Chapter IV: The Extension of Roman Law After the

FALL OF THE WESTERN EMPIRE.

Upon the later history of the Roman law and its diffusion through the modern world I can but briefly touch, for I should be led far away from the special topic here considered. The process of extension went on in some slight measure by conquest, but mainly by peaceful means, the less advanced peoples, who had no regular legal system of their own, being gradually influenced by and learning from their more civilized neighbours to whom the Roman system had descended. The light of legal knowledge radiated forth from two centres, from Constantinople over the Balkanic and Euxine countries between the tenth and the fifteenth centuries, from Italy over the lands that lay north and west of her from the twelfth to the sixteenth century. Thereafter it is Germany, Holland, and France that have chiefly propagated the imperial law, Germany by her universities and writers, France and Holland both through their jurists and as colonizing powers.

In the history of the mediaeval and modern part of the process of extension five points or stages of especial import may be noted.

The first is the revival of legal study which began in Italy towards the end of the eleventh century A.D., and the principal agent in which was the school of Bologna, famous for many generations thereafter. From that date onward the books of Justinian, which had before that time been superseded in the Eastern Empire, were lectured and commented on in the universities of Italy, France, Spain, England, Germany, and have continued to be so till our own day. They formed, except in England where from the time of Henry the Third onwards they had a powerful and at last a victorious rival in the Common Law, the basis of all legal training and knowledge.

The second is the creation of that vast mass of rules for the guidance of ecclesiastical matters and courts—courts whose jurisdiction was in the Middle Ages far wider than it is now—which we call the Canon Law. These rules, drawn from the canons of Councils and decrees of Popes, began to be systematized during the twelfth century, and were first consolidated into an ordered body by Pope Gregory the Ninth in the middle of the thirteenth[47]. They were so largely based on the Roman law that we may describe them as being substantially a development of it, partly on a new side, partly in a new spirit, and though they competed with the civil law of the temporal courts, they also extended the intellectual influence of that law.

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Footnote 47:

Other parts were added later.

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The third is the acceptance of the Roman law as being of binding authority in countries which had not previously owned it, and particularly in Germany and Scotland. It was received in Germany because the German king (after the time of Otto the Great) was deemed to be also Roman Emperor, the legitimate successor of the far-off assemblies and magistrates and Emperors of old Rome; and its diffusion was aided by the fact that German lawyers had mostly received their legal training at Italian universities. It came in gradually as subsidiary to Germanic customs, but the judges, trained in Italy in the Roman system, required the customs to be proved, and so by degrees Roman doctrines supplanted them, though less in the Saxon districts, where a native law-book, the _Sachsenspiegel_, had already established its influence. The acceptance nowhere went so far as to supersede the whole customary law of Germany, whose land-rights, for instance, retained their feudal character. The formal declaration of the general validity of the _Corpus Iuris_ in Germany is usually assigned to the foundation by the Emperor Maximilian I, in 1495, of the Imperial Court of Justice (Reichskammergericht). As Holland was then still a part of the Germanic Empire, as well as of the Burgundian inheritance, it was the law of Holland also, and so has become the law of Java, of Celebes, and of South Africa. In Scotland it was adopted at the foundation of the Court of Session, on the model of the Parlement of Paris, by King James the Fifth. Political antagonism to England and political attraction to France, together with the influence of the Canonists, naturally determined the King and the Court to follow the system which prevailed on the European continent.

The fourth stage is that of codification. In many parts of Gaul, though less in Provence and Languedoc, the Roman law had gone back into that shape of a body of customs from which it had emerged a thousand years before; and in Northern and Middle Gaul some customs, especially in matters relating to land, were not Roman. At last, under Lewis the Fourteenth, a codifying process set in. Comprehensive Ordinances, each covering a branch of law, began to be issued from 1667 down to 1747. These operated throughout France, and, being founded on Roman principles, further advanced the work, already prosecuted by the jurists, of Romanizing the customary law of Northern France. That of Southern France (the _pays du droit écrit_) had been more specifically Roman, for the South had been less affected by Frankish conquest and settlement. The five Codes promulgated by Napoleon followed in 1803 to 1810[48]. Others reproducing them with more or less divergence have been enacted in other Romance countries.

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Footnote 48:

Among the States in which the French Code has been taken as a model
are Belgium, Italy, Spain, Portugal, Mexico, and Chili. See an article
by Mr. E. Schuster in the _Law Quarterly Review_ for January, 1896.

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In Prussia, Frederick the Second directed the preparation of a Code which became law after his death, in 1794. From 1848 onwards parts of the law of Germany (which differed in different parts of the country) began to be codified, being at first enacted by the several States, each for itself, latterly by the legislature of the new Empire. Finally, after twenty-two years of labour, a new Code for the whole German Empire was settled, was passed by the Chambers, and came into force on the first of January, 1900. It does not, however, altogether supersede pre-existing local law. This Code, far from being pure Roman law, embodies many rules due to mediaeval custom (especially custom relating to land-rights) modernized to suit modern conditions, and also a great deal of post-mediaeval legislation[49]. Some German jurists complain that it is too Teutonic; others that it is not Teutonic enough. One may perhaps conclude from these opposite criticisms that the codifiers have made a judiciously impartial use of both Germanic and Roman materials.

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Footnote 49:

An interesting sketch of the ‘reception’ of Roman law in Germany (by
Dr. Erwin Grüber) may be found in the Introduction to Mr. Ledlie’s
translation of Sohm’s _Institutionen_ (1st edition).

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Speaking broadly, it may be said that the groundwork of both the French and the German Codes—that is to say their main lines and their fundamental legal conceptions—is Roman. Just as the character and genius of a language are determined by its grammar, irrespective of the number of foreign words it may have picked up, so Roman law remains Roman despite the accretion of the new elements which the needs of modern civilization have required it to accept.

The fifth stage is the transplantation of Roman law in its modern forms to new countries. The Spaniards and Portuguese, the French, the Dutch, and the Germans have carried their respective systems of law with them into the territories they have conquered and the colonies they have founded; and the law has often remained unchanged even when the territory or the colony has passed to new rulers. For law is a tenacious plant, even harder to extirpate than is language; and new rulers have generally had the sense to perceive that they had less to gain by substituting their own law for that which they found than they had to lose by irritating their new subjects. Thus, Roman-French law survives in Quebec (except in commercial matters) and in Louisiana, Roman-Dutch law in Guiana and South Africa.

The cases of Poland, Russia and the Scandinavian kingdoms are due to a process different from any of those hitherto described. The law of Russia was originally Slavonic custom, influenced to some extent by the law of the Eastern Roman Empire, whence Russia took her Christianity and her earliest literary impulse. In its present shape, while retaining in many points a genuinely Slavonic character, and of course far less distinctly Roman than is the law of France, it has drawn so much, especially as regards the principles of property rights and contracts, from the Code Napoléon and to a less degree from Germany, that it may be described as being Roman ‘at the second remove,’ and reckoned as an outlying and half-assimilated province, so to speak, of the legal realm of Rome. Poland, lying nearer Germany, and being, as a Catholic country, influenced by the Canon Law, as well as by German teaching and German books, adopted rather more of Roman doctrine than Russia did[50]. Her students learnt Roman law first at Italian, afterwards at German Universities, and when they became judges, naturally applied its principles. The Scandinavian countries set out with a law purely Teutonic, and it is chiefly through the German Universities and the influence of German juridical literature that Roman principles have found their way in and coloured the old customs. Servia, Bulgaria and Rumania, on the other hand, were influenced during the Middle Ages by the law of the Eastern Empire, whence they drew their religion and their culture. Thus their modern law, whose character is due partly to these Byzantine influences—of course largely affected by Slavonic custom—and partly to what they have learnt from France and Austria, may also be referred to the Roman type.

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Footnote 50:

In Lithuania the rule was that where no express provision could be
found governing a case, recourse should be had to ‘the Christian
laws.’ Speaking generally, one may say that it was by and with
Christianity that Roman law made its way in the countries to the east
of Germany and to the north of the Eastern Empire.

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