CHAPTER XXI

ROMAN AND CANON LAW IN THE MIDDLE AGES.

 

I.

Origins in antiquity

 

The age of the Crusades was also the age of the revival of legal studies in Italy. These studies were devoted chiefly to two legal systems closely related to each other not only in their historical origin and evolution but also in their form and content. Neither the Civil Law nor the Canon Law had originated in the medieval centuries immediately preceding the Italian legal renascence. Both of these systems were outgrowths of the age of antiquity; both of them were integral parts of the civilization which the Middle Ages inherited from the ancient world. The Civil Law—the medieval Roman Law—was a system created by the ancient Romans and transmitted by them to the peoples of the East and the West; while the Canon Law, an adaptation and expansion of the Roman Law to meet the purposes of the Christian Church, was in its origins and earlier development not less a creation of the Roman legal genius than the Civil Law itself.

At the time, however, when by slow processes of movement and change ancient society was gradually transforming itself into medieval society, these two bodies of law were in different stages of evolution. The Roman Law had already passed the period of its maturity in the time of the classical jurists and was in process of adaptation to meet the altered social conditions of the world. Canon Law, on the other hand, was still in the earlier stages of its growth. This difference between the state of Roman Law and the state of Canon Law at the beginning of the medieval epoch—a difference marked by the character of the sources and the literature of the two systems and by the scope and manner of the application of these legal materials to human affairs—determined in many ways the main lines of their separate but related histories in the Middle Age. In the case of the Roman Law the work of the medieval centuries was to adapt, modify, and apply a system which the Romans of antiquity had already perfected; while in the case of the Canon Law, on the other hand, the work of the Middle Age was to develop, expand, and apply a system which the ancient Roman world had only begun to evolve for the needs of the youthful Church.

The main purpose of the present chapter is to sketch in outline the history of these two systems of law throughout the medieval age. Two preliminary matters must engage our attention, however, at the very outset of the enquiry. It will be necessary, in the first place, to observe the processes of the inner growth and the worldwide spread of the Roman Law in the age of antiquity, for this earlier development lies at the very basis of the history of the Roman system in the Middle Ages; and, at the same time, we must gain some notion of the nature of the Roman legal materials that were to influence the growth of law in medieval times. A second subject of study, not less important than the first, is the history of the origins of Canon Law in the age of antiquity, and of its general development and its sources in the periods of the Middle Age.

Not until we understand these two preliminary matters can we proceed to the study of our main subject, the history of the Roman and Canon Laws in the Later Roman Empire of the East, in the Germanic kingdoms of the West during the early medieval centuries, and in the several national areas—Italy, Spain, France, Germany, and England— of the later Middle Age.

What were the processes whereby the Roman and Canon Laws spread throughout the world—in the East as well as in the West—during the medieval epoch?

What was the result of the contact of these laws with other legal systems?

Where and how were the two Romanic systems studied; and what was the influence of such studies?

These are some of the historical problems with which we shall be concerned.

We shall not, therefore, restrict our attention to the age of the Crusades and the revival of juristic studies. To do so would result in the loss of perspective and conceal from our gaze all but a small part of the complete picture. The complete picture, however, must be at best but a rough sketch, an impressionist design. The sources and the literature of the history of Roman and Canon Law in ancient and medieval times fill thousands of volumes. Only a few of these can be drawn upon for the purposes of this chapter. Only a few of the rich and varied colors of medieval legal life can be spread upon our canvas. All but the barest outlines must be left undrawn.

Let us begin with the two preliminary subjects which are to furnish us with the background of our picture.

 

II.

Periods of Roman legal history

 

The history of the evolution of the Roman Law and of its worldwide extension can be traced in unbroken continuity throughout twenty-five centuries. In one sense the ancient history of this greatest of all the legal systems of antiquity reaches its end when the decay of the classical jurisprudence set in, as a part of the general decline of the Roman world, about the middle of the third century after Christ. In another sense, however, the ancient period of Roman legal history does not finally terminate until the completion and promulgation of Justinian's codification in the first part of the sixth century. The transition from ancient to medieval times was in fact a slow process of centuries; and in no respect is this more noticeable than in the history of the law. Legal decay, adaptation, and transformation were at work in the regions of the West long before the time of Justinian; and from his time onwards these processes also became a marked feature of the legal history of the East. In legal history the chronological boundaries of great eras cannot be marked out with nicety and precision. Transition sometimes takes decades or even centuries.

Let us for the moment fasten our attention upon the authenticated evolution of Roman Law during the ten centuries before the death of Justinian; for the first three hundred years of the city we are without adequate historical evidence. Within this long period of a thousand years the customs of a small city-community were transformed into an elaborate system of justice and extended by conquest to the ancient world. During the epoch from the establishment of the Republic until the subjugation of central and southern Italy, the composite of fas, ius, and boni mores which characterized the ancient custom of the regal period became the ius civile, the ius proprium civium Romanorum, and was codified in the Lex XII Tabularum (B.C. 451). The latter half of the Republican age was marked by the growth of the ius gentium and the ius honorarium. Various influences affected both the form and the substance of the law; and among them were provincial conquests, the growth of commerce and the influx of foreigners, the institution of the peregrin praetorship, the simplification of procedure, and the introduction of new remedies under the Aebutian law. The spread of literature and philosophy, as well as the decline of religion and morals, also influenced the law. The growth of the law—which in this period was composed of ius civile, ius gentium, and ius honorarium—owed little to legislation; but the law's debt to custom, to the edicts of magistrates, and to professional jurisprudence, was very great. The centuries of the Empire before the time of Diocletian were the age of the ius naturale and the maturity of Roman jurisprudence; while the age of codification stretched from Diocletian to Justinian—an age when the Emperors were supreme as the sole legislators and when Christianity, as the religion of the State, exerted a powerful influence on legal growth. Within these chief periods of Roman legal history, so briefly sketched, the law was not only altered in its form and substance, but it was gradually diffused throughout all the provinces of the Empire. The inner growth of the law as a system of justice and its worldwide extension went hand in hand as aspects of one and the same historical process. Certain features of this process demand our attention. Both Roman policy and Roman Law recognized the personality of law as a fundamental principle. By conquest Rome brought within her dominion many non-Roman peoples in all parts of the ancient world, peoples who at the time they became subject to Rome were already living under their own national customs and laws. On the principle of the personality of law the Roman ius civile applied only to Roman citizens; while the peregrini, even under Roman rule, continued to live according to their native systems of law. Thus, there existed under Roman political sway many diverse legal systems, of which the Roman ius civile was only one; and the Roman Law did not, therefore, dominate the entire territory of the Roman State from the beginning. Indeed, it was only gradually, by a long process of development, that the Roman system displaced native legal institutions in the provinces; and even in the end it did not everywhere supersede them. In many parts of the Empire native systems persisted and survived Roman rule; they contributed their share to the development of law in the Middle Ages.

Ius civile and Ius gentium

The existence within the Roman domain of many diverse bodies of law—the ius civile of the Romans and the laws of the peregrini—raised the problem as to which of these several national laws should be applied to the relations of Romans with peregrins and of peregrins of one nationality with those of another. The Romans solved this problem, not by the development of a system similar to modern international private law, or the conflict of laws, but by the evolution of a third body of law different from either one of the national laws of the two parties. This third body of law was known as the ius gentium. Gaius states that the ius gentium was the law common to all peoples; and the words of Gaius find their place in due time in the Digest. But this theory of the nature of the ius gentium does not correspond with the facts, for in truth the ius gentium was a branch or part of the Roman Law itself: it was that part of the Roman system which had been evolved, both by the edicts of the Roman magistrates possessing jurisdiction over peregrins and by the work of the Roman jurists, to regulate the interrelations of persons of different nationality. The principles of the ius gentium were drawn in part from the Roman ius civile; in part they were new principles, distinct from Roman ius civile, derived in large measure from the national laws of the peregrins, but shaped, both in form and spirit, in accordance with Roman ideas of justice. The ius gentium embodied the newer legal ideas, and at many points it was in conflict with the principles of the ancient ius civile. Applied in the first instance to the cases where there was a collision of two national laws, the ius gentium was later invoked in cases involving two members of the same nation and thus in cases between two Roman citizens; and in fact the ius gentium was used extensively in the settlement of disputes between Roman citizens. The evolution of the ius gentium as a new and integral part of the Roman system was thus a powerful factor in the spread of Roman Law and in the process of the unification of law throughout the Roman dominion.

Another factor of no less importance was the gradual extension of Roman citizenship to the peregrini; for each extension of citizenship meant the extension of the application of the Roman ius civile. This development reached its climax in the beginning of the third century, when Caracalla, in his famous Edict (212), abolished the distinction between citizens and peregrini by granting full citizenship (civitas) to all in the Roman world. In theory at least, the main result of the Edict was that all in the Empire were now amenable both to the ius civile and the ius gentium. In fact, however, the general application of the ius civile throughout the Empire was never fully carried out in practice. Even after the Edict the distinction between citizens and peregrini was not completely obliterated; for there still continued to be inhabitants of the Empire who were not citizens. There is evidence, furthermore, that in various parts of the Empire the old national laws of the peregrins survived not only Caracalla's Edict but also the Justinianean legislation. For the persistence of those laws in certain of the eastern provinces of the Empire the Syrian-Roman Law Book is ample authority.

The history of the evolution and spread of Roman Law in the ancient world is in divers ways enlightening to the student of the medieval history of that system. Not only does it give him clear ideas as to the nature of the system, its component parts, its rules and principles, its sources and its juristic literature; but it also shows him that, extensive as was the spread of the Roman Law, it never completely obliterated all the other legal systems of antiquity. Although an account of the concrete rules and principles of Roman Law, as they are to be found in Roman legal sources, more particularly in the Theodosian Code and in Justinian's law-books, does not fall within the compass of our present survey, we must nevertheless take pains to observe two main results of the evolution and spread of the Roman system during the periods of ancient history, for these results materially affect the medieval development.

Let it be noted, in the first place, that the worldwide diffusion of the Roman Law in antiquity partly prepared the way for its further extension in the Middle Age. The Roman Law penetrated far and wide, in the East and in the West, and gave the ancient world a legal unity such as it had never before enjoyed; and yet this legal unity was of the kind which left in force, even though altered, many local laws and customs of non-Roman origin. Medieval times began, therefore, with the Roman Law in possession of only parts, though extensive parts, of the worldwide legal field. In the East the Greek Law had never been wholly absorbed or obliterated by Roman Law in ancient times; it lived on in many regions under Roman rule. In the period of the Byzantine Empire it continued to come into contact with the Roman Law, more particularly the Justinianean law, and it helped to fashion the Graeco-Roman Law of the East. Likewise in the West the Middle Ages began with Roman Law in only partial occupation of the field. The Western provinces of the ancient Empire had been Romanized in varying degrees of intensity; the Romanization of Italy differed widely from that of Britain. The differences between the legal histories of Western regions in medieval and modern times are due in no small measure to the differences in the extent of Romanization in antiquity. The historian of European Law must constantly take account of the fact that the planting of Roman culture, including culture in law, had been intensive in some regions, partial or slight in others. In no extensive region of the West was Roman Law the sole law at the beginning of the Middle Age. Throughout vast areas Germanic racial customs held dominance. Nor were Germanic customs the only rivals of the Roman Law as the world passed into the medieval epoch. In various regions Celtic customs had survived the changes effected by the spread of Roman power and, later, by the migrations of the Germanic tribes. Indigenous customs other than Celtic also lived on during the periods of Roman and Germanic movement and pressure. Here and there Greek Law, planted in southern Europe during the days of Hellenic colonization, still persisted.

The second main result of the ancient development of Roman Law, in so far as that development affects medieval law, was the accumulation of a mass of legal sources. The history of Roman Law in the Middle Age is, to a large extent, the history of the world-wide diffusion of the manu­scripts of these legal texts and their employment by legislators, judges, practitioners, and jurists in the work of adapting Roman Law to medieval social conditions. The facts of this vast process arc so complex, so intimately interwoven in the network of medieval events, movements, and tendencies, so bound up with diverse social, political, and economic conditions in the many parts of the world, that they are bewildering even to one who is trained to single out the main and determining lines of historical development. In truth, to write the medieval history of Roman Law in all its fullness would mean the writing of the history of medieval civilization—the life of Europe ever moving, ever changing, in the course of the centuries. Not forgetting this wider aspect of Roman legal history in the Middle Age, let us observe that, so far as the diffusion of the texts of the Roman Law is concerned, there are two features of the complex historical process which illumine our path and guide us to understanding.

The first point which we have to note and remember is that the medieval world is not one vast community under a single system of law and government; it is a world made up of many communities, differing one from another in race, in language, in social and legal institutions. Within the Byzantine Empire there is an appreciable degree of political and legal unity; and, at times, there is also political and legal unity of a sort in the West. But the dominant note in the political and legal history of the Middle Age is particularism, diversity, disunion. The system of the personality of law in the early Middle Age means particularism and diversity; and, with the growth of feudalism and the idea that law is territorial, as distinct from personal, regional diversities take the place of racial diversities in law. As a result, there is at first no tendency to uniformity in respect of Roman Law throughout medieval Europe as a whole. A limited legal uniformity is at length introduced by the Frankish Capitularies; but, on the whole, uniformity in law is more marked in modern than in medieval times, and even in modern times it is but a partial uniformity based in large measure on common origins. Since the time of the ancient Roman Empire, Europe has never been one State with one law. Even in the period of the medieval Empire and the medieval Church it was composed of many States, each with its own separate legal system.

There is, secondly, the point to be remembered that during the Middle Ages each political unit adopts and adapts in ways of its own the texts of the Roman Law that come to its hands. There is no power from above which imposes certain texts over the whole of Europe. Some of the texts which are adopted and adapted by the separate units are pre-Justinianean, while some of them are parts of Justinian’s codification itself. In the early Middle Age in the West the pre-Justinianean texts have at first a preference: it is only gradually that the Justinianean materials acquire a dominance over the earlier ones. Nor is it surprising to find that of all the texts of the Roman Law the institutional treatises and systematic codifications have the greatest influence upon the spread of Roman legal rules and ideas in the Middle Age; for these materials are easier to grasp and to embody in legislation and the practice of courts than are the texts of a more limited and special character. Furthermore, they are more comprehensive and they thus meet more completely the social needs of the time.

Of the pre-Justinianean texts there were three which exerted a far-reaching influence in spreading Roman Law: the two private compilations or codes, known as the Codex Gregorianus (about ad 300) and the Codex Hermogenianus (probably before ad 323), and, notably, the great Code of the Emperor, the Codex Theodosianus (ad 438). Although the Gregorian and Hermogenian Codes were private works, they were nevertheless regarded as authoritative down to the time of Justinian, and they were not superseded by the far more important Code of Theodosius; for while the Codex Theodosianus did not embody materials before Constantine, the Gregorian Code reached back to the time of Hadrian. In the East the Codex Theodosianus was superseded by the codification of Justinian; but in the West it long influenced legal growth in the Germanic kingdoms, large parts of it being embodied in Alaric's Breviary and other legal sources. In the East, Justinian’s codification—gradually molded, especially in the Basilics, to meet Eastern needs—was of paramount importance from Justinian's time down to the fall of the Byzantine Empire and even later. In the West, the pre-Justinianean sources, particularly the Theodosian Code, long continued to play a greater role than the texts of Justinian. With the progress of time, however, the Institutes, Digest, Code, and Novels of Justinian spread everywhere throughout the regions of the West. The revival of juristic studies in Italy was by far the most important of all the factors making for this far-reaching influence of the Justinianean law. Not only were the law-books of Justinian the subject of study and instruction in the law schools; they were incorporated in the law itself by the practice of the courts and by the acts of the legislators. Ultimately they became the very essence of the medieval Roman Law of Western countries—the Corpus iuris civilis.

Other aspects of the medieval history of Roman Law will be considered in later parts of this chapter. For the moment let us turn our attention to the second preliminary subject of our study—the history of the origins of Canon Law in antiquity and of its general development and sources in the periods of the Middle Age.

 

III.

Differences between Civil and Canon Law

 

While the Canon Law is the law of the Christian Church, a law created and enforced by organs of the Church, it embodies nevertheless rules derived from the Old Testament and thus from times long before the birth of Christ; and, in general, the Canon Law no less than the Civil Law is a bequest from antiquity. Not only do the earlier stages in the growth of the Canon Law fall within the period from the birth of Christ to the end of the age of antiquity, but the Canon Law itself is in large measure an off-shoot from the main stem of Roman legal growth, deriving from the older system many of its rules and principles. In its origins and in much of its later development the Canon Law is as much the product of Roman civilization as the Civil Law itself.

From the point of view of medieval history there are, however, many points of difference between the Civil Law and the Canon Law. Not only is the Civil Law primarily the secular law of the State, while the Canon Law is primarily the law of the Christian Church; the difference between the stages of growth reached by the two laws at the close of ancient times also affects materially their medieval courses of evolution. As we have seen, the Middle Age adopts and adapts a system of Civil Law which antiquity had perfected, while it takes over and slowly brings to perfec­tion a system of Canon Law which antiquity had only begun to develop: the Canon Law is the younger system. This difference leaves its mark on the history of the sources of the two systems during the medieval epoch. It accounts for the fact that the historian of Canon Law, as distinct from the historian of Civil Law, must spend much of his time in tracing the evolution of a growing and expanding system and in describing and explaining the successive additions to the sources of that system before, during, and after the formation of the Corpus iuris canonici.

The fortunes of the Church followed the fortunes of the Empire, within the frontiers of which it had its origin and earlier growth. The division of the Empire into its western and eastern halves resulted in a corresponding division of the Church. This process of ecclesiastical division was practically complete by the end of the sixth century; but only in 1054 was the schism of Eastern and Western Churches finally consummated. The eastern and the western halves of the Church thus went their separate ways as the Greek Catholic Church and the Roman Catholic Church; and this splitting of the one Catholic Church into two necessarily resulted in the division of the Canon Law into two bodies of rules and principles, the Eastern or Greek Canon Law and the Western or Latin Canon Law. These two bodies of Canon Law possess common elements; they are closely related to each other in various ways; but yet they are distinct one from the other in many other ways and their histories must be separately traced. The early Greek Canon Law consists only of Eastern conciliar canons; it admits no purely Latin elements and it cannot, therefore,lay claim& to universality.

Early Latin Canon Law is itself composed largely of Greek materials; but to this Greek nucleus Latin elements, chiefly the canons of local and ecumenical Councils and the papal decretals, are continually added. The medieval history of both of these canonical systems falls within the compass of our study; but it is the Western Law which must chiefly engage our attention.

In respect of the history of Western Law let us note three main points. In the first place, the history of the Canon Law passes through the same stages of development as does the Church itself. Two of the principal stages we may designate the conciliar and the papal. Corresponding to the constitutional history of the Church the canons of the earlier centuries are chiefly the work of the Councils, whereas in the later centuries the canons are for the most part the product of the legislative power gradually acquired by the Popes and they are embodied in the decretals. In the second place, the term Canon Law has a wider and a narrower meaning; and it acquires its narrower significance only after the law itself has developed into a system and been made the object of study. Whereas in its broader signification Canon Law is the sum or aggregate of the rules which have been recognized or evolved by the organs of the Church for the governance of the ecclesiastical body, in its narrower meaning it is the law contained in a definite and closed group of law-books known as the Corpus iuris canonici. Thirdly, let us note that jurists sometimes use the term his ecclesiasticum as equivalent in meaning to his canonicum. This usage leads at times to confusion; for the term ecclesiastical law is also employed to designate a branch of the law of the State as distinct from the law enforced by the Church itself. The canones regulae were very early distinguished from the secular laws, the nomoi, leges; and hence the Canon Law is sometimes referred to as the canones, sacri canones.

Ius antiquum and ius novum

Turning to the history of the sources of Canon Law, more especially the sources of the law enforced by the Roman Church, let us observe, in the first place, that they consist of three main kinds: the Holy Scripture, traditions and customs, and the legislation of Councils and Popes. In dealing with these sources, modern canonists draw a chronological and theoretical line of distinction between the ancient and the new law. The ius antiquum is the law developed and enforced prior to the time of Gratian; while the his novum is the law em­bodied in Grattan’s Decretum and the other parts of the Corpus iuris canonici. To distinguish it from the ius antiquum and the ius novum, the law established by the Council of Trent and subsequent papal constitutions is known to canonists as the recent law, the ius novissimum. Canonists also draw a distinction between the ius scriptum, the written laws which emanate from Councils and Popes and which are embodied in the collections of sources, and the ius non scriptum, or unwritten law, a body of traditional and customary rules based in large measure on natural equity. A further distinction should also be remembered. The common law, the ius commune, is the general law intended to regulate the whole ecclesiastical body; while special or local law is the law which, by derogation from or addition to the common law, is concerned with certain categories of persons or certain regions. The function of legislating for the whole Church belongs only to the episcopate, assembled in general or ecumenical Council, and to the Pope as its chief: local councils or in­dividual bishops or prelates have authority to make only special or local laws. Most of the canons which constitute the ius antiquum, including such of those canons as are embodied in Gratian’s Decretum, emanate nevertheless from local councils or individual bishops, not from the supreme authorities of the Church. These canons have gradually come to form parts of the ius commune by reason of the fact that canonical collections which include these local canons as their principal element have been adopted generally in all parts of Christendom as of binding authority.

Both the ius antiquum and the ius novum fall within the compass of our present survey, and of each one of these divisions of the law a few words must needs be said. Let us glance therefore, first of all, at the history of the sources of the ius antiquum, the law before the time of Gratian and the formation of the Corpus iuris canonici.

In the first centuries of the Christian era, before the close of the period of persecutions, the life of the Christian communities was governed by the Scriptures and by ecclesiastical tradition, the unwritten canon or regula. The various Churches early came to have their own traditions and usages, and these they obeyed as their unwritten customary law; apart from the Scriptures the early Church law was not embodied in any written code. Not until the time of Constantine and the other early Christian Emperors was it possible for the ecclesiastical legislative power to act freely and to create a body of written law. The new position of the Church in its relation to the State formed the constitutional basis of a new movement which led to the establishment of a written law of the Church somewhat after the pattern of the Roman Civil Law. The organs which expressed the mind of the federated Christian communities in the matter of law, no less than in that of creed, were the early ecclesiastical Councils of the fourth century; and the codes formed during the decade 305-315 by the Councils of Elvira, Ancyra, Neocaesarea, and Arles are the earliest of the conciliar materials preserved in the later body of the Canon Law. These codes possessed, however, no binding authority out­side the localities in which they were issued.

The opportunity to issue a code for the whole Christian Church finally presented itself at the Ecumenical Council of Nicaea (325): and the issue of such a code of law was a part of Constantine’s policy of bringing about the unity of the Church and its close alliance with the Empire. The Nicene canons, in which were incorporated some of the canons of the Eastern Council of Ancyra and of the Western Council of Arles, constitute the earliest code of Canon Law for the whole Church. In the course of time many other codes possessing no connection with the Nicene Council were placed by collectors of canons in the Nicene code and were thus given its authority. Particularly in the West the Nicene code acquired a position of high authority in the realm of discipline. Innocent of Rome in the cause of St Chrysostom writes that “other canon than the Nicene canons the Roman Church receives not”.

Eastern collections of canons

The compilation of collections of canons began in the East. The elaboration of these collections, with certain additions drawn from the West, such as canons in the Latin collection of Dionysius Exiguus, resulted ultimately in the formation of the official collection of the Greek Church as it was recognized and sanctioned by the Council in Trullo (692). As defined by the Council, the Greek collection consists of several classes of documents: firstly, the eighty-five Apostolic Canons; secondly, the canons of the Councils of Nicaea, Ancyra, Neocaesarea, Gangra, Antioch, Laodicea, Constantinople (381), Ephesus, Chalcedon, Sardica, Constantinople (394), Carthage (the one of 419, according to Dionysius); thirdly, the canonical letters of several great bishops, such as Dionysius of Alexandria, Peter of Alexandria (the Martyr), Athanasius, Basil, Gregory of Nyssa, Amphilochus of Iconium, and Gennadius of Constantinople. To this official collection were added at a later time the twenty-two canons of the Second Council of Nicaea (787). As thus completed, the official canonical collection of the Greek Church had several medieval commentators, such as Photius (883), Zonaras (1120), and Balsamon (1170); but it has remained unchanged down to the present day. As pointed out by Boudinhon, the later growth of the Eastern Canon Law—that is, after the Council of Nicaea (787)—was due to the work of the Byzantine Emperors before the fall of the Empire in 1453.

In its fifth-century state the Greek collection was translated and introduced into the West. The one hundred and two canons elaborated by the Council hi Trullo (692) did not become part of Western Law until a much later time, and then upon the initiative of Pope John VIII (872-881). Meanwhile local collections of canons were made in the West from the fifth century onwards. Within the sphere of the see of Constantinople a tendency towards the unification of ecclesiastical law manifested itself as early as the fifth century; but in the West collections were purely local until in the eighth and ninth centuries, as the result of passing on the several collections from one region to another, there were the beginnings of a process of unification.

Western collections of canons

The most ancient, and in some respects the most homogeneous and noteworthy, of all these Western local collections is that of the Church of Africa. By the time of the Vandal invasion the African collection had already acquired special importance as an official code; but our knowledge of it is now derived chiefly from incomplete and confused accounts in the collection of Dionysius Exiguus and the Spanish collection known as the Hispana. About the middle of the ninth century Fulgentius Fenandus, a Carthaginian deacon, made a methodical arrangement of the African collection in the order of subjects; and this is now known as the Breviatio canonum.

The Roman Church in its early history governed itself largely by its own traditions and customs and by papal letters called decretals. Of non-Roman sources of canonical law it officially recognized, before the sixth century, only the canons of Nicaea and Sardica. At the beginning of the sixth century, however, the Roman Church adopted the double collection —composed of Latin translations of Greek canons and thirty-nine decretals of the Popes from Siricius (384-398) to Anastasius II (496-498) —made by the Scythian monk Dionysius Exiguus; and this collection, its second part receiving successive additions as further decretals appeared, remained the only official body of Canon Law for the Roman Church until the reforms of the eleventh century. Pope Hadrian I in 774 gave this double collection of Dionysius to the future Emperor Charlemagne as the canonical book of the Roman Church; and hence it is known as the Dionysio-Hadrianq. This collection, officially received by the Frankish Church at the Council of Aix-la-Chapelle in 802, and thereafter recognized and quoted as the liber canonum, became the code of Canon Law of almost the whole of the Western Church. In the hands of Pope Hadrian I, and of Charlemagne and the Franks, the work of Dionysius was thus a powerful factor in the growth of a unified Western Canon Law.

Gaul was exceptional in not possessing a code of local Canon Law. The Church had not been centralized, as in many other regions of Europe, round some principal see; and the political territorial divisions had not been stable. In the fifth and sixth centuries only the Church of Aries constituted a canonical centre of any real influence over its surrounding region. The main collection of canonical sources—known from its seven­teenth-century editor as the “Quesnel Collection”—contained valuable materials, chiefly Eastern and African canons and papal letters, but no canons of the local Gallic councils. When it was introduced into Gaul, the Dionysio-Hadriuna did not, therefore, displace any local and generally-accepted collection. Unifying tendencies in the development of Canon Law thus came from without and not within the Gallic Church. In this process the alliance between the Carolingian power and the Papacy, and the acceptance of the Dionysio-Hadriana, or liber canonum, marked an important stage.

The Spanish Church differed fundamentally from the Gallic; for it had been effectively centralized round the see of Toledo. As a result the Spanish Church possessed an important collection of Spanish Canon Law, the Hispana, dating from the early part of the eighth century, which, although not strictly speaking an official collection, was everywhere re­ceived. The Hispana includes in its first part the canons of Greek, African, Gallic, and Spanish Councils, the canons of Spanish Councils forming the local section of the collection; while the decretals of the Popes are in the second part, as in the case of the collection of Dionysius. The Hispana emerged into a position of great importance in the period beginning in the middle of the ninth century, for it then served as the basis of the False Decretals.

Although the Churches of the British Isles remained longer than most other Churches outside the centralizing movement and the tendency to a unification of Western Canon Law, they contributed nevertheless to the growth of the law as finally embodied in the Corpus iuris canonici. This contribution consists fundamentally of two things: firstly, the collections of penitentials, including those of Theodore of Canterbury (ob. 690), the Venerable Bede (ob. 735), and Egbert of York (732-767); and, secondly, the Irish collection, dating apparently from the eighth century, which introduced the practice among canonists of quoting passages from the Scriptures and the writings of the Fathers. Apart from these two groups of materials, the sources of British local Canon Law were not known to Gratian’s predecessors nor to Gratian himself; and they did not, therefore, influence the form and content of the Decretum.

The False Decretals

About the middle of the ninth century there appeared the famous collection known as the False Decretals. Round this collection there has arisen a vast controversial literature which it is impossible, within the limits of the present chapter, to summarise or appraise. Certain it is that the collection is based on the genuine Spanish collection known as the Hispana or Isidoriana. The author, whether he was the mysterious Benedictus Levita, to whom the False Capitularies, a collection closely akin to the False Decretals, have been attributed, or whether he was some other person, assumed the name of Isidore, Bishop of Seville, who had been credited with the greater part of the Hispana or Isidoriana collection: and hence the False Decretals are sometimes known as the Pseudo-Isidore. Whoever the author may have been, it is now agreed on all sides that the collection had its origin within the Frankish Empire.

The collection contains as many canons of councils as papal decretals; and the decretals in it are not all forgeries. It is best described as an amplification of the genuine Hispana by the interpolation of spurious decretals. Of the three parts of the collection, the first is completely spurious. It contains, after introductory matter, seventy spurious letters attributed to Popes before the Council of Nicaea (325), all of these letters being the forgery of the false Isidore except two spurious letters of Clement which were already in circulation. The second part of the collection contains the canons of Councils. Most of these are genuine, the few forgeries, including the famous Donation of Constantine, being already known. The third part is a continuation of the series of decretals—which in the first part of the collection had ended with the date of the Nicene Council—down to St Gregory the Great (ob. 604); but it contains also one letter of Gregory II (715-731). The authentic decretals of the Popes begin only with Siricius (385), and these the Pseudo-Isidore includes in his collection; but he adds also spurious decretals both for the time before and the time after 385. Most of the forged decretals are not composed entirely of freshly fabricated material. The author draws upon the Liber Pontificalis and ecclesiastical writings for some of his matter. Thus, the genuine Councils and decretals, and even this genuine matter falsely put into the mouths of the Popes, served to cloak the skillfully fabricated stuff of the forger and to give it credence.

Blended thus of genuine and spurious matter, the collection rapidly circulated throughout the West and long passed as a valuable source of Canon Law. All the later collections drew materials, genuine and false indiscriminately, from the Pseudo-Isidore. Not until the fifteenth century were suspicions aroused as to the true character of the collection : Cardinal Nicholas of Cusa (ob. 1464) and Juan Torquemada (ob. 1468) expressed in no uncertain terms their doubts as to its authenticity. In the sixteenth century Erasmus, as well as Dumoulin (ob. 1568) and Le Conte (ob. 1577), the two editors of Gratian’s Decretum, decisively refused to accept the Pseudo-Isidore. Gradually the history of the forgery has been pieced together by scholars; and the false character of parts of the collection is now universally admitted.

The object of the forger appears to have been the reform, or better application, of the Canon Law. He desired to prevent bishops from being unjustly accused or deprived of their sees, and to protect the property and persons of the clergy against the encroachments of bishops and nobles. He desired also to increase the strength and cohesion of the Churches; and he made the Papacy the very centre of his ecclesiastical edifice. These objects the wide acceptance of the False Decretals no doubt furthered. Certainly they served as a powerful factor in the movement, within the Frankish territories, towards the centralization of power in the see of Rome.

Opinions differ as to the extent of the modification and corruption of Canon Law itself occasioned by the influence of the False Decretals. However this may be, there is no doubt that by furthering the tendency towards its unification the False Decretals mark an important stage in the history of the law. In yet another respect the Pseudo-Isidore is note­ worthy; for it is the last of the long series of chronologically arranged collections of the texts of Canon Law. From this time onwards the canonists arranged the conciliar and papal canons in systematic order according to subject-matter and not according to time; and thus they gradually prepared the way for the systematic codification of the his commune in the Decretum of Gratian and the other integral parts of the Corpus iuris canonici. Furthermore, from the time of the False Decretals onwards the canonists not only arranged and systematized the materials, gradually bringing local canons into the general mass of the common law; they also added to the bare texts their own conclusions and discussions, thus clothing the texts with canonist learning and theory.

Canonical collections before Gratian

During the three centuries between the appearance of the False Decretals and the time of Gratian about forty canonical collections were made. Among the most important of them are the Decretorum libri of Burchard, Bishop of Worms, written between the years 1012 and 1023, and the three works—the Panormia, the Decretum, and the Tripartite Collection—attributed to Ivo of Chartres, who studied under Lanfranc at Bee and was the last of the great canonists of the period of the ius antiquum. Although many of these collections dating from the middle of the ninth to the middle of the twelfth century were of practical and theoretical value, no one of them rose into eminence as the standard or classical collection which embodied in the most orderly and concordant form the whole mass of the materials of Canon Law that had grown up in the centuries of Christendom. Gratian, garnering the rich harvest which he found in the canonical works of his predecessors, finally provided this standard collection at the very centre of the revival of juristic studies. With Gratian and his monumental Decretum the period of the ius novum had its beginnings, the period which was to see the completion of the Corpus iuris canonici.

The gradual formation of the Corpus iuris canonici covers a period of over three hundred years. As finally completed it consists of five separate parts.

 (1) Gratian’s Decretum forms the first and in many ways the most important part: it constitutes in truth the basic part of the entire Corpus iuris canonici. It is known that Gratian was a Camaldulensian monk of the convent of St Felix at Bologna, where he taught Canon Law; although only a few details of his life have come down to us. His great work—dated between 1141 and 1150, or, as it is now thought, between 1139 and 1141—bears in the older manuscripts the title Concordia discordantium canonum, but is better known as the Decretum. The Decretum is based on earlier collections, including the works of Ivo of Chartres, but is much more than a compilation or collection. So skillfully has Gratian ordered and treated his materials that his work is essentially a treatise on the Canon Law in which the authorities themselves are included. There are three parts or divisions of the work. The first part deals with the sources of the law and with ecclesiastical persons; the second with ecclesiastical jurisdiction, procedure, property, and marriage; the third with consecration, sacrament, and liturgy. The portions of these parts that are Gratian’s own personal contribution are known as the Dicta Gratiani, while the notes by Paucapalea, a twelfth-century disciple of Gratian, as well as those of a few other scholars, are called Paleae. Very soon after its appearance Gratian’s Decretum was treated as if it were official; while in the law schools it was used as the foundation of teaching in Canon Law. Like the texts of the Justinianean codification in the hands of the Glossators, the Decretum Gratiani was soon provided with glosses. Before 1215 glosses were written by Johannes Teutonicus, and about the year 1236 by Bartholomew of Brescia. It is difficult to overestimate the vast influence which Gratian's work exerted for centuries upon the study and spread of Canon Law throughout the Christian world. No other single book of Canon Law can vie with it in importance and influence.

 (2) To complete Gratian’s Decretum, five compilations—known as the Quinque Coinpilationes Antiquae—were made before the time of Gregory IX. The first of these, compiled by Bernard of Pavia about 1190 was divided into five books, as follows: (1) ecclesiastical hierarchy; (2) procedure; (3) functions and duties of the clergy; (4) marriage; (5) penal law. This order of subjects adopted by Bernard became the accepted order in future compilations of Canon Law. Later scholars have summed it up in the well-known verse: “Judex, Judicium, Clerus, Connubia, Crimen”. The last of the remaining four compilations of this group—the Quinque Compilations Antiquae—was an official collection of the decretals of Honorius III, 1216 to 1226.

By the Bull Rex pacificus (1234) Gregory IX sent to the Universities of Bologna and Paris a compilation of the decretals of Popes since the completion of the Decretum of Gratian. This official compilation, known as the Decretals of Gregory IX, or “Extra” (that is, “Decretales extra Decretum vagantes”), and abbreviated as “X” (meaning “extra”), was in reality a continuation of Gratian's Decretum, which now became in law what it had always been in fact—an official Code of Canon Law. The author of the Extra was Gregory IX's confessor, Raymond de Penafort, a Spaniard, who, following the arrangement of Justinian's Code, divided the compilation into books, titles, and canons. Bernard of Parma, who died in 1263, added glosses.

The Quinque Compilationes Antiquae were superseded by Gregory’s collection and by it deprived of all their authority.

 (8) Boniface VIII collected in 1298 the decretals subsequent to the Extra; and he published the new compilation in the manner adopted previously by Gregory IX in the case of the Extra—by sending it to the Universities of Bologna and Paris. Boniface VIII’s collection constituted the Sextus or Liber Sextus Decretalium, the five earlier books being those embodied in the Extra. In 1348 the Sextus was glossed by Jean Andre.

 (4) In 1313 Clement V published another collection of decretals, including his own, which is known as the Clementinae. John XXII, Clement’s successor, recast the collection and sent it to the Universities in 1317.

 (5) The Extravagantes, or the decretals omitted from the above-mentioned compilation, are of two groups: (a) the Extravagantes of John XXII (twenty constitutions), (6) the Extravagantes Communes including the decretals issued by various Popes, since the publication of the Sextus, from Boniface VIII to Sextus IV (1484). The collection of Extravagantes differs from the earlier ones just mentioned in not being an official compilation. But it found its place in editions of the Corpus iuris canonici; and, inasmuch as all its documents were authentic, it was treated as if it were official.

As completed and closed by the Extravagantes, the Corpus iuris canonici is thus composed of: (1) the Decretum Gratiani; (2) the Decretals of Gregory IX (Liber Extra); (3) Boniface VIII’s Liber Sextus Decretalium; (4) the Clementinae; (5) the Extravagantes.

The term Corpus iuris canonici, used as the antithesis of the term Corpus iuris civilis when applied to the whole of the Roman Law, is to be met as early as the twelfth century. In the sixteenth century the term acquired, however, a technical sense, being used to denote the entirety of the five sets of texts already described. Prom 1563 to 1580 the correctores romani, a commission of cardinals and scholars, worked at Rome in order to form a better text than that of the manuscripts and publications then in use. The results of the labors of the commission appeared in 1582, under the pontificate and by the orders of Gregory XIII, as the official edition. Thus formed and completed under the direction of the Church, the Corpus iuris canonici constitutes the ius novum as distinct from the ius antiquum; and it is still the foundation of the Canon Law. The complete body of Canon Law today includes also the ius novissimum, the law that has been evolved since the Council of Trent (1545); but the ius novissimum forms no part of the Corpus iuris canonici in its technical sense. The gradual evolution of the law embodied in the Corpus iuris canonici, a development extending through more than fifteen centuries of the Christian era, is one of the outstanding features of ancient and medieval history. It is an evolution comparable in many ways to the slow growth of the law contained in Justinian's great codification and later in the Corpus iuris civilis. With certain aspects of the medieval history of the Canon Law we shall be concerned in later portions of this chapter. We shall see how the Canon Law, as the law of the Church, spread throughout the medieval world, how it influenced secular law and juridical and political theory, how in short it became an integral and vital part of medieval civilization.

 

IV.

Roman and Canon Law in the East

 

The history of Roman and Canon Law in the Middle Age falls naturally into two main geographical divisions: the dividing line is formed by the boundary between the East and the West. Although these two parts of our history are closely related to each other—there are legal influences and counter-influences that play back and forth between the two vast provinces of Christendom—we must nevertheless study each part singly ere we can see these relations in their true perspective and gain a complete picture of the vast process of legal evolution in medieval Europe as a whole. First of all, then, let us briefly survey the history of the Roman and Canon Laws in their eastern home within the Later Roman Empire.

Two events of the reign of Constantine the Great mark the definite beginnings of the division of European legal history into its eastern and its western parts. Each one of these events produced far-reaching and lasting results within the domain of law; each one of them shaped and transformed laws and customs in all parts of the world; each one of them was a factor of the highest importance in the history of Roman and Canon Law both in the East and in the West. The first of these two events was Constantine’s adoption of Christianity. Henceforth a new order of ideas was given full play in all parts of the ancient world; and these ideas molded many of the processes of legal growth not only in the period from Constantine to Justinian but throughout the medieval era. The history of Roman and Canon Law among the Hellenized peoples of the East and among the Germanic societies of the West displays in many striking ways the after-influence of the recognition of Christianity in the days of Constantine; and yet these after-influences in the East differ markedly from those in the West.

A second event of almost equal significance in the history of law was the making of Byzantium a second capital of the Roman Empire. The centre of gravity in the Empire had been slowly shifting to the East for a considerable time before Constantine; the establishment of Constantinople accelerated this process and gave to the Eastern half of the world-wide imperial domain a definite preponderance. With the loss of the Western provinces, caused by the expansion of the Germanic peoples, the ancient Roman Empire persisted only in the East. Until it finally succumbed to the power of the Ottoman Turks in 1453, this Later Roman Empire—this Greek or Byzantine1 Empire—was the true Roman Empire, its Emperors being the legitimate successors of Augustus in an unbroken line of continuity; and down at least to the beginning of its decline in the middle of the eleventh century, except in the lifetime of Charlemagne, it was the first political power in Europe. This transference of the Roman Empire from the West to the East led to legal as well as political results of the highest moment; some of them are to be seen by a comparison of the history of Roman and Canon Laws in their Eastern and in their Western environments.

As the heir of antiquity the Later Roman Empire became the true guardian of the legal traditions of the ancient Empire. In the first half of the sixth century these traditions were, in certain respects, maintained. Justinian, the great codifier of the accumulated mass of Roman legal materials derived from the past, was an Eastern Emperor; his codification was made and promulgated in the East. What, it should now be asked, was the fate of the law of Justinian in its Eastern home? Were the ancient Roman legal traditions still further preserved? Did the law continue to develop in the spirit of the classical jurists? Was the East to inherit the legal genius of the West? The answers to these questions are of far more than ordinary historical interest.

Three main characteristics of the Later Roman Empire determined the future course of legal history and gave to medieval Roman and Canon Laws in this part of the world certain of their marked characteristics. Whereas, throughout the greater part of its history, the ancient Empire had been predominantly Western, Pagan, and Roman, the Later Roman Empire down to its fall in 1453 was fundamentally Eastern, Christian, and Greek. Here we may find the main key to the legal history of the East. The general geographical situation of the Later Roman Empire, particularly its proximity to the Slavs and Eastern peoples, and the social, economic, and religious conditions of its several parts, were determining factors in the evolution of the Roman and Canon Law within the imperial frontiers. But this is only expressing in different terms the same cardinal fact: the Empire was Eastern, Christian, and Greek, and its law evolved along the lines of imperial development.

The history of the Justinianean law in the East may be sketched by a brief consideration of the legal sources in the successive periods of imperial history.

Justinian declared that his codification was to be the sole statement of the law; nothing outside it was to be regarded. In case of need, resort could be had only to the Emperor himself, inasmuch as he was the sole source of the law. The Emperor authorized literal translations into Greek, indexes, and Parátikla or summaries of parallel passages or titles; the writing of commentaries and general summaries, as an interference with the Emperor's prerogative of interpretation, was sternly forbidden. But despite these prohibitions —prohibitions designed to restrict the law to the imperial law-books— notes, abridgments, excerpts, general summaries, and commentaries appeared even in Justinian's own lifetime and for half a century thereafter. These writings appear to have been intended chiefly for use in the law schools; most of them were prepared by professors (antecessores). Soon, however, they were in the hands of practitioners and judges; and they thus came into general use.

One of the best known of these writings is the Greek Paraphrase of the Institutes, which has survived in various manuscripts. It is usually attributed to Theophilus, one of Justinian’s commissioners and a professor in the law school of Constantinople; but Ferrini, its latest editor, holds that the authorship of Theophilus rests on inadequate evidence. He contends that the work is a reproduction of Gaius in Greek, that it was originally drawn up at Beyrout, that it was remodeled at a later time on the plan, and with some of the matter, of Justinian's Institutes. The Paraphrase of the Institutes formed the subject-matter of commentaries by Dorotheus and Stephanus; while commentaries on Justinian's Digest, Code, and Novels, written by various Eastern jurists, also appeared.

This period of the jurists’ study of Justinian’s codification soon came to an end. The codification itself had been rendered into Greek and had formed the basis of scholarly, literary treatment; but, once that had been accomplished, juristic studies rapidly decayed. During the profound social disturbances of the seventh century the law-books of Justinian seem to have been hardly understood. The practice of the courts was largely influenced by Greek Christian ideas and ecclesiastical canons; and, with the decline of Roman traditions, these influences shaped legal growth and gave character to the period of legislative activity in the eighth century. Within the domain of legislation the outstanding feature of the century was the appearance of the Ecloga of Leo the Isaurian (740), an abstract of the whole codification of Justinian as amended and rearranged in accordance with Greek and Christian ideas of the time. The legislation of Leo represents indeed a wide departure from the Justinianean rules and principles in nearly every branch of the law, a departure so colored by ecclesiastical notions of justice that the Ecloga itself has been called a Christian law-book. Thus, for example, while Justinian treated marriage as a contract, dissoluble at the will of the parties, Leo III introduced the Church's doctrine that marriage was an indissoluble bond. The period of the Isaurian (Syrian) and Phrygian (Amorian) Emperors (717-867) was a time in which the law was developed through practice away from the Justinianean model and little or no thought was given to scientific legal studies.

At the beginning of the period of the Macedonian dynasty (867-1057) a great change took place. Basil I (867-886) and his son Leo the Philosopher (886-912), at the end of the ninth and beginning of the tenth centuries, pursued the policy of a return to Justinian's law and a revival of legal studies. Basil repealed the Ecloga of Leo the Isaurian as a departure from Justinian's law which it professed to summarize; and he set himself to the task of producing an authoritative Greek version of the whole of the Justinianean codification, but with the omission of obsolete matter and the introduction of the most desirable parts of the legislation enacted since the death of Justinian. The legal materials were subjected to a treatment somewhat similar to that accorded by Justinian and his commissioners in their day to the writings of the classical jurists and the other accumulated sources. The first result of the new legislative policy was Basil's issue in 879 of a kind of institutional work entitled The law as it is, composed of extracts from Justinian's Institutes, Digest, and Code. The main work of the Emperors, however, was the famous Basilics, a collection of all the laws of the Empire, prepared by legal commissioners. They were begun in the time of Basil and completed under Leo.

The Basilics

The Basilics are composed of sixty books, subdivided into titles, in accordance with the general plan of Justinian's Codex. Within this framework the law on any particular subject, whether derived from Justinian’s Institutes, Digest, Code, or Novels, is arranged consecutively. The so-called the scholia to the Basilics is an addition to the Basilics, consisting of an official commentary collected from the writings of the sixth-century jurists, published by Leo's son, Constantinus Porphyrogenitus. This work has proved of great value to modern civilians in their work of reconstructing the Roman legal texts. Annotations by jurists of the tenth, eleventh, and twelfth centuries, also referred to as scholia, are of less value. In many points of civil as distinct from criminal law the Basilics discard the rules of the Ecloga in favour of those to be found in the Justinianean codification. An example of this tendency of the Basilics is to be found in their revival of Justinian's law of divorce, with the result that in the East there thus arose in respect of this matter a contradiction between the Civil and the Canon Law. Although the Basilics retained their statutory authority down to the fall of the Byzantine Empire in 1453, they had long before that time been neglected in practice.

The Basilics were in fact the one really great codification of Graeco-Roman Law in the Later Roman Empire after the time of Justinian; the successors of Basil the Macedonian and Leo the Philosopher did not legislate on a grand scale. Somewhat more than a century after Leo there was, however, a marked revival of juristic studies under Constantine IX (1042-1054), who founded a new law-school. Many jurists continued down to the fall of the Empire to write commentaries, epitomes, and compendia; but of these jurists only John Xiphilin, Theodore Balsamon, and Constantinus Harmenopulus, of the eleventh, twelfth, and fourteenth centuries respectively, need be mentioned here. The decadence of juristic studies is represented in a striking way by the Exabiblos of Harmenopulus, a work which appeared about 1345, and which Bruns has characterized as “a miserable epitome of the epitomes of epitomes”.

Graeco-Roman Law

The inner history of the Byzantine or Graeco-Roman Law—the history, that is, of its rules and principles, as distinct from the history of its sources and general development—is of more than usual interest to the student of the medieval history of Roman Law in central and western Europe. It shows him how the Justinianean law, as embodied in the Institutes, Digest, Code, and Novels, further developed under Eastern conditions; and it thus gives him an opportunity to compare contemporary development in the Germanic West. By means of comparison he is enabled to see clearly the similarities and the differences between the two evolutionary processes, and to study the underlying social, economic, religious, and political causes which produce divergence and convergence in legal growths. Of special interest is a comparison of legal medievalism in East and in West; for the Byzantine regions, no less than the Romano-Germanic regions of the West, passed through corresponding stages of medieval growth in the domain of law. The medieval legal development of the East, from the sixth to the ninth century, is interrupted by a restoration of the Justinianean law which corresponds in some ways to the revival of the study and influence of that law in Italy and Western Europe from the time of the Glossators to the Reception. Only by bringing into our studies both the Eastern and the Western modes and processes of legal growth, decay, and revival, together with their background of racial, social, and political conditions, ever changing and ever acquiring new colors drawn from the life of civilization itself, can we hope fully to grasp the nature and significance of the vaster movements in medieval legal history.

In certain parts of Eastern Europe, Graeco-Roman Law survived the fall of the Byzantine Empire and the vicissitudes of the following centuries. The civil code of Moldavia, published in 1816-17, is a codification of Byzantine Law. The civil law of modem Greece is also largely indebted to it. The Basilics were sanctioned as law in 1822, but were displaced in 1835 in favor of the epitome of Harmenopulus; although in framing her civil code Greece followed the Napoleonic code as her model, she professes nevertheless to base the law in theory upon the edicts of the Emperors as embodied in this “miserable epitome of the epitomes of epitomes” written by Harmenopulus. In his Geschichte des griechisch-romischen Rechts Zacharia von Lingenthal expresses a most favorable opinion of the Moldavian code of Byzantine law; and he regrets that Greece did not adopt it as the basis of her own codification. In an earlier part of this chapter reference has already been made to the growth of Greek Canon Law during the Middle Ages. Here it is only necessary to observe that the relation between Graeco-Roman Civil Law and Greek Canon Law was very close. Under ecclesiastical influence many of the texts of the Civil Law—the Ecloga, for example—were permeated with the principles of canonical jurisprudence. The evolution of the ecclesiastical law itself was due in large measure to the work of the Emperors. The two bodies of law developed side by side as two aspects of the same historical process. The so-called Nomocanons illustrate this. In these great compilations the imperial civil laws and the ecclesiastical canons on each subject were placed side by side and contrasted. Jurists abridged these compilations and also recast them in systematic treatises (syntagmata). The Nomocanon of John of Antioch, a learned priest made Patriarch of Constantinople by Justinian in 564, was revised and enlarged by Photius and published under Basil in 883. Many of the jurists were as good canonists as civilians. Among the most distinguished canonists were John Zonaras and Theodore Balsamon, both of the twelfth century.

 

V.

Leges romanae and leges barbarorum

 

Let us turn our attention from the East to the West. In this part of the medieval world the background of the history of Roman and Canon Law is formed by three vast processes: the decay and fall of the Western Roman Empire; the expansion of the Germanic peoples and the establishment of their several kingdoms; the growth of the Church and of its law. With the history of the Canon Law itself in the Germanic era—the history of its sources and constituent elements—we are not now immediately concerned; but it should be noted that, as the Church developed, its law also developed and that the ecclesiastical courts of Western Christendom everywhere enforced it. Our present object of study is the part played by the Roman and the Canon Law in the life of the Germanic kingdoms during the period of the decay and fall of the Western Roman Empire. What was the influence of those laws on the legislation of the barbarians ?

The establishment of the Germanic kingdoms within the Western provinces of the Empire brought Roman Law and Germanic Law face to face. The problem as to which of these two bodies of law should govern was solved by the Germanic rulers on the principle which had already been followed by Rome in meeting a similar problem raised by the spread of Roman power and Roman Law to regions inhabited by non-Roman peoples. On the principle of the personality of law1 the Germanic rulers allowed the Roman population to live under Roman Law and the Germanic population to live under their own native laws and customs. There were exceptions to this principle, as we shall see; but, in general, it long governed Germanic legislative policy and judicial practice.

Owing to the personality of law the written laws of the Germanic kingdoms were of two main kinds: the so-called leges romanae, intended for the Roman population; and the so-called leges barbarorum, designed for the Germanic population. Apart from these there were the Capitularies of the Frankish imperial rulers. Our study must now be directed to a brief consideration of these three sorts of Germanic legislation.

In 506 Alaric II, King of the West Goths, gave his Roman subjects their own code of laws, the Lex Romana Visigothorum, known also as the Breviarium Alaricianum; and this proved to be the most important of all the leges romanae of the Germanic realms. Alaric’s purpose was to epitomize the leading rules of practice arid thus to remove the prevailing confusion and uncertainty due to the many texts of Roman Law then in use. The commission of jurists appointed by the king for the execution of this purpose proceeded upon a plan similar to that adopted by the lawyers of Justinian's commission at a later time. Unlike the compilers of the Justinianean legislation, however, Alaric's commissioners neither altered nor mutilated the passages of the texts which they chose; they simply deleted those portions of the texts which were no longer appropriate to the social conditions then existing. In selecting texts they drew upon both the ius and the lex of the Roman system. From the ius they adopted the liber Gai, a condensed restatement or compendium of the Institutes of Gaius which had been designed for employment in court practice and much used in Roman schools of the fourth and fifth centuries; and they also selected portions of the Sententiae of Paulus as well as a passage from the Responsa of Papinian. From the lex the commissioners took over by far the greater part of the Codex Theodosianus, as well as the Novels of Theodosius, Valentinian III, Marcian, Majorian, and Severus, and some constitutions from the private compilations known as the Codex Gregorianus and the Codex Hermogenianus. The compilers also incorporated in Alaric’s Breviary an official but worthless interpretatio of all its parts except the liber Gai; the latter text, having been originally adapted to practical use, needed no further commentary. The interpretatio was not composed, as sometimes thought, by the Gothic compilers of the Breviary; it was drawn from writings of Roman Law teachers of the later period of the Empire in which the earlier texts had been adapted to the conditions then prevailing. When the commissioners had completed their task, the Breviary was approved by the popular assembly at Aire in Gascony in the year 506; and it was then promulgated by the king as the sole code for his Roman subjects. Henceforth all other Roman laws were to be ignored.

Alaric’s Breviary. Lex Romana Burgundionum

Alaric’s Breviary represents in a striking manner the decay of Roman Law in the West. At best it is a crude and incomplete compilation if we compare it with the codification prepared in the East by Justinian’s commission a short time afterwards. But we must not forget that it was the work of a barbarian king and as such a rather remarkable achievement; and it certainly possessed the merit of being adapted to the social needs of the debased Roman population of Alaric’s kingdom. Besides, it helped to preserve some of the texts of Roman Law in a part of the old Roman world largely submerged by Germanic barbarians; and it also exerted an influence on the later development of Roman Law in the West which entitles it to a conspicuous place in European legal history. In many parts of Western Europe the Breviary maintained a high authority throughout the Middle Age.

Attention should also be drawn to the lex romana of the Burgundians. Gundobad, King of the Burgundians (474-516), promulgated two law-books for his subjects. The so-called Lex Gundobada was a collection of royal ordinances, issued about the year 495, applicable to the Burgundians and intended also to govern the legal relations between the Burgundians and the Romans. But by issuing the Lex Gundobada the king did not deprive his Roman subjects of the privilege of living under the Roman Law; in fact he promised and gave them a Roman code of their own. This code, the so-called Lex Romana Burgundionum, embraces criminal, private, and procedural law. It was intended as an instruction to judges and not as a complete codification of the Roman Law; Roman Law not included in the Lex Romana Burgundionum continued to have validity. The sources upon which the code is based are the three Codices, the Sententiae of Paul, a writing by Gaius (apparently the Institutes), and school interpretations. After the Frankish conquest the Breviarium Alaricianum was used to enlarge or supplement the Lex Romana Burgundionum. Owing to the fact that Alaric’s Breviary and the Lex Romana Burgundionum were often placed together in manuscripts, a stupid mistake arose as early as the ninth century. A short passage from Papinian’s Responsa formed the conclusion of the Breviary. Hence it was thought that the Lex Romana Burgundionum, which immediately followed the Breviary in the manuscripts, was merely a continuation of the passage from Papinian. The Lex Romana Burgundionum itself thus came to be known as the “Papian”, an abbreviation for Papinian : a designation which, despite the fact that it had and has no meaning, still persists in legal literature.

Edictum Theoderici

The Edictum Theoderici holds a special place among the Germanic leges which we are studying. In establishing his Ostrogothic kingdom in Italy (493) Theodoric had no intention of obliterating the Roman Law. He differed indeed from other Germanic rulers in making the preservation of the unity of the Roman Empire a cardinal feature of his policy; and many of his constitutional and legal arrangements were based on this conception. The Goths lived in accordance with their own laws, the Romans by Roman Law; while disputes between Goths and Romans were: settled in accordance with Roman Law. The Edictum Theoderici, promulgated probably between the years 511 and 515, arose out of these conditions. It was based on Roman legal materials, chiefly the three Codices, the writings of Paul, and interpretations; but it contained also new rules. It was designed as a means of preventing or settling disputes between Goths and Romans, and was applied to both peoples alike.

The Lombards differed from the Ostrogoths in their determination to preserve intact their own Germanic institutions. When they became masters of northern Italy (568), they treated the Romans as a conquered people and completely set aside Roman administrative arrangements. To the Romans as well as to the Lombards Germanic constitutional law was applied; Germanic law also governed the relations of Romans with Lombards. To the relations of Roman with Roman, as well as to matters of Roman family relationship and inheritance, the Roman Law seems, however, to have been applied. The Lombard Law itself was preserved in its Germanic purity, free from Roman legal influence, down to the middle of the seventh century (Edictum Rotharis). Not until the extension and strengthening of the Empire was Roman influence noticeable: as, for instance, in documents. After Charlemagne, in alliance with the Pope, had succeeded in subjugating the Lombards, the Frankish principle of the personality of law—the principle that each people should live under its own laws—was applied; and the Roman Law thus came into full force for Romans in Lombardy.

Although no special code or law-book was promulgated for the Romans within the Frankish realm in northern France, they lived, nevertheless, under Roman Law. From the sixth to the tenth century the Visigothic Breviary of Alaric was used in practice within this region as the general source of the Roman Law; but it was never given real statutory authority. In the north the Roman population seems indeed to have been of far smaller proportions than that of southern France. As a result, the Germanic customary law was of predominant importance in the north, while in the more Romanized south it played a lesser role, Roman Law being more generally applied. This early difference lies at the foundation of the later distinction between northern and southern France as the “pays du droit coutumier” and the pays “du droit ecrit”.

Lex Romana canonice compta

It is to be observed, finally, that the Church as a juristic person or institution—although not the clergy as individuals—was judged by Roman Law in accordance with the principle ecclesia vivit lege Romana. This principle was embodied in the earliest Germanic folk-laws; and the reason for its firm establishment among the Germanic peoples is that the Catholic Church had been derived from the Roman Empire and hence had been maintained as a Roman institution. In the legal writings and decisions, as well as in the collections of ecclesiastical law, the validity of Roman Law seems to have been at all times assumed; the principle ecclesia vivit lege Romana seems indeed never to have been contested. In the earlier medieval period the chief source of the Roman Law as applied to the Church was Alaric’s Breviary; while from the ninth century onwards Justinian’s Institutiones, Codex, and Novellae were also in use. Not until the eleventh century were the Pandectae of Justinian similarly applied to the Church.

Especially illuminating as one of the main sources of Roman Law in the early Middle Age is the Lex Romana canonice compta, a collection of Justinianean materials for ecclesiastical use dating from the ninth century and originating, to all seeming, in Italy1. The chief materials upon which the compiler has drawn are Justinian’s Institutiones and Codex and the collection of Novels known as Iuliani epitome Novellarum. These materials the compiler has arranged, in general, according to their subject-matter; but it is difficult, as Maassen points out, to find in the collection a systematic plan consistently carried out. Materials of heterogeneous content are sometimes thrown in at places where one would least expect to find them. The Lex Romana canonice compta not only served a practical purpose in providing ecclesiastics with rules of Roman Law that might be useful to them, but it also helped to preserve the texts of the Justinianean law for the employment of future generations. Furthermore, it was one of the many Roman legal materials of the Middle Age which influenced the growth of the Canon Law. Towards the end of the ninth century it was drawn upon by the compiler of the collection of canons that was dedicated to Archbishop Anselm of Milan.

The leges romanae of the Germanic kingdoms hold a special place of their own in the history of Roman Law in the Middle Ages. They represent the decay and barbarization of the law in the West; but at the same time they represent the salvage of a part of the ancient legal culture of the Romans in the midst of the vast disturbance and transformation of European society in the early medieval centuries. The leges romanae were themselves teachers of Roman legal ideas to the Germanic peoples; they helped to prepare the way for the fusion of Roman and Germanic laws in the legal systems of later times throughout many parts of Europe.

The Germanic codes

More significant still, from the point of view of Roman and Canonical legal influence on Germanic law, are the so-called leges barbarorum. During the period from the fall of the Western Roman Empire to the beginning of the ninth century the various Germanic peoples who settled within the former provinces of the Empire put their ancient tribal customs, or at least a part of them, into writing justa exemplum Romanorum. It seems to have been feared that unless the customs were reduced to writing they would suffer in their competition with the more highly developed system of Roman Law. Thus, in addition to the leges romanae, the codes for the Romans in the various Germanic states, there arose many Germanic popular codes, the so-called leges barbarorum. Many of these codes of Germanic law bear marks of Roman and ecclesiastical legal influence, not alone in their form but also in their substance. Although originally the enactments of popular assemblies, they show an increasing influence of Rome in that the king acquires more and more power in legislation; his share in the making of the codes tends ever to increase. Some of the terms applied to the codes, such as edictum and decretum, are merely copied from the phraseology of Roman Law; but certain of the codes, particularly those in which the people took but a slight share as compared with that of the king, show distinct Roman influence in their subject-matter. Apart from the laws of the Anglo-Saxons, which are in the native language of the folk, all of the leges barbarorum are in Latin—not the classical, but the low Latin from which in due time the Romance languages developed; and this use of Latin is a testimony to the influence of Rome upon Germanic law. Many of the codes show a mixture not only of Germanic and Roman elements, but also a mingling of two or more Germanic systems due to migrations and various counter-influences.

It is usual to classify the codes in four groups; but this and all other classifications, particularly those based on resemblances and differences, must be treated with some caution. On the four-fold classification, the Gothic group includes the Visigothic and the Burgundian codes; the Frankish group embraces the Salic, Ripuarian, Chamavian, and Thuringian codes; the Saxon codes include the Saxon, the Anglo-Saxon, and the Frisian; in the Swabian group are the Alemannic code and its off­shoot the Bavarian code. The Lombard code is sometimes classed with those of the Saxon group; but in many ways it occupies a distinct place of its own.

Burgundian and Visigothic codes

The codes of the Burgundians and the Visigoths are of special interest from the point of view of Roman influence. Both the Burgundians and the Visigoths had formed kingdoms under the Roman Empire before its fall; and both peoples were deeply Latinized and under the strong influence of the Roman Law. The result is to be seen in their codes, which are attempts to formulate complete systems covering both public and private law, after the Roman fashion, in contrast with the usual Germanic compilation of a limited number of the most important rules. In substance, also, the codes of the Burgundians and the Visigoths show marked features of Roman origin. The deep imprint of Roman Law on these codes in large measure explains the distinct characteristics, of later legal growth in the southern provinces of Gaul—lower France and upper Italy; for, in contrast with the Germanic character of legal growth in the northern part of Gaul, the law in the southern parts was, in a very marked degree, of Roman derivation.

It has already been observed that the Burgundian code of King Gundobad (474-516), known as the Lex Gundobada, was applicable to Burgundians and Romans alike in their interrelations, the Roman Law being left in force for the Romans as their personal law. Roman influence upon Gundobad and his successors is to be seen in various ways, not least in the fact that, like the Roman Emperors, they issued decrees supplementary to the Lex Gundobada which were known in Roman fashion as novellae. Even after the fall of the Burgundian kingdom (534), the code still possessed validity under Frankish rule as the personal law of the Burgundians.

The Visigothic code, more important than that of the Burgundians, passed through two distinct stages of evolution. As the so-called Antiqua, the code contained laws of King Euric (466-483), the first of the Germanic rulers to give written laws to his people, with revisions and enlargements by Leovigild (569-586) and Recared (586-601). The Antiqua influenced the Salic, Burgundian, Lombard, and Bavarian codes; and it continued to be the fundamental law of the Visigothic kingdom until changed social conditions necessitated a radical legal reform, resulting in the second Visigothic code, the one known as the Leges Visigothorum. Two main factors produced this code: the ever-increasing power of the Church and the slow but well-nigh complete fusion of the Germanic and Roman populations into one people. Owing especially to the latter fact, the existence of two distinct legal systems—the Antiqua for the Visigoths and the Lex Romana Visigothorum (Breviarium Alaricianum) for the Romans—became an anachronism. Inasmuch as it was not possible to give cither one of the codes legal validity for the whole population, in the reigns of Chindaswinth (641-652) and Receswinth (649-672) the two codes were fused into one, to meet the new social needs. Receswinth abolished Alaric’s Breviary of Roman Law; but he preserved parts of the Antiqua in the new Leges Visigothorum. Promulgated in 654 and made binding on Visigoths and Romans alike, the new code became law throughout the Visigothic kingdom of Spain and southern France. Both in arrangement and in substance the code of Leges Visigothorum was strongly influenced by the Roman system, including the Justinianean codification; and this was likewise one of the main features of the later Visigothic compilation which was attributed to King Erwig (680-687) and known as the Lex Visigotkorum Ervigiana. This latter code of the Visigoths, superior to most if not all of the other Germanic codes and taken as a model in other Germanic kingdoms, followed closely, in many ways, the Roman Law and the canons of the Church.

The Frankish Capitularies Many of the other leges barbarorum of the Gothic, Frankish, Saxon, Swabian, and Lombardic groups, even the laws of the Anglo-Saxons, displayed the influence of the laws of Rome and the Church in varying degrees of intensity; and this influence tended to increase with the progress of time. The full story of the permeation of the Germanic leges with Roman and canonical legal elements is fascinating and of fundamental importance, but it is at the same time long and complex; it cannot be recounted in this chapter.

Let us, however, take note of the fact that the rise of the Frankish Empire as the resurrected Roman Empire in the West meant a vast increase in the influence of the doctrines and rules of Roman and Canon Law throughout Europe. The many peoples united under the single sway of the Franks continued in general to live under their own laws on the Frankish principle of the personality of laws. Charlemagne, indeed, decreed in 802 at Aix-la-Chapelle that all the Germanic customs should be put in writing; and the survival of personal laws was a salient feature of Frankish policy. But over these systems of tribal personal law stood the Empire itself, claiming the prerogative of law-making. The imperial power was in large measure based both on the Roman principle that the Emperor was the source of law and also on the ecclesiastical doctrine that imperial authority was divinely bestowed. Founded thus upon Roman and Christian ideas, the Emperor’s authority opened the way for a new and vigorous imprint of Roman and canonical principles upon the law of Europe. Imperial legislation reached to the farthest corners of the Empire, and assisted in moulding the laws of many peoples into forms that fitted them to be the basis of the systems of national territorial law which ultimately developed in the several parts of Europe. The main instruments of the imperial law-making power were the Capitularies; and these were general laws which had application to all subjects of the Empire and which possessed territorial as distinct from personal validity, cutting across and modifying the many systems of personal laws in force throughout the imperial domain. To this there was one important exception. Although on the imperial theory the Frankish Emperor succeeded to the authority of the ancient Roman Emperor, no Capitularies of the Frankish Emperor supplemented the Roman Law as a system of personal law; the reason of the legislators themselves being that no one could imagine the Roman Law capable of improvement. In many directions, however, the Capitularies as general territorial law for the Empire embodied principles of Roman and Canon Law; and these principles the imperial judges applied in their decisions. Judicial power is ever a potent factor in the spread of a legal system. It was potent in the time of the Frankish Empire. It was potent at a later age in the process of the Reception of Roman and Canon Law in Germany. In our own day it has been, and still is, a potent factor in the introduction of English Law into Roman-Dutch and other legal systems within the British Imperial Commonwealth. Not supplanting the pre-existing systems of personal laws, the leges romanae and the leges barbarorum, but standing beside them, and in a sense over them, the Capitularies as applied by the judges nevertheless aided the development of these laws and produced a certain unity of legal evolution throughout Europe, the effects of which were not fully manifest till later times. Like the Constitutions of the Roman Emperors, the Capitularies of the Frankish Emperors were a civilizing and unifying force in which Roman and Canon Law played a role of high significance.

The history we have here so briefly sketched is the history of the foundations of the several legal systems of modern Western Europe. These foundations were Germanic customs and Romanic ideas and principles of civil and canonical law. In the period of the Germanic kingdoms these two main legal elements—the Germanic and the Romanic—were partly combined, partly fused. But everywhere, in all the many parts of Europe, the fusions differed one from another in form and scope; everywhere legal growth meant particularism and diversity. Unity there was of a sort, the unity based on the commingling and combination of Germanic and Romanic elements. But within this general scheme of unity there were almost countless detailed combinations, variations, types; and throughout Europe almost innumerable new growths, arising out of economic and social life, added themselves to the luxuriant garden of Germano-Roman stocks.

Another historical factor tended also to produce variety in legal growths. The gradual spread of feudal institutions turned personal laws into territorial laws; the principle of the personality of law gave place to the principle of the territoriality of law. Feudalism meant that law-was no longer to be carried about by the members of tribes wherever they might wander; that law was now in a sense affixed to the soil, that it governed the affairs of all the men in a region, a territory. The fact that in the feudal age Europe was composed of a vast number of terri­torial lordships, large and small, involved the existence of an equal number of feudal systems of law and custom. Feudalism, no less than tribalism, thus led to particularism, multiplicity, and diversity in the domain of law. But in the territorial systems of law that arose as a result of feudalism much of the substance of the supplanted personal systems, including both Germanic and Romanic elements, was incor­porated.

Still another important feature of the early Middle Age should be noticed. On the map of this age the national lines of modern Europe were nowhere to be seen; but social and political conditions of the time were slowly preparing the way for them. In the course of the eleventh, twelfth, and thirteenth centuries modern geographical and political boundaries were gradually forming themselves; Europe was slowly passing from the age of Germanic kingdoms to the age of the national states of later medieval and of modern times. In our history of Roman and Canon Law we must now take cognizance of these new frontiers in Western Europe; we must deal separately with Italy, Spain, France, Germany (with Switzerland and the Netherlands), and England. In the history of each one of these countries we must, however, go back to the early Middle Age to study the laying of the foundations of the law. Nor shall we find that in any one of these regions of Europe there was much of legal unity. Within each country particularism in legal growth—the particularism of feudal regions, of political divisions and subdivisions of territories, of towns, of different legislatures and courts —was one of the main features of the time. Only slowly, and in some cases only in modern times, was unity in law attained in the different countries. England, with her centralized and unified system of medieval common law, was the first to attain it.

 

VI.

Roman Law in Italy

 

Maitland has taught us that Italy was to be for a while the focus of the whole world’s legal history. It is to Italy, then, that we must first direct our thoughts.

From the fall of the Western Empire to the end of the Middle Age—throughout the periods of domination by Ostrogoth, Greek, Lombard, Saracen, Norman, and Frank—the Roman Law never ceased to be in force in the Italian peninsula. Although this continuity in the history of Roman Law in Italy was at one time disputed, it has long since been established by the researches of Muratori, Donati D'Asti, Guido Grandi, and, finally, by von Savigny’s great work on the history of Roman Law in the Middle Ages. Despite the decay of Roman political power, Roman civilization preserved a stronger hold upon Italy, the very centre of Roman history, than upon the other provinces. Roman Law was a vital part of that civilization, and it persisted tenaciously in the face of all the foreign invasions. Already entrenched in the life of the peninsula before the fall of the Empire, the Theodosian Code long retained a certain primacy among the sources of the Roman Law in Italy. The Church itself had an interest in maintaining the Code of Theodosius, the ecclesiastical constitution and privileges having been founded under Roman governments prior to the time of Justinian. Likewise the books in use at the bar and in the schools were based on this Code. Nevertheless, the codification of Justinian was put into force in Italy by the enactments of the Emperor himself; and, although it did not supplant at once the earlier Code, making indeed but slow progress in this direction, it ultimately acquired a leading place in the legal life of parts of the peninsula. In the regions that were governed from Byzantium the Graeco-Roman or Byzantine Law—particularly in the form of its elaboration by the legislative reforms of the Eastern Emperors, such as Leo the Isaurian (ob. 740), Basil the Macedonian (ob. 886), and Leo the Philosopher (ob. 912)—was also extensively applied in practice.

Under Lombard rule Roman Law persisted and even influenced the Germanic Lombard Law itself. The legal history of the Lombard kingdom possesses indeed many features of special interest to the student of medieval Roman Law; and certain of these features are brought into clear light only through an understanding of the main characteristics of Lombard civilization and Lombard law. The Ostrogoths had been mere military adventurers in Italy; and under the Byzantine Empire’s reconquest they disappeared both as a national and as a legal influence. Wholly different is the story of the Lombards. When, in the sixth century, they entered Italy, they were in point of civilization far behind the Roman population. But they were so strong in body and mind and so aggressive in temperament that they soon conquered a large part of Italy and held it tenaciously. Hostile both to the Empire and to the Church, they were determined to control all Italy and to hold fast to their own ancient civilization and customs.

Our interest for the moment centres in these ancient Lombard customs. Their history in Italy is like that of other bodies of Germanic law in one fundamental particular: contact with the Romans brought about their reduction to writing and their modification in form and substance. Seventy-five years after the entry of the Lombards into Italy, Rothari gave their customary law its written form in his famous Edict of 643. Later kings made supplements to the Edict: Grimoald in 668, Liutprand between 713 and 735, Ratchis in 746, and Aistulf from 750 to 754. What, now, were the Roman influences that played upon this code of Lombard Law? Not only was the idea of a written code derived from the Romans; the designation of the code as an “edict” was a result of Roman conceptions still prevalent in Italy. The very language of the code was that of the conquered people; and it is possible that Romans, more particularly Roman ecclesiastics, took some part in the framing of the Edict and its supplements. The text of the Edict, especially that of the supplements, bears abundant evidences of the incorporation of Roman and Canon Law. In his preamble Rothari transcribes expressions used in the Gothic and Roman codes. The Edict or its supplements contain, in identical or nearly identical words, texts of the imperial decrees, the Bible, the canons, and the Fathers of the Church. Roman and Canonical legal influence tends to increase as the Lombard code is amended and enlarged by the supplements to Rothari’s work. This tendency is strikingly illustrated by the supplements of Liutprand (713-735). The influence of Roman Law may be seen in Liutprand’s imitation of its ideas and terms and in many points of substantive law; thus, Liutprand introduces reforms, based on Roman Law, in respect of wills, women's rights of succession, the guardianship of minors, prescription, and mortgages. Even more significant is the influence of Canon Law on Liutprand’s legislation. During his reign the influence of the Church grew steadily; and he was the Church's main agent in the moulding of Lombard Law in conformity with the Church's law. Many provisions of Canon Law were thus purposely incorporated in the code of the Lombards; for example, canonical doctrines as to impediments to marriage, the privileges of ecclesiastics, the recognition of the pontifical primacy, and penalties upon the pagan practices still surviving. Ratchis and Aistulf followed in Liutprand’s footsteps.

Strong ecclesiastical influence on the legislation of Germanic rulers is characteristic of legal growth throughout many parts of the West in this period; but it is especially striking in the case of Lombardic legislation. The permeation of the code of Rothari and his successors by the rules and principles of Canon Law shows us clearly how the Church, as the framer and interpreter of divine law, inspires the modification of secular law to suit the precepts of divine law. Comparisons between legal growth in the West and legal growth in the East, in the successive periods of medieval history, are ever enlightening. Let us not forget, then, that, at the very time when the Church is molding the Lombardic Law along Latin-Christian lines in the reigns of Liutprand and Ratchis, the same Church influence is effecting a profound change in the law of the East. In the West, Liutprand supplements in 713-735, and Ratchis supplements in 746, the Edict of Rothari; while in the East, Leo the Isaurian’s famous Ecloga, an abstract of the Justinianean codification so colored by Greek ecclesiastical ideas and principles that it may be described as a Christian law-book, appears in 740. Not only in this period does Canon Law exert a molding influence on secular law throughout the world. Throughout the whole of the Middle Age that influence is continually shaping the form and content of Graeco-Roman Law in the East and Germanic-Roman Law in the West. In some periods the ecclesiastical influence on secular law is stronger than in others; but at all times there is a steady tendency in that direction.

Let us now turn to another aspect of the history of Roman and Canon Law in the Italian Middle Age. Great schools of law arose in Italy in which these two closely related legal systems were studied and taught by scholars. In one sense an account of the rise and the work of these schools belongs to Italian history. But when we contemplate the far-reaching influence of these seats of learning and instruction in Roman and in Canon Law, particularly when we observe Bologna’s world-wide effect on constitutional and legal development and on political and juridical thought, we can see at once that we are dealing with one of the most vital aspects of the general history of civilization. In law, as in art, letters, and other features of culture, Italian history is at the same time world history.

Throughout the darkest period of the Middle Age—from the fifth to the tenth century—legal studies in the West were never entirely interrupted. Although there seem to have been no organized law schools and no juristic studies of the highest order, there was neverthe­less, as a part of the general culture of the times, a partial salvage of Roman legal materials and some scholarly attention to their form and content. Monks and ecclesiastics made transcripts and abstracts from the juristic fragments which had survived from antiquity; and these formed the basis of study in the schools of arts. In the curriculum above the rudiments law found its place under dialectic at the end of the trivium of grammar, rhetoric, and dialectic. For a long time legal instruction in Italy was for the most part in the keeping of the practitioners of the law; judges and notaries taught their successors and thus preserved from generation to generation the traditions of the profession. The Prankish period marks, however, the beginning of a far-reaching movement. Law gradually came to be regarded more and more as a science. Books were written dealing with the practice, the theory, and the history of the law. The methods of legal education were steadily improved. There arose in Italy great schools or universities of law. The legal renaissance spread from Italy to all parts of Europe.

The Italian law schools of the early Middle Age were of two kinds. There were schools of Lombard Law at Milan, Mantua, Verona, and Pavia; while, apart from schools kept by bishops and monks, the chief schools of Roman Law were at Ravenna and Bologna. The emphasis placed either on Lombard or on Roman Law in each one of these several schools corresponded to the legal conditions prevailing in the localities where the schools were situate. Legal conditions were constantly changing, however, as a result of the struggle between Lombardic and Roman Law in the practice of the courts; and this struggle in legal life was reflected in the work of the schools.

The Italian law schools

The chief of the schools of Lombard Law was at Pavia, the capital of the Lombard kingdom; and by the close of the tenth century the Pavese school had risen into fame. There had been at Pavia a grammar school, in which law was of course included in the curriculum from an early time; but, chiefly owing to the fact that the Palace Court, the supreme tribunal, was located at Pavia, legal studies were in general in the charge of the judges and practitioners. Out of this system of apprenticeship university instruction in law slowly developed; and, although the precise date of the founding of the Pavese school is no better known than that of the other early Italian schools of law, we learn much of its history from an “Exposition of Lombard Laws” written towards the close of the eleventh century, at a time when the Pavese school of Lombard Law was declining and when the Roman Law was already being cited as the lex generalis. From this book it is clear that the Pavese jurists belonged to two distinct schools of thought. The antiqui or veteres devoted their time and thought to the national Lombardic Law and its interpretation; and these jurists flourished down to the beginning of the eleventh century. The moderni, on the other hand, were the jurists learned in the Roman Law and interested in it as the source of rules and principles for the development and improvement of the national Lombardic Law; and in the second half of the eleventh century this modernist school of thought was in the ascendency. The most prominent of the Pavese lawyers belonged to one or other of these two groups. Thus, Valcausus and Bonifilius were among the antiqui, while Gulielmus and Lanfranc belonged to the moderni. Lanfranc, the son of a judge, early rose to a place of eminence among the Pavese jurists; and, later in life, not only did he found a school at the abbey of Bee, where students flocked to his lectures, but he became adviser to William the Conqueror and Archbishop of Canterbury. The best of the moderni were expert Roman lawyers, deriving their knowledge not from mere practice-books, but from the Roman legal sources themselves. In its later period, before its decline towards the end of the eleventh century, Pavia could be reckoned, therefore, among the schools of Roman as well as of Lombard Law.

At Rome itself the teaching of Roman Law, which in the time of the classical jurists had been a voluntary and private undertaking, appears to have continued down at least to the end of the eleventh century. Theodosius seems, however, to have given the Roman schools an official organization. Certainly before the fall of the Western Empire the teachers at Rome were in receipt of official salaries; and this arrangement was continued by the Ostrogothic kings and by Justinian. By his decree Omnem (533) Justinian assigned official schools to Rome and Constantinople, and by his Pragmatic Sanction (554) he decreed that the salaries of law teachers should continue, so that the youth might not fail of good instruction. When the Empire's authority yielded to the Church’s authority at Rome, studies in Roman Law suffered a change. Ecclesiastical authorities maintained a thorough acquaintance with Justinian’s law-books and an interest in Roman legal science, but by giving to Roman legal studies a purely ecclesiastical tone they deprived the Roman Law of its former Roman spirit and independence of thought. By the end of the eleventh century Rome itself was in a state of decadence, owing to its sack by the Normans in 1084; and Odofred, the Bolognese jurist, tells us that, in consequence, Roman legal studies were transferred from Rome to Ravenna. The origin of the Ravennese school may well go back to the period of the Exarchate, a time when Ravenna was the only seat of Roman authority in Italy; but certain it is that at the close of the eleventh century it was a well-organized and flourishing centre of Roman legal study. Odofred asserts that Ravenna's success as a school was due to the taking of the manuscripts of Justinian's law-books from Rome, and that at a later time Bologna’s success was equally caused by carrying them there from Ravenna1.

Rise of the Bolognese school

Various other causes contributed, however, to the rise of Bologna as the most illustrious of all the Italian law schools of the Middle Ages— the very centre of juristic learning and of its diffusion throughout the civilized world. Bologna’s central geographical position and its judicial and commercial importance, the political favor shown to the law school, and the genius of its teachers, were among the leading factors in establishing the fame of the school. But of special importance were the qualities which early distinguished its teaching. The school assimilated and united all of the legal elements derived from the past, and took a broad and independent attitude towards the various divergent tendencies in juridical thought. It adopted and combined the features of legal science already evolved in the schools of Constantinople, Pavia, and Ravenna; and it enjoyed the favoring influences of Pisa and the adjacent Tuscan regions, such as their Renaissance spirit. Byzantine juristic studies formed a background. The method of glosses and of parallel passages already applied by Pavese jurists to the texts of Lombard Law was none other than the method chosen by the early Bolognese glossators. Pisa was long in possession of the most complete and most famous of all the manuscript texts of Justinian's Digest, the manuscript now in the Laurentian Library at Florence; and distinguished Tuscan jurists, such as Pepo and Gratian, the founder of the new school of Canon Law, taught at Bologna. Finally, owing to the political conditions of the time, Bologna possessed the exceptional advantage of being the one city in Italy where Roman legal study could best establish itself afresh, with every prospect of great success, under its traditional imperial patron.

The revival of Roman legal studies at Bologna resulted in a return to the treatment of law as a science which had characterized the work of the classical jurists eight centuries before. The popular Roman Law which had been evolved in practice, in response to the social needs of the intervening feudal epoch, was disregarded by the jurists, their sole aim being to know the texts of the Justinianean codification and to expound them scientifically. Not only was law separated from dialectic and other branches of study and given its own separate place in education, but it was also deprived of its character as a mere handmaid to the practitioners. These methods and purposes of legal study spread outwards from Bologna. In the course of the thirteenth and fourteenth centuries old law schools were given fresh life and new schools were established. From Bologna there were migrations of teachers to other places where schools were set up; and some of these, such as the schools at Padua, Siena, and Pisa, became permanent and influential seats of legal learning. Rulers also restored or founded schools on the Bologna pattern, this being the origin of the State schools, such as those at Naples and Rome. In many schools Canon Law was added to Roman Law as one of the important branches of study. As the universities grew they sought the support of the Emperor or the Pope; and nearly all of them obtained the privileges and pro­tection afforded by papal bull or imperial charter.

Manuscripts of Justinian’s law-books

The Bolognese jurists possessed manuscripts of all parts of Justinian's codification —Digest, Institutes, Code, and Novels; and the peculiar state or form of the manuscripts largely controlled the course of their study. Thus, there were several texts or readings of the Digest known as literae. The text of manuscripts which were earlier than the Pisan manuscript, or which differed from it, was known as litera vetus (litera communis, litera antiqua); the Pisan manuscript was designated as the litera Pisana; while a composite text, formed by a collation of all the other texts for school use at Bologna, was called the litera vulgata. Likewise there was a peculiar three-fold division of the contents of the Digest. That part of the Digest which extended from the beginning to Book XXIV, title 2, was known as Digestion Vetus; the part onwards to the end of Book XXXVIII was designated as the Infortiatum; while the remainder, from Book XXXIX to Book L, was called the Digestion Novum. This very remarkable classification of the parts of the Digest, which long persisted in European scholarship, has been explained, on the basis of the traditional views of the glossators, as the result of the transfer of the Justinianean manuscripts from Ravenna to Bologna. Irnerius, when he began to work on the manuscripts at Bologna, did not have the full text of the Digest; and, when he afterwards became familiar with the missing portion in the middle of the manuscripts, he named it the Infortiatum (the “fortification” or “fortifying addition”). Whatever may be the value of this traditional view, reported by Odofred, one of the Bolognese glossators, and now generally accepted by scholars, it clearly points to the fact, as Calisse, in his Storia del diritto italiano, has pointed out, that this triple division of the Digest's contents must have been made at Ravenna before the time of Irnerius. It was but natural that a long manuscript, such as that of the Digest, should have been physically divided into parts for the scholar’s or student’s convenience; but, as remarked by Calisse, “why the division should have fallen at those particular books is the unexplainable feature; unless we regard it as a reminiscence of Justinian’s own instructions (persisting into the Middle Ages), for the study of his law-books”.

The Glossators treated the several parts of Justinian’s codification as an entirety and as forming, together with certain other legal sources, the Corpus iuris civilis. They distributed the matters of the Corpus iuris civilis into five volumes (volumina). The three parts of the Digesta, formed in the manner already explained, they placed in the first three volumes; while in the fourth volume they put the first nine books of the Codex. The fifth volume embraced all the rest of the subject-matter of the Corpus iuris civilis, namely, the Institutiones, one hundred and thirty-four of the Novellae in Latin (known as the Authenticum), and the remaining three books of the Codex (tres libri). In addition to all these Justinianean materials the Glossators also inserted in the fifth book of the Corpus iuris civilis—immediately after the Authenticum—the text of the Lombard feudal law (libri feudorum) and several laws of the Emperors Frederick I, Frederick II, and Conrad. Inasmuch as the fifth volume, with its miscellaneous contents, could not be referred to by its general character, as in the case of the first four volumes, it was known by the Glossators as Volumen simply, or, by reason of the fact that it was much smaller than the other volumes, as Volumen Parvum.

The Glossators and their works

The method adopted by the jurists who established the fame of the Bologna law school was that of the gloss (glosa, equivalent to verbum, lingua, vox), or textual interpretation. The jurists themselves thus came to be known as the Glossators; and it was they who gave to the school its earlier tendency and character. Glosses were not a new thing; within the field of law they had already been employed in the study of medieval Lombard and Roman Law. The new feature of the Bolognese school, the one which gives it its unique position, was the application of the glossatorial method for the first time to the texts of the law-books of Justinian. The adoption of this method at Bologna came about quite naturally, inasmuch as the law school was itself an outgrowth of the grammar school; and there was also the additional reason to be found in the persistent tradition of Justinian's order that his laws should not be altered in sense by a liberal as distinct from a literal interpretation. Literal interpretation, moreover, was particularly needful as a means of arriving at a correct text of the Justinianean codification. Although at first, therefore, the gloss was but a short explanation or interpretation of a difficult single word in terms of an equivalent, it soon became also, in the hands of the jurists, an explanation of a passage or of an entire lex or even of a legal principle embodied in the text. These two forms of the gloss became known respectively as the “interlinear” and the “marginal”. The explanation of a single word was placed above it, between the lines (“interlinear”), while the explanation of a passage was placed beside it on the margin of the text (“marginal”); and to each gloss the glossator affixed his initials or some other mark or indication of his identity. As the work of the school advanced, the gloss became more and more elaborate and lost its original signification. It became, in fact, the means of embodying the results of the master’s legal researches. “It included”, says Calisse, “critical notes on the variant readings (variantia) of different manuscripts. It brought together loci paralleli, which helped to elucidate the point. When these passages were in conflict (antinomia), it sought to reconcile them or to decide on the preferable one. Thus, finally, we find the gloss developing into a genuine commentary, with all its proper appurtenances—the summary (summa), the putting of illustrative cases (casus), the deduction of a genuine maxim (brocardus), and the discussion of concrete legal problems (quaestiones)”

The creative work of the Glossators falls within the period from the early part of the twelfth to the middle of the thirteenth century. Pepo, the Pisan jurist who migrated to Bologna, was the one who first taught by the new method, but the real establisher of the glossatorial school, the lucerna iuris, was Irnerius. His glosses covered the whole range of the Justinianean texts, and, inasmuch as he had practised at the bar and had close touch with the actualities of legal life, his teaching combined in a striking manner both theory and practice. The work of Irnerius was followed by that of the famous Four Doctors—Bulgarus, Martinus, Jacobus, and Hugo—the activities of these four Glossators constituting perhaps the most illustrious period in the whole history of the Bologna school. Two pupils of Bulgarus—Johannes and Rogerus—were at the same time the teachers of Azo and Hugolinus. Azo's greatest work was his Summa of the Institutes and the Codex, a work which superseded, within its field, all previous productions of the school. At the bar there was a proverb that “who has not Azo, goes not to court”. In the study of Roman Law Azo’s Summa was regarded as essential as the very text of the Corpus iuris civilis itself; and a knowledge of it was necessary to one who would enter the gild of judges. To the school of Glossators belonged also other distinguished jurists, among them being Flacentinus, Vacarias, Burgundio, Carol us of Tocco, and Roffredus of Benevento.

Accursius, the last of the prominent Glossators, is also the most famous of them all. He was born near Florence in 1182. After a period of study at Bologna, he taught there for over forty years, retired in order to finish his gloss, and died about 1260. The gloss of Accursius was marked off from those of all the other Glossators as the Accursiana or ordinaria. Accursius and his gloss soon came to represent everything that the Bologna school meant in juris­prudence. His work embodied the results of all his predecessors; and, in a way, he supplanted all of them. The accumulated glossatorial learning of a century and a half was confusing, in the wealth of its details and in the variety of juridical opinions, to the practitioners in the courts. They found it difficult or even impossible to make their way through the maze which the Glossators had gradually erected. To the practitioners, therefore, the comprehensive and orderly collection of Accursius was the new, the up-to-date luminary of the law which the work of Irnerius had been at an earlier time. In the schools the Accursiana supplanted all the other glosses and even the Justinianean text itself. In the practice of the courts the saying, “Quidquid non agnoscit glossa nee agnoscit curia”, a variant of the proverb “chi non ha Azzo non vada a palazzo”, was prevalent; the gloss of Accursius, that is, was held by the courts to be the law. This very saying in the courts shows us, however, that the school of the Glossators was already in rapid process of decay. For a time Accursius was followed by other Glossators, such as Odofred; but, on the whole, it is fair to say that the great gloss of Accursius virtually terminated the work of the school of Glossators. The Accursiana was itself the main symptom of decadence in the school. The original intent of the Glossators, in the days of Pepo and Irnerius, had been to focus attention upon the texts of Justinian's codification as the primary and pure sources of the law. To the early Glossators the revival of the Justinianean law meant that the texts themselves should be the basis of study and practice alike. The discarding of the text for the gloss, the mechanical following of the Accursiana, indicated that the science of the pure Roman Law had yielded place to practice; for it was the gloss which adapted and applied the sixth-century texts to the practical course of thirteenth-century judicature. What society in the fourteenth century needed, therefore, was a new juristic method in place of the stereotyped mechanism of the Accursiana represented by the maxim “Quidquid non agnoscit glossa nee agnoscit curia”. The time was ripe for the emergence of a method of jurisprudence which should base itself upon contemporary Roman Law, and not upon the Roman Law of the classical jurists and of Justinian in times gone by. The method which was developed to supply this social need of medieval Italy and Europe was the method of the Post-Glossators—the “Commentators”.

The method of the Commentators—the one which had its rise in the latter part of the thirteenth century at a time when Accursius was still in his ascendency—represented a reaction against the gloss. The path chosen by the jurists of the newer tendency was the well-worn path of Scholasticism as distinct from the route marked out for them by the fourteenth-century literary writers of the Renaissance, such as Dante, Petrarch, and Boccaccio.

To the claims of this great intellectual awakening the lawyers, bound as they were by tradition and narrowed by the practice of courts, did not respond until, at a much later period, they turned from the narrow path of scholasticism into the broader ways of the humanists. Calisse remarks that, when the system of the Commen­tators after a formative period was finally developed, it stood forth as the apotheosis of a painstaking logic. The jurist's ideal now was to divide and subdivide; to state premises and then to draw the inferences; to test the conclusion by extreme cases sometimes insoluble and always sophistical; to raise objections and then to make a parade of overthrowing them—in short, to solve all problems by a fine-spun logic. He who nearest reached this ideal was accorded the highest fame in his science. Although already antiquated by the time of the Commentators, the dialectic method as followed by them no doubt put new life into juristic studies. But decay set in rapidly. Prolixity upon easy topics and silence upon difficult ones became the rule. Cujas justly passes this sentence upon the Commentators as a school: “Verbosi in re facili, in difficili muti, in angusta diffusi.” A copious mass of books, written in a crude harsh style, poured forth: a mass which, it is said, would have made “multorum camelorum onus”.

Once more the original texts of the Justinianean law were lost to view in the intricacies of the dialectic exercises of the Commentators. The worship of authorities followed as a necessary consequence; it is said that lecturers, practitioners, and judges did hardly more than cite authorities by name and treatise. Ultimately came the doctrine of communis opinio, the doctrine that the juristic view which had the greater number of supporters in the books was the sound view; and thus, after the lapse of nearly ten centuries, there was practically a return to the famous Law of Citations of Theodosius II and Valentinian III (426).

Judged by the standards of the classical jurists of Rome, or by those of the Glossators in their period of brilliance, the Commentators stand on a far lower plane in respect of originality and fruitfulness of juristic thought. One of the main reasons is that they stood aloof from the spirit and purpose of the Renaissance. It is, however, generally agreed by scholars that the school of the Commentators had merits as well as faults. Although their modes of thought and their methods were of the past, their gaze was upon the present. The Glossators  sought only to know the Roman Law of Justinian’s time; the Commen­tators endeavoured to know the Roman Law of their own day. The real achievement of the Commentators consisted in their adaptation of the older law of Justinian to the legal conditions of their time, their harmonizing of the Justinianean texts with the other legal sources invoked by the courts, notably the city statutes, feudal and Germanic customs, the rules and principles of Canon Law. In the words of Calisse, “the old science was made over into a new one; and Roman law was trans­formed into an Italian law”. The special talent of the Commentators created a literature—a body of commentaries on Romano-Italian Law—which acquired the force of binding law and played a role of great importance in legal life. Their method—known as the mos Italicus or Italian method—was itself destined to have a far-reaching influence; for it was adopted in other European countries, chiefly in France and Germany.

Bartolus of Sassoferrato

To the school of the Commentators belonged the poet Cino of Pistoia (1270-1336), Albericus of Rosate (ob. 1354), Bartolus of Sassoferrato (1314-1357), Baldus of the Ubaldi (1327-1400), Luke of Penna (lecturer in 1345), Bartholomew Salicetus (1330-1412), Raphael Fulgosius (1367-1471), Paul of Castro (ob. 1441), Marian and Bartholomew Socinus of Siena, Philip Decius, and Jason Mainus. Of all the Commentators, Bartolus of Sassoferrato, who died at the age of forty-three in his early prime, stands out as the greatest and most influential. He studied under Cino at Perugia and also under Raniero of Forli; at the age of twenty he became a lecturer at Bologna, later moving to Pisa and finally to Perugia; and, among his public appointments, he held the post of councillor to the Emperor. His writings, which cover nearly the whole range of the law and are of a higher quality than those of the other Commentators, include lectures at Bologna, commentaries on all the titles of the Digest, legal opinions (consilia), and many treatises or essays on various branches of public and private law. The chief title of Bartolus to fame rests upon his great contribution to the work of his school in transforming the legal growths of the past into the law of the fourteenth century. The lawyers of his school came to be known simply as “Bartolists”. The eminence of Bartolus is also strikingly manifest in the professional maxim that no one is a jurist who is not a Bartolist. In many parts of Europe the opinions of the great Commentator were held to be the law itself. The most distinguished of all the successors of Bartolus was his own pupil, Baldus of the Ubaldi, who was a Canonist as well as a Romanist; he taught not only at Bologna, but also at Pisa, Florence, Padua, and Pavia.

The school of the Commentators long held dominance in Italy. Even the attacks of Dante, Petrarch, and Boccaccio, and the great movement of humanism in the fifteenth century, did not turn the jurists to freer and more enlightened methods of legal science. Boccaccio’s remark, that law had ceased to be a science at all, summarized the antipathy of the new scholarship to the communis opinio, the casuistry, the mos Italicus, of the Commentators. The attack of the fifteenth-century humanists resulted in a protest against the Corpus iuris civilis itself. Tribonian was reproached for mutilating the writings of the classical jurists; and even the fragments of those writings embodied in the Digest were now, declared the humanists, buried beneath a mass of crude medieval commentaries. These attacks, however, did not turn into new channels the main current of professional thought and activity. Even into the sixteenth and seventeenth centuries the lawyers proceeded on the lines marked out by Bartolus. The “practical jurists” continued the work of the Commentators by adapting the mass of Roman legal materials to the needs of daily practice in the courts. For them practice, as distinct from legal science or the theory and the history of the law, was the main thing. Despite the defects of the school of practical jurists, their work was nevertheless of real value; for it brought prominently to view the fact that the law was changing day by day, and that the Roman element in the law must be shaped and adapted to social needs. Only in modern times has this view­point of the Commentators and the practical jurists been fully recognized as a true contribution to the science of law.

Influence of humanism on legal studies

Humanism was not without its effects upon Italian legal studies in the fifteenth century; but, on the whole, the new movement was represented, within the domain of law, by the work of classical scholars and poets and not by that of professionally-trained lawyers. Lorenzo Valla (ob. 1457), Pomponius Leto (1428-1498), and Angelo Politian (1454-1496), were among the leaders of the new humanist school of legal science; and to the enthusiastic study of the Roman legal texts—not only the Justinianean codification but more especially the earlier materials, such as the fragments of the classical jurists and the Theodosian Code— these scholars turned their learning and their skill. Their aim was to restore the Roman Law of the classical jurists as the basis of Justinian's law-books and of later legal growth; they sought to establish legal science on the broad foundations of history and philosophy. Legal research, both in textual criticism and in methods of dealing with the substantive law embodied in the texts, was thus given new and more advanced tendencies. While preserving contempt for the Commentators, these early Italian humanists in law always recognized the soundness of the methods of the Glossators. Their full sympathy with the general movement of humanism, however, enabled Valla, Leto, Politian, and their successors to disregard the limitations which bound the Glossators; and it is the general view of scholars that their work meant indeed a real advance in Romanist legal studies. The work of these earlier humanists was carried on by Andrew Alciat (1492-1552), whose legal writings and career have given him a deserved place of fame among Italian jurists and have caused him to stand out as the personification of the new school of legal thought. His main work, however, was done abroad: for, in 1518, he proceeded to Avignon and transplanted to France the methods of the science he had learned in Italy.

Let us for a moment retrace our steps to consider the study and teaching of Canon Law in the Italian Middle Age. We have already seen that Gratian himself taught Canon Law in the convent of St Felix at Bologna, and that in many of the schools influenced by the great law school of Bologna the Canon Law, no less than the Civil Law, formed a part of the curriculum. The schools or universities made doctores decretorum as well as doctores legum. In the teaching of the Canon Law the magistri gave oral lessons based directly on the text; and it was the short remarks, originally written in the margin of the text, in explanation of its words, which became the glosses of the masters. The glosses, constantly increased by additions, took permanent form. They were reproduced in later copies of the manuscripts and finally included in the printed editions of the Corpus iuris canonici, notably in the official Roman edition of 1582 prepared by the correctores romani in the pontificate of Gregory XIII. The Italian school of Glossators was not, therefore, confined to the civilians, embracing as it did the magistri who glossed the canonical texts; and this is a feature of the revival of juristic studies, at Bologna and other Italian schools, of far more than ordinary interest.

Among the chief glossators of the Decretum were Paucapalea, Gratian’s first disciple, Rufinus (1160-1170), John of Faenza (c. 1170), Joannes Teutonicus (c. 1210). The gloss of Teutonicus, as revised and completed by Bartholomeus Brixiensis (of Brescia), became the glossa ordinaria decreti. Vincent the Spaniard and Bernard of Botone (Berardus Parmensis, who died in 1263) wrote glosses on the Decretals, that of the latter being the glossa ordinaria. The well-known Joannes Andreae (c. 1340) was the author of the glossa ordinaria on the Liber Sextus. That on the Clementinae, begun by Andreae, was finished by Cardinal Zabarella (ob. 1417).

Apart from the glosses, the writings of the canonists, like those of the civilians, fall into several groups. Thus, the canonistic literature consists chiefly of Apparatus, Summae, Quaestiones, and Consilia. But while, owing to differences in method, different schools of the civilians may be distinguished, the canonists are not in general divided into schools, except upon questions as to the relations of the Papacy to the national Churches and the secular powers. The systematic Canon Law of the Middle Age is embodied very largely in the Summae. Some of the early disciples of Gratian wrote Summae, including Paucapalea (1150), Roland Bandinelli (later Alexander III, c. 1150), Rufinus (c. 1165), Etienne of Tournai (Stephanus Tornacensis, c. 1168), John of Faenza (c. 1170), Sicard, Bishop of Cremona (c. 1180), and, perhaps more important than all, Huguccio or Hugucius (c. 1180). Writers of Summae of the Decretals include Bernard of Pavia (c. 1195), Sinibaldo Fieschi (Innocent IV, c. 1240), Wilhelmus Durantis (Durandus), Joannes Andreae, and Nicholas de Tudeschis. The Summa Aurea or Summu Hostiensis, written by Henry of Susa (ob. 1271), who was Cardinal-bishop of Ostia, is a work of the highest value.

The numerous treatises dealing with canonical procedure, which form a special branch of canonistic literature, are called Ordines Iudiciarii and are to be compared with the similar treatises of the legistae or civilians. The Ordo Iudiciarius of Tancred (1214-1216) largely displaced the works of earlier canonists on this subject. The fifteenth century, although it is identified with the Spaniard John of Torquemada and the Italian Panormitanus, is not as rich in canonistic literature as the earlier ones. In the period after the Council of Trent many distinguished canonists wrote commentaries on the Corpus iuris canonici.

 

VII.

Roman and Canon Law in Spain

 

It is time to glance at the history of the spread of Roman and Canon Law in medieval Spain. The mixture of racial elements in the peninsula from the very beginning of its history gives to Spanish legal history a complexity which distinguishes it from the history of most of the other bodies of European Law. Even today Spanish Law reflects the historical movements and changes which finally produced the Spanish nation and gave it political unity and imperial dominion. Of all the factors which have created the Spanish legal system in a long process of evolution Roman influence has been predominant; back to the law of Rome, Spain, of all the nations of Western Europe, traces her law in most direct descent. Numerous legal sources survive to prove that Roman legal influence was profound and that it left an indelible imprint on the law of succeeding ages. In many ways the history of peninsular law under the domination of the Romans constitutes one of the most enlightening chapters in the history of the spread of Roman Law to the provinces before the disappearance of the Western Empire. Profound as was the Romanization of law in Spain, it was nevertheless not absolute. In Spain, as in other provinces of the Empire, the Roman Law came into contact with native (here Ibero-Celtic) customs and possibly also with Phoenician and Greek Law introduced by the early colonists from the East. Native law persisted, at least in some regions, after the coming of the Romans; though there is no evidence that it still persisted in the latest period of the Western Empire. Apart from the place filled by pre-Roman Law in the Roman period, there was also the opportunity for the growth of indigenous legal institutions; and it is clear from the evidence that down to the last the mos provincialis was recognized. Hybrid legal institutions were created by the contact of native and Roman legal types, and indigenous variants were either juxtaposed or fused with the legal forms of the Roman province.

Some of these indigenous legal growths survived the Roman period; thus, the betrothal custom of Cordova as to kisses — the penalty of lessened inheritance for kissing the bride, before marriage, except in the presence of eight relatives or neighbors — was adopted as general law by a constitution of Constantine in 336, included in the Lex Romana Visigothorum, and embodied in Castilian codes of medieval and modern times. Indeed, at many points native peninsular law influenced the Roman Law; and this influence was one of the main factors in the growth of Roman provincial law in Spain. Roman Law, both public and private, was in fact introduced into the peninsula and there molded, under the political and social influences of the time, into that Roman provincial law, partly customary and partly regional written law, which was revealed in some measure, a century after the fall of Rome, in the Lex Romana Visigothorum of the Germanic conquerors. The stages in the evolution of this provincial Roman Law in Spain follow in general the main lines of the development of provincial law throughout the Empire: two of these stages are marked by the growth of the ius gentium and the grant of citizenship to the inhabitants of the provinces. In divers ways, indeed, the introduction of Roman Law materially affected the growth of law in Spain. It meant, in the first place, that the legal institutions and doctrines of the Romans in respect to persons, things, and obligations were to serve as one of the fundamental bases of future legal development; and, in general, it led to the substitution of individualism for the communistic ideas which had formerly permeated the law of the peninsula. But the Germanic invasions and the fall of the Western Empire interrupted this evolution. The stream of Roman Law still continued to flow under Visigothic rule: it now flowed, however, partly in the old and partly in new channels.

In this period of the Germanic invasions and Visigothic dominion (400-700) the outstanding feature of Spanish legal history is the introduction of the Germanic Law of the Visigoths into regions long governed, in the main, by the peninsular system of Roman Law. The meeting of these two different bodies of law produced results of the highest importance and gave to the Spanish Law of later times some of its characteristic features. There was an influence of the Roman Law on the Visigothic and of the Visigothic Law on the Roman. One of the ultimate effects of these influences and counter-influences was the growth of hybrid legal institutions—a feature of legal evolution which was characteristic of the Romano-Germanic civilization of Europe in general. A striking example of these hybrid growths is furnished by the Formulas Visigotieas (615-620), the formularies or models of public documents.

Until the time of Chindaswinth (642-653) the Spanish population, composed of the Hispano-Romans and the Visigoths, lived under a legal system based on the principle of the personality of law. The first king who gave law to the Visigoths was Euric (467-485), whose code, although largely a written statement of Germanic custom, displayed nevertheless some traces of Roman influence. Ernie's code was applied to the Visigoths; and such of its parts as embodied public in contrast with private law were also applied to the whole population generally. In respect of their own interrelations the Hispano-Romans continued to live under Roman private law, modified somewhat by Germanic custom. Alaric’s Breviary, the Lex Romana Visigothorum (506), based on the Gregorian, Hermogenian, and Theodosian Codes, as well as upon other imperial sources —solemnly confirmed to the Roman population their own code of personal law. Private relations between the Hispano-Romans and the Visigoths were governed, however, by the code of Euric.

The Fuero Juzgo

With Chindaswinth (642-653) an important change took place. The Lex Romana Visigothorum was abrogated. A common code—the Fuero Juzgo (Forum Judicum)—was promulgated for both peoples, a code which harmonized and fused the Germanic and Roman legal rules and ideas. Some of these rules and ideas of the Fuero Juzgo show a preponderance of Visigothic Law, as in the case of the law of marriage and of persons. Others are especially marked by Roman influence, as in matters of inheritance, prescription, and contract. On the whole, Chindaswinth’s code represents the firm establishment of Germanic legal institutions within a region which had been highly Romanized in the pre-Visigothic period. The tide of Romanist influence was to flow more freely and with greater force in later times.

In the period of the Christian and Moorish kingdoms (700-1300) vast transforming processes were at work in the law of the several regions of Spain; but many of the details and even some of the main tendencies of this development are as vet but imperfectly understood. The history of the Fuero Juzgo in this period has not yet been written. But we know in a general way that this code, compounded of Germanic and Roman elements, remained as one of the principal bases of practice in the several kingdoms. Apart from the prevalence of the Romanic features of this code, a code which in some regions at least was a sort of common law, Roman influence—although it may be detected in the municipal fueros, the charters, the acts of councils and cortes, and the judgments of courts—appears to have been, on the whole, slight. The Church exerted an influence upon the growth of the law; but, in its general character, this was more a moral than a legal influence. Not until the period of the Christian reconquest were ecclesiastical legal tendencies marked. Certain features of Spanish Law, such as partnership, are said to be derived from Muslim legal culture. French Law was indubitably influential, not only in the Pyrenean regions but also in other parts of the peninsula.

One of the outstanding features of the legal history of Spain in this period, and especially from the early part of the eleventh century onwards, is the firm establishment of four distinct and different legal regions—the Castilian, the Aragonese, the Catalan (including in its influence Valentia and the Balearic Isles), and the Navarro-Basque, the latter of which was in large measure a mingling of Castilian and Aragonese origins. This fourfold differentiation, based on many social, economic, and legal causes, it is well for us to remember; for, when we come to the next period of Spanish legal history (1252-1511), we shall see that the Justinianean and Canon Laws were worked into the legal systems of these four regions in varying degrees of intensity and effect. The way for this renaissance of Romanism in the later Middle Age was partly prepared during our present period (700-1300) by the study of Roman and Canon Law in the several kingdoms, and by the establishment, notably in Aragon, of right reason and equity as supplementary sources of the law. But, although Romanism during the period from the middle of the thirteenth century to the end of the Middle Age came into Spain as a unifying force, it had in fact differing effects in the four several legal regions—effects which corresponded to the reaction opposed to Romanism on the part of each one of the indigenous legal systems.

We must remember, indeed, that the dominant characteristic of legal growth in this period of the Christian reconquest and the political unification of the peninsula (1252-1511) is the spread of the Justinianean and the Canon Laws in the several kingdoms. The whole period was rich in legal sources, more particularly in legislative acts; and one of the chief tasks of the legal historian is to describe the process by which this mass of legal materials was influenced by the legislation of Justinian and the Canon Law. In periods prior to the one now under review, Roman and Canonical institutions and principles of law had exerted a notable influence on the law of Spain. So far as Roman Law is concerned, indeed, this influence was in large measure an influence of the pre-Justinianean law. Even before the thirteenth century, however, the law of Justinian had not been without its influence in Spain; and it is possible that it was introduced into the Spanish territories ruled by the Byzantines. But from the end of the eleventh century onwards the western European rebirth of the codification of Justinian, due in large measure to the work of Italian and French jurists, produced clear and unmistakable effects in the peninsula. In the twelfth and thirteenth centuries Roman Law was studied by Spanish jurists. The texts of Justinian were diffused throughout the kingdoms. Works inspired by the legal system of Justinian were written in Spain by Spanish lawyers. Indeed, the thirteenth century may be taken as the time when the Roman Law, in the form given to it by the great legislator at Constantinople, acquired real importance in the Spanish kingdoms; and from that time onwards the influence of the Justinianean law upon Spanish Law steadily increased. Coincident with this Romanizing process there was also a steady diffusion of the Canon Law. Not only was the Canon Law enforced in the ecclesiastical courts of the peninsula, it was also employed as an instrument for the modification of the secular law.

The details of this development in the several kingdoms—during the period from 1252 to 1511—are of absorbing interest. The temptation to sketch the main features of the Romanizing process, as it penetrated into all parts of the peninsula, must, however, be resisted. We may but glance for a moment at Castile and Leon in the thirteenth century.

The Fuero Real. Las Partidas

The Fuero Real, issued by Alfonso X in 1254, is the only legal work of a truly legislative character that was inspired by the Justinianean law during the thirteenth century in Castile. The elements which compose the Fuero Real are, however, predominantly indigenous. The code has as its basis the earlier fueros, including the Fuero Juzgo, but with additions; and it preserves, with some changes, the general character of the Visigothic, Castilian, and Leonese law evolved during the first centuries of the period of reconquest. While the Roman element in the Fuero Real is thus in part due to Roman influence upon the earlier sources taken up into it, it is also, in part, the result of direct borrowings by the compilers from the Roman and Canonical legal systems. Among the novelties introduced in this way into Castilian law from the Roman Law a considerable part of the theory of contracts, the accession of insula nata, certain of the rules of intestate succession and testamentary executors, may be mentioned. Likewise in the matter of adoption, the compilers of the Fuero Real adjusted the indigenous law to the system of Justinian.

In the history of Roman and Canon Law in Castile and Leon the reign of Alfonso X is also notable by reason of the compilation of the Libro de las Leges, a great legal encyclopedia, which, owing to its division into seven parts, came to be known in the fourteenth century as the Leges de Partidas or Las Partidas, names which are still used to designate it. The jurists who compiled the Partidas under the supervision of the king, between the years 1256 and 1265, drew upon three classes of sources: the customs and fueros of Castile and Leon, including the Fuero Juzgo, the Fuero Real, and the fueros of Cuenca and Cordova; the accepted Canon Law (the Decretals); and the writings of the Roman jurists included in the Digest, together with the works of Italian jurists dealing with the law of Justinian. The main materials drawn upon by the compilers were the sources of the Roman and Canon Laws. Indeed, Las Partidas may best be described as a systematic compendium of these two legal systems, modified in some particulars by Alfonso’s jurists in order to adapt them to Spanish conditions. In the legal history of Castile the Partidas is of supreme importance ; for it not only adds new elements to the law, but also modifies materially the earlier Visigothic and indigenous foundations of the Castilian system. In fact, it seems to have been the king's purpose to express in his compilation the new influences of Roman and Canon Law, to impose the code as a common law upon all his subjects, and thus to annul the municipal fueros, the Fuero Juzgo, and even the Fuero Real itself. Although this latter purpose was not effected, the fueros retaining their force, the Partidas—embodying many fundamental features of the Roman and Canon systems—steadily gained ground. Among lawyers and students Alfonso’s work was used as a reference and text­book; and ultimately it was confirmed both in the practice of the courts and by act of the Cortes. The compilation of Las Partidas thus marks an important stage in the gradual adoption of Roman and ecclesiastical legal rules and principles, a process which by the close of the Middle Age had given a dominant stamp to the legal system of Castile.

The permeation of the legal systems of Spain by Roman and Canon Law in the later Middle Age furthered the growth of Spanish legal science. The Spanish jurists of the period include civilians and canonists of great ability. They were teachers in Spanish, Italian, and French schools of law; they were writers of legal treatises; they were editors of legal texts. Among them may be mentioned Juan Garcia el Hispano, who lectured on Civil and Canon Law at Bologna and wrote learned works; Cardinal Torquemada, who lectured at Paris and wrote commentaries on Gratian’s Decretum; Raymond de Penafort, professor at Bologna and compiler, by order of Pope Gregory IX, of the Decretals in the Liber Extra; and Antonio de Nebrija (1444-1522), who revised the glosses of Accursius and wrote Observaciones sobre las Pandectas and a Lexicon Juris Civilis.

By the close of the Middle Age Spanish Law, in its several regional growths, had assumed its main permanent features.

 

VIII.

Roman and Canon Law in France

 

The main characteristic of legal growth in France before the twelfth century, as it was also the central feature of the history of law in other parts of Europe during the same period, was the meeting and the mingling of Germanic law and the Roman and Canon Laws. Under the system of the personality of law the leges romanae and the leges barbarorum were both in force within their respective spheres. While under this system the Church as an institution lived by the Roman Law, the evolution of the Canon Law meant that in France, as elsewhere, the Church courts, within their own province, enforced this newer or secondary body of Roman legal doctrine. The process of feudalization furthered the growth of the notion that law was territorial; and the Capitularies of the Prankish rulers introduced a body of imperial law, applicable to all subjects, which embodied Roman and Canonical principles and had territorial validity as law in contrast with the various systems of personal law.

In time, as Esmein has pointed out, the personal laws and the Capitularies fell into desuetude. In their place many territorial customs gradually developed. The Roman Law, in certain regions at least, ceased to be invoked as written law, its rules being regarded as a part of unwritten custom. This process—developing during the chaotic period of the tenth and eleventh centuries and coming to a definite result in the course of the twelfth century—determined in many ways the whole future history of law in France. In the second part of the eleventh century, however, the Roman written law emerged once more as with a rebirth; and during the next two centuries it played a highly important role. It either had validity alongside custom or it shaped and modified custom itself. Down to the very end of the ancien regime the Roman Law remained in force as binding law, but in a measure which varied with subject-matter and locality. In the course of the twelfth century a new and vigorous source of law appeared in the form of royal legis­lative power. From the fourteenth century onwards the ordonnances of the kings evolved a body of public and private law of very great importance; and during the course of the sixteenth century they trans­formed most of the important coutumes into true lois.

Meanwhile, during the centuries when this long process of development was taking its course, the Canon Law, profoundly influenced by the renaissance of Roman Law, had slowly taken its place as a worldwide system of jurisprudence. In France the canonical system not only exerted on many parts of the secular law a remarkable influence, but, down to the close of the ancien regime, it also retained, up to a certain point, the character of a body of laws binding the State as well as the Church.

The period from 1100 to 1500 is of special interest. The gradual adoption of the principle that law was territorial and not personal, an evolution due in large measure, as we have seen, to the establishment of feudalism, led to the division of France into two parts, the regions of written law (pays de droit ecrit) and the regions of customary law (pays de coutumes). The pays de droit ecrit is the southern part of France, about one-third of the entire country; while north of an irregular line of boundary, running from the He d'Oleron to the Lake of Geneva, lies the pays de coutumes. The place of Roman Law in each one of these two distinct parts of France forms one of the most instructive chapters in the history of French medieval law.

In the south the Roman population greatly exceeded in numbers the Germanic population. Under the system of the personality of laws the Roman Law had been applied to the Romans, and when the principle of the territoriality of laws was established the Roman Law, being the law of the majority, was applied to all persons, Roman and Germanic, as the customary and common law of the southern regions. The point that Roman Law was applied as the Custom of the South is worthy of special note. The authority of the Roman Law in the pays de droit ecrit was not derived from any official promulgation in the Roman or Germanic-periods of French history; it was derived from its character as local custom, and as such it was recognized as binding by the rulers of the southern regions. The fact that the Roman Law was applied as custom helps us to understand why it varied, in respect of its scope and force, from province to province and from century to century, and why, from time to time, one set of Roman legal sources supplanted another as the guide to the nature of legal rules and principles. For the very reason that the Roman Law in those regions was treated as custom, the earlier sources of that law were easily abandoned for the later ones as repositories of custom; and we find indeed that the gradual spread of the Justinianean compilations displaced not only the Theodosian Code but also the Breviary of Alaric and the Lex Romana Burgundionum. For the same reason we find that the customary Roman Law was modified by local statutes.

Pays de coutumes

In the north—the pays de coutumes—the place of the Roman legal system was different. In these regions the customary law was composed of diverse elements: mixed remnants of Germanic and Roman Law, Canon Law, the Capitularies which had not fallen into desuetude, and local usages. From an early time the Roman Law—the common law of all Christian peoples—possessed, even in the pays de coutumes, a very great authority as the embodiment of juristic theory. From the universities came the lawyers; and in the universities the Roman and Canon Laws were the only subjects of legal study. At an early period the texts of the Digest and the writings of the Bolognese jurists were translated into French. In the interpretation and application of the coutumes, courts and legal writers alike employed the Roman Law as a kind of universal legal logic and as the fountain of supplementary rules, helpful analogies, and principles of interpretation. During the sixteenth century Roman Law played so important a role in legal education, in the practice of the courts, and in the literature of the law, that jurists raised the question whether the Roman Law was not, after all, the common law of the pays de coutumes. The question thus raised has been the subject of learned dispute from that day to this; and French lawyers have never really reached full accord. The better view seems to be, however, that in the regions of the coutumes the Roman Law did not become, as it did in the regions of the droit ecrit, the common law. In the north, as distinct from the south, Roman Law possessed a theoretical or juristic authority. This authority, although it was not absolutely binding, had persuasive power, influencing judges, practitioners, and legislators. The authority exerted was the authority of legal reason; and as legal reason the Roman Law spread throughout the regions of the coutumes and influenced them, ultimately colouring them when they were reduced to writing.

In the manner and with the effect thus briefly indicated the Roman Law established itself in both parts of medieval France—the pays de droit ecrit and the pays de coutumes. Transmitted in this form to later ages, the Roman Law was ultimately embodied, as one of its fundamental elements, in the codified Civil Law of modern France.

The influence of the Roman and Canon Laws on the development of medieval law in France is to be observed in the legal literature of the time. Thus, in his compilation of the customs and usages of Vermandois, Pierre de Fontaines, one of the councillors of St Louis, translates passages from Justinian's Digest and Code. The private work known as the Anciens Usages d’Artois (1283-1302) has citations from Roman and Canonical legal sources; while the Livre de Justice et de Plet, a work concerned with the usages of Orleans and probably written shortly after 1259, is for the most part a translation of Roman texts. Philip de Rémy, lord of Beaumanoir (1246 or 1247-1296), employs as the sources of his Coutumes de Beauvaisis not only the settled usages and the judgments of courts, but also the Roman Law, the law which is common to the whole of France. Jehan Boutillier, who died about 1395, gives us in his Somme Rural—which is a sort of encyclopedia of the whole of the French Law at the close of the fourteenth century—the picture of a confused mingling of Roman and Canon Law with the customary law. At an early time the writings of Bolognese jurists, including the Summa of Azo, were translated into French.

In the Middle Ages the Civil and Canon Laws were both taught in the French universities; but not until modern times was French Law added to the curriculum. A break in the continuity of teaching Roman Law occurred, however, in the thirteenth century. Honorius III in 1219, by the papal decretal Super specula, expressly forbade the teaching of Roman Law at Paris; and a century later, in 1312, Philip the Fair confirmed the decretal in a royal ordinance. Down to 1679, when it was brought back once more into the official curriculum, Roman Law could be taught at Paris only privatim; Cujas, the great Romanist of the sixteenth century, was obliged to secure the express authority of the Parlement in order that he might teach it. It is not difficult to see that the Church had an interest in strengthening the position of Canon Law, at the expense of Civil Law, in the very centre of European theological studies. Inasmuch as the He de France, with Paris as its capital, was a region of custom as distinct from written law, there was of course less practical need for the teaching of Roman Law at Paris than at other French universities. Nevertheless, the prohibition of the King of France seems at first sight surprising. The explanation may well lie, as Brissaud suggests, in a fear of the political influence of the civilians of Bologna, who were at that time teaching the doctrine that the King of France was a subject of the Holy Roman Emperor.

Instruction in Roman Law at medieval French universities other than Paris was encouraged by the Church. In the period of the personality of laws the Church had lived by the Roman Law; and the Roman Law had contributed much to the formation of the Church's system of Canon Law. These features of the legal history of the Church seem to have played a part in leading the ecclesiastics to take a favourable view of the teaching of Roman Law at all the French universities except theological Paris. Furthermore, many jurists of the Middle Age were canonists as well as civilians; and a considerable number of them seem to have supported the Papacy’s ultramontane doctrines. This factor in the situation may also have influenced Church policy as to Roman Law teaching.

The medieval civilians and canonists of France were greatly influenced, as were civilians and canonists in all European countries, by the methods of the Italian jurists—the Glossators and the Commentators. A little later, humanistic learning spread from Italy to France: it was Alciat, the Milanese, who carried to France the new jurisprudential methods of the humanists in the early part of the sixteenth century. In France—at famous Bourges and also at other universities—a flourishing school of humanistic legal thought soon came into being, which included such great Romanists as Cujas, Baudouin, Doneau, Douaren, and Hotman. Pothier, in the middle of the eighteenth century, summed up the work of the school in his Pandectae Justinianeae in novum ordinem redactae (1748). It was the work of this school which prepared the way for the great Code Civil and the many codes of civil law in other countries that have drawn their inspiration and much of their form and substance from Napoleon's.

 

IX.

Legal growth in Germany. The Sachsenspiegel

 

In the early periods of the history of law in the regions now mostly within the German Republic—the Germanic epoch and the age of Frankish ascendency—the basis of the law was a great variety of Germanic customs. In the course of time the customs had been somewhat modified by the Roman and Canon Laws as they slowly penetrated, by direct or indirect channels, into the regions held by the various Germanic peoples; and in the days of the Frankish Empire these foreign influences were more marked than in the earlier centuries. But, looking at Germany as a whole at the close of the tenth century, we can see that, save for the natural modifications due to the progress of the several peoples in the scale of civilization, their laws still retained, in most fundamental features, their original Germanic character.

From the eleventh to the fifteenth centuries the main characteristics of legal growth in Germany were particularism and diversity. The written laws of the earlier period—the laws of the Saxons, Franks, and other Germanic peoples, and the Capitularies of Charlemagne and his successors—had gradually fallen into a state of disuse in German territories; for in Germany, in contrast with Italy, Germanic legal sources had not been made constantly the subject of legal instruction, nor had they formed the basis of a legal literature. Political and social changes vitally affected legal development. The principle of the personality of law was displaced, largely as the result of the rise of feudalism, by the notion that law was territorial and that it applied to every inhabitant. The old tribal laws were transformed, therefore, into the unwritten customary laws of localities.

It is true that there were royal courts and even royal-enacted laws ; but there was no coherent central judicial organization of sufficient strength to combat particularistic tendencies. German territories were covered by a network of special courts, such as the courts of feudal lords and of towns, and in these courts German Law was enforced. In Germany as a whole there was no legal unity, no common law. Legal particularism and diversity split the law into many laws enforced by many courts.

When we remember these legal conditions, we need not be surprised to find that German jurists endeavored to produce orderly and consistent treatises of German Law out of the complex and diverse materials which they collected. Nor need it be a source of surprise to discover that these juristic efforts failed to achieve their main purpose of German legal unity ere the rising tide of foreign legal influence submerged large portions of the native law by the introduction or reception of Roman, Canon, and Lombard feudal Law. One of these native juristic attempts to produce order out of the chaos of German legal conditions deserves special notice. At a time when the Italian Glossators were reaching the end of their labors and Gregory IX’s collection of decretals (1234) was added to the corpus of Canon Law, Eike von Repkow, a German knight who had long served as a lay-judge, seems to have realized the danger to the native law of his race from the foreign and rival systems. In the Sachsenspiegel, composed between 1198 and 1235, and probably in the third decade of the thirteenth century, Eike brought together the principles of Saxon customary law and gave them coherence and systematic order; and upon Eike’s famous work some of the most important of the later treatises on German Law were based. A comparison of the Sachsenspiegel with the contemporary treatise of Bracton on the law of England shows us that Eike’s work is distinguished from Bracton’s by its originality and its freedom from the influence of the Glossators. Eike’s book of Saxon native jurisprudence and the works of other German lawyers helped for a time indeed to stem in some fashion the rising influence of Roman Law in northern Germany. But the conflict between German Law and the foreign laws was an unequal one from the beginning. The Sachsenspiegel marks, in fact, the end of the creative period in the evolution of German national law. Most of the main factors which determine legal growth in a period of conflict between competing laws—the fact, for example, that the Roman law-books contained a systematic corpus of general principles suitable to an advancing civilization—were on the side of the foreign laws. Their reception in Germany turned—and turned permanently— the whole current of legal evolution into new channels. Even today the law of Germany is still flowing in the channels cut deep down into the soil of German life and civilization by this vast process of adopting the extraneous laws. The Burgerliches Gesetzbuch of 1900 is a code of German private law—but at the same time it is a code of German private law in which Romanistic legal traditions form a constituent element as pervasive and important as the Germanic.

The “Reception” of foreign laws in Germany means the adoption of three systems—Roman Law, Canon Law, and the Lombard feudal law. Of the reception of the Lombard feudal law nothing need here be said; and of the Reception of Roman and Canon Law only the barest sketch can be given. First of all, let two things be specially noted. The reception of these two bodies of foreign law formed a long historical process extending through several centuries; it was not accomplished by a single sovereign fiat. Furthermore, although the reception of the two Romanic systems constituted, in a sense, but one single process, yet this process embraced two movements which differed one from the other in respect of their causes and their course. Scholars still dispute in regard to the matter of chronological priority as between these two movements. Brunner regards the Reception of Roman Law as first in point of time and of influence, and treats the Reception of Canon Law as its consequence, while Stintzing holds that the Canon Law came first into Germany, and, preparing the way, drew the Roman Law after it. When Brunner and Stintzing have spoken and have disagreed, other doctores iuris utriusque may be tempted to exercise the scholar's prerogative of silence.

In the history of the Reception of Roman Law two stages are to be distinguished—the stage of the theoretical and the stage of the practical Reception. The one consists of the gradual rooting of the conviction in the minds of German rulers, statesmen, and jurists that Roman Law may rightfully claim to be the law of Germany; the other consists of the actual embodiment of Roman Law in German judge-made law.

The theoretical Reception has its beginnings in the notion that the Roman Empire of the German nation was a continuation of the Roman Empire of ancient times, and that, in consequence, the Roman Law of the ancient Empire possessed subsidiary force in the medieval Empire. This notion gained ground in proportion as the native German Law became more and more enmeshed in the complex web of particularism. The spread of the knowledge of Roman Law by the many German students who obtained their legal education in the Italian law schools also furthered the growth of the idea. German legal literature—for example, the Schwabenspiegel, probably written about 1275, the glosses on the Sachsenspiegel, and the works of Nikolaus Wurms and Johannes von Brunn—showed an influence of the Roman Law. German kings interpolated certain of their own laws into the Corpus iuris civilis.

The practical Reception of Roman Law has its beginnings with the appointment of judges who were trained in the foreign law. In the first instance jurists learned in the Roman Law were appointed by the king to advise him as to the law in cases which he personally decided; later they were appointed to his Kammergericht. After the establishment of the Reichskammergericht in 1495 Roman Law gained entry into this highest imperial court of justice itself. One half its members were required to be men learned in the law, and all its members were obliged to swear that they would judge cases in accordance with the common laws of the Empire, Roman Law being included within this formula. Courts of lower instance—the territorial and city courts—followed the example of the imperial tribunals; but the village courts long kept themselves free from Roman influence, preserving the native law of the people. The struggle between the native and the Roman laws thus centred in the tribunals of justice. Step by step, however, Roman Law was adopted by the courts in their decisions; and it was thus incorporated in the German Law as one of its most vital elements. By the first half of the sixteenth century the Roman Law was decisive in the practice of the courts.

By the beginning of the twelfth century ecclesiastical jurisdiction had acquired an importance in Germany at least equal to that of the civil tribunals, and in the ecclesiastical courts the Canon Law was of course enforced. From the twelfth century onwards many German clerics proceeded to Bologna, Padua, Paris, and other foreign universities to study the Roman and Canon Laws; and this was one of several main factors making for the spread or reception of the Canon Law in the homeland of the students. Not only was the Canon Law administered in the courts of the Church; it also permeated the secular law. In many ways Roman Law and Canon Law went hand in hand in the work of modifying and shaping the laws of the German medieval communities.

Switzerland and the Netherlands       

In Switzerland during the pre-Confederation period (up to 1300) the various Germanic racial branches who dwelt there lived under their own folk-laws, which included the Leges Alemannorum and the Lex Burgundionum. Small communities grew rapidly from the eleventh century onwards, and each one of them developed a special law based on the old Germanic folk-law, Germanic medieval law being thus preserved in Switzerland in purer form than elsewhere in the German Empire. In Switzerland there was no "Reception" of Roman Law in the sense in which there was a Reception of Roman Law in Germany. In the period of the Old Confederation (1300-1800) there was indeed a Reception of Roman Law in the cantons; but it stopped short of the wholesale adoption of Roman rules and principles which marked the usual course of events in Germany. In fact in 1499 was signed the treaty by which for practical purposes Switzerland was severed from the Empire. In Catholic Swiss regions the Canon Law—in cases of marriage, usury, unchastity, and, in some jurisdictions, in cases of testamentary dispositions—retained its validity down to modern times.

The Roman Law influenced the laws of the Netherlands from a very early time. This influence increased, as time went on; but it cannot be said that there was ever a formal practical Reception in the sense in which this term is applied elsewhere in Germany. The truth of the matter seems to be that, owing to the decentralized conditions of political and legal evolution, an opening was made for the entry of the Roman Law as one of the important subsidiary legal sources, and that this influence of the Roman system was not equally strong in all the provinces. At an early time the Codex Theodosianus (ad 438) left its mark on tribal customs; and, similarly, the Frankish Law, which had been in contact with the Roman Law, influenced the customary law. The renaissance of Roman Law in the Italian law schools had important results in the Netherlands as in the rest of Germany. What, too, has been said of the influence of the Canon Law in Germany generally, also holds true in the provinces of the Netherlands.

 

X.

Roman and Canon Law in England

 

 Law travels by sea as well as by land. Separated from the Continent by the intervening narrow seas, the British Isles came nevertheless within the reach of the influences of Roman and Canon Law. Of these influences one may not speak in detail. Nor is it possible to describe the spread of the Romanic Laws to Scotland, Ireland, and Wales. Our attention for the moment must be restricted to England.

The law of England before the Norman Conquest was fundamentally Germanic in character, even though Celtic custom may here and there have left its trace on the customs and written laws of the Angles, Saxons, and Danes. Roman legal institutions do not appear to have survived the abandonment of Britain by the Romans; at least they do not appear to have contributed materially to the formation of the laws of the pre-Norman period of English history. “We speak of law”, declares Maitland, “and within the sphere of law everything that is Roman or Romanized can be accounted for by later importation....And, in point of fact, there is no trace of the laws and jurisprudence of imperial Rome, as distinct from the precepts and traditions of the Roman Church, in the earliest Anglo-Saxon documents. Whatever is Roman in them is ecclesiastical...This inroad of the Roman ecclesiastical tradition, in other words, of the system which in course of time was organized as the Canon Law, was the first and by no means the least important of the Roman invasions, if we may so call them, of our Germanic polity”. The Franks had, however, taken over Roman legal materials and embodied them in their own system; and, through English intercourse with the Franks, some of these Roman materials were imported into England. Roman influence of this character seems to have played upon the form and content of the Latin charters or land-books, of the Anglo-Saxons.

Roman legal elements assimilated by the Franks had been adopted by the Normans in Normandy as a part of the Frankish legal system which they made their own. The Norman Conquest brought many of these elements into England, where they were to exert an important influence upon the growth of English Law, more especially perhaps the law of procedure. Nor, when we consider the Frankish-Roman influence, must we forget that Lanfranc, the Pavese lawyer, was William the Norman's counselor. The fashion thus set by the Conqueror was followed by later kings. Many of the Roman legal influences that affected the growth of the prerogative and other features of England's constitutional and legal system were due to the advice and the work of royal legal counselors trained in Roman and Canon Law. Henry III had Henry of Susa by his side, Edward I had Franciscus Accursii, the son of the great Glossator. Archbishops no less than kings imported foreign jurists trained in the Civil and Canon Laws. Archbishop Theobald brought from Italy a jurist who left his mark on English legal education and English civilian literature. Vacarius not only taught Roman Law in England—almost certainly at Oxford, where a law school was just then developing—and gathered round him a group of disciples, but he also wrote both the Liber Paupenim, which was a book on Roman Law for poor students who had not the means to acquire the Roman texts, and a tract on the law of marriage. There are other evidences that the Roman and Canon Laws were being more and more studied in England. The disciples of Vacarius glossed his glosses. Manuscripts were copied. John of Salisbury gave a sketch of civil procedure in his Polycraticus. A manual of procedure is attributed to William Longchamp, King Richard's chancellor. William of Drogheda, law teacher at Oxford, wrote a Summa Aitrea. In the fourteenth century an English canonist, John de Athona, wrote a gloss on the legatine constitutions which displays knowledge of Justinian's law-books. William of Lyndwood, still one of the leading English authorities on Canon Law, finished in 1430 his commentary on the pro­vincial constitutions of the Archbishops of Canterbury.

English students early proceeded to Bologna to acquire knowledge of the Civil and the Canon Laws at the fountain-head. Schools of the two laws grew up at both Oxford and Cambridge, where degrees in each one of the laws were conferred. Some English lawyers were trained in both laws; and in various ways it was an advantage to them to be versed in Civil and Canon Law alike. The civilian, if he knew little or no Canon Law, might be employed as a teacher or as a servant of the king in the council or the chancery or in diplomacy, and he might also engage in practice in the courts of admiralty and the courts of the universities. But, on the whole, the civilian found less to do than the canonist. Canonists were not only required for the work of the ecclesiastical courts; they were also given employment in the royal service as clerks, as justices in the courts, and as chancellors.

Azo and Bracton

The great law school at Bologna, which spread its influence throughout Europe, left its permanent mark on English juridical thought and on English law and procedure. What one may call the Bolognese factor in English medieval legal history worked subtly in two ways; for it meant the importation into England of Canon no less than of Roman legal ideas, rules, and processes. Closely related upon the Continent, these two legal systems were also closely related in England. Their separate influences flowed through many channels, but oft-times the two streams of influence united and flowed in one and the same channel. Only by a detailed and penetrating survey would it be possible to perceive and distinguish all the currents that were Roman and all the currents that were canonical. The revival of the ancient Roman Law as embodied in Justinian's books was the work of the Bolognese Glossators, and that work fell within the period from the early part of the twelfth to the middle of the thirteenth century. Tidings of the legal revival were not slow in reaching England, and for a full century—from the middle of the twelfth to the middle of the thirteenth century—the new learning materially affected the evolution of the English Law. Italian influence is to be seen in Glanvill’s law-book; but it is chiefly noticeable in Bracton’s great treatise, the main part of which appears to have been written between 1250 and 1258. The names of Azo and Bracton will always be linked together in legal literature. In the writing of his treatise on English law and procedure, Bracton, the ecclesiastic and the royal justice, while depending chiefly on the cases in the plea rolls, also made use of various Roman and Canonical legal materials, and among them, first and foremost, the writings of the great Glossator Azo. From these sources of the Romano-canonical jurisprudence of the Middle Age, and chiefly from Azo, Bracton derived his general notions as to what a law-book should be and how it should be written; and from them he also obtained specific legal rules and maxims. His main indebtedness to the civilians and canonists is to be found, however, in the form and arrangement of his book, for in its substance the De Legibus et Consuetudinibus Angliae, the book which Pollock and Maitland describe as the flower and crown of English medieval jurisprudence, is fundamentally English in character. In the matter of civil procedure, however, there was a noticeable influence of the canonical system, and this influence may be studied in Glanvill’s and Bracton’s books. English civil procedure was rationalized under canonical influence; and, in some instances, it became indebted to the foreign system for direct borrowings. It borrowed from the exceptions against witnesses in the ecclesiastical courts the “exceptions”, or “challenges”, that can be made against jurors; it borrowed much of the science of pleading from the civilians and canonists. The actio spolii of canonical legal procedure was suggestive to English lawyers in the framing of their own action of Novel Disseisin. But, even though the main substantive features of Bracton’s book represent English as distinct from Romano-canonical jurisprudence, we may nevertheless agree with Sir Paul Vinogradoff when he says that “the most important English contribution to Romanesque jurisprudence” in the Middle Age was made by Bracton. Down through the centuries this Romanesque learning of Bracton, even though it was not very profound, has continually influenced not only English juridical thought, but also English legal rules and principles. In its origin and its essential features the foreign influence handed down by Bracton has been the influence of Azo and the other Italian Glossators. Great schools of law always live through the ages and continuously radiate waves of thought to places near and remote in the ever-changing world.  Such a school of law was founded by the Glossators at Bologna.

As Pollock and Maitland, in the History of English Law, have pointed out, “the rapid and, to a first glance, overwhelming flow of Romanic learning, from the middle of the twelfth to the middle of the thirteenth century, was followed in this country by an equally rapid ebb”. From Bracton’s day onwards the English Common Law developed on its own lines as a system distinct and different from both of the foreign systems now the object of our study. Some of the foreign elements which the Common Law had already assimilated it preserved; but, on the whole, the Common Law of post-Bractonian centuries seems to have adopted but little from either the Civil or the Canon Law. In the age of the Renaissance there was, indeed, the danger of a “Reception” of the foreign laws. But, as Maitland has taught us in his brilliant essay on English Law and the Renaissance, although English Law did not form a part of university education until modern times, it was nevertheless academically taught in the Inns of Court during the later Middle Age; and it was this teaching of English Law to the profession which saved English law in the age of the Renaissance. In the words of Lord Justice Scrutton, in his Influence of the Roman Law on the Law of England, “the working out of an Equitable Jurisdiction, and the decisions of the Ecclesiastical and Admiralty Courts were building up systems largely of Civilian origin, but in the Common Law, the influence of Roman Law has rather retrograded than advanced since the time of Bracton”.

Equity, as a distinct system of justice supplementary to the Common Law, has its beginnings in the later Middle Age; although not until modern times does it acquire many of its present-day features. The chief moulders of medieval Equity were the king's council and chancery; and many of the men who sat in these tribunals were ecclesiastics. Some of the ideas and  principles applied  by these courts, and  certain of the features of their procedure, were unquestionably borrowed from the civil and canonical systems. But the extent of this foreign influence, both in medieval and in modern times, has long been a matter of dispute. Spence maintains that Equity’s debt to Civil and Canon Law is very great; Maitland and Mr Justice Holmes contend that the chancellors had no intent to Romanise English Law and that indeed Equity does not in any way consist of wholesale borrowings from the foreign systems. The recent investigations of scholars seem to confirm the latter view. So far as the medieval period is concerned, the chief indebtedness of the council and chancery seems to have been to ecclesiastical procedure. Various important features of the procedure of the Courts Christian were taken over and adapted to the purposes of procedure in Equity.

Canon Law and ecclesiastical courts

In the English ecclesiastical courts, from the time of William the Conqueror to the Reformation, canonical jurisprudence had a wide field of application. In accordance with the older view, the English Church was always an independent national church, and, although it was subject to the general principles of the ius commune ecclesiasticum, it was not bound by particular constitutions of the Councils or of the Pope unless such constitutions had been "received" in England as part of English ecclesiastical law. Contrary to this view, which has persisted down to our own day, and is still held by some scholars, Maitland holds—basing his view on a study of Lyndwood’s Provinciale and other authoritative sources—that the law enforced in the English Church courts in the pre-Reformation period is none other than the Canon Law of the Western Church, of which the English Church forms an integral part; and that the papal decretals were, therefore, as binding on the English ecclesiastical courts as they were on any other courts of the Western Church as a whole. “Whereas the English State was an independent whole”, declares Maitland, “the English Church was in the eyes of its own judges a dependent fragment whose laws had been imposed on it from without”.

Without pursuing this controversy further, and remarking only that Maitland’s view has been adopted by many scholars of eminence, let us take note of the fact that in the medieval struggle between State and Church in England the delimitation of the respective spheres of lay and ecclesiastical jurisdiction, and hence of the respective spheres of Common Law and Canon Law, played a role of the greatest importance. This contest between lay courts and laws and ecclesiastical courts and laws was not peculiar to England; it was a contest waged in nearly every country of medieval Europe. But in each one of these countries the struggle possessed its own local features; and the struggle in England was no exception to this. The claims of the English Church courts to wide jurisdiction were growing at the very time when Henry II was bent on the centralization of justice in his realm, the strengthening of his own royal courts, and the expansion of their jurisdiction. The struggle  reached its climax in the dispute between Henry and Becket. Out of that dispute the king emerged the victor, and also in future disputes between the champions of the two jurisdictions the champions of the lay courts and of the Common Law were generally the victors. The victory of Henry VIII and his Church settlement marked the end of the long medieval struggle and the beginning of a new epoch.

Much of the subject-matter of the jurisdiction claimed by English Church courts in the Middle Age was purely ecclesiastical and spiritual. These matters were not claimed by the State as matters which fell within the proper competence of the royal tribunal; they were left to the Courts Christian. Apart from such matters, however, there was a wide field of law which the courts of the Common Law, with the greatest propriety, might well have occupied exclusively. It is, indeed, a striking feature of English legal history that, from the middle of the twelfth century onwards, the ecclesiastical courts exercised jurisdiction over many matters which can hardly be termed ecclesiastical in any true sense. Thus, the ecclesiastical courts claimed jurisdiction in matrimonial causes—marriage, divorce, and legitimacy; and these claims neither Henry II nor his successors disputed. The claim to exercise jurisdiction in testamentary causes was likewise successfully asserted by the Church courts; they pronounced on the validity of wills and interpreted them, they regulated the acts of the Church's own creature, the testamentary execu­tor, they decided all cases of succession to moveable property ab intestato. Despite prohibitions issued by the royal courts, ecclesiastical tribunals long enforced contractual promises made by oath or by pledge of faith. The jurisdiction of the ecclesiastical courts over most of these matters was retained by them down to 1857.

In one direction the Civil Law exerted an influence on the growth of English Law which is worthy of special notice. In the course of the fourteenth century the Court of Admiralty acquired a jurisdiction to punish crimes, including piracy, committed at sea, and it also assumed a civil jurisdiction over shipping and commercial matters. While the law ad­ministered by the Admiralty was embodied in the great maritime codes of the Middle Age, as a supplementary law the Civil Law was also enforced; and the procedure of the Court was modeled on that of the Civil Law system. In the Admiralty, therefore, civilians found the opportunity to practice and to sit as judges. Although the criminal jurisdiction of the Court of Admiralty was transferred to the Common Law courts over three hundred years ago, its civil jurisdiction was retained down to our own times. In the course of the centuries English maritime law lost much of its international character. But it still retains, even today, certain features which it derived from the Roman system.

 

XI

Inner history of the two laws

 

Difficult as it is to sketch in outline the history of the general development, the spread, and the sources of Roman and Canon Laws in the Middle Age, it is more difficult still to give, in a short compass, any clear conception of the medieval history of the rules and principles embodied in those systems. This difficulty in sketching the “inner”, as distinct from the “external”, history of Roman and Canon Laws arises in part from the fact that the historian is concerned with the several branches of each one of two extensive bodies of public and private law, and that he must study the rules and principles of each system in their relation to those of the other system. Nor is it sufficient to study these two Romanic systems in isolation. Not only their relations to each other, but also their relations to other bodies of law, such as the Greek and Germanic systems, feudal custom, town laws, and territorial legislation, must be taken into account. There are legal influences and counter-influences, in all the many parts of Europe, which produce modifications of older rules and doctrines and which lead to the introduction of new ones, the general result being an almost infinite variety of legal types. The difficulty of sketching the history of the rules and principles of the Roman and Canon Laws is increased by the further fact that these laws are never at rest; at all times and in all places they are subject to change in response to the pressure of the many forces at work in society. The words of Mr G. W. Cable, the novelist, are not inappropriate as an expression of legal change: for law is constantly “shifting like the fragments of colored glass in the kaleidoscope”. The true picture of the law in its development is not obtained by methods similar to those of the older photography; it is obtained only by using methods that produce the impression of life and movement—methods comparable to those which now create the living and moving picture shown upon the screen.

To the student of the inner history of Roman and Canon Laws in the Middle Age the vast range of the subject, both in time and place, is forbidding. An evolution—or, rather, a whole complex of diverse but related evolutions—extending through many centuries is spread over the entire surface of the Eastern and Western parts of the European world; and everywhere, in all the regions of the world, this evolution is intertwined with the other features of the history of medieval civilization. How enlightening this inner history of the two laws may be made is evident to any reader of Zacharia von Lingenthal's Geschichte des griechisch-romischen Redds and of the writings of other modern scholars dealing with the rules and principles of Roman and Canon Laws in their medieval environments. The history of patria potestas in the East after the time of Justinian may be taken as an illustration. This distinctive feature of the older Roman Law, this power or bundle of powers so intensive in the period of its full vigour that it was sometimes referred to as patria maiestas, was slowly modified in the course of Roman legal history, especially in the time of the Empire. Shorn of many of its older and harsher features it was given a place in Justinian's system: and as a part of his great codification it played a role in the development of Graeco-Roman Law. Zacharia von Lingenthal has shewn how the fortunes of the Justinianean patria potestas fluctuated in later Eastern history, how the rules of Justinian in regard to it were displaced, modified, allowed to fall into disuse, or revised, in accordance with the varying fortunes of Justinian's codification as a whole, two of the important stages in this development being marked by the appearance of the Ecloga and the Basilicas.

Graeco-Roman and Romano-Germanic Law       

Many illustrations of the importance of studying the inner history of the two laws in the Middle Age may be drawn from the leges romanae and the leges barbarorum of the West. Rules of the ancient Roman Law, either in their original form or in modifications adapted to the needs of Germanic societies, were incorporated in these codes. The leges barbarorum are even more interesting than the leges romanae as embodiments of Roman legal rules; they are more interesting because they show us more clearly the inroads of Romanic rules upon Germanic custom. Thus, the laws of Euric, the most ancient of all the written laws of the Visigoths, contain rules of Roman Law, some of which run counter to Visigothic custom. Sir Paul Vinogradoff has drawn special attention to the declaration in Euric’s laws that donations extorted by force or intimidation are to be null and void; and he cites this as a rule which breaks through the purely formalistic treatment of obligations natural to barbaric law.

When the student of the inner history of the two laws reaches the period of the revival of juristic studies in the West, he is appalled at the mass of the materials which lie to his hand. The very bulk of the Corpus iuris chilis and the Corpus iuris canonici is forbidding. Each one of these bodies of law is an extensive and complicated system, in which many branches are included; each system has its constitutional law, its law of persons, property, inheritance, contracts, and delicts, its law of procedure. In addition, each one of these two huge bodies of law is enveloped by a  vast  medieval  literature:  there are the glosses, the summae, and all the other writings of the medieval civilians and canonists. The writing of a history of the rules and principles of these two great legal systems involves the tracing of origins and development, the setting forth of the relations of the several parts of each system one to another, the statement and criticism of the doctrines elaborated by the civilians and canonists, the recounting of the part played by each system in the legal history of many countries of the world in later medieval and in modern times. It is clear that no adequate picture of the inner history of these two cosmopolitan legal systems can be given in a few words; any attempt to give such a picture at the end of the present chapter would be a grandiose project destined to failure.