Chapter XXXIII: Mediaeval Appropriation of the Roman Law (1)

I. THE FONTES JURIS CIVILIS.

II. ROMAN AND BARBARIAN CODIFICATION.

III. THE MEDIAEVAL APPROPRIATION.

IV. CHURCH LAW.

V. POLITICAL THEORIZING.

Classical studies, and the gradual development of mediaeval prose and verse, discussed in the preceding chapters, illustrate modes of mediaeval progress. But of all examples of mediaeval intellectual growth through the appropriation of the antique, none is more completely illuminating than the mediaeval use of Roman law. As with patristic theology and antique philosophy, the Roman law was crudely taken and then painfully learned, till in the end, vitally and broadly mastered, it became even a means and mode of mediaeval thinking. Its mediaeval appropriation illustrates the legal capacity of the Middle Ages and their concern with law both as a practical business and an intellectual interest.

I

Primitive law is practical; it develops through the adjustment of social exigencies. Gradually, however, in an intelligent community which is progressing under favouring influences, some definite consciousness of legal propriety, utility, or justice, makes itself articulate in statements of general principles of legal right and in a steady endeavour to adjust legal relationships and adjudicate actual controversies in accordance. This endeavour to formulate just and useful principles, and decide novel questions in accordance with them, and enunciate new rules in harmony with the body of the existing law, is jurisprudence, which thus works always for concord, co-ordination, and system.

There was a jurisprudential element in the early law of Rome. The Twelve Tables are trenchant announcements of rules of procedure and substantial law. They have the form of the general imperative: “Thus let it be; If one summons [another] to court, let him go; As a man shall have appointed by his Will, so let it be; When one makes a bond or purchase,[341] as the tongue shall have pronounced it, so let it be.” These statements of legal rules are far from primitive; they are elastic, inclusive, and suited to form the foundation of a large and free legal development. And the consistency with which the law of debt was carried out to its furthest cruel conclusion, the permitted division of the body of the defaulting debtor among several creditors,[342] gave earnest of the logic which was to shape the Roman law in its humaner periods. Moreover, there is jurisprudence in the arrangement of the Laws of the Twelve Tables. Nevertheless the jurisprudential element is still but inchoate.

The Romans were endowed with a genius for law. Under the later Republic and the Empire, the minds of their jurists were trained and broadened by Greek philosophy and the study of the laws of Mediterranean peoples; Rome was becoming the commercial as well as social and political centre of the world. From this happy combination of causes resulted the most comprehensive body of law and the noblest jurisprudence ever evolved by a people. The great jurisconsults of the Empire, working upon the prior labours of long lines of older praetors and jurists, perfected a body of law of well-nigh universal applicability, and throughout logically consistent with general principles of law and equity, recognized as fundamental. These were in part suggested by Greek philosophy, especially by Stoicism as adapted to the Roman temperament. They represented the best ethics, the best justice of the time. As principles of law, however, they would have hung in the air, had not the practical as well as theorizing genius of the jurisconsults been equal to the task of embodying them in legal propositions, and applying the latter to the decision of cases. Thus was evolved a body of practical rules of law, controlled, co-ordinated, and, as one may say, universalized through the constant logical employment of sound principles of legal justice.[343]

The Roman law, broadly taken, was heterogeneous in origin, and complex in its modes of growth. The great jurisconsults of the Empire recognized its diversity of source, and distinguished its various characteristics accordingly. They assumed (and this was a pure assumption) that every civilized people lived under two kinds of law, the one its own, springing from some recognized law-making source within the community; the other the _jus gentium_, or the law inculcated among all peoples by natural reason or common needs.

The supposed origin of the _jus gentium_ was not simple. Back in the time of the Republic it had become necessary to recognize a law for the many strangers in Rome, who were not entitled to the protection of Rome’s _jus civile_. The edict of the praetor Peregrinus covered their substantial rights, and sanctioned simple modes of sale and lease which did not observe the forms prescribed by the _jus civile_. So this edict became the chief source of the _jus gentium_ so-called, to wit, of those liberal rules of law which ignored the peculiar formalities of the stricter law of Rome. Probably foreign laws, that is to say, the commercial customs of the Mediterranean world, were in fact recognized; and their study led to a perception of elements common to the laws of many peoples. At all events, in course of time the _jus gentium_ came to be regarded as consisting of universal rules of law which all peoples might naturally follow.

The recognition of these simple modes of contracting obligations, and perhaps the knowledge that certain rules of law obtained among many peoples, fostered the conception of common or natural justice, which human reason was supposed to inculcate everywhere. Such a conception could not fail to spring up in the minds of Roman jurists who were educated in Stoical philosophy, the ethics of which had much to say of a common human nature. Indeed the idea _naturalis ratio_ was in the air, and the thought of common elements of law and justice which _naturalis ratio inter omnes homines constituit_, lay so close at hand that it were perhaps a mistake to try to trace it to any single source. Practically the _jus gentium_ became identical with _jus naturale_, which Ulpian imagined as taught by nature to all animals; the _jus gentium_, however, belonged to men alone.[344]

Thus rules which were conceived as those of the _jus gentium_ came to represent the principles of rational law, and impressed themselves upon the development of the _jus civile_. They informed the whole growth and application of Roman law with a breadth of legal reason. And conceptions of a _jus naturale_ and a _jus gentium_ became cognate legal fictions, by the aid of which praetor and jurisconsult might justify the validity of informal modes of contract. In their application, judge and jurist learned how and when to disregard the formal requirements of the older and stricter Roman law, and found a way to the recognition of what was just and convenient. These fictions agreed with the supposed nature and demands of _aequitas_, which is the principle of progressive and discriminating legal justice. Law itself (_jus_) was identical with _aequitas_ conceived (after Celsus’s famous phrase) as the _ars boni et aequi_.

The Roman law proper, the _jus civile_, had multifarious sources. First the _leges_, enacted by the people; then the _plebiscita_, sanctioned by the Plebs; the _senatus consulta_, passed by the Senate; the _constitutiones_ and _rescripta[345] principum_, ordained by the Emperor. Excepting the _rescripta_, these (to cover them with a modern expression) were statutory. They were laws announced at a specific time to meet some definite exigency. Under the Empire, the _constitutiones principum_ became the most important, and then practically the only kind of legal enactment.

Two or three other sources of Roman law remain for mention: first, the _edicta_ of those judicial magistrates, especially the praetors, who had the authority to issue them. In his edict the praetor announced what he held to be the law and how he would apply it. The edict of each successive praetor was a renewal and expansion or modification of that of his predecessor. Papinian calls this source of law the “_jus praetorium_, which the praetors have introduced to aid, supplement, or correct the _jus civile_ for the sake of public utility.”

Next, the _responsa_ or _auctoritas jurisprudentium_, by which were intended the judicial decisions and the authority of the legal writings of the famous jurisconsults. Imperial rescripts recognized these _responsa_ as authoritative for the Roman courts; and some of the emperors embodied portions of them in formally promulgated collections, thereby giving them the force of law. Justinian’s _Digest_ is the great example of this method of codification.[346] One need scarcely add that the authoritative writings and _responsa_ of the jurisconsults extended and applied the _jus gentium_, that is to say, the rules and principles of the best-considered jurisprudence, freed so far as might be from the formal peculiarities of the _jus civile_ strictly speaking. And the same was true of the praetorian edict. The Roman law also gave legal effect to _inveterata consuetudo_, the law which is sanctioned by custom: “for since the laws bind us because established by the decision of the people, those unwritten customs which the people have approved are binding.”[347]

Simply naming the sources of Roman law indicates the ways in which it grew, and the part taken by the jurisconsults in its development as a universal and elastic system. It was due to their labours that legal principles were logically carried out through the mass of enactments and decisions; that is, it was due to their large consideration of the body of existing law, that each novel decision--each case of first impression--should be a true legal deduction, and not a solecism; and that even the new enactments should not create discordant law. And it was due to their labours that as rules of law were called forth, they were stated clearly and in terms of well-nigh universal applicability.

The Laws of the Twelve Tables showed the action of legal intelligence and the result of much experience. They sanctioned a large contractual freedom, if within strict forms; they stated broadly the right of testamentary disposition. Many of their provisions, which commonly were but authoritative recognitions, were expressions of basic legal principles, the application of which might be extended to meet the needs of advancing civic life. And through the enlargement of this fundamental collection of law, or deviating from it in accordance with principles which it implicitly embodied, the jurists of the Republic and the first centuries of the Empire formed and developed a body of private and public law from which the jurisprudence of Europe and America has never even sought to free itself.

Roman jurisprudence was finally incorporated in Justinian’s _Digest_, which opens with a statement of the most general principles, even those which would have hung in the air but for the Roman genius of logical and practical application to the concrete instance. “Jus est ars boni et aequi”--it is better to leave these words untranslated, such is the wealth of significance and connotation which they have acquired. “Justitia est constans et perpetua voluntas jus suum cuique tribuendi. Juris praecepta sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere. Jurisprudentia est divinarum atque humanarum rerum notitia, justi atque injusti scientia.”

The first pregnant phrase is from the older jurist Celsus; the longer passage is by the later Ulpian, and may be taken as an expansion of the first. Both the one and the other expressed the most advanced and philosophic ethics of the ancient world. They are both in the first chapter of the _Digest_, wherein they become enactments. An extract from Paulus follows: “_Jus_ has different meanings; that which is always _aequum ac bonum_ is called _jus_, to wit, the _jus naturale_: _jus_ also means the _jus civile_, that which is expedient (_utile_) for all or most in any state. And in our state we have also the praetorian _jus_.” This passage indicates the course of the development of the Roman law: the fundamental and ceaselessly growing core of specifically Roman law, the _jus civile_; its continual equitable application and enlargement, which was the praetor’s contribution; and the constant application of the _aequum ac bonum_, observed perhaps in legal rules common to many peoples, but more surely existing in the high reasoning of jurists instructed in the best ethics and philosophy of the ancient world, and learned and practised in the law.

Now notice some of the still general, but distinctly legal, rather than ethical, rules collected in the _Digest_: The laws cannot provide specifically for every case that may arise; but when their intent is plain, he who is adjudicating a cause should proceed _ad similia_, and thus declare the law in the case.[348] Here is stated the general and important formative principle, that new cases should be decided consistently and _eleganter_, which means logically and in accordance with established rules. Yet legal solecisms will exist, perhaps in a statute or in some rule of law evoked by a special exigency. Their application is not to be extended. For them the rule is: “What has been accepted _contra rationem juris_, is not to be drawn out (_producendum_) to its consequences,”[349] or again: “What was introduced not by principle, but at first through error, does not obtain in like cases.”[350]

These are true principles making for the consistent development of a body of law. Observe the scope and penetration of some other general rules: “Nuptias non concubitus, sed consensus facit.”[351] This goes to the legal root of the whole conception of matrimony, and is still the recognized starting-point of all law upon that subject. Again: “An agreement to perform what is impossible will not sustain a suit.”[352] This is still everywhere a fundamental principle of the law of contracts. Again: “No one can transfer to another a greater right than he would have himself,”[353] another principle of fundamental validity, but, of course, like all rules of law subject in its application to the qualifying operation of other legal rules.

Roman jurisprudence recognized the danger of definition: “Omnis definitio in jure civili periculosa est.”[354] Yet it could formulate admirable ones; for example: “Inheritance is succession to the sum total (_universum jus_) of the rights of the deceased.”[355] This definition excels in the completeness of its legal view of the matter, and is not injured by the obvious omission to exclude those personal privileges and rights of the deceased which terminate upon his death.

Thus we note the sources and constructive principles of the Roman law. We observe that while certain of the former might be called “statutory,” the chief means and method of development was the declarative edict of the praetor and the trained labour of the jurisconsults. In these appears the consummate genius of Roman jurisprudence, a jurisprudence matchless in its rational conception of principles of justice which were rooted in a philosophic consideration of human life; matchless also in its carrying through of such principles into the body of the law and the decision of every case.

II

The Roman law was the creation of the genius of Rome and also the product of the complex civilization of which Rome was the kinetic centre. As the Roman power crumbled, Teutonic invaders established kingdoms within territories formerly subject to Rome and to her law--a law, however, which commonly had been modified to suit the peoples of the provinces. Those territories retained their population of provincials. The invaders, Burgundians, Visigoths, and Franks, planting themselves in the different parts of Gaul, brought their own law, under which they continued to live, but which they did not force upon the provincial population. On the contrary, Burgundian and Visigothic kings promulgated codes of Roman law for the latter. And these represent the forms in which the Roman law first passed over into modes of acceptance and application no longer fully Roman, but partly Teutonic and incipiently mediaeval. They exemplify, moreover, the fact, so many aspects of which have been already noticed, of transitional and partly barbarized communities drawing from a greater past according to their simpler needs.

One may say that these codes carried on processes of decline from the full creative genius of Roman jurisprudence, which had irrevocably set in under the Empire in the fourth and fifth centuries. The decline lay in a weakening of the intellectual power devoted to the law and its development. The living growth of the praetorian edict had long since come to an end; and now a waning jurisprudential intelligence first ceased to advance the development of law, and then failed to save from desuetude the achieved jurisprudence of the past. So the jurisprudential and juridical elements (_jus_) fell away from the law, and the imperial constitutions (_leges_) remained the sole legal vehicle and means of amendment. The need of codification was felt, and that preserving and eliminating process was entered upon.

Roman codification never became a reformulation. The Roman _Codex_ was a collection of existing constitutions. A certain jurist (“Gregorianus”) made an orderly and comprehensive collection of such as early as the close of Diocletian’s reign; it was supplemented by the work of another jurist (“Hermogenianus”) in the time of Constantine. Each compilation was the work of a private person, who, without authority to restate, could but compile the imperial constitutions. The same method was adopted by the later codifications, which were made and promulgated under imperial decree. There were two which were to be of supreme importance for the legal future of western Europe, the Theodosian Code and the legislation of Justinian. The former was promulgated in 438 by Theodosius II. and Valentinianus. The emperors formally announce that “in imitation (_ad similitudinem_) of the Code of Gregorianus and Hermogenianus we have decreed that all the Constitutions should be collected” which have been promulgated by Constantine and his successors, including ourselves.[356] So the Theodosian Code contains many laws of the emperors who decreed it.[357] It was thus a compilation of imperial constitutions already in existence, or decreed from year to year while the codification was in process (429-438). Every constitution is given in the words of its original announcement, and with the name of the emperor. Evidently this code was not a revision of the law.

The codification of Justinian began with the promulgation of the _Codex_ in 529. That was intended to be a compilation of the constitutions contained in the previous codes and still in force, as well as those which had been decreed since the time of Theodosius. The compilers received authority to omit, abbreviate, and supplement. The _Codex_ was revised and promulgated anew in 534. The constitutions which were decreed during the remainder of Justinian’s long reign were collected after his death and published as _Novellae_. So far there was nothing radically novel. But, under Justinian, life and art seemed to have revived in the East; and Tribonian, with the others who assisted in these labours, had larger views of legal reform and jurisprudential conservation than the men who worked for Theodosius. Justinian and his coadjutors had also serious plans for improving the teaching of the law, in the furtherance of which the famous little book of _Institutes_ was composed after the model, and to some extent in the words, of the _Institutes_ of Gaius. It was published in 533.

The great labour, however, which Justinian and his lawyers were as by Providence inspired to achieve was the encyclopaedic codification of the jurisprudential law. Part of the emperor’s high-sounding command runs thus:

“We therefore command you to read and sift out from the books
pertaining to the _jus Romanum_ composed by the ancient learned
jurists (_antiqui prudentes_) to whom the most sacred emperors granted
authority to indite and interpret the laws, so that the material may
all be taken from these writers, and incongruity avoided--for others
have written books which have been neither used nor recognized. When
by the favour of the Deity this material shall have been collected, it
should be reared with toil most beautiful, and consecrated as the own
and most holy temple of justice, and the whole law (_totum jus_)
should be arranged in fifty books under specific titles.”[358]

The language of the ancient jurists was to be preserved even critically, that is to say, the compilers were directed to emend apparent errors and restore what seemed “verum et optimum et quasi ab initio scriptum.” It was not the least of the providential mercies connected with the compilation of this great body of jurisprudential law, that Justinian and his commission did not abandon the phrasing of the old jurisconsults, and restate their opinions in such language as we have a sample of in the constitution from which the above extract is taken. This jurisprudential part of Justinian’s Codification was named the _Digest_ or _Pandects_.[359]

Inasmuch as Justinian’s brief reconquest of western portions of the Roman Empire did not extend north of the Alps, his codification was not promulgated in Gaul or Germany. Even in Italy his legislation did not maintain itself in general dominance, especially in the north where the Lombard law narrowed its application. Moreover, throughout the peninsula, the _Pandects_ quickly became as if they were not, and fell into desuetude, if that can be said of a work which had not come into use. This body of jurisprudential law was beyond the legal sense of those monarchically-minded and barbarizing centuries, which knew law only as the command of a royal lawgiver. The _Codex_ and the _Novellae_ were of this nature. They, and not the _Digest_, represent the influence upon Italy of Justinian’s legislation until the renewed interest in jurisprudence brought the _Pandects_ to the front at the close of the eleventh century. But _Codex_ and _Novellae_ were too bulky for a period that needed to have its intellectual labours made easy. From the first, the _Novellae_ were chiefly known and used in the condensed form given them in the excellent _Epitome of Julianus_, apparently a Byzantine of the last part of Justinian’s reign.[360] The cutting down and epitomizing of the _Codex_ is more obscure; probably it began at once; the incomplete or condensed forms were those in common use.[361]

It is, however, with the Theodosian Code and certain survivals of the works of the great jurists that we have immediately to do. For these were the sources of the codes enacted by Gothic and Burgundian kings for their Roman or Gallo-Roman subjects. Apparently the earliest of them was prepared soon after the year 502, at the command of Gondebaud, King of the Burgundians. This, which later was dubbed the _Papianus_,[362] was the work of a skilled Roman lawyer, and seems quite as much a text-book as a code. It set forth the law of the topics important for the Roman provincials living in the Burgundian kingdom, not merely making extracts from its sources, but stating their contents and referring to them as authorities. These sources were substantially the same as those used by the Visigothic _Breviarium_, which was soon to supersede the _Papianus_ even in Burgundy.

_Breviarium_ was the popular name of the code enacted by the Visigothic king Alaric II. about the year 506 for his _provinciales_ in the south of Gaul.[363] It preserved the integrity of its sources, giving the texts in the same order, and with the same rubrics, as in the original. The principal source was the Theodosian Code; next in importance the collections of _Novellae_ of Theodosius and succeeding emperors: a few texts were taken from the Codes of “Gregorianus” and “Hermogenianus.” These parts of the _Breviarium_ consisted of _leges_, that is, of constitutions of the emperors. Two sources of quite a different character were also drawn upon. One was the _Institutes_ of Gaius, or rather an old epitome which had been made from it. The other was the _Sententiae_ of Paulus, the famous “Five Books of Sentences _ad filium_.” This work of elementary jurisprudence deserved its great repute; yet its use in the _Breviarium_ may have been due to the special sanction which had been given it in one of the constitutions of the Theodosian Code, also taken over into the _Breviarium_: “Pauli quoque sententias semper valere praecipimus.”[364] The same constitution confirmed the _Institutes_ of Gaius, among other great jurisconsults. Presumably these two works were the most commonly known as well as the clearest and best of elementary jurisprudential compositions.

An interesting feature of the _Breviarium_, and destined to be of great importance, was the _Interpretatio_ accompanying all its texts, except those drawn from the epitome of Gaius. This was not the work of Alaric’s compilers, but probably represents the approved exposition of the _leges_, with the exposition of the already archaic _Sentences_ of Paulus, current in the law schools of southern Gaul in the fifth century. The _Interpretatio_ thus taken into the _Breviarium_ had, like the texts, the force of royal law, and soon was to surpass them in practice by reason of its perspicuity and modernity. Many manuscripts contain only the _Interpretatio_ and omit the texts.

The _Breviarium_ became the source of Roman law, indeed the Roman law _par excellence_, for the Merovingian and then the Carolingian realm, outside of Italy. It was soon subjected to the epitomizing process, and its epitomes exist, dating from the eighth to the tenth century: they reduced it in bulk, and did away with the practical inconvenience of _lex_ and _interpretatio_. Further, the _Breviarium_, and even the epitomes, were glossed with numerous marginal or interlinear notes made by transcribers or students. These range from definitions of words, sometimes taken from Isidore’s _Etymologiae_, to brief explanations of difficulties in the text.[365] In like manner in Italy, the _Codex_ and _Novellae_ of Justinian were, as has been said, reduced to epitomes, and also equipped with glosses.

These barbaric codes of Roman law mark the passage of Roman law into incipiently mediaeval stages. On the other hand, certain Latin codes of barbarian law present the laws of the Teutons touched with Roman conceptions, and likewise becoming inchoately mediaeval.

Freedom, the efficient freedom of the individual, belongs to civilization rather than to barbarism. The actual as well as imaginary perils surrounding the lives of men who do not dwell in a safe society, entail a state of close mutual dependence rather than of liberty. Law in a civilized community has the twofold purpose of preserving the freedom of the individual and of maintaining peace. With each advance in human progress, the latter purpose, at least in the field of private civil law, recedes a little farther, while the importance of private law, as compared with penal law, constantly increases.

The law of uncivilized peoples lacks the first of these purposes. Its sole conscious object is to maintain, or at least provide a method of maintaining peace; it is scarcely aware that in maintaining peace it is enhancing the freedom of every individual.

The distinct and conscious purpose of early Teutonic law was to promote peace within the tribe, or among the members of a warband. Thus was law regarded by the people--as a means of peace. Its communication or ordainment might be ascribed to a God or a divine King. But in reality its chief source lay in slowly growing regulative custom.[366] The force of law, or more technically speaking the legal sanction, lay in the power of the tribe to uphold its realized purpose as a tribe; for the power to maintain its solidarity and organization was the final test of its law-upholding strength.

Primarily the old Teutonic law looked to the tribe and its sub-units, and scarcely regarded the special claims of an individual, or noticed mitigating or aggravating elements in his culpability--answerability rather. It prescribed for his peace and protection as a member of a family, or as one included within the bands of _Sippe_ (blood relationship); or as one of a warband or a chief’s close follower, one of his _comitatus_. On the other hand, the law was stiff, narrow, and ungeneralized in its recognized rules. The first Latin codifications of Teutonic law are not to be compared for breadth and elasticity of statement to the Law of the Twelve Tables. And their substance was more primitive.[367]

The earliest of these first codifications was the Lex Salica, codified under Clovis near the year 500. Unquestionably, contact with Roman institutions suggested the idea, even as the Latin language was the vehicle, of this code. Otherwise the Lex Salica is un-Christian and un-Roman, although probably it was put together after Clovis’s baptism. It was not a comprehensive codification, and omitted much that was common knowledge at the time; which now makes it somewhat enigmatical. One finds in it lists of thefts of every sort of object that might be stolen, and of the various injuries to the person that might be done, and the sum of money to be paid in each case as atonement or compensation. Such schedules did not set light store on life and property. On the contrary, they were earnestly intended as the most available protection of elemental human rights, and as the best method of peaceful redress. The sums awarded as Wergeld were large, and were reckoned according to the slain man’s rank. By committing a homicide, a man might ruin himself and even his blood relatives (_Sippe_) and of course on failure to atone might incur servitude or death or outlawry.

The Salic law is scarcely touched by the law of Rome. From this piece of intact Teutonism the codes of other Teuton peoples shade off into bodies of law partially Romanized, that is, affected by the provincialized Roman law current in the locality where the Teutonic tribe found a home. The codes of the Burgundians and the Visigoths in southern France are examples of this Teutonic-Romanesque commingling. On the other hand, the Lombard codes, though later in time, held themselves even harshly Teutonic, as opposed to any influence from the law of the conquered Italian population, for whom the Lombards had less regard than Burgundians and Visigoths had for their subject provincials. Moreover, as the Frankish realm extended its power over other Gallo-Teuton states, the various Teuton laws modified each other and tended toward uniformity. Naturally the law of the Franks, first the Salic and then the partly derivative Ribuarian code, exerted a dominating influence.[368]

These Teuton peoples regarded law as pertaining to the tribe. There was little conscious intention on their part of forcing their laws on the conquered. When the Visigoths established their kingdom in southern France they had no idea of changing the law of the Gallo-Roman provincials living within the Visigothic rule; and shortly afterwards, when the Franks extended their power over the still Roman parts of Gaul, and then over Alemanni, Burgundians, and Visigoths, they likewise had no thought of forcing their laws either upon Gallo-Romans or upon the Teuton people previously dominant within a given territory. This remained true even of the later Frankish period, when the Carolingians conquered the Lombard kingdom in upper Italy.

Indeed, to all these Teutons and to the Roman provincials as well, it seemed as a matter of course that tribal or local laws should be permitted to endure among the peoples they belonged to. These assumptions and the conditions of the growing Frankish Empire evoked, as it were, a more acute mobilization of the principle that to each people belonged its law. For provincials and Teuton peoples were mingling throughout the Frankish realm, and the first obvious solution of the legal problems arising was to hold that provincials and Teutons everywhere should remain amenable and entitled to their own law, which was assumed to attend them as a personal appurtenance. Of course this solution became intolerable as tribal blood and delimitations were obscured, and men moved about through the territories of one great realm. Archbishop Agobard of Lyons remarks that one might see five men sitting together, each amenable to a different law.[369] The escape from this legal confusion was to revert to the idea of law and custom as applying to every one within a given territory. The personal principle gradually gave way to this conception in the course of the ninth, tenth, and eleventh centuries.[370] In the meanwhile during the Merovingian, and more potently in the Carolingian period, king’s law, as distinguished from people’s law, had been an influence making for legal uniformity throughout that wide conglomerate empire which acknowledged the authority of the Frankish king or emperor. The king’s law might emanate from the delegated authority, and arise from the practices, of royal functionaries; it was most formally promulgated in Capitularies, which with Charlemagne reach such volume and importance. Some of these royal ordinances related to a town or district only. Others were for the realm, and the latter not only were instances of law applying universally, but also tended to promote, or suggest, the harmonizing of laws which they did not modify directly.

III

The Roman law always existed in the Middle Ages. Provincialized and changed, it was interwoven in the law and custom of the land of the _langue d’oc_ and even in the customary law of the lands where the _langue d’oil_ was spoken. Through the same territory it existed also in the _Breviarium_ and its epitomes. There was very little of it in England, and scarcely a trace in the Germany east of the Rhine. In Italy it was applied when not superseded by the Lombard codes, and was drawn from works based on the _Codex_ and _Novels_ of Justinian. But the jurisprudential law contained in Justinian’s _Digest_ was as well forgotten in Italy as in any land north of the Alps, where the Codification of Justinian had never been promulgated. The extent to which the classic forms of Roman law were known or unknown, unforgotten or forgotten, was no accident as of codices or other writings lost accidentally. It hung upon larger conditions--whether society had reached that stage of civilized exigency demanding the application of an advanced commercial law, and whether there were men capable of understanding and applying it. This need and the capacity to understand would be closely joined.[371]

The history of the knowledge and understanding of Roman law in the Middle Ages might be resolved into a consideration of the sources drawn upon, and the extent and manner of their use, from century to century. In the fifth century, when the Theodosian Code was promulgated, law was thought of chiefly as the mandate of a ruler. The Theodosian Code was composed of _constitutiones principum_. Likewise the _Breviarium_, based upon it, and other barbarian codes of Roman law, were ordained by kings; and so were the codes of Teutonic law. For law, men looked directly to the visible ruler. The _jus_, reasoned out by the wisdom of trained jurists, had lost authority and interest. To be sure, a hundred years later Justinian’s Commission put together in the _Digest_ the body of jurisprudential law; but even in Italy where his codification was promulgated, the _Digest_ fell still-born. Never was an official compilation of less effect upon its own time, or of such mighty import for times to come.

The _Breviarium_ became _par excellence_ the code of Roman law for the countries included in the present France. With its accompanying _Interpretatio_ it was a work indicating intelligence on the part of its compilers, whose chief care was as to arrangement and explanation. But the time was not progressive, and a gathering mental decadence was shown by the manner in which the _Breviarium_ was treated and used, to wit, epitomized in many epitomes, and practically superseded by them. Here was double evidence of decay; for the supersession of such a work by such epitomes indicates a diminishing legal knowledge in the epitomizers, and also a narrowing of social and commercial needs in the community, for which the original work contained much that was no longer useful.

There were, of course, epitomes and epitomes. Such a work as the _Epitome Juliani_, in which a good Byzantine lawyer of Justinian’s time presented the substance of the _Novellae_, was an excellent compendium, and deserved the fame it won. Of a lower order were the later manipulations of Justinian’s _Codex_, by which apparently the _Codex_ was superseded in Italy. One of these was the _Summa Perusina_ of the ninth or tenth century, a wretched work, and one of the blindest.[372]

Justinian’s _Codex_ and Julian’s _Epitome_ were equipped with glosses, some of which are as early as Justinian’s time; but the greater part are later. The glosses to Justinian’s legislation resemble those of the _Breviarium_ before referred to. That is to say, as the centuries pass downward toward the tenth, the glosses answer to cruder needs: they become largely translations of words, often taken from Isidore’s _Etymologiae_.[373] Indeed many of them appear to have had merely a grammatical interest, as if the text was used as an aid in the study of the Latin language.

The last remark indicates a way in which a very superficial acquaintance with the Roman law was kept up through the centuries prior to the twelfth: it was commonly taught in the schools devoted to elementary instruction, that is to say, to the Seven Liberal Arts. In many instances the instructors had only such knowledge as they derived from Isidore, that friend of every man. That is, they had no special knowledge of law, but imparted various definitions to their pupils, just as they might teach them the names of diseases and remedies, a list of which (and nothing more) they would also find in Isidore. It was all just as one might have expected. Elementary mediaeval education was encyclopaedic in its childish way; and, in accordance with the methods and traditions of the transition centuries, all branches of instruction were apt to be turned to grammar and rhetoric, and made linguistic, so to speak--mere subjects for curious definition. Thus it happened to law as well as medicine. Yet some of the teachers may have had a practical acquaintance with legal matters, with an understanding for legal documents and skill to draw them up.

The assertion also is warranted that at certain centres of learning substantial legal instruction was given; one may even speak of schools of law. Scattered information touching all the early mediaeval periods shows that there was no time when instruction in Roman law could not be obtained somewhere in western Europe. To refer to France, the Roman law was very early taught at Narbonne; at Orleans it was taught from the time of Bishop Theodulphus, Charlemagne’s contemporary, and probably the teaching of it long continued. One may speak in the same way of Lyons; and in the eleventh century Angers was famed for the study of law.

Our information is less broken as to an Italy where through the early Middle Ages more general opportunities offered for elementary education, and where the Roman law, with Justinian’s Codification as a base, made in general the law of the land. There is no reason to suppose that it was not taught. Contemporary allusions bear witness to the existence of a school of law in Rome in the time of Cassiodorus and afterwards, which is confirmed by a statement of the jurist Odofredus in the thirteenth century. At Pavia there was a school of law in the time of Rothari, the legislating Lombard king; this reached the zenith of its repute in the eleventh century. Legal studies also flourished at Ravenna, and succumbed before the rising star of the Bologna school at the beginning of the twelfth century.[374] In these and doubtless many other cities[375] students were instructed in legal practices and formulae, and some substance of the Roman law was taught. Extant legal documents of various kinds afford, especially for Italy, ample evidence of the continuous application of the Roman law.[376]

As for the merits and deficiencies of legal instruction in Italy and in France, an idea may be gained from the various manuals that were prepared either for use in the schools of law or for the practitioner. Because of the uncertainty, however, of their age and provenance, it is difficult to connect them with a definite _foyer_ of instruction.

Until the opening of the twelfth century, or at all events until the last quarter of the eleventh, the legal literature evinces scarcely any originality or critical capacity. There are glosses, epitomes, and collections of extracts, more or less condensed or confused from whatever text the compiler had before him. Little jurisprudential intelligence appears in any writings which are known to precede the close of the eleventh century; none, for instance, in the epitomes of the _Breviarium_ and the glosses relating to that code; none in those works of Italian origin the material for which was drawn directly or indirectly from the _Codex_ or _Novels_ of Justinian, for instance the _Summa Perusina_ and the _Lex Romana canonice compta_, both of which probably belong to the ninth century. Such compilations were put together for practical use, or perhaps as aids to teaching.

Thus, so far as inference may be drawn from the extant writings, the legal teaching in any school during this long period hardly rose above an uncritical and unenlightened explanation of Roman law somewhat mediaevalized and deflected from its classic form and substance. There was also practical instruction in current legal forms and customs. Interest in the law had not risen above practical needs, nor was capacity shown for anything above a mechanical handling of the matter. Legal study was on a level with the other intellectual phenomena of the period.

In an opusculum[377] written shortly after the middle of the eleventh century, Peter Damiani bears unequivocal, if somewhat hostile, witness to the study of law at Ravenna; and it is clear that in his time legal studies were progressing in both France and Italy. It is unsafe to speak more definitely, because of the difficulty in fixing the time and place of certain rather famous pieces of legal literature, which show a marked advance upon the productions to be ascribed with certainty to an earlier time. The reference is to the _Petri exceptiones_ and the _Brachylogus_. The critical questions relating to the former are too complex even to outline here. Both its time and place are in dispute. The ascribed dates range from the third quarter of the eleventh century to the first quarter of the twelfth, a matter of importance, since the opening of the twelfth century is marked by the rise of the Bologna school. As for the place, some scholars still adhere to the south of France, while others look to Pavia or Ravenna. On the whole, the weight of argument seems to favour Italy and a date not far from 1075.[378]

The _Petrus_, as it is familiarly called, is drawn from immediately prior and still extant compilations. The compiler wished to give a compendious if not systematic presentation of law as accepted and approved in his time, that is to say, of Roman law somewhat mediaevalized in tone, and with certain extraneous elements from the Lombard codes. The ultimate Roman sources were the Codification of Justinian, and indeed all of it, _Digest_, _Codex_, and _Novels_, the last in the form to which they had been brought in Julian’s _Epitome_. The purpose of the compilation is given in the Prologue,[379] which in substance is as follows:

“Since for many divers reasons, on account of the great and manifold
difficulties in the laws, even the Doctors of the laws cannot without
pains reach a certain opinion, we, taking account of both laws, to
wit, the _jus civile_ and the _jus naturale_, unfold the solution of
controversies under plain and patent heads. Whatever is found in the
laws that is useless, void, or contrary to equity, we trample under
our feet. Whatever has been added and surely held to, we set forth in
its integral meaning so that nothing may appear unjust or provocative
of appeal from thy judgments, Odilo;[380] but all may make for the
vigour of justice and the praise of God.”

The arrangement of topics in the _Petrus_ hardly evinces any clear design. The substance, however, is well presented. If there be a question to be solved, it is plainly stated, and the solution arrived at may be interesting. For example, a case seems to have arisen where the son of one who died intestate had seized the whole property to the exclusion of the children of two deceased daughters. The sons of one daughter acquiesced. The sons of the other _per placitum et guerram_ forced their uncle to give up their share. Thereupon the supine cousins demanded to share in what had so been won. The former contestants resisted on the plea that the latter had borne no aid in the contest and that they had obtained only their own portion. The decision was that the supine cousins might claim their heritage from whoever held it, and should receive their share in what the successful contestants had won; but that the latter could by counter-actions compel them to pay their share of the necessary expenses of the prior contest.[381]

Sometimes the _Petrus_ seems to draw a general rule of law from the apparent instances of its application in Justinian’s Codification. Therein certain formalities were prescribed in making a testament, in adopting a son, or emancipating a slave. The _Petrus_ draws from them the general principle that where the law prescribes formalities, the transaction is not valid if they are omitted.[382] In fine, unsystematized as is the arrangement of topics, the work presents an advance in legal intelligence over mediaeval law-writings earlier than the middle of the eleventh century.

If the _Petrus_ was adapted for use in practice, the _Brachylogus_, on the other hand, was plainly a book of elementary instruction, formed on the model of Justinian’s _Institutes_. But it made use of his entire codification, the _Novels_, however, only as condensed in Julian’s _Epitome_. The influence of the _Breviarium_ is also noticeable; which might lead one to think that the treatise was written in Orleans or the neighbourhood, since the _Breviarium_ was not in use in Italy, while the Codification of Justinian was known in France by the end of the eleventh century. The beginning of the twelfth is the date usually given to the _Brachylogus_. It does not belong to the Bologna school of glossators, but rather immediately precedes them, wherever it was composed.[383]

The _Brachylogus_, as a book of Institutes, compares favourably with its model, from the language of which it departed at will. Both works are divided into four _libri_; but the _libri_ of the _Brachylogus_ correspond better to the logical divisions of the law. Again, frequently the author of the _Brachylogus_ breaks up the chapters of Justinian’s _Institutes_ and gives the subject-matter under more pertinent headings. Sometimes the statements of the older work are improved by rearrangement. The definitions of the _Brachylogus_ are pithy and concise, even to a fault. Often the exposition is well adapted to the purposes of an elementary text-book,[384] which was meant to be supplemented by oral instruction. On the whole, the work shows that the author is no longer encumbered by the mass or by the advanced character of his sources. He restates their substance intelligently, and thinks for himself. He is no compiler, and his work has reached the rank of a treatise.

The merits of the _Brachylogus_ as an elementary text-book are surpassed by those of the so-called _Summa Codicis Irnerii_, a book which may mark the beginning of the Bologna school of law, and may even be the composition of its founder. Many arguments are adduced for this authorship.[385] The book has otherwise been deemed a production of the last days of the school of law at Rome just before the school was broken up by some catastrophe as to which there is little information. In that case the work would belong to the closing years of the eleventh century, whereas the authorship of Irnerius would bring it to the beginning of the twelfth. At all events, its lucid jurisprudential reasoning precludes the likelihood of an earlier origin.

This _Summa_ is an exposition of Roman law, following the arrangement and titles of Justinian’s _Codex_, but making extensive use of the _Digest_. It thus contains Roman jurisprudential law, and may be regarded as a compendious text-book for law students, forming apparently the basis of a course of lectures which treated the topics more at length.[386] The author’s command of his material is admirable, and his presentation masterly. Whether he was Irnerius or some one else, he was a great teacher. His work may be also called academic, in that his standpoint is always that of the Justinianean law, although he limits his exposition to those topics which had living interest for the twelfth century. Private substantial law forms the chief matter, but procedure is set forth and penal law touched upon. The author appreciates the historical development of the Roman law and the character of its various sources--praetorian law, _constitutiones principum_, and _responsa prudentium_. He also shows independence, and a regard for legal reasoning and the demands of justice. While he sets forth the _jus civile_, his exposition and approval follow the dictates of the _jus naturale_.

“The established laws are to be understood benignly, so as to preserve
their spirit, and prevent their departure from equity; for the Judge
recognizes ordainments as legitimate when they conform to the
principles of justice (_ratio equitatis_).... Interpretation is
sometimes general and imperative, as when the lawgiver declares it:
then it must be applied not only to the matter for which it is
announced, but in all like cases. Sometimes an interpretation is
imperative, but only for the special case, like the interpretation
which is declared by those adjudicating a cause. It is then to be
accepted in that cause, but not in like instances; for not by
precedents, but by the laws are matters to be adjusted. There is
another kind of interpretation which binds no one, that made by
teachers explaining an ambiguous law, for although it may be
admissible because sound, still it compels no one. For every
interpretation should so be made as not to depart from justice, and
that all absurdity may be avoided and no door opened to fraud.”[387]

One must suppose that such concise statements were explained and qualified in the author’s lectures. But even as they stand, they afford an exposition of Roman principles of interpretation. Not only under the Roman Empire, but subsequently in mediaeval times, the Roman lawyer or the canonist did not pay the deference to adjudicated precedent which is felt by the English or American judge. The passage in the _Codex_ which “Irnerius” was expounding commands that the judge, in deciding a case, shall follow the laws and the reasoning of the great jurists, rather than the decision of a like controversy.

Since the author of this _Summa_ weighs the justice, the reason, and the convenience of the laws, and compares them with each other, his book is a work of jurisprudence. Its qualities may be observed in its discussion of _possession_ and the rights arising therefrom. The writer has just been expounding the _usucapio_, an institution of the _jus civile_ strictly speaking, whereby the law of Rome in certain instances protected and, after three years, perfected, the title to property which one had in good faith acquired from a vendor who was not the owner:

“Now we must discuss the _ratio possessionis_. _Usucapio_ in the _jus
civile_ hinges on possession, and ownership by the _jus naturale_ may
take its origin in possession. There are many differences in the ways
of acquiring possession, which must be considered. And since in the
_constitutiones_ and _responsa prudentium_ divers reasons are adduced
regarding possession, my associates have begged that I would expound
this important and obscure subject in which is mingled the _ratio_
both of the civil and the natural law. So I will do my best. First one
must consider what possession is, how it is acquired, maintained, or
lost. Possession (here the author follows Paulus and Labeo in the
_Digest_) is as when one’s feet are set upon a thing, when body
naturally rests on body. To acquire possession is to begin to possess.
Herein one considers both the fact and the right. The fact arises
through ourselves or our representative. It is understood differently
as to movables and as to land; for the movable we take in our hand,
but we take possession of a farm by going upon it with this intent and
laying hold of a sod. The intent to possess is crucial. Thus a ring
put in the hand of a sleeper is not possessed for lack of intent on
his part. You possess naturally when with mind and body (yours or
another’s who represents you) you hold or sit upon with intent to
possess. Corporeal things you properly possess, and acquire possession
of, by your own or your agent’s hand. In the same manner you retain.
Incorporeal things cannot be possessed properly speaking, but the
civil law accords a quasi possession of them.”

Then follows a discussion of the persons through whom another may have possession, and of the various modes of possessing _longa manu_ without actual touch:

“It is one thing when the possession begins with you, and another when
it is transferred to you by a prior possessor: for possession begins
in three ways, by occupation, accession, and transfer. You occupy the
thing that belongs to no one. By accession you acquire possession in
two ways. Thus the increment may be possessed, as the fruit of thy
handmaid; or the accession consists in the union with a larger thing
which is yours, as when alluvium is deposited on your land. Again
possession is transferred to you,”