first Roman Emperor, the nephew of Julius Caesar.
To describe the Roman Empire from Diocletian onward as
"Lower," *^' or better, "Later," very aptly marks the great
actual difference in the character of the Empire before and
after Diocletian : the Roman Empire under Diocletian and his
successors is characterized by the definite disappearance of
the influence of the Senate — the principate of the Early
Empire, ^^* with the veiled power of the Emperor as "first
citizen" ^^^ of the State, gave way to the undisguised authority
of the Emperor as an absolute monarch.
The very words "Greek," "Graeco-Roman," and "Byzan-
tine" summarize the unique Graeco-Roman civilization which
radiated from Constantinople — the New Rome which for
centuries was the bulwark of civilization protecting all Western
Europe from being submerged in gross barbarian darkness.
The terms "Eastern" or "Eastern Roman" have a double
meaning. Loosely, these designate the Eastern half of the
Roman Empire for about a century (A.D. 395-476) prior to
the Teutonic destruction of the Roman Empire in Western
Europe, when two lines of Emperors ruled as colleagues at
Rome and Constantinople although practically independent.
But the legitimate use of the terms "Eastern" or "Eastern
Roman" is to distinguish, after the year 800, the original
Roman Empire at Constantinople from the so-called revived
Western Roman Empire established by Charlemagne, and
which lasted until 1806 when Napoleon put an end to it.
*" In French, Bas-empire.
*" In French, Haut-empire.
465 Princeps.
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THE LATER EMPIRE, A.D. 284-1453 105
Diocletian's abandonment of the Republican civil pro- § 122
cedure of the Early Empire soon obliterated all remaining
differences between the jus civile and jus honorarium. With
the advent of the autocratic government of the Later Empire
came a pronounced change in the Roman law of this epoch.
In the year 294 Diocletian abolished **^ the centuries-old
system of civil procedure originating under the Republic, the
cardinal feature of which was that, although the magistrate
heard the pleadings in a lawsuit, ^^^ he did not ordinarily hear
the evidence as a judge, but remitted by a short decree (form-
ula) the case for trial to a referee (judex) who was a private
citizen.***
Diocletian insisted that all causes be tried by the magis-
trates themselves. Only in exceptional cases was the hearing
of the evidence to be delegated to a referee,**' and even this
exceptional practice soon disappeared: in A.D. 342 by a
statute of the sons of Constantine, remittance by formula
of a case for trial was absolutely prohibited.*'" The result was
the obliteration of whatever remained of the old Republican
distinction between jus civile and jus honorarium. ^'"^
The 5th century ValentLnian Law of Citations. A long § 123
preparatory step toward the codification of Roman law was
the statute *'^ of Valentinian III, published from Ravenna in
A.D. 426. By this statute, which was originally drawn up
«« Code, 3, 3, 2; Hunter, Roman law*, p. 1013; Sohm (Ledlie^), Roman
law, p. 299; Muirhead, Roman law'^, p. 360.
''*' The object of the pleadings was to reach a joinder of issue {litiscon-
teslalio), — points in dispute which one party denies and the other affirms.
^ssSee infra vol. ii, "Civil procedure," §§847, 851.
«' Code, 3, 3, 2.
"" Code, 2, 57, 1. See also Code, 2, 57, 2.
^" Not only did the antithesis between proceedings in jure and injudicio
formally disappear, but there was also a practical obliteration of the differ-
ence between actions in jus and in factum, and actiones directae and utiles.
The interdict was transformed into an actio ex interdicto. Furthermore,
it became possible to liberally amend the pleadings, and to give judgment
for specific performance instead of solely for pecuniary damages. Finally,
execution by officers of the law became the rule. See Muirhead, Roman
law', p. 361.
■i™ Cod. Theod. 1, 4, 3. Valentinian was then a child seven years old:
Gibbon, Roman Empire, vol. iii, ch. xxxiii.
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106 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
under the Eastern Emperor Theodosius 11/" official authority
was bestowed on the extant writings of five great Roman
jurists Papinian,^'^ Paulus,*'^ Gaius,*'^ Ulpian,^^'' and Modes-
tinus)^'^ and made their writings citable as authorities for
the law in courts of justice. But if Papinian differed from the
other four jurists, his statement of the law was to prevail.*^'
The Valentinian law^*" also provided that generally **i all
extracts of the writings of earlier jurists used by these five in
their own works should possess legal authority, if properly
verified. The effect of this enactment of Valentinian III was
to restrict the sources of Roman law to the writings of the
five great jurists and the Imperial statutes.
(1) Ante-Justinian Codes of Statutes and Collections
OF Jurisprudence
§ 124 The Roman law of the Later Empire prior to Justinian
exhibited a tendency toward codification, which finally was
accomplished by Justinian. The fourth and latest of the
forces transforming Roman law into a world law was Imperial
legislation,^*^ which put the finishing touches on the task of
making Roman law into a law fit for universal use and finally
accomplished the gigantic task of embodying it in a codifica-
tion. "The logical succession to judicial precedents is codi-
fication." It was true in the Roman law and will be found
true in American law. The plan of digesting and codifying
the Roman law was formed by that wonderfully many-sided
man Julius Caesar himself and by Ofilius, his friend, the most
celebrated of all the Republican jurists.^*' But Caesar's pre-
mature" death removed all possibility of realization of this
plan: over five centuries elapsed before it was realized.
<" Hunter, Roman law*, p. 79. *" See supra § 86.
<"^ See supra § 98. ^" See supra § 108.
«5 See supra § 99. "^ See supra § 94.
«" Cod. Theod. 1, 4, 3.
'^^ It is translated into English by Muirhead, Roman law'', p. 363.
^*iThe notes of Paulus and Ulpian on Papinian were expressly excepted:
Cod. Theod. 1, 4, 3 and 1, 4, 1.
^'2 See supra § 59.
<*' See supra § 53.
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ANTE-JUSTINIAN CODES 107
During the 200 years from Constantine the Great to Jus-
tinian, attempts were made to codify Roman law, — but
with little success. The first step toward codification by
Imperial legislation was naturally to revise and condense the
statutes (constitutiones) of the Emperors, which were now
after several centuries of Empire very numerous. The ante-
Justinian official Roman codes of statutes ^** are illustrations
of this line of work. All endeavors to codify Roman law
made by Emperors prior to Justinian did much to pave the
way for the accomplishment of this mammoth task by Jus-
tinian himself. In his reign the final step to the goal of true
and complete codification was taken : a successful compilation
of the writings of the Roman jurists, — the Digest of Justinian.
The ante- Justinian codes and collections are of three sorts:
official Roman codes of statutes, ^^^ private unofficial Roman
collections of jurisprudence, and Teutonic codes or Leges
Romanae Barbarorum.
A. OFFICIAL ROMAN CODES OF STATUTES
The 3d century Gregorian Code. A certain jurist by the § 125
name of Gregorius compiled, perhaps about A.D. 295, a collec-
tion of Imperial statutes (constitutiones) from Hadrian to
Diocletian.^^' Mommsen thinks ^^' that Gregorius was then a
professor in the law school of Berytus (modern Beirut) . Only
a few fragments of the Gregorian Code was extant, — these
are found chiefly in the ante- Justinian private unofficial
Roman collections of jurisprudence*^^ and some of the Leges
Barbarorum.**' For instance in the Roman law of the Bur-
gundians*'" is this reference: "A freeman is required to
*^The nearest approach to a real codification was the ante-Justinian
Code of Theodosius II, which was part of a plan to form a general code to
supersede all existing law. See infra § 127.
«6 See infra § § 125 et seq.
486 A.D. 117-284.
«"Z. d. Sav. Stifl; xxii, pp. 139 et seq.
488'j'iie Consultatio, Collatio, and Vatican Fragments : see infra §§ 129-30,
132.
4*' The Breviarium of Alaric, and Lex Romana Burgundiorum. See infra
§133.
490 44 4._
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108 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
support his former master; this is in accordance with the
Gregorian law as to the duties of freedom. "^^'
The Gregorian Code was quite a large work, arranged in
books and titles.*'^ Although originally only a private un-
official work, the Gregorian Code subsequently received
statutory sanction from the Emperors Theodosius II and
Valentinian III.^'
§ 126 The 4th century Hermogenian Code. Very late in the 3d
century or in the next century, before A.D. 324, was com-
piled during the reign of Constantine the Great a collection
of contemporary *^* Imperial statutes, principally those of
Diocletian ,^8^ known as the Hermogenian Code. Probably
the jurist Hermogenian was its author.*^* The Hermogenian
Code seems to have been supplementary to the Gregorian
Code. It is much smaller, arranged only in titles.^'' Very
likely there were subsequent additions to it, for its latest
statute is one of the year 365. Only a few fragments of the
Hermogenian Code are extant. ^'^ The Hermogenian Code,
originally the work of private hands, subsequently obtained
statutory sanction from the Emperors Theodosius II and
Valentinian 1 1 1. ^"9
§ 127 The 5th century Theodosian Code. A little over a century
after the death of Constantine the Great the Eastern Emperor
"I Id.
*'^ Extant fragments are collected in Krueger, Mommsen, and Stude-
mund, Collectio librorum juris ante-Justiniani, vol. iii. pp. 236-42, Berlin,
1895. It is translated into French by Daubanton, Le tresor de Vancienne
jurisprudence romaine (one of the volumes of the French translation of the
Corpus Juris: see infra vol. iii, §952).
493 Muirhead, Roman law', p. 366.
^'* It contains no ante-Diocletian constitutions.
"s Especially those of A.D. 293-4.
^'« See supra § 87.
■"^ The extant text is collected in Krueger, Mommsen, and Studemund,
Collectio librorum juris ante-Justiniani, vol. iii, pp. 242-5, Berlin, 1895.
The Hermogenian Code is translated in French by Daubanton (Le tresor,
etc. — in French translation of Corpus Juris, see infra vol. iii, § 952).
*"* These come from the same sources as the Gregorian Code: see supra
§125.
^'° Muirhead, Roman law^, p. 366.
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ANTE-JUSTINIAN CODES 109
Theodosius II published, to go into effect in A.D. 439,^"° an
official collection ^"^ of the Imperial constitutions. Valentinian
III, Western Emperor in the same year, promulgated it for
the Western Empire. Of all ante- Justinian codes the Theodos-
ian is the nearest approach to a general codification. It covers
all the branches of law both public and private, including
criminal, fiscal, administrative, military, ecclesiastical, and
civil law.^"^ It was Theodosius' purpose to also codify the
writings of the jurists, but it never was accomplished until
the reign of Justinian.
The Theodosian Code exerted enormous influence on all bar-
barian law succeeding the conquest of the Western Empire:
the Visigoths, Ostrogoths, Franks, Lombards, Burgundians
made up their Romano-Barbarian codes^"' largely from it. The
Theodosian Code also gives us a picture of industrial Rome in
her last stage of paternalism, corrupting the energies of her
citizens. Finally, the Theodosian Code is our principal au-
thority for the legislation of the early Christian Emperors.
The Theodosian Code consists of sixteen books, divided into
titles^"* and constitutions or leges. The leges are frequently
subdivided into numbered sections. The Theodosian Code is
cited as such and such a book, title, lex or constitution,
section, — as for example "Cod. Theodos. 4, 19, 1, 2." With
the Theodosian Code are now also included the Sirmondian
Constitutions ^"5 or Imperial statutes mostly on ecclesiastical
matters issued A.D. 331-425, being named after Sirmondus
who first published them in 1631.^°^
The 5th century post-Theodosian Novels. Between the § 128
promulgation of the Theodosian Code and Justinian's reign
610 See Novels, of Theodosius, 1 De Theodosiani codicis auctoritate
(in Mommsen-Meyer edition of the Theodosian Code, vol. 2, Berlin, 1895).
^"^ Called Codex Theodosianus, or subsequently often Theodosianus.
'"^Justinian's Code drew heavily upon the Theodosian: see Mommsen-
Meyer edition of Theodosian Code, vol. 1, 1 pp. xiii et seq., Berlin, 1895.
"3 See infra § 133.
'"^Some of the titles are no longer extant: e.g., in book 1, titles 17-19;
in book 33, titles 19-29; in book 5, parts of titles 11-12; in book 6, title 1
and part of title 2.
'"' See vol. 1, part 2 of Mommsen-Meyer edition of the Theodosian (^^ode.
'"^ Krueger, Quellen, p. 294.
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110 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
many Imperial statutes were enacted, which received the name
of Novels (novellae leges). There were several collections of
these all published by Western Emperors until A.D. 476 and
the fall of the Western Empire. These statutes are generally
referred to as post-Theodosian Novels. The extant post-
Theodosian constitutions consist of the Novels of Theodosius
II,5«7 the Novels of Valentinian lll,^"^ the Novels of Marcian.^"^
the Novels of Marjorian/^" the Novels of Leo and Severus,"'
and the Novels of Anthemius.*'^ These Imperial statutes, so
far as extant, are now published in modern editions of the
Theodosian Code.^^*
B. PRIVATE UNOFFICIAL ROMAN COLLECTIONS OF JURIS-
PRUDENCE
§ 129 The 4th or 5th century Comparison of the Mosaic and
Roman laws (Lex Dei quam praecepit Dominus ad Moysen,^"
or, as it is now called, CoUatio legum Mosaicarum et Rom-
anarum). This work is clearly of the Christian era. It was
written between A.D. 390 and 428.51* j^g author is unknown.
That he was an ecclesiastic seems certain.''^ Perhaps St. Am-
brose, bishop of Milan, or even St. Jerome, was the author. ^^^
The Collatio^is is an attempt to compare by parallel passages
the Mosaic and the Roman law, especially as to torts and
6" Of the years A.D. 438-44, 26 in number.
s»s Of the years 438-54, 36 in number.
^o' Of the years 450-55, 5 in number.
6i» Of the years 458-60, 12 in number.
'11 Of the years 463-5, 2 in number.
"2 Of the year 468, 3 in number.
'1^ See Mommsen-Meyer edition of the Theodosian Code, vol. ii, pp. 1-
208, Berlin, 1895.
'" The original title.
'1* Girard, Textes de droit romain^, p. 543; Hyamson, Mos. et Rom. leg.
coll. pp. xlix-lvi.
'1^ See Girard, Id. But Hyamson, Id. p. Ivi, thinks the author was
probably some obscure ecclesiastic who was familiar with Roman law.
6" Id.
'1* It is text given in Girard, Textes de droit romain?, pp. 543, 577;
Krueger, Mommsen, and Studemund, Collectio juris ante Justiniani, vol. iii,
pp. 137-98, Berlin, 1895; Hyamson, Mosaicarum et Rom. legum collatio,
London, 1913, who also gives an English translation thereof.
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ANTE-JUSTINIAN COLLECTIONS 111
punishments. It is one of the earliest known works on com-
parative law.
The author drew upon the Pentateuch for divine law, and
took his human law from the writings of the Roman jurists
Gaius,^" Papinian,^^* Paulus,*^^ Ulpian,^^^ and Modestinus,^^'
and also from the Gregorian and Hermogenian Codes. ^^* His
method is to cite first from Moses, then from Roman jurists
and the ante-Theodosian Codes. For instance, title 6, Of
incestuous marriage, reads in part as follows. "Moses says:
'Whoever shall have married his father's wife has shamed his
father; let them both die; both are guilty. And whoever
shall have married his daughter-in-law let them both die;
both are guilty.' '^^ Paulus in his Sententiae, hook 2, under the
title of marriage says: 'Between parents and children . . .
marriage cannot be contracted; nor can we marry our niece
or grandchild. Nor is it lawful to marry a father-in-law, or
daughter-in-law, or a step-daughter, or a step-mother, with-
out incurring the penalty for incestuous marriage.' The
Hermogenian under the title of marriage says: 'The Emperors
Diocletian and Maximian, Augusti, to Flavian. Imperial
clemency is extended to those who have by mistake con-
tracted an incestuous marriage, so as to relieve them from the
penalty.' "
The 4th or 5th century Vatican Fragments (Fragmenta § 130
Vaticana). In the year 1821 Cardinal Angelo Mai discovered
in the Vatican Library at Rome'^^ a manuscript now known
as the Fragmenta Vaticana, which contains extracts from the
writingsof the Roman jurists Papinian,^^'' Paulus, ^^^ Ulpian,^^'
and others as well as some Imperial statutes dating from Marcus
Aurelius to Valentinian I, inclusive.*'" It also quotes the Gre-
gorian and Hermogenian Codes, ^'^ but not the Theodosian.
What was the original title of the Vatican Fragments is not
5" See supra § 86. '^^ See Girard, Textes de droit
'^i' See supra § 98. romain', p. 482.
S21 See supra § 99. '" See supra § 98.
'22 See supra § 108. '^s gee supra § 99.
523 See supra § 94. '^^ See supra § 108.
524 See supra §§ 12.5, 126. '=" A.D. 163-372.
52= See Leviticus, 20. ''' See supra §§ 12.5, 126.
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112 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
known ; apparently it was a book of practice used in the Western
Empire. ^^^ The Fragmenta Vaticana*'' throw special light on
the subjects of dowry, sale, gifts, guardianship, and usufruct.
§131 The 5th century Syrian-Roman Law Book. In the East
sometime between the Theodosian Code and that of Justinian
was published a manual of Roman law, originally written in
Greek, and translated into Syriac, Arabic, and Armenian.
Much use was made of the Syrian Law Book^'* in the ecclesias-
tical courts. It is not an especially valuable collection of
Roman law, but its importance lies in the evidence it gives as
to the tenacity of Hellenic law in the East, which did not
wholly disappear even after the Edict of Caracalla,'^^ making
Roman law applicable to all citizens throughout the Empire. ^^^
§ 132 The 5th or 6th century Consulta!tio (Consultatio veteris
cujusdam jurisconsult!). This collection"' consists of answers
given by a jurisconsult as to questions of law submitted to
him, — his opinions being fortified by citations of texts of the
Sententiae of Paulus^'^ and the Gregorian, Hermogenian, and
Theodosian Codes. ^'' The Consultatio received its name from
the famous French jurist Cujas,^^" who first published it in
1577.541
C. TEUTONIC CODES OR LEGES ROMANAE BARBARORUM
§ 133 Three 6th century Roman codes compiled by German
Kings from ante- Justinian law. The fall of the Roman Empire
''^ Muirhead, Roman law''; p. 370.
*'' The extant text is given by Girard, Textes de droit romaiv?, pp. 482-
642: Kruger, Mommsen, and Studemund, Coll. juris ante- Just. vol. iii,
pp. 20-106, Berlin, 1905.
^^ It is edited by Bruns and Sachau, Syrisch-romisches Rechtsbuch aus
demfiinften Jahrhundert, Leipzig, 1880. German translation of the versions
of the Syrian Law Book began to be published by Sachau in 1907 (Berlin).
"' See supra § 58.
*'' See Sohm (Ledlie'), Roman law, p. 121.
''' The extant text is found in Girard, Textes de droit remain', pp. 510-
606; Krueger, Mommsen, and Studemund, Collectio juris ante-Justiniani,
vol. iii, pp. 203-20, Berlin, 1896.
''* See supra § 99.
"9 See supra §§ 126, 126, 127.
^'"See infra ch. iii, "France," §246.
"1 Girard, Id. p. 690.
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ANTE-JUSTINIAN CODES 113
in the West was in A.D. 476. But tlie barbarian Teutonic (§133)
tribes who overran Western Europe respected the Roman law
in their conquered territories, anciently belonging to the
Empire. A man was judged according to the law of that
nation to which he belonged. A dual system of law grew up:
one for the Teutonic conqueror, the other for the conquered
Roman. Early in the 6th century the Teutonic Kings, in
addition to their own Germanic laws, caused to be prepared
and promulgated compilations of Roman law drawn from the
documentary sources of ante- Justinian law. Three such
Teutonic Leges Romanae were conspicuous : one of the Ostro-
goths in Italy, one of the Visigoths in Southern France, and
one of the Burgundians. The last ceased to be effective when
the Visigoths conquered Burgundy.
The Italian compilation was the Edict of Theodoric (Edictum
Theodorici) . It was made by the direction of King Theodoric
A.D. 500**^ during his residence at Rome. It bound both
Roman and Ostrogoth for over fifty years, until Justinian's
reconquest of Italy and promulgation of his own Code.'^' The
Sententiae of the jurist Paulus'''* and the Theodosian Code'^^
are the chief sources of Theodoric's Edict.
The compilation made in France was the Code of Alaxic II,
also known as the Breviary (Breviarium Alaricianum ^^ or Lex
Romana Visigothorum) . It was published at Aire, Gascony,
in A.D. 506. Alaric's legislation is based on the Theodosian
Code,"^ the Sententiae of the jurist Paulus '^* and the Insti-
tutes of Gains. *^' The Breviary has preserved to our own time
portions of ante-Justinian Roman law to be found nowhere
else ; and from it Western Europe largely acquired what little
knowledge it had of Roman law prior to the dissemination
of Justinianean Roman law through the Bologna revival
which began late in the 11th century.'*" Furthermore, the
"' Savigny, Geschichte d. rom. Rechts, vol. ii, p. 172 et seq. Others date it
A.D. 506; Hunter, Roman law^, p. 89.
"^The Edict of Theodoric was thus superseded A.D. 554.
'« See supra § 99. "« See supra § 99.
5« See supra § 127. "° See supra § 86.
5« Or Alarici. "" See infra chapter iii, "Italy," § 211.
"' See supra § 127.
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114 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
Code of Alaric marks the beginning of medieval Spanish
law."*
The Burgundian compilation was the Lex Romana Bur-
gundiorum, published by King Sigismund in A.D. 517. Its
sources were principally the Breviary of Alaric, -the Senten-
tiae of the jurist Paulus,*^^ and a work of Gaius.*^'
(2) The Codification of Justinian, — Now Known as
THE Corpus Juris
§ 134 The reign of Justinian. Flavins Anicius Justinian, the
most famous of all the Emperors reigning at Constantinople,
was born in 483 in a small town ^^*of Illyria, that western part
of the Balkan peninsula which borders on the Adriatic from
Fiume to Durazzo. His family was probably Slavic. He took
the name Justinian *^^ from his uncle the Emperor Justin I , who
adopted him and made him heir to the Imperial throne. Jus-
tinian was given the best possible education at Constanti-
nople,"* including very likely a legal training. The reign of
Justinian (A.D. 527—65) , lasting nearly forty years, is renowned
as an age of famous men and great events. The Roman
Empire regained many of her ancient boundaries in the West
through the reconquest of Italy and Africa by the famous
generals of Justinian. Justinian adorned Constantinople
with a majestic architectural monument of his greatness, —
the still extant celebrated Church of Sancta Sophia, unsur-
passable in beauty, which has survived the Roman Empire
herself only to be degraded into a mosque by her Moslem
conquerors. But Justinian's legislation is his grandest monu-
ment and everlasting fame.
§ 135 The 6th century codification of Justinian, — now called
the Corpus Juris Civilis. The marvelous work of codification
promulgated A.D. 529-34 by the Emperor Justinian, which
'" See infra chapter iii, "Spain,"' §280.
^^ See supra § 99.
'^^ See supra § 86.
'•^ Tauresium, identified generally with the modern Kiistendil, although
Uskiib has been suggested.
'** His own name was originally Sabatius.
'*^ See Holmes, Age of Justinian and Theodora, vol. i, p. 302.
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JUSTINIAN'S CODIFICATION 115
marks the final step in the codification of Roman law, is the (§135)
greatest event of the 6th century. Justinian's magnificent
codification is a concise consolidation and amalgamation in
permanent shape of his own statutes, ^^' the statutes of his
predecessors,^^' and the writings of the Roman jurists,''^ — ■
the whole being arranged harmoniously and down to date by
excluding obsolete law or reforming it.
This gigantic task was accomplished in the short space of
six years, largely under the masterly guidance of three men —
Tribonian, Theophilus, and Dorotheus. Tribonian was a
great statesman and served Justinian for many years as a
praetorian prefect — the highest officer of state next to the
Emperor. Theophilus*"" and Dorotheus were renowned pro-
fessors at the law schools of Constantinople and Berytus
(modern Beirut) respectively.
When his codification was completed, Justinian reserved
to the Emperor the power to settle all disputed points. He
then forbade the writing of any commentaries ^^^ concerning
his codification, — a rather idle prohibition not destined to
be forever observed. *^^ Justinian always referred to his grand
codification under the several parts of Code, Digest or Pan-
dects, and Institutes.'*' And this mode of description con-
tinued for many centuries. But Justinian's codification as
a whole, including the Novels, is now called by the general
'''' The Novels of Justinian or statutes enacted 535-65 were not part
of the original codification, although incorporated by medieval and modern
Civilians.
*5s The so-called "jus novum."
'*' The so-called "jus vetus," especially the "jus civile" literature and ^
sources.
*"> Theophilus, professor of law at Constantinople, is famous for his
Greek translation of the Institutes of Justinian which exerted enormous
influence in later Byzantine or post -Justinian Roman law: see infra § 169.
'*^ Const. Tanta, §21 (Monro. Eng. transl. of Digest, vol. i, p. xxxiv).
But the making of Greek translations and notes for difficulties were ex-
pressly excepted: Id.
'"^ See infra "Post-Justinian law," § 169.
■ **'This is the order in which the several parts were actually codified;
it is not the chronological order of publication which is Code (first edition),
Institutes, Digest, and Code (second edition). See infra §§ 136 et seq.
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116 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
descriptive name of "Corpus Juris Civilis,"*" an expression *^^
which came into use late in the 16th century from the famous
French jurist Denis Godefroy (Gothofredus) , who first used
this term in his 1583 edition of Justinian's monumental codi-
fication.'^^ The expression "Corpus Juris," so familiar and
frequent in modern legal literature, is but a correct shortened
form of Godefroy's title.
§136 The Code of 529, second and revised edition, 534. Jus-
tinian's grand codification was begun in the year 528, when
he ordered the drafting of a Code of the Imperial statutes.
Two editions of this Code were published, the second edition
being five years later than the first. The second edition alone
is now extant.
1. First edition. Justinian had been on the throne only
a little over six months when he appointed a commission of
ten, among whom were the famous Tribonian and Theophilus,
to make a collection of all the non-obsolete statute law of the
Gregorian,*^" Hermogenian,'^* and Theodosian *^' Codes.*™ A
little over a year later this new Code of statutes {Codex Jus-
tinianus^''^) was published in 529. ^'^
2. Second edition. Five years later in 534 the original
edition of the Code was superseded by a revised edition, —
the present Code of Justinian which has survived to modern
^^ The latest and best edition of the text is Mommsen, Krueger, Schoell,
and KroU, Corpus Juris Civilis, editio stereotypa, 3 vols., Berlin, 1880-1908
(for further particulars, see infra vol. iii, § 952) . There are complete French
and German translations of the Corpus Juris, and a partial English trans-
lation: see infra vol. iii, § 952).
'** In one of his statutes Justinian uses the expression "corpus juris"
(see Code, 5, 13, pr. 1). The historian Livy (iii, 34) calls the XII Tables
"corpus omnis Romani juris."
^^^ Smith, Diet, of Antiquities, "Corpus Juris Civilis." See also infra
§247.
'" See supra § 125.
'°* See supra § 126.
569 See supra § 127.
''" Const. Haec quae necessario (Feb. 13, 528), the first preface to the
Code of Justinian.
*'i It is sometimes called the Codex vetus. It is no longer extant.
*'^ April 7, 629: see Const. Summa rei publicae, the second preface to the
Code of Justinian.
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JUSTINIAN'S CODIFICATION 117
times. Justinian promulgated the second and final edition (§ 136)
of his Code {Codex Justinianus repetitae praelectionis) the
next year after the publication of the Institutes and Digest,
in order to bring the Roman statute law down to date.*^'
This new revised edition was prepared by Tribonian, Doro-
theus/'* and others. With its publication the grand codifi-
cation of Justinian came to an end.^^^
The Code of Justinian contains much public law, including
ecclesiastical, criminal, constitutional, fiscal, military, and
municipal corporation law, not found in the Digest of Jus-
tinian. His Code contains about 4700 statutes, very many
of which were rescripts. Fully one-half are abridged. The
earliest statute is one of Hadrian's. About one-half of the
statutes in the Code of Justinian antedate Constantine the
Great. Justinian's Code drew very heavily on the Gregorian^^*
and Hermogenian *^' Codes*'* for Imperial statutes (consti-
tutiones) prior to Constantine the Great. More than six-
sevenths of the titles *''of the Theodosian Code ^^Oare repeated
in the Code of Justinian.*'^
The Code of Justinian is divided into twelve books which
are subdivided into titles and laws (leges) or constitutions,
long laws being again divided into section paragraphs. All
the laws are arranged chronologically, each law commencing
with the names of the Emperor and the person to whom it is
addressed — the inscriptio, and each law ending with the time
and place of its promulgation — the subscriplio.
^'^ The second edition of the Code was published and enacted Nov. 10,
534, see Const. Cordi nobis, the last preface of the Code of Justinian.
"■' Professor at the law school of Berytus (modern Beirut).
''* The Digest was completed before the Code of 634.
"« See supra § 125.
«" See supra § 126.
*'* See Mommsen-Meyer, Cod. Theod. vol. 1, 1, p. xiii, et seq. where
the titles of Justinian and these Codes (also the Theodosian Code) are
arranged side by side.
"' See Mommsen-Meyer, Id.
S80 See supra § 127.
'SI The Theodosian Code has 375 titles, 307 of which are repeated in the
Code of Justinian.
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118 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
§ 137 The Digest or Pandects of 533. The successful outcome
of his codification of the Imperial statute law led Justinian
in the following year 530 to turn his attention to the juris-
prudential law.^'^ He commissioned Tribonian, who was the
director of Justinian's law reforms and who figures in every
part of Justinian's entire codification, to undertake the task
of codifying the writings of the jurists.^*' He empowered
Tribonian to associate with him as many colleagues as the
latter saw fit. Tribonian appointed sixteen colleagues,^** all
of whom were lawyers and three of whom were renowned pro-
fessors in Roman law schools — Theophilus,**^ Dorotheus,^*'
and Anatolius.*'' Tribonian and his associates''^ were em-
powered to select extracts from the writings of the juriscon-
sults. These were to be an exposition of the law not covered
in the recently completed Code of statute law. Justinian
gave Tribonian a wide discretion in his selection of material.
Tribonian and his associates were not limited to the instruc-
tion of Valentinian's Law of Citations.'**'
Soon after Tribonian and his associates began work, they
found that there were controverted points of law which could
be settled only by Imperial legislation. To decide these
moot questions Justinian promulgated between the years 529
, and 532 a series of enactments which later received the name
of the Fifty Decisions*'" (Quinquaginta decisiones) .
^*2 Const. Deo auctore (Dec. 15, 530), the first preface to the Digest
(Monro. Engl, transl. of the Digest, vol. i, p. xiii). It is also found in Code,
1, 17, 1.
*" Const. Deo auctore.
^^ Const. Tanta, last preface to the Digest, § 9 (Monro. Engl, trans, of
Digest, vol. i, p. xxv).
*** At Constantinople. He had served on the Code commission of 528:
see supra § 136.
'*' At Berytus (modern Beirut).
5" Id.
sss-pjiese were Constantine, a high official; Theophilus and Cratinus,
professors of law at Constantinople; Dorotheus and Anatolius, professors
of law at Berytus; and eleven lawyers from the Constantinople Bar, —
Stephanus, Mena, Prosdocius, Eutolmius, Timotheus, Leonides, Plato,
Jacobus, Constantine, and Johannes. See Const. Tanta, § 9.
«8» See supra §123.
''" Inst. 1, 5, 3 "nostras constitutiones, per quas, suggerente Triboniano
. . . antiqui jus altercationes placavimus."
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JUSTINIAN'S CODIFICATION 119
To accomplish their task Tribonian and his associates (§137)
divided themselves into three sections or subcommittees,
each authorized to make extracts from a particular group
of writers: (1) the jus civile subcommittee, which dealt
with the 'Sabinian group' of writers (Sabinus*" and his com-
mentators, who wrote on the jus civile) ; (2) the jus honora-
rium subcommittee, which dealt with the 'edict group' of
writers on the Praetorian and other edicts; (3) a third sub-
committee, which dealt with writers on separate legal ques-
tions and cases, especially Papinian.''^^ This plan of work
pursued by Tribonian and his associates is a modern 19th
century discovery by a German Romanist Bluhme,^'' being
now known as Bluhme's discovery.
Either the whole commission or an editorial committee
received and distributed under suitable rubrics the material
selected by these three sections, and then revised^^* the entire
work so as to remove superfluities and contradictions.'^^ To
make an authoritative statement of the existing Roman law,
the commission, wherever necessary, altered the text of
doctrines and interpolated words and phrases. These altera-
tions are known as interpolations or Tribonianisms.*'^ The
entire work was then divided into fifty books. ^'' All these
"1 See supra § 103.
512 See supra § 98.
s's Sa.Y\gny, Zeitschrijtjur gesch. Rechiswiss., vol. iv (1820), p. 257 et seq.
See also Roby, Introduction to Digest, p. xlviii et seq.; Hunter, Roman law *,
p. 91; Sohm (Ledlie^ i?OOTa?i /oTO, p. 123 ; Muirhead, jRomaw toia^, pp. 381,
384; Krueger, Quellen, pp. 335-6; Girard, Manuel de droit romain ^, p. 80,
note 1. "Bluhme" is the correct spelling (see Girard, Krueger, Sohm,
Roby, Savigny). Hunter and Muirhead write "Blume."
'»* Muirhead, Roman law, p. 381.
*'^ There are, however, some irreconcilable contradictions in the Digest,
in spite of Const. Tanta, § 15, wherein Justinian says that the Digest is
free from contradictions.
6«6 Interpolationes, emblemaia Triboniani: see Roby, Introduction to
Digest, ch. v; Muirhead, Roman law^, p. 382; Girard, Manuel de droit ro-
main ', p. 79.
'"These fifty books are arranged in seven parts (Const. Tanta §1).
This division is apparently made in view of the reorganization in 533 (the
same year of the promulgation of the Digest) of the courses of study in
Roman law schools: see Const. Omnem rei publicae.
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120 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
! 137) things were done in compliance with the instructions contained
in the decree appointing Tribonian and the commission.^'*
Each book of the Digest is usually subdivided into titles,^''
which are again divided into laws or fragments (leges, frag-
menta), some of only a few words, others occupying several
pages. The long laws, or better fragments, are divided into
section paragraphs. Each fragment is an extract from the
writings of some Roman jurist — the name of the jurist and
the title of his treatise being stated at the commencement of
the fragment, in pursuance of Justinian's instructions.
The books and titles of the Digest have a sequence which,
although quite advantageous for Roman users, is rather
puzzling to modern users of this collection. The explanation
is that the Digest, in compliance with Justinian's instruc-
tions,^"" follows substantially the order of the Praetor's Edict as
arranged and permanently consolidated by the jurist Julian.^"'
The Tribonianean commission worked with such speed
that three years after the inception of their labors they
.accomplished the task of codifying the jurisprudential law.
Their selection of extracts was promulgated by Justinian
in 533 as the Digest or Pandects (Digesta seu Pandectae) .^'^
It reduced the jurisprudential law ninety -five per cent of its
original bulk, — from more than 3,000,000 lilies to 150,000
and from 2,000 books to SO.*"'
The oldest extant manuscript of the Digest is the Floren-
tine manuscript, so called because since 1406 ^'^ it has been
preserved at Florence. ^"^ This manuscript was written in
698 Const. Deo auctore, §§7-10. (Dec. 15, 530.)
'" Three books of the Digest (nos. 30-2) on legacies are not subdivided
into titles.
*'"' Const. Deo auctore, § 5.
s"! See supra §§61,89.
"^ Const. Tanta and AiSwmv, (Dec. 16, 533) in preface to the Digest;
see also Const. Omnem rei publicae, also a Digest preface. Both are trans-
lated into English by Monro, Digest, vol. 1, pp. xiii et seq.
6»3 Const. Tanta, § 1.
*"* In this year Florence conquered Pisa, and took the manuscript as
part of the booty. Traces of this manuscript exist at Pisa as early as 1284.
™* It is now in the Laurentian-Medicean Library. See Roby, Introduc-
tion to Digest, ch. xvii; Girard, Manuel de droit romain^, p. 81.
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JUSTINIAN'S CODIFICATION 121
the* 6th or 7th century by Greek copyists. There is an in-
teresting tradition that it came originally from Constantinople
atid was used by Justinian himself. The profoundly learned
Mommsen during the 19th century revised '"' the Florentine
manuscript and settled many difficulties then not solved.
Now the text is fixed probably as accurately as it ever will be.
Justinian states*"' that a list of Roman jurists furnishing
extracts for the Digest would be prefixed to it; such a list
exists in the Florentine manuscript and is known as the
Florentine Index, In it are the names of thirty-eight jurists
and 207 treatises in 1544 volumes.*"* This is not, however, a
complete list of the Imperial Roman jurists.""' Over one-half
of the Digest of Justinian is drawn from the writings of the
jurists Ulpian*^" and Paulus,"'^'^ the former contributing more
than a third of the Digest."!^
The Institutes of 533. When the Digest was almost com- § 138
pleted, Justinian caused to be prepared an elementary treatise
for the use of law students — - the Institutes {Justiniani Insti-
tutiones). This work had been foreshadowed in the instruc-
tions to Tribonian's commission to make the Digest. The
Institutes were published in the same year as the Digest, 533-, — ■
being promulgated about a month earlier. "'^ The Institutes
are arranged in four books, "^^ each book being subdivided
into titles and sections. The Institutes are the work of Tri-
bonian, Theophilus, and Dorotheus. According to Jus-
tinian's instructions, the Institutes were founded on the 2d
century Institutes of Gaius."'^ Over one-half of the Institutes
^"^ Mommsen, Digesta Justiniani Augusti, 2 vol., Berlin, 1866-70.
It now forms a part of the modern Mommsen, Krueger, Schoell, and KroU,
Corpus juris cimlis, editis stereotypa, Berlin, — see supra § 135.
«" Const. Tanta, § 20.
«»' Roby, Introduction to Digest, p. xxiv. See also supra § 75.
™ See supra § 75.
i^i" See supra § 108.
"1 Id. See also supra § 99.
*'^ Roby, Id. p. cxcix.
«" Nov. 21, 533: see Preface (Prooemium) to the Institutes, 7.
*" The work of the modern German civilian Leonhard, Institutionen
des rom. Rechts (1894), follows the order of arrangement of subjects of
Justinian's Institutes.
''* Preface (Prooemium) to Institutes, 6. As to Gaius, see supra § 86.
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122 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
of Justinian is borrowed bodily from the text of Gaius. But
the commission expunged everything antiquated in the
6th century, and inserted whatever was necessary to make
their little book a faithful exposition of Justinianean Roman
law.
§ 139 The Novels of 535-65. Justinian reigned for thirty years
after his codification was finished, during which time he
promulgated , many laws, both public and private, some of
which, like the laws reforming intestate succession, are very
important. These latest statutes of Justinian are known
as Novels ( Novellae Constitutiones post Codicem) and are now
for convenience treated as a fourth part of his grand codi-
fication. Each Novel may be subdivided into chapters and
sections. The Novels modify the Code, Digest, and Insti-
tutes, and were published in Greek, — for the use of the
multitude; while some of them were issued in Latin for use
in the West. In all, 152 of these Novels remain; 30 con-
cern ecclesiastical matters, 58 public or criminal law, and 64
private law.
A Latin abridgment of these Novels, covering 125 of them,
was made by Julian,^"^* professor of law at Constantinople, some
five years after Justinian's death. This Novellarum Epitome
was used in Italy and Gaul. A Latin collection of 134 of
the Novels circulated in Italy, known as the Anthenticum.
The tradition was that these were the very Novels promul-
gated in Italy by order of Justinian in A.D. 554.
The Novels on ecclesiastical law are derived from the
Nomocanon, an interesting work on comparative Roman and
Canon law written by John, Patriarch of Constantinople,
who was a contemporary of Justinian. A curious survival
of the exact use of the Roman legal term "Novels" is seen
in very modern times: the additions to the new German
Civil Code are technically called Novellen — the German
word for Novels.^' ^
§ 140 Abbreviations for the Code, Digest, Institutes, and Novels.
The medieval and modern abbreviations "C," "Cod.,"
"Code," refer to the Code; "D.," "Dig.," "P.," refer to the
"8 See infra "Post-Justinian law," § 169.
8" Deutsche Juristen-Zeitung, April 1-June 15, 1909, p. 597.
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JUSTINIAN'S CODIFICATION 123
Digest or Pandects: "I.," "Inst.," to the Institutes: and
"N.," "Nov." to the Novels."* The Novels are cited by the
number, chapter, and section: for instance "Novel 118, 3,
l,or§l."
The abbreviations "1." or "L.," stand for "law" (lex) or
"constitution," and refer to a law of some title in the Code
or Digest: For instance "Code, 1, 4, 23" = Code, book 1,
title 4, law 23; "Dig. 1, 3, 13" = Digest, book 1, title 3,
law or fragment 13. The abbreviation "fr." stands for frag-
ment, and refers to a fragment or law of some title in the
Digest: For instance "Dig. 1, 3, 18" = Digest, book 1, title 3,
fragment 18.
The abbreviation " § " refers either to some section of a
title in the Institutes, or to some section of a law or fragment
in the Code, Digest, and Novels"^: for instance "Inst. 2,
7, § 1" = Institutes, book 2, title 7, section 1; "Dig. 1, 3,
32, § 3" = Digest, book 1, title 3, fragment 32, section 3.
The abbreviation "pr." means "principium," and refers
either to the first sentence preceding the first section of a
title in the Institutes, or to the first sentence preceding the
first fragment of a title in the Digest: an illustration is "Dig.
1, 3, 32, pr."
The modern mode of citing the Corpus Juris. To the his- § 141
torian Gibbon, whose most brilliant chapter fifty-four of his
"Decline and Fall of the Roman Empire "was for years a Roman
law text-book at Continental European universities, is due the
credit and honor of shaking off the pedantic yoke of citation
as established by the medieval Civilians. Gibbon "dared
to adopt the simple and rational method of numbering the
book, the title, and the law cited." ^^^ His example was fol-
lowed by Hugo and other modern Civilians, until it is now the
universal practice to cite the Corpus Juris as part such and
^1* On the entire subject of abbreviations and modes of citation of the
Corpus Juris, see Hunter, Roman law^, p. xi; Sohm (Ledlie^) Roman law,
pp. 16-17; Girard, Manuel de droit romain^, pp. ix-x; Mackenzie, Roman
law'', p. 32.
*'" The use of the section abbreviation is very frequently omitted, —
see illustrations in the text.
»2« "Decline and fall, etc.," vol. 4, ch. 44, note 1.
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124 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
such, such and such a numbered book, title, and law, frag-
ment, or section. For instance "Dig. 50, 17, 1" means Digest,
book 60, title 17, fragment 1.
There are these slight differences in the mode of citation
between the Anglo-American and German practice : (1) The
German usage is to start first with the law, fragment, or sec-
tion — which is just the opposite of the Anglo-American
usage. The French usage is like the Anglo-American. To
illustrate: "Dig. 17, 1, 2, pr." (Anglo-American and French
mode of citation) would be cited by German writers "L. 2,
pr. D. 17, 1"; "Code, 4, 34, 11, 1" (Anglo-American and
French mode of citation) would be cited by German writers
"L. 11, §1, C. 4, 34"; "Inst. 2, 7, pr." (Anglo-American
and French mode of citation) would be cited by German
writers "pr. I, 2, 7."
(2) Sometimes the German usage as to citing the particular
part of the Corpus Juris (Code, Dig., etc.) is to add the title
right after the part and put the numbers of the book and title
in brackets — for instance '^^ "pr. I. de donat. (2, 7)."
§142 The medieval mode of citing the Corpus Juris. The
medieval way of citing the Corpus Juris is as follows: a
citation begins with a numbered law, fragment or section,
followed by mention of the part of the Corpus Juris to which
the law, fragment, or section belongs, and the citation ends
by giving the title wherein the law, etc., will be found; but
the book of which this title forms a part is not given at all.
For instance "1. 8. C. de praescript. long, temporis" is an
illustration of the medieval mode of citation.
To find the book to which a title cited belongs and to con-
vert the medieval mode of citation into the modern, search
the Index of Titles as given in the front of volumes i-ii of
Krueger and Mommsen's edition of the Corpus Juris to
locate the title cited: the index of titles should disclose the
number of the book of the Code, Digest or Institute to which
the title belongs. For instance "1. 8. C. de praescript. long,
temporis" = Code, 7, 33, 8; "1. 38, §1. D. ad leg. Jul. de
adulteriis" = Digest, 48, 6, 38, 1. There are several thousand
*2i See Sohm (Ledlie'), Roman law, p. 16.
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JUSTINIAN'S CODIFICATION 125
titles in the Corpus Juris. Brissonius,^^^ whose Civil Law dic-
tionary published in the 16th century is still to-day the best
on Roman law, employs the medieval mode of citation.
How Justinian's codification was introduced into Italy §143
and Western Europe. Justinian's codification at first applied
only to the Roman Empire in the East: Western Europe,
including Italy, had fallen into the hands of barbarian Teu-
tonic conquerors over a half century before the accession of
Justinian. They, soon after their conquest, had for reasons
of policy or state made Leges Romanae for their Roman sub-
jects: this was done in Italy, Gaul or France, Spain, Bur-
gundy.'^' These records of the Roman law, although symp-
tomatic of the tendency of Roman Law in the 5th century
towards codification, were wretched, lame compendia of Roman
Law; and in these Leges Barbarorum Teutonic law is very
manifest, and threatened the Roman law. Which shall pre-
vail, Justinian's Corpus Juris, or the Code of Alaric, which
was the best of the Leges Barbarorum? The answer was
slowly worked out. Justinian's generals Belisarius and Narses
reconquered Africa, Italy, and portions of Spain. Justinian's
Codification became in A.D. 554 '^^ law in Italy, and so became
known to Western Europe : for the dominion of the Eastern
Empire did not altogether cease in Italy until nearly the 12th
century.
Obedience to Justinian's law was preserved in Italy down
practically to the 12th century Bologna revival of Roman
law study. *^^ In Western Europe the Breviary or Code of
Alaric II exercised a dominant influence on Southern France
and in South Germany. But when the Glossators revived
the study of Roman law in Italy, ^2" the dim star of the Code
of the Teutonic Alaric sank beneath the legal horizon as the
sun of the Eastern Roman Corpus Juris shed its brilliant, pure
light from the borders of Italy over Western Europe.
«22 The French jurist Brisson (infra § 248), died 1591, was the Advocate-
General of Henry III, and was murdered by the League party: Colquhoun,
Roman law, § 176.
623 See supra § 133.
"2* Hunter, Roman law*, p. 89.
626 See infra ch. iii, "Italy," § 211.
626 See infra ch. iii, "Italy," §§210-11.
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126 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
(3) The Influence of Christianity on Roman Law
§ 144 Christianity an external force affecting Roman law from
Constantine to Justinian. The first and earlier influence of
an external nature on Roman law — Greek culture and par-
ticularly Stoic philosophy — ^has already been discussed. ^^^ It
was effective largely during the Early Empire. The other
external influence on Roman law — ■ Christianity — was opera-
tive during the Later Empire, beginning with the reign of
Constantine the Great. Then for the first time Christianity
became the favored religion of the State. "Not until Chris-
tianity had become the established religion of the Empire, can
we see evidence of changes directly attributable to its influ-
ence." *^* Whatever contributions Christianity made to Roman
law were imparted solely through the medium of Imperial
legislation. The jus respondendi and the activity of the great
jurists had ceased long before the accession of Constantine.
§145 Constantine's Edict of Milan in 313. The y-ear following
his conversion, Constantine issued ^^^ at Milan "the great
charter of the liberties of Christianity."*^" By this statute
Christianity was made a lawful religion for the worship for
the Supreme Deity, and unlimited toleration was extended
to all religions throughout the Empire,*'^ — -a reversal of the
policy of Diocletian. A large part of the Empire was already
Christian, and this action of Constantine gave stability to his
government.
^" See supra §§ 62 et seq.
*^' Gibson, Influence of Christianity upon the law of Rome, 31 Law Mag.
and Rev. p. 386.
**' It was promulgated in the joint names of Constantine and Licinius.
'"> Milman, Hist, of Christianity, vol. ii, p. 294.
™ The Edict of Milan is preserved by Lactantius. De mart. pers. c. 48
(Latin text) and Eusebius, Hist, cedes, x, 5 (Greek translation). The
Edict is as follows: "Haec ordinanda esse credidimus, ut daremus et Christ-
ianis et omnibus liberam potestatem sequendi religionem quam quisque
voluisset, quod quidem divinitas in sede caelesti nobis atque omnibus qui
sub potestate nostra sunt constituti, placata ac propitia possit existere.
Etiam aliis religionis suae vel observantiae potestatem similiter apertam,
et liberam, pro quiete temporis nostri esse concessam, ut in colendo quod
quisque delegerit, habeat liberam facultatem, quia (nolumus detrahi)
honori neque cuiquam religioni aliquid a nobis."
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INFLUENCE OF CHRISTIANITY 127
It is sad that this triumph of the principle of religious
liberty in the Roman world was short-lived. The pagan
religion was tolerated for barely three-quarters of a century
later: Theodosius the Great, who reigned 379-95, made
Christianity the State religion, and proscribed and persecuted
Paganism. Finally, in spite of the vigorous stand of Atha-
nasius, Gregory of Nazianzus, and Hilary of Poitiers for liberty
of conscience, orthodox Christianity also followed in the old
evil path of persecution. St. Augustine's legal mind forged
the weapons of all future ecclesiastical persecution by declaring
that the death of the soul is worse than liberty of error and
that the heterodox should be compelled to conform. When
the time of Theodosius 1 1 is reached,*'^ to deviate even slightly
from orthodoxy was punished as a crime. And the code of
Justinian insists that religious unity must be maintained at
all costs — that principle which caused Europe in subsequent
centuries to suffer greatly.
Constantine's later legislation. Following the Edict of § 146
Milan came other legislation of Constantine which was
extremely important and moved along the lines of "humane-
ness and purity — two characteristic ideas of Christian
ethics."^'' Constantine decreed that Sunday should be
observed throughout the Empire*^*; established prayers for
the army ; abolished crucifixion as a punishment ; encouraged
the erriancipation of slaves; discouraged infanticide; and
prohibited private divinations, licentious and cruel rites,
and gladiatorial games. "Every one of these steps was a
gain to the Roman Empire and to mankind, such as not even
the Antonines had ventured to attempt, and of those benefits
none has been altogether lost. Undoubtedly, if Constantine
is to be judged by the place which he occupies amongst the
benefactors of humanity, he would rank, not amongst the
secondary characters of history, but amongst the very first." ^'^
Controversy as to the debt of Roman law to Christianity. § 147
Just what Roman law owes to Christianity has been long
«'2 He reigned A.D. 408-50.
«33 Adeney, Greek and Eastern churches, p. 40, New York, 1908.
"* In the towns.
^^ StBinley, Lectures on the history of the Eastern Church, lecture 6, 1. (1861).
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128 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
and greatly obscured by the religious feeling and prejudice
of investigators. The ecclesiastical writers on the one hand
would make us believe that all that is good in Roman law can
almost always be predicated as derived from Christianity.
But this is too sweeping an assertion and does not recognize
the influence of Greek culture, philosophy, and ethics, *^^ which
— ^long before the Empire became Christian — had already
given to Roman law that vigor, strength, justice, and supreme
excellence of spirit which made Roman law pre-eminently
just.
The writers prejudiced against Christianity on the other
hand belittle its influence and maintain that scarcely any
good results came from it into Roman law, — an erroneous
view, perhaps arising through a spirit of criticism deservedly
passing judgment on the intolerance, scandals, and quarrels
of Christian sects in the Latin Roman Empire.
The correct appreciation of the influence of Christianity
lies between these two extreme points of view. It is Chris-
tianity as a system of highest ethical truths whose influence
is shown in the Roman law. Christianity perfected, and at
times transformed under the higheir influence of Christian
ideals of justice, the work of Greek philosophy in fashioning
Roman law. Greek culture had already laid the foundations
and nearly all of the superstructure of Roman law as a uni-
versal law of rational ethics fitted for the whole world: the
work of Christianity was to perfect the system of law erected
upon such a solid foundation by adding to the beauty of the
superstructure, strengthening it by removing structural
weaknesses, and enlarging or transformiiig Roman law in the
spirit of Christian ethics so as to produce greater justice and
benefit to mankind.
§ 148 How Christianity affected Roman law. The influence of
Roman law on Christianity is clearly made manifest by the
laws of the Christian Emperors and more especially by a
critical study of the codification of Justinian. At the time
when the seat of Empire was removed to the East, Oriental,
provincial influences, particularly the Hellenic spirit, were
"'" See supra § | 62 et seq.
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INFLUENCE OF CHRISTIANITY 129
very active. These Oriental influences are now seen to have (§ 148)
decidedly colored the Corpus Juris and made Justinian's law
essentially different from and continually in contrast with
the jurisprudence of the first three centuries of the Empire.^"
And the greatest of these influences was Christianity. °^*
Ecclesiastically, the codification of Justinian reveals great
traces of Christian influence. Justinian begins his Code by
formulating an Imperial Creed on the Trinity, and by hurling
Imperial anathemas against heretics. Justinian asserted
a majestic superiority over the clergy and canonical juris-
diction, although he makes the bishops Imperial judicial
officers for certain matters; for instance, the guardians of
lunatics swore before the bishop on the Gospels to administer
their trust with fidelity.^"
But in the domain of private law, the influence of Chris-
tianity is not easy to trace, and it is to be found only by indirect
methods of investigation. By comparison and analysis of
the doctrines of Roman law as they are manifested prior or
subsequent to the Christian Emperors it is possible to observe
the uplifting influence of Christian ethics. But "the changes
in Roman law consequent upon the establishment of Chris-
tianity were more largely changes of machinery than of mate-
rial, for though Christianity could not fail to have far reach-
ing effects on the Corpus Juris Civilis, the principles of that
magnificent system were well-nigh definitely settled before
Christianity attained temporal supremacy." «*" Hence most
of the private law of Justinian reads as if exclusively Roman
and seemingly ignorant of the existence of Christianity. It
contains quotations from Homer frequently, but never allu-
sions to the sacred Christian writings. In fact, Tribonian,
who framed Justinian's great work of jurisprudence, has even
incurred the suspicion of atheism: from the Institutes of
«" See Mitteis, Zeitschrift der Savigny-Stiftung fiir Rechtsgeschichte,
vol. 31, p. 393 (1910) ; CoUinet, itudes hist, sur le droit de Justinien, vol. i:
"Le caractere oriental de I'oeuvre legis. de Justinien,'' etc., Paris, 1912.
*'* Riccobono, L'influence du Christianisme dans la codification de Jus-
tinien (in 6 Rivista di Scienza, "Scientia," no. ix-1 (1909).
«=9 Code, 1, 4, 27.
M» Gibson, Id. p. 399.
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130 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
Justinian one would never easily detect the Christianity of
Justinian.
The changes which Christianity effected in Roman law
were along two lines: the promulgation of new law, and the
amendment of the existing law. Justinian, in promulgating
the Digest, says^*"^ that he caused to be made in the law of his
time "many very important transformations on the ground
of practical utility." These words have usually been regarded
as a piece of Byzantine vanity; but it is not at all improbable
that the spirit of Christian ethics was a far more potent factor
in framing the Corpus Juris than is commonly believed. Or
as Dante says:
I was Caesar and am Justinian
Who by the destiny of that first Love, which I still feel.
Cleared the laws of their vain excess.
As soon as my feet were reclaimed to the Church,
Inspired by God's grace
I gave .myself wholly to my great task.*'''
§149 I. Promulgation of new law. With the establishment
of Christianity came new corporations, new offices, new men —
all of an ecclesiastical or quasi ecclesiastical character. This
change demanded a fresh body of law. From the unwilling-
ness of the Christians to bring their disputes before the civil
tribunals, there had grown up beside the Civil Law another
system — the Church or Canon Law, the beginnings of which
mighty medieval system of law we are now recording. Con-
stantine gave the bishop's court (episcopalis audientia, epis-
copate judicium) concurrent jurisdiction with the ordinary
secular courts where both parties preferred the former, and
perhaps **' empowered either party to a suit to remove it to
"' Const. Tanta, § 10 (Monro, Eng. transl. of Digest, vol. i. p. xxx).
"2 Paradiso, vi, 10-12, 22-4:
"Cesare fui, e son Giustiniano,
Che, per voler del prime Amor ch' io sento,
D' entro le leggi trassi il troppo e il vano.
Tosto che con la Chiesa mossi i piedi
A Dio per grazia piacqile d' inspirarmi
L' alto lavoro, e tutto a lui mi diedi."
"'The authenticity of this enactment is disputed.
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INFLUENCE OF CHRISTIANITY 131
the episcopal court against the will of the other party. ^^* But
by the Emperors Arcadius*^^ and Valentinian*" the right to
sue before an ecclesiastical tribunal was limited to cases
where both parties consented, ^^' — ^ Constantine's original rule.
Now this new body of law contributed by Christianity is very
little secular, and is almost entirely ecclesiastical or religious.
2. Amendment of the existing law of persons. Chris- § 150
tianity decidedly improved certain parts of the Roman law
of persons. The Stoic doctrine of the equality of all men
was accepted by Christianity and became again a living force
in the law: it is reflected in betrothal. Christianity en-
deavored to restore the dignity of marriage. A new con-
ception of marriage — ^indissolubility — 'began to operate,
and, although not immediately effective, it finally, in the 8th
century, transformed marriage into a sacrament: about 200
years after the death of Justinian in the reign of Leo III,
the Isaurian, an ecclesiastical benediction was made necessary
to a valid solemnization of marriage. ^^^ But for over four
centuries after Constantine marriage continued to be a civil
contract, although the ceremony was generally a religious
one.**' Of the passages in Justinian's law which reveal the
Christian legislator, the most marked of all is that which
extends the prohibited degrees in marriage to spiritual rela-
tionships: for instance, marriage of a guardian, or his son,
with his ward, marriage of man with a woman for whom he
had acted as sponsor in baptism. Moreover, interdictory
Christian statutes declared marriages with Jews and heathen
not only invalid but adulterous.
Roman Christianity laid emphasis on the conjugal duties,
combatted divorce,*^" and tried to suppress concubinage. It
also combatted second marriages, probably because of the
honor ascribed to personal chastity. The ancient laws to
"^ See Cuq, Institutions juridiques, vol. ii, p. 868, n.
"^ In 398, — Eastern Emperor.
"^ In 452, — Western Emperor.
"' See Muirhead, Roman law'', p. 357.
"* Bury, Later Roman Empire (23 Encycl. Britan." p. 520).
"» Gibson, Id. p. 394.
^'° Justinian tried to restrict divorce and repudiation, but his legislation
suffered repeal by his successor.
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132 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
increase the birth rate seemed cruel to the Christian Emperors,
and the result was the repeal of the leges Julia and Papia
Poppaea passed A.D. 9. The redemption of fallen women
was proclaimed as a sublime work for Christian bishops.
The Roman law doctrine of legitimation by subsequent
marriage was a piece of noble legislation by Christian Emperors.
Roman Christian charity was responsible for a philanthropic
movement in favor of the sick, aged and infirm, widows, and
orphans by the organization of hospitals and asylums.
But it is regrettable that Christianity did not change other
parts of the Roman law of persons, which ought to have been
reformed. The chief example of this failure is slavery, which
the law of Justinian fully recognized. The inertia of past
centuries as to slavery was too great to be overcome. St.
Paul's attitude towards slavery was to recognize the status
quo, and he did not counsel wholesale emancipation. But
Christianity continued the progress of the pagan law along
the lines of mercy and kindness: for instance, to poison a
slave or brand him was treated in later Imperial Roman law
as homicide, and manumission was made easier; but the
Church did not recognize the marriage of slaves until over
300 years after Justinian's death. ^^^ Christianity added
very little to the work of mitigating the severity of the
paternal power already accomplished by the non-Christian
Emperors.
§ 151 3- Amendment of the existing law of property. It is not
scholarly or sensible to dismiss all consideration of the influence
of Christianity on the Roman law of property by taking
refuge in the usual claim that here Christianity has exerted
no influence whatever (even though that influence is not easy
to find*^^). It is true that Christianity made no radical
changes in the tenure or succession to property. For instance,
Justinian's system of intestate succession as formulated in
his famous novels 118 and 127, which underlie all modern
law of intestate succession, is actually but a final completed
«" Gibson, Infl. of Christ., 31 Law Mag. and Rev. p. 394.
*'2 For many seeming instances of this Christian influence, see Riccobono,
L'infltience du Christianisme dans la codification de Justinien, 5 Rivista di
Scienza, no. ix-1 (1909).
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INFLUENCE OF CHRISTIANITY 133
application of the old pagan praetorian law which favored
the natural blood tie as a basis for the devolution of property.
But to Christianity is due the provision for widows out of
their husband's property, which is a special feature of both
the later Roman and the Canon laws. Christianity empha-
sized and sometimes widened the old conception of equity
of the classical Roman jurisprudence. Aequitas in the Jus-
tinianean law is also called humamtas, pietas, dementia, or
benignitas, — it seems to reflect, as it were, the spirit of the
conception of the brotherhood of man. This addition to
humaneness along Christian lines is visible also in later
Roman law, which allowed the privilege of adoption to women
"to comfort them for their children lost by death." ^^
The classical Roman conceptions of ownership and property
rights were reiterated in the Christian Roman law. The
ideals that inspired the Corpus Juris were inevitably Christian
ideals ; and undoubtedly the influence of Christian ethics was
potent to retain all that was just in the classical law and, if
possible, improve it. "It is not prohibited to any one to
obtain anything for himself," says Justinian's Digest, "pro-
vided he does not damage another." *^*
4. Amendment of the existing criminal law.^^^ The later § 152
Roman law under the influence of Christianity prohibited ^^^
the exposure of newly-born children as well as infanticide,
one of the greatest blots on ancient civilization.*^^ Abortion
was forbidden. Adultery was punished with far greater
severity by Christian Emperors. Crimes against nature
were punished by death. *^* Rape was made a capital
offense. ^^' Christian Roman law punished suicide,**" — ^in
opposition to pagan Roman law which regarded the taking
of one's life as a natural right. But the cruel iniquity
«53 See Inst., 1, 11, 10.
^ "Prodesse . . sibi unusquisque dum alii non nocet, non pro-
hibetur": see Dig. 39, 3, 1, 11. Compare Dig. 39, 3, 1, 4; Dig. 8, 2, 20, 5.
**5 As to the criminal law of Rome, see infra vol. ii, §§ 913-38.
856 Code, 4, 43, 1.
65' See Cod. Theod. 5, 9 and 10; Cod. Justin. 8, 51 (52); Bas. 33, 2.
**" Milman, Hist, of Latin Christianity, vol. 1, bk. 3, ch. v, C.
»9 Code, 1, 3, S3.
6<i» The law as to suicide is discussed in Dig. 48, 21; Code, 9, 50;
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134 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
of torture was sanctioned and continued by Christian
Emperors. *^^
Christian philanthropy introduced a new feature into the
criminal law: Justinian, following other Emperors, required
the Christian bishops to monthly inspect the State prisons
and inquire into the offenses of the prisoners. ^^^ The bishops
were empowered to stop gambling of a certain kind.*^' The
Christian Emperors abolished '^^ all private prisons with their
horrors, — an institution dating to Republican Roman Law.
Heresy was made a crime. ^** Christianity finally put into
practice the old Roman theory, which it had previously
fought, that the religion of the State must be that of the
people. But the bishop's court had no criminal jurisdiction:
heresy was punished by the civil courts.
§ 153 Sources of information as to the influence of Christianity.
The Theodosian Code ^"^ is the chief source of our information
as to the legislation of the early Christian Emperors. The
Code and Novels of Justinian,*^' the Ecloga, Basilica, and
other post-Justinian law books *^* reveal much of the legis-
lation of the later Christian Emperors.
The influence of Christianity survived the political vicissi-
tudes of Western Europe and the destruction of the Roman
Empire in the West. The Teutonic Leges Barbarorum^^' with
their "Roman laws" for their conquered Roman subjects
are even more completely penetrated with Christian influ-
ences than the ante- Justinian codes of the Roman Emperors:
for the unlettered Germans and Goths had gladly accepted the
aid of their Christian clergy to reduce the laws of their rude
ancestors to writing.
Paulus, Sent. 5, 12. See Gibbon, Decline and fall of the Roman Empire,
ch. 44.
8=1 See Nov. 123, 31.
««2 Code, 1, 4, 22.
6«3 Code, 2, 4, 14.
«" See Code, 9, 6.
665 See Code, 1, 5, 11; Code, 1, 9, 5; Code, 1, 5, 21.
666 See supra § 127.
66' See supra §§136, 139.
668 See infra §§ 174 et seq.
669 See supra § 133.
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LATER EMPIRE: ROMAN LAW SCHOOLS 135
(4) Roman Law Schools and Legal Education ''^
Roman law schools prior to Diocletian and the 4th century § 154
A.D. were private law schools. The Civil Law, as the juris-
prudence of the Roman State, had a continuous existence and
development for nearly thirteen centuries, if the reckoning be
terminated with Justinian. Because of its vast length of life,
if for no other reason, the law of Rome can shed a most
valuable light on the problem of how to give the best legal
training and equipment to persons engaged in the study of law.
Roman legal education compared most favorably with
American legal education at the present time, and in some
respects was superior to ours. Legal education began at
Rome during the Later Republic. As a result of the writings
of the jurist Scaevola^'^ Roman law first appeared in a
scientific dress about B.C. 100, — ^Scaevola laid down general
legal conceptions and outlined legal institutions, such as wills,
legacies, guardianship, contracts. But the jurisconsults not
only practised law and wrote on legal subjects, but also
taught law. The period of "private law schools" now began:
any jurisconsult who could collect a following of students
was not hindered by law from giving legal instruction to
them. His freedom to teach law was unrestricted, and this
condition of things lasted for at least 300 years — marking the
golden era of classical jurisprudence under the Early Empire —
down to the last of the jurists properly so-called, or to the
period of State law schools which was ushered in at about the
time of Diocletian.*'^
At the very outset, in the time of Augustus, two great rival
schools sprang up whose rivalry lasted as late as the reign of
Marcus Aurelius.*'' These two schools bore the name of
Sabinians and Proculians, each of which was so named from a
*'" A part of this was published by the author in 17 Yale Law Journal,
p. 499, May, 1908, under the title of "The study of law in Roman law
schools," and is reprinted by permission.
"1 Q. Mucius Scaevola: see supra § 53.
6'2 Reigned A.D. 284-305.
«" Clark, Roman private law : sources, p. 128.
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136 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
(§154) disciple of its founder."* Both Capito and Labeo, their
founders, ^'^ gave legal instruction after the traditional fashion
prevalent under the Republic, which was to allow young
men to be present as listeners*'* while the jurisconsults gave
opinions and permitted them to see how they conducted their
law business,*'' occasionally arguing with their pupils but rarely
giving private instruction by means of connected lectures.
This practical instruction was, under the Empire, supple-
mented by teaching the students the elements of law, as
expressed by the term "Institutes."*'^
The first real school of law was probably originated by
Sabinus.*" He was the first jurisconsult licensed by Augustus
to exercise the jus respondendi,**" and also supported himself by
teaching law.*'^ In imitation of the Greek schools of philosophy
Sabinus gave instruction through a society or corporate organ-
ization, at the head of which was the "professor" and to whom
the students on entering paid fees for tuition.*'^ One professor
used to succeed another as "president-."*** The Proculian
school — the other school — became organized in the same
way.*^
Toward the end of the 2d century A.D. there were many fixed
places at Rome — ^ probably near the law courts — where law
was studied.*'^ Schools of law soon spread over the Empire.
In the 3d century a school of law was established in Syria at
Berytus, modern Beirut, of which the great jurist Ulpian was
^'* Sabinians, from Sabinus, follower of Capito ; Proculians from Pro-
culus, follower of Labeo ; see supra § § 74, 102, 103.
'™ Capito, of the Sabinians ; Labeo, of the Proculians : see supra § § 80,
90.
"^ Auditores.
*" Cicero, Brut. 89, Laelius, L
*" "Institutiones." Distinguished jurists, especially from the time of
Hadrian to Alexander Severus (A.D. 117-235), were in the habit of writing
elementary treatises for the use of students : see supra § 76.
6" See supra § 103.
^*'' See supra § 68.
««i See supra § 74.
«»2 See supra § 74.
683 7d.
8*5 Aulus Gellius, xiii, 10, 13, who wrote A.D. 169-75.
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LATER EMPIRE: ROMAN LAW SCHOOLS 137
probably at one time a professor. ^^^ The law school of Beirut
became very famous, and bore the proud title of "mother of
law."**' It rivaled the earlier schools at Rome and the later
school at Constantinople.
The State law schools of the Later Roman Empire. During § 155
the Early Empire legal education was without State support ;
but in the time of Diocletian the advent of "State law schools"
was at hand. Perhaps he gave State recognition to the law
schools of Rome and Beirut; at any rate not only did these
schools obtain this favor from the Emperors, but finally after
a considerable time State approval became extended to those
of Athens, Alexandria, Caesarea, and Constantinople.*** One
result of this movement for State law schools was the cessation
in the 5th century of legal instruction in the private schools
of rhetoric.'*'
In the year 425 the Emperor Theodosius the younger
established at Constantinople a university apparently in
imitation of that already existing at Rome.'^" Among other
things this enactment created two professorships in law,*''
required the professors to teach law publicly, and forbade
them to engage in private teaching. Financial support from
the State was extended to the law school of Constantinople.*'^
The selection of professors in this school was intrusted to the
686 Mackenzie, Roman law'', p. 19; Roby, Introduction to the Digest,
p. cxcvii, Krueger, Quellen, etc., p. 347.,
6" "Legum nutricem": Const. Omnem, §7 (Eng. transl. by Monro,
vol.-i, of Digest, p. xviii); Libanius, £^ii/. 566.
6*6 Muirhead, Roman law^, p. 400; Karlowa, Rom. Rechtsgeschichte, i,
p. 1022 et seq.; Heimbach, Prolegomena Basilicorum, i, ch. i, §§ 1-6;
ch. ii, §§ 1-2. See Krueger, Quellen, p. 347.
661 Krueger, Quellen, p. 348.
696 See the titles of Cod. Theod. 14, 9 and Cod. Justin. 11, 19 (18).
691 Krueger, Quellen, p. 347, holds that only one chair at this time was
actually created (the second chair) although there were two professorships
in the school; and that the jurist Leontius, who had taught law for a
long time, may have held the first professorship: see Cod. Theod. 6, 21, 1;
Cod. Justin. 12, 15, 1; Cod. Theod. 15, 1, 53; Cod. Theod. 14, 9, 1.
692 Cod. Theod. 14, 9, 3; Cod. Justin. 11, 19 (18), 1; Krueger, Quellen,
p. 346. A constitution of A.D. 414 as to the privileges of professors does
not refer to this financial favor: Cod. Theod. 13, 3, 16.
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138 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
(§ 155) Senate of Constantinople.^^' The law of 425 reads as follows:
"The Emperors Theodosius and Valentinian to the city prefect.
We decree that all persons, who, usurping the title of professor,
have been accustomed to assemble in public schools or rooms
pupils collected from everywhere, cease to do so ; and if anyone,
after the publication of this law, shall again attempt what we
forbid and condemn, not only shall he be marked with infamy,
which he deserves, but he shall be driven out of the city
wherein he is acting unlawfully. But we do not prohibit by
any threat of such punishment those persons who have been,
accustomed to impart instruction privately in the homes of
most of their pupils, provided they abstain from teaching
pupils except at their homes. But let those persons who are
appointed to teach in the auditorium of the Capitol know that
they are forbidden to give private instruction: if they are
caught teaching contrary to this Imperial statute, they shall
be deprived of the privileges granted to them by reason of their
appointment as professors at the Capitol. To our auditorium
shall be attached of the Latin language and literature three
teachers of oratory and ten grammarians, and of the Greek
language and literature five sophists and ten grammarians.
And since we do not wish that ambitious young men be in-
structed merely in these ,arts, we will to the aforesaid pro-
fessors join teachers of more profound sciences and learning.
We wish to add to the rest, one to search the arcana of phil-
osophy, and two others to disclose the processes of law and
justice. Your excellency will take care that to each professor
be assigned a special room, in order that the voices neither
of pupils nor of professors resound against each other, and that
no mingled confusion of languages or voices distract the ears
of any persons from their studies and lectures. Given at
Constantinople, February 26, in the eleventh consulship of
Theodosius and that of the first of Valentinian." In the time
of Justinian four professors were officially appointed for
Constantinople and four for Berytus.'" And the same
*™ Krueger, Quellen, p. 347; Kuhn, Die stadtische und btirgerl. Ver-
fassung des rom. Reichs, i, 100 et seq.
''■' Krueger, Quellen, p. 348. The official title of a professor was "ante-
cessor" or "magister": see Const. Omnem §3, Deo Auclore §3, Tania § 9
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LATER EMPIRE: ROMAN LAW SCHOOLS 139
Emperor suppressed the law schools at Athens, Caesarea, (§155)
and Alexandria. ^^^
The law school at Rome together with the university sur-
vived the occupation of Italy by the Ostrogoths, — a royal
ordinance of Athalaric, successor of Theodoric, relative to the
university, makes mention of the professor of law, among
other professors. ^'^ When Justinian reconquered Italy in 554,
he specially provided for the maintenance of the university
professors at Rome fully as bountifully as did the Ostrogothic
Kings *^'; and the course of study and methods of teaching pre-
scribed twenty years earlier for law schools of the East were -
applied to the law school at Rome. When the Eastern Roman
Empire finally lost forever its possession of the ancient capital
on the Tiber and transferred its Italian seat of authority to
Ravenna, the law school at Rome was also removed to the
same city. This law school of Ravenna — still in existence
in the 11th century — helped to preserve the tradition of the
legal teaching of the Roman Empire as well as the Roman
jurisprudence itself until the rise in the following century of the
law school of Bologna, the mother of modern universities.
In the 9th century the law schools at Beirut and Alexandria
(the latter seems to have somehow survived Justinian's sup-
pression) still taught Roman law, being undisturbed for over
one hundred years after the Mohammedan conquest of Syria
and Egypt. ^^* From the historical point of view, very appro- -
(all translated into English by Monro. Digest, vol. i, pp. i-xxxvi); Inst.
Prooemiwm (Preface — among Eng. transl. Moyle*), §3. The title "pro-
fessor" was also employed: Cod. Theod. 6, 21; Cod. Justin. 12, 15.
6»5 Athens in the year 529, the schools of Caesarea and Alexandria in 533:
Krueger, Quellen, p. 347; Const. Omnem (Eng. transl. by Monro, Digest,
vol. i, pp. xviii-xxiv), §7.
6»«"Necnon et juris expositor": Cassidorus, Var. ix, 21, and Amos,
Roman law, p. 103.
6" "Quam et Theodoricus dare solitus est": Epit. Julian, Nov. Tib.
ch. x\'ii, and Ortolan (Prichard and Nasmith transl.). History of Roman
law, §574.
^"^ Ion, Roman law and Mohammedan law, 6 Michigan Law Review,
pp. 48-9 (1907) ; Kremer, Culturgeschichte des Orients unter den Kalifen,
i, 553. Roman law survived the capture of Constantinople by the Turks
and is still administered in the Greek Orthodox Church courts between
members of that faith, especially as to wills and marriage: see infra § 189.
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140 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
priate was the inauguration in the year 1913 of the present law
school of Beirut. ^^9 Much praise is due to the French law
faculty of Lyons, which is responsible for its establishment.
Once again law is being taught in the home of "the mother
of law," as Libanius described Berytus.""* And the great
Papinian^""- and Ulpian"'^ — those famous 3d century pro-
fessors at Beirut — should ever be a source of constant emula-
tion to their modern successors.
§ 156 A five years course of study prescribed for Roman law
schools of the Later Empire. During the Later Empire system-
atic legal education was established in course of time ; and law
students became obliged to study prescribed books in a certain
order. No longer did legal training follow the whim of the
particular teacher. In the year 533 ^"^ Justinian made reforms
in the five years course then in use, '"^ the arrangement of which
was poor and involved the study of books selected somewhat
injudiciously. For perhaps three centuries prior to Justinian,
neophytes in the law had commenced their student labors with
two books of Gaius' '"'^ Institutes and his four books on wife's
property, guardianship, wills, and legacies; the second and
third years of their course, students took the Praetor's Edict '"*
and Ulpian's''"^ commentary thereon followed by the study of
eight out of nineteen books of Papinian's.'"^ Responsa ; and the
fourth-year men read the Responsa of Paulus.''"'
In his law of 533 Justinian, although continuing the old
requirement of five years' study, prescribed that thereafter
students should be taught exclusively from the Justinianean
^^^ On Nov. 13, 1913: see 37 Revue generate du droit, pp. 675-6.
'""' See supra § 154. But the fate of this school, owing to the present
European war, is now (June 1, 1916) uncertain.
'" See supra § 98.
™ See supra § 108.
'»' On Dec. 16th.
">* See Inst. Prooemium (Preface), § 3 (among English transl., Moyle'');
Const. Omnem, §1; Muirhead, Roman law', p. 400; Roby, Introduction
to the Digest, p. xxvi.
"6 See supra § 86.
'"8 See supra §§ 60 et seq.
'" See supra § 108.
"8 See supra § 98.
'K" See supra § 99.
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LATER EMPIRE: ROMAN LAW SCHOOLS 141
law books: for the books hitherto used by students did not(§i56)
suffice to give as sufficient and satisfactory a legal equipment
in the 6th century, owing to the condition of Roman law prior
to the Corpus Juris."" Justinian, who had completed his
masterly design of codifying Roman law from the dawn of that
jurisprudence, then centuries past, laid down a program of
studies '11 modeled according to the arrangement of the titles of
the Code already published''^ and of the perpetual Edict as
compiled by Julian.'^' Although curing the worst fault of the
old program of study — the disregard of the order of the
Edict — it was really, aside from the supreme excellence and
wider range of the new books to be studied, only the continu-
ation of the purpose and scope of the old plan of study which
this decree of Justinian abrogated. For the new books to be
studied contained all the old works either in substantia or in
modified and renovated form, together with the works of very
many more of the jurists, some of which were hitherto un-
known or not available to lawyers. '" Briefly, the new program
required all students of law to study the entire Corpus Juris
(Institutes,'!^ Digest,''* and Code"^'), ^ — ^the whole to take five
years' time as formerly. For the first three years, the Insti-
tutes and the first five parts of the Digest were to be taken
under professional instruction, while the last two years were
spent in reading the rest of the Digest and also the Code.''*
'" See supra § 135.
'"Const. Omnem, §§2 et seq. (Eng. transl. by Monro, Digest, vol. i,
pp. XX et seq.) ; Roby, Introduction to the Digest, pp. xxvi-xxvii; Muirhead,
Roman law,^ pp. 400-401.
"2 First edition of the Code published 529 : see supra § 136.
'"See supra §§61, 89.
™ A fairly accurate list preserved in the Florentine MS. of the Digest
contains the names of 38 authors, the titles of 207 treatises and 1544 vol-
umes or rolls collected in the Digest or Pandects: see supra §§ 135 et seq.
"5 See supra § 138.
"8 See supra § 137.
'" See supra § 136.
"' For details of each of the five years' work, about to be given, see
Const. Omnem, one of the prefatory statutes to the Digest. (Eng. transl.
by Monro, Digest, vol. i, pp. xviii et seq.; and French and English transla-
tions by Ortolan, — Prichard and Nasmith Eng. transl. of Ortolan — His-
tory of Roman law, § 573.)
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142 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
The teaching was largely in the Greek language, ^^^ judging
from the extant writings of professors before and after Jus-
tinian. The average age of law students in attendance was
twenty to twenty-five years. ''^''
§157 First year. The work of the first year commenced with the
reading of Justinian's Institutes in four books, which gave the
beginner in the law a rapid survey of the whole field of law,
substantive and adjective, civil and criminal. The rest of
the year was spent in the study of the first part of the Digest,
books 1-4, which comprise introductory and general matters
of law.'^' The principal subjects for the first-year students
were a short history of Roman law,'^^ the elements of the law
of natural persons and the law of property, the jurisdiction
of courts and the essentials of procedure, elementary corpora-
tion law, and a part of the law of agency.
"9 Krueger, Quellen, p. 348.
"° At Beirut twenty-five years: Cod. Justin. 10, 50, 1. At Rome foreign
students must be under twenty years of age, if older, they must return
home: see Cod. Theod. 14, 9, 1; Cassiodorus, Var. i, 39, iv. 6, ii, 22.
'"^ Among the matters treated of in book 1 of the Digest are: fundamen-
tal conceptions and definitions of justice and law; origin of law — histori-
cal; the kinds and divisions of law with definitions and illustrations; the
essentials of the law of persons; adoption and emancipation; what things
may be private property; and rights and duties of magistrates and State
officials. The student then began the subject of procedure, which he did
not finish until the middle of the second year. Digest, book 2, deals with
the jurisdiction of courts; sessions of courts, holidays, and adjournments;
appearance of parties, bills of particulars, and the production of documents;
compromises of doubtful claims and bars to suits. Book 3 treats of mo-
tions; infamous persons; actions brought by agents; proceedings in behalf
of or against a corporation; actions arising from voluntary agency —
negotia gesta; and malicious suits. Book 4, which completed the work of the
first year, treats "mainly of the cases, where the ordinary effect of actions
and pleas is defeated by annulling the acts on which they rest, in conse-
quence of intimidation, or fraud, or of insufficient age, or other disability
of the party attacked." (Roby, Introduction to the Digest, p. xxxiv.) These
bars to suits are discussed under restitutio in integrum: alienating the object
of the suit; undertakings to act as arbitrator, which title probably at-
tracted the last title of book 4, — the action against shipmasters and inn-
keepers to give up what they have received.
'"^ See Dig. 1, 2.
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LATER EMPIRE: ROMAN LAW SCHOOLS 143
Second year. The second-year course began with either § 158
the second or the third part of the Digest: books 5-11,'^^ or
12-19. Ordinarily the third part was reserved for the third
year, probably so as to enable the students to finish the
subject of procedure which was continued from the first year.
The second-year men had to take also books 26, 28, and 30 of
the Digest. '2* The principal subjects for the second year were
advanced procedure; pleading; real property; and portions
of guardianship, wills, and legacies.
Third year. The third-year course of study began with § 159
the third part of the Digest: books 12-19.'^^ If the professors
"' Book 6 at first treats of trials at law, — and then begins a detailed
study of substantive law, or the subject-matter of suits, which topic lasted
the remainder of the course given under professorial instruction. The
second year men began their year's work in the subject-matter of suits by
studying book 5, which treats of real rights or rights in rem; claims to
m'asses of property; of unduteous will {de inofficioso testamento) ; for
the recovery of an inheritance in whole or in part. Book 6 discusses claims
to individual things, "it contains the claim to your own property (rei
vindicatio) ; and this was treated . . . first, where the claimant has a
good legal title; secondly, where he has an honest title but requires longer
possession to cure defects in the conveyance to him; thirdly, when he
has a perpetual lease." (Roby, op. cit. p. xxxv.) Books 7 and 8 treat
of personal and real servitudes (which correspond respectively in some
degree to ''estates not of inheritance'' and "easements" of the English
Common Law). Book 9 deals with damage by fault and negligence {lex
Aquilia). Book 10 treats of settling the boundaries of land {actio finium
regundorum) ; the division of property {actio familiae erciscundae and
actio communi dividundo) ; and the production of disputed property before
the court or judge {actio ad exhibendum) . Then followed book 11, of a na-
ture supplementary to these actions in rem and also giving information as
to various sundry matters: — interrogatories; consolidation of suits;
spoiling or concealing slaves; dice playing; fraudulent surveyors; tombs;
funeral expenses; and rights of burial.
'24 But in addition to completing the study of suits in rem, the second-
year men had to take also the first of the two books on guardianship —
Digest book 26, the first of the two books on wills — book 28, and the first
of the seven books on legacies — book 30. Then the work of the second
year was finished.
'^ Books 12 and 13 deal with loans; book 12 treats of loans of money;
the recovery of money paid without consideration, or by mistake, or
improperly, and summary settlements of such suits on oath tendered.
Book 13 deals with the recovery of loans in general {mutuum); loans in
specie {commodatum); and pledge {actio pigneraticia). Books 14-16,
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144 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
for any reason had required this part to be taken in the second
year, the third-year course began with the second part of the
Digest: books 5-11.™
The entire third year was devoted to a detailed study of
contracts including loans, sale, letting and hiring, partrership,
exchange, deposit, pledge, advanced agency, set-off, general
average and jettison, and suretyship.
§ 160 Fourth year. The fourth-year course of study covered
books 23-6 of the Digest, which comprise the latter half of
the fourth part and all of the fifth part of the Digest.'^' The
fourth-year men studied testamentary succession, trusts, and
many topics of family law, including betrothal and marriage,
divorce, dowry, parent and child, and the advanced part of
guardianship.
§ 161 Fifth year. The fifth and last year of the Justinian program
of study was devoted to reading the rest of the Digest, parts
title 1, treat of the liabilities of principals on agents' contracts; ship-
masters' contracts (actio exercitoria); general average and jettison {Ux
Rhodia); shopkeepers' contracts (actio institoria) ; contracts made by
slaves and children not emancipated (senatusconsultum Macedonianum);
and guaranties by women (SC. Velleianum). The rest of book 16 treats of
set-off (compensatio), and the contract of deposit (depositum). Books 17-19
contain the contracts of voluntary agency (mandatum) ; partnership
(societas) ; purchase and sale (emptio venditiq) ; letting and hiring (locatio
et conductio) ; exchange and the like. In addition to the above-mentioned
books, the third year students had to take the first half of the fourth part
of the Digest, — book 20 on pledge, book 21 on the rescission of purchase
and eviction (from the Aediles' Edict), and book 22 on matters supplemen-
tary to the topic of contracts, such as interest, mesne profits, delay, bot-
tomry loans, evidence (including proofs and presumptions, witnesses, docu-
mentary evidence, the effect of ignorance of law and fact). This finished
the work for the second year and also the subject of obligatory rights
ex contractu.
"* See supra § 158, second-year details.
'" Books 23-5 deal with betrothal; dowry (doj); gifts between husband
and wife; divorce; claims on dissolution of marriage; rights of unborn chil-
dren; the reciprocal rights of parent and child for support (alimenta) ;
and concubines. Books 26 and 27 treat of guardian and ward ; the appoint-
ment and removal of guardians and their responsibility to the ward; the
curators of lunatics, spendthrifts, etc. The last topic of the fourth year —
successions — was then taken up: books 28 and 29 deal with wills and
codicils, and books 30-36 with legacies and trusts ifiddcommissa).
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LATER EMPIRE: ROMAN LAW SCHOOLS 145
six and seven, books 37-60, and also the entire Code.'^* The
principal subjects for the fifth year were intestate succession,
gifts inter vivos, criminal law, ecclesiastical law, adminis-
trative law, and other topics of public law, extraordinary
legal remedies, advanced pleading and practice, the study
of maxims, and the interpretation of words and phrases.
Law school government; names of the various classes §162
of students. It is interesting to note that the Faculty must
have been bothered with questions of school discipline and
'28 The subjects dealt with are: succession in spite of and beside a
will, — books 37 and 38, titles 1-5; intestate succession (in the course of
time the student's attention must have been called to two Imperial statutes
on this subject, promulgated ten and thirteen years respectively after the
publication of the Digest, — Novels 118 and 127 "altering the order of
intestate succession to the form of irttestate succession to the form which
has since prevailed in Europe, and which mainly rules intestate succession
to personalty in England" and America "at the present time," Roby,
op. cit., p. xxxvii.), — rest of book 38; suits between neighbors and gifts
inter vivos, — ^book 39; manumission and claims of freedom, — ^book 40;
acquisition by ownership and possession, — book 41; judgment and exe-
cution, — book 42; injunctions (interdicta) , special pleas, bonds, and
sureties,' — books 43-46; crimes and criminal procedure, — books 47-9
to title 13; and topics of public law, interpretation of words and expres-
sions, and maxims, — rest of books 49 and 50. The remaining work
of the year was the study of the twelve books of Imperial statutes collected
in the Code. The subjects of the Code are many and varied, and cover the
fields of public law, ecclesia,stical law, criminal law, and civil law. Space
will not permit of a lengthy discussion of each book, but the following are
some of the important titles (for a full list, see Culquhoun, Roman law
§ 60) : the Catholic faith, churches, bishops, ecclesiastics, heretics, pagans,
kinds of law, courts and their jurisdiction, magistrates, and procedure in
civil actions, — books 1 and 2 ; actions in remand real servitudes, — book 3 ;
actions in personam and obligations ex contractu, — book 4; family law,
marriage and guardianship, — book 5; wills, codicils, legacies, and intes-
tate succession,^ — book 6; prescriptions, attachments, rights of the
Imperial treasury, — book 7; injunctions {interdicta), the paternal power,
donations and penalty for celibacy, — book 8; crimes and criminal proce-
dure, — book 9; prerogatives of the Imperial treasury (and the State),
of unclaimed property, of the kinds of public officers, — book 10; the rights
of municipal towns common with the city of Rome, including the rights of
bodies corporate, — books 11 and 12. It is quite noticeable that the
order of subjects in the Code resembles that of the Digest, — the reason
is, because the Digest was modeled partly after the arrangement of sub-
ject-matter in the first edition of the Code.
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146 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
j 162) government, just as now. Justinian himself legislated upon
the government and discipline of the student body, in the
very statute wherein he prescribed his new course of study ,'^'
section nine reading : "We moreover forbid, under very severe
penalties, those who study in our renowned city '^^ or in the
fair town of Berytus, both to engage in those low and unworthy
sports which suit only slaves, and which always end by injur-
ing somebody, and to commit any offense, ''' either against
their professors or against their fellow students, especially
against those who are still beginners in the study of law.^'^
For who would call these jokes from which wrongs result?
Such conduct we do not by any means allow, and this matter
we put under strict regulation for our times and for the future:
since our spirits ought to be educated first and then our
tongues."
Law students bore various appellations peculiarly appro-
priate to the various years of their course. These names of
classes were very suggestive Latin or Greek expressions'^':
first-year students were, prior to Justinian, called by the
ridiculous name of "Two-pennies"™ (Dupondii) , which Jus-
tinian changed to the honorable one of "New Justinians" "*
(Justiniani Novi), naming them after himself; second-year
students were called by the old familiar name of "Edictals"
(Edictales"*) because they studied the Praetor's Edict"';
third-year students bore the ante-Justinian noble title of
"Papinianists" (Papinianistae'**) in memory of the prince of
Roman jurisconsults, ''* — the first lecture on Papinian of the
"' Const. Omnem.
'2° I.e., Constantinople.
"' I.e., tortious.
"2 I.e., first-year men (freshmen) were not to be hazed.
"' These are given in the Const. Omnem (Eng. transl. by Monro, Dig.
vol. i, pp. xviii et seq.).
'^ Roby, Introduction to the Digest, p. xxvii, note 1.
"* Muirhead, Roman law^, p. 401, translates this as "Justinian's fresh-
men."
'36 It was an ante- Justinian appellation.
'"See supra §§60etseq.
'3* See note 736 supra.
"' See supra § 98.
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LATER EMPIRE: ROMAN LAW SCHOOLS 147
third-year class being always celebrated as a fite day'*";
fourth-year students were given the long-standing conven-
tional Greek name of Awat ("Lytae," — "freed from lectuffes")'"
in recognition of their progress in jurisprudence; and fifth-
year students were called Upokyriu ("Prolytae" — "advanced
AvTot"'*^) in recognition of the fact that they ought to want
for little in legal knowledge.
Admission to the Bar. Every candidate for admission to the § 1 63
Roman bar had to produce '^^ certificates showing that he had
studied law for the prescribed number of years and attesting
the proficiency of his legal knowledge '** ; if these certificates
were satisfactory, he was then ordinarily admitted to practice.''^*
. Nature of the Roman system of legal education. Whether § 164
we consider the ante-Justinian or the Justinian program of
study the system of legal education involved was primarily
a text-book system. The wonderful acumen and thorough
training of the Roman lawyer was thus acquired.
He began and spent nearly all his first year of work by
studying an elementary legal treatise, devoting his time to
getting a bird's-eye view, so to speak, of the entire field of
law, ■ — • the fundamental conceptions and principles of law
being set forth in a logical system and lucid manner intelligible
to the novice in jurisprudence. "Who has ever opened the
first book of the Institutes of Justinian, or of the Digest
without feeling his mind impressed by that stately sequence
of definitions and foundation rules!"'*"
'*" Const. Omnem, § 4.
"' Roby, Id. p. xxvii. Ortolan (Prichard and Nasmith Eng. transl.),
Roman law, §573, translates the Greek word as "licentiates," — which is
far too conjectural.
'« Roby, Id.
'*2 Ordinarily in a hearing before the governor of the province of his
birth: Code Justin. 2, 7, 11, 1.
■•^ Code Justin. 2, 7, 11 (A.D. 460); Id. lex 17, pr. (A.D. 474); Id. 22,
§§4 and 5 (A.D. 505); Id. 24, §§4 and 5; Basilica, 8, 1, 26 (scholium on
"doctor ejus," etc.). See also infra vol. ii, § 906 (on the Roman Bar).
'^Frequently the membership in some of the societies of advocates
attached to particular Roman courts was limited: see Code, 2, titles 7 and
8; and infra vol. ii, §906.
'^8 Chief Justice Baldwin, The study of elementary law, 13 Yale Law
Journal, p. 11 (1903).
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148 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
The second and third years of his law course the Roman
student devoted to the study of leading illustrative cases in
all brfoches of the law, — the Digest and Code of Justinian
being replete with reported decisions of cases.'*' And the last
two years of his course the Rom^n student gave largely to
private reading and research. In other words, the remaining
years of his course after the first year the student devoted to
repeatedly going over and reviewing the whole ground covered
in the first year, widening and deepening his knowledge of law
by a careful, thorough study of the Digest and Code with
their detailed expositions and ramifications of juridical doc-
trines and with illustrations, frequently and often copiously
introduced in the text, of pertinent cases and recorded deci-
sions. The course of instruction was really a "concentric
system."'*^ Mental discipline and the cultivation of habits
of clear and accurate thinking were not neglected under this
Roman system of legal education. The later years of the
student's course could not fail to quicken and sharpen the
analytical faculty and inductive ability of the student, for
some of the illustrative cases of the Digest require close study
to be thoroughly appreciated. The student received first
a thorough drilling in the elements and principles of the law,
which was followed subsequently in the program of studies
by the application inductively of what he had previously
deductively acquired, ■ — in other words, he learned how to
apply legal principles to states of fact.
§ 165 Roman legal education reveals the right way to study law.
Roman legal education has correctly answered for all time
that vexed question of the right methods of law study. The
cardinal feature of Roman law instruction is that it was
truly a system of legal education: Roman law schools scien-
tifically combined instruction by text-books, lectures, and
cases, — or in other words prescribed for the study of law
both the exegetical method (for a lecture is really but a variety
of a text-book) and the analytical case method. The purpose
was to obtain the recognized advantages of both methods.
'•" This fact is also recognized by Monroe Smith, Legal education in
Europe, Columbia University Quarterly (1908).
'48 See Wurts, Systems in legal education, 17 Yale Law Journal, p. 95.
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LATER EMPIRE: ROMAN LAW SCHOOLS 149
*
It ought not to be considered wisdom to arbitrarily limit (§165)
the student's welfare to the benefit of one method only. Each
method should be employed in that sphere where it is produc-
tive of the greatest good. Both methods should be used in
turn. Both should be scientifically co-ordinated to attain a
single goal, — ^to render students as efficient as possible in
their subsequent career at the Bar by giving them the broadest
kind of legal training.
Briefly stated, the Roman system of legal education was
this: first the study of text-books, then the study of cases.
This is the normal and quickest way of being introduced to
the study of law. The law to the beginner is full of not only
new but strange and often puzzling conceptions. The normal
way to commence the study of law is to receive a careful
explanation of its fundamental rules and doctrines given in
a text-book or course of lectures by some competent person
already in the law. The student is early taught that the
mastery of principles is highly essential. He is soon led to
see that rules of law are keys to unlock cases. To start the
study of law by cases is not logical : it would be like taking
a very difficult, laborious route in preference to an easier one
to the same destination.
Moreover, to begin the study of law by text-books is the
quickest way to accomplish the task of being introduced to
the law. That nation unexcelled in creative legal genius ^ —
Rome — made celerity a criterion of Roman legal education.
In the words of Justinian,''^' "If we at the very outset load
the mind of the student, while yet inexperienced and untrained,
with a multitude and variety of subjects, one of two results
will follow — we shall either make him desert his studies, or,
after much toil on his part and also in many cases after that
self -distrust which so often turns young people aside, we shall
bring more slowly to that very same point to which, if led
by a more easy path, he could have attained quickly enough
without any great trouble and without any distrust of him-
self."
The Roman system of first text-books, then cases, has been
successfully tried and tested throughout the ages. It was
™ Inst. 1, 2 (latter part).
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150 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
«
(§165) employed in the Roman world: "First an easy and simple
explanation, and afterwards one thoroughly careful and
exact," says the Emperor Justinian.'*" And it was expressly
provided that the Roman student, after a thorough drill in
elementary law, should then spend much time in the later
years of his course applying inductively to the great mass
of cases in the Digest that knowledge which he had previously
deductively acquired. Moreover, the Roman system con-
tributed all that is good in the law teaching of the Glossators
and Commentators — those intellectual giants of the Middle
Ages who made modern law possible. The wisdom of exclu-
sively teaching Anglo-American law from start to finish by
cases - — ■ a method not yet a half century old — has yet to
be proved. Such great creative jurists as Lord Mansfield
or Chief Justice Marshall received their legal training unaided
by it. European lawyers have no difficulty in attaining emi-
nence at the present time without any knowledge of the case
method. "The European system of legal education has
always been founded on that of the Roman Empire. Roman
law was taught as a system of deductive science. The Corpus
Juris proceeds from assertions of principles, to their applica-
tion' to various cases. The Institutes are a compendium of
elementary law prepared by law school professors avowedly
as a law school text-book. They are followed by the Digest
in which the same principles are more fully stated and illus-
trated. Then follows the statute law of recent times. Can
indeed, in the nature of things, a science like law be intelli-
gently taken up by anyone who has never been introduced
to an acquaintance with its fundamental terms and con-
ceptions?'"'*'
Roman law is "the most celebrated jurisprudence known
to the world" ; that it still lives to-day clothed in a twentieth
century dress is due in no small measure to its splendid pro-
gram of legal education, which so successfully trained jurists
perhaps unsurpassed in creative ability by any body of lawyers
in the world's history. Roman legal education, if judged
by the educational criteria of thoroughness, completeness,
'"■" Inst. 1, 2 (first part).
»i Baldwin, Id. p. 12.
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LATER EMPIRE: POST-JUSTINIAN LAW 151
mental discipline, and the cultivation of the power of
thought, — in other words, by what it did for those whom
it educated — is worthy to be ranked with the best modern
legal instruction.
(5) Post-Justinian Law to the End of the Roman
Empire in 1453
Vitality and elasticity of the Later Empire subsequent to § 166
Justinian ; the Eastern Roman Empire a bulwark for Western
Europe. It is a great mistake to think of the Eastern Empire
as one long decadence. On the contrary, for nearly 700 years
after Justinian, the Roman Empire in Eastern Europe con-
stantly exhibited remarkable signs of elasticity and vitality.
As Professor Bury says: "Throughout the Middle Ages, till its
collapse at the beginning of the 13th century, '^^ ^j^g Eastern
Roman Empire was superior to all the States of Europe in the
efhciency of its civil and military organization, in systematic
diplomacy, in wealth, in the refinements of material civiliza-
tion, and in intellectual culture. It was the heir of antiquity,
and it prized its inheritance — its political legacy from Rome
and its spiritual legacy from Hellas. . . Yet though the
political and social fabric always rested on the same founda-
tions, and though the authority of tradition was unusually
strong and persistent, the proverbial conservatism of Byzan-
tium is commonly exaggerated or misinterpreted. The
Emperors were continually adjusting and readjusting the
machinery of government to satisfy new needs and changing
circumstances." '^'
For nearly 900 years after Justinian, the Roman Empire
in the East survived the attacks of barbarian peoples and the
weight of increasing old age. Constantinople was indeed
the frontier fortress of all Europe ; it was until 1453 the home
of the Roman law itself; it was the home of Roman civiliza-
tion preserved on the Bosporus until the Western European
world was purged of its barbarism and made ready to receive
it. And the fall of the Eastern Empire marks the beginning
"2 By the Latin Conquest, see infra § 182.
"* Bury, A History of the Eastern Roman Empire: from the fall of Irene
to the accession of Basil I. (802-67 A.D.).
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152 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
of the full tide of the Renaissance when Western Europe
ceased to be medieval and began to be modern, as a result
of the westward flight of civilization from the invading Turks.
The crumbling walls of modem Constantinople are a monu-
ment to an Empire which made Europe possible. For
1000 years Constantinople stood as an impregnable bulwark
between the Orient and Europe, while Rome herself fell and
the West lapsed into chaos. Suppose Constantinople had
fallen sooner? What might have been, is suggested vividly
by the Moorish conquest of Spain and the Turks sweeping
westward to Vienna, when at last the Eastern Roman Empire
did fall. The debt of Western Europe to the Byzantine
Empire is too frequently underestimated.
[167 After Justinian, Greek supplanted Latin as the official
language of the Empire. Although by the 4th century A.D.
the conquering Roman impress and Latin language had
become strong in the Greek provinces of the Empire, yet the
Hellenic element in the East was only temporarily checked.
And the following centuries witnessed a strong recrudescence
of the native Greek language, together with a gradual de-
Latinization of both the governing classes and the population
generally.'^* In the 6th century it was unusual to find educated
men of the East who knew Latin. '^^ Justinian was the last
Emperor whose mother tongue was Latin, • — his successors
spoke Greek preferably or solely. Even Justinian himself,
devoted as he was to the Latin traditions of Rome, felt
obliged for the better information of his people to publish
his later statutes — the Novels'^* — in Greek. From this
time onward Greek became the official language of the Eastern
Roman Empire, '^'^ and scarcely fifty years after Justinian's
death Latin ceased to be employed at all in the courts of jus-
tice.''^^ In the 7th century, Latin had become a foreign lan-
'5^ See Oman, Byzantine Empire, ch. xi.
™6 Oman, Id. p. 143. The foremost writer of this century, Procopius,
was absolutely ignorant of Latin. Another author, Johannes Lydus, rose
to distinction in the government service because, as he says, he knew Latin.
"« Promulgated A.D. 635-65, see supra § 139.
''" Bury, Later Roman Empire (23 Encycl. Britan." p. 514).
"* The artificial retention of this linguistic tie to Rome was discontinued
in the reign of Heraclius (A.D. 610-41): Heimbach, Prolegomena Basili-
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LATER EMPIRE: POST- JUSTIN I AN LAW 153
guage to the inhabitants of the Greek and Asiatic provinces
of the Empire.
Names descriptive of post- Justinian Roman law. The § 168
last nine centuries of Roman legal history from the death of
Justinian in A.D. 565 to the end of the Empire in 1453 are
variously described as "Law of the Eastern Empire," "Graeco-
Roman law," "Byzantine Roman law," "Byzantine law,"
"Post- Justinian law,"- — -the term open to the least mis-
construction being the last. The law of the Later Empire
after Justinian still retained its Roman characteristics inherited
from earlier ages. For about 600 years the codification of
Justinian nominally remained the law of the Eastern Empire:
but in the 12th century the use of the Justinian law books
ceased in the courts, and the official Greek abridgments of Jus-
tinian's works made by later Emperors, especially the Basil-
ica, '^^ replaced them.'^" Such a fate was inevitable owing to
the change in the language of the people from Latin to
Greek.'"
The 6th century Greek jurists of the Justinianean school. § 169
During the remainder of the 6th century following the publi-
cation of the Corpus Juris — perhaps also the early years
of the next century prior to the reign of Heraclius '^^ should
be included — a large amount of translation and interpreta-
tion of each of the four Justinian law books was done by
Greek jurists. These were nearly all law professors of the
Justinianean school and bear a special collective name —
the Antiqui ("ancients"). Nearly all of their extant works
consist largely of fragments cited in the later Imperial
abridgments of Justinian's Corpus Juris, especially the
Basilica. '^^
corum, book i, ch. i, § 5 {Bas. vol. vi, p. 7) ; Duck, De usu et auctoritate juris
civilis, p. 56; Gibbon, Rome, ch. 53.
'59 See infra § 176.
""See Heimbach, Prolegomena Basilicorum, bk. 2, ch. 3, §§2-5 (in
\\isBasilica, vol. vi, pp. 146 et seq.).
"1 See supra § 167.
"2 He began to reign A.D. 610.
"3 See infra § 176.
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154 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
(§169) The following Greek jurists contemporary with Justinian
achieved eminence^": Anatolius'^* and Dorotheus^^* — both
antiqui and law professors at Berytus^'^'^ (Beirut) ; Cratinus,
Julian, ■'^^ and Theophilus'^' — ^all antiqui and also law professors
at Constantinople; Isidore''^'' and Thalelaeus — both antiqui
and also professors at Constantinople or Berytus; and
Basilides, Cyril "^ (sr., and antiquus), Constantine, Dioscorus,
Eutolmius, Jacobus, Joannes, Leonides, Leontinus, Mena,
Plato, Praesentinus, Prosdocius, Salaminius (an antiquus),
Theodore'''^ (an antiquus), Thomas, Timotheus, and Tribon-
ian"^ — ^all either Imperial officials or leaders of the Bar.
There were also many eminent Greek jurists immediately
subsequent to Justinian. These include Cyril ''* (jr.), Demos-
thenes, Domninus, Eudoxius, Patricius, and Stephen^" —
all listed among the antiqui and all also law professors at
Berytus; Anastasius, Anonymus,'^^ Athanasius, Cobidas,
Philoxenus, Phocas, Symbatius, and Theodore ^'^ — all honored
as antiqui.
Justinian, upon completing his grand work of codification,
forbade the making of any commentaries or notes upon his
law books, "^ — Greek translations and necessary notes
'^See Heimbach, Prolegomena Basilicorum, bk. 1, ch. 2, §§1 et seq.
(Bas, vol. vi, pp. 8 et seq.); all the prefaces to the Digest, Code, and
Institutes of Justinian.
'^5 See supra § 137.
'*^ See supra § 135.
"'See supra §§154, 155.
'** Author of the Latin abridgment or epitome of the Novels, see supra
§139.
'63 See supra § 135.
"" Isidorus.
"1 Cyrillus.
"2 Theodorus.
"3 See supra § 135.
"* Cyrillus, perhaps a law professor.
"* Stephanus, at one time law professor at Constantinople.
"^ His real name is unknown; he was probably a law professor at Con-
stantinople.
"' Theodorus, sometimes called "Scholasticus" or "Hermopolitanus."
"' Const. "Deo auctore,'' §§12 and 13 (Monro, Eng. transl. Digest, vol. i,
pp. xxvi et seq.); Const. "Tanta," §21 (Monro, Id. p. xxxiv).
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LATER EMPIRE: POST-JUSTINIAN LAW 155
excepted.''^ Advantage of this exception was quickly taken,
and the general prohibition as to making commentaries was
not long obeyed by the Byzantine jurists of this era — the
increasing predominance of the Greek language in the Eastern
Empire rendered such Greek books quite necessary.'*" Trans-
lations or commentaries of the Code '^^ were made by the
Greek jurists Anatolius,''^^ Isidore, Stephen, Thalelaeus, and
Theodore.'*^ Greek translations or commentaries of the
Digest '** were written by Anastasius, Anonymus, Cobidas,
Cyril (jr.) Stephen,'*^ Thalelaeus, and Theophilus.'** These
Byzantine jurists accomplished tasks of great magnitude,
and deserve the highest praise. A Greek translation of the
Institutes ^*"' was written by the famous Theophilus,'** illus-
trious for his participation in the work of making the Corpus
Juris.'*' Greek translations or commentaries of theNovels ''"
were made by the jurists Athanasius, Anonymus, Philoxenus,
Symbatius, and Theodorus.
Rise of the Moslem power in the 7th century; Constanti- § 170
nople saved from the Saracens by Leo the Isaurian (Leo III)
in A.D. 718. Barely sixty-five years after the death of Jus-
'•''^ Const. "Tanta," §21.
'*" As to the translations and commentaries made by the Greek jurists
of the 6th and 7th centuries, see Heimbach, Prolegomena Basilicoium,
bk. 1, ch. 3-7 {Bas. vol. vi, pp. 19 et seq.).
'*! See supra § 136.
'«2 See supra § 137.
"^ Those of Anonymus, Athanasius, Cobidas, Cyril (jr.), Dorotheas,
and Phocas are regarded as spurious.
'84 See supra § 137.
'^ See Sohm (Ledlie'), Roman law, p. 133.
"^ See supra § 135. Those of Anatolius, Isidore, and Theodore are
regarded as falsely ascribed.
'" See supra § 138.
'** The Greek Institutes of Theophilus have been translated into Latin
by the following : Fabrotus, 1638 ; Reitz, Theophili paraphrasis Justiniani
Institutionum, 1765 (revised by Schrader, Amsterdam, 1860); Ferrini,
Institutionum graeca paraphrasis Theophilo, etc., 2 vols., Berlin, 1897 (con-
tains also the Greek text). There is a German translation of Theophilus
by Wustemann (1823).
'*^ See supra § 135. In recent years doubts have been raised as to
Theophilus' authorship of this treatise: see Krueger, Quellen, p. 362.
"» See supra § 139.
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156 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
(§ 170) tinian, the forces of the Emperor Heraclius ^'"^ in Syria
came into collision in 629 with cohorts of an army coming
from Arabia, who fought like madmen — the followers of
Mohammed. And the superior discipline of the Romans
could not prevail against armies of fanatics anxious to get
killed in order to reap in the next world the blessings of
martyrdom. The moment of the Saracen invasion came at
a most unfortunate time for Heraclius, who had just triumphed
in the life and death struggle with Chosroes and the power
of Persia. '^^ Both countries were exhausted, and sorely needed
repose: but neither country was to obtain rest.'''' Three years
later the storm burst on the unhappy Roman Empire. The
Caliph Abu Bekr, obeying his master who had died this same
year,?'* sent an army against the Romans in Syria. "*
The result was a succession of Mohammedan victories.
All Syria east of the Jordan was lost in 634, the great city
of Damascus fell the next year, Antioch — the Syrian metropo-
lis — ^ and all northern Syria also fell, and in 637 Jerusalem
after a year's desperate resistance succumbed to the Saracens.
The next year the Arabs hurled themselves against Egypt:
after a two years struggle the granary of the Roman Empire
was conquered. In 641 ^'^ only Alexandria was left to the
dying Heraclius.'^'
The outbreak of civil war in 656 among the Moslems —
luckily for the Empire — and the remarkable vigor of the
gallant descendants of Heraclius, who preserved nearly
every province remaining Roman at his death, checked the
power of the Saracens for the rest of the 7th century. But
the reckless tyranny of Justinian II, the last of the house of
"1 Reigned A.D. 610-41.
'92 -phe great Persian war began (before Heraclius' reign) in 602, and
lasted until Heraclius' capture of the capital of Persia in 628.
''°2 Mohammed in 628 had written to both Heraclius and Chosroes,
inviting them to embrace Islam; and, not receiving a satisfactory answer,
he doomed both empires to destruction.
™ Mohammed died June 8, 632.
'" Another army was at the same time hurled against Persia.
"° The very year of Heraclius' death witnessed also the complete
destruction of his deadly enemy Persia.
'" Alexandria was forever lost a few years later, in 644.
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LATER EMPIRE: POST-JUSTINIAN LAW 157
Heraclius, and the anarchical times of his wretched successors
set in motion again the Saracens, who in the early years of
the 8th century overran a large part of Asia Minor. And
in 717 the vessels of the Saracens sailed up the Propontis
while their huge army attacked Constantinople itself from
the western side. The city was besieged for nearly a year,
but by the heroic efforts of the new Emperor, Leo the
Isaurian,"* Constantinople — and also all Christendom —
was saved from the grand army of the Saracens. Leo won
the greatest success in Roman history, — the Saracens never
again tried to destroy the Empire. And Leo finally was able
to also restore Asia Minor to the Empire, which retained it
until the 11th century conquest of this province by the Turks.
Neglect of jurisprudence in the 7th century; the law §171
school of Constantinople closed in the year 717. The pro-
found disturbances of the social order in the 7th century due
to the terrible invasions of the Empire by its powerful enemies
made that century a blank in Roman legal history. The
activity of the Greek jurists of the Justinianean school came
to an end soon after the close of the 6th century. The law
of Justinian although rendered into Greek was studied and
understood but little. Roman traditions declined while the
influence of the Church correspondingly increased, as is seen
in the sanction as the law of the Empire by Justinian II of
numerous rules enacted by a synod held at Constantinople —
which legislation differed from the existing law, being based
on ecclesiastical and Mosaic doctrines. In 717 — -not quite
a century and a half after Justinian • — the law school of Con-
stantinople was closed, and remained closed for 150 years
until A.D. 866. It was no time to cultivate jurisprudence:
the Saracens were threatening the very existence of the
Empire's capital.''^
The 8th and gth centuries are the period of post- Justinian § 172
legislation. From about the middle of the 8th century to
the end of the 9th occurred Byzantine legislation on a grand
scale. The history of Roman law from the reign of Leo the
"8 He had been crowned but a few months.
"' See supra § 170. Constantinople, the beleaguered city, was finally
saved by the Emperor Leo III.
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158 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
Isaurian ^'"' down into the reigns of Basil *'"• the Macedonian
and his sons ^"^ constitutes the period of post-Justinian legis-
lation. The legislative activity of these later Emperors of
the Eastern Empire may be divided into two epochs: the
legislation of Leo the Isaurian and the legislation of Basil
the Macedonian and his sons. These Graeco-Roman Emperors
not only made administrative reforms, but also published
statutory manuals containing abridgments of the Justinian
law books. All this Byzantine legislation was in the Greek
language.
§ 173 The 8th century administrative reorganization of the
. Empire by Leo the Isaurian. Diocletian's system of central
control over the provinces and of the division of power between
the military and civil authorities *"' had continued almost
unaltered for over 300 years until the reign of Justinian, who,
to remedy corruption and oppression, inaugurated certain
reforms pointing in the opposite direction. Not only did
Justinian combine several of the small provinces into larger
units, but he reintroduced in some cases the ante-Diocletian
policy of placing military and civil authority in the same
hands.
In the 7th century the Empire was beset by very powerful
enemies; and military exigencies naturally had to be con-
sidered first, — everything else gave way. The beginnings
of this change occurred late in the 6th century in the newly
reconquered and still disturbed provinces of Italy and Africa,
where the exarchs or military "viceroys" were made supreme
over the civil governors in cases of conflicting authority. And
in the East the terrible stress of the Saracenic invasion caused
similar results. During the reign of Constans II (Constantine
IV) *"'' the civil authority throughout the Empire was entirely
subordinated to the State, and the provinces of the Empire
«»» Leo III, who reigned 717-40 (741).
™ Basil I, who reigned 867-86.
*°2 Leo VI (called the Philosopher or the Wise) and Alexander, who
reigned 886-912.
s»3 See supra § 120.
*°* He was always known thus by his own people, and his coins bear
the name of Constantine. He reigned A.D. 642-88.
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LATER EMPIRE: POST-JUSTINIAN LAW 159
were reorganized into six military districts. Three of these (§ 173)
were in Europe: the exarchate of Africa, the exarchate of
Italy, and the strategia of Thrace. The three Asiatic dis-
tricts were in Asia Minor. ^"^ There was also a naval dis-
trict which included the south coast of Asia Minor and the
Aegean.*""
In the year 717 there was crowned at Constantinople a
remarkable man, Leo the Isaurian (Leo III), one of the great-
est Emperors that ever sat on the Roman throne and the
equal of Charlemagne of the same century. Leo succeeded
to a shattered Empire in imminent peril of destruction by
the Saracens, which he not only saved*"' but "out of the wild
chaos about him he built up a fresh, and in many respects an
entirely new, structure of empire, throwing into the tremen-
dous task a fierce and enduring energy, a stern and pure
religious enthusiasm. Where he inherited ruin and misery,
he left strength, order, peace, and reviving prosperity. He
died on June 18, 740,*"* having raised the shattered heritage
of the Caesars from the deepest degradation and set it once
more on the high road to recovered power and prosperity."*"'
Not only was Leo successful in his foreign policy, but his
internal reforms were of the highest importance. He com-
batted the prevailing barbaric superstition of his time by his
edict forbidding image worship, — he was then called Leo
the Iconoclast; he reorganized the finances and encouraged
commerce and industry; and he reformed the administrative
civil service and the judicial system. Leo completely swept
away the old Roman system dating from Diocletian. The
old Roman names and boundaries of the provinces disappeared,
as did also the familiar offices of state based on the scalar
principle — such as the praetorian prefects and vicars.*'"
8™ The strategia of the Anatolikoi, the strategia of the Armeniakoi,
and the Opsikion.
s"" The old prefecture of lUyria was not reorganized in this system,
because this part of the Empire was considered as lost — the Prefect of
Illyria then exercising Httle authority beyond Thessalonica.
8»' See supra § 170.
808 Some authorities say 741.
*"" Foord, The Byzantine Empire, pp. 178, 179.
«» See supra § 120.
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160 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
As an administrative reformer Leo should be ranked with
Diocletian or with Augustus. Overturning the policy of
Diocletian, Leo returned to the regime of Augustus and the
Early Emperors prior to Diocletian: he combined military
and civil authority in the same person. Each general (strate-
gos) commanding a military department was made also a civil
governor. Leo divided the Empire anew into military
departments or districts called themes. The word originally
meant army corps. The new provinces were about the size
of the Augustan provinces and much larger, usually, than the
Diocletian. There were six themes in Europe and six in Asia ;
but in the middle of the 10th century the European had
become split up into eleven, and the Asiatic into seventeen
themes. One of the Asiatic, Samos, was a naval district. In
addition to these administrative reforms many changes were
made by Leo and his successors in reorganizing the functions
of the great bureaucratic civil service of the Later Empire,
creating new ofhces of state, and changing the administrative
nomenclature by substituting Greek for the old familiar Latin
titles.
§ 174 The 8th century Ecloga of Leo the Isaurian. To Leo IIP"
belongs the honor of making in A.D. 740 the first official
Imperial collection of Roman law since Justinian. '^^ It was
written in Greek, Latin being extinct in the Empire of the
East, and its full title is "'EK\oy^ tu>v vofitov iv a-WToixia yevo/xeni
irapa. Acovros kol Ktoi/crTavrivov tu>v (to<j>S>v koI <j)iXev(Te^G)v ij/iuv Paxri-
Xe'(i)V diro tS>v \v<TTiTovT<av^ rSiv AtyecrTO)!', tov KwSikos, tS>v vea/ouiv
Tov fieyaXov 'lovcrTivuivov SiaTa^ewv, Kaa £Tn8tdpS(0(ns eh to <f>iXav6pti>ir6-
repov iKTcOua-a." *^' It is now known as theEcloga legum ('selec-
tion of laws'). It is also referred to as the Enchiridium
(manual) or the Isaurian law. The Ecloga consists of a pref-
*ii His son and successor Constantine V (Conpronyraus) was joined
with Leo in the promulgation of the Ecloga: see the Greek title of the
Ecloga.
812 He died about two centuries earlier, — in 566.
*'3 Zachariae, Prochiron (Prolegomena, ch. 2, § 5), 1837, thus translates
this into Latin: "Ecloga legum compendiaria per Leonem et Constan-
tinum, sapientes ac pios imperatores, ex Institutionibus, Digestis, Codice,
et Novellis magni Justiniani Constitutionibus, et correctio in id quod
aequius melius est."
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LATER EMPIRE: POST-JUSTINIAN LAW 161
ace and eighteen titles,*'* and was prepared chiefly by three (§174)
jurists *i^ — -two men by the name of Nicetas, and Marinus.
The Ecloga marked a new era in Roman law. In his legis-
lation the Emperor Leo frequently departed from the Roman
tradition as found in the law of Justinian. The Ecloga is
best described as a Christian law book. The greatly cur-
tailed patria polestas of Justinian's time was still further
restricted by Leo, who gave the son arrived at years of dis-
cretion increased facilities for emancipation, and who sub-
stituted, to a considerable extent, a parental control over
minors in place of the old familiar paternal power. The
Ecloga also greatly modified the law of guardianship.
As to marriage, Leo accepted the Church view that it is a
sacrament, and made marriage indissoluble ■ — quite the
reverse of the traditional doctrine of Roman law prior to and
in the time of Justinian. The Ecloga greatly multiplied
impediments to marriage due to consanguinity and afhnity,
and abolished concubinage.
The Ecloga made two changes in Roman criminal law very
significant of ecclesiastical influence. First, capital punish-
ment was largely replaced by bodily mutilation of some sort,
such as amputation of hand, nose, and castration. *'* The
death penalty was retained principally for murder and treason.
This tendency towards leniency by avoiding capital punish-
ment increased in course of time to such an extent that four
centuries later in the reign of John IP'^ capital punishment
was never inflicted. This same tendency is also illustrated
by the practice of certain Byzantine Emperors as to dis-
posing of unsuccessful rivals or deposed Emperors: such
unfortunates were not generally put to death, but were
*" The Greek text of the Ecloga is given by Zachariae, Collectio librorum
juris Craeco-Romani ineditorum, Leipzig, 1852. A Latin translation of the
preface of the Ecloga and a Latin list of its titles (together with a short
history of the Ecloga) are given by Zachariae, Prochiron (Prolegomena,
ch. 2), Heidelberg, 1837.
^^^ Ecloga, Prooemium (preface), § 2.
^'^This system of penalties was based on the New Testament doctrine
"If thine hand or thy foot offend thee, cut them off," etc.: Gospel of St.
Matthew, xviii, 8, 9.
81'' John II (Comnenus), 1118-43.
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162 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
deprived of eyesight or forced to take monastic orders. Second ,
the Ecloga granted to all Christian churches the privilege of
asylum unreservedly and without restrictions, — thus repeal-
ing the law of Justinian which strictly limited this right.
§ 175 The pth century Prochiron and Epanagoga of Basil the
Macedonian. In the latter half of the 9th century a remark-
ably virile dynasty of Emperors, known as the Macedonian,
began to rule at Constantinople. By them the Eastern
Roman Empire was well governed for the next two centuries. ^'^
To Basil the Macedonian *'^ and his sons belongs the glory of
being the greatest post-Justinian legislators.*^" Their legis-
lation, which began late in the 9th century, was in the nature
of a partial reaction against the Isaurian Ecloga and a return
to Justinianean law. Basil aimed to revive legal study. The
Isaurian and Phrygian Emperors had apparently failed to
revive Roman law study, although the law school at Con-
stantinople was reopened the year before Basil obtained
the throne, — after being closed for 150 years.*"
During the years 870-79*^^ the Emperor Basil published,
in imitation of Justinian's Institutes, *^^ a manual called the
Prochiron (6 Ilpd^^etpos voju.os *^* or Tlpoxapov vo/xikov — • 'manual
of the law'). It consists of extracts from the Institutes,
Digest, and Code of Justinian, arranged in forty titles with a
preface. *^^ The orthodox Basil in his Prochiron rather con-
temptuously abrogated the Ecloga ^^^ of the "Iconoclast" Leo
as to many points of Civil law, and returned to Justinianean
principles. For example, Basil revived the law of Justinian
as to divorce, and thereafter the Civil and Canon Law were
contradictory. But the Prochiron did not repeal the criminal
*'* The last Emperor of the Macedonian dynasty was Michael VI,
1056-7.
8i» Basil I, 867-86.
«" Leo VI (the Philosopher or the Wise) and Alexander, 886-912.
*2i See supra § 171.
*'2 Zachariae, Prochiron, p. Ivi; Krueger, (2«e//e«, etc. p. 369.
«23 See supra § 138.
*^'' "Lex manualis" is Zachariae's Latin translation.
''"' The Greek text with a Latin translation is given by Zachariae in his
Proch ron, Heidelberg, 1837.
*™ See supra § 174.
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LATER EMPIRE: POST-JUSTINIAN LAW 163
law of the Ecloga. A few years later '^' Basil ^^ revised the
Prochiron, and published a later edition ^^^ called the Epana-
gQg(j 830 ('ETTovayoy^ toB j/o'/uou). It also consists of a preface
and forty titles.^''
The Qth century Basilica of Leo VI. In the Epanagoga § 176
Basil heralded the completion of the revision of the entire
Justinian law,^'^ — Basil had earlier announced this project
in the Prochiron.^'' Basil planned to have this made in sixty
books,^^* but subsequently changed his mind and arranged
his revision in forty books.*'* This revision *'^ was unsatisfac-
tory, and a second edition was prepared under the direction
of Basil's son Leo,*'' — ^the present Basilica which was pro-
mulgated about A.D. 892.*'* Who or how many were the
compilers themselves is not known. Leo's edition rearranged
Basil's material into sixty books, the original number had in
*" In 88-^-6, — Zachariae, Epanagoge, p. 55 (Collectio librorum juris
Graeco-Romani ineditorum, Leipzig, 1852) ; in 879-86, — Krueger, Quellen,
p. 369.
*^' Or Basil and his sons and successors Leo VI and Alexander, — see
Greek title of the Epanagoga.
'29 "Repetita praelectio Prochiri": Zachariae, Id.
*^° The word ought to end in "a" as does "Ecloga." But Zachariae,
and Hunter, Roman law^, use "e'' as the final letter oi Epanagoga.
*" For the Greek text, see Zachariae, Id.; also his Prochiron (Prole-
gomena, ch. 4), Heidelberg, 1837, for a Latin translation of the preface
and a Latin list of the titles.
832 II ij^p TraXaifflc vkjiuv . dvaKaSaplcraffa," "veterum legum
. . repurgans": Epanagoga, Prooemium (preface), §1 (also in
Zachariae, Prochiron, Prolegomena, ch. iv, § 10, pp. Ixxix-lxx).
833 11 "AraKa9(£/3(reii)s tSii iraXa^Sv v6iJ.iav," "de repurgatione veterum
legum'': Zachariae, Prochiron, Prooemium, §3 (p. 10).
'" Prochiron, Prooemium, § 3.
^'^ Epanagoga, Prooemium, § 1.
'"^ Published about 883, — but not earlier than this year (Heimbach,
Prolegomena Basilicorum, bk. 2, ch. 2, § 3 in his Basilica, vol. vi, p. 99).
Basil's first edition soon fell into oblivion, and is not extant.
*" Leo VI (called the Philosopher or the Wise) reigned with his brother
Alexander, a virtual figurehead, 886-912.
«38 Heimbach, Prolegomena Basilicorum, bk. 2, ch. 3, § 3 (in his Basilica,
vol. vi, p. Ill): "ineunte imperio Leonis promulgata . paucis
annis ante annum 892."
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164 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
1176) mind by Basil. ^'' Very likely Leo made use of the prepara-
tions of Basil, perhaps also of the latter's arrangement of
books and titles.*^"
The Basilica has been called by various titles. Leo called
his work by the same name as his father Basil used in the
first editions, — ' kvaKa.dapai% t&v waXaiwv vofiMv ('revision of the
ancient laws'). This name was employed for a long time:
it is still used by the 12th century Byzantine jurist Theodore
Balsamon.^^i The Basilica were also called 'E^a;8ij8A.os or
"EirjKovTa^i^Xos ('the six volumes' ^ or 'the sixty books'), and
Ta '^^rjKovTa Ke<l>dXaia BamXiK&v ('the sixty Imperial texts'). ^^'
But the most frequent name is 5 BacrtXtKos ^** ('the Imperial
law') or TaBaa-iXiKa^^ ('the Imperial laws'). The origin of
the term "Basilica" has occasioned considerable controversy.
The derivation of it from the name of the Emperor Basil,
although interesting, is not probable.
The Basilica are a Greek abridgment of the entire law
of Justinian, revised to the date of publication late in the 9th
century and consolidating into an amalgamation the four
6th century Justinian law books — ^ Code, Institutes, Digest,
and Novels.*" But these distinctive names are not retained.
Little use of Justinian's Institutes is made in Leo's work,
because the former were designed for law students and not
for use in court, while the Basilica were intended for the use
''' In his Prooemium (preface) to the Basilica Leo makes no mention
of Basil at all, and speaks as if he were the first to accomplish the work of
revising the Justinian law, — see Heimbach, Basilica, vol. i, ante bk. 1.
It has been conjectured, rather absurdly, that Basil's work supplied 40
books {Epanagoga, Prooemium, § 1) and that Leo added the other 20.
(See Heimbach, Prolegomena, bk. 2, ch. 3, § 3 — in his Bo5. vol. vi, p. 102.)
*"> Heimbach, Prolegomena Basilicorum, bk. 2, ch. 3, §§3 and 5 (in his
Basilica, vol. vi, pp. Ill, 117).
«i See infra § 180.
^ Leo himself divided the Basilica into six volumes, — see Prooemium
to the Basilica.
*^' This title was given by Mark, patriarch of Constantinople. "Texts"
really means "books."
^* Sc. vbims.
'^ Sc. vbiuijjx.
"*« As to each of these see supra §| 135 et seq.
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LATER EMPIRE: POST-JUSTINIAN LAW 165
of lawyers in practice. ^^' The Basilica differed from the legis- (§ 176)
lation of Justinian in this marked respect: Leo's work was
not promulgated as superseding all other earlier law,^^^ as were
the Justinian law books; on the contrary the grand work
of Justinian was still acknowledged as the ultimate source
of the Basilica, which merely adapted Justinian's codification
to the needs of the 9th century. In reality, however, because
the Basilica was authorized by Imperial sanction and because
it was in the Greek language, the works of Justinian were
gradually supplanted; and by the end of the next century
the Justinian codification, although never abrogated, fell into
abeyance.'*'
The arrangement of subjects of the Basilica follows con-
siderably the order of the Code of Justinian.'*" The extracts
in the Basilica came principally from two sources: (1) the
Greek writings of 6th century Greek jurists'^* who had trans-
lated, abridged, or written commentaries on the Corpus Juris;
and (2) the Prochiron '^^which contains post- Justinian Imperial
statutes. The original Latin text of Justinian's codification
was not often used. The Basilica frequently omit portions
of the Digest, and occasionally contain passages from ancient
jurists not found in the Digest.'*'
The Basilica are cited as such and such a book, title, frag-
ment or law. Basilica citations of the text of Justinian's
Corpus Juris are frequently accompanied by numerous
aimotations taken from the writings of Greek jurists of the
**' See Heimbach, Prolegomena Bas., bk. 2, ch. 3, II, §2 (Bas. vol. vi,
p. 127).
^* See Hunter, Roman law*, p. 95.
*" The use of the Justinian law books did not entirely cease in the courts
until the 12th century, ■ — see supra § 168.
«»" Heimbach, Id. pp. 118-19.
'" See supra § 169.
^^ See supra § 175.
863 Furthermore, the compilers of the Basilica made some use of the
Leonine Constitutions — the numerous statutes or Novels of Leo VI.
Novel I contains the promulgation of the Basilica. ■ See Heimbach, Pro-
legomena Basilicorum, bk. 2, I, ch. 3, §§ 3 and 7 (in his Bas. vol. ^•i, pp.
110, 111, 141).
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166 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
6th century.*'* These passages are known as scholia, *^^ and
these may be interpretative, illustrative, or sometimes con-
flicting with the text itself.
A Latin translation of the Basilica was first made in 1638
by the learned Fabrot ^^^ (Fabrotus) , under the patronage of
Louis XIII of France. Two centuries later, between the
years 1833-70, the German Civilian Heimbach reconstructed
the Basilica from all the extant MSS. and translated them
into Latin — perhaps the greatest literary undertaking of
the 19th century.*'"
§ 177 Character of the post-Basilica Roman law to the end of the
Empire in A.D. 1453. During the next five centuries after
the Basilica*^* there was little Imperial legislation of con-
sequence. The excellence of the Basilica, the troubled times
of the last centuries of the Empire — afflicting it, in addition
to the increasing weight of old age, with much suffering from
enemies, and finally in the 13th century with ruin beyond
recovery through the dastardly Latin Conquest of Con-
stantinople — all these factors both good and bad militated
against further Byzantine legislation on a grand scale.
Although subsequent to the Basilica there were written
many commentaries, abridgments, and revisions of Byzantine
Roman law, yet the Basilica*^' together with the Prochiron
and Epanagoga *^'' were till the end of the Eastern Empire,
"the constant resource and chief authority of the lawyer."'"
^^ See supra § 169.
*** Annotations from 6th century Greek jurists are technically known
as " Ti naXaid" or "antiqua": those from later Greek jurists are strictly
scholia. See also infra § 177 and Heimbach, Prolegomena, etc., bk. 2,
ch. 3, § 7, ch. 5, §§2-31 (in hisBas., vol. vi, pp, 121-4, 196-203).
"^^ Heimbach, Bai., vol. vi, p. 181 (Prolegomena, bk. 2, ch. 4, §2).
**' Heimbach's text and Latin translation is the standard work. It is
entitled Saii/jcorMOT Zi6nLX, 7 vols., Leipzig, 1833-97. Vol.7 is known
as "Supplementum alterum, ed. Ferrini et Mercati."
'5* The promulgator of this work, Leo VI (the Philosopher or Wise),
died 912.
*»' See supra § 176.
'*" See supra § 17.5.
*^' Ortolan (Prichard and Nasmith transl.), History of Roman law, § 593-
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LATER EMPIRE: POST-JUSTINIAN LAW 167
loth century Roman law. The publication of the legisla- § 178
tion of Basil and his sons ^^^ naturally acted as a great stimulus
to fresh Roman law literature. Commentaries, abridg-
ments, and revisions soon followed. The post-Basilica
jurists also studied the ecclesiastical law of the Eastern or
Greek Church. ^*^ The work of the Graeco-Roman jurists
subsequent to the Basilica ^^^ consisted principally of abridg-
ments and manuals. They commented or wrote notes on
the Justinian law, especially as contained in the scholia
antiqua **^ or annotations of the ancient 6th century Greek
jurists. ^"^ For this reason some of the works of the post-
Basilica jurists are called "the later scholia." ^^'
The most celebrated of the 10th century Byzantine jurists
and scholiasts was Eustathius Romanus, who lived during
the reign of Basil II, 963-1025. In this same century also
were published three important works: in the year 920 the
'Ettito/x^ Tuiv vofjiuiv {Epitome legum) in fifty titles,*^* — based
partly on Justinian and partly on the Epanagoga,'^' a
revised edition being issued toward the reign of Constantine
VII (Porphyrogenitus) *'"; the Synopsis Basilicorum,^''^ — an
abridgment in alphabetical order of the Basilica, ^''^ which
with various revisions survived until the end of the Empire,
five centuries later; and the Epanagoga aucta.^''^
nth century Roman law. The summit of activity in post- § 179
Basilica Roman law study and literature came in the 11th
century, during which lived many Byzantine jurists of ability
sii^ See supra §§175, 176.
'*' The Western Latin Church separated from the Eastern in 1054.
'^'As to these jurists, see Heimbach, Prolegomena Basilicorum, bk. 2,
ch. 5, §3andbk. 2, ch. 3, III, § 2 (in his 5ai. vol. vi, pp. 197-203, 146-9).
"° Known as TA naXaid or 'n.apa.ypa(j>al tCiv IlaXaifflj'.
«•"= See supra § 169.
'°' ISiai napaypaipal.
"" Zachariae, Jus Graeco-Romanum, vols. 2 and 7; Krueger, Quellen,
p. 370.
869 See supra § 175.
"" Hunter, Roman laW, p. 96. This Emperor reigned 912-58.
*■" ''EKXoyii paffiXiKuv. To distinguish it from the later Synopsis minor
(see infra § 181), it is frequently referred to as Syn. Bas. "Major."
*"Zachariae, Jus Graeco-Romanum, vol. 6; Krueger, Id.
*" Zachariae, Jus Graeco-Romanum, vol. 4. See also supra § 175.
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168 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
and eminence. Among them were Garidas,"* John Nomophy-
lax,'"Patzus, Constantine of Nicaea,^'* Gregory,^'' Doxapater,
and Calocyrus Sextus, who in his scholia contrasts Justinian's
Digest with the BasiHca — thus showing at the time he wrote
the use of the Justinian law books had not yet ceased. ^^^
In the 11th century also there was a great revival of legal
study during the reign of Constantine IX (Monomachus),^''
who founded anew the law school at Constantinople. And
during the same Emperor's reign were published two im-
portant works : Ecloga ad Prochiron mutata **" and the IXeipa
{Experientia Romani) of seventy-five titles containing the
decisions of cases taken from the writings of Eustathius
Romanus.'"
In the latter half of the same century also appeared the
excellent manual of Michael Attaliata, — the Tloirjfm vofuKov
(Opusculum de jure).^^^ A few years earlier **' had appeared
the Synopsis legum of Psellus, which was a brief commentary
on Roman law written in verse, dedicated to the Emperor
Michael VII (Ducas). 88*
1 180 I2th century Roman law. Two Byzantine jurists of promin-
ence lived in the 12th century: Hagiotheodorita, one of the
important later scholiasts ; and Theodore Balsamon, who wrote
a commentary on the canon law of the Greek Orthodox Church
in which he compared the Justinianean law with the Basilica,
"*A law professor, perhaps at Coristantinople, who lived during the
reign of Constantine X (Ducas), A.D. 1059-67.
*" Sometimes called by his first or his second name only (the second
is a title of office). Nomophylax lived in the reign of Alexius I (Comnenus),
1081-1118.
8" Constantinus Nicaenus, who lived prior to the reign of Alexius I.
'" Gregorius.
"* Heimbach, Bas. vol. vi, p. 199 (in his Prolegomena, 2, 5, 3).
«'» Reigned 1042-55.
**" It was an amalgamation of the 8th century Ecloga of Leo the Isaurian,
the 9th century Prochiron of Basil, and the Epitome Legum. See supra
§|174r-5, 178.
*" As to both works see Zachariae, Jus Graeco-Romanum, vols. 2 and 4.
''2 It was published in the year 1072: Hunter, Roman law*, p. 96.
883 In the year 1070: Hunter, Id.
8" Reigned 1067-78.
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LATER EMPIRE: POST-JUSTINIAN LAW 169
insisting that the latter controls the former wherever there is a
conflict. ^^^
13th century Roman law. The Byzantine jurist Michael § 181
Chumnus, one of the later scholiasts of the Basilica, lived
during the 13th century. Also two very important maniials
of Graeco-Roman law appeared during this century: the
Synopsis minor, ^^^ which is an alphabetical abridgment of the
Synopsis Basilicorum major^*^ and Attaliata's not7;/«i**'; and,
at the end of the 13th century, the Prochiron auctum,^^' a
greatly enlarged revision of the Prochiron.^'"
14th century Roman law. Two works of great importance § 182
appeared in the 14th century, both of which attained a high
reputation and became well-known manuals of the law of the
last century of the Roman Empire of the East. In the year
1335 the monk Matthew Blastares published his celebrated
Manual of Civil and Canon Law, arranged in alphabetical
order.
In the year 1345, a little over a century prior to the capture
of Constantinople by the Turks, Constantine Harmenopulos,
a judge at Thessalonica, published his Hexabiblos. The
Greek title is Ilpojj^eipov tu>v vojutov to Xeyo/nevov 77 £^a/8i/8Xos . . .
Koiva-TavTivav tov 'ApfievoTrovXav ("Manuale legum dictum Hexa-
biblos," *'i etc.). It is sometimes referred to as the Promp-
tuarium. It is an extremely clear legal manual or compen-
dium arranged in six parts ^^^ and eighty -seven titles with a
preface. For his material Harmenopulos drew from the
'^^ CoXqvhoxai, Roman law, §196. Other Greek Canonists of importance
are: John Zonaras (12th century) ; Psellus; Photius (9th century ■ — tutor
of Leo VI, supra § 176); John of Antioch (6th century — Justinian's age).
*'* The Greek title is 'U.i.Kphv Kark (TToixctov, — Hunter, Roman law*,
p. 96. It is often called simply " MikpAk."
8" See supra § 178.
888 See supra § 179.
*'' Zachariae, Jus Graeco-Romanum, vol. 6. It appeared about 1300:
Krueger, Quellen, p. 370.
s"" See supra §175.
"'The latest edition is that of Heimbach, Id., Leipzig, 1851, who gives
the Greek text with a Latin translation.
"^ These are: book i, De legibus et ordine judiciario nee non de restitu-
tione ac libertatibus; book ii, De variis causis novisque operibus; book in.
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170 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
Prochiron,^^^ Synopsis Basilicorum,^^'^ Synopsis minor,^^'
neipa,*^" and theEcloga of Leo the Isaurian.^" The Hexabiblos
became very famous throughout the East, and survived the
Turkish conquest of the Empire; and is to-day law for the
Greeks living in the Turkish dominions.^'* Notice of it also
reached Western Europe.
§ 183 Fall in 1453 of the Eastern Roman Empire; dispersion of
Greek culture and the knowledge of antiquity into Western
Europe; fate of Roman law in Eastern Europe. The Eastern
Empire had so long withstood the attacks of its enemies that
it seemed invulnerable. Saracens, Tartars, Bulgarians, and
other hostile barbarian nations had tried hard but never were
able to conquer the proud Roman Empire with its capital
on the Bosporus, — the accomplishment of this feat of arms
was reserved for Christian nations of Western Europe. Early
in the 13th century the Venetians with the help of the renegade
Fourth Crusaders, wantonly invaded and overturned the
Eastern Roman Empire. For the first time in her history
Constantinople was captured and sacked. She was a splendid
prize, — the storehouse of the treasures of the world for 900
years since the time of her founder Constantine the Great.
The Crusaders, who had tampered with their oaths and shed
Christian blood, indulged in a carnival of slaughter, rape, and
plunder,*'' "behaving far worse than the Saracens," says a
De alienatione, mutuo, et societate ; book iv, Sponsalibus et nuptiis ; 600^ v,
' De testamentis ac tutoribus ; book vi, De damno et poenis.
*'^ See supra § 175.
8M See supra § 178.
8'6 See supra § 181.
*'* See supra § 179.
s" See supra § 174.
8'* It was also clothed in 183.5 with statutory authority as the civil code
for the modern kingdom of Greece (12 Encycl. Britan.^^ p. 432). See also
infra chap, iii, "Greece," § 194.
*'' The western clergy in the army plundered the Byzantine churches to
secure relics to take home with them, — the whole of France, for instance,
awaited anxiously the distribution in the French provinces of supernatural
religious relics! Such was the gross darkness of medieval western Europe.
See Luchaire (Krehbiel transl.). Social France at the time of Philip Augustus,
London, 1912.
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LATER EMPIRE: POST-JUSTINIAN LAW 171
Greek eyewitness.""" Not content with despoiling the Greeks of (§183)
a huge sum of money in hard coin — no less than $4,000,000"" —
the despicable Crusaders put into the melting pot for the sake
of more copper money many priceless statues of antiquity,
including the Heracles of Lysippus and the brass figures
erected by Augustus after Actium. A Latin kingdom was
established, and for over a half century Latin sovereigns
reigned in Constantinople. '"^
The Latin Conquest was a blow to the Eastern Roman
Empire from which it never recovered; the false Crusaders
paved the way for the Turkish destruction of the Empire.
Although the Greek Empire did partially revive and the
Emperor Michael Paleologus'"^ in 1261 retook Constantinople,
driving the last Latin Emperor'"* into a miserable exile, the
Eastern Roman Empire never again regained its strength.
Not only had it suffered a great loss of European territory never
to be recovered, but the centuries-old commercial supremacy
of Constantinople had passed to Italian cities, — and the
latter employed the greatest vigilance to prevent the Byzantine
Imperial navy from increasing in strength and restoring the
free navigation of the Levant to Greek merchant vessels.
Finally, the entire administrative machinery of the Empire —
long the pride of the East Romans — had now become hope-
lessly disarranged. Constantinople was no longer mistress
of the sea or controller of the trade of Christendom. By the
middle of the 14th century the evil day of Turkish domination
was fast approaching, and the fall of the venerable Roman
Empire was merely a question of time and opportunity.
During the last half century of the Empire the Turks were
constantly menacing the very capital of the Eastern Empire.
Finally it was seen that the end was near. Constantine XIII,"'^
'°° Oman, Byzantine Empire, ch. 22.
9»i Oman, Id.
™2The so-called Latin Empire was from A.D. 1204^61.
903 Michael VIII, who founded the last Imperial dynasty of the Byzan-
tine Empire.
»»" Baldwin II.
'"^ The numeral is given also as "XI" or "XIII": see the histories of
Oman and Bury.
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172 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
(§183) the last Emperor of the Greeks, implored the Christian
sovereigns of Western Europe for aid, but it came not. On
the contrary over 30,000 renegade Christians — to the ever-
lasting shame of Western Europe ■ — were serving in the army
of the Turks besieging Constantinople. On the 28th of May
1453 communion was held for the last time in Justinian's
marvelous church of Sancta Sophia built by that lawgiving
Emperor 800 years before ; and then Constantine and his nobles
went forth to die sword in hand. The fall of the venerable
Empire gave Europe a dreadful shock of horror; Europe
repented too late of her lack of interest; the Empire had
weathered so many storms in the past, that she seemed invin-
cible. Mohammed, the Turkish sovereign, took, it is estimated
50,000 captives. Over 40,000 Greeks perished in battle and
massacre. It is no wonder the modem Greeks hate the
Turks, and pray for a restoration of the Empire of their
fathers. Upon the Roman Emperors of the West — the
German princes who were the successors to Charlemagne's
restored Western Empire — fell the duty of stopping the west-
ward advance of the Turkish conquerors: that the Western
Roman Emperors did stop the Turks, and so saved Europe, is
well-known to history. The siege of Vienna in 1529 marks the
recession of the Turks.
For more than a century prior to the fall of Constantinople
many Greeks perceived the approaching doom of the Roman
Empire in the East, and had fled westward, especially to Italy,
These expatriated Greeks carried to Western Europe numer-
ous relics of their art, literature, and law. Naples, Venice,
Rome, Florence, and other cities received copies of various
works on Graeco- Roman law : from these cities by purchase
or gift some of these copies later found their way into France,
Germany, and England. For instance, the Medicean library at
Florence and the library of Francis I at Fontainebleau were
filled by a Greek, John Lascaris, with valuable MSS. from his
native land.'"^ The Renaissance was already at hand, — that
great movement whereby Greek culture became engrafted
on the rising growth of late medieval life and education into
'"^ Ortolan (Prichard and Nasmith transl.), History of Roman law, § 595.
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LATER EMPIRE: SOURCES OF LAW 173
modern times. The mission of the Eastern Roman Empire
to store up for the world the remains of Roman civilization and
Greek culture was ended. This treasure, carefully guarded
against the barbarians throughout the Dark Ages, was dis-
persed through an awakened Europe ready to receive it.
Although the death of Constaritine Paleologus under the
walls of Constantinople, battling in vain against the Turks,
terminated the Roman State with its continuous existence
of nearly 2200 years — -a national existence as yet unsur-
passed by any other State, ancient or modern — the knowl-
edge of Roman law did not die in the territories formerly
belonging to the Empire : for the conquering Turks permitted
the vanquished Greeks to live under the guidance of the law
of their fathers, ■ — the Basilica and later works. And this
Eastern European channel of Roman law influence has
fertilized the jurisprudence of all the modern States of Eastern
Europe.
(6) Sources of Law During the Later Empire
Imperial legislation the sole source of the law of the Later § 184
Empire. Roman law late in the 3d century A.D. had already
become a world law, the principles of which were now expressed
and scientifically arranged in a jurisprudence: such was the
result of the combined forces of the praetorian Edict, '"^ the
influence of the j uri'sconsults, "•* and Greek philosophy. ^"^ But
at the commencement of Diocletian's reign in A.D. 284 the
legislative power of the Senate of the jurisconsults had long
since ceased and the jus respondendi of the jurisconsults was
obsolete"": the statutes or constitutiones of the Emperors
had become the sole instrument for bettering Roman law.
Imperial statutes wiped out all lingering traces of the ancient
distinction between jus civile and jus honorarium. Imperial
statutes put the finishing touches on the development of
'»' See supra §§60,61.
»»8 See supra §§ 68 et seq.
»»' See supra §§62-7.
9i»See supra §§68, 113, and 114.
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174 THE ROMAN EMPIRE, 27 B.C.-A.D. 1453
(§184) Roman law, polishing and filing the jus civile by the jus
gentium wherever necessary on points of detail. By the
legislation of Justinian, Roman law was 'crystallized in a
codification. And by the legislation of post-Justinian Em-
perors, particularly Leo the Isaurian and Basil and his sons,'"
Roman law was given renewed vigor and fitted to outlive the
Empire itself in Eastern Europe.''^
'" See supra §§ 172 et seq.
9" See supra § 182.
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THE MODERN CIVIL LAW 175
CHAPTER III
ROMAN LAW SINCE JUSTINIAN TO THE PRESENT
TIME,— THE MODERN REALM OF
ROMAN LAW
The modern Civil Law. Roman law did not perish witli §185
the destruction of the Roman Empire : on the contrary it has
been exerting a profound influence on the formation and
development of modern private law in Europe, America, Asia,
and Africa. This is why the jurisprudence of modern Euro-
pean and allied systems of law is often collectively described
as the modern Roman or Civil Law.^ The mission of Roman
law since Justinian has been world-wide; it is responsible
for eff^orts to mold and make uniform the private law of every
modern State, and to embody it in a codification.^ It will
then be realized that verily Rome has conquered the world
by her law, and that the vast Empire of the Caesars is quite
insignificant when compared with the modern domains of
Roman law which comprise the whole civilized world of several
continents.^
The history of Roman law since Justinian is brought down
to modern times through two distinct channels: via Eastern
Europe and via Western Europe. We shall follow the course
of these two channels, exploring each in the order given with
the view of ascertaining how potent has been the influence
of Roman law in the development of the principal modern
systems of private law. The development of the law of
modern Eastern European and other countries affected by
the Byzantine Roman Empire has been caused by the influence
' To confine the expression strictly to Continental European and allied
systems of law, while apt, is too narrow; Great Britain, the English law
countries of the British Empire, and the United States are also provinces
of the modern realm of Roman law, even if their law is not Romanized so
completely.
2 See supra §§ 12-15.
^ See supra § 11.
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176 THE MODERN REALM OF ROMAN LAW
j 185) of post- Justinian Roman law.^ This Eastern European chan-
nel of the influence of Roman law since Justinian has passed
into Abyssinia, the Mohammedan countries, Russia, Greece,
and the Balkan States.
The development of the law of modern Western European
countries and of countries throughout the world settled,
acquired, or affected by these nations has been caused by the
influence of the Justinian Roman law.^ While the ante-
Justinian partial Roman codifications ^ exerted some influence
on Western Europe, their effect is insignificant and almost
negligible as compared with the all-absorbing, far-reaching
potency of Justinian's Corpus Juris following his 6th century
reconquest of ItalyJ This Western European channel of the
influence of Roman law since Justinian has passed into all
the States of Western Europe and the twin Americas, into
those parts of Asia and Africa colonized or governed by
Europeans, and finally into other countries not of a European
origin which have imitated or been aflected by the jurispru-
dence of Europe — such as Japan.*
One of the most important juridical phenomena of the 19th
century was the meeting and merger of these two great streams
of Roman law influence — the Eastern European and the
Western European. When these great currents of the world
influence of Roman law finally became united, the Western
European was the larger and more powerful, so much so that
it has submerged considerably the Eastern European even
in the States of modern Eastern Europe and also in Moham-
medan countries. The laws of Russia, the Balkan States,
Turkey, and Egypt, with their ancient parentage from the
law of the Eastern Roman Empire,' are now codified through
the influence of the modern Western Codes (especially the
* See especially supra §§ 174 et seq.
* See supra §§ 135 et seq.
' See supra § § 124 et seq.
' See supra §§ 124 et seq.
' See supra § 143.
' And probably China, in the near future. See Lo, A study of Chinese
jurisprudence, 6 111. Law Rev. pp. 456, 518.
' See Amos, Roman law, p. vii.
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ABYSSINIA 177
Napoleonic) — which have been inspired by Justinian's ,
grand codification. i"
1. ABYSSINIA
Justinian Roman law the basis of modern Abyssinian law. § 186
The present official name of Abyssinia is its ancient name, —
Ethiopia. Modern Abyssinia is three-fourths the size of
France.^ In early times there was an intimate connection
between Egypt and Ethiopia, both of which were now and then
under the same ruler. Moreover during this period there
was considerable commercial intercourse between Judaea and
Ethiopia. The present Kings of Abyssinia claim descent
from the marriage of Solomon and the Queen of Sheba. During
the Greek occupation of Egypt under the Ptolemies, Greek
colonies were established in Ethiopia. In the 4th century
A.D. Abyssinia adopted Christianity, — the first bishop of
Ethiopia, Frumentius, being consecrated about 330 by the
famous Athanasius, patriarch of Alexandria. Since then,
except in the 16th and 17th centuries when the Jesuits tem-
porarily introduced papal authority, the Abyssinian Church
has maintained allegiance to the Coptic or Egyptian Church, —
the Abyssinian metropolitan (who is a foreigner) being always
appointed from Egypt by the Alexandrian patriarch.^
The most flourishing period in the history of Ethiopia
was the 6th century, when Yemen, the richest part of Arabia,
was subject to Abyssinia. This Arabian conquest was made
at the request of the famous Roman Emperor Justinian to
avenge an Arabian persecution of Christians. The Ethio-
pians at this time were in constant communication with the
Roman Empire of the East, from which they derived their
law, — the present legal system of Abyssinia being based on
the Roman law of Justinian. Following the rise of Moham-
medanism' the Ethiopians were expelled from Arabia; and
"See infra, especially "France" and "Germany," — the modern codes
of which former country have exerted a tremendous influence over the rest
of the world.
1 Abyssinia's area is 150,000 sq. miles.
' Butler, Abyssinian church (in 1 Encycl. Britan.^' p. 95).
' See supra § 170.
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178 THE MODERN REALM OF ROMAN LAW
with the progress of the Moslem conquests Ethiopia finally
became entirely cut off from the rest of the civilized world for
900 years until late in the 15th century, when the Portuguese
reached Abyssinia in their search for the far-eastern Christian
kingdom of Prester John; thereafter Abyssinia has been
known to Western Europe. But, as a result of this separation
of centuries from the outside civilized world and the long
continued struggle against Moslem neighboring nations, the
private law of Abyssinia has deteriorated from its original
Roman purity.
2. MOHAMMEDAN COUNTRIES, ESPECIALLY
THOSE ORIGINALLY PART OF THE
EASTERN ROMAN EMPIRE
§ 187 Islamic private law tinctured with Byzantine Roman law.
The rise of Mohammedanism in the 7th century was followed
by the rapid Moslem conquests of infidel countries.^ Scarcely
a century had rolled by when Roman Syria, the restored
Persian monarchy, and other parts of Asia,^ Roman Africa,
Egypt, and Visigothic Spain had fallen under the dominion
of these Oriental conquerors vowing allegiance to Allah and
His prophet Mohammed. But France and Northwestern
Europe were saved for Occidental civilization by^ Charles
Martel at Tours in the year 732. Nevertheless in the 15th
century the Eastern Roman Empire, that great bulwark of
medieval Western Europe against the Moslem power, was
finally destroyed by the Ottoman Turks, ^ who themselves
had been originally converted to Mohammedanism by the
sword of the Saracens. A new law suddenly appeared in
the wake of the Arab conquests — the Koran and the learned
commentaries on it: was this Islamic system entirely new
and original, or was it borrowed from some existing system
of law? The answer is that the best part of Islamic law is
really but a republication of Justinian Roman law, adapted
for Moslems and clothed in an Arabic dress.
1 See supra § 170. The first collision between the Eastern Roman
Empire and the Moslems occurred in A.D. 629.
2 The Mohammedan invasion reached India in the 11th century.
' See supra § 183.
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MOHAMMEDAN COUNTRIES 179
No system of law is the product of a single mind or age. (§187)
Mohammedan legislators might, like Justinian, Basil, or
Napoleon, compile or codify existing law, but could do little
toward creating outright an original system of law. At the
time of the Arab conquests and in the following century,
Justinian Roman law in its Greek dress was to be found
throughout the Eastern Empire, and was actively studied.*
The Koran, the "divine" revelation to Mohammed, took note
of but very few juridical needs; if at Bagdad, in the cities of
Spain, and at Cairo philosophy, medicine, mathematics, and
logic were studied from Greek sources, if Aristotle gave the
Saracens their logic, Justinian, Leo, Basil, and their Greek
commentators were available to give them law. Again, at
Damascus the entire Roman judicial system lasted a century
after the Arab conquest; the Roman law schools of Beirut
and Alexandria^ continued ,for over a century after the
Mohammedan conquest of Syria and Egypt. ^ The Moham-
medan jurists Auzay and Shafei,' the latter one of the
four founders of Islamic legislation, were admittedly well
acquainted with Graeco-Roman law as enforced in Syria. ^
The founders of the Islamic legal system who lived during
the 7th to 10th centuries — the era of activity of Byzantine
Roman law — borrowed as much as was not inconsistent
with Mohammedanism from the law of Justinian in its Greek
dress. But, not wishing to appear as borrowers, the framers
of Islamic law always claimed that their conclusions were in
harmony with the spirit of Islam, even if, for instance, the
Moslem government in Syria, the first halting place of the
Arabs, adopted the principles and often the very ordinances
of the existing Roman law of land, obligations, and contracts
because of the meagemess of the Koran. ' Says Professor Gold-
ziher of the University of Vienna: "The influence of Roman
" See supra §§ 169, 174 et seq.
* As to both, see supra § 155.
^ See Ion, Roman law and Mohammedan jurisprudence, 6 Mich. Law
Review, pp. 44, 187, 371.
'Also spelled "Shafii."
« Ion, Id.
' Goldziher, Principles of law in Islam (in 8 Historian's History of the
World, ch. xii, p. 297, New York, 1907).
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180 THE MODERN REALM OF ROMAN LAW
law on the sources of a legal system in Islam is attested by
the very name given to jurisprudence in Islam from the
beginning. It is called al Fikh, reasonableness; and those
who pursue the study of it are designated Fukaha (singular
Fakih). These terms, which, as we cannot fail to see, are
Arabic translations of the Roman (juris) prudentia and
prudentes, would be a clear indication of one of the chief
sources of Islamic jurisprudence, even if we had no positive
data to prove that this influence extended both to questions
of the principle of legal deduction and to particular legal
provisions." 1" Finally the influence of Roman legal methods
on the system of legal deduction in Islam is even more impor-
tant than the direct adoption of particular points of law.
"The dualism of written law (Arabic, nazz) and unwritten
law is a mere reflection of the dualism of leges scriptae (chak-
hamin) and leges non scriptae." ^^ Curiously enough, and
yet it is really not at all strange, "the Islamite prudentes
assumed the prerogative of an authoritative subjective
opinio; for r'aj, as it is called in Arabic, is a literal translation
of the Latin term."'^
§ 188 Instances of the similarity of Mohammedan and Roman
law. The principles of the several characteristic systems or
"rites" of Mohammedan law — ^ allowing for sHght variations
in detail — ^ recall "the common principles, and often the
specific rules, of Roman law at almost every juncture.""
The similarity of Mohammedan and Roman law will be seen
from the following instances: Mohammedan law, like the
Roman, distinguishes between movable and immovable
property, and contains the Roman legal institutions of usu-
fruct and servitudes 1*; in Mohammedan law, as in the Roman,
wills may be written or verbal, and the testator cannot dis-
pose of all his property and leave his heirs nothing'^; the
!» Id. p. 296.
11 Goldziher, Id. p. 297.
^ Goldziher, Id.
1' Amos, Roman law, p. 124.
" Amos, Id. As to the Roman law of things, usufruct and servitudes,
see infra vol. ii, §§563, 582-591.
1* Amos, Id. p. 41.3. These principles are embodied in the Roman pars
legitima and inofficiosum testamentum, see infra vol. ii, "Wills," §§ 697, 701.
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MOHAMMEDAN COUNTRIES 181
Mohammedan law has the Roman order of succession ab
intestato- — -namely, first the descendants, second the ascend-
ants, third collaterals '^ ; in the Mohammedan law of contracts
is found the familiar Roman rule that incapacity may occur
becauseof mental unsoundness, prodigality, and bankruptcy'^;
Mohammedan law, like the Roman, has the familiar contracts
of- sale, letting and hiring, partnership, loan, deposit, agency,
suretyship, compromise or transaction, assignment or cession,
pledge and mortgage'^; in the Mohammedan law are found
the familiar Roman prescription periods of three, ten, twenty,
and thirty years together with the provision that public or
government property is imprescriptible"; and Mohammedan
law, like the Roman, has a law of guardianship for minors.^"
Very illuminating are the words of Professor Amos, that most
brilliant English Romanist: "If . . . the Mohammedan
religion is nothing but Hebraism adapted to an Arabian soil,
it seems also true that Mohammedan law is nothing but the
Roman law of the Eastern Empire adapted to the political
conditions of the Arab dominions." ^i This explains the build-
ing of the great structure of Mohammedan law which to-day
governs millions of people scattered in Turkey, Cyprus,
Egypt, India, Ceylon, the Philippines, Algeria, Tripoli, and
other parts of Africa.^''
Turkey. The Turks have not scrupled to borrow law from § 189
foreign and Christian sources : beginning in the middle of the
" Furthermore, the Mohammedan law divided the inheritance into
portions similar to the Roman divisible as: y^, J^, }4, %, }^, K- see Amos,
Id. , As to the subject of "Intestate succession," see infra vol. ii, §§670-
77.
" Amos, Id.
'^Id. See infra vol. ii, "Contracts," §§765-8, 762, 768-72, 780-803,
805.
^' Amos, Roman law, p. 414. See as to "Prescription," infra vol. ii,
§§650,653,654.
''"Amos, Id. p. 412. See the subject of "Guardianship" infra vol. ii,
§§621-7.
^' Roman law, p. 415.
^ Cyprus, Egypt, and India are ruled by England, Algeria by France,
Tripoli by Italy, the Philippines by the United States. See also infra
vol. iii, § 968.
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182 THE MODERN REALM OF ROMAN LAW
(§189) 19th century the Sultans began to promulgate codes of Otto-
man law, which, although containing much Mohammedan law
as tinctured by the Roman law of the Eastern Empire,^' are
largely based upon the 19th century Roman-French Codes
Napoleon. ^^ In 1850 an Ottoman Code of Commerce was
promulgated, and in 1869 a Civil Code (Med^elle) . And Turkey
now has also other codes ^*: Commercial Procedure, ^^ Maritime
Commerce, ^^ Penal Code,^* Lands, ^^ Forests,^" Criminal Proce-.
dure,^* Civil Procedure, ^^ and Mines. ^' These Turkish codes
govern all Ottoman subjects, Mohammedan or Christian or of
any other religious faith, as to civil, commercial, or criminal
matters covered by the codes.
Although the present tendency of Ottoman law is to assimi-
late non-Mohammedans in matters of personal status as has
been already done to a large degree by the above-mentioned
Ottoman codes, yet matters of personal law and status —
marriage, divorce, testate and intestate succession, guardian-
ship — '■ affecting non-Mohammedan Ottoman subjects are
still assigned, as has been the practice for centuries, to the
jurisdiction of their respective religious chiefs.'* Of these
the orthodox Greeks are the most favored. In the ecclesiastical
courts of the Greek patriarch of Constantinople, whose civil
jurisdiction is the widest of all non-Mohammedan religious
heads, is still applied the post-Justinian law of the Eastern
Empire as received into the Canon Law of the Greek Church. '=
The Greeks living to-day under Turkish rule'^ are still governed
2= See supra § 188.
2^ See infra "France,'' §§ 254-8.
^ All the Ottoman codes have been translated into French by Young,
Corps de droit ottoman, vol. vi, Oxford, 1906.
26 1861. » 1870.
- " 1863. 'I 1879.
28 Id. 32 1380.
29 1868. S3 1901 and 1906.
3* Young, Corps de droit ottoman, vol. ii, pp. 2, 19.
'* Young, Corps de droit ottoman, vol. ii, p. 14.
'6 See supra § 183. Greeks living in the Turkish Empire commonly call
themselves "Romans" {'Vutmloi) and their language "Romaic" {'VwiuukA),
as did the inhabitants of what is now modern Greece prior to the war of
Independence of 1821-33.
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MOHAMMEDAN COUNTRIES 183
by the Basilica,'^ Hexabiblos,'^ and other Byzantine man-
uals of Roman law.^' For over 2600 years Roman rules of
civil conduct, some of which tradition placed in the legen-
dary period of the Kings, have served to guide mankind in
their dealings with each other. Such a picture of direct con-
tinuous development and permanency of law has never yet
been seen, and perhaps never will be again, in the history of
the world.
All commercial and criminal matters between Mohammedan
and non-Mohammedan Ottomans are brought before the
so-called Mixed Tribunals {tribunaux mixtes).^'^ The same
tribunals now have jurisdiction of cases between Ottomans
and foreigners,** applying the Ottoman codes. By virtue
of the so-called Capitulations,*^ which are treaties exempt-
ing foreigners from the jurisdiction of local Ottoman
courts, cases between foreigners resident in Turkey are liti-
gated in their respective consular courts, — if the foreigners
are of different nationalities, the court of the defendant takes
jurisdiction.
Cyprus. The island of Cyprus — which was taken from the § 190
Roman Empire of the -East in 1192 by Richard I (Coeur de
Lion) of England and was subsequently possessed succes-
sively by the Knights Templar, Guy de Lusignan, his dynasty
and the Genoese, and finally the Republic of Venice — was
conquered by the Turks in the year 1570. Three centuries
later in 1878 the Turkish dominion came to an end. Since
then Cyprus, although nominally a Turkish possession,*'
has been occupied and governed by Great Britain. Laws for
" See supra § 176.
2' See supra § 182.
™ Hunter, Roman law*, p. 97.
■^ Young, Id. vol. ii, p. 6.
"1 Young, Id. vol. i, pp. 239-50.
*2 On Oct. 1, 1914, Turkey abrogated the Capitulations, in spite of
opposition by Great Britain, France, Russia, Italy, the United States, and
other powers. At the present time (June 1, 1916) the permanency of this
abrogation depends upon the outcome of the great war in Europe.
*' On Nov. 5, 1914, Great Britain formally annexed Cyprus. The per-
manency of this annexation depends at the present time (June 1, 1916)
on the outcome of the great war in Europe.
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184 THE MODERN REALM OF ROMAN LAW
the island are made by a legislative council,^ of which the
British High Commissioner is a member.
Two systems of law are applicable in Cyprus: the Ottoman
and the English, both as in force in the year 1878,^^ together
with all subsequent legislative modifications of either law.
The Ottoman law is applied in all cases where the defendant
is an Ottoman subject; in all other cases the English law is
employed. The Ottoman law is composed principally of the
Commercial, Maritime, and Civil Codes,*' which translate
or are based on the 19th century Roman-French Codes
Napoleon.*'
§ 191 Egypt. The land of the Pharaohs, although now nominally
a Turkish tributary State ruled by a hereditary King known as
Khedive, is, and has been since 1882, virtually a British posses-
sion under the control of the British Consul-General, who is
also Minister Plenipotentiary.** The striking feature of the
law of modern Egypt is the union of Byzantine Roman law
with Western Romar^ law, as republished in the 19th century
Codes Napoleon.
In all matters of personal law, such as marriage, inheritance,
and guardianship, Moslem Egyptians are subject to the
Mekemehs or courts of the cadis, which administer Moham-
medan law — a legal system much in debt for its inspiration
to post-Justinian Roman law*'; but non-Moslem^" Egyptians
are subject to the jurisdiction of their respective religious
** It consists of eighteen members, six appointive and twelve elective,
nine of the latter being elected by non-Mohammedan voters: Statutes R.
and O. 1907, p. 192, §§ 10, 11, 15.
** On Xuly 13 for Ottoman law, on Dec. 21 for English law, — see
Huberich, Cyprus (in 16 Commercial laws of the world, British edition ed.
by Scrutton, p. 643, London, 1912).
« See supra § 189 and infra vol. iii, § 958. Articles 1613-1851 of the
Ottoman Civil Code (MedjelU) on procedure, evidence, and prescription
are not in force in Cyprus; see Huberich, Id.
«See infra "France," §§254,257,258.
^ On Dec. 18, 1914, Great Britain made Egypt a British protectorate.
The permanency of this destruction of nominal Turkish sovereignty depends
at the present time (June 1, 1916) on the outcome of the great war in
Europe.
«See supra §§187, 188.
'" For instance the Copts, Armenians, and Jews.
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MOHAMMEDAN COUNTRIES 185
chiefs, — the Christian ecclesiastical courts administering (§191)
post- Justinian Roman law^^ as received into the Canon Law
of the various Eastern churches.
Since the year 1884 jurisdiction over all criminal matters,
and all civil matters other than those of personal status, affect-
ing any Egyptian, Moslem ^^ or non-Moslem, has been exer-
cised by native Egyptian courts {tribunaux indigenes) having
both native and foreign judges which administer codes of
law modeled on the Roman-French Codes Napoleon.^* These
Egyptian courts are organized in the European style, — a.
court of appeal for all Egypt with subordinate civil and crim-
inal tribunals.** All the proceedings are in Arabic and are
modeled on the French system.*^
By virtue of the Capitulations with Turkey,*^ which apply
also to Egypt as part of the Ottoman Empire, foreigners are
not subject to the native Egyptian courts, but to their respec-
tive consular extraterritorial courts,^? each of which has juris-
diction of crimes committed by, and of civil cases arising
between, its own nationals. But since 1876 civil cases between
foreigners of different nationalities and between natives and
foreigners must be adjudicated before the Egyptian Interna-
tional or M ixed Tribunals {tribunaux mixtes) , which apply codes
of law *^ largely adapted from the Roman-French Codes Napo-
51 See supra § § 172 at seq.
'2 Turks in Egypt, being Ottoman subjects, are subject to native Egyp-
tian courts. Other Moslems in Egypt, such as Persians, are regarded as
foreigners, and are subject to the Mixed Tribunals.
" See infra "France," §§254, 257, 258.
" This was also the system of the Imperial Roman judicial organiza-
tion, — see infra vol. ii, "Roman judicial system," §§894-904. For details
as to all Egyptian courts see Goudy, Administration of justice in Egypt,
23 Law Quart. Rev. pp. 416, 417.
5' Goudy, id.
^ See supra § 189. For changes due to the great war in Europe at
the present time (June 1, 1916), see supra the first footnote of this § 191
and also the last footnote of § 189.
" Fifteen powers possess this right.
^ A series of Egyptian codes was framed, — Civil, Commercial, Mari-
time, Penal. A member of the Egyptian international commission was
an American, — Elbert Farna'm, judge of the Mixed Tribunals 1880-81,
who died Dec. 29, 1911.
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186 THE MODERN REALM OF ROMAN LAW
leon, although the Egyptian codes contain some Mohammedan
law. The Mixed Tribunals are organized into appellate and
subordinate courts/' The foreign judges are always in a
majority. The ofiScial language usually employed is French,
although Arabic, Italian, and English ^"are alternative "judicial
languages." The proceedings are modeled on the French sys-
tem. "For the student of Roman law, Egypt offers numerous
points of interest. The Mixed Courts will recall the court of
the peregrin praetor at Rome. The peregrin praetor had to
deal, just as the Mixed Court judges have to deal, solely with
actions in which either both parties or one of them was a non-
citizen (peregrinus). And the law administered by the ancient
and modem tribunals alike is jus gentium ■ — a law not for the
citizen as such but adapted for all peoples. Only in Egypt
we have a Code in lieu of the praetor's Edicts." *i '
§ 192 Mohammedan India. Although much of the law of British
India is codified, including criminal law, contracts, and evi-
dence,*^ yet there is still at the present time an important
field of law untouched by legislative innovation wherein the
native Hindu or Mohammedan law governs. These two sys-
tems of law cover practically the same field, — family matters,
such as marriage, divorce, inheritance and succession, and
guardianship.*^ The Mohammedan law, like the Hindu,
is not territorial but personal, • — ■ that is, it applies to anyone
in India professing to be a Mohammedan.*^ Like the Moham-
medan law of those European and African countries which
originally formed parts of the Byzantine Empire, Moham-
medan law in India, brought there by Moslem invaders
from the West, is also related to Roman law of the Eastern
Empire.*^
^' For details, see Goudy, Id. p. 412.
'" English was authorized in 1905.
=1 Goudy, Id. p. 418.
'2 See infra "England, the English law portions of the British Empire,"
etc., § 404.
^' Baptista, India (in 16 Commercial laws of the world, pp. 1, 7, London,
1912) ; Marlcby, Hindu and Mohammedan law, p. 2.
6« Marlcby, Id.
"5 See supra § 188.
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MALTA 187
3. MALTA
Maltese law is of Roman origin and codified. Situated ^
about sixty miles south of the nearest point of Silicy are Malta
and the adjacent islands.* In the year 870 the Maltese
Islands were conquered from the Eastern Empire by the
Arabs from Sicily, and until 1120 they remained under Moslem
rule.^ Falling into the power successively of the Normans,
the Imperial house of the Hohenstaufens, the French, and
the Spaniards, the Maltese Islands were ceded by the Emperor
Charles V to the Knights of St. John Hospitaller, which
military order held them until 1798, when the last Grand Mas-
ter had to surrender them to Napoleon Bonaparte. The
French rule lasted only a short while. Since the year 1814,
the Maltese Islands have been a British crown colony, governed
by a governor and council' at Valetta, the capital.
The basis of Maltese law is the Roman law of Justinian.^
Latin was the judicial language in Malta as late as 1784, if
not later; but in 1815 it was entirely supplanted in the courts
by Italian.* The partial use of English was authorized very
late in the 19th century. The 18th century Code of Rohan,''
which was in force at the time of the cession of the islands
to Great Britain by the Treaty of Paris, has never been
entirely abrogated. But since 1854 ' codes of law copied
>The Maltese Islands have an area of about 112 square miles, Malta
90, Gozo 20, and Comino 1.
^ Decided traces of this long Arab domination are seen in the present
Maltese language, which is largely an Arabic dialect.
'The council has two sections: the executive council of 11 members,
and the legislative council of 19 members.
* Huberich, Malta (in 15 Commercial laws of Ihe world, p. 188, London,
1912).
^ The use of Italian began early in the 17th century, if not a little before :
Huberich, Id.
' So-named from the next to the last Grand Master Eramanuele Rohan
(1775-97), who made a compilation of all previous law and statutes: see
Huberich, Id. The legislation of the Knights Hospitaller of Malta was
drafted from Roman law sources.
'In this year were enacted the criminal laws now in force.
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188 THE MODERN REALM OF ROMAN LAW
largely * from Roman-French Codes Napoleon ' have been
introduced into Malta in the form of statutes enacted by
the governor and council. The codes of Malta include a
Civil Code,'" and a Code of Civil and Commercial Procedure."
4. GREECE
§ 194 The Eastern Roman Hexabiblos made in 1835 the Civil
Code of modern Greece. The outcome of the Greek War
of Independence of 1821-33 was the formation of the modern
kingdom of Greece. After the destruction of the Byzantine
Empire in 1453, the Turks permitted their Greek subjects to
be governed by their own post-Justinian Roman Civil Law.'
And the Canon Law of the Greek Orthodox Church was of great
assistance in transmitting to modern times the Roman law
influence of the Eiyzantine Empire. Soon after the War of
Independence began, the Basilica^were clothed with statutory
force in 1822, and continued to be the law for modern Greece
until the year 1835, when * by royal decree this code was
replaced by the Hexabiblos,* as improved by revision and
"expansion from the Basilica. And the Hexabiblos has remained
the Civil Code of Greece until the present time.^ But the
Ionian Islands have a Civil Code of their own, based on the
French and Italian. Greece now has also a Penal Code and
a Code of Commerce, both derived from the French.^
^ The law of England has been introduced to some extent, as in the
Merchant Shipping Act.
"See infra "France," §§254, 257-8.
'" Appeared in 1868. An ordinance on personal law was published in
1871.
" Appeared in 1855.
1 See supra §§ 189, 174 et seq.
2 See supra § 176.
3 On Feb. 23.
^ See supra § 182.
^Although a commission of jurists has prepared a new Civil Code
based largely on the Italian, it has not yet been adopted by the Greek
parliament.
1= See infra "France," § 257.
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BALKAN STATES 189
5. BALKAN STATES
Roumania, Bulgaria, Serbiai' Montenegro.* The Balkan § 195
peoples derive their law from that of the Eastern Roman
Empire, which gave them also their religion and culture.
Down to the 19th century and the liberation of the Balkan
provinces from Turkish rule, post- Justinian Roman law in
its Greek form, especially the BasiHca of the Emperor Leo*
and the Hexabiblos of Harmenopulos,^ has exercised an
unbroken and dominant influence on the law of the Balkan
peoples, notwithstanding the great blight of the Turkish
dominion which was established just before and after the
fall of Constantinople in 1453.*
During the 19th century the Balkan provinces of Turkey
finally achieved their long-hoped-for independence, and the
hateful rule of the Turks with its miseries ceased. Advan-
tage of their autonomy or freedom was soon taken by the
various newly erected Balkan States to improve their law by
codification, generally by imitating as closely as possible the
Roman-French Codes Napoleon.^ In 1839 a Code of Com-
merce, translated from the French, was promulgated in Walla-
chia, now a part of Roumania. This was followed in 1852
by a Penal Code, also translated from the French. Twelve
years later, in 1864, appeared the Civil Code of Roumania,
which was modeled iipon the French Civil Code, although
taking into account the modifications introduced by the
1 Late in 1915 this State was conquered by Austria, Germany, and
Bulgaria. At the present time (June 1, 1916) the restoration of independ-
ence for Serbia and Montenegro depends on the outcome of the great war in
Europe.
^ See supra § 176.
' See supra § 182.
* Bulgaria, ruled in the 11th century by the Eastern Roman Empire,
was conquered by the Turks in 1396 before the Byzantine Empire fell.
Serbia, also a province of the Eastern Empire in the 12th century, was con-
quered by the Turks in 1459. Roumania, the ancient Dacia of Trajan and
for centuries a part of the Roman Empire, fell into Turkish clutches 1416-
1513. Valiant little Montenegro, although at one time under the rule of the
Eastern Empire, was never conquered by the Turks.
= See infra "France," §§ 254, 257-8.
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190 THE MODERN REALM OF ROMAN LAW
Italian. 8 In 1887 the Code of Commerce of 1839 was abro-
gated, and was replaced the same year by a new Code which
closely follows the Italian Code of Commerce.
In 1844 Serbia promulgated a Civil Code.' Codification
of the law of Montenegro was successfully accomplished in
1888,* in which year was promulgated the Civil Code.' This
Code drew much law from foreign systems, adapted to national
requirements. In 1905 appeared the Montenegrin Code of
Civil Procedure, which was followed a year later by a Penal
Code. Bulgaria also has Civil and Penal Codes, the latter
promulgated in 1896.
6. RUSSIA
§ 196 The loth century conversion of the Russians to Chris-
tianity as introduced from, the Eastern Roman Empire. Rus-
sian law is traceable to the two great streams which have
fertilized the civilized world of Europe: German or Slavic
customary law and Roman law. In the middle of the 9th
century, Rurik, the leader of a band of roving Northmen,
settled at Novgorad.' Later he migrated into southeast
Russia and established himself in power at Kiev, where his
descendants ruled for over 700 years. ^ This small prin-
cipality finally expanded into the vast Empire of Russia.
Although Rurik brought with him the laws which governed
the Normans, Russia was destined to become far more recep-
tive of the laws, religion, and culture of the Eastern Roman
Empire "whence," as Professor Bryce remarks,' "Russia took
' It is well to remember that the modern Roumanian language is a
Romance language, resembling closely Italian.
' It shows traces of the Austrian Civil Code of 1812 as well as of the
French. A movement is under way to revise the Serbian Civil Code:
see 37 Law Mag. and Rev., p. 127; Peritch, Ein neues Werk . . der
Kodifikation des Privatrechts, Berlin, 1911.
' Montenegrin law, previously unwritten, was first put into writing in
1796 by Danilo II.
' It was drafted by Professor Bogishitch. It was revised in 1899.
' The traditional date of arrival is A.D. 862.
" Rurik died at Kiev in 879. The murder of Feodor I, last of the house
of Rurik, occurred in 1598.
'Studies in history, etc., p. 93.
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RUSSIA 191
her Christianity and her earHest Uterary impulse. . . .
Generally, one may say that it was by and with Christianity
that Roman law found its way in the countries to the east
of Germany and to the north of the Eastern Empire." During
the 10th century the Russians were converted to Byzantine
Christianity ; and the great-grandson of Rurik, prince Vladi-
mir, and his people were baptized in the Dnieper by Greek
priests from Constantinople. Intercommunication between
Russia and the Eastern Roman Empire followed. Byzan-
tine friendship with Russia was cemented by the mar-
riage of Vladimir in 988 to Anna, the sister of the Emperor
Basil II.
The great influence of Byzantine art, culture, and law in § 197
Russia prior to the fall of the Eastern Empire in the 15th
century. The adoption of Christianity by Vladimir and his
subjects was followed by commerce with the Eastern Empire.
In its wake came Byzantine art and culture.* And in the
course of the next century what is now Southeastern Russia
became more advanced in civilization thkn any western Euro-
pean State of the period, for Russia came in for a share of
Byzantine culture, then vastly superior to the rudeness of
Western nations.^ Greek Christianity introduced into Russia
also the Byzantine style of church architecture.* The first
metropolitan bishop in Russia sent by the patriarch of Con-
stantinople was the Greek Theopemptus, who consecrated
the cathedral of St. Sophia at Kiev. At his death in 1051 the
Russian ecclesiastical connection with Constantinople was
made still closer. Not until the middle of the 15th century,
when in 1453 the Turks captured Constantinople and destroyed
the Eastern Roman Empire, did the Russian Church, then the
* The Russian alphabet is the work of Greeks who adapted their own
alphabet to the Slavic tongue, inventing new letters to represent sounds
not in the Greek. From the first, Russia had the Bible in the Slavic
translation: Adeney, Greek and Eastern churches, p. 395, New York, 1908.
^ See Adeney, Id. p. 363.
^ In the 11th century Yasolaf, the son of Vladimir, erected at Kiev
"the metropolitan cathedral which he named St. Sophia, after Justinian's
temple, the ideal of all Greek and Russian churches. His son built a second
church of St. Sophia in Novgorod": Adeney, Id. p. 368,
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192 THE MODERN REALM OF ROMAN LAW
! 197) seventieth metropolitan bishropric of the patriarchate of Con-
stantinople, gain its ecclesiastical independence.' But although
the Russian Church became autocephalous, yet she has never
lost fellowship with the mother Greek Church, — she is to-day
regarded by the latter as still a part of the one holy orthodox
Church.
The fall of the Eastern Empire was also nearly synchronized
with the rise of a new empire, — • united European Russia.
Ivan in, the Great, during his forty- three years reign* recov-
ered the full freedom of Russia from the Tartar invaders,' and
consolidated the principalities, duchies, and other States of
Russia into a single monarchy. Having married Zoe, a niece
of Constantine Paleologus, the last Emperor of the Eastern
Roman Empire, '" Ivan adopted the double-headed eagle, the
ancient badge of the Byzantine Roman Emperors, to be the
arms of Russia," and assumed the significant title of Tsar.'^
It is not surprising that the Russian Emperors soon put forth
a claim to Constantinople as descendants of the Byzantine
Roman Emperors, — a claim not yet dead.
The long ecclesiastical connection of Russia with Constan-
tinople, lasting for five centuries, gave a permanent entrance
into Russia to Byzantine Roman law^^ as appropriated by the
Canon Law of the Eastern Greek Church. For instance in the
10th century, treaties were made with the Eastern Empire,
assigning to the Russians a part of the foreign quarter at
Constantinople where the foreign nations engaged in com-
merce resided and were governed by their national laws.
These treaties, although drawn up by Greeks, reveal the
' Adeney, Id. p. 392. The ancient title of the Russian primate "Metro-
politan of Kiev" was changed to "Metropolitan of Moscow and of all
Russia," — the metropolitan being now elected by a council of Russian
bishops and no longer appointed by the Greek patriarch of Constantinople.
8 Reigned 1462-1505.
' Russia was subjugated by the Tartars in 1240, but in the 15th century
their power had crumbled away.
" See supra § 183.
" As is the case to-day.
1" Corresponding to the Latin "Caesar," and very likely supposed by
the Russians of the period to signify supreme imperial power. ^
'^ See supra §§ 172, 176 et seq.
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RUSSIA 193
customs of the Russians. From the provisions of these treaties
it is disclosed among other things that there is then a law
referred to as a "Russian" law, and — what is more important
— that the Russians already made wills (evidently borrowing
their use from the Roman law), it being provided that wills of
Russians dying at Constantinople should be given effect."
And when the Russian Church became separated from the
Greek Church , the Canon Law of the former had become heavily
indebted to that of the latter, the sources of which are largely
post- Justinian Roman law.
The partial Russian codifications of the 17th and i8th §198
centuries. The influence of the Russian Church after the
separation from Constantinople did much for the progress of
Russian law, for the clergy were customarily consulted by the
Tsars because of their education and learning. Although Ivan
III in 1497" and Ivan IV, the Terrible, in 1550, '^ issued some
regulations for compiling Russian law,'' the first attempts to
codify were made by Alexius, '* who published in 1649 the
Oulogenia,'' a compilation divided into 968 articles embracing
without any method of arrangement all branches of the law.
This remained in use down to 1835. In. 1700 Peter the Great, ^^
perhaps in imitation of the j^jartial French codifications of
Louis XIV,^' had the idea of uniting in one collection all the
ukases published since 1649 ; but he did not realize it. Peter
11,^^ the Empress Anne,^^ and the Empress Catherine^* tried
unsuccessfully to carry out this plan of Peter the Great.^^
The 19th century codification of Russian law in the reign § 199
of Nicholas I; the Civil Code of 1835. The honor of achieving
" Foucher, Code civil de I'empire de Russie, pp. ix et seq.
'^ Approximately.
" Approximately.
" See Foucher, Id. pp. xxiv, xxvi.
18 Alexius I (Michailovitch) reigned 1629-76.
1' See Foucher, Id. pp. xxxi et seq.
2° Reigned 1682-1725.
^1 See infra "France," § 251.
'^ Reigned 1727-30.
23 Reigned 1730-40.
« Reigned 1762-96.
2* See Foucher, Id. pp. xxxiv et seq.
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194 THE MODERN REALM OF ROMAN LAW
the project of Peter the Great to digest the law of Russia
rests with Nicholas I ,^* during whose reign this undertaking was
completed. This grand work of codification, called the Svod,
was promulgated January 1, 1835. It consists of eight books
or codes containing 36,000 articles, or over 42,000 articles
if the later additions be included.*' The fifth of these codes
is the Civil Code. In its present shape the Russian Civil Law
has drawn considerably on the Roman-French Codes Napo-
leon ^^, pubhshed thirty years earlier, especially as to the prin-
ciples of property rights and contracts.^' It has also drawn
slightly from the laws of the various German States of this era.
The French courts have served as a model for the ordinary
Russian tribunals. True is Professor Bryce's description of
modern Russian law "as being Roman 'at the second remove,'
and reckoned as an outlying . . . province, so to speak,
of the legal realm of Rome."'"
)200 Poland. A special notice should be given to the law of
Poland, that unhappy country, so long an independent king-
dom and now divided between Russia, '' Austria, and Germany.
Poland is a Catholic country forming a part of the Western
Latin Roman Church. . Because of this fact and its proximity
to Germany, Poland early came under the influence of the
Latin Canon Law and German teaching. A thorough knowl-
edge of Roman law was acquired by Polish students of law,
who studied first at the Italian universities and still later at the
German.'^ And when they returned home and became judges,
they naturally introduced Roman legal principles into the
developing Polish law wherever possible. Thus Poland assimi-
lated more Roman law than did Russia. To the 13th century
Bologna revival of Roman law in Italy and the consequent
" Reigned 1825-55.
2' Foucher, Id., pp. liv et seq.
28 See infra "France," §§254, 257-8.
^' Like the Continental European States which followed France as an
example, Russia has also a Code of Commerce, Penal Code, etc.
'" Bryce, Studies in history, etc., p. 93.
'' Late in 1915 Russian Poland was conquered by Austria and Germany.
The permanency of this conquest depends at the present time (June 1, 1916)
on the outcome of the great war in Europe.
32 Bryce, Id.
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ITALY 195
establishment throughout Western Europe of universities
with a faculty of law, is due the founding in 1364 of the Polish
university of Cracow, now in Austrian Poland.
7. ITALY!
Debt of the modern world to Italy. How much the world § 201
owes to Italian genius and labors! For Italy is "the mother
of us all." The lamp of civilization has been handed on from
Rome to modern nations by Italian runners. By Italy learn-
ing was re-established and the fine arts revived ; Italy is truly
called "the mother of universities and the savior of learning."
European commerce was originally revived by Italy, after the
flood of barbarian invasions of Europe had spent itself. By
Italians Roman law was recovered from antiquity, adapted
for use in later times, and forever implanted as a living force
in our modern civilization.
These grand achievements were accomplished by a people
laboring under perhaps the worst political handicap known
to history. For over thirteen centuries prior to 1871 Italy
never enjoyed any of the blessings of a political union, and was
either a prey to foreign invaders or torn asunder by fratricidal
wars. During these many centuries Italy was but "a geo-
graphical expression," — to use Metternich's illuminating
description. Very youthful is modern united Italy .^
Periods of Italian legal history. The history of the develop- § 202
ment of Italian law into its present form has five well-defined
periods: from the middle of the 6th to the middle of the 11th
century; from the middle of the 11th to the middle of the 13th
century; from the middle of the 13th century to the 16th
century; from the 16th century to the rise of the modern
kingdom of Italy in the 19th century; modern Italian law.^
1 A part of this was published by the author in 33 Canadian Law Times,
p. 869, Oct., 1913, under the title of "The indebtedness of modern juris-
prudence to medieval Italian law,'' and is reprinted by permission.
^ She celebrated her 40th national birthday in 1911.
' It is possible to divide Italian legal history into three grand periods, —
see Solmi, Storia del diritto italiano (1908), viz. I: "The Roman-barbaric,
476-1100"; II. "The renaissance, 1100-1748" (subdivided into "Period of
autonomy 1100-1492," and "Period of foreign preponderance, 1492-
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196 THE MODERN REALM OF ROMAN LAW
I. Italy from the middle of the 6th to
the middle of the 11th century; period of the
preservation of Justinian's law and the legal
teaching of the Eastern Roman Empire
§203 The Roman-barbaric period. The beginnings of Italian
law — -using the term "Italian" in its modern sense — start
with the emergence of Italy as a separate country out of the
5th century ruins of the Roman Empire of the West. From
this time to the 12th century Italy was in a state of turmoil
due to Teutonic invasions, the struggle between the bar-
barians and the Eastern Roman Empire, and medieval
Italian wars. But nevertheless during these centuries of
strife Roman law was known and applied in Italy, some part
of which was under the authority and influence of the Byzan-
tine Empire.*
§ 204 The 6th century reconquest of Italy by Justinian and the
introduction of his Corpus Juris. In 476 the Roman Empire
of the V.'est, of which Italy was the capital province, was
finally extinguished. About a century later the Ostrogothic
kingdom of Italy was destroyed by the splendid military
exploits of Belisarius and Narses, generals of Justinian. Once
more Italy and Rome were united to the Roman Empire.^
To the restored province of Italy Justinian extended in
554 his code of laws * — the Corpus Juris, as this monu-
mental 6th century codification of Roman law was later
termed.' Justinian himself re-established and reformed the
1748"); in. "The modern period, 1748-1870." But this division,
although quite appropriate poHtically, does not, owing to its conciseness,
clearly portray the evolution of Italian law.
■> See infra § 206.
' See supra § 143. ,
* Supra § 143; Savigny, Geschichte d. rom. Rechts^, etc., vol. ii, §64, note
(b) ; Ortolan (Prichard and Masmith Eng. transL), History of Roman law,
§ 596. The ante-Justinian Roman law had survived under the Ostrogothic
monarchy in the Edict of Theodoric (A.D. 611-15), see supra § 133: Sohm
(Ledlie^) Roman law, p. 126; Ortolan, etc. Hist, etc., §§629,631; Amos,
Roman law, pp. 416-17.
' See supra § 135.
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ITALY 197
law scliool at Rome * in imitation of those at Constantinople
and Beirut.
San Marino. For the next 500 years Roman law in its §205
original form retained its hold in Italy.' And there is one
part of the ItaHan peninsula where this length of time should
be increased to over 1300 years: the 20th century law of the
tiny Appenine republic of San Marino " is Roman law purely
and simply.
A part of Italy was governed by the Eastern Empire until § 206
nearly the 12th century. Although three years after Jus-
tinian's death, the revived Roman Imperial authority in Italy
received a very serious blow in the coming of the fiercest and
rudest of all the Teutonic invaders — the Lombards," who
settled in Northern Italy and gradually acquired the middle
and southern portions of the peninsula'^ — -yet the dominion
' The ancient imperial university of Rome iiad survived the Ostro-
gothic occupation of Italy. For the teaching of the older ante-Justinian
lawwas substituted instruction in the Justinian law books: see supra § 156;
Amos, Roman law, pp. 102-3; Ortolan, etc., Hist, etc., §574; Savigny,
Geschichte d. rom. Rechts^, vol. i, § 133.
» See Savigny, GeicWcfe/e', e/c, ch. 12; Ortolan, etc. Hist, etc., §§597-
603, 612; Amos, Civil law, p. 419.
^'' This mountainous republic of 38 square miles — the smallest and
oldest republic in the world — lies about 14 miles southwest of Rimini
and the Adriatic, and about 60 miles due south of Ravenna. According
to tradition it was founded by St. Marinus during the 3d century perse-
cution of the Christians by Diocletian. Not only does it preserve Roman
law, but it also preserves Roman time: no clock ever strikes more than
six, the day is divided into four quarters of six hours each. For biblio-
graphy as to San Marino, see infra vol. iii, § 962.
11 In A.D. 568.
'^The interior of Sardinia, "the forgotten isle of the Mediterranean,"
still presents features of Roman civilization as known twenty centuries
ago. Here are oxen yoked and the ground is plowed, as in Roman days.
The carts have solid wheels and wooden axles. Even Latin is spoken,
and Greek phrases of the time of Justinian are common in the language of
the Sardinian peasants. They dance as did the Roman and Greeks, while
their costumes are those of Roman shepherds. Time has stood still here.
See Crawford-Flitch, Mediterranean moods. New York, 1911.
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198 THE MODERN REALM OF ROMAN LAW
in Italy of the Roman Empire of the East did not entirely cease
until nearly the 12th" century."
§ 207 Law school of Ravenna. When Rome fell back under the
sway of the Teutonic invaders, the law school at Rome was
removed to Ravenna, the capital for nearly two centuries of
the Eastern Roman exarchate of Ravenna; and it was there-
after known as the law school of Ravenna. ^^ This law school
of the Eastern Roman Empire kept alive in Italy into the 11th
century the knowledge of Justinian's legal system, "^^ — -so
much so that the law books of Justinian survived the power
that introduced them, and obtained a firm hold on Italian
courts and practitioners. '^''
" Some authorities place the date into the 13th century, — until 1231 :
see Ferrari, Documenti greci medievalH di diritto privato delV Italia meri-
dionale (1910).
" Rome was lost forever to Byzantine rule in A.D. 726, and Bologna
in 728. Although the States of the Church — the Papal States — were
founded in 774, and the Lombards conquered the exarchate of Ravenna
in 752, the cities on the southern shores of Italy remained under the Eastern
Roman Empire until into the middle of the 11th century. With the
disappearance of the exarchate of Ravenna, Naples and Calabria passed
under the authority of the count or patricius of Sicily until the 10th cen-
tury Arab conquest of Sicily; but parts of Southern Italy remained under
the authority of the Byzantine Empire for still another century until the
Norman conquest of Southern Italy 1041-71. Certainly Venice nomin-
ally belonged to the Eastern Empire as late as 1081 and the reign of Alexis
I: see Ortolan, etc.. Hist. etc. §§597-8; 22 Eracyc/. BritoM." p. 927 ; Foord,
Byzantine Empire, pp. 291, 289, 332, 333, 309.
1^ The 13th century Italian jurist Odofredus speaks of this law school
of Ravenna as identical with that re-established at Rome by Justinian:
Sa.\\zny, Ceschichte d. rom. Rechts'^, vol. 1, §138; Ortolan, etc.. History
of Roman law, § 599.
1' St. Damian (A.D. 988-1072) reports a discussion as to the degrees
of relationship which occurred in his time at Ravenna, his native country,
which was settled by referring to the Institutes of Justinian: see Ortolan,
etc.. History of Roman law, § 612.
" Savigny shows as a historical fact that Roman law actually sur-
A'ived not only in Italy but in other parts of Europe after the destruction
of the Roman imperial power. It should also not be overlooked that the
maritime cities of Italy always maintained commercial relations with
Constantinople from the Justinianean reconquest of Italy down to the fall
of the Eastern Empire in 1453: see Savigny, Ceschichte, d. rom. Rechts',
vol. i, §§ 86 et seq., 105 et seq., 134 et seq., vol. ii, § 64.
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ITALY 199
The jurists of the school of Ravenna followed in the steps of
their Byzantine contemporaries. They took the easiest por-
tions of Roman law^ — ^the Institutes and Novels ^^ — ^and
ijiade abridgments of them on the Graeco-Roman model/' and
ignored the Digest of Justinian. Now it was the Digest
wherein the great work of the later Italian jurists — the Glos-
sators and Commentators — was accomplished.
Revival of the Western Roman Empire by Charlemagne in § 208
the pth century. In the very first year of the 9th century oc-
curred an event of greatest importance increasingly fraught
with stupendous influence upon later medieval times through-
out Europe as well as Italy. On Christmas day of the year
800 Charlemagne was crowned Roman Emperor at Rome, and
the Empire of the West was restored. Western Europe
regarded Charlemagne as the lawful successor of Augustus and
Constantine. A new joy seized all Western Europe, and
it was hoped that the ancient peaceful civilization of Rome
would return with the new Empire: but the restoration of
the Empire failed to turn back the hands of the clock; and after
Charlemagne's death Western Europe and Italy, regardless
of the new Empire, soon reverted to medieval darkness, and
finally very widely established a feudalistic order of society.
But in spite of the adverse conditions of medieval times,
the restored Western Roman Empire continued to show
an astonishing vitality^": it lasted for over 1000 years until
Napoleon put an end to it in 1806.^^ During these ten centuries
" See supra §§ 135 et seq.
" See supra § 1 169, 172 et seq. ; Sohm (Ledlie^) , Roman law, p. 134.
2" It should not be forgotten that when the lineally descended Roman
Empire of the East finally fell in 1453, it was largely the zeal of the Western
Roman Emperors that saved Europe from the victorious Turks — a final
triumph for the glorious name of Rome. But in the familiar gibe of Vol-
taire as to the Holy Roman Empire (so the Empire had become designated)
is summed up its forlorn condition when nearing the end of its existence
in the 18th century: "The Holy Roman Empire, which is neither holy,
nor Roman, nor an Empire."
^' The Emperor Francis II resigned and dissolved the Imperial dignity
Aug. 6, 1806: Bryce, Holy Roman Empire, eh. 20. The crown, scepter,
and insignia may be seen to-day in the treasury of the Imperial Palace at
Vienna, and form one of the most dazzling exhibits of jewels to be seen
anywhere in the world.
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200 THE MODERN REALM OF ROMAN LAW
nearly all Italy (nominally at least), Austria, and Germany
owed allegiance to the Roman Emperor, which office finally
became hereditary in the present Austrian Imperial dynasty.
§ 209 Discovery of the Florentine manuscript of the Digest. The
restoration of the Western Roman Empire had one very
marked consequence : it brought Roman law into still further
prominence in Italy and elsewhere. The Germanic Roman
Emperors adopted for their new empire Roman Imperial
methods, and called into requisition Justinian's Corpus Juris
as the actual law of their dominions. Probably mythical ^^
is the charming story of how the Emperor Lothaire II in 1136,
while waging war in Southern Italy, took the ancient city of
Amalfi, and found in the booty an ancient manuscript of the
Digest or Pandects^' — declared by some accounts to have
been the copy used by Justinian himself; and that the Em-
peror Lothaire gave this manuscript to his ally, the city of
Pisa, where it was jealously guarded; and that from it Italian
jurists were led to study Justinian's law.
One thing is certain : there was a very ancient manuscript
of the Digest at Pisa (perhaps written either in Justinian's
time or certainly in the following century) which, when Flor-
ence conquered Pisa in 1406, was transferred to the former
city where it remains to this day,^* being known as the Floren-
tine ■ — ■ the oldest and most valuable manuscript of the Digest.
This Florentine manuscript is our chief authority for the text
of Justinian's Digest.^^ Hence it is certain that the law books
of Justinian were not unknown in Italy from the 6th to the
12th century.
II. Italy from the middle of the 11th to
the middle of the 13th century: period of
the revival of Roman law by the Glossators
§ 210 Rise of the Glossators. The first phase in the evolution of
an Italian jurisprudence began in the latter half of the 11th
^ Savigny, GeicAic/i/e d. rom. Rechts^, vol. iii, §35; Ortolan, etc.. His-
tory of Roman law, §§ 620-21.
^ See supra § 137.
2^ It is a treasure of the Medicean-Laurentian Library.,
25 See Ortolan, etc., Hist, of Roman law, §§ 169-625.
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ITALY 201
century when a revival of interest in Roman law became
noticeable in Italy .^^ A new force arose which freed Roman law
from the study of it in the Byzantine manner prevalent at
Ravenna. Curiously enough it was supplied by a Germanic
people in Italy, — the Lombards, in whom the legal instinct
was highly developed. At the outset the Lombards had the
best statute law in all Italy: this they began to study at the
royal court at Pavia in a new manner — by means of "explan-
atory notes," g/o^^ae. The new method succeeded well. Later
it was applied by the Glossators of Bologna^' to the study
of the texts of Roman law, being developed with great skill;
and it contributed during the next 200 years most abundantly
to a thorough understanding of the Corpus Juris.^^
The traditional Ravenna method of acquiring Roman law
through manuals, abridgments, and epitomes according to the
Byzantine practice^' began to succumb before the more scien-
tific and practical exegetic method as employed by the Glossa-
tors. Not only did the Glossators elucidate the letter of the
law : they also reconciled contradictions and connected mutu-
ally related parts; all of which was done by searching for
"parallel passages" — passages connected with the text under
discussion. The results of this labor were collected and sum-
marized in what were called "summaries" (summae), also in
imitation of the Lombard jurists. The provisions of pure
Roman law of the Justinianean period were rediscovered and
brought home to the minds of men.
The 13th century revival of Roman law, ^ — ^ often called §211
the Bologra revival. The consequence of the labors of the
Glossators was a revival'" of Roman law study beginning in
2' In 1038 Conrad 11, the Emperor whom Cnut saw crowned, ordained
that Roman law should be once more the territorial law of the city of Rome.
In 1076 the Digest "was cited in the judgment of a Tuscan court" : see Pol-
lock and Maitland, History of English law'', vol. i, p. 23, London, 1898.
'''This city was originally included in the Eastern Roman exarchate
of Ravenna. See supra § 205.
^^On the work of the Glossators: see Sohm (Ledlie'), Roman law,
§§24-6; Ortolan, etc., History of Roman law, §§613-18; Savigny,
Geschichte d. rom. Rechts', vol. iii, ch. 22-5, vol. iv, ch. 41.
29 See supra §§169, 172.
^"Savigny frequently uses the expression "revival." It was truly
a 'revival,' a 'rebirth,' and not a 'resurrection.' "Revival" is an
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202 THE MODERN REALM OF ROMAN LAW
the middle of the 12th century and reaching high tide in the
13th century — • frequently called from the place of its origin
the Bologna revival — the influence of which was not confined
to Italy but ultimately spread over all of Western Europe and
molded the jurisprudence of the rising European nations.
The Glossators aimed "to re-establish the authority of
Roman law as a living law."'^ The first step was taken by
inserting in the Code of Justinian excerpts from the laws of the
medieval or Germanic Roman Emperors of the West.^^ But
here was the practical difficulty, — the law as applied in Italy
was not altogether the pure ancient Roman law; the problem
was how to adapt Roman law to the altered conditions of
medieval life, so as to have it recognized in the law courts.
The solution of this problem was slowly worked out by the
successors of the Glossators ; the Commentators finally accom-
plished a permanent amalgamation of Roman law and the
law of the Teutonic invaders into an Italian law.
§ 212 Founding of law schools and universities. The 13th century
witnessed the culmination of medieval progress. Perhaps no
century — • not even our own — has contributed more to
advance human welfare, the arts, and literature: on account
of these accomplishments the 13th century has sometimes
been called "the greatest of centuries." '' During this century
the ground was thoroughly prepared for the outburst of the
Renaissance which came at the end of the 15th and during
the 16th century. One of the most important results of the
Bologna revival of Roman law was the founding of universities
throughout Italy. ^^ "The university, as organized by these
excellent term. Roman law had survived in practice in many places as
to various points of law, but was not cultivated; near the end of the 11th
century intellectual pursuits revived and with them the study of law. This
returning life did not come suddenly, but gently and slowly: it had been
foretold by premonitory symptoms early in the 11th century, — Ortolan,
etc., History of Roman law, § 612.
"^ Sohm (Ledlie^), Roman law, p. 138.
'2 See "constitutiones" or laws of the Emperors Frederick I and Freder-
ick II (Mommsen, Krueger, etc.. Corpus Juris Civilis, vol. ii "Codex,"
pp. 510-13).
'^ See Walsh, The thirteenth — greatest of centuries. New York, 1909.
^* See Savigny, Ceschichte d. rom. Rechts ^, vol. iii, ch. 21.
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ITALY 203
wise generations of the Thirteenth Century, has come down (§212)
unchanged to us in the modern time."^^
The oldest Italian university is Bologna, the mother of
all modern universities. It is not known exactly when the
University of Bologna began. The ancient tradition, that
it had a 5th century charter granted 433 by the Roman
Emperor Theodosius II , cannot be substantiated.'' But begin-
ning in 1158 when it received a charter from the Emperor
Frederick Barbarossa, its existence is historically certain.^'
At the start Bologna had but one Faculty, — -that of Law.^'
Considerably later, however, other faculties • — Medicine, the
Liberal Arts, and Theology — were added.'' The faculty
of law for the training of lawyers never lost its original impor-
tance: one of the principal features of every Italian university
was a faculty of law. Many of these law schools became
known beyond the borders of Italy, and attracted students
from all over the medieval world.
The founding of Bologna University was followed in the
next century ■ — the 13th — by the establishment of universities
at Arezzo,^" Naples,*i Padua,^^ Salerno,^' Genoa,^ and Rome.*=
In the 14th century the universities of Perugia,^' Sienna,^' and
Ferrara ^* were found ed . The impetus of the movement did not
6oon abate; in the 15th century universities were established
at Turin,*' Florence,*" Palermo, ^"^ and Parma '^; and in the
16th century four more Italian universities came into being, —
36 Walsh, Id. p. 7.
'5 Savigny, Geschichte d. rom. Rechts'', vol. iii, § 62.
'" See Savigny, Id. vol. iii, § 63.
^ Colquhoun, Roman law, § 136, describes in detail the Bologna law
school's organization, ■ — terms, examinations, methods of instruction, etc.
39 Savigny records how the Schools of Medicine and Arts were still
under the control of the rector of the Law School as late as 1295. The
Theological School was established by Pope Innocent IV in the second half
of the 14th century, — Geschichte d. rom. Rechts, vol. iii, § 67.
^ In 1215. " In 1380.
« In 1224. *^ In 1391.
« In 1228. "' In 1401.
« In 1233. '" In 1439.
'* In 1243. " In 1497.
« In 1245. '2 In 1482.
46 In 1307.
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204 THE MODERN REALM OF ROMAN LAW
Pisa,^' Milan,** Venice,*^ and Pavia.'^" Furthermore, the
development of institutions of learnings of which the Faculty
of Law formed a necessary part, was not limited to Italy:
this beneficent movement early in its history passed across the
Alps and the Mediterranean to bless other countries of Europe.
§213 Famous Glossators: Imerius, Vacarius, Placentinus, Azo,
Accursius. The founder of the Bologna school of the medi-
eval Roman Glossators was the 12th century Imerius,*^ whom,
because of his brilliancy as a jurist, his disciples called the
"lighthouse of the law."'* Other renowned Glossators were
Vacarius, Placentinus, Azo, and Accursius.*' Irnerius and his
disciples renewed completely the study of Roman law; and
by them it reigned a second time over the whole world.
Through the labors of the Lombard Vacarius ^^ began the
medieval reception of Roman law in England. Coming to
England to act as counsel ''Hot Theobald , Archbishop of Canter-
bury, Vacarius brought with him his manuscript of the texts
of Justinian, and founded'^ about 1149 the first English school
" In 1552. ^ In 1592.
" In 1565. » In 1599.
" Born 1055, died about 1130. He was a native of Bologna, and his
Teutonic name, variously spelled, reveals his Lombardic origin. He wrote
his famous Quaestiones de juris subtilitatibus at Rome 1081-82. He is
mentioned as in the service of the Emperor Henry V from 1116 to 1118.
See Ortolan, etc.. History of Roman law §613; Colquhoun, Roman law,
§ 138; Savigny, Geschichte d. rom. Rechts'', vol. iv, ch. 26-7.
^' "Lucerna juris." It was Irnerius who was the first to advance the
modern Continental conception of notarial responsibility, by drawing on
Roman law texts.
'' Mention should be made also of the Glossators known as "the four
doctors": Bulgarus, who died 1166; Martinus Gosia, who died not long
before Bulgarus; Jacobus, who died 1178; and Ugo, whose death occurred
about 1171. All of these belonged to the University of Bologna. To the
founder of their school, Irnerius, is ascribed these Latin verses:
"Bulgarus est aurum,
Martinus copia legum,
Mens legum est Ugo.
Jacobus id quo ego."
See Ortolan, etc., Hist, of Roman law, §615; Colquhoun, Roman law,
§ 139; Savigny, Geschichte d. rom. Rechts^, vol. iv, ch. 28.
«»c. 1120-1200.
'' "Causidicus."
«2 Bryce, Studies, p. 861.
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ITALY 205
of law at Oxford with a system of instruction modeled on that C§ 213)
of Bologna.*' While a professor at Oxford ,** Vacarius composed
an abstract of the Code and Digest,'^'^ — the first systematic
compendium or summa of Roman law published by any
Glossator, so far as is known.** His example was subsequently
followed *' by Placentinus and Azo, whose summaries became
renowned for their excellence.
To the Italian Placentinus** is due the founding of the first
French law school, — at Montpellier in Southern France.
Placentinus, who had taught at Bologna, thus introduced
into France the study of law and the system of the Glassators.
He wrote an excellent summary of Roman law.*'
Perhaps the most distinguished of all the law professors
of Bologna was Azo.^" This jurist was the author of many
"' Ortolan, etc., History of Roman law, § 615.
^ Vacarius' lectures were interrupted when the teaching of Roman law
was proscribed by King Stephen, and the Civil and Canon Law books im-
ported were ordered to be destroyed.' After the death of Stephen in 1154,
this edict was not enforced. The study of Roman law was vigorously
resumed at Oxford. It is not known whether Vacarius resumed his Oxford
duties after their interruption. Vacarius was adviser and ecclesiastical
judge to Roger da Pont L'Eveque, Archbishop of York, after the latter's
appointment in 1164. In 1198 Vacarius was commissioned by Pope
Innocent III to transact business in the north of England relative to the
crusade. See Savigny, Geschichte d. rom. Rechts^, vol. iv, ch. 36; 27 Encycl.
BritanM p. 831.
°^ The "Liber ex universe enucleate juris exceptus, et pauperibus
praesertim destinatus." See Colquhoun, Roman law, § 144; Amos, Roman
law, p. 446.
«6 Amos, Id. p. 447.
*' Amos, Id.
'* He was born at Placentia, Italy, about 1120. After establishing the
law school at Montpellier, he returned to Bologna, where he again taught
for awhile. Later he went again to Montpellier, where he died 1192. Pla-
centinus was at one time elected a bishop of the Church, but his election was
invalidated. See Ortolan, etc.. History of Roman law, §615; Colquhoun,
Roman law, § 141; Savigny, Geschichte d. rom. Rechts^, vol. iv, ch. 30.
*' "Jurisconsulti vetutissimi summa" (London, 1536).
™ He was born at Bologna about 1150. He was a pupil of Johannes
Bassianus. In Azo's time it is said there were 10,000 students at Bologna
(an almost incredible number), — ^to such an extent was the study of law
followed. Azo was one of the most important of the Glossators. His writ-
ings on Roman law were of such weight before courts that it was commonly
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206 THE MODERN REALM OF ROMAN LAW
5 213) works'"^ including a famous summary. '^ The influence of
his summa was not confined to Italy, but spread over Europe.
The 13th century English Chief Justiciar of Henry HI,
Bracton — the father of the English Common Law — in his
own immortal treatise ^' used freely and often copied word
for word Azo's summa.'"'' Once more was English law indebted
to Roman jurisprudence.
Among Azo's pupils '^ was Accursius,'* almost as famous as
his old master whose colleague '' at Bologna Accursius subse-
quently became. Accursius' glossa ordinaris''^ — usually called
the "Great Gloss" ^ — marks the summit of the labors of the
Glossators. Accursius collected into this one work the ex-
tremely numerous earlier annotations on Justinian's Code,
Institutes, and Digest. To these annotations he added many
of his own. The utility of the work must have been enormous :
in it Accursius collected and condensed the learning of the
Glossators for the previous 150 years, which had become widely
said "Chi non ha Azzo, non vada a Palazzo." Azo also found time to be
extremely active in the political life of Bologna, then independent. He
died about 1230. See Colquhoun, Roman law, § 146, Giiterbock, Bracton
and his relation to the RoTnan law, p. 51, Savigny, Geschichte d. rom.
Rechts'\ vol. iv, ch. 37.
" Including a gloss or continuous explanation of the whole text of the
Digest.
"^ Summa codicis et institutionum. More than 30 editions of this work
have been published. It superseded all other summae: Colquhoun, i?o?»aB
law, § 146; Giiterbock, Bracton, etc., p. 51.
'2 De legibus et consuetudinibus Angliae, published about 1256: Giiter-
bock, Bracton, etc., pp. 27-8.
'* Amos, Civil law, p. 446; Giiterbock, Bracton, etc., pp. 51-4.
'^ Azo had two other pupils who were renowned but not so famous as
Accursius. These were Alexander (Alessancjfo de Santo Aegidio) and
Jacobus Balduinus. See Colquhoun, Roman law, §146; 3 Encycl. Britan.^
p. 81.
" Accursius (Francisco Accorso) was born near Florence 1182. He
taught at Bologna for about forty years. In 1252 he held the office of
Podesta in Bologna. He died at Bologna 1260. See Ortolan, etc.. History
of Roman law, § 628; Savigny, Geschichte d. rom. Rechts^, vol. iv, ch. 41.
"Accursius was not only a colleague of Azo, but of Hugolinus: Col-
quhoun, Roman law, § 150.
™ Or magistralis. Its Latin is barbarous. It was published about 1250.
Sohm (Ledlie'), Roman law, p. 137; Colquhoun, Roman law, § 628.
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ITALY 207
dispersed and often confusing.'^ For over a half century the
"Great Gloss" of Accursius obtained an authority greater than
the Roman texts themselves.*" The fact that his eldest son*'
gave lectures on law at Oxford University in 1275-76, during
the reign of Edward I, sheds an interesting sidelight on the
continuing influence of the medieval reception of Roman law
in England.
The Consolato del Mare. Roman law was also revived in § 214
the medieval commercial compilations of maritime law which
originated in Italy. Three celebrated codes of commercial
law were formulated in Europe between the latter half of the
11th and the 14th centuries: the Consolato del Mare, the
Laws of Oleron, and the Laws of Wisby. The oldest of these
three — the Consolato del Mare — is a regulation of the sea
prepared either at Pisa ^^ or Barcelona.*' Its date of first
promulgation precedes the First Crusade of 1096. The Con-
solato del Mare was not however the oldest Mediterranean
commercial compilation of the Middle Ages: it superseded
theAmalfian Tables prepared at that famous Italian seaport.**
Both the compilation of Amalfi*^ and the Consolato del Mare
were confessedly based on the Roman Civil Law.
The 11th century Consolato del Mare was subsequently
adopted by many cities on the Mediterranean littoral, and
" It was no wonder Accursius was called "the idol of the lawyers.''
Accursius cited the works of many authors, some of whose manuscripts
are now lost. It is said he feigned illness so as to expedite his work to its
conclusion, on hearing that a similar work had been started by another
lawyer of Bologna. See Ortolan, etc., History of Roman law, §628; 1
Encycl. BritanM p. 134.
*" Ortolan, etc.. Id.; Sohm (Ledlie'), Roman law, p. 138.
*'Also named Francisco ^ccorso (1225-93). See Colquhoun, Roman
law, 150; Savigny, Geschichte d. rom. Rechts^, vol. iv, ch. 42; 1 Encycl.
Britan.^ p. 134.
^ Pisa was originally included in the Eastern Roman Imperial ex-
archate of Ravenna until the 8th century, — Ortolan, etc., History of
Roman law, § 598.
*^ Barcelona received commercial laws from Count Berengarius in
1068. See 6 Encycl. Britan.^^ p. 790.
^ Morris, Hist, of law, § 229.
^ Amalfi was originally ruled by the Byzantine exarch of Ravenna, —
Ortolan, etc., History of Roman law, § 598.
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208 THE MODERN REALM OF ROMAN LAW
from the 14th century exercised enormous influence over all
Southern Europe. It became the law of Venice and Genoa,
the rival maritime powers of medieval Italy. The rules of
the Consolato del Mare on maritime subjects are very liberal
and equitable. These are concerned with the ownership of
vessels, the rights and duties of masters and captains, of
seamen and freight, salvage, general average and contribution,
the rights of neutrals in time of war — in short, with all
admiralty matters. Its principles have been universally
adopted by nations. It is one of the earliest sources of modem
international law as to international trade relations. ^^
§ 215 Rise of the Canon Law. It should never be forgotten that
Roman law was kept alive in Italy and the rest of Europe very
largely through the influence of the Church, which also at-
tempted to harmonize Roman law with the requirements of the
age through its Canon Law. At this place and time by "Canon
Law" is meant the law of the Western Roman Catholic Church
only : the Eastern Greek Catholic Church was separated from
the Latin Church in 1054. The medieval law of the Western
Church became known as the Corpus Juris Canonici (in
contradistinction to the Roman Corpus Juris Civilis), and was
well developed at the commencement of the 11th century.^'
From the 12th century onward the Roman Church had
become almost the supreme mistress of the western world.
Originally confined to ecclesiastical matters, the Canon Law
sought to reform the secular law as a whole — private, crim-
inal, adjudicative — on lines approved by the Church.
Corresponding to the two rulers of the world, the Roman
Emperor and the Pope, were two bodies of law, Civil Law and
Canon Law, — each claiming, as did its author, to be the
universal binding authority. The jurisprudence of this papal
law was substantially Roman law, modified, however, in accord-
ance with medieval ideas. But here was the limitation of the
Canon Law : it was not recognized in secular courts, — its
recognition being confined solely to ecclesiastical tribunals.
^ The text of the Consolato del Mare is given by Pardessus in his
Lois Maritimes, vol. ii, pp. 1-360.
" Sohm (Ledlie'), Roman law, p. 144. The Decretum Gratiani was pub-
lished about 1140. See infra "The modern Canon Law,'' § 226.
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ITALY 209
The Church was not finally strong enough to ieffect full
recognition of its law in secular courts.
III. Italy from the middle of the 13th
to the 16th century; period of the Com-
iT.entators
Rise of the Commentators; difference between them §216
and the Glossators. The second phase in the evolutior^ of
Italian jurisprudence began in the middle of the 13th century,
when the school of the Glossators was succeeded by the school
of the Commentators, which endured for the next 200 years.
These are often called the "Post-Glossators" or "Bartolists." *^
The Commentators were most influential at the law schools
of Bologna, Padua, Pavia, and Perugia. The method of the
Commentators was different from that of the Glossators.
The Glossators had written short, explanatory notes on the text
of the Corpus Juris; the Commentators wrote exhaustive
discussions of legal doctrines not having much inner connec-
tion with the passage of the Corpus Juris to which they are
connected. The Commentators worked differently because
their task was unlike that of their predecessors. The Com-
mentators did not address themselves to explaining the Cor-
pus Juris, — that task seemed finished to them; but they
began the new task of trying to construct a Roman law to fit
the actual life of their age.
The Commentators Italianized Roman law, and showed §217
that a national jurisprudence could be formed by fusing
Roman and Teutonic law. In the 14th century the time had
come for amalgamating the Lombardic and Roman population
into an Italian people. While "Dante, Petrarch, and Boc-
caccio created a national literature,"*^ Cinus, Bartolus, and
Baldus created a national law out of Roman law and Lom-
bardic customs. The law of practical life had consisted of
three parts: Roman law, statute law of Italian cities, and
Canon Law. Roman law, theoretically of universal authority,
^ See Girard, Manuel de droit romain^, p. 85.
"Sohm (Ledlie^), Roman law, p. 141.
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210 THE MODERN REALM OF ROMAN LAW
was combined with the German law actually in force, and with
the ecclesiastical law of the Church: the result was that the
Commentators Italianized Roman law, making it in its com-
bined and composite shape a living common law of Italy.
By their development of a scientific system of law applicable
in actual life the Commentators first showed the late medieval
and the rising modem world how to make a national juris-
prudence out of Roman law and existing Teutonic customary
law by fusing the two — the Roman law becoming the pre-
dominant element.
This new "common law," as events proved, was not to be
confined to Italy, but was strong enough to exercise a dominant
impulse throughout the western world. So successful were the
labors of the Commentators that this new amalgamated
juridical product was borrowed all over Europe. Posterity
oWes an incalculable debt of gratitude to the Italian Com-
mentators for their wonderful success in accomplishing the
task to which they addressed themselves.
§218 Introduction of scholasticism; revival of the Greek and
Roman doctrine of the Law of Nature. The development of a
national jurisprudence was "brought about by the Commen-
tators in this way : they introduced scholastic tenets into legal
science. Scholasticism came into Italy from France.^" Scholas-
ticism consisted in the predominance of abstract conceptions —
its essence lay in the predominance of the deductive method.
The scholastic position is that science is nothing but what can
be deduced from most general conceptions. It is the method
of Aristotle applied to law. The Commentators endeavored
by analysis of each rule to trace back the rules of law to gen-
eral conceptions. Now the Roman jurists never did this:
they dealt with definite legal conceptions. But the principal
concern of the medieval Commentators was with the making of
definitions and distinctions. Not yet has the influence of
scholastic methods entirely passed away ; it is still to be seen
in modern jurisprudence.
The Commentators, in transforming Roman law into
medieval law, made a sort of philosophical jurisprudence out
of law. Reviving the spirit of antiquity, they revived and
"> Sohm (Ledlie'), Roman law, p. 146.
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ITALY 211
preached the Greek and Roman doctrine of the Law of Nature
as permeating all law whatsoever. The Law of Nature was
that there is an eternal, immutable Natural Law, valid at all
times and at all places, which can be deduced by a purely
intellectual process from the very nature of things. It took
the medieval world by storm, and has continued down into
modern times, surviving the advent of the nineteenth century
historical school of Savigny. Where scholasticism erred was
to suppose that logical inferences can take the place of obser-
vations.
Famous Commentators: Cinus, Bartolus, Baldus. The §219
most famous of many renowned Commentators were Cinus,
Bartolus, and Baldus, all of whom lived in the 14th century. ''
The reaction in Italy against the extreme adherence to the
Glossators, especially Accursius, was led by Cinus, who ridi-
culed the servile adherence of his time to the gloss, irrespec-
tive of the texts of Roman law. '^ This extraordinary man '^ was
famous both as a lawyer and as a poet,'* — ^two dissimilar
attributes ordinarily. He was associated with the greatest men
of his century: Dante was his friend,'^ and Petrarch '^and Boc-
caccio are said to have been his pupils. To another pupil,
Bartolus, Cinus gave the impulse for his wonderful labors in
the field of law.
Bartolus ''' is the greatest of the Commentators. His creative
"^ The most famous precursor of these Commentators was Gulielmus
Durantis (1237-96), who was professor of Roman law at Modena and
who wrote that celebrated practical treatise the Speculum juris.
^"l prefer," he said ironically, "the gloss to the text. For if I quote
the text (of Roman law), both judges and advocates say to me, 'don't you
think the glossator knew the text as well as you do, and that he could
understand it better than you?' " Ortolan (Prichard and Nasmith Engl,
transl.). History of Roman law, § 628.
s^Cino de Pistoia (1270-1336). He was born at Pistoia. While in
France he studied extensively the laws of that country. He was professor
of Roman law at Siena (1323), Perugia (1326), and Florence (1336).
°' See Savigny, Geschichte d. rom. Rechis^, vol. iv, ch. 60.
"* See Colquhoun, Roman law, § 168.
'* Id. Petrarch wrote a famous sonnet on Cinus' death.
" He was born 1314 at Sassoferato in Umbria, and died 1357 at Peru-
gia where he is buried in the church of San Francisco, his monument being
inscribed simply "Ossa Bartoli." He studied law at Perugia, and also at
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212 THE MODERN REALM OF ROMAN LAW
(§219) legal genius was of a very high order.'* The great reputation
of Bartolus rests on his revival of the exegetical system of
teaching law. His best work is his Commentaries '* on Roman
law, which became renowned over all Europe for their excel-
lence.'"" These actually received at one time statutory author-
ity in Spain and Portugal. i"" In France the opinions of Bartolus
were so influential in courts of justice that their weight gave rise
to the proverbial expressions "plus rSsolu que Bartole" and
"rSsolu comme un Bartole." ^'^ The influence of Bartolus was
international. He was the central figure of the Middle Ages
in legal history. Not only did he create a common law for
Italy, but he is to be regarded as "the creator of the common
Bologna where he received his doctorate of Civil Law in 1334. He was pro-
fessor of law at Pisa and Perugia. During his long service at Perugia,
1343-57, he raised this law school to the level of that of Bologna. See
Colquhoun, Roman law, § 155; Ortolan, etc., History of Roman law,
§ 629; Savigny, Geschichie d. rom. Rechts^, vol. iv, ch. 53; Woolf, Bartolus
of Sassoferato, Cambridge, 1913.
'* Here are two instances: (1) Bartolus discussed the subject of the
conflict of laws, and "was the first to point out" that, in determining how
far a State should enforce a foreign law, regard must be particularly paid
to the question whether the rule of law is real (circa rem), personal {circa
personam) or mixed (sollemnitas actus). This distinction of Bartolus is
retained to-day in modern Private International Law; (2) Bartolus dis-
cussed the power of a corporation to make binding rules, and "was the first
to point out" that there is a distinction between a rule to regulate a politi-
cal community and a rule to internally regulate a corporation; that while
a corporation can make rules of the latter sort, rules of the former sort can
be made only by somebody having political authority. Thus Bartolus
expressed for the first time the distinctive character of the State's political
authority. See Sohm (Ledlie'), Roman law, p. 148.
''For their description, see Colquhoun, Roman law, §155; Ortolan,
etc.. History of Roman law, § 629.
"■" Other valuable works were his treatises On Procedure and On Evidence.
Bartolus fully developed the doctrine of notarial responsibility advanced
by Irnerius (supra §212). Bartolus' famous pupil, Baldus, enlarged some
of the limits left obscure by his master.
'" Sohm (Ledlie'), Roman law, pp. 150-51.
102 ]\Jq)- until the 16th century French historical school of jurisprudence
arose was there any reaction against Bartolus. But Cujas and Doneau
devoted their attention to pure Roman law, and abandoned scholasticism.
See Sohm (Ledlie'), Roman law, p. 151.
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ITALY 213
law of Germany which sprang from the 'reception' of
Roman law into the German States."'"'
Next in rank to Bartplus was his pupil Baldus.'"^ The repu-
tation of Baldus was great in Italy, but he was not so dis-
tinguished internationally as Bartolus. While Baldus sur-
passed his master in memory or subtlety,'"^ his writings did not
obtain the same weight.'"^ When Roman law as embodied in
the commentaries of Bartolus was received into Germany,
those of Baldus were also received in a secondary degree."'
IV. Italy from the 16th century to the
rise of the modern kingdom of Italy in the
19th century; period of diversity of law
Diversity of Italian law in the i6th, 17th, and i8th can- §220
turies. With the fruition of the work of the Commentators
began the uneventful, non-progressive, if not decadent, period
of Italian legal history. This condition lasted for over 300
years down into the 19th century, when the salvation of
Italian law came across the Alps from a foreign land — not
until then was territorial uniformity of law and final codifica-
tion realized in Italy. "^"^ The reason for this miserable Italian ,
situation of late medieval and early modem times was the
unhappy political condition of Italy, which, in the 16th cen-
tury, although possessed of a common law as well as a national
^°'Sohm (Ledlie'), Roman law, p. 161.
1"* Baldeschi (Baldus) was born at Perugia 1327, and died at Pavia 1406.
During his life he held appointments as professor of law at Bologna, Peru-
gia, Pisa, Florence, Padua, Pavia. At one time he was a colleague of his
master Bartolus at Perugia. Bartolus conferred upon Baldus the doctorate
of law. Baldus was often employed in diplomatic missions and state affairs.
One of his pupils was Pierre de Beaufort, who later became Pope Gregory
XI. Baldus' brothers Angelus and Petrus were also of renown as jurists.
See Colquhouij, i?o»MJ« law, §157; S3.Vigny , Geschichte d. rom. Rechts'^,
vol. iv, ch. 55.
i°* See Colquhoun, Roman law, § 157.
lo^Savigny calls Baldus' commentary on the Liber feudorum his best
work. Most of Baldus' works were unfortunately left by him in an incom-
plete state. See Colquhoun, Id.
"' See Sohm (Ledlie"), Roman law, p. 151.
'«« See infra §§221,224.
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214 THE MODERN REALM OF ROMAN LAW
language and literature, was not a united country but merely
a geographical name of no political significance. In spite of
ardent longings for political union, Italy was split into a host
of states. This forlorn condition of Italian dismemberment
continued until modern times and prevented any legal pro-
gress. Republics, duchies, the kingdoms of Naples and Savoy,
the Papal States (the Popes having acquired much of the
ancient Italian territory of the Eastern Roman Empire),
and the remnants of the revived Western Roman Empire
composed the fragments of Italy.
This fragmentary political condition was reflected in the
great diversity of Italian law. Each state, whether republican,
ducal, monarchical, papal, or imperial, had its own local law.
Uniformity of Italian law was impossible so long as Italy was
split into pieces. As time went on, the underlying common
features of the many Italian legal systems tended to disappear
or become obscured with the deepening and widening of this
diversity of law. The 18th century witnessed a feeble glimmer
of hope for a change for the better. Perhaps owing to the
external influence of the partial French codifications of Louis
XIV and Louis XV, attempts were made to codify the existing
law of certain Italian states, such as the kingdoms of Savoy
and the Two Sicilies, and the duchies of Modena and Tuscany.
But these projects failed. The rulers of the many Italian
states were usually too busy fighting or intriguing with each
other for aggrandizement to devote much energy to improving
their law. And yet the widespread influence of the works of
two talented Italian jurists of the 18th century — the great
philosopher-jurist Vico^'*' and the Humanist Beccaria"" —
showed to the world that Italian juridical genius had not
expired with the Bartolists.^'i
§221 Incorporation of Italy in the Napoleonic Empire; the
French Codes introduced into Italy. Nevertheless the cen-
turies' chronic diversity and sterility of law in Italy were not
incurable: late in the 18th century relief was approaching.
In 1796 the French Revolution overflowed into Italy; the
"9 A D. 1668-1774.
ii» 1735-94.
1" See supra § 215.
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ITALY 215
Italian states soon succumbed to the all-conquering French
armies; and early in the 19th century Napoleon Bonaparte
became the master of all Italy. Many republics and states,
like Venice, were put an end to. Practically all of Italy came
under French dominion . Finally, Napoleon was crowned with
the iron crown of Lombardy , and his son became King of Rome
and Lombardy. The revived Western Roman Empire, which
had endured since Charlemagne, was terminated by Napoleon."^
Austria surrendered her ancient imperial rights in Italy.
After the Napoleonic codification was accomplished,"'
it was proclaimed as the law of all Italy between the years
1804 and 1812, and the ancient numerous separate state laws
were abrogated. For the first time in the twelve centuries
since Justinian's government of the entire peninsula, Italy
enjoyed the great privilege of a single codified jurisprudence
uniform throughout the length and breadth of the land from
the Adriatic on the East to the Mediterranean on the West.,
And this blessing was long remembered after the departure
of the French eagles.
Italian law after the downfall of the Napoleonic Empire §222
and prior to the formation of modern Italy. When the Napo-
leonic regime came to an end, the ancient separate laws of the
old host of States were subsequently revived in vigor in the
several regions of Italy, beginning in the year 1815. But the
influence of the French Revolution was in Italy to stay.
As a consequence the ancient laws of the restored Italian
states had to be modified. Naples, Sardinia, Modena, and the
Papal States were given revisions of their laws. In the king-
dom of Lombardy and Venice, now restored to the Austrian
House of Hapsburg, the new Austrian Civil Code of 1812 "*
was promulgated.
V. Modern Italian law: period of uni-
formity and complete codification of law
Formation of modern Italy; culmination of the risorgimento §223
italiano. The restoration of the ancient Italian states could
"2 See supra § 208. "* See infra "Austria," § 232.
1" See infra "France," §§254, 257-8.
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216 THE MODERN REALM OF ROMAN LAW
not be a permanent settlement of the Italian question, for it
left Austria the real mistress of Italy. The only native
dynasty was the house of Savoy (the present Italian royal
house) , which governed the kingdom of Sardinia. Liberalism
manifested itself everywhere throughout the peninsula in
secret societies, plots, and insurrections. The revolutions of
1830 and 1848 added great impetus to the movement for repre-
sentative government, the expulsion of the hated Austrian
authority and rulers, and a united Italy. Finally the hour of
Italy's modern destiny arrived. In 1865 Austria was driven
out ; in 1870 ^^^ the Pope lost his temporal power. The king-
doms of Naples and the Two Sicilies as well as the various
small Italian grand duchies were no more. Mazzini, Cavour,
and Garibaldi had brought about a new Italy, born again,
united and possessed of its ancient capital — Rome. The
dream of an Italian nation was at last realized.
§224 The Italian Civil Code of i866, and modem Italian law.
The modern Civil Code for Italy was promulgated in 1866.^**
Instead of six different systems of law and a host of special
laws, there is now but one law for all Italy. The Italian Civil
Code is modeled on and embodies many of the rules of the
Roman-French Code Napoleon,"' the grand type of all modern
codes. For instance, Napoleon had established civil marriage
during his occupation of Italy; after his fall it was abolished;
act 93 of the Italian Civil Code again secularizes marriage.
The Italian Civil Code is an excellent production most credit-
able to modem Italy. As a work of codification the Italian
Civil Code is highly scientific in character, and its value does
not diminish with the lapse of time.^'*
In imitation of the French codes, Italy has also a Code of
Civil Procedure,"' Code of Commerce,i2o Penal Codc^^i and
"* September 20 the Italians under General Cadorna entered Rome
as victors.
''* It went into effect January 1.
"' See infra "France," §§ 254, 258.
"' The Italian Code has exercised considerable influence on the law of
Malta, — see supra § 193.
"" Effective 1866.
™ Effective 1883.
•21 Effective 1890.
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CANON LAW 217
Code of Criminal Procedure. "^^^ The last two are the best
Continental European criminal codes yet framed, and are
very complete. Modern Italian law is but Roman-Italian
law, — Roman law clad in a 19th century Italian dress. ^^^
Easily accessible, certain, and not bulky are the characteristics
of modern Italian law. The world mission of Roman law in
modern Italy has been successfully accomplished: Italian law
is uniform throughout Italy and is codified.
8. THE MODERN CANON LAW, — AN OFFSHOOT
OF ROMAN LAW
The relation of Canon law to Roman law. With the reign § 225
of Constantine the Great, Christianity soon dominated the
Roman Empire; and gradually a church law arose. ^ And this
ecclesiastical law in no small measure helped to preserve the
Roman Civil law itself throughout Europe. By the enormous
influence of the law of the Eastern Greek Church, Russia and
the Balkan States became outlying provinces of the realm of
Roman law; and modern Eastern Europe is not unaffected
by the world-current of Roman jurisprudence.^ That the
remnants of civilization were preserved at all in Western
Europe during the Dark Ages is due largely to the Western
Latin Catholic Church, the law of which was rapidly maturing
in the 11th century.
The devotion of the clergy to the Civil law of Rome was
marked with great fervor during the early medieval period
following the disruption of the lineal Roman Empire of the
West in A.D. 476. More than this: during the entire Middle
Ages the clergy, whether of Germanic origin or not, never
submitted to any of the barbarous Teutonic law.' The
122 Id.
12' But Roman law as the predominating source of Italian law is still
studied with ardor in Italy. And works on Roman law of a very high order
have been produced by modern Italian Romanists, such as Baviera (of
the University of Palermo), Bertolini (of Turin), Bonfante (of Milan),
Perozzi (of Bologna), Riccobono (of Palermo), Serafini (of Pisa), and Sicil-
iano-Villanueva (of Sassari).
1 See supra § 14&.
2 See supra §§194, 195, 196.
' Morey, Roman law, p. 177.
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218 THE MODERN REALM OF ROMAN LAW
Roman law was always the personal law of the clergy; it
followed them wherever they went. As fast as ecclesiastical
courts obtained a foothold or increased their jurisdiction,
they always applied the refined principles of the Roman law.
This body of church law — ■ to a very large degree secular —
received after a time the generic name of Canon law.
Furthermore, as the Papacy increased in strength, the entire
organization of the Roman Catholic Church became pervaded
with and was modeled on the spirit and system of the Im-
perialistic government of the old Roman Empire. The
Papacy was and is to-day in many respects a historical con-
tinuation of the ancient Roman Empire, — "the ghost of the
old Empire" is Hobbes' famous characterization of the Papacy.
How enormously great has been the influence of Roman law
upon the Roman Catholic Church is to be seen in the latter's
present centralization of power, in the absolute superiority and
supremacy of the Pope, in its administration so akin to that
of the Roman Empire of Constantine's time, and in its uni-
versal system of church law.
! 226 The Corpus Juris Canonici and modem Canon Law. One
of the great although indirect results of the Bologna revival
of Roman law study* was the full maturing of the Western
Roman Canon Law, which in the 12th century had become
largely codified, — -the complete codification receiving the
name of Corpus Juris Canonici.^ This code of the Latin
Church^ was the supreme ecclesiastical law of all Western
Europe, in force long before the 16th century Protestant Refor-
mation divided the Roman Church and Western Christen-
dom. The modern stage of the Canon Law may be regarded
as dating from the formation of the Corpus Juris Canonici.
But the modern Canon Law should not be limited to the
Roman Catholic Church alone; it includes also the ecclesias-
* See supra §§210 et seq.
5 See infra § 228.
" In 1054 the Greek Church was excommunicated by Pope Leo IX; and
thereafter the ancient Christian Church was divided (barring the temporary
reunion of the Greek and Latin churches at the Council of Lyons in 1274).
The Canon Law of the undivided church prior to its separation in the 11th
century was much the same; afterwards it became quite different.
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CANON LAW 219
tical law of all Protestant churches since the Reformation.'
If the Canon Law of the Western Latin Church be examined,
the Corpus Juris Canonici manifestly is a counterpart or
reflection of the Corpus Juris of Justinian in name, form, sub-
stance, and authority.
The Corpus Juris Canonici is a counterpart of the Justinian
codification as to name. The appellation "Corpus Juris
Canonici" to denote the law of the Western Roman church
was officially sanctioned in the 16th century by Gregory XIII. ^
But this expression was in common use rnuch earlier; and from
the middle of the 13th century it was employed' in sharp
contradistinction to the Roman law, collectively described as
the Corpus Juris Civilis.'"
The Corpus Juris Canonici is a counterpart of the Justinian § 227
codification as to form. Parts of the Corpus Juris Canonici.
In imitation of Justinian's monumental work, the Corpus
Juris Canonici is arranged in four parts: Decree, Decretals,
Extravagantes, and Institutes, which is their chronological
order.
1. The 1 2th century Decree (Decretum Gratiani). This §228
part of the Corpus Juris Canonici corresponds to the Digest of
Justinian. It was prepared and published by Gratian, a
Benedictine monk of Bologna, and embraces all the previous
law of the Church prior to 1140 contained in acts of councils,
decrees of Popes, and earlier compilations of ecclesiastical
law."
' See infra vol. iii, § 963.
'July 1, 1580, in "Cum pro munere.'' See 4 Cath. Encycl., p. 391,
New York, 1907-14.
' Gratian 's Decretum was already called "Corpus Juris Canonici,"
by a 12th century Glossator; and in the next century Innocent IV, in 1253,
calls by this name the Decretals of Gregory IX. See 4 Cath.Encycl.,p. 391.
^° This term was definitely used by Godefroy in the 16th century, —
see supra § 135.
'' Gratian's Decretum is divided into three parts, which are cited
as follows:
(a) Part I — Distinctiones. Is cited by the number of Distinction,
and initial words or number of canon (frequently the reverse order, begin-
ning with canon, is used) : e.g. "Exemplo Danielis, c. 11, D. 37."
(6) Part II — Causae. Is cited (except Causa 33, quaestio 3) by
Causa, quaestio, and canon (frequently the reverse order, beginning with
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220 THE MODERN REALM OF ROMAN LAW
(§228) 2. The 13th and 14th century Decretals (Decretales).
This part of the Corpus Juris Canonici corresponds to the
Code of Justinian. It consists of the statutes or decretals of
Popes Gregory IX /^ Boniface VIII,i* and Clement V.^*
3. The 14th and 15th century Extravangantes. This part
of the Corpus Juris Canonici corresponds to the Novels of
Justinian. It consists of the decretals of Popes John XXII/^
and others from Urban VI to Sixtus IV. ^*
4. The i6th century Institutes. This is virtually a fourth
part of the Corpus Juris Canonici, and corresponds to the
Institutes of Justinian. To complete the grand canonical
codification, Pope Paul IV '^ ordered the renowned canonist
Lancelot ^^ to prepare Institutes of Canon Law; Lancelot's
elementary treatise '' published in 1563 forms a part of many
canon, is used): e.g. "Non denegetur, c. 20, C. 2 (= causa 2), qu. 6."
But Causa 33, quaestio 3 is cited like Part I, with addition of the words
"de poenitentia" after the Distinction: e.g. "Dixi confitebor, c. 4, D. 1 de
poenit."
(c) Part III — De consecratione. Is cited like Part I, with addition'
of the words "de consecratione" after the Distinction: e.g. "Per orbem,
c. 26, D. 3 de consecrat.''
'2 "Quinque Libri Decretalium Gregorii Noni" or "Liber Extra," 1234.
Are cited by original name of Liber Extra (abbreviated to X), book, tide,
and chapter (frequently the chapter comes first): e.g. "chap. 9, X., lib. iv,
tit. 13."
''"Liber Sextus Decretalium," 1294. Are cited by original name
of Liber Sextus (abbreviated to in Sext. or VI), book, title, and chapter
(frequently the chapter comes first): e.g. "cap. 1, in Sext., lib. i, tit. 2 de
constitutionibus. "
" "Clementis vel Clementinae Constitutiones" or "Liber Septimus
Decretalium," 1313. Are cited by original name of Liber Septimus
(abbreviated to in Sept. or VII) or by later name of Clementinae, book, tide,
and chapter (frequently the chapter comes first): e.g. "cap. 1, in Sept. (or
Clement.), lib. i, tit. 1 de summa trinitate."
^ "Extravagantes Johannis XXII," 1340. Are cited by name
(abbreviated to Extr. or Xvag.), title and chapter (frequently the chapter
comes first): e.g. "cap. 1, Extr. (or Xvag.), Jo. XXII, 12."
16 "Extravagantes Communes," 1483. Are cited by name, book,
tide, and chapter (frequently the chapter comes first) : e.g. "cap. 2, Extr.
(or Xvag.) Comm. iii, 2."
" Died 1559.
i« Giovanni Paolo Lancelotti (1522-90).
" It is cited by book, title, and paragraph.
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CANON LAW 221
editions of the Corpus Juris Canonici, although never having
received official approval.^" It is a very clear resume of Canon
Law, and its divisions have been broadly followed by all sub-
sequent authors of elementary works on Canon Law. Lancelot
had the great misfortune to publish his Institutes just before
the legislation of the Council of Trent : but the decrees of that
council have been followed by subsequent editors of his work
in their notes and commentaries.
The Corpus Juris Canonici is a counterpart of the Justinian § 229
codification as to substance. The Canon law contains much
to indicate the survival of the Roman law in the Church legis-
lation. The Decree reproduces many of the general principles
and phraseology of the Justipian Digest. The Decretals con-
tain the elements of Roman procedure, the various Roman
contracts, and the Roman modes of acquiring property, —
such as prescription, donation, and successions. In some
respects the Canon law altered the Roman law taken up by the
Latin Church, — for instance as to marriage and divorce, and
as to the greater emphasis laid on bona fides by the possessor
in acquiring a prescriptive title.
The Corpus Juris Canonici is a counterpart of the Justinian § 230
codification as to authority. As was the universal Roman law
administered by the Roman Emperor, the head of the State,
so was the universal Canon law administered by its central
head, the Roman Pope. As long as the Papal supremacy was
recognized, the Canon law possessed unlimited power and
■ formed the basis of the ecclesiastical law of every country .^^
And since the decline of the Papal power it has generally
retained the force of subsidiary law in Protestant States.
Even in England a considerable part of the law as to marriage,
divorce, inheritance, and guardianship has been derived from
the Canon law. The distinct probate or surrogate jurisdic-
tion of the estates of deceased persons prevailing in the United
States, which originated historically in the English bishops'
2" Morey's statement that it was published at Rome under Gregory
XIII is not authentic, see 8 Cath. Encycl., p. 774.
21 Pope Pius X (predecessor of the present Pope Benedict XV) had
ordained the revision of the Roman Catholic Canon Law; and the work
is now nearing completion.
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222 THE MODERN REALM OF ROMAN LAW
courts, suggests a very important point of contact between
Roman Canon law and American jurisprudence.
9. AUSTRIA-HUNGARY
§231 Austrian law prior to its 19th century codification. The
Austria-Hungary monarchy of the house of Hapsburg, the
dual Empire- Kingdom and polyglot nation of central Europe,
has been especially subject to Roman influences by reason of
its rulers having been Roman Emperors of the West^ for
centuries down to the year 1906, if for no other reason. Most
of this polyglot population is Catholic in religion, and the
influence of the Latin Canon Law^ is not wanting in the history
of Austria. Indeed Roman law is very largely connected
with the modem Austrian law: with the exception of Spain,'
Austria was the first Romanized European State to endeavor
to truly codify its law.
The Bologna revival of Roman law study and the consequent
establishing of universities with a faculty of law * reached
Austria in the 14th century, during which the universities of
Prague^ and Vienna^ were founded. In 1495 (three years after
Columbus discovered America) the Emperor Maximilian I
organized a central Imperial court of justice, the Reichskam-
mergericht, which formally adopted Roman law as the common
law of the medieval Roman Empire. ' The earliest Continental
European code of criminal law was that of the Emperor
Charles V, promulgated in 1532.^
' The Holy Roman Empire, as Charlemagne's revived Western Roman
Empire was called in later centuries. Hence much of Italian legal history
— certainly through the period of the Commentators — is relevant to Aus-
trian legal history: see supra §§ 208 et seq. Much of the legal history
of Germany prior to the Austrian-Prussian war of 1866 is also in point:
see infra "Germany,'' §§315-41.
^ See supra § § 225 et seq.
3 See infra "Spain," § 290.
^ See supra §§211-12.
5 In 1348.
» In 1365.
' Bryce, Studies, p. 91. See infra "Germany," § 322.
' It was called the "Constitutio criminalis Carolina": see infra §337,
note.
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AUSTRIA-HUNGARY 223
Owing very likely to the influence on the rest of Europe
exercised by the 17th and the 18th century partial French law
codifications of Louis XIV and Louis XV, the movement to
codify the Civil Lawof Austria began in the 18th century. Some
fifty years prior to the formation of the French Code Napoleon,
the Empress Maria Theresa, the contemporary and antagonist
of Frederick the Great of Prussia (that Empress who so enthu-
siastically aroused Hungary's devotion) , decided to frame a
Civil Code for Austria. The first draft of 1767 was rejected
by the Empress, who ordered that the proposed code be con-
structed on a different basis, and prescribed the following
conditions: (1) to abstain from doctrinal development;
(2) to have in view juridical questions of the' most frequent
occurrence ; (3) to be clear in expression ; (4) to be governed by
natural equity; (5) to simplify the laws and to refrain from
too much subtlety in details.' About twenty years later,
in 1786, the first part of the new Civil Code was published by
the Emperor Joseph H for discussion by the universities and
the law courts. 1"
The Austrian Civil Code of 1812 and modern Austrian law. §232
In the year 1812, eight years after the Code Napoleon, the
Austrian Civil Code for the German provinces was promul-
gated by the Emperor Francis I. Subsequently this code was
extended to the rest of the Austrian Empire, "^^ except Hungary. '^
The Austrian Civil Code was originally written in Latin, that
language which for so many centuries had been the official
' See Semmes, The Civil law and codification (in Am. Bar Ass'n. Re-
ports for 1886, pp. 212-13). In 1769 was promulgated a criminal code
known as the "Constitutio Theresiana."
^^ In 1787 a new code of Criminal Law, known as "Emperor Joseph's
code," was adopted.
" In 1815-16 to the Tyrol, Istria, Fiume, Lombardy, and Venice
(then Austrian possessions), and Dalmatia; in 1852-5 to Cracovia (Aus-
trian Poland), Hungary, Croatia, Slavonia, and Transylvania. It is in
force in Bohemia. See Scheu, Das osterreichische allgemeine biirgerliche
Gesetzbuch^, pp. 5, 6, Leipzig, 1913; also the Manuale codice civile generate
austriaco ^, pp. 4r-6, Innsbruck, 1913.
'^ Its use in Hungary, an autonomous kingdom, was abrogated by
the Hungarian law of June 21, 1860; and the old Hungarian law returned
in force.
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224 THE MODERN REALM OF ROMAN LAW
language of the State. But there are now official texts of the
code in the German, Italian, Polish, Serbian, and Slovenian
languages. The Austrian Civil Code is a very scholarly work,
in which the predominating element is Roman law. Owing
to the fact that it was promulgated subsequently to the Code
Napoleon, it is occasionally reminiscent of that monumental
code. Like France, Austria has other codes, including a Code
of Commerce,'' Penal Code,'* Code of Criminal Procedure,'* and
Code of Civil Procedure, '^ Hungary also has a Code of Com-
merce'^ and a Penal Code.'* The Austrian Civil Code has
exercised some influence on the law of neighboring States,
particularly in Serbia " and in some of the cantonal codes ^^ of
the German caiitons of Switzerland. To call modem Austrian
law Roman- Austrian law is not a misnomer, — it is Roman
law clad in several modern Austrian dresses.^*
10. FRANCE
§ 233 Debt of the modern world to France. During the 17th, 18th,
and early in the 19th centuries France was the predominant
power in Europe. Her long ascendancy made France a model
which other European States have followed or imitated.
France perhaps more than any other European State has
directly absorbed the principles of Roman law and also of the
Roman political and governmental system.
§ 234 Periods of French legal history. The history of the develop-
ment of French law into its present form has four well defined
" Promulgated 1863.
" Promulgated 1852, revised 1873. An entirely new code was drafted
in 1906, but has not yet been adopted.
16 Promulgated 1874.
i« Promulgated 1895.
" Promulgated 1876.
" Promulgated 1880.
" The Serbian Civil Code of 1844, — supra § 195.
21 Now abrogated by the Federal codification of 1912, — see infra
"Switzerland," § 358.
21 There have been some modern Austrian Romanists of great ability,
such as Wlassak of the University of Vienna.
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FRANCE 225
periods: from the 6th to the 13th century; from the 13th to
the 16th century; from the 16th century to the 19th century
Code Napoleon; and modern French law.
I. France from the 6th to the 13th cen-
tury : period of partial preservation of ante-
Justinian Roman law
Survival of Roman law in Gaul (France) after the destruc-
tion in A.D. 476 of the Roman Empire in Western Europe.
As in Italy, so in Gaul or old France, Roman law was pre-
served, after the fall of the Roman Empire in the West, through
the influence of the Latin Roman church and clergy. The
Roman law preserved in Gaul was almost entirely ante-Jus-
tinian,! especially the 6th century Breviary or Code of Alaric
11,^ which was observed in Provence and other parts of
Southern Gaul. Bi^t during the 9th century a small portion of
Justinian Roman law filtered into France: by contact of the
French clergy with their Italian brethren a knowledge was
obtained of Julian's Epitome of the Novels.' These were
found of benefit in developing the Canon Law of the
Church.^
Still another influence helped to preserve Roman law, —
the operation of the ancient Teutonic rule of the nationality
of laws: in the very lifetime of Justinian hjmself, Clothaire I,
King of the Franks, decreed * that causes between Romans ^
should be decided by the Roman laws. This was in accordance
with the ancient Teutonic principle, that each person should
1 Gaul, unlike Italy, was never reconquered by Justinian, and con-
sequently was never made subject to the Corpus Juris. See supra §§ 143,
204.
^ See supra §133; Ortolan (Prichard and Nasmith Eng. transl.),
History of Roman law, § 607.
'See supra § 139; Ortolan, etc.. History of Roman law, §607, p. 622,
§ 633, p. 649;
*See supra §§216, 225.
° About the year 560: Ortolan, etc.. Id. § 634, p. 548.
* I.e. Gallo-Romans.
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§235
226 THE MODERN REALM OF ROMAN LAW
live under the law of his origin.' But this 6th century rule
could not endure forever: three centuries later law had
become territorial in France. In the 9th century, Charles
the Bald refers* to certain districts as "under or not under"
the Roman law.^ Here is the genesis of the later droit ecrit and
droit coutumier! By the 11th century — ^A.D. 1000 — it
had become impossible to say who was Roman, Frank, Bur-
gundian, Goth: to such an extent had the intermingling of
races been carried.^" To the difference of territorial law in
! 236 France was now added the diverse laws of multiplying feudal
territorial domains.
Laws of Oleron, — the 12th century French maritime and
commercial law. The second great maritime code of the
Middle Ages was the Laws of Oleron," compiled about the
year 1150 for a woman, Eleanor, Duchess of Guienne, who was
at one time the wife of Henry II of England. While accom-
panying her first husband, Louis VII of France, on the second
crusade, she became acquainted in the East with the Consolato
del Mare,^^ then dominant in the Levant. She found it so
valuable that she first proclaimed it — after being recast and
enlarged — in her own duchy of Guienne, the people of
which were engaged in the Atlantic coast trade. It was
promulgated at the Island of Oleron off the coast of Southwest
France. It was soon thereafter adopted in both France and
England, under the title of the Laws of Oleron. i' With some
changes the laws of Oleron are the maritime law of the civil-
ized world of to-day. Like the Consolato del Mare, which
inspired it, the Laws of 016ron are admittedly of Roman law
extraction.
' See Cod. civ. — lime du cenlenaire, vol. i, p. 28, Paris, 1904.
* In the year 864.
9 Ortolan, etc.. Id. § 634, p. 548.
10 Vigie, De la necessite d'une edition historique du code civil (in Code civil —
livre du cenlenaire, 1804-1904, vol. i, p. 29).
" Called also Roles d'Oleron, La Leye Olyreun, Rolls or Judgments, oj
Oleron. These are contained in Pardessus, Collection des lois maritimes
anterieures au XVIII Steele, 6 vols. (vol. i, pp. 283-354), Paris, 1828—45;
Travers-Twiss, The black book of the admiralty, 4 vols., London, 1871-6.
J2 See supra § 214.
^' The Laws of Oleron comprise 297 chapters.
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FRANCE 227
II. France from the 13th to the 16th
century: period of the introduction of Jus-
tinian Roman law into France via the
Bologna revival
Spread of the Bologna revival of Roman law to France ; § 237
founding of French law schools and universities. Of easy
access to Italy via the Mediterranean Sea, the thought and new
enlightenment of Italy from the 11th century onward quickly
spread into the southern part of modern France. Late in
the 12th and continuing in the 13th centuries the ante-Justin-
ian Roman law in France was gradually replaced by the
perfected Justinian law, owing to the spread of the scientific
study of pure Roman law from Bologna" to Montpellier, and
elsewhere in France.'^
The earliest law school in France is that of Montpellier.
This was founded in the 12th century by the Italian Placen-
tinus,!^ who had taught law at Mantua and Bologna. The
?tudy of Roman law was embraced at Paris with such extraor-
dinary fervor that Pope Honorius III in the year 1220 had
to issue a decree forbidding ecclesiastics from leaving holy
orders and betaking themselves to Paris for the study of law.
Paris being forbidden, law schools were then started at
Toulouse 1' and elsewhere. All the French law schools taught
Roman law on the basis of the texts of Justinian and according
to the method of the Glossators, 1* whose system was not dis-
placed in France until the 16th century rise of the historical
Humanist school of Alciat and Cujas."
"See supra §§211,212.
16 See supra §213.
1' See supra § 213. Placentinus was born c. 1120, and died 1192.
" One of the early professors of law at Toulouse was the Frenchman
Guillaume Durand, who was later successively rector of this university,
bishop of Mende, and governor of Romagna. He died at Rome in 1296.
Durand's Speculum, juris, which contained much Roman and Canon law,
appeared about 1271. Durand was the first to affirm the civil responsibility
of a notary for ignorance of the law. See Laborderie-Boulou, Recherches sur
les origines de la respohsabilite notariale, 36 Revue generale du droit, p. 393.
1' See supra § 210.
" See infra §§241, 242, 245. '
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228 THE MODERN REALM OF ROMAN LAW
It should not be overlooked that the French universities
were established in imitation of the organization of Bologna,
a principal feature of which wals a faculty engaged in teaching
law. During the 13th century universities were founded at
Toulouse,^'' Paris,^! Montpellier,^^ and during the 14th century
at Lyons, ^* Avignon,** Orleans,^* Cahors,^' Grenoble.^' This
movement did not lose force during the next two centuries : in
the 15th century universities were established at Poitiers, ^^
Valence,^' Nantes,'" Bourges,'^ Bordeaux,^^ and in the 16th
century the university of Rheims was founded.''
§238 Difference in law between the North and the South of
medieval France. Perhaps as early as the middle of the 9th
century,'* certainly from the middle of the 13th century
onward,'* there was a well marked geographical distinction of
law between the South and the North of France. The South-
em provinces had always preserved the Roman law, — the
' 'written law' ' '^ as it was called ; while the Northern provinces
had developed a "customary law"" of Teutonic origin. The
spread of the Bologna revival of Roman law to France did
not erase this medieval distinction of law in France, although
"" In 1229. The faculty of Civil and Canon Law at Toulouse had a con-
tinuous existence until 1789. See Gadave, Les documents sur I'hist. de
I'universite de Toulouse, vol. iii, Paris, 1910.
^ The Sorbonne was founded in 1253. But the tradition is that there
was a university at Paris as early as 792.
22 In 1289. " In 1339,
23 In 1300. 28 In x431.
21 In 1303. 29 In 1454.
25 In 1305. «» In 1460.
2« In 1332. 31 In 1463.
32 In 1472.
33 In 1548. The universities of Dijon and Nancy were established in
the 18th century, in 1722 and 1769 respectively. In the 19th century were
established the universities of Caen (in 1803) and Lille (in 1808) ; and about
the same time some defunct universities, such as Lyons, were re-established.
3* See supra § 235.
3* Vigie, Id. {Code civil — livre du centenaire, 1804-1904, vol. i, p. 29) ;
Hunter, Roman law*, p. 104; Provence was joined to France in the latter
half of the 13th century.
36 "Droit ecrit."
" "Droit coutumier."
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FRANCE 229
it helped to finally introduce considerable Roman law into the
customary provinces. One of the earliest and most important
monuments of the customary law is the Etablissements of
St. Louis (Louis IX^*) in the last half of the 13th century.'*
These frequently refer to the Roman law and translate it.^"
III. France from the 16th century to
the 19th century Code Napoleon: period of
diversity and partial codification of law
French made the language of the law courts in the i6th §239
century by Francis I. Continued diversity of law in France :
the droit coutumier and the droit ecrit. Prior to the reign of
Francis l"'^ the judicial language was still Latin ^2. ]-,y^ Francis
made the vernacular French the language of the law courts.^'
The law of France, however, still remained diverse; France
was divided into two parts, each under its own peculiar law.
In the Discours prBiminaire of the Code Napoleon com-
mission the three sources of the old French law of the monarchy,
from which they borrowed heavily, are stated as follows:
"France, formerly divided into the pays de droit coutumier
(country of customary law) and the pays de droit ecrit^ (country
of written law) , used to be governed partly by customs, and
partly by the written law : there were also some royal ordon-
nances (statutes) common to the entire kingdom. "^^ This
geographical division of old French law into a multitude of
provincial customary legal systems plus the written Roman
38 Reigned A.D. 1258-73.
'» Promulgated about 1270.
*" Great jurists of the world (vol. ii, Continental Legal History Series, p. 84,
Boston, 1914) ; Brissaud, Histoire du droit frangais, vol. i, p. 286, Paris,
1904.
" Reigned 1515-47.
*^ Amos, Roman law, p. 437.
" As to other legislation of Francis I, see Brissaud, Hist, du droit
frangais, vol. i, p. 377.
*^ This expression had finally replaced the earlier pays de loi romaine:
see Ortolan, etc.. History of Roman law, § 634, p. 549.
*^ See Code civil — liwe du centenaire, 1804-1904, vol. i, p. 28.
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230 THE MODERN REALM OF ROMAN LAW
law, lasted in France down to the Revolution of 1789 and the
Code Napoleon. ^^
The droit coutumier or the customs consisted of local laws
and usages going back to early Carolingian times, ^' that is to
Charlemagne and his successors. The chief French provinces
of the "customary" law were Normandy, Paris, Orleans, Bur-
gundy ; and the supreme appellate tribunal was the Parlement
of Paris.
The droit ecrit was peculiar to Southern France where
Roman law had very extensively survived — hence its name
"the written law. "*^ The chief provinces of the Roman or
"written" law were Provence, Guienne, Aquitaine, Dauphiny;
and the supreme appellate tribunal was the Parlement of
Bordeaux. Moreover, the "written" (Roman) law was often
favored to the prejudice of the "customary" law. These
differences of favor were: (1) a custom had to be alleged and
proved,^' but the "written" Roman law of Southern France
needed only to be alleged^"; (2) in any "customary" province
the rule was that if the "customary" law was silent as to any
point of law, then the "written" (Roman) law should be fol-
lowed.^"^
§240 Compilation of the droit coutumier by royal authority.
The first work of the rising French monarchy in the 14th and
15th centuries was to destroy feudalism, with the aid of the
common people or third estate and the cities. The several
parts of France became united; England was driven across
the Channel . Out of this task of political union arose attempts
to unify the laws of France and thus make the work of unifi-
cation complete. At the start it was endeavored by royal
« See infra § 254.
" Code civil — Uvre du cent., etc., vol. i, p. 29.
*' Southern France was originally termed "Pays de lot romaine," —
see supra this very section.
*" Amos, Roman law, p. 438.
^ Amos, Id.
51 Amos, Id. Furthermore the Coutume de Beauvosisis, published in
1283, "shows what a great influence Roman law exercised on the usages of
Northern France, and how in the hands of the judge the rules of the ancient
jurisprudence often triumphed when brought into conflict with Germanic
conceptions" : Great jurists of the world, etc., p. 84.
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FRANCE 231
authority to revise the "customary" law of Northern France
by correcting its glaring defects and softening its asperities.
During the 15th and 16th centuries compilation of the
custom law was the principal occupation of royalty and the
lawyers.*^ In the latter half of the period the influence of Cujas
and the Humanist school'^ is most marked in this work.
Furthermore in the 17th and 18th centuries the Kings of
France enacted legislation covering in a complete manner
many matters of a general character, which statutes were
made the uniform law of the entire kingdom.^* "Customary"
law thus received the seal of royal authority, became the law
of a large part of France, and was not disdained as a source
of the nation's law by the authors of the Code Napoleon.
The Renaissance, and rise of the Humanists in the i6th §241
century. Legal instruction in France during the 16th century
was marked with a scientific clearness and breadth unknown
since the days of the classical Roman jurisconsults.'^ This
is the era of the so-called Humanists, the French historical
school of jurisprudence. "The new method introduced in the
16th century in the science of Roman law is not the result of
an isolated rnanifestation, but is at one with the general revolt
of the human mind against the burdens of traditions and its
accompanying abuses. . . . Thus it has a close affinity
with the religious insurrection of Luther and Calvin, with the
philosophic doubt of Descartes, with the scepticism of Mon-
taigne, . . . with the general literary revolt in Europe,
with the efforts to reintroduce classical types of architecture.
. . . In a word, it indicates the passing away from medi-
evalism ... to modernism. "5^ And yet, although the
Humanists were highly philosophical and systematic in con-
sidering and studying Roman law in connection with Roman
literature and history, they still lacked the fundamental idea
*2 See Vigie, Id. (in Code civil — livre du cent., vol. i, pp. 31-3).
'2 See infra § 241.
'^ Code civil — livre du cent., vol. i, pp. 33-8, vol. ii, pp. 1078 et seq. ;
see infra § 251.
55 See supra §§ 74, 154 et seq.
^ Great jurists of the world (vol. ii, Cont. Legal Hist. Series, pp. 79-80,
"Alciati").
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232 THE MODERN REALM OF ROMAN LAW
(§241) of the modern historical school founded by Savigny — ■ namely
that law is the product of the entire history of a people, an
evolution by organic growth.*^
Influenced by the Renaissance, the Humanists aimed to
revive and introduce a better knowledge of Roman law for the
practical purpose of ameliorating French law and judicial
administration.^* The founder of the Humanist school of
jurisprudence Was the renowned Alciat.*' The greatest of all
the Humanists was the very famous Cujas,"'who lived during
the same century. Other renowned jurists of this French his-
torical school of jurisprudence who published editions of
Roman texts were Denis Godefroy,^i Jacques Godefroy,^^ Du
Tillet,«' the brothers Pithou,«^ and Bouchard'^ — all of the 16th
century.^"" There were also other renowned jurists who applied
Humanist methods to French law, such as Dumoulin," Dou-
aren ,^* Doneau ,^' Hotman , '"Baudouin, '^ Ranconnet, '^ Connan, ^'
" See infra "Germany," § 338.
^ See Flach, Cujas, les Glossateurs, et les Bartolistes (7 Nouvelle revue
historiquededroit, etc., p. 221; note 1). (1883.)
^ Great jurists of the world (voj. ii, Continental Legal History Series,
p. 87). But Pierre de I'Estoile (Pedrus Stella), professor of law at Orleans,
was an earlier pioneer of the Humanist line. See infra | 242.
'" Hunter, Roman law, p. 102. See infra § 245.
" See infra § 247.
6^ Died 1570, edited Ulpian's Regulae (see supra § 108).
6* Pierre (1539-96) who edited the Theodosian Novels, see supra § 128);
and Frangois (1543-1621), who edited Julian's Epitome of the Novels (see
supra § 139).
6* Edited Gaius' Institutes and Paulus' Sententiae (see supra §§86, 99).
^ Except J. Godefroy, who really belongs by his work to this century.
" See infra § 243.
«» See infra § 244.
" See infra § 247.
'" (1524^90). He was also known as "Hotomannus": see Great
jurists of the world, p. 104.
"Also known as "Balduinus" (1520-73): see Id. pp. 104-5. He
was professor of law at Bourges, Strassburg, Heidelberg, Paris, Angers.
He refused to defend the massacre of St. Bartholomew.
"> (D. 1559.)
" (1508-51.)
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FRANCE 233
Le Conte,'*and Faber'^ — all of the 16th century. France in
the 16th century with her galaxy of great jurists led the world
in jurisprudence.
Famous French jurists of the i6th century: (1) Alciat. §242
In the year 1518 the Italian Andrea Alciati,''^ whom the French
called Alciat, came to France, and was inaugurated professor
of law at Avignon. Later he was at various times professor at
the universities of Bourges, Pavia, Bologna, and Ferrara.^^
Alciat was the founder of the French Humanist School of
jurisprudence. He had many distinguished friends, among
whom were Erasmus, John Calvin, Montaigne, Sir Thomas
More, and Francis I.'*
Alciat's contemporary fame as a Romanist and a man of
learning was very great. "Not only," says Mommsen, "did
he reform jurisprudence but he also founded the science of
epigraphy." '' Possessed of a wide knowledge of Roman litera-
ture, Alciat also included in his consideration Canon Law,'"
French, German, and Italian law.'^ Nevertheless "times and
seasons," he says, "come and go; but the Roman system re-
mains in all its splendor and greatness."*^ Alciat's style of
writing is extremely clear and pleasing. He illustrated his
works^ not only from Roman literature and antiquities, but
'* (D. 1586.) He was also known as "Contius."
" (1540-1600.)
'* He was born in 1492 near Milan, and died in 1550 at Pavia. See
Great jurists of the world (vol. ii, Continental Legal History Series, "Alciati,"
pp. 58-82, 87).
" Girard, Manuel de droit romain^, p. 85. Alciat was one of a con-
temporary triumvirate of great jurists frequently mentioned together,
the other two being the Parisian Bud6 (Budaeus, 1468-1540), and the
German Zasius (1461-1534), professor at Freiburg.
'* Who induced him to become, in 1529, professor of law at Bourges.
" That is, of collecting and reading historical inscriptions. See Momm-
sen, Corpus Inscriptionum Latinarum, vol. v, pt. 2 (Berlin, 1877), pp. 624
et seq.
'° Alciat came near to becoming a cardinal of the church, Id. p. 75.
*' For instance, his Responsa have some comparisons of Roman and
Italian law.
^'^ Great jurists of the world, etc., p. 80.
''Among his works are the following: Paradoxa, Praetermissa, Parerga,
commentaries on the Digest and Code of Justinian, De praesumptionibus,
De ponderibus et mensuris, De verb, signijicatione, and Responsa.
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234 THE MODERN REALM OF ROMAN LAW
also from medieval and contemporary history. "He was per-
haps the first of lawyers, in whose writings we find purity and
elegance of diction . " ** Two of Alciat's pupils were also famous
jurists, — Le Conte^^and Douaren.^^both of whom later were
professors of law at Bourges.
§ 243 (2) Dumoulin. The Huguenot Charles Dumoulin *' was
professor of law at Strassburg and Besangon. In his methods
he was somewhat of a Bartolist.** Dumoulin was the author
of important works on the "customary" law of Paris and the
feudal law. He strongly advocated the unification of French
law, and by his systematic commentary on the custom of Paris
he prepared the ground for Pothier and the Code Napoleon. ''
By his contemporaries Dumoulin was called the "French
Papinian."""
§244 (3) Douaren. The Huguenot Frangois Douaren'i (Duar-
enus)^^ was a Breton jurist of the first rank, who has now fallen
into obscurity. He began to teach law at Paris, and later
became professor at Bourges. Douaren was a thorough
Humanist. He was also a poignant critic of the Bartolists,''
and contributed much to purge jurisprudence from barbarous
importations. Douaren was a rival of the great Cujas,'^
and manifested much hostility to him. Douaren's notable
work De jure accrescendi, published in 1555, was of great
^ Great jurists of the world, p. 80.
*^See supra §241.
'^ See infra this very section. But Jobbe-Duval, Frangois Le Douaren
(in Melanges P. F. Girard, vol. i, pp. 573-621) declares that Douaren was
not Alciat's pupil. Cf. Great jurists of the world, p. 103.
" Born in 1500 at Paris where he died in 1566. See Great jurists of the
world, pp. 105-6.
*' See supra § 216.
'"See infra §§250, 254.
^0 Great jurists of the world, pp. 89, 105. See also supra § 98.
'1 Frangois Le Douaren was born 1509 at Moncontour, and died at
Bourges, 1559. See Jobbe-Duval, Douaren (in Melanges, P. F. Girard,
vol. i, pp. 573-621, Paris, 1912) ; Great jurists of the world, p. 103.
'2 It was still the fashion in the 16th century, owing to the prevalence
of Latin as the literary and scientific language, for jurists to give them-
selves Latin names. See infra §§241, 245-8.
'' See supra § 216.
^ See infra § 245.
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FRANCE 235
service to his pupil Doneau,^^ later a famous professor, who
owed much to his master.
(4) Cujas. The greatest of the Humanists was Jacques §245
Cujas (Jacobus Cujacius).^' He began to teach Roman law at
his native Toulouse a dozen years or so after Alciat '' began his
work at Bourges. Cujas was professor of law for nearly forty
years, teaching successively at Toulouse, Cahors, Bourges,
Valence, Turin, and again at Bpurges. Cujas gave tremendous
impulse to the historical method of studying law. He struck
out a new path for the critical and historical treatment of
Roman law,'^ making a study of original manuscripts of the
Roman law and treating the texts philologically.^' Cujas
"has explained ex professo most of the Roman law, and there
are scarcely any points which he has not elucidated. "i""
The volume of Cujas' works'"^ is prodigious: everything of
his writings obtainable has been published although he forbade
at his death any of his works, save those already printed, to be
published. ^"^ Cujas had a large law library, among the books
of which were 500 Roman law MSS.^"' His style is very clear
and pointed. His contemporary renown was so great that in
the German law schools it was customary to raise one's hat
when Cujas' name was mentioned. '^"^ Among Cujas' pupils
were the brothers Pithou.'"^
°* § See infra § 246. Doneau's own Commentary on the Civil law is
modeled upon Douaren's work.
'* He was born at Toulouse in 1522, and died at Bourges in 1590. See
Great jurists of the world, "Cuias," pp. 83-108; Berriat Saint-Prix, Hist.
du droit rom., suivie de I'histoire de Cujas, pp. 373-454 (1821).
" See supra § 242.
°* His Observationes et emendationes, in 28 books, are an exegetical study
of Roman law sources.
"' Among other tasks Cujas edited the works of Ulpian and Papinian,
the Theodosian Code, and the Basilica. See supra §§98, 108, 127, 176.
"" Colquhoun, Roman law, § 175.
1™ But in his works there are no comparisons of Roman and French law.
"2 Colquhoun, Id.
'"' Hunter, Roman law*, p. 103.
iM Pasquier, Recherches de la France, vii, 8, ix, 29; Hunter, Roman law*,
p. 103.
"5 See supra § 241.
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236 THE MODERN REALM OF ROMAN LAW
§246 (5) Doneau. A colleague of Cujas at Bourges was his
rival Hugues Doneau (Donellus).'"^ In 1572 occurred the awful
St. Bartholomew Massacre. This seriously interrupted Roman
law study in France. Surviving Huguenots who were able
fled from their native land. Among these was Doneau, who
escaped to Germany where he became professor at Heidelberg.
Later he taught law at the Dutch university of Leyden.
Doneau was a brilliant and learned jurist, distinguished as a
"systematizer" of legal conceptions — a field not cultivated by
Cujas. Doneau's famous work, the Commentarii juris civilis,
remained for centuries the best methodical exposition of
Roman law.'"'
§ 247 (6) Denis and Jacques Godefroy. Owing to the Huguenot
persecution Denis Godefroy (Dionysius Gothofredus) '"' went
to Geneva, and later to Strassburg. He originated the term
"Corpus Juris Civilis" to collectively refer to the law books of
Justinian, prefixing this phrase to his famous edition of the
codification of Justinian.' "' His son Jacques Godefroy (Jacobus
Gothofredus'^") was the author of a very excellent commentary
on the Theodosian Code — ■ the standard work on the subject
for over two centuries until Mommsen's edition of 1905.
§ 248 (7) Begat, Brisson, and Gaultier. (a) B6gat"i was a Bur-
gundian Romanist. He was a Bartolist and a famous lawyer.
At one time he was president of the parlement of Dijon.
In his works he cites Accursius, Bartolus, Baldus, and Cujas.
(b) Barnabe Brisson (Barnabus Brissonius '") was a minister of
Henry IIP^^ and at one time advocate-general of the Parle-
"^ Born at Chalon-sur-Sa6ne in 1527, died at Altdorf near Nuremburg
in 1591. See Great jurists of the world, pp. 103-4; Girard, Manuel de
droit romain^, p. 87.
1°' Girard, Manuel de droit romain^, p. 87.
i"* Born 1549, died 1622. See Girard, Manuel de droit romain^, p. 88.
""See supra §135; Smith, Dictionary of Greek and Roman antiquities^,
vol. i, p. 651.
"» Born 1587, died 1652. See Girard, Manuel ', etc., p. 88.
1" Jean Begat was born 1523, and died 1572. See Viard, Un romaniste
bourgignon du XVI siicle (\n£,tudes, etc., off. d, P. F. Girard, vol. i, pp. 435-
40).
"2 Born 1531 and died 1591. His death was as tragic as that of his
sovereign. See Brissaud, Hist, du droit frangais, vol. i, p. 380.
"3 Reigned 1574r-89.
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FRANCE 237
ment of Paris. Brisson was an eminent lexicographer. His
celebrated Roman law dictionary "*. has never been equaled,
(c) Gaul tier 11^ was a professor of law for nineteen years at '
Poitiers. He was the author of an interesting elementary
manual for students known as the Triboniani genius sive de
arte juris.
Domat, the greatest French jurist of the 17th century. §249
The study of Roman law in the 17th and the 18th centuries
was made auxiliary to the improvement of French law. Jean
Domat"^ was an intimate friend of the philosopher Pascal.
Domat wrote an elaborate and very systematic treatise
entitled The civil laws in their natural order, — perhaps the
most important work ever produced in France. Domat is
called the "great jurist of monarchical France, "^^^ and hisLois
civiles dans leur ordre naturel have been regarded as containing
the antecedents of the Code Napoleon of 1804.^^* Domat's
famous treatise or its equivalent as well as the Institutes of
Justinian are among the subjects required for admission to
the Louisiana Bar.^^'
Pothier, the greatest French jurist of the iSth century. §250
Robert Joseph Pothier'^" was appointed in 1749 professor of law
at Orleans. But he had already become in 1720 judge of the
Orleans presidial court, which post he held for over fifty years,
the same magistracy being filled by his father and grandfather.
Following Domat, '^' Pothier arranged the Roman law scienti-
fically in his Pandectae Justinianae in novum ordinem digestae,
which was published 1748-52 after twelve years' toil. His
Pandects were of great assistance to the framers of the
"' De verborum, quae ad jus civile pertinent, significatione, etc. The best
edition is that of Heinnecius, Magdeburg, 1743. See also supra § 142.
"5 Frangois Gaultier was born 1563, died 1614. See Testaud, Le Tri-
boniani genius, etc. (in £tudes d'hist. off. & P. F. Girard, vol. i, pp. 301-53,
Paris, 1913) ; also supra § 135.
"5 Born at Clermont in Auvergne 1625, died at Paris, 1696.
11' Code civil — livre du centenaire 1804^1904, vol. i, p. xix, Paris, 1904.
lis Id.
n' West Publishing Co., Rules for admission to the Bar, p. 62, St. Paul,
1913.
i^" He was born 1699 at Orleans, and died there in 1772. See Great
jurists of the world, pp. 447-76.
"1 See supra § 249.
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238 THE MODERN REALM OF ROMAN LAW
Code Napoleon. Pothier wrote also many books on the
"customary" law of France. The present French Civil Code
contains more of the spirit of Pothier than of Rousseau/^^ —
the works of Pothier are often almost textually embodied in
the code: for instance book iii of the code on obligations is
greatly indebted to Pothier's very famous treatise on the same
subject. "^^^ This work of Pothier is to-day a required subject
for admission to the Louisiana Bar.'^^
§251 Attempts to codify French law; ordinances or partial
codifications of Louis XIV and Louis XV. The Kings of
France did not limit themselves to merely compiling the
"customary law"; they finally began the work of creating
uniformity of law by means of ordinances {ordonnances) }'^''
It was Louis XI /^' who, in the latter half of the 15th century,
conceived the project "that there should prevail in this king-
dom but one custom . . . and that all the customs should
be put in one book, written in French, to get rid of the craft
and oppression of cunning lawyers."'^' The royal ordonnances
were at first feeble, but, with the increasing extent of the royal
power, they grew stronger, and finally became very authorita-
tive and thorough. During the 16th century controverted
points of law were settled by royal ordinances; in the 17th
and 18th centuries matters of a general nature were revised,
fixed, and settled by royal ordinances, ^^' especially those of
Louis XIV 128 and Louis XV.^'"
'2^ Code civil, etc., vol. i, p. xx.
"3 Id. vol. i, p. 39.
i« West Pub. Co., Id.
125 See supra § 239.
126 Reigned 1461-83.
12' Philippe de Commines, Memoires, bk. vi, ch. 6 ; Code civil — livre du
cent; vol. ii, p. 1077.
'^^ Code civil — livre du cent., vol. i, pp. 17, 33 et seq., see also vol. ii,
pp. 1078 et seq. ; Brissaud, Hist, du droit frangais, vol. i, pp. 374 et seq.
Of the ordinances prior to Louis XIV, mention should be made of the
Ordonnance de Villers-Cotterets of Francis I (1539), the ordinances due to
Michel de L'Hospital (1560-67), the Ordonnance of Blois (1579), the
ordinances of Henry IV (including the Edict of Nantes and the Ordonnance
of 1629), and the "Code of Henry III," which was prepared by the jurist
Brisson (see supra §248).
129 Reigned 1643-1715. "» Reigned 1715-74.
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FRANCE 239
The ordonnances of the two Louis are of great legal import- (§251)
ance and are the work of notable ministers, — ^ Lamoignon ^'^
and Colbert 1'^ under Louis XIV, and Aguesseau^'^ under Louis
XV. The program of these ministers was to revise and co-
ordinate the various branches of French law. But it was only
partially carried out: had it been completed, France would
have been endowed with a uniform, codified law by the royal
authority. Colbert, the great minister of Louis XIV, had the
vision of codifying the law of France^'^ ; and through his sug-
gestion the King himself appointed a commission of Council-
ors of State, over which the King presided^'^ ; and this com-
mission left so durable a souvenir of its work that it was of the
greatest service nearly a century later in assisting the Napol-
eonic Council of State in its labors of codification of 1801-
04.136
The partial codifications of French law made under the
directions of Louis XIV and XV are very important juridical
works. Louis XIV promulgated ordinances^'"' on civil pro-
cedure,"* criminal procedure,"^ waters and forests,"" com-
merce,"^ maritime law,"^ and slavery in the colonies."' The
1'' (1617-77). He became president of the Parlement of Paris in 1658.
1=2 (1619-83). The greatest statesman of the reign of Louis XIV.
"'Henri Frangois d'Aguesseau (1668-1751), chancellor of France from
1717.
'^ Aguesseau also tried to realize this project: Brissaud, Hist, du droit
francais, vol. i, p. 385.
"^ Code civil — livre du cent., 1804^1904, vol. i, p. xviii.
"8 Id.
^*^ See Brissaud, Hist, du droit frangais, vol. i, pp. 380-85.
12* In 1667. The work largely of Lamoignon and Pussort, the latter
being employed by Colbert.
12^ In 1670. The combined work of Lamoignon and Pussort.
"» In 1669.
'* In 1673. This is often called the Code Marchand or Code Salary,
because one of its principal framers was a Parisian merchant, Jules Savary.
1^ In 1681. It is divided into five books. It is the first of the Modern
Codes. Colbert, before this ordinance was drafted, investigated both the
French and foreign maritime law, including the Dutch. See also infra
§257 (note on Code of Commerce).
"' 1685. There are other ordinances which are not codes; revocation
of the Edict of Nantes (1685), ordinances as to the administration of cities
(1683, 1692, 1702); Edict of 1659, Tariffs of 1664, 1667.
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240 THE MODERN REALM OF ROMAN LAW
(§251) present French Code of Commerce '^^ is arranged almost in the
same order as Louis XIV's ordonnance of 1673 on commerce.
Louis XV promulgated ordinances"^ on gifts, "^ wills,'*' and
substitutions in trusts."^ As Sorel truly says,"* the present
French Civil Code contains "more of the essence of the
ordonnances of the Kings of France, and particularly the most
recent ones of Aguesseau on gifts and wills, than of the social
contract."
The commercial and maritime law of the world was brought
to perfection by the ordinances of Louis XIV. His statutes
are true codes. They embody the substance of the Consolato
del Mare,^^* Laws of Oleron,'^! and Laws of Wisby.i^^ The com-
mercial and maritime law of Louis XIV has been adopted by
nearly all Europe. It was so just and wise that it everywhere
received universal acceptance. All the commercial, maritime,
and admiralty law of to-day is based largely on these Ordon-
nances of Louis XIV; the courts to-day apply substantially
the same principles and procedure. Much of the substance
of these ordonnances was introduced into English law by Lord
Mansfield during the 18th century .^^*
The ordinances of Louis XIV and XV exerted also as codes
a great influence over the rest of Europe, for France was the
ascendant European power of late medieval and early modern
i"See infra §257.
i^AU the work of Aguesseau. See Brissaud, Hist, du droit frangais,
vol. i, pp. 385-7. ,
"« In 1731.
"' In 1733.
"* In 1747. To these should be'added the ordonnances of 1737, 1749,
and 1771 (the last not the work of Aguesseau, but like his in spirit).
"' Code Civil — livre du cent., vol. i, p. xx.
160 See supra § 214.
«i See supra § 236. The ordinance of Louis XIV in 1681 was influenced
considerably by the "Guide of the sea (Guidon de la mer)," a 16th century
treatise on maritime law written at Rouen by an unknown author: see
Brissaud, Hist, du droit frangais, vol. i, p. 316.
«2 See infra "Germany," § 320.
i"See infra "England." § 397. This French law of the 17th century
is reflected also in the Spanish Ordinances of Bilbao: see infra "Spain,"
§ 301.
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FRANCE 241
times. These ordonnances were reflected in Germany ^^*:
Bavaria partially codified its law in 1754 ; and Prussia did like-
wise in 1794, although the project was advanced during the
lifetime of Frederick the Great. ^^^ Undoubtedly the influence
of these French partial codifications of the monarchy pene-
trated Austria, and led the Empress Maria Theresa in 1754
to advance a plan to codify Austrian law.'^* Sweden codified
her law in 1734.i"
The French philosophers of the Natural Law. The leaders § 252
of the so-called school of the philosophers of the "Natural
Law" were F6nelon, Montesquieu, Voltaire, Rousseau, and
Mirabeau. The one immutable law of nature whereby all
men are born free and equal, the inalienable rights of life,
liberty, and the pursuit of happiness, the social contract of
liberty, fraternity, and equality, constitute the teachings and
legacy of this group of clerical and lay philosophers, which
arose while the monarchy was at its zenith under Louis XIV, —
"whom Fenelon treated more severely than the disciples of
Voltaire did Louis XV. " ^^^ The tenets of these thinkers spread
over all Europe and America, and are still very much alive.
Whence came this theory of theirs as to the universal Law of
Nature, and the natural inalienable rights of man? From the
medieval scholastics and the Canon Law, into which had
descended the philosophical speculations of the Roman jurists
due to the culture-influence of Greece. '°' Lord Acton did not err
when he derived the chief principles of the French Revolution
from the Canon Law, and he shows clearly the descent of liberal
opinion from St. Thomas Aquinas down through Jurieu and
Domat^^" to the eve of the Revolution."'
Overthrow of the monarchy: the French Revolution of §253
1789. The old regime failed in its purpose to give all France
''* See infra "Germany," § 330.
'** See infra id.
156 See supra § 231.
"' See infra "Sweden," § 275.
158 See Lord Acton, Lectures on the French Revolution.
15' See supra § 64.
IS" See supra § 249.
1*1 Lord Acton, Lectures on the French Revolution, "The Heralds of the
Revolution."
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242 THE MODERN REALM OF ROMAN LAW
one uniform law; with the downfall of the monarchy and the
death by the guillotine of Louis XVI, the Republic took up
the task Already had preliminary measures been taken before
the fall of the Bourbon dynasty, — in 1778 Louis XVI had
promulgated an edict recognizing the marriages of Protestants
(proscribed by Louis XIV) and also civil marriage"^; but two
years later, on July 14, 1789, came the capture of the Bastile.
It was too late to save the monarchy. The successful outcome
of the American Revolution swept away the French monarchy
from its ancient moorings into shipwreck. It was seen in
France that the new United States were founded on principles
established by the English Revolution of 1688: Maultrot, the
best French ecclesiastical lawyer of the day, explained in
1790 "how the Canon Law approves of the principles of 1688
and rejects the invention of Divine Right." '*' And at the out-
set the great debt to the Canonists was acknowledged '"" ; in
the drafting of the new French Constitution the commission
for dealing with the clergy had thirty members, eighteen of
whom were either Canon lawyers ^^^ or ecclesiastics. But this
moderation of the early days of the Revolution did not long
continue — unhappily for France.
IV. Modern French law: period of uni-
formity and complete codification of law
§ 254 Project of a Civil Code for all France, and its realization
in 1804 by Napoleon. The gibe of Voltaire that in traveling
through France one changed laws oftener than he changed
horses'*^ was only too true of the diversified law of France prior
to the Code Napoleon. Think of the cumbersome workings of
justice, the lack of certainty as to private rights, and the
enormous practical inconvenience caused by the existence in
1^2 Brissaud, Hist, du droit frangais, vol. i, p. 387.
'«' See Lord Acton, Lectures on the French Revolution.
1" See supra § 252.
1^' There were eight of these. /
"" See Saunders, Revised civil code of Louisiana, New Orleans, 1909,
p. xxix.
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FRANCE 243
one country of over 300 different kinds or systems of custom
law, — such was France prior to the Revolution of 1789.
On September 2, 1791, the National Assembly unanimously
decreed the following resolution, placed in the articles of the
constitution: "There. shall be made a Code of the Civil Laws
common to the entire kingdom." "^^^ But the progress of the
work was retarded, owing to the confusion and turbulence of
these times of the early Republic and the Reign of Terror.
Down to the end of 1799 the French nation impatiently waited
for the long promised code. In 1799 the Consulate became the
form of government of France with Napoleon Bonaparte for
its First Consul. Bonaparte then took hold of this work of
unifying the law of France ; and its accomplishment is due to
his energy and genius. A first commission was appointed in
1801 to draft the code. These were Tronchet, Portalis, Bigot-
Preameneu, and Malleville. Their work was submitted to
the legislative section of the Council of State. When once the
text was established, it was discussed by the entire Council of
State at the Tuileries."^^*
On March 21, 1804,"^^^ the new Civil Code was promulgated as
the Code civil des frangais. Not quite two months later on,
May 18th, the Empire was established, and Napoleon was pro-
claimed Emperor. Consequently the new Civil Code was soon
named the Code Napoleon."" The code later passed through
successive editions, that of 1816 being substantially in force
in France to-day.
Napoleon's share in the work. Too much credit cannot be § 255
given to Napoleon Bonaparte for his share in this great work
of codification. Out of more than 200 sessions of the Council
^" Code civil — livr£ du cent., vol. i, p. xxi.
^^^ Code civil — Hvre du cent., vol. i, p. xxv. Lord Broughton, in his
Recollections of a long life (1909) says that the famous Scotch jurist James
Erskine once told him that he (Erskine) helped to draw up a part of the
Code Napoleon.
i«9 On the 30th Vent6se, year XII.
"oOn Sept. 3, 1807. In 1818 its old name was restored. In 1852,
March 27, it received its old name of Code Napoleon, — which name has
never been officially displaced; but since Sept. 4, 1870, the laws quote it
as the Code civil. See Walton, Scope and interpretation of the civil code,
p. 23, note 2.
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244 THE MODERN REALM OF ROMAN LAW
(§255) of State to discuss the text of the Civil Code, fifty-seven ses-
sions were presided over by the First Consul, '^'^ who was not
contented to be merely a listener as Louis XIV had been,'^'^
but took a very active part in the discussion, guiding and
directing it."-" An eyewitness ^''^ says that Napoleon "was
never inferior to any member of the Council in regard to it ;
he equaled sometimes the most skillful of them by his facility
to seize the nub of questions, by the justness of his ideas, and
by the force of his reasonings. He often surpassed them by
the turn of his phrases and the originality of his state-
ments. "''«
Napoleon constantly affirmed that law rests upon ethics.
He would ask: "Is that just?" "Is it beneficial?" He kept
returning to these two questions. '^'^ If the articles of the Civil
Code "are open so easily to all the practical realities of life,
are adapted with so great elasticity to the conditions of custom,
it is due in great part to the intervention of the First Consul,
to his insatiable desire for clearness, to his genius essentially
realistic and concrete. In obliging the Councilors to expound,
explain, and justify before him their propositions ... he
brought them to realize their ideas, and to order into precise
definiteness the ideas of the Revolution.""^
Napoleon was in blood and instinct a real successor of the
Caesars; only just before he put an end to the Roman Empire
of the West "^ revived by Charlemagne 1000 years earlier,'"
Napoleon remodeled Roman-French jurisprudence and pub-
lished the first great code of modern Roman law promulgated
since Justinian's 6th century Corpus Juris. By this act the
grip of Roman law upon the modem world was forever fast-
ened. The fame of Napoleon will last the longest as a legis-
1" Code civil — livre du cent., vol. i, p. xxv.
"^ See supra § 251.
1'^ Code civil^ etc., vol. i, p. xxv.
^'* His name was Thibaudeau, -^ Id.
"* Id. pp. xxv, xxvi.
•™ Id. p. xxvii.
^''^ Code civil — livre du cent., 1804-1904 ("Introduction" by M. Sorel,
vol. i, p. xxvii.).
178 The Holy Roman Empire terminated in the year 1806.
"9 See supra § 208.
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FRANCE 245
lator; the Justinian of France whose influence through his
codification has passed over all Europe into Asia and into the
new world. Said Napoleon at Saint Helena: "My glory is
not from having won forty battles. . . . It is that which
nothing will efface, that which will live forever, it is my Civil
Code, it is the proceedings of the Council of State." '^°
Character and scope of the Code Napoleon. The French §256
Civil Code is virtually a republication 1300 years, after Jus-
tinian, of Roman law adapted to the life and times of the French
people. By it a "compromise between the Roman and
'customary' law is operated, and the present is bound to the
past without a shock. "^^^ SaysThiers: the Code Civil is "the
code of the modern civilized world" ; it consecrates "the best
form of the social State." ^^^ The Code Civil is not perfect, it
has not anticipated everything, and doubtless in the course of
time it too will suffer a general revision; but its enduring
principles of right and justice are forever preserved. In spite
of Savigny's famous stricture that "Whatever good" French
jurists "have, they have in spite of the Code Civil, and not
thanks to it,""' the German Code of 1900,"* that last great
codification of modem times and in Savigny's own country, is,
as Professor Saleilles truly says, "the revenge of the French
Civil Code against the objections brought against it by the
founders of the historical school.""*
The French Private law corresponds to the Private law of
the Romans ; it regulates the relations of individuals ; with it
is contrasted Public law. But the expression "civil law" has,
in France and other Continental European States, a narrower
and more frequent use : it means that part of the Private law
of a country which is applied to the non-commercial relations
between individuals: for commercial rights and duties, see
1*0 Code civil — livre du cent., p. xxiv.
I'l Code civil — livre du cent., vol. i, p. xxv.
1*2 Hist, du consulat et de V empire, vol. iii, pp. 344-5; vol. iv, p. 726;
vol. XX, p. 225; Code civil, etc., vol. i, p. 77.
1*' Code civil — livre du cent., vol. i, p. 122.
i«* See infra "Germany," 344.
1** Code civil — livre du cent., vol. i, p. 97. The historical school referred
to here is that of the 19th century which was founded by Savigny : see infra
"Germany," §338.
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246 THE MODERN REALM OF ROMAN LAW
the commercial code or law. Moreover the law of civil or
non-criminal procedure is not contained in the Civil Code,
but in a separate code — the Code of Civil Procedure.
§ 257 Other parts of the Napoleonic codification. In addition to
the Civil Code there are in France other groups of codes, all
of which form a part of the grand Napoleonic codification.
The codes on Private law supplementary ^^^ to the Code Civil
are as follows: (1) the Code of Civil Procedure of 1806,
which regulates the organization and proceedings of courts
exercising jurisdiction of civil matters; and (2) the Code of
Commerce of 1808,' '''which regulates commercial transactions
as such, the laws of business, bankruptcy, and the courts
dealing with these subjects.^**
The criminal law of France was also codified under the direc-
tion of Napoleon. In 1811 were promulgated the Code of
Criminal Instruction^*" and the Penal Code,"" both of which
professedly incorporate much Roman law.^'"^ The French codes
of criminal law have been imitated by all the continental
European states. These later codes, especially the Italian
penal code, have improved on the French. In 1827 was
promulgated the Forestry Code, which, although not framed
in the Napoleonic era, belongs to it in spirit. The Code
forestier contains much of Louis XIV's ordonnance of 1669.^"^
§258 Influence of the Napoleonic codification on the world.
The 19th century French codes have been borrowed, adapted,
''° See supra § 256.
1*' It was revised in 1841.
' '** The Code of Commerce was framed at 61 sittings (4 of which were
presided over by Napoleon) between Nov. 4, 1806 and Aug. 26, 1807. It
was put into effect Jan. 1, 1808, at which time the old French commercial
laws were repealed. But there are commercial matters which the Code
of Commerce does not cover: as to these the French laws of the monarchy
(prior to 1789) still govern, — for instance a part of Louis XIV's ordonnance
of 1681 as to ships (see supra § 251), and the regulations of Aug. 30, 1720
and March 26, 1781 as to stockbrokers.
'»' Framed in 1808.
™ Framed in 1809.
'" Although both codes were framed by expert jurists, Napoleon did
much to guide and even occasionally revised their labors: see 7 Encycl.
Britan.^^ p. 461.
"^ See supra §245; Brissaud, Hist, du droit frangais , vol. i, p. 384.
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FRANCE 247
or consulted by all other nations and States throughout the (§258)
world ^^' which have since tried to improve their law. The in-
fluence of the French codes on Europe alone has been incalcul-
able. Says the jurist Bluntschli: "This is a fact which is the
justification of the French Code. . . . The conquered
nations (conquered by Napoleon) kept the French laws as a
benefit, — a remarkable thing." Their old law was wiped
out as soon as possible. And the Civil Code of France has
become the inheritance of almost all the rest of Europe.
Belgium,"* Holland,"^ Luxemburg,"^ Portugal,"? Spain,"*
Monaco,"^ Italy,^'"' Malta,^" Greecc^o^ the Balkan States,2»3
and Mohammedan Turkey ^"^ have copied or adapted or used
as a model the French Civil and other Codes. ^"^ Moreover,
Denmark,^"^ Norway,^"' Sweden,^"' Russia, ^"^ and Austria-
''■^ The vast colonial Empire of France — the next to the largest in the
world — may some day be a part of the modern realm of Roman law in
its French dress.
"< See infra "Belgium," § 265.
"5 See infra "Holland," § 267.
™ The Grand Duchy of Luxemburg, once a part of France, still lives
under the Code Napoleon which it received while French territory. See
Ruppert, Modifications apportees au Code Civil dans . . . Luxem-
bourg (in Code civil — livre du cent., etc., vol. ii, pp. 791-803). See also
Commercial laws of the world "Luxemburg," London, 1911 et seq.
"' See infra "Portugal," § 277.
"8 See infra "Spain," §305.
™ The Principality of Monaco has a Civil Code (of 1818) almost all
of which is copied from the French Code, the old law of Monaco during
the Napoleonic regime. See Rolland, Le Code civil de 1804 dans Monaco
(in Code civil — livre du cent., etc., vol. ii, pp. 807-16). See also Com-
mercial laws of the world, "Monaco."
™ See supra § 224.
™i See supra § 193.
^"^ See supra § 194.
^"^ See supra § 195.
» See supra §§ 196 and 197 (Cyprus).
™ To the list of European States given above in the text should be
added many minor German states and the French cantons of Switzerland,
the state or cantonal codes of which were framed in imitation of the French,
but which are now abrogated on account of the German Civil Code of
1900 for all Germany and the Swiss Civil Code of 1912 for all Switzerland.
^""See infra "Scandinavian States," §275.
^^ Id. »« Id. » See supra § 199.
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248 THE MODERN REALM OF ROMAN LAW
Hungary 2" show traces of the all-pervading European
influence of the 19th century codification of Roman-French
law.211
The influence of the Napoleonic codification has passed into
Asia and Africa. The Egyptian codes ^^^ imitate the French.
In the islands of Mauritius ^^^ and Seychelles ^^ are found
to-day the Codes Napoleon. The present Japanese code^^^
contains a large percentage of Roman-French law.
The Napoleonic codification has traveled to America.
The French colony of Martinique enjoys, the codes of the
mother country. The Canadian Province of Quebec,^'* the
American state of Louisiana,^'^ all the States of Central and
South America,^^' have codes modeled on and indebted to the
French codes.
11. FRENCH LAW PARTS OF THE BRITISH EMPIRE
§259 French law still employed in parts of the British Empire.
Great Britain — perhaps owing to the present condition of her
native English jurisprudence, which is so difficult to quickly
ascertain and apprehend because of its diffusely voluminous
uncodified state- — -has never upset in toto the older law of
colonial peoples possessed of a jurisprudence derived from
some other European nation. The influence of French law a'hd
the Napoleonic codification in the British Empire has been
very large. Certain British possessions having an aggregate
area three times that of the British Isles are to-day guided by
Roman-French law. The British possessions still employing
»» See supra § 232.
2" Enormous has been the influence upon the rest of the world of the
writings of the 19th century and modern French Romanists. The works
of Ortolan, Cuq, Girard, Saleilles, Esmein, Jobbe-Duval, May (all pro-
fessors of law at Paris), Appleton (Lyons), and Petit (Poitiers) are known
far beyond the confines of France.
212 See supra § 191.
213 See infra "French law parts of the British Empire," § 261.
2" Id.
21' See infra "Japan."
21" See infra "French law parts of the British Empire," § 262.
2" See infra "French law parts of the United States," §§263-4.
218 See infra "Brazil" (§278) and "Spanish America" (§308).
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FRENCH LAW IN BRITISH EMPIRE 249
French law are: the European Channel Islands in Europe, the
islands of Mauritius and Seychelles in the Indian Ocean, the
Canadian province of Quebec, and the West Indian island of
St. Lucia.
The Channel Islands: Jersey, Guernsey, Alderney, Sark, §260
Herm, and Jethou. Lying nearer to France than to England,
the Channel Islands are the remnant of England's ancient
French possessions. These islands, originally part of the
Duchy of Norrnandy,! are still governed by French law — not,
however, the 19th century Codes Napoleon^ but the ancient
customary law {droit coutumier) of Normandy,' except as
modified by English legislation.^
Mauritius and Seychelles. East of the coast of Madagascar § 261
in the Indian Ocean lies the island of Mauritius, formerly called
lie de France. As its old name signifies, it was once a French
possession. But since 1814 it has been an English crown
colony, and is now governed by a governor-general and coun-
cil.^ When the English acquired dominion, they restored the
old Dutch name "Mauritius," which had been given' to the
island by its Dutch discoverers in honor of Maurice of Nassau,
their renowned military Stadtholder, the son of the famous
William the Silent, Prince of Orange.
When Mauritius was ceded to England, the island by a
treaty provision retained its old French laws as set forth in the
Napoleonic Codes. And to-day the French Civil Code, Code
of Commerce and Code of Civil Procedure are still in force in
Mauritius and Seychelles, except as altered by colonial ordi-
nances. The languages of the islands are French and English.
From this bilingual situation is due the best modern English
translation of the French Civil Code. In order to make it
^ Although driven in the 15th century from the Continent (Calais
excepted, which remained English until 1558), England never lost the
Channel Islands.
2 See supra §§254, 257.
' See supra 1 239.
^ For the benefit of Jersey and other Channel Islands students, the
custom of Normandy is still taught to-day at the French university of
Caen, the ancient capital of the Duchy of Normandy. i
" An executive council of five members, and a legislative council of 27.
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250 THE MODERN REALM OF ROMAN LAW
comprehensible to English officials, .Chief Justice Wright of
Seychelles^ translated in 1908 the French Civil Code.
§262 Quebec. The central province of old New France in
America was Quebec or Canada. From Quebec in the 18th
century was ruled the vast territory of the Great Lakes and
the region embraced by the Illinois,Wabash, and Missouri rivers
down the Mississippi to Louisiana and the Gulf of Mexico.
The French colonial law in general was the "custom" of Paris. ^
In 1763 France lost Canada to England. But this change did
not affect the common law of Quebec, which remained
French.
In i866 a Civil Code was promulgated for Quebec. This
code is modeled quite closely on the Code Napoleon.* But
the Quebec code differs from that of France in some respects:
book iv of the Quebec code contains much commercial law
which in France is separately codified in the Code of Com-
merce'; and in the Quebec code divorce is not recognized.
The Quebec code, but not the French Code Napoleon, has the
special titles of corporations and emphyteusis. Quebec has
also a Code of Civil Procedure promulgated in 1876. The Que-
bec codes are written in both French and English, — one of
their valuable features to students of comparative law. For
this reason alone, no codification of American law can be
successful which overlooks the Quebec codes.
12. FRENCH LAW PARTS OF THE UNITED STATES
§263 Louisiana. In 1682 La Salle sailed to the mouth of the
Mississippi river, and added Louisiana to the North American
^ Seychelles is a separate colony from Mauritius, although the law in
force there is that of Mauritius.
' It was extended to the American territories of France in the year
1664. (The custom of Paris is also largely the common law of St. Lucia,
one of the British West Indies). The royal ordonnances of Louis XIV
(1673 on commerce and 1681 on maritime law) seem also to have been
extended to New France; at any rate the French colonial courts regarded
them as binding: see Walton, Scope and interpretation of the Civil code of
Lower. Canada; Munro, Genesis of Roman law in America, 23 Harv. Law
Rev., p. 679. See also supra §§239, 251.
' See supra § 254.
i* See supra §§256, 257.
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FRENCH LAW IN UNITED STATES 251
possessions of France. In 1664 the "custom" of Paris was
extended to be the law of New France, including subsequently
Louisiana. 1 After a century of Roman-French law influence
in Louisiana, the Roman law again entered this territory but
in a different garb. In 1763 Spain obtained Louisiana,^
which remained under Spanish occupation for forty years,
during which time the Roman-Spanish law ^ was enforced in
the territory. In 1803 Napoleon regained Louisiana for
France, only to sell it a month later to the United States,*
accepting President Jefferson's offer.
With the advent of the United States the territory of Orleans
was organized,* which embraced the present state of Louisiana.
The rest of the Louisiana Purchase was organized into the
District of Louisiana, later known ^ as the Territory of Louisi-
ana, and still later ' as the Territory of Missouri. The common
law of the Territory of Orleans was the Roman-French-
Spanish law; but in the rest of the Louisiana Purchase the
Common Law of the English colonies came into vogue. In
the year 1810 the territorial legislature of Michigan formally
repealed the "custom" of Paris.^
The Louisiana Civil Code of 1823. Five years after Jeffer- § 264
son's Louisiana Purchase, French legal traditions were revived
in 1808 by the adoption of an incomplete Digest ' of the exist-
ing written law of Roman-French-Spanish origin. This
^ See supra §§262, 239. Whether the ordonnances of Louis XIV on
commercial and maritime law were extended to Louisiana is disputed: see
supra § 262, note.
^ France ceded Louisiana to Spain, then holding Florida, when she
lost Canada to England.
' See infra § 309. But in spite of the rigor of the Spanish governor,
O'Reilly (of Irish extraction clearly) and other governors, much French
law was preserved in Louisiana, — it too, as well as the Spanish, was of
Roman descent.
■■ The United States took possession of Louisiana on Dec. 20, 1803.
5 In 1804.
« In 1805.
' In 1812.
* Cobam v. Harvey, 18 Wisconsin Rep., p. 147.
' This was the work of James Brown and Moreau-Lislet. It was
entitled Digest of the Civil Laws now in force in the Territory of Orleans, etc.
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252 THE MODERN REALM OF ROMAN LAW
}264) compilation was based on the Code Napoleon of 1804,1" — ^j^g
works of Domat/i Pothier.^^ and Aguesseau " being used to
supplement the deficiencies of the Louisiana production.
Thirteen years after Louisiana was admitted as a state, there
was promulgated in 1825 the Civil Code of Louisiana ^*^ — 'the
first, the best, and the most famous of all American codes.
The Louisiana Civil Code is the first code throughout the world
modeled on the Code Napoleon, which it closely follows and
very frequently translates literally. The Louisiana Civil Code
is largely the work of Edward Livingston,'^ who alone wrote the
most important chapters of the code, including the entire
subject of Contracts. Sir Henry Maine calls him "the first
legal genius of modern times," '^and the codeof Louisiana, which
Livingston helped so much to frame, "of all republications of
Roman law . . . the clearest, fullest, the most philo-
sophical, and the best adapted to the exigencies of modern
society." ^^
The Louisiana Civil Code has been diffused throughout the
Louisiana Purchase states as a model law ; and without doubt
i» See supra § 254. 12 See supra § 250.
" See supra § 249. i' See supra § 251.
" It abrogated the older Louisiana law then in France, but did not
alter its Roman-French-Spanish character, — in the new Code the Roman
law is strikingly the predominant element.
'' Born at Clermont, New York, in 1764, died in the same state in
1836. He was admitted to the New York Bar in 1785, and in 1801 became
Mayor of New York. In 1804 he removed to New Orleans. In 1805,
his provisional code of judicial procedure, prepared by order of the legis-
lature, was promulgated, and remained the law until 1825 and the new
Civil Code. In 1821 Livingston commenced to prepare, by order of the
legislature, a new code of criminal law and procedure, afterwards known
as "Livingston's Code.'' Written in both French and English, it was
finally printed in 1833, but never adopted by the state. But it recei\ed
great praise in Europe. It consisted really of four codes; crimes and
punishments, criminal procedure, evidence, reform and prison discipline.
The last named code was subsequently adopted by Guatemala. Livingston
was U. S. Senator 1829-31, and Secretary of State under President Jack-
son 1831-3. Livingston prepared the famous anti-nullification procla-
mation of Dec. 10, 1832. In 1833 he was appointed minister to France,
where he remained for two years.
18 CambridgeEssays, 1856, p. 17.
" Village communities, p. 360 (edition of 1870).
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FRENCH LAW IN UNITED STATES 253
its influence contributed much to start the 19th century
movement for codification among the older American states
such as New York, and the later Western states.^* After
its amendment in 1870, so as to cut out the slavery provisions,
the Louisiana code has suffered down to the present time
merely a few changes of detail. Louisiana has no Code of
Commerce '^ or Evidence; where the Civil Code is deficient, the
Anglo-American law merchant and law of evidence govern.
No codification of American law can be successfully ac-
complished which ignores the Louisiana Code, ■ — perhaps the
best of all the modem codes throughout the world. Numerous
and accomplished Romanists have come from Louisiana : the
achievements of Judge Martin,^" the "father of Louisiana
jurisprudence," the immortal Livingston, Professor Denis, and
Chief , Justice White of the United States Supreme Court
ought to make every Louisianian proud of his state and
system of law.
13. BELGIUM 1
Modem Belgian law is the Napoleonic codification. The §265
ancient country of the Belgians was a Roman province
for centuries. Later it belonged to the Duchy of Burgundy
and the medieval Roman Empire. When Flanders was in the
forefront of European commerce and politics, London was a
third-rate town as compared with Ghent. In 1495 Roman
law was definitely made the law of the land in what is now
Belgium.^ The earlier Belgian universities of Louvain,^
Mechlin,* and Bruges,^ brought to Catholic Netherlands the
18 See infra "England, etc., and the United States," § 402.
"See supra §§256, 257.
2" Frangois Xavier Martin, born at Marseilles, France, in 1762, died
at New Orleans in 1846. From 1813 to 1846 he was a judge of the Supreme
Court of Louisiana.
1 In 1^14 almost all Belgium was conquered by Germany. At the
present time (June 1, 1916) the restoration of independence for Belgium
depends on the outcome of the great war in Europe.
2 See supra §231; Bryce, Studies in history, etc., p. 91. The Low
Countries (both modern Holland and Belgium) then belonged to the medie-
val Roman Empire.
3 Founded in 1426. * 1440. ' 1665.
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254 THE MODERN REALM OF ROMAN LAW
influence of the Bologna revival of Roman law and learning,
to which is due the establishment of these universities. The
later Belgian universities of Liege," Ghent/ and Brussels' are'
of 19th century creation.
When in 1814 Belgium was detached from France and
reunited to Holland, the French Civil Code was continued by
King Louis Napoleon as the law of his new kingdom.' The
law of Belgium is actually derived from the Napoleonic
codification, for at the time of its promulgation Belgium was
then a part of France.'" And with the exception of a few
changes in detail the French codes '' have remained in force
until the present time.'^ Although Laurent,^^ who is perhaps
the greatest commentator on the French Civil Code, drafted
a new Belgian Civil Code in 1885, it failed of adoption.
Like France, Belgium has also a Penal Code, Code of Crim-
inal Procedure, Code of Civil Procedure, and Code of Com-
merce.'* The world-mission of Roman law has been fulfilled in
Belgium, 1^ the law of which is uniform and codified.
14. HOLLAND
§ 266 Dutch law prior to its igth century codification. Holland,
the ancient antagonist and despoiler of Portugal in the 17th
U816. 'Id. «1834. 9 Id.
^"Code civil — lime du cent. 1804-1904, vol. ii, p. 681, Paris, 1904.
The French Civil Code was promulgated in 1804.
11 See supra §§254, 256, 257.
1^ Id. The present edition of the Belgian Civil Code is substantially
that of 1831-6, under the direction of Leopold I, the founder of the
present Belgian royal house, who became King of the Belgians in 1830,
when Belgium obtained her independence of Holland.
1' Frangois Laurent, born at Luxemburg 1810, died 1887 at Ghent,
where he was professor of civil law for 51 years (1836-87). His Principes
de droit civil, Brussels, 1869-78, is in 33 volumes (a supplement of 8
volumes was published at Paris in 1904).
" The Penal Code is of the date of 1867, and follows closely the French
model. The other Belgian codes are the same as the Napoleonic, and, like
the Civil Code, were promulgated while Belgium was French territory,
see supra § 257.
1* The great Belgian colonial empire, the Congo Free State, which is
equal in size to one-quarter of the United States, may also constitute in
the future an outlying province of the modern realm of Roman law.
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HOLLAND 255
century struggle for commercial supremacy in India and (§266)
the far East, is another country which has actually derived
its present law from the Napoleonic codification. Anciently
the Netherlands was a Roman province, and Roman legions
were stationed at Utrecht. Later, Holland and modern
Belgium — the Low Countries — became part of the Duchy of
Burgundy and of the revived medieval Roman Empire of the
West. Almost at the very end of the 15th century the Em-
peror Maximilian I by his ordinance of 1495 made Roman law
the common law of the medieval Roman Empire, of which
Holland then formed a part.^ The influence of Roman law
in Holland had been felt much earlier in medieval history;
this influence was now openly acknowledged.
In the 16th century Holland felt the impulse of the Bologna
revival of Roman law and learning which came largely via
France. Dutch universities were established. The university
of Leyden was founded in 1575. The famous Doneau (Donel-
lus), an exiled French Protestant, was professor of law at
Leyden. 2 Subsequently other Dutch universities were founded :
Harderwijk in 1600, Groningen in 1614, Utrecht in 1634. In
the 17th and 18th centuries Holland produced a galaxy of
jurists illustrious throughout Europe: the immortal Grotius,'
father of modern international law; Vinnius,* a celebrated
Dutch Romanist whose Commentaries were long used in the
Italian law schools^; Voet,'' the Blackstone of both the Scotch
^ See supra § 231: Bryce, Studies in history, etc., p. 91.
2 See supra § 246.
3 Hugo Grotius, born 1583 at Delft, died at Rostock 1645. At the early
age of 24 he was appointed Advocate- General of all Holland. In 1613
he was Dutch Ambassador to England. In 1631 he was banished from
Holland because of his religious opinions. He subsequently entered the
Swedish diplomatic service, and in 1635 was Swedislj. Ambassador to France
— which post he held for ten years. During this long service he proved
himself a match for the versatile Cardinal Richelieu. His greatest work
De jure belli et pacts was written 1623-4. See Great jurists of the world,
(vol. ii, Continental Legal. History Series, Boston, 1914), pp. 169-84.
* Born 1588, died 1657. . He was the author of well-known Commentary
and Institutes.
^ A general survey o/ events, etc., (vol. i, Cont. Legal Hist. Series), p. 158.
^ Born 1647, died 1714. His works "were once perhaps more widely
read than any others and are even still worth perusal," — see A General
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256 THE MODERN REALM OF ROMAN LAW
and the modern Roman-Dutch law '' ; Noodt,* called the Dutch
Cujas'; Reitz, '"whose Latin translation of Theophilus' Insti-
tutes " is still in use ; B3mkershoek,'2 the great Dutch Romanist
and jurist of whom Lord Mansfield spoke extremely well i^;
Schulting," the scholarly Dutch annotator'* of Justinian's
Digest.
§267 The Dutch Civil Code of 1838 and modem Dutch law.
There was no uniformity of Dutch law prior to the French
occupation of Holland and the introduction of the Codes
Napoleon. The Dutch republic was but a federation of seven
sovereign provinces, each possessing legislative power. But
during the Napoleonic era Holland was for three years a part
of the French Empire. And in 1811'^ the five French codes,
including the Civil Code,'^ became effective in Holland.
Thereafter the ancient Roman-Dutch law was abandoned in
Holland'* in favor of Napoleon's codified Roman-French law.
survey of events, etc. (vol. i, Cont. Legal Hist. Series), p. 158. His Commen-
tary on the Pandects of Justinian is still authoritative to-day in South
African courts, — see infra § 137 and vol. iii, § 970.
' See infra "Roman-Dutch law parts of the British Empire," §§ 268-71.
' Gerhard Noodt, born 1647, died 1725. He was professor of law at
Leyden. His Commentary on the Digest was of great excellence. He is
noted for his "compressed brevity of style."
° See supra § 246.
»» Died 1769.
" See supra §§ 135, 169; infra vol. iii, § 955.
'2 Cornelius Van Bynkershoek, born 1673, died 1743. He was a judge
and president of the Supreme Court of Holland. His greatest works are his
Observationes juris Romani (8 vols.), Quaestiones juris publici, and Quaes-
tiones juris privati.
1' See 2 Bur. Rep., p. 690 (margin).
" Died 1734.
" Noiae ad Digesta seu Pandectas, 7 vols. See supra § 137.
16 On March 1.
" The Code Napoleon had been introduced still earlier, — in 1809 by
King Louis Napoleon. It was entitled Code Napoleon arrange pour le
royaume de Hollande, and was a republication of the French Code. See
Code civil ■ — livre du cent., vol. ii, pp. 817, 681.
"Although abandoned in Holland, the ancient Roman-Dutch law
still lives to-day in South Africa and other parts of the British Empire
formerly belonging to Holland: see infra |§ 268 et seq.
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HOLLAND 257
After the fall of the Napoleonic Empire, the Code Napoleon
remained in force in Holland for about a quarter of a century.
In 1838 a new Civil Code for all Holland was promulgated.
Although written in Dutch/' it is largely but a revision of the
Code Napoleon. Holland also has the other usual Continental
European codes: Civil Procedure, Commerce, Criminal
Procedure, and Penal.^" The world-mission of Roman law has
been accomplished in Holland,^i the law of which is uniform
and codified.
15. ROMAN-DUTCH LAW PARTS OF THE BRITISH
EMPIRE
The modern Roman-Dutch law countries. The British §268
colonies of Ceylon in Asia, South Africa, and Guiana in
South America — ^all of which anciently were Dutch posses-
sions — ■ comprise those parts of the British Empire known by
the collective name of the "modern Roman-Dutch law coun-
tries." In these British colonies having a combined area
equal to one-quarter of the United States, the Roman law is
received as a subsidium to ascertain the grounds upon which
the law of these colonies rests.
Ceylon. The island of Ceylon, which lies south of the §269
mainland of India, is about as large as the combined size of
Vermont, New Hampshire, and Massachusetts. Originally
Ceylon was a Portuguese possession ; but in 1658 it was taken
from Portugal by the Dutch, and for nearly 150 years it con-
tinued a Dutch possession until 1796, when it was seized by the
East India Company. Two years later Ceylon was taken over
by the British government, and became a crown colony — its
present status.
Owing to the long occupation of Ceylon by the Dutch its law
to-day is largely the 18th century Roman-Dutch law of Hol-
1' A French translation of it by Triphels was published in 1886.
™ The Dutch Penal Code is of the date of 1886, and closely follows the
French as a model. All the other Dutch codes were promulgated in 1838.
*i The present Dutch colonial empire, which is much larger than the
combined area of Italy, France, Spain, and Germany, may some day be an
outlying province of the modern realm of Roman law.
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258 THE MODERN REALM OF ROMAN LAW
land,^ as modified and added to under English rule. Since
1890 the criminal law of Ceylon has been codified on the model
of the famous Indian Penal Code^ ; and codes of Criminal and
Civil Procedure have also been promulgated for Ceylon.'
The "Reports" of the decisions of Ceylon courts are published
on the English model, — the earliest being of the year 1820.
§ 270 South Africa. The amalgamation into one State of the four
British colonies in South Africa, which was established in 1910,
is called "The Union of South Africa." Its constituent
provinces are the four former colonies of the Cape of Good
Hope (commonly called Cape Colony), Natal, Transvaal, and
Orange River. This South African Union is one-sixth the size
of the United States, but is much larger than the combined
area of France and Germany.
The basis of the common law of South Africa is the Roman-
Dutch law, as it existed in Holland at the end of the 18th
century.^ The authorities on the South African common
law are these : (1) the old Dutch commentators on Roman law,
such as Voet, Bynkershoek, Vinnius, Grotius, and others* —
they are to-day cited in South African courts as authoritative
repositories of South African law ; (2) the statute law of Hol-
land prior to the 18th century; (3) the decisions of Dutch
courts during this period; (4) failing these, the Corpus Juris
Civilis of the Roman Emperor Justinian.^
Since the introduction of British rule in South Africa, be-
ginning in 1814 when the Cape of Good Hope became a British
^ "The whole of the law as prevailing in Holland a century ago was
never bodily imported into this country. We have adopted ... so
much of it as suited our circumstances, such as the law of inheritance, etc." :
per Dias, J., in 1 Supreme Court Rep. (Ceylon) p. 147. Holland has now
abandoned this Dutch law in favor of the Napoleonic Roman-French
codification: see supra § 267.
2 See infra "England, English law parts of the British Empire," §404.
'The Mohammedans in Ceylon are governed by the Mohammedan
law as adopted 1806 and 1852: Nell, The Mohammedan laws, Colombo,
1874; 16 Commercial Laws of the World, p. 267, London, 1912.
^ Now abandoned in Holland in favor of the Napoleonic codification of
Roman-French law: see supra §267.
^ See supra § 266.
* See supra § 135.
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ROMAN-DUTCH LAW 259
possession, this Roman-Dutch law has been modified and
altered by legislation and judicial decisions so that now there
is very little material difiference in principle between English
and South African law: the English law introduced has
fused with the Roman-Dutch. The South African law of
contract, torts, mercantile, and shipping matters is practically
tjae same as English law. This fusion has been expedited owing
to the fact that in these branches of English law the influence
of Roman law has been the most potent.' In some respects
the criminal law of South Africa is far better than the English
criminal law, owing to the greater elasticity and justness of
Roman jurisprudence. But English law has affected South
African law in that the decisions of South African courts are
published under the name of "Reports."
British Guiana. The only British possession in South § 271
America is Guiana. It is almost twice the size of the whole of
the New England states taken together. It originally was a
colony of Holland, but it has been a British possession since
1803. The law of British Guiana is very largely the Roman-
Dutch law, owing to the ancient settlement of this colony by
the Dutch. During the 19th century English law was to a
certain extent amalgamated with this Roman-Dutch law, and
is responsible for the publication of the decisions of British
Guiana courts under the name of "Reports."
16. MODERN INTERNATIONAL LAW, — AN OFF-
SHOOT OF ROMAN LAW
International law not founded by Grotius : existence of a § 272
system of international law in ancient Greece and Rome.
The 20th century will ever be remembered by one great juridi-
cal monument : the discovery of a system of ancient inter-
national law very closely resembling modem international
law, to which the latter has been a great debtor for principles
and doctrines. Many have been the misconceptions and
often-repeated blunders of modem writers on international
law as to the international institutions of Greece and Rome.
If they do condescend to refer to them, they either dismiss
' See infra "England," §§397, 403.
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260 THE MODERN REALM OF ROMAN LAW
($272) Greek and Roman international law "as never having existed
at all," or that it was but "sporadic negligible phenomena"
amounting at most to only "a few vague generalizations."^
Very little attention has been paid by them or their predeces-
sors to the original sources of evidence, which, when examined,
utterly refute the fallacious and pernicious modern tradition
of the non-existence of a system of international law in the
ancient world.
The venerable fiction that international law began with
Gentili and Grotius in the 16th and 17th centuries is now
exploded.^ On the contrary, ancient international law is
closer akin to modern international law than to international
law of the time of Grotius. A considerable body of inter-
national law existed in Greece, and to call it "intermunicipal"
law does not detract from its international character. From
Greece Rome undoubtedly borrowed most of her principles of
international law. " In the number and variety of autonomous
States; in the many different forms of their constitutions;
in the existence of autonomous democratic States ; in the con-
ception of the State itself, wholly different from the feudal
or patrimonial conception; in the existence of federations;
in the unstable balance of power ; in the relations of the mother
countries to autonomous colonies; in the multitude of treaties
dealing with many subjects besides peace and war; in the
developed 'use of arbitration as a mode of settling differences;
in the practice as to passports, — in these and many other
matters there is more likeness between the international law
in ancient Greece and that of to-day than there is between the
latter and international law as described in De jure belli et
pacis."^
1 Phillipson, International law and custom of Greece and Rome, vol. i,
p. viii, London, 1911.
^ In the year 1912 appeared the first systematic work yet published on
the international law of Greece and Rome. The two volumes of Coleman
Phillipson's work "with their copious and convincing details" reveal a full
and comprehensive system of international law among the Greeks and
Romans.
' Phillipson, Id. vol. i, pp. xxiv (Sir John Macdonell's Introductory
Note).
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INTERNATIONAL LAW 261
Revival of international law in the 17th century: Gentili §273
and Grotius the fathers of modern international law. With
the advent of the Protestant Reformation "the notion of a
common superior exercising sovereign rights over all nations
gradually faded away."^ The theoretical universal dominion
of the medieval Roman Emperor and the Pope received its
death blow when neither power calmed the turmoil of the
Reformation. The united action of Pope and Emperor to
oppose the Reformers wrecked all chances of restoring their
ancient supremacy. The authority of the Emperor was
frequently set at naught even in his own German dominions
by Protestant princes in arms against him. Outside of the
Empire his authority became a mere cipher. The great
brutality of the age, later revealed in its horrible fullness
during the Thirty Years' War, turned the attention of thinkers
to the need of checking the tendency to utter lawlessness in
international affairs, and of putting a curb on the ferocity of
soldiers and the cruel finesse of statesmen. There was in early
modern Europe no recognized law of nations to mitigate the
outburst of cruelty and lawlessness that arose as old theories
faded from the minds of men. But late in the 16th century
and early in the 17th arose two great Protestant jurists — the
Italian Gentili and the Dutch Grotius — who put new life
into what very feeble and fragmentary customs of international
intercourse then existed, and molded a true law of nations.
In this sense they are the fathers of modern international
law.
In 1588 Gentili,^ who, soon after taking the degree of doctor
of Civil Law at the University of Perugia, fled to England on
account of his Protestant opinions and whose lectures on Ro-
man law at Oxford during the reign of Queen Elizabeth were
famous, published the first part of his De jure hetli. With the
completion of this memorable work^ a new era of international
^ Lawrence, International lavfi, § 25, Boston, 1908.
" Alberico Gentili (Albericus Gentilis) was born at Sanginescio in
Ancona, Italy, in 1552, and died at London in 1608. He came to Oxford
University in 1587. There he taught law for many years. In 1600 Gentili
was made a member of Gray's Inn.
* The whole treatise was published at Hanau, 1598, in 3 vols.
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262 THE MODERN REALM OF ROMAN LAW
(§273) law soon began in Europe. Gentili, says Professor Holland,'
was the first writer "to grasp as a whole the relations of States
one to another, to distinguish international questions from
questions with which they are more or less intimately con-
nected, and to attempt their solution entirely independent of
the authority" of Pope or Emperor. Gentili introduced the
reasonings of Roman and Canon law to fortify his arguments,
and proclaimed as his real guide the Law of Nature.* Once
again the just precepts of Natural Law and the inalienable
rights of man were preached to a world sorely in need of them.
In 1625 the Dutch Protestant Grotius' of French ancestry
and who had taken the degree of doctor of Civil Law at the
University of Leyden, published while in exile at Paris his
masterly work De jure belli et pads. Although Grotius
was considerably indebted to the Italian-Englishman Gentili
for much of the plan, arrangement, and erudition of his
own work, it must never be forgotten that "it was Grotius,
not Gentili, who won the ear of the civilized world,^'^ altered its
theory of international relations and made its warfare in-
definitely more merciful." Grotius' treatise was the first effec-
tive work in influencing European sovereigns and statesmen.
It "exhausted the arguments in favor of a law of nations."
Nobody has since added any new conception of the foundations
of international law.
Like his predecessor, Grotius introduced the ideas of Roman
private law to govern the relations of States to each other. ^^
He emphasized and developed at length these, three basic
ideas: (1) that sovereign States should be looked at as if a
group of Roman proprietors of land; (2) that a treaty is a
contract out of which an obligation arises as obligations arise
ex contractu in Roman law; (3) and that States are moral
persons subject to be bound by the universal Natural Law.
The vast population of the modern civilized world owes a
' Holland, Gentili (in 11 Encycl. Britan." p. 603).
8 Holland, Id.
' See supra § 266.
1° The italics are mine.
"Lawrence, Internal, law'', §31.
'- See Lawrence, Id. § § 36-9.
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INTERNATIONAL LAW 263
debt of gratitude to these and other applications of Roman law
to the family of States, whereby workable conditions of inter-
national amity and mercy have become permanent possessions
of the modern world.
The successors of Grotius. The giant labors of Grotius were § 274
added to later in the same century by the English Zouche,^'
a systematic writer on international law; by the German jurist
Pufendorf ," who searched for an ethical basis of international
law ; and by the great Leibnitz,^^ who formulated the sources of
international law. The 18th century Dutch Bynkershoek^*
differentiated public maritime law as a special branch of inter-
national law; and his contemporary Christian De Wolff^^ wrote
a masterly treatise of the principles of the Law of Nature and
Nations, upon which the Swiss Vattel,^* who popularized the
study of international law, based his own charming book,"
written in French.
" Richard Zouche, born l. 1590 at Ansty, Wiltshire, England, and died
at London 1661. Educated at Oxford, and an advocate of Doctors'
Commons, he became Regius professor of Civil Law at Oxford in 1620,
being the second in succession to Gentili (see supra §273). Zouche was
later twice member of Parliament and still later a judge of the Court of
Admiralty. See Great jurists of the world (vol. ii, Continental Legal History
Series, pp. 220 et seq., Boston, 1904).
^* Samuel Pufendorf was born at Chemnitz in 1632, and died at Berlin
1694. He was professor at Heidelberg, and later at the Swedish university
of Lund. Charles XI of Sweden made Pufendorf a baron in 1694, — the
year of the latter's death. See Great jurists of the world, etc., pp. 305 et seq.
" Gottfried Wilhelm Leibnitz was born at Leipzig, 1646, and died at
Hanover, 1716. He received his doctorate of law at Altdorf, the university
town of Nuremberg, where he was offered a professorship. In 1676 he
entered the service of the House of Hanover, having charge of the ducal
library. In addition to being a great philosopher, mathematician, and
historian, he was "one of the chief founders of modern jurisprudence."
See Great jurists of the world, etc., pp. 283 et seq.
" See supra § 266.
" Born 1679, died 1754. He was professor at Halle and later at Mar-
burg. In 1743 he was recalled to Halle.
'* Emerich Vattel was born at Couvet 1714, and died at Neufchatel
1767. In 1746 he entered into the service of the Kings of Saxony where he
remained until his death. Vattel advocated "the formation of a United
States of Europe, in which no single state is to be allowed to have a pre-
dominating power." See Great jurists of the world, etc., pp. 477 et seq.
" Droit des gens, 1758.
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264 THE MODERN REALM OF ROMAN LAW
The famous 18th century French jurist Aguesseau^" pointed
out that the "law of nations"^* really ought to be termed the
"law between nations." 2^ From this expression the English
jurist Bentham^' in the 19th century was led to use the word
"international"^* to describe what originally was called "law of
nations"; and "international law" it has been called ever
since.
17. THE SCANDINAVIAN COUNTRIES
§275 Denmark, Norway, Sweden. The Bologna revival of law
and learning 1 spread also to the far-northern European States :
late in the 15th century were founded the Danish university
of Copenhagen and the Swedish university of Upsala.^ About
two centuries later the Swedish university of Lund was estab-
lished.' The basis of the private law of Denmark and Norway,
originally united countries, is the same: the Danish Civil
Code of 1683, promulgated by King Christian V.* This
code of native customary law^ has been modified and added to
in both countries by later partial codifications derived from
or imitating the Modern Codes (principally the French^) and
™ See supra § 251.
2' Droit des gens.
^ Droit entre les gens.
2' Jeremy Bentham was born at London in 1748, and died there in 1832.
He was educated at Oxford, and later entered Lincoln's Inn, of which he
became a bencher in 1817. It was the ambition of his life to draft a code
of law for England or some other European country. His writings and ser-
vices rendered to the world have been and still are enormously valuable.
The fusion of law and equity in England in 1873, that great English legal
revolution of the 19th century, is largely traceable to the influence of
Bentham. Modern Anglo-American law owes much to Bentham for other
juridical expressions added to our language, such as "codification."
^■' See his introduction to Principles of morals and legislation, 1879.
1 See supra §§211,212.
" Both were founded in the same year, 1476.
3 In 1668.
* It became effective in Norway in 1687.
^ This 17th century code doubtless is another instance of the influence
of the partial codifications of the French Louis XI V on the rest of Europe, —
see supra § 251.
« See supra §§257-8.
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SCANDINAVIAN COUNTRIES 265
intended to cover deficiencies or gaps. The Danish and Nor-
wegian Civil Procedure and Commercial Law are included in
the Civil Code. Denmark has a Penal Code.^ Norway has a
Penal Code,* a Code of Criminal Procedure,' and a Maritime
Code."
The Swedish Civil Code of 1734 is a codification of the native
customary Swedish law." But the gaps in Swedish law due
to the progress of the succeeding centuries have been filled
out by other codes, modeled principally on the French.'^
Although Swedish Civil Procedure and Commercial Law are
included in the Civil Code, Sweden" has also a Penal Code,'*
a Code of Criminal Procedure,'^ and a Maritime Code.^^
The Scandinavian countries, the home of Teutonic custom-
ary law, have not escaped the world mission of Roman law.
Their law is codified and uniform for every part of each State.
Although the predominance of the Roman law element is
faintly marked ' in Scandinavian law as compared with the
law of other modern European countries anciently included in
the Roman Empire, yet all betterments in the law of these far
northern European States have been and will be made by re-
turning to Roman law, especially the Modern Codes.
18. PORTUGAL
Portuguese law prior to its 19th century codification. The § 276
existence of Portugal is due to the success of the Christians in
' Promulgated in 1866. As yet there is no separate Danish Code
of Criminal Procedure.
* Promulgated 1842, revised and enlarged 1905.
» 1887-89.
^0 1894.
'1 This code is another instance of the influence on the rest of Europe
of the partial Frejich codifications of Louis XIV and XV. See supra
§251.
12 See supra §§257-8.
" It is interesting to note that Swedish law, except as modified by
Russia (supra § 199), lies at the basis of the law of Finland, once a part
of Sweden.
" Promulgated 1866.
" 1866 and statutes.
" 1891.
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266 THE MODERN REALM OF ROMAN LAW
Spain in expelling the Moslem power. The county of Portu-
gal was founded 1095 by Henry of Burgundy, a great-grandson
of King Robert of France. In 1139 Henry's son, Alfonso,
assumed the title of King of Portugal. For over two centuries
the Spanish kingdom of Castile laid claim to Portugal, but
in 1385 Portugal won her independence. The influence of
the Bologna revival of law and learning ^ was exerted also in
Portugal, as the founding of the Portuguese universities of
Coimbra ^ and Evora ' show.
During the 15th century Portuguese prosperity and power
reached its zenith. The Portuguese passed over into Africa
at Ceuta, across from Gibraltar. Portuguese navigators dis-
covered the Madeiras and the Azores, rounded Cape Verde
on the West African coast, and engaged in the African trade.
Vasco De Gama rounded the Cape of Good Hope, discovered
the sea route to India, and laid the foundations of the Portu-
guese Indian Empire. In the very last year of the 15th century
one of the companions of Columbus set sail for South America;
and in 1500 Brazil became a Portuguese dominion.
Towards the end of the 16th century, in 1581, by a series of
misfortunes, Portugal and her vast Colonial Empire fell into
the greedy clutches of Philip II of Spain; and over sixty years
rolled by before Portugal shook off the Spanish yoke in 1640.
The influence of the Partidas* and Recopilaci&n ^ was brought
into Portugal by the Spanish conquest. The chief sources of
Roman-Portuguese law prior to the establishment of the
present Portuguese codes are: (1) The ordinances of Alfonso,
1456, in the 15th century; (2) The ordinances of Emman-
uel, in the 16th century: (3) The ordinances of Philip II
of Spain, confirmed by John IV of Portugal, 1643, in the 17th
century, which were a revision of the ordinances of Alfonso
and Emmanuel.
§277 The Portuguese Civil Code of i868 and modem Portuguese
law. The present Civil Code of Portugal went into operation
1 See supra §§211,212,219.
2 In 1279.
' In 1533.
« See infra "Spain," §290.
'Id. §297.
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PORTUGAL 267
in 1868. This code is one of the earliest European legislative
monuments modeled on the French Code Napoleon.' It
has not made any important modifications of the essential
provisions of the French code. The Portuguese Civil Code
faithfully reproduces the great lines and often the errors of the
Code Napoleon. But its order of arrangement is in some re-
spects more scientific than that of the French code. The
great solicitude of the Portuguese commission for complete-
ness of statement has made some of the articles of their code
far too long and too obscured by details. But at the time of its
formation Portuguese jurists had not benefited from the recent
progress of law and jurisprudence : the Portuguese Civil Code is
therefore more deserving of eulogy than criticism. Without
doubt the Portuguese Civil Code had quite an influence on the
Spanish Civil Code promulgated twenty-one years later.
Following the Continental European model, Portugal has
other codes: Civil Procedure,' Penal,* Commerce,' Commercial
Procedure,^" Criminal Procedure. '^'^ Roman law very strongly
predominates in the modern law of Portugal. ^^ The world
mission of Roman law has been fulfilled in Portugal," which
now has a uniform law accessible in codified form.
19. BRAZIL (ORIGINALLY PORTUGUESE AMERICA)
Modern Brazilian law is uniform and codified. Brazil, a §278
country equal in area to the United States, was for three
« See supra §§254,258.
' Promulgated 1876.
8 1886. The original Penal Code was enacted in 1852.
" Promulgated in 1889. The Code of Commerce was originally the
earliest Portuguese code: the old Code of Commerce was promulgated
in 1833, and resembled very much the present Dutch Code of Commerce:
see Raikes, Maritime codes of Spain and Portugal, p. 133. The present
Code of Commerce, effective in 1889, inclines to the Italian Code of Com-
merce (supra §224).
'" 1905. An adjunct to the Code of Commerce.
" 1905.
'^ The remains of the Portuguese Colonial Empire in Asia and Africa — ■
no mean possessions — may sometimes become an outlying province of
the modern realm of Roman law.
" In 1910 the monarchy was overthrown, and the republic of Portugal
was established.
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268 THE MODERN REALM OF ROMAN LAW
centuries a Portuguese colony.' In the Napoleonic era Portu-
gal, as a result of her alliance and ancient friendship with
England, was invaded by the French in 1807, and the throne
with the royal family of Braganza moved to Brazil, where the
Portuguese King, John VL remained for thirteen years.
In 1822, the next year after his return, Brazil was lost to
Portugal forever: Dom Pedro, eldest son of the King, led a
revolt in Brazil against his own father ; Portugal resisted but
feebly; and finally Brazil became independent of the mother
country. An Empire, with Dom Pedro as the first Emperor,
was then instituted in Brazil. The Empire lasted for nearly
seventy years. The successor of Dom Pedro I, his son Dom
Pedro II, reigned for fifty-eight years, and did much to advance
progress and material prosperity in Brazil. But in the year
1889 the Emperor Pedro II was deposed; and the Empire
came to an end in favor of a Republic.
The work of constituting the present law of Brazil was done
under the Empire. The Portuguese law introduced into
Brazil was Roman-Portuguese law prior to 1822, — before the
modern codes of Portugal came into existence.^ In the middle
of the 19th century the influence of the Napoleonic codifica-
tion ^ began to be felt in Brazil ; and codification of Brazilian
law ensued. Brazil was the first South American State to have
a code of commercial law. Brazil now has a Civil Code* and
other codes of the Continental European type.^
20. SPAIN
§ 279 Periods of Spanish legal history. Spain was the first modem
European State to attain to national unity. Spain was also the
^ The expression "Spanish America" is not correctly applicable to
Brazil: the appellation "Latin America" should be employed whenever
it is desired to denote at the same time both Brazil and the Spanish-Ameri-
can republics.
2 See supra § 277.
' See supra §§ 254, 257, 258.
^ Originally promulgated in 1881, revised in 1891. A new Civil Code
goes into effect Jan. 1, 1917: see American Bar Association Journal, vol. ii,
pp. 218-23 (April, 1916).
» A Code of Commerce was promulgated in 1850, followed by a Mining
Code in 1857. See Walton, Civil law in Spain and Spanish America, p. 602,
Washington, 1900.
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SPAIN 269
first great modern European power : in the 16th century she
was predominant in Europe. The history of the evolution of
Spanish law into its present condition of uniformity and codi-
fication has four well defined periods: from the 6th century
to the reign of Alfonso the Wise in the middle of the 13th
century; from the middle of the 13th century to the end of the
reign of Ferdinand and Isabella early in the 16th century;
from the 16th century and the reign of the Emperor Charles V
to the codification of Spanish law late in the 19th century;
modern Spanish law.
I. Spain from the 6th century to the
reign of Alfonso the Wise in the middle of
the 13th century: period of partial pre-
servation of ante- Justinian Roman law
The 6th century Lex Romana Visigothorum or Breviary of § 280
Alaric II. For over 600 years Spain was a province of the
Roman Empire and governed by Roman law. Early in the
5th century Spain was lost to the Empire; and in A. D. 414
the conquering Teutonic Visigoths set up a kingdom which
lasted for three centuries until the Arab invasion of Spain.
The earliest collection of medieval Spanish law is the Visi-
gothic legislation of Alaric II enacted for his conquered Roman
subjects in the year 506.'^ This is often familiarly called the
Breviary or Code of Alaric. It contains much ante- Justinian
Roman law. The Breviary of Alaric constituted for centuries
in other parts of Europe — notably France ^ — • the Roman
law known to Europe. It was displaced only after the 13th
century Bologna revival of the perfected Roman law of Jus-
tinian's Corpus Juris 'spread to Spain.
The 7th century Visigothic Code, also known as the Fuero §281
Juzgo. About thirty years before the Arab conquest of Spain,
the Breviary of Alaric was superseded late in the 7th century
'■ See supra § 133.
2 See supra § 235.
^ See supra § 135.
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270 THE MODERN REALM OF ROMAN LAW
(§281) by the Roman-Visigothic Forum Judicum,* which title was
corrupted in 13th century Spanish to Fuero Juzgo, at which
time also the original Latin text was translated into vernacu-
lar Spanish.^ The Visigothic Code consists of twelve books,
divided into fifty-four titles and 578 laws.^ It was law for all
Spain, binding both the conquering Germans and the van-
quished Hispano-Romans : both races at the end ofthe 7th cen-
tury had practically coalesced into one people.
The Fuero Juzgo is the first great medieval compilation to
combine systematically Roman and Teutonic law : it contains
not only ancient Gothic customs and many edicts of the Visi-
gothic kings, but it has incorporated also considerable Canon
Law from the acts of ecclesiastical councils; and much of its
law of inheritance, marriage, corporations, ownership, pre-
scription, and contracts is conformable to Roman juris-
prudence. Many of the germs of the great political principles,
long afterwards proclaimed by far-advanced European nations,
are contained in the Fuero Juzgo. ^
Historically the modern law of Spain rests on the Fuero
Juzgo. And the Visigothic Code is also the parent law of all
countries in America ever under Spanish rule. Following the
conquest of Spain by the Saracens, the Fuero Juzgo survived
in the few regions where the remnants of Christian Spain
resisted the Moslem power — such as Asturias, Leon, Cas-
tile, Navarre. And it was subsequently extended to Spanish
territory reconquered from the Mohammedan States.* In the
14th century the Fuero Juzgo was still preserved as law in
* It is also known as the Liber Judicum, Liber Judiciorum, Liber Goih-
orum, Lex Wisigothorum. It was compiled at the 16th Council of Toledo
in the reign of Egica (687-700). It contains laws of Euric, Recesvint,
Ervig, and Egica. Its origin dates to the earliest history of the Goths.
° An English translation of the Fuero Juzgo has been made by S. P.
Scott, Visigothic Code {Forum Judicum), Boston, 1910. See also Pardessus,
Lois maritimes, vol. i, pp. 151 et seq. (where the text is also given); and
Walton, Civil law in Spain, pp. 62-5, Washington, 1900 (where a good
synopsis is given).
^ See Walton, Civil law in Spain, etc., p. 51, who tabulates the laws
attributed to the various Gothic Kings.
' Walton, Civil law in Spain, p. 57, Washington, 1900.
'For instance, in the 13th century to Cordova: Walton, Civil law in
Spain, p. 55.
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SPAIN 271
Castile,^ and even late in the 18th century it was held to be in
force. '^'' In fact the Fuero Juzgo was not entirely annulled
until the 19th century codification and unification of Spanish
law." Moreover, many rules of the Fuero Juzgo still persist in
the present Spanish Civil Code.^^
The early and lasting influence of the Canon Law in Spain. § 282
Long before the Arab invasion and conquest, the Canon Law
of the Roman Church^' received a fixed place and influence in
Spanish law: this is revealed in the Acts of the seventeen
Councils of Toledo prior to the 8th century, in which assem-
blies the King and clergy legislated together. All this helped
to increase the influence of Roman law in Spain ; for the Canon
Law is, as to things secular, but Roman law at secondhand. "^^
And the Canon Law has exercised enormous influence in Spain
down to comparatively recent times: for many centuries the
family was placed under the exclusive authority of the Church ;
marriage was regulated by the doctrines of the Council of
Trent, and necessitated certification from the parochial regis-
try as well as the ecclesiastical record of birth^^ ; while death
involved the certification of ecclesiastical interment. ^^
The 8th century Mohammedan conquest of Spain. In 711 § 283
Tarik, the Moslem governor of Northern Africa, crossed the
straits of Gibraltar, now named after him, and invaded Spain.
The Visigothic enemies of King Roderic had won over to their
cause Count Julian, governor of Ceuta (the last African pos-
session left to the Eastern Roman Empire"); and from him
they obtained ships to transport the Arabs and Berbers to
Europe. By these Mohammedan invaders the Visigothic
kingdom was destroyed. During the next three years the
' In 1348, in the Ordenamiento of Alcala of Alfonso XI. See Walton,
Civil law in Spain and Spanish America, p. 56.
i» In 1779, in the reign of Charles II. See Id. p. 57.
" See infra § 305.
12 See Walton, Id. pp. 64, 57.
1' See supra § § 226 et seq.
"Id.
'* This became a matter of civil registry late in the 19th century, —
in 1870.
"Id.
" See supra § 170.
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272 THE MODERN REALM OF ROMAN LAW
Saracens overran all Spain. The Christian remnants were
driven to the mountains of northern Spain ; there they fought
to preserve their independence.
In 718 the Saracens crossed the Pyrenees and invaded
France. Not until they met the solid power of Charles Martel
and the Franks at the Battle of Tours in 732 was the rush of
the Mohammedan invasion halted and the terror of Western
Europe abated. But Moslem rule continued in Spain for
nearly 800 years: not until 1492 was the Mohammedan power
completely expelled from the Peninsula. Consequently from
early in the 8th to almost the 16th century there was no united
country or nation which could be called "Spain," — this
term was merely a convenient geographical expression.
§ 284 The Christian reconquest of Spain from the middle of the
nth to the middle of the 13th century. The Christians in the
North of Spain spent the next three centuries after the Mo-
hammedan conquest fighting for their liberty and organizing
the small territories left to them. By the opening of the 11th
century they had established several little States — Leon,
Castile, Navarre, Aragon. The character of these States is
seen from the name of one of them: Castile was so called
because it was originally ' 'a line of castles' ' against the Moslems.
Castile was erected into a kingdom in 1037 by Sancho the
Great of Navarre, who then took the title "King of the
Spains." Castile was given by him to his son Ferdinand I,
who later called himself "Emperor of the Spains." In the
year 1050 Ferdinand took the field to increase his dominions :
and the period of the great reconquest by the Christians began.
Gradually the Spaniards recovered their ancient territories
by expelling the Saracens and Moors. But two centuries
went by before Christian Spain became supreme. In 1082
Alfonso VI of Castile marched down the valley of the Gaudal-
quivir to Gibraltar, rode his horse into the sea, and claimed
possession of the "last land in Spain." In 1084 he captured
the great city of Toledo, the "shield" of Mohammedan Anda-
lusia. Fresh Mohammedan invaders, the Moors, summoned
to Spain from Africa to help their Moslem brethren, only
temporarily checked the Christian reconquest. In the middle
of the 12th century Christian Aragon and Catalonia were
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SPAIN 273
united forever. Late in the same century and early in the
next, Alfonso VIII of Castile organized the celebrated military
orders of Calatrava, Santiago, and Alcantara, all of which sub-
sequently contributed to the Castilian arms many victories
against the infidels.
In the year 1212 the combined armies of Castile, Navarre,
Aragon, and Portugal defeated a great army of Mohammedans
at the Battle of Navas de Tolosa, and laid Moslem Spain
at the feet of the Christians. In 1229 and 1238 the Balearic
Islands and Valencia were conquered by Aragon. In 1236,
six years after the union forever of Castile and Leon, the
Castilian Ferdinand III conquered Cordova with its famous
Arab palaces, mosques, and associations; and he did not recall
his armies until he had recovered the whole of Andalusia.
Mohammedan Spain was now reduced to Granada and a few
seaports round to Cadiz. The Mohammedan King of Granada
became a vassal prince of the Christians, and was no longer
dangerous. His expulsion was only a question of time and
policy. The great Christian reconquest of Spain was now com-
pleted.
The nth century Consulado del Mar (Consolato del §285
Mare) and the 12th century Fuero de Leyron (Laws of Oleron).
Late in the 9th century, about the year 864, the city of Bar-
celona and the district adjacent to it became independent of
the Mohammedans, and were governed by a count. Two
centuries later it became incorporated with Aragon, the last
count of Barcelona becoming King of Aragon. The Consolato
del Mare (Consulado del Mare in Spanish), the earliest of the
medieval codes and adopted by the Mediterranean cities of
Italy and Spain, is given a Spanish as well as an Italian origin :
it is claimed that it was first prepared by order of the magis-
trates of Barcelona. At any rate, whether originally Spanish or
Italian, 1' this remarkable compilation, so fundamental to the
maritime and commercial law of the modern world, was
confessedly based upon the Roman Civil Law.''
In the kingdom of Castile were observed the Laws of Oleron
{Fuero de Leyron in Spanish) , the second of the great medieval
^' See supra § 214.
"Id.
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274 THE MODERN REALM OF ROMAN LAW
commercial compilations of maritime law and based on Roman
law.^" This with the Partidas ^^ sufficed for the commercial
necessities of Castile and Leon until the end of the Christian
reconquest of Spain. ^^
§286 Great diversity and localization of medieval Christian
Spanish law; the fueros. The piecemeal character of the
Christian reconquest of Spain ^^ was responsible for the diver-
sity and localization of medieval Spanish law. From the Sar-
acenic conquest down to the promulgation of the Partidas,^*
or for over 600 years, a great host of new general or special
laws, customs, uses, privileges, and rights grew up — collec-
tively known as fueros. Of this conglomeration of fueros some
were provincial, others were municipal. The use and force of
the old general law code Fuero Juzgo ^^ declined. Law became
localized in Christian Spain: each province, city, and town
had its own special law. Each citizen, if he chose, had his
own local law. Roman law in Spain seemed in great danger
of being smothered by Teutonic customary law.
II. Spain from the middle of the 13th
century to the end of the reign of Ferdinand
and Isabella in the 16th century: period of
the introduction of Justinian Roman law
into Spain via the Bologna revival
§287 Continued diversity of law in the separate kingdoms of
Christian Spain. When the influence of Justinian Roman law
began in the 13th century to penetrate Spain from Italy, it
had to encounter not only the active hostility of a native cus-
tomary law of Teutonic origin, but also the irresistible ten-
dency of Spanish law to become localized and diverse. ^^ To
weld together into a harmonious whole the law of each of the
separate Spanish kingdoms was the task immediately con-
fronting progressive rulers of each. Out of this political
'•> See supra § 236. 2' See supra § 284.
21 See infra § 289. " See infra § 289.
'^ See 32 Commercial Laws of the ^^ See supra § 281.
World, "Spain," p. 9. 2= See supra § 286.
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SPAIN 275
necessity arose increasing opportunities in all regions of Spain (§287)
for the entrance of the revived Justinian Roman law with all
its potent power to mold the government and jurisprudence
of any people coming under its influence. But the accomplish-
ment of the task of unifying each regional Spanish system of
law was slow and often tortuous. When at the end of the 15th
century the Moors were expelled and Spain became a reunited
nation, ^^ the problem of unifying Spanish law ceased to be
wholly tocal and provincial and became also national. But
notwithstanding all the efforts of the rulers of Spain to ac-
complish such unification by codification, the diversity of
Spanish law persisted until the 19th century, when the present
codification of Spanish law was attained and made uniform
for all Spain.^^
The history of Spanish law prior to the promulgation of the
present Spanish codes really involves a discussion of the law of
each of the various Christian Spanish States which were con-
solidated into the modern kingdom of Spain. But, inasmuch
as the present kingdom grew out of Castile (with which all the
rest of Spain by one means' or another has been united),*'
there is little necessity of considering the old separate law of
Aragon, Catalonia, Navarre, Majorca, Valencia, the Balearic
Islands, and the Basques provinces^" in order to notice the
penetration of Justinian Roman law into Spain and how its
influence was exercised towards uniformity and codification:
the history of Castilian-Spanish law will reveal the tendencies
of Spanish law from century to century. Moreover, Castilian
law demands special attention ; it was the best of the old sepa-
rate Spanish jurisprudences; it underlies the present Spanish
codes; and it also was adopted for use in the Spanish- American
colonies. '"^
" See infra § 293.
28 See infra §§297,302-5.
'" Modern Spain really began with the union of the kingdoms of
Castile and Aragon under the joint reign of Ferdinand and Isabella (1474r-
1504). Of these two kingdoms Castile was the larger and more important.
'" See General survey, etc., pp. 607-16, 641 et seq., for the separate law
of Aragon, etc.
"See infra §§307et seq.
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276 THE MODERN REALM OF ROMAN LAW
§288 Spread of the Bologna revival of Roman law to Spain;
founding of universities. The influence of the 12th and the
13th century revival of Roman law study and classical learning
at Bologna '^ was soon felt in Spain. In imitation of Bologna,
Spanish universities with the faculty of law a principal feature
were founded at Valencia,*' Salamanca,'* Lerida,'^ Valladolid,'*
Saragossa,'' Toledo,'* Seville, '^ and Granada.*" Justinianean
Roman law was absorbed by the Spanish jurists of the 13th and
14th centuries through the medium of the writings of the
Italian Glossators and Commentators.*^ The commentaries
of Bartolus, the greatest of the Commentators, actually en-
joyed at one time almost statutory authority in Spain and
Portugal.*^ The efi'ect on the ancient Spanish Teutonic cus-
tomary law was disastrous; in the 14th century it was being
superseded by the pure Roman law of Justinian.
§289 The 13th century Castilian Royal Fuero (Fuero Real),
Septenario, and Especulo of Alfonso X. The greatest Spanish
legislator of the Middle Ages was Alfonso the Wise,*' often
called the Spanish Justinian. Alfonso published three import-
ant works, which foreshadowed his masterpiece of legislation
— the Partidas**: these three were the Royal Fuero, the Sep-
tenario, and the Especulo. In the year 1255 *^ Alfonso promul-
gated a collection of the laws of the kingdom of Castile, known
commonly as the Royal Fuero {Fuero. Real) .*^ This work con-
sists of four books divided into 72 titles, and 545 laws. Book
III treats of marriage, gifts, successions, legacies, guardian-
s' See supra §§211, 212. '« In 1346.
33 In 1209. " In 1474.
*> In 1239. 38 In 1499.
35 In 1300. 39 In 1504.
*" In 1537. The University of Barcelona is of 19th century creation
(1841).
"See supra §§210, 216.
« See supra § 219.
« Alfonso X, el Sabio, King of Castile, 1252-84.
« See infra § 290.
*^ General survey, etc., (vol. i, Cont. Legal Hist. Series, p. 619, Boston,
1912).
*^ Its original title was Fuero de las Leyes. It was also called Fuero del
libra, Fuero Castellano, afid Libra de los Cancejos de Castilla (Book of the
Councils of Castile).
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SPAIN 277
ship, and other topics of civil law. The Fuero Real was
intended to replace the local particular law then in force.^^
Alfonso published also a work known as the Septenario,
begun by Ferdinand III and designed to be in seven parts.
This was not, however, promulgated as a statute, and seems to
have been a sort of encyclopedic legal treatise.**
About the year 1258 *^ Alfonso published another compilation
of the fueros, known as the Espiculo de todos los Derechos
(Mirror of all the Laws) arranged in 5 books, 54 titles,
and 657 laws. It includes much Justinian Roman law, and
also considerable Canon law from the Decretals.*" The Espe-
culo was probably intended by Alfonso as an attempt to
unify the diverse law of Castile."
The 13th century Castilian Siete Partidas of Alfonso X. §290
In the year 1265, after nearly ten years' labor, was finished ^^
the best and most renowned of all the compilations of Alfonso
the Wise: namely, the Siete Partidas, ^^ a digest of Castilian-
Spanish law framed in imitation of Justinian's Pandects."
The Partidas are the work of several unknown jurists ^'' subject
to the supervision of Alfonso, who was himself an author of
merit.*^ The framers of the Partidas obtained much assist-
ance and borrowed considerably from the 7th century
Visigothic Fuero Juzgo.^^ Great praise is due to the 13th
*' 32 Commercial Laws of the World, "Spain," p. 7, note 2.
** General survey, p. 620.
*" Walton, Civil law in Spain, etc., p. 72, Washington, 1900.'
5» See supra § 228.
^^ General survey, etc., pp. 620-1. Although the prologue of the
Especulo states that the book is a selection of all the fueros and com-
municated to the cities for their government, yet Professor Altamira
doubts very much if it was ever law, — that is promulgated and adminis-
tered as a statute. See Id.
^'^ General survey, etc., p. 621. The date of completion is also given as
1263, — see Walton, Id. p. 76 ; 32 Commercial Laws of the World, p, 7, note
1. The Partidas were commenced in 1256.
'^ Codigo de las Siete Partidas (Code of the Seven Parts). But the
original title is Libra de lasLeyes or Fuero de lasLeyes.
^ See supra § 137.
^^ See infra § 292 for conjectures.
^^ General survey of events, etc., p. 621.
*' Scott, Visigothic Code, p. xl.. See also supra § 281.
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278 THE MODERN REALM OF ROMAN LAW
(§290) century Spanish jurists who wrote the Partidas; for they
produced not only a highly scientific code of law, the most
notable of the age, but also the most complete treatise of
jurisprudence yet published.^* The Partidas exercised enor-
mous influence on Spanish law other than Castilian, and lie at
the basis of the modern Spanish Civil Code of 1889.
The Siete Partidas, as the title indicates, are divided into
seven {siete) parts {partidas). Each of the seven commenced
with a letter of Alfonso's name (A-1-f-o-n-s-o) . The Partidas
are also subdivided into 182 titles and 2479 laws.'^' Partida I
is a digest of the Canon law of the Roman Church.*" Partida II
consists of public law, including the topics of the royal preroga-
tives, administrative ofihcers, and public education. Partida
IV treats of family relations and feudalism. Partida VII is
the criminal law. Partidas III, V, and VI succinctly abridge
the Roman law of actions and civil procedure, contracts,
successions, and guardianship; these Partidas frequently in-
corporate literal translations of parts of Justinianean Roman
law, and often republish the Roman law doctrines of the
Italian Glossators.^'
The intent of Alfonso in causing the compilation of the
Partidas was probably to prepare a code which should displace
• the Fuero Juzgo,'*^ the municipal fueros,*' and even the Fuero
Real itself**: for in the preface of the Partidas it is ordered
that all persons be governed by these laws and by no other
statute or fuero. *^ But for some reason not clear — perhaps
contemporary hostility to the salutary Roman innovations
of the Partidas — nearly 100 years rolled by before compila-
tion of Alfonso the Wise was given the force of law in Castile
and Leon. Finally in the middle of the 14th century during
the reign of his great-grandson Alfonso XI, the Partidas were
'* See Walton, Civil law in Spain, pp. 75-6.
^9 The Siete Partidas were partly translated into English by Lislet
and Carlton, New Orleans, 1820.
'" See supra § § 225 et seq. for a discussion of Canon Law.
" As to the Glossators, see supra §§ 210 et seq.
62 See supra §281.
63 See supra § 286.
" See supra § 288.
6^ See General survey, etc., p. 621.
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SPAIN 279
promulgated in 1348 by the Edict (Ordenamiento) of Alcala
as an obligatory statute wherever not contradicted by earlier
Castilian law, especially the municipal fueros and the Fuero
Real.^' In other words, by the Ordenamiento of Alcali, the
Partidas became merely a supplementary code or source of law,
and were denied any general authority to annul earlier law.
The tendency of medieval Spanish law in the separate Christian
kingdoms to become diverse and confused was too strong to be
quickly checked.
The 15th century Castilian Ordinance of Montalvo. In the § 291
reign of Ferdinand ^' and Isabella great political changes
occurred in Spain, which were followed by a large amount of
legislation. Consequently, Castilian law became even more
incomplete, and fell behind the times. To remedy this, Isa-
bella commissioned two jurists. Dr. Montalvo and Dr. Carva-
jal,^* to compile the laws to date. In this labor Montalvo
alone was successful, and his compilation was published
about 1484 as the Ordenances reales de Castilla, which because
of its authorship became commonly called the Ordenamiento
del Doctor Montalvo.
This work relates principally to public law, although it
contains considerable private law. It consists of 8 books
and 1163 laws of which 230 belong to Ferdinand and Isabella.
It contains ordinances of the Cortes since the time of the
Alcala in 1348,^' together with various acts from Alfonso X
onward.'" But his collection is defective in that it does not
contain all the law prior to Ferdinand and Isabella, or even
all the law of their reign down to 1484.'^ Perhaps this may
explain why Montalvo's collection was never promulgated as
a statute. The long-standing necessity for a clear and orderly
*" Walton, Id. p. 76; General survey, etc., pp. 623, 631.
*' Ferdinand II of Aragon, who later became also Ferdinand V of
Castile and Leon as a result of his marriage with Queen Isabella of the latter
kingdom. His joint reign with her was 1474-1504. After her death he
reigned alone until he died in 1516.
"' As to both of these jurists, see infra § 292.
"3 See supra § 290.
'" See General survey, etc., p. 626. Some acts were taken from earlier
sources of Castilian-Spanish law.
'^^ General survey, etc., p. 626.
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280 THE MODERN REALM OF ROMAN LAW
collection of the laws still remained. And its preparation was
advised by Isabella in her will.'^
§292 Famous medieval Spanish jurists. The earliest notable
Spanish jurists, whose works are known to us, are of the 13th
century. The unknown authorship of the Siete Partidas has
been ascribed to various eminent 13th century Spanish jurists,
especially Jacobo de las Leyes (also called Jacome Ruiz),
an Italian who was tutor to Alfonso the Wise.'' The principal
work of Ruiz is his summary entitled Flores de las leyes, which
was translated into Catalan and Portuguese.''* -Much of the
Flores was incorporated in the Partidas. To the ecclesiastic
Fernando Martinez, bishop of Oviedo in 1269, and to the
renowned Roldan are also ascribed a share in the framing of
the Partidas. The famous Airas de Balboa '* (known also as
Valbuena), bishop of Plasencia, wrote a gloss on the Fuero
Real and a commentary on the Ordenamiento of Alcala.'^
He was also a notable Canonist.
During the 13th and 14th centuries there were eminent
Spanish jurists engaged in teaching law at foreign universi-
ties.'' At Bologna the following professors were Spaniards:
Santiago de Compostela, Juan Garcii el Hispano, Teseo
Valenti, and Raimundo de Penafort • — • the last-named being
the famous compiler of the Decretals of Gregory IX as found
in the Corpus Juris Canonici.'^ At Paris lectured the Spanish
Pedro Hispano and Cardinal Torquemada — the latter being
the author of commentaries on Gratian's Decretum."
The two greatest jurists of Ferdinand and Isabella's reign
were Montalvo and Carvajal. Both were members of the
royal commission of Isabella to compile the laws of Castile.*"
The former, Alfonso Diazde Montalvo, wrote also a dictionary
of law called the Repertorio de derecho and glosses on the Fuero
Real and the Partidas. ^^ Montalvo was the founder of a law
school. The latter, Galindez de Carvajal,*^ was a famous law
professor as well as royal counselor.
'2 Id. '8 See supra § 228.
" See supra §§289, 290. '9 Id.
" General survey of events, etc., p. 654. *" See supra § 291.
'5 Died 1414. 8i gee supra §§ 289, 290.
'6 See supra §§ 289, 290. 82 Born 1472, died c. 1530.
''"'General survey, etc., p. 655.
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SPAIN 281
Extirpation of the Mohammedan power in 1492. Almost at § 293
the close of the 15th century, in 1492 (the very year America
was discovered by Columbus), the remaining Mohammedan
state in Spain, Granada, was put an end to by Ferdinand and
Isabella; and the last Moorish king, Boabdil, passed across
the Straits of Gibraltar into African exile. The Mohammedan
conquest of the Eastern Roman Empire and the capture of
Constantinople ^' were revenged forty years later by the extir-
pation of the Mohammedan power in Spain. Spain was at
last reunited nationally under a single Christian govern-
ment, after suffering Moslem rule for nearly eight centuries.
Influence of Mohammedan law in Spain. The Saracens for a § 294
long time after their conquest of Spain maintained a highly
flourishing civilization. The Arab universities in Spain were
numerous, and reflected — often brilliantly — the light of the
learning of classical Greece and Rome. Aristotle and Euclid
were familiar names to Spanish Saracens. In the year 968,
the Saracens founded a university at Cordova, which city in
the 10th century is reported to have had nearly 1,000,000
inhabitants and 300 mosques. The fame of this university
as a seat of liberal culture became known to the medieval
European world.
The law of the Saracens and Moors was composed of the
Koran and borrowings from the Roman law of the Eastern
Empire.^* For the regulation of agriculture and the irrigation
of land the Spanish Arabs had perhaps the most just and bene-
ficial laws ever possessed by a people. Evidences of these laws
still exist to-day in Spain — especially in Valencia where, when
the Moors were driven out. King James decreed that "water
should be taken and used in the order that was customary in
the times of the Saracens."*^ In Granada, Ferdinand and
Isabella preserved the Moorish system of irrigating canals.
Many of the present irrigation rights and customs in Spain
date back to the epoch 'oi the Saracens and Moors. ^^ And
many of these laws as to agricultural irrigation were trans-
planted to America.
'3 See supra § 183. '* Walton, Civil law in Spain, p. 63.
M See supra §§187, 188. «« W.
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282 THE MODERN REALM OF ROMAN LAW
§295 The early i6th century Castilian Laws of Toro (Leyes de
Toro). The promulgation of the Partidas in 1348*' did not
end the conflict in Spain between the Roman and the native
customary law, which continued for the rest of the 14th and
throughout all of the 15th century. Castilian law continued
to be in a state of doubt, diversity, and confusion. To relieve
its diversity and resolve conflicts as to its sources, the Leyes de
Toro were promulgated in 1505 at the Cortes of Toledo. These
were intended to supplement the Fuero Real, the Partidas,
and other existing law.*' The Leyes de Toro comprise eighty-
three laws arranged unmethodically and without titles.*' All
but seven concern substantive civil law.'" At the time of
their publication the Leyes de Toro were regarded very highly
and were ranked first among the laws of Castile.
The Leyes de Toro generally incline more to the Roman
law than to the native customary law, although in some re-
spects they effected a compromise between the two systems.
The Laws of Toro introduced still more Roman law, and gen-
erally gave a wider effect to the Partidas.'^ But the Leyes de
Toro repeated the preferential order of Castilian legal sources
established by the Ordenamiento of Alcalci in 1348,'^ — -thus
reaffirming the inferior status of the Partidas as a supplemen-
tary code.'^
III. Spain from the 16th century and
the reign of the Emperor Charles V to the
unification and codification of Spanish law
late in the 19th century: period of partial
codification of law
§296 Ascendancy of Spain in Europe during the i6th century.
By the efforts of Ferdinand and Isabella, Spain had finally
attained to political unity. But the newly acquired Spanish
»' See supra § 290. ^ See supra, especially §§289, 290.
" No official editions of the Leyes de Toro were published; they are
contained in the Nueva and the Novisima Recopilacion, — see infra §§297,
303.
'" The last seven are penal legislation. '^ See supra § 290.
'^General survey, etc., p. 633. '^ General survey, etc., p. 634.
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SPAIN 283
national strength was slowly consumed by their grandson and
great-grandson, who dragged Spain into the wars and politics
of central Europe. During the reigns of Charles V and his
son Philip II, Spain was the paramount power in Europe and
greatly feared by all other European nations. The Emperor
Charles V ruled over the larger part of Europe and all the
then known New World. Not only was he King of Spain, ^*
but he was also in his own right ruler of Austria and Burgundy.
To these vast hereditary domains his election in 1519 as
Roman Emperor added other countries. His Spanish-
Imperial domains practically surrounded France. Charles
was the mightiest monarch of his age: all Spain together
with her vast American colonial possessions, the Netherlands,
Germany, and much of Italy acknowledged allegiance to him.
And the revenues of Charles and his son were enormous:
Mexico and Peru were apparently one immense storehouse of
gold and silver to be drawn upon at will.
Although the abdication in 1556 of Charles — in favor of
his gloomy son • — • lost for the new King of Spain the Imperial
dignity, yet Philip II ^^ recouped himself by the conquest of
Portugal,'* which gave him her great and rich African and
East Indian possessions. Moreover, Philip was at one time
King-Consort of England by virtue of his marriage to "Bloody"
Queen Mary. A lasting souvenir of Philip remains in Asia
to-day: the Philippines were named after him by Spaniards
who during his reign sailed from Mexico and took possession
of these Asiatic islands. Philip's schemes of aggrandizement
and religious persecution, in which he generally had the support
of his relatives, the Emperors, persisted until his death in 1598.
But the English defeat of his Armada and the rise of the Dutch
Republic were deadly blows to the prestige of Spain, and were
largely the means of destroying Spanish supremacy in Europe.
The 1 6th century Castilian Nueva Recopilacion of Philip II. § 297
The formation of genuine Spanish systems of law throughout
the Peninsula was completed early in the 16th century. But a
new element was introduced by the Hapsburg sovereigns of
"* Known as Charles I, reigned 1516-56.
»5 Reigned 1656-98.
9" See supra § 276.
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284 THE MODERN REALM OF ROMAN LAW
(§297) Spain — -the spirit of absolutism. Bureaucratic methods of
government steadily increased. The Cortes met infrequently :
but the Hapsburg sovereigns legislated abundantly in the
form of decrees, orders, pragmatics, and resolutions of Council.
During the reign of Charles V the necessity for anew collection of
Castilian laws became urgent, '^ but the proj ect was not realized.
His son and successor Philip accomplished this undertaking.
Through the efforts of Bartolome de Arrieta, a collection of
the ordinances of Cortes and royal decrees was finally framed,
which Philip promulgated in 1567 under the title of Nueva
Recopilacion. It is arranged very unsystematically in 9
books, 214 titles, and 3391 laws.'* It was intended to comprise
all the law in force since the Fuero Real and the Partidas."
It contains some parts of the Fuero Juzgo and the ordinances
of Montalvo,^"" and almost all of the Ordenamiento of Alcala
and the Laws of Toro,'"^ together with subsequent statutes and
decrees.
The object of the Nueva Recopilacion was to clarify and
render more intelligible the existing law. But the outcome did
not realize this purpose and was deplorable: the explanation
is that Arrieta made too narrow an interpretation of the field
covered by the Castilian statutes, — limiting these probably
to royal legislation enacted without the assistance of the
Cortes. 1"^ Anyhow the result was that Nueva Recopilaci6n
became merely an elaboration of the Ordinances of Montalvo,^"*
with additions subsequent to 1484. And because the Nueva
Recopilacion did not abrogate earlier collections of law,^°^ it
became merely another supplementary compilation to the
" In the other kingdoms there were demands for the continuation of
collections already made. See General survey, etc., pp. 660, 663 et seq.
»« Later editions were published in 1581, 1592, 1598, 1640. Between
1567 and 1777 ten editions of it were published for Castile. It was re-
edited five times during the 18th century.
3» See supra §§289,290.
""See supra §§281, 291.
i«i See supra §§290, 295.
"•' See General survey, etc., p. 661.
"3 See supra § 291.
•"* For instance the Nueva did not clear up the confused status of the
Fuero Juzgo and the municipal fueros: see supra §§ 281, 286.
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SPAIN 285
anterior codes, which retained most of their authority and had
still to be consulted. The Nueva at best was but a partial
codification. The ancient condition of confusion and diversity
of Castilian-Spanish law still continued, as the same condition
did elsewhere in the Peninsula. And yet because the Nueva
Recopilacion was an effort to codify Castilian law and did
contribute to its unification, it may be regarded as marking
the commencement of the movement to unify and codify the
law of all Spain. 1°^
Decline of Spain in the 17th century. Advent of the Bour- § 298
bon dynasty. The failure of Philip II to subdue revolted
Protestant Holland or to conquer England were symptomatic
of the approaching decline of Spain . After his death the power,
influence, and reputation of Spain rapidly waned. Portugal
successfully threy off the Spanish^yoke.^"^ European ascend-
ancy in the 17th century was proudly exercised by France.
In the opening year of the 18th century the Spanish throne
came into the possession of the French Louis XIV's grandson,
Philip V,^"^ from whom the present Spanish royal house is
descended. But the War of the Spanish Succession '"* cost
Spain Gibraltar "^ and all the domains of the Spanish crown in
the Netherlands and in Italy.^^" Spain sank to the level of a
third-rate power. In the 19th century Spain lost all her
colonial possessions in both the Americas, and also the Philip-
pines.
The 17th century Laws of the Indies (Recopilacion de las § 299
leyes de las Indias). The acquisition of dominions in the New
World brought in its wake a body of law made applicable to
the Spanish-American colonies, which soon became abundant
and confused. Efforts to compile the Spanish colonial law
began in the 16th century in the reign of the Emperor Charles
v.""- Other efforts were made, with partial success, during the
^"^ General survey, etc., pp. 663, 666.
^"^ See supra § 276.
"' Reigned 1700-46.
•»8 1701-14.
'09 Which has ever since belonged to England.
110 Which were given to th6 Roman Imperial House of Austria.
'" In 1543: General survey, etc., p. 665. It contained the ordinances
and statutes of Charles for the colonies.
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286 THE MODERN REALM OF ROMAN LAW
reign of Philip IL"^ Finally in 1680 Charles II promulgated the
Recopilacion de Indias, which contains all the law then in
force in the colonies. The Laws of the Indies are. modeled
on the 16th century Nueva Recopilaci6n/" and comprise 9
books arranged in 218 titles and 6447 laws."^
§300 Famous Spanish jurists of the i6th and 17th centuries.
Legal science was extensively cultivated in Spain during the
16th and 17th centuries. The many legal problems arising
out of the military and religious policies of this epoch, the
vast colonization of the Americas, and the tendency of the
Spanish mind to concern itself with practical questions caused
law to be scientifically studied with great thoroughness.
At the opening of the 16th century lived two distinguished
Spanish jurists, Antonio de Nebrija'^* and Juan Lopez de Vi-
vexro.'-'^* Nebrija published an excellent revision of the glosses
of Accursius.^^' Vivexro, who was professor of law at Sala-
manca and at one time adviser to Ferdinand and Isabella,
was an author of distinction — ^ whence his popular name of
"Palacios Rubios." He was an editor of the Leyes de Toro,"*
and wrote a commentary on them.
The Spaniard Covarrubias was called by his contemporaries
the Bartolus of Spain."' And there were other distinguished
jurists of this epoch'^" who published admirable commentaries
on Spanish law: among them Gregorio Lopez wrote on the
Partidas'^^; Antonio Gomez wrote on the Leyes de Toro^^^;
and Acevedo wrote on the Nueva Recopilacion.^^'
"^ Id. pp. 665, 666. A Recopilacion and a Nueva Recopilacion were
framed in 1571 and 1593 respectively.
"3 See supra § 297.
1" Later editions were published in 1756, 1774, 1791, and 1841.
"5 Born 1444, died 1522.
ii" Born 1447, died 1523.
"' The greatest of the Italian Glossators, — see supra § 213.
"* See supra § 295.
^^^ General survey, etc., p. 672.
120 As to the Spanish jurists of the Hapsburg and Bourbon periods see
Id. pp. 667-75, 680-83. As to Bartolus, the greatest of the Italian
Commentators, see supra § 219.
121 See supra § 290.
122 See supra § 295.
123 See supra § 297.
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SPAIN 287
The jurists Suarez '^^ and Francisco de Arnaga '^^ achieved the
front rank of eminence. Antonio Augustin (Antonius Augus-
tinus '•^s), bishop of Tarragone, edited jointly with Cujas '" the
Greek constitutions of Justinian's Code.^^' Francisco Vitoria,
professor at Salamanca, wrote on international law, and
Vasquez Menchacha also wrote on the laws of war: both
jurists may be truly called forerunners of the Dutch Grotius.'^'
The i8th century Ordinances of Bilbao. In the year 1737 §301
Philip V, evidently inspired by the ordonnances of his grand-
father Louis XIV, ^'^ promulgated the Ordenanzas de Bilbao, in
twenty-nine chapters. These were necessitated by the great
commercial development of the city of Bilbao, ^'^ and consti-
tuted a great step in advance for Spanish commercial law.
These ordinances were subsequently made applicable to the
American colonies, and did much to remedy the chaotic condi-
tion of colonial commerce caused by the Recopilacion de
Indias.'^'^ And the Ordinances of Bilbao underlie parts of the
commercial law of some of the Spanish-American republics.
Every matter of mercantile law, whether applicable to land
or sea, is found in the ordinances of Bilbao. ''*
i8th century efforts to unify Spanish law. The Bourbon §302
sovereigns completed the work of political unification inau-
gurated by the house of Hapsburg. Philip V abrogated the
separate public law enjoyed by Catalonia, Majorica, Valencia,
and Aragon 1^*; and he also annulled the old special civil law of
^^ His Tractatus de legibus, etc., written in 1612, is a noteworthy pro-
duction.
'^ His Observationes juris, published in 1643, gave him a wide reputation.
126 Born 1516, died 1586.
12' Cujas was the greatest French jurist of the 16th century, — see
supra § 245.
128 Girard, Manuel de droit *, p. 87. See also supra § 136.
129 See supra § 273.
1'" Especially those of the years 1673 and 1681. See supra § 251.
1^1 Ordinances began to be made at Bilbao as early as 1459. There
were some earlier ordinances enacted in the 16th century, by Philip II
(in 1590). Other notable commercial compilations of this century were the
Ordenanzas of Burgos (1538), and those of Seville (1556).
132 See supra § 299.
"3 32 Commercial laws of the world, Spain p. 15.
1** In 1707-15. SeeGeneral survey, etc., pp. 677 et seq.
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288 THE MODERN REALM OF ROMAN LAW
Valencia. But the Bourbon Kings did not succeed in abrogat-
ing tlie separate civil law of Aragon, Majorca, the Basque Pro-
vinces, and Catalonia, each of which retained its own civil law
until into the 19th century. Nor did the Bourbon sovereigns
abrogate anything of the law of Castile. The fusion of all
this diverse Spanish law into a codification was the contribu-
tion of the 19th century.
§303 The 19th century Novisima Recopilacion of Charles IV.
Attempts were made during the 18th century to cure Spanish
law of its longstanding confusion and redundancy, only
slightly alleviated by the Nueva Recopilaci6n ^^^ . ]-,y^ these
efforts failed.^^* Finally, early in the 19th century, the jurist
Juan de la Raguera Valdelpmar made" a compilation which
rearranged the Nueva Recopilacion and its supplements.
This was promulgated in 1805 by Charles IV as the Novisima
Recopilacion de lasleyes deEspana. It is a compilation of law
from the 15th century to the date of publication. In
addition to being law for Castile, the Novisima Recopilacion
was, so far as possible, made appHcable to all Spain. ^''
Although the royal decree of Charles made the Novisima
Recopilacion superior to all earlier law, yet, inasmuch as the
Novisima did not definitely repeal either the Nueva Recopila-
ci6n or the Partidas,^'' its effect was to make the Novisima
merely a supplementary code or partial codification ; for it did
not abrogate the order of the sources of Castilian-Spanish law
as fixed in the Ordenamiento of Alcala and the Laws of Toro.^''
Hence, what the Novisima Recopilacidn actually accomplished
was to make Spanish law more obscure and confusing than ever.
The Novisima Recopilaci6n is a massive production in 6
volumes^*" arranged in 12 books, 341 titles and 4142 laws.
"Considering the age in which it was compiled, it is much
'2* See supra § 297.
'^' Such as the preparation of a supplement of statutes, etc., by the
jurist Lardizabal of c. 1745, which was never published.
^^ General survey, etc., p. 585.
iss See supra §§297, 290.
'''See supra §§290, 295; Walton, Civil law in Spain, p. 79; General
survey, etc., p. 676.
"" The sixth is a supplement published in 1829.
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SPAIN 289
inferior to the Fuero Juzgo which preceded it by eleven
centuries, and to the Partidas of six centuries before."'^'
Later 19th century partial codifications of Spanish law. §304
During the years 1811-14 quite a few provisions in the law of
persons and property were reformed by statute."^ Then
gradually followed much statutory legislation in the nature of
partial codifications, especially after the year 1830."' By the
publication of the Code of Commerce of 1830 a complete
differentiation between civil and commercial law was accom-
plished. This is the first modern code for all Spain. "^ It was
modeled on the French Code of Commerce of 1807. It was
superior to all such codes then published, filling in gaps left
by the French; and it is perhaps the most complete ever
framed."^ It was revised in 1886."^ Both the original and the
revised Spanish Code of Commerce was extended to Cuba,
Porto Rico, and the Philippines."' In 1870 the recording of
births, deaths, and marriages ceased to be under ecclesiastical
control, and was made a matter of civil registry.
IV. Modern Spanish law ; period of uni-
formity and complete codification of law
The Spanish Civil Code of 1889 and modern Spanish law. § 305
The final step in the development of Spanish law was the
framing of the present Civil Code for all Spain, which abro-
gated the centuries-old diversity of Spanish law. This ideal
of one uniform codified Spanish law was not easily realized
in the 19th century. The Civil Code draft of 1851, which
represented eight years of labor, was rejected. In 1880 the
"1 Walton, Civil law in Spain, p. 79.
"^ See General survey, pp. 690 et seq.
i« Id.
"* Commercial Laws of the World, p. 19. This code was the work of Sainz
de Andino.
»5 Id. pp. 17, 19, 22.
"6 Id., p. 19.
"'The original code of 1830, was extended to these colonies in 1832;
the revised code of 1886 was extended in the same year to Cuba and
Porto Rico, and two years later to the Philippines. See 32 Commercial
Laws of the World, "Spain," p. 19.
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290 THE MODERN REALM OF ROMAN LAW
project reappeared, and with it the purpose of fusing CastiHan
law with the other regional Spanish law. This plan did not suc-
ceed : the forces favoring the conservation of the separate civil
jurisprudences were too strong. But the defeat was only
temporary : five years later the preparation of a general Civil
Code was again started. In 1888 the work of unifying and
codifying Spanish civil law was finished. And the new Civil
Code went into effect the following year, being promulgated
by the Queen Regent in the name of her son Alfonso XI IL'^'
The Spanish Civil Code of 1889 is modeled on the Code
Napoleon of 1804,"' and is the latest of all the republications
of that marvelous code. The plan of the Spanish Civil Code,
its spirit, very many of its details, provisions, chapters, and
titles are literally borrowed from the French code. 1 1 is not by
any means, however, a slavish imitation of the Code Napoleon :
on the contrary it is often superior to the French code in clear-
ness, precision, and method. The Spanish Civil Code is more
scientific than the French : some of its provisions embody the
perfections of time and legal science for the eighty-five years
since the Code Napoleon.
The Spanish Civil Code is the successful outcome of the
world-mission of Roman law in Spain to produce a uniform
codified national law. It contains some compromises, — for
instance the recognition of the civil as well as the religious
form of marriage."" In imitation of France, Spain has also other
codes: Penal, "-^^ Civil Procedure, '^^ Criminal Procedure,'*'
Commerce."^
21. SPANISH AMERICA
§ 306 The government of the Indies or American possessions of
Spain. The discovery of the New World by Columbus in 1492,
followed by the American conquests and exploits of Cortes
and Pizarro and other brave explorers, gave to Spain enormous
"8 Began to reign 1886. The regency 's' Promulgated 1870.
of Maria Christina lasted until 1902. «« 1881.
"' See supra § 254. "s 1882.
"» Article 42.
"* 1890. This is inspired by the Commercial Code of 1886, which is a
revision of that of 1830: see supra § 304.
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SPANISH AMERICA 291
colonial dominions. Soon it became necessary to devise a
government and law for the new colonial empire : in 1503 the
Casa de Contratacion or "India House" was established at
Seville to regulate the colonial trade. Some twenty years
later, in 1524, the Emperor Charles V enlarged the legislation
of his grandfather Ferdinand, and established the Council
of the Indies. '^
Thereafter the Spanish-American possessions were governed
by the Council of the Indies, subject to the authority of the
King. But when in the 19th century a new form of govern-
ment was established in Spain as a result of the French inva-
sion, the colonies were placed under the control of the Cortes,
which legislated for them. With the restoration of the Bour-
bons in 1814, the Spanish sovereigns continued to enact laws
for the colonies. Prior to the 19th century revolution and
separation of the colonies from Spain, there were nine distinct
colonial governments in America. Four were vice-royalties:
Mexico, Peru, La Plata, and New Granada. The other five —
Yucatan, Guatamala, Chile, Venezuela, and Cuba — were
captain-generalships.^
The law of the Spanish-American colonies. The laws §307
enacted in Spain for the colonies in the Americas were col-
lected and digested in the year 1680 in the famous Recopilacion
de las leyes de las Indias or Laws of the Indies.' This com-
pilation is the primary source of Spanish-American colonial
law. But if the far-seeing wisdom of the Recopilacion de
Indias with its wealth of details had not anticipated any *
possible case that might arise, then it was provided in the
Laws of the Indies themselves that the laws of Castile should
be observed.^ The order' in which these should be employed
was as follows^: (1) the latest laws enacted for the colonies;
^ This ordinance of 1524 is translated in full by Walton, Civil law in
Spain and Spanish America, pp. 519-20, Washington, 1900. The Casa
de Contratacion was made subordinate to the Council of the Indies, being
transferred in 1717 to Cadiz.
2 As to the details of the colonial governments, see Walton, Id., pp. 520-1.
^ See supra § 299.
^ Book 2, title 1, laws 1 and 2.
5 This is the order of preference of the first law of Toro. See 1 Com-
mercialLaws of the World, p. 5, Boston, 1911.
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292 THE MODERN REALM OF ROMAN LAW
(2) the Nueva Recopilaci6n " ; (3) the Laws of Toro ^; (4) the
royal ordinances of Castile; (5) the Ordenamiento of Alcala *;
(6) the Fuero Juzgo ^ (7) the Siete Partidasi"; (8) the Con-
sulado del Mar, ^^ and the Ordinances of Burgos "^^ until the
Ordinances of Bilbao were promulgated in 1737, — thereafter
those of Bilbao. 1'
Thus the Castilian law became the fundamental law of the
Spanish possessions in America. But the condition of the
colonies was not always the same as that of the mother coun-
try : hence by the Laws of the Indies ^* it was provided that no
Spanish law should be binding in America unless made appli-
cable to the colonies by an order of the Council of the Indies.
As a result not every Spanish law was extended to America;
while some laws, not in force at home, were enacted specially
for the colonies.
There are no official collections of the Spanish-American
colonial law subsequent to the Recopilaci6n de -Indias, unless
the later editions of this work in 1756, 1774, 1791, and 1841 be
so considered. The colonial laws from 1680 to 1787 are con-
tained in the accurate and painstaking work of the Mexican
judge Belena." There is, however, an official Mexican collec-
tion to 1821.16
§308 The modem Spanish-American republics codified their
law during the latter half of the igth century. As a result of
the revolution of 1810-26, all the Spanish colonies of Cen-
tral and South America became independent of the mother
, country, and were transformed into various republics."' Dur-
ing the 19th century all the Latin -American republics '* codified
« See supra § 297. •» See supra § 290.
' See supra § 295. " See supra § 285.
* See supra § 290. " See supra § 301, note.
» See supra § 281. " See supra § 301.
^* Book 2, title 1, law 40. See also Walton, Civil law in Spain, etc., p. 526.
'^ The Recopilacion sumaria de todos los autos acordados de Real A udien-
cia y Sala del Crimen de esta Nueva Espana, etc., in 2 vols.
'" The Colleccion de los decretos y ordenes de las Cortes de Espana, que se
reputan vigentes en la RepuUica de los Estados Mexicanos, Mexico, 1829.
" See Walton, Civil law in Spain, etc., pp. 10-17, for details.
" Except Panama, which inherited codes of law from Colombia.
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SPANISH AMERICA 293
their law.^' Many of their codes are excellent productions, (§308)
comparing favorably with the modern European codes.
All the Latin-American Civil Codes are modeled on the
French Code Napoleonj^" but their Commercial Codes are
generally based on the Spanish.^'
Roman law in a Spanish or a Portuguese dress has con-
quered the whole of South and Central America. These
Latin-American provinces of the modern realm of Roman law
are together far superior in size to the Roman Empire of
Augustus. Most striking also is the fact that all the law of
both American continents (with but few exceptions,-^) is
written in only two languages ^ — -English and Spanish, the two
great languages of the New World.^'
" The following is a partial list of Latin-American codes (many of these
have been amended) : I. Central America. Costa Rica: Civil Code (1856),
Code of Commerce (1866). Guatemala: Civil Code (1877), Code of
Commerce (1877). Honduras: Land Laws (1888). Mexico: Civil Code
for Federal district (1884, repealed that of 1870), Code of Commerce
(1889, repealed that of 1884), Penal Code (1871). Nicaragua: Civil,
Commercial, and Penal Codes. Panama: (Colombian Codes in force prior
to the Revolution of 1903. Panama now has similar codes). Salvador:
Civil and Commercial Codes. IL South America. Argentina : Civil Code
(1871), Code of Commerce (1890, repealed that of 1862), Civil Procedure
(1880). Bolivia: Code of Commerce (1891). Brazil (see supra §278).
Chile: Civil Code (1857), Code of Commerce (1867). Colombia: Civil
Code (1891); Code of Commerce (1887). Ecuador: Civil Code (1887),
Code of Commerce (1878). Paraguay: Civil and Commercial Laws
(1880-93), Land Laws (1885-92). Peru: Civil Code (1851), Code of
Commerce. Uruguay: Civil Code (1895), Code of Commerce (1866,
revised 1885). Venezuela: Commercial laws (1861-90), Civil Code
(1896) . As to the law of the South American Guianas, see supra § § 258,
271. The law of the West Indian Island of Trinidad, at the time of its
acquisition by Great Britain, was Spanish, but this old law is now extinct:
Reis, Spanish law in the British Empire, Journal Soc. Comp. Legisl. n. s.
no. 30, Jan. 1914.
2» See supra § 254.
2^ See supra § 305.
22 These are principally Portuguese, Brazil, and bilingual English and
French Quebec.
2' Spanish America can rightfully, claim the honor of having the first
university in the Americas. The oldest university established in the
New World is the Peruvian San Marcos, founded at Lima in 1553. There
were at least six universities in Spanish America before Harvard College
was founded in 1638.
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294 THE MODERN REALM OF ROMAN LAW
22. SPANISH LAW PARTS OF THE UNITED STATES
§ 309 Spanish law in the continental United States. A very large
part of the continental United States has been subjected to
the influence of the Roman-Spanish law of the period between
the 16th and 19th centuries. '^ In 1512 Ponce de Leon discov-
ered Florida, which became a Spanish possession and settle-
ment. Three centuries later, in 1819-20, Spanish Florida
was ceded to the United States. Scarcely any traces of
Spanish law can be found to-day in the law of Florida, Alabama,
and Mississippi.^
Louisiana was ceded to Spain by France in 1763. There-
after the Laws of the Indies and other Spanish colonial law,^
including the Nueva Recopilaci6n and the Siete Partidas,^
were the law of the land from the Gulf of Mexico up the
Mississippi River to the Rocky Mountains and Manitoba.
In 1803 France regained Louisiana, only to transfer it to the
United States a year later. ^ The Roman-Spanish and the
Roman-French law have coalesced in Louisiana in the modem
Louisiana Civil Code promulgated in 1825.*
By the Louisiana Purchase of 1804, President Jefferson
added to the United States a territorial area equal to half of
Europe. Although the Roman-French-Spanish law became
superseded north of the modem state of Louisiana by the
English Common law,^ yet traces of the former law can be
occasionally found in some of the states carved from the Louisi-
ana Purchase.^ In the states of Arkansas, Missouri, Iowa,
1 See supra § § 306 et seq. and also § | 279 et seq.
2 Parts of the last two originally belonged to Spanish Florida. In 1829
the English Common law replaced the territorial law of old Florida. See
Florida Revised Statutes (1906), §59;. Hart v. Bostwick, 14 Fla. Reports,
p. 16 (1872).
3 See supra §§299,307.
« See supra §§297,291.
* See supra § 263.
^ See supra § 264.
'Id.
8 For instance, Missouri's civil procedure in some respects is reminis-
cent of that described in Justinian's Institutes: Howe, Law in the Louisiana
Purchase, 14 Yale Law Journal, p. 77.
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SPANISH LAW IN THE UNITED STATES 295
Kansas, Nebraska, Wyoming, Montana, Colorado, and the
twin Dakotas, the influence of the model Louisiana Civil Code
has been quite marked: this is a permanent tribute to the
excellence of Livingston's amalgamation of Roman-French-
Spanish law.'
As the result of the war between the United States and
Mexico 1844-48, an enormous territory — equal to the com-
bined area of Germany, France, and Spain — was ceded to the
United States. The law of this region had been the Spanish
law as found in Mexico : Laws of the Indies, Nueva Recopila-
cion, Siete Partidas, and other Spanish colonial law."^" Traces
of Roman-Spanish law are visible to-day in the civil law of
the states carved out of the Mexican Cession — particularly
Texas," Arizona,'^ New Mexico," and California," where the
law of property, obligations, and irrigation reveal cases of direct
Roman descent via Spanish colonial law.'^^ The California
Civil Code, promulgated in 1872, although not equal in excel-
lence to the Louisiana Civil Code,^' is nevertheless a meritorious
production, and has materially assisted the progress of Cali-
fornia law by giving the people of that state some of the
benefits of a codified jurisprudence.
Spanish law in Porto Rico, the Philippines, and the Panama § 310
Canal Zone. Prior to the cession in 1898 of Porto Rico and
the Philippines to the United States as a result of the war with
Spain,' ^ these Spanish colonies had been given the various
modem codes of the mother country. "^^ And the Spanish Civil
» See supra § 264.
'" See supra § 307.
^^ Adopted the English Common law in 1840.
'2 Did likewise in 1885. See Luhrs v. Hancock, 181 U. S. Supreme Ct.
Reports, p. 567 (1901).
^^ See Browning V. Browning, 3 N. M. KepoTts, p. 371 (1886); Albright
V. Territory, 79 Pacific Reporter, p. 714 (1905).
" California adopted the English Common law in 1850.
'5 Consult any Digest of Decisions of the Courts of the above-named
states, or any state statutes. See also Ware, Roman water law, p. 141,
St. Paul, 1905.
i« See supra § 264.
" See Walton, Civil law in Spain, etc., p. 17.
I* The original Spanish Code of Commerce of 1830 was extended to these
colonies in 1832; the present revised Spanish Code of Commerce of 1886
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296 THE MODERN REALM OF ROMAN LAW
! 310) Code is still law in both Porto Rico an4 the Philippines, having
suffered only a few unimportant changes: the principles of
Roman-Spanish civil law are too firmly established to be
altered. But the other Spanish codes have either been super-
seded or amended'^: in Porto Rico the Spanish penal code
and codes of criminal and civil procedure have been abro-
gated,^" and the code of commerce has been altered^'; in the
Philippines the Spanish commercial code has been amended
similarly as in Porto Rico, while the criminal and civil proce-
dure codes have been greatly altered. ^^ For utilitarian reasons
alone, ignoring all others, the American acquisition of Spain's
former colonies has given a tremendous impulse to the study
of Roman and Spanish law in American law schools. And this
movement must inevitably produce a reflex influence for the
betterment of the native American law — signs of it are already
apparent.
The Panama Canal Zone was originally Colombian terri-
tory. In 1903, when the Republic of Panama was established,
was extended to Porto Rico in 1886 and to the Philippines in 1888; the
original Code of Civil Procedure of 1856 jvas extended to Porto Rico in
1865, and the present revised Code to Porto Rico in 1885 and to the Philip-
pines in 1888; the Penal Code to Porto Rico in 1879 and to the Philippines
in 1884; the Code of Criminal Procedure to Porto Rico in 1889 and -to the
Philippines in 1888; the Civil Code to Porto Rico and the Philippines in
1889; the Mortgage Law to Porto Rico and the Philippines in 1893.
See Walton, Civil law in Spain, etc., pp. 601, 492 et seq; General survey, etc.,
p. 688; 32 Commercial laws of the world, "Spain," p. 19; supra §§ 304, 305.
1' The Foraker Act of 1900 as to Porto Rico expressly stated that the
existing law should continue until amended or found inconsistent with the
changed political conditions. 31 U. S. Statutes at Large, 77, § 8. See also
Fernandez y Perez v. the Same, 202 U. S. Supreme Court Reports, p. 80-101 ;
Marmion v. Pelegri, 1 Porto Rico Decisions, 225 (1902) ; Rivera v. Cadierno,
3 P. R. Fed. Reports, 43 (1907).
20 New codes considerably like those of California have replaced them.
Special features of English law, such as the jury system, have been engrafted
on Porto Rican law.
21 For instance, the provisions as to corporations are now covered in the
latest edition of Civil Code (1902), and the Federal law of bankruptcy now
applies to Porto Rico.
22 Civil procedure is modeled on that of California. In 1909 a com-
mission was appointed to prepare new codes for the Philippines.
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JAPAN 297
the various civil, commercial, and criminal codes of Colombia ^^
were in force at the Isthmus. And these Colombian codes were
at first continued as the law of the Canal Zone. But now the
criminal and civil procedure codes have been repealed and
replaced by other codes based on American law. Except where
altered, the civil law of the Canal Zone is the same as that of
Colombia.^*
23. JAPAN
The great influence of the French Civil Code in Japan after ^^n
the overthrow of the Shogunate and the Restoration of the
Imperial authority. In 1868 the power of the Shogunate was
overthrown and the authority of, the Mikado was restored.
This event marks the beginning of modem Japan. At the
time of the Restoration there were few written laws in Japan,
and the Japanese customary law was uncertain and variable.
Hence by a decree of 1875 the judges were ordered, in deciding
cases, to apply first the written law; if there was none, to
apply the customary law; if there was none, to be guided by
reason and equity. '^ This decree really made the legal knowl-
edge of magistrates the sole aptitude both for determining the
scope of the- imperfect written and customary law and for
defining the rules of natural equity.
In order to decide cases according to natural equity, it
became necessary for judges to know as soon as possible the
principles of European law. They were at once attracted to
modern Roman-French law,^ owing to the then influence of
France in the Far East caused by the policy of Napoleon III.
During the last years of the Shogunate, several features of
French civilization had already been introduced into Japan.'
And after the Restoration of 1868 France remained the
2' See supra § 308, note.
2'' See Hinckley, Canal one laws and judiciary, 17 Case and Comment,
220-22; 7 CommercialLaws of the World, "Panama Canal Zone," pp. 111-12.
^ Gorai, Influence du code civil frangais sur le Japon (in Liiire du cent,
du code civil, 1804-1904, vol. ii, p. 781, Paris 1904).
2 See supra § § 254 et seq.
' Such as the reorganization of the army on the French model. See
Gorai, Id. p. 783.
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298 THE MODERN REALM OF ROMAN LAW
(§311) directing influence in Japan. Consequently the Imperial
Government chose France to direct the great work of reforming
Japanese law. For not only is natural equity the very founda-
tion of modern French law and has made it suited for other
peoples of the present age, but at the time of the Japanese
Restoration, France alone had a complete system of codified
law, certain and easily comprehended. English law was, as it
still is, uncertain and not codified.
Yeto, the first Minister of Justice after the Restoration,
commissioned the Japanese jurist Hitzukuri to translate the
French Civil Code.^ But this translation alone was not
sufficient to cause Japanese judges to render just and equit-
able decisions; persons competent to guide the magistrates
were needed. And the French government was asked to send
over some skilled jurists. Three distinguished Frenchmen
went to Japan: Boissonade, Bousquet, and Benet. Of these
Boissonade was to become the most famous. All three were
appointed counselors to the Minister of Justice. Their duties
were very interesting, and opened the way for French law to
influence Japanese law. They endeavored to give to the
Japanese judges the principles of law on which their decisions
should rest; they assisted in the promulgation of isolated
laws; and they did more than this, in hard cases these
Frenchmen, whenever consulted by the Japanese judiciary,
would render judgment themselves, and their opinions became
at once the decisions of Japanese tribunals.^ Thus a Japanese
jurisprudence grew up under French direction. Naturally
these French jurists in the Japanese service followed if possible
the principles of French law; and consequently the Code
Napoleon came to exercise great influence in Japan.
The Imperial Government also desired that law be taught to
aspirants for the bench, and formed in 1872 a school of law at
the Ministry of Justice.^ This was presided over by Boisson-
ade and Bousquet, who naturally taught French law. Four
years later a "special school of French law" was established
at the Ministry of Justice, where it existed for nine years.
* Gorai, Id. See also supra § 254.
' Gorai, Id.
6 Gorai, Id. p. 784.
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JAPAN 299
There French law was taught in the French language by a
Frenchman named Appert.' The graduates of this school
exercised an enormous influence in Japan either as judges or
law teachers. In 1877, the next year after the "special school
of French law" was established, the Japanese government
formed another law school : there French law was studied in
the Japanese language.
A few years earlier, in 1870, the law school of the university
of Tokyo had been organized. The Tokyo law school graduates
of the year 1878 were the first to study Anglo-American law.
French law was also studied at the Tokyo law school. And
when in 1885 the school of law at the Ministry of Justice was
abolished, the students were sent to Tokyo and there founded
a new section, that of French law.^ Boissonade, Appert, and
other Frenchmen ' taught here.
But in addition to the above official governmental measures
for the propagation of French law in Japan, there were some
unofficial private ways whereby its influence during this era
entered the country. Since 1879 five private law schools were
established at Tokyo, which are to-day recognized as universi-
ties by the government.^" Two of these taught French law,
and all were under its influence; their several thousand stu-
dents naturally became inspired by French law. Furthermore,
many standard treatises on French civil law, such as those of
Laurent, Demolombe, Hue, Mourlon, Baudry-Lacantinerie,
were brought to Japan, and materially aided the spread of
French law influence in that country. As a result of the
teaching of French law in Japan, whether at official or unoffi-
cial law schools, the French Civil Code actually served as
the basis of Japanese law from 1870 to 1890.^1
Boissonade's draft of a Japanese Civil Code, which almost §312
went into effect. The influence of French law penetrated
Japan through still another channel: attempts to codify
Japanese law. As early as 1872 the first Imperial Minister of
' Gorai, Id.
8 Gorai, Id.
'MM. Revilliot, Revon, and Bridel.
i» Gorai, Id. p. 785.
" Gorai, Id. pp. 785, 787, 788.
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300 THE MODERN REALM OF ROMAN LAW
(§312) Justice, Yeto, had proposed the making of a Civil Code for
Japan, and began the work of preparation with the aid of , the
counselor Bousquet.'^^ Count Oghi, who succeeded Yeto,
commissioned in 1878 two Japanese jurists to draft a code.
Their work, however, was merely an abridged translation of
the French Civil Code.'' The following year Count Oghi
intrusted the project to Boissonade, who, after carefully
working out the scheme of a draft, completed a part of the
proposed Civil Code during the next year, 1880. But the
provisions as to persons, successions, gifts, and marriage were
intrusted to three Japanese jurists, in order that the native
law as to these matters should receive due attention : neverthe-
less their completed work shows that they themselves drew
heavily on the French Civil Code for the law on the subjects
assigned to them, and rejected traditional Japanese legal prin-
ciples.^* The entire draft for a code was then submitted to a
special commission, among which were members of the Council
of State, judges, and senators. It was accepted; and the code
of Boissonade was promulgated in 1890 to go into effect in
1893.
The time for giving full effect of Boissonade's code had
almost been reached, when a reaction occurred. In 1892 the
Japanese Diet voted to postpone the going into effect of Bois-
sonade's code until 1896, on the ground that it ought to be
revised. As it stood, his work was largely a reproduction of the
French Civil Code, benefited, however, by provisions taken
from the Italian code: in his commentary Boissonade indi-
cated under each article of his draft the corresponding articles
of the French and Italian codes. And the chief reasons
advanced for the proposed revision were that Boissonade's
code was too much like the French, did not sufficiently conform
to Japanese customary law, and ignored both the German and
English systems of law.^^ Furthermore, certain Japanese jur-
ists, influenced by English law, took advantage of the oppor-
12 Gorai, Id.
" Id. pp. 786, 787.
'° Gorai, Id. p. 787. The present German Civil Code was then fast
approaching completi on. . See infra "Germany" § 344.
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JAPAN 301
tunity to deny the necessity of any codification; but their
opposition was unsuccessful . A new commission, among which
were men acquainted with German and EngHsh as well as
French law, was appointed to revise Boissonade's code.^' The
result of their labors for three years was an entirely new and
different code, adopted in 1893 to go into effect in 1898.
Although Boissonade's code was abolished before it went into
effect, yet in reality it was applied by Japanese judges from
1880 to 1896 : for in order to render decisions based on natural
equity, in the absence of written or customary Japanese law,
the courts used to apply between the years 1880 and 1890
Boissonade's code and the French; after 1890 and until 1896
they applied Boissonade's code exclusively.'^ The influence
in Japan of Roman-French law of the Napoleonic codification
was unbroken from 1870 to 1896, and has been forever incor-
porated in modem Japanese law.
The Japanese Civil Code of 1898 and modern Japanese law. §313
Although Boissonade's Civil Code for Japan failed, it prepared
the way for the present Civil Code which went into effect in
1898: about one-half of the provisions of the Japanese code
are derived from the French either directly or through the
intermediary code of Boissonade. The Japanese Civil Code
is a very excellent piece of work.'* To the influence of the pres-
ent Roman-German Civil Code '' are due the order of arrange-
ment and the philosophical spirit found in the Japanese code.
In other words, from the French Civil Code the Japanese
borrowed practical rules; from the German, theory. In one
respect the Japanese code is decidedly original ; the law of the
family organization is traditionally Japanese.^" From the
Swiss Federal Code of Obligations of 1883 came many prin-
ciples of the law of obligations.^' To English law are due many
principles of the Japanese law of torts and commercial law.
16 Gorai, Id. p. 788.
" Gorai, Id. pp. 787, 788.
18 It has been translated into English by Lonholm, Tokyo, 1898, and
by De Becker, London, 1909. See also infra vol. iii, § 978.
Incompleted in 1896, effective in 1900. See infra "Germany," §344.
2» See Books IV and V of the Civil Code.
" Book III of the Civil Code. See infra "Switzerland," § 358.
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302 THE MODERN REALM OF ROMAN LAW
Japan, like the states of Continental Europe, has codified
other parts of her law ; in imitation of the Napoleonic codifica-
tion Japan has a Code of Civil Procedure, ^^ a Code of Com-
merce,^' Penal Code, and Code of Criminal Procedure. Japan
is truly a province of the modem realm of Roman law. The
Code of Justinian has been emulated by the notable codes of
this Asiatic power.
24. GERMANY
§314 Modem Germany is of recent creation. Very youthful is
modem united Germany, which was formed in 1871. Pre-
viously for many centuries "Germany" had been merely a
geographical expression, which did not signify one united
country, as now. For 1000 years following the revival of the
Western Roman Empire by Charlemagne down to its extinc-
tion by Napoleon the various German States owed allegiance
to the Emperor, which dignity finally became permanently
fixed in the Hapsburg sovereigns of Austria. ^ But as the
various German States from late medieval times onward grad-
ually obtained virtual autonomy, the German tie of union
with the old Empire — ^ never very strong ^ — -at last became
extremely loose and weak. Napoleon destroyed the vestiges
of the venerable medieval Roman Empire. After the destruc-
tion of the Napoleonic Empire, Austria and Prussia became
rivals for the German hegemony. The contest finally ended
in a triumph for Prussia as a result of the War of 1866 with
Austria. Five years later the Franco-Prussian War resulted
in the formation of the modern Empire of Germany, the office
of Emperor being made hereditary for the kings of Prussia.
§315 Periods of German legal history. The history of the develop-
ment of German law into its present form has four well-defined
2" Promulgated 1891. Being largely identical with the German Code of
Civil Procedure, the promulgation of the new Japanese Civil and Com-
mercial Codes have tended to impair its value: hence there is need of a
revision of the Code of Civil Procedure.
2' The Code of Commerce was promulgated in 1899. It is based prin-
cipally on the German Code of Commerce of 1897, although the law of
bankruptcy is like that of the French Code of Commerce. See infra vol. iii,
§978.
1 See supra §§208, 221, 231.
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GERMANY 303
periods: prior to the 15th century; from the 15th to the 17th
century; from the 17th century to the codification of German
law very late in the 19th century; modern German law.
I. Germany prior to the 15th Century:
period of almost exclusively Teutonic ^ law
Ancient Germany, a country never subject to Roman rule, §316
formed part of the medieval Roman Empire of Charlemagne
and his successors. Ancient Germany was never conquered by
Rome ; it was a barbarous country beyond the limits of the
Roman Empire. But because Germany subsequently came to
form part of the so-called revived or medieval Roman Empire,'
it finally adopted Roman law very extensively. When Charle-
magne was crowned Emperor at Rome on Christmas day 800,
Germany was but a collection of rude and fierce tribes. The
only town in Northern Germany was Magdeburg. Charle-
magne himself founded Bremen and Hamburg. Southern
Germany nearest what is now France was more civilized;
the small towns of Cologne and Frankfort-on-the-Main
marked places where Roman legions had been anciently
stationed.
Development of a native customary feudal law in Germany § 317
after Charlemagne. After Charlemagne's death feudalism
triumphed in Germany. The early Teutonic leges * as well
as the Imperial capitularies " of Charlemagne and his succes-
sors, not being studied or serving as legal literature,* sank into
oblivion. Law in Germany, following the decay of the Prank-
ish Empire, soon ceased to be personal ^ and became largely
2 The word "Teutonic," as used here and infra, means "Germanic,"
i.e., the native customary law and usages of the various German peoples
inhabiting Germany.
2 See supra § 314.
* These refer primarily to the early "codes" made by the Franks, Saxons,
etc. for their Teutonic subjects. For the "Leges Romanae barbarorum,"
see supra §§ 133 et seq.'
^ Or statutes.
° As in Italy, for example.
'See supra |§ 133, 225, 2.35.
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304 THE MODERN REALM OF ROMAN LAW
(§317) territorial.^ Germany was dismembered into very many
districts of particular law. The racial Germanic law suffered
the greatest disintegration in Bavaria, where Austria, Upper
Bavaria, Salzburg, and Styria developed their individual
territorial law. But the process of dismemberment of Ger-
manic law did not stop with the formation of a regional terri-
torial law: a manorial law arose, ^ and with the development
of towns and cities a town law was engendered.'"
All this diversified territorial law was of course additional
to the Imperial law." This native particular or local law was
intensely feudalistic in character, so much so that the six
centuries of German legal history following Charlemagne are
aptly described as the feudal period of German law. Prior
to the 13th century the native Germanic law is usually un-
written'^: thereafter written law is found in German j^
Although Latin was the first language of the sources, German
was soon employed and predominatingly after the middle of
the 13th century.'' But the unwritten customary law con-
' As to the sources of this territorial law, see General survey, etc. (vol. i,
Continental Legal History Series, Boston, 1912, containing translations of
parts of the works of Brunner, Landsberg, Schroder, Siegel, Stinzing,
Stoffe, Zopfl on German law), pp. 312, 317-25.
" As to the extant sources of the manorial, also called servitary, law
seeGeneral survey, etc., pp. 313, 325-7.
'" Since the middle of the 12th century, this town law has been known in
middle and Northern Germany as the "Weichbild." As to the sources
of town law, seeGeneral survey, etc., pp. 313, 327-31.
" The sources of the Imperial law (of the medieval Roman Empire)
down to the middle of the 12th century are few. The legislation of the
Hohenstaufen Emperors who inserted some of their laws in the Code of
Justinian (see supra § 211 note) are the best remembered. Imperial
Statutes were made by the Emperor with the concurrence of the Diet or
Imperial assembly. The Imperial statutes fall into two classes: (1) Public
Peaces [constitutiones pacis) proclaimed for the whole or part of the Empire
and prohibiting feuds and the breaking of the peace, the earliest of which
goes back to Henry IV and the year 1103; (2) Constitutional Statutes,
also called Concordats — such as the early Worms Concordat of Sept. 23,
1122 as to the disputed question of investitures. See General survey, etc.,
pp. 312, 315-31, 332, 434, 445.
12 It was normally developed by the decisions of lay-judges [Schoffen),
although in doubtful cases local "jurists" upon inquiry had power to declare
what is the law. Id. p. 312.
" Id. p. 314.
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GERMANY 305
tinued to exist throughout much of Germany. What Httle
Roman law drifted into Germany prior to the 15th cen-
tury was confined entirely to the sphere of the Church's
authority as administered through its ecclesiastical courts and
Canon laW.'*
The 13th century Sachsenspiegel. The creative period of §318
native Germanic law came to an end in the 13th century, when
the body of Teutonic customs was reduced to writing in two
remarkable compilations: the "Saxon Mirror" (Sachsen-
spiegel) and "Swabian Mirror" (Schwabenspiegel). The
Sachsenspiegel is the earliest German treatise on the racial
customary law.^^ Its author, Eike von Repkow, is the earliest
known German jurist: unassisted by any predecessors and
drawing his material from his long practical experience as a
judge,'' he described the traditional Saxon law then in force."
He wrote in the Latin language, probably in order to make his
work of equal dignity to the foreign (Roman) law ; but subse-
quently he composed a German text."^* His compilation with its
wealth of toriginal material soon obtained great prestige, and
was actually given statutory authority in the Saxon courts. ''
The Sachsenspiegel became very popular and exerted a
great influence over all Germany. All the immediately sub-
sequent literary records of German law rest on the Sachsen-
spiegel.^" It was subsequently translated into other German
^^ General survey, etc., p. 336. See also supra §§225 et seq.
'* As to editions, see Homeyer, Des SachsenspiegeU erster TheiP, etc.
(1861) ; Id. zweiter Theil, etc. (vol. i, 1842, vol. ii, 1844) ; Weiske, Sach-
senspiegel Landrecht^, (1905).
1^ It is quite possible, however, that he made some use of the Frankfort
Peace Statute for Saxony of Henry VII: see supra! §317, and General
survey, etc., p. 318.
^''General survey, etc., pp. 318, 342. The Sachsenspiegel was composed
between 1198 and 1235 during the supremacy of the Hohenstaufen Emperors.
'* Id. pp. 318, 343. Probably some Saxon dialect was employed.
19 Id. p. 319.
" The Sachsenspiegel itself was systematically revised several times.
The early 14th century Saxon Weichbild or municipal law, the Rechtsbuch
nach Distinctionen, the Kleines Kaiserrecht of the same century, and also the
Reichsteige of Johann von Buch are the most important instances of the
literature due to the influence of the Sachsenspiegel. Id. pp. 313, 321, 322,
343, 348.
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306 THE MODERN REALM OF ROMAN LAW
dialects including High German and Dutch, and also into the
Polish and Latin languages. ^^ The High German translation
was commonly known as the Deutschenspiegel.^^ It is an
ambitious work: in it the unknown translator made interpo-
lations so as to present all the Germanic law and not merely
the law of a single Germanic racial branch as did the author of
tho original Sachsenspiegel.
§319 The 13th century Schwabenspiegel. In the reign of the
Emperor Rudolf I, founder of the House of Hapsburg, ap-
peared the Schwabenspiegel.^' The author of this work was
an ecclesiastic whose name is not known. Although he fol-
lowed in the pathway of the Sachsenspiegel as enlarged by the
Deutschenspiegel,^* yet his method was far different than that
of the author of the Sachsenspiegel : the latter took his material
from existing legal practice, but the former constructed the
Schwabenspiegel from written sources of Germanic law for-
gotten or in disuse.^^ And very significant of the approaching
of a new period in German legal history is the author's treat-
ment of the Roman and Canon laws: in the Schwabenspiegel
occur single passages of Roman law — thus heralding the
reception of Roman law into Germany.
§320 The 13th century Laws of Wisby. Roman law early found
a lasting entrance in certain German maritime cities. The
third and last of the three great maritime codes of the Middle
Ages was the Laws of Wisby, compiled in 1240.^'* Wisby
(Visby),the capital city of Gotland, an island in the Baltic
Sea, was the metropolis of the famous Hanseatic League
'^ Id. p. 319. Several Latin translations were made of it.
^ Its true title is "Spiegel der deutschen Leute."
^' It was composed about 1275; although the date has been placed as
early as 1259. Its correct title is the"Kaiserliches Land- und Lehnrecht, "
but since the 17th century it has been known as the "Schwabenspiegel"-
see General survey, etc., pp. 320, 348. As to editions, see that of Lassberg
(1840); Gengler (Landrecht only, 2d ed. 1875); Matile, Le miroir de
Souabe (1843).
" See supra § 318.
^ Such as primitive popular Teutonic codes, the imperial capitularies
of Charlemagne and his successors. Hence the Schwabenspiegel states
the law not as it was, but as it ought to be. Id. p. 348.
" 24 Encycl. Britan.^^ p. 536.
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GERMANY 307
inaugurated by the cities of Liibeck, Bremen, Hamburg, and
Danzig. This League began late in the 12th or early in the 13th
century, and its object was to protect commerce against the
robber barons of Germany and the pirates of Denmark and
Norway. The Hanseatic League at one time comprised over
seventy cities, some in the very heart of Germany like Frank-
fort, Cologne, and Brunswick.^' The Russian city of Novgorod
was at one time affiliated with the League. To provide for
the settlement of controversies with each other, the Hanseatic
League promulgated at Wisby a code of maritime law imitat-
ing closely the earlier Consolato del Mare and Laws of Oleron,^^
both of which were confessedly based on the Roman Civil
law.^'
II. Germany from the 15th to the 17th
century: period of the introduction of Jus-
tinian Roman law into Germany via the
Bologna revival
Spread of the Bologna revival of Roman law to Germany; §321
founding of German universities and law schools. Because
of the intercourse between Italy and Germany due to the fact
that both countries were, from the 9th century onwards,
the domain of the medieval Roman Emperors of German birth,
German students in the 12th and 13th centuries were attracted
to the famous schools of law in Italy, and brought back new
legal light with them.^" The Bologna revival of Roman law
^' Three of the Hansa cities preserved their independence until the 19th
century formation of the modern Empire of Germany in 1871, which they
entered as sovereign States. These three were Hamburg, Bremen, and
Liibeck, not the last important although the smallest federal States of
modern Germany.
28 See supra §§214, 236.
^" The Laws of Wisby were put into final shape during the 17th century
(1614) at the Congress of Liibeck, and were then called Jus Hanseaticum
maritimum. The text of the Laws of Wisby is given by Pardessus in his
Lois maritimes, vol. i, ch. 11, pp. 424-524 (Paris 1828-45).
3" See supra §212; General survey, etc., -p. Z^^. The German "nation"
or organization of German students at Bologna and Padua received special
privileges.
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308 THE MODERN REALM OF ROMAN LAW
study spread to Germany as it did to the rest of Europe.
Toward the end of the 14th century the German universities
began to be founded, a principal feature of which was a
faculty of law. And these new universities at once com-
menced to pay great attention to the study of Canon law
and Roman law.'' In 1385 the University of Cologne was
founded, and in the year following the university of Heidel-
berg. Four years later the university of Erfurt was formed.
In the 15th century universities sprang up all over Germany:
Wurzburg,'^ Rostock,^' Freiburg,'^ Mainz '^ (Mayence) , Trier '*
(Treves), Tiibingen,'' Miinster.'*
At the outset foreign doctors, particularly Italian Civilians,'^
filled the first chairs in Roman law at the earliest German
universities; but soon the professorships began to be occupied
by Germans who had taken doctorates abroad.^" The
movement to found German universities continued during
the 16th century, when Wittenberg,*'^ Strassburg,^^ Konigs-
berg,^' and Jena ^* were established. This impulse lasted
down into the 19th century: in the 17th century the uni-
versities of Kiel,"*^ Dresden,^^ and Halle were founded; in
the 18th century were established Stuttgart " and Gottin-
gen^^; early in the 19th century were founded the univer-
sities of Berlin ^' and Bonn.*" The Bologna revival of
learning was enormously influential in Germany, and brought
Germany forever into the realm of the Roman law.
§322 Nature of the reception of Roman law into Germany. The
native Germanic law of the 14th century was devoid of technic,
system, and certainty. To cure it of these defeats German
"■General survey, etc., pp. 353 et seq.
3' In 1467.
32 In 1403.
'« In 1473.
" In 1419.
" In 1477.
« In 1460.
«s In 1491.
'' Some of the early law professors in Germany were French and Spanish.
*" General survey, etc., p. 354. As to the courses and work of medieval
German law professors, see Id. pp. 394-6, 369-72.
<i In 1502. « In 1694.
« In 1538. " In 1775.
■" In 1544. « In 1735.
» In 1547. " In 1810.
« In 1665. '» In 1818.
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GERMANY 309
jurists naturally resorted to the study of the Imperial (Roman) (§322)
law, the authority of which was inveterately believed to apply
to Germany and the superior intellectual value of which was
very apparent. This was conformable to the political fact
that every German Emperor of the medieval Roman Empire
was regarded as the successor in title to the ancient
Roman Emperors from Augustus and Constantine to Charle-
magne. ^"^
The legal instruction in Roman and Canon law given at
the new German universities soon resulted in the development
of a large body of men, scattered throughout the towns of
Germany, who were trained in the law. Inevitably these
were consulted by the then lay -judges (Schoffen) and terri-
torial rulers. Frequently they themselves became civil
ofScials. Thus was inaugurated the evolution of a learned
judiciary, which movement began in the higher German
courts and worked downward. ^^ And long before the end
of the 17th century the lowest of the ancient courts in Ger-
many had become filled with judges trained in Roman law.
Naturally the application of Roman law widened rapidly
as the exponents of that law increased their power and pres-
tige. During the 16th century Roman law obtained such
authority in Germany that it largely supplanted the old
native customary law of Teutonic origin.
The wholesale character of this reception of Roman law
into Germany, a country not previously owning that law,
is clearly mainfested just before the close of the 15th cen-
tury.^' In 1495 (three years after Columbus discovered
America) the Emperor Maximilian I organized a central
Imperial Court of Justice, the Reichskammergericht, and
made a formal declaration of Roman law as the common law
"■ The insertion of statutes of the Hohenstaufen Emperors in the Code of
Justinian is the best instance of this political fact and belief. See supra
§ 211, note.
^^ See General survey, etc., p. 337.
'3 The reception of Roman law into Germany was a slow process of
several centuries' duration: see General survey, etc., pp. 334, 356-60,
378-81, 384r-94, 396-400.
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310 THE MODERN REALM OF ROMAN LAW
(§322) of the Empire.^^ The Corpus Juris of Justinian^* thus
obtained acknowledged validity in Germany and other parts
of the medieval Roman Empire.^^ The example set by the
Imperial Court of Justice (Reichskammergericht) was soon
followed by the High Courts of the various German prin-
cipalities, States, and towns. The reception of Roman law
spread over all Germany from top to bottom of the political
ladder. The customary Germanic law, except the land law
and certain local or "particular" laws, was submerged. Only
a few North German States remained faithful to the native
law found in the "Sachsenspiegel" and other compilations.^^
Roman law now triumphed over the native law of Teutonic
origin; it obtained the force of law throughout most of Ger-
many, and was called the "common law" (gemeines Recht)^^
or the "law of the Pandects" (Pandektenrecht).'' The
received Roman law was soon Germanized : so much so that
from the middle of the 17th century onward it was technically-
described by the apt terms of " Usus modemus Pandec-
tarum" or "Usus modemus."™
Now the Justinian Roman law was adopted in Germany
under this limitation : not from the original sources of Roman
law, but from the texts of the Roman law as glossed by Italian
scholars.'^ Roman law doctrines not recognized by the
Glossators were ignored. The German reception of the works
of the Glossators on the Justinian law books was also naturally
followed by the introduction of the Italianized Roman
law of the Commentators,*^ which was a mixture of pure
" Bryce, Studies, etc., p. 91; General survey, etc., pp. 337, 400. See
also supra §§231, 265, 266. This formal declaration merely emphasized
what had already happened.
K See infra § 135.
5^ See supra §§231, 265, 266. It was not applicable in Switzerland or
Schleswig.
" See supra § 318.
'8 Sohm (Ledlie'), Roman law, p. 5.
*' Id. Because the Digest or Pandects form the principal part of Justin-
ian's Corpus Juris: see supra §§ 135, 137.
™See Sohm (Ledlie^), Roman law, p. 152.
"^ See supra § 210.
^^ General survey, etc., p. 379. See also supra § 216.
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GERMANY 311
Justinian Roman law, the Canon law, and feudal Lombardic
law. Hence the Italian Bartolus,*' the greatest of the Com-
mentators, has been called the creator of the "common law
of Germany which sprang from the reception." ** With
Bartolus were also received, but to a lesser degree, the works
of his distinguished pupil Baldus.*^
Effect of the i6th century Protestant Reformation on the §323
German reception of Roman law. The development of legal
science in Germany at first had no direct connection with the
Protestant Reformation.^^ But when the reformatory move-
ment advanced, as was unavoidable, from the field of faith to
the domain of ecclesiastical law, a clash with positive law
occurred. Luther himself repudiated the validity of the Canon
law. This at oncedivided German jurists. Some, like Zasius,*'
abandoned the Reformation. Others, like Oldendorp,^*
and most of the younger men sided with Luther. The outcome
was finally a compromise, which declared the validity of
Canon law when not in conflict with Holy Scripture.*^' But
the Reformation did succeed in belittling the importance of
Canon law, and aroused in northern Germany great antipathy
against it. Canon law ceased to be prominent in university
courses, although its validity was never wholly destroyed in
Protestant countries. The Reformation, however, had no
effect on the secular part of the Roman-German "common
law" (gemeines Recht) imported from Italy,'" the authority
of which suffered no diminution.
Famous German jurists of the i6th century: (i) Zasius. §324
The most distinguished German jurist of the 16th century was
Zasius. '1 Although not so great as his renowned contemporary
«' See supra § 219.
" Sohm (Ledlie'), Roman law, p. 151.
^* See supra § 219; General survey, etc., p. 379.
"•^ The subject of the influence of the German Reformation on Canon
law is treated at considerable length in General survey, etc., pp. 382-4.
6' See infra § 324.
«8 See infra § 325.
^^ General survey, etc., p. 382.
" See supra § 322.
'1 Ulrich Zasius, born at Constance 1451, died at Freiburg 1536. He
studied law at Tubingen. In 1506 he became professor of law at Freiburg,
having served at that university in other capacities since 1499.
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312 THE MODERN REALM OF ROMAN LAW
Alciat,'^ yet Zasius is rightfully considered as one of the
founders of modern legal science.'' He also was a Humanist.''^
Zasius' attitude toward both the native Germanic and the
"received" Roman law was eminently sensible and helpful:
he did not hesitate to refer to the native customary law,
although analyzing many of its principles from the viewpoint
of Roman law; and he did not believe that all the Roman law
should be taught — -only such part "as might be useful." '^
Zasius at first favored the doctrines of the Protestant Refor-
mation; but after 1521 he broke with Luther, and for the rest
of his life vigorously opposed him.'^
§325 (2) Oldendorp. Another central figure of the 16th century
in Germany was the many-sided Oldendorp.''' He was a
zealous partisan of the Protestant Reformation and a doughty
Humanist. One of his works'* has given rise to the claim
that he antedates the Dutch Grotius " as a legal philosopher.
III. Germany from the 17th century to
the unification and codification of German
law very late in the 19th century: period of
diversity and partial codification of law
§326 Rise of the German Natural Law jurists in the 17th century.
Although the distinctively Roman law doctrine of an absolute
universal Natural Law had received some attention by
thinkers during the Protestant Reformation,^" in the next
century the full and consistent presentation of the Law of
'2 See supra § 242. Alciat founded the French Humanist school of
jurisprudence.
" These are Alciat, Bude and Zasius. See § 242, note, for Bude.
" See supra § 241.
''^General survey, etc., p. 427.
'6 See supra § 323.
" Johann Oldendorp (1480-1567), at one time of the law faculty of the
University of Marburg, the law courses of which he reformed. See General
survey, etc., p. 409.
'" Elementaria introductio juris naturae gentium et civilis (1539).
'0 See supra § 273.
8» See supra §§C4, 323.
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GERMANY 313
Nature was attained as one result of Grotius' epochal work on
the law of peace and war.^^ Grotius based all law, private as
well as public, on the rationalism of a moral law innate in
human nature.*^ German jurists of talent were thus led to
study the Law of Nature, — that philosophical study which
had been originally revived in the Middle Ages by the scholas-
tics.^' And the doctrine of Natural Law exercised in Germany
during the 17th and 18th centuries a commanding influence,
reflected particularly in the legislation of this era.**
One important result of the labors of this Natural Law
school of German jurists was that from the 18th century on-
ward the German universities taught the German private
law (deutsches Privatrecht) in addition to the law of the
Pandects *^ as a source of German law.** By the Privatrecht
it was attempted to construct a scientific jurisprudence out of
the 16th century "received" law of the Pandects,*'' — either
by rounding it out with still more Roman law or by annexing
to it parts of the old Germanic customary law.
To the German Natural Law jurists of the 18th century,
great praise is due for one progressive measure for the better-
ment of German law : they taught and preached the necessity
for one uniform codified system of law for all Germany.
Moreover their labors bore fruit in their own century,** even
if the truth of their teachings could not be realized until late
in the following century when Germany became a united
commonwealth .
Famous German jurists of the 17th century: (i) Giffen §327
and Althusius. The jurist Giffen (Giffanius *') , often called the
'^ See supra § 273. His Dejure pads et belli was published in 1625.
^ Neither Melancthon nor Oldendorp (supra § 325) had arrived at such
a conception.
8' See supra § 218.
** As to the influence of Natural Law in France, see supra § 252.
** See supra 1 322.
8«See Sohm (Ledlie'), Roman law, pp. 4, 154; Loewy, German Civil
code, p. xxxii, Boston, 1909.
" See supra § 322.
88 See infra § 330.
8» (1534-1616). See Great jurists of the world, p. 102 (vol. ii, Cont.
Leg. Hist. Series, Boston, 1914).
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314 THE MODERN REALM OF ROMAN LAW
"German Cujas"^" because of his ability as an exegetical
teacher, was a vigorous personal opponent of the Huguenot
Doneau while the latter taught in exile at Altdorf." Perhaps
the best "systematizer" of this century in Germany was
Althusius."^ His works display exceptional originality of
thought, preciseness, and systematical logical arrangement.
§328 (2) Conring. The father of German legal history is the
jurist Conring, '^ who in 1643 published a monumental work
on the history of German legal sources.'^ Conring's investi-
gations inaugurated a new epoch in the legal history of his
country. He showed that German law was really national;
that the Roman law received into Germany, on which the
existing common law was based, had become authoritative
not because it was the law of Justinian but because it was a
law absorbed and transformed by German thought.'*
§329 (3) Pufendorf. The great jurist Pufendorf,'' who searched
for an ethical basis of international law, formulated "the basis
of a universal legal science."'^ Pufendorf 's knowledge of
Roman law was very thorough . He occasionally drew material
from Germanic legal sources.'^ Although he paid little atten-
tion to Canon and ecclesiastical law, he was the means of
introducing into German jurisprudence Dutch and English
ideas.
Pufendorf's brilliant work in the field of German public
law, so original, profound, and discreet, was epoch-making
and exerted great influence on subsequent times. Recognizing
that sovereignty actually was to be found in the various
™ See supra § 245.
'' See supra § 246. Altdorf was the university town of Nuremberg.
°2 Johannes Althusius or Althaus (1557-1638). See General survey,
etc., pp. 409-10.
'' Herman Conring (160&-81). SeeGeneral survey, etc., pp. 428-9.
^ De origine juris Germanici liber unus, Helmstadt, 1643.
^^ General survey, etc., p. 428.
8° Samuel Pufendorf (1632-94). See supra §274; General survey, etc.,
pp. 415-20; Great jurists of the world, etc., pp. 305 et seq.
^''General survey, etc., p. 416.
'8 Such as the "Leges barbarorum" (supra § 133), capitularies (supra
§ 317) : for instance in his Lihri octo de jure naturae et gentium, ii, 5, § § 15,
18; iii, 1, §3,3 §7,7, §6: iv. 1, §6.
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GERMANY 315
German territories, and that a mere confederacy — their sole
relief — was impossible, he very appropriately described the
existing condition of the Empire as "monstrous" '^ — a con-
viction which became also the contemporary and subsequent
view of many, and thus materially assisted the forces paving
the way for the dissolution of the medieval Roman Empire.
The 1 8th century movement for codification in Germany. § 330
The Prussian Landrecht of 1794. The necessity of doing
something to make law more uniform, certain, systematic,
and accessible was strongly felt in Germany during the 18th
century, especially by that great philosopher and jurist Leib-
nitz, who did more than any other man to inaugurate the
activity of this century for the reform and codification of
German law.^"" This movement, vigorously advanced by Ger-
man jurists of the Natural Law school""- and given much
impetus through the extensive influence on the rest of Europe
of the French codifications of Louis XIV and Louis XV, "^"^
resulted in the numerous German partial codifications of the
18th century.
To Frederick the Great,'"' of Prussia, belongs the glory of
being "the first of the modern codifiers." "* He formed the
project of making a general code of the entire Prussian law,
both public and private. But only a code of civil procedure was
realized during his reign. ^"^ Eight years after Frederick's
death was promulgated in 1794 the praiseworthy "General
territorial code for the Prussian States" {Allgemeines Landrecht
fur die preussischen Staaten^°^). It combined the Germanic
^^ General survey, etc., p. 419.
i»» See infra §331.
"1 See supra § 326.
"2 See supra §§231, 251, 275, 301.
"3 Reigned 1740-86.
i"^ Maitland, Collected papers (Cambridge, 1911), vol. iii, p. 433.
^"^This was enacted in 1781. It was the first book of the projected
Corpui Juris Fridericiani, composed 1749-51 by the eminent jurist and
Chancellor von Cocceji (infra §335). This code of civil procedure was
revised in 17931 The earliest Prussian judicature code is of the date of
1709. See General survey, etc., p. 435.
106 j(- Y^^as to a considerable extent but Cocceji's Corpus Juris Fridericiani,
revised and completed by the great Chancellor von Carmer (1721-1801).
Cocceji's code was written in Latin.
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316 THE MODERN REALM OF ROMAN LAW
customary law and the "received" Roman law supplemented
by the Law of Nature.^"^ But this 18th century Prussian code
was in reality only a partial codification: it did not entirely
abrogate the Prussian common law, which still retained
subsidiary authority and was enforced whenever the Landrecht
was silent.^"*
Partial codifications covering single fields of law were also
promulgated by various minor German States,"" such as
Anhalt,"" Bavaria,^" Bremen,"^ Frankfort-on-the-Main,"'
Hesse,"* Lippe,"^ Mecklenburg-Schwerin,"^ Mecklenburg-
Strelitz.^^' All this particular codification is much inferior to
the comprehensive codification accomplished in Prussia by
direction of Frederick the Great.
§331 Famous German jurists of the i8th century: (i) Leibnitz.
The greatest of all the German jurists of the 18th century was
Leibnitz.^'' This wonderful man of genius was not only a
great jurist, but also a great philosopher, historian, and mathe-
matician. Leibnitz wielded an enormous influence on legal
•"' This Prussian Landrecht consists of two parts, the first part and
six titles of the second part being on private law. The second part con-
tains also ecclesiastical law (title 11); criminal law (title 20); the law as
to peasants, the middle class, the nobilty, and civil servants (titles 7-10) ;
public and administrative law (titles 12-19). It was subsequently revised,
particularly in 1803. It is now replaced by the 19th century Imperial
German codes, particularly the Civil Code of 1900 (infra § 344).
ifs See General survey, etc., pp. 436-7; Loewy, German civil code
(Smithers), p. xxxiv.
'<" On the partial codifications of German States in the 18th century,
see General survey, pp. 434-5; 'Lo&xy , German civil code (Smithers), pp.
xxxiii-iv.
''" Laws of 1741, interpreting the "constitutions" of 1572.
^"^ Codex jurii Bavarici criminalis C1751), Codex juris Bavarici judiciarii
(1753), Codex Maximilianeus Bavaricus civilis or Bayrische Landrecht
(1756).
"2 The Kundige Rulle of 1756.
"' Inheritance laws of 1734 and 1758.
^^* Landrecht of 1755 for Mainz; Staadrecht of 1775 for Wimpfen.
'^ Law of 1794 on prescription.
'" Law of 1771 on guardianship.
'" Law of 1779 on absence.
"8 Gottfried Wilhelm Leibnitz (1646-1716). See supra §274; General
survey, etc., pp. 420-4; Great jurists of the world, etc., pp. 283 et seq.
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GERMANY 317
science and did much to shape the future of German law.
In his extreme youth he proposed many original reforms in law
teaching,"' and in order to make Roman law suited to his
proposed system of instruction he advocated its entire revision!
His plan for a new and revised Corpus Juris of Justinian was
actually undertaken, but it miscarried because of its im-
practicability.^^"
To Leibnitz is due the inception of the movement for the
reform and codification of German law, which persisted
throughout the 18th century and was not accomplished until
the end of the 1 9th century. During his life he urged such legis-
lation and codification. In his very last year, in 1716, Leib-
nitz advocated the formation of a new German code, "short,
clear, and adequate, under governmental authority, out of the
Roman statutes, records of German law, and actual legal
practice, but above all from obvious principles of equity." ^^^
To reach this goal by imperial legislation was then impossible.
Consequently Leibnitz appealed to legislation by the various
German States. The movement in Prussia for law reform and
codification was inaugurated by him."^^^ Out of this endeavor
came the Prussian code of 1794.'^^' Without doubt the move-
ment for Austrian codification owed much to the influence of
Leibnitz. 124
(2) Thomasius. No German jurist did more to promote the § 332
sway of Germanic law than Thomasius. ^^^ He insistently
advocated its teaching in the German language at the uni-
versities, and the recognition of its legal force in practice.
Although Thomasius was a Romanist of renown, he insistently
objected to the absolute dominance of Roman law in Germany,
and urged that many Roman law doctrines ought to be tested
for their practicability in German life. In other words, he was-
'" See his Nova methodus discendae docendaeque jurisprudentiae (1667)
'-" See General survey, pp. 421-2.
^'^^ General stirvey, etc., p. 423.
1=2 Id.
1=^ See supra § 330.
^''* See General survey, etc., p. 423; supra §231.
'25 Christian Thomasius, born 1655, died 1728, was professor of law
at Halle. See General survey, pp. 429-30.
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318 THE MODERN REALM OF ROMAN LAW
a rationalistic philosopher seeking to advance the progress
of German legal science and practice.'^'
§333 (3) Beyer. Thomasius' life bore abundant fruit in the
work of his talented pupil Beyer /^^ who was the first to give
university instruction in Germanic law.^^^ His attempt
resulted in the movement to give Germanic law a separate
systematic treatment apart from the received Roman law.
With Beyer Germanic law began to obtain an independent
place and literature.
§334 (4) Heineccius. The greatest German master of Roman
law in the 18th century was Heineccius. ^^' He is the most fam-
ous of all the German philosophical NaturaL Law jurists.
Heineccius regarded law as a rational science, the rules of
which are not founded in mere expediency. He was not only
a thorough Civilian and an excellent Roman law historian, but
was also profoundly versed in Germanic law.^^"
§335 (5) Cocceji. The most eminent jurist in Prussia during the
reign of Frederick the Great was von Cocceji,"' who was not
only a learned man but a statesman. The legal reforms and
codifications of Frederick owed much to the assistance of Coc-
ceji."^ He was a sincere adherent of the methods of the
Italian Commentators, "^^^ and tried to unite their principles
with those of the German Natural Law school.
'^' He showed the same characteristics in his fight against witchcraft
and torture.
^' George Beyer, born 1665, died 1714. See General survey, pp. 430-31.
•^^ Delineatio juris Germanici ad fundamenta sua revocati, Halle, 1718.
•^' Johann Gottlieb Heineke (Heineccius) was born at Eisenberg in
Altenburg 1681, and died in Halle, 1741. He was professor of law for
twenty-three years: at Halle, Franeker in Holland, Frankfort, and finally
at Halle.
*'" His works include Antiquitatum Romanarum jurisprudenliam illustr.
syntagna (1718), Historia juris civilis Romani ac Germanici (1733) , Elementa
juris Germanici (1735), Elementa juris naturae et gentium (1737, translated
into English in 1763 by Turnbull, 2 vols., London). His son edited
all his works, which were published together as Omnia opera, 9 vols.,
Geneva, 1771.
'^ Samuel von Cocceji (1679-1755), Chancellor of Prussia.
"2 See supra § 330.
'*' See supra §§ 216 et seq.
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GERMANY 319
The 19th century influence of the Code Napoleon in Ger- §336
many. Early in the 19th century during the Napoleonic era
German law became tremendously affected by another foreign
work of codification — the French Civil and other codes/'*
which came to be the law of the land widely in Germany.
In 1806 the medieval Roman Empire of the West, then fast
approaching dissolution, was put an end to by Napoleon.''^
This was soon followed by the promulgation of the Code Napol-
eon in the original French text as law in Alsace-Lorraine,
Baden, Bavaria-on-the-Rhine, the Rhenish province of Hesse,
Westphalia, and other Prussian provinces. ^'^ In Baden an
official German translation of it with some additions was
published in 1809 as the Badisches Landrechi. Although the
downfall of Napoleon released the Germans from the French
yoke, yet his Civil Code was kept in force in those South Ger-
man States which had received it for the rest of the 19th cen-
tury until the new imperial German Civil Code went into effect
in 1900."^
The 19th century influence of the Austrian Civil Code in §337
Germany. The ideal of codification — the amalgamation of
the native Germanic and the Roman law — had been first
realized during the medieval Roman Empire when the Em-
peror Charles V promulgated in the 16th century the earliest
true code of criminal law."^ The potency of the Imperial
legislation, especially after the accession of the Hapsburg
Emperors, has already been considered.^'' During the Napol-
eonic era Austrian leadership in Germany was eclipsed. But
after the formation of the Germanic Confederation and the
'2^ See supra § § 254, 257. The first foreign code of law to mold
German law was that of Justinian, — see supra § 322.
'36 See supra §§208, 255.
''* The French codes went into force in these parts of Germany 1807-9,
''^ See infra § 344. See also Loewy, German civil code (Smithers),
pp. xxxix-xli.
"*The "Constitutio CaroHna criminaHs'' of 1532: see supra §231;
General survey, pp. 402-3, 434. This exercised a dominant influence in
German law for two centuries. It was not superseded until 1769 when a
new code, the "Constitutio criminalis Theresiana," was enacted: General
survey, p. 436.
"3 See supra § 317, note, and § 322.
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320 THE MODERN REALM OF ROMAN LAW
battle of Waterloo in 1815, the leadership of Austria in Ger-
many was restored until 1866 when the German hegemony
passed to Prussia. Meanwhile the Austrian Civil Code went
into effect in 1812,"" and this code became the law of certain
small territories in Germany. "'^
§338 Rise of the modern historical school of jurisprudence in
the 19th century; Hugo its founder, Savigny its most dis-
tinguished representative. With the 19th century came a
reaction against the Natural Law dogmatism of the century
previous. A new school of thought arose — the modem his-
torical school, which treats the law of a people as an emanation
of their national life and an evolution from their special his-
torical development and peculiar national ideas. This is the
principal school of legal thought of our own times. "^ The
founder of this new German historical school was the jurist
Hugo."' His ideas and methods were continued and developed
by the greatest German jurist of the 19th century — Savigny, '«
who became the most distinguished representative of the
modern historical school. Some features of this school of
thought are like those of the 16th century French historical
school of jurisprudence; but the French Humanists never
caught the idea that law is a growth — an evolutionary
product."^
Savigny's historical method met with strong opposition in
Thibaut,"* the chief of the Natural Law school. And this
opposition to the historical method has not yet entirely
ceased : the illustrious Ihering "' late in the 19th century was a
prominent antagonist, holding the "natural" view that law
is the product of a conscious struggle for rights by a people
and not the work of unconscious historical forces.
"» See supra § 232.
'" Loewy, German civil code (Smithers), p. xxxvii.
^'"^ See Great jurists of the world (vol. ii, Continental Legal History Series,
Boston, 1914, p. 582). A recrudescence of the Natural Law school has,
however, recently occurred.
"'See infra §345. The learned jurist Haubold (1766-1824) was
also a precursor of the historical school.
1" See infra § 346. »« See infra § 348.
i« See supra § 241. i" See infra § 352.
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GERMANY 321
The study of pure Roman law reintroduced into Germany § 339
by Savigny. But this was not all Savigny did, — to advocate
a new method of studying law. From his experiences as
professor of law and Prussian minister of justice, Savigny
knew the value of reducing law to a science. The then common
law of Germany was the "received" Roman law of the Italian
Commentators of the 14th and 15th centuries."* But Savigny
brought into notice through various works of his own "* the
claims and study of pure Roman law, both ante- Justinian and
Justinian. 1^" As a result of Savigny's labors in this direction,
the Germanized "law of the Pandects" ^^^ became rehabilitated
by contact with the actual sources of Roman law, was cor-
rected and developed scientifically by casting out its medieval
features, and was made highly progressive.
Moreover Savigny's labors exerted an influence which has
passed far beyond the borders of Germany : through his great
works the claims of pure Roman law were most powerfully
brought also to the attention of jurists and scholars in other
lands. The 19th century revival of Roman law in England and
the United States ^^^ is partly attributable to the world-wide
influence of Savigny during this century.
Division of the historical school into Romanists and Ger- §340
manists. The historical school in Germany became divided
into two forces — the Romanists "^^^ and the Germanists, both
of which during the 19th century had numerous eminent
representatives. The Romanists cultivated the pure Roman
law from the Monarchy down through the Republic and Empire
to Justinian, 1'* and investigated its history. The Germanists
devoted themselves principally to examining that period of
"« See supra §§216,322.
"' His celebrated treatises on possession and obligations, as well as his
wonderful System, are based exclusively on pure Roman law, principally
the Justinian sources.
™ See supra §135; infra vol. iii, §§945, 949, 951; General survey,
p. 443. This movement came to embrace also the post-Justinian Roman
law: infra vol. iii, § 955.
1" See supra § 322.
152 See infra "England," etc., §§411-2.
"5 Or "Civilians."
^^ Some cultivated also the post- Justinian law, see supra § 198.
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322 THE MODERN REALM OF ROMAN LAW
Germanic legal history prior to the reception of the Roman
law in Germany. ^^5
Gradually the labors of each of these divisions of German
jurists became properly appreciated. Then came works giving
Roman and Germanic law their just place as jurisprudences.
This reconciliation between the Romanists and Germanists
removed many of the fears of the historical school jurists as
to the advisability of unifying and codifying German law,
and made them favorably inclined to this movement. ^^^
§341 19th century efforts to codify German law prior to the
establishment of the modern Empire of Germany. The 19th
century brought new life to the movement of the previous
century for unifying and codifying German law.^" It should
be remembered that the 18th century was the last century of
the declining existence of the aged medieval Roman Empire, —
a century when territorial changes in Germany occurred so
often that provinces frequently changed sovereigns over night.
So great was the disintegration and multiplicity of the German
States that late in the 18th century Germany consisted of
about 1800 separate sovereign States of one kind or another, ^^^
with as many possible varieties of legal systems.
But Savigny objected to any codification by legislation,
unless it was to be an elaboration of the text of the ancient
Roman law.'*^ On the other hand, the great jurist Thibaut
ably led the natural school, and preached and urged the adop-
tion of uniform nationl laws.^*" This controversy continued for
twenty years. Finally Savigny modified his views. '^^ Thibaut
triumphed: for long before his death in 1840 the sentiment
throughout the larger German States was in favor of codifica-
tion. ^^^ Saxony accomplished the great undertaking of codify-
'™ See supra §§ 316-19; General survey, p. 443.
'^^ Inaugurated in the 18th century by the Natural Law jurists, see
supra § 330.
'" See supra § 330.
"' Loewy, German civil code (Smithers), p. xxxiii.
'*' Id,., p. xxxvi; General iurvey, p. 443.
1™ Loewy, German civil code, p. xxxvi, xlvi; General survey, pp. 441-2.
1" Between 1842 and 1848 Savigny, as Prussian minister of Justice,
helped to revise the Prussian laws.
^'^ Loewy, German civil code (Smithers), p. xxxvi.
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GERMANY 323
ing her entire civil law/'' while Bavaria, Hanover, Hesse, and
Prussia codified parts of their law."^
The Germanic Confederation itself did something to accom-
plish national legal unity : a federation Bills of Exchange law ''*
went into force throughout most of Germany through publica-
tion as local law ; a federation Code of Commercial Law was
adopted by the different States ^^^ ; and a general Code of Obli-
gations and Civil Code were planned. ^'^ But the march of
events in Germany removed all possibility of national unifica-
tion and codification of law via the Confederation. The state-
craft of Bismarck aimed at political unification of Germany
under Prussian domination. In 1863 he manoeuvered Denmark
into war. The result was the annexation of Schleswig-Holstein
to Prussia. This added to the mass of "particular" laws of
Germany another foreign legal system, — the Danish law as
codified in 1683.^'* Austria's turn came next: as the result
of the war of 1866 with Prussia, the ancient Austrian leader-
ship in Germany disappeared. Prussia became the foremost
German State. Four years later France was inveigled into
war,^'' and with the Prussian triumph arose the modern
Empire of Germany.
Establishment of the modem Empire of Germany in 1871; §342
dire necessity for one uniform codified system of German pri-
vate law. In 1871 the German Empire was proclaimed at Ver-
sailles. It was at once recognized that the new Empire must
secure the cohesive force of unified law, for German private law
was the most intolerable in the world. The center and central
"2 The Burgerliches Gesetzbuch, promulgated in 1863.
"*Such as the Bavarian penal codes of 1813 and 1861, the Bavarian
civil procedure code of 1869 and that of Hanover of 1850, the Prussian
laws of 1842 and 1852 reforming criminal procedure, the Prussian law ot
1849 reorganizing the courts. See General survey, p. 445; Loewy, German
civil code (Smithers), p. xxxvi.
"= Of 1848.
'68 Between 1861 and 1865.
'6' As to the work of codification instituted by the Condeferation, see
General survey, p. 446; Loewy, German civil code (Smithers), p. xxxvi.
"8 See supra § 275.
'65 See Bismarck's Reflections and Reminiscences (Eng. transl. of his
Gedanken und Erinnerungen) , pp. 95-101, London, 1898.
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324 THE MODERN REALM OF ROMAN LAW
south of Germany were governed almost entirely by the com-
mon (Roman) law; the north was regulated by the Roman
law, Saxon law, and Danish law; the east was governed by
the Prussian Landrecht, local laws, and partial codifications;
the west was a region of diversified law, which within short dis-
tances might change from Roman to Prussian or to French.^'"
The Prussian law governed the most people, with the Roman
law next, and then the French, Bavarian, Danish, and Austrian
laws in the order mentioned. All this mass of diverse law was
embodied principally in the German, Latin, and French lan-
guages.
So diverse and anomalous was law in Germany that the law
of inheritance might give a female no rights in one town, equal
rights with male heirs in another town only a few miles distant,
and still different rights in a third town; one law might prevail
within the walls of a city, and another might prevail outside
the city walls. ^^^ One system of codified private law for the
entire new Empire of Germany became inevitably the goal of
German legal progress.
IV. Modern German law: period of uni-
formity and complete codification of law
§343 Success of the movement for national codification of
German law after the formation of modem Germany. The
first effort to unify and codify German law, after the birth
of the new Empire, was the re-enactment of the old federation
Commercial Code and Bills of Exchange law in 1871 for the
entire Empire."^ The movement for national codification
""See supra §§318, 322, 330, 341; slIso General survey, p. 307 (map);
Loewy, German civil code (Smithers), pp. xxxviii-xli.
'"See Loewy, German civil code (Smithers), pp. xxxviii, xxxix. At
the present time the United States have 48 different jurisprudences, plus
the Federal Common Law and the Spanish law of our colonial posses-
sions: our own confusion of law is no small affair and must be remedied
some time.
i'2 24 Commercial laws of the world, Boston, 1913, p. 7. Nearly thirty
years later this Commercial Code was superseded by the new Commercial
Code of 1900, which was necessitated by the making of the Civil Code of
the, same year.
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GERMANY 325
continually grew in strength. Additional codes corresponding
to the French and other Continental codes were soon framed.
In 1872 was promulgated the Penal Code of Germany^";
in 1879, the Codes of Civil and Criminal Procedure.
The German Civil Code of 1900. In 1873 the field of civil §344
law was placed within the federal Imperial legislative power. i'*
The following year a commission of eleven members consisting
of judges, high officials, and law prof essors ^'^ was appointed
to prepare a Civil Code for the whole Empire. Their task
of forging a new civil law out of the many existing diverse
civil jurisprudences was a tremendous one.^^* After fourteen
years of the most painstaking labor the commission published
in 1888 the first draft »" of a Civil Code.
It was at once subjected to a flood of adverse criticism. The
outcome was the appointment in 1890 of another commission
to recast the first draft. This commission was not limited to
jurists only, but included also economists and trade experts.
After five years of prodigious labor a second draft was pub-
lished in 1895."* It was accepted by the Reichstag and pro-
mulgated in 1896 to go into effect January 1 , 1900. A new and
transformed Commercial Code was made fully operative at the
same time.'''
'"The Imperial Penal Code superseded, among other State criminal
laws, the Bavarian code of 1861 (which revised Maximilian's code of 1768)
and the Prussian code of 1780.
1'^ The law of Dec. 20, 1873, amended section 13 of the Imperial Con-
stitution, which now reads: "The following matters are subject to the
supervision of the Empire and its laws: — the common legislation relating
to the entire Civil Law (biirgerliches Recht), the Penal Law, and Judicial
Procedure": Loewy, German civil code, p. xlv.
176 Two were university professors and the other nine were practical
jurists. Dr. Pape, the then highest Imperial judge, was chairman of the
commission.
"« See supra § 342.
1" Notes explanatory of this draft code, known as Motive, were pub-
lished at the same time. These "fill 5 volumes of about 4000 pages in
the aggregate, while the unpublished original notes are far more volumi-
nous. Even the abridged edition forms . . the most valuable treatise on
comparative jurisprudence ever published:'' General survey, p. 448.
"^ The second commission employed the first draft as a basis, but freely
changed it ; so much so that the second draft is really a new work.
"' See supra § 343; 24 Commercial laws of the world, p. 7.
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326 THE MODERN REALM OF ROMAN LAW
5 344) The most glorious accomplishment in Germany during the
reign of Emperor WilHam II is the completion of a uniform
system of codified law for all Germany. i*" And his name will be
linked with those of Justinian and Napoleon as famous law-
givers. On the opening day of the 20th century the new Civil
Code swept away the motley collection of state private laws
throughout Germany, with the exception of a few express
reservations in favor of State law dealing with matters of
local importance, or the laws of the princely houses of Germany.
Germany, although a federated country of twenty-six States,
has since 1900 been living under one system of private law.
By its uniform and codified law modern Germany now testi-
fies to the fulfillment within her borders of the world-mission
of Roman law.
The German Civil Code is a very late 19th century republi-
cation of Roman law as adopted in Germany. It also embodies
many rules of Germanic customary law, especially as to land
rights. But without the Roman Corpus Juris '*^ as a key to
unlock it, this modern law of Germany cannot be understood.
In the German code of 1900 the Roman law element is pre-
dominatingly supreme. 1*^ In regard to the nature and spirit
of the German Civil Code, its most striking characteristics are
its orderly arrangement and development and its scientific
provisions. It endeavors to be complete, to provide as far as
possible for all cases not anticipated. In these respects it is
superior to the Code Napoleon .i*' The French Code is more
open to interpretation. The German Code is very philosophi-
cal and logical. It contains carefully worded definitions. It
should be remembered that the Code Napoleon is nearly a
century older than the German Code, and lacks some of the
light of modern scientific methods and scholarship as applied
i™At the present time (June 1, 1916) the German colonial empire,
which was of no mean dimensions, has been practically destroyed. The
restoration of the German colonies depends on the outcome of the great
war in Europe.
181 See supra § 135.
i'2 In remembrance of the Justinianean codification, additions to the
German Civil Code are now — very interestingly — called Novellen:
see Deutsche Juristen-Zeitung, 1 April — 15 June, 1909, p. 597.
'«3 See supra §§246, 256.
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GERMANY 327
to jurisprudence. The German Civil Code, however, lacks
the textual elegance of the French.
The German Civil Code is one of the greatest and perhaps
the best exposition of modern Roman law ever framed. It is
thoroughly suited to our age. Its influence upon the world has
only just begun. The modern Japanese Civil Code of 1898
largely imitates the German, while the Swiss Civil Code of
1912 reveals marked traces of the same German influence. ^^^
One thing is certain: no future Civil Code anywhere in the
world should ever be drawn up without consulting the German,
in which the codifiers have made such a judicious use of both
native and Roman law materials. The national federal codes
of modern Germany are also an object-lesson to refute the
fallacious argument, that a federated country must cling to
diversity of State law and can never attain to a national
uniformity of private law without destroying the States them-
selves.
Famous German Romanists of the 19th century: (i) Hugo. §345
A galaxy of distinguished jurists and legal historians, eminent
for their varied abilities, gave Germany during the 19th cen-
tury a foremost place in the fields of law and legal history.
Many of these, particularly the Romanists, '^^^ achieved an
international reputation. To the influence of the historical
school in Germany is due that series of brilliant works which
have brought German legal science to the highest point of
excellence. "^^^
The founder of the modern historical school of jurisprudence
was the gifted jurist Hugo.^*' This eminent law professor
adopted the methods of Leibnitz, the greatest German jurist
18* See supra §313, and infra "Switzerland," §368.
'** Or "Civilians." See also supra §340.
i«« See supra §§338-40.
'*' See supra § 338. Gustav von Hugo was born in Lorrach, Baden,
1764, and died at Gottingen 1844. He studied law at the universities
of Gottingen and Halle, taking his law doctorate at the latter. In
1788 he was appointed professor at Gottingen, where he taught for
many years. Among his works are a history of Roman law (1790), a
manual of Roman law since Justinian (1812), and an elementary history
of Roman law down to the time of Justinian. See Great jurists of the
world (vol. ii, Cont. Leg. Hisi. Series, Boston, 1914), p. 666.
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328 THE MODERN REALM OF ROMAN LAW
of the 18th century. ^8* Hugo investigated carefully the historic
documentary sources of Roman law ; and his division of Roman
legal history into the period prior to the XH Tables, the
Praetorian period and the Imperial period, is an excellent illus-
tration of his scientific use of the historical method. It is
interesting to note that Hugo's classification of private law
lies at the basis of that existing in the present German Civil
Code.'^^ The historical impulses of the great Savigny were in
no small measure the product of Hugo's influence on the age
in which he lived.
j346 (2) Savigny. The greatest German jurist of the 19th
century was Savigny. i'" He has been called "the Newton
or the Darwin of the science of law."*'^ Savigny is one of the
very greatest jurists of the world. Although not the founder
of the modern historical school of jurists,'^^ his masterly treatise
on the Roman law of possession,^'' published in 1803 when he
was only twenty-four and which at once made him famous all
over Europe, marks the birth of modern jurisprudence.
Seven years later he was called to become professor of
Roman law at the new University of Berlin, where he taught
for thirty-two years. In 1814 he attacked^'* the great jurist
•** See supra § 331. This was the century of Hugo's birth.
"'Great jurists, etc., p. 566. See supra §344.
''° Friedrich Karl von Savigny, born at Frankfort-on-the-Main 1779,
died at BerHn, 1861. He studied at the universities of Marburg, Jena,
Leipzig, and Halle, taking his doctorate at the first named. For awhile he
taught at Marburg and Landshut, but from 1810 to 1842 he was professor
of Roman law at Berlin. From 1842 to 1848 he was Prussian Minister of
Justice. He was an intimate friend of the great Roman historian Niebuhr.
His life was crowned with honors and privileges bestowed by his sovereign.
On Savigny, see supra §§338-41; Great jurists, etc., pp. 561-89; General
survey, pp. 442-4; Brissaud, Hist, du droit francais, vol. i, p. 359, Paris
1904.
^''^ Great jurists, etc., p. 586.
"2 This honor is due to the jurist Hugo, — ^ supra §345. Savigny
was, however, considerably influenced by Haubold, one of the heralds of
the historical school (see supra § 338, note).
i»3 Pas Recht des Besitzes. It is still a classic on this subject. The
great jurist Thibaut (infra §348), later Savigny's mighty antagonist, at
once recognized the genius of Savigny,
1" In his Beruf unserer Zeit filr Gesetzgebung, etc.
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GERMANY 329
Thibaut.who advocated the making of a German code, and (§346)
vigorously opposed the whole idea of codification, — incident-
ally criticizing the French, Prussian, and Austrian codes."^
But valuable as his arguments have been to the opponents of
codification in England and the United States, it should be
remembered that after Savigny became Prussian Minister of
Justice he modified his views.^^" And the present German Civil
Code which went into effect in 1900 marks the final triumph of
the views of Thibaut, and is the revenge of the French Civil
Code against the opposition of the historical school to it."'
In 1815 Savigny, with the assistance of Eichhorn'^^ and
Goschen,'-'' established a journal ^'"' for the new historical
school. During the same year appeared the first volume of
his great history of Roman law in the Middle Ages.^""- This
magnificent work not only reveals the genius of Savigny as
the master legal historian, but also saliently portrays the
universal descent of Roman law into modern law. He showed
that Roman law, though considered dead in Western Europe
from the breaking up of the Roman Empire to the 12th
century, still "lived on through these dark centuries, in local
customs in towns, in ecclesiastical doctrines and school teach-
ings, until it blossomed out once more in full splendor in
Bologna and other Italian cities. "^"^
Twenty years later Savigny began his very elaborate work
on the system of modern Roman law,^"' the first volume of
which appeared in 1840. In this marvelous work "he searches
"= See supra § § 232, 254, 330.
"« See supra § 341.
1" See supra §§341, 256.
'°* Karl Friedrich Eichhorn, a brilliant representative of the historical
school.
"9 See infra § 347.
'""' The Zeitschrift filr geschichtliche Rechtswissenschaft. In this journal
Savigny published Niebuhr's discovery at Verona of the lost text of Gaius
(supra § 86) .
^"'■Geschichte des romischen Rechts im Mittelalter, 6 vols., Heidelberg,
1815-18. A second edition was published in 7 vols., Heidelberg, 1834—51.
^0^ 24: Encyd.Britan.^^ p. 242; supra §§203, 206, 209, 210, 211.
203 The System des heutigen romischen Rechts, 8 vols. 1840-9. The
death of his only daughter in 1835 is said to have led Savigny to take up
this great work in order to help him overcome his grief.
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330 THE MODERN REALM OF ROMAN LAW
out and rulesout all that is dead in Roman law, and then proceeds
to demonstrate the great and living unity of what remains."^"*
In 1842 Savigny resigned his Berlin professorship to be-
come Prussian Minister of Justice. His service in this office
was signalized by several important reforms in Prussian law,
particularly reforms as to divorce and bills of exchange. On
his retirement he devoted himself to literary work. In 1850,
to mark the jubilee of his doctorate obtained fifty years
earlier, he published his collected minor papers appearing
during this period. ^"^
In his seventy-fourth year appeared Savigny's last work, —
a treatise on obligations.^"^ This monumental work is vir-
tually a supplement to his great System of modern Roman
law. Gigantic as Savigny's own work was, the domain of in-
vestigation which he opened to his successors throughout the
world is almost boundless. For instance, the great Momm-
sen 2°' and his followers have labored to make certain and
reliable the Roman law texts and literature; while the bril-
liant Maitland ^"^ has discussed the influence of Roman law
on medieval English law.
J347 (3) Savigny's pupils: Bluhme, Bocking, Dirksen, Goschen,
Keller, Puchta. It throws an interesting sidelight on Savigny's
strong contemporary influence to learn that he had some very
able pupils, who by adopting his historical methods became
distinguished jurists.^""
Bluhme is best remembered for his discovery of the plan of
work pursued by Tribonian and his associates in regard to the
composition of the Digest of Justinian.^'" Bocking ^^^^ was a
™ Great jurists, p. 683. ^os jJas Obligationenrecht (1853).
20s -phe Verpiischte Schriften, 5 vols. ^''' See infra § 353.
2»8See infra "England," §411.
™' In addition to those pupils of Savigny about to be separately con-
sidered, mention should be made of Barkow, HoUweg, Klenze, and Rudorff,
all of whom were men of distinction.
"»See supra §137; Walton, Roman law\ p. 316, Edinburgh, 1912.
Friedrich Bluhme's discovery was originally prepared as a thesis when he
was 23 years of age. His paper was published by Savigny's historical peri-
odical (the Zeitschrift, etc., see supra § 346) in 1820. Bluhme was also an
editor of Gains' Institutes (supra § 86) with Goschen.
"1 Born 1802, died 1870.
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GERMANY 331
critical editor of Roman law sources and an eminent philolo-
gist. Dirksen ^^^ was an excellent lexicographer and legal his-
torian.
Goschen^^' published the first edition of Gaius' Institutes,
discovered by Niebuhr at Verona in 1816.^'* Keller ^^^ was a
learned interpreter of Roman law, and his very original
treatise on Roman civil procedure is still valuable. ^'^
Puchta's^" works are most scientifically constructed, ex-
tremely lucid and thoroughly exhibitive of the development
of law among the Romans.^'* His eminence is best revealed
by the fact that to him came in 1842 the great honor of succeed-
ing Savigny at Berlin when the latter resigned his chair of
Roman law.
(4) Thibaut. That German jurist of the 19th century who §348
by his learning and attainments should be placed by the side
of Savigny is Thibaut. ^i' In some respects his influence was
superior to that of his great antagonist : the accomplishment of
the unification and codification of German law^ — finally
completed in the Civil Code of 1900 — is traceable to the great
influence exerted by Thibaut's powerful essay in 1814 on the
necessity of a code for Germany. 2^" To Thibaut belongs the
212 Born 1790, died 1868. His Manuals (see infra vol. iii, §952) is
still very valuable to Romanists.
»3Johann Friedrich Goschen (1778-1837).
^'* The edition of 1820. His second edition of 1824 embraced readings
by Bluhme. See also supra § 86.
=15 Friedrich Ludwig von Keller (1799-1860).
='^ Der rom. Civilprocess und die Actionen, etc., Leipzig, 1852.
=1' Georg Friedrich Puchta, born of an old Bavarian Bohemian family
at Kadolzburg 1798, died at Berlin 1846. He took his doctor's degree at
Erlangen, where three years later he was appointed professor of law. Later
he was professor at the universities of Munich, Marburg, Leipzig,and Berlin.
=1' Especially his Lehrbuch der Pandekten (1838) and his Kursus der
Institutionen (1841-7).
=" Anton Friedrich Justus Thibaut was born at Hanover 1774, and
died at Heidelberg 1840; he was of French Huguenot ancestry. Thibaut
was a student at Gottingen, Konigsberg (here he was a pupil of the great
philosopher Kant), and Kiel. He was professor of law at Kiel, Jena, and
Heidelberg. At the last place he taught for many years until his death.
^■i Die Notwendigkeit eines allgemeinen burgerlichen Rechts fiir Deutsch-
land, Heidelberg, 1814. A part of this is translated into English in General
survey, pp. 441-2-
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332 THE MODERN REALM OF ROMAN LAW
victory in the controversy with Savigny over codification.^^'
Thibaut's chief work, the System des Pandektenrechts ,'^^^ is
really a comprehensive codification of the Roman law then
existing in Germany.
§349 (5) Mackeldey. Among those German jurists of the 19th
century having an international European reputation should
be placed the learned Mackeldey .^^' His masterly handbook
or summary of Roman law which he published in 1814 has
run through many editions, and has been translated into
the English, French, Greek, Latin, Russian, and Spanish
languages.
§350 (6) Marquardt. One of the leading modern Roman his-
torians is the learned Marquardt. ^^ The great manual of
Roman antiquities which bears his name and that of the
immortal Mommsen ^^^ is a monumental work of erudition un-
excelled in lucidity and exhaustive references to authorities.
This remarkable collection consists of treatises on Roman law
and antiquities, each of which is a work of the highest
value and a splendid product of 19th century German scholar-
ship.
2a See supra §§341, 344.
"" Published 1803. He wrote it at Jena in Schiller's summer-house.
It has passed through many editions.
^' Ferdinand Mackeldey, born at Brunswick 1784, died 1834. He was
a. student at the university of Helmstedt, where later he was appointed
professor of law. When this institution was suppressed by the French
Government he was removed to Marburg, where he taught for ten years
until his appointment at the new University of Bonn in 1819. There he
remained until 1828.
2" Joachim Marquardt, born at Danzig 1812, died at Gotha 1882. He
was a student at Berlin and Leipzig. He subsequently held appointments
at Berlin, Danzig, Posen, and Gotha.
22s Marquardt-Mommsen, Handbuch der romischen Alterthumer^ ,
(7 vols. 1877-88). The original author of the manual was the learned
W. A. Becker. He formed its plan, but died in 1846, leaving most of the
work unfinished. Marquardt continued it, and twenty years elapsed before
the manual was finished. It was then known as the Becker- Marquardt
Handbuch, etc. A new edition being required, Marquardt then engaged
as collaborator Mommsen, who wrote the volumes on Roman public law and
criminal law. See infra §353 and volume iii, "Bibliography of Roman
law," § 1027.
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GERMANY 333
(7) Mittermaier. The humanitarian Mittermaier ^^^ did §351
much to estabHsh the science of comparative law, of which he
was an extremely influential representative. Through his
prodigious literary activity German jurisprudence came into
contact with foreign legal science, especially Italian, English,
Scotch, and American criminal law and procedure. ^^^ "Of all
German legal scientists, even Savigny not excepted, his name
is internationally best known and most esteemed.
He was one of the most influential popularizers of legal
science." ^^*
(8) Ihering. The philosophical Natural Law conception of §352
jurisprudence was revived in Germany during the second half
of the 19th century by the great Ihering, ^^' who held views
diametrically opposite to those of Savigny. ^^^ His famous
work on the essence of Roman law ^'^ gave him a reputation as
high as that of Savigny. Some have considered him even
greater than Savigny. Ihering acquired an international
reputation because of his marvelous intellectual power as
exhibited in his works, one of which has been translated
into twenty-six languages. ^^^ Ihering by reason of his great
intellectual vitality may truly be called the modern Pap-
inian.23^
*^* Carl Joseph Anton Mittermaier was born at Munich 1787, and died
at Heidelberg 1867. Educated at the universities of Landshut and Heidel-
berg, he was appointed professor of law at the former, where he taught for
ten years. In 1819 he accepted a chair in the new university at Bonn. Two
years later he went to Heidelberg, where he taught for forty-six years.
See Great jurists of the world, pp. 644-60.
™ See Id., pp. 648-9 for a list of some of his works. An English
translation of his preface to his English, Scotch and American criminal
procedure is given on pages 650-53 of Great jurists of the world.
^'^ Great jurists, etc., p. 560.
^^° Rudolf von Ihering, born at Aurich, Friesland, 1818, died at Gottingen
1892. He was a student at Heidelberg, Gottingen, and Berlin. He taught
at, successively, Berlin, Basel, Rostock, Kiel, Giessen, Vienna, and finally
at Gottingen, where he was professor for twenty years. See Great jurists
of the world,- pp. 590, 699.
2» See supra § 338.
^^Geist des romischen Rechts, etc., ("Spirit of Roman law"), 1862-6.
222 His "Battle for right" {Der Kampf urn's Recht, 1872). For a list of
his works, see Great jurists, etc., pp. 592 et seq.
23' See supra § 98.
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334 THE MODERN REALM OF ROMAN LAW
Ihering animated Roman law as did none of his contempo-
raries. A special feature of his teaching was his practical prob-
lem work in Roman law.^^^ He knew how to treat Roman law
as a living force effective in the modern world. ^'^ He correctly
emphasized that the trend and drift of modern law is its idea
of universality, — the familiar doctrine of the Natural Law
school.^'* No one can know the foundations of law without
going to Ihering.
§ 353 (9) Mommsen. The most eminent historian and scholar in
the world during the 19th century was the great Mommsen. ^'^
The versatility of Mommsen was amazing: he surpassed all
of his contemporaries in his triple capacity of Roman anti-
quarian, jurist, and historian. His fame was first acquired
as an editor of Roman inscriptions. With the publication of
his vivid Roman history,^'^ he immediately acquired a Euro-
pean reputation. This work was shortly followed by the
appearance ^^' of the first volume of Corpus inscriptionum
Latinarum. And the whole of this enormous production of
recondite learning was completed under his direction and
supervision.
''* His Praktika. As early as 1847 he published a collection of these
entitled Civilrechtsfdlle, etc. This contained also hints for solution.
''5 See his Scherz undErnst *, p. 365.
^'^Geist des rom. Rechts, i, 15.
'" Theodor Mommsen was born 1817 of Danish ancestry at Carding
in Schleswig, and died at Charlottenburg 1903. He was a student at the
University of Kiel, and in 1843 he was enabled by the Danish government to
go to Italy. There he became interested in the study of Roman inscrip-
tions. Four years later he returned home, and in 1848 he became professor
of Roman law at Leipzig. But on account of his republican opinions he was
deprived of his professorship a year later, and fled to Switzerland. There
he was appointed professor at Zurich. While there he wrote his famous
Roman history. In 1858 he returned to Germany, and was appointed
professor at the University of Berlin, where he remained for the rest of his
life.
^'Written 1854r-6. This work was translated into English by
Dickson. It is in three volumes and ends with the triumph of Caesar.
His Roman provinces under the Empire ri884) is not a continuation but a
separate work.
2'" In 1861. The Corpus inscriptionum Graecarum had been recently
completed under the direction of Boeckh in 1856 (1828-56, index pub-
lished 1877).
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GERMANY 335
This huge task was not, however, sufficient to consume
Mommsen's great intellectual energy. He wrote two exceed-
irtgly important works on Roman public and criminal law,^^"
which have become classics in these subjects. He edited or
directed a textual revision of Justinian's Corpus Juris and the
Theodosian Code,^^' both of which are the standard editions
now in use and indispensable to every modern investigator
of Roman law. He wrote many hundreds of minor papers
covering every field of Roman life. The debt of gratitude
owed to the immortal Mommsen by every modern Civilian
is incalculable.
(lo) Bruns, Heimbach, Huschke, Krueger, Zachariae von §354
Lingenthal, Schrader, Studemund. No other European coun-
try produced in the 19th century so many brilliant editors and
critical reviewers of Roman law textual sources as did Ger-
many .^^^ To their labors all the world is debtor.^' How vast
these efforts have been is seen from the fact that the pggregate
investigations of the following editors cover the whole field of
Roman law sources from 753 B.C. to A.D. 1453 — or the entire
duration of the Roman State.
The Roman law of the Monarchy, of the Republic, and of
the opening year of the Empire is best conserved in Bruns'^**
magnificent work of scholarship — the Pontes Juris, which
has run through many editions and is still authoritative.^*^
The Institutes of Gains have been carefully edited by Huschke,
Studemund, and Krueger. ^*^ All three together with the great
2*° Romisches Staatsrecht and Romisches Strafrecht. These originally
formed parts of the Marquardt-Mommsen Handbuch der rom. Alterthiimer
(supra §350, note).
^1 See infra vol. iii, §§ 951, 952. Mention should be made of his part in
the supervision of the Collectio lihrorum juris antejustiniani (infra vol. iii,
§§948,951).
2*!Seesupra. §§339, 346.
2*' For details of those works which are to-day still authoritative
publications, see vol. iii, § 1027 "Bibliography of Roman law."
•^* Karl Georg Bruns, born 1816, died 1880.
3^* See infra vol. iii, §§944-6,949. The later editions have been
prepared under the direction of Mommsen (supra § 353).
"* See supra § 86. Krueger is professor at the University of Bonn.
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336 THE MODERN REALM OF ROMAN LAW
Mommsen have published learned editions of ante-Justinian
Roman law texts. ^^^
Huschke, Schrader, and Krueger edited Justinian's Insti-
tutes.^** The work of Schrader^*' with its voluminous notes
is unsurpassable in scholarliness, while that of Krueger is the
standard text still in use. Krueger also edited the Code of
Justinian, the authoritative .text of to-day .^^^
The principal texts of post-Justinian Roman law were
edited and published by Zachariae von Lingenthal and Heim-
bach.^" And their works are to-day standard authorities.
§355 (ii) Baron, Bekker, Demburg, Fitting, Gliick, Graden-
witz, Karlowa, Kohler, Pemice, Salkowski, Sohm, Vangerow,
Voigt, Windscheid. These constitute the most distinguished
of the 19th century German text-book writers on Roman law.^^^
There is scarcely a corner in Roman law or legal history left
untouched by the aggregate work of these jurists. Many of
them have deservedly obtained an international reputation. ^^^
Germany in the 19th century with her many great jurists led
the world in jurisprudence.^^*
^' See supra § 353; infra vol. iii, § 951.
2« See supra § 138; infra vol. iii, § 952.
'^^ He was professor at Tubingen.
^^ See supra §136; infra vol. iii, §952.
^' See infra vol. iii, § 955. Both were professors at south German uni-
versities: Zachariae at Heidelberg, Heimbach at Leipzig.
^°^ See vol. iii, "Bibliography of Roman law," for details.
^^ The institutional works of Salkowski and Sohm have been trans-
lated into English — the former by Whitefield (London, 1886), and the
latter by Ledlie (3d edition, Oxford, 1907).
'" As to German jurists of the 19th century, see Salkowski (Whitefield
Eng. transl.) Roman law, pp. 65-6; Rivier, Introduction historique au
droit romain, pp. G2d-7, Brussels, 1881. It is interesting to notice at what
German universities the jurists mentioned in this section were or are
professors of law: at Berlin, Dernburg and Kohler; at Bonn, Baron; at
Erlangen, Gliick (who inaugurated the celebrated series of Pandekten):
at Greifswald, Bekker and Windscheid (the latter born 1817, died 1892) ;
at Halle, Fitting; at Heidelberg, Gradenwitz, Karlowa (1836-1904),
Pemice (1841-1901), and Vangerow (1805-1870, the successor of the
great Thibaut — see supra § 345) ; at Konigsberg, Salkowski ; at Leipzig,
Sohm, Voigt, and Windscheid.
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SWITZERLAND 337
25. SWITZERLAND
The formation of modem Switzerland. In 58 B.C. the §356
Helvetii, a Celtic people inhabiting the western part of modern
Switzerland, were conquered by Julius Caesar. Thereafter
Helvetia and subsequently all Switzerland became a part of the
Roman Empire. With the break-up of the Roman Empire in
Western Europe, Helvetia shared the fate of Gaul, and was
overwhelmed by Teutonic invaders. When Charlemagne
revived the Western Roman Empire .^ what is now Switzer-
land was included in that Empire. Swiss history is the story
of how some very small portions of the medieval imperial
kingdoms of Germany, Italy, and Burgundy were driven to
coalesce for the purpose of self-defense against a common
enemy — the Austrian Hapsburgs, whose power in the 12th
and following centuries rapidly developed and was greatly
dreaded.
On August 1, 1291 the inhabitants of the valleys of Uri,
Schwyz, and Nidwalden formed the Everlasting League.^
This Swiss League, which expressly confirms a still earlier one,
is the foundation of the modern Swiss confederation.' After
the battle of Sempach in 1385, which broke forever the Haps-
burg power within the borders of the confederation, the name
Switzerland was popularly applied to the League as a whole.
But it did not become the official name of the confederation
until 1803. From about 1452 onward the people were called
Swiss.
In the 16th, 17th, and 18th centuries the Swiss confederation
although an independent power* was greatly affected by
French influence, and became at times very subservient to
' See supra § 208.
'' August 1 is to-day the Swiss national holiday, when all Switzerland
is illuminated, and the mountains, hamlets, and cities blaze with light.
2 Subsequently the membership of the Everlasting League was en-
larged to eight and still later to thirteen.
* Its independence was formally recognized in 1648, although the
confederation had at the opening of the previous century — the 16th —
practically ceased to be a dependency of the medieval Roman Empire,
which had become permanently attached to the Austrian Hapsburg
sovereigns.
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338 THE MODERN REALM OF ROMAN LAW
France. The outbreak of the French Revolution very seri-
ously affected the Swiss, who adopted the new ideas, instigated
revolutions in Switzerland, and finally overturned the ancient
confederation. In 1798 the centralized Helvetic Republic
was established, which was very closely allied with the new
French Republic. The Swiss administrative districts were
now for the first time officially called cantons.^ But the Hel-
vetic Republic gradually fell into difficulties; and, after Napo-
leon Bonaparte withdrew in 1802 the French troops, the Swiss
federalists seemed about to triumph. The result was Napol-
eon's Act of Mediation of 1803, the influence of which is
markedly visible in the present constitution of Switzerland.
For the first time the official name of the confederation was
designated as Switzerland.*
The reactionary Pact of 1815, which followed the downfall
of Napoleon and the abolition of the constitution of 1803,
raised the membership of the federation to twenty-two can-
tons — the present number of Swiss States. In 1848 the Swiss
constitution was purged of its reactionary spirit, and was
made to incline to Napoleon's famous Act of Mediation. The
constitution of 1874, the present constitution, is really but a
revision of that of 1848.'
§357 Swiss law prior to its complete codificatioii in the 2oth
century. After Switzerland was wrenched away from the
Roman Empire of the West, the invaders' Germanic law and
usages, particularly the popular codes,* became established
in the Helvetian country, and formed the basis of the later
Swiss cantonal law. This Germanic regional customary law
developed and flourished in Switzerland to such an extent that
the wholesale adoption and reception of Roman law, which
^ Foreigners had used the term much earlier, e.g., Commines, Machia-
velli; and the term was used in the French Treaty of WestphaHa in 1648.
^ The membership of the federation was increased to nineteen.
' Switzerland has always been a democratic State. The latest Swiss
contribution tD democratic institutions of the world is the Referendum,
which has long been employed successfully in Switzerland.
* Such as the Leges Alemanni, Lex Burgundiorum, Lex Romana
Burgundiorum (for the Helvetic Romans conquered by the Teutonic
invaders), etc. See infra §133; General survey, etc., (vol. i, Cont. Legal
Hist. Series, Boston, 1912), pp. 484-8.
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SWITZERLAND 339
occurred in Germany, Austria, and other parts of the medieval (§357)
Roman Empire,^ never reached Switzerland except partially.'"
This was due to the weakness of the Swiss connection with the
Holy Roman Empire, — a tie that grew more attenuated
when the Austrian Hapsburg sovereigns acquired permanently
the imperial dignity." Nevertheless it was impossible that
Switzerland should escape from being affected by the Bologna
revival of Roman law '^: in the latter half of the 14th century
the University of Geneva was founded," and a century later
the University of Basel. '^
For centuries and until very recently the law of Switzerland
has been exceedingly diverse. For the first half of the 19th
century there was no uniformity of law at all in Switzerland:
Swiss law was entirely cantonal or state law. Cantonal law
had, however, one redeeming feature: each canton finally
codified its law, generally on the model of the Napoleonic codi-
fication.'^ The Austrian Code of 1812 '^ did have considerable
influence on the law of some of the German cantons. The best
cantonal code is that of Zurich of 1855, the work of the illus-
trious Bluntschli."
» See supra §§ 231, 265, 266, 322, 208.
"• See supra §322 (note on the Reichskammergericht) ; General survey,
pp. 501, 337. Political reasons were largely accountable for this.
1^ See General survey, pp. 489, 498-9.
^ See supra §211 et seq.
13 In 1368.
'* In 1460. The Swiss universities of Zurich and Berne were founded
in the 19th century: Zurich in 1832, Berne in 1834.
15 See supra §§254, 257.
i« See supra § 232.
" Johann Kaspar Bluntschli, the most famous of Swiss jurists, was
born at Zurich 1808, and died at Karlsruhe, Germany, 1881. He studied
at the German universities of Berlin and Bonn, taking his doctor juris
degree at the latter. On account of his political opinions he left Zurich
and Switzerland in 1847, and went to Munich. Here he was appointed
during the following year professor of constitutional law, which chair he
filled until 1861 when he was called to Heidelberg. His Privatrechlliches
Gesetzbuch fiir den Kanton Zilrich (code of private law for the Canton of
Zurich), 4 vols. 1854, became a model for Swiss and other codes. After
Bluntschli went to Heidelberg, he took up international law, in which field
he obtained his greatest renown as a jurist. His treatises on international
law are still invaluable works.
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340 THE MODERN REALM OF ROMAN LAW
But in course of time tlie Swiss learned by sad experience
tiiat to maintain numerous different systems of state law with
their resulting confusion and diversity is devoid of good sense,
and presents a most serious obstacle to the accomplishment of
justice. The constitution of Switzerland was revised; and
beginning with the year 1874 it became possible for the federal
government to establish federal laws applicable to all the
cantons. A succession of federal laws including some partial
codifications ensued, which abrogated the cantonal laws
wherever in conflict. The most famous of these is the world-
renowned Code of Obligations of 1883. '' Other federal codi-
fications are the Penal Code,^' Code of Criminal Procedure,^"
Code of Civil Procedure, ^"^ Bankruptcy. ^^ For the rest of the
19th century the law of Switzerland was partly federal and
partly state or cantonal, — thus giving rise to a partial uni-
formity of law. Not until the 20th century completion and
adoption of the federal codification of the entire Swiss law, was
one codified law for all Switzerland attained.
§358 The Swiss Civil Code of 1912 and modem Swiss law.
Early in the 20th century the unity of Swiss law was finally
accomplished. In 1912 the new Civil Code for all Switzerland
went into force. ^' The old federal Code of Obligations has
been revised,^* and put into accord with the Civil Code, both
codes being made effective January 1, 1912. The codes of
1912 are most useful to jurists, for these are written in the
three national languages of Switzerland — namely French,
German, and Italian. ^^ Switzerland has also the other usual
IS Effected January 1, 1883. It was modified as to railroads by Federal
law of Dec. 21, 1883, and completed as to registry of commerce by law of
Dec. 11, 1888. It comprised 880 articles. In 1889 the Federal law of
Bankruptcy was enacted.
1° 1853. It is now being revised.
^» 1851.
21 1850.
22 1889.
23 The Civil Code was adopted Dec. 10, 1907.
2* Adopted March 30, 1911.
''^ An English translation of the new Civil Code by Shick was pub-
lished in 1915.
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SWITZERLAND 341
codes of Continental European States — Penal, Criminal Pro- (§358)
cedure, Civil Procedure.^^
The Swiss Civil Code reflects somewhat the philosophical
spirit of the German Code of 1900,^' and some features of its
order are reminiscent of that magnificent work. But the Swiss
Code resembles most of all the French Civil Code in its practical
spirit of preciseness.^^ For the French, as was natural, has
made the strongest impression on the new federal code as it
did on the cantonal codes. ^^ The world-mission of Roman law
has been accomplished in Switzerland : one system of private
law (instead of twenty-two) for the entire Swiss nation, and
codified. Switzerland ^'' is now a province of modern Roman
law.
It should be remembered that the Swiss codification of 1912
is a national one, abrogating all cantonal or state private law.
In creating one and only one uniform system of private law
the federal union of Switzerland was not destroyed, nor did the
respective cantons or states become emasculated. Switzer-
land thus furnishes the proof that a federated republic can
attain to a national uniformity of law and still continue a
federation of states. In other words, it is not impossible for
a federated republic '' to unify and codify its private law. In
Switzerland no longer prevails diversity of state law with all
the attendant evils of wanton confusion as to legal rights,
chicanery, and needless expense in litigation. Switzerland
has pointed out for all time to federated republics, including
the United States, the pathway and ultimate goal of legal
progress — a single national codified jurisprudence. Thus in
federated countries may be realized the world-mission of
Roman law since Justinian.
'* These federal codes were framed and enacted during the latter half
of the 19th century. Switzerland has no Code of Commerce, its equivalent
being the Code of Obligations and Law of Bankruptcy. See supra §§356,
257.
" See supra § 254.
28 See supra § 344.
2" See supra § 356.
^°The area of Switzerland is twice that of the American state of
Massachusetts.
^' And also for a federated empire, see supra § 344.
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342 THE MODERN REALM OF ROMAN LAW
26. SCOTLAND
§359 Scotch law prior to the i8th century and the Act of Union
with England in 1707. Scotland, like Germany/ is a country
which has actually accepted and received the Roman law,
although not originally subject to it; for Scotland never was
a province of the Roman Empire. Prior to the 14th century
there are not many traces of Roman law to be found in Scot-
land. But the Bologna revival of Roman law^ reached Scot-
land in the 15th century, when the universities of St. Andrew,
Glasgow, and Aberdeen were established.' A century later
the University of Edinburgh was founded.^
From the 16th century onward is the period of the reception
of Roman law into Scotland. In 1532 James V, nephew of
Henry VHI of England, established the present' Scotch
Court of Session, which was modeled on the French Parlement
or law court of Paris.* This event occurred during the era of
Scotch attraction to France and antagonism to England. And
this new Scotch court openly and definitely adopted the
Roman law to supplement the deficiencies of the then crude
private law of Scotland.^ The adoption of Roman law by the
Court of Session caused little inconvenience to the legal
profession, for Scotch lawyers were already well acquainted
with the Civil Law, owing to the fact that it was customary
to prepare for the legal profession by going abroad to study
at Continental universities where Roman law was taught.^
And this practice did not entirely cease after the Protestant
Reformation and the inauguration in 1560 of Roman law in-
struction at the universities of Scotland.^
Although the influence of the Protestant Reformation in
Scotland caused the practice of citing in Scotch courts Justin-
1 See supra §§316,322.
'See supra §§211-12.
' Founded respectively in 1411, 1450, and 1494.
'1 " In 1582.
' Mackenzie, Roman law'', p. 46.
■ * See Mackenzie, Id.; Bryce, Studies in history, etc., p. 73, 91.
' Mackenzie, Roman law'', pp. 46, 47. The French university law
schools received the most of such Scotch students.
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SCOTLAND 343
ian's Corpus Juris ' to be regarded with religious disfavor, it
did not stop private consultation of Roman law texts. And
long before the close of the next century, the 17th, much Roman
law became absorbed in Scotch private law. Says the learned
Arthur Duck^" in his famous treatise published in 1653:
"The Scots have taken from the Civil Law their procedure and
most of their national law. . . . Where the written law
of Scotland is contrary to the Civil Law of the Romans, the
Civil Law is not followed: but where the . . . (Scotch)
law is incomplete, in such cases the judges among the Scots
are not permitted to use their own discretion, but must judge
according to the Roman law."''- And this Roman-Scotch
law, although not codified, became the uniform law of the
Kingdom of Scotland.
Scotch law since the Union with England in the i8th cen- §360
tury. Modem Scotch law. Scotland remained separate from
England for over a century after James VI of Scotland suc-
ceeded Queen Elizabeth as James I of England. But in the
year 1707, during the reign of Queen Anne, the two kingdoms
were merged into the United Kingdom of Great Britain.
One of the provisions of this Act of Union ^^ was that Scotland
should retain her own law and judicial procedure. And Scotch
private law to-day still contains a large amount of Roman
law.'' The authoritative works of such eminent Scotch
jurists as Stair, Erskine, and Bell show great familiarity with
Roman law. To be sure Scotland, as well as England, is
unlike Continental Europe in that its private law is yet
uncodified and is to be found chiefly in the Reports of the
decisions of courts; but codification, that final stage of the
influence of Roman law on all modern jurisprudence, is at
last beginning to be considered in Great Britain."
' See supra § 135.
>» See infra § 391.
1' De usu el aucioriiate juris civilis Romanorum in dominiis principum
Christianorum (chapter on Scotland).
12 Of March 4, 1707.
" On the present authority of Roman law in Scotch law, see Erskine,
Principles of Ihe law of Scotland'"' (Rankine), p. 6.
" See infra § 404.
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344 THE MODERN REALM OF ROMAN LAW
The reception and survival of Roman law in Scotland are
also strikingly attested at the present time by the following
facts: no one can become an advocate at the Scotch Bar
without passing an examination in Roman law, and no one,
except a member of the Scotch Bar, can be appointed a judge
of the Court of Session without undergoing an examination in
Roman law.^*
27. ENGLAND, ENGLISH LAW PARTS OF THE
BRITISH EMPIRE, AND THE UNITED STATES i
§361 England also belongs to the modem realm of Roman law
since Justinian. It was Matthew Arnold who called the
only criticism that is helpful for the future "a criticism which
regards Europe as being, for intellectual and spiritual pur-
poses, one great federation. "^ The traditional assertion
that English law is wholly indigenous and owes nothing to
the influence of Roman law is now happily passing away.
No longer are religious prejudice and insularity of feeling
obscuring the fact of the survival of Roman law in English
law as well as in all Continental European jurisprudence:
it is diametrically opposite to actual history to assert that
Roman law survived or has been received in all modern
European countries, except one — namely England. To
be sure the influence of Roman law on English law has been
restricted as compared with the larger influence of that law
on Continental European and allied systems of law. And
this helps considerably to explain the present relative back-
ward and confused condition of English and American law as
compared with the jurisprudence of all other modern civilized
nations.
" See Mackenzie, Roman law'', p. 47.
1 A part of this was published by the author in 23 Yaie Law Journal
p. 318, February, 1914, under the title of "The Romanization of Eng-
lish law," and is reprinted by permission.
2 If this illuminating statement be revised so as to include the Americas
and other civilized regions of the world which have been affected by
European influences, it would succinctly describe the progress of modern
civilization.
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ENGLAND 345
Periods of English legal history. The history of the §362
development of English law into its present form has five
well-defined periods: from the Anglo-Saxon conquest of
Britain in the 5th century to the Norman conquest in the
11th century; from the Norman conquest of England in the
11th century to the end of the reign of Edward I early in the
14th century; from the 14th century to the 17th century
and the reign of James I ; from the 17th century to the 19th
century Judicature Act of 1873; modern English law in
England, the British Empire, and the United States of America.
I. England from the Anglo-Saxon con-
quest in the 5th century to the Norman
conquest in the 11th century: period of al-
most exclusively Teutonic Anglo-Saxon law
Britain, a Province of the Roman Empire, was governed §363
by Roman law. In the Island of Britain was established a
Roman province which lasted 400 years. Julius Caesar's
expedition into Britain in the year 55 B.C. was followed a
century later by permanent conquest and occupation of the
island, and the introduction of Roman civilization. Britain
was from the outset an Imperial command of the first rank,
garrisoned at one time by about 30,000 Roman soldiers,'
and became an important Roman governorship.*
' Mommsen, Provinces of the Roman Empire (Dickson's translation),
vol. i, ch. 5, p. 190, London, 1909.
* The story of Carausius illustrates the 3d century value of Britain
to the Roman Empire. Incidentally it recalls the earliest known British
ruler of the seas. Carausius was a Belgian, who rose in the Roman naval
service from pilot to admiral. Appointed to command the Roman "Chan-
nel Fleet" with headquarters at Boulogne (Gesosriacum) , he was instructed
to stop the northern Teutonic sea-rovers from passing through the British
Channel (Fretum Gallicum) to raid the shores of the ocean provinces. But
he took advantage of his position to get rich by suffering the pirates to
go through the Straits, only stopping them on their return with their booty.
This he divided with his naval force. Arousing the suspicions of the
Emperor Maximian, Carausius escaped arrest and execution by sailing
with the Roman navy to Britain. There he established himself as an
independent Emperor. For seven years owing to his sea-power he held
Britain against the whole Roman Empire, ravaging the Continental coast
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346 THE MODERN REALM OF ROMAN LAW
South of the wall of Hadrian, built by that Emperor to
protect Britain from the rude Picts and Scots and extending
across the entire island from sea to sea for about seventy
miles, arose numerous towns. Eboracum (the modern city
of York) was the military capital of Roman Britain. Here
early in the 4th century the Emperor Constantine the Great^
was proclaimed Caesar. The most flourishing mercantile
town in Britain was Londinium (London) at the mouth of the
Thames. The modem English cities of Lincoln (Roman
Lindum), Bath (Roman Solis), Gloucester (Roman Glevum)
and St. Albans (Roman Verulamium) were among the towns
founded during the Roman domination of Britain. Roman
post roads were introduced all over the province, many of
which are traceable at the present time. The success of the
Roman occupation led to much commercial prosperity.
With wealth came education of the favored youth of Britain
according to Roman standards.^
Roman law made rapid strides in Britain during the 2d
and 3d centuries A.D., as is attested by the writings of the
Roman jurists Javolenus and Ulpian, who discussed cases
arising in Britain.^ Moreover an illustrious galaxy of Roman
judges honored Britain with their presence. York was the
seat for three years of the highest Roman tribunal with
Papinian, the prince of Roman jurisconsults, as chief justice
and the famous Ulpian and Paulus as associate justices ^ — ■
a wonderfully able and brilliant court. It was as if the United
States Supreme Court, were to hold sessions in Alaska.
§364 The Anglo-Saxon conquest of Britain late in the 5th cen-
tury. It should always be remembered that when the Roman
from the mouth of the Rhine to Gibraltar. Finally Diocletian and Max-
imian (reigned A.D. 284r-305) made him their colleague in the Imperial
sovereignty. The first British Emperor fell a victim to the treachery of
his Prime Minister, who was subsequently slain by Constantius; and the
revolted island became once more a Roman province.
^ See supra i 120.
* Mommsen, Id., p. 194.
' As to these iurists, see supra §§ 88, 108.
8 See supra §§98, 99, 108; Walton, Roman law^, p. 284, Edinburgh,
1912. Papinian went to Britain with the Emperor Severus, and probably
drafted a law of Severus promulgated at York in the year 210.
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ENGLAND 347
Empire decayed in the 6th century, "it was not Britain that
gave up Rome, but Rome that gave up Britain." » In the
year 455 the Roman legions were withdrawn from Britain
to defend Italy against the barbarian Germanic invaders.
Soon, in addition to the roving Scots, the Angles, and Saxons
from Germany began to invade Britain, and the doom of
the helpless island was settled. The inhabitants in despair
addressed the Emperor Honorius for protection against the
Saxons; but he replied that they must help themselves as
best they could. Some of the Britons fled to Western
England — to Wales and Cornwall, still partly Celtic to-day;
while others exiled themselves across the channel to France —
the region which they settled being called to this day Brittany.
The Britains who remained in the island resisted the pagan
Saxon invaders for a long time ; but in 493 the invaders won a
decisive battle. Thereafter they were supreme, although Corn-
wall in Western England resisted for a half century longer. i"
Religious connection with Rome restored by the con- §365
version of the Anglo-Saxons to Christianity. But the influence
of Rome reappeared in Britain under another guise late in the
6th century, when Christianity was reintroduced and the
Anglo-Saxon invaders were converted to the Christian religion.
Pope Gregory I one day noticed some comely Saxon youths
in the slave market place at Rome and inquired to what
nation they belonged. On being told that they were "Angels,"
he answered "Not Angles, but Angels" would they be if they
were only Christians." And in 596 Gregory sent over to
the island of Britain the famous St. Augustine, founder of
the primate English see of Canterbury, by whose efi^orts dnd
those of his colleagues the Anglo-Saxons abandoned paganism
and became Christians.
" Mommsen, The provinces of the Roman Empire (Dickson), vol. i, ch.
5, p. 194.
^^ Nys, Le droit romain, le droit des gens, et le college des docteurs en droit
civil, p. 25, Brussels, 1910. It is very interesting however to notice that
soon after A.D. 511 the British writer Gildas calls the island "Romania"
because of the extent to which Roman institutions had entered Britain:
Amos, Roman law, p. 443.
" "Non Angli, sed Angeli, simodo Christiani": Morris, Hist, of develop-
ment of law, p. 248, Washington, 1909.
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348 THE MODERN REALM OF ROMAN LAW
One of Augustine's converts was Ethelbert, King of Kent,
who soon revealed Roman influences by causing to be set in
writing the laws of his kingdom ''according to the Roman
mode." 12 This he did about the year 600. Very likely the
Roman missionaries had brought to his attention the exploits
of Justinian/^ then dead scarcely forty years. Ethelbert's
laws are the earliest document in the English language, the
first laws written in a Germanic tongue.
§366 Britain became known in the pth century as "England."
Legislation of Alfred the Great, Canute, and Edward the
Confessor. In 827 the united kingdoms of the Angles and
Saxons received the name of "Angle-land" (England), the
kingdom of England beginning in the reign of Egbert. Much
legislation came from the later Saxon and Danish kings of
England. There is a real continuity of English law from
the time of the 9th century Alfred the Great " until now.
By Alfred and his Saxon successors a remarkable series
of laws was published which strongly resemble the Prankish
capitularies of Charlemagne and the later Carolingians.'^
Now Charlemagne, the first Emperor of the revived medieval
Roman Empire of the west.^^ had tried to substitute Roman
legal ideas and law for Teutonic .usages. Alfred did much for
the law of his age, endeavoring to gather all that seemed good
in the old English laws and promulgating new laws. A ^'isit to
Rome in his youth, and his intense desire after he became
King to import into England the learning of the Continent,
should account for much of his inspiration as a legislator.
The 11th century Canute, the Danish King who ruled both
England " and Denmark, was perhaps the greatest European
legislator of that century.'* He too had visited Rome; he
^^ Bede, Hist. eccl. ii, ch. 5, "juxta exempla Romanoruni."
'' See supra § 135.
" Reigned 871-901.
" Stubbs, Const. Hist, i, p. 223.
« See supra § 208.
" Reigned 1016-35.
'* "If he is not the greatest legislator of the 11th century, we must go
as far as Barcelona" (i.e. for the medieval compilation known as the Con-
solato del Mare, supra §214) "to find his peer": Pollock and Maitland,
History of English law'', vol. i, p. 20, Cambridge, 1898.
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ENGLAND 349
was personally acquainted with an Emperor and a Pope. His
comprehensive statutes helped enormously to add to the con-
tinuity of English law from Alfred's day.
The restoration of the old Anglo-Saxon dynasty in the
person of Edward the Confessor/' who had spent the best
years ^^ of his life in exile on the Continent, inevitably con-
tinued Roman influences in Saxon England. Edward's
predilection for foreigners, especially Normans, is well-known.
It is interesting to notice that Edward returned to England
just before the time the rehabilitation of Roman law began
on the Continent. ^^ Ed\yard is honored by tradition as a
pre-eminent legislator, although what now remains of his
laws was compiled after the Norman conquest. ^^ The most
trustworthy manuscript^' contains quite a few fragments of
Roman law.^* One thing is certain : the Saxon law of Edward's
time must be included in the basis of the later English Com-
mon Law, for this law was the standard of conduct constantly
elevated before the early Norman Kings ^^ — who swore to
keep the laws of King Edward in order to obtain the favor of
their subjects.
Obscurity of Roman law in England from the Saxon to the § 367
Norman conquest. The rudeness of the Germanic invaders
of England and the turmoil of the centuries following the
" Reigned 1042-66.
^^ About thirty years, from about his tenth to his fortieth year, c.
1013-42.
*i See supra §§209 et seq. Edward returned in 1042. The earliest
date of the revival of Roman law study in Italy is A.D. 1038 (Pollock and
Maitland, History ofEngliihlaw^, vol. i, p. 23) ; at any rate the Institutes
of Justinian (supra § 138) were studied at Pavia in the 11th century.
'i^ Pollock and Maitland, Hist, of English law^, vol. i, pp. 97-104:
Holdsworth, History of English law, vol. i, p. 2. These are the Leges
Henrici I (composed about 1118), the Quadripartitus (1113-8), the
Bilingual laws of William I, and the Leges Edwardi Confessoris. These
documents contain many laws of Canute.
^'The Leges Willelmi I {Leis Williame), known also as the Bilingiml
laws of William. I.
^See Pollock and Maitland, History of English Law '^, vol. i, p. 102, note
1; Holdsworth, History of English law, vol. i, p. 2, London, 1903.
^* William the Conqueror, Henry I, and Stephen, for example: see
Pollock and Maitland, History', etc., vol. i, pp. 88, 95, 96.
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350 THE MODERN REALM OF ROMAN LAW
cessation of the Roman rule in the island down to the Norman
conquest were antagonistic to civilizing influences from
abroad, and unfavorably affected the development of Anglo-
Saxon law.^* England seemed in great danger of being lost
to the civilizing influence of Roman law, — the native cus-
tomary law of Teutonic origin almost obliterated it.
But there are a few traces of Roman law in England after
the Saxon conquest, ^^ even if these are obscure and hard to
find. Through the fostering care of the Christian clergy of
England whose personal law originally was the Roman and
who were subject to the developing Canon Law of the Church,^*
knowledge of the Roman law was kept alive in ecclesiastical
England from the 7th to the 11th century: it is known that
during these centuries Roman law was studied in the cathedral
school at York.2'
II. England from the Norman conquest
in the 11th century to the end of the reign
of Edward I early in the 14th century:
period of the introduction of Justinian
Roman law into England via the Bologna
revival
1 368 Improvements made in English law during the reigns of
William the Conqueror and his sons after the Norman con-
2^ As to the nature of Anglo-Saxon law, see Pollock and Maitland,
History,'^ etc., vol. i, pp. 25-63.
" Supra § 364.
2^ See supra §§ 225 et seq.
^' Alcuin, Poeina: "lUos juridica curavit cote polire"; Savigny, Ges-
chichte d. rom. Rechts im Mittelalter ^, ch. 6, § 135. Alcuin (c. 735-804)
the eminent 8th century English educator, renowned for his work at the
Palace School of Charlemagne, has left us a valuable description of the
academic life at York during his fifteen years' residence there as an in-
structor. The great library at York was probably the finest then in all
England, surpassing that of the learned Bede at Jarrow. • Another invasion
from Europe afflicted English learning as the English themselves had
damaged Roman civilization in Britain ; the great libraries of York, Jarrow,
and Peterborough vanished. Not until Alfred's time (supra § 366) did
the tide turn again the right way.
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ENGLAND 351
quest. The winning of the battle of Hastings in 1066 made §368
the Normans from France masters of England, and brought
England once more into direct relations with the Continent,
whence she was to derive advancement in civilization and
progress in law. Marked changes for the betterment of
English law were introduced by William the Conqueior and
his sons.^"
William's great Prime Minister and right-hand man was
the Italian Lanfranc, whom he persuaded to become Arch-
bishop of Canterbury. It should never be forgotten that
Lanfranc, although a great prelate and theologian, was a
most accomplished lawyer, well-known throughout the world
of his time. He had studied and taught Roman law at Pavia
in his native Italy. Later, while still a layman, he went to
Normandy where he taught at Avranches and Bec.''^ Here
it is not at all impossible that Lanfranc gave instruction in
law, and so prepared the Normans for their great undertaking
by supplementing the soldier's task of conquest with the work
of the lawyer. It is idle to say that the English law of the
12th century has no Roman element in it derived from Italy,
when there had existed in England late in the preceding cen-
tury a person of vast constructive judicial influence like
Lanfranc, who possessed a most profound knowledge of Roman -
law and Canon Law in addition to his mastery of the rude
English law of his age.
Before the middle of the 12th century was reached, three
great improvements had been made in English law, all of
which helped to pave the way for a real reception of Roman law
into England and its establishment as a source of the English
Common Law. (1) Central courts of justice were established,
and the Saxon local courts fell into disfavor.'^ (2) Ecclesi-
astical courts were separated from civil courts^': this change
'" The reigns of William the Conqueror and his sons were from 1066
to 1134 (or to 1154 if that of Stephen, William's grandson, be also included).
*' Savigny, Geschichte ^, ch. 6, § 135 ; Pollock and Maitland, History ^,
vol. i, pp. 77-8; Ortolan (Prichard and Nasmith Eng. transl.), History
of Roman law, § 612, London, 1871.
52 Pollock and Maitland, History', vol. i, pp. 108, 138.
35 Id. vol. i, p. 124.
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352 THE MODERN REALM OF ROMAN LAW
favored the Roman law and the Canon Law, which were given
a free course in the English ecclesiastical courts without any
check by the English customary law. (3) The administration
of justice was put in the hands of the educated men of the day
— usually the men with a clerical education, who were uni-
versity-trained and familiar with Latin forms of expression.'^
Norman-French was made the language of the law courts —
a provision which lasted for over two centuries.'* By these
measures the old native Saxon law was very largely upset.
\ 369 The new Bologna revival of Roman law brought to England
in the middle of the 12th century by Vacarius. The 12th and
13th centuries foi;m perhaps the greatest landmark in the his-
tory of English law: for the Bologna revival of Roman law'*
reached England in the 12th century. Not long after the
school of the Glossators was inaugurated at Bologna, the
Lombard Vacarius '^ came over to England in 1149 with
Theobald, Archbishop of Canterbury. Vacarius was ap-
pointed professor at the young university of Oxford,'* and
began to lecture on Roman law according to the methods
employed by the Italian Glossators. Vacarius published an
abbreviation in nine books of the Code and Digest of Justinian
for the use of students too poor to obtain copies of the
originals." The new teaching of Vacarius aroused opposition,
so much so that King Stephen, who disliked Archbishop Theo-
bald, prohibited Vacarius from teaching, and forbade even the
" Amos, Roman law, p. 444.
'^ See supra § 211.
" See supra § 213.
^' When Oxford was founded is lost in obscurity. The traditional date
is c. A.D. 879 in the reign of Alfred the Great. But the first authentic
record of the existence of the town is A.D. 912, and this is the year from
which anniversaries are reckoned. The university may be safely considered
to have been founded early in the 12th century (c. 1100?). See Goldwin
- Smith, History of England, vol. i, p. 58, and his Oxford and her colleges, p. 25.
^' Vacarius' book condensed the Code and incorporated large extracts
from the Digest (supra § 135). His book was entitled Liber ex universo
enucleato jure exceptus, et pauperibus praesertim destinatus, and contained
brief glosses. Wherefore for a long time law students at Oxford were
called "Pauperistae." See Ortolan, etc., Roman law, §615; Colquhoun,
Rom. law, § 144; Pollock and Maitland, History^, vol. i, p. 118.
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ENGLAND 353
retention in one's possession of the obnoxious books of Roman
law; but the persecution soon failed, and the royal prohibi-
tions were speedily removed either by Stephen or his succes-
sors.*"
That the sources of Roman law, both the Justinian and the
ante-Justinian," were becoming known in England by the
middle of the 12th century is attested by the historical writ-
ings of William of Malmesbury,*^ who died 1142. In the 13th
century the study of Roman law was introduced at the new
university of Cambridge.*^ And from this time down to the
17th century the Civil Law as a study at the English universi-
ties held a rank second only to theology.^
The 1 2th century Laws of Oleron. During the middle of the §370
12th century Roman law entered England by another channel —
via France. The second great code of medieval maritime law,
the Laws of 016ron,*5 was introduced into England from
France either by Eleanor, Duchess of Guienne and wife of
Henry II, or by their son Richard I (Coeur de Lion).*^ The
Laws of Oleron were inspired by the earlier Consolato del
Mare, a compilation based on the Roman law.*^ The Laws
of 016ron as received into English law were enlarged and per-
fected in the 18th century by Lord Mansfield.**
Rise of the English Common Law in the 12th century; §371
the jiuy and the system of original writs introduced under
Henry II. By the first half of the 12th century the formation
of the Unwritten Common Law of England has become clearly
'"' Hunter, Roman law », p. 109.
« See supra §§ 86, 135; infra vol. iii, §§ 951, 952.
*^ See Selden, Ad Fletam dissertaiio, ch. vii; Amos, Roman law, p. 445.
''^The founding of the University of Cambridge is lost in obscurity:
it has been put as early as 635. The first college, Peterhouse, is known to
have been definitely established in 1284.
« Bryce, Studies, etc., p. 890, New York, 1901. See also Bellot, Early
law schools in London, 36 Law Mag. and Rev., pp. 257-83 (12th-14th
centuries).
« See supra § 236.
*" See Act 1403, 6 Hen. IV, ch. 7 (Scrutton, Roman law in Eng., p. 172,
Cambridge, 1885) where the Admirals swear to judge according to the
'Laws of Oleron."
" See supra § 214. '
« See intra § 397.
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354 THE MODERN REALM OF ROMAN LAW
(§371) visible,*' and the commencement of its slow progress to matur-
ity of development begins to be discernible. The rules and
enactments of the new customary law were shaped by Norman
lawyers familiar with Roman and Canon Law. The very term
"Common Law" is a borrowing from the Canon Law itself; it
is an English translation of the Canon Law termjM^ commune.^"
Two innovations were introduced into English law during the
reign of Henry H : the jury and the system of original writs. ^^
What was the origin of the jury? The answers, until recently,
have been colored largely by English prejudice. The prevail-
ing opinion now is that the jury is not of Anglo-Saxon but of
Prankish or Continental European origin ^^i hence familiar
to the Normans and imported into England by them. This
Prankish inquest, used by the medieval Roman Emperor
Charlemagne and his royal successors, quite naturally seems to
imitate certain features of Roman law procedure.^^ The
Roman root — the more important if not the exclusive source
— of the English trial by jury is probably the judices, or per-
sons selected by the praetor in Roman law to determine the
facts in legal controversies.^* The English jury is the most
lauded and highly-prized feature of the Common Law. It is
the only feature of the English Common Law which has exerted
a universal influence, for it has been copied by numerous
modern non-English foreign nations. But in these foreign
countries its application has been usually restricted — ■ per-
haps wisely ^ — to criminal or penal cases only, civil controversies
being tried by the court alone as in Justinianean Roman law.^^
" In the reign of Henry II (1154r-89). See Holdsworth, Hist, of
English law, vol. ii, pp. 107-69; especially p. 150 (iv), London, 1909;
Hudson, The judicial reforms cf the reign of Henry II, 9 Mich. Law Review,
p. 385.
''" Maitland, CanonLaw inEngland, p. 4, Cambridge, 1898; Pollock and
Maitland, History", vol. i, p. 176.
" Pollock and Maitland, History'', vol. i, pp. 138, 150.
'2/d., vol. i, pp. 140-44.
S3 See Id., p. 141.
" See supra § 122; infra vol. ii, §5 881, 934.
s* "Some day the civil jury (in English and American law) will go the
way of the ordeal and the battle to the junk heap of abandoned inslitu-
tions": Boston, Defects in the administration of justice, Penn. Law Rev.,
Nov. 1012, p. 10.
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ENGLAND 355
In the reign of Henry II the royal courts began to issue writs,
which were carefully worded and 'ready-made' to suit ordinary
cases of litigation. When a litigant desired to sue out a writ
he was now enabled to choose an appropriate writ, unless a
new one had to be invented.*' The drafting of these 'ready-
made' writs of process must )have been greatly facilitated by
models of Roman law formulas to be found in the sources of
Roman law, — the law familiar to the then ecclesiastical
English judges.
The 1 2th century Glanville. Late in the 12th century §372
appeared the earliest known work on English law. It was
written in Latin. Its author was Glanville, an ecclesiastic,
who was Chief Justiciar of England during the reigns of Henry
II and his son Richard I (Coeur de Lion)." Glanville's work
was entitled A treatise on the laws and customs of the kingdom
of England}'^ It is more of a manual of procedure and practice
than a treatise on law. In his preface Glanville imitates the
prooemium or preface of the Institutes of Justinian,*' and
draws upon the Roman law in his discussion of agreements
and contracts, although he calls Roman law a "foreign law."
The 13th century Stephen Langton and Magna Charta. §373
About a quarter of a century after Glanville, Magna Charta
was promulgated in the year 1215. This work of that master
mind Cardinal Stephen Langton, Archbishop of Canterbury,
must have been suggested to him from some source. It was
the result of long continued agitation for a return to the good
old legislation of Edward the Confessor,^" it proclaimed trial
by jury, and it is the cornerstone of English and American
civil liberties. Where did Stephen Langton get his inspira-
tion? Not from the then feudalistic institutions in the State.
Whatever was remembered of Roman civilization as created
by Roman law was preserved through the beneficent influence
of the medieval Church. '^ Here is an interesting fact. About
^^ Pollock and Maitland, History', vol. i, p. 151.
" A.D. 1154r-99.
^* Tractatus de legibus el consuetudinihus regni A ngliae (Eng. transl. by
Beames, Washington, 1900).
" See supra § 138.
" See supra § 366.
" See supra § 225. ' '
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356 THE MODERN REALM OF ROMAN LAW
seventy years before Magna Charta the tradition is that in
the little Italian city of Amalfi was found a copy of the Digest
of Justinian alleged to have belonged tc that Emperor himself.
At any rate, even if this romantic story is false,*^ there was
discovered somewhere in Italy about this time a splendid'
manuscript of the Digest, now known as the Florentine*^;
\ and this became very largely instrumental in causing the
wonderful Bologna revival of Roman law study which spread
over all Western Europe.^* The source of Archbishop Lang-
ton's inspiration is plain: Magna Charta was drafted in the
light of civil liberty as proclaimed in Roman law.
§374 Bracton, the greatest English jurist of the 13th century.
Some fifty years after Magna Charta,** flourished the first
scientific English jurist — ■ Bracton,** an ecclesiastic. For
about ten years during the reign of Henry III *' he was a jus-
tice of the central court that followed the King (the "nascent
court of King's Bench" *^) — -perhaps the last Chief Justiciar
of England.*' After his retirement or dismissal about the year
1257, Bracton continued as an assize judge until his death.''"
Bracton is truly the father of the English Common Law : 450
decided cases are reported in his Notebook. ''^
Bracton's famous work is his treatise Of the laws and customs
of England,''''- written in Latin about the year 1258.^' This
*' So proved by Savigny, Geschichte', ch. 17; Rashdall, Universities
of Europe in the Middle Ages, vol. i, pp. 99, 100.
^3 It is now preserved in the Medicean Library at Florence.
« See supra §§209, 211.
^ Supra § 373.
'^^ Henry de Bracton (Bratton was his real name) died 1268, and is
buried in Exeter Cathedral, of which he was chancellor.
" Reigned 1216-72.
«8 Pollock and Maitland, History\ vol. i, p. 206.
«9 4 Encyd. Britan.^'- p. 618.
'" Bracton had been such before becoming justiciar of the central King's
court. Bracton's service as judge of various courts continued for over
twenty years, 1245-68.
" Edited by Maitland and published in 1885.
1' De legibus et consuetudinibiib Angliae (Eng. translation published
1878-1883 in the Rolls Series).
" Pollock and Maitland, History^, vol. i, p. 207, give the date as 1250-
58; Giiterbock (Coxe, Eng. transl.), Bracton, etc., ch. i, p. 24, gives
1256-59.
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ENGLAND ^ 357
has made him the Blackstone of the 13th century. Although (§374)
bearing almost the same title as Glanville's work/* Bracton's
treatise is not a mere text-book on practice, but an exposition
of the law itself — the first of its kind in England. Bracton's
importation of Roman law was extensive. It is said that he was
a student of law at Oxford, where he is further alleged to have
taken the degree of Doctor of Civil and Canon Law '^ ; but
proof of this is lacking, although his familiarity with the
Roman law would seem to supply it. In writing his treatise
Bracton followed as a model the plan of the Institutes of
Justinian.'* He shows familiarity also with other parts of the
Corpus Juris.'' Moreover he freely uses a secondary source
of Roman law — the Summary (Summa) of the Italian Azo,'*
for Bracton was trained in the school of the Glossators.
Bracton attempted, and with success, to build up the English <
law of this time from Roman materials." Feudalism, which
had been introduced into England by William the Conqueror,
had no law of personal property: Bracton sought to supply,
the defect, and extracted from the Institutes of Justinian
almost bodily all its law of personal property.
Bracton's treatise was long accepted as the standard ex-
position of English law. Even nearly 400 years later Sir
Edward Coke,^" that bigoted 17th century Common Law par-
tisan, made a remarkable use of Bracton's work as an authority
for existing law in his own treatise ^"^ on the Common Law.
Bracton's. treatise not only "testifies to the influence of
Roman law and of its medieval exponents, but at the same
" See supra § 372.
''^ Spence, Equitable jurisdiction, etc., vol. i, 119 (a)
'* See supra § 137.
" See supra § 135.
'* See supra §213 See Bracton and Azo, Selden Society Publications,
1895; Chipman, F. E., The beacon lights of the law, 21 Green Bag, p. 329.
" In the 13th century the Roman law exerted a similar influence upon
both English and French customary law, so much so that Bracton and
the French Beaumanoir would have enjoyed reading each other's books:
see Holdsworth, Reception of Roman law in the 16th century, 28 Law Quart.
Rev., p. 39.
«°See infra §389.
'■^Institutes (1628).
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358 THE MODERN REALM OF ROMAN LAW
time remains a statement of genuine English law ... so
detailed and accurate that there is nothing to match it in the
whole legal literature of the Middle Ages."*^
§37.5 13th century legal literature of Edward I's reign: Thornton,
Fleta, Britton, the Mirror of Justices. During the reign of
Edward I appeared three important treatises on English law,
all of which abridge or follow Bracton's famous work.*'
Chief Justice Thornton ^ was the author of an abridgment
of Bracton entitled a Summary {Summa) — a technical
term peculiar to the Italian Glossators.** Fleta, an unknown
jurist, perhaps a judge confined during Edward's reign in the
famous Fleet prison at London while writing his book, com-
posed a treatise in Norman-French, which repeats much of
Bracton.*^ It is entitled A commentary of the law of England.^''
About the year 1290 appeared Britton's work in Norman-
French, which abbreviates Bracton.** Its title of Summary
{Summa) again reflects the influence in England of the
Italian Glossators.*' The last of the legal treatises of the age
beginning with Glanville'" and ending with the reign of Ed-
ward I is a book on procedure entitled the Mirror of Justices, ^^
82 Vinogradoff, The Athenaeum, July 19, 1884.
S3 Supra §374.
^ Gilbert Thornton, Chief J ustice of the court of King's Bench. See
Pollock and Maitland, History^, vol. i, p. 210.
** See supra § 210.
86 Fleta'sworkwas writtenabout 1290, — Pollock and Maitland, Id. It
was first printed by the talented jurist Selden (infra § 391) in 1647, together
with a Dissertatio ad Fletam, 2d edition, 1685. See also supra § 374.
*'The term "commentary" is peculiar to the Roman jurists, and is
a contribution of the Bologna revival.
'8 See § 374. Perhaps Britton was John Le Breton, Bishop of Here-
ford (disputed). But Selden (infra § 391) holds that the title of Britton's
book was really derived from Bracton, and that the book was an abridg-
ment (together with some subsequent statutes) promulgated by royal
authority. Britton has been translated into English by Nichols, 2 vols.
Oxford, 1875. See also Pollock and Maitland, History', vol. i, p. 210;
' Carson, A plea for the study of Britton, 23 Yale Law Journal, p. 664.
8' See supra § 210.
»» Supra § 372.
''Translated into English by Hughes (last republication, 1840). See
edition of the Mirror in the Selden Society Publications; Maitland, Col-
lected papers, vol. i, p. 336.
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ENGLAND 359
which is attributed to Chief Justice Hengham. It bitterly at-
tacks King Edward's judiciary. Thereafter for a century and
a half until the time of Edward IV English lawyers wrote little
that might be called literature.
English law at the end of the 13th century and during the § 376
reign of Edward I. In the last quarter of the 13th century
began the long reign of Edward I , which lasted for thirty-five
years until the opening years of the following century.'^
This King is sometimes flatteringly but rather erroneously
styled the "English Justinian,"^' — because as many as twenty
statutes enacted during his reign ^* have survived to our own
time and have therefore been confirmed by the verdict of cen-
turies of experience. Under Edward I the jurisdiction of the
superior courts of law was fixed, the course of the Common
Law was known and established, and legal remedies for wrongs
and injuries became fully determined. In other words, the
"very mold and model" of English law were settled in the ''
reign of Edward I.'^
The Common Law was formed not merely by the influence
of legal treatises based on Roman law, such as Bracton's,
but more especially by judicial decisions made with the aid of
principles derived from the same jurisprudence. Much praise
is due to Chief Justice Thornton ^* and other 13th century
royal judges for the part they played in developing English
law with the help of Roman law. ,
Character of the English reception of Roman law. From §377
the coming of Vacarius ^'' to Oxford in the middle of the 12th
century to the end of the reign of Edward I over 150 years
later, the influence of Roman law on the formation of English
law was so great that this whole period should be styled the
"Roman epoch of English legal history." '* During this
"^ Edward I reigned 1272-1307.
'^ For instance. Hale, Hist, of the Common lavfi, p. 271, London, 1794;
Blackstone, Commentaries, Introduction, § 1, p. 23.
"* Blackstone, Id., iv, p. 426.
'^ See Hale, History of the Common laiifi, p. 277.
»« Supra §375.
"Supra §369.
'* Guterbock (Coxe, Eng. transl.), Bracton and his relation to the Roman \
law, p. 16, Phila., 1866; Hunter, Roman law*, p. 109.
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360 THE MODERN REALM OF ROMAN LAW
(§377) period, and even as late as the reign of Edward II in the first
quarter of the 14th century,^' Roman law authorities "were
habitually cited in the Common Law courts, and relied upon
by legal writers, not as illustrative and secondary testimonies
as at present, but as primary and as practically conclusive." ^'"'
For instance, early in the 14th century during the fifth year
of the reign of Edward II according to the law reports, the
Digest ^"^ of Justinian, book 50, title 17, fragment 14, was
directly cited in an English case to prove that where no time
is set for the performance of a promise, it is possible to demand
performance at once."^"^
The opinion that English law has developed wholly freed
from Roman ideas has been refuted by the works of Pro-
fessor Maitland and Sir Frederick Pollock.^"' But the intro-
duction of Roman law into England was quite different from
its adoption on the Continent, especially in Germany.^"* "In
England this reception was more a reception of ideas, in Ger-
many more a reception of a Code. In the former there was a
reception only of doctrines or terminologies, on the Continent
there was a reception of the totality of the Roman law texts." ^"^
The English adoption of Roman law was "not an act of
legislation, but a long process of custom." '■"^ It was found
necessary to supply the defects of the Commonv Law, which,
having expended its best energies in developing the feudal
system, showed no symptoms toward creating an original
commercial and movable property law. Use was therefore
made of the Roman law, a complete system of law at hand
ready for service. But its use and reception were not always
acknowledged by English courts. And subsequently this
habit and practice gradually grew stronger in proportion to
S9 Edward II reigned 1307-27.
^'"' Amos, Roman law, p. 750. See also Selden, Dissert., ch. viii.
"1 See supra § 137.
"2 Amos, Id., pp. 449, 450.
'"'See Maitland's Collected papers (3 vols., 1911); and Pollock and
Maitland's History of English law', (2 vols., 1898).
i«*See supra §§316, 322.
'"* Leonhard, The vocation of America for the science of Roman law, 26
Harvard Law Rev., p. 395.
'"* Hunter, Roman law*, p. 112.
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ENGLAND 361
the rise and increase of English prejudice against whatever (§377)
bore the name "Roman."
Originally this prejudice began in a well-founded English
abhorrence of the absolutism of the Roman public law. But
the repudiation of this "tended to involve the rejection of the
Roman private law," ^"^ — at least openly. English sus-
picion, prejudice, and jealousy of "foreign laws" finally aroused
much hostility to Roman law. Evidence of this English ,-
hostility is seen in the futile 12th century attempt during the
reign of Stephen to proscribe the study of Roman law"^;
and also in the memorable 13th century outbreak of the
barons at the Parliament of Merton in 1236, who so strenuously
objected to any change in the laws of England. ^"^ This hos-
tility was especially aimed at the encroaching pretensions of
the Canon Law — that ecclesiastical offshoot of Roman law"";
soon unfortunately it also became aimed at the Roman in
addition to the Canon Law. Both became suspiciously
regarded, owing doubtless to the arrogance of the clergy, as
but mere instruments to enslave the English people to Popes
and Emperors: hence the efforts made to curtail the author-
itative influence in England of the Roman laws.
This unfortunate English hostility to Roman law died hard.
Almost at the opening of the 19th century Sir William Jones
said in 1786: "Though few English lawyers dare to make such
an acknowledgment, it (the Roman law) is the source of nearly
all our English laws . . . not of feudal origin." To
such a state of ingratitude did insularity and religious
prejudice finally reduce most English lawyers until very
modern times, when at last the debt owed by English law to
Roman law began to be paid.
Consequently in later English legal history even to com-
paratively modern times, progress in English law has fre-
quently been paradoxical; namely to take from Roman law
'^ Hunter, Id.
'"« Supra § 369.
109 "Nolimus mutari leges Angliae": Maitland, Canon Law in England,
p. 63. On the relations of England and the Papacy during the 13th cen-
tury, see Smith, Church and State in the Middle Ages, Oxford, 1913.
"° Supra § 225.
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362 THE MODERN REALM OF ROMAN LAW
new material to be incorporated in English law or to advance
its welfare, and at the same time not to acknowledge the
Roman law source, or sometimes — what is far worse — even
to deny that English law was ever influenced by Roman law.
When judges decided cases on principles taken from the
Roman law, the theory of the Common Law was that t;he
magistrate's decisions came from his inborn wisdom: which
theory was often never upset by appropriate mention of the
Roman law — the only law known as a system of law to the
medieval world — as a source of their information. All this
has made the English reception of Roman law limited in
character as compared with the Continental European recep-
tion.
III. England from the 14th century to
the 17th century triumph of the Court of
Chancery over the Common Law courts:
period of rivalry between Common Law and
Equity, the two great systems of English
law
1378 Decline of the authority of Roman law in the Common
Law courts after Edward L English prejudice against Roman
law as a "foreign" law greatly increased in the 14th century,
owing to the pretensions of Popes and Emperors which were
regarded as inimical to the prosperity of England. And this
was soon felt as a result of the curtailment of ecclesiastical
control over the Common Law courts. After the reign of
Edward I ecclesiastics ceased to be judges, and laymen were
appointed to the bench. Consequently the influence of
Roman law in English Common Law courts declined, because
laymen were not then sufficiently acquainted with it.'^'^'- The
change to lay judges was detrimental to the development
of the English customary law. Common Law courts finally
became so narrow, rigid, and ignorant that suitors were driven
"1 Most of the medieval libraries in England belonged to ecclesiastical
or quasi-ecclesiastical bodies; see Savage, Old English libraries, London,
1911.
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ENGLAND 363
to appeal elsewhere to obtain justice. But Roman law,
although then frowned upon and barred as such as closely as
possible by the Common Law courts, was about to enter Eng-
land more abundantly — ■ this time in a disguise — through
the medium of a new court of justice.
Rise of the Court of Chancery late in the 14th century and § 379
the development of Equity in imitation of the Roman equity
(aequitas). The 14th century conditions of intolerance and
lack of growth in English private law were gradually remedied
by the royal Chancellor, "the Keeper of the King's Con-
science." And the Chancellor never failed to find a remedy in
,the ready storehouse of the Roman law. To the legal principles
administered in his "Court of Conscience," which whenever
possible he adapted from Roman jurisprudence, the Chancellor
gave the collective name of " Equity " — a term very familiar
to any medieval Civilian from his acquaintance with the prae-
torian Equity of Roman law.'^^ That the English Chancellors
had Roman law knowledge is evident from the following fact :
after the Norman conquest down to the reign of Henry VIII,
or for nearly 500 years, the Chancellor was always a high digni-
tary of the Church, — -the celebrated Cardinal Wolsey being
the last of this long line of ecclesiastics. The growth of the
Chancellor's jurisdiction in Equity was bitterly antagonized
both by the courts of Common Law and the English parlia-
ments. It was really a contest between feudal customary law
of Germanic origin and the Roman law — the latter however
disguised under the name of Equity.
Under Edward I and earlier Kings the Chancellors had
devised new writs to give remedy in cases where none was
before administered. In the reign of Edward III uses of land
were introduced, which though invalid at Common Law were
considered as binding in conscience by the clergy. This led to
the rise, late in the 14th century, of the separate jurisdiction
of the Court of Chancery. ^^^ In the reign of the next King,
Richard 11,'^" was devised the writ of subpoena as to uses
returnable to the Court of Chancery only. Toward the end of
"^ See supra § 65.
"' Blackstone, Commentaries, vol. iii, pp. 51-3.
1" He reigned 1377-99.
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364 THE MODERN REALM OF ROMAN LAW
tjie following century — the 15th — process by bill and sub-
poena had been extended to all matters in Chancery.
1380 Other 14th century English tribunals adopting Roman law
principles: the Ecclesiastical Courts, Court of Admiralty,
the military court of the Constable and Earl Marshal, the
privileged University Courts. The hostility of the English
Common Law courts to Roman law, which characterized them
for the next two centuries after Edward I and indirectly led
to the establishment of a Court of Chancery assimilative of
Roman law,''* must not be suffered to obscure the fact that
Roman law ideas and principles were already in vogue or were
in process of being introduced into other 14th century English
tribunals, some of which were quite important.
The numerous Ecclesiastical Courts (diocesan, metropolitan,
legatine) acquiring after the Norman conquest, in addition to
their extensive spiritual jurisdiction, exclusive civil jurisdic-
tion of marriage and testate and intestate succession to
personal property,"^ administered the Canon Law — which as
to things secular is largely Roman law at secondhand.'"
The English Ecclesiastical Courts, always important tribunals,
suffered little loss in jurisdiction from the Reformation and
retained much of their civil authority until late in the 19th
century."*
The Court of Admiralty, established in the 14th century
during the reign of Edward III,'i' owing to its necessary rela-
"5 See supra §§378, 379.
"^ Also the administration of pious gifts and revenues until the rise of the
Court of Chancery and the development of the doctrine of "uses" (supra
§ 379) . All questions of the law of legitimation (except cases involving the
rule that subsequent marriage legitimatized bastards, which the Common
Law courts in the 13th century subtracted from the jurisdiction of the courts
Christian) were tried by the ecclesiastical courts.
"' See supra §§ 225 et seq. Appeals to Rome lay from both interlocu-
tory or final judgments, or cases could be taken to Rome for trial in the
first instance. English appeals to the Pope prior to the Reformation were
very common. See Maitland, Canon Law in England, London, 1898.
"'See infra §384; §401, note.
"' In the year 1360 (See Marsden, Select pleas in the Court of Admiralty,
Selden Society Publications). The origin of the Court is put still earlier by
some — in the reign of Edward I (1272-1307); certainly the powers of the
admiral are earlier than the time of Edward IIL
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ENGLAND 365
tions with foreign countries gradually adopted procedure and
rules based on the Roman civil law. Outside of the Roman
law, the Court of Admiralty ^^° came to observe the partially
Romanized rules of Ol^ron.'^^' The Court of Admiralty re-
tained its importance, name, jurisdiction, and Roman law
tendencies until very modern times, when in the 19th century
it became a part of the consolidated English High Court of
Judicature. '^^^
The military court in which the Constable and Earl Marshal
of England were judges,''^ established by Edward III during
the 14th century, applied the Roman law whenever possible. ^^
Sometimes the judicial authority of this court was delegated to
some Doctor of Civil Law or expert jurist: the learned Arthur
Duck was thus honored in the 17th century during the reign
of Charles I.'^* This court ceased during the following century,
in 1737.
The students of Oxford and Cambridge, owing to the priv-
ileges granted to these universities by the Kings of England,
could not be tried before the ordinary courts of the realm in
civil suits and for minor crimes. The chancellors of these
universities or their delegates had exclusive jurisdiction over
students, and in their courts they judged according to the
Roman law and the usages of the university. ^^^
English made the language of the Common Law courts in the § 381
14th century by Edward III. Since the Norman conquest and
prior to the reign of Edward III the language employed in
""> The courts of the early separate admirals of the north, south, and
west of England were, in the 15th century, absorbed by one high court.
Thomas Beaufort, afterwards Duke of Exeter, Admiral of England 1412-
1426, had a regularly organized court with a marshal, officers, and forms of
legal process.
'^' See supra §370; Nys, Droit romain, etc., p. 65. The Admiral's
jurisdiction, originally penal as to piracy and other crimes on the seas and
prize matters, came to be also of a civil nature.
122 Infra §401.
'23 Sometimes called the Court of Chivalry.
■^^* Nys, Droit romain, p. &i; Amos, Roman law, p. 4:55. Its jurisdiction
was partly criminal, partly civil: see Blackstone, Commentaries, vol. iii,
p. 68.
125 Nys, Id., p. 65.
126 Nys, Id., p. 66.
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366 THE MODERN REALM OF ROMAN LAW
English courts had been the law Norman-French.^^' But
Edward made the vernacular English the judicial language
for viva voce proceedings in Common Law courts, the old French
dialect having become "much unknown in the realm. "^^'
Nevertheless the ancient language lingered until considerably
later for reporting court proceedings and in writing treatises,
its use in the reports not being definitely prohibited until the
middle of the 17th century.'^'
§ 382 Rivalry between the courts of Common Law and the Court
of Chancery began in the 15th century. A contest for suprem-
acy between Common Law and Equity commenced in the
15th century. And this rivalry led to many bitter struggles for
over 200 years. ^"' At first the Common Law courts were vic-
torious : about the middle of the 15th century during the reign of
Henry VI ^'^ they obtained a limited outward superiority over
the Court of Chancery. ^'^ But this only intensified the con-
test. The shameful, tedious, and ruinous War of the Roses
between the branches of the English royal family merely
suspended the contest between the two systems of English
law. With the accession in 1485 of Henry Tudor (Henry VH),
the old struggle between the Common Law courts and the
Chancery Court was again resumed, and it continued the whole
of the following century.
The rivalry between Common Law and Equity became dis-
cernible in the teaching of the two branches of English law:
the universities ^'^ taught the Civil (Roman) Law; the inns of
court at London the Common Law ; neither originally recog-
nized the other branch. ''* Practitioners in the courts at
Westminster who had mastered Roman law at the universities
1" Supra § 368. Edward III reigned 1327-77.
"8 Statute 36 Edward III.
12' By a statute of the Commonwealth in 1650. English was made in 1731
the language of all courts in England: see 4 Geo. II, c. 26, s. 1; Jenks,
History of English law, p. 348, Boston, 1912.
"» See infra § 387.
"1 He reigned 1422-61.
1'^ Amos, Roman law, p. 450.
"' See supra § 369.
'" Not until the 18th century was the Common Law taught at Oxford, —
being introduced there by the famous Blackstone (infra § 395) .
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ENGLAND 367
"were obliged ... to disguise or disclaim any appeal
to its authority."!'^ And when the Protestant Reformation
severed in the 16th. century all connection between England
and Rome, the study of the Canon Law^'* "virtually expired"
in England.i'^ Moreover the study of the Civil Law, notwith-
standing the revival of Roman law in England during the same
century of the Reformation,!*^ gradually declined for the next
250 years until Roman law study was again revived in the
middle of the 19th century. ^'^
The 15th century Littleton, the first true expositor of the §383
Common Law. In the year 1470 — two centuries after Brac-
ton"* — appeared the work of the first true commentator on
the Common Law — Thomas de Littleton, "^ a judge for fifteen
years of the Court of Common Pleas in the reign of Edward
IV. "^ Littleton's famous work is a treatise on Tenures, and
is the first digest and classification of the English law of pro-
perty. It was written in the old law- French language."*
Unlike his predecessors, Littleton borrowed nothing from
the Roman law or the medieval Romanists,"* nor could he —
for the Roman law was allodial and never feudal. On Little-
ton's work, which is quite exhaustive, Coke and Blackstone"^
based their works. Here is a remarkable fact about Littleton :
in his treatise he does not mention equitable estates, although
these then existed; but in his will, still extant, he expressly
created an equitable estate."^ Was Littleton such an intol-
"* See Bryce, Stvdies, etc., p. 861.
"6 See supra § 226.
13'Bryce, /d., p. 862.
"s See infra § 384.
"' See infra § 411. This third English revival of Roman law commenced
c. 1852; Bryce, Studies, p. 890.
"» See supra § 374.
'"Sir Thomas de Littleton, born c. 1407, died 1481, and is buried in
Worcester Cathedral.
"2 Reigned 1461-83.
"' See supra § 379. Littleton's Treatise on Tenures has been translated
into English by many editors (that of Wambaugh, Washington, 1903, is
the latest).
1" See supra § § 372, 374, 375. '« See infra § 1 389, 395.
"* Morris, History of law, p. 270: "equitable estates were derived from
the Roman law."
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368 THE MODERN REALM OF ROMAN LAW
erant feudalist as not to admit the superiority of Roman law
in his work, although perfectly willing to take advantage of
that law when he died?
§384 The i6th century revival of Roman law study in England.
Rise of the Doctors' Commons. English law, as well as the
legal systems of Continental Europe, was greatly influenced by
the Renaissance and its finest juridical product, the 16th
century Humanist school of jurists."' Alciat, Bud6, and
Zasius, the chief representatives of this school, emphasized the
necessity of studying the Roman law sources from the histori-
cal and philological points of view."' That the methods of the
Humanists penetrated England there is no doubt. In 1523
Cardinal Wolsey was instrumental in securing the jurist
Vivte, who had taught at Louvain, to come to Oxford to teach
Roman law."' A second revival of Roman law in England
ensued, which movement was fathered and favored by Henry
VIII. 150
There were two reasons for the royal patronage of Roman
law study: (1) the great practical utility of having men well-
acquainted with Roman law in order to intelligently handle
Continental foreign affairs ^^'; and (2) the excellent support
which could be found in Roman public law for principles of
absolutism. Moreover a project of substituting Roman law
for English law actually occurred to Reginald Pole, later a
cardinal; and this was reported to his cousin, Henry VIII,
who, had he not obtained otherwise what he wanted, might
1" See supra § 241.
"« See supra §§241, 242, 324.
149 Nys, Le droit romain, etc., p. 53, Brussels, 1910.
IS" Reigned 1509-1^47.
^^ Especially the making of treaties. The necessity of having well-
informed Civilians was always experienced in Henry's reign: for instance,
in his divorce proceedings, Henry sent in 1530 Edward Came, an Oxford
doctor of law, to show to the pontifical tribunals that the King should not
appear in person or by representative. Even in the reign of Edward VI
the same pressing necessity of state appears in a letter of June 10, 1549, from
the Lord Protector, the Duke of Somerset, to Ridley, Bishop of London:
"You do not know how necessary the study of the Civil Law is for the con-
clusion of treaties with foreign princes, and how few men there are in his
Majesty's service who are versed in this knowledge." See Nys, Droit
romain, pp. 51, 55.
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ENGLAND 369
have enacted a reception of Roman law of a nature like that (§384
of the same century in Germany which swept like a flood over
that country. '^^
The long-continued Roman law teaching at the univer-
sities "' was greatly stimulated during Henry's reign. '^* His
breach with Rome was followed in 1535 by the suppression
of Canon Law study at the universities. "^^^ Five years later
Henry inaugurated his new policy of favoring the academical
study of Roman law by founding at Cambridge a Royal
(Regius) professorship in the Civil Law.^^* Six years later,
in 1546, Henry established another Regius professor of Civil
Law — - this time at Oxford.'^' Each Regius professorship
was endowed by the King.^^^ Both of these professorships
152 Nys, Id. p. 50; supra §322.
153 See supra § 369.
15* During the first forty years of the 16th century, Oxford alone gradu-
ated 270 bachelors and 35 doctors of law: Nys, Droit romain, p. 65.
155 He forbade the conferring thereafter the degree of doctor in this
subject. The degree of D. C. L. was substituted for the ancient degree of
Doctor Juris Utriusque. Although Mary revived the study of Canon Law,
it was again suppressed by Elizabeth.
15S Its first holder was Thomas Smith, later Secretary of State under
Elizabeth. To prepare himself, he studied and obtained in 1541 the degree
of doctor juris at the Italian university of Padua, then a famous seat of
Roman law where twenty professors taught it. In his inaugural lecture,
Smith eulogized Alciat and Zasius, the great Humanist leaders. See
Nys, Droit romain, pp. 54-5.
15' The first Regius professor at Oxford was John Story, who obtained
the chair in 1546. The most famous Regius professor during the reign of
Elizabeth and the early years of James I's reign was the renowned Gentili
(supra § 273, infra § 386), appointed in 1587. In the middle of this same
century was formed an association of law doctors who had obtained their
degrees on the Continent or at Cambridge. This association continued for
many years. Among its members were Jean Louis Vives (supra this § 384) ;
Valentine Dale who had studied at a French university, probably Orleans;
Pierre Pithou (supra § 241), a pupil of the great Cujas (supra § 245),
and who lived at Oxford for several months after escaping the St. Barthol-
emew massacre; Jean Hotman (son of the famous Frangois Hotman,
supra §241, whom Elizabeth unsuccessfully invited to teach at Oxford).
All three were Humanists. See Nys, Droit romain, pp. 54-7, 60.
- 15* And also the other Regius professorships of divinity, medicine,
Hebrew, and Greek. The Regius Civil Law chairs were minutely regulated
by Elizabeth. See Nys, Droit romain, p. 54.
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370 THE MODERN REALM OF ROMAN LAW
(§ 384) are still in existence. i'^' Moreover, Henry favored the Civilians
in other directions. He instituted new tribunals, and ap-
pointed preferably as judges men who had studied Roman
law.^^" He made Civilians sit as judges in ecclesiastical
courts,"^ after his break with Rome. The activity of Henry's
new courts coupled with the diminishing business of the
Common Law courts menaced the domination of the Common
Law."^
The 16th century revival of Roman law in England did
not exert merely a temporary influence. ^^' Although not
so vitally constructive in its effects on English law as the
Bologna revival introduced by Vacarius,'^* the second English
revival of Roman law had the reflex effect of contributing
heavily to make Equity jurisprudence more scientific, system-
atic, and progressive — thus indirectly aiding the Court
of Chancery to win in the next century its long struggle for
supremacy against the Common Law courts."^
1*' Among distinguished holders of the Regius professorship of Civil
Law at Oxford were the 17th century Richard Zouche (supra § 274, infra
§ 391), and the 19th century James Bryce, later British Ambassador to the
United States, now Lord Bryce (infra § 411). The famous Sir Henry Maine
(infra §411), of the same century, was at one time Regius professor of
Civil Law at Cambridge.
160 jvjyg^ Jrf., p. 51; Holdsworth, Reception of Roman law in the 16th
century, 28 Law Quart. Rev., pp. 143 et seq.
"1 See supra § 380.
1^2 Holdsworth, Reception of Roman law in the 16th century, 28 Law
Quart. Rev., pp. 131-40. Still another factor making the Henrician period
critical for the supremacy of the Common Law was the cessation of the
Year Books in 1535. These medieval English reports begin with the reign
of Edward I (1272-1307) : see Holdsworth, History of English law, vol. ii,
pp. 444 et seq. ; Maitland, Collected papers, vol. i, pp. 335, 342 ; vol. ii, p. 13.
Not until late in the second half of the century did the now familiar "Re-
ports" begin (the reports of the 16th century are: Plowden 1571, 1578;
Brook, New Cases 1571; Dyer 1585).
"2 For instance, early in the 17th century John Cowell, a Cambridge
Doctor of Civil Law, wrote a book on English law arranged according to the
plan of Justinian's Institutes {Institutiones juris anglicani ad methodum
Inslitutionum Justiniani, etc.). See Nys, Droit romain, p. 63.
i^See supra §§369, 377.
i« See supra § 382 and infra § 387.
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ENGLAND 371
Moreover, the 16th century revival of Roman law in Eng-
land very thoroughly fortified the field of law already in pos-
session of the Courts influenced by Roman law.'^* In the year
1511 the law doctors in London, who formed a part of the
Ecclesiastical Courts or the Court of Admiralty or who prac-
tised before these tribunals, organized themselves into a
society '^' — subsequently well known as Doctors' Commons.
A half century later, in 1567, a site ^^^ was purchased near
St. Paul's on which were erected residences for the judges and
advocates and buildings for the Ecclesiastical and Admiralty
Courts. This society ^'^ of strictly Civilians and Canonists
endured for nearly 350 years until its 19th century dissolution
in 1858,^'" after the suppression of the Ecclesiastical Courts
and after the extension of the privilege of practising before
the courts which sat at Doctors' Commons was granted to the
whole English Bar.
Notable legislation of the reigns of Henry VIII and Eliza- §385
beth. The period of the Tudor sovereigns constitutes the
most absolute monarchy ever seen in England. And yet some
of the legal enactments of Henry VIII have been perpetuated
to the present time: by his Statute of Wills in 1540, real
estate for the first time was made freely devisable by will —
an introduction into English law of a distinct principle of
Roman law. Henry's famous Statute of Uses of 1535 con-
verted equitable estates into legal holdings, and removed some
more fetters from real estate. Elizabeth is best remembered
by her celebrated Statutes of Fraudulent Conveyances. But
"« Supra §380.
167 Nys, Droit romain, p. 114.
1^* In Knightrider Street.
i"' In 1768 the society received a royal charter and was incorporated
as the "College of the Doctors of Law exercent in the Ecclesiastical and
Admiralty Courts." Another private society in which opportunities for
studying and teaching the Roman law existed during the entire 16th cen-
tury was Gresham College in the City of London, founded 1597 and not
dissolved until 1767: Nys, Droit romain, p. 70.
"" The college of doctors had some very distinguished members, among
them Sir William Scott (later Lord Stowell, infra §399), Robert Joseph
Phillimore, and Travers-Twiss. Its list of members dated from 1611: for
the list see Nys, Droit romain, pp. 140-55.
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372 THE MODERN REALM OF ROMAN LAW
during the whole of the 16th century the general tendency of
the ancient unwritten Common Law, now very largely entirely
detached from Roman law influences, was to become stationary
and rigid. ^'^
§386 Gentili, the greatest English jurist of the i6th century.
The naturalized Englishman of Italian birth and legal educa-
tion, Gentili, who taught at Oxford for many years as Regius
professor of the Civil Law, had a very thorough mastery of
Roman law and was a renowned Civilian as well as one of the
fathers of modern international law.^'^ Gentili was a Bar-
tolist, and defended both Accursius and Bartolus against
Alciat's criticisms of these Italian jurists.^'' Gentili also
vigorously opposed the teachings of the great Cujas."^^^ Gen-
tili was a partisan of absolutism, and in one of his works he
declared in favor of the royal prerogative claims. ^'^
1\\ England from the 17th century tri-
umph of Equity over Common Law ^'^^ to the
19th century consoHdation of the Court of
Chancery and the Common Law courts by
the Judicature Act of 1873 : period of gradual
amelioration of the ancient .Common Law'"
by statutory enactments arid judicial reform
§ 387 The centuries-old contest for supremacy between Common
Law an4 Equity settled in the 17th century by James I in
"1 See supra § 379.
"2 See supra §§ 273, 384 note.
"3 See supra §§ 216, 219, 213, 242.
"'' See supra § 245; Nys, Droit romain, p. 61.
"' Nys, Id.
"" "Common Law" here means the law resting on custom or statute
which was appHed by tribunals other than the Court of Chancery (e.g.
that part of English law administered in the courts of King's Bench,
Common Pleas, Exchequer). This is the special meaning of the phrase
"Common Law."
'" "Common Law" here means the non-statutory law which is to be
found in immemorial customs or judgments of courts, — the ancient
unwritten English law. This is the ordinary general meaning of the term
"Common Law."
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ENGLAND 373
favor of Equity. Early in the 17th century the long rivalry § 387
between the Court of Chancery and the Common Law courts^'*
came to a head. The Chancellor had issued an injunction to
prevent the enforcement of a civil judgment of a Common Law
court, ■ — an ordinary and proper proceeding to-day. Lord
Coke^'' was then Chief Justice of England, and very furiously
disputed this right of Lord Chancellor Ellesmere. The
dispute became so warm that an appeal was had to the King
in person. At this juncture Lord Bacon i'" — that wonderfully
learned and great English philosopher, statesman, jurist, and
thorough student of Roman law — entered the lists in behalf
of the jurisdiction of Chancery. The result was a triumph for
Lord Bacon over the still more furious Lord Coke. The King,
James I, a Scotchman with a natural and rational predilection
in favor of the Roman law,'^' decided in the year 1616 in favor
of the Court of Chancery. ^^^ The Stuart dynasty, if not de-
serving to be remembered for anything else, should be remem-
bered for what James I did to assist the progress of English
law.
Thereafter Equity as administered in the Court of Chancery
could and did give relief after or against a judgment at law.
Equity, a system of fragmentary and often disconnected por-
tions of Roman law, became recognized as the supreme
branch of English law. Its growth continued as if by a renewed
impulse : many of the latest Chancery judges, says Sir Henry
Maine, have left unrecorded dicta containing "entire texts
from the Corpus Juris imbedded with their terms unaltered,
though their origin is never acknowledged." ^^^ This is not
strange, for the Court of Chancery was largely Roman to the
"8 See supra § 382.
"" See infra § 389.
i*» See infra § 390.
^ See supra § 359. In an address to the English Parliament in 1609,
James said that he thought much of the Roman law because it is more
useful in general and necessary in making treaties with foreign nations
and that to cause it to disappear would be to favor barbarism in his King-
dom: Nys, Droit remain, p. 80.
'*2 Blackstone, Commentaries, vol. iii, p. 54; Morris, History of law,
p. 285; Jenks, Hist. ofEng. law, p. 166, Boston, 1912.
'^'^ Ancient law, 3d. Am. ed., ch. iii, p. 43.
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374 THE MODERN REALM OF ROMAN LAW
backbone — as Spence, the most famous historian of that court,
so clearly reveals in detail. '** But while the progress of Equity
increased, the general tendency of the Common Law towards
rigidity and cessation of growth ^^^ also increased — so much
so that early in the 18th century the Common Law seemed in
great danger of being destroyed by its own narrowness and
rigidity;
§ 388 Statutory improvements of the ancient Common Law during
the 17th century. A large amount of legislation affecting
English private law was enacted during the 17th century.
The beneficent and safeguarding principles of Habeas Corpus
were made an indisputable part of the law of England by
statutes'*^ of Charles I and Charles IL Feudal tenures with
all their oppressiveness were abolished '^^ under Charles H.
In the reign of the same King were enacted the famous Statute
of Frauds ^^^ and the Statutes of Distribution. 1*^ By these and
other Acts of Parliament the Common Law made great strides
of progress during the 17th century.
§389 Lord Coke, the eminent 17th century expositor of the
Common Law. About a century and a quarter after Little-
ton,^'" flourished Sir Edward Coke,^'^ who was an eminent
lawyer during the reigns of Elizabeth, James I, and Charles L
For a few years under James I he was Chief Justice. In 1628
Coke published in English his Institutes (the title is a Roman
'*' See Eq. jurisdiction of Court of Chancery, vol. i (1826).
185 Supra §§385,379.
186 16 Car. I (1640) c. 10, and 31 Car. II (1679) c. 2.
1" 12 Car. II (1660) c. 24.
188 29 Car. II (1677) c. 3, still found to a large extent in most of the
United States.
18' 22 and 23 Car. II (1670) c. 10; 1 Jac. II (1685) c. 17.
i»» Supra § 383.
I'l Born 1522, died at Stoke Pages 1634. He was graduated from
Trinity College, Cambridge, and was a member of Lincoln's Inn. His
erudition and forensic skill made him the greatest practitioner of his day
In 1594 he became Attorney-General, defeating Lord Bacon (infra §390).
His brutality and violence, displayed in the trial of Raleigh, are still notor-
ious. In 1613 he was appointed Chief Justice, which office he held for three
years. Later he became a member of Parliament for several years, includ-
ing the first and second Parliaments of Charles I.
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ENGLAND 375
one^^^), the first part of which on the law of property is also
known as Coke on Littleton. Although Coke treated the Roman
law with contempt and only in a few cases did he compare
it with the Common Law,''' yet he did make much use of
Bracton's famous Roman-English treatise,"* then nearly 400
years old. Coke's Institutes became the greatest and most
learned exposition of the Common Law until superseded about
a century and a half later by Blackstone's more polished
work.i'^
Famous 17th centtxry English jurists acquainted with §390
Roman law: (i) Lord Bacon. The 17th century did not pass
without producing English jurists of note, who had been
affected by the revival of Roman law in England during the
previous century. ^'^ The greatest English jurist of the 17th
century is Lord Bacon,''' whose pre-eminence as the greatest
English philosopher has obscured his merits as a jurist. He
attached great value to the Law of Nature, — that liberalizing
doctrine of Roman jurisprudence which had been revived in
late medieval and early modern times. ''^ "Our law is grounded
upon the Law of Nature,'" he states in his argument of the
Post- Nati case."'
Bacon contributed heavily to the progress of English law
and to the supremacy of Equity over Common Law.^"" While
"2 See supra § 138.
^''A striking instance is Co. Littleton, 137 b: "Herein the Common
Law dififereth from the Civil Law, for libertinum ingratum leges civiles, etc."
"■' De legibus, etc. Anglian, supra § 374.
"5 Infra § 395.
"« Supra §384.
1°' Francis Bacon, born at London, 1561, died there 1626. He was
educated at Trinity College, Cambridge, and in 1576 became a member
of Gray's Inn of which he later was made Dean. He loved the Inn, and
never abandoned his chambers there. In 1584 he entered Parliament.
By 1594 he had made for himself a great reputation as an advocate. In
1603 James I knighted him on his coronation day. Four years later he
became Solicitor-General. In 1617 he was made Lord Chancellor. Soon
he was raised to the peerage as Baron Verulam, and in 1621 he was elevated
again as Viscount St. Albans. See Great jurists of the world (vol. ii, Cant.
Leg. Hist. Series, Boston, 1914), pp. 144^68.
i»8 See supra §§ 64, 218, 252.
i'-"" Also called Calvin's Case.
2»» Supra §387.
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376 THE MODERN REALM OF ROMAN LAW
Lord Chancellor, "his hundred Rules of Court finally fixed
practice in Chancery, and made the Court of Chancery a
definite court of justice under ordered governance, and not a
mere court of conscience dealing out an erratic measure of
Equity in graciously disordered fashion. ... It is
probable that he codified the existing practice, which had
been reduced to order by Lord Ellesmere, and brought into
an organic form by the aid of many additions the scattered
orders that existed before his time. . . . It is no mean
title to juridical fame finally to have settled the procedure
in Equity." ^oi
Bacon was the first English jurist to advocate the codifica-
tion of English law. In his Maxims of the law he ardently
urged the necessity of codification, and reminded Queen
Elizabeth of Justinian who reduced the Roman laws "from
infinite volumes and much repugnancy into one competent and
uniform corps of law." Bacon's plea for the codification of
English law is the best that has been made before or since
his time. "A general amendment of the state of . . . the
laws ... to reduce them to more brevity and certainty ;
that the great hollowness and unsafety in assurances of lands
and goods may be strengthened; the snaring penalties that
lie upon many subjects removed ; the execution of many profit-
able laws revived; the judge better directed in his sentence;
the counselor better warranted in his counsel; the student
eased in his reading; the contentious suitor that seeketh but
vexation disarmed; and the honest suitor that seeketh but to
obtain his right relieved." ^"^
§391 (2) Arthur Duck, John Selden, Richard Zouche, Lord
Hale, Thomas Hobbes. The brilliant and scholarly Arthur
Duck,^"^ who was educated at Oxford where he received his
law doctorate, was a product of the 16th century English
revival of Roman law^"^; and he has attained lasting memory
by his comprehensive treatise on the use and authority of
''■"^ Great jurists, etc., pp. 167-8.
2°^ See Great jurists, etc., p. 158.
■'"^ Born 1580, died 1649.
'»* Supra §384.
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ENGLAND 377
Roman law in modern States ^"^ — ^the earliest work on the sub- (§391)
ject published in the world.
John Selden ^"^ was an intellectual giant. His achieve-
ments as scholar, antiquarian, historian, lawyer, jurist, and
statesman have been surpassd by few, not even in very modern
times. His life refuted the traditional need of the lawyer
to isolate himself from other than the activities of practice.
As he himself said, "the proverbial assertion that Lady Com-
mon Law must lye alone never wrought with me."^"^ His
famous Dissertatio ad Fletam ^"^ and Mare clausum 2"' exhibit
his knowledge of Roman law and international law.
Richard Zouche ^i" was another English product of the
Renaissance. This versatile and recondite jurist was pro-
foundly versed in Roman law, which he taught at one time
at Oxford.^" Later he was an Admiralty judge. Zouche
is perhaps best remembered for his systematic writings on
international law.^^^ Another English jurist who braved the
bigoted hostility of the Common lawyers of this century
against the Roman law was Lord Hale.^^' In his History of
2* De usu et auctoritaie juris civilis Romanorum in dominiis Christian-
orum, published 1653. The part relating to England is translated by
Beaver, London, 1724.
206 Born 1584, died 1654, and is buried in the Temple Church. He
was educated at Oxford, and was a member of the Inner Temple. He
was a member of some of the Parliaments of the reigns of James I and his
son Charles I, both of whom sent him to the Tower for his opinions.
After the learned Selden was named the Selden Society, celebrated for its
scholarly publications on English law. See Great jurists of the world, etc.,
pp. 185-94; Hazeltine, Selden as a legal historian, 24 Harv. Law Rev., p.
105.
2" See Great jurists, p. 186.
'"> Supra § 375.
2™ Published 1635. Its learning was acknowledged by Grotius (supra
§ 273) . It is based largely on natural law and international law.
2" See supra § 274.
2" He became in 1620 Regius Professor of Civil Law at Oxford, being
the second in succession to the great Gentili (supra §386). Zouche's
celebrated Elementa jurisprudentiae is largely founded on Roman law.
"2 Supra § 274.
218 Sir Matthew Hale, born 1609, died 1676. He was a student for
a while at Oxford. Later, after being led by the eminent Serjeant Glanville
to embrace the legal profession, he became in 1629 a member of Lincoln's
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378 THE MODERN REALM OF ROMAN LAW
the Common Law of England, he acknowledged the debt which
EngHsh law owes to the Roman.
The great philosopher Thomas Hobbes ^^* was also a pro-
found jurist. His scheme of philosophy, while repudiating
scholasticism, emphasized the Law of Nature, the precepts
or rules of which are to be "found out by reason " ^" and may
be described as the "dictate of right reason." ^'^ The sources
of Hobbes' derivation of the familiar Law of Nature^'' are
many. He was well versed in Roman law. His acquain-
tance with the English Common Law was also extensive.^'*
Moreover he was an intimate friend of Lord Bacon and
Selden, both of whom preached the Law of Nature in their
works. ^^' The influence of Hobbes on English general thought
lasted for two centuries — until the advent of Darwin.
!392 English law transplanted in North America during the
17th and i8th centuries. By colonization the English system
of mingled Common Law and Equity spread across the Atlantic
Inn. Possessed of great mental vigor and physical strength, he soon
acquired a large practice at the bar. Remaining neutral during the
Commonwealth, he become a judge of the Court of Common Pleas. At
the Restoration he was made Chief Baron of the Court of Exchequer and
knighted. In 1671 he was promoted to the office of Chief Justice of the
Court of King's Bench.
»*Born 1588, died 1679. He was educated at Oxford, taking his
bachelor's degree in 1607. Later he made several journeys of long dura-
tion to the Continent, where he became acquainted with Galileo, Descartes,
and other prominent thinkers of his age. In 1640 to escape the Common-
wealth he fled to Paris, not returning to England until 1651. Then he
submitted to Cromwell. After the Restoration, Charles II, whose tutor
Hobbes had been at one time during his long exile, treated him with favor.
See Great jurists, pp. 195-219.
"^^ Leviathan, part i, ch. 14.
"■^Liberty, vol. ii, p. 16.
2" Supra §§64, 218, 252.
''■^ Hobbes quotes from Bracton (supra § 374 — • whom he describes as
"the most authentic author of the Common Law"), and from Fleta (supra
§375), and employs easily Coke's Institutes (supra §388). He evidently
studied Plowden's Reports of Cases. He also uses Christopher St. Ger-
fnain's Doctor and student (published 1518), one of the earliest fruits
of the 16th century English reception of Roman law — for it clearly and
succinctly sets forth the Law of Nature.
'"See supra §§389 and this very §391 supra.
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ENGLAND 379
into America. The Common Law of the 17th and the early
18th centuries — so largely Tudor in character — was intro-
duced into the various English colonies, afterwards the United
States. And the peculiarities of Tudor Common Law still
survive in the United States to a larger extent than is com-
monly recognized. "American courts retain much of the
Tudor indefiniteness. . . . They are guided to an extent
unknown now in England by questions of policy and expe-
diency." ^^^ Only a f^w years before the commencement
of the American Revolution of 1775 which resulted in the
separation of the colonies from the mother country, France
had been deprived of her Canadian possessions by England,
and the English Common Law was introduced into British
North America, ^^^ now principally called the Dominion of
Canada. ^^^
Judicial reform of English law, chiefly by Equity, during §393
the i8th century. During the 18th century there was scarcely
any English legislation concerning the private law. Nearly
all of the few statutes that were passed have left no permanent
impressions on English law. But that century was not
stagnant : it witnessed many law reforms by the judicial action
of the courts, especially the Court of Chancery.
During the century following the Restoration of Charles II
a long line of specialist Chancellors and other Chancery
officials ^^' developed many equitable doctrines, which adjusted
the private law of England to the progress of social require-
ments.^^ For instance, the law of mortgages was improved
by establishing the doctrines of tacking and consolidation;
the law of contract was fortified by the new remedy of specific
performance; the law of trusts was further developed so as
to better protect the interests of the trustee and the bene-
ficiary of the trust; the doctrine of the separate estate of a
married woman was elaborated; the acquisition of a large
22» See McUwain, The High Court of Parliament (1911).
221 Except in Quebec, — supra § 262.
222 The British North American colony of Newfoundland is not a part of
the Dominion of Canada.
223 Such as the Masters of the Rolls, who had certain judicial functions.
22^ See Jenks, History of English law, pp. 207-36.
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380 THE MODERN REALM OF ROMAN LAW
share of the administration of the assets of deceased persons —
which new jurisdiction carried over into Chancery from the
ecclesiastical courts much Roman law.^^^ Credit for judicial
reform should not be given to the Court of Chancery exclu-
sively : the labors of Lord Holt and Lord Mansfield in the Com-
mon Law court of King's Bench assisted in no small measure
the progress of English law.^^*
§394 English law in the first half of the i8th century: Lord
Holt and Lord Hardwicke. During the first decade of the
18th century the Chief Justice of the highest Common Law
court ^^' was the able and learned Lord Holt.^^* In the famous
case of Coggs v. Bernard ^^' Lord Holt drew upon his knowledge
of Roman law to amplify and systematize the English law of
bailments first set forth by Bracton^'" five centuries and a
half earlier. Lord Holt laid some of the foundations of the
18th century English mercantile law, and prepared the way
for the great labors of Lord Mansfield which began a half
century later.^''
Lord Hardwicke ^'^ was a most distinguished Lord Chan-
cellor, whose consummate ability as a Chancery judge,
especially his great power of generalization which had been
^^* See Jenks, Id., p. 230. For instance the doctrine of marshaling,
although not limited to the assets of decedents, is an application of the
Roman law subrogation.
226 See infra §§394, 397.
22' King's or Queen's Bench.
228 John Holt, born 1642, died 1710. He was educated at Oriel, Oxford.
He later became a member of Gray's Inn, and was called to the Bar in 1663.
He was "an ardent supporter of civil and religious liberty." Knighted in
1685, he was appointed Chief Justice four years later. He declined the
Lord Chancellorship in 1700. See Alward, Lord Holt, 33 Canadian Law
Times, p. 450.
229 Lord Raymond's Reports, p. 909 (1703).
230 Supra § 374.
231 Infra § 397.
232 Philip Yorke was born 1690 at Dover, and died 1764 at London.
He entered the Middle Temple in 1708. His rise at the Bar was extremely
rapid. In 1724 he became Attorney-General. Nine years later he was made
Chief Justice of King's Bench with the title of Lord Hardwicke. After
serving tour years, in 1737 he became Lord Chancellor, which great office
he held for nearly twenty years.
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ENGLAND 381
developed by his studies in Roman law, contributed heavily
to the progress of Equity jurisprudence — for over a century
the paramount system of English law.^^'
Blackstone, the renowned i8th century expositor of the §395
Common Law. Sir William Blackstone ^'* published in 1765
his masterly Commentaries on the laws of England, the last
systematic exposition of the English Common Law.^^^ He
seems to have been somewhat influenced, in arranging the
plan of his treatise, by the form of Justinian's Institutes. ^'^
Moreover Blackstone makes frequent citations from the
Dutch and German publicists, such as Grotius and Pufen-
dorf,^^^ whose works either entirely composed of or colored
by Roman law doctrines were then very influential in England,
especially in the Court of Chancery. ^^^ Blackstone deserves
the highest praise for openly including among "the originals
of our law . . . the rules of the Roman law either left
here in the days of Papinian or imported by Vacarius and his
followers." ^^' Blackstone constantly uses the Roman law
as a standard of comparison with English law. And he fre-
quently assigns to the Civil Law the origin of an English rule.^*°
Present authority of Blackstone's Commentaries in the §396
United States. In England as well as in the United States
Blackstone's work is now far from being fully authoritative,
owing to the fact that the old Common Law was practically
233 See supra § 387.
"^^ Born at London 1723, died 1780. He was educated at Pembroke
College, Oxford. In 1741 he entered the Middle Temple. In 1758 he was
elected to the newly founded Vinerian professorship of English law at
Oxford, where his Commentaries were given. Later he was elected to Par-
liament. In 1770 he became a judge of the Court of Common Pleas.
235 The Common Law was completely revolutionized in the 19th cen-
tury. Hence the Commentaries of Stephen (England) and Kent (United
States), although reflective of the influence of Blackstone's monumental
work, do not belong to the era of the Common Law when statutory changes
were rare.
236 Supra § 138.
'" Supra §§ 266, 273, 274, 329.
238 See for instance Commentaries, vol. i, pp. 61, 259, 447.
239 Blackstone, Commentaries, vol. i, p. 35.
2*° These citations have been collected by Scrutton, in his Roman law
and the law of England, ch. ix.
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382 THE MODERN REALM OF ROMAN LAW
revolutionized by the rapidly progressive civilization of the
19th century, to respond to which the Common Law had to be
supplemented and transformed. In the United States, book I,
the first half of book II, and all of books III and IV of Black-
stone's Commentaries are either discarded or obsolete. The
second half of book II, on the law of personal property, alone
out of Blackstone's work, remains good law to-day; and the
reason for this is that Blackstone repeats Bracton,^^^ who
took bodily from the Justinianean codification the English
law of personal property.
§397 English law in the second half of the i8th century: Lord
Mansfield expanded the Common Law by adopting the princi-
ples of the Law Merchant. The work of bettering the Common
Law, inaugurated by Lord Holt,^^^ was continued with great
success by the famous Lord Mansfield, ^^' who rescued the
Common Law from its long-standing tendency to cease devel-
oping and to become stationary. With the advent, in 1756, of
Lord Mansfield as Chief Justice of the highest Common Law
court, a new era for the betterment of English law began.
During his long tenure of the bench — for thirty- two years —
the ancient Common Law itself became quietly grafted with
a spirit of progress.
To Lord Mansfield more than to any one else belongs the
glory of having incorporated in English jurisprudence the
so-called Law Merchant or mercantile law.-''' With con-
summate skill he introduced into the Common Law a scientific
body of commercial law,^** modeled especially along the lines
of the then new Roman-French maritime and commercial
2^' Supra § 374.
2^2 Supra § 394.
«3 William Murray, born 1705 at Scone, Scotland, died 1793. Educated
at Christ Church, Oxford, he entered Lincoln's Inn. He was very successful
at the Bar. In 1754 he was made Attorney-General, and in 1756 was
appointed Chief Justice of King's Bench, being raised at the same time to
the peerage as Baron Mansfield. Later he persistently declined the Lord
Chancellorship. During the Gordon Riots his London house in Bloomsbury
was wrecked by a mob which disliked a jury charge of his. He retired to
private life in 1788.
''" This work had been inaugurated by Lord Holt, — supra § 394.
^''^ See Luke v.Lyde, 2 Burrows Rep., p. 882 (1760).
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ENGLAND 383
ordinances of Louis XIV and Louis XV.^*' These salutary
innovations rendered the English Common Law adequate to
meet the commercial- development of that country, which
began early in the nineteenth century. No other judge, except
perhaps Lord Bacon, ^^' has done more for English law than
Lord Mansfield.
English law transplanted in India, Australia, New Zealand, § 398
and South Africa during the iSth and igth centuries. A dif-
fusion of English law to Asia began in the latter half of the
18th century. And to-day the law of India as to property and
contractual rights, criminal law, criminal and civil procedure,
and evidence is mainly English.^''*
In the 19th century there was an extension of English law to
Australia, New Zealand, Ceylon, South Africa, and South
American British Guiana. Australia and New Zealand were
virgin territories for English law. But in South Africa,
Ceylon, and Guiana, English law encountered the older estab-
lished Roman-Dutch law,^*^ which still persists in these coun-
tries to a greater or less degree, although now affected by the
influence of English law.
Lord Stowell, the great 19th century Admiralty judge. What § 399
Lord Mansfield did for the Common Law,^*" Lord Stowell ^^'
«« See supra §§251, 370.
^" Supra § 389.
^'* As to the Anglo-Indian codes, see infra § 404. In regard to the law of
Mohammedan India, see supra § 192.
2" Supra §§268-71.
25" Supra §397.
2" William Scott, born 1745 near Newcastle, died 1836. His brother
John was also a distinguished lawyer, who later became Lord Eldon, head
of the Court of Chancery. William Scott was educated at Corpus Christi,
Oxford. He later entered the Middle Temple. But he still continued his
academic career at Oxford, being appointed Camden Professor of Ancient
History in 1774. He took the degree of D.C.L. in 1779, and then entered
Doctors' Commons (supra § 384). His rise at the Ecclesiastical and Admir-
alty Bar was rapid. In 1788 he was made a judge of the Consistory Court,
and was knighted. Ten years later he was appointed judge of the High
Court of Admiralty. At the coronation of George IV in 1821, he was ele-
vated to the peerage as Baron Stowell. He retired the same year as Consis-
tory judge, and six years later as Admiralty judge. See Great jurists of
the world, etc., pp. 5] 7-31.
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384 THE MODERN REALM OF ROMAN LAW
did for Admiralty. ^^^ But Lord Stowell's development and
introduction of the law of prize has benefited the interna-
tional law of the entire world as well as the law of England,
while Lord Mansfield's labors have been valid or beneficial for
English law countries only. Several of Lord Stowell's ecclesi-
astical decisions are still leading cases. All of them display his
remarkable lucidity of expression and his extreme familiarity
with Roman and Canon Law.^^' The acumen and discernment
which Lord Stowell displayed in constructing the laws of
commerce in war were in no small measure developed by his
wide acquaintance with Roman jurisprudence and classical
culture.
§400 Statutory improvements of English law during the first
half of the igth century. The legislative blank of the 18th
century ^^* in English legal history did not extend very far into
the next century. The era of judicial reform by the Courts ^^^
was followed by numerous statutory enactments leading to
further progress of English private law. Some of these,
Hke the Prescription Act of 1832 or the Marriage Acl^ of 1835,
imported or definitely settled certain Roman law principles
in the law of England. The list of statutory improvements of
English law during the first half of the 19th century is a
long one.^^^ But among those deserving a brief notice are the
Uniformity of Process Act of 1832; the Civil Procedure Act
of 1833; the Wills Act of 1837; the Company Acts of 1844-
1845 as to corporations; Lord Campbell's famous Act of 1846;
the Common Law Procedure Acts of 1852, 1854, and 1860;
and the Chancery Amendment Acts of 1852, 1858. This last
statute foreshadowed the "fusion" of the Judicature Acts
passed two decades later .^^'
'^' As to the Romanization of Admiralty, see supra 1 380.
'^^ See for instance Dalrymple v. Dalrymple, 2 Haggard's Reports, p. 54;
Evans V.Evans, 1 Hagg. 35.
2" Supra § 393.
26« See Jenks, History of English law, pp. 270, 288, 300, 307, 354, 361.
2*' See infra § 401.
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ENGLAND 385
V. Modern English law in England, the
British Empire and the United States of
America: period of partial codification of law
Consolidation of all the courts of England into one supreme § 401
court by the Judicature Act of 1873 ; fusion, so far as possible,
of Common Law^'* and Equity. By the Judicature Act of 1873
the historically independent Common Law courts and the
Court of Chancery were fused into one supreme court. ^*'
All the old English courts ^^^ were abolished. At the head of
the new tribunal was placed the Lord Chancellor, the next in
rank to him being the Chief Justice,^" now called the Chief
Justice of England. Provision was made for the establish-
ment of a uniform system of pleading and procedure ^^^ for the
various branches into which the new tribunal should be
divided.^*' It was also provided that wherever the rules of
Common Law and of Chancery should conflict, the rules of the
latter — Equity — should prevail. The victory in England of
Equity over Common Law is now complete.
^^ See supra Period IV of English legal history, note on special meaning
of "Common Law." This Period IV follows immediately after § 386.
259 36 & 37 Victoria, c. 66. See also 38 & 39 Victoria c. 77 and the
numerous subsequent amending acts, including those of 1899, 1902, 1909,
1910.
26" Court of King's Bench, Court of Common Pleas, and the Exchequer,
Court of Chancery, the Court of Probate, and the Court of Divorce and
Matrimonial Causes which had succeeded in 1857 to these portions of the
jurisdiction of the ancient ecclesiastical courts: see 20 & 21 Victoria c. 77,
85.
261 Of King's Bench.
262 "Phis project had been urged successfully about thirty years earlier
in the United States by the American law reformer, David Dudley Field
(infra §§402, 406). The basis of his New York code of civil procedure,
enacted in 1848, is the abolition of the separate procedure of law and equity
and their fusion in a single action.
2*^ The new tribunal was authorized to subdivide itself into various divi-
sions for the transaction of the various classes of business. And it now
consists of the Chancery Division, the King's Bench (Common Law)
Division, and the Probate, Divorce, and Admiralty Division, — the old
familiar names being used to designate the various branches of the tribunal.
There is also a Court of Appeals.
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386 THE MODERN REALM OF ROMAN LAW
}402 How the English law parts of the British Empire and the
United States made legal progress during the 19th century.
The law of these countries as introduced from England has
been improved and refined by reiterating the supremacy of
Equity in the Common Law. This work has been performed
by a host of statutes and judicial decisions, very many of which
contain returns to Roman law doctrines. Lord Mansfield's
commercial law^^* has been largely re-enacted in the British
overseas dominions and the United States. By these expe-
dients the English law States of the new worlds have kept
abreast with modern civilization.
In the United States the movement for the abolition of the
old separate Law and Equity procedure and their fusion in a
single action began earlier than in England, ^^^ being inaugu-
rated by that brilliant law reformer and advocate of codifi-
cation, David Dudley Field. His project was realized in the
New York code of civil procedure of 1848. This, and the code
of the same state on criminal procedure ^'^ also largely due to
Field, have exerted a large influence on the law of other
American states. ^^^
§403 Extent of the Romanization of EngUsh and American law.
English private law, like all other modern legal systems, has
been molded by Roman law. To this extent English juris-
prudence and Continental European jurisprudence with its
allied legal systems coincide in a common origin, although
in the latter the Roman element is more markedly predomi-
nating. English law is indeed Roman-English law, even if
the Roman law coloring is not so clearly discernible or is often
disguised, as compared with the modem law of France, Ger-
many, or Spanish America. The doctrines of the Justinianean
codification form no small part of the jurisprudence of English-
2« Supra § 397.
266 See supra §401, note; infra §404, note.
268 The complete New York code of civil and criminal procedure was
adopted in 1850.
26' The code of civil procedure has been substantially adopted in twenty-
four states, and the criminal in eighteen states. The code of civil pro-
cedure undoubtedly advanced considerably the movement in England
for the reform of procedure (supra § 401).
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ENGLAND AND UNITED STATES 387
speaking peoples inhabiting territories more extensive in area (§403)
than three times the size of all Europe.
The Romanization of Anglo-American law has not been
small: a summary of specific contributions from Roman to
English and American law reveals the great indebtedness
of our law to the law of Rome. Most of the basic principles
of the Anglo-American law of Admiralty, Wills, Successions,
Obligations, Contracts, Easements, Liens, Mortgages, Adverse
Possession, Corporations, Judgments, and Evidence come from
the survival or revival of Roman law in English law. The
fundamental conceptions of Habeas Corpus and Trial by Jury
as well as many principles of the law of Torts are of Roman
origin. That dearly cherished principle and familiar palladium
of English and American liberty, "every man's house is his
castle," is not of Anglo-Saxon, but of Roman, origin. It is first
found in the era of the Roman Republic, when the barbarians
in Britain or Germany had no houses worthy of the name:
Digest 2, 4, 18 expressly prohibits forcing a man from his
house to drag him to court, thus reaffirming Cicero's statement
of the same prohibition. Finally, it is interesting to note that
our Reports of cases resemble somewhat in form the Responsa
prudentium as contained in the Digest. ^'^
But the other two features of the world-mission of Roman
law since Justinian have not yet been realized in English law,
although already realized everywhere else in the civilized
world. English law lacks complete uniformity for the entire
State in all English law countries, and it has not yet been put
into the permanent and salutory form of a codification. For
the want of these two betterments English law remains in
a backward condition of development; and, until these have
been accomplished, it must occupy an inferior place in the
world's jurisprudence — to the great detriment of English
law countries. The reason why Great Britain, those parts
of the British Empire guided by English law, and the United
States still live under an unwritten customary law is due
to the accidents of history, the effects of which are now
2^8 See supra § § 68, 137. There is also some resemblance in form between
English statutes and the Constitutiones of the Roman Emperors (supra
§115).
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388 THE MODERN REALM OF ROMAN LAW
passing away. It is to be hoped that, before the 20th century
has closed, Great Britain and the United States will improve
their law by complete codifications uniform for each coun-
try, — thus making the form of their law similar to that of
all the' rest of the civilized world.
§404 Partial codifications of law in Great Britain and the English
law parts of the British Empire. When Jeremy Bentham^*'
published in 1789 his Principles of morals and legislation,^'"^
which among other things contained his scheme for a Civil
Code, the notion of a "codification " ^^'^ became embodied in
English legal thought to remain until accomplished. Lord
Bacon's ardently cherished purpose ^'^ was at last revived.
Bentham's proposals subsequently received much assistance
of an indirect nature by the labors of John Austin, ^'^^ whose
legal philosophy emphasized the imperative necessity of
formulating accurate classifications and distinctions in Eng-
lish law.^'^ > And the improvement of English law in the latter
half of the 19th century by means of partial codifications is
partly attributable to the influence of Bentham and Austin.
«9 Born 1748, died 1832. For his life, see supra § 274. The history
of English law in the 19th century reveals many results of Bentham's
legal teachings: the fusion of Law and Equity in 1873 (supra § 401) appears
to have had its source in this great man ; English criminal law, and crim-
inal and civil procedure have benefited by his influence. Furthermore all
subsequent attempts to reduce International law to a code may be attri-
buted to his suggestions. The proposal of Bentham, addressed in 1816
to President Madison, to prepare a complete code of law for the United
States, is famous. On his declination, Bentham made the proposal to
several state Governors. But his attempts were a failure: the unwritten
American Common Law was thought to be good enough as it was.
270 In 1789.
2'' Bentham was the first to use this word.
"2 Supra § 390.
2" Born 1790, died 1859. He was at one time a lecturer at University
College. To prepare himself for his work there, he went to Germany
to study how law was taught at the German universities, and resided at
Heidelberg and at Bonn, meeting Savigny, Mittermaier (supra §§346,
351) and other distinguished German jurists as intimate friends.
"■* That brilliant English civilian, Sheldon Amos, reiterated this neces-
sity of accurate classification in hisEnglish code, published in 1873, although
Amos was opposed to codifying English law topic by topic, and advocated
the enactment of a general code.
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ENGLAND AND BRITISH EMPIRE 389
In fact these codifications have been called "Benthamistic" (§404)
because of their piecemeal character — in other words, each
is a particular code of some topic "^ of law.
Sir Frederick Pollock's characterization of English law
as "chaos, tempered by Fisher's Digest," ^''^ is a vivid picture
of the condition of the centuries-old unwritten Common Law
of England in all its pristine glory. The uncodified English
law was embedded in a vast maze of statutes and reports of
decisions of courts. Lack of uniformity, much confusion, and
many irreconcilable contraries characterized English law.
Something had to be done to improve this miserable situation.
And relief was sought by reducing English law topic by topic
to codification, ■ — thus making it at once not only certain
but also responsive to modern needs. The inauguration of the
19th century efforts to codify English law began — curiously
enough — not in England, but in British India.^'^ There
it was first shown to the English-speaking world that English
law or law of English origin is codifiable.
The commencement of the work of codifying Anglo-Indian
law and its first fruits — the Indian Penal Code — are
inseparably connected with that great Englishman illus-
trious not only for his remarkable literary genius but also
as a statesman, Thomas Babington Macaulay, afterwards
famous for his History of England. In 1834 a commission,
of which Macaulay was the most influential member, was
appointed ^^^ to investigate the wisdom of a general codifica-
tion of Indian law. In 1837 the commission reported favor-
ably, and submitted a draft of a code of criminal law for
India. This penal code became the celebrated Indian Penal
"* But the Roman and Modern Codes are general: they cover the whole
field of private law, criminal law, etc.
^''^ Essays, p. 238.
2" The United States may be regarded as a close second, if not first :
while Macaulay's commission reported their draft of a criminal code in
1837, it was not enacted until 1860 (see infra this § 404) ; but the New
York code of civil procedure, largely the work of the famous David Dudley
Field (infra § 406), was enacted in 1848. The New York code, however,
was easier to frame than the Indian Penal Code, for the former is adjudica-
tive law, while the latter is substantive law.
2'8 3 & 4 William IV, u. 85.
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390 THE MODERN REALM OF ROMAN LAW
(§404) Code in 1860,^^' twenty-two years after Macaulay left India
and one year after Lord Macaulay 's death. In their preface
Macaulay and the commissioners acknowledge assistance
for their labors from the French and other codes. ^^^ Macaulay
was far in advance of his age in his desire for legal progress
and in his freedom from insular prejudice, — he was willing
to go to the non-British modem codes for help to frame an
Anglo-Indian code which should be certain and uniform.
The Indian Penal Code ^'^ is the most important and success-
ful of the Indian codified legislation. This code seeks to
define every crime with precision; whereas in English law
there ^are no authoritative definitions of such crimes as murder,
manslaughter, theft, assault, and kindred ofTenses.^*^ That
most learned expositor of the English criminal law and evi-
dence. Sir James Fitzjames Stephen, said of the Indian
Penal Code that "it reproduces in a concise and even beautiful
form the spirit of the law of England in a compass which by
comparison with the original may be regarded as almost
absurdly small. The Indian Penal Code is . . .to the
French Code Penal what a finished picture is to a sketch.
It is simpler and better expressed than Livingston's code
of Louisiana, and its practical success has been complete." ^^^
Following the success of the penal code, various other
Anglo-Indian codes of substantive and adjective law have
since been enacted, so that now the law of British India,
civil as well as criminal, is very largely codified and uniform.
The most important of these later Indian codes are those
which cover the subjects of Successions,^^* Contracts,^^^ Evi-
dence,2*5 Prescription,^^^ Negotiable Instruments,^^'' Transfer
2" Amended in 1861, 1870, 1872, 1873, 1882.
28» Supra §§254,257,264.
2«i In its present form the Indian Penal Code of 1860, without detracting
at all from Macaulay's creative skill as a jurist, exhibits also the work of
many other experienced lawyers.
2*2 See Markby, Indian law (in liEncyd. Britan.^^, p. 434.)
2»3 17 Encycl. BritanM, p. 194.
^^ Enacted in 1865.
2«5 Enacted in 1872.
288 Enacted in 1877.
2" Enacted in 1881.
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ENGLAND AND BRITISH EMPIRE 391
of Property,^** Easements,^** Trusts,^'* Civil Procedure.^ss^g^Q^^
and Criminal Procedure. ^^* So highly are the codes of crim-
inal and civil procedure regarded, that these have been made
applicable also to British Zanzibar in Africa.^''
But the greatest external of the Anglo-Indian codes was
the decisive impetus these gave to the movement for codifying
topic by topic the law of the mother country, England. To
the success of the Indian codes is largely due the well-known
series of progressive codifications of the law of England
framed late in the 19th century. The pioneer work is that
of the famous Sir James Fitzjames Stephen, who, at the insti-
gation of Lord Coleridge, then Attorney-General, finished in
1873 a complete systematic code of the English law of Evi-
dence "drawn on the model of the Indian act." ^'^ Although
this masterly draft of Stephen failed to become a statute, it
served him well three years later as a basis for his celebrated
Digest of the law of evidence. ^^^ Six years later, in 1882, appeared
the first codifying statute ever enacted in England, the Bills
of Exchange Act. It was followed by other partial codifica-
tions, such as the Partnership Act of 1890, the Sales of Goods
Act of 1893, and the Consolidation Act of 1908 codifying the
law of Companies.^'^
And in their turn the partial codifications of the law of
England have exerted an enormous influence in the other '
English law countries of the British Empire. The British
288 Enacted in 1882. Other important codes are: The "Court Fees
Act" of 1870, "Oaths Act" of 1873, "Specific Relief Act" of 1877, "Regis-
tration Act" of 1877, "Stamp Act" of 1879, "Suits Valuation Act" of 1887,
"Debtors Act" of 1888: see Preface of Stokes, Anglo-Indian codes, 2 vols,
and supplement, Oxford, 1887-1891.
^9 See Stokes, Id., vol. ii, pp. 373, 810.
'^0 Digest of Evidence, Introduction.
2" This is the best treatise of a summary nature ever written on that
diffuse and diflficult subject. It has passed through numerous English
and American editions, the American edition of Professor George E.. Beers
(1902) being annotated by the law of many American states.
2'^ I.e. corporations, associations, etc. Furthermore, other codifications
are being constantly suggested: for instance in the year 1910 it was
announced in the House of Lords by the Lord Chancellor that he and other
jurists were engaged in an attempt to codify the criminal law of England, —
Law Notes, May, 1910, p. 36.
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392 THE MODERN REALM OF ROMAN LAW
overseas dominions have manifested a similar desire for
unity of law and its attendant effectiveness for political
unity. Consequently Australia, Canada, British Guiana,
South Africa, and other British colonies have enacted statutes
which adopt or follow the partial codifications of the mother
country. 2'* And the influence of the piecemeal codifications
of the law of England has spread also to the United States.^^*
§ 405 One code for all the United States the only remedy to cure
American law of its confusion and uncertainty.^'^ That
English law country which to-day most needs a codified
private law which shall be uniform from one border to another
is the United States. Why should 91,000,000^96 Americans
longer endure the miserable confusion of 48 different varieties
of state "Common Law"^" — on which is superimposed that
other variety known as "federal Common Law"^'* — all of
^'2 For instance, the English Bills of Exchange Act is now adopted
by Australia (all states), New Zealand, South Africa (all provinces), and
Newfoundland, it is the basis of the Canadian (Rev. Statutes Canada,
1906, ch. 119), and has been made the law of most of the smaller British
colonies; the English Partnership Act is now adopted in Australia (all
states), New Zealand, and is law in part of Canada, in Bermuda, the
Bahamas, and British Guiana; the English Sales of Goods Act is now
adopted by Australia (all states) and New Zealand, and is law in part of
Canada, in Ceylon, Hong-Kong, Gibraltar, Jamaica, and Trinidad; and
the English Consolidation Act (Companies) is followed almost ver-
batim in statutes of Transvaal and British Columbia. Canada has also
adopted the Imperial Wills Act. At the Imperial Conference of 1911,
resolutions were passed advocating still greater uniformity of laws through-
out the British Empire, especially as to Copyright, Patents, Trademarks,
and Companies. See Hart, The uniformity of British law, 32 Canadian
Law Times, p. 167 (where the various British overseas statutes are cited).
2MSee infra §§406, 408.
2'® A part of this was published by the author in 25 Green Bag, p. 460,
November, 1913, under the same title as the caption of this section, and
is reprinted by permission.
296 U. S. Census of 1910: our population will soon be 100,000,000.
2" "Common Law" here means that body of law of English origin which
has been developed and now obtains in each of the several states, etc.,
and which is partly written (statutory) and partly derived from the decrees
or judgments of courts (unwritten).
238 The special significance of "federal Common Law" is that body of
legal principles and precedents derived from the decrees or judgments
of the various federal courts of the United States.
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UNITED STATES 393
which (except in two states^") are largely but unwritten ''"'(§406)
law located in a tangled jungle of multitudinous customs,
reports of decisions, and digests of these? The uncertainty
of American law, its confusion, its startling bulkiness, redun-
dancy, and prolixity, increased annually by some 20,000 new
statutes and thousands of new reported cases, make our law
to-day the most intolerable in the world and perhaps the
worst ever known to human history — all because its form
and lack of uniformity are so objectionably bad.
A French or German jurist who should come to the United
States to prosecute legal research in American law would be
lost almost hopelessly in the maze of hundreds and thousands
of unsystematized decisions'"' without any possibility of
systematizing or standardizing them himself, and could not
discover one law for all the United States. As it is, American
lawyers are finding it almost impossible to advise their clients
competently — they perforce resort too frequently to guessing
at the law. No wonder our courts are clogged, and the jus-
tice of American law is often excessively delayed and is in
danger of becoming a by-word to the civilized world. But
there is a way out for our America just as there was for Rome,
France, Germany, and all the other non-English countries.
The logical succession to multitudinous precedents is codification.
Rome was at one time almost as sorely harassed as we are:
then came the final codification of her law by Justinian.''"'
What France and Germany did,"" we can do. And we have
^°" Louisiana and California.
^"i' Black, Law dictionary''' (1910), p. 1188, defines American unwritten
law as "all that portion of the law, observed and administered in the courts,
which has not been enacted . . in the form of a statute, . .
including the unenacted portions of the Common Law, general and partic-
ular customs having the force of law, and the rules, principles, and maxims
established by judicial precedents or the successive like decisions of courts."
'"'• It has been computed that from 1658 to 1906 there were reported
750,000 cases, — during the last ten years at the rate of 25,000 annually.
In Chancellor Kent's time (infra § 412) there were about 200 volumes
of American and 650 of English reports; now there are surely 10,000 vol-
umes of American and 6,000 of English law reports. See 15 Law Notes
p. 224, March, 1912.
=»" Supra J §135, 137.
'»' Supra §§254,343,344.
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394 THE MODERN REALM OF ROMAN LAW
their modem codes to help us, whereas they had to go back
across the centuries to Justinian's code for help.
§406 Objections against one and only one system of codified
private law for the entire United States: Objection i —
Anglo-American law is essentially non-codifiable. The argu-
ments against the formation and inauguration of a federal
code of private law uniform throughout the United States,
which shall abrogate the private law of 48 states, are broadly
based on two grounds : that American law cannot be codified,
and that a federal codified jurisprudence would damage if
not destroy the integrity of the several states.
The argument that Anglo-American law is essentially
non-codifiable constituted for many years the citadel of the
opponents of codification in England and the United States.
But this position is no longer impregnable, if it ever was.
In every country, to discourage codification, the cry has been
raised "Let well enough alone." It has been heard in more
than one century: Rome, Paris, Berlin have listened to it.
To "let well enough alone" is a fine principle of conduct only
when nothing better is obtainable. If uncertainty, diversity,
and diffuseness — the hallmarks of present American and
English law — denote a jurisprudence needing no improve-
ment, then wretched will be the future of American law. On
the contrary, it is this long-continued lamentable condition
itself of American law which is responsible for the present
movement, now well under way, toward codification.
Lord Macaulay, although referring to Anglo-Indian law
and the then pressing necessity for its codification, very
clearly pointed out the path of future progress for English
and American law when he said: "Our purpose is simply
this — uniformity when you can have it; diversity when you
must have it; but in all cases certainty."'"^ The idea of a
codified jurisprudence as applicable to English and American
law did not find a ready reception when first broached; it
savored perhaps too much of inferring that English law could
be treated for codification purposes like any other law. Eng-
lish and American insularity became prejudiced against codi-
'"* See Stokes, Anglo-Indian codes (reverse of title page of vol. i.).
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UNITED STATES 395
fi cation; it has fiercely assailed codification — and the fight- (§406)
ing is not yet over. But while the opponents of codification
have been reiterating and fulminating that English law cannot
and should not be codified, an examination of recent events
and present tendencies in English law on both sides of the
Atlantic and elsewhere will reveal the great fact that codi-
fication of English law is already being gradually accom-
plished — in other words, the citadel of the opponents of
codification is now undermined and no longer tenable.
The glory of first showing to the world that English law
can be codified belongs to English jurists.'"^ Included in the
Acts of the Governor-General of British India are the world-
famous Anglo-Indian codes of criminal and civil law uniform
and applicable for all India.'"' These constitute irrefutable
facts, proof positive of the possibility of codifying English
law. These Indian codes, by their very existence, completely
upset the argument that English law wherever found is in-
herently non-codifiable ; and pointed to the inevitable con-
clusion that, if it is possible to codify Anglo-Indian law,
then the law of England, all British colonial law such as the
Anglo-Canadian or Anglo-Australian, and the Anglo-American
law of the United States, are also susceptible of codification,
given the right men to do it — trained jurists familiar not only
with their native law but also with the Roman law and the
Modern Codes, and not politicians with a smattering of legal
knowledge. In 1865 the New York codification commission,
presided over by that eminent and devoted advocate of the
codification of American law David Dudley Field,""' when
™5 Perhaps this honor may be shared with an American jurist, the famous
David Dudley Field. The New Yorlc code of civil procedure, which he
fathered, was enacted in 1848, twelve years before the Indian Penal Code of
1860. But the draft of the Indian Code — and it is far more difficult to
frame a code of substantive law — was reported eleven years before the New
York code of adjective law was reported.
3»6 See supra § 404.
"" Born at Haddam, Connecticut, in 1805, and died at New York City
in 1894. After graduating from Williams College in 1825, he was admitted
tp the New York Bar in 1828, where he soon rose to eminence. In 1836
he went to Europe to study the courts of England and the codes of France
and other countries, for he had become thoroughly convinced that American
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396 THE MODERN REALM OF ROMAN LAW
they completed their code of the entire civil law of New York,
clearly proved that American law can be codified. And this
code, although it failed of enactment owing to the hostile
attitude of the New York Bar, has to a large extent been
adopted in several western states.'"^
Enormous was the influence of the Indian codes on the law
of England: to the success of these codes is largely due the
present numerous partial codifications of the law of England,
which in their turn have been copied all over the British
Empire, especially by Canada and Australia.^"' The English
particular codifications of special legal topics by statutory
enactment are now no longer strange: on the contrary this
plan has been pursued in the United States — the "uniform"
Negotiable Instruments, Practice, and Sales Acts bear witness
to the success of the American adoption of this British method
of codification.'^"
§407 Objection 2 — A republic cannot codify its law: to do
this necessitates a monarchy or an empire. This is a weak
argument, and is easily refuted. If it be argued that the
codes of France and Germany, etc., were made possible only by
Common Law procedure ought to be unified and codified. His ideas were
realized in the New York code of civil procedure enacted in 1848. Two years
later a complete code of civil and criminal procedure was enacted, the work
being largely Field's. He then advocated and took up the work of making
a systematic code of the entire private law of New York state. This codi-
fication, finished in 1865, failed of adoption except only in small part, but
was adopted with but few changes by other states. Field was also an
ardent advocate of the codification of international law, preparing a draft
for an international law code in 1872.
'"^ Field's Civil Code has served as a model for subsequent codes in
other states, particularly California, Idaho, Montana, North Dakota, and
South Dakota. It is regrettable that Field's commission did not make a
thorough use of the Louisiana Civil Code (supra §264), which is char-
acterized by insistence on accurate classification.
»»» Supra §404.
^'o It should not be overlooked that the publications of vast encyclopedic
treatises of law, like Lord Halsbury's Laws 0/ England and the Cyclopedia
of A merican and English law are really stepping stones to a complete codi-
fication of law in both countries. And such works as Jenks' Digest 0/
English civil law show that it is also possible to make a systematic codifica-
tion in brief compass.
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UNITED STATES 397
the power of a monarchial government, and that Napoleon ■''"
and William II are reminiscent in this respect of Justinian,
there is one irrefutable reply: has not Switzerland, a repub-
lic — and a federated republic also — successfully codified
her private law? '^^
A lesson in experience can also be taken from our Spanish
American gister republics — especially Argentina and Chile —
which, although republics, have excellent codes of law uniform
for each country. Finally, did not Louisiana codif,y her
law most excellently soon after her admission to our Amer-
ican Union, and have not many of our American states
already codified parts of their own law — ■ for example the
Negotiable Instruments Act? The argument that a re-
public cannot codify its law falls to the ground from its own
weight.
Objection 3 — Uniformity of American law can be obtained § 408
by making state legislation uniform: there is no necessity
for a uniform codified federal system of private law. This
objection recognizes by implication the value of a codified
American law, even if it is attempted to do this piecemeal:
for a code is a promulgated collection of laws scientifically
arranged^'' and may comprise an incomplete as well as a
complete system of positive law. In other words, codes
may be partial as well as complete.
The various Uniform State Acts adopted by many American
states are of the nature of partial codes. If each branch or
topic of the law shall be reduced to writing, eventually all
our law will thus achieve full codification. Perhaps then the
lack of coherence due to this piecemeal process would be
remedied by welding a true code out of these many parts
of a code. This method of codifying law a part at a time
originated, as has been shown, in British India, whence it
spread to England and America.'" It is the easiest — but
not the best — ^way to achieve a full codification, because the
^1' Napoleon was First Consul, not Emperor, when the Code Civil was
completed; but the Empire quickly followed.
'12 Supra §§358.
2>3 See Black, Law dictionary ^, p. 211, "Code."
3" Supra §§404,406.
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398 THE MODERN, REALM OF ROMAN LAW
(§408) movement is along the line of least resistance, and deals with
difficulties of only one legal topic at a time.
The prospect of uniformity of state laws in the United
States looks very promising on the surface. Sanctioned
by the American Bar Association and ably executed by the
Conference of Commissioners on Uniform State Laws, the
promotion of uniformity of state legislation by practically
partial codifications has been greatly advanced during the
past twenty years. And at the present time nearly all the
American states and territories have at least one of these
Uniform Acts, the earliest of which is the Negotiable Instru-
ments Act.'" "And the outlook for continued strength of
the movement for uniformity is exceedingly encouraging,"
declares a former President of the Conference of Commissioners
on Uniform State Laws.'" The case for uniformity of American
law via state legislation and codification is apparently won, —
certainly from a superficial point of view.
But what is the meaning of the very next sentence of his
article by this same President of the Conference of Commis-
sioners on Uniform State Laws — himself a strenuous advo-
cate of uniformity via state action only? He says: "The
business world begins to realize that there is only one alterna-
tive^'^'' to an agreement among the states upon matters of
vital concern to all of them . . . They must agree
among themselves or the pressure of sentiment will cause
amendments to the Federal Constitution that will still further
3" The Negotiable Instruments Act (first published in 1896 — the
conception of which was borrowed from England, supra § 404) , has been
adopted by forty-eight states; the Warehouse Receipts Act (first pub-
lished in 1906), by twenty-nine states; the Sales Act (first published in
1906), by ten states; the Bills of Lading Act (first published in 1909), by
eight states; the Foreign Wills Act, by six states; the Uniform Stock
Transfer Act (first published in 1909), by five states; the Family Deser-
tion Act, by four states; the Divorce Act, by three states. See 38 Am.
Bar Ass'n Reports, p. 529; 23 Green Bag, p. 621. Moreover, the Conference
of Commissioners has drafted or is considering these additional Uniform
Acts: a Child Labor Act, Marriage and Marriage License Act, Workmen's
Compensation Act, Insurance Act, Act as to the Situs of Property for
Taxation.
^'^ Smith, The Outlook jor uniformity of legislation, 23 Green Bag, 621.
'1' The italics are mine.
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UNITED STATES 399
minimize the importance of the states and jeopardize the (§408)
basic principle of local self-government. Business has long
since overleaped state lines. " ^' *
Right here crops out the fatal weakness of any scheme for
making one law for the United States via uniform state legis-
lation: when once uniform laws or partial codifications are
thus obtained, how long will these stay uniform? The answer
is, just as long as the legislatures of the states refrain from
acting on the "basic principle of local self-government."
Sooner or later the legislatures will inevitably tinker — ^each
one probably a different way — • these uniform acts secured
after so much trouble; and then will begin again the old
familiar American condition of diversity of law.'^' Already
the oldest of the youthful uniform state laws, the Negotiable
Instruments Act,'^" is attacked because it is beginning to cease
to be uniform.'^i Permanent uniformity of American law
is utterly impossible via state legislation. This magnificent
movement toward one law for the United States is doomed
to a miserable failure unless it be switched to the 'main line'
of legal progress.
There is only one route to permanent uniformity of law
in the United States — an Act of Congress. In no other way
can one private law for our great republic be secured. When
our business world, which "has long since overleaped state
lines," realizes that diversity and uncertainty of law will not
actually disappear until a federal codification be promul-
gated, verily "the pressure of sentiment will cause amendments
318 Smith, Id., pp. 621-2.
'1° As yet no absolute uniformity via state action has been secured.
It has already happened that the draft Acts sent by the commissioners have
been considerably altered by state legislatures. Furthermore, the courts of
different states already disagree in their interpretation of the same provi-
sions of certain Uniform Acts.
32" It was first passed in 1896, and is twenty years old.
'^' Eaton, On uniformity in judicial decisions of cases arising under the
Negotiable Instruments Act, 12 Mich. Law Rev., p. 89: "There must also be
uniformity in the decisions under the uniform law . . . it is a grave
and serious cause for regret that this is not being done." See also Hening,
The Uniform Negotiable Instruments law; is it producing uniformity and
certainty? 69 Penn. Law Review, p. 471 (1911); and Judge Mack's article,
6 Illinois Law Review, p. 62.
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400 THE MODERN REALM OF ROMAN LAW
to the Federal Constitution" to secure one system of law
instead of forty-eig'ht. Let all traditional prejudices be dis-
missed, and let the subject of a federal codification of private
law be investigated intelligently: it will soon be seen that
the importance of the states will not be injuriously "mini-
mized" by the promulgation of a federal code of private law.
Such legislation must come eventually. When it does come,
a great debt of gratitude will be owed by every American
to those who fathered and developed the movement for
uniform state laws — thus revealing the fact that codification
of American law was not impossible after all.
; 409 Objection 4 ^ — A federal codified jurisprudence abrogating
the private law of the states is impossible without impairing the
integrity of the several states. It is argued that, because the
United States are an enormous country equal in area to prac-
tically all Europe, federal uniformity of private law through-
out the United States would not work well or be satisfactory;
that uniformity of law through federal legislation or control
would be an experiment, the dangers of which are unknown.
This easy-going belief is entirely superficial, and is quickly
refutable. Ignoring our uniform rules of naturalization, do
not the United States already possess federal uniformity of law
as to bankruptcy and admiralty? Has this worked so badly
that these subjects ought to be regulated by forty-eight
different state laws? On the contrary, the wisdom of the fram-
ers of the Constitution in making bankruptcy and admiralty
federal matters grows more apparent, and is more highly
prized than ever. Furthermore, we often feel that many
of our present evils might have been avoided had more
matters — such as marriage and divorce — been intrusted
to federal regulation, thus securing uniformity of law thereon.
Uniformity of law through federal legislation has never worked
ill to the people of the United States.
If we turn to history, we find that the size of a country
does not derogate from the value of uniformity of law. The
vast Roman Empire found uniformity of law highly satis-
factory. The vast extent of the influence of the Napoleonic
codification in both Europe and the twin Americas '^^ shows
522 See supra § 258.
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UNITED STATES 401
the value of a simple codified legal system is not canceled (§409)
proportionately by increasing the size of a State. Finally,
it is indisputable that the elements of law in the combined
vast English law countries have remained the same without
suffering detriment from the enormous spread of English
law by colonization.
Not well-founded is the conviction that a federal codification
of our law made uniform throughout the United States is
not only impossible, but, even if it were possible, it would also
irreparably damage or destroy the states themselves. The
facts of history point to this very solution as quite possible,
and not injurious to the integrity of the states of a federal
union. The best answer to the assertion that any proposition
for a uniform federal codification of American law would be
like a leap into the dark, is to look at federal Germany and
Switzerland. Both were able to rise out of the quagmire of
intensely active state pride, jealousy and historical tradi-
tions, and to enact one codified private law for over twenty
Swiss or German states without in any way destroying
these states themselves.'^' Is the Constitution of the United
States the sole supreme wisdom of statesmanship? The
framers of the Constitution never held this view as to their
work; they provided for amending it whenever necessary.'^
It is quite possible to pass an amendment to the Con-
stitution giving Congress power to enact a federal codification
for the entire United States which shall abrogate the private
law of the several states. It may also be expressly stipulated
in the amendment that the public law of the states shall be
left untouched : such a reservation of power was left to the
German states when the German Civil Code was promul-
gated.'^^ The public law of the several American states need
not be disturbed; but their private law should be replaced
by a federal code of civil and commercial law,'^^ — thus result-
ing in one and only one uniform and codified private law
323 See supra §§344, 358.
32* And 17 amendments have already been adopted.
325 Supra § 344.
326 Perhaps also federal codes of criminal law, civil and criminal procedure
may some time be deemed advisable.
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402, THE MODERN REALM OF ROMAN LAW
(§409) throughout the entire United States. Such a single codi-
fication of American law would be of a permanent nature.
At any rate future changes in law would operate uniformly
throughout the whole United States. But this is centralization ,
greater nationalization! Very well, — it is better to hang
together by the adhesive force of one uniform system of
private law than to be pulled asunder by the disintegrating
forces of forty-eight different systems.
But it may be urged, assuming the existence of a uniform
federal codification, would not diversity of interpretation
soon arise, and how can this be avoided as long as we retain
adherence to precedent- — that salient feature of the Common
Law of England? This is the answer: the force of stare
decisis no longer has to-day in Anglo-American law the bind-
ing power it once had, — it is useful but no longer controls;
why not then abrogate it entirely, as Germany, France, and
other countries have done? ^^'' Where there is a written code
of law, the force of precedents is no longer binding: the code
itself is its own interpreter.
The argument against one codified law for all the United
States made under federal auspices gains no additional strength
because the task would be very difficult to accomplish. But
it should not be forgotten that the conquest of the obstacles
to the codification of American law can be greatly expedited
for us with the aid of the many codifications already made
by other modem nations, — an inestimable privilege not so
abundantly enjoyed by them when they codified their law.
Justinian '^^ first showed to the modem world how to remove
the stones of practical difficulties so as to smooth the way
to a uniform, codified private law. If the Napoleonic codi-
fication '^' was made easier of accomplishment by the example
of the Justinianean, and the German and the Swiss ^'^ a century
'^' Continental European judges are forbidden to cite cases (decisions)
in their judgments. See also Teisen, The false theory of the binding force
of precedent, 76 Cent. Law Journ., p. 147. The 'orthodox' position as to
stare decisis is set forth in Black, Stare decisis, Docket for June, 1912, p. 744.
'^ Supra § 135.
329 Supra I 254.
3M See supra §§344, 358.
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UNITED STATES 403
later were made easier of accomplishment by the previous
examples of the Justinianean and the Napoleonic, how very
much easier is our task than theirs when there are before
us so many examples of successful codifications of private law?
Is our problem more difficult or even as difficult as the problem
of codification was in other countries, especially in France
or Germany?
France can give up hope and courage for a Herculean clean-
ing of our Augean legal stables. It has been noticed that
prior to the Napoleonic codification France had 300 different
varieties of law more or less alike ^^' : but French lawyers
finally succeeded in accomplishing the task of obtaining one
codified law for all France — the first genuine grand codi-
fication since Justinian's age, then nearly thirteen centuries
in the past, and of enormous blessing in the 19th century to
all mankind. Germany, to obtain one codified law, had a
very difficult problem to solve. Early in the 19th century
there were some 1800 different states in Germany, which left
as a legacy to the modern German Empire humorous con-
flicting systems of law: but not even this mischievous legal
heritage from the past was allowed to stop the formation
of one German law in codified shape ■ — the magnificent code
of 1900.'^^ It is absurd to believe that Americans are men-
tally inferior to Romans, Frenchmen, or Germans.
Objection 5 — The effect of one federal code for the § 410
entire United States would cause American law to become
atrophied. It is also claimed that to put our law into per-
manent shape in the form of a federal codification would
cause it to become atrophied. How could it grow, if codified?
The answer is so easy: amend or revise the code whenever
necessary, for instance just as France has frequently done
since 1804. Instead of causing a stoppage of growth, on the
contrary, a code really facilitates growth in law: for a code
in course of time reveals its own deficiencies, and, the law
being made certain by the code, is easily alterable because
of this discernible certainty, — there is no danger of "leaping
into the dark" when revising a code.
'31 Supra § 254.
332 Supra §§341, 342, 343.
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404 THE MODERN REALM OF ROMAN LAW
(§410) This whole argument of the atrophying influence of an
American federal codification is quickly seen, when analyzed,
to rest on a very unscientific basis. Furthermore, it demeans
the dignity of the legal profession. If the enactment of a
uniform federal codification of American law will have the
bad consequence of introducing the 'deadening' influence of
a standardized law, then such an evil ought now to be true
of the effect of our Uniform State Acts: but to claim that
these are exerting a 'deadening' influence is obviously non-
sensical. At once the reactionary spirit of the argument is
revealed ; it would persuade us to turn back the hands of the
clock of legal progress; why not let, for instance, the Texan
keep and enjoy his kind of law, the Californian his variety,
and the Pennsylvanian his; let them all grow and flourish
ad libitum; standard legal ideas and principles are to be
regarded as destructive of local state peculiarities of law!
And so this argument totally ignores the fundamental prin-
ciple of juridical evolution, that the fittest law should sur-
vive; on the contrary it seems to lay emphasis on keeping
alive outworn and obsolescent law.
All this is but another and sentimental way of injuriously
emphasizing "state rights." Every citizen to-day has to
suffer an enormous legal risk in business because of the in-
creasing uncertainty of knowing just what the law is through-
out these United States, — a situation largely due to the
present perpetuation of traditional state doctrines of law
without regard to the law of any other state. Perpetuating
the local dissimilarities of state law is a good thing for but
one class of persons — namely pettifogging lawyers, who
naturally will do their best to hold back as long as possible
the chariot of legal progress. Must all the vast multitude
of interstate business transactions in this country be jeopar-
dized in order that Rhode Island or Delaware, for instance,
be kept dissimilar in order to benefit the lawyers of these
states?
The present malady of American law is its lack of uni-
formity. Sooner or later our bulky prolix, largely case law,
which is increasing proportionally in bulk and which in its
visible form annually deluges law libraries (alone spacious
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ENGLAND 405
enough for storing the host of new reports ^^'), must give way
to a scientific codification of small volume wherein the law
is clearly and definitely set forth, easily found, and which shall
be the sole private law of the land from the Atlantic to the
Pacific Ocean!-
The 19th century and present revival of Roman law study §411
in England and America 3": (i) England. The present
revival of Roman law in England and America is largely due
to Sir Henry Maine. Sheldon Amos' loyal tribute deservedly
extols the genius of Maine, who "rescued the laws of Rome
from the neglect into which they had fallen in England, and
established forever their essential relation to every system
of law having a European parentage." ^^°
During the 12th and 13th centuries Roman law had been
received into England in no small measure and had played
an important part in the development of the English Common
Law.^'^ But the subsequent rise of English hostility to the
Civil Law as a foreign system,'''' followed by the suppression
of Canon Law teaching at the universities in the 16th century
because of the Protestant Reformation,''* finajly brought the
study of Roman law itself into disfavor "' — which was only
temporarily checked by the English revival of Roman law
during the century of the Reformation.'*" And the narrowing
influence of England's geographical separation from the
Continent — always a potent factor in English history —
increased during the following centuries. The study of
Roman law "maintained only a feeble and flickering life," '*'
and it was valuable only to the ecclesiastical Bar.'*^ England
^^' See supra § 406, note.
^'* A part of this was published by the author in 23 Green Bag, p. 624,
December, 1911, under nearly the same title as the caption of this section,
and is reprinted by permission.
''' See Amos, Roman law : dedication to Maine.
336 Supra §§369-75, 377.
3" Supra §378.
338 Supra §384.
33' See Bryce, Studies, pp. 861-2.
*" Bryce, Id., p. 862.
3« See supra §§384, 399.
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406 THE MODERN REALM OF ROMAN LAW
(§411) had become isolated from the current of European juridical
thought and legal practice.
Not until very modern times, when the isolation of Eng-
land and the greater isolation of America were diminished
by improved and frequent means of communication, did the
prejudice of English and American lawyers against Roman
law disappear. ^""^ And even now the tradition of such pre-
judice and indifference still lingers too potently in some part
of the United States.
The year 1852 '" marks the beginning of this latest revival
of Roman law study in England, — a movement second only
in importance to the Bologna revival of the 13th century
in its ultimate influence on the development of English law
into a codified jurisprudence. England is now in a position
to catch up in law with the rest of civilized Europe. That
the law of England has progressed in the last half-century
is proved, ignoring all else, by the familiar codifications of
portions of English law.'**
Another result of this latest revival of Roman law in Eng-
land is that the Roman Institutes of Justinian '^* are now a
required subject for admission to the English Bar. England
has joined hands with Scotland ^^ in requiring a knowledge
of Roman law to form an essential part of a legal education.
No longer is the English lawyer totally ignorant of the world-
current of jurisprudence. Very fruitful have been the labors
of the 19th century English Romanists'*^ such as Maine,'*'
'■"In 1836 that learned American law teacher, David Hoffman, said:
"The fact is indisputable, that whilst the British nation has copiously sup-
plied itself for eighteen centuries from the streams of the Civil Law, and is
perhaps more largely indebted to them than to any other source whatever,
it still continues to withhold, in a considerable degree, a frank acknowledg-
ment of the full amount of the debt which has been thus contracted":
Hoffman, Legal study ^, vol. ii, p. 509.
=« Bryce, Id.
^^ See supra § 404.
3« See supra § 138.
*" See Mackenzie, Roman Law ', p. 47.
'*' Or "Civilians."
"' Sir Henry James Sumner Maine, born 1822, died 1888. Studied
at Pembroke College, Cambridge, where in 1847 he was appointed Regius
professor of the Civil Law. This chair he held for seven years. In 1861
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UNITED STATES 407
Bryce.s^o Muirhead,'" Amos.'^^ Williams.^^s Hunter,^^* Roby.'^s
Maitland,'^^ Pollock,'" Scrutton.'^s ciark,^^' and the Scotch
Civilians Mackenzie '^^ and Colquhoun.^"^
(2) The United States. The 19th revival of Roman law §412
study soon passed across the Atlantic into America. During
the first three quarters of that century little or no attention
had been paid to the Civil Law by American law students and
lawyers.'*^ Roman law was known only to a few American
jurists, such as the great James Wilson '^' who was the first
he published his work on Ancient law, which at once made him famous
Soon afterward he was appointed legal member of the India council, which
office he held until his return to England in 1869. That year he was
appointed to the new chair of comparative jurisprudence at Oxford founded
by Corpus Christi College. This he held for eight years, returning in
1877 to Cambridge to become Master of Trinity Hall. In 1887 he was
made Whewell professor of international law at the same university.
'*" James Bryce, now Lord Bryce, formerly British Ambassador to the
United States, whose twenty-three years of Activity as Regius professor
of the Civil law at Oxford from 1870 to 1893 will long be remembered.
^1 James Muirhead, professor of Roman law at the University of Edin-
burgh.
^'' Sheldon Amos, professor of jurisprudence and Roman law in the
Inns of Court, London.
^^ James Williams, professor at Oxford, died 1912.
3B4 William A. Hunter, whose Roman law in the order of a code has never
been equaled in English.
'^* Henry John Roby, professor at University College, London.
356 Frederic William Maitland, Downing professor of laws at Cam-
bridge, died 1906.
*' Sir Frederick Pollock, formerly Corpus Christi professor of juris-
prudence, Cambridge.
^* Sir Edward Scrutton, a distinguished English judge, whose Influence
of the Roman law on the law of England is invaluable.
^^ Regius professor of the Civil Law at Cambridge.
'^"Lord Mackenzie, a judge of the Court of Sessions,' whose Studies
in Roman Law with comparative views of the laws of France, England, and
Scotland'', is renowned.
3" Patrick MacChombaich De Colquhoun, a pupil of the great Thibaut
(supra §348), whose elaborate Summary of the Roman civil law is the
pioneer work in English.
362 Baldwin, The study of Roman law in American law schools. Am. Law
School Review, Nov., 1911, p. 28.
^' Appointed professor of law in 1790 at College of Philadelphia. He
was thoroughly versed in Roman, French, and Scotch law in addition to
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408 THE MODERN REALM OF ROMAN LAW
|4i2) American jurist to suggest the codification of the Common
Law,^^* the illustrious James Kent,'^^ the brilliant David Hoff-
man,'*^ the learned Wythe, '^'^ the scholarly Thomas Cooper,^*^
Hugh S. Legar^,^^' John Pickering,^'" and John Anthon."^ But
there was one great exception — the lawyers of Louisiana,
who had been forced to study Roman law in order to better
understand their own law derived from France and Spain. ^^^
And their devotion to Roman law began before the admission
in 1812 of Louisiana to the American union of states.
But this introduction of Roman law study into Louisiana
did not produce any similar effect in the various English
Common Law states: for the Louisiana turning to Roman
law was in reality but a consequence of the continued influence
of French and Spanish law in North America. The exclusive-
ness of the English Common Law states continued, and was
not broken down until very much later in the 19th century
his mastery of American jurisprudence. See Great American lawyers,
vol. i, p. 212.
364 '"Pq form the mass of our laws into a body compacted and well
proportioned": 22 Green Bag, p. 60.
366 Born 1763, died 1847. Graduating from Yale in 1781, he was,
appointed in 1793 professor of law at Columbia College, New York. In
1804 he became Chief Justice of New York, and in 1814 Chancellor. In
1823 he returned to Columbia. During this service there he wrote his
famous Commentaries on American law, 4 vols., 1826-30, which were
the product of his Columbia law lectures. This work, which frankl)-
acknowledges the debt owed by English and American law to Roman
jurisprudence, has now greater authority in the United States than Black-
stone's exposition of the Common Law (supra § 395).
^' A leader of American legal education early in the 19th century,
frequently overlooked, who was law lecturer at the University of Mary-
land. In his Course of legal study he emphasized Roman law as affording
a wider field of knowledge than the commentaries of Blackstone (supra § 395.
"" Professor of law for twelve years at William and Mary College. He
was appointed in 1799 through the instrumentality of Jefferson. See War-
ren, Hist, of Am. Bar, p. 343, Boston, 1911 ; Great Am. lawyers, vol. i, p. 67.
™Who translated into English in 1812 Justinian's Institutes (supra
§ 138). Cooper was Jefferson's choice for the chair of law at the new
University of Virginia.
3«9 Of South Carolina.
3" Of Massachusetts.
"1 Of New York.
3" See supra §§263, 309.
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UNITED STATES 409
when the current revival of Roman law spread from England (§412)
to American institutions of learning.
Roman law seems to have been first taught at Yale : late
in the 18th century President Stiles of Yale College formed
the project for a law lecture, which among other things should
consider to what extent the Roman law had entered into
English law, the parent of American law; and after the lapse
of quite a number of years he himself gave in 1792 a law lecture
which embraced a discussion of the "Jus Civile or antient
Roman law. Pandects and ecclesiastical or Canon Law."'"
In 1843 Roman law was an elective Latin study at Yale."*
Five years later Roman law was introduced at the Harvard
Law School by Luther S. Cushing, who taught this subject
from 1848 to 1851. "«
About the year 1863 the eminent James Hadley "^ prepared
and subsequently gave a short lecture course in Roman law
at Yale College,'^' which he afterwards annually repeated at
the Yale Law School. At one time Professor Hadley delivered
these lectures as a part of the graduate course of the Harvard
Law School, so great was the success of his work.^^^ The
extraordinary clearness and power of his exposition and the
beautiful elegance of his style still impart luster to the fame
of this pioneer Yale teacher of Roman law as a legal study.
The next to teach Roman law in the Yale Law School was
the erudite Simeon E. Baldwin. Largely because of his in-
fluence, the Yale Law School was led to take that signal act
of leadership which at once placed it far in advance of all
3'3 Warren, History of the American Bar, p. 347. President Stiles
formed this plan as early as 1777; but not until 1779 was it approved by
the corporation; in this year was introduced Montesquieu's Spirit of laws
(in which some notice of Roman law is given) : Warren, Id. See also supra
§§40, 135,225.
"* It was taught by tutor Joseph G. E. Lamed: Baldwin, Id.
^^ Baldwin, Id. Cushing published in 1854 his Introduction to Roman
law.
''^ Professor of Greek at Yale College 1848-72, having been appointed
tutor in 1845. He died Nov. 14, 1872. He was the father of Arthur T.
Hadley, LL.D., President of Yale University.
3'^ Baldwin, Id. ; Hadley, Introduction to Roman law, preface, p. iii.
"8 These lectures were published in 1873, after his death, under the title
of Introduction to Roman law.
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410 THE MODERN REALM OF ROMAN LAW
(§412) other American law schools: in 1876 Yale organized a Law
Course for graduates of law schools. Yale was "the first
law school in America or England to establish a course leading
to the degree of Doctor of Civil Law." ^"
A great teacher was called to take charge of the Roman
law instruction at Yale — Albert S. Wheeler.^'" It was on his
advice and in reliance upon his aid that the new Yale course
and Roman law doctorate had been established.^*' Professor
Wheeler was an unusually fine combination of scholar and
jurist. As a Civilian he had no equal in America. He was
a master of Roman law worthy to be ranked with the greatest
European Romanists. During his twenty-eight years of
Roman law instruction at Yale were markedly revealed all
the qualities of the great teacher: profound and accurate
knowledge accompanied by great capacity to impart this
to others, broad vision, originality, constructive instinct,
enthusiasm, and sympathetic power.
Since the last quarter of the 19th century, Roman law has
come to be regarded as a subject of importance in an increasing
number of American law schools. Roman law is now studied
at Yale, Columbia, Pennsylvania, Chicago, Harvard, Stan-
ford, the Catholic University, and other law schools.'*^ But
2" Yale University catalogue, 1915-16, p. 702.
38» Albert SprouU Wheeler was born Dec. 1, 1832, at Warwick, New
York, and died Jan. 30, 1905, at New Haven. He received the degrees
of B.A. and M.A. at Hobart College in 1851 and 1854 respectively. He
was professor of languages (including Greek) at Hobart College 1855-
68, having been appointed Tutor in 1855. During this time he studied
for the Bar of New York, and was admitted in 1865. From 1868 to
1870 he was professor of ancient languages (Greek and Latin) at Cornell
University. In 1872 he became a member of the faculty of the Yale Scien-
tific School, where he taught German for twenty-five years until 1897. In
1876 he became also connected with the Yale Law School. He had pre-
viously taught Roman law at Cornell. His masterly index to Hadley's
Introduction to Roman law had revealed his profound knowledge of this
subject. Professor Wheeler continued his work of instruction in the Yale
Law School until his death in 1905. By a testamentary bequest he estab-
lished the Yale Library of Roman and European law which bears his name.
He was the predecessor of the author in the chair of Roman law at Yale.
^^ A. S. Wheeler commemorative addresses (1905), p. 16.
382 Roman law courses are now given also in many American colleges
as part of a liberal education. "What college, aiming at thoroughness,
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UNITED STATES 411
with all the advance made by this movement there is still (§412)
room for further progress: the study of Roman law ought
not to be merely a graduate or an elective undergraduate
course of a law school — it should be made a compulsory under-
graduate course for the degree of LL.B. or its equivalent.
The rank and file, as well as a favored few, of the great army
of nearly 22,000 American law students scattered in 137
American law schools ^^' sadly need the uplifting professional
and scientific impulses which result from contact with Roman
law.
Our present syptem of legal education is defective because
it does not give sufficient attention to or ignores Roman law.'**
That distinguished Englishman, Professor Dicey, from his
observation of American Rhodes scholars in law at Oxford
recently made the following very pertinent comment: that
"there ought to be a wider knowledge of the law of Rome
than is given in the celebrated law schools of America,'^^ and
also an acquaintance, which can hardly be obtained from cases
alone, with the principles to be gathered from the works of
the best . . . legal writers of England and America."^**
These defects in American legal education must be remedied.
The influence exerted by the current revival of Roman law
study is still on the increase; and it is inevitable that sooner
can afford to ignore it (Roman law) altogether?" : Jesse, The strength of
American law schools, 21 Yale Law Journal, p. 396 (1912).
^*' Richards, Pres.' address "Progress in legal education," Association
of Am. Law Schools proceedings (1915). See also World Almanac for
1916, page 585.
''^ "How many of our . . . law schools give adequate instruction
in the principles of Civil Law and in Modern Codes as developments
thereof? . Every law school ought to require some measure of
this work for every degree " • Jesse, Id.
'85 The position of that eminent American judge, Joseph Story (1799-
1845), is practically the same: "It would betray a narrow subjection to
prejudice, or wanton disregard of some of the best sources of instruction,
to pass by with neglect the glorious labors of the Roman jurists"
(in his preface to Agency, 1839); "the Roman law is an inexhaustible
treasure of various and valuable learning" (in his preface to Partnership,
1841).
'^^ Dicey, The extension of law teaching at Oxford, 24 Harv. Law Rev.,
p. 3 (Nov. 1910).
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412 THE MODERN REALM OF ROMAN LAW
(§412) or later this will destroy the present over-emphasis in certain
American law schools on the "case, method" as the exclusive
method of teaching law.^*'
Roman law, as in England, should be required for admission
to every American Bar. It would lead, among other benefits,
to a diminution of the present professional incompetency'*'
of too many men called to the Bar, and it would impart an
altogether too much needed ethical uplift to the profession
as a whole. Already two states now require a knowledge of
Roman law, for admission to the Bar; these are Louisiana
and Kansas. '*' That it should be made requisite in Louisiana
is not surprising ; that it is necessary in Kansas — a Common
Law state — is proof of the progress of the present revival of
Roman law in the United States. Turning now to the literary
productions of American Romanists, although the Civilians
on this side of the Atlantic have done little as yet, compared
with the labors of the modern English Romanists,''" yet there
are a few who rank with their English brethren, such as
Morey,'**! Howe,"^ and the Canadian Walton.'''
The modern world is rapidly growing together. "A knowl-
edge of Roman law, at least in outline, and sufficient familiarity
with its literature to tell . . . where to look for the rules
on any point is almost a necessity for what we call the 'inter-
national' lawyer." "* Finally, the American lawyer must
no longer remain ignorant of the world-current of jurisprudence
and the mission of modern Roman law. Then will he perforce
naturally plan and strive for the scientific betterment of
^' See supra § 165.
'^ On this subject, see Coudert, The crisis of the law and professional
incompetency, Am. Bar Association Rep., 1911.
ss'See Rules for Admission to the Bar ^, St. Paul, 1913 {Louisiana and
Kansas) .
390 Supra §411.
301 William C. Morey, professor at Rochester University, author of
Outlines of Roman law' (1914).
'"2 Judge William Wirt Howe of New Orleans, author of Studies in the
Civil Law\ (1905).
3»3 Frederick Parker Walton, formerly dean at McGill University Law
School, author of Historical introduction to Roman law', (1912).
3M Baldwin, Id., p. 30.
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UNITED STATES 413
American law through codification along the lines of the best (§412)
modem codes, — that Herculean but not impossible task
of the immediate future.^'^ When this is accomplished, the
American revival of Roman law study will have reached
its full fruition.
'^ See supra § 405.
END OF VOL. I
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