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
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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
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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
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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.
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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
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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,
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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
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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.
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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.
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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
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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,
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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,
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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
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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,
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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
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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.
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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
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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
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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,"
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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
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