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Full text of "Roman law in mediaeval Europe"

THE LIBRARY 

OF 

THE UNIVERSITY 
OF CALIFORNIA 

LOS ANGELES 





THE LIBRARY 

OF 

THE UNIVERSITY 
OF CALIB 

LOS AN( 




FROM THE LIBRARY OF 
FRANK J. KLINGBERG 



HARPER'S LIBRARY of LIVING THOUGHT 






ROMAN LAW 

IN 

MEDIAEVAL 
EUROPE 



BY 

PAUL 
VINOGRADOFF 




HARPER X 
BROTHERS 

LONDONXNEWYORK 



ROMAN LAW 



IN 



MEDIAEVAL EUROPE 



BY 

PAUL VINOGRADOFF 

M.A., D.C.L., LL.D., DR. HIST., F.B.A. 
CORPUS PROFESSOR OF JURISPRUDENCE 
IN THE UNIVERSITY OF OXFORD 
HONORARY PROFESSOR OF HISTORY 
IN THE UNIVERSITY OF MOSCOW 



LONDON AND NEW YORK 
HARPER &. BROTHERS 

45 ALBEMARLE STREET, W. 
1909 



- 



College 
Library 



so 



PREFACE 



THE sketch of a great historical process 
presented in the following chapters is 
based on lectures delivered in the spring of 
1909 as an advanced historical course on the 
invitation of the University of London. I have 
not attempted to trace the history of Roman 
Law in the Middle Ages in all its details or even 
in all its stages, but I have tried to characterise 
the principal epochs of this development in 
Western Europe. One of the reasons for pub- 
lishing this essay consists in the fact that there 
is no English account of the mediaeval life_ of 
Roman Law similar to the masterly tracts of 
Modderman and v. Below. I have given refer- 
ences at the foot of the pages very sparingly, 
and have cited in connection with each lecture 
only the books which have been used in pre- 
paring it. But a few fragments from the texts 
have been added in an Appendix to illustrate 
some points as to which it was important to 



PREFACE 

consider the very words of the original authori- 
ties. 

I take this occasion to thank the Dean and 
Chapter of Worcester for the loan of their famous 
MS. of Vacarius' Liber Pauperum. 

P. VlNOGRADOFF 
OXFORD, 

October, 1909 



CONTENTS 

LECTURK PAGE 

I. THE DECAY OF ROMAN LAW i 

II. THE REVIVAL OF JURISPRUDENCE . 32 

III. ROMAN LAW IN FRANCE . . 59 

IV. ROMAN LAW IN ENGLAND ... 84 
V. ROMAN LAW IN GERMANY . .106 

APPENDIX '3- 



ROMAN LAW 
IN MEDIEVAL EUROPE 

LECTURE I 

DECAY OF THE ROMAN LAW 

Principal authorities: Mommsen, Ostgothische Studien 
in the Neues Archiv fur altere deutsche Geschichtskunde, 
XIV, 1889; Notitia dignitatum, ed. Seeck, 1876; Codex 
Theodosianus, ed. Mommsen et Kriiger, 1905 ; Lex Romana 
Visigothorum, ed. Haenel, 1838; Conrat (Cohn), Das 
Breviarium Alaricianum, 1903 ; Conrat (Colin), Der 
westgothische Gaius ; der westgothische Paulus, Ver- 
handlingen der Kon. Akademie van Wetenschoppen te 
Amsterdam, N.R. VI, 4 ; and VIII, 4. Lex Ro- 
mana Curiensis, ed. Zeiimer, in the Monumenta Ger- 
mania? Historica, Leges, V ; //. Bninncr, Deutsche 
Rechtsgeschichte, 1906, I 2 , especially 35 and 52 ; 
Savigny, Geschichte des romischen Rechts im Mittelalter, 
I, II ; K. Neumeyer, Die gemeinrechtliche Entwickelung 
des internationalen Privat und Strafrechts bis Bartolus, I, 
1901 ; A. von Halban, Das romische Recht in den ger- 
manischen Volksstaaten, I, II, III, 1899-1907 ; /. Picker, 
Untersuchungen zur Erbenfolge der ostgermanischen 
Rechte, I-V, 1891-1902 ; Leges Visigothorum, ed. 
Zeitmer, in the Monumenta Germania? historica, Leges, in 
4to ; Leges Langobardorum, ed. Bluhme, Mon. Germ, 
hist. Leges, fol. IV ; Formulae regni Francorum, ed. 
ZeumeY, in the Mon. Germ, hist., 4to ; H. Bmnner, Zur 
Rechtsgeschichte der romisch. germanischen Urkunde, 
1906 ; Fustel de Conlanges, Histoire des institutions de la 
France, especially Les origines du Systme feodal, 1890; 



ROMAN LAW 



P. Vinogradoff, Komanistische Einfliisse im Angel- 
sachsischen Recht: das Buchland in the Melanges Fitting, 
II, 1908 ; H. Fitting, Die juristischen Schriften des 
friiheren Mittelalters, 1876 ; M. Conrat, Geschichte der 
Quellen und der Litteratur des romischen Rechts im 
friiheren Mittelalter, 1891 ; /. Flach, Etudes d'histoire du 
droit Remain, 1893 ; Isidori Hispalensis Etymologise 
sive Origines, in the Corpus grammaticorum latinorum 
veterum, ed. Lindemann, III, 1833 ; Lex Romana 
Canonice Compta, ed. Conrat, in the Transactions of the 
Amsterdam Academy, 1904. 

WITHIN the whole range of history there 
is no more momentous and puzzling pro- 
blem than that connected with the fate of Roman 
Law after the downfall of the Roman State. 
How is it that a system shaped to meet certain 
historical conditions not only survived those 
conditions, but has retained its vitality even 
to the present day, when political and social 
surroundings are entirely altered ? Why is it 
still deemed necessary for the beginner in juris- 
prudence to read manuals compiled for Roman 
students who lived more than 1500 years ago ? 
How are we to account for the existence of such 
hybrid beings as Roman Dutch Law or of the 
recently superseded modern Roman Law of 
Germany ? How did it come about that the 
Germans, instead of working out their legal 
system in accordance with national precedents, 
and with the requirements of their own country, 
broke away from their historical jurisprudence 
to submit to the yoke of bygone doctrines of a 



DECAY OF THE ROMAN LAW 

foreign empire ? Surely these and kindred 
questions are well worthy of the attention of 
lawyers, historians, and students of social science. 
I cannot attempt to cover the whole ground in 
the discussion of such a problem, but it may be 
of some value to sketch the chief lines of the 
subject in regard to the principal countries of 
Western Europe during the Middle Ages. It was 
mainly at that time that there took place the 
momentous process, not inappropriately called 
by German scholars ' the Reception of Roman 
Law.' 

We shall have to deal with laws and law books, 
with doctrine and casuistry all topics devoid 
of romantic charm. But there is a peculiar 
interest, as I conceive it, in watching the play 
of social forces and human conceptions. I should 
like here to recall the words of one of the masters 
of modern historical study : " The history of 
Institutions cannot be mastered can scarcely 
be appreciated without an effort. It affords 
little of the Romantic interest or of the picturesque 
grouping which constitute the charm of history 
in general, and holds but small temptation to 
the mind that requires to be tempted to study 
the truth. But it has a deep value and an abiding 
interest to those who have the courage to work 
upon it." * 

We may call this interest a scientific one, 
* Stubbs, Constitutional History, Introduction. 
3 



ROMAN LAW 



because, although the methods of social science 
and of natural science are necessarily different, 
their aims are identical. Both strive to ascertain 
the causes of events in order to pave the \vay for 
the formulation of la\vs of development. 

i. The story I am about to tell is, in a sense, 
a ghost story. It treats of a second life of 
Roman Law after the demise of the body in which 
it first saw the light. I must assume a general 
acquaintance with the circumstances in which 
that wonderful doctrinal S3'stem arose and grew. 
My tale begins at the epoch of decay during 
which the Western Empire was engaged in its 
last struggles with overwhelming hordes of 
barbarians. It was the time when the new 
languages and nations of Western Europe were 
born ; when the races gathered within the boun- 
daries fixed by Augustus, Trajan, and Septimius 
Severus were permeated by Latin culture ; when 
the elements of Romance and Teutonic Europe 
were gradually beginning to assume some shape. 
The period may be studied from two opposite 
points of view : it was characterised by the 
Romanisation of the provinces and by the bar- 
barisation of Rome. As it is forcibly put by 
Lampridius in his Biography of Alexander Severus, 
the Roman world was crowded with undesirable 
aliens. Xo wonder that the standard of culture 
rapidly fell while the range of Roman influence 
was extended. We seem to watch a great stream 
4 



DECAY OF THE ROMAN LAW 

emerging into the expanse of a delta ; its waters 
become shallow, sluggish, and discoloured by 
the quantities of sand it carries with it. The 
gradual transformation of racial elements is 
especially manifest in military organisation. Sturdy 
Illyrians, Thracians, Goths, and Franks were 
substituted for the national legions of Italy or 
Gaul, and it was only through the influx of these 
recruits that the emperors of the fourth and fifth 
centuries were able to stave off temporarily the 
threatening catastrophe. The transformation of 
the army went so far that the expression ' bar- 
barian ' (barbanis] came to be commonly used 
in the sense of soldier. As pagan became an 
equivalent of heathen, instead of indicating the 
country folk, so barbarian was used in the sense 
of military man. Nor were the foreign soldiers 
merely individual recruits. They were settled 
in whole troops in the provinces, and their settle- 
ments were organised as separate administrative 
districts. The official Calendar of the Empire, 
the Notitia Dignitatum, mentions Iceti in Gaul ; 
we hear of Sarmatians and Suevi as Gentiles in 
Italy. Whole nations, such as the Burgundians, 
the Visigoths, the Ostgoths, the Franks, were 
admitted as allies (/vderati) within the limits of 
the Empire, and quartered in the provinces in 
a way that made them practically masters of 
a third, sometimes even of two-thirds, of the 
land. This influx of alien immigrants in the 



ROMAN LAW 



provinces of the West was bound to make itself 
felt in the legal domain. The Empire was forced 
to recognise to some extent the legal customs 
of the various tribes, and the idea of wiping out 
these customs in favour of the civilised law of 
Rome was never entertained. As evidence of 
this invasion of barbarian customs, we may 
quote the words of Bishop Theoderetos (middle 
of the fifth century). After having spoken of 
the unity of government and lav/ achieved by 
the Empire, he qualifies the statement by the 
remark that the Ethiopians, Caucasian tribes, 
and barbarians in general were left to follow 
their own legal customs with regard to transactions 
among themselves. This raises a question which 
came to lie of vital importance somewhat later, 
namely, how were members of different tribes 
to transact business when they met ? The 
supreme authority of the Imperial Courts and 
of Roman Law did not allow these divergences 
to assume a sharp and uncompromising aspect, 
but as alien customs were allowed within its 
boundaries, the principle that a man must be 
made answerable primarily to his own personal 
law existed already in germ in the closing cen- 
turies of the Western Empire. 

2. A second result of great moment was the 
fact that Roman Law, even so far as it was 
recognised and practised by the barbarians in 
the provinces, began to take the shape of a body 

6 



DECAY OF THE ROMAN LAW 

of debased rules. Though many of the character- 
istic institutions of Roman legal antiquity were 
still in vigour, they had ceased to represent a 
high level of juridical culture. Three principal 
statements of barbarised Roman Law arose at 
the close of the fifth and at the beginning of 
the sixth century : the Edicts of the Ostgothic 
kings, the Lex Romana Burgundionum, and 
the Roman Law of the Visigoths (Breviarium 
Alaricianum) compiled in 506 by order of King 
Alaric II. Of these three, the latter exerted the 
greatest influence. While the Edicts of the 
Ostgothic kings lost their significance after the 
destruction of their kingdom by the Byzantines, 
while the law of the Romans in Burgundy re- 
mained local, the Visigothic compilation became 
the standard source of Roman Law throughout 
Western Europe during the first half of the Middle 
Ages. The Breviarium Alaricianum purposed 
to be. and indeed was, a more or less complete 
Code for the usage of the Roman populations of 
France and Spain. And it deserves attention 
as evidence of the state to which Roman Law 
had been reduced by the beginning of the sixth 
century. 

It still testifies to considerable knowledge 
and experience. Its Latin is sufficiently pure ; 
it presents a reasoned attempt to compress the 
enactments of the later Empire into a compendium 
of moderate size. The texts are accompanied 



ROMAN LAW 



by an interpretation composed either just before 
Alaric's code, or in connection with it, and in- 
tended to make the sense of the laws as simple 
and clear as possible. It is not to be wondered 
that the Breviarium obtained a dominant position 
in European Western countries. The Corpus Juris 
of Justinian, which contains the main body of 
Roman Law for later ages, including our own, 
was accepted and even known only in the East 
and in those parts of Italy which had been re- 
conquered by Justinian's generals. The rest 
of the Western provinces still clung to the tra- 
dition of the preceding period culminating in 
the official Code of Theodosius II (A.D. 437). 
In the fifth century, lawyers had to take account 
of the legislative acts of Constantine and his 
successors up to 437, of fragments of earlier 
legislation gathered together in the private com- 
pilations of Gregorius and Hermogenes, of the 
" Novelise " of fifth-century emperors, and of 
a vast unwieldy body of jurisprudence as laid 
down in legal opinions and treatises of the first 
three centuries A.D. Even after the achieve- 
ment of the commissioners of Theodosius, the 
despairing remarks of Theodosius II on the state 
of the law in his time remained to a great extent 
true. One of the principal reasons of the "pallid 
hue of night studies of Roman Law," as he 
expresses it, was undoubtedly connected with 
the "immense quantity of learned treatises, the 
8 



DECAY OF THE ROMAN LAW 

variety of actionable remedies, the difficulties 
of case law, and the huge bulk of imperial enact- 
ments which raised up a dense wall of fog against 
all attempts of the human mind to master it." 
It was a rather fine performance of the "bar- 
barian " Visigothic king to attempt, in 506, 
with the help of his nobles, his clergy, and the 
representatives of provinces, to do for the Roman 
population under his sway what Justinian did 
some thirty years later with infinitely greater 
resources at his disposal for the Eastern Empire. 
3. The comparison with Justinian's Code is also 
instructive in other respects. Both Codes fall 
into the same three fundamental subdivisions 
that of the Institutes, of Common Law (jus), 
and of the Statutes (leges). The first consists 
of an introductory survey for beginners, the 
second of jurisprudential doctrines as laid down 
by legal authorities, and the third of the enact- 
ments of recent emperors. Each division is 
represented in the Breviarium. As a parallel to 
Justinian's Institutes, the Breviarium introduces 
an abstract from Gains. The choice of this 
authority was very appropriate, but it was neces- 
sary to revise Gains. And in the hands of Alaric's 
commissioners the introductory treatise served 
a purely utilitarian, not a scholarly, purpose. 
Accordingly, we find eliminated from the text 
all antiquarian notices such, for instance, as the 
distinctions between various kinds of free-born 



ROMAN LAW 



citizens, the Quiritcs, the Latini, the dediticii, 
although corresponding distinctions were main- 
tained as regards freedmen. Controversial matter 
was also omitted, and the text revised with a 
view to greater simplicity and clearness. Some 
important parts of the Institutes were surrendered 
in the course of this process of simplification ; 
for example, the teaching on sources of law, on 
the contrasting systems of the jus civile and the 
jits gentium, and the whole of Gains' treatment 
of actions. In all these respects the Visigothic 
version of Gains presents a complete contrast 
with the handling of Gains' text in the schools 
of grammar of the fifth-century Empire, as ex- 
emplified by the Autun MS. of Gains. 

This shrinking of the intellectual horizon is 
even more striking in the second subdivision, 
the part devoted to jus the legal doctrine and 
jurisprudence of common law, as we should term 
it nowadays. It consists, in Justinian's Corpus, 
of the stupendous collection of extracts from 
the great jurists of the first, second, and third 
centuries, known as the Digest. The barbarians 
were even more unfit to bear the weight of such 
a "mass of wisdom" (ad portandum tanta sap- 
icntice inolem) than the Roman citizens of the sixth 
century. The corresponding element in the 
Breviarium is represented mainly by an abstract 
from the sentences of one of the great third- 
century jurists Paul, and by a stray text from 



DECAY OF THE ROMAN LAW 

Papinian. The sentences of Paul were treated 
from the same point of view of practical usefulness 
as the Institutes of Gaius, although, as we are 
not in possession of a complete edition of the 
original work, we are unable to judge so well of 
the amount of text omitted by the Visigothic 
editors. Still, the general directions of the changes 
in the text can be ascertained, and these leave 
no doubt that discussions of too learned a char- 
acter as well as antiquarian notices were excluded. 
Thus the output of the older jurisconsults, 
Labeo, Scsevola, Sabinus, and their compeers, 
and nearly the whole of the admirable doctrinal 
work of Papinian, Ulpian, Modestinus, Gaius, 
and Paul, with the exception of the educational 
manuals of the two latter, went overboard at 
the time of the Visigothic codification, as too 
learned and too complicated for the age. This 
renouncement of the best inheritance of Roman 
Law by men who were themselves neither ignorant 
nor incompetent, speaks volumes for the great de- 
cline in the level of culture, and is especially remark- 
able in the provinces of Spain and Gaul, where 
there still existed a compact Roman population. 

A similar decay may be observed in the third 
part of the Breviarium, the part devoted to the 
leges, i.e. the enactments of emperors. The 
Breviarium makes its selection from a practical 
point of view. Omissions are again more char- 
acteristic than chancres. The substitutions of 



ROMAN LAW 



Curia for the provincial governor and of municipal 
justices (judices civitatitm) for the praetor arc 
not especially noteworthy. But, although all 
the sixteen books of the Theodosianus appear in 
some form or other in the Breviarium, it is im- 
portant to notice that the sixth, for example, 
treating of civil officers and their attributions, is 
represented by two enactments instead of thirty- 
eight, and the next one, the seventh, bearing 
on military organisation, by one law instead 
of twenty-seven. Such shrinkage is noticeable 
throughout ; in this case it arises not so much 
from a change of intellectual culture as from a 
difference in administrative arrangements and 
the decay of governmental institutions. 

4. The Breviarium Alaricianum consists of 
laws and rules that are in any case reasonable 
and tolerably well expressed. A later document 
of legal tradition, the Lex Romana Citriensis, 
of the end of the eighth century, testifies to a 
further and deeper decay. This is a statement of 
legal custom, drawn up for the Romance popu- 
lation of Eastern Switzerland, and used in the 
Tyrol and Northern Italy as well. Its language 
and contents arc most barbarous. Though the 
influence of Rome is manifest in the borrowing 
of legal institutions, the juridical treatment is 
in no way better, and often worse, than that of 
contemporary Prankish or Lombard legal customs. 

The law in question is based on a very imperfect 



DECAY OF THE ROMAN LAW 

abstract of the Lex Romana Visigothorum, in 
which the Institutes of Gaius and the greater 
part of Paul's Sententiae are dropped, while the 
enactments of emperors are generally taken 
from the text of the " Interpretation." To 
what extent some of these enactments were 
misunderstood by the Grisons ecclesiastics and 
judges, may be gathered from one or two examples. 
The latter actually had the courage to quote the 
"Novella " of Valentinian III on the use of the 
works of ancient jurisconsults.* There is not 
much harm in the fact that Gaius appears in 
their text as Gaggius and Scaevola as Scifola. 
But the emperor's direction that if opinions 
conflict, authorities should be counted, and a 
casting vote allowed to Papinian as the greatest, 
is interpreted by the Raetians to mean that every 
party to a suit ought to produce witnesses and 
oath-helpers, and if the number of these prove 
equal, the case must be decided in favour of 
the side whose contention is countenanced by 
Papianus. Even apart from the fact that Papianus 
is a corruption of Papinianus, originating in the 
Lex Romana Burgundionum, this reference to 
a legal authority, which was not even in use in 
the region in question, completes the muddle. 
And it is clear that the paragraph as it stands 
neither corresponds to the original nor could be 
put into practice. 

* See App. I. 

13 



ROMAN LAW 



There are many scattered traces of barbaric 
usage making its way into the debased Roman Law 
of the Rsetian country. Fredum, the price for 
peace obtained through the intervention of public 
authorities, appears here under the same con- 
ditions as in Prankish districts. The Dos, the 
possession of which was guaranteed to the wife 
of a criminal whose property had been con- 
fiscated, is the German dower, settled on the 
wife by the husband, not the Roman dos, brought 
by the wife to the common household. One 
of the enactments of the Theodosian Code and 
of Alaric's Breviarium on lawful marriage, em- 
phasising the importance of the consent of both 
bride and bridegroom, is stated in such a way 
that it is possible to catch a glimpse of a wedding 
ceremony performed before a judex, a ruler of 
some kind, and an assembly of neighbours (VII, 3). 
It is evident that we are in the presence of a 
rather debased and Germanised form of legal 
custom, engrafted on fragments of what had 
been once a system of Imperial law. 

5. We must next inquire in what way, and 
how far, the degenerated legal customs of Rome 
were applied in the early Middle Ages. It must 
be noticed firstly, that no State of this period 
was strong enough to enforce a compact legal 
order of its own, excluding all other laws, or treat- 
ing them as enactments confined to aliens. Even 
the most powerful of the barbarian governments 
14 



DECAY OF THE ROMAN LAW 

raised on the ruins of the Empire, such as the 
Lombard or Prankish, dealt with a state of 
affairs based on a mixture of legal arrangements. 
The Carolingian rulers and especially Charle- 
magne, introduced some unity in matters of 
vital importance to the government or to public 
safety, but, even in their time, racial differences 
were allowed to crop up everywhere. Law be- 
came necessarily personal and local in its appli- 
cation. Both facts must be considered in con- 
nection with the survival of Roman legal rules. 

The forcible entry of the Goths, Lombards, 
and Franks into the provinces did not in any 
sense involve the disappearance or denationalisa- 
tion of the Roman inhabitants. The legal status 
of the latter was allowed to continue. The 
personality of a Roman was valued in a peculiar 
way, differing from the barbarians that sur- 
rounded him. If it cost 200 solidi to atone for 
the homicide of a Frank, it cost 100 solidi to 
kill a Roman in Prankish Gaul. All intercourse 
between Romans was ruled by the law of their 
race. When a Roman of Toulouse married a 
girl of the same race, she brought him a dos in 
accordance with Paul's Sentential, II, 22, I ; 
he exercised a father's authority over his children, 
on the strength of the ancient custom of p atria 
potcstas, as modified by the laws of Constantine. 
If a landowner wanted to sell his property, he 
would do it of his own free will, according to 

15 



ROMAN LAW 



the rules of emptio venditio. If he wished to 
dispose of his property after his decease, he would 
be able to draw up a will making provision for 
bequests to be paid out by his heir, but carefully 
avoiding to bequeath more than three- fourths 
of his property, in conformity with the Lex 
Falcidia. In all these and in many other respects 
the legal rights of the Roman would be at variance 
with those of his German neighbours. These, 
again would act differently, each according to 
his peculiar nationality, as Salian Franks or 
Ripuarians, Bavarians or Burgundians, etc. The 
position became very intricate when members 
of different nationalities, living under different 
laws, were brought together to transact business 
with each other. As Bishop Agobard of Lyons 
tells us about 850, it happened constantly that 
of five people meeting in one room, each followed 
a law of his own. We find, in fact, in these 
cross-relationships very striking examples of so- 
called conflicts of law. Before proceeding to 
examine the material questions at issue, it was 
necessary for the judges to discover to what 
particular body or bodies of law the case be- 
longed. The report of a trial between the monas- 
teries of Fleury on the Loire and St. Denis pro- 
vides a good illustration of the points raised 
on such occasions. The case was brought before 
the tribunal of the Frankish Court. It was found 
necessary to adjourn it, because both plaintiff 
16 



DECAY OF THE ROMAN LAW 

and defendant were ecclesiastical corporations, 
and as such, entitled to a judgment according 
to Roman Law, of which none of the judges 
was cognisant. Experts in Roman Law are 
summoned as assessors, and the trial proceeds 
at the second meeting of the tribunal. The 
parties would like to prove their right by single 
combat between their witnesses, but one of the 
assessors of the court protests against the waging 
of battle, on the ground that such a mode of 
proof would be contrary to Roman Law. The 
point at issue is therefore examined and decided 
according to Roman rules of procedure, that is, 
by production of witnesses and documents. 
St. Bennet, however, the patron of the Abbey 
of Fleury, was seemingly prejudiced in favour 
of the Prankish mode of proof-by-battle, as he 
revenged himself on the too forward assessor 
by striking him dumb.* 

The rules as to allowing or disallowing recourse 
to one or the other personal law were necessarily 
rather complicated. For instance, the payment 
of fines for crimes was apportioned according 
to the law of the criminal, and not of the offended 
person. As regards contracts, each party was 
held bound by the rule of its own law ; but if 
the contract was accompanied by a wager, it 
was interpreted according to the law of the 

* Miracula S. Benedict! ; Mon. Germ., XV 1 , p. 490, 
quoted by Brunner, P, p. 394. ' 

c 17 



ROMAN LAW 



party making the wager. In the case of a con- 
tract corroborated by a deed (cart a), the legal 
form and interpretation depended on the status 
of the person executing the deed. Some cases 
were rendered more complex by the fact that 
the courts found it necessary to consider not only 
the legal status of the grantor, but also the quality 
of the disposable property. For example, in an 
Italian charter of 780, we find that a certain 
Felix makes a donation to his daughter, and 
receives from her a launegild, a compensation, 
according to Lombard Law, although, as a clerk, 
he is himself subject to Roman Law. The reason 
is that, while still a layman, lie received the pro- 
perty in question from his wife according to 
Lombard Law. 

6. The confusion resulting from such cross- 
relations of personal legal status was not lessened 
by the fact that in almost every jurisdictional dis- 
trict, local customs arose to regulate the ordinary 
dealings of its population. In districts with a 
clearly preponderating racial majority these cus- 
toms assumed a specific national colouring 
Lombard, Frankish, Roman, as the case might 
be. Local customs become in course of time a 
very marked characteristic of the Middle Ages. 
They tend to restrict the application of the purely 
personal principle, although the latter was not 
entirely abolished for a long time. The way in 
which the light of Roman legal lore was trans- 
18 



DECAY OF THE ROMAN LAW 

formed while breaking through the many-coloured 
panes of local custom was most varied. It is 
sufficient for our present purpose to note the geo- 
graphical boundaries of the regions where legal 
customs were built up on the basis of Roman 
Law. The area was a wide one. It covered, 
firstly, Southern Italy, where the Byzantine 
Empire upheld its authority, until the advent of 
the Saracens and of the Normans. Here the 
courts administered not only Roman Law as 
laid down in the Corpus Juris, but also the legis- 
lation of Justinian's successors. In the centre, 
the district forming the so-called Romagna was 
characterised by the application of Justinian's Code. 
Thirdly, in Southern France and Northern Spain, 
the Breviarium Alaricianum reigned supreme. 

Now, by laying stress on these geographical 
limits, I do not mean that Roman legal customs 
did not assert themselves outside the mentioned 
regions. On the contrary, throughout the proper 
domain of barbaric laws, in Northern France, 
in Germany, and even in England, the influence 
of certain Roman institutions was manifest in 
many ways. Even where there was no numerous 
Roman population to represent the Roman 
racial element, the clergy, at least, followed 
Roman Law, and many rules of the latter were 
adopted for their practical utility. 

Let us notice some of these borrowings of the 
barbarians during the early Middle Ages. 

19 



ROMAN LAW 



Roman influence was strongest in the case of 
the Goths. They had been in contact with the 
Empire at the time of its comparative strength 
in the third and fourth centuries. Their two 
chief branches were settled for a considerable 
time on Imperial soil as confederates, very un- 
ruly and dangerous confederates indeed, as Rome 
came to feel at the hands of Alaric I, but still 
as confederates who learned constantly from 
their civilised neighbours. In consequence of 
this long permeation of Roman customs and legal 
ideas, we find firstly, that the Ostgoths founded 
their legislation directly on Roman patterns, 
and secondly that the Visigoths of Spain and 
France adopted Roman enactments wholesale, 
apart from the fact that, as we have seen, they 
codified Imperial law for the use of their Roman 
fellow-citizens. Already in the fragments of 
the laws of Enric, the most ancient part of Yisi- 
gothic legislation (about 464), we find a number 
of paragraphs drawn from Roman sources, 
for example, the clause forbidding actions con- 
cerning events which had occurred more than 
thirty years previously (c. 277) ; the declaration, 
that donations extorted by force or intimidation 
(ri ant metn) are to be null and void (c. 309), 
a rule which breaks through the purely formalist ic 
treatment of obligations natural to barbaric 
law ; the admission of equality between men 
and women as to inheritance (c. 320), etc. Later 



DECAY OF THE ROMAN LAW 

on, during the sixth century, the influence of 
Roman rules becomes stronger and stronger. 
Entire sections are adopted by the Lex Visi- 
gothorum, from the Breviarium, the Novellas, 
and from customary laws of Roman origin which 
still lingered in the courts, in spite of the official 
codification of Alaric II. About one-third of 
the so-called antiqua goes back to Roman 
sources. As to the legislation of the great kings 
of the seventh century, Chindaswind and Recces- 
wind, who made an attempt to replace personal 
laws by territorial codes, the greater part of 
it is based on Roman patterns. It must, how- 
ever, be said of this overwhelming Romanisation 
that it is to some extent exaggerated in official 
laws. Picker's remarkable investigations have 
shown that there was a continuous stream of 
Germanic legal customs running counter to 
the Romanising tendencies of royal enactments, 
and maintaining rules and institutions which 
remind us strongly of Scandinavian custom, 
and evidently go back to a Teutonic origin. 
These Germanic elements emerge again in the 
later statements of provincial customs, the so- 
called Fueros. But, even if we allow for the 
existence of such an undercurrent of Germanic 
custom, the general inference is not destroyed 
that Roman legal lore had a most powerful in- 
fluence on the Visigoths of Spain and France. 
The history of the Lombards discloses a different 



ROMAN LAW 



state of affairs. The very large Roman popu- 
lation of Northern and Central Italy was neither 
destroyed nor entirely bereft of its legal inheritance. 
But the practice of its law was confined to volun- 
tary transactions and to forms of arbitration, 
resembling those which were in use among Chris- 
tians before the Church was recognised by the 
Empire. It is known that votaries of the Christian 
faith tried to avoid interference from heathen 
magistrates by settling their disputes through 
arbitration. Something of the same kind preserved 
the tradition of Roman Law in Lombard districts 
in the course of the sixth and seventh centuries, 
until it was laid down expressly by an enactment 
of Liutprand (cl. 91) that instruments made 
before Roman notaries should conform to the 
rules of Roman Law in the same way as Lombard 
deeds should be drawn tip according to Lombard 
Law. Although the existence of a body of Roman 
Law was indirectly recognised in this fashion, 
no provision was made, even after the above 
enactment, for the creation of Roman tribunals 
or the appointment of judges versed in this 
particular law. We are left to surmise that when 
cases necessitating the application of Roman 
rules came before the Lombard courts, the Ger- 
manic judges obtained help from assessors ac- 
quainted with Roman Law, and probably chosen 
from among those very notaries mentioned in 
Liutprand's enactment. 



DECAY OF THE ROMAN LAW 

Xow it is remarkable that although Lombard 
legislation thus remains true to its Teutonic 
origin as regards the contents of legal rules, 
it nevertheless lay open to the powerful in- 
fluence of Roman Law from two different sides. 
Firstly, the rapid growth of economic inter- 
course in Italy with its complicated relations, 
requiring nice adjustment, rendered a recourse 
to civilised law highly desirable, more especially 
as many parties to business affairs were people 
of Roman birth, and as transactions with citizens 
of the Exarchate and of Southern Italy living 
directly under Roman rule were of every day 
occurrence. This particular means of permeation 
is represented by the growth of Lombardic 
formula for the framing of contracts, which are 
evidently influenced by Roman patterns. A 
second path was laid open to the invasion of 
Roman ideas by the appearance of juridical 
reflection. In the legislation of the purely Lom- 
bard epoch at the beginning of the eighth century, 
we find already traces of jurisprudential analysis. 
There is, for instance, an enactment of Liutprand 
(c. 134),* treating of the ejectment of a landed 
proprietor by his neighbours. If, in the course 
of these violent proceedings, he suffers bodily 
harm, the offenders must, of course, pay the 
line for the homicide or wounding, but the legis- 
lator declares in addition that they are guilty 
* See App. II. 
23 



ROMAN LAW 



of conspiracy, and must be lined 20 solid! on 
that account. In analysing the case, Liutprand, 
or his legal advisers, explain why they decree 
such a fine and not another. They state their 
reasons for not considering the transgression to 
be one of ' arischild, ' that is, of forming an armed 
band (cf. Roth. 19, Liutpr. 35, 141), not a case 
of unlawful organisation of country folk (consilium 
rusticanorum, Roth. 279), nor of riot (rusticanorum 
seditio). It seems to the legislator that the 
material point in the case lies in the preparation 
to commit murderous assault. It is this intention 
which constitutes the criminal element in the 
conspiracy, and which may lead to the perpe- 
tration of the crime. In spite of the barbarous 
language, the mode of reasoning testifies to a 
rising level of juridical thought ; and, though 
a direct connection with Roman rules is not 
traceable, yet this and similar cases of legal 
analysis in Lombard legislation, suggest that 
Lombard justice was progressing from a naive 
application of barbarian rules to a reflective 
jurisprudence, and this undoubtedly opened the 
way for a consideration of Roman doctrine. 

In the Prankish Empire we have before us 
a third example of the process of permeation of 
barbaric law by Roman notions. The resistance 
to foreign law is stronger in this case than even 
in that of the Lombards. The Salic and Ripuarian 
Codes are based almost exclusively on Teutonic 
24 



DECAY OF THE ROMAN LAW 

principles. And yet there were many channels 
by which Roman legal ideas assert themselves. 
Firstly, there is the influence of the Church, 
which has left its mark more especially on Ba- 
varian law and on the capitularies of the kings 
and emperors of Carolingian race. Secondly, 
there is the influence of Roman rules on private 
transactions. In this field the barbarians left 
a wide margin for the settlement of legal diffi- 
culties by private agreements between parties, 
provided such agreements did not infringe some 
established or formulated rule of law. Large 
gaps in the barbaric enactments concerning the 
settlement of business matters had to be filled 
up, and this was achieved by extensive borrowing 
from Roman legal materials. Abundant evidence 
is afforded in this respect by the Prankish col- 
lections of formula, that is, ready-made models 
of legal instruments. Such ancient collections 
as those of Marculf, of Anjou, of Tours, are full 
of instruments framed on the pattern of Roman 
deeds ; and a history of barbaric legal instru- 
ments must start in every case from beginnings 
laid down by Roman precedents. To mention 
just one or two cases : a formula of Marculf 
shows clearly the breach made into Germanic 
customs of succession by the theory of the equality 
of sexes in regard to inheritance admitted by 
Roman Law : a lather bequeaths land to his 
daughter, in spite of the Salic Law reserving 

25 



ROMAN LAW 



land to the male sex (II, 10). The emancipation 

from slavery is mostly carried out according 
to Roman rules constituting a relation of clicnt- 
ship between the frecdman and his former master 
or to the Church, etc. 

Even England, the country least affected by 
Roman influence, does not form an exception 
in this respect. The Old English Books, which 
constitute grants of private property exempted 
from the application of Folkright, arc, to a great 
extent, a Romanesque importation effected by 
the Church in conjunction with the kings. Their 
chief aim was to substitute a form of property 
similar to that known to Roman Law, for the 
landownership restricted by tribal custom, which 
represented the barbaric mode of land tenure 
in England. 

7. The life of Roman Law in the barbaric 
states, as far as we have considered it hitherto, 
was upheld by the continuance of fragmentary 
and garbled rules derived more or less directly 
from the system formed during the prosperous 
periods of Roman civilisation. Can it be said 
that the barbaric successors of Papinian and 
Ulpian, of Marcus Aurelius and Constantinc, 
kept also up, to some extent, the threads of 
theoretical reflection and intelligent teaching, 
which in former days had served to combine 
separate details into a reasoned whole ? Is there 
a distinct stream of jurisprudence winding its 
26 



DECAY OF THE ROMAN LAW 

way through the dark ages from the fifth century, 
when western jurists took part in the codification 
and interpretation of Imperial Law, to the twelfth 
century when a body of learned doctrine sprang 
up again in Italy and France ? These problems 
have given rise to much controversy among 
modern scholars. We find such names as those 
of Stiritzing, Fitting, Chiapelli, on one side, and 
those of Conrat and Flach on the other. It is 
necessary to take up a position in regard to 
this discussion, even though there can be no talk 
of any detailed examination of the arguments 
adduced on both sides. 

To begin with, it seems clear that even legal 
learning, as distinguished from legal practice, 
did not entirely disappear with the downfall of 
the Empire. It survived to some extent together 
with other remnants of ancient culture, more 
especially through the agency of the learned 
classes of those days the clerical and monastic 
orders. The survivals in question, however, 
are not only slight and incoherent, but, as a 
rule, hopelessly mixed up with the attempt of 
the early Middle Ages to effect a kind of salvage 
of the general learning of antiquity. There arc 
no definite traces of organised schools of law. 
\Yhat legal learning there is remains connected 
with exercises in grammar, rhetoric, and dialectics. 
A striking example of the kind of work carried 
on in the course of the seventh and eighth cen- 
27 



ROMAN LAW 



turies is presented by the Etymologies or Origins 
of the Spanish Bishop, Isidor of Seville. It is 
an Encyclopaedia embracing all sorts of information 
collected from classical sources on arts, medicine, 
Old and New Testament topics, ecclesiastical 
history, philology, and law. The legal sections 
comprise, firstly, generalisations on subdivisions 
of jurisprudence, on the aims and methods of 
law, on legislators and jurisconsults ; and, 
secondly, notices as to substantive law on 
witnesses, on deeds, on the law of things, on 
crime and punishment, etc. All these matters 
are treated by excerpts from classical literature, 
from writings of jurisconsults, and from legal 
enactments. As is shown by the title, the author 
lays great stress on supposed etymologies for 
the explanation of institutions and rules. It is 
needless to say that the philological derivations 
compiled by him are sometimes fanciful in the 
extreme. In dealing with legal instruments, 
for example,* Isidor explains that donatio is 
the same as doni actio (the action of a gift), while 
dos (the marriage portion of the bride) comes 
from do item (I give likewise). And this quibble 
is referred to the fact that in effecting a marriage 
settlement the gift (of the bridegroom) comes 
first, while the portion of the bride follows second. 
In a similar way condition is derived from con- 
dictio (joint declaration), because the testimony of 
* See App. III. 
28 



DECAY OF THE ROMAN LAW 

not less than two witnesses can be accepted as 
evidence (V, 24, 25). There are also many direct 
misunderstandings, as, for example, when lie 
declares that edicts are enactments of kings or 
emperors, that -pecnlinm belongs to minors only, 
etc. It is characteristic of the state of legal 
knowledge in the early Middle Ages that these 
fragments were greatly appreciated and con- 
stantly copied and excerpted. 

The study of legal books was mainly limited 
to two narrow grooves. The leisure of clerical 
life was employed in this particular, as in other 
fields, in making abstracts from the voluminous 
productions of the Roman age, and in trying la- 
boriously to discover the literal meaning of ex- 
pressions. The abstract (Epitome) and the Gloss 
are the two channels for the tradition of learning 
in the course of this barren epoch. To illustrate 
the results achieved by abstracts, one may refer, 
for example, to the so-called Lex Romana Canonicc 
compfa, a compilation of Roman laws dating from 
the ninth century, in which the selection of ma- 
terials was primarily affected by the wish to 
provide members of the Church with rules of 
Roman Laws that might be of use to them. 

The work of supplying glosses goes on un- 
interruptedly from classical times right through 
the Middle Ages. The}' were the mediaeval sub- 
stitutes for translations and commentaries. Short 
renderings, etymologies and explanations were 
29 



ROMAN LAW 



inserted over the line to facilitate the interpre- 
tation of single terms or words, while longer 
summaries and notices were jotted down on the 
margin. The gloss to a Turin MS. of the Institutes 
and the gloss to the Epitome of the Codex in 
a MS. belonging to the Dean and Chapter of 
Pistoia (Tuscan}-), may serve as examples of 
this type of work. The first was compiled some 
time before the tenth century, and was based on 
translations of Byzantine notes to all parts of 
the Corpus Juris. The Pistoia gloss is more 
original. Its principal elements date also from 
the ninth century, but it was in use all through 
the tenth, eleventh, and twelfth centuries, and 
grew considerably by later additions. Most of 
the notes have been provided by a person of by 
no means contemptible intelligence. Though 
his direct borrowings from the Corpus Juris 
cannot always be traced, he shows in his sum- 
maries and in his explanatory remarks an under- 
standing of juridical questions, and is quite able 
to give the gist of a rule in his own words. For 
instance, the Epitome II, 12, 10, gives the words 
of an enactment to the effect that, if the representa- 
tive of a person (procurator) had lull powers to 
act in the hitter's behalf, a decision given against 
him in a trial ought to stand ; for, in the case 
of a fraud, the procurator might be sued by his 
principal (Si quid fraudi vel doli egit, conveniri 
cum more judiciorum non prohiberis). The gloss 
30 



DECAY OF THE ROMAN LAW 

notes shortly : "He who has full power to act 
can carry a matter to a conclusion unless he com- 
mits a fraud " (nota qui habet plenum potest- 
tatem agendi posse rcm sine dolo firmiter finire). 
The idea is the same as in the original, but is 
formulated from a different point of view. On 
the strength of these and similar observations 
we are able to maintain that there was a constant, 
though thin, stream of legal learning running 
through the darkest centuries of the Middle 
Ages, that is, from the fifth to the tenth. The 
existence of organised law schools is not proved, 
nor can there be any talk of a very active de- 
velopment of individual thought. But transcripts 
and abstracts from the fragmentary materials 
bequeathed by antiquity were made and studied 
in the scriptoria of monasteries or chapters and 
in the classrooms of teachers of Arts. 



LECTURE II 
THE REVIVAL OF JURISPRUDENCE 

Authorities : Savigny, Geschichte des romischen Rechts 
im Mittelalter, 11,111,1V; /. Picker, Forschimgen zur Reichs 
und Rechtsgeschichte Italians, 1868-74 ; N. Tammassia, 
Lanfranc arcivescovo di Canterbury e la Scuola Pavese 
in the Melanges Fitting, II ; H. Fitting, Die Anfange der 
Rechtsschule zu Bologna, 1888 ; Chiappelli, Lo Studio 
bolognese, 1888 ; Modderman, Die Reception des romischen 
Rechts, iibersetzt von K. Schurz, 1875 ; Quaestiones de 
juris subtilitatibus des Irnerius, ed. by H. Fitting, 1894 ; 
Summa Codicis des Irnerius, ed. by H. Fitting, 1894; 
Besta, L' opera di Irnerio, 1896 ; P. Kriigcr, Geschichte der 
Quellen und Litteratur des romischen Rechts, 1888 ; 
Tourtoulon, Placentin, 1896 ; Dissensiones dominorum, 
ed. Haenel, 1834 ; E. Landsbcrg, Die Glosse des Accursius 
und ihre Lehre voin Eigenthum, 1883 ; T. E. Holland, 
Vacarius, in the Dictionary of National Biography ; 
E. Liebertnann, Magister Vacarius in the English Historical 
Review, 1896 ; F. II'. Maitland, Vacarius' Summa de matri- 
monio, Law Qu. R., 1897; K. Wcnck, Magister Vacarius, 
1820; Stolzel, Ueber Vacarius, in the Zeitschrii't fi'ir 
Rechtsgeschichte, \'I (1867); It iv alt a, II rinovamento 
della giurisprudenza filosofica secondo la Scolastica, 1888 ; 
Jiii'alta, Dispute celebri del diritto Civile, 1895 ; Ed. 
Meynial, Encore Irnerius in the Nouvelle Revue de 
droit franfais et etranger, 1896 ; 5. Brie, Die Lehre voin 
Gewohnheitsreche, I, 1899. 

i. * I ""HE asjicct of legal studies begins to 

JL change in a remarkable manner about 

the eleventh century. This epoch witnessed 

several ne\v departures in the history of Kuro- 

32 



REVIVAL OF JURISPRUDENCE 

pean civilisation. The papacy achieved a de- 
cisive concentration of power during the pon- 
tificate of Gregory VII. Feudalism becomes 
crystallised into a complete and consistent system. 
The Norman states arise with the promise of 
efficient administration and political order. The 
foundations of Scholasticism are firmly laid 
in the age of Anselm. The commonwealths of 
Lombardy begin to earn the fruits of a brilliant 
economic and cultural progress. It is on this 
background of returning prosperity and growing 
self-reliance that we notice a spontaneous awaken- 
ing of jurisprudence of theory and learning 
in the field of law, and this awakening is not 
confined to one locality. At least four powerful 
centres of legal learning must be taken into 
account one in Provence, still a dependency 
of the Empire at that time ; the second in the 
cities of Lombardy ; a third at Ravenna, with 
its ancient Imperial traditions ; and last, but not 
least, the famous school of Bologna, the city 
at the crossways between the Romagna, Lom- 
bardy, and Tuscany. 

The most striking evidence of the awakening 
of jurisprudence in Southern France is afforded 
by a tract on Roman Law, called Exceptiones 
Petri, "Excerpts by Peter," composed some 
time in the latter half of the eleventh century 
and dedicated by the unknown author to Odilo, 
a ' vicarius ' (rigid 'er] of Valence in Dauphin e. 

D 33 



ROMAN LAW 



The opening passages of its prologue explain 
the scope of the work. " As it is not possible, 
even for scholars most learned in the knowledge 
of laws (etiam juris sapientissimis doctoribus) 
to come to a definite conclusion in regard to 
many and different kinds of cases on account 
of the large number of various scruples, let us 
unravel the results of juridical decisions and 
controversies by examining the reason of natural 
and civil law 7 . If anything in the law be disused, 
abolished, or contrary to equity (inutile ruptum 
aequitative contrarium), let us tread it under 
foot (pedibus concalcamus). Let us reveal to 
you, Odilo, magnificent master of the most 
splendid city of Valence, whatever has been dis- 
covered anew or tenaciously preserved. So 
that in the examination of your tribunal and in 
the terms of your acts there should not appear 
anything unjust or subject to provocation. 
But, that all corruption being removed, everything 
should be resplendent for the sake of the power 
of justice, of the glory of your dignity, and of the 
praise of supreme majesty." 

You will notice that this introduction, though 
couched in sounding language, is by no means 
a flight of empty rhetoric. Every word in it has 
a definite meaning, and its particulars are worthy 
of attention. The work of the " Exceptiones " 
has been prompted by practical considerations, 
by difficulties experienced, in the administration 

34 



REVIVAL OF JURISPRUDENCE 

of the law. It is not merely dedicated to a magis- 
trate of high standing, but is intended to give him 
help in the exercise of his office. His jurisdiction 
forms a link in a system culminating in an appeal 
to "supreme majesty," evidently, in this case, 
the supreme majesty of the Emperor. The ne- 
cessity of having recourse to a juridical manual 
is derived from frequent controversies and doubts 
among experts in law. The tract uses the ex- 
pression, sapientissimis legibus doctoribits, which, 
though it cannot be taken in the usual academic 
sense of doctors of laws, yet is full of meaning, 
even in the narrower sense used in our trans- 
lation. It implies a preceding period of study 
and discussion which would range into the earlier 
years of the eleventh century. This observation 
is well in keeping with the contents of the " Ex- 
ceptiones," which, for all their brevity and oc- 
casional misunderstandings, exhibit a remarkably 
ripe juridical judgment, as well as a considerable 
acquaintance with the sources of Roman Law. 

The author claims great power and responsi- 
bility with characteristic self-reliance. He does 
not scruple to "tread under foot" enactments, 
which, according to his view, have fallen into 
disuse, or are contrary to equity, and his only 
authority for such an act is that of a jurisconsult, 
of a learned exponent of legal doctrine. 

The execution of the work is not unworthy 
of the design. The " Exceptiones " form a short 

35 



ROMAN LAW 



manual of rules for practical use. Their materials 
are drawn from the Corpus Juris, and not from 
the Breviariutn Alaricianum. As the Provencal 
surroundings of the author cannot be called in 
question, we must infer that there was in the 
eleventh century, in the south of France, a 
marked revival in the study and application of 
the Law of Justinian, probably in close con- 
nection with Italy. All these parts of Justinian's 
codification have been employed, but it must be 
noticed that the Novelise are referred to through 
the medium of the so-called Julian's Epitome, 
made about the middle of the sixth century. 
As for the Digest, it is the so-called "Digestum 
vetus" (the first twenty-four books) which has 
been chiefly used, whereas the New Digest (books 
39-50) has been utilised much less frequently, 
and the middle portion (the Infortiatum) has 
hardly been touched. The practical bent of 
the author prevents him from ignoring the ex- 
istence of barbaric laws. He sometimes mentions 
customs based on Lombard and Prankish enact- 
ments, as, for example, when he states that a 
fine of 200 solidi is payable if someone squeezes 
out another's eyes. Although the amount of 
the fine is higher than is usual in barbaric Codes, 
the method of imposing fines is, of course, char- 
acteristic of early Germanic laws. Let us add 
that the Peter of the " Exceptiones " clearly 
realises that the territories north of the Alps 

36 



REVIVAL OF JURISPRUDENCE 

fall into two divisions, according to their relation 
to Roman written, and to customary, law. On 
one occasion he opposes the districts in which 
the ' most sacred laws ' are in force, that is, 
where the authority of Imperial law is recognised, 
to territories where the Codes are unknown 
(II, 31). Another time he distinguishes between 
laws, that is, written laws, and the custom of 
the country as far as it can be discovered (se- 
cundum patriae probabilem consuetudinem, IV, 3). 
We thus find in the south-east of France a dis- 
tinct centre of knowledge and reflection on the 
subject of Roman Law, characterised by a prac- 
tical tendency and developing on its own lines, 
although evidently influenced by intercourse 
with Italy. We shall remember this when we 
come to speak of the future development of Ro- 
man legal studies in France. The existence of 
this French centre of the legal revival helps to 
show that the more powerful and influential 
revival of Bologna was an event arising out of 
the spontaneous growth of ideas and require- 
ments in different localities of the more civilised 
regions of Europe. 

2. There is a second centre, as I have said, 
in the cities of Lombardy. The legislation of 
the Lombard kings, Rothari, Grimoald, Liut- 
prand, Rachis, Ahistulf, was not abolished by 
the Frankish conquest of 774. Lombard Italy 
continued to a great extent to develop on its 
37 



ROMAN LAW 



own lines, although merged in the Carolingian 
Empire and subjected to a certain amount of 
Prankish legislation. When, in the eleventh 
century, Northern Italy advanced to prosperity 
and political importance, due partly to the eco- 
nomic progress of its cities, and partly to the 
activity of Emperors and Popes, the interpre- 
tation of Lombard laws in tribunals made rapid 
progress, and assumed the character of systematic 
and reflective study. We hear not only of in- 
genious barristers (causidici) and of learned 
judges, but of actual schools, in which rival 
teachers gathered pupils and expounded the 
materials of Lombard and Franco-Lombard law. 
A mine of information is supplied by the inter- 
pretation of these enactments in the school of 
Pavia. This interpretation finds expression, 
to begin with, in questions and glosses, which 
not only employ the comparison of texts and 
reasoning, but also refer more and more frequently 
to Roman Law. Our texts show that one of 
the exponents of this method of interpretation 
was a certain Walcausus, whom we are able 
to identify in charters as a judge of the Imperial 
court, who held office in Verona about the middle 
of the eleventh century. It is worth noticing 
that the collections of glosses on Lombard law 
often oppose his explanations to those of the 
older group of interpreters of the law. The 
opinions of the latter were marked with the ab- 

38 



REVIVAL OF JURISPRUDENCE 

breviation a, meaning anliqui, but often ex- 
tended as amentes (the madmen), or even 
as asini (donkeys), while in the abbreviation 
for Walcausus, v is read valentcs the prevailing, 
those who get the better of it. The best insight 
into the method of Lombard jurisconsults is 
afforded by the so-called Exposition to the book 
of Pavia, a compilation of laws obtaining in 
Lombardy. It is an extended commentary based 
on the work of several generations of lawyers. 

The authorities on the old school of Pavia, 
anliqui, antiqni judices, antiqui cansidici, are re- 
ferred to on seventy-two occasions. Among them, 
the most prominent were Bonifilius, an assessor 
of the Imperial courts mentioned in charters 
from A.D. 1014 to 1055, and Lanfranc, the famous 
Archbishop of Canterbury, who, in his younger 
days, was a conspicuous light of the school of 
Pavia. He left it in 1042 for Normandy, where 
he became a monk and later abbot of Bee, before 
following William the Conqueror to England. 
As has been shown by a careful investigation 
of his later theological writings, he did not con- 
sign his juridical training to oblivion even in the 
time of his greatness in England. Of the younger 
Lombard jurisconsults, the most prominent were 
Gualcausus (Walcausus), mentioned above, Guilel- 
mus, and Ugo. To give you some idea of the way 
in which legal questions were put and contro- 
versies conducted by the Lombard doctors, 

39 



ROMAN LAW 



I will just refer to two of these disputes in which 
Lan franc took part. Guido of Spoleto, elected 
emperor in 889, had enacted that in case a charter 
was impugned as a forgery, the notary who had 
drawn it up, or, if the notary were dead, the per- 
son producing the charter, should defend it by 
calling up witnesses and swearing to its genuine- 
ness with twelve oath-helpers. Lanfranc is 
reported to have had the following encounter 
with Bonifilius about this enactment. He asked 
the latter what was to be done if the notary and 
the witnesses were dead. Bonifilius answered, 
" The party producing the charter can clear it 
with twelve oath-helpers and two other charters 
(required for the verification of the notary's 
handwriting)." To this Lanfranc said, " Is there 
no other custom but this ? " Bonifilius : "No." 
Lanfranc : " In this case the custom is against 
the law, as is shown by the prologue to Otto's 
laws, where it says that a detestable and dishonest 
custom, which ought not to be followed, has 
obtained currency in Italy." After this Bonifilius 
left with shame in his face and a bowed head. 
But Willelmus defined the meaning of the change 
with considerable ingenuity in the following 
manner. Otto's prologue had in view that some 
persons, greedy after other men's goods, acquired 
them by perjury. Therefore King Otto enacted 
that the plaintiff had the right to require the 
contention to be decided by battle. If he did 
40 



REVIVAL OF JURISPRUDENCE 

not do so, the defendant, who had produced 
the charter, was left free to defend himself by 
oath-helpers. It appears from this narrative 
that Lanfranc considered Otto's prologue to 
contain a general condemnation of the procedure 
of swearing oaths, and Bonifilius did not know 
how to meet the argument drawn from the later 
enactment of Otto. Willelmus, however, found 
a way out of the difficulty by applying the words 
" detestable custom " (nws detestabilis], not to 
the swearing of the oath, but to the practice 
of perjury, so that Otto's enactment was under- 
stood as completing, and not as abolishing that 
of Guido. The plaintiff had the option of choosing 
trial by battle, but if he did not do so, the older 
rule about the oath held good. In an amusing 
exposition to Grimowald, c. 8, Lanfranc is repre- 
sented as making fools of the disciples of Bonifilius 
by propounding to them the thorny question which 
of two wives had the right to a fourth part of 
their husband's inheritance after his death, if 
he had constrained his first wife to enter a monas- 
tery and married a second. The dialectician leads 
his interlocutors astray by putting before them 
six arguments of different kinds. They agree 
with him (bene dixisti) each time he brings for- 
ward one of these, and no sooner have they 
done so than he reproves them (immo male), 
and tacks on the opposite course, until at last 
lie arrives at the conclusion that the second wife 

41 



ROMAN LAW 



cannot be considered a lawful one, and has there- 
fore no right to the fourth part. The windings 
of this dialectic exercise give rise to lengthy de- 
velopments, which I cannot report here, but let 
us notice that in the course of the argument, 
Lanfranc not only draws on Lombard enact- 
ments, which he characteristically styles jus 
gentium, but also juggles with a direct quotation 
from the Institutes : on the strength of the law 
in the Institutes, which runs " Roman citizens 
contract lawful marriage," she cannot acquire 
the fourth part of her husband's property. This 
suggests the conclusion that the Lombard doctors 
considered Roman Law as the general or common 
law to which recourse must be made in all cases 
where Lombard enactments provided no ground 
of appeal. The rule is stated in so many words 
in the Exposition to Guiclo, c. 4 ; the ancients 
said that as the law did not contain any precepts 
on certain questions, such cases must be decided 
according to Roman Law, which is the general 
law of all (qua omnium cst gcncralis). This 
principle, exemplified in particular cases, is, of 
course, of primary importance. It shows that 
Lombard, barbarian, judges and jurisconsults 
had been led by the exercise of juridical dialectics 
to look to Roman Law for instruction and direc- 
tion. The controversies reported by the Ex- 
position are doubly interesting, inasmuch as 
they stand in close touch with the practice of 
42 



REVIVAL OF JURISPRUDENCE 

tribunals, and at the same time manifest tl.e 
beginnings of systematic teaching in law. We 
cannot say where and how these disputations 
were conducted, but the reports show that they 
were not simply encounters between barristers 
in pleading or differences of opinion between 
judges, but the outcome of school organisation. 
For this reason I do not think the designation 
" Lombard doctors " an inappropriate one. The 
principal place where these juridical studies 
were organised was Pavia, although the claims 
of Verona and Xonantula have also been urged. 

3. As against the mixed characters of these 
studies in Lombardy, where Roman and Germanic 
Law were blended, a legal school on purely 
Romance ground arose in Ravenna. There are 
some indications as to legal studies also in Rome, 
but it is impossible to discover whether the legal 
teaching there was carried on as a special faculty. 
As to Ravenna, definite evidence proves that a 
school of jurists took an active part in the struggle 
between Pope Gregory VII and the Emperor 
Henry IV. It stood on the Emperor's side, and 
supported Wibert of Ravenna (Clement III), 
the ant i- pope raised by Henry against his for- 
midable opponent. From Ravenna, Petrus Crassus 
launched against Gregory VII a violent pamphlet, 
armed with quotations from Roman legal sources. 
On the other side, the fiery Cardinal Peter Damiani 
inveighed against the iniquitous lawyers of 
43 



ROMAN LAW 



Ravenna. One of Damiani's writings, composed 
between 1061 and 1073, is especially characteristic. 
It treats of the introduction into legal practice 
of the Roman computation of relationship. 
The Florentines consulted the lawyers of Ravenna, 
who assembled in corpore and pronounced in 
favour of the Roman computation. Damiani 
reproves them angrily, and speaks with scorn 
of the wise men of Ravenna in congregation 
(Sapientes civitatis Ravenna in unum con- 
venientes), of their books (the Corpus Juris) 
and their Justinian. This passage and other 
indications substantiate a famous account of 
the rise of the Bolognese school, given by Odofre- 
tlus, a thirteenth-century Bolognese. According 
to him, the centre of legal studies was originally 
at Rome, but, in consequence of wars, it was 
transferred to Ravenna, and from Ravenna it 
came to Bologna. 

4. The immediate occasion for the creation of 
the great Bolognese school was provided by the 
endeavours of the famous Marchioness Matilda. 
As a staunch supporter of Gregory VII, she 
wanted to counterbalance the influence of the 
Imperialistic school in Ravenna by establish- 
ing a centre of studies in Roman Law that would 
act on the papal side. The first exponent of 
laws in Bologna had been a certain Pepo, who 
taught in the last quarter of the eleventh 
century. He is mentioned as a doctor of laws 
44 



REVIVAL OF JURISPRUDENCE 

in a notable judgment delivered in the court 
of Beatrice, Duchess of Tuscany, in 1076, in 
which the Digest was referred to and utilised 
for the decision. But the man with whose literary 
activities the rise of the Bologna law school 
has been traditionally connected, is, of course, 
Irnerius or Guarnerius. Originally a teacher of 
arts, he went to Rome at the instigation of the 
Marchioness Matilda, and, after having studied 
there for some time, began to lecture on law in 
Bologna. This happened towards the end of 
the eleventh century, perhaps about 1088. 

I need not dwell on the brilliant success of 
this teaching, and on the external circumstances 
attending the development of the Bologna school. 
It is well known that it soon became the leading 
university of the Middle Ages for the study of 
law, and that it attracted thousands of under- 
graduates from all countries of Europe. 

I should like to characterise briefly the spirit 
of this revival of legal studies. It presents at 
bottom an application to law of the method 
which was employed by the new scholarship of 
Western Europe for the treatment of all problems 
of theology and science the so-called scholastic 
method. The dark centuries preceding the year 
1000 A.D., when learning meant merely the sal- 
vage of fragments of ancient knowledge, were 
followed by a period when organisation again 
appeared. The great instrument for the advance- 

45 



ROMAN LAW 



ment of learning at that time was the dialectical 
process by which formal and universal logic 
analyses conceptions and constructs syllogisms. 
The permeation of the insufficient, fragmentary, 
classical texts by overwhelming logic was, in 
a sense, a masterly achievement, and the lawyers 
had more than their fair share in this work. 
While their fellows in the school of Divinity 
operated on Scripture and Canonic tradition, 
and the masters of arts struggled, by the help of 
distorted versions of Aristotle, with the rudiments 
of metaphysics, politics, and natural science, 
the lawyers exercised their dialectical acumen 
on a material really worthy of the name, namely, 
on the contents of the Corpus Juris. And as 
legal reasoning largely consists of dialectical 
analysis and co-ordination, they were able to 
produce remarkable results even at this early 
stage. 

It is not a matter of pure chance that the text 
of the Corpus Juris received critical attention, 
and was restored to completeness. For the doctors 
of the new study, the books of Justinian were 
sacred books, the sources of authority from which 
all deductions must proceed. It is not to be 
wondered that they were not content with casual 
fragments, but made researches into its com- 
ponent elements, and considered it as a whole. 
The use of the Pisa MS. of the Digest (now in 
Florence) was certainly of the utmost importance 
4 6 



REVIVAL OF JURISPRUDENCE 

for the reconstitution of a good text of the most 
valuable part of the Corpus Juris. But even apart 
from the study of that MS., the different elements 
of Justinian's codification were gradually saved 
from oblivion, and the Bolognese Vulgate, the 
version made up for use in the schools, is historically 
of no less interest than the Littera Pisana. Irnerius 
himself took a prominent part in the collection 
of Justinian's texts by replacing the fragments 
of the Novellae, hitherto quoted from Julian's 
Epitome, by the so-called Authenticum, a more 
complete Latin compilation of later date. Alto- 
gether, the critical examination of the state of 
the text was one of the chief preoccupations of 
the Bolognese scholars. 

The next was literal interpretation, and in 
this respect the Bolognese followed in the foot- 
steps of early mediaeval literary students. They 
became glossators par excellence, although the 
gloss is certainly not a weapon peculiar to them. 
But their glosses could not well remain between 
the lines as explanations of single words or short 
remarks. They naturally spread out on the 
margin, where there was more room for notes, 
that were not merely transliterations. With 
Azo and Accursius they grew to be consecutive 
commentaries, and at that stage, the period of 
glossators proper comes to an end (about 1250). 
It covered roughly 150 years. 

One of the ways in which the gloss was made 
47 



ROMAN LAW 



to illustrate the text was to summarise its con- 
tents in short sentences. Compilers of ancient 
glosses called such summaries notabilia. With 
the Bolognese they assumed a more distinct 
character as statements of juridical rules, and 
were nicknamed Brocardica. A collection of such 
brocardica was made in the school of Azo. 

Another common expedient, employed to give 
a systematic view of the divisions of an intricate 
subject, was the distinctio. Starting with a general 
term or wide conception, it indicated the different 
species subordinated to it, splitting each up into 
its subdivisions, and following these ramifications 
of sense and terminology into the most minute 
details. To take a very simple instance, it was 
done in this manner : 

( alias electus, ( major, f ordinarius. 

) alias! alias I 

I alias compromis- | minor, I delegatus. 

> sarius, 

This method had already been much in favour 
in the school of Pavia. 

All these simple processes of study were sub- 
ordinated to the dialectical analyses of texts, 
in which these were shown either to complete 
and support each other, or to contain gaps and 
contradictions. The latter case offered oppor- 
tunities for the exercise of the reputed scholastic 
ingenuity. And here it must be noticed that 
the earlier doctors, though most keen and clever 
4 8 



REVIVAL OF JURISPRUDENCE 

in their operations, generally contrive to explain 
the texts, while, later on, especially after Accursius, 
the construction of artificial arguments for its 
own sake begins to attract schoolmen. 

In any case the dialectical analysis of texts 
was the great work of the school of Bologna, 
and in this respect it attained an excellence 
which we cannot refrain from admiring even now. 
In its first period, that of the glossators, it de- 
veloped the theoretical side of teaching. It 
strove, according to its lights, to present as pure, 
clear, and complete a statement of Roman legal 
doctrine as possible. The mixture of Roman and 
barbarian elements, characteristic of the school 
of Pavia, and even of that of Provence, disap- 
pears. Irnerius, Placentinus, Azo, Accursius, 
reason as if the Lord Justinian was still holding 
sway over Italy, and all disputes were to be 
decided in his courts. The academic standpoint 
imposed limitations, but at the same time was 
a source of intellectual strength. It enabled the 
glossators to master thoroughly and in all direc- 
tions the materials of the Corpus Juris. A slight 
but significant sign of the extent to which these 
scholars became familiar with the texts is shown 
in their manner of quoting them. Instead of 
referring to chapter and verse, that is quoting 
book, title, law, and clause, as we do now, and 
as was done in earlier times, the glossators, 
following the lead of the school of Pavia, referred 
K 49 



ROMAN LAW 



to a passage by the rubric of the title, and some- 
times a reference to a book. For instance, in 
support of the rule that no one can reclaim his 
property by the procedure of condidio from 
anyone but a thief, they referred to Digest, 
iisufnictnarius quemadmodnm, last law, which, 
according to the modern mode of reference, 
would be Digest VII, 9, 12. This means, of 
course, that a doctor of Bologna was expected 
to have the entire mass of chapters' rubrics in 
the Corpus at his fingers' ends. Besides mastering 
the material and expounding it in a rational 
way, these jurists were fond of putting different 
cases for solution, as is done, for instance, in 
a tract entitled, Qnastioncs de juris subtilitatibns, 
attributed to Irnerius. As in the Lombard 
school, they delighted in controversies, and the 
trend of the more important disputes has been 
preserved to us, notably in a work on the Dis- 
sensiones dominomm, and in the great sum- 
marising glosses of Azo and Accursius. 

5. The school did not identify itself with any 
of the great political parties of the time. Though 
Irnerius began under the protection of the Mar- 
chioness Matilda, he changed sides after attaining 
success, and in the later part of his life was a 
palatine judge under Henry V. His successors, the 
four doctors Bulgarus, Martinus, Jacobus, and 
Ugo made the memorable declaration at the 
Roncaglia Diet of 1158 in favour of the Emperor 
So 



REVIVAL OF JURISPRUDENCE 

Barbarossa's right to tax the cities of Lombardy. 
In this case, however, they seem to have been 
actuated not so much by Ghibelline zeal as by 
their natural inclination to interpret the sources of 
Roman Law in a literal sense, and to attribute to 
them an actual bearing on the controversies of 
the twelfth century. These very doctors, however, 
were by no means agreed as to the limits of 
Imperial authority, and an anecdote of the schools 
tells us that when the Emperor Frederic was 
riding one day with Bulgarus on his right hand 
and Martinus on the left, he asked them whether 
the Emperor was not by right lord (domimis) of 
everything held by his subjects. One of the 
doctors, Bulgarus, had the courage to answer 
that he was lord in the political sense, but not 
in the sense of an owner. Some of the Bolognese 
jurists held staunchly to the Guelf party, as did, 
for instance, one of the most brilliant among them, 
Placentinus. But, of course, the natural bent of 
these men schooled in the law of the later empire 
inclined to the monarchical point of view. In 
any case they stood for a central authority as 
against feudal disruption, and although some 
of them made a study of feudal law, they treated 
it as a development of the Roman doctrine of 
emphyteusis. 

6. The best way to obtain some insight into 
the intellectual work of the glossators is, I think, 
to examine the teaching of one of them in some 

51 



ROMAN LAW 



concrete cases. I should like from this point 
of view to dwell somewhat on the doctrine of 
Vacarius, who, although by no means the most 
brilliant or influential representative of the 
school, deserves our special attention as a pioneer 
of the new learning in England. The external 
facts of his career are sufficiently known. He 
studied Lombard and canon as well as civil 
law, and has written on all three branches of 
contemporary jurisprudence, but he was princi- 
pally concerned with the teaching of Roman 
Law, and may be considered a fair representative 
of the earlier Bolognese jurists. He was attracted 
to England by Archbishop Theobald, taught in 
Canterbury and, according to Gervase's testi- 
mony, in Oxford. He was silenced for some time 
by Stephen, either because his teaching was 
considered dangerous to the authority of native 
legal custom, or because Stephen was jealous 
of the success obtained by a clerk of Archbishop 
Theobald, who maintained a hostile attitude 
towards him. Vacarius must have resumed his 
professional activity after an interruption of 
some years, and, in any case, his doctrinal in- 
fluence left a dee]") trace in Oxford, where the 
students of law came to be styled panpcristee, 
because their principal text-book was Vacarius' 
Book of Poor Scholars (Liber pauperitin). 

No complete edition of this work has ever 
been made, but it is sufficiently known, as several 



REVIVAL OF JURISPRUDENCE 

MSS. of it have come down to us, and some ex- 
tracts from his glosses have been published by 
Wcnck and Stolzel. The Liber pauper nm is a 
compilation of the Codex and of the Digest 
arranged for students who had not the means to 
acquire costly books, nor the time to make a 
prolonged study of Roman sources. The glosses 
are brief remarks inserted between the lines and 
on the margins. One of the earliest shows our 
author grappling with a difficulty in the applica- 
tion of the privileges of the Church concerning 
prescription. According to enactments of Justinian, 
ecclesiastical institutions were not debarred from 
asserting claims concerning property by the usual 
prescription of thirty years ; that common law 
period was extended for them to forty years, and 
the canonists asserted that the Church of Rome 
had a right to even a greater extension, namely, 
one hundred years. There was a lively con- 
troversy on the latter point among civilians, 
in which Vacarius did not take part, however. 
The Worcester MS. of his book simply gives an 
extract from Nov. 9 as to the hundred years' 
privilege of the Church of Rome, and does not 
go into the question how far it was abrogated 
by Nov. in. But our author does not fail to 
notice a question as to the juridical application 
of the privilege. \Yas it possible to plead the 
thirty years' prescription against the Church if it 
had acquired property from a private person who 

53 



ROMAN LAW 



had not asserted his right within the thirty years 
allowed by common law ? One set of lawyers, 
as Vacarius' gloss tells us, replied in the negative, 
because no one can pass a right he does not possess. 
But our glossator notices also another opinion 
that the privilege of the Church is derived from 
its own peculiar position, and was not to be made 
dependent on the passing of a right by an out- 
sider. This is how I understand the short re- 
mark in Vacarius' Libey pauperum, and it may 
serve as an example of the juridical queries 
which constantly presented themselves to the 
attentive student of Roman legal authorities. 

The next section, devoted to a commentary on 
D. i, 3, intituled "on laws, enactments, decrees 
of the senate and long custom " Ac Icgibus, consti- 
tiitionibus, senatns consultis el louga consiietudine), 
is of greater general interest ; it treats, according 
to an explanatory gloss, of laws about laws, which 
are contrasted with laws about business matters 
(leges legion leges negociorum). Vacarius treads 
here on ground occupied by the most vital prob- 
lems of jurisprudence. The glossators were 
greatly exercised by the fundamental question 
of the relation between law and equity. I have 
already had occasion to notice the radical point 
of view of the Exceptiones Pctri. The author of 
this Provencal text-book does not scruple to 
tread under foot positive rules of law which 
seem to him obsolete or contrary to equity. 
54 



REVIVAL OF JURISPRUDENCE 

And he is by no means alone in taking up such 
a position. The author of a tract on subtle 
questions of law of Irnerius describes graphically 
in his prologue a wall on which are engraved 
texts of law. Honourable men in great numbers 
frequently approach this wall and study the 
texts diligently, so that enactments which do 
not conform with equity may be taken as can- 
celled. In the manual of a MS. of Troyes (Summa 
Trecaisis),* representing one of the first steps 
in the jurisprudence of the epoch of glossators, 
we are told that laws have to be interpreted in 
a humane way, so that their meaning may be 
preserved, and there should be no discrepancy 
with equity ; the precepts of laws should be 
admitted only if they tally with equity (Summa 
Trecensis, I, 14, 6, 7). On the other hand, 
Irnerius himself, as a genuine gloss of his testifies, 
saw a danger in such a wide power to modify 
law on the part of the judge, f He considers equity 
as the mere enunciation of a principle of justice, 
whereas law propounds the same principle as 
the expression of a will, that is, with a certain 
admixture of authority. Both differ considerably 
through the weakness of human nature ; law 
contains partly more and partly less than is 
ordained by equity. They differ also in many 
other ways, and the interpretation of their dis- 
crepancies, if it is to have force of law, appertains 
* Fitting attributes it to Irnerius. f App. IV. 

55 



ROMAN LAW 



to sovereigns only. From what we learn of the 
teaching of Bulgarus, he stood up for a stricter 
interpretation of law, while Martinus and his 
pupil, Placentinus, inclined towards more lax 
interpretation. 

It is interesting to see that Vacarius' position 
in this controversy is indicated by a short but 
interesting gloss.* He starts from the doctrine 
that the Emperor is the only originator and in- 
terpreter of law. In his case lawgiving is the out- 
come of his will, while others, that is, subordinate 
magistrates and judges, may have to lay down 
the law from necessity. This being so, one need 
not wonder at the maxim that the sovereign is 
not bound by the law (legibits solittits) ; law itself 
is the creation of his will. And further, when a 
judge interprets law, his interpretation holds 
good merely in the case of litigants before him, 
and in so far as they have no legal remedy at 
hand against his decision. Thus interpretation 
modifying the legal rule itself is reserved to the 
action of the legislator, and not conceded to the 
judge. Any discrepancy between equity and law- 
has therefore to be removed by legislative means, 
while the power of the judge does not reach 
further than the dispute immediately in hand. 

The same reverential attitude towards sovereign 

authority underlies the teaching of Vacarius on 

legal custom. The glossators were again divided 

* App. V. 

56 



REVIVAL OF JURISPRUDENCE 

on this point. According to one view the people, 
having surrendered its legislative power to the 
Emperor, custom is subordinated to law, and the 
latter cannot be repealed even by disuse. From 
another point of view, popular custom appears 
as the survival of the legislative authority of the 
people, and this justifies the modification of 
express laws by custom. A gloss of Vacarius 
bears on this difference of opinion. His contention 
is that things are generally dissolved by the same 
process by which they have been created. An 
enactment may be made, and will hold good 
even against the wish and protest of the people. 
Therefore it cannot be abrogated by custom, 
unless the people has resumed Imperial authority 
and power by depriving the sovereign of them. 
The last words contemplate a possible resumption 
of power by the people an interesting conception 
by no means uncommon during the Middle Ages. 
But this part of the doctrine is not developed 
further, whereas the initial remarks are in com- 
plete harmony with the part assigned by Vacarius 
to the legislative omnipotence of the sovereign. 

The above-mentioned passages may be suf- 
ficient to show what a lively intercourse of ideas 
was taking place among these twelfth-century 
scholars. Their discussions were conducted very 
much on academic lines, but it is clear that the 
interests of actual life were by no means without 
influence on the setting and solution of their 
57 



ROMAN LAW 



problems. Judicial interpretation, the influence 
of custom, the part played by the idea of sove- 
reignty, in the formation of law all these ques- 
tions had, besides their intrinsic jurisprudcntial 
value, a special interest for men who were moving 
in a society where the elements of law and political 
order had to be, as it were, discovered anew. 
The theorists framed their definitions and dis- 
tinctions in too rigid a manner ; yet they helped 
materially to disentangle the general conceptions 
of law from the chaotic uncertainty of a blind 
struggle for existence. 



LECTURE III 

ROMAN LAW IN FRANCE 

Authorities : Brachylogus juris civilis, ed. Backing, 
1829 ; Lo Codi, ed. H. Fitting und H. Suchier, 1906 ; 
E. Littcn, Ucber lo Codi und Seine Stellung in der Ent- 
wickelung des Culpa Problems in the Melanges, Fitting, 
II, 1908 ; A. Tardif, Histoire des Sources du droit fran- 
ais; Origines romaines, 1890; /. Brissaiid, Histoire du droit 
fraiifais, 1899 ; P. Viollct, Histoire du droit civil fran9ais, 
1905 ; Esmein, Histoire du droit fraii9ais, 8 ed. 1907 ; 
P. Viollct, Les etablissements de St. Louis, I-IV, 1881-6 ; 
Ch. Guiraud, Essai sur 1'histoire du droit fraii9ais au 
moyen age, 1846 ; Beaumanoir, Coutumc de Beauvaisis, 
ed. Salmon, I, II, 1899 ; P. Van Wetter, Le droit remain 
et Beaumanoir in the Melanges, Fitting, II, 1908 ; Ed, 
Meynial, Des renonciations au moyen age et dans notre 
ancicn droit, in the Nouvelle Revue historique de droit 
francais et etranger, 1900, 1901, 1902, 1904; Bordier, 
Philippe dc Remi, sire de Beaumanoir, 1869. 



i. T HAVE already had occasion to notice 
J. several facts which show that Italy \vas 
by no means the only country in which signs of a 
revival of civilisation appeared in the eleventh 
century. France was also on the way towards 
new ideals of culture and learning. If Italian life 
was preparing for the rise of Bologna, French 
life was gathering strength for the glory of the 
University of Paris. The course of the latter 
was dedicated to the arts, divinity, and canon 

59 



ROMAN LAW 



law, but the great scholastic movement, consisting 
in the concentration of studies, was nowhere more 
powerful than in Paris, and it could not but 
react on legal learning. It showed a growth of 
intellectual power which by itself was bound to 
benefit indirectly the study of laws. And indeed, 
we find many products of French scholarship 
dedicated to law at the same critical period when 
the Italian school was gradually taking shape. 
Besides the Exceplioncs Pclri, already mentioned 
above, I should like to call attention to the work 
of Ivo of Chartres (about noo). His Dccrdnm 
and his Panormita show a minute acquaintance 
with Roman legal sources and more especially 
with Justinian's codification. Another valuable 
legal book of French origin is the Brachylogits 
juris civilis, a very clear and learned manual for 
the teaching of Roman Law, probably composed 
in the first quarter of the twelfth century ; though 
showing traces of the influence of the glossators, 
it still remains original in its method of arranging 
material and stating rules. 

The most interesting contribution of France 
to the revival of Roman Law is the recently 
discovered summary of Justinian's Code, com- 
piled for the use of judges in Provence, the so- 
called Lo Codi. Like the Exccptioncs Pclri, it 
originated in the south-eastern corner of France, 
probably in Aries, which in the twelfth century 
was a dependency of the Empire. An allusion 
60 



ROMAN LAW IN FRANCE 

to the possible capture of Fraga, a fortified town 
in the March of Barcelona, enables us to fix the 
date of its composition as about 1149. Certain 
Provencal expressions occur in the Exceptiones 
Petri, but Lo Codi was written entirely in the 
Provencal language, and presents therefore the 
first treatise on Roman Law composed in a native 
dialect. The Provencal text has not been pub- 
lished yet, but Professor Suchier of the University 
of Halle is preparing an edition of it. A Latin 
translation, made by Ricardus Pisanus some time 
before 1162, is already in our hands, thanks to 
the industry of Professor Hermann Fitting, the 
leading representative of the study of Roman 
Law in the Middle Ages. 

Lo Codi stands already under the influence of 
the glossators. It follows closely a summary of 
the Codex extant in a MS. of Troves (Snmma 
Trecensis) and attributed by Fitting to Irnerius 
himself. The authorship of Irnerius cannot be 
proved, but the Snmma Trecensis is, in any case, 
a fair sample of an early glossator's work. The 
compilers of the Codex have also utilised a Summa 
Codicis of Rogcnis, a glossator of the third genera- 
tion. It seems, in fact, that Rogerus personally 
took part in the compilation of the Codi. Yet the 
Codi has distinctive features which on the one hand 
distinguish it from the Bolognese books, and 
on the other hand connect it with the tradition 
of the Fxceptiones Petri. It is written not for 
61 



ROMAN LAW 



academic use, but for the courts, and more par- 
ticularly for laymen acting as presiding judges or 
arbitrators ; it is absolutely free from pedantry 
or abstruse argument ; it aims chiefly at clearness, 
and at easy access in case of reference. Cases 
likely to occur in common practice are constantly 
put. Lo Codi is, in short, a manual for immediate 
use, somewhat resembling the books of reference 
of modern justices of the peace. I will give one 
or two instances in illustration of its treatment 
of the subject. 

The rules as to the responsibility of a person 
using goods belonging to another greatly exer- 
cised the ingenuity of Roman lawyers. The 
borrower was, of course, answerable for fraudulent 
misuse (dolus), but how far was lie answerable 
for negligence (citlpa) ? Xervu, as reported by 
Celsus, had laid down that gross negligence 
(citlpa latior] is equivalent to fraud, and con- 
stitutes a breach of good faith. But what is to 
lie taken as the measure of gross negligence ? 
The Codi points to some palpable absurdities to 
illustrate the general meaning of gross negligence. 
It arises when a person thinks that what is noxious 
to everyone else is innocuous to him, as, for ex- 
ample, if I leave a book out in the rain and do not 
consider that it is sure to be damaged, or if I lead 
a horse, entrusted to my care, by places that I 
know to be the haunts of robbers and thieves. 
Such acts constitute gross negligence, and I must 
62 



ROMAN LAW IN FRANCE 

compensate for any damages resulting from it. 
But it is not sufficient to point to extreme absurdi- 
ties. In practice, much will depend on the stand- 
ard of reasonableness. And although the Codi 
does not follow the Roman lawyers in tracing 
minutely the differences between culpa, culpa 
latior, and dolus, it is very careful to set up a 
standard of reasonable care and to make it as 
practical as possible. Classical jurisconsults were 
divided : some held that a minimum of average 
care was sufficient to avoid direct responsibility 
for damage, others that the party to a contract 
was bound to exercise a high degree of diligence, 
to act as a good householder (bonus paterfamilias) 
and as a \\ise man (sapiens) would have done 
under the circumstances. The compilation of 
Justinian and the early glossators did not pay 
much attention to the controversy, and failed 
to provide definite rules for the guidance of 
practitioners. Not so the Codi. From its emi- 
nently practical standpoint, the question as to 
the proper standard was of much greater import- 
ance than the abstract derivation of culpa. It- 
declares for a standard of high efficiency : it 
amounts to culpable negligence if I have not taken 
care of borrowed goods as a wise man would have 
done (sicut facer et aliqiris sapiens homo, IV, 69, 9 ; 

cf. IV, 55. 3)- 

Let us take another instance, showing to what 
extent the abstract doctrines of Roman Law were 



ROMAN LAW 



influenced by customary rules and local condi- 
tions. In the treatment of damages occasioned 
to someone by another person's fraud or deceit 
(fraude vcl inganno, II, 10), the Codi follows, in a 
general way, the doctrine laid down in Justinian's 
Code, II, 20. But it introduces variations in 
point of detail. It starts from an important 
distinction. If the deceiver induced the ag- 
grieved party to enter into an unsound trans- 
action, as, for example, to make a contract on the 
strength of false information, the contract must 
be rescinded at the request of the aggrieved party. 
If I have sold goods to a man who has deceived 
me as to the price, I may claim the difference be- 
tween the diminished price and the fair value. 
If I did not wish to sell at all and have been 
induced thereto by fraud, the sale is of no effect 
whatever. Should fraud be employed without 
any reference to a contract, compensation must 
be made if the damage done is considerable not 
less than two byzantes. In insignificant cases 
no action is allowed, but there may be important 
cases in which indemnity ought to be granted. 
For instance, a person called his brother to his 
death- bed and said to him, "Brother, be you my 
heir, and if you are not my heir, my wife shall be." 
After the death of the testator, the widow cir- 
cumvented the rightful heir by fraudulently per- 
suading him not to accept a ruinous inheritance. 
\Vhen he followed her advice she took the inherit- 
6 4 



ROMAN LAW IN FRANCE 

ance and holds it. This is a case for indemnity, 
although not connected with any particular 
contract. The whole setting of the case and of 
the distinctions is evidently coloured by actual 
practice, and is not merely copied from Justinian's 
Code or from the summaries of the glossators. 

2. We have thus in the Provencal Codi an 
excellent example of the intelligent and practical 
use of Roman Law in a region where this law 
was recognised as the principal legal authority. 
But the influence of Roman sources stretched 
much further. It affected materially the state 
of the law in parts of France governed by 
customary laws derived to a large extent from 
German tradition. Here the process of trans- 
formation is especially suggestive. It does not 
start with the acceptance of an external authority 
from which all changes in detail should be derived, 
but from a kind of struggle for existence between 
concrete rules and institutions of German and of 
Roman origin. 

Naturally the initial move in this case came from 
the spread of knowledge. It was necessary to 
study Roman Law before applying it, and it is 
material from this point of view that the Bolognese 
school not only attracted foreigners, and, among 
them, many Frenchmen, but also that it sent 
forth disciples into France. One of the most 
brilliant glossators, Placentinus, disgusted with 
Bologna, became a famous teacher of the law 
F 65 



ROMAN LAW 



school at Montpellier. The legal faculty there 
was situated in the "pays de droit ecrit," in the 
region dominated by Roman Law, but it also 
served as an influential centre for the rest of 
France. There can be no doubt that the rise of 
this rival of Bologna on French soil greatly con- 
tributed to the development of jurisprudence, 
and to the progress of law itself, during the event- 
ful centuries when both England and France 
evolved the fundamental institutions of their 
national law. Later on, the school of Orleans, 
organised in 1312 by Philip IV, became the 
authoritative representative of legal teaching in 
the "pays de droit contiimier," but this official 
step had been prepared by the activity of legal 
writers and by academic influence, first in Mont- 
pellier and then in Orleans itself. 

The reign of St. Louis is as conspicuous for the 
progress of legal institutions as for its two crusades 
and its brilliant feats of chivalry. Trial by battle 
is relegated to the background in the Royal courts, 
and the production of evidence takes its place, 
while the organisation of the Parlement of Paris 
assumes a systematic and well-developed form. 
To this juridical revival two principal causes can 
lie assigned the growth of royal authority and 
a diligent study of Law. As we arc concerned 
with the latter, let us notice the appearance 
of the Conscil a mi aini (advice to a friend) 
of Philip of Fontaines, bailli of Vermandois, 
66 



ROMAN LAW IN FRANCE 

His work testifies to an eager interest in, 
and a very poor understanding of, written law. 
Fontaines simply copies passages from the Digest 
and from the Institutes without being able to 
co-ordinate or interpret them. More curious is a 
production of the Orleans school, the Book of 
Justice and Pleading (le lime de justice et de plaid). 
Of its 342 clauses, 197 are borrowed from Roman 
sources, while the rest are of customary origin. 
The unknown author, perhaps a professor of the 
Orleans school, tries to enliven his dry subject 
by numerous references to the sayings and doings 
of the great personages of his time ; but these 
references turn out to be fictitious somewhat 
resembling similar references to King Alfred and 
Anglo-Saxon judges in the English Mirror of 
Justices. A passage from Ulpian appears, for 
example, under the name of King Louis himself, 
and quotations attributed to Renaut de Tricot, 
Geoffrey de la Chapelle, and other worthies, are 
not more genuine. 

Next comes a private compilation which 
achieved a great reputation and influence under 
the name of the Etablisscments de Saint Louis. 
Only its first nine chapters are drawn from the 
Ordinances of St. Louis. The other paragraphs 
of the first book present a statement of a custom 
of Touraine-Anjou, while the second book consists 
of a custom of the Orleanais. The compiler has 
patched these two records of customary law with 
67 



ROMAN LAW 



extracts from Justinian's Corpus Juris, but even 
when these are removed, the influence of Roman 
rules remains distinctly traceable, especially in the 
Orleans custom. 

3. The most interesting document of French 
juridical revival under the influence of Roman 
Law is the remarkable Coutume de Beauvaisis, 
compiled by Philippe de Remi, Sire de Beau- 
manoir, between 1279 and 1283, some ten or 
fifteen j-ears later than Bracton's great treatise 
on the Common Law of England. Beaumanoir had 
been bailli, that is, judge and deputy governor, of 
the county of Clermont in Beauvaisis, which 
belonged to Robert de Clermont, the sixth son of 
St. Louis. He was a man of extraordinary ability, 
learning, and varied experience. He had served 
in England in his early youth and has left not 
only the juridical tract already mentioned, but 
poetry, including a poetical romance describing 
the adventures of a French knight, Jehan, and a 
fair lady of Oxford, Blonde d'Oxford. His 
originality of mind did not fail him when he 
came to treat of legal topics, and his Coutume de 
Beauvaisis is one of the most refreshing legal 
treatises in existence. He knew his Roman Law 
thoroughly, and used it with the freedom and 
dexterity of one who had mastered its contents 
and was not a slave to its superior authority. 

In order to judge of the influence exerted by 
Roman Law on the legal usage of Northern France, 
68 



ROMAN LAW IN FRANCE 

we can hardly do better than consider in some 
detail the teaching of Beaumanoir on a few sub- 
jects of legal doctrine. 

Beaumanoir 's prologue * to his work is well 
worth notice. He does not hope to impress the 
reader by his personal authority, and even con- 
ceals his name until the end of the book, so that 
the good wine he offers may not be left untasted 
because of its poor "etiquette." We need not 
take the author's modesty too literally, but this 
much is certain : he sets himself a carefully 
restricted and unambitious aim. He wants to 
give primarily the substance of local custom in 
his own place Clermont in Beauvaisis, because 
he is well acquainted with it, while the further he 
goes from his district, the less he can vouch for 
the accuracy of his knowledge. Therefore, if he 
can base his information on actual judgments or 
ascertainable custom of Clermont, he will rely 
first of all on them, and only when doubts arise 
as to local custom, will he turn to the custom of 
neighbouring lordships or even to the common law 
of the kingdom of France. The point of view is 
characteristic of a French lawyer of a period 
which may still be called feudal. It is exactly 
opposed to the method of Bracton, who, strong in 
the judicial authority of Royal courts, sets out 
to describe the common law of England and 
refers to local custom only as a subordinate source 
* A pp. VI. 
69 



ROMAN LAW 



of information. This being so, what is the mean- 
ing attached to the term "common law" by 
Beaumanoir ? It occurs several times in his 
treatise, and can only mean legal rules generally 
accepted throughout the realm of France, for 
example, the rule that a husband disposes of his 
wife's property during their married life. This is 
not a rule especially expressed in Beauvaisis cus- 
tom or established in the tribunal of Clermont, 
nor is it a rule in strict correspondence with 
Justinian's law, but is the view generally pre- 
vailing in France, and, I presume, acted upon by 
Royal courts such as the Parlement of Paris (cf. 
552 on wardship). From this and other in- 
stances it is clear that Beaumanoir 's use of the 
term is a much more lax one than that of Bracton. 
Whereas for the latter the common law of Eng- 
land is primarily substantiated and exemplified 
by the decisions of the Royal courts of justice, 
the French jurists seem to look more to the 
comparative evidence of divers customs, aim unit- 
ing to what might be termed a law common to all 
French territories. Some of the MSS. of Beau- 
manoir have actually expressed as much in the 
text of the passage in question. An appeal to the 
decision of Royal courts, of the Parlement of 
Paris, is not excluded, but is not indicated as 
necessary (cf. 3/4). As for a possible reference 
to Roman Law, it cannot have been the meaning 
of the author to speak of it as the general or 
70 



ROMAN LAW IN FRANCE 

common law in the same sense as, for instance, 
Lombard jurists had done. Roman Law as such was 
not recognised within the territory of customary 
law. It applied only when it had been accepted 
by the jurisprudence of local courts, by local 
custom, or general custom. This seems clearly 
proved by t\vo considerations ; firstly, by an 
express declaration that reasonable men ought to 
follow their own customs and not " ancient laws " 
of which they do not know enough ; and, secondly, 
by the fact that Beaumanoir's prologue is con- 
structed on the same lines as a passage of Julian's 
in the Digest, but that he intentionally differs 
from it as to the decisive point. Where Julian 
has recourse to the Law of Rome, Beaumanoir 
says, "common law of the kingdom of France," 
or " the customs of France." 

4. I dwell on the analysis of this prologue 
because it affords the best clue to the interpreta- 
tion of Beaumanoir's references to Roman Law. 
He does not accept them on authority, and yet 
he draws constantly on Roman rules in so far 
as they have been already accepted by French 
legal custom or jurisprudence. Consequently, he 
never once quotes from Roman books, and yet his 
expressions frequently follow the exact wording 
of these same books. To put it shortly, he deals 
largely, not with written law itself, but with 
customary law partly derived from Roman 
origins. A good illustration is provided by his 



ROMAN LAW 



chapters on the so-called renunciations, on clauses 
inserted in charters for the express purpose of 
renouncing a possible appeal to some legal rule 
or expedient of pleading. A number of purely 
Roman remedies are guarded against, as, for 
example, the exceptio pccunicz non numerates, or 
the complaint that a vendor has obtained less 
than half value for his property. It is evident, 
however, that Beaumanoir did not compose for 
himself the list of all these "renunciations." He 
simply took the customary formulae which had 
made their way into the region of customary law 
in the North from the region of written law in the 
South, where they had a much more real mean- 
ing ( 1094-1098). This makes his references to 
Roman Law only the more interesting ; they 
depend not on his personal taste, but on a process 
of acceptance or reception effected by the legal 
custom and jurisprudence of the age. 

Some of the principal points worked out by 
thirteenth-century jurisprudence concerned forms 
of procedure. It was a matter of importance to 
settle in what manner and order legal remedies 
should be granted, claims framed, and defences 
against them allowed by the courts. Unless 
these and similar procedural points were definitely 
worked out, no discussion as to substantive 
rights could avail. The importance of procedure 
as a framework for material law was further 
enhanced by the very complicated nature of 
72 



ROMAN LAW IN FRANCE 

jurisdiction, the intermixture of feudal justice of 
various degrees, on the one hand, and of lay 
courts and courts Christian on the other. These 
difficulties presented themselves to English law- 
yers as early as the twelfth century, in the time of 
Henry II, while in France they only began to be 
cleared up one hundred years later, under St. 
Louis and his successors. And it is evident from 
Beaumanoir's treatise that an acquaintance with 
Roman terms and forms of procedure greatly 
facilitated the task of French lawyers in this 
respect. The beginning of his exposition on 
stages in pleading illustrates this point (ch. vi). 
Our author notices expressly that clerks, learned 
ecclesiastics, have at their disposal very suitable 
expressions borrowed from Latin speech, but 
laymen do not understand these terms when put 
in French. They have consequently to be ex- 
plained to the latter, and they may be used in lay 
courts, as it were, in a vernacular guise. An action 
begins with a demande (a bill of petition), corre- 
sponding to the libcUus of the clerks. The libcllus 
convenlionis of the libellary process of later Roman 
Law is alluded to. Beaumanoir does not dwell 
on the libcllus rcsfionsionis of the defendant 
(Niance de fait, ci. 257), but proceeds to point 
out the pleas which may be brought forward in 
answer to the allegations of the plaintiff. These 
are styled exceptions, as in Roman procedure. 
The plaintiff may oppose them by 
73 



ROMAN LAW 



again as in a tribunal administering justice accord- 
ing to the Corpus Juris. But here the similarity 
ceases. The Romans admitted further pleadings 
on both sides, duplications, triplications, etc., 
and the courts Christian followed their example in 
this. Not so the lay courts. The process was 
simplified ; each party could plead in bar once 
only. After that, issue must be joined on ques- 
tions of fact. The context, in which the doctrine 
is expounded, makes it probable that the Roman- 
istic views were passed over to the courts of 
customary law through the channel of ecclesiastical 
tribunals. In the same way we find in the Contumc 
de Bcanvaisis (as well as in the Etablissemcnts dc 
St. Louis] Justinian's classification of actions into 
personal, real, and mixed ; the first aiming at 
enforcing obligations, the second directed towards 
obtaining ownership of things, and the third 
starting from an obligation but resulting in 
claims as to things ( 228-230, cf. Inst. IV, 6, 
i, 2, 20). In this case there is no need to assume 
the influence of Canon law. The distinctions were 
well known and frequently treated in all schools 
where law was taught. 

A subject of much importance to all lawyers, 
and especially to lawyers of this period, was the 
very fundamental distinction between ownership 
and possession, and its effects on legal procedure. 
In ancient German law, when private ownership 
of land was greatly restricted, quarrels as to 
74 



ROMAN LAW IN FRANCE 

ownership occurred chiefly between clans, town- 
ships, ecclesiastical institutions, etc., and were 
treated as fundamentally different from the 
assertions of individual claims. On the other 
hand, rights of protected occupation and pos- 
session arose easily, and were based on the 
application of labour to a particular plot of land. 
If a man was suffered to settle on and to cultivate 
a piece of land for a year and a day, he could 
claim the protection of the courts for his labour 
and occupation. This is the origin of the peculiar 
German " usiicaption " by a year and a day. 
It is derived from the effective short - period 
cultivation of an otherwise unreclaimed plot. 
This mode of " nsucaption " is clearly set forth 
in the cnstomal of Touraine-Anjou enrolled in 
the first book of the j&tablissements (I, 163), and 
it occurs also in Beaumanoir's treatise. "The 
user of one year and a day is sufficient to acquire 
seisin (protected possession), as when a man 
holds ploughed land, or a vineyard, or another 
piece of inheritance (land) and takes the fruits 
of it for a year and a clay. Should anyone come 
then and prevent him, the lord ought to remove 
the obstacle, until he has lost the land in a trial 
for ownership " ( 685 ; cf. 955). Apart from the 
peculiarly short period of " usucaption," we notice 
here the definite wish of the authorities to protect 
seisin as a prinm facie ground for occupying and 
using land. Several distinct actions sprang from 
75 



ROMAN LAW 



this far - reaching principle. The well - known 
remedy of the English courts the action of 
Novel Disseisin is not unknown in French law, 
but it comes into being rather late by a Royal 
Ordinance of 1277 ( 958, 959). Customary 
procedure admitted also of a plaint, or a complaint, 
as they said in France, to the lord of the country 
against violent interruption of peaceful possession, 
and it was sufficient that this should have lasted 
for a year and a day. On the other hand, Canon 
law had borrowed from Roman Law a process 
which, through the channel of ecclesiastical juris- 
diction, obtained access into provincial customals, 
as, for instance, into the Orleans one. In this 
case an entirely different theory of acquiring pos- 
session was deemed necessary. A person dis- 
turbed in the peaceful enjoyment of a plot could 
bring an action asking for a reintegrande, but the 
court when deciding the question of possession 
would require one of at least ten years if reasonable 
ground for it was shown, and one of thirty years 
if no specific ground was stated. We find the 
teaching as to ten and thirty years' prescription 
clearly stated by Beaumanoir, and he advises his 
readers to try for seisin by prescription before 
venturing on the much more difficult plea of 
ownership. First get your seisin, and then prove 
ownership if you can ( 199). 

From this point of view of the "beatitude of 
seisin," (bcati possidentes) both the Orleans cus- 
76 



ROMAN LAW IN FRANCE 

tomal and Beaumanoir lay great stress on a rule 
which was expressed by the formula le mort 
saisit le vif. This does not mean that the dead 
man clutches the one alive, but that the seisin of 
the land or inheritance passes from the dead man, 
the ancestor, to the living man, the successor. 
It is a short and more striking way of saying that 
the heir has no need to prove his title to land : 
he is protected by the seisin of his predecessor. 
The question turns on inheritance, and not on 
title to property. Here again we are on firm 
Roman ground. 

The technical character of these rules must not 
conceal from us their great social importance. 
The elaboration of the doctrine of seisin, pro- 
tected possession, with all its eventualities and 
ramifications, made it possible to avoid the 
tangle of feudal claims, and, what is more, to 
establish a prima fade legal order where violence 
and casual appropriation had reigned supreme. 
The check put on Novel Disseisin was a fair test 
of the efficiency and social value of the State. 
\Yhen the protection of seisin had been achieved, 
the disentanglement of fundamental rights could 
follow. And the part played by Roman distinc- 
tions and rules in this process was considerable. 

5. In matters concerning family law, the in- 
fluence of Roman conceptions is not so obvious, 
because some of the latter remained archaic, 
as, for instance, the patria potestas, even in its 

77 



ROMAN LAW 



mitigated form. There was little to choose 
between Germanic and Romance custom in 
regard to the authority of the father and the 
privileged position of the male sex in legal ar- 
rangements of all kinds. On the other hand, 
special tenacity was evinced in the retaining of 
ancient native custom in the branch of law that 
treats of some of the forms of kinship. We find, 
therefore in the Beauvaisis customal such insti- 
tutions as the retrait lignager, the right of re- 
deeming goods alienated by a relative, the German 
dower the portion settled on the wife out of the 
property of the husband's family, etc. 

A very important departure is established 
by the admission of the mother to the guardian- 
ship of her child under age ( 629 ; cf. Nov. 118). 
This, of course, ran entirely counter to ancient 
Germanic, and indeed to ancient Roman, ideas. 
It is not impossible that we have to do here not 
with a principle borrowed from Justinian's law, 
but with an indigenous evolution of legal con- 
ceptions. 

In chapter 640, Beaumanoir discusses the 
responsibilities of parents for crimes committed 
by their children. According to this view, the 
father should pay the fine incurred, if the children 
are under his patronage (mainburnie). Such 
a child has nothing of his own, whether lie be 
of age or under age. If the father or the mother 
desire to avoid responsibility, they must place 
78 



ROMAN LAW IN FRANCE 

their children out of their power (main) and 
patronage (mainburnie), and divide bread and 
broth with them (pain et pot}. This teaching 
presents a quaint combination of terms main 
corresponds to the Roman manus in the sense 
of power, authority, while mainburnie is a cor- 
ruption of the Germanic mtindebttrdis. The 
vital points of the doctrine are, however, that 
children dwelling with their parents round the 
same kettle, even when of age, are not con- 
sidered independent persons in the sense of 
having property of their own a very positive 
expression of the unity of the joint household. 
The latter was, of course, very characteristic 
of Germanic archaic custom, as well as of Roman. 
The Corpus Juris shows that a person, who had 
attained full age, remains in the power of the 
father unless emancipated by him, the separation 
of the households and property rights being 
commonly effected by the marriage of the son. 

Another department of the law strongly affected 
by Roman influence was the law of contract. 
This subject grows in importance with the de- 
velopment of intercourse, and, naturally enough, 
Roman rules were greatly in advance in this 
respect, as compared with the customs of bar- 
barian communities. Besides, the circumstances 
under which obligations arise, are enforced, or 
declared invalid, vary considerably, and give 
occasion to much casuistry. Barristers and 
79 



ROMAN LAW 



judges had therefore a greater latitude in bringing 
forward personal views, and in drawing on Roman 
juridical sources to support them. The definition 
of partnership (compagnie), for example, is bor- 
rowed from Inst. Ill, 25, i, 2. Beaumanoir 
especially wanted to impress his readers with 
the idea that it was by no means necessary for 
partners to contribute equal pecuniary shares 
to obtain equal shares in the profits. He could 
not do better for that purpose than refer to the 
passage in the Institutes. 

In the analysis of contracts created by order 
(mandatum) a nice point occurs in connection 
with the personal character of the order. It is 
not difficult to see that if the person giving the 
order changes his mind and countermands it 
in time, the contract does not hold good. It is 
also clear that if the counter-order does not 
reach the agent and the latter executes the order 
in good faith as given to him, the principal is 
held by it. But what is to happen if the principal 
dies ? As the agent represents his person, the 
agreement falls to the ground, and the heir 
is not bound by the obligation. But one event- 
ualit}' must in fairness be guarded against. 
If the heir has obtained some profit by the exe- 
cution of the order, he cannot repudiate the 
obligation. Thus" Beaumanoir follows Institutes 
III, 26, 9, 10, in all its windings ( 810, 8n). 

I need not pursue further the examination 
80 



ROMAN LAW IN FRANCE 

of the traces of Roman influence in Beaumanoir's 
text. What has been said seems more than 
sufficient to show how great that influence was. 
It was conditioned by the superiority of Roman 
legal rules in their struggle with corresponding, 
but not identical, conceptions of Germanic 
origin. The influx of Roman doctrine produced 
neither a haphazard collection of fragments nor 
wholesale copying and complete subordination 
in form and contents. It led rather to an in- 
telligent " reception," if I may use this term 
commonly employed by German scholars. In 
other cases, Roman views were modified, com- 
bined with native ideas, or entirely rejected. 
And when one meets with a personality such as 
Beaumanoir, one comes to understand better 
in what way the process took place. 

6. But I must not leave the subject without 
calling attention to one peculiarity in this psy- 
chological side of "reception." It happened 
not unfrequently that the practitioner or the 
learned judge, who were the chief agents in the 
process, picked out one or the other doctrine not 
in its proper and logical sense, but in order to con- 
firm or to prove some opinion of their own, which 
possibly did not fit in exactly with the concrete 
rule brought forward to support it. Take, for 
instance, the famous maxim, quod principi placnit 
legis liabct vigorem (Inst. I, i, 2, 6). Beaumanoir 
quotes it expressly in his paragraph 1103. But 

G Si 



ROMAN LAW 



it is certainly not the generally constitutional 
import of this doctrine that he wishes to ac- 
climatise in the France of his clay. It were odd 
indeed if he wanted to do so at the end of the 
thirteenth century, in the time of Philip the Fair, 
a few years before that King brought together 
with considerable difficulty the first more or 
less complete assembly of the estates of his 
realm. No ; Beaumanoir makes use of this 
famous maxim to give authority to a statement as 
to the right of a king, starting on an expedition 
or a crusade, to suspend the fulfilment of obli- 
gations for knights joining his army. In this 
mediaeval guise the saying of Roman jurists is 
hardly recognisable, but we need not accuse 
the bailli of Clermont of ignorance or misrepre- 
sentation ; he simply made use of this Roman 
plank to build a platform of his own. 

Another curious case in point turns on the 
use made by Beaumanoir of the principle of 
the res judicata : * when judgment has been 
delivered in a case, it ought not to be reversed 
in the same court. In the absence of such a 
rule litigation would have been endless. The 
Romans recognised the rule in theory, and con- 
sistently put it into practice. So does Beaumanoir 
he states it in his thirty-first clause, but he 
gives it a peculiar twist. The one judgment 
aimed at by the res jitdicata rule is, for him, the 
* App. VII. 
82 



ROMAN LAW IN FRANCE 

judgment of the court of the lord with its full 
complement of assessors, peers, or pritd'hommes, 
according to mediaeval phraseology. From such 
decisions are to be distinguished those taken by 
the bailli himself as sole judge in cases sufficiently 
clear and admitting of reference to custom. 
Such decisions are not judgments. Why should 
our jurist have recourse to such an ambiguous 
play with words ? Two reasons may be stated. 
Firstly, he wanted to enlarge the scope of the 
personal jurisdiction of the bailli untrammelled 
by assessors. Secondly, his distinction was made 
to allow of reconsideration in some cases which 
the bailli found after all to be too difficult, by 
bringing them before the full court, without 
prejudice to the res jndicata rule. In any case, 
we must accustom ourselves not to treat our 
mediaeval lawyer's references to Roman texts 
in too strict and pedantic a manner. His object 
was not to present us with a faultless commentary 
on the Corpus Juris, but to make use of some of 
the Roman doctrines for his own purpose as a 
wise judge of France. 



LECTURE IV 

ROMAN LAW IN ENGLAND 

Authorities : Pollock and Maitland, History of English 
Law, I, II ; W. S. Holdsworth, History of English Law, 
II, III, 1909 ; Stitbbs, Lectures on Mediaeval and Modern 
History ; Selden, Dissertatio ad Fletam ; Maitland, 
Bracton's Notebook, 1888 ; Marcel Fournier, L'Eglise et le 
droit remain au XIII siecle, in the Nouvelle Revue 
historique de droit francais et etranger, 1890 ; E. Caillcmer, 
Le droit civil dans les provinces Anglo-Normandes au 
XII sie"cle, 1883; Glanvill, De legibus et consuetudinibus 
Angliai ; Br acton, De legibus Angliae ; Giiterbogk, Henricus 
de Bracton und Sein Verhaltniss zum romisches Recht ; 
F. W. Maitland, Bracton and Azo ; Selden Society, VIII, 
1894; P. Vinogradoff, Villainage in England, 1892; 
James Williams, Latin Maxims in English Law, Law 
Magazine and Review, 1895, August. 

i. /~~MVIL law did not become a constituent 
\^s element of English common law acknow- 
ledged and enforced by the courts, but it exer- 
cised a potent influence on the formation of 
legal doctrines during the critical twelfth and 
thirteenth centuries, when the foundations of 
common law were laid. Indeed the leaching 
of Roman Law inaugurated by Vacarius seemed 
for some time to carry everything before it. Xo 
school was more popular in Oxford at the close 
of the twelfth century than the school of legists. 
The tide was stemmed to some extent by powerful 

84 



ROMAN LAW IN ENGLAND 

agencies acting in other directions. The Church 
realised that its predominance was threatened 
by the spread of secular learning in the field of 
la\v ; Canon law was more sharply differentiated 
from civil jurisprudence, and it began to oppose 
the latter in its striving towards juridical su- 
premacy. A bull of Honorius III (Super Speculum, 
A.D. 1217), and another of Innocent IV (Dolentes, 
A.D. 1259) were directed against the teaching 
of Roman Law in Paris and in "neighbouring 
countries." On the other hand, there grew up a 
national opposition against cosmopolitan doctrines 
which finds a definite expression in many facts. 
In 1234 Henry III forbade the teaching of Civil 
law in London, while in 1236 the great men of 
England, assembled at Merton, declared against 
any modification of English custom by foreign 
views in the treatment of bastardy (Nolumus leges 
Anglice mutari). 

Nevertheless, the teaching of Roman Law 
was never discontinued at the principal seats of 
learning in England. The canonists themselves 
frequently referred to its sources, as is shown, 
for instance, by the Golden Text-Book (Siimma 
uiirea) of the Oxford professor, William of Urog- 
heda (thirteenth century). The study of Roman 
Law in Cambridge can be traced from this very 
thirteenth century, which witnessed so many 
declarations of the powers that be against its 
introduction. It was used at both universities 

85 



ROMAN LAW 



and in other minor centres of learning as a kind 
of "general jurisprudence," and, as such, it 
exerted considerable, though indirect, influence 
on the practice of common law. 

Turning to the results of this study in England, 
we have to notice, firstly, its bearing on the 
principal juridical doctrine evolved during the 
twelfth century, namely, on the doctrine of 
seisin, and the means of protecting it. The 
age of Henry II has left a profound mark in this 
respect by formulating the point of view of 
possession, and providing adequate remedies 
for its protection in the King's courts. As we 
have seen, the French lawyers were much con- 
cerned with this aspect of jurisprudence in the 
thirteenth century, and so were the English in 
the twelfth. A point in which the influence of 
Roman Eaw is clearly traceable concerns the 
action itself by which possession was protected. 
The famous writ of Novel Disseisin introduced 
by Henry II's lawyers, appears as a secular 
variation of the canonistic action of spoliation 
(actio spolii], and this again has evidently sprung 
from the Roman interdict " undc vi." 

To what extent the English view of seisin was 
coloured by Roman teaching on possession may 
also be gathered among other things from Glan- 
vill's treatment of the gage of land. He admits 
of the transfer of land from the debtor to the 
creditor with the object of providing a security 
86 



ROMAN LAW IN ENGLAND 

for debt and interest, but he fails to recognise 
any distinct " estate " of the creditor in land 
transferred in such a way. The possession of 
the debtor remains legally intact, and the relation 
of the creditor is considered as a mere matter 
of fact devoid of juridical essence ; it may be 
interrupted by the legal tenant, should the latter 
not be afraid of exposing himself to reprisals in 
the shape of a personal action. 

Probably at the same time with Glanvill's 
treatise, William Longchamp, a Norman peasant 
who was to become Bishop of Durham and Regent 
of England in the reign of Richard Cceur-de-Lion, 
composed his Practice of Laws and Decrees (Prac- 
tica legit in et decretornni). It is a short manual of 
procedure based on civil as well as on canon law, 
and intended for use primarily in the French 
possessions of the English Crown. As the career 
of the writer demonstrates, however, there was 
no sharp cleavage between the English and the 
French parts of the Plantagenets' dominions. 
At the fair of Lagny in Bresse, which is casually 
mentioned in the tract, English merchants were 
so numerous that one of the streets got its name 
from them (vicits Anglicits). 

The teaching of the pradica may well have in- 
fluenced contemporary English lawyers on one or 
two important occasions. There was, for instance, 
a great controversy among the jurists of the time 
about the framing of an action. An authoritative 
87 



ROMAN LAW 



glossator, Placentinus, held that it was not neces- 
sary to formulate an action in accordance with 
strict terms ; the plaintiff might be allowed to state 
his claim in general expressions. Other doctors, 
such as Johannes Bassianus and Azo, disputed this 
and required the presentation of claims according 
to technical forms. William Longchamp's "prac- 
tice " urges the necessity of definite formulae of 
actions, and it may be considered in this respect 
as introducing the theory of strict writs adhered 
to by common law. 

2. The most important English contribution 
to Romanesque jurisprudence, however, is con- 
tained in Bracton's work on the Laws and Customs 
of England. Although this famous book was 
primarily written for the instruction of practical 
lawyers, and its most valuable chapters are based 
on the case law of Henry Ill's age, it opens with 
a comprehensive introduction chiefly drawn from 
Azo's manuals of the Institutes and of the Code, 
a general analysis of actions. The very fact that 
an English justice should have felt the necessity 
of such a general introduction is extremely note- 
worth}'. 

Nor is his work in this line by any means a 
contemptible one. I do not propose to determine 
by exact marks what the school value of such 
work may be nowadays. But what we can do 
is to notice that Bracton's aim was as different 
from that of his model, the Bolognese doctor, 
88 



ROMAN LAW IN ENGLAND 

as the means at his disposal were peculiar. He 
lived in a country which could not be compared 
with Italy in its standard of general culture, and 
especially in the wealth of classical tradition and 
scholarship. The Bologncse glossator provided a 
remarkable exegesis of the Institutes and of 
Justinian's Code ; he comments on his texts, illus- 
trates and explains them, but does not remodel their 
doctrine he speaks of patria potcstas, of slavery, 
of the Lex Aqnilia, of the interdicts, as if they 
were institutions which still obtained in the Italian 
practice of his time ; in doing this he does not 
consider modern practice, and he stands very 
near our own expositors of Roman Law : we 
might almost be induced to treat him as one of 
ourselves, as a citizen of our present republic 
of letters. Now such a standard would be entirely 
out of place in regard to Bracton. He does not 
want to state Justinian's teaching more or less 
exactly, but compiles Institutes for the English 
law of his time, and he attempts to build up these 
English Institutes with the help of Roman ma- 
terials. There were no better materials at his 
disposal ; there was no body of doctrine which 
could show better the general notions with which 
legal thought must deal, and when we think of 
the place still occupied by the teaching of Roman 
Law in European schools, we shall not wonder 
at the course followed by Bracton. In fact, he 
attempted to do in a very systematic manner 



ROMAN LAW 



what his French contemporaries were doing in a 
much more casual fashion. 

Some of the general principles expounded in the 
Institutes and in the commentaries to them might 
serve as an illuminating guide for English legal 
thought, while features entirely foreign to English 
life had to be removed. Thus the Introduction 
was undoubtedly intended to strengthen native 
legal doctrine by the infusion of legal conceptions 
of a high order drawn from the fountain head of 
civilised and scientific law. But there might also 
be a second aim, namely, to influence the material 
development of English legal doctrine, to provide 
it with clues for the solution of difficult problems, 
and to improve on the existing practice of the 
courts. Bracton aimed chiefly at the first of 
these results, although in some cases we may 
notice that he had in view to influence substantive 
law itself. 

Let us turn, however, to Bracton 's own work 
and take as examples some of its initial specu- 
lations. 

3. On the very threshold he encounters an 
inevitable difficulty of his undertaking, and 
striking contrasts between English Law and 
Roman Law cause him to reflect on the great 
question as to the modes by which a legal rule 
is sanctioned and stated. Civil law as collected by 
Justinian and expounded by Azo was a definite 
body of doctrine sanctioned by Imperial authority, 
90 



ROMAN LAW IN ENGLAND 

and consigned to an authorised written version. 
Now does English law afford a parallel in this 
respect ? Where is the sanction of English Law 
to be found ? How is one to recognise its rules ? 
Both Glanvill and Bracton have been reflecting 
on these questions. It is not absurd to give 
English unwritten rules the designation of law, 
because they proceed from a command of the 
sovereign, the King, are established by the con- 
sent of the great men, and imply a promise of 
obedience (sponsio) on the part of the common- 
wealth. Thus far Bracton, while Glanvill is not 
only shorter but onesided he deduces the au- 
thority of English law from the famous saying : 
quod principi placnit Icgis halct vigor cm a 
saying which was not in keeping with the political 
tendencies of Simon de Montfort's time, and 
therefore put aside by Bracton. In what sense 
can it be said, however, that the consent of great 
men is an element of English law ? At first 
sight this may be true of Statutes and Assizes, 
but hardly of the decisions of judges on which 
the greater part of common law rests. But, as 
Statutes and Assizes are written law, they do 
not come within the scope of the argument at all. 
It seems that the body of magnates, of great men 
whose consent appears necessary for the making of 
the law in England, is assumed to be identical with 
the body of the Curia Regis, from which all juris- 
diction proceeds. To its authority the sanction 
91 



ROMAN LAW 



of English legal rules is thus ultimately referred, 
although it remains always expressed in vague 
Romanesque terms.* We can sec that a diffi- 
culty is felt as to the power of single judges to 
lay down the law, and it is settled in a way which 
reminds us of Beaumanoir. The Common law rules 
established by general custom ought to proceed 
from the whole court of the King, and their repeal 
and alteration is the affair of the whole court. 
In case of doubt recourse should be had to this 
court, which represents the inajorcs, the magnates 
of the kingdom. Undoubtedly some of the great 
men, the judges and justiciars, one might be in- 
clined to say, do not act up to this general doctrine, 
but lay down decisions as if their opinions were 
sufficient to constitute law. This is altogether 
reprehensible. The single judge is in the position 
of interpreter of the law, however, and though 
he is precluded from altering it at his wish, he 
may not only follow it when it is clear, but also 
improve upon it, an improvement not being an 
alteration. This reasoning is partly suggested 
by Azo's teaching as to the interpretation of 
law, and as to legal fictions by which the meaning 
of rules is widened, but it goes further both in 
wording and spirit, and though strained from a 
purely logical point of view, it very aptly opens 
a work which has to combine and contrast Civil 
law and English Common law. 
* App. VIII. 
92 



ROMAN LAW IN ENGLAND 

If the difficulty as to the authority and sanction 
of common law may be easily overcome, the 
second objection to the common form of English 
doctrine is recognised to be grounded on serious 
considerations. There is no authorised version 
of English legal rules. This is felt both by Glan- 
vill and by Bracton. Very material drawbacks 
follow from the absence of such a version ; law 
is perverted by the ignorance of beginners who 
ascend the bench before they have mastered the 
elements of legal lore ; it is also perverted by 
the overbearing conceit of people in authority, 
who treat it according to their personal views 
and inclinations. It is to remedy these very 
drawbacks that both Glanvill and Bracton set 
out to perform their task, the first in a perfunctory 
and thoroughly practical manner, the other with 
a great store of authorities at his disposal. Brae- 
ton's work may be called a private treatise on 
the common law in its relation to general juris- 
prudence, and this literary departure remains 
significant for the further course of English 
legal studies. 

4. There follow generalities about justitia and 
jus. The Bolognese doctor starts from the de- 
finition of justice as given in the Digest : " justice 
is a constant and permanent will to allow every- 
one his right " (jnstitia cst constant et pcrpelua 
voliintas jus suum cniqite tribuendi). According 
to scholastic method he takes up every word 

93 



ROMAN LAW 



in the sentence and expands it by interpretation 
so as to define the different attributes and con- 
ditions of justice. In this way he draws attention 
to the fact that justice may be considered as 
a divine institution, deciding once for all what 
is right and what is wrong. Or else it may be 
considered from the point of view of humanity. 
In this case the stress would lie on the will of 
man to do right, and not on external facts. Im- 
mutability and permanency are necessary attri- 
butes of justice. Variations or changes would 
destroy its very essence. If a legal privilege is 
first conceded and afterwards denied, this is in 
no way a change of justice, but a consequence 
of a change of acts. Bracton's summary of this 
section cuts short many of the philological dis- 
tinctions. He finds himself confronted with a 
peculiarity of English phraseology, namely, with 
the absence of an equivalent in English to the 
word jus. Though writing in Latin, he does not 
want to make his teaching dependent on a foreign 
use of terms, and therefore he introduces, though 
very shortly, the terms lex and consuetude 
law and custom explaining that they correspond 
to jus, which in this case would be rendered by 
the English word 'law.' But, we may add, the 
proper rendering of jus would not always be 'law,' 
the objective order of tilings and duties, as one 
might say, but sometimes 'right,' the subjective 
sphere, what I claim as my own against my 
94 



ROMAN LAW IN ENGLAND 

neighbours. If Bracton had been making a trans- 
lation, he would have found himself obliged to 
observe this variation of meaning. As it is, 
he uses Latin, although a Latin addressed to 
English readers, and this gives rise to what seems 
at first sight a gross blunder. Azo, talking of 
jus as 'law,' ridicules the idea that there could 
be the law of Peter or John, of a lion or of a 
donkey. Bracton, evidently speaking of jus as 
' right,' turns the same sentence to positive 
account, and admits the right (jits) of Peter and 
of Paul. "The right of a lion or of a donkey " 
would, ho\vever, sound quaint enough, and it 
would have been better if Bracton had not gone 
so far on the subjective track. His meaning 
seems to have been, that we have to consider 
varieties of right derived from claims of divers 
beings and of claims in respect of divers things. 

He differs from Azo yet another time when 
the contrast between propriefcis (ownership) and 
bonorum possessio (possession) makes it necessary 
for him to notice a material difference in the 
use of these fundamental conceptions in Rome 
and in England. While the Roman lawyer 
draws a slurp distinction between ownership 
as the genuine and complete right to a thing, 
and possession as the protected enjoyment of it, 
the English lawyer merges both ideas in the inter- 
mediate and relative conception of seisin. A 
man is seised of a thing, more frequently of land, 

95 



ROMAN LAW 



and his seisin must be protected by the courts 
until a better ground of seisin has been found. 

B, the eldest son of A, may be his right heir, 
but if he did not obtain seisin on A's death, and 

C, the second son, has done so, C must be prima 
facie protected because he is already in seisin. 
He may be ousted only if B challenges his title 
and proves the truth of his contention. Bracton 
quite appropriately called attention to this 
fundamental difference of legal principle in a 
marginal note which eventually crept into the 
text itself, and destroyed the smooth course of 
Roman doctrine as set forth in Azo's manual. 

There follows a section on the law of nature, 
the jus civile and the jus gentium. Azo, con- 
cerned with the interpretation of Roman 
texts as they stand, treats of the general 
philosophical problem of the law of nature as 
opposed to the positive law of States. But he 
also explains the purely Roman distinction 
between jus civile the law of the Roman 
people and the jus gentium private law 
based on the legal customs of different nations. 
Bracton gives the substance of Azo's teaching on 
the law of nature, noticing the two possible 
meanings of the expression as derived from 
the nature of live creatures, of animals as well 
as men, and as representing the rational concepts 
of man's nature. But he combines this second 
idea with that of the jus gentium, not taking 
96 



ROMAN LAW IN ENGLAND 

much care to discover the historical differences 
between such reasonable rules and those im- 
posed by the jus civile. In this respect he is 
undoubtedly inaccurate, but we can hardly 
reproach him, when we remember that even 
Roman jurists did not always distinguish 
clearly between the bidding of the jus naturale 
and the ratio naturalis, on which the rules of the 
jus gentium were supposed to be based. As for 
the jus civile, Bracton seeks to appropriate 
the expression in a way characteristic of medi- 
aeval usage. He has no interest in the original 
law of the Roman State, the jus of the Quirites, 
but there is one kind of law existing in England 
which might be designated by a reference to 
jus civile. This is the customary law of boroughs 
jus civitatum. 

5. The contrast between the professor ex- 
pounding antiquarian doctrines, and the judge 
fitting English facts into a Roman frame, is 
especially striking in the treatment of the law 
of persons. Bracton follows Azo as to the 
principal and very important generalisation, 
" all men are either free or slaves." But such 
a generalisation had to be modified both in 
ancient Rome and in mediaeval Italy or Eng- 
land. Azo proceeds to give the necessary 
commentary from the point of view of ancient 
Rome. He treats of statu liberi and of ad- 
scnf)ticii to show that it is possible to arrange 
H 97 



ROMAN LAW 



these subordinate groups under the chief 
headings of free and unfree. He does not deal 
with the Italian world in which he lives, nor is 
he troubled by the fact that neither the statu 
liberi nor the adscripticii are known to his 
Bolognese or Florentine contemporaries. The 
English lawyer proceeds on an entirely different 
course. The statu liberi and adscripticii are used 
by him to illustrate actual English conditions, 
although they lose much of their antiquarian 
genuineness, thanks to this process of adapta- 
tion. Of the free (liberi} it is needless to speak 
at length, for they appear in England under 
the same name. Villains are equated with 
slaves a far-reaching assumption. As the 
adscripticii represent a kind of intermediate 
stage between free and serf, their counterpart 
would be the villain socmcn of ancient demesne, 
and, to some extent, the freemen holding in 
villainage. As for the statu liberi, Bracton em- 
ploys this term to denote serfs enjoying a 
state of liberty, as for example, serfs dwelling 
as freemen on free soil. In this case they are 
prima facie protected by law, and any person 
claiming them as villains must bring an action 
(de natiro habendo), and assume the burden of 
proof in court. This is, of course, no Roman 
doctrine ; it is the adaptation of a Roman term 
to English distinctions. 

-At the end of the sections treating of the law 
98 



ROMAN LAW IN ENGLAND 

of persons Bracton returns to the problem of 
slavery, and lays stress on the fact that slaves 
are not completely in the power of their lords. 
He finds support for this contention in the later 
Roman doctrine which, through the influence 
of Stoicism and Christianity, granted some 
protection to the slave against exceptional 
cruelty on the part of the master. From the 
time of the Antonines, a master treating his 
slave in an intolerable manner, could be con- 
strained by the magistrates to sell him. It 
was declared that the homicide of a slave by 
his master was a criminal offence. Azo took 
particular notice of these limitations of the 
power of masters over slaves, and adduced as a 
reason for the interference with the right of 
property in slaves, the importance for the 
Commonwealth of preventing owners from 
misusing their property (expedit reipubliccs ne 
quis re sita male utatur). Bracton not only 
endorses the doctrine, but adds an important 
concrete feature which shows that in this case 
lie did not merely copy foreign learning, but 
was pleading for a certain point of view before 
English jurists. He defines the "intolerable 
injury " as a destruction by the master of the 
serf's waynage, that is, of his plough team 
which, as we know, was safe from Royal amerce- 
ment. There are precedents for this view in 
Norman legal usage, forbidding the taking 
99 



ROMAN LAW 



away of the rustic's waynage by the lord ; and, 
of course, in the fact that in Anglo-Saxon times 
the predecessor of the villain, the ceorl, was not a 
slave at all, but had a standing against his lord 
in the courts of law. But at the time when 
Bracton wrote, the defence of waynage did not 
tally with the surrender of the old rights of free 
cultivators in other respects. Bracton himself, 
representing the general drift of the jurispru- 
dence of his time, had maintained that there 
was no difference between a serf and a villain. 
The reservations, he wished to draw in regard 
to the right of waynage, are akin to the vacilla- 
tions of his brother judges in cases where there 
was at stake the right of men holding in villain- 
age to appeal to the King's courts for remedies 
against their lords. After some contradictory 
decisions, the courts ended by applying strictly 
the rule that villains have no civil claims 
against their lords, and that, in law, what is 
held by the villain, is owned by the lord. At the 
same time the reservation as to waynage dis- 
appears. Bracton 's teaching on villainage is 
thus very instructive, not merely from the 
point of view of the evolution of villain tenure, 
but also for estimating the practical influence 
of Romanesque learning on him and other 
English lawyers. Though the status of villains 
was undoubtedly developed chiefly by the 
pressure of economic and political forces, it is 
too 



ROMAN LAW IN ENGLAND 

clear that the study of Roman precedents 
played an important part in the shaping of its 
legal rules. To put it in another way, the 
historical growth of English villainage did not 
necessarily involve its treatment on the basis 
of serfdom or slavery. But the infusion of 
Roman doctrine made the legal treatment of 
villainage harder than might have been the 
case otherwise, while the partial reservations 
introduced by the Emperors and admitted by 
Bracton did not carry much weight in practice. 

Another case, where the study of Roman 
doctrine has left a distinct trace on English 
legal thought, is the well-known distinction 
between real and personal property. We may 
observe the actual origin of this famous distinc- 
tion which still holds good at the present day. 
The root of it lies in the teaching of Roman 
lawyers on actions. There are real actions 
actiones in rein which aim at obtaining the 
property of a certain thing, and personal actions, 
urging certain claims against persons, requiring 
them to do something, to give something, or to 
forbear from something. The question of 
obtaining a specific object does not arise in the 
latter case. It is the value claimed that is of 
importance. So far, the teaching is common 
to both Roman and English lawyers. But 
Bracton and his fellow-judges, working on this 
basis, went a step beyond their Roman guides. 



ROMAN LAW 



They used the distinction between actions to 
differentiate between different kinds of pro- 
perty. Land and interests connected with it 
appeared to them to be naturally the object of 
real actions, because here the claim \vas directed 
to a definite thing and to nothing else. On the 
other hand, chattels were, as a rule, claimed 
in the same way as rights, for example, as the 
performance of some labour or office. The aim 
of the action was to obtain either the thing or 
service, or its equivalent from the person under 
obligation. The distinction became funda- 
mental in the English legal system. Again, a 
striking example of the influence of Roman dis- 
tinctions is afforded by the treatment of leases for 
terms of years. Bracton and thirteenth century 
judges consider the lessees not as tenants having 
an estate of freehold, but as mere usufructuarii. 
This is altered to a great extent by later doctrine, 
but the initial classification has left its traces on 
the law of the subject. 

Bracton and his compeers had especially 
much to learn from the Romans, and the glots- 
ators who expounded their doctrines, on the 
subject of obligations generated by contracts 
and torts. The exceedingly active economic 
intercourse of the Roman State in its most 
prosperous days had been utilised by keen 
jurists to frame a doctrine conspicuous, even in 
the domain of classical law, for its subtlety and 



ROMAN LAW IN ENGLAND 

dialectical resourcefulness. Part of this vast 
material had to be left on one side by Bracton, 
while other parts were adopted more for the 
sake of possible eventualities than for the 
immediate requirements of practice. Bracton 
appropriates the fundamental idea that a nude 
pact, a convention bereft of particular form, 
does not constitute an obligation enforceable at 
law. He cites a couple of doggerel lines in- 
tended as an assistance to the beginner in 
remembering what could serve as vestments to 
pacts. " Re, vcrbis, scripto, consensu, traditione, 
jnnditra vestes sumere pacta solent." 

The first three species apply to real con- 
tracts such as, e.g., deposit ; to verbal con- 
tracts the Roman solemn promise (stipulatio), 
or an equivalent of it in writing, the deed 
under seal, which came to be the principal 
mode of contracting in English law ; the fourth 
relates to consensual contracts sale and hire 
by mutual consent, although in this respect 
English law could not be made to fit exactly 
the Roman view. Besides these Azo mentions 
two modes of clothing a bargain which he 
describes in quaint language. Whereas in the 
first four cases the contract is born vested, 
there are two occasions when it is bare at the 
moment of birth ; but once having seen the 
light, it begins to look about for suitable cloth- 
ing, and, eventually, it may find furs which will 



ROMAN LAW 



protect it from frost and decay ; this happens 
should delivery (traditio) supervene, or a condi- 
tion which did not exist at the moment when 
the convention was made, but which, if it 
appears later on, renders it perfect and pro- 
vides it with a vesture. All this is appropriated 
by Bracton in a slightly modified form, and this 
"reception" of the Roman doctrine provides 
a starting-point for subsequent development. 
First, the ecclesiastical courts and the Chancery, 
later on Common Law Courts, took part in the 
development of a doctrine concerning obliga- 
tions which took account of informal agree- 
ments, and laid down rules as to their validity 
and enforcement. 

On the whole it is clear that it is impossible to 
estimate the influence of Roman law in Eng- 
land by references to paragraphs of the Digest or 
of the Codex. If we want to find definite traces of 
it we have to look out not for references but for 
maxims, some of which, besides, had passed 
through the medium of Canon law.* The only 
real test of its character and extent is afforded by 
the development of juridical ideas, and in this 
respect the initial influence of Roman teaching 
on English doctrines will be found to be con- 
siderable. On many subjects the judges and 
legal writers of England were, as it were, 

* E.g. Year Books of Ediv. If (Selden Soc.\ I, 5, ;,i, iS6 : 
II, 1 10, 176. 

104 



ROMAN LAW IN ENGLAND 

prompted by their Roman predecessors, and 
this intercourse of ideas is nowhere as conspicu- 
ous as in the frequent cases when English lawyers 
did not simply copy their Roman models, but 
borrowed suggestions from them in order to develop 
them in their own way. 



105 



LECTURE V 

ROMAN LAW IN GERMANY 

Authorities : It. Schnidcr, Deutsche Rechtsgeschichte, 
1889; H. Bncnney, Grundziige der deutschcn Rechts- 
geschichte, 1887; /. Bryce, The Holy Roman Empire, 
1904; Jansen, Geschichte des deutschen Volks, I, 1890; 
Stintzing, Geschichte der deutschen Rechtswissenschaft, 
1 880 ; Geschichte der popularen Litteratur des romisch- 
kanonischen Rechts am Ende des Mittelalters, 1867 ; 
Stintzing, Ulrich Zasius, Die Juristen sincl bose Christen, 
1875; Stobbe, Geschichte der Rechtsquellen, 1860-64; 
E. Seckcl, Beitrage zur Geschichte beider Rechte im 
Mittelalter, 1898 ; Mutlicr, Zur Geschichte der Rechts- 
wissenschaft und der Universitaten in Deutschland, 1876 ; 
A. Stolzel, Die Entwickelung des gelehrten Richterthums, 
1872 ; G. v. Below, Die Ursachen der Rezeption des 
romischen Rechts in Deutschland, 1905 ; Modderman, 
Die Reception des romischen Rechts, ubersetzt von K. 
Schurz, 1875 ; C. A. Schmidt, Die Rezeption des romischen 
Rechts in Deutschland, 1868 ; O. Gicrkc, Deutsches 
Genossenschaftsrecht, 1873 ; /. Kohler, Beitrage zur 
Geschichte des romischen Rechts in Deutschland, 1896; 
Landsberg, Ueber die Entstehung der Regel, "Quidquid 
non agnoscit glossa, non agnoscit forum," 1890. 

i. r "~in v HE influence of Roman Law on Ger- 

J. many is marked by very peculiar 

conditions. It seemed at the outset as if there 

would not be much room for Roman doctrine in 

a country with a German-speaking population 

of Germanic stock. But yet at a later period, 

some time in the fifteenth century, the legal 

1 06 



ROMAN LAW IN GERMANY 

lite of Germany was forced into an entirely new 
channel by the wholesale " reception " of 
Roman Law. To give a clear idea of the circum- 
stances which brought about this startling 
result, I must first say a few words on the 
political and legal conditions of Germany at the 
close of the Middle Ages. 

The downfall of the Swabian dynasty and the 
painful Interregnum in the third quarter of the 
thirteenth century revealed the unsound basis 
of the magnificent structure of the Holy Roman 
Empire. While stretching over Italy and 
Burgundy, it had failed to strike firm roots 
in native German soil, and it fell to pieces in 
spite of the brilliant achievements of some of 
its rulers. The Hapsburg and Luxemburg 
princes, who succeeded to the Imperial crown 
after the Interregnum, were chiefly interested in 
constructing the fabric of their household in 
uniting various principalities to form a patri- 
mony for their families, and in strengthening 
their princely power in these territories. The 
German Empire, as such, the " Reich," became 
more than ever a loose confederation of number- 
less political units without effective central 
government ; it could not even prevent feuds 
among its members the various dukes, counts, 
barons, abbots, and towns. The Emperor 
Frederick III, whose reign occupied a whole 
half of the fifteenth century, did not set foot 
107 



ROMAN LAW 



on Imperial ground for twenty-live years 
(1444-71). The surrender of sovereign author- 
ity to the princes was formally recognised in 
respect of the more important ones, the seven 
electors (Kurfiirsten), by the Golden Bull, but 
in practice, the measure of political importance 
enjoyed by all the different " estates " of the 
realm (Stande) depended merely on strength 
and opportunity. The central court of the 
Empire, the " Reichshofgericht," was hardly 
more than a name. When a case came up to it 
for decision, assessors had to be collected for 
the special purpose, litigation was interminable, 
while the means for executing the sentence were 
quite inadequate. It is not to be wondered at 
that the various representatives of political 
authority in the country relied much more on 
alliances and leagues than on Imperial justice, 
or on the decrees of the Imperial Diet (Reichstag). 
The towns formed powerful confederations, and 
they were met by still more powerful leagues 
of princes. After the two great struggles of 
1388 and of 1450 and countless smaller feuds, 
a certain order was guaranteed by regional 
leagues, like the Swabian or the Rhenish, in- 
cluding both princes and towns, for the purpose 
of maintaining a more or less precarious peace. 

It is clear that the legal arrangements of a 
society living under such political conditions 
were necessarily peculiar. Jurisdiction and 
1 08 



ROMAN LAW IN GERMANY 

law were, as it were, pulverised into a quantity 
of smaller and larger fractions. Each princi- 
pality, lordship, town, followed a law of its 
own. And apart from the disruption of these 
circles of territorial customs, numberless varia- 
tions were produced by the social status of the 
parties concerned the law of knights and of 
fees (Lehnrecht) was differentiated not only 
from the law of the country in general (Land- 
recht), but also from manorial law (Hofrecht), 
municipal law (Stadtrecht), guild law (Zunft- 
recht), peasant law (Bauernrecht). Besides, 
there was the great cleavage between lay and 
ecclesiastical courts. The fundamental princi- 
ple of German law amounted to a recognition 
of the right of each group of citizens to apply 
their own customary ideas in the dealings of 
their members with each other. This is an 
excellent principle, productive of freedom and 
of exuberant development, but it stands clearly 
in need of strong set-off in the way of co-ordina- 
tion between the centrifugal forces of all those 
local groups. And the centripetal tendency, 
so necessary in such a case, was sadly wanting. 
The political disruption of the Empire made it 
impossible to reduce local customs to one 
common law by the power of the State and of 
its tribunals. German law as a unity did not 
exist at the close of the Middle Ages. It was 
broken up into countless local customs, which, 
109 



ROMAN LAW 



for this very reason, were unable to tackle the 
wider problems of civil intercourse. 

A second difficulty sprang from the composi- 
tion of the various tribunals and from the 
manner in which law was laid down in them. 
Statutory law formed naturally a rare exception. 
There were some enactments passed by the 
Diets, chiefly concerning questions of public 
law, and occasional statutes passed in the 
different principalities and towns. But most 
legal questions had to be settled finally by un- 
written and unenacted law, which had to be 
ascertained or " found " for the purpose. 
German tribunals of all degrees had standing 
organs for the finding of law the Schoffen or 
assessors. The judge (Richter) presided over 
the court, directed its proceedings and put 
questions to the assessors. It was the duty of 
the latter to give decisions or sentences (Urtheil) 
on all points of law raised by the presiding 
magistrate. As for questions of fact, they were 
settled by formal methods of inquiry by 
battle, oath, witnesses, and the production of 
deeds. Thus everything hinged on the "find- 
ing " of the law by the Schoffen, representing 
the legal opinions of a certain social or political 
group. Now these Schoffen, though not im- 
panelled for a few days like modern jurors, but 
serving in the courts as standing assessors, were 
nevertheless laymen. What they knew of law 



ROMAN LAW IN GERMANY 

was gathered chiefly from personal experience 
and occasional information, or suggested by 
practical wisdom. The laws of the different 
groups thus remained in close touch with 
popular conceptions and sometimes rose to a 
considerable excellence in their treatment of 
legal problems, but they were not connected 
with any scientific system and lacked precision. 
And yet, at a certain stage of economic and 
social development, law stands in need of school 
learning and technical skill. Thus it came to 
pass that, at the very moment when German 
social arrangements were progressing from 
mediseval to modern conditions, when its town 
life was enjoying a kind of hothouse prosperity 
resulting from its commerical relations with 
Italy and the Levant on the one side, Flanders, 
the Scandinavian North, Poland, and Russia 
on the other, German law was crippled by 
particularistic tendencies and by a lack of pro- 
fessional learning. Further progress could only 
be achieved by the creation of a Common Law 
based on systematised knowledge. 

2. It is interesting to watch the attempts to 
get rid of the obvious drawbacks of German 
law by means of institutions of native origin. 
One expedient, which obtained considerable 
success in municipal jurisdiction, was the 
reference of doubtful cases from local to superior 
courts. These superior courts (Oberhofe) were 



ROMAN LAW 



constituted in some of the more important 
cities with which other towns were closely 
allied, either as colonies or as members of the 
same league. Such were the Obcrhofe of 
Frankfort-on-the-Main for the Rhine provinces, 
of Liibeck for the Hanseatic towns, of Magde- 
burg for Saxony, Thuringia and the German 
settlements in the East. The practice of the 
Oberhofe naturally helped to systematise to 
some extent the varieties that had grown up in 
private law. 

Another powerful influence in the same 
direction was exercised by the spread of authori- 
tative treatises on customary law. The most 
remarkable and influential of these was com- 
piled by Eike von Repgow on the law of the 
Saxons (Sachsenspiegel). It may be compared 
with Bracton's famous work on the laws of 
England, with this characteristic difference, 
that the English author wrote on the common 
law of his country, while the German treated of 
the legal customs of one German race. But, in 
spite of this material limitation, Eike von 
Repgow 's work was an historical achievement. 
It provided the courts of Saxon Germany with 
a firm basis of jurisprudence, which was widely 
accepted and maintained. A most striking 
effect of this authoritative statement is revealed 
by the fact that the Northern territories, armed 
with the jurisprudence of the Sachsenspiegel, 

112 



ROMAN LAW IN GERMANY 

opposed a stubborn resistance to the inroads 
of Roman Law. This proves that the whole- 
sale "reception" of Roman rules is not ac- 
counted for by any inherent incompetence in 
German law. Where, as in Saxon lands, exces- 
sive particularism and uncertainty were counter- 
acted, German law proved quite able to stand 
its ground. 

Other statements of provincial custom testify 
to the rising tide of Roman ideas. The German 
Mirror appeals in a general way to the guidance 
of the masters of law, that is, of the Roman 
jurists, and the Swabian Mirror shows distinct 
borrowings from Roman legal sources. Johann 
von Buch, the author of a gloss to the Saxon 
Mirror, composed some time between 1325 and 
1355, finds it necessary to corroborate the 
rules of the Saxon Mirror by instituting com- 
parisons with similar Roman rules ; and at the 
same time a town clerk, Johann of Briinn, was 
engaged in the compilation of a regular text- 
book of Roman Law for German practitioners. 

These are sure indications that Roman Law 
was beginning to assert itself as a remedy for 
the shortcomings of German jurisprudence. 
To explain this phenomenon we must take into 
account, to begin with, that in the view of 
educated Germans, the Holy Roman Empire 
had united Germany and Rome ; the Emperors 
of the German race were deemed the direct succes- 



ROMAN LAW 



sors of Constantine and Justinian. Frederick 
Barbarossa and Frederick II appealed to their 
hereditary right as successors of the Roman 
emperors of old, and actually inserted some of 
their own enactments as a sequel to the Novelise 
of Justinian. Mediaeval people had no strong 
sense of historical diversities. Artists of the 
period did not scruple to represent the guests 
at the wedding in Cana in doublets and slouched 
hats. Nor was there anything incongruous 
in the idea that the Corpus Juris Civilis was the 
Imperial law of Sigismund or Frederick 111 as 
rulers of the Holy Roman Empire. The Church, 
the other cosmopolitan power of the time, 
helped to propagate a similar theory. It had 
worked out a Canon law of its own, and had 
come to draw definite boundaries between the 
decrees of that law and the leges of secular 
authorities. But the jurisprudential affinity of 
both Codes, the ecclesiastical and the civil, was 
obvious, and at the universities the studies of 
both were necessarily allied. It came to be so 
at Prague and in the purely German universities 
that followed it Erfurt, Cologne, Rostock, 
Heidelberg, Leipzig, Greifswald, etc. It is true 
that the principal chairs in the la\v faculties of 
these universities were chairs of Canon law, 
but the holders of them were frequently doctors 
of both laws (ntriusqite juris), lecturing in Civil 
as well as in Canon law. In Prague and in 
114 



ROMAN LAW IN GERMANY 

Rostock the former branch of study was already 
regarded as a necessary part of the system- 
atic curriculum. At first many of the law pro- 
fessors were Italians, but gradually Germans 
came forward, and although no first-rate 
scholar can be named among them before 
Ulrich Zasius, professor at Freiburg, and 
Schiirpf at Wittenberg (about 1500), yet the 
large number of teachers and pupils proves the 
increasing practical importance of the study. 

3. Even more weighty evidence is forthcoming 
from the text-books of Roman and Canon 
law, produced in the fourteenth and especially 
in the fifteenth century. These books were 
intended to assist persons who had not suffi- 
cient time to spend on a thorough and pro- 
longed study of legal sources, but who, at the 
same time, desired to make use of the accumu- 
lated wisdom of Roman jurisprudence. Such 
was, for example, the Vocabulary of both laws of 
Jodocus, a work composed by an Erfurt doctor 
about 1452 and extensively circulated in 
Germany and other countries. Fifty-two edi- 
tions of it were issued during the fifty years 
between 1473 and 1523. The Vocabulary gives 
short definitions and explanations of all sorts 
of terms used by Roman jurisconsults and 
enactments. It is sufficiently clear and well- 
informed. 

A curious expression of this striving towards 
"5 



ROMAN LAW 



the acquisition of Roman legal ideas and forms 
may be found in a widely diffused branch of the 
juridical literature of the time, namely, the 
so-called " trials of Satan." It was a favourite 
concept of theologians to expound the doc- 
trine of salvation by using the form of a fictitious 
trial. The object was to show that by the 
Saviour's sacrifice, hell had lost its power over 
mankind, and that the atonement, consequent 
on this sacrifice, could be claimed as a matter, 
not only of grace, but of justice. One of these 
tracts was ascribed, and probably rightly, to no 
less a jurist than the Bolognese Doctor, Bartolus, 
and a German translation, named after Belial, 
lays stress on the excellent information it 
supplies on questions of procedure. The sub- 
stance of the latter discourse is as follows. 
Satan appears before the tribunal of Christ 
under the name of Mascaron, and presents a 
complaint against mankind. Christ assigns a 
hearing. The defendant failing to put in an 
appearance on the assigned day, the plaintiff 
claims judgment by default, but Christ declares 
that He grants an adjournment on the ground 
of equity and on the strength of His discretionary 
powers as judge. The next day the Virgin 
Mary appears as an advocate for mankind. 
Mascaron objects to her being admitted to 
represent the defendant, firstly, because she is 
a woman and therefore unfit to be an advocate, 
116 



ROMAN LAW IN GERMANY 

and secondly, on account of her relationship 
to the judge. Christ overrides the objection and 
the case proceeds. The action brought by 
Mascaron is an actio spolii, an action for despoil- 
ing hell of its possession. The Virgin demurs, 
on the ground that hell was only entitled to the 
Detinue of mankind, and was bound to safe- 
keeping in the interest of God. The actio 
spolii is not allowed by the court. Satan tries 
then to bring a petitory action ; he demands a 
sentence against mankind on the ground of 
original sin and of the words of God : on " the 
day when thou eatest of the fruit of the tree, thou 
shalt die." The Virgin excepts against this : 
hell itself was the cause of the Fall and is not 
entitled to reap the benefit of its own fraud 
(dolus). Satan comes with a replication : even 
were this right, mankind ought to be condemned 
officio jndicis, by the action of the court, be- 
cause justice ought not to leave crime un- 
punished. The Virgin protests against such a 
new departure as an illegal alteration of the 
count. Besides, there is a decisive argument 
for the defendant, namely, that Christ has 
suffered punishment for mankind, and satisfied 
justice by His voluntary sacrifice. Mascaron is 
therefore dismissed by the court. 

It may be observed that all sorts of points on 
procedure are introduced in this example, evidently 
with the idea of acquainting beginners with 
117 



ROMAN LAW 



technical terms and fundamental forms of plead- 
ing, such as summons, default, equity, possessory 
and petitory action, exception, replication, count, 
fraud, etc. 

A popular work of another kind is the Mirror 
of Actions, a production dating from the beginning 
of the fifteenth century. The author, probably 
some town clerk, wrote his book in the frontier 
district between Swabia and Franconia, perhaps 
in the little town of Schwabisch Hall. He is 
deeply grieved at the uncertainty of German 
legal customs, the greed and violence of princes, 
the slackness of the Emperor. He wants his 
fatherland to build up its laws on the basis of 
the Roman code, without neglecting ancient and 
reasonable customs. His first book, dedicated 
to private law, is partly derived from a work of 
Roffredus, a Bolognese doctor, and partly from 
the more elementary treatise of John de Blanosco 
(de actionibus, 1259). The German author 
endeavours, for the most part, to give a plain and 
useful statement of Roman rules, and avoids 
pedantic subtleties. It is not easy, of course, 
to combine German legal principles with the 
learned apparatus and the peculiar distinctions of 
Roman jurists, and it cannot be said that our 
author has succeeded in producing a thoroughly 
logical and clear amalgamation of both bodies 
of law. Yet his attempt is of the utmost im- 
portance, in that it shows that the introduction 
118 



ROMAN LAW IN GERMANY 

of such technical machinery as the Roman scheme 
of actions was, as early as the fifteenth century, 
not merely a subject for book learning, but 
directly affected practitioners. We find the 
Mirror of Actions (Klagspiegel) trying to fit 
German class distinctions into the social classi- 
fication of Rome in the same manner as this was 
done by Bracton. It translates fluently the Latin 
servits by Eigen Mann, that is, by 'serf.' The 
equivalent in modern German would be Leibcigcn, 
a man whose body is owned by another. Some- 
times, however, the author is startled by the in- 
congruity of such an identification, and is careful 
to add that slavery or even serfdom does not exist 
in German law. But then in the country, if 
not in the towns, there were numerous rustics 
who might appropriately be termed serfs (leibeigen), 
and therefore the Klagspiegel "receives," copies, 
many of the rules originally laid down for Roman 
slaves. In the same way there is a good deal of 
Romanesque learning in the treatment of obli- 
gations. Yet the author of the Klagspiegel does 
not seem to notice the difficulties felt by Roman 
lawyers in regard to the enforcement of ' nude ' 
promises. He admits that they should be made 
the subject of actions. Again, his treatment of 
emphyteusis, of the hereditary lease of Roman 
Law, is strongly coloured by the fact that he 
uses the peasant tenancies of German mediaeval 
custom as concrete material for his scheme. 
119 



ROMAN LAW 



Rents and services become the chief feature in 
the relation between the lord and his tenant 
(Hintersasse) ; the rights of the lord to supervise 
the cultivation, and to exercise a disciplinary 
power over the tenant, are recognised as an 
ancient incident of the tenure, etc. As a com- 
mentary on Roman sources, all this is erroneous, 
but in the history of " reception " this and similar 
variations from the orthodox doctrine are inter- 
esting and significant. They prove that we are 
confronted with something different from mere 
literary borrowings ; \ve witness the struggle 
between Roman and German theories in practice. 
4. The next point to be observed concerns 
the influence of the knowledge of Roman Law 
acquired in the Universities and through popular 
or learned treatises on practice. We can easily 
discern that the persons who had recourse to 
Roman texts and to Romanistic literature in the 
fifteenth century belonged for the most part to 
one or other of three classes. There were, firstly, 
ecclesiastics desirous of confirming their con- 
tentions on church matters and private matters 
by reference to Civil law, to which Canon law 
was closely allied ; secondly, town clerks acting 
as jurisconsults to cities and to princes, and 
taking part in the discussions of ordinary tri- 
bunals as assessors ; thirdly, barristers in search 
of arguments for their clients ; they displayed 
a natural bent towards the written Common 

120 



ROMAN LAW IN GERMANY 

law of Rome, in preference to the native wisdom 
of German assessors (the Schoffen). But through 
what channels was Roman Law introduced into 
courts of law or into administrative offices ? 

Juridical consultation formed the principal 
medium for its application in the earlier stages 
of the process. Officials in doubt as to some in- 
tricate problem of private or administrative 
law, and also parties to complicated suits, began 
to seek the advice of well-known jurists, especially 
of doctors of laws at the Universities. An early 
example is presented by the action of the Council 
of Cologne at the close of the fourteenth century 
in connection with the so-called Brotherhoods 
of Common Life (Briider des gemeinsamen Lebens) 
associations of fervently religious persons of 
both sexes, who joined in a common life of work 
and prayer. Consultations have been preserved 
on the question as to whether such associations 
were to be allowed or not, whether they were 
collegia licita, according to Roman terminology, 
or not. The first of these consultations is signed 
by two doctors and two licentiates of laws of 
the University of Cologne, of whom the two first 
were holders of regular chairs of law (Icgum doctor es 
net it rcgentcs in legibns). The case is put in the 
following manner : 

" In certain places persons join to live in 
common. Some are ecclesiastics dwelling in 
one house, where they are engaged in writing 

121 



ROMAN LAW 



lawful books. Others, who cannot write, are 
engaged in mechanical crafts in another house. 
Or else they do manual work. These persons 
living in the two houses work and live on the 
results of their labour, and divide among them- 
selves the proceeds and their own goods, should 
they have any. They take their meals together, 
and do not beg for alms, and they have a rector 
who takes charge of the hall. They obey him as 
good disciples obey their master, and they settle 
the hours for work and the hours for rest, and 
similar matters. They choose to enjoy their 
goods in common, that they may live more 
quietly. The principal object in such a life is 
not to make profit, but they hope that by so 
living they may please God and serve Him. Such 
is the theme. It is asked whether such a college 
is an allowed one, and whether they have a right 
to elect a rector, to make by-laws for themselves, 
and to do other things allowed to colleges. And 
also what is the law in regard to women who live 
apart from their husbands, and sew and spin 
and exercise textile crafts on which they live in 
the same way (as described above) ? " The 
doctors of Civil law gave an entirely favourable 
opinion on the authority of Bartolus, with the 
adjunct that women could only join in such a 
college provided their work was not repugnant 
to womanhood (si statui mnliebri non repugnet). 
The consultation of the canonists based on Jo- 



ROMAN LAW IN GERMANY 

lianncs Andreas was to the effect that no attempt 
to start new religious beliefs was permissible, 
but that life in a society was not illicit in itself. 
I may add that the brothers of Common Life 
had to endure many attacks from jealous Church- 
men, but the Council of Constance supported 
them, and their communities and schools con- 
tinued to flourish throughout the fifteenth cen- 
tury. In any case, the above-mentioned con- 
sultation is interesting from two points of view ; 
its subject is the momentous apostolic revival 
of Gerhard de Groot and his lay brotherhood ; 
it also marked a step in the introduction of the 
Roman theory of corporations into Germany. 
The ruling both of the legists and of the canonists 
is based on the Roman conception of the universitas 
as a juridical person, of the creation of a fictitious 
moral being endowed with the same rights as an 
individual, and organised in such a way as to 
ensure action for certain allowable aims in a 
continuous manner. A rector and obligatory 
by-laws arc necessary to ensure such action ; 
civil rights arc ascribed to the society in question 
on the pattern of other lawful societies ; the 
individuality of its members is merged in certain 
respects in the higher being of the corporation ; 
the only point admitting of doubt concerns the 
allowable aim of the latter. Once this is established 
everything else follows of itself from the Roman 
theory of the juridical person. We are able to 
123 



ROMAN LAW 



understand now why a consultation was needed, 
and what it supplied from the legal point of view 
to the authorities in Cologne. The Germanistic 
point of view as to corporations was a different 
one it amounted to the admission of joint 
action by a plurality (Gesammtheit) acting as a 
union (Genosscnschaft). This conception had not, 
however, reached a stage of theoretical com- 
pleteness and of a conscious co-ordination of all 
details under the ruling principle. The Roman 
doctrine supplied this very requirement, and it 
was substituted as being more scientific and 
thorough. 

Another characteristic set of consultations 
given by the Cologne jurists in the course of the 
fourteenth and the fifteenth centuries concerns 
difficulties arising from the adjustment of political 
and private rights in cities and principalities. 
The formation within the precincts of the Empire 
of commonwealths of different types created 
by express delegation, by force, by custom, and 
by prescription, gave rise to constant disputes 
and complications both in Italy and in Germany. 
One of the great Italian jurists of the fourteenth 
century, Bartolus, had instituted a new treat- 
ment of this troublesome department of municipal 
law. He adapted and developed Roman con- 
ceptions of the authority of the people as a source 
of power, of the part played by coercion in the 
creation of law (vis coactiva), of the delegation 
124 



ROMAN LAW IN GERMANY 

of political authority and jurisdiction by the 
Emperor, and the like. His commentaries on 
the subject became the basis of the public law 
of central Europe, and it is significant that the 
professors of Roman Law in Germany appropriated 
his doctrine in preference to the teaching of 
Justinian's Code itself. The modern elements 
of Bartolus' teaching made it the more acceptable 
for the solution of problems arising out of the 
tangled web of affairs in fifteenth-century Ger- 
many. It is in its Italian garb that Roman Law 
was received by the Germans, and this modifi- 
cation explains to a great extent the reason of 
the comparative ease of its adoption. 

It is needless to add that in a state of govern- 
ment and society as that which prevailed in 
Germany in the fifteenth century, the cross 
relations between different political units and 
social groups were constantly producing friction 
and juridical disputes. And in all such questions, 
German legal arrangements, based primarily on 
local customs, failed signally. Recourse to 
Roman Law as " Common law " was natural and 
unavoidable. It assumed the form of awards 
as well as of consultations. It became more and 
more usual for parties to a suit to submit the 
points in dispute to the arbitration of doctors of 
law. One characteristic method of submitting 
cases for decision to learned lawyers was the 
institution of the so-called " Actenversendung," 
125 



ROMAN LAW 



the transmission of the documents relating to a 
case by the court which had jurisdiction, to the 
law faculty of a famous university. The professors 
of the faculty acting in corpora considered the 
evidence and pleadings, sometimes demanding 
supplementary material, and ultimately formulated 
a decision. This was forwarded to the court. Need- 
less to add, that this " transmission of acts " 
could only take place in connection with a pro- 
cedure based on written documents. The rules 
of such a procedure followed the practice of 
ecclesiastical courts, and were largely derived from 
usages of later Roman Law. Thus the "Acten- 
versendung," apart from the fact that it was an 
appeal to colleges of jurists trained in foreign 
law, furthered the process of Romanisation by 
the procedure necessary to effect it. 

5. I have dwelt more particularly on the be- 
ginnings of "reception " in the fifteenth century, 
because the motives and reasons of the process 
are, as usual, more clearly apparent in their 
origins than in later developments. But the 
practical side of the process, the harvest of results 
in jurisdiction and legislation, belongs chiefly 
to the sixteenth century. The German courts of 
law, with their peculiar procedure and customary 
lore were overwhelmed by tribunals following 
Roman doctrine, primarily in consequence of 
the organisation of a central Imperial court, 
the " Reichskammergericht." This court deliber- 
126 



ROMAN LAW IN GERMANY 

ately adopted Roman Law for its guidance as 
the common law of the Empire. This occurred 
in 1495, when the " Reichskammergericht " was 
definitely constituted as a standing tribunal. 
The event took place in connection with a move- 
ment towards the strengthening of Imperial 
institutions in the reign of Maximilian I. The 
Empire was reformed as a federation for main- 
taining public peace, divided into regions and 
circles, and subordinated in a legal sense to the 
" Reichskammergericht." This High Court never 
attained, of course, the decisive influence of the 
English Royal courts, or of French Parlements, 
but, nevertheless, it provided a point of concen- 
tration for the Common law of the Empire ; 
and, in spite of its dilatoriness and weakness in 
execution, it exercised a considerable influence 
on the juridical institutions of all the estates of 
the Empire. At the outset, it was enacted that 
half of its sixteen assessors should be doctors of 
laws, the other half being knights. Later on, 
it was decreed that even the knights should, so 
far as possible, be chosen from among persons 
learned in the Civil law. A tribunal thus con- 
stituted threw all its weight into the scale of 
the "reception" of foreign law against native 
customary jurisprudence. The law of^ Justinian 
was received in complexn, in its details and in its 
entirety, with the characteristic limitation, how- 
ever, that it was adopted not directly from the 
127 



ROMAN LAW 



original sources, but from the texts as glossed by 
Italian scholars. The rule that doctrines not 
recognised by the glossators are not to be taken 
into consideration by the judges (quod non ag- 
noscit glossa non agnoscit forum), was more than 
a confession of literary subordination to the 
greater knowledge of Azo, Accursius, Bartolus, 
Baldus, etc. It was necessary in order to avoid 
details too intimately connected with ancient 
life, and entirely unsuited for importation. 

The example set by the " Reichskammergericht " 
was immediately followed by the High Courts of 
the various principalities, and " reception " spread 
from the top to the bottom of the ladder. The 
importance of this gradual assimilation by the 
lower courts, of the leading principles of the 
superior tribunals, is well illustrated, for example, 
in the history of "reception " in the principalities 
of Julich and Berg (in the Rhine province). 
The estates of these principalities resolved in 
1534 and 1537 to remodel their laws on Roman 
patterns, in order to avoid clashing with the 
superior court of the " Reichskammergericht." 
Under the influence of such various considerations, 
a movement towards the codification of local 
laws on the basis of their reformation and of 
the reception of Roman doctrine, sweeps over 
Germany. The towns of Worms and Niirenberg 
(A.D. 1479) are among the first to carry through 
such reformations. Most of the monarchically 
128 



ROMAN LAW IN GERMANY 

organised principalities follow suit, with the 
notable exception of some of the North German 
states, which remained faithful to a jurisprudence 
based on the " Sachsenspiegel." 

The "reception " appears in this light mainly 
as a movement of the tipper classes and of the 
political authorities connected with them. It 
encountered a good deal of opposition in the lower 
orders. Jurists were regarded as bad Christians 
(Die Juristen sind hose Christen}. Every now 
and then one or the other among them was ex- 
posed to contumelious treatment, as, for example, 
two Constance doctors, whom a court of Schoffen 
in Thurgau put to flight, because it did not want 
to hear about Bartele and Baldele (Bartolus and 
Baldus), and was resolved to uphold its ancient 
customs. The revolutionary peasantry in 1525 
declared in a fictitious document, nicknamed 
" The Reformation of the Emperor Frederick III," 
"that all doctors of laws should be abolished, 
and that justice should be administered according 
to the law of Moses, because it is not good for 
men to get better law than that proclaimed by 
God." Ulrich von Hutten was never tired of 
inveighing against the greedy, ignorant, pedantic 
set of lawyers, who spread darkness over the 
simplest questions, and use their pretentious 
learning to fleece the poor public. But, on the 
whole, the " reception " of foreign Common law 
was affected with much less strife and opposition 
K 129 



ROMAN LAW 



than might have been expected from the radical 
nature of the experiment. The learned judges 
of Germany became judges in Civil law. The 
fundamental incongruity of the attempt was 
only realised much later, when native legal 
customs were resuscitated from oblivion and 
contemptuous relegation to the lowest local 
courts. The revenge of German law against 
artificial reception was achieved in our days by 
men like Heusler, Beseler, Gierke. And the 
weapons they wielded were forged from the general 
doctrines of German law, reconstructed by the 
help of its history. 

Is it allowable to draw a moral from a complex 
historical process like the one we have been 
examining ? It seems as if, in spite of all varieties 
of tone and mood, two or three leading strains 
were constantly recurring in its course. It is 
evident, to begin with, that the reception of 
Roman Law depended largely on political causes ; 
this legal system was subordinated to the idea 
of the State towering over individuals or classes, 
and free from the intermixture of private and 
public interests characteristic of feudalism. It 
was bound to appeal to the minds of all the pioneers 
of the State conception to ambitious Emperors, 
grasping territorial princes, reforming legists, 
and even clerical representatives of law and order. 
Coming, as it did, from an age of highly developed 
social intercourse, Roman Law satisfied in many 



ROMAN LAW IN GERMANY 

respects the requirements of economic development. 
Although history never repeats itself, and the 
conditions of industry and trade in fourteenth- 
century Europe differed widely from those pre- 
vailing in the Roman Empire, the results of a 
vast experience in setting legal frames to business 
dealings had been accumulated in the Roman law- 
books, and the progressive classes of the closing 
Middle Ages did not fail to utilise them. This 
influence is especially manifest in the law of 
contracts. Lastly, from the jurisprudential point 
of view the scientific value of Roman Law r could 
not be contested ; it asserted itself as soon as 
there reappeared theoretical reflection on legal 
subjects. And when the elaboration of Common 
law became a social necessity, the Roman system 
grew to be a force not only in the schools, but 
also in the courts. Altogether, the history of 
Roman Law during the Middle Ages testifies to 
the latent vigour and organising power of ideas 
in the midst of shifting surroundings. 



APPENDIX 



I. (top. 13). 

Lex Romana Curiensis, IV. 
De responsis pnulentum. 



Codex Theodosianus, i, 4, 3. 

Impp. Theoclosius et Va- 
lentinianus A A acl Sena- 
turn urbis Roma?. Inter- 
pretatio. Hacc lex osten- 
clit, quorum Juris condito- 
rum sentential valeant, hoc 
est Papiniani Pauli, Gaii, 
Ulpiani, Modestini, Sc;u- 
vola?, Sabini, luliani atque 
Marcelli, quorum si fuerint, 
prolatae diversa: sententia-, 
ubi maior numcrus unum 
senserit, vincat. Quod si 
forsitan sequalis numerus in 
utraque parte sit, eius par- 
tis pra?cedat auctoritas, in 
qua Papinianus cum a>quali 
numero senserit, quia ut 
singulos Papinianus vincit, 
ita et cedit duobus. Sca^- 
vola, Sabinus, lulianus at- 
que Marcellus in suis cor- 
poribus non inveniuntur, 
sed in pwefatorum opere 
tenentur inserti. 



Imp. Theodosius. In- 

terpretatio. Ha?c causa 
sicut Papiani, Pauli, Gagii, 
Ulpiani, Modestini et Sci- 
fola, Savini, luliani atque 
Marcelli est. Isti viri clar- 
issimi consilium in suis cor- 
poribus melius esse non 
cognoverint, et in his libris 
sic continent. Ubi de ac- 
cionem indiciarie contendi- 
tur, vel ubi inter duos 
heredes de ipsorum facul- 
tatem intencione inter se 
habuerint, si nnus de illis 
habuerit amplius homines, 
qui eius causam teneant, 
quam ille alius : qui mai- 
orem numerum habuerit de 
bonos homines, ipse in iu- 
dicio secundum legem suam 
causam vincat. Et si for- 
sitan de homines equalem 
numerum habuerint, prece- 
dat eius auctoritas, qui in 
lege Papiani pro se alicum 
titulum invenerit, ipsa cau- 
sa vincat. 



APPENDIX 



II. Liutprancl 134 (top. 23). 

Si hominis in uno vico habitantis aliqua intentionis 
habuerit dc canipo ant vinea praclo aut silva vel cle alias 
res, et collexerent se una pars cum virtutem et dixerent 
" quia wifamus et cxpellimns cum dc ipsum locum per 
virtutem foras," et ambolaverunt, et scandalum ibi 
commissum fuerit et plagas aut feritas factas vel homo 
occisus fuerit : ita decernimus, ut plagas et feritas aut 
hominem mortuum conponant secundum anteriorem 
edicto, quod gloriosus Rothari rex vel nos instituimus ; 
pro autem inlecita presumptionem de ipsa collectionem 
conponat solidos 20 ad illam partem, qui in campum aut 
in vitis vel in prado aut in silva suum laborem faciebat. 
Hoc autem ideo statuimus, ut nullus presumat malas 
causas in qualiscumque locum excitare aut facere et 
non potuimus causam istam adsimilare, neque ad arischild, 
neque ad consilium rusticanorum, neque ad rusticanorum 
seditione : et plus congruum nobis paruit esse de con- 
silium malum, id est de consilio mortis. Quia quando 
se collegunt et super alius vadunt pro peccatis, ad id 
ipsum vadunt ut malum faciant, aut si casus evenerit, 
hominem occidant, et plagas aut feritas faciant : ideo, 
ut dixemus, adsimilavimus causam istam ad consilium 
mortis, quod sunt, sicut supra premisimus, solidi vigenti. 



III. Origines, V, c. 24, 25 (to p. 28). 
De instruments legalibus. 

Donatio est cuiuslibet rei transactio. Dictam autem 
dicunt donationem quasi doni actionem, et dotem quasi 
do item. Pra-cedente enim in nuptiis donatione dos 
sequitur. 

Conditio quid est (V, c. 24, 29). 

Conditio a condicendo quasi condictiones quia non 
ibi testis unus jurat, sed duo vel plures ; non enim in 
unius ore sed in duorum aut trium stat omne verbum. 
Item condictiones dicuntur quod inter se conveniat sermo 
testium quasi condictiones. 

133 



ROMAN LAW 



IV. Glossa Irnerii (top. 55). 

" Cum equitas et jus in hisclem rebus versentur, dif- 
ferunt tamen. Equitatis enim proprium est id quod 
justum est simpliciter proponere. Juris autem idem 
proponere volendo, scilicet aliquantum auctoritate sub- 
necti. Quod propter hominum lapsus multum ab ea 
distare contingit, partim minus quam equitas dictaverit 
continendo, partim plus quam oporteat proponendo. 
Multis quoque aliis modis equitas et jus inter se differunt. 
cujus dissensus interpretatio, ut lex fiat, solis principibus 
destinatur " (quoted by Meynial, Encore Irncrins, N. R. L. 
de dr. fr., 1897, p. 352). 

V. Glossae Vacarii ad D.I. 3 (to p. 56). 
(From the MS. of the Dean and Chapter of Worcester. ) 

1 . Conditor autem et interpres legum solus est imperator. 
Scilicet ex propria volumtate. Ceteri ex necessitate. 
Item iudicis interpretatio nulla intelligitur preterquam 
si nullo ab his inter quos iudicat iuris remedio infirmetur, 
inter eos tantum tenet. 

2. Generale et naturale congruum ut eo modo solvatur 
quid quo constructum est. Imperatoris autem consti- 
tutionem inuito populo immo et reclamante interdum 
fieri contingit et valet. Ergo et durat ut nee per con- 
suetudinem abrogari possit nisi prius imperium et po- 
testatem a principe amotam populus recipiat. 

VI. (to p. 69). 

Dig. I, 3, 32 pr. (Julianus). Beaumanoir, Prologue : 

De quibus causis scriptis Nous entendons a con- 
legibus non utimur, id cus- fermer grant partie de cest 
todire oportet quod mori- livre par les jugemens qui 
bus et consuetudine indue- out este fet en nos tans en 
turn est : ladite contee de Clermont ; 

et 1'autre partie par clers 
usages et par cleres cous- 
tumes usees et acoustumees 
de lone tans pesiblement ; 

134 



APPENDIX 



et si qua in re hoc defi- et 1'autre partie, des cas 

ceret, tune quod proximum douteus en ladite contee, 

et consequens ei est : par le jugement des chas- 

teleries voisines ; 

si nee id quidem ap- et 1'autre partie par le 

pareat, tune jus, quo urbs droit qui est communs a 

Roma utitur, servari opor- tous on roiaume. 
tet. 

VII. Coutume de Beauvaisis, 31 (to p. 82). 

Pour ce que mout seroit longue chose et chargeant as 
hommes qui font les jugemens de metre en jugement 
tous les cas qui vienent devant le baillif, li baillis doit 
metre grant peine de delivrer ce qui est pledie devant lui, 
quant il set que Ten doit fere du cas selonc la coustume 
et quant il voit que la chose est clere et aperte. Mes ce 
qui est en doute et les grosses quereles doivent bien estre 
inises en jugement ; ne il ne convient pas que Ton mete 
en jugement le cas qui a autre fois este jugies, tout soit 
ce que li jugemens soit fes pour autres persones, car 1'on 
ne doit pas fere divers jugemens d'un meisme cas. 



VIII. (Bracton I, i 2, i 3) (to p. 92). 

Cum autem fere in omnibus regionibus utatur legibus 
et iure scripto, sola Anglia usa est in suis fmibus jure non 
scripto et consuetudine, in ca quidem ex non scripto ius 
venit quod usus comprobavit, sed non erit absurdum 
leges Anglicanas, licet non scriptas, leges apellare, cum 
legis vigorem habeat quicquid de consilio et consensu 
magnatum et reipublicae communi sponsione, auctoritate 
regis sive principis pmecedente, iuste fuerit definitum et 
approbatum. Sunt etiam in Anglia consuetudines 
plures et diversa^ secundum diversitatem locorum. 
habent enim Anglici plura ex consuetudine quae non 
habent ex lege, sicut in diversis comitatibus, civitatibus, 
burgis et villis, ubi semper inquirendum erit qua; sit 
illius loci consuetude et qualiter utantur consuetudine 
qui consuetudines allcgant. 

Cum autem huiusmodi leges et consuetudines per 

135 



ROMAN LAW 



insipientcs ct minus cloctos, qui cathedram iudicandi 
ascendant antequam leges didicerint, saepius trahantur 
ad abusuni, et qui stant in dubiis et in opinionibus, et 
multotiens pervertantur a maioribus, qui potius proprio 
arbitrio quam legum auctoritate causas decidunt, ad 
instructionem saltern minorum, ego Henricus de Brattone 
' animum erexi ' ad vetera indicia iustorum, perscrutando 
diligenter, non sine vigiliis et labore, facta ipsorum, con- 
silia et responsa, et quicquid inde nota dignum inveni in 
unam summam redigendo. 



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