(Snrtipll ICaw irlinnl ICtbtary Cornell University Library K 150.G32 A General survey of events, sources, per 3 1924 017 080 478 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017080478 THE CONTINENTAL LEGAL HISTORY SERIES Volume One GENERAL SURVEY The Continental Legal History Series Published wider the auspices of the Association of American Law Schools L A GENERAL SURVEY OF EVENTS, SOURCES, PERSONS, AND MOVEMENTS IN CONTINENTAL LEGAL HISTORY. By VAKiotrs Authors. Translated by Rapeue Howell, F. S. Philbbick, John Walgken, and John H. Wigmose. S6.00 net. IL GREAT JURISTS OF THE WORLD, FROM PAPINIAN TO VON IHERING. By Vabiotjs Authors. Illustrated. (Extra vol- lune. By arrangement with John Mvirray, London.) $5.00 net nL HISTORY OF FRENCH PRIVATE LAW. By J. Bbissaud, late of the University of Toulouse. Translated by Rapeue Howell, of the New York Bar. $5.00 net. IV. HISTORY OF GERMANIC PRIVATE LAW. By Rudolph HuEBNER, of the University of Rostock. Translated by.DB. Francis S. Philbrick, of New York, N. Y. $4.50 net. V. HISTORY OF CONTINENTAL CRIMINAL PROCEDLTIE. By A. EsMBiN, Professor in the University of Paris, with chapters by FRAN901S Garraud, of the University of Lyon, and C. J. A. Mitter- MATEB, late of the University of Heidelberg. Translated by John Simpson, of the New York Bar. $4.50 net. VI. HISTORY OF CONTINENTAL CRIMINAL LAW. By Ludwig VON Bar, of the University of Gottingen. Translated by Thomas S. Bell, of the Tacoma Bar. $4.00 net. Vn. HISTORY OF CONTINENTAL CIVIL PROCEDURE. By Arthur Engelmann, Chief Justice of the Court of Appeals at Breslau, with a chapter by E. Glasson, late of the University of Paris. Trans- lated by Robert W. Millar, of Northwestern University. $4.00 net. VIIL HISTORY OF ITALIAN LAW. By Carlo Calisse, of the Itahan Council of State. Translated by John Lisle, of the Philadelphia Bar. $5.00 net. IX. HISTORY OF FRENCH PUBLIC LAW. By J. Brissaud, late of the University of Toulouse. Translated by Jambs W. Gakneb, of the University of Illinois. $4.50 net. X HISTORY OF CONTINENTAL COMMERCIAL LAW. By Paul HuvELiN, of the University of Lyon. Translated by Ernest G. LoRENZBN, of the University of Wisconsin. $5.50 net XI. THE EVOLUTION OF LAW IN EUROPE. By Gabriel Takde, Raoul de la Grasserie, and others. $5.00 net. THE CONTINENTAL LEGAL HISTORY SERIES Published under the auspices of the ASSOCIATION OF AMERICAN LAW SCHOOLS A GENERAL SURVEY OF EVENTS, SOURCES, PERSONS AND MOVEMENTS IN CONTINENTAL LEGAL HISTORY BT VARIOUS EUROPEAN AUTHORS BOSTON LITTLE, BROWN, AND COMPANY 1912 B4-0 3i- Copyright, 1912, Bt Little, Brown, and Company. AU rights reserved Norfoooti Threes Set up and electrotyped by J. S. Gushing Co., Norwood, Mass., U.S.A. Presswork hy S. J. Farkhill & Co., Boston, U.S.A. LIST OF COLLABORATORS Editorial Preface .... John Henry Wigmore Introduction Oliver Wendell Holmes Introduction Edward Jenks AUTHORS Prologue Part I. From Justinian to Feu- dalism Part II. Italy Part III. France Part IV. Germany . Part V. Netherlands Part VI. Switzerland Part VII. Scandinavia Part VIII. Spain Part IX. Canon Law Frederic William Maitland Carlo Calisse Carlo Calisse Jean Bkissaud Heinrich Brunner Roderick von Stlntzing ElCHARD SCHROEDBR Heinrich Siegel Otto Stobbe Heinrich Zoepfl JoosT Adriaan van Hamel EUGEN HdBER Ebbe Hertzbebg Rafael Altamira Jean Brissaud TRANSLATORS Parts I and II John Henry Wigmore Parts III and IX Rapelje Howell Parts IV, VI, and VIII . . . Francis S. Philbrick Part VII John Walgken EDITORIAL COMMITTEE OF THE ASSOCIATION OF AMERICAN LAW SCHOOLS Ernst Freund, Professor of Law in the University of Chicago. Charles H. Huberich, Professor of Law in Stanford University. Ernest G. Lorenzen, Professor of Law in the University of Wisconsin. Wm. E. Mikell, Professor of Law in the University of Penn- sylvania. John H. Wigmore, Chairman, Professor of Law in Northwestern University. LIST OF TRANSLATORS Thomas S. Bell, of the Tacoma Bar. James W. Garner, Professor in the State University of Illinois. Rapelje Howell, of the New York Bar. John Lisle, of the Philadelphia Bar. Ernest G. Lorenzen, of the Editorial Committee. Robert W. Millar, Lecturer in Northwestern University. Francis S. Philbrick, of Washington, D. C. John Simpson, of the New York Bar. John Walgren, of the Chicago Bar. John H. Wigmore, of the Editorial Committee, I might instance in other professions the obligation men lie under of applying themselves to certain parts of History; and I can hardly for- bear doing it in that of the Law, — in its nature the noblest and most beneficial to mankind, in its abuse and debasement the most sordid and the most pernicious. A lawyer now is nothing more (I speak of ninety- nine in a hundred at least), to use some of Tully's words, "nisi leguleius quidem cautus, et acutus praeco actionum, cantor formularum, auceps syUabarum." But there have been lawyers that were orators, philoso- phers, historians: there have been Bacons and Clarendons. There will be none such any more, till in some better age true ambition, or the love of fame, prevails over avarice; and till men find leisure and encourage- ment to prepare themselves for the exercise of this profession, by climb- ing up to the vantage ground (so my Lord Bacon calls it) of Science, instead of grovelling all their fives below, in a mean but gainful applica- tion of all the little arts of chicane. TUl this happen, the profession of the law will scarce deserve to be ranked among the learned professions. And whenever it happens, one of the vantage grounds to which men must chmb, is Metaphysical, and the other. Historical Knowledge. Henry St. John, Viscount Bolingbeoke, Letters on the Study of History (1739). Whoever brings a fruitful idea to any branch of knowledge, or rends the veil that seems to sever one portion from another, his name is written in the Book among the builders of the Temple. For an English lawyer it is hardly too much to say that the methods which Oxford invited Sir Henry Maine to demonstrate, in this chair of Historical and Comparative Jurisprudence, have revolutionised our legal history and largely trans- formed our current text-books. — Sir Frederick Pollock, Bart., The History of Comparative Jurisprudence (Farewell Lecture at the Univer- sity of Oxford, 1903). No piece of History is true when set apart to itseK, divorced and iso- lated. It is part of an intricately pieced whole, and must needs be put in its place in the netted scheme of events, to receive its true color and estimation. We are aU partners in a common undertaking, — the iUumi- nation of the thoughts and actions of men as associated in society, the life of the human spirit in this famihar theatre of cooperative effort in which we play, so changed from age to age, and yet so much the same throughout the hurrying centuries. The day for synthesis has come. No one of us can safely go forward without it. — Woodrow Wilson, The Variety and Unity of History (Address at the World's Congress of Arts and Science, St. Louis, 1904), CONTINENTAL LEGAL HISTORY SERIES GENERAL INTRODUCTION TO THE SERIES "All history," said the lamented master Maitland, in a memo- rable epigram, "is but a seamless web; and he who endeavors to tell but a piece of it must feel that his first sentence tears the fabric." This seamless web of our own legal history unites us inseparably to the history of Western and Southern Europe. Our main interest must naturally center on deciphering the pattern which lies directly before us, — that of the Anglo-American law. But in tracing the warp and woof of its stsucture we are brought inevi- tably into a larger field of vision. The story of Western Continental Law is made up, in the last analysis, of two great movements, racial and intellectual. One is the Germanic migrations, planting a solid growth of Germanic custom everywhere, from Danzig to Sicily, from London to Vienna. The other is the posthumous power of Roman law, forever resisting, struggling, and coalescing with the other. A thousand detailed combinations, of varied types, are developed, and a dozen distinct systems now survive in independence. But the result is that no one of them can be fully understood without surveying and tracing the whole. Even insular England cannot escape from the web. For, in the first place, all its racial threads — Saxons, Danes, Normans — were but extensions of the same Germanic warp and woof that was making the law in France, Germany, Scandinavia, Nether- lands, Austria, Switzerland, Northern Italy, and Spain. And, in the next place, its legal culture was never without some of the same intellectual influence of Roman law which was so thoroughly overspreading the Continental peoples. There is thus, on the one hand, scarcely a doctrine or rule in our own system which can- not be definitely and profitably traced back, in comparison, till we come to the point of divergence, where we once shared it in common with them. And, on the other hand, there is, during all the intervening centuries, a more or less constant juristic socia- bility (if it may be so called) between Anglo-American and Con- xi CONTINENTAL LEGAL HISTORY SERIES tinental Law; and its reciprocal influences make the story one and inseparable. In short, there is a tangled common ancestry, racial or intellectual, for the law of all Western Europe an4 ourselves. For the sake of legal science, this story should now become a familiar one to all who are studious to know the history of our own law. The time is ripe. During the last thirty years Euro- pean scholars have placed the history of theu- law on the footing of modern critical and philosophical research. And to-day, among ourselves, we find a marked widening of view and a vigorous interest in the comparison of other peoples' legal institutions. To the satisfying of that interest in the present field, the only obstacle is the lack of adequate materials in the EngUsh language. That the spirit of the times encourages and demands the study of Continental Legal History and all useful aids to it'was pointed out in a memorial presented at the annual meeting of the Asso- ciation of American Law Schools in August, 1909: "The recent spread of interest in Comparative Law in general is notable. The Comparative Law Bureau of the American Bar Associa- tion; the Pan-American Scientific Congress; the American Institute of Criminal Law and Criminology; the Civic Federation Conference on Uniform Legislation; the International Congress of History; the libraries' accessions in foreign law, — the work of these and other movements touches at various points the bodies of Continental law. Such activities serve to remind us constantly that we have in English no histories of Continental law. To pay any attention at all to Con- tinental law means that its history must be more or less considered. Each of these countries has its own legal system and its own legal history. Yet the law of the Continent was never so foreign to Eng- lish as the English law was foreign to Continental jurisprudence. It is merely maintaining the best traditions of our own legal litera- ture if we plead for a continued study of Continental legal history. " We believe that a better acquaintance with the results of modern scholarship ui that field will bring out new points of contact and throw new fight upon the development of our own law. Moreover^ the present-day movements for codification, and for the reconstruc- tion of many departments of the law, make it highly desirable that our profession should be well informed as to the history of the nine- teenth century on the Continent in its great measures of law reform and codification. " For these reasons we befieve that the thoughtful American lawyers and students should have at their disposal translations of some of the best works in Continental legal history." And the following resolution was then adopted unanimously by the Association: xii CONTINENTAL LEGAL HISTORY SERIES " That a committee of five be appointed, on Translations of Conti- nental Legal History, with authority to arrange for the translation and pubhcation of suitable works." The Editorial Committee, then appointed, spent two years in studying the field, making selections, and arranging for trans- lations. It resolved to treat the undertaking as a whole; and to co-ordinate the series as to (1) periods, (2) countries, and (3) topics, so as to give the most adequate survey within the space- limits available. (1) As to periods, the Committee resolved to include modern times, as well as early and mediaeval periods; for in usefulness and importance they were not less imperative in their claim upon our attention. Each volume, then, was not to be merely a valu- able torso, lacking important epochs of development; but was to exhibit the history from early to modern times. (2) As to countries, the Committee fixed upon France, Ger- many, and Italy as the central fields, leaving the history in other countries to be touched so far as might be incidentally possible. Spain would have been included as a fourth; but no suitable book was in existence; the unanimous opinion of competent scholars is that a suitable history of Spanish law has not yet been written. (3) As to topics, the Committee accepted the usual Continental divisions of Civil (or Private), Commercial, Criminal, Procedural, and Public Law, and endeavored to include all five. But to repre- sent these five fields under each principal country would not only exceed the inevitable space-limits, but would also duplicate much common ground. Hence, the grouping of the individual volumes was arranged partly by topics and partly by countries, as follows: Commercial Law, Criminal Law, Civil Procedure, and Criminal Procediu-e, were allotted each a volume; in this volimie the basis was to be the general European history of early and mediaeval times, with special reference to one chief country (France or Germany) for the later periods, and with an excursus on another chief country. Then the Civil (or Private) Law of France and of Germany was given a volume each. To Italy was then given a volume covering all five parts of the field. For Public Law (the subject least related in history to our own), a volume was given to France, where the common starting point with England, and the later divergences, have unusual importance for the history of our courts and legal methods. Finally, two volumes were allotted to general surveys indispensable for viewing the connec- xiii CONTINENTAL LEGAL HISTORT SERIES tion of parts. Of these, an introductory volume deals with Sources, Literature, and General Movements, — in short, the external history of the law, as the Continentals call it (corresponding to the aspects covered by Book I of Sir F. Pollock and Professor F. W. Maitland's " History of the English Law before Edward I ") ; and a final volume analyzes the specific featiu-es, in the evolution of doctrine, common to all the modern systems. Needless to say, a Series thus co-ordinated, and precisely suited for our own needs, was not easy to construct out of materials written by Continental scholars for Continental needs. The Committee hopes that due allowance will be made for the difii- culties here encountered. But it is convinced that the ideal of a co-ordinated Series, which should collate and fairly cover the various fields as a connected whole, is a correct one; and the endeavor to achieve it will sufficiently explain the choice of the particular materials that have been used. It remains to acknowledge the Committee's indebtedness to all those who have made this Series possible. To numerous scholarly advisers in many Eiu-opean universities the Committee is indebted for valuable suggestions towards choice of the works to be translated. Fortified by this advice, the Committee is confident that the authors of these volumes represent the highest scholarship, the latest research, and the widest repute, among European legal historians. And here the Committee desires also to express its indebtedness to Elbert H. Gary, Esq., of New York City, for his ample provision of materials for legal science in the Gary Library of Continental Law (in Northwestern University). In the researches of prep- aration for this Series, those materials were found indispensable. To the authors the Committee is grateful for their willing co-operation in allowing this use of their works. Without ex- ception, their consent has been cheerfully accorded in the interest of legal science. To the publishers the Committee expresses its appreciation for the cordial interest shown in a class of literature so impor- tant to the higher interests of the profession. To the translators, the Committee acknowledges a particular gratitude. The accomplishments, legal and linguistic, needed for a task of this sort are indeed exacting; and suitable translators are here no less needful and no more numerous than suitable authors. The Committee, on behalf of our profession, acknowl- xiv CONTINENTAL LEGAL HISTORY SERIES edges to them a special debt for their cordial services on behalf of legal science, and commends them to the readers of these vol- umes with the reminder that without their labors this Series would have been a fruitless dream. So the Committee, satisfied with the privilege of having intro- duced these authors and their translators to the public, retires from the scene, bespeaking for the Series the interest of lawyers and historians alike. The Editorial Committee. XV GENERAL SURVEY XVll CONTENTS PAGE General Intkoducxiok a?o the Series xi List op Maps xxxii Editorial Preface, by John H. Wigmore xxxiii Introduction, by Oliver Wendell Holmes xlv Introduction, by Edward Jenks xlix PART I. ROMAjLJjjDj&EBMAHIC J^AJg FROM JUSTINIAN TO FEUDALISM (A.D. 475-1100) § 1. Preliminary Survey of Prior Event* and Conditions in Europe . 3 CHAPTEE I. First Period: a.d. 475-575 LAW UNDER THE GOTHIC KINGDOMS AND THE LATER ROMAN (BYZANTINE) EMPIRE § 2. The Gothic Kingdoms and the Roman Empire . c Topic 1. The Roman Legislation op the Germans PA.GE §§ 3-5. The Edict of Theo- doric the Ostrogoth 10 §§ 6, 7. The Minor Ostrogothic Edicts 15 § 8. The Roman Laws of the Visigoths (Alaric) . . 16 § 9. The Roman Laws of the Burgundians (Papinia- nus) 18 Topic 2. The Roman Law op Rome § 10. Roman Practice before Justinian 19 § 11. Justinian's Legislation . 20 §§ 12, 13. Imperfect Diffusion of the " Corpus Juris" .... 21 CHAPTEE II. Second Period: a.d. 575-900 LAW UNDER THE LOMBARD KINGDOM AND THE PRANKISH EMPIRE S 14. Introduction : The Mingling of Legal Systems 23 t xix CONTENTS §§ 15, 16. The Lombards and their Civilization . 25 §§ 17-19. The Lombard Edict ; its Formation and Enactment ... 26 Topic 1. The Lombard Kingdom PAGE PAGE §§ 20-22. The Edict of Rothar 29 §§ 23, 24. Supplements to the Edict 31 §§ 25-27. Minor Sources of Lombard Law . . 34 Topic 2. The Fkankish Empire § 28. Charlemagne's Dominion and its Significance . 36 § 29. Charlemagne's Imperial Legislation 36 §§ 30, 31. The Capitularies . . 38 § 32. Collections of Capitula- ries 41 § 33. Italian Capitularies . . 43 § 34. Efeect of the Capitula- ries 44 Topic 3. The Germanic Popular Codes § 35. The Codifying of the Ger- manic Tribal Customs §§ 36, 37. Mode of Legislation . § 38. Relation of the Codes to Each Other .... §§ 39-41. The Gothic Group (Burgundian, Visi- gothic) .... 45 46 48 49 §§ 42, 43. The Saxon Group (Saxon, Frisian) . 52 §§ 44, 45. The Suabian Group (Alamannic, Bava- rian) 54 §§ 46, 47. The Frankish Group (Thuringian, Cha- - mavian, Ripuarian, Salic) 57 §§ 48, 49. Personality and Ter- ritoriality of Laws, contrasted . . . § 50. Personality under the Carolingian Empire . Topic 4. The Personality of Laws §§ 51-53 60 62 Professions " of Personal Law . . 63 § 54. Conflict of Laws ... 66 §§ 55, 56. Exceptions to the Rule of Personality 67 § 57. Unifying Influence of the Capitularies . 69 CHAPTER III. Thied Period: a.d. 900-1100 LAW UNDER THE FEUDAL SYSTEM § 58. Spirit of Feudalism 71 Topic 1. Feudal Legislation §§ 59, 60. Feudal Statutes 72 §§ 61-63. Compilations of Feudal Law . . 74 XX CONTENTS Topic 2. Feudal Customary Law PAGE § 64. Growth of Customs 77 §§ 65- 66. Rulesforthe Validity of Customs ... 78 Topic 3. Territoriality of Laws § 67. Causes leading to Terri- toriality 80 68, 69. Dominance of the Territorial Princi- ple 81 PART II. ITALY CHAPTER I. TiKST Period: a.d. 900-1100 ITALY DURING THE MIDDLE AGES Topic 1. The Roman Law § 1. Persistence of Roman Law 87 § 2. Roman Law under the Carolingians and Feu- dalism 89 § 3. Influence of Roman Law § 4. Relative Influence of Later and Earlier Roman Law § 5. Progressive Stages of In- fluence Topic 2. The Church's Law § 6. The Church's Influence on Secular Law .... 92 § 7. Efiect of the Church's In- fluence Topic 3. The Science of Law § 8. Rise of Legal Learning . 95 § 9. The Schools of Law . . 96 §§ 10, 11. Schools of Lombard Law 97 §§ 12, 13. Schools of Roman Law 99 90' 91 92 94 § 14. Legal Treatises . . 101 §§ 15-17. Treatises on Lom- bard Law . 101 §§ 18, 19. Treatises on Roman Law . . . 103 §§ 20-22. Formularies and Documents . 104 CHAPTER II. Second Period: a.d. 1100-1700 ITALY DURING THE RENASCENCE § 23. Introductory Topic 1. The Common Law § 24. The Diverse Elements . §§ 25, 26. The Germanic Law , 109 109 §§ 27-29. The Canon Law . §§ 30-34. The Roman Law . 108 113 117 XXI CONTENTS Topic 2. The Science or Law § 35. Beginnings of Legal Science .... 12i §§ 36, 37. The Schools of Law 125 §§ 38, 39. The School at Bo- logna 123 § 40. Other Schools .... 131 § 41. The Jurists and their Methods 132 §§ 42-44. (a) The Glossators . 137 §§ 45-48. (6) The Commenta- tors Ii2 §§ 49-51. (c) The Humanists . 147 § 52. (d) The Practical Jurists 152 §§ 53-55. (e) Jurists of France, Germany, and Holland .... 154 Topic 3. The Legislation 1. THE communal PERIOD § 56. Legislative Conditions in the 1200 s .... 159 § 57. Growth of the City Legislation .... 160 §§ 58-60. Sources of the City Legislation 160 §§ 61-63. Compilation of the Statutes .... 163 §§ 64, 65. Industrial and Com- mercial Statutes . 165 § 66. Commercial Institutions 168 2. THE MONARCHICAL PERIOD § 67. Imperial Legislation 169 §§ 68-75. Legislation of the Italian States . . 170 CHAPTER III. Third Period: a.d. 1700-1900 ITALY IN MODERN TIMES § 76. The Transition 176 Topic 1. Schools of Legal Thought §§ 81-83. The Historical School 183 §§ 77-80. The School of Natu- ral Law .... 178 Topic 2. The Codification Movement §§ 84, 85. The Italian Codes of the 1700 s ... 187 §§ 86-88. The French Codes in Italy 189 §§ 89-92. The Italian Codes of the 1800 s . . 192 Topic 3. Recent Times §§ 93, 94. Codification and the Historical School . 195 § 9.5. Other Schools of Thought 197 § 96. Conclusion lf)9 CONTENTS PART III. FRANCE / r , ' CHAPTER I. PiEST Period: a.d. 1000-1500 THE ROMAN LAW AND THE REGIONAL CUSTOMS Topic 1. The Territoriality of Law § 1. Origin of the Principle . 203 § 2. Division of France into Country of Written Law and Country of Customs 204 3. Some of the Differences between the Written Law and the Customs . . . 205 Topic 2. The Roman Law § 4. Authority of the Roman Law in the Regions of Written Law .... 206 § 5. The Roman Law in the Regions of Customs dur- ing the 1200 s and 1800 s 207 § 6. Same : In and After the 1500 s 207 § 7. Teaching of Roman Law at the Universities . . 209 § 8. Propagation of the Roman Law in Other Countries 213 Topic 3. The Customs § 9. Territoriality of Customs . 213 § 10. General Features of Law under the Customs . . 216 § 11. Municipal Charters of Privileges 222 § 12. Books of Customs and Treatises on the Law . 224 Topic 4. Other Sources of Law § 13. Judicial Decisions . . . 231 § 14. Deeds, Cartularies, Form- Books, and Land-Reg- isters 239 § 15. Commercial and Mari- time Law 242 § 16. Public Law and the Legal Philosophies .... 244 § 17. Royal Legislation : (1) Form of Enactment . § 18. Same : (2) Character and Object § 19. Same : (3) Principal Ordi- nances previous to the 1500 s 250 246 249 CHAPTEE , II. Second Period : a.d. 1600-1789 NATIONAL JURISTS AND ROYAL LEGISLATION § 20. Introductory Topic 1. The Roman Law Jurists § 21. The Humanists § 22. The French School ; Cujas, Baudouin, Donequ, Hotman xxiii 251 252 254 CONTENTS Topic 2. Tpe Official Compilation of the Customs paoe pare § 23. Reasons and Methods of I § 24. Results of the Redaction 260 the Redaction .... 259 | Topic 3. The Royal Legislation § 25. Introductory 263 § 26. Ordinances of the 1500 s and Early 1600 s . . . 26i § 27. Ordinances of Louis XIV 264 § 28. Ordinances of Louis XV 265 Topic 4. The National Jurists § 29. The Courts and the Bar . 266 § 30. National Jurists of the 1500s 267 § 31. National Jurists of the 1600 sand 1700 s. 268 Topic 5. Political Philosophy § 32. Philosophies of the 1500 s and 1600s 271 § 33. Philosophies of the 1700 s 272 CHAPTER III. Third Pbkiod: a.d. 1789-1904 THE REVOLUTION AND THE CODES Topic 1. The Renovation and Unification of the Law § 34. The Intermediate Work of the Revolution . . 274 § 35. The Preparation and En- actment of the Code Napoleon 279 § 36. Character and Contents of the Code Napoleon . § 37. The Empire and the Other Codes .... Topic 2. The Civil Law since the Codification § 40. Legal Science . . § 38. Legislation since 1804 § 39. Judicial Decisions . . 293 299 Topic 3. The Code Napoleon in Other Countries § 41. Prior Codifications . . . 302 I § 42. The Extension of the I Code Napoleon . . . 285 292 300 303 PART IV. GEIUIANY CHAPTER I. EiEST Period: a.d. 1000-1400 FEUDALISM AND THE PEOPLE'S LAW-BOOKS § 1. The Various Forms of the Law 311 § 2. Sources of Imperial Law . 314 § 3. Compilations of Territo- rial and Feudal Law . . 317 § 4. Territorial and Local Law 322 § 5. Manorial Law 325 § 6. Sources of Town Law . . 327 § 7. Charters, Deeds, and For- mularies 331 CONTENTS CHAPTEE II. Second Period: a.d. 1400-1600 THE RECEPTION OF ROMAN LAW The Reception of Roman Law in General Topic 1. The Rise or Learning in Roman Law PAGE 334 §9. §10. §11- §12. §16. §17. §18. §19. §20. §25. §26. §29. §30. §31. §32. §33. Eike von Repkow and the " Sachsenspiegel " . . 342 The Clergy and the Canon Law 344 The Conception of the Imperial Law. . . . 346 The "Deutschenspiegel" and the " Schwaben- spiegel" 347 § 13. Literature of the Canon and Roman Law down to 1500 349 § 14. " Summse Confessorum " and Related Literature 350 § 15. Canon and Roman Law in German Universities 352 Topic 2. The Victory op Roman Law Basic Conditions making possible the Authority of Roman Law . . . 356 The Superior Technic of the Roman Law . . . 358 The "Klagspiegel" . . 359 Decay of the Popular Courts 361 Transformations in the Administration of Jus- tice 363 367 369 § 21. Political Significance of the Reception . . . § 22. The Legal Profession : University Professors and Practitioners . . § 23. Complaints against the Lawyers 373 § 24. Legal Training ; Smat- terers and Popular Lit- erature 375 Topic 3. Italian Humanism, and the Reformation Theology and Legal Sci- ence in the Middle Ages 378 Early Humanism . . . 380 § 27. Later Influence of Hu- manism 381 § 28. The Reformation Topic 4. Methods op Jurists in the 1500 s 382 General Character of Med- ieval Science .... 384 Legal Science : the " Mos Italicus" 386 Effects of the "Mos Italicus" 388 " Loci " and " Topica " . 390 The Period of Unshaken Authority of the " Mos Italicus" 391 § 34. Opposition, and the Be- ginning of Reform . . 393 § 35. Unofficial Academic Courses : Seminars and Disputations .... 394 § 36. Attitude of Humanism toward the " Mos Itali- cus " and the New "Methodus" .... 396 § 37. The Ramists and their Doctrines 397 XXV contexts Topic 5. Legislation PAGE § 38. Imperial and Territorial Legislation of the 1500 s 400 CHAPTER III. Thikd Period: a.d. 1600-1806 NATURAL LAW, LEGAL RATIONALISM, AND GERMAN NATIONALISM Topic 1. Natural Law and Legal Rationalism § 39. Rise of the Natural Law Jurists 407 § 40. Grotius, Bacon, Hobbes, Puffendorf, Leibnitz . § 41. Rise of the German Na- tional Jurists . . . . § 42. Exponents of Nationalism Topic 2. German Nationalism 425 and Realism ; Carpzov, Mevius, Conring, Tho- masius, Beyer . . . Topic 3. State-building and Legislation § 43. Decline and Fall of the I § 44. Territorial and State Leg- Empire (to 1806) . . 432 I islation (to 1811) . . 408 426 434 CHAPTER IV. EouETH Period: a.d. 1806-1908 NATIONAL UNIFICATION AND CODIFICATION § 45. Influences in the Late 1700 s favoring Native Law and Codification . 439 § 46. Thibaut and Savigny: the Controversy over National Codification . 441 § 47. State Codes of the 18003 44.5 § 48. Progress of Political Uni- fication, 1806-1871 . . 445 § 49. National Codification, 1848-1908 446 PART V. NETHERLANDS § 1. Introductory 455 § 7. The 1600 s and 1700 s: § 2. Primitive Period .... 456 Formation of the Ro- § 3. Evolution during the man-Dutch Law . . . 467 Middle Ages .... 457 § 8. Same : Specific Branches § 4. Beginning of the Renas- of Law (Criminal, Com- cence 461 mercial. Constitutional, § 5. Authority of the Roman International) . . . 471 Law 464 § 9. National Unification and § 6. Influence of the Canon Codification after 1795 475 Law 466 § 10. Legal Conditions in Mod- ern Times 477 xxvi CONTENTS PART VI. SWITZERLAND /-^^^ § 1. Introduction 484 Topic 1. The Pke-Cokpedekation Period (to a.d. 1300) § 2. Primitive Germanic Local Law 484 Topic 2. The Old Confederation (a.d. 1300-1800) a. conrederate relations § 3. The Thirteen " Places " . 488 § 4. The Associated "Places" . 492 § 5. The Common Territories . 492 § 6. The Constitution 494 § 7. Religious Relations . . . 497 § 8. Relations with the Empire and Other Foreign States 498 B. THE CANTONS § 9. Development of the Can- tons, in Greueral . . . § 10. The Reception of Alien Law 500 501 § 11. The City Cantons ... 502 § 12. The Rural Cantons . . 507 § 13. The Associated « Places " 509 § 14. The Common Territories 513 C. LEGAL SOURCES 15. General Traits 514 Topic 3. The New Confederation (a.d. 1800-1912) § 16. Confederate Relations . 516 § 17. The Cantonal Constitu- tions 519 § 18. Legal Sources 520 Topic 4. The Jurists and the Movements or Legal Thought § 19. From the Period of Na- tional Independence to the 1700s 522 §20. In the 1800s 527 PART VII. SCANDINAVIA CHAPTER I. FiEST Period : to a.d. 1200 THE LAW-MEN AND THE LAW-TEXTS i 1. Primitive Usages .... 533 \ 2. Early Modes of Preserving Traditional Law . . . 534 3. The Icelandic Law-man and Law-saga Man . . 535 xxvii § 4. The Swedish Law-Man . 535 § 5. The Norwegian Law-Man 537 § 6. The Danish Law-Man . . 537 § 7. The Authority of the Law- Men 538 CONTENTS PAGE § 8. Legal Terms : " Law " and "Right" 539 § 9. The "Thing" in Sweden, Norway, Denmark, and Iceland 539 § 10. The Beginning of Central Legislation 541 § 11. Early Law-Texts; the "Right-books" ... 542 § 12. Law-Texts of Iceland . 543 § 13. Law-Texts of Nprway . 543 § 14. Law-Texts of Denmark . 545 § 15. Law-Texts of Sweden . 545 CHAPTER II. Second Period: a.d. 1200-1700 THE MEDIEVAL CODES the § 16. Denmark under Jydske Code .... § 17. Same : the Courts . . . § 18. Norway under King Mag- nus Lagaboter's Stat- utes § 19. Iceland under King Mag- nus Lagaboter's Stat- utes 547 548 549 553 § 20. Sweden under the Stat- utes of Kings Magnus Eriksson and Kristoffer 553 § 21. Same : Growth of the Courts 555 CHAPTEE III. Third Period: a.d. 1700-1900 THE MODERN CODES § 22. The Danish Code of King Christian V .... 557 § 23. The Norwegian Code of King Kristian V . . . 559 § 24. The Swedish Code of 1734 560 § 25. Relation between the Codes and Auxiliary Law 562 § 26. Later Legislation; Crimes, Procedure, Courts . . 562 § 27. Same : Private Law . . 564 § 28. Same : Economic Legis- lation 565 § 29. Recent Codes .... 567 § 30. Law of Custom ; Force of Judicial Decisions . 568 § 31. Philosophy of Law . . 570 § 32. Literature on Northern Legal History .... 574 PART VIII. SPAIN INTRODUCTION: FACTORS AND PERIODS § 1. The Inadequacy of Exist- ing Historical Accounts § 2. General Influences and Traditional Periods in Spanish Legal History 580 581 XXVlll § 3. Sketch of Legal Develop- ment by Periods from the Origins to the Present Day .... 58-i CONTENTS CHAPTEE. I. Pee-National Period : to a.d. 1252 SUCCESSIVE RACIAL LAYERS IN SPANISH LAW Topic 1. Celtic-Iberian Foundations and Greek and Phoenician Colonies (to 200 b.c.) § 4. Obscurity of the Celtic- Iberian Origins . . . 587 § 5. Social Organization . . . 588 § 6. Institutions of Civil and Public Law 591 Topic 2. The Roman Rule (200 b.c. to a.d. 400) § 7. The Roman Influence . 592 § 8. Institutional Results of the Roman Influence . . . 593 Topic 3. The Germanic Invasions and Visigothic Dominion (A.D. 400-700) § 9. Contrast of the Roman and Visigothic Influ- ences 594 § 10. Souroesof the Visigothic Law 596 § 11. Legal Institutions of the Visigothic Period . . 598 § 12. Hybrid Legal Institutions 599 § 13. The Legislation of Kin- dasvinth 601 Topic 4. Christian and Moorish Kingdoms (a.d. 700-1300) § 14. The Influence of the Church 601 § 15. Roman, Moorish, and Other Foreign Influ- ences 608 Topic' 5. The Indigenous Groundwork of the Law in THE 1200 s § 16. Legal Sources in Castile . 607 § 17. Legal Sources in Aragon, Catalonia, Navarre, and Valencia . . . 610 § 18. General Results and Ten- dencies 613 CHAPTEE 11. First Period: a.d. 1252-1511 THE CHRISTIAN RECONQUEST AND POLITICAL UNIFICATION Topic 1. Spread op the Justinian and Canon Laws in Castile and Leon § 19. History of the Legal Sources 617 § 20. Roman Elements in the Statutory Law, and particularly in the Par- tidas 627 XXIX CONTENTS § 21. The Status of the Parti- das after the Ordena- niientoofAlcala(134:8) 631 § 22. The " Leyes de Toro " . 632 § 23. Diffusion of the Canon Law 634 § 24. New Legal Institutions of the Period .... 636 Topic 2. Spread of the Justiniax and Canon Laws in THE Other Kingdoms of the Peninsula § 25. History of the Legal Sources 641 § 26. Roman Elements in the Law of Catalonia . . 645 § 27. Eoman Elements in the Law of Aragon, Na- varre, Valencia, the Bal- earic Islands, and the Basque Provinces . . 649 § 28. Notable Jurists of the Period 654 CHAPTER III. Second Period: a.d. 1511-1808 THE AGE OF ABSOLUTE MONARCHY § 29. Imperfection of Existing Historical Guides to these Centuries Topic 1. The Austrian Dynasty (1500 s and 1600 s) § 30. History of the Legal Sources 660 § 31. Progress in the Unifica- tion of the Law . . . 666 659 § 32. Legal Science and Litera- ture in the Habsburg Period 667 Topic 2. The Bourbon Dynasty (1700-1808) § 33. History of the Legal Sources 675 § 34. Legal Science and Litera- ture of the Bourbon Period 680 CHAPTER IV. Third Period : since a.d. 1808 MODERN LEGAL REFORMS § 35. Reform of the Public Law 684 § 36. Reform of the Private Law 688 § 37. Partial Codifications of the Civil Law antece- dent to the Cddigo Civil 690 § 38. History of the Redaction of the Present Cddigo Civil 694 § 39. General Character and Limitations of the Co- digo Civil § 40. The Cddigo Civil and the Customary Law . . . § 41. Legal Science and Litera- ture of the Period . . 700 XXX CONTENTS PART IX. Canon Law (^rr^ OM^ § 1. Classification of the Sources of Church Law § 2. Early Canon Law . . . § 3. Medieval Canon Law ; Gratian's Decret^im to the " Corpus Juris Ca- nonici" 705 708 714 § 4. I^ater Canon Law . . . § 5. Judicial Decisions . . . § 6. Treatises ; the Canonists . § 7. Influence of Canon Law on Secular Law . . . PAGE 718 719 719 721 Appendix A. Comparative Chronological Table of Medieval Sources 727 Appendix B. Comparative Chronological Table of Modern Codes . . .... 746 Index 747 XXXI LIST OF MAPS PACING PAGE Western Europe as Settled by the Germanic In- vading Tribes about a.d. 500 1 Italy in the Later 1400 s 85 Map of Customary Law in Old France .... 201 Legal Map of Germany in the 1500 s and the 1800 s 307 Spain about a.d. 1300 577 EDITORIAL PREFACE TO THIS VOLUME By John H. Wigmore^ No other book of this scope and purpose exists (so it seems) either in the Enghsh language or in any other ; nor has existed, for a hundred years past, or more. To state the reasons for this lack would take us too far afield. Suffice it to point out that both the demand and the supply (so to speak) are now, if never before, plain enough in the realm of legal learning. The demand is found in the spirit of the times, — the craving for larger generalizations in legal science. The outlook beyond local and national law has opened. We desire to understand the growth of our own law as a part of that legal life which nations have in common, and, therefore, to begin by understanding the integral growth of Continental law — that system which now broadly divides with Anglo-American law the spheres of influence in the western hemisphere. To satisfy this desire, the internal legal history of the chief countries must, of course, be studied individually. But to get the perspective, to understand the relative part played by each country in the whole story, a General Survey of the events, sources, persons, periods, and movements in the common develop- ment is indispensable at the outset. The supply for this demand is found in the soHd historical achieve- ments of the past generation, — a generation which is marked off broadly from its predecessors in spirit, in methods, and in results. Not until the rise of the Historical School, a century ago, could such a volume (in the modern spirit) have been conceived; and not until the present generation has the fruition of those labors been adequate for this purpose. Even now, no single European scholar has ventured to write such a book, out of his own studies. The task is too large. It is emphatically a case for synthesis (in the words of President Woodrow Wilson, prefixed to this Series), — a synthesis pi the work of specialists. ' Professor of Law in Northwestern University, Chairman of the Edi- torial Committee for this Series and Editor of tMs volume. xxxiii EDITORIAL PREFACE TO THIS VOLUME The volume has therefore been constructed by fitting together chapters separatelj' written, each by a specialist in his own field. The aim has been to wea^•e them into a connected and inclusive story, giving to each country the proper proportions, tracing in each the principal elements of legal life common to all, and exhibiting their variances from the highway of development. I. The Authors and the Translators. — Some account will first be proper of the scholars whose work has thus been utilized. One of the Introductions is written by Oliver Wendell Holmes, now Associate Justice of the Supreme Court of the United States, and formerly Chief Justice of the Supreme Judicial Court of Massachusetts. His work on " The Common Law," ^ was the lifting of the curtain for a wider view of the origins of Anglo- American law and its relations to early Continental law. Some of us can remember the thrill and the inspiration which its ap- pearance in 1881 gave to the American legal profession. On the Continent its repeated citation by legal scholars bears witness to the homage there paid to its influence. The other Introduction is from the pen of Edward Jenks, Prin- cipal and Director of Legal Studies of the Law Society of London, formerly Lecturer at Pembroke and Jesus Colleges, Cambridge, and at Balliol College, Oxford, and Dean of the Faculty of Law, ^lelbourne. His notable treatise on " Law and Politics in the ^Middle Ages " ^ made it eminently fitting that he should intro- duce to Anglo-American lawyers a volume so closely related to one of his special fields of learning.' Part I, for the period from Justinian to Feudalism, is prologued by a brief passage from a masterpiece of the lamented Frederic William IMaitland, sketching the general events of European law prior to the epoch of Justinian.* Then follows the main text, by Carlo Calisse ; it forms the first third of the first volume of his " History of Italian Law." « Professor Calisse, member of the 1 1881, Boston, Little, Brown & Company. 2 1898, New York, Henry Holt & Co. From this work is taken the Synoptic Table of Sources, printed in the Appendix to the present volume 3 Other publications of his are : " Constitutional Experiments of the Commonwealth," 1891 ; " The Doctrine of Consideration in English Law," 1893; "History of the Australasian Colonies," 1896- "Modern Land Law," 1899 ; " A Short History of Politics," 1902 ; " Edward I " 1902; "Parliamentary England," 1903 ; "Digest of English Civil Law'" 7 vols, already issued, 1902+ ; "A Short History of English Law " 1912 * " A Prologue to a History of English Law," pp. 8-18, as reprinted in vol. I of "Select Essays in Anglo-American Legal History." * " Storia del diritto italiano di Carlo Calisse, prof, ordinario nella R Universita, di Pisa. Volume Primo : Le Ponti," 2d ed., 1902 Barbara Firenze, revised to date, in March, 1912, by the author, in this translation! xxxiv EDITORIAL PREFACE TO THIS VOLUME Italian Council of State and Lecturer on Legal History in the University of Rome, was formerly Professor of Legal History at the University of Pisa. Among the several excellent histories of Italian law (notably the extended treatises of Pertile and Schupfer, and the one-volume works of Salvioli, Solmi, Nani, and Ciceaglione) this one commended itself as the most suitable, by reason of its compactness, breadth of view, lucidity of style, justness of propor- tions, consecutiveness of narrative, and philosophy of causes. The first part, here selected, is the only text in any European language which describes Continental legal history as a whole for the period ending with feudalism. Part II, for Italy, represents the remainder of Professor Calisse's first volume. His other three volumes will form Vol. VIII of this Series, the " History of Italian Law." Part III, for France, represents the first part of the " History of French Law," ^ by J. Brissatjd, late Professor of Legal History in the University of Toulouse. Professor Brissaud, who died in 1904, was one of Europe's two or three greatest legal historians of modern tirnes. A further personal account of him is given in the Intro- duction to vol. Ill of this Series, which translates the third part (" Private Law ") of his " History " ; a later volume of this Series translates the second part (" Public Law "). The last chapter of Part HI is from the " Treatise on Civil Law," by Marcel Planiol, Professor of Civil Law in the University of Paris.^ Professor Planiol's book is esteemed throughout the Continent as the best modern treatise on French Civil Law. Part IV, for Germany, is more composite. One main portion is taken from the " Elements of German Legal History," ^ by Hein- RICH Brtjnner, Professor of Legal History in the University of Berlin, and the acknowledged primate of modern scholarship in German legal history. His larger treatise, as yet unfinished, is the leading work of its kind.* His treatise on the " Origin of Trial by Jury,"^ familiar to us through Professor Thayer's writings, 1 "Manuel d'histoire du droit frangais (sources, droit public, droit privfi) a I'usage des etudiants en licence et en doctorat. Par J. Brissaud, Professeur a la faculte de droit de I'universite de Toulouse. Paris, A. Pontemoing. P Partie, Sources. " 1898 (1st ed.) ; 1900 (2d ed.). 2 "Traits elSmentaire de droit civil, conforme au programme official des Facultes de droit. Par Marcel Planiol, professeur de droit civil a la Faculte de droit de Paris. Librairie Generale de droit et de jurispru- dence," 5tli ed., 3 vols., 1908 (1st ed., 1899). 3 "Grundziige der deutschen Rechtsgescliielite," 4th ed., 1910, Leipzig, Duncker & Humblot (1st ed., 1901). 4 "Deutsche Rechtsgeschichte," 2 vols., 1887, 1892; 2d ed., vol. I, 1908. 5 "Die Entstehung der Schwurgerichte," 1872. XXXV EDITOBIAL PREFACE TO THIS VOLUME and his essay on the " Sources of English Law," translated in the " Select Essays on Anglo-American Legal History," have made our profession pecuHarly indebted to him as to no other European scholar. A second main portion of Part IV is taken from the "History of Legal Science in Germany," ' by Rodeeich Stintzixg, Professor of Law in Basel, 1854, in Erlangen, 1857, and in Bonn, from 1870 to the time of his death in 1883.2 This " magnum opus " of Professor Stintzing is the most elaborate and best esteemed history of legal science in Germany, and is a rich mine for all students of the sub- ject. It was unfinished at the time of his death, but was com- pleted by a colleague, Eexst Landsbeeg, Professor of Roman and Criminal Law at the University of Bonn, who edited the already collected materials as Part II of vol. I and then himself wrote the remaining volumes, II and III ; from these a brief passage has been taken. The remainder of Part IV consists of short connecting passages from the works of four eminent legal historians of Germany and Austria : (1) from the " History of German Legal Sources," ' by Johannes Ernst Otto Stobbe, Professor of Law at the Uni- versities of Konigsberg (1856), of Breslau (1859), and of Leipzig (1872), who died in 1887; (2) from the "Handbook of German Legal History," * by Richard Schroeder, Professor of Germanic Law at the University of Heidelberg (formerly at Bonn, Wiirz- burg, Strassbourg, and Gottingen, 1866-1888, whence he went to Heidelberg), one of Germany's greatest legal historians, devotedly Other chief publications of his are: "Das Anglo-Normannisohe Erb- folgesystem," 1869; "Zur Rechtsgeschichte der romischen und german- ischen Urkunde," 1880; and essays collected in "Porsehungen. zur Ge- schichte," etc., 1894. ' " Geschiehte der deutschen Reehtswissenschaft, 1^^ Abtheilung, von R. Stintzing, 1880, R. Oldenbourg, Miinchen and Leipzig " ; 2t<= Abtheilung, 1884, by the same, edited after his death by Ernst Landsberg, professor in the University of Bonn, and published under the auspices of the His- torical Committee of the Bavarian Royal Academy of Sciences at Munich ; 3t« and i^" Abtheilung, by Professor Landsberg, 1898, 1910. (The whole work forms Vol. XVIII in a series entitled " Geschiehte der Wissenschaften in Deutschland, Neuere Zeit," pubUshed under the auspices of the above Committee). ' Other chief publications of his are: Monograph on "Ulrich Zasius," 1857; "Geschiehte der popularen Literatur des romiseh-kanonischen Reehts in Deutschland," 1867. ' "Geschiehte der deutschen Reehtsquellen, bearbeitet von O. Stobbe," 2 vols., 1860, 1864, Braunschweig, C. A. Sehwetsehke & Sohn (M. Bruhn). He wrote also a "Handbueh des deutschen Privatrechts," 2d ed., 1882- 1&S.5 ; 3d ed., by Sckulz and Lehmann, 1896-1900. ' " Lehrbuch der deutschen Rechtsgeschichte, von Richard Schroeder," 5th ed., 1907, Leipzig, Veit & Co. xxxvi EDITORIAL PREFACE TO THIS VOLUME admired by all foreign scholars who have worked under him; (3) from the " Manual of German Legal History," ^ by Heinrich SiEGEL (1830-1899), professor at the University of Vienna from 1857 to the time of his death, at one time general secretary of the Vienna Academy of Sciences, and the only Austrian who has written a general history of Germanic law ; and (4) from the " German Legal History " ^ of Heinrich Zoepfl (1807-1877), Professor of Law at Heidelberg from 1839 to the time of his death, one of the leading spirits in the revival of Germanistic legal ideas in the middle of the 1800s. A passage by Professor Ernst Freund, of the Edi- torial Committee, completes the Part. Part V, for the Netherlands (including part of what is now Bel- gium), is a chapter specially written for this work by JoosT Adriaan Van Hamel, professor in the University of Amsterdam, and official delegate to the Eighth International Prison Congress at Washington (1910). Professor Van Hamel is one of the ablest of the younger Dutch scholars, — admitted to the Amsterdam Bar in 1902, appointed Professor of Criminal Law in 1910, and the author of many treatises and articles on the history and the present prob- lems of constitutional and criminal law. In this chapter (the manuscript of which was prepared by him in English) he has skil- fully presented, under hampering limitations of space, a clear and well-proportioned survey, such as does not elsewhere exist in print, of the external history of Netherlands law. Part VI, for Switzerland, was also specially written for this work, by EuGEN HuBER, Professor of Legal History at Basel. Professor Huber is the author of what is concededly the best general history of Swiss private law ; ^ the relevant portion of that work being too long for the present purpose, he prepared this summary at the request of the Committee. Professor Huber has also occupied chairs at Halle and Bern, and was principal draftsman of the Swiss Federal Civil Code of 1907. His varied scientific work shows 1 "Lehrbueh der deutschen Rechtsgeschichte, von Heinrich Siegel," 2d ed. 1895, Wien. 2 "Deutsche Rechtsgeschichte, vonHeinrich Zoepfl," 1871-1872, 4th ed., 3 vols. Braunschweig, Friedrich Wreden- ' " System und Geschichte des schweizerischen Privatrechts. Von Eugen Huber, Professor zu Basel," 1886-1893, C. Detloff's Buchhand- lung, 4 vols. This work, in a review by the late eminent Professor Saleillesof Paris, in the "Nouvelle revue historiquedu droit, etc.," XVIII, 764, is thus characterized: "Professor Huber has now with his fourth volume crowned the important structure of his history of Swiss private law. It is a work of the first rank. Histories of private law are rarely of the highest excellence. Having had the good fortune in this instance to meet one which seems to me worthy to be a model of its kind, a master- work, I have taken much satisfaction in reviewing it." xxxvii EDITORIAL PHEFACE TO THIS VOLUME an extraordinary versatility of scholarship ; ^ and his honors include memberships in the Swiss National Council, the Hague Interna- tional Peace Court and the Institute of International Law. Part VII, for Scandinavia, is a condensation of the most authori- tative modern work, entitled " Northern Legal Sources," by Ebbe (Carsten Hornemann) Hertzberg,^ written with the partial collabo- ration of other eminent scholars in Denmark, Norway, and Sweden. Professor Hertzberg, graduating at Christiania in 1870, studied then at Munich under Konrad Maurer, became privat-docent at Christiania in 1873, attache to the Norwegian-Swedish Legation at Paris in 1875, professor at Christiania in 1877, parliamentary di- rector of the Norwegian Mortgage-Bank in 1903, and in 1906 chief of the National Archives. He is the author of numerous treatises and articles on legal history.' His treatise here used is marked by a completeness and sense of proportion rarely found combined with such learned scholarship. Part VIII, for Spain, was specially prepared for this work by Rafael Altamira (y Crevea), until recently (1910) Professor of Legal History in the University of Oviedo. Professor Altamira's versatile talents — as historian, educator, novelist, traveller — make him one of the most distinguished figures of young Spain. 'Other publications of his are: "Die sehweizerischen Erbrechte in ihrer entwicklung seit der Ablosung des alten Buades vom deutschen Reich," 1872; "Studien tiber das eheliche Giiterrecht der Sohweiz," 1874; "Das kolnische Recht in den zahringisohen Stadten," 1881 ; "Die historisohe Grundlage des ehelischen Guterrechtes der Berner Handfeste," 1884; "Das Friedensriehteramt u. die gewerbliohen Schiedsgerichte im sehweizerischen Recht," 1886 ; " Die Bedeutung der Gewere im deutschen Sachenreoht," 1894; "Betrachtung iiber die Vereinheit- liehung des sehweizerischen Erbrechts," 1895; "Betrachtung tiber die Vereinheitliohung u. Reform des sehweizerischen Grundpfandrechts," 1898; "Erlauterungen zum Entwurf eines sehweizerischen Zivilrechts," 1901-1903, "Die Eigentiimerdienstbarkeit," 1903. 2 "Nordisk Retsencyolopaedi, samlet og udgivet af Dr. Jur. T. H. Aschehoug, Dr. Jur. K. J. Berg, og Dr. Jur. A. F. Krieger. Kjabenhavn, 1890, Gyldendalske Boghandels Forlag (F. Hegel & San). I. De Nordiske Retskilder, ved Ebbe Hertzberg, fhv. Professor ved Kristiania Universitet, under Medvirkning af Flere." There was cooperation in parts by Dr S. D. R. K. Ohvecrona, Dr. V. A. Secher, Dr. L. M. B. Aubert, Professor J. H. Deuntzer, and Dr. V. Finsen, all eminent names in Scandinavian legal literature. Of this work Professor Teichmann says, in the "Zeit- schnft fiir vergleichende Reohtswissenschaft," X, 476: " Professor Hertz- berg has rendered a great service in thus setting forth the sources of Scandinavian law in the light of the extensive literature and the most recent researches in this field." ' Among them may be named : " Principles of Ancient Norwegian Pro- cedure," 1874 ; " Glossary to Norwegian Ancient Law," Part V 1895 • contributions in the " Festskrifte " published for Professors Unger Tars' and Daae; and many articles in the "Norsk Retstidende," " Historisk Tidskrift," " Tidskrift for Retsvidenskap," and in Salmonsen's " Konver- sationslexikon." xxxviii EDITORIAL PREFACE TO THIS VOLUME He is the author of what is concededly the best modern history of Spain ; ^ he was official delegate to the International Congresses of History at Rome (1903), and at Berlin (1908) ; he ranks among the two or three foremost representatives of critical scholarship in Spanish legal history. As an educator, he has been secretary (1889) of the National Pedagogic Museum ; ^ commissioner on methods of teaching history ; ' organizer of university extension in the Asturias; and in 1911 was made director-general of primary education.^ The chapter here contributed is that of a master of the legal sources, and is admirably conceived to carry out the Committee's plan for the book. Part IX, for Church law, is another passage from the same first part of Professor Brissaud's " History of French Law," from which Part III of this volume is taken.^ The translator of Parts I (Early Period) and II (Italy) is the editor of this volume. The translator of Parts III (France) and IX (Church law) is Rapelje Howell of New York. A native of New York City, he lived several years in France, attending the Lycee Carnot at Paris ; obtained a B.A. at Trinity College, Cambridge, afterwards an LL.B. at Columbia University, and is a member of the New York Bar. He is the translator also of Professor Brissaud's " History of French Private Law," forming vol. Ill of the present Series. The translator of Parts IV (Germany), VI (Switzerland), and VIII (Spain) is Francis S. Philbrick, now of Washington, D.C. A native of Iowa City, Iowa, and a B.Sc. and M.A. of Nebraska State University, he pursued graduate studies at Berlin, Paris, and Madrid (including a special study of Spanish historical sources), and 1 "Historia de Espana y de la civilisaeion espanola" (4 vols., the last in 1910). 2 The "Eeo de Madrid," known to American students of Spanish, is a conversation manual prepared by him. 3 "La ensenanza de la Historia," 1890, 1895; "La reforma de los estudios hist6ricos en Espana." _ * Other publications are: "Historia de la propiedad comunal, 1889; ."Psicologia del pueblo espanol" ; "Psieologia y literatura" ; "Espana en America"; "Mi viaje a America"; "Cuestiones hispano-americanes " ; "Historia del derecho espanol"; "Cuentos de Levante"; "Novelitas y cuentos"; "Fatalidad," a novel; "Cuadros levantinos"; "Nuevos cuentos de amor y de tristeza" ; "Cosas del dia" ; "Fantasias y reouer- dos," etc. Professor Altamira took his university degrees in 1886;-1888. ^Here should be mentioned that liberties have been taken, with all these works, in omitting certain portions of the foot-notes and other bibliographical apparatus. Lack of space imperatively required such omissions so far as feasible. Moreover, in a translation, the need for cita- tions of foreign authorities was less apparent. The translators have indicated the extent of these omissions. xxxix EDITORIAL PREFACE TO THIS VOLUME received the degree of Ph.D. at Harvard University in 1902. Ap- pointed Instructor in Government and History at Harvard Uni- versity, in 1904, he shortly afterwards resigned to become one of the editorial staff of the Eleventh Edition of the Encyclopedia Bri- tannica (1904-8, 1910). After taking a part of the law course at Columbia University (1910), he removed to Washington, to com- plete his legal studies at George Washington University. He is also the translator of Professor Hiibner's " History of Germanic Pri^'ate Law," forming Vol. IV of the present Series. The translator of Part VII (Scandinavia) is John Walgren of Chicago, a native of Danville, Illinois, graduate of the Oscarshaven high school (Sweden), LL.B. of the University of Minnesota, and a member of the Chicago Bar. He has published volumes of Essays, entitled " The New Health Science," and " Camp-Smoke Tales." In 1903-1907 he officiated as Interpreter for the Federal Govern- ment, having received in the civil service examination in Scandi- navian languages the highest average rating in the United States. The Index to the volume was prepared by Ernst Freund, of the Editorial Committee, professor of law in the University of Chicago. II. Scope of the Story. — The story of the volume begins at the close of the Roman Empire of the West. At that time, the Ger- manic tribes, settling down everywhere west of what is now Russia and the Balkans, contribute a system of customary law in a rela- tively primitive stage ; while the surviving Roman culture repre- sents law in a more advanced stage. The ensuing period of political amalgamation. From Justinian to Feudalism, forms Part I of the narrative. The modern na- tional hues are nowhere yet to be seen. But by the period 1000- 1200 the new hnes are beginning to form ; and so the story must be taken up separately for each region. Part II tells of Italy. This must come first, because the re- vival of Roman law in the 1100s is the central fact of all later development. " Italy," says Maitland, " was to be for a while the focus of the whole world's legal history." The later course of events in France and in Germany is understandable only in the light of the influences emanating from Italy. In those other coun- tries the schools and their controversies were to be for a long time not much more than echoes of thoughts originating in Italian centres. Parts HI and IV must be read as sequels to Part II. Part HI proceeds to France; for France was the first to develop the new influences independently. France succeeds Italy in the xl EDITORIAL PREFACE TO THIS VOLUME primacy of Europe's legal thinking. At the name of the French- man Cujas, law students in Germany rose and saluted. Later, in the era of the Revolution and of Napoleon, France becomes a new centre of development for more modern movements. Part IV passes to Germany. Here the story must go back to follow the fate of the pure Germanic law in its second stage. Then arrives the wave of new legal science from Italy. For three cen- turies later, Germany is occupied in assimilating these diverse ele- ments. By the 1800s it takes its turn in becoming a centre of international influence. Parts V to VIII now turn aside to follow the story in four sepa- rate regions which as nations had less distinct influence in creating types and broad movements. Part V takes up the Netherlands. Here the history is, at first, the growth of local varieties of the Germanic stock, subject to the same general influences as in France and Germany. Then, in the 1600s, with the arrival of national independence, individual thinkers vigorously give new impulses in certain fields to general European legal science. Part VI, in Switzerland, finds the story here, also, at first and for a much longer time, a local one, with many separate units. There is no distinctive flavor. Ammerbach and the Godefrois, with the other jurists, belong really, in their spirit and methods, to the law either of Germany or of France. Towards the end, as in the Netherlands, individual jurists exercise an extra-national influence, and national legislation unifies the law. Part VII deals with Scandinavia, where the Germanic stock of law was left to grow in undisturbed isolation. These peculiar conditions exhibit a unique instance of law almost solely self-de- veloped. Part VIII takes up Spain. Its mixture of racial elements makes its local legal history perhaps the most complex and interesting. As a source of movements of legal thought, it plays no extensive part. But as a colonizer, it carries its law over the western hemi- sphere, and thus acquires a world-importance. Part IX traces the Canon Law sources. The story of the Church's law runs paraUel, indeed, with that of all the nations from the beginning. Its influence is constantly referred to in the narratives of the various other Parts, markedly in those of France, Germany, Italy, and Spain. How powerful and permeating, in every epoch, was this parallel stream of Church law, even for remote England, will be appreciated by all who have read Mait- xli EDITORIAL PEEFACE TO THIS VOLUME land's masterpiece, "English Law and the Renaissance," or his " Roman Canon Law in the Church of England," — or even by those who remember their Blackstone. It remains here to note that this general story confines itself to western Europe, and thus omits to describe the three systems of eastern Europe, — the Slavic, the Byzantine, and the Hungarian. Slavic law branches mainly into Russian, Polish, Bohemian, and South-Slavic (interspersed with some ahen stocks). Byzantine law represents the surviving effects of Justinian's Grseco-Roman law within the old Byzantine dominions ; scholars are still endeav- oring to map out its historic sphere of influence. Hungarian law represents the system imported by those invaders a thousand years ago ; it has suffered admixtures, and its records are largely in Latin ; yet it is a non-European stock. But all these three stocks of law remained substantially beyond the pale, for the law of the Romanic-Germanic peoples. There was no reciprocal influence (except on the boundaries). There was no open market for the legal science of East and West, as there came to be between the peoples of the West. After Justinian, says jNIaitland, the Grseco- Roman Empire at Byzantium " lost forever the power of legislating for the West ; and two halves of the world drifted apart." Hence the East and the West can be kept separate, in the history of Continental law. They are in substance two separate stories. This volume has, therefore, not attempted to go further afield into the history of the Eastern stocks of law. in. Some Comments. — To the lawyer of to-day, there is much more in this volume than a narrative of events, sources, persons, and movements, preliminary to a study of the several countries' law. Here, casting his glance over the broad features of a thou- sand years' law in Europe, he may see in the long perspective that endless progression in which to-day's legal conditions appear merely as a stage from the past towards the future. He will see the present explained by the past ; and he may therefrom deduce some lessons. What are those lessons ? The one that seems here most worth noting may be called the Recurrence of Legal Cycles. Similar problems, methods, abuses, remedies, seem to recur, amidst diverse surroundings. The thoughtful lawyer begins to discover (without waiting for the authoritative interpretation of some profound seer) that the legal life of mankind, variant as it is, deals with materials so simple and limited in type that the same situations, " mutatis mutandis," keep recurring, with startling persistence. xlii EDITORIAL PREFACE TO THIS VOLUME Take, for example, the dominance of technicalities in the days ( of the Bartolists, in the 1300s (Part I.I, §§ 45, 46). Read the : passage describing their methods, their shortcomings, and their ' downfall; substitute a few terms more suited to describe our own legal sources, and behold — almost comical in its aptness — , a picture of the state of American legal practice of to-day. It ought to reveal — to those who are not beyond enlightenment — that present methods are not inherently essential and fixed ; that they are merely a passing stage; and that some new form will duly replace them, as it did those of six centuries ago. Look, again, at the rise of the new method of teaching law at Bologna, under Irnerius, in the 1100s (Part II, § 39). In its revival of the classic sources, in its revelation of a new spirit of research and instruction, in its rapid and universal spread, do we not see a striking parallel to the work of Christopher Columbus Langdell, at the Harvard Law School, now forty years ago ? And if his method is as yet limited to Anglo-American law, and is even now not much used outside of America, may we not speculate that after a century's due season, the method may become (if other coun- tries' conditions really need it) a world-method, like that of Irnerius ? Take, again, codification as a panacea for legal ills. How often has it recurred, in what varying conditions and forms, and with what similar results ! On a large scale, it seems to have had three cycles, some six or eight centuries apart, — the compilation of Justinian and the coeval Germanic " leges " ; the gloss of Accur- sius; and the codes of the 1700s and 1800s. How far were the causes the same, how far were the methods necessary and efficient, and how far do they teach us anything? For History to-day as a teacher can do for us far more than it could ever do in past times. Then, again, our problem of local law versus national law is seen to be no novel problem. The principle of existence, as old Hera- clitus would have it, is found in a perpetual Flux and Reflux. Certain it is that in the history of peoples there come successive times of homogeneity and differentiation (in Spencerian phrase), when the law has to respond to these changes in popular national life. On a large ■ scale, there seem to have been two great cycles in western Europe ; in the 800s a period of localization, | followed in 1100-1500 by a period of homogeneous tendency;! then again an individualist period, 1600-1800, followed by an | apparent promise (to-day) of a reaction to homogeneity. To-day's movement will take new forms ; but it seems to be due in the order xliii EDITORIAL PREFACE TO THIS VOLUME of time. Aad, within to-day's larger field, each country (still recalling the Spencerian formula) will also have its similar prob- lems and cycles of nationalization and localization. Witness nota- bly France, Germany, Italy, and (in its later turn) the United States. Forgetting for the moment our narrow personal tradi- tions for or against States' rights, or corporate regulation, or the like, may we not discover in history certain larger aspects of this problem ? And, as a final instance, we perceive the recurrent problem of text versus commentary, which is perhaps but another aspect of the problem of statute versus court, i.e. of the just division of function between law as a formulated rule and law as a decision on concrete cases. Periods and nations emphasize now the one, and now the ! other. Looking beyond Europe, we see five peoples markedly impelled to develop their system of law, in its native and formative istage, by building up from judicial precedents, — the Roman, the iJewish, the Chinese, the Japanese, and the Anglo-Norman ; the others do not naturally choose this form. And again, at different periods, we see each nation shifting the emphasis from its native method. The Romans shifted for a while from Papinian to Jus- tinian ; the Japanese, in the last generation, have shifted in like way ; the English, of late, from Mansfield and Eldon to the Codes of Sales and Negotiable Instruments and the Companies' Acts. In the United States, David Dudley Field aspired in vain to pro- duce a similar change. France and Germany are to-day dis- cussing whether they shall shift in the contrary direction. It is a question which method is at a given period most needed and best suited for a given people. But the conditions which govern the problem are as yet too complex and obscure for clear vision. We here need, for our point of view, an even larger platform than this thousand years of European law. These instances illustrate the rich possibilities of present-day suggestion latent in the history of Continental law. If law is a changing product of times and manners and needs, nevertheless human motives and methods are but limited. And so, for many problems, we may detect a Recurrence of Legal Cycles, and may learn from the past the meaning of the present and the trend of the future. In the concluding volume of the Series, the Committee will seek to gather some of the best modern attempts to discover those broad generalizations which the united materials of these volumes will enable us to test and appreciate. xliv INTRODUCTION By Oliver Wendell Holmes' The authors whose writings are offered in this volume and Series do not need introduction. They introduce the man who has the honor for a moment to associate his name with theirs. But a few words from a veteran may catch the attention of those who still are in the school of the soldier and have not seen their first fight. The philosophers teach us that an idea is the first step toward an act. Beliefs, so far as they bear upon the attainment of a wish (as most beliefs do), lead in the first place to a social attitude, and later to combined social action, that is, to law. Hence, ever since it has existed, the law has expressed what men most strongly have believed and desired. And, as the beliefs and desires of the West- ern world have changed and developed a good deal since the days of the Twelve Tables and the Law of the Salian Franks, I thought it dangerously near a platitude to say, a dozen years ago, that the law might be regarded as a great anthropological document. But, as a gentleman prominent at the bar of one of the States professed difficulty in understanding what I meant, it is evident that the rudiments need eternal repetition. Any man who is interested in ideas needs only the suggestion that I have made to realize that the history of the law is the embryology of a most important set of ideas, and perhaps more than any other history tells the story of a race. The trouble with general or literary historical works is that they deal with premises or conclusions that are both unquantified. We readily admit their assumption that such and such a previous fact tended to produce such and such a later one ; but how much of the first would be necessary to produce how much of the last, and how much there actually was of either, we are not told. On the other hand, in the history of philosophy and economics we can say with more confidence that we trace cause and effect. The one shows the inward bond between the successive stages of the thought ' Associate Justice of the Supreme Court of the United States. xlv INTRODUCTION of man ; the other the sequence of outward events that have gov- erned his action and (some behave) really have determined his thought. At all events the latter fits the former as the outside of a cathedral fits the inside, — although there are gargoyles and ]\Iephistopheles without and angels and saints within. There is no place for the history of law in this metaphor ; but, in plain prose, it is midway between the other two. As we follow it down from century to century, we see logic at work attempting to develop the concrete cases given in experience into universal rules, and the struggle for life between the attempted generaliza- tions and other competing forms. We watch the metamorphosis of the simple into the complex. We see changes of environment producing new institutions, and new taking the place of old beliefs and wants. We observe the illustrations, as striking here as in poetry or music, of the universal change of emphasis that each century brings along. An argument that would have prevailed in Plowden's time, and perhaps would have raised a diflBculty to be got rid of in Lord EUenborough's, now would be answered only with a smile. The most obvious moral of what I have said is that the law will furnish philosophical food to philosophical minds. The surgeon of my regiment in the War of Secession used to divide the world into external and internal men. The distinction is as old as Plato. For I take it that what makes the Banquet immortal is not the divine gossip about Aristophanes and Alcibiades and Socrates, but that it and some of the Dialogues are the first articulate ex- pression that has come down to us of what internal men beheve, that ideas are more interesting than things. To the internal men, I need say no more to recommend the theme of this and the follow- ing volumes. But the profit is not confined to them. When a man has a working knowledge of his business, he can spend his leisure better than in reading all the reported cases he has time for. They are apt to be only the small change of legal thought. They represent the compromise of the moment between tradition and precedent on the one side and the free conception of the desir- able on the other. It is worth while, even with the most mundane ideals, to get as big a grasp of one's subject as one can. And there- fore it is worth while to do what we can to enhghten our notions of the desirable and to understand the precedents by which we are constrained. The history of the law stands alongside of sociology and economics as a necessary tool if one is to practise law in a large way. xlvi INTRODUCTION If what I have said is granted, not much argument is needed to show that a survey of the general development of Continental law is necessary to understand our own. The relationship is too well established to need new proofs, — although I believe that there still are standard treatises that ascribe trusts to Rome and ignore the Salman. Indeed, I am not sure that the best way of proving the need of this Series would not be to present a series of Elegant Extracts from text-books and decisions. I can but envy the felicity of the generation to whom it is made so easy to see their subject as a whole. When I began, the law presented itself as a ragbag of details. The best approach that I found to general views on the historical side was the first vol- ume of Spence's Equitable Jurisdiction, and, on the practical. Walker's American Law. The only philosophy within reach was Austin's Jurisprudence. It was not without anguish that one asked oneself whether the subject was worthy of the interest of an inteUigent man. One saw people whom one respected and admired leaving the study because they thought it narrowed the mind; for which they had the authority of Burke. It required blind faith — faith that could not yet find the formula of justifica- tion for itself. The works of foreign scholarship were then inac- cessible. One had to spend long days of groping, with the inward fear that if one only knew where to look, one would find that one's difficulties and questions were fifty years behind the times. Now, a man can start with the knowledge that he starts fair — that the best results of Europe, as well as of this country and England, are before him. And those results are so illuminating that diligence alone is enough to give him an understanding of how the law came to be what it is, of its broadest generalizations, and (so far as any one yet can state them) of the reasons to be offered for continuing it in its present form or for desiring a change. Washington, D.C, November 28, 1911. xlvii INTRODUCTION By Edward Jenks' It is a great honour for an English student of law to be invited to take'ever so humble a part in the work which this volume commences. To stand at the laying of the foundation stone of a new palace of legal literature, by the side of the author of The Common Law, is itself sufficient glory for one who has learned so much from the teachings of that book. But to link hands, through him, with the great band of jurists who have made the name of Harvard, and, with Harvard, the roll of American Law Schools, famous throughout the civilized world, is, indeed, to be received among the immortals. Langdell, and Thayer, and Ames ; Cooley, Wheaton, Bigelow, Gray — these are the names which rise to the memory, as one thinks of the years that are gone. And all the toil of the years when the work seemed hopeless, and the dint of the strife when the armies of the Philistines were strong, seem to die away as one looks forward to the building of this new palace, in a purer air, with a wider sweep of line, and loftier roofs and towers, than we in our youth have known. For it is good to feel upon one's face the rays of the sun ; even though for us they are the rays of setting. Standing in the Tower of Euric, at Carcassonne, long the key of Spain, and looking over the rolHng valley of the Aude, one sees the path by which the van of the Teutonic hosts swept southward and west from their seats beyond the Rhine, and broke the ancient power of Rome. Frank and Goth, Saxon and Angle, Suabian and Lombard, Bavarian and Aleman — well, for peoples who, as M. Fustel would have it, did not exist, they accomplished some- what of a work. 1 Principal and Director of Legal Studies of the Law Society of England. xlix INTRODUCTION For, as the writer has elsewhere urged, and, he would fain think, has brought some considerable facts to prove, it is a pro- found mistake to suppose, that the work of the Teutonic hosts was done when the Roman Empire, shattered by their onset, fell to its doom. That was but their first task. The Teutonic invaders were no mere destroyers. Barbarians they were ; but not savages. They had long emerged from the crude superstitions and fear-begotten cruelties which mark the savage type. They had courage, loyalty, faith, discipline, respect for beauty and learning. They had come already to govern themselves by ordered custom. In some things they were the superiors even of the civilization which they over- threw. Two other great tasks, of infinite importance for the future, awaited them ; and both were duly performed. First, it was their task to save Western Europe for Christianity. The Barbarians were heathens when they burst in upon the Roman Empire; but they rapidly embraced the teachings of that Faith which the colder civilization of Rome had rejected. For their heathenism was not the subtle and proud indifference of philosophic reason ; but the childhke worship of Nature, of bodily prowess, of the memory of dead ancestors. Faced by the pure and lofty teachings of Christ, they bowed before the nobler ideal, and became champions of the Cross. But in the south, on the burning shores of Africa, Europe was faced by a deadlier heathenism than the simple mythology of Thor and Wodin. For, just as and when the Teutons were over- running Western Europe, the followers of Mahomet were over- running Northern Africa, and blending the fierce fanaticism of Allah-worship with the subtlety of Arab learning and skill. And just as and when Charles the Great, the greatest of the Teutons, was binding the scattered branches of his race into a Christian Empire, the Moslem Caliphs were overrunning Spain; and the Moslem invasion of Europe was surging up to the Pyrenees, which thus became the march between Christianity and Heathendom, with Carcassonne as the watch-tower of Christendom. For long centuries the warfare raged; and this way and that the tide of victory ebbed and flowed. But — after the Christian agony at Roncesvalles (where Roland fell), after the Visigoths, the hidalgos of Castile, had built, as bulwarks against the foe, those castles from which their province takes its name, after the exploits of Cid Campeador and the triumphs of Henry of Portugal, after 1 INTRODUCTION the victories of Ferdinand of Aragon — the last of the Moslem banners was captured or driven over sea, and ' Down from th' Alhambra's minarets, Were all the Crescents flung.' Thus, and on other borders of the south and east, the Teutonic hosts accompHshed the second of their three great tasks. Defence had followed Destruction. Their third and final task was to build a new, a Christian civiliza- tion, upon the ruins of the Roman world." This task they had taken in hand even before they had joined issue with the Moslem. The Frank in the north and west, the Lombard in Italy, were the chief architects. United for a time under the brilliant sway of Charles the Great, they fell apart again ; but each continued the task. A powerful ally, the purest and the fieriest of all the Teutonic races — those Northmen, or Normans, who, going down to the sea in ships, and making their paths in deep waters, carried their resistless arms to Neustria in northern France, to England, to Sicily in the south, to Russia in the east, and even, as Crusaders, to the very home of Moslemism in Africa — infused a new and splendid energy into the task. Doubtless, in the early days at least, the Barbarians used, for the building of their new civilization, many of the fragments of that they had destroyed. But the error is, surely, to assume that the makers of the fragments were the builders of the new fabric. If I use, as quarry for my house, the stones of a ruined castle, is the builder of the castle the builder of my house ? Is the springing roof or the pointed window of the Gothic cathedral copied from a Roman temple ? Is the Divina Commedia of Dante a translation of the Mneid of Vergil? Or the Sachseiwpiegel of the Roman Digest f After Destruction, and Defence, had come Construction. The last example brings us to that aspect of Teutonic civilization which is the special subject of the series of which this volume is the opening. For, if the inspiration of Teutonic civilization was the Christian Faith, its conscience was Teutonic Law. And it is just in regard to this aspect, that the hasty observer is apt to err. He knows, perhaps, and, if he does not, this volume will tell him, that the Teutonic invaders were profoundly impressed by the magnificent system which the great jurisconsults of Republican and Imperial Rome had bequeathed to posterity, and which, shortly after the invasions had begun, was cast into an eternal mould by li INTEODUCTION the genius of Justinian. He may be aware, also, that Justinian ruled from Byzantium, not from Rome ; but, if so, he will belie\'e, and rightly, that the Corpus Juris Civilis soon found its way into Western Europe, and became the object of arduous, even of pas- sionate study in the schools of the West. This volume will tell him of the revival of Roman Law in Bologna, Paris, and Oxford, in the universities of the Middle Ages. He will read of the Glossa- tors, who devoted their lives to the exposition of the Digest — of Irnerius, Azo, and Accursius, of Cujas who taught at Paris and Bourges and Valence, and of Vacarius who lectured at Oxford. Above all. He will learn of that greatest of all legal tragedies, the " reception " of Roman Law in medieval Germany. But, if he studies this volume with care, he will learn the far deeper and more important truth, that, as with the stones and bricks of the Roman builder, the works of the Roman jurists were really but the quarry from which the Teutonic genius drew some of its materials — that the fabric of medieval law was the creation, not of the Roman, but of the Teuton. For, as the child cannot wear the clothes of the full-grown man, but must be clad from year to year in garments adapted to his growing stature, so a youthful civilization cannot adopt the law of an ancient polity; it must, if it be really alive, fashion its own law from age to age. If the colonists who founded the American Republic could, and did, take with them the common law of England, that was because it was their own law, the law, not of an older and alien civilization, but of a civilization of which they formed a vigorous and pro- gressive part. History moves in cycles ; the ' unity of history ' is a spiral, not a straight line. Even Teutonic civilization itself is witness to this truth. The artificial unity of the Carolingian Empire was premature and short-lived ; being based, as its name of ' Holy Roman Empire ' implied, too much on the past and too little on the future. Not until after the long night of feudalism came the dawn of the Reformation, and the appearance of vigorous national life — a life so vigorous and various, that at times the sense of Teutonic unity seemed almost lost. But here a thought arises which may have some interest for American readers. For if, on our standpoint in the Tower of Euric, we turn our eyes from East to West, from the Mediterranean to the Atlantic, from the valleys of the Aude to the valleys of the Susquehanna and the ]Merrimac, what is it that we see? We see once more a land which has been invaded, for nigh three centuries, by successive lii INTRODUCTION bands of Teutonic immigrants, from all Teutonic lands, seeking, not now to plunder and destroy, but to prosper by labour and toil. Once more they set to work to build up the mighty fabric of a State, with all the experience of Europe behind them, with all the promise of a virgin soil before. Once more there is the diversity which comes of healthy energy and independence of thought ; but, over all, the unity of a common faith, a common speech, and common ideals of justice and right. Nay, beyond the borders of the Great Republic — in Canada, in Australasia, in South Africa — we see still the countless progeny of that immortal race which, sixteen hundred years ago, burst upon the astonished Roman, and built the towers of Carcassonne. Not, indeed, a World-Empire, but, in the truest sense, a World- City, ' with the sea for streets ' — this is the vision that one sees from the Tower of Euric. Caecassonne, April, 1912. liii GENERAL SURVEY Part I. ROMAN AND GERMANIC LAW FROM JUSTINIAN TO FEUDALISM (A.D. 475-1100) Introduction : Preliminary Survey of Legal Events and Conditions before Justinian. First Period (A.D. 475-575) : The Gothic Kingdoms and the Later Roman Empire. Second Period (A.D. 575-900) : The Lombard Kingd6m AND THE Prankish Empire. Third Period (A.D. 900-1000): The Feudal System. LIST OF TREATISES FREQUENTLY CITED Brunner, Heinrich, " Grundziige der deutschen Rechtsgeschichte," 5th ed. 1910. Id., " Deutsche Rechtsgeschich- te," 1st ed., vol. I, 1887, vol. II, 1892 ; 2d ed., vol. I, 1910. Canciani, " Barbarorum leges an- tiques," 5 vols., Venezia, 1781- 1792. Muratori, L. A., " Rerum italioarum scriptores," Milan, 1723-1751. Id., "Antiquitates italicse medii ffivi," MUan, 1738-1742. Padelletii, G., " Pontes juris italici medii sevi," Turin, 1877. Fertile, A., " Storia del diritto ita- liano,'' 6 vols., 2d ed., 1903. Salvioli, G., " Manuale di storia del diritto italiano," 6th ed., 1907. Savigny, F. C. von, ' ' Storia del diritto romano nel medio evo," transl. Italian by BoUati ; original edition in German. Id., " Geschichte des romischen Reohts im Mittelalter," 1st ed., Heidelberg, 1822, 2d ed., 1834. Schupfer,^ Francesco, " Manuale di storia del diritto italiano," 3d ed., 1904. Id.," U diritto privato dei popoli germanici, con speciale riguardo aU' Italia," 2 vols., Rome, 1907- 1909. Walter, F.," Corpus juris germanici antiqui," 3 vols., Berlin, 1824. LIST OF ABBREVIATIONS USED FOR JOURNALS AND SERIAL WORKS CITED A.G.S. = " Arehivi'o Giuridico," founded by Seraflni, Bologna. A.R. = " Atti e memorie della Depu- tazione di storia patria per la provinza di Romagna." A.R.A.L. = " Atti della Reale Aca- demia dei Lincei, olassi di scienze morali." A.R.A.T. = "Atti e Memorie deUa Reale Aecademia della Scienze di Torino." A.S.I. = " Archivio di storia ita- liana." A.S.L. = " Archivio di storia lom- bardia." A.S.M.P. = "Atti e Memorie della Deputazione di storia patria per la provinzia Modena e Parma." A.V.I. = "Albori della vita italiana." B.A. = " Sitzungsberichte der konig- lichen Berliner Akademie der Wissenschaf ten . ' ' B.D.R. = "Bolettino dell' istituto di diritto romano." F.D.G. = "Forschungen zur Deutschen Geschichte." J.S. = "Journal des Savants," Paris. M.G.H. = " Monumenta Germanise Historica," ed. by the Societas aperiendis fontibus rerum ger- maniearum medii sevi ; folio edi- tion, 1835-1891 ; quarto edition, 1888 +. M.H.P. = " Monumenta Historiae Patriae," Turin. M.O.G.F. = " Mittheilungen fur osterreiehisehen Geschichts-for- schung." N.A. = " Neues Archiv." N.R.H. = " Nouvelle revue histo- rique du droit franpaiset Stranger." P.A. = Pertz, " Archiv." R.A.L. = " Rendieonti dell' Aecad- emia dei Lincei." R.I.L. = " Rendieonti del Istituto Lombarda." R.H.p.F.E. = " Revue historique de droit franpais et etranger." R.E. = " Rivista europeana." R.I.S.G. = " Rivista italiana delle scienze giuridiche." R.S.I. = " Rivista di storia italiana." S.S. = " Studi senesi, Siena." S.W.A. = "Sitzungsberichte der Wiener Akademie der Wissen- schaften." S.D.S.D. = " Studi e documenti di storia e diritto." Z.S.S. = " Zeitschrift der Savigny- Stiftung fiir Rechtsgeschichte." INTRODUCTION PRELIMINARY SURVEY OP LEGAL EVENTS AND CONDI- TIONS IN EUROPE BEFORE JUSTINIAN i § 1. We may, before we settle to our task, look around for a moment at the world in which our legal history has its beginnings. We may recall to memory a few nlain facts and dates which, though they are easily ascertained, are not often put together in one Eng- lish book ; and we may perchance arrange them in a useful order if we make milestones of the centuries. A.D. 100-200. — By the year 200 Roman jurisprudence had reached its zenith. Papinian wasslain in 212, Ulpian in 228. Ulpian's pupil Modestinus may be accounted the last of the great lawyers. All too soon they became classical ; their successors were looking backwards, not forwards. Of the work that had been done it were folly here to speak ; but the law of a little town had become ecumenical law, law alike for cultured Greece and for wild Britain. And yet, though it had assimilated new matter and new ideas, it had always preserved its jtpugh_identity. In the year 200, six centuries and__a half.of definite legal history (if we measure only from the Twelve Tables) were co nscious ly smomed up in the living and growing body of the law. A.D. 200-300. — Dangers lay ahead. We notice one in a hum- bler quarter. Certain religious societies, congregations (" eccle- sise ") of non-conformists, have been developing law, internal law, with ominous rapidity. We have called it law, and law it was going to be; but as yet it was (if the phrase be tolerable), unlawful kw, for these societies had an illegal, if not a criminal, purpose. Spas-- modically the imperial law was enforced against them; at other times the utmost that they could hope for from the State was that in the guise of " benefit and burial societies " they would obtain some protection for their communal property. But internally they were developing what was to be a system of constitutional and governmental law, which would endow the overseer (eEiscopus) of every congregation with manifold powers. Also they were ' [This passage is taken from Professor Frederic William Maitland's "Prologue to a History of English Law," as reprinted in " Select Essays in Anglo-American Legal History," I, pp. 8-18. — Ed.] 3 § 1] FEOM JUSTINIAN TO FEUDALISM [PaRT I developing a system of punitive law; for the offender might be excluded from all participation in religious rites, if not from worldly intercourse with the faithful. Moreover, these various communi- ties were becoming united by bonds that were too close to be fed- eral. In particular, that one of them which had its seat in the capital city of the Empire was winning a preeminence for itself and its overseer. Long indeed would it be before this overseer of a non- conformist congregation would, in the person of his successor, place his heel upon the neck of the prostrate Augustus by virtue of God- made law. This was not to be foreseen; but already a merely human jurisprudence was losing its interest. The intellectual force which some years earUer might have taken a side in the debate between Sabinians and Proculians now invented or refuted a Chris- tological heresy. Ulpian's priesthood was not priestly enough. The decline was rapid. Long before the year 300, jurisprudence, the one science of the Romans, was stricken with sterility ; it was sharing the fate of art. Its eyes were turned backwards to the departed great. The constitutionsjjljthe jemperor s now appeared as the only active source of law. They were a disordered mass, to be collected rather than digested. Collections of them were being unofficially made : the Codex Gregorianus, the Codex Hermogenia- nus. These have perished; they were made, some say, in the Orient. The shifting eastward of the imperial centre and the ten- dency of the world to fall in two halves were not for the good of the West. Under one title and another, as coloni, laeti, gentiles, large bodies of untamed Germ_ans were taking up their abode within the limit of the Empire. The Roman armies were becoming barbarous hosts. Constantine owed his crown to an Alamannian king. A.D. 300-400. — It is on a changed world that we look in the year 400. After one last flare of persecution (303), Christianity became a lawful religion (313). In a few years it, or rather one species of it, had become the only lawful religion. The " con- fessor " of yesterday was the persecutor of to-day. Heathenry, it is true, died hard in the West ; but already about 350 a pagan sacrifice was by the letter of the law a capital crime. Before the end of the century cruel statutes were being made against heretics of all sorts and kinds. No sooner was the new faith lawful, than the State was compelled to take part in the multifarious quarrels of the Christians. Hardly had Constantine issued the edict of tolerance, than he was summoning the bishops to Aries (314), even from remote Britain, that they might, if this were possible, make peace in the church of Africa. In the history of law, as well as 4 Introd.] prior legal events [§ 1 in the history of dogma, thejourth century is the century of eccle- siastical councils. Into the debates of the spiritual pariiaments of the Empire JO whatever juristic abihty and whatever power of organization was left among mankind. The new supernatural jurisprudence was finding another mode of utterance; the bishop __of Rome was becoming a legislator, perhaps a more important legis- lator, than the emperor. In 380 Theodosius himself commanded that all the peoples which owned his sway should follow, not merely the religion that Christ had delivered to the world, but the religion that St. Peter had delivered to the Romans. For a_d^ciphnary juris diction over clergy and laity the State now left a large room wherein the bishops ruledT^SS arbitrators in purely secular dis- putes they were active ; it is even probableTEatTof^ short while Tnder Constantine one litigant might force his adversary unwillingly to see the episcopal tribunal. It was necessary for the State to protest that criminal jurisdiction was still in its hands. Soon the Church was demanding, and in the West it might successfully demand, independence of the State and even a dominance over the State: the Church may command and the State must obey. If from one point of view we see this as a triumph of anarchy, from another it appears as a triumph of law, of jurisprudence. Theology itself must become jurisprudence, albeit jurisprudence of a super- natural sort, in order that it may rule the world. A.D. 400-500. — Among the gigantic events of the fifth century the issue of a statute-book seems small. Nevertheless, through the turmoil we see two-stat ute-books , — that of Theodosius II, and that of Euric the West Goth. The Theodosian code was an official collection of imperial statutes beginning with those of Constantine I. It was issuecTin 438, with the consent of Valentinian III, who was reigning in the West. No perfect copy of it has reached us. This by itself would tell a sad tale; but we remember how rapidly the Empire was being torn to shreds. Already Britain was abandoned (407). We may doubt whether the statute-book of Theodosius ever reached our shores until it had been edited by Jacques Godefroi. Indeed we may say that the fall of a loose stone in Britain brought the crumbling edi- fice to the ground. Already, before this code was published, the hordes of Alans, Vandals, and Sueves had swept across Gaul and Spain; already the Vandals were in Africa. Already Rome had been sacked by the West Goths; they were founding a kingdom in southern Gaul, and were soon to have a statute-book of their own. Gaiseric was not far off, nor Attila. Also let us remember that this 5 § 1] FROM JUSTINIAN TO FEUDALISM PaRT I] Theodosian code T\as by no means well designed, if it was to per- petuate the memory of Roman civO science in a stormy age. It was no " code " in our modern sense of that term. It was only a more or less methodic collection of modern statutes. Also it contained many things that the barbarians had better not have read; bloody laws against heretics, for example. We turn from it to the first monument of Germanic law that has come down to us. It consists of some fragments of what must have been a large law-book published by Euric for his West Goths, per- haps between 470 and 475. Euric was a conquering king; he ruled Spain and a large part of southern Gaul; he had cast off, so it is said, even the pretence of ruling in the emperor's name. Nevertheless, his laws are not nearly so barbarous as our curiosity might wish them to be. These West Goths, who had wandered across Europe, were veneered by Roman civilization. It did them little good. Their later law-books, that of Reckessuinth (652-672), that of Erwig (682), that of Egica (687-701), are said to be verbose and futile imitations of Roman codes. But Euric's laws are suffi- cient to remind us that the order of date among these Leges Bar- barorum is very different from the order of barbarity. Scandi- navian laws that are not written until the thirteenth century will often give us what is more archaic than anything that comes from the Gaul of the fifth or the Britain of the seventh. And, on the other hand, the mention of Goths in Spain should remind us of those wondrous folk-wanderings and of their strange influence upon .the legal map of Europe. The Saxon of England has a close cousin in the Loinbard of Italy; and modern critics profess that they can see a specially near kinship between Spanish and Ice- landic law. A. D. 500-600. — In legal history the sixth century is the century of Justinian. But in the west of Europe this age appears as his, only if we take into account what was then a remote future. How powerless he was to legislate for many of the lands and races whence he drew his grandiose titles — Alamannicus, Gothicus, Francicus, and the rest — we shall see if we inquire who else had been publish- ing laws. The barbarians had been writing down their customs. The barbarian kings had been issuing law-books for their Roman subjects. Books of ecclesiastical law, of conciliar and papal law, were being compiled. The discovery of fragments of the laws of Euric the West Goth has deprived the Lex Salica of its claim to be the oldest extant statement of Germanic custom. But if not the oldest, it is still 6 Introd.] prior legal events [§ 1 very old; also it is rude^nd primitive. It comes to5is from the march between J:he fifth and the sixth centuries; almost certainly from the victorious reign of Chlodwig (48675II). An attempt to fix its date more closely brings out one of its interesting traits. There is nothing distinctly heathen in it; but (and this makes it unique) there is nothing distinctively Christian. If the Sicam- brian has already bowed his neck to the catholic yoke, he is not yet actively destroying by his laws what he had formerly adored. On the other hand, his kingdom seems to stretch south of the Loire, and he has looked for suggestions to the laws of the West Goths. Let us remember that, byjyirtue of the Norman Conquest, the Lex Salica is one of the ancestors of English Jaw. There seems little doubt that the core of the Lex Burgundionum was issued by King Gundobad (474-516) in the last years of the fifth century. Qurgundians and West Goths were scattered among Roman provincials. They were East Germans ; they had long "Been Christians, though addicted to the Heresy of Arius. They could say that they had Roman authority for their occupation of Roman soil. Aquitania Secunda had been made over to the West Goths ; the Burgundians vanquished by ^Etius had been deported to Savoy. In their seizure of lands from the Roman possessors they had followed, though with modifications that were profitable to themselves, the. Roinan^ystem of billeting barbarian soldiers. There were many Romani as well as many barbari for whom their kings could legislate. Hepce the Lex Romana Burgundionum and the Lex Romana Visigothorum. The West Goths' power was declining. Hardly had Alaric issued his statute-book when he was slain in battle by the Franks. Soon the Visigothic became a Spanish kingdom. But it was not in Spain that the Breviarium made its permanent mark. There it was abrogated by Reckessuinth when he issued a code for all his subjects of every race. On the other hand, it str uck^deep^root in Gagl. It became the principal, if not the only, representative of Roman law in the expansive realm of the Franks. But even it was too bulky for men's needs. They made epitomes of it and epit- omes of epitomes. Then again, we must remember that while Tribonian was busy upon the Digest, the East Goths were still masters of Italy. We recall the event of 476 ; one emperor, Zeno at Byzantium, was to be enough. Odgyacer had ruled as patrician and king. He had been conquered by the East Goths. The great "Theodoric had reigned for more than thirty years (493-526) ; he had tried to fuse Italians 7- § 1] FROM JUSTINIAN TO FEUDALISM PabT I] and Goths 'into one nation; he had issued a considerable body of law, the Edictum Theodorici, for the more part of a criminal kind. In 528 Justinian began the work which gives him his fame in legal history ; in 534 (though there were novel, i.e. later, constitu- tions to come from him) it was finished. Valuable as the code of imperial statutes might be, valuable as might be the modernized and imperial edition of an excellent but ancient school-book, the main work that he did for the coming centuries lies in the Digest. We are told nowadays that in the Orient the classical jurisprudence had taken a new lease of life, especially in the schools at Berytus. We are told that there is something of a renaissance, something even of an antiquarian revival, visible in the pages of the Digest, a desire to go back from vulgar practice to classical text, also a desire to display an erudition that is not always very deep. Great con- queror, great builder, great theologian, great lawgiver, Justinian would also be a great master of legal science and legal history. The narrow escape of his Digest from oblivion seems to tell us that but for his ejtertions, very little of the ancient treasure of wisdom would have reached modern times ; and a world without the Digest would not have been the world that we know. Chap. I] GOTHS AND later EOMANS [§ 2 Chapter I. First Period: a.d. 475-575 LAW UNDER THE GOTHIC KINGDOMS AND THE LATER ROMAN (BYZANTINE) EMPIRE i § 2. The Gothic Kingdoms and the Roman Empire Topic 1. The Roman Legislation of the Germans §§ 3-5. The Edict of Theodoric the Ostrogoth. §§ 6, 7. The Minor Ostrogothic Edicts. § 8. The Roman Laws of the Visi- goths (Alaric). § 9. The Roman Laws of the Bur- gundians (Papinianus). Topic 2. The Roman Law of Rome § 10. Roman Practice before Jus- tinian. § 11. Justinian's Legislation. §§ 12, 13. Imperfect Diffusion of the "Corpus Juris." § 2. The Gothic Kingdoms and the Roman Empire. — The Byzantine epoch extends from the fall of the Roman Empire of the West (476) to the invasion of Italy by the Lombards (568). In the legal sources of this period the Roman law dominates. It might even be said to be in sole possession of the field, except that in the same epoch belong the first legislative enactments of the Germanic peoples in Italy. But even in those enactments the Roman law is the principal and almost the only element. In the brief and stormy period of the supremacy of Odoacer the Goth (476-493) we find no legislation, in the strict sense of the word. Nor was any need of it felt by the community. The con- quering tribes had kept in force the Roman public and private law for the native inhabitants of the conquered land. It was merely not adopted for the conquerors themselves ; they remained faithful to their own national customs. If we do find mentioned a few " laws " of Odoacer, the term signifies merely some measure taken by him to meet some particular need. It is called a " law," for example, when Odoacer, in 483, summoned a Roman council to check the corruption prevailing at the election of a pope.^ There is, indeed, in the succeeding (Ostrogothic) dynasty (493- 1 [This Part is a translation of Professor Calissb's " History of Italian Law," vol. I. For the title of that work, and an account of the author, see the Editorial Preface to this volume. Chapter I, §§ 1-13 = Calisse, Part I, §§ 1-13, pp. 1-19. — Trans.] 2 M.G.H., " Auctores antiquissimi," 1894, xii, p. 414. 9 § 3] FROM jrSTIXIAN TO FEUDALISM [Part I 554) a real legislative activity, inspired by the Germanic kings. But it was of short duration ; for the Italian territory, so soon as it was won back by the Empire of the East, reverted entirely to the Roman law, as being the law common to all the subjects of the Empire. In this first period, then, which is nothing more than a continua- tion of the Roman epoch and a preparation for the Middle Ages, the sources of law, all essentially Roman, may be divided into two classes, according to their authors and scope. (I) The first includes those which the invaders adapted to the conditions of their new kingdom. (II) The second comprises those which emanated directly from the Roman Emperor of the East at Constantinople. The former is represented by the Roman laws of the Germanic tribes; the Ostrogothic edicts being the most important for Italy. The latter consists in the Roman law properly so called, as codified and restated in this period in the legislative labors of Justinian. Topic 1. The Roman Legislation of the Germans § 3. The Edict of Theodoric the Ostrogoth.' — The Edict of Theodoric is the first, in point of time, among the legislative memorials of this period. But the precise time of its compila- tion is not known, and has led to a divergence of opinions, each more or less probable. According to one opinion, the compilation could not have taken place before 506, because (as is asserted) one of its sources must have been the " Interpretatio," a commentary appended to the Breviary of Alaric,^ which was promulgated in that year for the Roman subjects of the Spanish Goths {post, § 8). There is indeed considerable affinity between the Edict and this commentary. Yet that alone hardly suffices to show that the compilers of the former had used the latter; for a legislator composing in Italy could hardly have any occasion to resort for his knowledge of Roman law to a compilation made in a foreign country. I\Iore- 1 Texts red. Bluhme, in M.G.H., "Leges," 1893; ed. PadelletH, "Fontes," 1877. Treatises and Articles : Pertile, " Storia," I, § 11 ; Schupfer " Ma- nuals," p. 32 ; Salmon, " Manuale," p. 45 ; Savigny, " Storia," I 377 ■ Brun- ner, " Rechtsgeschichte," I, §52; Gaudenzi, " GU editti di Teodori'eoe di Atalanco," 1884 ; Id., article in Z.S.S., VII, 29, " Die Entstehungszeit des Ediotums Theoderici"; Schupfer, article in A.R.A.L., ser. IV vol III "L' editto di Teodorico" ; Patetta, article in A.R.A.T., 1893, "'Sull' anno della promulgazione dell' editto di Teodorico." 2 Pertile, '* Storia," I, § 11 ; Brunner, " Grundziige," 1901, p. 48 10 Chap. I] GOTHS and later Romans [§ 3 over, the similarity between the two works can be amply explained on the hypothesis that the authors of the Spanish or Visigothic commentary and those of the Italian or'Ostrogothic Edict had equal access to some common jource, — probably to a compendium of Roman law intended for court practice and widely used among the lawyers of the 400 s.^ There being thus no need for con- ceding that the " Interpretatio " of the Breviary was drawn upon for the Edict of Theodoric, the supposed reason fails for attributing the Edict necessarily to a date not earlier than 506. Others ^ seek to fix the date between 512 and 515. Their argu- ment is this : The Edict could not have been composed between 506 and 511, nor after 515, because at both those periods Cassio- dorus was questor; it was certainly not of his composition, for it would have been extant in his records (like the edict of Atalaric), since the questor's functions included that of inditing the decrees. Thus (by this view) there remain two hypotheses for the date of the Edict ; namely, prior to 506, and between 512 and 515. But the former is negatived not only by the above-mentioned use of the Edict by the " Interpretatio," but also and more decisively by the fact that certain enactments found in the records of the first questorship of Cassiodorus (506-511) were also incorporated in the Edict ; the date of which could therefore not be prior to his first questorship. The other hypothesis may be tested by the circumstance that the Edict exhibits ' traces of having been com- posed after a war fought in Gaul in 510. But this argument may be answered by pointing out that, even conceding the Edict not to be attributable to either period of Cassiodorus' questorship, it is not demonstrated to be later than his first questorship (i.e. 506) ; for the identity between certain provisions of the Edict and cer- tain records of Cassiodorus can better be explained, not as a de- velopment of ministerial regulations into laws by insertion in the text of the Edict, but as applications of the Edict made by the minister for specific cases in which the Edict was invoked. And as to the war referred to in the Edict, there is no reason to believe that it was the Gallic war of 510; for it might have been any other of Theodoric's numerous campaigns, and in any event the chapter that refers to it, being one of the last in the Edict, might have been subsequently appended. So that the most plausible opinion is still that which attributes the Edict to the year 500.* This would make its promulgation ' Haenel," hexRojcy is.," p.xci. ^ Gaudenzi," EdittiTeod.," supra.n.l. ' Cap. XLVIII. * Schupfer, Salvioli, and others. 11 § 4] FROM JUSTINIAN TO FEUDALISM [Paet I coincide with the date of Theodoric's formal entry into Rome. On that occasion the king did make a " law," as the chroniclers expressly tell us, and there are reasons for thinking that it was this very Edict. For it is recorded that Theodoric, on entering Rome, inflicted the death penalty on certain corrupt judges who were not rendering justice to litigants, and the opening chapter of the Edict deals with this very offence and names for it the penalty of death. It is also worth remembering that Theodoric, while celebrating at Rome his " decennalia " (that is, the tenth anniversary of his reign reckoning from his entry into Italy) was desirous of imitating the ancient usages of the Roman emperors, and with that purpose he provided popular games, distributed rations, made a public address, and allotted a fund for the preservation of the civic monuments ; and, as a part of this usage, he also promulgated a law, — as Ha- drian had done on his fifteenth anniversary with the " Edictum Perpetuum," and as Theodosius had done on his thirtieth with his Code. § 4. The contents of the Edict (which consists of one hundred and fifty-four articles, not counting the prologue and the epilogue) deal principally with criminal law and with procedure. This was natural, for its main object was to suppress the frequent disorders complained of in his reign, and to provide assurance of the just administration of the laws. The subjects are allotted among the various articles without any system; nor indeed were they all the product of a single legislative act, for several were later added to the compilation. The precise author is unknown ; but everything points to his being a Roman holding some oSice under the king. A German (to men- tion no other reason) could not have possessed the thorough knowledge of Roman law which the Edict exhibits. Its sources are exclusively Roman, — the " Sententiae " of Paulus, the earlier Roman Codes (the Gregorian, the Hermogenian, and especially the Theodosian), together with some of the compends or manuals then in use in the schools or at the bar. Specific provisions can even (for the most part) be identified with the corresponding ones in the Roman sources. ^ The legislator himself expressly cites, here and there,^ the " leges," that is, the imperial constitu- tions, which he wishes should be observed ; and in the epilogue he further declares that the Edict is the result of what he has •■ Compare the references given for the respective chapters in Padel- letti s edition. 2 Compare Caps. LIII, LXIX, LXXII, CXLIV, etc. 12 Chap. I] GOTHS AND LATEB ROMANS [§ 5 compiled from the law already in force either in constitutions or jurists' opinions : " quae ex novellis legibus ac veteris juris sanctimonia pro aliqua parte collegimus." An edict of such brevity could hardly concern itself expressly with more than the few legal topics which were brought into gen- eral importance at that epoch by the conditions prevailing in Italy. All remaining matters of law, that is, the system as a whole, were left to be regulated by the Roman law, — as expressly declared by the legislator in his preamble.^ But the Germanic settlers, in point of private law, were not to lose their own usages and rules. This result, indeed, was quite consonant with the Roman law itself ; for the foreigners who were enlisted as soldiers for the Empire had always been, by Roman law, left subject to their native usages ; and since that was technically the legal status of the Ostrogoths, they were not bound to be gov- erned by Roman usages. There is a reference to this in the Edict itself.^ But confirmation is further supplied by several circum- stances. The conqueror-element in the population could hardly have been expected to submit itself, in matters of private law, to the customs of the conquered race; even in matters of governmental regulation, it submitted none too readily, notwithstanding the pressure exerted by Theodoric himself. Moreover, the Ostro- goths in their own lawsuits had hitherto possessed their own magis- trates, who were quite lacking in knowledge of Roman law, — so lacking that a Roman jurist sat with them, in controversies be- tween persons of the two nationalities, where Roman law was to be applied. And it was this double system, hitherto prevailing, that made necessary some legislation, which should be applicable in common to both races, and capable of obviating the conflicts of law in the relations of Romans and Ostrogoths, while not pretend- ing to subject the latter entirely to the customs of the former.^ § 5. Nevertheless, from the political point of view, even that extreme result would have been agreeable to Theodoric. He would have preferred to make thorough Romans out of his Ostrogoths. By combining the Germanic military prowess with the Roman civilization, he could hope to solidify his kingdom ; for it could not exist otherwise than as Roman, planted as it was within the imperial confines and founded upon an imperial franchise. ' "Salva juris publici reverentia et legibus omnibus cunctorum devo" tione servandis." 2 Cap. XXXII: "Barbaris, quos certum est reipublicae militare quo- modo potuerint et voluerint, faciendi damus licentiam testamenti." ' Compare Justinian's Code, I, 38, 1. 13 § 5] FROM JUSTINIAN TO FEUDALISM [ParT I The legislative work of Theodoric was framed in accord with this theory. Legislative authority he did not in his own right possess. That was a prerogative of the Roman emperor, whose authority the Ostrogoths on their entry into Italy had pledged themselves to respect. But Theodoric was bound and entitled to promulgate such ordinances as he thought requisite for administering his terri- tory. This would be the act, not of a legislator, but of a magis- trate; in which office Theodoric exercised supreme powers for Italy. Every Roman provincial magistrate had been accustomed to put forth edicts containing the regulations by means of which he would administer the law during his term of office. Similarly, what Theodoric promulgated was not so much a law as a magisterial edict ; it conformed to the law of the Empire not only in details but also in general purpose. In Theodoric's purpose his Edict (as already remarked) was to be a means of harmonizing the two races, — by Romanizing the Ostrogoths, however, and not con- trariwise. In his own words,^ he aimed by means of the Edict to remove the occasions of friction between Germans and Romans. Taken, as it was, chiefly from the Roman law, that law would come to be, at least in the more important litigation, a common posses- sion. Undoubtedly the Edict was to be binding upon Goths and Romans alike. No exemption was conceded on any ground of official title or of status. Magistrates who did not strictly enforce it were to be punished with exile. In all subjects of law on which the Edict was silent (and these outnumbered the others), the law to be used was Roman law for Roman litigants, and Germanic law for Germanic litigants.^ In the foregoing features the Edict is in marked contrast to the other enactments promulgated by Germanic rulers (post, §§ 8, 9) for their Roman subjects. Their source — the Roman law — was the same. But Theodoric's Edict was to serve as a law common to both peoples ; while the other enactments of Roman law were to have force for the Roman population only, not for the Germanic population, and thus the two peoples, each left with its own law, ' In the preamble: "Querelse ad nos plurimss pervenerunt, intra prqvincias nonnullos legum pracepta calcare . . . nos, oogitantes gene- ralitatis quietem, . . . presentia jussimus edicta pendere ..." 2 In the preamble : "Quae Barbari Romanique sequi debeant super expressis articuUs ediotis praesentibus evidenter cognoscant." In the epilogue: "Quae omnium Barbarorum sive Romanorum debet servare devotio." An occasional passage (see Cap. CXLV) dealt solely with the inter- ests of the barbarians and therefore was of force for them only. 14 Chap. I] GOTHS AND LATER ROMANS § 6 were without that powerful motive which could bind together the conquerors and the conquered. Theodoric's Edict, moreover, when its articles were silent, left each people to its own existing system; while the other Roman codes made by Germanic kings abolish the preexisting system, substituting, by way of concession, the new codes. The Edict was widely promulgated, not only in Italy proper, but also beyond its confines, in Provence and other regions adjoining the conquests of Theodoric. Its influence upon the civilization of the Germanic tribes was important; for it made them familiar with many principles of Roman law hitherto unknown to them. It modified, too, or extirpated, many of their own customs which were in conflict with the policies of the new State. Thus the legis- lative labors of Theodoric were not without beneficent consequences even though the main purpose — the amalgamation of the two races — was impossible of achievement in his day. §6. The Minor Ostrogothic Edicts. — Theodoric was also the' author of some lesser edicts. Among the records of his chancery, during the questorship of Cassiodorus, is one which was promul- gated in the provinces of Campania and Sannio, and aimed to suppress the abuse (more common in those regions) of extra- judicial distraint.^ Though Theodoric's edicts were all confirmed by his successor Atalaric,^ the latter also promulgated edicts of his own, aided by his questor Cassiodorus. Of these, a notable one imposed regulations for electing the pope at Rome; it was published first by the prefect reading it to the Senate and then by nailing it to the portals of St. Peter's.^ Another important one is known preeminently as the Edict of Atalaric. Its style reveals the hand of Cassiodorus; its contents (in twelve articles, besides a preamble) are exclusively penal, and are aimed at wrong- ful disseizins of estates, at concubinage, and at other abuses then rife. The edicts of the ensuing kings were of varied and only tempo- rary interest ; they owed their motives to the untoward troubles brought on by the Byzantine war, which then threatened the existence of the Ostrogothic kingdom. Among these legislative records may be mentioned the Prag matic Sanction of Justinian, which confirmed the edicts of the earlier Ostrogothic kings down to Theodatus (so far as consistent with the new Code) and annulled ' Cassiodorus, "Variariun," IV, 10. 2 "Edictum Athalarici regis," c. XXI (in Padelletti, "Fontes"). '"Var.," IX, 15. 15 § 8] FROM JUSTINIAN TO FEUDALISM [Part I those of the later kings. The legal sources of this period include also the chancery formulas preserved by Cassiodorus.^ These are important chiefly for their enumeration of the titles and duties of the public officers ; though pompous in style and metaphorical in verbiage (as customary in that decadent era of the Latin language), they are valuable for the history of public law, and reveal still more plainly that the Ostrogothic public law was essentially Roman. § 7. Such were the principal features of the Ostrogothic legal development in Italy. It followed the fortunes of that kingdom, — reaching its prime under Theodoric, then declining, and finally disappearing without a trace. Except for a few details, the sway of Ostrogothic law ended with the kingdom, at the reconquest of Italy by the Eastern Roman empire seated at Byzantium. It could not be expected, after the extension of Justinian's Code to Italy, that the Ostrogoths who remained there should be left in undis- turbed adherence to their own customs and especially to the edicts of their former kings. There is, to be sure, a reference, in a Ra- venna document of 551 (when Ravenna had been already eleven years in Byzantine control), to the Ostrogothic edicts as still in force. But the Pragmatic Sanction, which made the laws of Justitiian binding on all, had not then been promulgated; and probably up to the date of that Sanction the Ostrogoths (with whom Justinian had made a preliminary treaty) still preserved their own laws, as they did their churches and estates in Ravenna. These (and presumably also their laws) they afterwards lost, when upon the victory of the Roman general Narses all attempts at reconciliation were given over. But there are besides this several direct proofs of the abolition of the Ostrogothic laws; first, the capitulations made by them, on deciding not to evacuate Italy, contain a clause pledging obedience to the imperial laws ; further- more, in certain documents Ostrogoths are found admitting their subjection to the Roman law of Justinian ; and finally, the above- mentioned Pragmatic Sanction expressly declares that Justinian intended it to apply to all inhabitants of the Empire of the West (" ad utilitatem omnium qui per occidentis partes habitare ncs- untur ")• § 8. The Roman Laws of the Visigoths (Alaric).^ — Of all the ■ "Var.," VI, VII. 2 Texts: Haenel, "Lex Rom. Vis."; Bluhme, "Lex Rom. Burg.," in M.G.H., "Leges," III; Salts, "Lex Rom.Burg.," inM.G.H., "Leges," III. Treatises and Articles : Brunner, "D. Reohtsgeschichte," §§ 49, 50 ; Perlile, "Storia," § 11; Salvioli, "Manuale," p. 54; Savionv. "Storia '' I, 307; Sc^MRfer, "Manuale,"pp. 38, 42. 16 Chap. I] GOTHS AND LATER ROMANS [§ 8 laws enacted by the invading Germanic tribes for their Roman subjects, the most important undoubtedly was that of the Visi- goths. It is known usually as the " Breyiary^of ^AJ^sic-" But it went also by various other titles, — " Liber legum Romanarum," " Corpus legum," " Lex Theodosii," " Lex Romana," " Liber Theodosianus legis Romanse," and especially " Lex Rgmana Visigothorum." This was the work of Alaric, the second Visi- gothic king (485-507). It was Alaric's object to remove the uncer- tainty and confusion prevailing in the use of the Roman law by reason of its multiple texts. He planned to epitomize the most important rules of practice. This task he intrusted to a commis- sion of jurists, who executed it on a plan not unlike that of the later compilers of Justinian's law-books.^ As sources they used not only the "jus^" (as the Romans called it), but also the "lex." As " leges," they resorted to the Code of Theodosius (whichtKus for the greater part came to be preserved to us), and to the Novels of Theodosius, Valentinian III, Marcianus, Magiorianus, and Seve- rus. As " jura," they employed the Institutes of Gains (not in the original, but in a compendium known as " Liber Gai," de- signed for use in court practice and then much in vogue in Roman schools of the 300 s and 400 s) ; the " Sententise " of Paulus ; some constitutions selected from the Gregorian and Hermoge- nian Codes (which, being private compilations, did not pass for " leges," though their material was " leges ") ; and a passage from the " Responsa " of Papinian. The part taken from the "Liber Gai," having been originally adapted to practical use, needed no further treatment. But the remainder was furnished with an " interpretatio," that is, a commentary partly summarizing and partly paraphrasing the text, and serving to explain the obscurer rules. This commentary, however, was not (as often supposed) composed by the Gothic compilers of the Breviary, but by the Roman law teachers themselves, whose chief task in the later period of the Empire was to adapt the earlier texts to the new conditions. At the close of their labors, the Breviary was laid bythe king befor e the popular assembly for its approyatl, in the year 506,. at Aire, in Gascony. The original was then deposited in the royal ' The compilers under Alaric, however (in contrast to those under Justinian), made no alterations in the text of the passages which they selected, nor did they mutilate them. In fact, whole books of the Theo- dosian Code were transferred into the Breviary. They merely cut out of the earlier text those parts which had ceased to be appropriate to existing social conditions, principally in the governmental organization. 17 § 9] FROM JUSTINIAN TO FEUDALISM [PaRT I archives ; then a copy, prepared by Count Goiaric and authenti- cated by the Chancellor Anianus, was forwarded to each count in the kingdom, with a royal order, or " commonitorium," order- ing that henceforth all other Roman laws be ignored and this Code alone be observed. The Breviary remained officially in force until the change of policy on the part of the Msigothic kings. For later, upon setting to work to unify and strengthen their State, they resolved to eradicate all distinctions between their two subject races ; and to this end, instead of placing the Germanic race under Roman law (as Theodoric had attempted to do in Italy), they sought to incorporate the Roman element with the invading conquerors. Recesvind , therefore, towards the middle of JJieJSOOs, repealed the Breviary. Outside of his Franco-Spanish dominions, however, its vogue was not terminated, as we shall now see. § 9. The Roman Laws of the Burgundians. — Gondebad, king of the Burgundians (467-516), when promulgating a written code for his own people {-post, § 40), had promised to provide also a spe- cial law for his subjects of Roman race. This Roman legislation of the Burgundians is found in the book later known under the name " Liber Responsorum " or " Responsum Papiani," or merely " Papianus." But this title is due to an error. The name Papian (that is, Papinian, the classical jurist) was found inscribed, without any mark of separation, at the end of one of the manu- scripts of Alaric's Breviary; a response of Papinian was in fact the last passage in the Breviary ; but it was mistakenly supposed that this passage was the beginning of the Burgundian Law, which followed in the same parchment ; hence the name of Papian was given to it. Everything points, however, to Gondebad's having indeed fulfilled his promise; this law therefore antedates his death, which occurred in 516. This is indeed not known with certainty ; for, besides the absence of any precise statement of the date, we find in one of the preambles a mention of Sigismund, the son of Gondebad, as if he were the author. If, then, he is to be regarded as the author, not merely of a revision, but of the original, the earliest date for it would be 517. The contents of this statute cover the ci\'il law, the criminal law, and procedure. A portion is taken up with provisions founded on the Burgundians' own Germanic law (of which an account is given Tpost, § 40) ; this it follows in the order of topics and in the names of most of the forty-seven titles into which it is divided. But the 18 Chap. I] GOTHS AND LATER ROMANS [§ 10 Roman sources were also used ; including, as was customary, the Theodosian Code, the Novels, the treatises of Gaius and Paulus, and the Codes of Gregorius and Hermogenianus. But it cannot be said with certainty whether these sources were used in their original texts or were merely followed as they appear in the Bre- viary of Alaric; unless, to be sure, one concedes that the Bur- gundian document is earlier than the Visigothic, that is, dates before 506, — an inference deducible from the circumstance that certain passages of Roman law appear in the Burgundian which are not found in the Visigothic statute. The Visigothic Breviary, however, was in its value as a compila- tion of Roman law much more suited to the purpose at which both of these statutes were aiming. And thus, when in 534 the Bur- gundian kingdom was overthrown by the Frankish conquest, the Breviary survived in influence the Burgundian statute, and diffused itself even among the Roman Italians who had been subject to the latter sway, as well as among those in other localities. Throughout the Middle Ages the Breviary preserved a great authority. In Italy, indeed, It never went out of vogue, — partly because of the intimate intercourse between Italy, Gascony, and Spain, partly because the Breviary contained a large part of the Theodosian Code already there accepted. The Frankish conquest must also have helped to spread its influence anew north of the Alps. Charle- magne and Pepin both ordered it to be included in their legisla- tion ; and Pepin, who was the sole ruler in Italy, would not have done this if the Breviary had not in that country been authorita- tive. Several manuscripts of it, indeed, have been discovered in Italy; legal documents there reveal traces of its Theodosian passages; the commentaries and the compendia of it are of Ital- ian origin.^ All these circumstances go to confirm the conclusion that the Breviary, even after it had lost its legal authority in its original home of Gascony and Spain, continued in Italy to be known and used as the principal source preserving the ancient law of Rome and surviving alike in the traditional customs and in the practice of litigation. Topic 2. The Roman Law of Rome ^ § 10. Roman Practice before Justinian. — During the Byzan- tine epoch (476-578), though the sole seat of imperial power was ' Patella, in A.G.S., 1891, "II bre-viario alariciano in Italia." 2 Brandileone, in A.G.S., 1886, "II diritto bizantino nell' Italia meri- dionale"; Calisse, "II diritto di Teodosio in Italia," 1889; Ferrini, m 19 § 11] FROM JUSTINIAN TO FEUDALISM [PaRT I at Constantinople, there persisted in Italy the conception of a Roman State; and during that period the Roman law also domi- nated. No longer, howe-ver, was it Roman law in the classical sense. On the contrary, it was far from being comparable to that of any preceding period. The Byzantine legislation of Justinian, when promulgated in Italy towards the close of this period (554), did indeed become the best known, and was finally to dominate over the other bodies of law. But alongside of it (and quite apart from any Germanic influences of the invaders' law) there survi-\'ed the older sources of Roman law. Other such sources, too, were formed later, varying with the conditions of diverse parts of the country. To these must be added the varieties of customary law which developed among the inhabitants under pressure of so many novel necessities. This multiplicity of sources gave to the Roman law of this period certain new features. A process of transforma- tion began, analogous to that which took place in the language. The outcome was what has since been termed Popular (or Vulgar) Roman Law. § 11. Justinian's Legislation. — In ^54, Justinian promulgated his PragmaticLSanctian. This general title was applied to a series of enactments designed to restore that law and order which the long wars had shattered. They put into force, for all regions and persons, the Roman law, in its revised form, that is to say, as con- tained in Justinian's Pandects, Code, and Novels. This much, indeed, had already been done once before (as the Pragmatic Sanction itself reveals) by Justinian, in an edict of uncertain date — perhaps 540 or 541 — termed the " Edictale Programma." At that time Ravenna had fallen, and the Ostro- gothic king was a prisoner at Constantinople. The restoration of imperial power in Italy seemed complete. No one could foresee that Totila the Goth would again (though not for long) wrest Italy from the Empire. When we notice that by § 11 of the Prag- matic Sanction all the laws and acts of Totila are annulled, with an anathema upon his name as a usurper, while those of his Ostro- gothic predecessors are confirmed, we may infer, as the reason for this distinction, that from and after the capture of Ravenna the Italian territory was regarded as subject to the legislation of Jus- tinian and the imperial jurisdiction, and that therefore any other legislation was void and any rival legislator a usurper. R.I.L., 1884, ser. II, vol. 17, "Glossa torinese"; Fitting, "Ueber die sogenannte Timner Institutionenglosse," etc, Halle, 1870; Schupfer, in R.A.L., II, 1886, "II diritto romano nell' Italia meridionale." 20 Chap. I] GOTHS AND LATER ROMANS [§12 Nevertheless the period succeeding Justinian's edict of 540 had been a period of chaos in Italy. Consequently, when the victories of Narses, towards 555, regained control and brought about a final settlement, a new decree was practically called' for, to readjust these conditions and to reaffirm the legislation of Justinian. And thus the Pragmatic Sanction, as above stated, put it universally and actually into force. How real was its force and how rapid its diffusion is recorded (if other evidence were needed) in various ways. For example, the legal documents of the early Middle Ages exhibit constantly the use of the Roman law.^ Expositors of the law, moreover, are found referring to it. An interesting work of this sort is the " Glossa " of Turin, composed probably (at least in its original portion) in the very period of Justinian, but certainly later than 543, as it cites a Novel of that date. Its author's care in giving definitions and etymologies shows that its purpose was to teach and make known, in the schools and at the bar, the then newly pro- mulgated body of law. That this law is new to him is apparent from his unfamiliarity with it; while his comments on the super- seded rules not only show him to be expert in them, but accord ' to them sometimes a greater validity than they could legitimately have after Justinian's legislation. § 12. Imperfect DifEusion of the " Corpus Juris." — This con- tinued reference to the preexisting law is not an isolated instance. Others of the sort show that Justinian did not succeed completely in supplanting in practice the Theodosian Code. Promulgated by the Emperor Theodosius in 438, at gyzaatium, the Roman Senate had accepted it for Italy also. It was already ancient and familiar, national in its traditions, and entrenched in the rights and liabilities of the inhabitants. To supplant its observance by that of Justinian's laws, a long period of time would in any event have been needed, as well as a rigid exercise of State power. Neither of these things, however, could yet assist it. The rule of the Byzantine emperors was not willingly accepted. Within a few years it was to be overthrown (in the greater part of Italy) by the Lombards' invasion. Furthermore, the Theodosian Code was still in acceptance among the Roman inhabitants of Gjjil and of Spain, who did not acknowledge Justinian's empire and did maintain intimate relations with the people of Italy, especially in commerce. The Ch urch, too, was interested in preserving the Theodosian 1 See the collections of Marini and of Fantuzei. 21 § 13] FROM JUSTINIAN TO FEUDALISM [ParT I Code; for the foundations of its constitution and its liberties had been laid under the governments prior to Justinian. In the schools and at the bar, moreover, the books which served to expound the law were founded on the Theodosian Code; and even when their authors attempted to set forth the new laws, they could not (as above noticed in the " Glossa " of Turin) easily detach themselves from the older learning. If we weigh the united influence of all these circumstances, we may easily appreciate that the classic Roman law would still re- tain a vogue and authority even after the introduction of Jus- tinian's books. It is at once a proof and a result of this continued vogue that we find, in the succeeding period, the Gothic domina- tion producing numerous copies and summaries of Alaric's Brevi- ary, which contained principally Theodosian law (as already noted in § 8), and the Lombard legislation succumbing to Roman influ- ence and drawing many principles from the same Theodosian Code. § 13. Nevertheless, it must not be supposed that Justinian's legal system did not strike root in Italy.. Though the northern regions fell shortly under the invading Lombards' rule, yet the central and especially the southern regions were governed from Byzantium for centuries thereafter. By this persistence of power the Byzantine law was certain to become a permanent system. And, in fact, not only did it remain long in use, but as a matter of course its later legislation also took effect there. This later law — the Greeco-Roman law, properly so cafled — was elaborated particularly in the legislative reforms of the emperors Leo the Isaurian (739), Basilius the Macedonian (886), and Leo the Philosopher (911). This accounts for the making and using of numerous compends of Byzantine law in the southern Italian provinces, as well as for the numerous traces of it in local custom and in the subsequent legislation of the Norman and the Suabian dynasties. In Sicily, too, the Roman and the Byzantine law did not disappear, even under the dominion of the Arabs. The latter preserved for the conquered population its existing law and even its own courts. Nor was there (in some parts of Sicily), even under the Arabs, a cessation of intercourse with the Greek Empire; from which, indeed, the Sicilians hoped to obtain .that political I deliverance which was afterwards bestowed on them by the Nor- man dynasty. 22 Chap. II] LOMBARDS AND FRANKS [§14 Chapter II. Second Period: a.d. 575-900 LAW UNDER THE LOMBARD KINGDOM AND THE FRANKISH EMPIRE § 14. Introduction : The Mingling of Legal Systems Topic 1. The Lombard Kingdom 15, 16. The Lombards and their Civilization. 17-19. The Lombard Edict ; its Formation and En- actment. §§ 20-22. The Edict of Rothar. §§ 23, 24. Supplements to the Edict. §§ 25-27. Minor Sources of Lom- bard Law. Topic 2. The Frankish Empire i 28. Charlemagne's Dominion I and its Significance. i 29. Charlemagne's Imperial Leg- islation. §§ 30, 31. The Capitularies. § 32. Collections of Capitularies. § 33. Italian Capitularies. § 34. Effect of the Capitularies. Topic 3. The Germanic Popular Codes § 35. The Codifying of the Ger- manic Tribal Customs. §§ 36, 37. Mode of Legislation. § 38. Relation of the Codes to Each Other. §§ 39^1. The Gothic Group (Bur- gundian, Visigothic). §§ 42, 43. The Saxon Group (Sax- on, Frisian). §§44, 45. The Suabian Group (Ala- mannie , Bavarian ) . §§ 46, 47. The Frankish Group (Thuringian, Chama- vian, Ripuarian, SaUc). Topic 4. The Personality of Laws §§ 48, 49. Personality and Terri- toriality of Laws, con- trasted. § 50. Personality under the Caro- lingian Empire. §§ 51-53. "Professions" of Per- sonal Law. § 54. Conflict of Laws. §§ 55, 56. Exceptions to the Rule of Personality. § 57. Unifying Influence of the Capitularies. § 14. Introduction : The Mingling of Legal Systems. — In the Germanic period it is no longer the Roman law that dominates. That of the Germanic invaders prevails, coincidently with their supremacy in government. The conquering German tribes held the upper hand in the community. At the time of their coming into occupation of Italy, their law was as yet in the form of un- 23 § 14] FROM JUSTINIAN TO FEUDALISM [PabT I written custom only. These customs were transmitted orally from father to son. They were expounded by the older to the younger, and were enforced in the tribunals composed of the whole tribe. But through their associations with the Roman element of Italy's population there came about changes, not only in their customs, but in the degree of their civilization and in their needs and interests. These changes soon created a demand for written records of their ancient traditional rules. But none the less the people themselves remained the source of authority, — no longer, to be sure, in those miscellaneous forms of expression which con- tribute to customary law, but in the form of a free and formal approval expressed in the public assemblies. This was in entire accord with the Germanic conceptions of the State. But these conceptions themselves came to show changes. all in the direction of emphasizing the power of the State, concen- trating authority constantly in the person of the ruler, its represent- ative. The ruler's power, increasing in comparison with that of the people, ended by becoming almost independent of it. This in turn led to changes ni^ the source of the law. Alongside of the law made by the people there coexisted the personal ruler's law. The rivalry thus inevitably arising was destined to issue in a sys- tem of royal law ; for the king possessed means of prevailing which the people lacked. Among these means must be reckoned the Roman law and the Church's law. The Roman law had developed the principle that the sovereign' s _will is law. The Church's law had charged the Em- peror with a mandate to watch over the welfare of the people, and had thus tended to make him independent of them in the choice of means to that end. Thus the Germanic law, in becoming royal, tended to absorb into the system these same Roman and eccle- siastical principles. This powerful influence was an improving one, but it stood in marked contrast to the primitive national ele- ments, and tended gradually to overlay and supplant them. Thus, on the whole, the social conditions of the time were reflected in its law. There was the same mingling of diverse elements, the same rivalry between them, the same reciprocal merging and modification. When the epoch marked by these conditions closed in its social aspect, it closed also in its legal aspect. The law of each territory came to acquire a unity and an independent character of its own. But by that time a new stage had been reached both in society and in law — a period of renascence to scientific dignity and national unity. 24 Chap. II] LOMBARDS AND FRANKS [§ 16 Topic 1. The Lombard Kingdom § 15. The Lombards and their Civilization. — Like the other tribes of Germanic invaders, the Lombards, when they came into contact with the Romans, reduced to written form their ancient customs. This took place in 643, seventy-five years after their entrance into Italy. The work was not done at one stroke. The legislative process extended through the reigns of several kings; nor was it completed before the dynasty ended, for it found its fulfilment only in_ subsequent times. Like that of the other Ger- man tribes, the Lombard law was to experience atany_jtaodificar jtions, more, indeed,, than_anyi other. The close relations of the Roman law, which in daily intercourse with the conquered popu- lation served as a constant example, and the authority of the Church's law, which at the hands of its ministers increased stead- ily, effected this quite naturally. The jnfiltration of these more advanced elements served not only to make a real improvement in the Lombard law itself (relatively to the other Germanic laws), but to adapt it thereby to actual conditions in Italy. By thus los- . ing its character as a foreign body of law, forcibly introduced through conquest, it acquired^ consistency which fitted it to endure. The other Germanic legal systems, except for slight traces preserved in subsequent laws, disappeared from Italy as soon as the influences which had imported them ceased. But the Lom- bard law lasted. It penetrated so deeply that it not only survived in the regions where it was planted, but it gave rise to schools of thought, received a scientific treatment, competed vigorously with the Roman law for donjjnation, persisted in practical use until almost the modern era of codification, and remained throughout as one of the constituent elements (though a minor one) in the composite legal system of Italy. § 16. This period is therefore of the greatest importance in the legal as well as the political history of Italy. The Lombard con- quest was both speedy and tenacious. Though it did not extend over all Italy, there was no part of the country (except the islands) which did not feel the consequences of the new masters' presence ; for their possessions were scattered throughout the peninsula, and their policy was constantly an aggressive one. Among the various invaders of Italy, none differed more from the Romans than these Lombards. Entering there with hostile aims upon the Empire, they remained essentially hostile to it throughout. To the Church, too, they were hostile, — at first, 25 § 17] FROM JUSTINIAN TO FEUDALISM [PaRT I because they were not Christians, and later, when conAcrted, be- cause they were rivals of the popes in their aspirations for the con- trol of all Italy. ^More than this, however, the circumstance which subtly but powerfully kept apart the two peoples was their differ- ence in the degree of civihzation and culture. The Roman popu- lation had passed through all the stages of culture which were attainable at that era of the world's history. Decadent though they were, the fruits of their past were certainly not lost. Their culture had a potency of revival, pending the disappearance of those external circumstances which had repressed it. The Ger- manic population, on the other hand, were still in the rudimentary stages of culture, — a stage relatively far behind that of the Ro- mans. They succeeded, to be sure, despite this inferiority, in maintaining their national existence by sheer predominance of physical strength, and in preserving obstinately their national customs. But the result, nevertheless, was a superimposition of diverse elements; and this forms the characteristic of the epoch and supplies the explanation of its legal features. In this place it is enough to note how this affected the form of their law. That the Lombards were led to reduce their rncient customs to writing was due to a purpose to protect them from dis- use and degeneration. They sought thereby to save their national law and their national existence itself. Politically, indeed, their efforts proved vain; for their independence later succumbed in turn to the Prankish power. But while their predecessors, the Ostrogoths, disappeared as a national influence under the Byzan- tine Empire's reconquest, yet the Lombards survived the victories of the Pranks. The Ostrogoths had been no more than military adventurers in Italy ; and the dispersal of their forces eliminated their population. But the Lombards, without losing their mili- tary disposition, had attached themselves to the soil, tilling as well as owning it. This attachment fortified them against military and political reverses, and left them through it aU a powerful ele- ment in the population of Italy. With equal pertinacity they clung to their racial law. Throughout the history of Italy, that law maintained a foremost position and left indelible marks. § 17. The Lombard Edict; its Formation and Enactment.^ — The body of the Lombard legislation was known, by its authors 1 Texts: Bluhme, ed., in M.G.H., "Leges," IV; Padelletti, "Fontes"; Baudi di Vesme, in M.H.P. Treatises and Essays : Fertile, § 13 ; Salvioli, cap. Ill, § 35 ; Schupfer, lib. I, tit. I, e. I, § 2 ; Savigny, II, 14 ; Brunner, "Reohtsgesohiehte," § 53 ; Merkel, "Langobardenreeht," transl. in vol. Ill of Savigny, supra; Calisse, 26 Chap. II] lombabds and franks [§ 18 themselves and in later allusion, under the name of " Edict," ^ like that of the Ostrogoths, their predecessors (ante, § 4) . But the reason for the Ostrogothic term, i.e. thejr vassalage to the Etnpire, no longer existed. The Lombards were supreme, by right of con- quest. Their enactments were " leges," or statutes in the strict Roman sense.^ If, then, they were nevertheless called Edicts, the use of this term was a resiJt of the Roman conceptions still domi- nant in Italy. This at the outset distinguishes the Lombard laws; fo; the other purely Germanic statutes, being voted by the people in the assembly, were known as " Pactus " (post, § 36). The Lombard assemblies also did indeed have legislative power. But the toyaUnfluence upon their action increased rapidly; and finally the king's role so dominated that he appears sometimes as the sole author of laws. In this aspect the term Edict takes on a new significance. '^§18. Another proof of the rapidity with which the indigenous population succeeded in impressing its superior culture upon the conquerors appears in the language of the laws. From the very first, the Lombards' native customs were reduced to writing in the language of the conquered people.^ Their own language was abandoned. Lombard words (though not many) were preserved only where a corresponding Latin one was lacking. This was the case where the idea or the institution was unknown to Roman law and therefore lacked a suitable legal term in Latin. But it is noticeable that even these words rarely retained their pure Ger- manic forms. As the Germans knew these words well enough, they usually took pains to Latinize them or to add explanations. The explanation was given by expanding the meaning in Latin words."* The Latinizing was done by giving to the German word "Diritto eeolesiastico e diritto longobardo," Rome, 1889; Del Giudice, "Traoce di diritto romano nelle leggi longobarde," Milan, 1889; Kieb, f'Edietus Rotari," 1898; Nani, "Le fonti del diritto longobardo," Turin, 1877; Solmi, "Diritto longobardo e diritto nordico," Modena, 1898; Tamassia, "Le fonti dell' editto di Rotari," Pisa, 1889. 1 "Edictum Rotari," 386: "Praesentem vero dispositionis nostrae ediotum, quem Deo propitio, cum summo studio," etc ; "Ediotum Grimo- aldi," preamble: "Superiore pagina huius edicti legitur," etc. ; "Edio- tum Liutprandi," preamble: "Rothari rex ... in Langobardis edictum renovavit et instituit." 2 This term "leges" also was used by the Lombard kings : "Edictum Rotari," preamble : "Necessarium esse prospeximus praesentem corregere legem"; "Edictum Liutprandi," preamble: "Leges quas cristianus ac catholicus prineeps," etc. ^ Bruckner, "Die Sprache der Langobarden," 1895. *E.g.: "Edictum Rotari," 147, "ferquido, id est similem"; 199, "faderflo, id est quantum pater aut frater dedit," 277, "haistan, id est irato animo" ; 278, "hoberos, id est curtis ruptura " ; etc. 27 § 19] FROM JUSTINIAN TO FEUDALISM [ParT I a Latin form (and this led to its introduction into the spoken lan- guage, where indeed it sometimes became the natural and perma- nent expression) ; ^ or else, by translating the Germanic word literally by a Latin one newly formed.^ Furthermore, and along- side these various forms of words, there are presentiments of the development of an Italian language. Everything heralds it. The declension endings are omitted or exchanged; prepositions are often used in connection with case endings ; ^ the future is formed with " have " (whence the later Italian future ending) ; the sentence structure departs from that of classical Latin ; and sometimes words are inserted which are identical with later Itahan.* In short, the language of the Edict is that found in the documents of contemporary transactions; except that the latter vary more or less in correctness according to the individual scribe. It is the language spoken at that period by the Romans of Italy ; and it illustrates the marked influence which they exercised from the very outset upon the development of the immigrant Germanic culture. § 19. Whether Roman experts took a part in the compilation of the Edict cannot be told with certainty. Rothar mentions in the preamble the old men to whom he had resorted for ascertaining and collecting the national customs. These were undoubtedly Lombards. At the end he names Ansoald the notary, who was to authenticate with his signature the copies of the Edict; he too was a German, as his name and his office indicate. So that the share of the Romans in the work was, if any, quite secondary. Nevertheless, the traces of Roman and of Canon law are abundant, especially in the supplements to the Edict ; the texts of the im- perial decrees, of the Bible, of the canons and the fathers of the Church, are continually apparent, either in identical words or in close resemblance. It is therefore quite possible that certain chosen persons among the Romans, most likely ecclesiastics, were ^ E.g.: "Ediotum Rotari," 14, llbarone," free man; 15, "gastaldo/' bailiff ; 198, "^mphip," champion ; "Edictum Liutprandi, " 43', "jsixva?' truce; "Edictum Rachimburgi," 14, "wif a," measm-ing level; eteT 'E.g.: "arimannus, id est exeroitaEsT' It is noteworthy that the same method was followed later in the German language, when a large number of Latin words were taken over and germanieized literally by writers and others. ' E.g. : the genitive is oftener indicated by the preposition "de" than by Jhe case ending; the Latin "ab" before an ablative changes into "ad," preparatory to its later Italian "da" ; etc. ■*E.g.:_ "Edictum Rachimburgi," 8, "decernimus ut si quis cartola \'inditioms alicui de aliqua res feeerit, et ad scrivane publico seripta, vel ad testibus rovorata fuerit," etc. 28 Chap. II] LOMBARDS AND FRANKS [§ 20 given considerable authority and weight in the work. Such men there were, among the most learned in letters and sciences, who possessed authority at court and in the administration, especially after the conversion of the Lombards to Christianity. Their services were of value to the State in numerous modes. On the whole, they must have used their influence a good deal, to the end that the new legislation should be, not merely not hostile to the interests they represented, but a source of growing influence for the Church. § 20. The Edict of Rothar. — Rothar's Edict, then, was given a written form by the labors of his Germanic councillors, with perhaps the aid of some Romans ; and was founded on the ancient customs of his nation, as gathered from its old men. It was promulgated in Payia, in 643. This was the seventy-sixth year since the entry of Rothar's nation into Italy, the thirty-eighth year of his own age, the eighth of his reign, and he was the seven- teenth king of the Lombards. In his preamble, he tells us that his reason for reducing the laws to writing was a solicitude for the welfare of his subjects. He aimed to prevent the rich from oppressing the poor, and to secure for all a tranquil life. And this may indeed have been his own actual motive. But when we remember that Theodoric in his Gothic Edict (ante, § 4), and Justinian in his Roman Code,^ had said much the same thing, the thought occurs that Rothar's preamble was merely an imitation of theirs. Moreover, his pre- amble proceeds to tell us that, for the foregoing purpose, he de- signed also, along with the present legislation, to amend all former laws. Now, as there was no Lombard preexisting legislation for him to amend, this phrase could have had no meaning for him. We are therefore obliged to believe that the compilers of the Edict, without any definite meaning of their own, merely transcribed the similar expressions used in the Gothic and the Roman codes. The precise phrasing of Rothar appears indeed in one of the Novels of Justinian.2 The true reason for Rothar's legislation must rather be sought broadly In the Ranges iind advances of national conditions, which had rendered the ancient customs no longer suitable. To give validity to the new laws, the king submitted them (pursuant to ancient form) to the approval of the assembly. This "(Constitutio "de novo eodice facendo," §3; Novella LXXVII and LXXXII. 2 Novella VII, preface. 29 § 21] FROM JUSTINIAN, TO FEUDALISM [PaRT I was composed of the higher officers of State and the entire body of arms-bearing men (" cum primates judices cunctosque felicis- simum exercitum nostrum "). Thus the Lombards alone took part ; while the Romans, politically a subject people, did not share in their conquerors' government. After the assembly's approval, the Edict was circulated throughout the kingdom, by means of copies authenticated officially by the royal notary Ansoald. § 21. Thus it appears that a prime and marked distinction be- tween the Edict of Rothar and the laws of his successors lay in the objects at which they aimed. Rothar aimed to bestow upon his people a written code; he therefore made a new work, de- manded by the conditions of the times. His successors, on the other hand, purposed merely to improve and complete the laws already in writing, taking advantage of the experience acquired in using them and of the new principles which civic progress was developing among the Lombards. In consequence, we observe, in the two groups of legislation, two other contrasts not less important. One difference is that the Edict of Rothar represents the pure Lombard law. Its essentially Germanic character appears particularly in the portions that deal with paternal authority, succession, self-redress, and money fines ; and herein may be noted the slight traces of other Germanic elements, infused long before, by contact with other Germanic tribes, especially the Scandina-vians and the Saxons (post, § 42). In the later laws, on the other hand, a much larger part is played by the new elements acquired on Roman soil and leading to changes of the law. The second' difference is that the later laws, having a different object, were a series of diverse enactments, lacking in that systematic arrangement which marked the Edict of Rothar. That Edict in fact embodied a system, as is easily perceived. Laying aside a few miscellaneous provisions, its con- tents exhibit the following orderly division: I, Penal Law (cap. 1-152), with special regard to crimes against the State and against personal security; II, Family Law (cap. 153-266), together with the law of succession; subdivided thus: (o) inheritance (cap. 153-157) ; (6) marriage, and the maintenance of the family status, together with the repression of crimes relating thereto (cap. 178- 223) ; (c) manumission (cap. 224-226) ; III, Property Law (cap. 227-366), and its judicial protection; in particular, (a) owner- ship, contracts, crimes against the property of another (cap. 227- 358) ; (&) procedure (cap. 359-366) ; IV, Supplement, for sundry matters (cap. 367-388). 30 Chap. II] LOMBAEDS AND FRANKS [§ 23 § 22. The Edict of Rothar is rightly regarded as the best of the legislative works of the Germanic invaders. It rises above a mere compilation. In form and in system it stands by itself, independent of any other. Unlike all the other Germanic laws, it is not merely a barren series of collected rules; but attempts to state reasons, to supply definitions, and even to develop prin- ciples of law, which are often of notable worth. Here must be recognized the Roman influence ; for in the other Germanic laws, which were not equally exposed to that influence, this is not appar- ent in such a degree. To this systematic arrangement, moreover, it may well be due that the general form of the Edict was never afterwards (as were the other Germanic laws substantially) recast by the later enactments, even when they altered (sometimes in important ways) its particular principles. In view of the Edict's prefatory statement that it was intended for the welfare of all and especially for guaranteeing the humble against oppression, and in view of its concluding injunction to all subjects to observe it faithfully, it is plain that the Edict's legal force was universal, and included the Romans as well as the Lom- bards. ^ But we are not to conclude that for- both alike the whole law was codified and unified. When the Edict had no express provision, or when no public policy forbade, or when no Lombard was a party, the Romans were left to be ruled by Roman law. The Lombard conquerors, similarly, preserved their ancient customs where not altered by the Edict. Rothar's plan to provide rules in common for the. two peoples did not extend beyond a portion of the legal field. The rest remained as it was. He was careful also to define the relation of the new law both to the past and to the future. The Edict was not to be retroactive, except that pend- ing disputes were to be governed by its rules ; ^ nor was it to be conclusive against such future changes as his successors might deem needful.^ § 23. Supplements to the Edict. — The succeeding kings availed themselves of this power of amendment, and made express ac- knowledgment of it.^ Grimoald, in 668, was the first to exercise it. Acting with the approval of the national Assembly, his pur- pose was to remove from the Edict those features which the prog- ress of culture had rendered harsh and inequitable. In its nine chapters these new influences appear at many points, — in 1 "Ed. Rothari," cap. 386: "haec lex . . . firmiter et inviolabiliter ab omnibus nostris subieetis eustodiatur." 2 Ihid., cap. 388. ^ Ihid., cap. 386. < Grimoald's !'Bdict," preface. 31 § 23] FEOM JUSTINIAN TO FEUDALISM [ParT I the greater effect conceded to a thirty years' possession, in the right of representation to nephews, in the inheritance rights of grandfathers as against uncles, in the stricter protection to the marriage relation. • Then followed Liutpraiid (713 to 735), who showed an extraor- dinary legislative activity. He added one hundred and fifty- three chapters, in fifteen groups called " Volumina," one each for the several assemblies at which he had presented his proposed laws for approval. Several causes led to this prohfic legislation. One of these was the Xhur ch. Its influence grew greatly during his reign, and he was its chief instrument in moulding the law to its doctrines. This indeed he declares, in his preamble, to be his object; for he wished to employ the authority, reserved by Rothar, to modify the Edict, by making it conformable to the law of God in accordance with the inspiration of his heart, the spirit- ual needs of his subjects, and the peace and prosperity of his king- dom. To this purpose of his, Liutprand remained ever faithful. It was Liutprand' s enactments (made, sometimes, at the direct request of the Church ^) which introduced into Lombard law not a few of the principles advocated by the ecclesiastics, -^ for example, the doctrines as to bequests for masses for departed souls,^ impedi- ments to marriage,' manumission by religious ceremony,* the recognition of the pontifical primacy,^ the privileges of ecclesiastics, penalties upon the surviving pagan practices,* and still other provisions affecting government, procedure, property, and family. The Roman law, on the other hand, made no inconsiderable im- pression onEiutprand's legislation. Traces of it may be seen (quite apart from the frequent imitation of terms and ideas) in the reforms introduced for woman's rights of succession, in the guardianship of minors, in prescription of rights, in wills, in mortgages, and in fact at almost every point. A third notable source of legislative changes of Liutprand is to be found in the ijicreased power of the State, the improved organization of all public administration, and in the general development of the people both intellectually and economically. An evidence of this is seen in the judicial origin of many of his decrees. They owed their promulgation to the popular need for some new or changed rule. It frequently happened that the personal litiga- tion brought to the assemblies called for the interpretation or the amendment of some prior statute, or even for the settlement of ' Liutprand, 33. ' Ibid., 9, 23. 2 Ibid., 5 IHd., 32 ,6. ,33. ' Ibid., 33, 34. « Ibid., 84, 85. Chap. II] LOMBARDS and franks [§ 24 some novel legal principle. After settling the litigation, its gen- eral principle was inserted among the statutes ; and the book some- times notes expressly that such was the statute's origin.^ The development of the Lombard Edict continued, after Liut- prand, under two more kings, — Rachi , who in 746 added fourteen chapters, ^.nd ^Slolf. the last legislator of the Lombard dynasty, who from 750 to 754 added twenty-two new chapters. Astolf's chapters introduced some important reforms not hitherto pro- vided for, notably in testamentary manumission, and in the wid- ow's life estate. These latest laws form also an integral part of tlie Edict, as both of their authors are careful to repeat.^ § 24. At the fall of the Lombard dynasty in the second half of the 700' s, it was in the duchy of Benevento (in the south) that Lombard interests centred; the immediate national aspirations, as well as the future development of the national law, were made possible in the hands of those rulers. Arechi promul- gated seventeen chapters, shortly after the kingdom ended, and eight more were prepared by 4d£lchi in the second half of the next century. These chapters were intended by their authors to form part of the Edict. The duke Adelchi, in his preface, after recalling again Rothar's authority for this purpose, recites that Arechi had used this authority and, following the example of his nation's kings, had made amendments to the Edict by his chapters. Adelchi, doing likewise, states his wish that these other chapters, approved by the assembly, should be regarded as an integral part of Lombard legislation. The contents of the Beneventine chapters confirm this announcement of Adelchi's; for the ducal chapters fit into the laws of the Lombard kings, constantly referring to them, and even making amendments. The changes are sometimes very important, and in all instances illus- trate the progress of popular opinion and necessities. For ex- ample, Arechi repeals, as impious, Rothar's statute proclaiming as a family enemy him who gave his share of the family estate to a stranger. Arechi, moreover, lays down more minute rules than ever before for reckoning the " wergild," i.e. the money compensa- tion payable for a homicide to the deceased's family. Again, he decrees that when a man is for crime condemned into servitude, the innocent wife shall remain a free woman, and that her husband's owner shall allow him such labor time as he requires for providing support for her. Among Adelchi's laws may be noted one which - 1 E.g., ibid., 127, 135, 136, 137, 138, 141. 2 Rachi, preamble ; Astolf, preamble. 33 § 25] FBOM JUSTINIAN TO FEUDALISM [Part I brought to an end the ancient usage of the king's treasury to make serfs of free women marrying serfs; even their separation from their husbands is forbidden. Another law puts an end to the loose and dangerous rule that a legal transaction requiring publicity could be reduced to writing by any one whomsoever; hencefor- ward, only notaries were to have power to do this. In this manner did the Lombard Edict maintain itself in force among the people, and became at the same time adapted to the changing conditions. Those changes of conditions were less in the North (the native home of the Edict) than in the South. And thus in the North the Edict's contribution to the subsequent law is a large and enduring one. § 25. Minor Sources of Lombard Law. — The Lombard royal enactments, other than the statutes contained in the Edict, were not submitted for the approval of the popular assembly, and were thus in strictness not statutes ("leges "). Their efficacy lay only in the power of the king who issued them. They were known by various names, — " capitula extra edicta vagantia," " in breve statuta," " memoratoria," " brevia," " jussiones." In substance, they were merely ordinances upon matters coming within the king's field of action, or proposed statutes preparatory to approval by the assembly. Astolf, for example, in a preamble ^ declares that after examining the institutions of his predecessors he has found some which had not been included in the Edict but ought to be, and therefore presents them to the assembly of the people. A few examples of these enactments survive. There is the " Notitia de actoribus regis " (733), a series of rules for the officers of the royal courts, in six chapters, probably by Liutprand. To the same king (or to Grimoald) is attributed the " Memoratorium de mercedibus magistri commacinorum," a schedule of fees for the various services of the " magistri commacini " ; these were the master builders, who went about in various parts of Italy, erecting buildings, with a corps of affiliated workers. Since the time of Rothar, the Edict had contained provisions about their respon- sibility for injuries done by them in the course of their work.^ Rachi also promulgated several chapters of ordinances. One of them makes rules for guarding the national boundaries, and for licenses to travel to Rome on pilgrimage. Another concerns some privileges of the royal " gasinds," i.e. persons specially accredited at the royal court. A third treats of the armor and horses required to be furnished by the " arimans," i.e. the freemen composing the army. 1 Preamble II. 2 "Ed. Rothari/' 144, 145. 34 Chap. II] LOMBAEDS AND FRANKS [§ 27 § 26. The dukes of Benevento also issued certain ordinances of public law, besides the above-mentioned statutes with which they continued the Edict. They include the " Pactiones de liburiis cum Neapolitanis factse," the " Pactiones Gregorii ducis et Johannis consulis Neapolitani," and the "Pactum Sicardi." In these treaties the contracting parties give mutual assurances as to free passage through each other's territories, warranty of mer- chandise, safety of property, extradition, Saracenic raids, and the prohibition of slave-trading. Sicard's treaty contains an impor- tant provision for suppressing wreckers (whose practices were then in vogue throughout Europe) ; it declared that shipwrecked persons should be unmolested, and that all goods taken from them should be restored. The statute of Udino {post, Part II, § 19), contem- poraneous with that of Sicard, contains an analogous provision. There are also to be mentioned the twenty-eight chapters enacted by Radelgis and Siginolf for the division of the duchy of Beneventum, when a part was detached from it, in 851, to form the principality of Salernum. § 27. Among the subordinate sources of Lombard law should be noted also the popular customs. These (as already mentioned) had been only in such respects incorporated into the Edict as the legislators deemed to involve public policies. Those which had remained unchanged continued to be observed in popular practice and enforced in court, — as is indeed sometimes expressly stated in the Edict itself. For example, Liutprand tells us, in one place, that the various amounts of " wergild " (personal-injury tariff) had been settled by custom ; in another place, that the crown had always been entitled, by custom though without express statute, to the inheritance of serfs manumitted by royal act and dying with- out descendants. We learn from another statute that a gift is not binding unless accompanied by the " launegild," i.e. some sort of earnest-money or other symbolic equivalent handed over by the donee, because this rule of custom is always enforced in court, though not stated in the Edict. So, too, the judges, without statutory provision, enforced the custom for the tenant to leave behind on the land the property acquired by him during his ten- ancy, if the landlord reimburses their actual cost.^ It is apparent that judicial practice had its share in contributing to the preserva- tion and development of the law. In fact, as already noted, the larger part of Liutprand's enactments had come into existence through judgments in deciding lawsuits. This relation between " ' ' lAutprand, 62, 73, 77, 133. 35 I 28] FROM JUSTINIAN TO FEUDALISM [PaRT I judicial decision and statute, and its strong influence, is the more manifest, when ^e remember that both alike were the work of a single organ of the State, i.e. the popular assembly, which exercised the judicial power (at least in important cases) in addition to its legislative function. Topic 2. The Fkaxkish Empire § 28. Charlemagne's Dominion and its Significance. — The institutions of the Prankish period, and particularly of the Empire as re-proclaimed in the person of Charlemagne, in 800, had mo- mentous consequences for the law of Europe. ^Nlany more peoples than ever before were united under a single sway. IMany bodies of law came thus into close relation, with equal recognition and equal validity. Over these systems of tribal or popular law stood the Empire, which claimed also the lawmaking prerogative. To this prerogative TheJIloman law contributed the principle that the Emperor was the source of law^by virtue of the people's surrender of its ancient right to him. The Church alsa -contributed the conception of an imperial authority divinely bestowed ; this ren- dered him independent of the people and charged him with the ex- clusive mission of legislating for their welfare. A new fountain of law thus sprang up from the Emperor's authority. It gushed forth indeed copiously, while not exhausting but even increasing and improving the outflow of the people's own law. But the foundation of the Emperor's authority was both Roman and Christian. Hence a new and vast potency added to the law of Rome and the law of the Church. This influence was seen in most of the new laws issued by the Emperor. The people's ancient tribal or national systems were made to slough off their antiquated parts. They were thus improved, each in its own way, and they lost those features in which they contrasted most sharply. The time was beginning for them to develop those elements which would finally weld together, to form a single new system of law for each of the nations to be. § 29. Charlemagne's Imperial Legislation.^ — The legislation ■which emanated from the Emperor was not, of course, a "lex " •Texts: Boretius-Krause, in :M.G.H., "Leges," Sect. II; Padelletti, "Fontes." Tbbatises and Articles: Fertile, "Storia," § 30; Salvioli, "Ma- nuale," c. 5; Schupfer, "Manuale," p. 117; Brunner, "Rechtsgeschichte," § 54; Borehus, "Die Capitularien im Langobardenreich," Halle, 1864; Idem, "Beitrage zur Capitularienkritik," Leipzig, 1874; Gaudenzi, article Capitolan, in "Digesto Italiano"; Pateita, ."SuUa introduzione in Italia deUa coUezione di Ansegiso," Turin, 1890. 36 Chap. II] ' LOMBARDS AND FRANKS [§ 29 or statute, in the strict sense of either the primitive Germans or the early Romans; for the people had not shared in its enactment. None the less, it was given practically the full force of a statute. The revived imperial dignity dominated over the ancient popular institutions. This is seen, for example, in the disappearance of Jeaders^or_ofEc_ers o£thej)eople having powers and duties in their own fight, such as the Lbinbard dulces. All officials now, from low- est to highest, owed office to the Emperor-King. He appointed, directed, removed them. They were thus mere instruments of his commands and poUcies. Another reason was thejlecljiie of the jopular_assembhes. The greater part of the freemen no longer kept up their attendance. They were scattered over too wide a region ; local interests were more exacting ; there were dangers and expenses in a long journey. Thus their interest waned in the affairs of the central government. The officeholders — the Em- peror's nominees ^ — were almost the only ones to attend. Thus the national assembly transformed itself into a royal council; and the king took advantage of this to increase his own power. The popular courts ofjystice, it is true, survived. But over them was the royal tribunal, — an "aula regis,"- — whose judgments prevailed and furnished new precedents for citation in the lower courts. The entire ancient constitution thus bowed under the weight of the royal power. Among the many ways of securing in the royal hands a virtual legislative power, it remains to notice his " ban," or sanction, by which he enforced the execution of laws. This was only a fine, — not however a fine imposed on a lawbreaker for violating that public peace of which the king was the protector, but a fine for the per- sonal offence done to him, in violating his royal command. And this " ban " of the king came thus to signify no less than the " lex " of the people. Another and equally important cause of the increased power of royal enactments was the steady^increase in the number of subjects _who_hai-Eersonal_reIations of dependence with the king. These persons bound themselves, by an oath of personal fealty, to obey his commands; they were his vassals^ He InTiis turn bestowed on them " beneficia," that is, lands in feud or fee, liable to be retaken from them in~case of disloyalty, and thus calculated to produce obedience to his ordinances. Such was the feudal system in its beginnings. There is here a str iking analogy between this imperial Germanic law and the pretorian ("honorary ") law of Rome, in the methods "^ 37 § 30] FROM JUSTINIAN TO FEUDALISM [Part I of development. Neither was a " lex " ; yet both had in practice the effect of a " lex," by reason of the magistrate's power and methods. They corresponded closely in their purpose and their results. The pretorian system developed and improved the native law of Rome by using the new elements that had arisen in Roman national life ; its ancient rigidity was modified ; it became fitted to apply to others than the citiizens only. So, too, the imperial Germanic law, making use of advanced principles, and applying these to the crude material of the tribal laws, enabled them to progress. By using rules which all the inhabitants must recognize in common, it tended to remove the native crudities, and to meet the needs of social progress, and thus at last to round out a single system of law. § 30. The Capitularies. — The various sorts of royal legal docu- ments had borne varying names, — " notitise," " brevia," " de- creta," " auctoritates," " edicta " {ante, § 25). But when they came to be genuinely royal laws (in the sense that the king, without the people, enacted them), they were then known by a specific term, " Capituli," or Capitularies. This name, to be sure, was ancient enough. It had been used by Liutprand and Astolf in the Lombard Edict ; " capitula " signified the separate articles in the Edict, and " capitulare " the articles or Edict as a whole. But in the sense of a royal legislative act, " capitulary " was not used until such legislative efficiency was a political fact, — that is to say, not until the development of the royal power in the Prankish epoch, when the Carolingian dynasty had supplanted the Merovingian. Here the influence of the Church's phraseology had probably some share. The Church gave the name " capituli " to the canons of a church council and to the ecclesiastical ordinances. The transfer of the term is easily understood when we perceive that the king's laws were often mere repetitions of the Church's rules, and that the State maintained the directest sort of union with the Church, in legislation as in all other public affairs. The scope of the " capitularies," which thus became, both in tenor and in efficacy, the formulation of the royal legislation, was of the widest. :Matters lay and clerical, public and private, political and administrative, civil and mihtary, commercial and educational, domestic and foreign, were all brought within the royal jurisdiction, and were subjected to restatement and reform. The vahdity of the capitularies was that of a general law, appli- cable to all subjects of the Empire, without any of the ancient re- 38 Chap. II] LOMBARDS AND FRANKS [§ 31 stric tion s as to personal nationality or the like. The source of their authority being unlimited, they served as rules for the conduct of all. The capitularies were required to be proclaimed and placed on record. The proclamation could take place in several ways. If made at a national assem bly, copies were given to the barons who attended T^these took them back to their fiefs and there pub- lished them by a pubhc reading in the churches or at other popular gatherings. Again, the chief j)f the royal chancery sent out au- thenticated copies to the higher officials, lay and ecclesiastic, who did likewise to their subordinates, and so on until the contents were universally made known. Or, finally, the royal itinerant deputies (" missi ") were charged to carry copies into their dis- tricts, on their periodic journeys of inspection. The recording was done by depositing the original in the royal archives. There were indeed no^egisters, corresponding to the " commentarii " of the Roman imperial archives ; hence much inconvenience, an impossi- bility of ready reference, and a risk of disappearance. And, in fact, there were very many capitularies which even the royal chancery itself was later unable to find or to remember ; so that it was obliged to resort to collections of them made by other persons. § 31. The capitularies may be classified into several groups. A first division, made according to their subject, is that of ecclesias- tical and secular. The ecclesiastical concerned the persons, prop- erty, functions, and other interests of the Church. Often they were nothing more than the canons or the decrees of councils or popes, inserted into the civil legislation, by the Emperor as protector of the faith, to give them a State sanction. The other capitularies, i.e. secular or lay, may be further subdivided in several ways. They were either general or special ; i.e. they applied either to the whole Empire or to a part only. But a more important division was based on their purpose, i.e. either to add to some existing law, or to stand as independent. The former sort, " capitula legibus addenda," were issued to supplement or to amend existing laws, — either some specific " lex " of the people (such as the supplements to the " Leges Saxonum," " Salica," " Bavariorum," " Ripuaria," " Longo- bardorum"), — or the general body of all laws. If they were thus annexed to some specific law, they shared its features, and in par- ticular that of being " personal," i.e. not binding upon any except the specific nationality " professing" that body of law (post, § 48). But if they were applicable to the general mass of laws or to that of 39 § 31] FROM JUSTINIAN TO FEtHDALISM [Part I a particular country (as were the so-called " Italian capitularies," for example), their force extended to all the inhabitants of the country named. In the latter case, for greater validity, they were ordinarily submitted to the national assembly, and thus became " leges " in the strict sense. But this procedure was not indis- pensable. Often their presentation to the assembly consisted merely in a formal communication of them, or in a substitution of the signatures of the higher officials on behalf of the assembly. This virtual independence was a mark of the royal power, which was now free from any other interference wherever it saw need of legis- lation.^ The other group of capitularies, " capitula p_er se scribenda," consists of those which have no reference to a specific law, and are made apphcable to alLsubjects. Their validity was territorial, not " personal," in extent. These exhibit the really royal law, which by them attained its purposes. They were independent of any vote of the national assemblies. They secured their effect (as above stated) by means of the "ban" and the oath of fealty. The assembly, to be sure, was sometimes consulted. This was because no fixed line then divided the royal and the popular pre- rogatives. One or the other is found prevailing, according to the personality of the ruler and the conditions of the country. At times when the royal power preponderated, the royal enactments, though lacking popular sanction, are found enforced in the popular courts. At other times, the king volunteered (or the people forced him) to request the assembly's assent to a decree which intrinsically might have dispensed with it. — It may be added that the king,^s the author of the capitularies, had the power to repeal a capitulary, whether his own or a predecessor's. Among those capitularies which did not serve to supplement preexisting laws, the " capituli missorum" had a distinctive charac- ter. The " missi " were the magistrates sent out by the Emperor periodically into different regions, to inform themselves on the conduct of his vassals, or on other matters of public interest. These capitularies are made up, in part, of the ruler's instructions 1 It is noticeable, however, that no capitularies supplementing the Roman law are found; although the Roman law at this period ranked also as a "personal" law (post, § 48). The reason given by the legislators themselves (" Edictum pistense," a.d. 864, c. 20, etc. ; Boretius, I, 14.5) is that no one could suppose the Roman law capable of improvement. Yet in view of the imperial theory that the Prankish emperor succeeded to the Roman emperor's authority, his legislative power was complete, not being bound by the constitutional checks upon his power over the Germanic national laws. 40 Chap. II] LOMBARDS AND FRANKS [§ 32 to the " missi " how to perform their duties, e.g. how to identify the various'^' personal " laws (post, § 48). They contain decisions or responses to requests or inquiries made by the " missi " con- cerning their office ; e.g. a ruling that they should strictly apply the Roman law principles when applicable. They contain also war- rants of authority, as when the " missi " were charged to try some cause falUng within the king's jurisdiction, or to proclaim a military levy, or to do some other act ordinarily beyond their authority. § 32. Collections of Capitularies. — The large number of the capitularies,, and the manner of their preservation, soon made the need felt of some systematic collection, which should arrange them in order and preserve them from the risk of loss. No official provi- sion was made for this. As at Rome, in the Theodosian epoch, so now it fell to privat e persons to satisfy the demand. Among the several collections which ensued, two merit attention. The first is that of _Ansegigus of Fontanelle, in the diocese of Rouen, a man of noble family, intimate at the Carolingian court. Moved (as he says) by affection for his royal masters, by the love of learn- ing, and by a desire for the welfare of Church and people, he set his hand to the task, which was finished in 827. Arranging the entire body of capitularies in four books, he placed in the first and the third books the ecclesiastical and the secular capitularies, respectively, of Charlemagne, and in the second and the fourth books the same two kinds by Louis. Within each book, the order ©f dates was followed. In three appendices were the capitularies of the " missi," with others not before known to him. The total numbered only twenty-nine ; which shows what wide dispersion of copies must have taken place by the epoch of Ansegisus ; for the number of capitularies which we now possess, dated during the period covered by his collection, is more than four times as great. This difficulty, then experienced, of obtaining the texts, explains how Ansegisus' work came to obtain a wide vogue. Numerous manuscripts of it have been found, some in Italy, which suggests that its use extended even to that country, and accounts for its having quickly received an official status. Louis himself, for ex- ample, when he had to refer to his own and his father Charle- magne's capitularies, cited them from Ansegisus ; Charles the Bald had copies made for his " missi," to serve for a text of the older capitularies, which were no longer recoverable. And this royal countenance was, after all, well deserved by Ansegisus; for his work is a faithful reproduction of the originals. He made only 41 § 32] FHOil JUSTINIAN TO FEUDALISM [Part I trifling alterations, such as to divide a single capitulary into two when its topics, being both ecclesiastical and secular, fell into separate books by his plan. The same praise cannot be given to the other collection, appear- ing in the middle of the 800 s, in the name of Benedict Levitsu It has two prefaces, one in prose and one in verse. They profess that the author was a deacon of the church at Mainz on the Rhine, and by order of Archbishop Aucarius had continued the work of Ansegisus, by adding (in three books and four appendices) all the capitularies which were unknown to Ansegisus but had been rescued by searching in various places, particularly in the archives of Mainz. All this was duly credited, in the author's own epoch, and the book became authoritative. But the compilation was in truth a mere forgery. It belongs in the same class of Prankish forgeries of the 800 s as the so-called Capitularies of Angil- ramnus and the Decretals of Isidorus. Its lack of genuineness is apparent from the very tenor of the supposed capitularies, which are really a mosaic of various well-kiiown sources, such as the Theodosian Code (ante, §§ 3, 8, 12), the Breviary of Alarie (ante, § 8), the Epitome of Julian, the Germanic " leges," the Bible, the Church canons, and patristic writings. Besides this, certain of its assertions betray their own falsity, — as, that the book was compiled in Mainz, by order of Archbishop Aucarius ; whereas his successor Rabanus was unacquainted with it, while at the same period it was in common circulation in western France. There in fact it originated. The motive lay in the Church's disorganized condition in that region. Not being able to free itself by regular methods from the influence acquired by the lay members, it sought to do so by the authority of these supposed capitularies. These, rescued from obhvion, and needing no further sanction of king or parliament, contained the provisions apt for reforming abuses and for strengthening the clergy's independence of the secular powers. The Church resorted for succor to this imaginary law. It was precisely the same kind of emergency that gave rise to the forgeries known as the Decretals of Isidorus; indeed, they share the same country of origin, the same period, style, and sources, and perhaps the same author. The Levita collection did not remain unknown in Italy; for the Church conceded its authority, until the forgery was discov- ered. But Italy was then (like the other parts of the Empire) in its own peculiar pohtical condition, and made little use of foreign collections of capitularies. 42 Chap. II] Lombards and franks [§ 33 § 33. Local Italian Capitularies. — Italy was now an auton- omous kingdom within the Empire. Its civilization was rela- tively the most advanced one. Thus, though subject to the expanding imperial power of the Carolingians, its circumstances gave rise to a special Italian law . The gene^l^cagitularies, valid throughout the Empire, were vaJid^^Jso^lor Italy ; either by sole imperial authority or by ap- provaloFtEe^neral assembly. In this assembly (as in those of the other GeraafCmc^eoples) the local population was represented, though l^g:;^Jii]^er_gfficials, particularly the ecclesiastics^_JBut the Italians, rdymgj^on^^EeiFowirlegal and political traditions, put forward the claim that these capitulanes^EouiaTreceive the assent of the assembly before they could possess the force of law. This claim was disputed by Charlemagne, who wrote to King Pepin to pay no heed to it, and to exact obedience to all imperial Capitularies.^ Louis the Pious, following his father's example, refused also to yield. But when the time came that the monarchy, enfeebled and threatened, needed the help of the Italian magnates, who had then become feudal chiefs, the royal resistance was with- drawn. In 832 Lothar I was obligeeTto^suBnut^toTEe^SsiemBIy^ at Pavia a rev isio n of the e ntire bodyo f capitular ies, beginning with those of Charlemagne. 5 selection was enacted, known as the " Constitutiones Papien ses." ^ including many of the general capitularies unchanged ; and thus they became a local law for Italy. These capitularies — that is to say, those of Charlemagne, Pepin, Louis I, Lothar, and Louis II (for the later ones fall without the Prankish epoch), — were such as particularly concerned Italian interests. They were both " per se scribenda " and " legibus addenda " {ante, § 31). The former applied territorially through- out the several parts of the kingdom without distinction of " per- sonality " {post, § 48) . The latter were amendments of the separate " personal " law systems in Italy ; but in fact they affected Lo m- bard law onl y; for the Roman law had never been amendedlBy" the capitularies {ante, % 31), and the other Germanic tribal laws (Burgundian, Prankish, etc.) had been amended only by general capitularies not especially applicable to Italy. Thus the capitularies " legibus addenda " for Italy were those " ad legem Langobardorum addita," i.e. affecting only the Lom- • Cap. 14X ; ed. Padelletti. ' "Haeo sunt capitula quae dominus Lotharius rex, una eum pgnsgasu^ fideli um suorum, excerpsit de capitulis Karoli avi sui ao Iiudovioi genitoris ~sui." 43 § 34] FKOM JUSTINIAN TO FEUDALISM [PaRT I bard law, and serving to develop it. The Frankish conquest of 774 had not put an end to the Lombard kingdom, but merely changed the ruling family and the political system. Charlemagne himself had declared that he intended only to improve the Lom- bard Edict, by supplying its deficiencies and by removing its obscurities, so as to leave no room for the variable notions of the judges or the usurpation of powerful nobles. And indeed (were it here proper to examine details) we should discover that this purpose was precisely carried out; The amendments were marked by a greater protection and vigilance (as the spirit of the age demanded) for the interests of the Church. The administration of justice was reformed, both in the magistracy (by substituting " scabini," or popular judges,^ for the whole body of freemen), and in the procedure, and in the method of criminal repression. In the civil (private) law were introduced measures for the govern- ment of the family, for the elevation of the marriage relation, for individual responsibility, for the settlement of property rights, and in general for adapting the ancient Lombard law to the changed social and political circumstances. Thus there arose, to supplement the collections of general ca- pitularies, collections appropriate for Italy. The chief one bears the name " Capitulare Italicum," and dates from the second half of the 90Ds. It is the work of jurists of Pa^ia, and will be ex- amined in its proper place {post, Part II, § 17). § 34. ESect of the Capitularies. — In whatever aspect we regard the capitularies, — whether as general, or special, or " personal," — we see that they affect the entire law, in its broadest sense. For law, they were what the Empire was for politics. They served to unify society into that harmony of government and morals typified by the union of State and Church, without, however, destroying the autonomy of the various peoples united under the Empire. Thus they did not supplant the preexisting systems of Germanic law, but stood alongside of them, — aiding their develop- ment, amending them, supplying their defects, and giving a unity of purpose. It was natural that the capitularies should be the most important legal sources in their own day, and that their effects should be recognizable long afterwards in later epochs. They were one of the most civilizing influences of the ^Middle Ages. Like the constitutions of the Roman emperors, which with slow, inces- sant labor completed the edifice of Rome's law, they introduced the elements of uni\ersality, of moral philosophy, and of Christianity. [ '■ " Schoffen " m Germany ; a sort of juror or lay justice. — Tbansl.] 44 Chap. II] LOMBARDS AND FKANKS [§ 35 Topic 3. The Germanic Popular Codes ^ § 35. The Codifying of the Germanic Tribal Customs. — The j Germanic tribal laws (sometimes termed " people's " laws, more commonly " barbarian " laws — " leges barbarorum ") were those made by the " people " or general assembly of freemen. This feature, and the name " popular," marks them off from the capit- ularies. Each of the tribes united in the Empire kept up its own system, coexisting with the common law of the capitularies. In Italy, as the centre of the Empire and of the Church, was seen the greatest mingling of the various tribes and races, — not only of tEeTiumerous Frankish conquerors, but of all the others. Thus the_other tribal laws came to be apphed in Italy, and some of them to take firm root. The original sources of the tribal laws were their ancient j;ustoms, from time to time put into writing. This process was going on from the middle of the 400s (the fall of the Western Roman Empire) to the beginning of the 800s, as the Germanic ^tribes settled down into permanent contact with the Eoman civilization. They felt its influence, and a complete social change ensued. On the fall of the Roman Empire, the right of legislation — ' hitherto solely the Emperor's — ^ passed to those who^fQundUEent— selves masters of the several provinces. The need for such legis- lation was serious. Peoples occupying the same territory would be found differing in customs, in needs, and in ways of governing. The promises made to the conquered Roman race were to be kept, the duties of the vanquished were to be exacted, and all mutual relations regulated. The conqueror's law, if it were to continue as mere unwritten custom, would suffer in competition with the I highly developed Roman law. And so it came to pass that the ' laws of Lombards, Franks, and some others were voluntarily committed to writing. Still other tribes, however — the farthest ^ north — did so by command of Charlemagne. It was that ruler's ambition, in thus consolidating the imperial institutions, noti merely to define the imperial powers, but to protect his weaker 1 Text : Canciani, B.L.A. ; Walter, C.I. G.I ; the editions in M.G.H. are given post, under the respective codes. Tbeatises AND Abticles : PeriiZe, "Storia," §12; /SaZwoK, "Manuale," II, c. 4; Schupfer, "Manuale," p. 45; Brunner, R.G., § 37, and Gr. Z., § 13 ; Davoud-Oghlou, "Histoire de la legislation des anciens Germains," Berlin, 1845; Gaudenzi, "La legge salica e gli altri du-itti germanici," Bologna, 1884; Gengler, "Germanische Rechtsdenkmaler," 2 vols., Erlan- gen, 1875; Sto'6Ue,^^esobiehte der deiitschen Rechtsquellen," Braun- schweig, 1860-1864. 45 § 36] FROM JUSTINIAN TO FEUDALISM [PaRT I subjects from the oppression of the stronger. This same motive had already been recorded by Theodoric the Goth {ante, § 4) and by Rothar the Lombard {ante, § 17). And now Charlemagne the Frank, not content with having caused some of the tribal systems to be codified, called an assembly at Aix-la-Chapelle (Aquisgrana), in 802, and proposed a compilation of the laws of all the tribes. He ordained that those already in writing should be revised, and the others now be reduced to writing. Thus came into being the various tribal codes which we now possess. The importance of the new economic and rehgious conditions must here not be forgotten. The industrial hfe of the Germanic tribes, after they settled in the Romanized regions of France, Spain, and Italy, was quite altered. The values of things changed, and likewise the modes of determining values. New incentives and standards grew up. The system of compensation or penalties for wrongs (which had consisted merely in a graded schedule of fixed amounts) was particularly one of the things bound to alter under the new conditions, and to make the need of a code keenly felt. There was also the fact of the Germanic tribes' conversion to Christianity; for the new regulations were not a part of the ancient traditions, and . were sometimes even hostile to pagan customs. And finally, the spread of a new civilization — imder the influences of Roman culture and the Church — had forced upon their laws a spirit of progress, and stimulated them to con- firm that progress by recording it. § 36. Mode of Legislation. — By Germanic tradition, in record- ing or in amending a tribal law, the popular assembly, being the supreme lawmaking power, would have to be summoned. Hence the name "pacti^ " given to such legislation (in earher times, " ewa "), to mark its foundation in the popular consent, — a meaning precisely similar to that of "Jex/' in Roman histgry, for laws voted at the ancient " comitia," or assembhes. The term " judicium " was also applied to the vote of a popular assembly, but only when acting in its role as a popular tribunal for lawsuits. The terms " edictum " and " decretum," which are also found, are merely adaptations from Roman law, and exhibit the growing tendency of the king to share in lawTnaking. The older of these Codes were begun and completed by the people. This was true of the " Lex Salica," made " by common accord " (as the phrase went) of all the Franks and of their chiefs {-post, § 47). So, too, the earlier Alamannic Code, which always kept the name "pactus." So, too, the earher laws of those tribes 46 Chap. II] LOMBABDS AND FRANKS [§ 37 which for a long time maintained themselves without mixture of race elements. But in other Codes — mainly those which had most undergone the Romanizing influence — the people had taken a much less share. Usually this consisted in approving the pro- posals made by the king, who was the real principal in this legis- lation. Such was the Lombard_E^dict's history. Its provisions are attributed to the king ; the people are noted merely as assent- ing. So, also, with the Burgundians, whose king Gondebad was able to say that their " lex " arose from " the king's preparation and the common will of all." And Charles the Bald likewise declared that the " lex " was made " by decree of the king and assent of the people." § 37. Whatever the varying circumstances that led to putting the ancient customs into codes, the method of preparation was always to give to the elders of each nation (who would best know the traditions) the task of Collecting the rules. This function was termed " dictare legem," — a phrase borrowed from the Roman questor's " leges dictandse." The elders were to formulate the rules of the native law, and then the popular assembly (Lombard, Burgundian, and so on) was to approve them. The elders (" an- tiqui homines ") are expressly mentioned by Rothar as those whom he consulted for drafting his Lombard Edict. Theodoric the Goth, for the Salic Code, " elegit viros sapientes, qui legibus antiquis eruditi erant." Charlemagne the Frank, for the Frisian Code, appointed the " sapientes ". Vlemar and Sasmond (post, § 43), and referred to the Code as " a sapientibus composita." In drafting the Codes, the Latin language was used, — not the classical, to be sure, but the " low " Latin out of which the Ro- mance languages later developed. The text was interspersed with Germanic terms, either literally reproduced or crudely trans- mogrified by Latin terminations (ante, § 18).^ The general prac- tice of using Latin for the Codes testifies to the^oman influence„ in the Germanic law. With such Latin, naturally there was a poverty of expression for the legal i deas . The older and more primitive the law, the harder the work of expression. Often the Code contained little other than a minute specification of offenses, and a lengthy list of the punishments, especially the fines or dam- ages. Nor, indeed, was it intended to include the whole of the native law, but only the part that most needed a recording. The greater part remained in unwritten custom; and this went on 1 The Anglo-Saxon Code was the only exception ; it was entirely in the native language. 47 § 38] FEOM jnSTINIAN TO FEUDALISM [Paet I being inserted in the Code from time to time, whenever contro- versy arose, or the risk of desuetude was pressing. The Codes were thus ah^ays receiving additions. This feature (though it hindered them from providing a completed system), adapted them to develop and improve the law, and prevented them from losing touch with the rapid changes of culture peculiar to such a period. This general method of expansion, though common to all the Germanic . peoples, varied in particulars. The Lombards, for example, made their amendments and additions b^- appending them to the original Code, in order of time ; so that one may trace plainly the path of development. In the Burgundian Code, on the other hand, the additions were made by inserting them under the suitable topic, while the original section was sometimes left intact and sometimes struck out ; so that the prior text cannot always be distinguished or restored ; and the history of the system is now often obscure to us. § 38. Relation of the Codes to Each Other. — All these Ger- manic Codes show certain resemblances and certain differences. The differences arise from the peculiarities of the various peoples. They embrace the form of the Code, the kinds of penalties , the assembly's share in the administration, the extent of foreign rules incorporated, the territorial scope, the date of compilation, the imperial or popular share in their origin. The resemblances arise from the community of that racial stock whence came all the Germanic peoples. As their dialects descended from one original language, so their legal systems flowed from one common body of customs. Certain elements reappear constantly in all, — the composition (or money-payment) for offenses, the popular assembly as a court of justice, the family ownership of estates, the agnates (relationship through males) as prevailing over the cognates (blood-relationship in general), the restrictions on individual ownership, the inalienability of property by will, and numerous other features. In another aspect, too, some (but not all) of the Codes show an affinity, — the result of a reciprocal influence of one on the other. This came about in two ways. The contact of location was one of these. The Lombards, for example, embodied in their Code some of the Saxon rules ; for these two had migrated together into Italy, and remained there for some time in company. The other way was by one people's deliberately using another of the Codes as model when they came to reducing their own customs to writing. 48 Chap. II] LOMBARDS AND FRANKS [§ 40 In this way are explainable the marked traces of Visigothic law which appear in the Bavarian Code {post, § 45). Attempts have been made to classify the various Codes into groups based on these resemblances and differences. But such attempts must be treated with caution. We do not accurately know the history of the various compilations, — partly for lack of records, and partly because what little has been handed down to us contains much that is misleading. However, the usual classification is into four groups : the Gothic (including the Visi- gothic and the Burgundian Codes) ; the Prankish (including the Salic, Ripuarian, Chamavian, and Thuringian Codes) ; the Saxon (embracing the Saxon, the Anglo-Saxon, and the Frisian Codes, as well as the Lombard, — though this is practically a distinct one from all the others) ; and the Suabian (including the Alaman- nic, and its scion the Bavarian Code). § 39. The Gothic Group (Burgundian, Visigothic). — These two Codes — the Visgothic and the Burgundian — bear a strong resem- blance to each other, which thus sets them apart from the rest. Instead of merely collecting their customs or reducing to writing a few most needed rules, these two peoples set themselves the task of formulating a complete system, adequate to cover all the realm of law, public and private. The strong impress of Roman law is here to be seen. Each of the peoples had a lready become deeply' Latinized. Each of them, moreover, formed a kingdom under the Roman Empire in the days before its fall (ante, §§ 2-8), and thus was bound to be susceptible to the dominion of the Roman law. Both in substance and in form the effect was seen. Hence, in no little degree, a^^ason why jthe southern provinces of Gaul (lower France and jipper^Italy)_remained for centuries distinct in their legal development from the northern regions where the Germanic race, independent and unmixed, continued to bear sway. § 40. The history of the Burgundian Code is not easy to recon- struct.^ The records are scanty, and the successive changes of the original text cannot be accurately traced. The first author was certainly King Gondebad (474-516).. The text ascribes it to him ; 1 Texts : Bluhme, in M.G.H., "Leges,"' vol. Ill ; De Salts, ibid., Sectio I, Tomus II, 1892; Valentin-Smith, "Loi Gombette," Paris, 1889-1890. Treatises and Articles: Dareste, "La loi Gombette," in J.S., 1891, July; HubS, "Histoire de la formation de la loi Bourguignonne," in R.H.B.F.E., 1867, vol. XIII; Zeumer, "Zur Textkritik und Gesohichte der Lex Burgundionum," in N.A., vol. XXV, p. 259 ; Bluhme, preface to Ms edition of the Lex, in M.G.H. , "I.ieges," vol. III. 49 § 41] FROM JUSTINIAN TO FEUDALISM [PaBT I it bore his name (" gondebada ") ; and those who acknowledged it as their " personal " law were called " gondebadi." It was built out of decrees made by Gondebad and his predecessors. He promulgated it in his so-called " prima constitutio." It was made obligatory, not only on the (Germanic) Burgundians themselves, but on their Roman subjects in all transactions with Burgundians, thus leaving Roman law in force only as between Romans. The date (which is doubtful) must have been after 499 ; because up to that date Gondebad (who is given as the sole author) was sharing the throne with his brothers. We may sufficiently credit the Code's preface, which places the date as the second year of Gonde- bad's reign, i.e. 501.^ Gondebad's lawmaking activity did not end with this Code. Like the Roman emperors, he issued " nov ellae," i.e. additional decrees; which, however, were not appended chronologically, but were inserted at the proper points in lieu of the original text. The later kings — especially his immediate successor, Sigismund — continued this practice. Sigismund, indeed, was later thought to be the author of the Code ; and if he was not its author in its final form, he did at least complete its adaptation to the needs of the times. This obscurity as to its historic growth is partly due to the lack "of order in its arrangement, Its provisions fall into three parts. Titles 1 to 41, which seem the oldest, are perhaps the earlier de- cree's retained by Gondebad. Titles 42 to 88, which are later, are in better form ; they note the dates, give reasons, refer to earlier laws which they sometimes amend, and represent perhaps Gonde- bad's own text. Titles 89 to the end are a medley, and could not have been part of the original text; they probably represent Sigismund's additions. When the Burgundian kingdom fell (in 534) at the hands of the Franks, its Code, made by a heterodox (Arian) sect of Christians, met opposition from the Prankish clergy. But it succeeded in preserving its validity for the Burgundians as their " personal " law. § 41. The Visigothic Code had a greater importance.^ Its history has two periods, corresponding to its two parts. ' Schupfer, "Manuale," p. 90, confirms tMs opinion on additional grounds. 2 Texts: Zeumer, "Leges Visigothorum antiquiores," Hannover, 1894. Teeatises and Articles: Bluhme, "Zur Textkritik des Westgothen- rechts," Halle, 1872; Dahn, " Westgothische Studien," Wiirzburg, 1872; 50 Chap. II] LOMBARDS AND FRANKS [§ 41 The first is known as the Antiqua — the name by which it is referred to in the later one. But the Antiqua itself was composed of compilations and additions to the work of earlier legislators. Of these, the first was King Euric (466-483). Isidorus, bishop of Seville, tells us that Euric was the first king to give written laws to the Visigoths, who before then had been governed by unwritten custom only. This assertion is confirmed by the state of things immediately ensuing the fall of the Western Roman Empire (476). Euric would have then had a strong motive to declare laws for his people, in the desire both to increase the independence just at- tained by his kingdom and to regulate the new social conditions which prevailed.^ This Code, moreover, the earliest Germanic instance, came to serve as a model for ensuing ones. Other Ger- manic peoples would naturally be inspired to follow in the same path. Distinct traces of the Visigothic Code appear in the Salic, the Bur- gundian, the Lombard, and particularly the Bavarian Code. According to the same Isidorus of Seville, Euric's laws were revised and enlarged_b^Leovigild (569-586) ; and according to others, theTattePs^n, Reccared (586-601), did likewise, moved by his people's change from the Arian to the Roman religious faith. But none of these revisions (more or less obscure as to their scope) made any essential change in Euric's original compilation. It remained the fundamental law of the kingdom, until the later social mutations affected a general change of law. The two important factors in this progress were, first, the con- stantly incre asing power of the Church, and, next, the gradual and complete fusion of the_ Germanic and_Roman populations. The continuance of two systems of law, Roman and Germanic, side by side, became an anachronism. And since it was out of the question to substitute either one entirely for the other, it came about in the reigns of Kindasvind- (641-652) and Recesvind (649- 672) that the two were fused into a single system, suited to the conditions of the times. Both these kings, especially Recesvind , Gaudenzi, "Un' antiea compilazione di diritto romano e visigoto eon alcuni frammenti deUe leggi di Eurico," Bologna, 1886; Rinaudo, "Legge dei Visigoti," Turin, 1886; Tardif, "Leges Visigothorum," in N.R.H.D., 1891, vol. XV; Waiiz, "Abhandlungen zur deutschen Verfassungs- und Rechtsgeschichte," 1896; Zeumer, " Geschichte der Westgothischen Gesetzgebung,"- in N.A., vols. XXIII, XXIV, XXVI. ' To Euric were formeriy attributed certain fragments of laws discovered by Gaudenzi ("New Fragments of the Edict of Euric," R.I.S.G., 1888, vol. VI). But this ascription has not been generally accepted. The pref- erable view is that the Fragments belong to the Ostrogothic legislation in Italy; Schupfer, "Manuale," p. 78; Paietta, in A.G.S., 1898, vols. XXII, XXIII. 51 § 42] FROM JUSTINIAN TO FEUDALISM [PaeT I promulgated numerous decrees. He declared the Breviary of Alaric (ante, § 8), the code for Roman subjects, to be abolished. Uniting with his own enactments some of Kindasvind and those parts of the Antiqua which were worth preserving, he compiled the second Visigothic Code, known ever since as the " Leges Visi- gothorum." It appeared in 654, and was made binding alike upon Visigoths and Romans within his kingdom (of Spain and lower France). The Antiqua had not been divided into topics, but merely ar- ranged by numbered chapters. The new " Leges," however, were classified (like Justinian's Code) into twelve books, each divided into titles, and the titles into chapters or " constitutions." Each constitution bore its royal author's name (as in the Roman codes), or noted that it had been based On the Antiqua or its amendments. But this was not the last of the Visigothic compilations. An enlarged and later one is attributed to King Ervig (680:^587), and is known as " Lex Visigothorum Ervigiana." To this Egica added some words, and his son Vitica (701-710) followed his example. The style of this work is bombastic and prolix. It abounds in moral reflections and tedious explanations. The enactments are couched as commands. But both in its latinity and its tenor it is superior to any of the other Germanic codes, — imitating, as it closely does, the Roman law and the Church's canons. For this reason it was taken as a model, and served as a^ source for several of the Codes of the other Germanic peoples. It acquired such popular vogue that it survived the fall of the Visigothic monarchy at the hands of the Arabs, in the regions where they did not penetrate. And even after their expulsion, it was restored in some places ; for example, in Cordoba, where Ferdinand III of Castile, in the 1100 s, trans- lated into Spanish its latest text, as the " Fuero " (or local code) of Cordoba. § 42. The Saxon Group. — Leaving out of present considera- tion the law of the Anglo-Saxons,^ we find in this group the laws of the Saxons and of the Frisians. The Saxon Code ^ is one of those whose origins are wrapped in obscurity. There is controversy whether it was originally com- posed as a whole, or is of diverse periods and workmanship. The 1 [The full consideration of this branch of the Saxon law in English legal histories makes unnecessary any treatment of it here. — Transl.] 2 Texts: Bichtofen, in M.G.H., "Leges," V. Treatises and Articles: Gaupp, "Recht und Verfassung der alten Sachsen," 1837; Merkel, "Lex Saxonum," 1853; Richtofen, "Zur lex Saxonum," 1868; Usinger, "Forschungen zur lex Saxonum," 1867. 52 Chap. II] LOMBARDS AND FRANKS [§ 43 latter view commends itself ; because (apart from minor difPerences) the whole first part stands in contrast to the second. The first_ jgart — " Lex Saxonum " strictly so called — consists of twenty chapters, entirely penal in form ; and represents pure Saxon law, with no Frankish traces. It must have been put into writing before Charlemagne's conquest of the Saxons. But the s econd p art — known as " Lex Francorum " — smacks strongly of Frankish law. In its phrases and rules there appear affinities with the " Lex Ripuaria " {post, § 46). The latter is expressly referred to in the " Capitulatio de partibus Saxonise " (782) and the " Capitulare Saxonicum " (797), — decrees of Charlemagne made to regulate his newly conquered territories. Subsequent to this date, there- fore, we must suppose this second part to have been compiled. The entire compilation, indeed, we may well believe to have been made in pursuance to Charlemagne's decree of 802, at Aix-la- Chapelle, ordering all the Germanic customs to be put into writ- ing {ante, § 35). Two features may be specially noted. In the first place, the .earlieiJialf reveals to us the social structure of the Saxon people. It mentions only two^ classes of persons, nobles and " aldi," i.e. half free ; the class of ordinary freemen appears as not yet devel- oped. The other feature is that the l ater Saxon law is the harshest of all ; for the death penalty is prescribed without discrimination, even for the lightest offences. Contrasting this with the fact that in the earlier part the penalties are all money-fines, the explanation seems to be that the later harshness was due to the continual state of hostility between the conquered people ajid the Franks ; so that the latter were seeking to strengthen their own control and the domi- nation of Christianity, to which the heathen Saxons were long ob- stinately recusant. Charlemagne's Saxon capitularies, though no less harsh, recognize the frequent need of mitigation by sanctioning an ample exercise of the pardoning power. § 43. The Frisian Code ^ had its home in the region between the Scheldt and the Weser (the modern Netherlands) ; the Zuyder Zee (" Flevo Lacus ") and the Ems divided it into three parts, of which the central one was dominant. This Code was likewise a composite one. The most ancient part, the " Lex Frisionum," in twenty- two titles, each divided into chapters, contains general rules appli- cable to the entire people. Then, where the northern or the 1 Texts : Richtofen, in M.G.H., "Leges," III. Treatises and Articles: Patetta, "Lex Frisionum, studi sulla sua origins e sulla eritiea del testo," in A.C.T., XLIII, 1892. 53 § 44] FROM JUSTINIAN TO FEUDALISM [PaRT I southern district follows a variant rule of its own, this is noted alongside of the general rule.. After these titles come twelve more, the " Additiones Sapientum " ; these were additions made by two Frisian elders, Vlemar and Sasmund. As to the date of this Code, the belief is that the general rules represent the earlier part, put in writing when the central district was conquered by the Franks, in 734 ; thus the variant rules for the north and south districts might have been inserted when»Charlemagne acquired the entire region in 785. The " Additiones " would of course be the latest portion, and might well have been made at the time of Charlemagne's Aix decree of 802 (above mentioned) calling for a general codification. Writings from a private hand, laws made by the king or by the assembly, and even some maxims of general learning, go to make up the text of the Code. And, as a whole, it was probably put together unofficially. Rules of divers epochs and on unconnected topics — sometimes actually contradictory of each other — are found side by side. For example (and it is a peculiarity of this Code), there occur not only laws for enforcing the Christian reh- gion, but also customs plainly pagan, such as human sacrifices for expiating the vengeance of the gods. The mixture of such incon- sistencies shows that the compilation could not have been an official one. § 44. The Suabian Group (Alamaxinic, Bavarian) . — Southern Germany, and particularly Suabia and the neighboring region, was the home of the Alamannic Code} A preface (which also is prefixed to the Ripuarian and Bavarian Codes) declares : " Theodoricus, rex Francorum, cum esset Catalannis elegit viros sapientes . . . jussit conscribere legem Francorum et Alamannorum et Baioario- rum " ; and adds that, though Theodoric's plan was not carried out, Ildebert did it, Clotaire perfected it, then Dagobert revised it, and he was the real author of the laws thus set forth. This preface, however, is not of much authority; it is lacking in the oldest manuscripts, and its statements are not consistent with what we know from other sources. Though there is here some obscur- ity, it is certain, however, that the text had its origin in two differ- ent epochs. The earlier part is the " Pactus Alamannorum," dating from the end of the 500 s or beginning of the 600 s. It was enacted by vote 1 Texts: Lehmann, in M.G.H., "Leges," Tom. V, Sect. 1. Treatises AND Articles : Brunner, " IJber das Alter der Lex Alaman- norum," in B.A., 1885; Lehmann, "Zur Textkritik und Entstehungs- gesohielite des Alamanniselien Volksreohts," in N.A., X, 469. 54 Chap. II] LOMBARDS AND FRANKS [§ 44 of the people, — as may be told from the name " pactus " {ante, § 36), and from its opening phrase, " at sic convenit." Chris- tianity is seen to have been already introduced ; and the alliance with the Franks was still vigorous, — which could not have been the case later in the 600 s. The later part is the " Lex Alamannorum," strictly so called. Its legal rules, their form, and the political conditions, all point to its later origin. The principal if not the sole author (according to the more probable view, based on the manuscripts) was Duke Lanfred, who governed from 709 to 730, when he was defeated and slain by Charles Martel the Frank. The Alamannic duchy, which then met its end, had already' acknowledged the Frankish suzer- ainty, but was in fact independent, under the then weak power of the Franks ; and had thus been able to frame its own Code, on the basis of its ancient " Pactus " and the local Customs. Some of the manuscripts speak of the " Lex Alamannorum " as composed in the time of the Frankish king Clotaire. This (unless it is merely an error based on an allusion to a Clotaire in the above-mentioned Preface) is explainable as meaning Clotaire H, who reigned 613- 622 ; he may have made the original text, and Duke Lanfred may merely have revised this. But this assumption of successive com- pilations is not tenable. The political and other facts of the period, and the obvious unity of form, prevent us from referring the " Lex " to the time of Clotaire II. The earlier " Pactus " may indeed have been composed under his orders ; but this cannot be verified. If, in order to account for the Preface's mention of a Clotaire, we are to attribute the " Lex " to any Clotaire at all, it must be Clo- taire rV, a contemporary of Duke Lanfred ; and on this assumption the date could be made more precise, for Clotaire IV reigned 717- 719. The Alamannic Code, as to its contents, falls into three parts. The first, cc. 1-23, contains " causae ecclesiasticse," i.e. the eccle- siastical law. This was moulded to favor the Church's interests ; although, since the time of the " Pactus," the Church had been influential. The ecc'esiastical form for freeing slaves is here given, which in Italy was not recognized until Liutprand's time. The second part, cc. 24-44, covers public law, " causae quae ad dueem pertinent." In the last part, cc. 45-98, comes private law, " causae quae ssepe solent cohtingere in populo." The remaining chapters, cc. 99-104, were added to Lanfred's original text, in the manner usual in the Carolingian period, and were probably a con- sequence of Charlemagne's general decree of 802, already mentioned. 55 § 45] FEOM JUSTINIAN TO FEUDALISM [ParT I § 45. The Bavarian Code,^ in contents and in form, is closely related to the Alamannic ; and it bears the same preface, — which is not trustworthy, as already noticed. A peculiarity of the Bavarian Code is its mingling of parts of different Germanic sys- tems, and its variances of form. This feature, while it does not go far to help us in fixing the precise periods of the Code's origin, enables us to realize the diversity of peoples represented in it. The contents reveal, in the first place, an element of Bavarian law, i.e. the native rules of sundry Bavarian tribes ; this part gave rise to the name " Pactus," by which the Code was also known. Then there is a large element of foreign law. The Alamannic rules (from Lanfred's compilation) here" predominate. The Prankish rules are most used for the public law ; for the Bavarians were then subject to the Merovingian crown. The Visigothic rules are also represented; this is explainable by the relations of the Bavarians with the provinces of southern Gaul (which belonged to the Visi- gothic kingdom) ; the compilers could thus have obtained the text of the Visigothic Code, — not Recesvind's revision (ante, § 41), but the tejft in force before the separation of southern Gaul. The Lombard Edict also is found in analogous rules; and this is ac- counted for by the intimate relations of kinship and interest be- tween the two dynasties and peoples. Pinally, the influence of the Church's law is not without its marks, as seen in the adoption of the Church council's rules for the clergy ; this is explainable by the reforms in the system of the Bavarian church which we know to have taken place about the time of the Code's compilation. However, though these various elements may have had their origin at periods by no means identical, it is certain that their compilation into this single text must have been made about the middle of the 700 s. This period is fixed by the circumstances that the Merovingian dynasty was still on the throne (though the " mayors of the palace ") were already wielding the power) ; that the Alamannic Code of Duke Lanfred must by that time have been compiled; and that Duke Tassilo (749) could not yet have been governing Bavaria, because he made additions to the original Code and his contemporaries attributed it to his pred- ecessors. These additions of his were chiefly two decrees, made with the Assembly's approval in 772 and 774, and serving to com- > Texts: Merkel, in M.G.H., "Leges," III. Treatises and Articles: Gengler, "Beitrage zur Rechtsgesehiohte Bayerns," 1889; Merkel, "Das Bairisohe Volksreoht," in P.E., XI, 1858; Riezler, "Ueber die Entstehungszeit der Lex Baiuvariorum " in F.D.G., XVI. 56 Chap. II] LOMBARDS AND FRANKS [§ 46 plete the Bavarian Code. But the Code is also regarded as in- cluding two capitularies made by Charlemagne in the first years of the 800 s, introducing new provisions and giving instructions to the circuit justices sent into Bavaria by him. § 46. The Prankish Group (Thuringian, Chamavian, Ripuarian, Salic). — The Franks were the people who prevailed ultimately, and brought into subjection the greater part of all the Germanic population. Their rule covers the longest span in the period known as the " barbaric," i.e. Germanic. Naturally, their legal system would be the most important and most widely diffused. Never- theless, their history is so far from being clear and free from con- troversy that on many points it can only be supplied by conjecture. This group of peoples has bequeathed to us, first and foremost, the Sahc Code, to which must be added the Codes of the Ripuarians, the Chamavian Franks, and the Thuringians. The Thuringian Code ^ was known also as that of the Angli and Verini, because originating in their part of Thuringia, around Unstrutt, on the Saal and the Elster. It has most affinity with that of the Ripuarian Franks, who dwelt in the neighboring region, halfway down the Rhine. It is the shortest of all the Germanic Codes. The first part, in twenty-five articles, is entirely of a penal nature. The second part, in six chapters, deals with heritable possessions (" de alodibus "), theft, burnings, killing of freemen, deeds of violence, and minor matters (" de minoribus causis "). The Code belongs, in its final form, to the Frankish period, prob- ably 802, when Charlemagne ordered the general revision of the tribal laws. On the north of the Ripuarians, in the region then called Hama- land, belonging to the Chamavi, a special Code was in force, known as the " Lex Francorum Chamavorum," or the " Ewa, quae se ad Amorem habet." ^ It is a system arising out of the overlapping of the systems of the several peoples who were there contigu- ous, i.e. the Ripuarians on the south, the Frisians and the Saxons on the north. This Code, in forty-eight articles, is merely a " notitia " or " memoratio," i.e. a memorandum made by the royal justices sent there on circuit, in pursuance to the order of Charlemagne. 1 Texts: Riehtofen, in M.G.H., "Leges," V. Treatises and Articles: Gaupp, "Das alte Recht der Thiinnger," 1834. 2 Texts: So^TO, in M.G.H., "Leges," V. Treatises and Articles : Froidevaux, "Etudes sur la lex dicta Fran- corum Chamavorum," 1891 ; Zoepfi, "Die Ewa Chamavorum," 1856. 57 § 47] FROM JUSTINIAN TO FEUDALISM [PaHT I The Ripuarian Code ^ is a more important one ; but the history of its compilation is more obscure, and is still in controversy. Two periods can be distinguished. One part, from chapters 1 to 31 and 65 to 79, contains an original compilation, and is perhaps the older. The other, from chapters 32 to 64, borrows so much from the Salic Code that it is perhaps merely a reediting of it. As to its period, it belongs certainly to that of the Merovingian kings. The preface (which is the same as that of the Alamannic and the Bavarian Codes) may be correct in attributing its compilation to successive authors, from Theodoric (son of Clovis) to Dagobert, i.e. from the first half of the 500 s to that of the 600 s. Later than this it cannot be ; for some of its provisions show that, when it was written, the royal court of France had not yet experienced that internal revolution which gave to the " mayors of the palace" the actual royal power and afterwards placed them on the throne and supplanted the Merovingian dynasty. At a later period it is possible that the original text received additions. Some of these are of Carolingian origin; there is indeed a memorandum of a " capitulare legi Ribuariae additum," which might well have origi- nated at the Aix general assembly of 802, already mentioned (ante, § 35), where Charlemagne planned to introduce needed amendments into all the tribal Codes. § 47. The foundation Code for all of the Prankish ones is that of the Salic Franks, the " Lex Salica." ^ It is the oldest written Germanic Code that survives. Its only rival in antiquity is the first Visigothic Code, assuming that the author of the latter was Euric {ante, § 41). From its prefaces and endings, and from the numerous texts, this much appears substantially certain (in spite 1 Texts: Sohm, in M.G.H., "Leges," V. Treatises and Articles: Mayer, "Zur Entsteliung der lex Ribuari- orum," Munich, 1886; Rogge, " Observationes de peculiari legis RibuarisB cum Sahoa nexu," 1823 ; Sohm, "Ueber die Bntstehung der lex Ribuaria," m Z.S.S., V, 380; Ficker, "Die Heimat der Lex Ribuaria," in M.O.G.F., V, 52. 2 Texts: J. F. Behrend, "Lex Salica," 2d ed., by R. Behrend, 1897; Geffcken, "Lex Salica, zum akademischen Gebrauch," 1898; Holder, "Lex Salica, nach dem Codex Lescurianus," 1880; Hubi, "Lex Salica," 1867; Hessels and Kern, "Lex Salica," London 1880; Merkel "Lex Salica," Berlin, 1850; Pardessm, "Loi salique," Paiis, 1843. Treatises A>fD Essays: Clement, "Die Lex Salica und die Text- glossen," 1843 ; id., " Forschungen tiber das Reoht der salischen Franken," Berlin, 1846; Gaudenzi, "La legge salica e gli altri diritti germanicii" Bologna, 1884; id., article on "Legge Salica," in the "Digesto Italiano" ■ Grimm, "De histona legis Salieae," Bonn, 1848; Hartmann, "Beitrage zur Bntstehungsgeschiehte des salischen Rechts," in F.D.G., XVI, p. 609; Thonissen, " L'organization judiciaire, le droit penal, et la procedure p6nale' de la loi sahque," Paris, 2d ed., 1882 ; Wailz, "Das alte Recht der sali- schen Franken," 1846. 58 Chap. II] LOMBARDS AND FRANKS [§ 47 of controversies), — that the Code was in the beginning a law made by the people (a " pactus " established by common accord in the popular assembly, according to Germanic tradition) ; that this first compilation collected the ancient customs, after inquiry by skilled persons charged by the assembly to ascertain and record them ("omnes causarum origines ") ; and that this first compilation was then many times revised, amended, and enlarged, from the time of the early Merovingians to Charlemagne, whenever the changes of social conditions made it seem expedient. The period of this first reduction to writing cannot have been far from the second half of the 400 s, that is, at the time of Clovis' conquests in Gaul, which may well have led to the making of the compilation. The Code alludes to the Loire as the boundary of the kingdom, and the Franks had not reached that boundary till after Clovis' victory, in 486, over Syagrius (the Roman general who had set up a kingdom in northern Gaul). Moreover, the Code must have been made before the conversion of Clovis and his people to Christianity in 496 ; for it preserves traces of paganism and shows no Christian influence. After the conversion, the clergy acquired a share in power ; the monarchy was consolidated ; the conquered Romanic-Celtic population and their conquerors were brought into closer intimacy. These causes, and the expan- sion of Prankish dominion (following the victories over the Visi- goths of the south in the early 500 s), forced Clovis to revise the national law to suit the new conditions. Numerous revisions ensued, continuing into the imperial epoch under Charlemagne in the early 800 s. Sometimes the text itself was altered ("lex salica emendata "), sometimes separate capitularies were added (ante, § 31). The Salic Code is accompanied by some " glosses " (marginal comments) known as the Malbergian Glosses, because of the rubric "mall" or " malb " which marks them. The meaning of this term has been disputed. The better view is that it stands for " malloberg," i.e. the assembly or popular court ; thus the glosses would be practical instructions for applying the laws to suits at law. They contain many Frankish words which in course of time ceased to be understood and have been handed down t lar, contemporary, and general ; and to be general, the feudal cus- tom must be " regni et loci," i.e. applicable in the local region as well as in the kingdom. But two further and novel distinctions were recognized, at the period we now are considering : (1) Customs might be " bona " or " mala " ; hence, the rule that a custom, to be valid, must be " reaso nable." An unreason- able custom, to be sure, is hardly conceivable, and was not sanc- tioned in Roman law. But in medieval usage, " reasonable " here had a special sense, viz. " in harmony with Divine reason " or " justice." ^ This might be estimated from ajtriple point of view; for Divine reason was conceived to imply a triple standard. The first is that of revelation, i.e. the law directly given fromjjod. The second is that of the Church, i.e. the canon law, which is needed for fulfilling the Church's mission and thus shares in the Divine nature. The third is termed " natural law," i.e. common to the natural sentiments of all men ; it consists of certain principles of moral rectitude universally acknowledged; and, as man de- rives his nature from God, so this " natural law " is a manifesta- tion and" application of the supernatural law. This supposed conformity to natural law had been originally an attribute con- ceded only to the Church's law ; but the Church's influence in the formation of the civil law had easily led to the extension of the idea. (2) From the foregoing distinction as to customs " bona et mala," developed another, of great consequence, namely, that of customs approved or not approved (" probata et non probata "). This had been unknown in either the^oman law or the Germanic law. The people, in both of those, had held the supreme legisla- tive power ; but on the medieval theory that God in heaven had 1 ["Ragjone divina," in Italian, as derived from the medieval Latin use of ''raJio7' conveys a strong double meaning, not at all represented in our words "reason" and "reasonableness," For "ragio" also means "justice ," e.g. "far ragione" is "to do justice"; "palazzo di ragione" is the old term for "courthouse" in many Italian towns. Thus the notion of "divina ratio'.' is a combination of "reason and justice." — Transl.] 78 Chap. Ill] THE FEUDAL PERIOD [§ 66 fixed a standard of justice, to which popular practice must con- form, it followed inevitably that this conformity must be made to appear, before the custom could be held valid. And this could only be by means of the approval of either the Church or else the Mng (for the king's authority, on the Church's teaching, was itself delegated from God). Thus arose the general rule, — enforced in all countries and even after the feudal period, by the bulls of popes and the enactments of kings and emperors, — that a cus- tom, to be valid, must be an approved one. Sometimes, indeed, a custom might even be explicitly,^ dis- approved. Pope Calixtus, at Rome, in 1122, disapproved the custom that the city prefect in Lyons should take by escheat the ^estate of inhabitants dying intestate without children. Eugenius IV, in 1228, condemned the custom at Raven na for the commune to take title to the archbishop's personalty on his death. Otto I forbade what he called the " mos detestabilis in Italia impro- busque non imitandus," viz. the custom of authenticating, a dis^ puted - document by a single _oath, — a frequent occasion of perjury. Frederic II did likewise for the " ji^ naufragii," or cus- tom that shipwrecked goods might be seized by the first-comer as his own. This rule that a custom must be an approved one was beneficent, in that it helped in repre ssing abuses of power or mistakes of ^gngranee which in the prevailing social conditions would easily have spread and become fixed upon the law. Moreover, it sub- jectedjthe locaHaw to the constant supervision of the State or the Church ; whereas under feudalism the tendency had been to evade both, and to weaken social bonds as well as to break up the unity of law. It thus reop^nedJJiejoadJ^losed^by feudalism! for the lajpjtojie influencedby the Roman (or, imperial) and Canon law. Therein the law by its own principle prepared the means for its improved development. § 66. Custom, which thus had obtained a far stronger status than before in the law, served ordinarily to supplement the written law. A capitulary of Pepin affirms, " Ubi Tex deest, prsecellat consuetudo, et nulla consuetudo superponatur legi." ^ The second part of this rule, thit custom cannot prevail over written law, had suited well enough the conditions of the Carolingian ^ Empire in the 800 s when the imperial authority was the supreme source of law. But in the feudal period the rule had ceased to correspond to the conditions of the times. Custom had 1 "Capitula italiea," 35. 79 § 67] FKOM JUSTINIAN TO FEUDALISM [PabT I overleaped its former restrictions, and had taken anjndependent place alongside of written law. Hence arose an important con- sequence in the law's development. The ancient surviving legis- l lation was modified ; customary law, for a while lacking in definite rules, soon became consistent and definite in the places where it arose ; and this customary law, formed among the various peoples out of the various elements of their local life, began to be itself the highest object of study and of legislation. It was arranged, defined, and amplified ; and thus, after long labor-s, it became the basis of the legislative systems. This enables us to see how the law of Europe now lost another of its marked earlier features, namely, the principle of personality {ante, § 48). The new bodies of law could not possibly be personal, as were the systems of the nomadic tribes of Germanic stock. Custom, which is to vary the law, must rest on the demands made by new conditions, and must consist in habitual acts of the com- munity ; and thus custom cannot be personal, but must apply to all who live in common under those conditions. Distinctions of race were bound to disappear, and the law was bound to be re- constituted on_ a- territorial basis . This great consequence niust now be further examined. Topic 3. The Territoriality of Laws § 67. Causes leading to Territoriality. — Throughout, the feudal period we can perceive coming to a head the various causes which led finally to this abandonment of the principle of personality for that of territoriahty. There were several. In the first place, undeHeudalism the main conditions which had given rise to the principle of personality had now ceased to exist. The races had been niingled_jegionally. New regional languages had formed. Customs were growing upon national lines. The life of wandering conquest had given place to a fixed home life ; homes bred patriotism and a sympathy for fellow-countrymen. A single religious faith had replaced the struggle between Chris- tianity and Paganism. How could the law remain diverse as to persons ? It was bound to become uniform for all who lived within the region, — in short, to become territorial. ^ This would of course take place by gradual growth. The first signs are seen in a certain vacillation and interchange of rules between different personal systems. Starting timidly, and in- creasing with the pressure of daily needs, this ends finally in the 80 Chap. Ill] the feudal period [§ 68 domin ation of one particular rule. This process of substitution of onerule^instead of many was of course going on all through the feudal period. Yet it had already the germs of development under the system of personality, which had sometimes imposed a single rule when the puhlicjnterest required {ante, § 55), or when the transaction a-dmitted of nothing else {ante, § 54), or when an estate of laiid was involved {ante, § 54), or when imperial statutes applied {ante, § 30). Other causes, too, conspired to solidify the law territorially. A better knowledgeol the. diverse legal systems had assisted. Many officials were obhged to be acquainted with them. Notaries were required, by a decree of Liutprand {j)ost. Part II, § 1), to be able to draw legal documents by Roman or by Lombard law. The lay judges (" scabini," " schoeffen ") must be acquainted with the differing systems, and manuals had been compiled for their as- sistance; these, indeed, tended often to confuse and mingle con- flicting rules whose original reason had been forgotten. Moreover, the feudal political system tended to territoriality. In spite of the fact that feudalism rested on personal loyalty of vassal to lord, and that every castle (it might almost be said) had its law, nevertheless within each fief differences of race were lost sight- oii Romans or Germans, — Lombards, Franks, or Saxons, — all were but vassals within the fief, with the same rights and duties to their lord. And beneathjthe entire network of fiefs lay^ajcommon feudal law. The legal principles of tenure, vassalage, immunity, royal power, homage, chivalry, military service, — all these, how- ever variant in the several fiefs, rested on general principles, which were of vast extent and in no sense personal. Add to this that the only classes of population not governed by these rules of feudal allegiance were being welded by equally strong group-interests, — the cultivators of the soil, whose customs were naturally territorial ; the citizens_ofjthetowns, whose customs were also local, and in Italy most y Roman ; and the e cclesias tics, who of course had the Church's law. For the cultivators of the soil, it is plain that the system of personality could not long endure. For the other two classes, it is enough to note that in each instance there was an element of universality which would gradually sub- ordinate the personal to the territorial principle. § 68. Dominance of the Territorial Principle. — And so it came to pass. Everywhere law became territorial and locally uniform. In each region one or another of the systems of law dominated. Local conditions, particularly the projjortiona of the various races, 81 § 68] FROM JUSTINIAN TO FEUDALISM [ParT I determined which one it should be. This is seen most plainly in France; in the southern provinces the Romanesque system pre- vailed; in the northern, the Germanic system (which indeed had been the fact since the 800 s). In Italy the movement was slower and less marked. The first to lose their status there were those Germanic systems which had been imported only by virtue of the principle of personality, and represented elements of population which were small in number and alien to the soil. , For the Lombard la,w, however, the opposite result took place. The Lombards had settled down in the northern regions and adapted themselves to the country {ante, § 16), and when the time came that one system of law must yield to the other, theirs was the one to pre- vail, — not only over the other Germanic ones, but also in many parts over the Roman law. In the various parts of Italy, the issue of the struggle was a varied one. In Rome and the vicinity, where Roman law had always dominated, its territorial force was recognized by the beginning of the 1000 s. Such also was the result at Venice and Ravenna, where the Germanic authority had always been less than elsewhere. In northern Italy, the Lombard law generally prevailed; as also in some of the western-central regions (at Lucca, for example), and even more notably in those parts of the South where the Lombard rule survived (for example, in the duchy of Benevento, post, Part II, § 25). But in southern I Italy the principle of personality lasted much longer than else- where ; the Normans had accepted it, and neither the Suabian nor the Angevin dynasties could abolish it ; so that personal law was there permitted, except where it conflicted with public interests. It must not be supposed, however, that the territorial systems did not retain and incorporate much from the personal systems which were supplanted. A system of law which maintains all of its rules permanently unimpaired never existed. The Roman law itself had become popularized {ante, § 10), just as Roman Latin had become Italian; the Lombard law also suffered Romanizing changes {post, Part II, § 3). Legal practice tends always to adapt itself to current conditions not yet recognized by the written law. And, in general, laws of a prior epoch never survive precisely in their original form, except by force of scientific study and as gen- eral principles. So that the new principle of territoriality must be understood to have become absolute only in the sense that it re- placed the principle of personality. The actual extent of the various specific rules was purely relative. Thus there were as many territorial systems as there were fiefs in Europe. In the ensuing 82 Chap. Ill] the FEUDAL PERIOD [§ 69 period, when (In Italy) the cities became the unit of dominion, each small communal region had a territorial law of its own. It was only in still l ater periods, when large States were formed, that a territorial law expanded in authority, and finally could be termed a national law. § 69. All this movement of law from one type to another is faithfully reflected in the " professions " of law which had come into vogue under the principle of personality {ante, § 51). Gradually becoming scantier, they finally disappear entirely. For some time after the growth of territorial uniformity had rendered them unim- portant and really needless, they persisted in the traditions of notarial practice, but only as the relics of a system destined to ex- tinction. The last of them (except the mere forms surviving in notaries' books) are seen to be merely the final symptom of the resistance of the old order to the new, in those regions where the very vigor of the minor racial elements destined them, to complete extirpation. They represented merely exceptional cases, where the presumption would otherwise have enforced territorial law. They were no longer of varied tenor, but usually represented the par- ticular system which had longest survived in the struggle against the dominant law now. become territorial ; at Rome, for example, there might be found "professions" of Lombard law ; in the Lom- bard cities, " professions " of Roman law. Nor were these " pro- fessions " now, as they were originally {ante, § 52), merely a declara- tion of a man's own law which he was obliged to follow. In the old days, a man could not change his law ; he merely declared which of the various systems of law he belonged to. But now he was merely entitled by special circumstances (for example, if he was an ecclesiastic) to avail himself of a special law variant from the com- mon law. Thus it came to be, in^these last examples, rather a privilege of electing between a personal law and the common law. And indeed the very formula of the document came to read " eli- gere" instead of " profitere." The common law was now a terri- torial law. 83 Part II ITALY First Period (A.D. 900-1100) : Italy during the Middle Ages. Second Period (A.D. 1100-1700) : Italy during the Re- . nascence. Third Period (A.D. 1700-1900) : Italy in Modern Times. -\ Chap. I] THE MIDDLE AGES [§ 1 Chapter I.^ First Period: a.d. 900-1100 ITALY DURING THE MIDDLE AGES Topic 1. The Roman Law i 1. Persistence of Roman Law. j 2. Roman Law under the Caro- lingians and Feudalism. j 3. Influence of the Roman Law. § 4. Relative Influence of Later and Earlier Roman Law. § 5. Progressive Stages of In- fluence. Topic 2. The Church's Law I 6. The Church's Influence on [ § 7. Efieot of the Church's Influ- Secular Law. | ence. Topic 3. The Science of Law i 8. Rise of Legal Learning. I 9. The Schools of Law. i§ 10, 11. Schools of Lombard Law. § 12, 13. Schools of Roman Law. 1 14. Legal Treatises. §§ 15-17. Treatises on Lombard Law. §§ 18, 19. Treatises on Roman Law. §§ 20-22. Formularies and Docu- ments. Topic 1. The Roman Law^ § 1. Persistence of Roman Law.^ — There was at one time a belief, supported by some historians, that the Roman law, as a law effectively in vogue, had ceased to exist during the Germanic rule ' [This Part is a translation of Professor Calisse's "History of Italian Law," vol. I, in part. For the citation of that work, and an account of the author, see the Editorial Preface to this volume. — Tbansl.] " [§§ 1-5 = Calisse, part II, title IV, chapters I, II, §§ 70-76, pp. 120- 133. — Tbansl.] 'Bibliography to this Topic: Salvioli, "Manuale," part II, c. 16; Schupfer, "Manuale," sect. I, tit. 1, §2; Savigny, "Geschiohte," passim; H. Fitting, "Melanges Fitting," 1909, and article in Z.S.S., VI, 94 (1885) ; Patetta, "Contributi alia storia del diritto romano nel medio evo," in B.D.R., years III and IV; id., "Per la storia nel medio evo," in R.I.S.G., XII, 1891; Conrat, " Geschiohte der Quellen und Literatur des romischen Rechts im friiheren Mittelalter," Leipzig, 1889-1890; D'Asti, "DeU' uso e autoritS, della ragione civile nelle provincie dell' impero oceidentale," Naples, 1841 ; Grandi, " Bpistola de Pandectis," Flor- ence, 1727; id., "Vindiciae pro sua epistola de Pandectis," Pisa, 1728; Tanucci, "Epistola de Pandectis pisanis," Florence, 1731; id., "Difesa seconda dell' uso antico delle Pandette," Florence, 1729; /. Flach, "Etudes sur I'histoire du droit romain au moyen age," 1890. [The names of Fitting and Flach are inseparably associated with the modem achievements on this subject. The "Melanges Fitting" contains contributions by various scholars as a memorial to Professor Fitting. — Tbansl.] 87 § 1] ITALY [Part II in the feudal period of the Middle Ages. But the incorrectness of this belief was long ago demonstrated by the great Muratori, and (in the 1700 s particularly) by Donato D'Asti, and by the mathematician Guido Grandi, who carried on a long polemic with Tanucci. Finally, in 1822, Savigny's masterly work (on the " History of Roman Law in the Middle Ages ") put an end forever to this error. ^ It is no longer a living issue. But the reasons for the fact as now accepted may be briefly stated. In the first place, the degree jjf culture represented by the Roman law (as compared with the Germanic law) points a priori to its persistence. The Roman population could not possibly have been subjected to a system so crude, incomplete, and alien as that of their conquerors. The Visigoths in Spain and the Burgundians in France had left to the Roman population its native law, by pre- paring special codes different from the Germanic ones (ante, Part I, §§ 8, 9) : and the Lombards' failure to make such a Roman code indicates that they left the Roman law untouched.' Although the Lombard kings had declared the entire population to be subject to the Lombard Edict (ante, Part I, § 22) ; yet the Edict was not a complete code, and the existing Roman law could have remained in force, except where expressly altered by some rule in the Edict. This was the case with the native Lombard ( Germanic) law itself. And in fact the Edict itself shows that its provisions were meant to apply in varying scope ; for some of its sections begin broadly, " Si quis homo," while others begin " Si quis Langobardus," and others, " Si quis Romanus." Even its section about " foreigners' law " (though this signified other Germans, not Romans), which has . sometimes been cited to show the abolition of Roman law pro- vided merely that foreigners should be under Roman law, but that the king might by special permission sanction their own special law ; ^ why therefore could not the natural demand for the recognition of Roman law have been satisfied under this provision? In the second place, the Church's powerful influence went to protect the use of the Roman law. This was a matter of self- preservation. The Lombards were not Catholic Christians on their arrival in Italy ; and even after their conversion, they showed no political favor to it. But they left unharmed the Church's patrimony, privileges, and laws ; and this was hardly possible, if the Roman law had been abolished. ' [See the further account, post, § 41, note 2, where Savigny's passage is quoted. — Transl.] ' Rothar, " Edictum," 367. Chap. I] THE middle ages [§ 2 Other facts furnish concrete evidence of the continued life of Roman law. General legislative expressions, for example, from Rothar's time, show this, by their frequent reference to the " per- sons subject to Lombard law," which implies that other classes of persons were under another law. Particular provisions point the same way. In Liutprand's amendments, for example, when a Lombard took orders in the Church, his children were to remain under their native law,^ — showing that he himself went under another, i.e. the Roman law of the Church (ante, Part I, § 53), and that the latter would have controlled the children but for this provision. Another statute provided that if a Lombard woman, widow of a Roman, married again without consent of her relatives or Lombard formalities, the usual Lombard penalties should not follow, because by the first marriage she was under Roman law.^ Still another statute provided that notaries should not draw up documents in any forms but those of Lombard or of Roman law.* All these circumstances, and many others to be gleaned from the notarial documents and judicial decisions of the times, make it unquestionable that the Roman law remained continuously in force among the Roman inhabitants ; except in matters expressly con- trolled by Lombard law alone (ante, Part I, § 56). § 2. Roman Law under the Carolingians and Feudalism. — Under the succeeding rule of the Frankish Carolingians, Roman law not only fared no worse, but obtained greater influence. The Imperial theory now gave it a chance to affect public law. The ^Church's increased authority gave it official standing. Under the system of personality of law (ante, Part I, § 48), it ceased to be merely tolerated ; it obtained equal rights, and thus its intrinsic merits had freer scope. The universal jurisdiction of emperor and pope gave its experts a judicial status. And the common in- terest of Empire and Church to maintain the Roman law is seen in Leo IV's message of 847 to Lothair : " Vestram flagitamus cle- mentiam, ut sicut hactenus romana lex viguit absque universis procellis et pro nuUius persona hominis reminiscitur esse corrupta, ita nunc suum robur propriumque vigorem obtineat." It has been thought, by some, that the feudal epoch was not favorable to Roman law. But this is an error. In the first place, Roman jelements are to be seen both in thetenures and injt he per- I Liutprand, ibid., 153. ^ Liutprand, ibid., 127. 3 Luitprand, ibid., 91. Some see in this rule merely the mitial recog- nition of Roman law: Troy a, "Delle condizioni dei Romam vmti dai Longobardi," § 141 ; Fertile, "Storia," § 6. 89 § 3] ITALY [Part II sonal allegiance of the feudal systems. The holding of land for a special purpose, the dependence of one person on another, the connection between rights and economic conditions, the union of public authority with property rights, — these all had precedents in Roman law. In the second place, the Empire, while repeatedly struggling on the one hand to renew its authority over the feudal princes, and on the other to repel the Church's claim of supremacy, was obliged to fall back on the Roman law for its support. The Ottos, indeed, who were foremost in this effort, favored the Roman system so far as even to plan the renewal of the seat of empire at Rome. In the third place, it must be remembered that the cities were mostly not under the feudal system ; and these not onlyTiad" mainly Roman law, but sought to eliminate the Germanic ele- ments, in their struggle for communal independence. Thus, when the territoriality of law {ante, Part I, § 67) became estab- lished (and it came about first and most fully in the cities), it found the Roman law there decidedly dominant. And so, alike throughout the Lombard, the Carolingian, and the Feudal epochs, in one way or another, but constantly, the Roman law is found surviving among the people, and stimulating tendencies of progress which the times developed. § 3. Influence of the Roman L'aw. — We have already noticed {ante, Part I, §§ 28 S.) some of the ways in which an indirect in- fluence was exerted by the Roman law upon the Germanic peoples. Its influence helped to lead to the system of personality ; to the re- duction of the Germanic systems into writing ; to the development of the imperial power; and, later, on the revival of the system of territoriality, it disputed with Lombard law for the suprem- acy in Italy. Some particulars of its direct influence remain to be noticed. The Lombard Edict {anie. Part I, § 17), is full of its textual traces.^ In the preface to Rothar's Edict, one of the plainest evi- dences that he took for his model Justinian's seventh Novel (which had as its legislative purpose to amend and unify former laws), is seen in this passage, borrowed literally : "Ob hoc neces- sarium esse prospeximus presentem corregere legem, quae priores omnes renovet et emendat, et quod deest adiciat, et quod super- fluum est abscidet." Justinian's compilers could use this lan- guage with propriety ; but not Rothar's, for there were no prior laws of his to correct, renew, and amend. This literal copying 1 Del Givdice, "Le tracce di diritto Romano nelle leggi Longobarde,", Milan, 1889. ' # 90 ^ Chap. I] THE MIDDLE AGES [§ 4 of the Roman text, without regard to its real appropriateness, shows that the Roman laws were not only known and used by the Germanic conquerors, but were given great . authority, and an almost superstitious veneration. Even the title of the Lombard Edict, which, as already noted {ante. Part I, § 17), had for them no such applicability as it had for the Ostrogoths, is explainable only as a blind imitation of Roman terms. And a plain indication of the fruitful possibilities in adopting Roman legal usages is seen in Rothar's institution of the royal notary, Ansoald (a German, as his name shows), whose certified copies should be the sole method of authenticating the edicts ; for this was a direct adoption of a Roman institution. More profound, and more notable for the history of the law, was the influence on the tenor of Lombard legislation. The capacity of the primitive Lombard law to satisfy the complex and expanding needs of Italy was due to theHoman la-w, and its pervasive" m^ fluence on the Lombard legislators. Not only in public law, but also in the private law of daily life in all classes, was this seen. Testamentary succession, female inheritance, prescriptive title, transfer of ownership, marriage, mortgage, obligations, possession, usufruct, guardianship, — these and many lesser legal ideas and methods were introduced or modified through the Roman law. The commentators on the Edict cited continually the books of Justinian, which indeed became virtually one of the sources of Lombard law. § 4. Relative Influence of Later and Earlier Roman Law.^ — But this influence of Roman law was exercised, as already observed {ante, § 12), not solely by the texts of Justinian's books, but also by the earlier compilations, chiefly the Theodosian Code, which had already a European vogue before the arrival of the Germanic tribes. Thus we find often that the Lombard legislation, in accepting Roman rules, follows the earlier one, and not that of Justinian. For example, Astolf's statute ^ that a widow on re-marriage loses her life-estate followed a decree of Valentinian, Theodosius, and Arcadius ; and not the later rule of Justinian,' which forfeited the life-estate only when the first husband had expressly so provided by will. Marriage between cousins had been permitted by Justin- ian ; * but the Lombard Edict forbade it,* following the earlier Roman rule of Theodosius.* And besides other like instances, we 1 [This section has been abbreviated from the original. — Transl.] 2 Astolf, "Edietum," 14. ' "Novellae," XXII, o. 32. * "Instittttiones," I, 10, § 4. * Liutprand, "Ediotum," 33. 6 "Codex Theodosianus," III, 10, c. 1. 91 I 5] ITALY [Pakt II find the forms of documents, the technical clauses, and other features, recalling constantly the earlier Roman law, and showing how it had remained well known and in daily use in Italy, independently of the compilations made by Justinian's jurists at his headquarters in Constantinople. § 5. Progressive Stages of Influence. — The influence of the Roman law, thus penetrating as a social force, far stronger than the Germanic conquerors could have wished or expected, was of course for a long period limited and gradual in its effects. Public law did not feel it seriously, until the Germanic Empire arose. Criminal law was for a while exempt, for Romans were tried in the courts of their conquerors ; until under the system of personality the Roman accused became triable by his own law. - Private law was at first the main field of influence; and here it was applicable only to Romans, or (under the system of personality) to others who elected to live by Roman law. This much of scope, however, sufficed to keep it alive and strong, in a period when all jelse of Roman culture had been submerged. And this much sufficed also as a basis for its latent and wide influence, until that later period when it invaded aggressively the field of the competing systems, and finally arrived anew at a complete domination. Topic 2. The Chxjkch's Law^ § 6. The Church's Influence on Secular Law.^ — If the Roman law handed down from prior generations was thus influential on the Germanic legislation in Italy, much more so would be the con- temporary law of the Church, whose power daily waxed and spread. The mere contact with the Roman population would have tended to this. The codes of Theodosius and of Justinian contained many principles of Church law. Most of all, the papal authority availed. As long as the Lombards adhered to the Arian schism, nothing of this was seen, — in Rothar's Edict, for example. But when they became Catholic (in the early 600 s), their legislation became permeated with ecclesiastical ideas. And the Church, in- deed, deliberately sought to impose its ideas on society and on the law. The means and modes of acquiring this influence were diverse. > [§§ 6, 7 = Calisse, part II, title IV, §§ 77, 78, pp. 133-139. — Transl.] 2 Calisse, "Diritto eoclesiastioo e diritto Longobardo," Roma, 1889; Tamassia, "Langobardi, Franchi, e chiesa romana," 1889. 92 Chap. I] THE MIDDLE AGES [§ 6 In the first place, clerical personages were frequently compilers of the laws. They~too£^art in the assemblies; represented superior culture; had a monopoly of Latin, which was alike the language of legal and of churchly records. Furtherniore, these clerical compilers had directly at hand the texts of the Church's statutes. Sometimes they expressly refer to these canons for their reasons.^ The Capitularies continually reveal such instances. Moreover, in collating the statutes annually passed by the popular assemblies, the compiler would note the current ordinances of the Church councils touching the same subjects. Here again the period of the Carolingian Capitularies shows the most frequent examples ; but even in Liutprand's time we find in one of his enactments, which aimed to suppress the popular superstitious customs, the very language of a Church ordinance recently passed.^ Finally, we find the papal authority directly urging the adoption of some Church rule. Liutprand, for example, when enlarging the number of impediments to marriage, avows that the pope has exhorted him to it.^ The revival of the Western Empire under Charleinagne increased this~lnode^f influence. Otto I's well-known statutes against wager of battle, for example, were passed after consulta- tion with Pope John XIII.* Nor were the Lombards averse to this ecclesiastical influence. The Church was, of course, in any case a power in the community. But two special motives were added. In the first place, their religious sentiment impelled them. As a primitive Germanic people, they had a tendency to mysticism. As new converts, they had enthu siasm for the Church. In the second place, politica L interest drew them to the pope ; for he was at war with their enemies the Byzantines, and he was powerful with their subjects the Romans. And though this policy failed ultimately, it seemed to promise success while they followed it. To accede to the Church's desire for the legislative sanction of Church principles was a plain dictate of that policy. When jhe Frankish dominion followed, the same motives became even stronger. And thus,'irtEeir religious zeaTwasltio longer so great, at least their political interest served to keep the way open for the papal influence on the secular law. 1 E.g. when Liutprand is extending the prohibition against blood-rela- tives' marriage so as to include the wife's sister, as well as the brother's wife, he declares that the canons also make no distinction : "quia eanones sic habent de duabus sororibus sicut et de duobus fratribus,'' No. 32). 2 No. 84 : Council of a.d. 721. 'No. 33: "papa urbis Romanes per suam epistolam nos adortavit, ut tale coniugium fieri nuUatenus permitteremus." * Padelleiti, ."Fontes," p. 438. 93 § 7] ITALY [Part II § 7. Effect of the Church's Influence. — The result of this in- fluence was that a general spirit of eeelesiasticism came to domi- nate in legislative ideas and expressions. For example, Rothar's Edict had declared its aim to be the maintenance of public order, repressing the unruly and protecting the weak ; but his successor Rachi, while reaffirming this, expresses the purpose in quite an- other spirit : ^ " quia dum pravi homines ea quae ad Dominum pertinent non considerant, magis huius saeculi lucrum quam ani- marum suarum remedium intendunt, et per humanam astutiam debiles et egenos opprimere non desistunt." This churchly point of view grows more and more noticeable. Sin and wrongdoing are merged. Liutprand aims to prevent man " in peccati onus de- inceps nequaquam procidant." ^ The laws will reenforce the divine precepts, so that men by obeying them may avoid sin. Liutprand asserts that his Edict has adopted " ea quae recta se- cundum Deum comparuerunt." ^ Rachi made new laws because " Christi Jesu et Salvatoris nostri adsidue nos convenit prsecepta complere " ; * and Astolf repeats this sentiment.^ But the divine precepts thus embodied in the law are made known by Holy Church; and thus the Church, as interpreter of the divine law, comes to inspire and modify the secular law. No part of the law remained untouched by this influence. In public law, it affected the theory of sovereignty, the purposed of_ the State, the relations of rulers and subjects. In criminal law and procedure, the principles of personal responsibility, of corrective punishment, of equity and good faith, came in from the Church and profoundly changed the primitive notions. In private law, the moderation of the paternal power, the introduction of wills and of slave-manumission, the alteration of the principles of marriage (including the ceremony, the increased number of impediments, and the importance of the parties' consent), ■ — all these features, and many others, can be credited to the Church's influence. They suffice to show how the Church's teaching affected the very essence of the law. Law came to be looked at from a Christian point of view, as an application of the divine precepts to human affairs. These divine precepts were revealed in threefold manner, — in the Holy Scriptures, in the Church's ordinances, and in that natural reason {ante, Part I, § 65), impressed in the heart of man, which in its purity must be identical with the divine will of man's Maker. And thus the medieval legislator conceived his work as an ex- ■ Preface to the laws of a.d. 746. ' Preface, a.d. 717. ' Preface, a.d. 721. * Ibid. » Preface, a.d. 755. 94 Chap. I] THE MIDDLE AGES [§ 8 pression of the divine law, under guidance of the Church, leading all men to their highest good in the fulfilment of their nature as social beings. All this, to be sure, is not the whole story. The Church's in- fluence was indeed pervasive. But there were other sources of legal principle. The inheritedjtraditionsol Roman jaw, especially its point of view of publicjgolicy, and the Germanic traditions em- phasizing individual freedom, remained vigorous and fruitful. And this network of separate influences is a peculiarity of the Middle Ages. The diverse and competing elements had not yet fused into aTplacid social uniformity. Topic 3. The Science of Law' § 8. Rise of Legal Learning. — In the early Middle Ages, legal learning (of modest scope, indeed, as yet) developed in stages par- allel to the law itself. During the primitive period of popular customs it consisted in the instruction of the younger men by the elder ones, for practical use in courts and for transmission to pos- terity. After the reduction of the Germanic codes to writing, a certain sort of practical legal science arose; for the compilers, termed " wise and learned " (ante, Part I, § 37), had not only to col- late and arrange the customs, but had also to give them written form in Latin, taking note of the new elements of Roman and Christian civilization; and this was no slight task. For this laborious effort, the best inteUects of the nation were no doubt employed. A new field of learning now opened. The law must not become entombed in its text, but must keep pace with the national life. And it must be applied in actual controversies. This gave rise to the learning of notaries, judges, and lay judges or jurors (to all of whom were applied the terms^' legum doctores " or ~^^7uris magistri), and even of the king^ himself , when called upon to act as supreme judge. As the Lombard legislation brought changes and new principles, there arose a body of legal learning, to interpret the effect and reconcile the inconsistencies. The Frankish Capit- ularies copiously increased the need for this function. And it is from the Frankish period, indeed, that a real science of law may be dated. Schools of instruction arose. Practical treatises were written. The reason and the history of the law were formally expounded. 1 [§§ 8-22 = Calisse, part II, title V, §§ 79-93, pp. 139-171. — Teansl.] 95 § 9] ITALY [Part II § 9. The Schools of Law.^ — During the Lombard rule, schools had not utterly perished. They took refuge in the monasteries and cathedrals, and their teaching was chiefly limited to the clergy. Education was one of the heaviest charges on ecclesiastical prop- erties. This was partly because of the conditions attached by founders to their bequests, and partly because the Church's func- tion was looked upon as including, not only charity to the sick and hospitality to pilgrims, but also instruction to the people. The State paid no attention to schools ; the pubhc interests had not yet been conceived as embracing that work. Thus legal education, too, was left in private hands. The practitioners of the law — judges and notaries — became the teachers of law, instructing their successors and preserving the traditions of the profession. Not that the State did not protect and esteem and profit by these private institutions. The Lombard royal court showed favor to the law teachers, and made use of them. Cunibert, when negotiating with the pope to put an end to the schism of Aquileia, sent as his representative Theobald (698), a legal expert (probably a cleric) whose skill had been acquired in the Church's schools. Education made rapid strides in the time of Charlemagne. He looked upon it as a'means of universal progress and bent every effort to improve it. Among the learned men with whom he sur- rounded himself, his intimates were Alcuin and Paul (the Deacon). He founded the Palace School, and even attended it in person. The rudiments were to be taught to all his people ; all monasteries and cathedrals were required to maintain schools with a complete 1 Pertile, "Storia," §§ 13, 44, 64 ; Salvioli, "Manuale," part II, ce. 10, 16 ; Sc^Mp/er-,"Maiiuale," book I, tit. II ; Savigny, " Gesohichte," 1, 261 ; Conrat, " Gesohichte der Quellen und Literatur des romischen Reohts im friilieren Mittelalter," 1889 ; Picker, "ForschungenzurReiohs-undRechtsgesohichte Italians, " Innsbruck, 1870, III, 110 ; Fitting, "Zur Gesehichte der Rechts- wissensohaft am Anfange des Mittelalters," Halle, 1875 ; id., "Die Anfange der Reohtssohule zu Bologna," Berlin, 1888; Rivier, "La science du droit dans la premiere moitie du moyen age," in N.R.H., 1887, vol. I ; Salvioli, " L'istruzzione pubblica in Italia nei seooli viii, ix, x," in R.E., 1879, vol. XIV; Tarlazzi, " La scuola di diritto romanoin Ravenna e Bologna," in A. R., 1881-1882 ^Bicci, ' ' Sulle origini dello studio ravennate," in A.R., 1881-1882; Rivolta, ' ' Discorso sopra la scuola deUe leggi romane in Ravenna ed il coUegio de' giureeonsulti ravennati," Ravenna, 1888 ; Schupfer, "Le universita, e il diritto," inA.V.L, 1891, vol. Ill; id., "Lascuoladi Romaelaquestionelrne- riana," in A.R.A.L., 1897 ; Patetta, "DeUe opera attribuite ad Irnerio della scuola di Roma," in B.D.R., 1895 ; Tamassia, " Le opere di P. Damiano," 1903; Merkel, "GescHelite des Langobardenrechts," 1850 (translated by BoUati, in App. to Savigny, vol. Ill) ; Boretius, "Preface to Liber Papi- ensem," in M.G.H., Leges, IV; Talini, "Di Lanfranco Pavese e della cultura olassiea in Pavia nel medio evo," in A.S.L., 1877; Venetian His- torical Society, "Atti delle nazioni seolastiche di Pavia," 1910-12. 96 Chap. I] THE MIDDLE AGES [§ 10 curriculum, — thus turning the existing usage into law ; and every parish church must have a primary school. The curriculum (above the rudiments) was grouped into " Triv- ium " and "Quadrivium." The Trivium included three subjects, — Grammar, Rhetoric, and Dialectic. The Quadrivium in- cluded four subjects, — Arithmetic, Geometry, Music, and Astron- omy. The Trivium thus stood for the moral sciences, or Ethics, and the Quadrivium for the natural sciences, or Physics. All of these terms were at that time used in a larger sense than nowadays. And so it was that Law came in under Dialectic, at the end of the Trivium; for since the fall of the Roman Empire, no separate schools of law existed. Charlemagne's scholastic ordinances shared the fate of all his institutions upon his death. The political convulsions upset most of his work. Instruction was againjeft to private effort, usually that of the Church and its antiquated methods. But signs of a new period soon appeared. Here and there a teacher in some school made it famous by his learning and zeal in a special subject. Stu- dents thronged to these schools. The rulers' attention was at- tracted. If official status was not conceded at once and to all, at least privileges were granted. Beginning with the Ottos, and then the Suabian line, the emperors lent their countenance; and the popes likewise. Such was the origin of those celebrated schools (or universities) of law in Italy, which afterwards spread through- out Europe. The law thus studied was of course predominantly Lombard or Roman, according to the locality. Thus the schools fell into two marked groups. § 10. Schools of Lombard Law. — Traces of schools of Lom- bard law are found at Milan, Mantua, and Veronal But Pavja, the capital, had the finest, and copious records of it remain. From early times Pavia had indeed had a Trivium school, where law was therefore in the curriculum. But the Palace Court (the supreme tribunal) was there, and this of course gave special im- petus to the study of law, especially as in those days skill in pro- cedure and practice were the chief end and aim of the study. The judges were recruited from the practitioners, and the practitioners were at the same time tea,chers ; the documents of the time show us the " iudices," " causidici," " rhetores," as making up the teach- ing body. The system of university teaching had thus emerged gradually from a system of practical apprenticeship. This is why it is so 97 § 11] ITALY [Paet II hard to give (as also for the other early law schools) a precise date to the founding of the Pavia school ; there are no recorded notices until after the school has become famous. In an " Exposition of Lombard Laws," written at Pavia {'post, § 16), we get the best ac- count of the school's history. The jurists are there referred to under two designations, the " antiqui " (or " veteres ") and the " moderni." The former came down into the early 1000s, when Leo, bishop of Vercelli, administered justice (999-1022) But some of them, called " antiquissimi," were the contemporaries of Otto I, in the late 900 s, when the Pavia school rose into fame. The " moderni " were the contemporaries of the author of the " Expositio," in the second half of the 1000 s. These two classes (in one or the other of which the most notable names are found) signified also a difference in legal thought. The " antiqui " had devoted themselves chiefly to the national or Lombard law and its interpretation. The " moderni " were more interested and better versed in the Roman law, as a means of practical improvement for the national law.^ Bonifilius, for example, is classed with the " anti- qui," and was opposed to the Roman law, though his contemporary, Guglielmus (Wilhelm), is classed with the "moderni." § 11. The "Expositio" gives us the names of most of these Pavian jurists. The oldest, Valcausus (or Gualcosius), belongs to the early 1000 s, and is reckoned as an " antiquus " ' and a cham- pion of the national law.* Bonifilius and Guglielmus, successors of Valcausus, were equally renowned. The school (" Bonifilii discipuli ") founded by the former (who was a royal judge) was opposed to Guglielmus, a modernist leader. It was also in con- troversy with Lanfranc (born 100.5), the most famous of the Pavian jurists, as well as one of the greatest men of his time. Lanfranc was the son of^a judge who had universal esteem. The boy was instructed " in scholis liberalium artium legum secularium ad suae morem patriae," and while yet a youth was ranked among the leading lawyers. He went later to Normandy, where he founded a school at the abbey of Bee, and students flocked to hear him " de ' "Expositio," note on lex 1, § 1, of Otto I. 2 "Expositio," note on lex 2, § 1, of Grimoald; on lex 90, § 5, of Liut- prand. 5 "Expositio," note on lex 197 of Rothar. ' Valcausus, indeed, was in ill repute among later scholars — at least, the glossators of Bologna, such as Ugolino, Accursius, and Odofred (post, § 43) for having falsified the texts of Lombard law. Some of his annota- tions were made to read like the text of the law, and repealed statutes were represented as still in force. But the jealousies and hostilities be- tween the Romanists at Bologna and the Lombardists at Pavia may account for this repute. 98 Chap. I] THE MIDDLE AGES [§ 13 secularibus et divinis literis tractantem." As adviser to William the Conqueror, he crossed to England and became Archbishop of Canterbury, dying in 1089.^ The list of Pavian jurists includes Sigifred, Bagelard, Ugo, and many of lesser note.^ In the second half of the 1000 s, the school of Pavia sank into decadence, and the centre of legal studies was trans- ferred to Bologna, the home of the greatest school of Roman law. The circumstances leading to this will now be briefly noticed. § 12. Schools of Roman Law. — The school of Pavia, at the capital of the Lombard kingdom, was of course devoted to Lom- bard law. But the influence of Roman law was making itself felt. Paul the Deacon (at the royal court) was thoroughly familiar with Justinian's books. The direct effects of Roman principles on Lombard institutions have already been noted (ante, §§ 3-5). The schools of law also felt these effects. While the " antiqui " jurists stood by the native law (ante, § 10), the " modern! " yielded to the Roman influence. They sought to use Roman law for de- veloping and improving Lomba,rd law. The author of the " Ex- positio " continually refers to the former as a " lex generalis," which he finds to be in conflict with the views of the " antiqui." Obviously there must have been at Pavia some teachers expert in that field. Nor was their acquaintance with Roman law based on mere practice books or on hearsay ; the exactness of the citations shows a direct knowledge of the sources. Moreover, in the lesser schools also, kept by the bishops and the monks, Roman law was known, though in more elementary fashion. Their duties, indeed, both ecclesiastical and notarial, must have made such knowledge needful to the clergy. These schools, however (as already noticed), had a private status only, without State regulation. The quality of their instruction and the numbers of their students were their sole reliance. This, to be sure, was merely carrying out the traditions handed down under Roman rule. There had never been, in the entire Western Empire, a State school of law, — other than the one at Rome, which taught pure Roman law, and lasted through the greater part of the Middle Ages. § 13. During the classic period of Roman law, all instruction was given by the great lawyers, and their teaching was a voluntary ' [For Lanfranc's share in forming Anglo-Norman institutions, see the illuminating comments in Pollock and Maitland's "History of the English Law," 1st ed., I, pp. 54—56. Lanfranc is supposed to have supervised the compilation of Domesday Book, among other things. — Tbansl.] 2 "Expositio," note on lex 153, § 1, of Rothar; lex 3, § 14, of Otto I. 99 § 13] ITALY [Part II and private undertaking, not a State appointment. The time not given to active practice they divided between writing and teaching. In both ways their fame was preserved. From all quarters students resorted to Rome. An official organization of the schools appears to have been first made by Theodosius.' At any rate, by the fall of the Empire, the teachers at Rome were on official salaries ; and an ordinance of Atalaric, providing for salaries to teachers and including the " iuris expositores," ^ shows that under the Ostrogothic kingdom this status continued. Justinian maintained this poUcy. His decree " Omnem " (533) assigns official schools to Rome and Constantinople ; and his Pragmatic Sanction {ante. Part I, § 1), decrees the continuance of the salaries of law teachers, " so that the youth may not fail of good instruction." * But when the Church's authority succeeded the Empire's at Rome, a change took place. The Church authorities, to be sure, did not cease to maintain a thorough acquaintance with Justinian's law- books, nor to have the interest and the disposition to foster the traditions and the science of Roman law (awfej § 2).^ But they impressed upon it a purely ecclesiastical flavor. Its ancient spirit was lost. If its study was to continue independently in pristine vigor, some other headquarters must furnish the opportunity. The city of Rome, indeed, was by the end of the 1000 s, in all re- spects in its lowest decadence. The war of the Emperor against Gregory VII and the Norman invasion of lower Italy had helped to produce this. And so we find the Bolognese jurist Odofred re- porting that, in consequence of wars, legal studies had removed from Rome to Ravenna. Certain it is that the ebb of the Roman school's fortunes coincides with the rise of the school at Ravenna. The latter is already flourishing at the end of the 1000 s; though its origin, no doubt, dates back to the time of the Exarchate {ante, Part I, § 7), when Ravenna was the sole seat of Roman power in Italy, had ambitions to become the capital, and doubtless showed special favor to the Roman law. At any rate Ravenna, at the end of the 1000 s, had a well-organized school.^ And Odofred's well-known comparison ' "Codex Theodosianus," XIV, 9, 3; "Codex Justinianeus," XI, 18. 2 Cassiodorus, "Variarum," IX, 21. ' " Constitutio Omnem," § 7; "Pragmatiea Sanetio," § 22. 'Their documents often mention the "legum doctores" and ."qui leges veteres noverunt." * Peter Damianus, for example, here wrote his treatise on the degrees of relationship; and tells us that he came to do it by listening to the Ravennese jurists descanting on that subject and abandoning the Canon law rules to follow the Roman law. To confute their theories, which were 100 Chap. I] THE MIDDLE AGES asserts that Ravenna's school attained its success by carryiiJj Justinian's law-books from Rome, just as Bologna's later arose taking them from Ravenna. But the story of the Bologna school belongs rather in the next epoch {post, § 38). § 14. Legal Treatises. — The general situation is plainly re- flected in the legal treatises of the time. They are essentially books of practice. Moreover, as the chief need was for plain in- formation on the state of the law, and the law consisted mainly in antiquated and voluminous texts not easily accessible, the treatise writers naturally turned their efforts to making collections, compgndiugis, ,and practicaljnaiiuals. This indeed had been the tendency since later Roman times; for Justinian's great collec- tions, and his policy of confining legal science to the study of their pages, had restricted the lawyers to practical court work and the preparation of summaries of the works of Justinian. Moreover, with Lombard and Roman law side by side in daily life, the adjustment of their divergences led to a sort of customary law, in which practice was the predominant feature. And here again the existing conditions affected the form of the treatises. There were virtually three sorts : (1) those which dealt with Lom- bard law, chiefly Pavian ; (2) those which expounded Roman law, emanating chiefly from Rome and Ravenna ; and (3) those which explained the incipient customary law as used in practice. § 15. Treatises on Lombard Law.^ — The first attempts of legal learning were merely to arrange the copious sources of the law in collections. The Lombard Ed ict was thus edited (809-832) by order of Eberhard," marquis oPIlezia and Friuli, under the title " Capitula legis regum Langobardorum, seu concordia de singulis causis." ^ But the great mass of subsequent statutes and capitu- laries, including the special Italian enactments, made some further compilations needful. The most important was that prepared at the School of Pavia, covering the period to Henry II at the end pXlhe 1000 s, and known as the " Capitulare I talicum." But this, too, had its shortcomings. Moreover, practical forms were needed, and a systematic commentary, such as the early Bolognese jurists were then developing for Roman law. Thus arose the celebrated scientifically worked out ("ratiocinando, assumendo, colligendo"), he composed his work, in which he exhorted them not to contemn the Church's doctrines. 1 Citations ante, § 9; Pertile, "Storia," §§ 13, 44, 64; Salvioli, "Man- uale," part II, c. 10 ; Schupfer, "Manuale," b. I, tit., 2, c. 2, §§ 2, 3. 2 Edited by Bluhme, in M.G.H., "Leges," IV, 255. It distributed the statutes, from Rothar to Astolf, into six topical chapters, arranged chronologically within each. 101 § 17] ITALY [Part II "Liber legis Langobardorum," better known as the " Liber Pa- piensis." ^ It belongs in the first half of the 1000s, between Henry I and Conrad the Salic. Being a treatise for practice, the authors did not always preserve the original text, but omitted obsolete and duplicate provisions, and amended errors or loose phrases. The correct text, used for teaching, was known as the " Vulgata^j)f Pavia."2 § 16. The " Liber Papiensis " (or Book of Pavia), by its practi- cal utility, rapidly obtained vogue in the other parts of Italy, and ceased to be a merely local book. It shows us, moreover, that the study of law had passed beyond the mere editing of texts, and was concerning itself with commentaries and applications to practice. The decisions of the royal court at Pavia {ante, § 10) were prob- ably here a stimulus. Thus, by the combined influences of judicial decisions, forensic argument, and legal teaching, numerous principles developed which could well form the subject of a sys- tematic commentary on the native law. Such was the " Expositio^ ad librum papiensem," — a work similar to that " Interpretatio " which was issued with the Breviary of Alaric the Visigoth {ante, Part I, § 8). Its author is unknown, and its date is uncertain;^ but it belongs presumably towards the end of the 1000 s, when the Pavian school was on the verge of decline, and the Roman law was beginning to be cited as the " lex generalis." The later Com- mentaries attributed to Aliprand and Albert (judges in the mar- quisate of Este), at the beginning of the 1100 s, show still more the Roman law influence.^ They are closely related to the " Lombarda," the last collection of Lombard statues, which appeared at the end of the 1000 s.^ It differs from the previous collections in its ar- rangement, which is no longer chronological, but strictly topical, in books and titles, and shows the dominance of scientific method. § 17. The remaining treatises of this period, which also concern ' Edited by Boretius, M.G.H., "Leges," IV, 289; Padelletti, "Fontes." ^ Another oolleotion of Lombard law, resembling the " Liber Papien- sis," is known as "CoUectio ValoaHsiana glossata," because attributed to Valoausus {ante, § 10). "Edited' TFaWer, "Corpus juris germanici," I, 683; Muratori, I, 2. [Parts of this section are omitted. — Teansl.] ' Edited Boretius, M.G.H., "Leges," IV; Padelletti, "Fontes." ■■Edited by Anschiitz, "Die Lombarda-Commentare des Aliprand und Albertua," Heidelberg, 1855; Siegel, "Die Lombarda-Commentare," in S.W.A., 1862, XI. . 5 Edited by Bluhme, M.G.H., "Leges," IV, 607. It seems to have had several authors. Two texts obtained chief vogue, the "Lombarda oas- sinese," found in the celebrated monastery at Monte Cassino near Rome, where so many ancient texts have been preserved; and the "Lombarda vulgata," used principally in the school of Bologna. 102 Chap. I] THE MIDDLE AGES [§ 18 themselves mainly with practice, include notably the " Qusestiones acjnonita," ^ — a series of discussions of practical rules of frequent application, such as succession, wager of battle, procedure, pre- scription, and the like. There appeared also, while the Lombard school still flourished, some brief essays on specific topics,^ and some form-books, particularly the " Clmrtulaiium_ J^ngobaxc^^ ^ in which are collected and compared the notarial forms under the different systems of law; the Lombard law being taken as the general rule and the others as the exceptions. § 18. Treatises on Roman Law.* — The works of the schools of Homan law had much the same general purpose and style as those of Lombard law. The influence of Justinian's legislation tended to confine the jurists' labors to mere commentaries and sum- maries. Just as the Byzantine period had produced {ante, Part I, §§ 8, 1 1) the " Liber Gai," the " Interpretatio " to Alaric's Breviary, and the Turin Gloss; so now under Germanic rule we find the Romanists writing Summaries (such as that of Perugia^), Glosses (such as the one from Pistoia^), and Compendiums or short sys- tematic expositions. Three or four of these are important and famous enough to deserve special mention. The " Exceptiones Legum Romanarum " ' are a series of condensations or extracts from Justinian's books, for practitioners. They were put together by various hands from time to time, and their authorship and dates, though much discussed, are unsettled ; they were by many at- tributed to a jurist Peter (hence often cited as " Exceptiones Petri "), but Damian has also been credited with them. A com- pend usually called " Brachylogus," but originally entitled ^'Summa Novellarum" or "Corpus Legum," * is the most interest- 1 Edited by Muratori, R.I.S., I, 2, 163; Bluhme, M.G.H., "Leges," 17,590; Padelletti; " Pontes," 463. 2 Edited by Padelletti, "Fontes," 492. ' Edited by Boretius, M.G.H., "Leges," IV; Padelletti, 471. * Salvioli, "Manuale," part II, o. 15; Schupfer, "Manuale," book I, tit. II, § 2. 5 Patetta, " Adnotationes oodieum dom. Justiniani, Summa Perusina," Rome, 1900. " "Glossa Pistoiee," edited by Chiappelli, in A.R.A.T., ser. Ill, vol. 37, 1885 ; compare the same author's " Nuovo esame del MS. pistoiese," Rome, 1885, and Fitting's " Juristische Schriften," Halle, 1876. ' Edited hySavigny, "Geschichte," II, 321, and by Fitting, "Juristische Schriften," 1876, p. 151; discussions in Schupfer, "Manuale," p. 233; Ficker, "Ueber die Entstehungsverhaltnisse der Exceptiones Legum Romanorum," Innsbruck, 1886; Fitting, "Glosse zu den Exceptiones, etc.," HaUe, 1874 ; " Le form. proc. delle Exceptiones Petri," Rome, 1897 ; Conrat, " Das ashburn. Rechtsbuch Quelle der Exceptiones Petri," Leipzig, 1886. « Edited by Baching, Berlin, 1829 ; discussed by Schupfer, "Manuale," p. 227; Ficker, "Ueber die Zeit und den Ort der Entstehung des 103 § 20] ITALY IPabT II ing one of this period ; because it not only uses intelligently the classic Roman sources, but purports to give the current and modified Roman law ; it dates probably from Ravenna in the 1000 s. Two other treatises, which have given rise to the widest discussion as to their date, author, and home, are the " Summa Codicis " and the " Questiones de Juris Subtilitatibus." ^ These used to be attributed to Irnerius (post, § 42), the most famous of the early Bologna jurists; but at present the results of criticism point to Rome as the place of origin.^ § 19. Another treatise to which also has been accorded an abun- dance of the critics' researches in determining its origin is the "Lex Romana Udinese," ^ so called from the discovery of its first manu- script at Udine, north of Venice. Other manuscripts have since been found at St. Gall and at Favaria, in Rhetian Switzerland; hence much controversy as to its nativity. The better opinion seems to place it in the 800 s, in Italy. Its principal source is Alaric's Breviary of Roman law {ante, Part I, § 8) ; but its use of the Theodosian Code and later Novels, as well as of Gains and Paulus, help in an important way to demonstrate that, in northern Italy at least, the legislation of Justinian had never succeeded in suppressing the practical use of the earlier sources of Roman law.* § 20. Formularies and Documents.^ — The Formularies are collections of forms of legal documents for the use of scriveners, Brachylogus," Wien, 1871; Fitting, "Ueber die Heimat und das Alter des sogenannten Brachylogus," Berlin, 1880; Nani, "Brachylogus juris oivilis," in A.G.S., 1880, XXV; Chiappelli, "La glossa vatioana del Brachylogus," in R.S.I., 1885, II. 1 Edited by Fitting, "Questiones, etc.," Berlin, 1894 ; "Summa Codicis Irnerii," Berlin, 1894; discussed by Schupfer, "Manuale," p. 214, and in "La scuola di Roma e la questione Irneriana," in A.R.A.L., 1897 ; Paletta, "Delle opere attribuite ad Irnerio e deUa scuola di Roma," in B.D.R., 1895, and "La Summa Codicis," in S.S., 1897, XIV; Besta, "L'opera d'lrnerio," Turin, 1896. * [This section has been abbreviated. — Teansl.] ^Editions: Zeumer, in M.G.H., "Leges," V. Essays and Treatises : Schupfer, "Manuale," p. 194 ; id., " La legge romana udinese," in A.L. (1881) ; id., "Nuovi studi sulla legge romana udinese," in A.L. (1882, 1887, and 1889) ; Wagner, " Zur Frage nach der Entstehung und dem Geltungsgebiet der lex romana udinese," in Z.S.S., IV ; Von Salis, " Lex romana curiensis," ibid., VI ; Zeumer, " Ueber Heimath und Alter der Lex rhaetica curiensis," ibid., IV ; Zanetti, " La legge romana retica-coirese o udinese," Milan, 1900 ; Besta, " Per la determinazione della eta e della patria della cosi detta Lex romana rhsetica curiensis," in R.I.S.G., 1901. ' [This section has been abbreviated. — Transl.] = Fertile, "Storia," § 18; Salvioli, "Manuale," part II, cc. 6, 7; Schup- fer, "Manuale," book I, tit. I, c. 1, §3; Brunner, "Rechtsgeschichte," §§ 57, 58. The general history of documents in the Middle Ages may be found in the treatises of Bresslau, Giry, and Paoli. 104 Chap. I] THE MIDDLE AGES [§ 20 either official or private. To prepare and compile them was a peculiarly practical service in the early Middle Ages. The law was not yet unified nor settled. No special class of persons (like the notaries, who were soon to arise) had exclusive authority to draw up documents of legal sanction. In Roman times any one was free to draft a deed or any other legal document; and an im- porta nt occupation of the lawyers was to do this. Such was still the custom in the Middle Ages ; though the clerics (" clerks ") were now the usual scriveners. But the accurate legal knowledge which the scriveners of classic times had possessed had been the reason and the justification for the liberty then accorded to all, and such knowledge was now lacking. Hence a need now arose for well- drafted forms based on ancient learning and contemporary ex- perience. Some modicum of legal learning was of course essential ; and such as it was, it enabled the forms to react in influence upon the law itself. In the first place, they served to reduce it to greater certainty and safety in practice. And, in the second place, they helped to diffuse the Roman law. The Germanic invaders did not use writings for their legal transactions; they were obliged to employ Romans as scriveners. Thus, the traditional Roman forms and even principles persisted, in spite of the infusion of some Germanic principles. Furthermore, it is in the forin-books that we discover the first attempts at legal science. The scriveners, in developing their art, employed a florid style, with allusions to allegories, the Bible, moral truths, and religious maxims; being usually clerics, and drafting often for the Church's property, they found this natural and proper enough. This helped them to dwell upon the general principles which underlay the various legal trans- actions. And so they came to develop, as a scientific task, the com- _position of treatises directed to explaining the principles of correct drafting for persons who wished to draw up their own documents. For the history of the law, these formularies are invaluable. They serve to compensate our lack of the books and oral traditions which are now forever lost; to exhibit the law in its practical application, and thus to supplement and interpret the statutes and treatises ; to reveal sources which would have remained unknown ; and, in short, to mirror the whole legal life of the times. And, though they emanate often from the jurists of the law schools, they are not committed to the law of either the Germanic or the Roman system; they exist for themselves, and illustrate faithfully the actual conditions and the diverse influences which were in process of amalgamation. 105 § 22] ITALY [Past II § 21. There were several sorts of form-books. First there were those for pubHc officials ("regales"), for example, for the char- ters of the Imperial chancery or for the papal bulls. Then there were those for lawsuits, instructing the parties how to proceed. And finally there were the private, or notarial, form-books (" pa- genses "), meant for ordinary deeds and the like. There was thus a great mass of forms ; and the varied contents of the form-books (of which indeed only a portion have survived to us) show how active was the legal life which called them into existence. Most of the compilations come from Frankish territory. They bear various names. Sometimes it is that of their author, such as the famous ones of the monk Marculf, in the second half of the 600 s. Sometimes it is that of the place of their discovery or authorship, — such as those of Angers (" Andecavenses "), Bourges (" Bituricenses "), Auvergne (" Arvernenses "), or Sens (" Seno- nenses ") ; these belong to the period 850-920, and exhibit Frankish law with a strong Roman infusion. Sometimes, again, they are named from some modern discoverer or first editor of the manu- script, — such as Bignon, Merkel, Lindenbrog, Sirmond.^ In Italy there were fewer form-books, — perhaps partly because of the greater diffusion of culture in writing, partly because of the survival of the Roman traditions of the scriveners. But some very important form-books have come down to us. From the Ostro- gothic period, we have the invaluable repository of Cassiodorus {ante, Part I, § 6) .^ From a later period comes the "Liber Diurnus " of the papal court.^ There are also Lombard forms, of the 1000s— 1100 s, in mo?e ambitious treatises which also give instructions for lawsuits ; the " Liber Papiensis " and " Chartularium " have already been mentioned {ante, §§ 15, 17).* § 22. The very documents of the legal transactions themselves have also survived us. " Chartae " was the term apphed to the formal constitutive document, wliich served as a permanent record of the transactions ; " notitia " was applied to a memorandum or preparatory draft.^ But the great distinction was between " public " and " private " documents. A " public " document 1 Edited by Rozih-e, "Recueil g&firal des forintttSs usitSes dans Tem- pire des Francs," 1859-1871; Zeumer, "Formukb merovingiani et karo- lingiani sevi," in M.G.H., " Leges," V. 2 Books VI and VII of his " Variarum," ed. Morrmsen, in M.G.H., 1894, XII, "Auotores Antiquissimi." 3 Edited by Sickel, Vienna, 1889. ' Edited by Padelleiii, "Fontes," Turin, 1877. » Brunner, "Charta et notitia," 1877 (reprinted in his "Forschungen," 1894). 106 Chap. I] THE MIDDLE AGES [§ 22 involved three features : it concerned certain kinds of transactions ; it must be drawn by a public official ; and it had certain special legal validity. " Public " documents were more finished in style, — partly because the form was of the essence, and partly because skilled officials drew them. The form of a document revealed its entire structure. There were two parts. First came the 'protocol" or^aptiqn, containing all which served to identify, promulgate, and authenticate the document, — date, reigning sovereign, names of witnesses and parties. Then came the "text " or terms of the transaction, — the recital of facts, the rights granted or liabilities assumed, the description of the property, the conditions annexed, etc. These documents are to be reckoned apiong our sa fest sources for^ the hist ory of the law ; for they represent actual transactions in the application of the law and give that color and background which only_usage and local circumstances can supply. Based as they were upon the form-books, they reveal the continual silent influence oLthe Roman law, which owes to them in part its preservation and diffusion through the Middle Ages ; while at the same time they demonstrate the coexistence of the Germanic law through the centuries. The great repositories of these documents throughout that period were almost exclusively thgjnonasteries; for the mo- nastic orders came to be the largest landowners, and the sanctity of their buildings was usually respected amidst the feudal wars. In their archives were preserved registers containing copies or abstracts of the documents ; and in modern times many reprints of them (beginning with Muratori's, in the 1600 s) have been pub- lished for the purposes of science. "^ ' Some of these are selections relating to a specific region or period : e.g. Muratori, "Antiquitates Italicae"; Faniuzzi," M.onum.enti Raven- nati"; Porro, "Codex Langobardise " ; Troya, "Codice diplomatico Longobardo"; Brunetti, "Codice diplomatico Toscano." Others represent an entire collection from a particulai; archive ; e.g. the "Regesto Farfense," from the monastery at Montecassing ; the "Codex Cavensis," from the monastery at Cava ; the "Regesti pontificii," from Siunfi.; and the "Regesti imperiali," in H.G.H. Many documents, chiefly from church archives, have'beeh edited for publication in the last few years, by Harimann, Plvano, Fedele, and others. 107 23] ITALY [Part II Chapter II. Second Period : a.d. 1100-1700 ^ ITALY DURING THE RENASCENCE § 23. Introductory. Topic 1. The Common Law 24. The Diverse Elements. I §§ 27-29. The Canon Law. § 25, 26. The Germanic Law. I §§ 30-34. The Roman Law. Topic 2. The Science of Law 35. Beginnings of Legal Science. § 36, 37. The Schools of Law. I 38, 39. The School at Bologna. I 40. Other Schools. I 41. The Jurists. i§ 42-44. (a) The Glossators. §§ 45-48. (6) The Commentators. §§ 49-5L (c) The Humanists. § 52. (d) The Practical Jurists. §§ 53-55. (e) Jurists of France, Germany, and Holland. Topic 3. The Legislation 1. THE COMMUNAL PEBIOD i 56. Legislative Conditions in the 1200 s. i 57. Growth of the City Legis- lation. i§ 58-60. Sources of the Legisla- tion. §§ 61-63. Compilation of the Stat- utes. §§ 64, 65. Industrial and Commer- cial Statutes. § 66. Commercial Institutions. 2. THE MONARCHICAL PERIOD § 67. Imperial Legislation. §§ 68-75. Legislation of the Ital- ian States. § 23. Introductory. — As it emerged from the feudal period, the law found itself no longer in the midst of a struggle between diverse and disunited elements. System and unity were gradually coming to pass. The respective amounts and kinds of the con- tribution of each element were beitig settled. And this signified that, as a part of the general social transformation, the law was beginning to become national, Italian. The Renascence, in its other aspects, — literary, religious, artistic, — was proceeding more slowly ; and in general history the end of the Middle Ages is placed at a date considerably later. But in legal history the new epoch 1 [§§ 23-74 = Calisse, Part III, §§ 92-162, pp. 172-331. — Transl.] 108 Chap. II] ITALY DURING THE EENASCENCE [§ 25 certainly dates as early as the HOOs. The city statutes, which then begin, mark essential changes in public law. The sc hools of law revive the study and knowledge of the Roman law, and cause its doiriinion to flourish anew. The Germanic law gradually wanes in power; and the Church's law becomes a special system for particular persons and subjects only. The new body of law could not yet become a unified one for all Italy. Political conditions prevented this. But the tendency towards such a unity could be detected, partly in the influence of the Roman law as a common basis, and partly in certain uniform features of legislation which lessened the local peculiarities and gave them a national impress. Topic 1. The Common Law^' § 24. The Diverse Elements. — In all the enactments promul- gated in Italy after the fall of the Roman Empire, it was noticeable that the rulers confined themselves to some specific subject of law which needed new regulation. All subjects untouched by such legislation were understood to be left to some preexisting body 7)f law, known to all and binding upon all. This was the " com- mon " law, in contrast to those " particular " or exceptional laws which affected only certain regions or classes of persons. This force of " common " law, it is true, had never permanently been gained by any one of the several systems. It had shifted more than once. Nevertheless, throughout all, it seemed that the Roman law would be the one most adapted to regain and retain that status. And if, already in the time of the Pavian school of Lombard law (ante, § 10), the Roman law had come to be termed the " general " law, much more markedly was this to be the result in the Renascence period ; for the principal significance of that period, in legal history, is the growing prevalence of the Roman law, alike in science and in practice. By " prevalence," however, is not meant the driving out of the other systems. The others remained, both the Germanic and the Church law, and in certain fields had even the features of a " com- mon " law. Their relations to the Roman, law in this period must now be examined. § 25. The Germanic Law. — When the various Germanic tribes reduced their law into writing (ante, Part I, § 35), the customary ' [This Topic, §§ 24-34, is in the author's text Part III, Title III, §§ 130-141, pp. 247-277, and is here transposed before Titles I and II, as making the development clearer for our purposes. — Transl.] 109 § 25] ITALY [Part II law remained for each tribe as the common law, to govern matters not covered by the Codes. This field became gradually narrower, with the increase of statutes and the disappearance of primitive customs, as the Renascence approached. The racial elements were becoming fused. The Romanic element, by mere weight of num- bers, preponderated ; the changes in political conditions weakened the support for Germanic institutions and traditions; and the demands of new economic interests found the primitive prin- ciples inadequate. Their mission had been fulfilled, and they must disappear. Nevertheless, as already noted {ante, Part I, § 16), here and there a compact nucleus of population kept them in vigor and long preserved their traces. When the personal system of law gave way to the territorial {ante, Part I, § 67), the dominant law, which im- posed itself on all the inhabitants of such regions, was the Lom- bard law, — just as elsewhere it was the Romanic law. This^local survival of the Lombard law is proved in several ways. In the first place, the family and property law tended to keep its place tenaciously, even when the public law had been superseded, — precisely as had occurred for the Roman population under the Lombard rule.^ Furthermore, there are express legislative recitals that the Lombard law prevailed as against the Roman law.^ And, finally, the vogue of the Lombard law is shown by the prolific scientific labors devoted to it. The centre of Lombard studies came to be the school at Bologna (post, § 38). The systematic compilation known as the " Lom- barda " {ante, § 16) must have been prepared for its needs, so that the lecturers on Lombard law might have a textual apparatus as adequate as that possessed by the lecturers on Roman law.' They also used the gloss method of exposition ; and, just as the Roman- ist glosses were superseded by the gloss compends used in practice {post, § 42), so also the Lombardists developed their system. The Accursius {post, § 44) of Lombard law was Carolus Tocco, a professor at Bologna, who in the early 1200 s prepared a critical 1 Andrea Bonellus records how the professional experts in Roman law could be vanquished in a lawsuit by opponents of mediocre skill, when Lombard rules were in issue: " Commentarium super legibus Langobar- dum," Venice, 1537, with notes by Carlo di Tocco. See the essay of Vol- jyicella, "DeUa vita e delle opera di Andrea BoneUo di Barletta," Naples 1872. 2 E.g. in the statutes of Benevento, in 1230 ; and the Sicilian constitu- tion of Frederic II ("Constitutiones Regni Sicilise," b. I, c. 52). ' The commentaries of Ariprand and Albert {ante, § 16) also came from the Bologna school. 110 Chap. II] ITALY DURING THE RENASCENCE [§ 26 apparatus of the entire Lombard gloss which acquired an authority so weighty as to be considered in practice almost equivalent to the text itself.^ In the_south of Italy, the commentators on Lom- bard law were almost as numerous ; it had there the longest and jngat extensive duration, for the reasons already mentioned {ante, § 16). 2 Baldus (post, § 48) recognizes it as late as the 1300s; " professions " of it (ante, Part I, § 51) are found at late periods in northern Italy; at Bergamo (near Lake>Como) it was not ex- pressly abolished till the 1500 s; and the laws of Naples (post, § 68) show that certain persons there continued to live under it. A treatise on the differences between Roman and Lombard law was written by Ferretti, a Ravenna jurist, as late as 1541 ; another, " De regulis juris Langobardorum," at Venice in 1599 ;^ and in the early 1600 s the judges of the Abruzzi region were required to know Lombard law.* Not until the introduction of the French Codes, in the legislative period of the early 1800 s, can the Lombard law be said to have quite lost its independent life. § 26. A rivalry between Lombard -and Roman^Iaw was of course inevitable.^ The Romanists actively took the aggressive. Throughout their works, a supreme disdain for Lombard Jaw is apparent. Odofred calls it neither law nor justice, but merely a bundle of rules, put together by the Germanic kings to serve their own ends. Lucas of Penna thinks them beneath consideration : as lacking in reason, fit for animals only, trash rather than law; and wishes they could be abolished. Andrew of Isernia calls them " asses' laws " ; and in later times De Luca and Gravina express a like opinion. Hostility so marked must have been engendered, not simply by the Lombard law's inferiority, but also by the dif- ficulty of eradicating it. And in fact the hostility was strongest in the South, where the Lombard system was most extensive and tenacious and (in some respects) independent. Naturally, too, there was a counter influence upon the Roman ' The first printed edition was that of Venice, in 1537 : "Leges Lango- bardorum, cum argutissimis glossis domini Caroli de Tocco." 2 The monastery of Monte Cassino , in 1267, guaranteed the use of the Lombard law to some oTTts tenantsT Andrea of Barletta and Andrea of Isernia (in Sicily) also recognized it. 3 See also Rendella, " In reliquias juris La,ngobardi proloquium," Naples, 1609. The work of B. da Morcona, " De differentiis inter jus Romanorum et jus Longobardorum," was edited in 1912 by Prof. Joh. Abiguente (Naples). * Other instances are found in documents of the Duchy of Benevento, and in the comments of Matteo degli Afflitti on Frederic II's Sicilian con- stitutions. . , , , 5 Salvioli, " Deir uso della Lombarda presso i glossatori e i giuristi del secolo XIV," Turin, 1898. Ill § 26] ITALY [Part II law itself. The lawyer-authors were in those days writing chiefly for practitioners, and they could not help devoting some atten- tion to the inveterate customary law, which existed and could not be extirpated. The result was a sort of compromise, or bal- ancing of accounts. Out pf the opposing elements, there arose new and composite institutions, savoring of both elements. For ex- ample, the family council, as it exists to-day, has taken from Roman law the feature of a sole guardian, and from Lombard law that of the participation of all family members in the guardianship. Most notable of all influences in thus securing for Lombard law a permanent place in the later composite institutions was the feudal tenure. Politically, the fiefs had ceased to be of importance under royal and municipal government. But they continued to exist, and under another form they even regained influence, by furnishing support and prestige to the throne and receiving in return new privileges. The family and property feature was their predominant one ; and thus they gave to Lombard law a different trend from the Prankish law, in which the fief was in essence a political and military institution. The Lombard feudal system, in its features of family control and property rights, remained vigorous among the noble classes, who were usually of Germanic extraction and naturally kept up the ancient traditions of their race. When, therefore, questions of feudal law came before the jurists for solution, they could get little help from Romaii law, and perforce fell back on Lombard law as more serviceable, — not the early Lombard law of the Edict, but the law which had been evolved by the daily needs which it was obliged to satisfy. It was at Bologna, the^very centre of Romanist science, that Lombard feudal law also found its scientific treatment. The Romanists' example, which had earlier led to the systematization of the Lombard Edict and to the "Libri Feudorum" {ante, Part I, § 61), now was followed in the glosses to the later feudal customs. Compends (like the " Sununa " of Jacobus of Ardizo) and essays (like those of Hugo and of Roffred of Beneventum on wager of battle) now collected its glosses or developed its special topics. Systematic treatises came later to be written, on the model of Roman and of Canon law. And here, too, the reciprocal influence was seen on the followers of the rival system. Their doctrine, for example, of the distinction in feudal estates between the legal and the beneficial ownership (or use) was unknown to Roman law, 112 Chap. II] ITALY DURING THE RENASCENCE [§ 27 and had its source in Lombard customs.^ And thus new illustra- tions were furnished of the reasons and modes by which the feudal proprietary institutions helped to preserve in vigor the Lombard law amidst Romanic rivalry, long after the disappearance of the social conditions amidst which it first entered Italy. § 27. The Canon Law. — The power of the papacy reached its height during the Renascence ; and so the influence of the Church's law, already notable in the preceding period (ante, § 6), was not destined now to diminish. Though the vigorous new growth of Roman law, and the altered trend of general culture, resulted in restricting the field of Canon law and in giving rise to sharp rivalries, and later to a readjustment of its relative sphere, yet there was no loss of its vitality nor check in its development. The sources of the Canon law had in early times been put to- gether without attempt at orderly arrangement. Apart from the Holy Scripture (the Gospels being the most weighty sources), there was no discrimination as to the relative authority of those sources which consisted in the Church customs and traditions and the opinions of the fathers and teachers of the Church. But the decrees of the Councils and the ordinances of the popes — the two principal sources of Canon law — gave rise gradually to a number of important and well-marked distinctions. (1) The decrees of the General Councils (that is, of those which alone were valid for the Church everywhere) were mostly of early date. Eight Councils had been held in the Orient, two at Nicsea, four at Constantinople (the last in 869), one at Ephesus, and one at Chalcedonia. Thirteen have been held in the West (not count- ing that of 1870 at the Vatican), — five at the Lateran Palace in Rome, two at Lyon, and one each at Vienna, Pisa, Constance, Basel, Florence, and Trent. The local Councils, i.e. national, provincial, or diocesan, had authority only over the region rep- resented by their scope. (2) The ordinances of the Popes were analogous (in some f eatures*) to the constitutions of the Roman emperors. They furnish the largest and most important part of Canon law, between the end of the Germanic period and the council of Trent. They were of several sorts. As to their subjects, they might be either dogmatic, i.e. dealing with the duty of the faithful as to creed or pious works, MOn this connection between the English "use" and the Lombard analogy, see Professor Maitland's master essay, "Trust and Corporation," printed in German, in Grtinhut's "Zeitschrift fur Privat-und Oeffent- liehes Recht," 1904, XXIII, 1 ; first privately printed in English, but now- reprinted in Ms Collected Works (19H). — Transl.] 113 § 28] ITALY [Part II or disciplinary, i.e. dealing with the ceremonies, the jurisdiction, the property, or other affairs of the Church in its external governance. As to their form, there were numerous other distinctions. " Re- scripts " were responses inscribed at the foot or on the back of an inquiry or request. " Decrees " were decisions by way of judg- ment in a controversy. " Epistles " were the generic and usual name for all ordinances originating in the Pope's own will; but these were further divided into " encyclicals," or circulars to a specific group of bishops, " chirographs," or letters signed by the Pope's own hand, " bulls " and " writs " (" breve "), or documents made by his officers, with varying degrees of formality, according to the subject's importance or the addressee's personality or the like. The proceedings of the Curia (or papal chancery), of the Congregation, and of the other officers of the papal court gave rise also to other regulations, which in certain conditions would be- come part of the Canon law. And, finally, the civil law itself, involved as in the relations of State and Church, might also contribute rules. But here the parties' relative positions of strength would determine which law was really prevailing. Where the Church's power was dominant, the State's law acceded to and confirmed the Canon law ; this was the case with some of the Roman emperors' constitutions, and still more with the Prankish capitularies, and with most of the so-called Concordats. Where, on the other hand, the State was in the position of superior power, it imposed its own rules for the recogni- tion and control of the Church ; and of this sort are the statutes of modern times. § 28.^ From the multiplicity of these sources, the need was soon felt for some simplified and systematic compilation. The earliest collections had merely arranged the canons in order of time. Among these were the " Prisca," in the 400 s; the " Dionisiana," between the 400 s and 500 s; the " Adriana," presented to Charle- magne by Pope Hadrian ; the " Decretals of Isidore," a forgery of Western France, in the 800 s, related to the forged capitularies of Benedict of Levita (ante, Part I, § 32). But finally the field was occupied, to the exclusion of all others, by the great systematic compilation of Gratian. He was a Benedictine monk of Bologna (born at Chiusi), and flourished in the first half of the 1200 s. The title given by himself to his work was " Concordantia dis- ' [This section has been abbreviated, as its description of the sources partly duplicates that given by Professor Brissaitd in Part IX (Canon Law) of the present work. — Tkansl.] 114 Chap. II] ITALY DUBING THE RENASCENCE ' [§ 28 cordantium Canonum," but it was always known in practice as the " Decretum." Its fame was extraordinary. It was likened to the Roman Digest (of which it imitated the arrangement) ; it was publicly expounded at Bologna and at Paris ; it was followed by the courts ; and it gave rise in its turn (like the Roman texts) to a multitude of glosses, commentaries, and special treatises. But the Church was now advancing to that period of the cul- mination of its power when it seemed destined verily to become a world-wide monarchy. And the Canon law shared in this growth. In the period between Alexander III and Boniface VIII, it reaches the acme of its authority and its productiveness. The collection of Gratian, then become inadequate, was superseded by other collec- tions. To these new ones, however, an official status was hence- forth given. The first of these was the " Decretale" prepared at the order of Gregory IX by Raymond of Pennafort and completed in 1230. It was sent by the pope to the schools at Bologna and at Paris, for publication and for instruction ; it was to be the sole authority in courts and schools ; and no other compilation was to be made without the papal consent. Gregory, in short, was imitat- ing Justinian ; and in fact the Decretale's arrangement was modeled after the Code. But his successor, Boniface VIII, was not willing to be ranked lower as a legislator than Gregory IX ; and so under Boniface, in 1298, we have the " Sextus," i.e. a sixth book added to the De- cretale. Then followed, in 1317, the " Clementina " collection of Clement V. The ordinances not included in the foregoing three collections had been known as " extravagantes," or wanderers; but these alSo were now collected, first, by John XXII, in 1325 (the " Extravagantes Johannis XXII "), and by later popes to Sixtus IV (the " Extravagantes communes ")• These various collections, being regarded as parts of a single systematic legislation, became known as the " Corpus Juris Ca- nonici," — just as Justinian's " Corpus Juris Civilis " signified the union of the various books of his legislation. Gregory XIII, by a commission known as the " Correctores Romani," gave a de- finitive official text to the whole Corpus, and this official edition appeared at Rome in 1582.^ 1 The latest critical edition of the text is that of Friedberg, "Corpus juris canoniei, editio lipsiensis," etc., Leipzig, 1879-1881. The ordinances after the Roman edition were collected in chronological order in "Bul- laria," and the general collection of a series of these is known as the "Bul- larium Magnum " ; the editions begin in 1727 ; then the "Continuatio,'' 1838, "Editio locupletior," 1857, and later ones. 115 § 29] ITALY [Part II § 29. The authority of the Canon law, as a common law, varied for different periods, regions, and subjects. As to its period of greatest authority, this was certainly the Middle Ages. Not even the Roman law could then compete with it ; and its influence over the Germanic law has already been described. In the later periods, it still remained a power, even though kept within limits and sometimes even treated with hostility. The municipal statutes could not supplant it, they themselves were even tested by the criterion of their harmony with Church law (post, § 60) ; and they may be said to have taken their sanction from it, in so far as their sources, the local customs, had to be approved by the Church's authority (post, § 58). The royal and ducal statutes, also, recognized the Canon law as a common law.^ As to the places of its greatest authority, these were naturally those regions which came directly under the political governance of the Church ; here the Canon law prevailed even over the Roman law on points where they might be in conflict {post, § 70). Else- where much depended on the local political conditions. Hence a good deal of variation ; what was accepted in one jurisdiction might be rejected in another. As to the subjects in which its authority was recognized, this was naturally the crucial point of the rivalry. In some subjects, strictly concerning secular affairs only, the Canon law was never recognized. In others, where the interests or policies of State and Church had something in common, they united to support the Church law ; this happened, for example, in the matters of Church property, tithes, the " peace of God " (or prohibition of personal violence), usury, clerical immunities, and many others. And, in still other matters essentially touching the dogmas of the Church, the authority of Church law was exclusive, and the State merely confirmed it; for example, in matters of marriage (impediments, ceremonies, consent, and especially (^vorce), of the status of those who entered holy orders, and of the exclusive jurisdiction of the Church over certain persons (e.g. ecclesiastics) and over certain offences (e.g. sins). Of the latter sort, the most notable example was the inquisition of heresy, where the civic laws implicitly ac- cepted the Church's commands, and the civic authorities acted merely in execution of its judgments. All this changed, as modern legislation accepted the inspiration 1 The constitutions of Amadeus VIII expressly state this (post, § 71) ; and in documents of southern Italy a clause frequently occurs renouncing "omni jure canonico." 116 Chap. II] ITALY DURING THE RENASCENCE [§ 30 of new principles, especially that of the separation of Church and State. The Church's law yielded, and the domination passed entirely to secular law. Where secular interests came to be re- garded as the exclusive ones, — as with marriage, — the secular law now acted from its own point of view alone. Where the Church's interests were necessarily involved, — as with the status of the Pope, the religious orders, the Church's property, and the like, — the State controlled them by special rules representing its sovereign power; and this is now the status of what is termed " ecclesiastical law " in the secular sense. § 30. The Roman Law.^ — Even under the system of the per- sonality of law {ante, Part I, § 48), the Roman law had maintained a powerful position in ItaUan legal life (ante, § 1). When the system of territoriality (ante. Part I, § 67) became reestablished, the Roman law gradually regained the predominance which it had lost under the Germanic invasions and the feudal system. The causes of this were partly the increase of influences already originat- ing in the feudal period, and partly new ones. The two supreme social institutions, the Church and the Empire, had welcomed the Roman law. The Church was born under Ro- man law, and drew therefrom the guarantee of its privileges; except on specific points of conflict of rules, the Church had always recognized the Roman law as valid. The Empire had come to accept it, partly because it furnished that element of universality which the Empire regarded as its own mission, and partly because the Roman law supported the Empire in its justification of absolute supreme power; so that the imperial authority, wherever it ex- tended, favored Roman law. The jurists, in determining the applicability of Roman law in a given region, took as their criterion the fact that the region was subject to the Empire. Wherever Christianity went, moreover, there also the Church took Roman law; so that the influences were reciprocal, and Christianity tended to be coextensive virtually with the imperial authority. Thus the Roman law took on the quality of an international common law, relegating the other systems to the status of local laws for a particular country. Other reasons went to influence Italy's particular leadership in the development of Roman law. There was of course the univer- 1 Pertile, "Storia," § 63 ; Salvioli, "Manuale," part II, e. 19 ; Schupfer, "Manuale," sect. II, tit. I, c. 2 ; Brugi, "Le cause intrinseehe della univer- sitalita del diritto Romano," Palermo, 1886; Vanni, "La universalita del diritto Romano e le sue cause," Urbino, 1887. 117 § 31] ITALY [Part II sal substratum of Latin culture and traditions, absorbing and transforming all the invaders, reviving vigorously under the growth of the city-states and the progress of the Renascence, and easily adaptable to the new modes of life and thought. But the principal cause was that Italy had become the centre for Europe's study of the Roman law} Italy's schools of law made its cities famous as resorts of learning. They grew in population and in splendor. They sent forth judges, legislators, and other officials, to play a part in the government of other communities and to extend the influence of the system of law in which they had been educated. The rulers of other States resorted thither themselves, to secure their legal advisers or to learn how they might found similar schools in their own dominions. Foreign students flocked from all parts of Europe to study the science of law and to carry back its principles and apply them to the legislation of their various native countries. As a result of all these influences (which lasted beyond the Re- nascence, and down into fairly modern times) the Roman law, with its renewed glory and its vast diffusion, gave a character to the entire epoch. It acquired the status, not only of the dominant system in Italy's law, but of a common law inspiring a renascence of legal science throughout Europe. Thenceforward Roman in- fluence prevailed in the entire development of law to modern times. Amidst this universal movement, what part remained for the other legal systems, as to their validity in principle and their im- portance in practice ? This question deserves more particular ex- amination. § 31. And, first of all, what relation did the Roman law come to occupy towards the Church's lawf In the earlier period, as al- ready seen {ante, § 27), the Church's favor had been one of the very causes of the Roman law's prosperity. But now that the latter was independent and stood in no need of the Church's countenance, things were bound to change. The protege of the Canon law be- came its rival. Sundry reasons rendered inevitable this competition. In the first place there was the political situation. The Empire was now striving to free the State from Church control ; and in this struggle • ["Italy was for a while the focus of the world's legal history" {F. W. Mailland, "A Prologue to a History of English Law," Select Essays in An- glo-American Legal History, ed. for Amer. Law School Ass'n, 1907, vol. i, p. 11). "During the rest of the Middle Ages, hardly a man acquires the highest fame as legist' or as decretist who is not Italian, — if not by birth, at least by education" {Pollock andMaitland's "History," 1, 100). — Tkansl.] 118 Chap. II] ITALY DURING THE RENASCENCE [§ EL the Roman law was of course the Empire's support. Then there was the economic reason. The new interests and pohcies which were building up social progress were chiefly commercial, — the citizen class, — and these found no support in Canon law. It was chained to dogma; it was unfitted for rapid adaptation to com- mercial methods ; its religious and unworldly standards could not make concessions to secular usages; its ecclesiastical privileges and immunities, obstinately maintained, were an obstruction to commerce ; it had a rooted reluctance to condone that pursuit of moneyed gain which was a vital aim of mercantile life. Thess cir- cumstances serve to show how little favor the Canon law could expect from the mercantile classes. The Roman law, on the other hand, had everything to expect from the new candidates. It had reached an advanced stage of development, especially in the field of contract; it was inherently adaptable to new problems; and it could satisfy all these new demands. Moreover, it was a period of looking forward to the new; and the Roman law now itself shared this spirit, while the Canon law had its face to the past. Dante (who was an expression of his time) exhibits this spirit in his reproaches to those who clung to the study of the Decretals. Even the clerics themselves did not escape its influence ; they de- serted their cloisters to study the civil law in the secular schools. Hence a general attitude of antagonism between the two systems. The Canon law saw itself losing a dominion hitherto undisputed ; the Roman law, aided by a conspiracy of circumstances, hastened to reap the profit and to complete its emancipation. One of the results of this rivalry was soon seen in the course of the Church's effort to maintain its old position. It placed a ban upon the study of Roman law.^ At first, this ban was confined to the clerics themselves. The Councils declared that it was a study not suited for ecclesiastics.^ This prohibition the popes followed up, from time to time, notably Honorius III, by his bull " Super ' There are numerous essays on this subject ; the following are among the principal ones: E. Caillemer, "Le pape Honorius III et le droit civil, Lyon, 1881 ; Tardif, "A propos de la bulle Super Speculam," N.R.H., 1881 ; De Monleon, "L'eglise et le droit Romain," Paris, 1887; Fournier, "L'gglise et le droit Romain au Xllle Siecle," cited in N.R.H., 1890; Digard, "La papautS et I'gtude du droit Romain au Xllle siecle," Bibl. de rScole des chartes, 1898. [For England, see Pollock and Maitland, "History of English Law," I, 102. — Tbansl.] 'E.g. the Council of Tours, in 1163, aiming to prevent "sub occasione scientias, spirituales viri mundanis rursus actionibus involvantur," or- dained that "nulli omnino, post votum religionis, ad- leges mundanas legendas permittatur.exire'.' : C. 3, X, "Ne Clerioi" (III, 50). 119 § 31] ITALY [Paht II Speculam," in 1219/ and Innocent IV, in 1254, by his bull " Do- lentes." ^ But the continual renewal of these orders proves their futility. Roman law went on flourishing, and the aggressive hostility of the Church merely reacted upon itself, and resulted in the complete exclusion of Canon law from the legal field. The bitter open opposition ceased (though some of the Romanists continued to vent their sentiments of contempt for the other sys- tem) ; but the Church then resorted to more subtle methods. It attempted to compete with its adversary in the open market, by equipping itself with its rival's own elements of strength. It established the centre of Canon law instruction at the headquarters of the Romanists. At Bologna, each system now had its own professorial chairs, its own texts, and its own commentaries, in full rivalry. And it was at Bologna that the Canon law, in fact, reached its zenith ; for there Gratian compiled his " Decretum," and there the ofiicial editions of Gregory, Bon'face, and Clement were published. The aim of the papacy was to demonstrate its then unprecedented power, by placing the system of Canon law on a level with the authority of Roman law ; and its success in this aim cannot be denied. And, after some time, indeed, when the study of Roman law had itself begun to show signs of decadence, it found that a union of forces would serve its interest If the Canon law was no longer, as of old, to be the Roman law's champion, it could at least be an ally, and could support the Roman law in the latter's claims to be the common law. The Canon law, in fact, was now ready to con- cede the propriety of a common law for secular affairs, — just as the Church itself, while maintaining its supreme authority in religion, had now conceded political supremacy to the State in temporal affairs. And so the allies agreed on a division of the field. The Church was not to permit any open contradiction of certain fundamental principles — the dogmatic basis of its existence. Nor was it to yield up jurisdiction over certain subjects intimately 1 After lamenting that secular interests have led to a neglect of eccle- siastical duties, he proceeds to repeat the prohibition, and especially to forbid the teaching of Roman law at Paris, which was then the centre of theological studies and a stronghold of clerical influence. 2 This one (of which, to be sure, the authenticity has been much doubted) laments the failure of prior orders to accomplish the purpose, and extends the prohibition to many other places, requiring for any exception a papal dis- pensation and the local ruler's consent. Nothing is said as to Italian schools ; but the glossator John of Andrea notes that at Perugia the Roman law was not studied, while strangely enough it was free from the ban at Rome. There must have been some prohibition for Italy ; but doubtless the local conditions at Rome were thought not to need any express provision. 120 Chap. II] ITALY DUKING THE HENASCENCE [§ 32 related to its spiritual function, — such as marriage, oaths, vows of celibacy, the clerical status, and the like. For the Roman law to submit to these conditions, as it did, was to suffer serious limits of power. And its submission may be explained by the larger fact that the Roman law, after continuing for a time in the van of social progress, ended by retiring from the field, and came to be regarded as an antiquated system, no longer suited to the times. § 32. The relation of the Roman law to the territorial and muni- cipal laws gave rise also to a number of questions, though not so extensive in their import. For the municipal statutes, the question arose which law should prevail, in case of a conflict with the common or Roman law. Those jurists who conceived the local law as existing merely by conselit or delegation from the Imperial authority (post, § 57) would naturally regard the Imperial, i.e. the Roman law, as controlling. Scientifically, the Roman law was to them the "ratio scripta," the embodiment of " right reason," and whatever contradicted it was void. Politically, the Roman law represented the dominion of the Empire as against the cities and the princes who were seeking to make themselves independent ; the inferior's law could not prevail over the superior's, and local policies could not be deemed para- mount to policies of universal validity. Such was the theory of most of the jurists, from the 1200 s onwards. But there were others, who, in the Roman texts themselves, found support for the contrary view. Secular (or civil) law, they maintained, was that which each people established for itself. Just as at Rome it had been conceded that the civil or national law prevailed over the " jus gentium," so now, some argued,' the municipal codes should take precedence of the Roman law, which had only the status of a " jus gentium." Other jurists based their argument on the moral law of nature. By that law, each people, like each indi- vidual person, had an inalienable right to its own existence ; each required, for its own social life, its own laws ; to oblige these laws to satisfy some superior universal law was to nullify the very ex- istence of the community. All of this reasoning, to be sure, was more or less artificial. The Roman law, in theory, was not disposed to admit any rule derogat- ing from its own ; the secular law emanated, not from the cities, but from the State ; the Roman theory of sovereignty could not sanction its dismemberment into fractions, with each city possess- ing its fraction of legislative independence. And yet, on the other ' E.g. Albericus of Rosate. 121 § 33] ITALY [Part II hand, the simple fact was that the cities did possess it, and were able in one way or another (sometimes by victory of sheer force) to exercise and defend their power. It was only when the power of the cities waned, and out of their units a real political State was built up, that in practice their statutory laws yielded to the general law and retained only such limited jurisdiction as might be con- ceded to them. But the Roman law, though not able to maintain itself practi- cally at these points of direct conflict, had nevertheless an impor- tant influence. In the first place, it served to supply considerable material which the city statutes absorbed and enacted. More- over, their application in practice lay in the hands of lawyers and judges trained in the Romanist schools of law, and thus many Roman principles came to be introduced into the statutes. And, finally, as a common law, the Roman law applied where the statutes were silent. In spite of all this, it must be remembered that the statutes were based chiefly on local custom, into which there entered con- stantly a Germanic element ; and that the new needs and policies of the times (especially in commercial affairs) were unrepresented in Roman law, which with all the efforts of its adherents could not be completely adapted to the situation. And so it was that the statutes inevitably diverged at many points from the Roman law ; and this divergence, founded as it was on the needs of the time, would find the local law prevailing over the other. § 33. Such also would be the result for the national (ducal, royal) laws of the various Italian States which succeeded the cities as the political units. But here other causes entered into the result. Public law was the chief field of this legislation ; for it was an epoch of political reconstruction. Moreover, after the first stage of activity, there ensued one of legislative quiescence, during the de- cadent period when foreign dynasties and political absolutism prevailed. And so it happened that these subordinate bodies of law, which might have been entirely assimilated and deprived of validity if the original vigor of legislation had persisted (and which were in fact ultimately absorbed at a much later period, in the 1800 s), sprang again into vigor, and once more extended their scope. Especially was this the case with Roman law. Both in study and in practice, it now became, more than ever before, the basis of a universal legal science. The Lombard law also, in its bearing on the feudal tenures, appropriated a special and limited field. 122 Chap. II] ITALY DURING THE RENASCENCE [§ 34 The Canon law, while retaining its dogmatic principles and its particular subjects of jurisdiction, in all else left the leadership to Roman law and worked in mutual support. Thus in the field of private law (with which legislation meddled little) the Roman system now reigned without a rival. Machia- velli, describing the justice of his day, tells us that it is nothing more than the decisions of the ancient jurists. And when, at a later period, the critics of the law called for that reform which (ultimately) was achieved in the 1800 s, the burden of the com- plaint was that the law was nothing more than Roman law, out of date amid modern conditions. Public law (the chief topic of the Renascence legislation), though much less subservient than private law to Roman in- fluences, had not remained unaffected. Some of the notions of sovereignty, as applied by the new States, were essentially Roman. The absolute ruler of the Roman law was the model for the Re- nascence princes and the dukes. The State harked back to the memories of Rome; Machiavelli, for example, can do no better, in his counsels for a State's prosperity, than point to Roman times for his examples. In criminal law, too, the same imitation was seen. The penalties were those of Roman law; the Egidian or- dinances recall the " lex Cornelia de sicariis " ; the jurists in their treatises and the practitioners in their trials cite always the Roman texts. And thus things continued until the violent reaction at the close of the 1700 s, under the leadership of Beccaria, when the prime cause of the evils which the reformers then complained of was the law's servile adherence to the antiquated principles of Justinian. § 34. Nevertheless, it would be a mistake to suppose that this antiquated common law — which dominated to the end of the Re- nascence period, was the pure Roman law of Justinian's Corpus Juris. Into the web of that system had been woven, during the centuries, many cross threads of diverse texture. The Germanic customs; the new social and commercial conditions; the feudal system ; the Canon law, — all these had meanwhile had their in- fluence on pure Roman law, by inserting many new principles and entirely ousting many old ones. The family council, the beneficial interest (trust) in property rights, marriage, the feudalized per- petual leases (emphyteusis), — these are merely a few of the novelties which Roman common law had accepted. In this aspect, it fulfilled a kind of cycle in development, corresponding to that of the preceding period. In the early Middle Ages, the Roman law of classic times (250) had once before assimilated into itself 123 § 35] ITALY [Pabt II the local customs, and had become the so-called " Roman popular law " {ante, Part I, § 10). And so now also, adapting itself once more to changed conditions, the law of Justinian had taken on new features, and was enabled to preserve its force as current law. And in this second cycle, it became transformed into a genuinely Italian law, — an Italianized Roman law. This second cycle of adaptation, however, was the work of the scientific jurists (and not, like the first, an absorption of popular local customs) . Under the Renascence, there had arisen a scien- tific study of law, in contrast with the merely practical aims of the earlier jurists. But that type of scientific method which sought to base itself on the pure Roman sources never developed far in Italy; its chief support was in other countries. In Italy, the history of the science of law had therefore a special significance, not only for the form of the law itself, but also for its political and social results. To that topic we must now turn. Topic 2. The Science of Law ^ § 35. Beginnings of Legal Science. — By the end of the 800 s, Charlemagne's system of government had been completely broken up. His successors were constantly at war among themselves. Feudal rule supervened. National civilization was at its lowest ebb. Legal learning suffered, with every other form of culture. Not until about the year 1000 can we detect a slow renascence of legal studies. The Roman law shows itself in the lead in this new life. At Pavia, it was recognized as " general law " {ante, § 10) ; at Ravenna, its chief home, it was in high honor {ante, § 12) ; and elsewhere there were signs of that movement which later culminated in its dominion. To external causes accounting for this new animation, little or nothing is to be attributed. The merit of it was not due to the Church; for the Church (while generally disposed to support Roman principles) was at this particular stage under strong motives rather to impede its study. Nor can we credit the Emperors with having given the initial impulse. They did favor it, indeed, especially the Suabian dynasty, to advance their own political interests ; but not until after the revival and spread of the study had shown them its utility for those interests. The Romanists 1 [§§ 35-55 = Calisse, part III, title IV, §§ 142-162, pp. 277-331. This title of the author is here transposed, to precede his titles I and II, but to follow his title III, to make the development clearer for our pur- poses. — Transl.] 124 Chap. II] ITALY DURING THE RENASCENCE [§ 36 with whom Frederic II surrounded himself were the successors, not the predecessors, of Irnerius (post, § 42). The most famous exponents of Roman law included quite as many anti-Imperialists as it did Imperialists.^ The centre of Romanist studies, Bologna, was rather hostile than friendly to the Imperialist party. Frederic II ended by showing disfavor to Bologna, in spite of which it con- tinued to prosper, and all his efforts to make the Naples school (which he founded) the equal rival of Bologna were futile. The earliest universities, moreover, were not State schools; and this alone would show that it was not through imperial favor that the study of law sprang into new life. Nor, finally, can the newly arising city governments be given the credit. They did indeed favor the schools ; but here, too, the favor was not marked until the throngs of students and the repute of the new learning had made the citizens appreciate the advantages which accrued there- from to the cities in which the schools flourished. It is, in truth, in what we may call intrinsic causes that we must seek for this wonderful renascence of the study of Roman law. The revival of culture was already permeating society at large; and Romanist rather than Germanic culture was alone adapted to respond to this demand. In the legal field, the crudities of the existing practice created needs which the Roman learning alone could satisfy. In its capacity for practical service and wide application, it far surpassed either the Lombard or the Canon law. It was, in short, the one most adapted to be a " common " law. These, the real causes of the revival, may be traced alike in the history of the schools themselves and in the scientific literature to which they gave birth. § 36. The Schools of Law.^ — The Roman law came first to be taught by the instructors in the ancient " grammar " schools {ante, §§ 9, 10) and by the practitioners of law (" jurisperiti," " legum doctores," " causidici," " judices")- The teaching was oral ; and, by reason of the scarcity of manuscript books, the hearers were numerous; for there was practically no other way of learning. A master's talent and fame was the sole cause and limit of the size of his classes; for he had neither office nor salary from the ' ["Guelfs" and "Ghibellines," in the original. — Transl.] ^Fertile, "Storia," § 60; SalvioU, "Manuale," part II, ee. 16-18; Schupfer, "Manuale," sect. II, tit. II, c. 1; Coppi, "Le Universita ita- liane nel medioevo," 3d ed., 1886; Denifle, "Die Universitaten des Mit- telalters bis 1400," Berlin, 1885; Schupfer, "Le Universita e il diritto," Milan, 1891 ; Fournier, "Histoire de la science du droit en France," 1892 (only vol. Ill published, dealing with the universities) ; Rashdall, "The Universities of Europe in the Middle Ages," 1895, vol. I. 125 § 36] ITALY [Part II State. These voluntary groups of teachers, united by a common purpose, and located in various parts of Italy, made the begin- nings of what later became the organized and chartered Universities. This name they did not bear at first. They were simply " Schools." The later term " Arts " (" Study ") ^ indicated a school that had attained a certain permanence and fame. Some of the " arts " came to be known as " general " ; i.e. they accepted all kinds of students, including foreigners, and their diplomas re- ceived general recognition, as qualifying the holder to teach and hold academic office in any place. A school might acquire the status of " general arts " in two ways. The first and earlier was simply by common custom ; i.e. its acknowledged excellence had gathered students from all quarters, and had thus gradually estab- lished everywhere a high repute. The other and later mode was by charter from Pope or Emperor, whose supreme authority had universal recognition and could by this single act give the status of " general arts " to a school which perhaps had not existed until that moment. The earlier schools were all of the former sort, growing gradually into fame and completeness. They were voluntary associations, organized much like the ordinary trade gilds, whose mode of governance was also analogous to that of the cities themseh^es. Every " corporation " (as the various associations were called), and therefore every academic " art," had its own ordinances, or " statutes," made and revised by elected representatives. It had a chief, or " rector," elected for a short term, and aided by councils, general or special, like the mayor of a city. And just as the other corporations and the cities had within themselves various smaller groups (trades or " arts "), of which some were inferior and others superior in rank or power, so too both teachers and students were divided into further groups. The students were formed into " nations," that is, according to the country or region whence they came. And just as the cities had in some cases a democratic, in others an aristocratic constitution, so too, in the universities, we ' [The Italian word "studio" means also "an art or science," i.e. a branch of study, and thus its implication includes both the subject of study or pursuit, and the group of persons so studying or working to- gether. Moreover, in classical Rome, "schola" meant a trade gild or craft gild, like the later Italian "arte" and English "art." THs now lost usage of "art" is kept alive in oiu- modern phrase "Arts and Crafts," which signifies precisely the scope of "studio." But that same scope is also the origin of "Arts" as to-day traditionally used for the college de- partment of a university and for the title of a graduate as "bachelor of arts." Hence, it seems quite in keeping with university tradition to translate "studio" as "art." — Transl.] 126 Chap. II] ITALY DURING THE RENASCENCE [§ 37 find that in some cases the students constituted the corporation, and even elected the rector and the masters ; ^ while in others only the latter shared in the government, and the students were merely permitted to enjoy the benefit of the instruction.^ By the period when this organization of the schools had been perfected, the term " university " had come into use. This term did not in any way imply that all branches of science were there taught ; no such institution then existed, nor for long afterwards. It signified merely the legal nature of the body ; i.e. it was an ap- plication of the technical Roman law word " universitas," im- porting a union of many persons for a common purpose, — here, that of teaching and being taught. § 37. This voluntary and unofficial status of the schools of law did not long continue. In the second period of their development — beginning, on the whole, with the 1300 s — the schools now founded would usually be authorized by charter of the Pope or of the Emperor. The emperors came to realize (as Justinian and Charlemagne had done in their day) that education, especially, as fitting for public office, might well be taken under their control. The Church, too, which had even in the Middle Ages charged itself with the work of education, was less than ever disposed to renounce this prerogative; for it had need to take measures to diminish the widening breach between Science and Faith. And so it came about that nearly all the universities, either at the time of founding or afterwards, were now in possession of a papal charter carrying with it valued privileges. Thus began the tendency, which resulted later in a universal practice, to treat the universities as agencies of government — in short. State universities. The University of Naples, for example, was explicitly founded as such by Frederic II ; and in one way or another, with varying results, the other universities were subjected to State control. The city governments, indeed, had already been trying something of the same sort; for the jurisdictional in- dependence enjoyed by the universities had often brought with it loose practices and town-and-gown disorders. The cities went about their object in several ways. They would offer to famous professors elsewhere an official salary, which attracted them to the local university; once there, they were under the control of the city, which had now the right to nominate, to supervise, and to punish the incumbents of those chairs. Another means of control ' As at Bologna ("universitas scholarium"). " As -at Paris ("universitas magistrorum"). 127 § 38] ITALY [Part II was the students' customary oath, given in exchange for the priv- ilege of residence in the city; it bound them not to remove the university from that place, nor to stir up breaches of the public peace. ^Vhen the independent city governments declined, and were succeeded by the despotic ducal States, their free institutions were suppressed, and with these the universities also suffered. Many went out of existence ; they had lost touch with the popular needs. Those that survived were kept under strict official regulation. The present distribution of the surviving universities — invariably at the capital of one of the former Italian States — shows how closely they were related to the government. Where we find more than one in a single State — as in Tuscany and the Papal Terri- tories — it is only because in those regions political power was late or incomplete in its centralization. The universities could no longer sustain themselves, except in those few important or capital cities where the State gave them countenance. And thus it is that in numerous cities, where once flourished universities, — Vercelli, Brescia, Lucca, Arezzo, Fermo, Ascoli, Vicenza, Reggio, and elsewhere, — there remains to-day little more than a memory. § 38. The School at Bologna.^ — Of those schools of law that survived amidst all such vicissitudes, the most illustrious was that of Bologna, — the cradle of the revived learning, and the greatest centre for its diffusion throughout the civilized world. The origin of this University is wrapped in obscurity. This much is known, that it began, like the other schools, as a development from the medieval " grammar " schools and the gild of court practitioners. Its earliest recorded teachers bear the titles " rhetor," " artibus peritus," " causidicus," " judex." There is also a tradition of some specially legal learning here, at a date before the school be- comes known. However, the source of almost all of the little that is certain about its early teachers (including Irnerius) is no more than their mention in the court records of the time. ' Schupfer, " Manuals," p. 487, has an extended bibliography of this subject. Among the more recent books and articles are the following : Ricci, "I primordi dello studio di Bologna," Bologna, 1888; Chiappelli, "Lo studio Bolognese nelle sue origin! e nei suoi rapporti eon la scienza pre-Irneriana," Pistoia, 1888; Fitting, "Die Anfange der Rechtschule zu Bologna," Berlin, 1888 ; Leonhard, "Die Universitat Bologna im Mit- telalter," Leipzig, 1888; Rivier, " L'Universite de Bologne et la premiere Renaissance juridique," N.R.H., 1888, XII; Tamassia, "Bologna e le scuole imperiali di diritto," A.G.S., 1888, XL; Schupfer, "Le origini della Universita di Bologna," A.R.A.L., 1889, VI; id., "Studi critici su recenti pubblicazioni intorno alio studio di Bologna," R.S.I. , 1889. 128 Chap. II] ITALY DURING THE RENASCENCE [§ 38 Bologna was then (as were other cities) the seat of an episcopal school and a royal court of justice. Its central and accessible loca- tion; its commercial importance; the hearty support shown to the school by both city and sovereign ; and, above all, the personal genius of some of its early teachers, — each of these no doubt helped to make the school prosper. But its attainment of that extraordinary distinction as the first and for a while the only real centre of general legal studies was due to two special qualities which early came to mark its teaching. (1) The first was its comprehensive and non-partisan attitude towards the several rival tendencies in legal thought. It united and assimilated all the elements which went to make up Italy's inheritance from the past. In particular, it merged and repre- sented within its walls the contributions of Ravenna (ante, § 13), of Pavia (ante, § 10), and of the Constantinople of Justinian, (a) Not distant in location from Ravenna, it had replaced that city as the metropolis of the Exarchate. With this transfer of tem- poral fortunes follow the patronage of the student world. The very origin of the school is by tradition ^ ascribed to the circum- stance that the manuscripts of Justinian's law-books were deported from Ravenna to Bologna. The discussions and decisions of the Ravennese jurists were often adopted into, the Bolognese glosses. The school regulations were the same. Irnerius is said to have lectured at Ravenna before his famous career at Bologna. They were both primarily schools of Roman law, though using different methods. (&) With Pavia, also, Bologna was in intimate relations. The " Lombarda " (ante, § 16), which became the basis of public instruction in Lombard law, was compiled at Bologna. The Glossators gave recognition to the doctrines of the Pavian lecturers. Irnerius himself, at Bologna, is said (in tradition) to have had as a colleague in his early days Lanfranc, the brilliant Lombard jurist (ante, § 11). The very method which gave fame to Bologna was in essence none other than the method already used for Lombard law at Pavia (ante, § 15), applied by means of glosses and of parallel passages, compends, and the like. The adjacent Tuscan region, too, with Pisa then its leading city, had an influence at Bologna. The Tuscan cities were a home for the rapid spread of the Renas- cence, a headquarters for the rising commercial prosperity, a politi- cal centre well equipoised between the rivalries of pope and em- peror ; signs of their cultivation of legal studies are not wanting, ' As related by the glossator Odofred. 129 § 39] ITALY [Paht II notably Pisa's long possession of the best and most complete text of the Pandects.! These traces of that study point towards Bologna ; ^ the Pisan text was known there ; Tuscan jurists taught there, — Pepo (the earliest), Burgundio (a Greek scholar), and Gratian (the founder of the new school of Canon law). The very beginnings of Bolognese studies lead us back to Tuscany ; for Irnerius had been a judge in the court of the famous Countess Matilda of Tuscany,' and her encouragement is said to have led him to found his school, (c) Finally must be recognized the re- lation of Byzantine culture to Bologna. Here, too, legend has it that Irnerius, the founder of the school, had studied in Con- stantinople.'' But behind all legend the fact is certain that Byzantine legal science must have formed a background for the Bolognese school, situated as it was in the region of early Byzantine rule, where the traditions of the law doubtless long persisted. (2) The second quality, which helped to raise Bologna to celeb- rity and at the same time to give it an individuality and to foster its leadership in Roman law, was its peculiar political opportunity as a city. Pavia was the home of Lombard traditions ; but those were out of date. Rome was the headquarters of the Church's control ; but that control was now being thrown off. Tuscany was being compelled, by the intensely Guelf policy of Countess Matilda, to abandon its ancient attitude of sympathy for the imperial cause and thus to lose all prospect of imperial favor. There remained only Bologna ; and there, naturally, the study of the Roman law would best flourish anew under its traditional patron, the imperial throne. § 39. This revival of Roman law, moreover, signified new methods of study. In the first place, law was now separated from dialectic, rhetoric, and the other branches, and made a separate school or faculty. Furthermore, it ceased to be a mere tool, con- trolled by the needs of practioners; it was expounded strictly as ' [The copy which was afterwards taken by the Florentines and is now in the Laurentian Library ; the same which tradition once declared to have been captured by the Pisans at the sack of Amalfi (see the note to § 42, post.). — Teansl.] ^ Chiappelli, "Recherches sur I'etat des etudes du droit Romain en Toseane an XI siScle" (N.R.H., 1896). ' [The most learned, rich, and brilliant woman of her time, whose dominion included Pisa, PavIa, and Bologna. — Tbansl.] * Equally legendary are the stories that the Roman Emperor Theo- dosius II had founded the Bologna school ; and that the Pisan text of the Pandects had come directly from Constantinople or from Amalfi its trib- utary city ; see note 2, § 42, post. 130 Chap. II] ITALY DURING THE EENASCENCE [§ 40 a science, after the manner of the jurists in classical Rome. Re- turning thus to the classic period of eight centuries before, it paid no heed to the " popular " Roman law of the intervening feudal period, nor yet to the hornbooks and practice manuals which had hitherto been the materials of study. It devoted itself solely to the texts of Justinian. It acknowledged no other aim than to know that text perfectly and to expound it faithfully. A method so novel and bold, wielded by a talent as remarkable as that of the early Bolognese jurists, could not but produce results hitherto unimagined. No wonder there grew up a universal opinion that Roman law could be really learned nowhere else than at Bologna. And the now unlimited demand for Roman law soon sent crowds of students from all quarters of Europe. The School was now so influential that pope and emperor alike were obliged to reckon with it. The emperor, whose claims it had favored, owed it a good turn. Its oldest and greatest privileges were contained in a charter of Frederic I (Barbarossa), the " Ha- bita " of 1158 {jjost, § 67). This charter, reciting how the students had left the comfort of their homes to travel afar and devote themselves to the pursuit of learning, and how the teachers were enlightening the world by their instruction, granted them a special imperial protection. Whoever injured them must pay fourfold; magistrates who failed to enforce this rule would lose office and become infamous ; a member of the university, when sued or pros- ecuted, was to be tried either by his university superior or by the bishop of the city. And the city itself conferred privileges, chiefly directed to guaranteeing the comfort and convenience of university life within its walls. The Church also (after the early period of rivalry with the Romanists) added its share of privileges. And so the School's prosperity was assured on all hands. § 40. Other Schools. — Taking example from Bologna, other schools of law multiplied throughout Italy during the 1200 s and 1300 s. New ones were founded ; and those which already existed took on new life. Sometimes this occurred by migrations of bodies of teachers and students from Bologna (induced by some local epidemic, some conflict with the city authorities, or like motives). They would settle in a city which was conveniently near or which made them some offer of a special advantage. These new ventures did not always endure (as, for example, at Vicenza, Arezzo, Florence). But others prospered permanently, such as the schools of Padua (founded in 1122), of Siena (in the next century), and of Pisa 131 § 41] ITALY [Part II (founded In 1338, when Bologna was put under the ban by Pope Benedict XII) .^ In other instances, some ruler founded or restored a school of law, taking Bologna as his example. This was the origin of the State universities {ante, § 37), and was naturally a later develop- ment. The Naples school, "the first of this sort, was founded in 1224, by Frederic II, who was out of humor with Bologna and planned a system of State preparation for public office. With this in mind, he introduced the novelty of organizing in a single institution all branches of learning. Hitherto each school had usually represented only a single branch, — generally law (at least, at the outset), and Roman law at that; later, other branches of legal science, especially the Canon law, had been added. Schools of medicine followed (notably the one at Salerno, near Naples) ; and one by one the others had developed. The school at Rome was also a government foundation (in 1303). In the course of time, conditions so changed that the older schools, with narrower scope and less governmental favor, found themselves at a disadvan- tage. They aspired to an equality, and sought the direct support of emperor or pope. In the end, almost all the universities of Italy (as elsewhere in Europe) could show a papal bull as the foundation or renewal of their status. Imperial charters are not so numerous, — partly because the Church's interference was never wholly to be evaded, partly because the imperial authority was on the decline in Italy from the 1300 s onwards. Thus, throughout the period 1200-1400, we find the Italian uni- versities multiplying; and it was left for local conditions to de- termine which of them should succeed in the competition for survival. §41. The Jurists and their Methods. — The new scientific methods, employed by the early jurists of Bologna, and exhibiting the fusion of all the causes which had led to the foundation of the new schools, were pervaded by a single principle : To attain a com- plete familiarity with the texts of Justinian's books. What were these texts ? The Institutes, the Digest, the Code, and the Novels, — all ^ Rondoni, " Ordinamento e vieende prinoipali dell' antieo studio Fioren- tino," Florence, 1884; Gloria, "Documenti della reale Universita di Padova, 1222-1318," Venice, 1884; id., "Documenti, etc., 1318-1405," Padua, 1888; Zdekauer, "Lo studio di Siena nel rinascimento," Milan, 1894; Fabroni, "Historia Academiae Pisan»," Pisa, 1791-1795 ; Schupfer, "Manuale," p. 468, n. 61, has an extended bibliography on the various Italian schools. See also the " Annuario delle Universita'," for 1899-1900. 132 Chap. II] ITALY DURING THE RENASCENCE [§ 41 those they possessed at Bologna, yet in a form which was pecuHar to that period and controlled their course of study .^ The Digest was in several readings or texts, known as " literae." The " litera vetus " (or " litera communis," " litera antiqua ") signified the manuscripts earlier than the Pisan (or Florentine) manuscript, as well as some others which varied from it. The " litera Pisana " was the Pisan manuscript.^ The "litera vulgata " (or " litera Bononiensis ") was a composite text, prepared at Bologna by a collation of all the others, for use in the School. The contents of the Digest were peculiarly divided into three parts, — a classification which long persisted in Europe. First came the " Digestum Vetus," which went from the beginning to Book XXIV, title 2. Then came the " Infortiatum," onwards through Book XXXVIII. Finally came the "Digestum Novum," from Book XXXIX to the end (Book l). The origin of this curious division has been much disputed. It is now generally believed (following the traditions of the glossators themselves, as reported by Odofred) that it happened in the following way. When the law-texts were brought from Ravenna to Bologna {ante, § 38), and Irnerius began to make them famous, he did not at first possess ^Fertile, "Storia," §§ 61, 62; SalvioU, "Manuale," part II, c. 15; Schupfer, "Manuale," seot^ II, tit. II, c. 2; Savigny, books III-V; Pan- cirbli, "De Claris legum iuterpretibus, libri IV," Venice, 1637; Tiraboschi, "Storia della letteratura italiana," Modena, 1781-1786; Brugi, "Disegno di una storia letteraria del medio evo ai tempi nostri," Padua, 1888. ' This was the manuscript about which grew up the legend that it had been found at and taken from Amalfl, when the Pisans captured that city in 1135. It was indeed guarded with almost superstitious care; and its authority was very high. In the early 1400 s, the Florentines carried it off from Pisa to their city. The following books and articles deal with its history: Zdekauer, "Sull' origine del manoscritto Pisano delle pandette Giustinianee e la sua fortuna nel medio evo," Siena, 1890; id., "Note suUe due sottoscrizioni nel MS. Pisano delle pandette Giustinianee," Roma, 1891; Buonamici, "SuUa storia del MS. Pisano delle pandette," Bologna, 1890; id., "Di una opinione del prof. F.P. intorno alia storia del MS. Fiorentino," Bologna, 1898; Patetta, "SulF introduzione del Digesto a Bologna e sulla divisione in quattro parti," R.I.S.G., 1892, XIV; A. P., note in Z.S.S., VI, 300 (1885). [The famous Florentine parchment has now been reproduced, by photographic facsimile, under the direction of the eminent librarian of the Laurentian Library at Flor- ence, Comm. Biagi- (who attended the World's Congress of Arts and Sciences at St. Louis, in 1904, as delegate from Italy). The facsimile was issued (1905-1912) in a serial set of 100 copies only ; one copy is in the pos- session of the Elbert H. Gary Library of Law in Northwestern Univer- sity. The legend of the Amalfi origin of this manuscript was mentioned by Blackstone in his Commentaries, and thus obtained a fixed vogue in Eng- lish legal literature ; even yet it occasionally reappears in Anglo-American books. But it was forever disposed of, as an historical delusion, ninety years ago, in Savigny's epoch-making work. Its persistence in English literature therefore gives Savigny's passage a special interest for us. The 133 § 41] ITALY [Part II the entire text; it was only afterwards that the missing middle portion became known to him ; this welcome addition to his sources following passage is translated from Savigny's second edition of 1834 (vol. Ill, p. 92, § 35), omitting footnotes : "There is a widespread belief that the Roman law was throughout the JNIiddle Ages quite lost and forgotten. The story goes that the sole surviv- ing manuscript of the Pandects lay in obscurity at Amalfi, whence the Pisans took it as a part of their booty at their capture of Amalfi in 1135 ; the emperor Lothair II, whose allies they were, permitting them to keep it as a reward for their help ; and that he thereupon enacted that the Roman law should be enforced by the courts instead of the Germanic law, and thus by his command public instruction in Roman law came to be given. "Thus runs the full account, though usually we hear only one or another part of it asserted, while the rest is ignored or denied. Its most important feature is the assertion that Roman law was before that date not used, and that Lothair enacted such a law. The first of these assertions has been sufficiently disproved, in earlier parts of this treatise, by evidence extend- ing through every century. The second has never had the slightest evi- dence adduced in its favor. With these two assertions gone, it remains to notice the supposed rescue of the manuscript. This part of the story is sufficiently accounted for by the once widespread beUef that aU other extant manuscripts were copied from the Pisan. But that belief is now generally abandoned. The question, therefore, whether the Pisan MS. came from Amalfl, or anywhere else, is of little importance. Neverthe- less, the basis for that remaining fragment of the story must be examined. " The plunder of Amalfi rests on two ancient pieces of testimony : A. A passage from an imprinted Chronicle in Italian, probably of the fourteenth century, as mentioned by Diplo.vataecius and Taurellus. But Bologninus had already earlier procured through a notary a certified copy of this passage, from a surviving manuscript, and Brenkmann found this manuscript in Bologna and had the passage printed, in his history of the Pandects; Grandi afterwards printed it, correcting the errors. It was undoubtedly the same passage used by Bologninus and Taurellus, preserved in the hands of a Pisan family; and reads, "in la quale citta (Malfi) trovomo le pan- dette composte dalla Cesarea Majesta de Justiniano Imperatore." B. A passage from a historical poem of the fourteenth century, which also plainly tells of the plunder of Amalfi ("unde fuit Hber Pisanis gestus ab illis juris, et est Pisis Pandecta Caesaris alti"). So on these two testi- monies the story rests that the famous Pandect manuscript was plundered from Amalfi. "Now both of them date some two centuries after the event which they relate ; and their whole character is far from trustworthy. But none of the other and better chroniclers mention the event. Moreover, Odofredus, Hving in the thirteenth century, says expKcitly that this manuscript had been brought to Pisa from Constantinople in the time of Justinian himself. And Bartolus asserts that the manuscript had always been at Pisa. Both of these men, as jimsts, had had plentiful occasion to learn the history of this copy, already famous in their day ; its capture at Amalfi, if a fact, could not have remained unknown to them. There is therefore no ground for giving credit to such an event. "Still less reason is there for believing the part about the Emperor's presenting the copy to the Pisans. Taurellus tells us that Plotius Gry- phius had once owned the deed of gift, but that it had been burned with other documents in an effort to eliminate the plague. This is the only evidence at all for such a gift ; and its legendary character is so plain that a demonstration of its gross intrinsic improbability would be superfluous. And so, of this whole story of the revival of the Roman law through the Pisan manuscript, there remains nothing whatever worth crediting." [After noting two more supposed items in favor of the tradition, items 134 Chap. II] ITALY DURING THE RENASCENCE [§ 41 he therefore named the " Infortiatum." ^ However, assuming the correctness of this tradition, it at least proves that the pecuhar triple division must have been already made before Irnerius' time, at Ravenna, where the manuscripts themselves had been in earlier usage so prepared that the text of the middle portion had become physically separated from the two others. That the bulky Digest should have been subdivided for convenience in study, is natural enough. But why the division should have fallen at those partic- ular 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 teacher (following this tradition) was to expound, in the first three of the five years of study, twenty-three of the fifty Books of the Digest (through the topic of Dowry) ; with these, the first two titles {Marital Conveyances, and Divorce) of Book xxiv came to be included, because of their topical connection ; and so this formed the first Part (" Digestum Vetus "). This would explain the further facts that the surviving manuscripts of this portion are more numerous and accurate, and that this Part was included "which had been called to his attention since the first edition of his work in 1822, the learned author concludes :] "Surveying without prejudice all the known facts, the net result is this : In the fourteenth century a legend iad arisen in Pisa, which attributed the Pisans' possessions of this manu- script to a famous military event of the twelfth century. But this legend lias no adequate verification, and is in conflict with other evidence of the same or much earlier date. And even the chronicles which give it in some degree an historical status speak only of the capture of the manuscript ; all the rest of the story's ornamentation, particularly its presentation by the Emperor, is without even the slightest plausibihty. So the whole aflfair is more than ever reduced to one of those numerous legends by which the patriotism of the Italians sought to exalt the repute of their native city, — like the supposed foundation of the University of Bologsaa by the emperor Theodosius, which even in the thirteenth century was romanced about as a documentary fact." — Tkansl.] ' [I.e. "fortification," or "fortifjring addition." See Du Cange, "Glos- sarium," where ntmierous examples are given in the sense "fortify," "equip with munitions." — Teansl.] 2 Constit. "Omnem," prefixed to the Digest. [This ordinance, which is too long for insertion here, and is of covirse omitted by the author as being at hand in the Corpus Juris copies used by all Continental students, gave elaborate and complicated directions for the order of study of the various books of the Digest. Its essential part, for understanding the above explanations of the author, is found in these passages : "Ex triginta sex librorum recitatione flant iuvenes perfecti ; . . . duabus aliis partibus, quse in quatuordecim libros compositae sunt, eis depositis, ut possint postea eos legere" (§ 65); "ex libris autem quinquaginta nostrorum di- gestorum sex et triginta tantummodo sufiQeere ad vestram expositionem quam ad iuventutis eruditionem iudicamus" (pr.>; "sed ordinem eorum et tramites per quos ambulandum est manifestare tempestivum nobis esse videtur" (pr.) ; and the detailed directions for omitting certain books and for the order of those selected are then stated in full. — Transl.] 135 § 41] ITALY [PaeT II among the " regular " books (" ordinarii "), i.e. those covered in the regular morning lectures by the principal professors. But those twenty-three Books were not obliged to be the first twenty- three of the Digest; they had merely to be some twenty-three among the first thirty-six (the number prescribed by Justinian) ; with these, however, the next two Books, xxxvii and xxxviii (on " bonorum possessio " of heirs), came to be included, because of their connection with Book xxxvi (legacies and trusts) ; so that, in the medieval tradition, the compulsory part of the Digest went as far as Book xxxviii, and these extra Books, up to XXXVIII, which had not been taken up before, were studied in the fifth year. Thus, in the manuscripts which contained these Books i-xxxviii (and not merely Books i-xxiii and Book XXIV, titles 1 and 2), the extra part would naturally enough be called the " Infortiatum," or fortifying addition. The remaining twelve books (xxxix to l), which were not required to be studied, became the " Digestum Novum." Justinian's Code was also reckoned among the " regular " books, and came in the fifth year of the course. Both in omissions and inclusions, it differed slightly from the original text. The last three of the twelve Books, which dealt with public law no longer applicable, were not used in the school. But it included certain " Authentica," or extracts from Novels modifying the Code ; these were inserted at the proper places (post, § 67). The Novels themselves were rearranged. The text most known and used in the Middle Ages had been Julian's Epitome. But the Bologna jurists possessed also the oSicial collection, with a Latin translation of the Greek Novels, which they called the " Authen- ticum." But for the purpose of study they omitted those of less practical importance; and the remainder they divided into nine parts, called " CoUationes," to which were added two more parts made up from the later constitutions of the western Emperors (post, § 67). What was then known as the Corpus Juris, i.e. the entire body of " legalis sapientia " of the times, was composed of the foregoing four groups of sources (Institutes, Digest, Code, and Novels), to- gether with the " Lombarda " (ante, § 16), the Books of Fiefs (ante, Part I, § 61), and the Canon law-books {ante, § 28). The Corpus Juris itself was regarded as having five " volumina," or Parts, i.e. the three parts of the Digest made three Parts ; the Code, in nine books only, made the fourth ; and the fifth comprised all the rest (i.e. the Code's remaining three books, the Institutes, the Novels, 136 Chap. II] ITALY DURING THE RENASCENCE [§ 42 and the feudal laws) ; this fifth volume, with its incongruous con- tents, came to bear distinctively the name " Volumen." § 42. (a) The Glossators.^ — The method by which the Bologna jurists worked on these texts was known as the Gloss, or textual interpretation. This method developed out of several causes. A principal one was that the school of law had arisen as an offshoot of the school of grammar {ante, §§ 9, 35), and thus followed its spirit. Another reasOn was the surviving tradition of Justinian's prohibition against altering the.tenor of his laws by means of liberal interpretation. Still another was the paramount necessity, in that particular stage of the revived study of the manuscripts, for fixing the correct text as accurately as possible. The earliest teachers of Roman law thus came to be known as the Glossators ; and the first epoch of the revived science took its entire character from them. It was not that the use of glosses was new, either in other literary fields, or in its application to medieval Roman law {ante, § 18) or to Lombard law {ante, § 15). But it was now for the first time employed on the classic Roman texts ; and it was this application of it which led to such brilliant results. The gloss {"yXoa-ar)," synonymous with " verbum," " lingua," " vox ") was at first merely a short explanation of some difficult word made by means of some equivalent ; here was seen the con- nection with the earlier grammar schools. But the jurists soon went farther. The gloss became an exposition of a textual passage, or a principle, or an entire law. It was not a commentary because it confined itself (at least in the beginning) to expounding the main text adjacent. But it thus naturally fell into two sorts. Either it was merely an explanation of a word, and was placed under that word, between the lines ; hence called " interlinear." Or it was longer, interpreting a passage, and written alongside of it on the margin ; hence called " marginal." The different Glossators identified their respective glosses by suffixing their signs-manual, i.e. 'their initials or some other conventional mark. But as the gloss developed, it was used for conveying the results of the master's researches or the substance of his oral lectures ; so that it lost its original simplicity of purpose and became an elaborate compen- dium of knowledge. It included critical notes on the variant readings (" variantia ") of different manuscripts. It brought to- gether " loci paralleli," which helped to elucidate the point. When ^ Del Vecchio, "Di Irnerio e la sua scuola," Pisa, 1869; Tamassia, "Odforedo," A.R., 1893-1894; Besta, "L'opera di Irnerio," Turin, 1896; and Schupfer's extended bibliography in Ms "Manuale," p. 491, n. 63. 137 § 43] ITALY [PaBT ir these passages were in conflict (" antinomia "), it sought to rec- oncile them or to decide on the preferable one. Thus, finally, we find the gloss developing into a genuine commentarj', with all its proper appurtenances, — the summary (" summa,") the putting of illustrative cases (" casi "), the deduction of a general maxim (" brocardus "), and the discussion of concrete legal problems (" qusestiones ")} A gloss thus systematically carried out over an entire topic of law was known as an " apparatus " ; of this sort, for example, was Bulgarus' work on the concluding title of the Digest, " De regulis juris." § 43. The Glossators begin with the second half of the 1000 s. . Pepo, the first who is recorded as teaching by the new method, was living in 1176. But Odofred tells us that Pepo was never famous (" nullius nominis fuit ") and that the real founder of the school of Glossators was Irneeius, — the luminary (" lucerna juris ") of all who followed him. The scanty notices of Irnerius' life all identify him with the founding of the Glossators' school ; but the legend varies {ante, § 38), — sometimes making him a colleague of the Pa,vian jurists, sometimes an adviser of Countess Matilda, sometimes a student at Ravenna, and again a teacher at Ravenna. We know that he is mentioned in documents of 1113-1125; and the sudden rise of legal science and the rapid accession of students indicate that he must be regarded as the real founder of the Glos- sators. His teaching united both theory and practice ; for he had been at. the bar and had held public ofiice. His scientific work in glosses ranged over the entire text of the law ; but few of them re- main to us, and those only through their mention by his successors. Among these successors come first the " four doctors," — so called because all four are found together, as advisers of Frederic I (Barbarossa) at the Parliament of Roncaglia (1158), where they invoked the Roman law in support of the Emperor's claims over the ItaHan cities. These four, Bulgarus, Martinus, Jacobus, and Hugo, undoubtedly represent the most brilliant period of the school. Next come Johannes and Rogerus, both pupils of Bulgarus, and teachers of Azo and Hugolinus. Azo (who held intimate relations with Henry VI) was celebrated as the author of a " Summa " of the Code and the Institutes which surpassed all prior works of the sort.^ It was esteemed no less indispensable for study than the ' [For a further account of these methods, as later applied in Germany, see Professor Stintzing's account, post, part IV, § 29. — Transl.] 2 [For Bracton's use of Azo's work, in his great foundation treatise, "Tractatus de Legibus," see Professor Maitland's monograph, "Bracton 138 Chap. II] ITALY DURING THE RENASCENCE [§ 43 text itself of the " Corpus Juris" ; without it one could never enter the gild of judges ; and the proverb at the bar ran, " Chi non ha Azzo, non vada a palazzo." ^ Hugolinus, who was also famous, and held public office (notably as ambassador), died in 1233 (or at least is then last mentioned). He was reputed the author of the tenth collection of Novels {jpost, § 67), and left also glosses on the Digest, the Code, and the " Volumen," summaries on Digest and Code, besides legal opinions and comments on controverted questions, appended to Azo's " Summa " and the feudal sum- maries. Placentinus and Vacarius were two Lombard jurists, whose fame is associated with the foreign schools which they founded. Placentinus established in France the school at Mcnt- pellier, where he died in 1192. Vacarius went to England and founded the school at Oxford.^ Burgundio, who died in 1194, had acquired Greek by several visits to Constantinople, and trans- lated the Greek passages in the Digest. Anselmus of Orta is known for the letters from his fatter Humbert on feudal usages {ante, Part I, § 61). Among the southern jurists, notable ones were Carolus of Tocco, who made an " apparatus " for the " Lom- barda" {ayde, § 16), and Roffredus of Benevento, who took part in the migration from Bologna to Arezzo {ante, § 40), and was in- fluential in the contest between Frederic II and the Pope. But the most famous among the Glossators is AccuRSius. Whether by his merit or by his cleverness, his name came to embody all that the school stood for. Born near Florence (in 1182), he studied and then taught at Bologna, retiring after forty years of teaching, to finish his gloss, and dying about 1260. This gloss, distinguished from all others by the name " Accursiana " or " ordi- naria," was a comprehensive collection of all preceding glosses, sum- maries, and other works. By this time the practitioners, over- whelmed under the confused accumulations of a century and a half, were struggling hopelessly with the problem how to find their way amidst the prodigious mass. To them this work of Accursius came as a godsend. It supplanted all that had gone before. The extraordinary repute of Accursius went on increasing after his death. Bologna showed its gratitude for the glory reflected by and Azo" (Selden Society Publications, vol. VIII, 1894), and Pollock and Maitland's "History of English Law," vol. I, o. VI. ^ Tkansl.] 1 ["Who has not Azo, goes not to court " ; "palazzo" signifying "palace of justice." — Transl.] 2 [For Vacarius, see Pollock and Maitland's "History," vol. I, p. 98 (1st ed.) ; that Vacarius actually founded the school is not conceded by them. — Transl.] 139 § 44] ITALY [Part II him on the University; for on the expulsion of the Ghibelline party (in 1304), Accursius' descendants were expressly excepted. Florence, in 1396, ordered a monument to his memory.^ In the courts his gloss was as good as law ; and the saying was in vogue " Quidquid non agnoscit glossa nee agnoscit curia." In the schools, his gloss was the only text studied ; for the other jurists, and even the books of Justinian, were laid aside. This great work of Accursius was of course not without its defects. He had not in all instances preserved the best nor excluded the poorest of his predecessors' glosses. He did not always abridge correctly. Nor did he give help enough for the practitioners by plainly offering a decided opinion on points much controverted. And yet it is hardly right to attempt to pass juc^ment in these matters upon Accursius' work as we have it. Fbr one thing, it would require a complete acquaintance with the sources abridged by him ; and most of them either are long perished or repose still in manuscript. Moreover, in the course of repeated copyings, so many errors have occurred, in omitting or exchanging the signs- manual which serve to identify the passages of the other authors and of Accursius himself, that it is now unsafe to base con- clusions upon the authorship of particular passages. § 44. The school of the Glossators virtually ended with Ac- cursius. Glosses, of course, continued for a while to be written; but, with few exceptions, they lacked in originality or other merit. Accursius' three sons (Francis, Cervot, and William) merely pre- pared illustrative cases for his text. Odofred has come down to us with the most distinction ; but it is due entirely to his useful records of the anecdotes and traditions (some of them now known to be pure legends) about the early jurists. Andrew of Barletta wrote a commentary on the Lombarda. Rolandinus Passagerius (who died in 1300) was famous for his lectures and writings on the notary's practice ; his " Summa artis notarise " and " Rolandina " are the best known of his works. Albertus of Gandino obtained repute as a criminalist ; his great work is entitled " De maleficiis." In the field of procedure, a wide and European fame was ac- corded in its day to the " Speculum Judiciale," a vast and sys- tematic treatise by William Durante, dubbed the " Speculator" ("Imager"). Of this decadence, the great work of Accursius was not so much a cause as a symptom, ^^^len he wrote, the original vigor of ' But it was never erected. 140 Chap. II] ITALY DURING THE EENASCENCE [§ 44 this method and school of thought had already been lost, and his work merely accelerated the decline. The scientific merit of the early Glossators had been to concentrate study upon the original sources. They had succeeded, notwithstanding the scantiness of their materials, in developing an almost perfect familiarity with the texts, and in thus elevating the practice of the law to the dignity of a science. The successors of Accursius, however, sub- stituted the gloss itself for the text as the basis of their study, — a sure sign of decadence. This may be ascribed partly to the out- ward political circumstances of the times, which had diverted men's minds from the original aims of the science, and partly to the intrinsic limitations of the method, which had now exhausted its scientific possibilities. To continue with it was merely to multiply fruitlessly its inherent defects. How low the method had now fallen may be seen from the rule of decision used when di- vergent opinions were found collated by Accursius on a given point. It was this : The principle being that Accursius' own view should be decisive, that view (when not expressly stated) was to be as- certained by presumption; and the presumption was that the opinion last quoted by him was his, except when it was prefaced by " alii dicunt " or " quidam dicunt," and except when some opinion prior in order was more favorable to equity or to marriage or to the Church! A method like this, barren of all possibility of independent reasoning, had plainly gone to seed, and was certain to be sup- planted by some more worthy rival. Such had been Rome's ex- perience, in the period after the classic jurists, when the law settled controversies by choosing that view which contained among its adherents the name of Papinian or a majority of all other names.^ In the course of time the same replacement of scientific reasoning by petty mechanical rules had now again come about. And a main reason was not far to seek. The Glossators had sought to revive the laws of Justinian, for study and for practice. But those laws were not and could not be fully suited to the needs of the time. After a short but brilliant period of this revival, the texts of those laws had been superseded by the glosses, because the glosses applied them to the needs of contemporary practice. This desertion of the text itself was, however, the abandonment of the fundamental 1 See post, § 46. Another instance, in the earlier days, was the rule (Codex, I, 14, 3) for determining whether an imperial decree had force as a general law for all countries ; it was held a general law if it had been in- troduced in the Senate, or bore the name Edict, or contained the phrase "ad omnes partinebant," or had other such arbitrary features. 141 § 45] ITALY [Part II basis of the Glossators' method. It had lost its right to exist. The times now needed a method which, while remaining faithful to the Roman law, should cease to base itself upon that law ^s it was a thousand years before, and should expound it as a body of living principles, — a contemporary law, suited to the needs of society in the fourteenth century after Christ. § 45. (b) The Commentators.^ — The actual beginnings of the new method had dated from the second half of the 1200 s, while Accursius was still supreme. Its followers were variously termed — " commentators," " dialecticians," "practicians," " Bartolists " — according to some one of the features which contrasted with the Glossators' method. In essence, it stood for a reaction against the gloss. In this situation, two paths were open to pursue (though the new school had indeed no opportunity of freely choosing be- tween them) . One of these paths was that pointed to by the literary Renascence of the 1300 s, — the era of Dante, Petrarch, and Boc- caccio. But to this great intellectual movement the jurists were yet strangers. They were chained by tradition and cramped by the demands of daily practice. The time was not ripe for such a revival of juristic culture as came two centuries later, under their successors, the Humanists. And so they had no choice, on abandon- ing the gloss method, but to turn once more into the ancient path of scholasticism. They gave new vigor, it is true, to legal studies, by introducing the dialectic method, — that of logical reasoning and discussion. But this was already antiquated, in spite of their attempts to cover its decadence artifically by the outward forms of reasoning. When their system, 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. The method, to be sure, tended in itself to cease to be science in the highest sense. For its homage to the conclusions of artificial logic drew it gradually away, not only from the legislative sources ^ Brugi, "Alcuni osservazioni sul periodo storioo dei postglossatori in Italia," Bologna, 1881; Chiappelli, "La polemiea eontro i legist! dei seooli XIV-XVI," A.G.S., 1881 ; Vidalin, "Bartole et les hommes iUustres de son siecle," Paris, 18.56; Schupfer, "Manuale," p. 515, has bibliog- raphies on the individual jurists. 142 Chap. II] ITALY DUEING THE RENASCENCE [§ 46 themselves, but also from any sound criteria of legal truth. And the outward signs of a decadence were not long in appearing. Lectures and treatises alike became so prolix that only a small topic could be treated in them. Seeking to avoid this dilemma, they confined their discourses to the easier topics, omitting those difficult ones which required too much time. The judgment of Cujas upon them, in after times, is full of truth : " Verbosi in re facili, in difficili muti, in angusta diffusi." They totally lacked literary culture; their style was commonplace, and their diction crude and harsh. As the new system progressed, all this became more marked. There was no attempt at literary elegance, nor even at correctness of historical facts or of etymologies or of syntax. None of the other branches of learning were made use of. And the inherence of these traits in the very method itself is apparent when we find Cino of Pistoia, an accomplished poet, using in his law-books a style as crude as that of any other jurist ; or when we hear Baldus, one of the foremost jurists, advising the students to pay no attention to style or form of utterance. Their ideal was quite satisfied with a stale rehashing of well-kilown ideas, ex- pounded in a series of logical dilemmas and syllogisms, and inter- spersed with illustrative cases, which were supposed to explain some legal principle, but might (as often as not) do quite the contrary and merely leave the doctrine as muddled and uncertain as ever. § 46. Amidst the copious mass of such commentaries (which together would have made, it was said, " multorum camelorum onus "), it would have been hopeless to find and useless to invoke the original texts on which they based their lucubrations. Legal science was now a victim to the fetish of authority-worship. The lecture, the forensic argument, the judicial decision, now con- sisted in little more than citing somebody's name and treatise. The later Glossators had indeed already entered, in their day, on this downward path; they had developed the rule of taking for law whatever some authority had once asserted, and of deciding (when there were opposing opinions on record) by the number of opinions on one side and the other. This practice owed its origin to the great authority of Accursius, whose opinion was treated as law when there was no express statute or custom on the point. There was some justification for this ; because his authority rested on his having collated all the best of the prior labors (" maximi scientise et auctoritatis viri ") ; and no one (at least, in a de- cadent age) could presume to dispute the united wisdom of his predecessors. But the practice degenerated, and extended itself, , 143 § 47] ITALY [Part II without reason, to include the other jurists ; for example, a statute enacted that Dinus' opinion should stand for law whenever on a given point Accursius had expressed two opposite opinions. And when Bartolus came to dominate in the new school (he of whom Jason said, " ut terrestre numen colui et cuius vestigia adoravi ") his name received an even greater homage of authority. The phrase long current, " Nemo bonus jurista nisi Bartolista," illus- trates for us the extent to which mere authority had superseded principle. Nor, unfortunately, did this stop with jurists so distinguished as Bartolus. Dogma and authority-worship having superseded reason and science, it was now an easy step to the logical culmi- nation of the system, — the doctrine of " communis opinio," or weight of opinion; i.e. the rule that the recorded opinion which had the greater number of adherents was the sound one. To this rule the practitioners were ready enough to yield support ; for it reduced their' labor to that of ransacking from the books as many opinions as possible, regardless of their intrinsic value, and then marshalling them in court, like hostile battalions, for the judges' mechanical enumeration. And the schools of law, which still had their eyes entirely on the preparation of practitioners, followed suit; they contented themselves with the same dull round of repetitious citation of musty authorities, whose chief virtue was that their opinions were at least likely to be better than those of the lecturers of that day. The story of the classic Roman law had offered an interesting parallel to this stage of legal science. There, too, when the product of juristic thought had passed its prolific and brilliant stage, the solution of legal doubts was sought by the mere rule of thumb. By the law of Citations ^ the judge was to decide, not by aid of his own reasoning, but by following that opinion which numbered a majority of accredited names, and when the number was equal, Papinian's name controlled. There, too, it was a period of de- cadence; and the same effects are seen, a thousand years apart, recurring from the same causes. And herein is contained a lesson, by no means flattering, for us of to-day, when the same tendency is once more visible, to subordinate the living, active reason of the law to the mechanical counting of precedents. § 47. But it must not be supposed that the Commentators, with all their faults, did not contribute something worth while towards the advancement of legal science. 1 426 A.D., by Theodosius II and Valentinian III. 144 Chap. II] ITALY DURING THE RENASCENCE [§ 47 In their defence it must be remembered, in the first place, that the disfavor into which they fell, in their own day, was emphasized by their aloofness from the general movement of the Renascence. While literature and culture in general were casting off all the marks of the Middle Ages, and were taking on new life in every feature, while politics were resenting the ancient dominance of Church and Empire, the jurists were adhering obstinately to the traditions, the logic, and the diction of the past centuries. They were thus bound to bear the stigma of being reactionaries. More- over, the legal profession, and the schools of law, no longer enjoyed the dominant influence of their former days. The ducal despotisms had taken the place of the free cities, and the State was meddling more with education. Italy's leadership in commerce was passing to other countries. The centre of political equilibrium was no longer in Italy; for the Empire was now essentially a German power, the Papacy was losing ground, and the monarchies of France, Spain, Germany, and England were more extensive in domain than the fragmentary Italian principalities. So that it was no longer possible for the jurists of Italy to play a brilliant part as leaders of public thought and as interpreters of national sentiment. This ancient function of theirs was being sacrificed to the rising spirit of regionalism ; and the fact that they struggled to preserve their traditions, as much as in them lay, must be reckoned to their credit. And though these are merely extenuating circumstances, which serve to explain the shortcomings of the school, there remain, more- over, some positive merits in the work of these jurists of the 1200 s and 1300 s. Their predecessors, the Glossators, had at the best done no more than expound the Roman law of six centuries before, — centuries whose lapse had for them no meaning whatever. Justinian, to the Glossators, was still living and legislating; the needs of their own generation did not interest them ; and, with all their zeal and learning, their labors therefore could never have culminated in a really national law. But the Commentators, doing far otherwise, never lost sight of the demands of legal practice around them. Endowed with less genius for science, and ham- pered by a sophistical and prolix method, their very incapacity for a higher point of view saved them from losing touch with the needs of their times, and made their labors practical and useful. In their writings we find, for the first time, the ancient principles of Roman law harmonized and adapted to the city statutes, to the feudal and Germanic customs, and to the Canon law's principles. 115 § 48] ITALY [Part II The old science was made over into a new one ; and Roman law was transformed into an Italian law. It is this success in the field of practice which justifies the frequent remark by historians that even the Commentators had their moments of brilliancy. The task of adapting Roman law to the new social conditions called for a talent of its own. The originality with which they developed the new principles — many of which were destined to stay per- manently in the law — gave to the Commentators, in spite of their inferior science, an authority which neither the Glossators nor any other later school ever enjoyed in the legal world. Their treatises obtained the force of law itself ; and their method was followed, not merely in Italy, but throughout all Europe. § 48. This method of theirs, which was destined in later times (and not unjustly) to be so roundly disparaged, was known in the legal world as the " mos Italicus," or Italian method. It had given up the gloss, i.e. the marginal analysis of a text. It had begun by framing an " apparatus " and a " summary " {ante, § 42) ; and it proceeded by developing vast and systematic commentaries, — whence the name given to the school. These in turn gave rise to independent treatises, essays, or tracts ; and the name "tractists " was also applied to this school of jurists. Of its more famous mem- bers, we may now notice a few. Cino of Pistoia (1270-1336), who was one of the earliest leaders, was a man of great personal talent, and law was one of his lesser interests ; perhaps for these reasons his works are marked by more originality and human interest. Albericus of Rosate (died in 1354) gave such attention to practice in his writings that he was known as " the great practitioner," and even to-day his historical notes on this subject are interesting. Baetolxjs of Alfani, however, was and remains the prince of the Commentators. He was born at Sassoferrato in 1314, and died at his early prime in 1357. After studying under Cino at Perugia, and under Raniero of Forli, he became lecturer at Bologna, at the age of twenty, removing thence to Pisa and finally to Perugia. He held several public appoint- ments ; and his embassy from the Perugian government to Charles IV brought him the post of councillor to the Emperor, together with numerous special privileges from his patron. It was in recog- nition of these that Bartolus inserted into the Corpus Juris an eleventh series of Novels, which comprised some ordinances of Henry VII of Luxemburg, grandfather of the Emperor {post, § 67). His works include lectures given at the school, commentaries on all titles of the Digest, legal opinions (" consilia "), and treatises or 146 Chap. II] ITALY DURING THE RENASCENCE [§ 49 essays on almost every part of the law, whether public, private, penal, or procedural. His writings show certainly a quality su- perior to that of the other Commentators. His thoroughness led him to give unusual attention to the sources (witness his textual comparisons of the Florentine manuscript of the Pandects) ; and he demonstrated that originality of view and vivacity of style were compatible with a careful attention to the demands of the practitioners. More than any other jurist of his school, he contributed to its great work in transforming the law of the past into the law of his day ; and it is upon this achievement that his fame worthily rests. His repute throughout Europe was indeed extraordinary. His opinions were law as far away as Spain and Portugal. The " mos Italicus " was adopted in the rising schools of France and Germany.^ The lawyers of his school were termed simply " Bartolists." At Padua and other universities a chair was founded solely for lectures on his works; as late as 1616 this was repeated at Naples. And the professional domination of his name culminated in the maxim " Nemo jurista nisi sit Bartolista," — no one is a jurist who is not a Bartolist. But it is the Shortcomings and not the merits of his school that again become the more notable features in the works of his suc- cessors. The best known of these was Baldus of the Ubaldi (born at Perugia, 1327, died 1400). He was a pupil of Bartolus, and taught successively at Bologna, Pisa, Florence, Padua, and Pavia. He was a Canonist as well as a Romanist, and in the public affairs of his day (especially in the Church schisms) he rendered important service. Among his successors (none of whom approached him in fame) were Luke of Penna (lecturer in 1345), Bartholomew Salicetus (1330-1412), Raphael Fulgosius (1367-1471), Paul of Castro (died 1441), Marian and Bartholomew Socinus of Siena, Philip Decius, Jason of Mainus. § 49. (c) The Humanists.^ By the period when these last- named Commentators were leaving the scene, the rise of Hu- manism had already cast so brilliant a light throughout Italy that ' [For the "mos Italious" in France and Germany, and its successor, the "mos Germanicus," see also the accounts by Professors Brissaud and Stintzing in Parts III and IV of the present volume. For the spirit of this period, consult also Professor Courtney Kenny's essay " Bonus jurista malus Christa " (Law Quart. Rev., XIX, 326). — Transl.] 2 Dal Be, "I precursori Italiani di una nuova scuolo di diritto Romano nel secolo XV," Rome, 1878; Buonamici, "II Poliziano giureconsulto e della letteratura nel diritto," Pisa, 1863; Hack, "Cujas, les Glossateurs, et les BartoliStes," Paris, 1883. For a further list of monographs see Schupfer, "Manuale," p. 607, n. 83. 147 § 49] ITALY [Part II the adherents of the old methods were already overshadowed. They had played their part ; and the season had now arrived when for the third time a new school of thought was to rejuvenate the life of the law. The name Humanism is given to that movement which throughout Italy in the 1400 s made for the reform of letters, arts, thought, and manners. In the strong light of comparison, the jurists of the old school, holding apart as they did from this general social movement, had already begun to seem uncouth and crude. The stirring events of the next two centuries only em- phasized this contrast. Italy's ancient liberties had been sup- pressed by despots and foreign dynasties ; the new ocean highway had transferred immense trade to other countries ; and politics and commerce, hitherto the principal fields of activity for the most active minds of the nation, were perforce closed to them. This activity, not yet enervated nor accustomed to sloth, naturally turned itself with accumulated force into the field of learned and intellectual endeavor. And several circumstances combined to aid this new direction of energy. The free discussion induced by the great religious controversies helped to emancipate from the dogmas of received authority. The fall of the Greek empire of the Orient had driven to Italy many learned refugees, who brought with them the treasures of their libraries and revived the culture of the Greek language and literature. The invention of printing led to the wide diffusion of information in books, and made it possible for the new learning to reach an audience vast in comparison vdth the limits imposed bj^ oral teaching and manu- script copies. All these things, together with the final develop- ment of the Italian language as a vehicle for learned thought, gave a new impulse to university pursuits ; and legal science could not fail to share in the effects. Not that the jiu-ists themselves experienced an immediate con- version of heart. It was rather the new sciences which made the first approaches, and went to meet the law. By their researches in philosophy and in history, they demonstrated that law was a part of general science and needed to be so treated; and they thus ultimately drew the profession of the law into the general train of the movement. For some time there had been signs that things were taking this trend. At the very beginning of the movement for the new culture, some of the best intellects had turned their criticisms upon the jurists. Dante, for example,' chides them with holding aloof from the new philosophies of truth, and ad- ' "De monarchia," b. II, c. 11. 148 Chap. II] ITALY DURING THE RENASCENCE [§ 50 hering in their decisions to the literal and self-centred interpreta- tion of the law. Petrarch, not mincing his words,^ accused them of venality, of ignorance in rejecting the aid of the other sciences, and of wasting their lives in vain quibbles created by their own imagination. Boccaccio ^ asserted that law had ceased to be a science at all. The later scholars, who were the real founders of Humanism, took up the attack with even greater vehemence. Ambrose Traversari (known as the Camaldolese, 1386-1439), when consulted by a friend who planned to study law, applauded his intention, but only on condition that he should ignore the Commentators, whose contemptible ignorance made their writings in great part unintelligible, and that he should give himself solely to the ancient jurists; otherwise his friend would merely waste the time which he might have spent on more profitable studies. Maffeus Vigeus, in giving like counsel, recommended the study of the Roman law, not in the commentaries, which merely obscured it, but in the original sources, where he could enjoy the elegant diction and the ripe wisdom of the ancients. Tribonian was anath- ematized, for having sacrificed on the altar of immediate utility the masterpieces of the classic Roman jurists ; the achievement of Tribonian's compilation (said Maffeus), instead of making the law clear and simple, was a crime, which had brought its own retribu- tion ; for the collected fragments of the classic jurists were now buried under the futile crudities of the Commentators. This outburst is notable as the first recorded protest against the Corpus Juris itself. Hitherto venerated for centuries as the perfection of legal wisdom and the final goal of legal research, it was now condemned as a mere secondary compilation. This com- plaint was uttered, to be sure, from the standpoint of literary taste and reverence for the classics. But the path was now once for all opened to unrestricted criticism; and legal thought was thus invited to assume an independence of judgment to which it had hitherto been a complete stranger. § 50. Signs of the times soon multiplied, showing the trend of the new methods. Hitherto, the best minds had been turning in disgust from the study of the law; literary history was full of the names of those who (like Balzac in our own times) had aban- doned its apprenticeship for the fields of polite learning. But now it was the scholars of classic training, even poets, who devoted themselves, enthusiastically and fruitfully, to legal research. 1 "EpistolsB familiares," IV, 20. ' "De genealogia deorum," XIV, 4. 149 § 51] ITALY [Part II Among this numerous throng may be mentioned Lorenzo Yalla (died in 1457), who combined an antipathy for the Commentators with a pioneer's zeal for the history and philosophy of classic Roman law; and Pomponius Leto (1428-1498), a pupil of Valla, who enthusiastically followed in his footsteps, and was the first to attempt the reconstruction of Roman legal history. Angelo Politian (1454-1496), that prodigy and leader of learning and literature, was drawn into the literary study of the legal sources, and maintained that they embodied all the treasures of the Latin tongue. Politian's great design, however, of compiling a vari- orum edition of the Roman texts, was defeated by the untimely end which cut short his brilliant career. The textual studies of these men, nevertheless, were so far superior, in method and resources, to those of the Glossators' days, that a new horizon was opened. Moreover, the new classical fervor was not content with Justinian's texts alone, but sought to include the available fragments of the earlier jurists. The Paraphrases of Theophilus' Institutes were resuscitated by Politian himself and Paulus' Sentences by Valla; Gains' frag- ments were identified in the Breviary of Alaric (ante, Part I, § 8) ; the Theodosian Code was compared with Justinian's. These and the other sources were edited during the 1500 s. And not only in textual criticism, but also in topics and methods, legal research was broadened and advanced. Public law was now included, not merely private law. To textual interpretation was added synthetic reconstruction and general treatises. Practice ceased to be the sole objective ; a legal science in the true sense was the inspired aim; and history and philology were pressed into service. The Glossators, to be sure, had in their day shared in this general aim of a scientific interpretation of the text ; and the Humanists, with all their contempt for the Commentators, never failed to give credit to the sound methods of the earlier school. But the Humanists' work was vastly superior to that of the Glossa- tors, not merely in their auxiliary use of history and literature, but in their determination to treat Justinian's texts histori- cally, and to restore the classic Roman law itself, as the true original from which Justinian's books were merely a compiled mosaic. § 51. The distinctive features of the new school of jurists are seen in the works of Alciat, whose appearance marks the new legal era. Andrew Alciat was born in 1492, at Alzate, near Milan, and his early training in history and literature equipped him well 150 Chap. II] ITALY DURING THE RENASCENCE [§51 for his great career in the law. He took up the warfare against all the shortcomings of the Commentators, — the doctrine of " communis opinio " {ante, § 46), the prolixity and crudity of expression, the petty analysis of detached rules and texts. He championed conciseness and purity of style, freedom of reasoning on principles, a systematic view of the law, and an adjustment of its parts as a whole. His works were few in number and scope ; but in merit they placed him in the leadership of the new school. He was soon lost to Italy; for in 1518 he accepted a call to Avi- gnon, where he transplanted the new method in French soil, and there achieved a brilliant career of European fame and influence. He afterwards moved to Milan, Bourges, Pavia, Bologna, and Ferrara, and died at Pavia in 1552. The works he has left include a dissertation on the Greek words in the Digest (written at the age of twenty-one, and serving to launch him into fame) ; a com- mentary on the Digest ; and other works entitled " Paradoxa," " Parerga," " Emblemata," etc. But his early departure was a serious loss to Italy. He had some successors, to be- sure, — Scipio Gentili (1563-1616), Lelius Torelli (who edited the Florentine text of the Pandects in 1553), Emilius Ferretti, Hippolytus of CoUe, Turamini of Siena, Julius Pacius, and others. But for the most part the jurists clung to the old methods and opposed the new. The principal cause of this ob- stinacy was the support which they received from the practitioners. The solid traditions of the courts and the bar could not be upset in a moment. Moreover, the new school had excited strong an- tagonism by its own expressed contempt for the old school. And besides this, its novelties had to contend with the suspicion that they were in some way allied to that other and most radical novelty of the times, — the Protestant movement in religion ; and this was enough to insure a coolness on the part of the Church and its supporters. Finally, we must remember that the old method, with its highly technical learning, had at this period given the legal profession a social supremacy and a firm monopoly of the avenues of justice, and was enabling them to gain a Uvelihood by this science of theirs, such as it was ; how could they be expected to look favorably on new ideas which would rob them of these advantages? ^ ' [This recalls Lord EUenborough's naive remark, rebuking an objection to an old technicality, "If I did not adhere to this rule, a lawyer who was well stored with these rules would be no better than any other that is with- out them." — Transl.] 151 § 52] ITALY [Part II § 52. (d) The Practical Jurists.^ — And so the lawyers went on turning the old treadmill of " comunis opinio " and casuistic logic — the famous " mos Italicus." The science of law was left to starve. But the courts were crowded, the lawyers prospered, and the tomes of law continued to pile up. No one, to be sure, could master them all ; but the practitioners sought to pick out the most necessary parts, to reduce them to rules of thumb, to learn them by mnemonic devices, — in short, to make a mechanical trade of the rules of practice, so that one could acquire it by mere plodding industry. There was no attempt at science and no provision for progress. And so the marked feature of this decadent stage of the law — taking the place, in the 1500 s and 1600 s of the earlier Glosses and Commentaries — is its elaborate system of practical formulas. The apparatus of this system had a variety of technical details, famous enough in their day.^ There were the " loci," or hornbook rules, which were supposed to condense all the wisdom of the Corpus Juris and the later writers. Then there were the "consilia," or opinions and decisions on cases, wherein judges and lawyers alike delved for authority in arguing and deciding. There were also the " comunes opiniones," or collated views of learned writers ; the " observationes practicse," the "formularia" and the " specula" or practical treatises ; the " cautelse " for notaries' use ; the " decisiones," the " aphorismi," the " concordantia," the " solu- tiones " ; and sundry other aids. Amidst the tedious bulk of literature chargeable to the jurists of that period, we find, to be sure, some authors whose work has merited to be remembered. Albericus Gentilis (1550-1611) wrote " Dialogi sex de veteribus juris interpretibus," in which he defended the ancient methods and disparaged the new ones.^ Menochius of Pavia (1532-1607) was famous in his day for a practical compilation of the law as it then was. Antonius Faber of Savoy (1557-1624) broke away from formalism in his " De ' [On this and the preceding period, especially on Alciat, the Italian Humanists, and the more influential French representatives, see Professor Maitland's masterpiece, "English Law and the Renaissance," reprinted in "Select Essays in Anglo-American Legal History," vol. I, p. 168, particu- larly pp. 172-198. No Anglo-American student can neglect his illuminat- ing story of the influence which this great European movement was ex- hibiting in England in the 1500 s. — Transl.] 2 [On this "apparatus," see further Professor Stinizing's account, in part IV, post. — Traxsl.] ' [Gentilis was afterwards professor at Oxford. His life is told by Pro- fessor Holland, in his essay on "Alberico Gentili " (Inaugural Lecture, 1874). — Transl.] 152 Chap. II] ITALY during the renascence [§ 52 erroribus pragmatlcorum," " De conjecturis," and " Codex Fa- brianus." ^ Cardinal Gian Battista de Luca (1614-1687) gained a long lease of fame by his learned and encyclopedic works, "Theatrum veritatis" and "Doctor vulgaris." Among the specialists in particular branches are notable the commercial jurists Straccha (1578) and Casaregis (1737), and the criminalists Clarus (1525-1575) and Farinacius (1554-1616). The excellences which marked these jurists showed that the Humanist school had not been without influence. The style of writing had improved ; mere authority was no longer worshipped ; the tedious discussion of isolated passages and cases was dis- credited; and constructive work was not uncommon. Even the revival of legal history, which had been aided, in the meanwhile, in related fields, by such men as Panvinius, Sigonius, Ugellus, Tiraboschi, and Muratori, found an occasional champion in the law. The most notable was G. Vincenzo Gravina (1664-1718), who devoted his vast learning to tracing the derivation of Italian from Roman law, in his celebrated work, " Origines juris civilis." ^ He first showed the way to the philosophic study of the Roman law as means of improving the national law and not as an end in itself. The legal works of G. B. Vico took the same stand — though he devoted most of his efforts to the general philosophy of law.* This branch of science was now enabled, on the one hand, to cultivate free philosophic speculation, and on the other, to give systematic treatment to the national law as a product of national needs. And yet, in justice to the technical jurists, it was their great merit to have made this possible, without intending or per- haps being aware of it. Their sole concern was to adapt the vast stores of Roman law to daily practice. But the net result was a commendable fusion of theory and practice. Practice was moded and elevated by science. Theory ceased to be abstract, became useful and practical, and adapted itself to a contemporary and genuinely Italian law. Henceforth, legal science takes a thoroughly different point of view. Roman law is no longer blindly worshipped as Written Reason (" ratio scripta "). Justinian's texts are not sacrosanct. Roman law is to be merely the supplementary or " common " law, ' [His fame survived chiefly through his treatise " De presumptionibus." — Transl.] 2 [As late as Hallam's day, this ajithor served as a leading authority on the history of the law. — Thansl.] ' [Vice's philosophy is fully expounded in Miraglia's "Comparative Legal Philosophy" (1912), being vol. Ill of the "Modern Legal Philos- ophy Series." — Tkansl.] 153 § 53] ITALY [Paet II while the national law comes into the foreground, discarding the ancient principles when antiquated and inapplicable, and adding such new ones as the present day conditions had developed. The Bartolist practitioners still held their own ; but the signs of the times were against them. No clearer proof of this is needed than ]\Iuratori's celebrated essay on " The Shortcomings of our Legal Practice," in which he openly combats the anachronistic reign of Roman law in the practice of the day. And its spirit was that of the Italian jurists of the 1700 s; among whom the most notable are Averanius (1662-1738), a follower of the Frenchman Cujas, and author of the " Interpretationes Juris," and Richerus, author of the "Universa civilis et criminalis Jurisprudentia," published in 1774. This growth of law on national lines was of course a part of the general movement of the times throughout Europe. On the successive ruins of Empire, Cities, and Principalities, there were now building the States of modern Europe. And this brought with it another marked change. Hitherto, the universality of Roman common* law had signified a common science of law, the home and central influence of which had been Italy. But with the break-up of the dominion of pure Roman law, and the sys- tematization of local national law, so, too, legal science ceased to be a possession in common. ' It took on an independent life in the various countries. National character gave it national features. And as Italy, now under foreign dynasties, had ceased to be politi- cally independent, and (like all organic beings) was in a state of decadent reaction after a period of exuberant activity, so in legal science also it bowed to foreign authority. The rising schools of thought in France, Holland, and Germany, which from the time of Alciat and Zasius had been zealous rivals of their parent in- fluence, had now finally won from Italy the primacy in legal science. § 53. (e) Jurists of France, Gennany, and Holland. At the period of the Germanic invasions and settlements of Western Europe, the Roman law still played a very small part in forming the law of those regions {ante, Part I, §§ 28-47). It had indeed already influenced the law of the southwest regions, under Roman rule ; through the Canon law, other principles entered ; and as a " common " law, for solving problems of conflict of laws, Roman law had been resorted to. But the native sources had thoroughly kept the upper hand ; the pure Roman sources were seldom used, and in some regions were even expressly disowned. 154 Chap. II] ITALY DURING THE RENASCENCE [§ 53 By the time of the Renascence of Roman law in Italy, however, conditions in the other countries were radically changed. Char- lemagne's Empire of the West had opened the way. It brought political unity to widely diverse peoples ; its support of Roman law imparted a certain universal validity to that system. The revival of the study in Italy in the 1100 s, and the fame of the Italian schools of law, gave the needed impetus. Roman law was transplanted into all parts of Europe. But this took place in different ways in different countries. In some instances {ante, § 43), the opening of a university, and the appointment of Italian teachers (for example, Placentinus at Montpellier, and Vacarius at Oxford), introduced the law of Justinian, with the same methods, texts, and glosses as at Bo- logna, and sometimes with the same teachers. In some in- stances, the mere prestige of the Roman law, emanating from Italy, and supported by imperial favor, sufficed to secure its restoration by the ruler's mandate. This was the case in Spain, in the 1200 s, tinder Alfonso of Castile, and in other countries under the Empire. But the principal means was the constant stream of students of law, who sought the Italian schools from every quarter of Europe, and returned home full of the new learning. And their legal learn- ing had its effects in practice. These university doctors of law were soon (though gradually) substituted for the popular judges in the local courts (" scabini," " echevins," " schoffen ") ; and were also appointed to the royal councils which (like the English Chancery and Privy Council) were everywhere assuming a larger share in the administration of justice. In Germany, the ordinance of 1495, that the " Camera Imperii " (" Kammergericht ") should apply the Imperial common law, and that one half of its members must be doctors of law, marks the triumphant arrival of Roman law in that country.^ And now was seen a repetition, in reverse order, of that course of events which had marked the Germanic settlement in Italy nearly a thousand years before. Then it was the Germanic law, 1 The "reception" of Roman law in Germany has been treated in nu- merous works, of which the following may be here noted : Schmidt, "Die Reception des romischen Rechts in Deutschland," Rostock, 1868 ; Mod- dermann, "Die Reception des romischen Rechts," Jena, 1875; Karlowa, " Ueber die Reception des romischen Rechts in Deutschland," 1878 ; Frank- lin, "Beitrage zur Geschichte der Reception des romischen Rechts in Deutschland," Hannover, 1883 ; Wilmans, "Die Reception des romischen Rechts und die socialen Frage der Gegenwart," Berlin, 1890. [See also the works cited by Professors Brunner and Stintzing, in part IV, post. — Tkansl.] 155 § 54] ITALY [Part II which had entered Italy to compete with the Roman law already flourishing there. Now it was the Roman law, which in turn invaded the north and the west, there to compete with the native law. Now, as then, the resultant was to be a new law of com- posite features. But it is worth noting that the Roman law now imported was a law formed and developed by Italian science and practice. The universities of France followed the traditions and methods of Italy. The opinions of Bartolus were made the law of Spain and Portugal. And in Germany, the " mos Italicus," expounded by professors brought from Italy, became the universal fashion. § 54. But the day came at last when this Italian primacy ended. It dates from Alciat's departure from Italy into France, at the invitation of Francis I {ante, § 51). Alciat made Bourges the centre of influence for the new methods of the Humanists. And a new term became current, the " mos Gallicus," to contrast the new methods with the " mos Italicus," or old-fashioned methods of the Commentators or Bartolists. In the struggle which then ensued between the two systems, all Europe was involved. And everywhere the new ultimately triumphed over the old. In the French school thus founded by Alciat, the leading name was that of Jacques Cujas (Jacobus Cujacius) ; born at Toulouse 1522, died at Bourges 1590. In 1566 he had taught awhile at Turin ; and he always enjoyed a high authority among the Italian followers of the Hunianist school, whence indeed had come the inspiration for the powerful French thinkers who now took up the work. Cujas' chief work is his twenty-eight books of " Obser- vationes et emendationes." His zeal and ingenuity in history and philology carried research so far that it now became possible to restore the works of many classical Roman jurists, in spite of Jus- tinian's mutilations. For Cujas' guiding purpose was the recon- struction of what Justinian's commissioners had destroyed. By his untiring labors, Papinian, Ulpian, Paul, and others of the golden age before Constantine, were now restored to the hands of scholars. The Glossators, indeed, had been likewise restorers of the text. But they in their primitive scholarship had stopped short at Jus- tinian's compilation. The new standpoint and the new methods were not content until they could dissect this artificial structure and lay bare the elements from which it had been put together. No doubt this concentration on one purpose caused other aspects of legal science to lose something. But the diligent culti^-ation of the historical method brought forth invaluable fruits ; and the 156 Chap. II] ITALY DURING THE RENASCENCE [§ 54 period of Cujas is recognized as one of extraordinary brilliancy. It used to be said that if all the rest of the world's labors on Roman law were to disappear, those of the French school would suffice to preserve its treasures for our use. But even the school of Cujas had its opponents. And naturally enough ; for it showed no mercy to the traditions of its predeces- sors, and it furnished no direct service to the needs of the practi- tioners. Its useless idealism became the target for the attacks of the practitioners. The Bartolists still held their own in Italy ; and their^ counterpart faction in France was led by Doneatj (Donel- lus; 1527-1591), and by Hotman (Hotomanus; 1525-1590).^ Both of these opposed the merely theoretic and historical methods of Cujas ; they maintained that law must be studied in its relations to present-day needs. But they differed between themselves in their ideas of the proper method of doing this. Doneau was willing to use the adapted Roman law, as the Bartolists did in Italy ; while Hotman proposed to break loose entirely from Ro- man law as the basis, and to build up a national French law out of all the existing elements by combining the results of custom and experience into a philosophic system. Such, indeed, was the prin- ciple which triumphed ultimately. But, for the time, victory re- mained with Cujas. The list of the brilliant jurists who espoused his cause includes the names of Dumoulin (Molinseus), Brisson (Brissonius), Douaren (Duarenus), the two Godefrois (Gotho- fredus), Denis, and Jacques, father and son (1587-1652).^ It was the 1600 s which saw the decline of the school of Cujas. This came to pass partly by reason of France's political and re- ligious convulsions, but chiefly because of the consolidation of national sentiment. The Latin tongue and the Latin law were to be discarded ; and a national law was to be the outcome. Two great names stand for this final phase. Domat (1625-1696) wrote in French his great work on " Les lois civiles dans leur ordre na- turel," combining into one system the materials of Roman law and French legislation and decisions. Pothiee (1699-1772), though in his rearrangement of Justinian's Pandects he showed an alliance with the Cujacian tradition, became the founder of modern French ' ["It is reported that Elizabeth invited Francis Hotman to Ox- ford. . . . He is best known to English law students as the man who spoke light words of Littleton, and thus attracted Coke's thunderbolt" {Maitland, essay cited ante, n. 1, § 52). — Transl.] 2 [On this preceding section, see particularly pp. 180-182 of Maitland' s essay above cited, and the further account in part III (France) of this volume. — Thansl.] 157 § 55] ITALY [Part II law by his comprehensive series of treatises on all its subjects. The influence of Pothier in the labors of Napoleon's codifiers is well known ; and that Code was the final event in the great contest against the Cujacian principle. § 55. But the Romanist school, before the day for its exile from France arrived, had already established itself in Holland, where it took on new lustre. The independence of the Netherlands (then recently gained) found that country, at the middle of the 1600 s, intellectually in the full flower of its strength. Scholarship was zealously encouraged ; and some of Holland's names were already numbered among the world's jurists. A clearness of style and an originality of thought marked their works ; and theory and practice were felicitously combined. They were known as the " juriscon- sulti elegantiores." ^ The Netherlands school is best known from the fame of Hugo Geotics, whose genius turned equally to the history of Dutch law and the exposition of international law. But in the field of Roman law also it had famous leaders, — Vinnius (1588-1657), whose Commentaries were long used in the law schools of Italy ; and his successors Noodt (1647-1725) and Voet (1647-1714), whose works were once perhaps more widely read than any others and are even stfll worth perusal.^ The next turn, for the primacy in legal science, fell to Germany. There, too, Humanism had taken root. The soil was as unfavor- able to it as in Italy; but its inherent power for reform gave it a vogue. The casuistry of the practitioners, the slavery to au- thority, the reverence for the " mos Itahcus," — all yielded before the new scientific methods. Roman law ceased to be foreign law. Simplified and clarified, it adapted itself to the local needs. The composite result tended to become a national law, as it had done in Italy, in France, and in Spain. The main sup- porters of this movement were Carpzov and Conring ; the former devoted himself to the exposition of the law of his own day ; and the latter (in his " De origine juris Germanici ") demonstrated that the reception of Roman law had not prevented Germany from developing a solid fabric of national law. But the great and brilliant contributions of Germany to legal science were to be reserved until the 1800 s, when its Historical School, led by Sa\'igny, and fostered by the revival of national sentiment after ' [On the "elegant" French jurists, compare Maitland's remarks, pp. 181, 182, in the essay above cited. — Teaxsl.] 2 A particular contribution of the Netherlands school was its develop- ment -of the "thesaurus," — an ene3-clopedic treatise setting forth the whole of the legal learning of the day. 158 Chap. II] ITALY DURING THE RENASCENCE [§ 56 the Napoleonic wars, was destined to influence all Europe, and to succeed to that leadership of inspiration which had been succes- sively held by the Glossators, the Commentators, and the Hu- manists. Topic 3. The Legislation op the Renascence ^ 1. COMMUNAL PERIOD § 56. Legislative Conditions in the 1200s. — We must now turn back, for a brief space, to the period beginning with the 1200 s, and review the accumulations of its legislative activity. These formed an important source for the labors of the jurists whose history we have just examined, and were the outward evidence of that multifarious local life and political independence which after long vicissitudes was later welded into the modern Italian nation. The legislation of the Renascance is markedly local and partic- ularistic. In its first stage, it consists mainly of the ordinances of the independent cities or communes ; to these the term "statutes " is commonly restricted in Italian history.^ In its second stage, it emanates from the principalities and dukedoms, later the several kingdoms, which coexisted on Italian soil. The political independence which the Italian cities gained for themselves, as the feudal period and the Germanic empire ended in Italy, brought naturally with it the right to make their own laws for their own affairs. This liberty of legislation, moreover, found them disposed and indeed driven to exercise it ; for the authority of the ancient laws and customs had been weakened by the radical changes in local life. The personality had given way to the territoriality of law (ante, Part I, §§ 48, 67) ; and the city life, with its tendency to merge personal distinctions, had been an especial factor in this change. Moreover, this community of customs varied from city to city, so that each ruled its own life in its own way. And, finally, this intense individuality of the cities, being the very lifespring of their political independence and power, was bound to find expression in its law, which, when it came to be 1 [§§ 56-74 = Calissb, part III, titles I, II, §§ 94-129, pp. 173-247. This portion of the text has been transposed to follow the author's titles III and IV, so as to make the development clearer for our purposes. In omitting many details of the local legislation, abundant freedom has been used. — Tbansl.] ' [But "Statu to," in modern Italian, is also used distinctively of the national Constitution. — Transl.] 159 § 58] ITALY [Part II reduced to writing, was the most characteristic element in their legal life. The development of this city law may be examined, first in its general conditions, and next in its particular codes. § 57. Growth of the City Legislation.^ — The characteristic form of the city legislation was the Statutes. They were analogous to the regulations adopted for self-government by the various trades and crafts, or " corporations " ; and the commune, or city, was in its origins merely a variety of corporation in this sense. Hence this form of regulation was natural enough. But in the growth of independent city self-government, the Empire first fully recognized the cities' legislative power in 1183, in the treaty of Constance. This recognition went so far as to command the Im- perial viceroys, residing in the cities for the conservation of im- perial rights, to apply the cities' customary law in the appeals brought before the viceroys. The constitutional status of these city statutes was, to be sure, much controverted. Some jurists (including Bartolus himself) held that the statutes were an exercise of power delegated by the Emperor. But others founded them upon some principle of popular sovereignty. Albericus, for example, invoked the Roman maxim " jus proprium quod quilibet sibi populus constituit." Baldus invoked the doctrine of natural law (ante, Part I, § 65), " ex propria naturali justitia," that a community without law is inconceivable, and that therefore the very existence of the com- munity requires it to possess a law of its own ; that " sicut omne animal regitur a suo spiritu proprio et anima," so also a com- munity of human beings " non indigent alio directore." These theories, however faulty in juristic analysis, at least indicate the political restlessness of the times against any interference from imperial power, as well as a boldness and novelty of reasoning upon the nature and basis of a political State. Both the statutes and the theory of their validity were alike the product of the economic and political forces of the times, making for a self-consciousness of independent strength. As the latter waxed and waned, so did the former also. § 58. Sources of the City Legislation. — Local custom was the prime source of the legislation. The earliest instances of this re- ^ Fertile, "StOTiau," §67; SaivioZi, "Manuale," part II, e. 12 ; Schu'p- fer, "Manuals, " sect. II, tit. I, c. 4; Orlando, "La legislazione statutana e i giureconsulti del seooli XIV," Turin, 1884. For the numerous works dealing with, statutes of particular cities, see Schupfer, supra, pp. 320, 323, 327. 160 Chap. II] ITALY DURING THE RENASCENCE [§ 59 cording of the customs in a code of statutes are those of Genoa (in the second half of the 900 s), of Pisa, with its " Constitutum usus Pisanse civitatis " (1160), and of Milan, with its " Consuetudines -Mediolanenses" (1216). But in these eariier instances the writ- ten statute was intended merely to prove the customs, not to supplant or to change them ; in Baldus' words, " potius ad robo- rationem, quam ad novi juris introductionem." The statutes, however, as they became more common, took on the feature of legislation in the strict sense, changing the old customs and providing for the new needs. There were two kinds, depending on the organ of power which issued them. In the strictest sense, a " law " was an enactment of the popular assembly or the council or other supreme body. But these laws were confined to matters of highly public impor- tance or controversy. The other sort, ordinances (we may call them), " brevia," or " promissiones," were issued by the magis- trates in the ordinary exercise of their authority. These were renewed year by year, when the chief oflSicial (" consul " or "po- desta ") assumed office ; in the earliest, he makes oath to observe them, and they begin with " juro " ; later the word "statuimus " took its place. His oath being personal only, each new official piust renew the pledge. And as experience introduced new measures from time to time, the consolidated ordinances grew as an integral body of law, — much as the praetor's annual edict at Rome grew into an independent system. And as there were various officials having separate powers and duties, and as the people itself had also duties guaranteed by its own oath, so there existed, in the same city, several " brevia," — the " breve " of the people, the consul, the mayor ("podesta "), the council, the judges, and so on. These various sources — customs, laws, " brevia " — were originally distinct. But in the course of time they came to form a single body of law for the city; and this code is what became commonly termed the " statutes." § 59. Local and unwritten custom, to be sure, remained a part of the law. But in those cities (mostly northern) where indepen- dence of other lordship had reached its height, it obtained chiefiy in matters of private law only ; so that the " statuti " of those cities were largely occupied with public law, and " consuetudines," " mores," " usus," signified distinctively private law. In the south, on the other hand, where royal authority had always con- tinued dominant, the city legislation had concerned itself with 161 § 60] ITALY [Part II the private law arising from the mixture of Roman, Byzantine, Prankish, and Lombard customary law; so that the city codes there bore commonly the name " consuetudines." This distinction in city law between " consuetudines " and " statuti," in the usage of the northern cities, was well recognized. " Est duplex jus municipale," says Albericus of Rosate, " scriptum et non scriptum." It signified several contrasts. In the first place, the " consuetudines " contained more survivals of Ger- manic law than the " statuti," which had more often followed Roman traditions. In the next place, the " consuetudines " were subject to the general principles {ante, Part I, § 65) that they must be " rationabiUs, bona, approbata," while the " statuti " were limited only by the legislative discretion. And, finally, the " consuetudines " were merely a part of the general private law, varying those special rules in which custom had been peculiar; while the " statuti " formed practically the entire body of public law, covering all aspects of political and administrative life. § 60. But the Church's law was also not without recognition in the statutes. The limitation {ante, Part I, § 65) that a custom must be " bona et probata " opened the way for the Church to interpose its authority. It was a settled maxim that the statutes could not derogate from Church law; and they even expressly recognized many of its rules. The offenses of labor on holy days, and of blasphemy ; the exemptions of the clergy from civic duties and secular jurisdiction ; the authority of the pope ; the licensing of usurious loans ; and the establishment of the inquisition against heretics, — these all testify to the Church's influence in city law. But the cities herein merely recognized that which they them- selves were willing to indorse. They by no means yielded their independence, or became merely a subservient instrument of the Church's pretensions. '\\Tien Gregory IX, for example, ordained that the city statutes should be submitted for approval to the ecclesiastical authorities, he found himself powerless to exact an obedience. The city statutes, indeed, were no one's law but their own. The three ancient elements — Germanic, Roman, and Church law — were there merged and transfused to serve the purpose and ex- press the whole life of the people themselves. All three elements contributed their special emphasis, — the Germanic to the private law, the Roman to the pubUc law, and the Church to both. The statutes, in short, are typical of a period when the transformation from several systems into a single system was taking place by means 162 Chap. II] ITALY DURING THE RENASCENCE [§ G2 of the city life intensely localized at many centres; and this was preparing the way for a truly national law. §61. Compilation of the Statutes. — The cities which had statutes were not numerous until the 1200 s, although in the pre- ceding century (even before the peace of Constance in 1183) some were already to be found, notably at Pistoia, Pisa, Alessandria, and Genoa. In those cities which were entirely independent, the statutes were compiled by commissioners (" statutari ") appointed by the council or its authorized representatives; and the council or popular assembly afterwards approved them. There were usually several commissioners, but sometimes one only, — perhaps an eminent jurist of the place. Sometimes the commission came to an end on the completion of the specific compilation ; sometimes it was permanent, and made amendments or insertions from time to time, — in this instance being known as " revisers " (" riforma- tori "). The commission, in making the compilation, would, among other sources, resort to the citizens themselves to learn accui'ately the local customs to be recorded. Sometimes it would adopt as a model the text of some other city's statutes which were held in esteem ; and thus a close resemblance in provisions may often be traced. For example, in the Sicilian statutes, Palermo, Catania, and Messina served as models ; Bologna furnished some provisions to Florence and Pistoia ; Milan was a model for Lom- bard cities; and Genoa for Corsica. In cities under the rule or suzerainty of some prince or of an- other city, the method of enactment was sometimes to draft the statutes as usual and then submit them for the overlord's approval, and sometimes for the overlord to have them drafted and to rec- ognize the right of the people (more or less limited) to ratify them. Sometimes there were several cities under the same overlord, and here too a common type for their statutes would be found. § 62. The earliest statutes were written in Latin, interspersed with terms in the local vernacular, sometimes latinized. But the statutes of the 1200 s begin to be written in Italian, and the earlier Latin versions were thereafter put into Italian in the later revisions. The earlier styles of expression are crude and unskilful ; but the later ones develop into a facility which sometimes becomes prolix and even obscure in its subtilties of affectation. The juristic method, too, develops. The earliest type is a mere series of rules, arranged usually in the order of enactment. But as the bulk in- creased, and amendments multiplied, necessity produced attempts 163 § 63] ITALY [Part II at system. Usually, there was a division into four or five books. The first contained public law, in the strict sense. The second dealt with penal law. The third contained procedure, which, in that day, included much that we now regard as private law ; for a right was then constantly recognized by granting an " action " ; and, of course, this would not contain a complete treatment of private law, but only such topics as had been changed by statute. Another book, usually the fourth, included miscellaneous matters. The fifth, when there was one, treated the varied subjects of city regulation in industry, commerce, agriculture, and the like. Once approved, the book of statutes was promulgated. It was publicly read aloud and expounded to the people from time to time; a copy was kept constantly accessible at the city hall for public perusal ; and here and there — at a church, for example — other copies were deposited for consultation. § 63. The book of statutes was a mirror of the constant ad- vances in popular life and law. The changes and additions were incorporated into it by the commission, sometimes within a few days of the enactment, sometimes at the annual revision which in certain places took place as a survival of the ancient inaugural oath of the magistrates. This mobility of the laws led often to uncertainty and confusion, and was a symptom of that inconstancy of popular opinion which later proved a powerful element in the downfall of city independence. But it also served so faithfully ■ to adapt the city laws to the city habits and needs that it kept the statutes solidly in touch with the facts ; and the statute-book was one of the most permanent institutions of city life, long after political despotism had engulfed them. For the same reason, the statute-books represent an extensive segment of Italian law, and are vital to its understanding. From the 1100s to the codifications of the 1700s they are the embodi- ment of the bulk of the local lau\ It is unfortunate that a com- plete study of them is as yet impossible; for the greater part remain unpublished. But any intelligent research in their texts, to be of real utility, must distinguish their varieties of significance. In the first place, with reference to public law, those of the inde- pendent cities occupy themsehes mainly with their free institutions and the guarantees of popular rights; while those of the vassal cities are concerned mainly with protecting the interests of the suzerain. In the next place, the cities themselves may be dis- tinguished according as their economic interests were mainly rural or mainly commercial. In the former, the statutes regulate the 164 Chap. II] ITALY DURING THE RENASCENCE [§ 64 ownership of land, and the cultivation of the fields ; and the tradi- tions of Germanic times, here found longest prevailing, stand for vested rights as against personal freedom. In the latter, the statutes concern themselves with the various sorts of merchandise, the instruments of credit, and transportation; and here is seen at its best the spirit of personal freedom and social progress. In the third place, the statutes must be distinguished according as they are original types, of local growth, or are more or less imita- tions (as most are) of some other accepted model. Carried on in the light of these and other such discriminations, the study of the city statutes will be fertile for the history of Italian law.^ § 64. Industrial and Commercial Statutes. — The " statute " had become the typical form of that period for all kinds of com- munal rules established by general agreement. The " statutes " of a particular region, therefore, included several bodies of rules, enacted quite separately from each other. In the first place, there was the city statute proper, — the laws made by the supreme council of the entire city. In the next 'place, there was the statute of the common people, promulgated by the people's captain. When the plebs of the cities, failing to obtain the upper hand in the struggles with the aristo- crats, came to form a separate group within the city, they drew up rules for their own affairs. The history of early Rome was re- peated ; and in fact the term " plebiscita " was used for these rules. Again, the various departments of city administration had each its set of statutes, from the supreme judges down to the beadles. Sometimes these were all collected in a single volume, like the " Breve officialium communis " of Siena, in 1250 ; sometimes an important department had a book to itself, like the " Statutum judicis daciorum," or revenue department, of Mantua. The arts, trades, and crafts, too, had each its statutes, — the oldest of all, indeed ; older than the city government itself. Each " corporation," or gild, had a consul, who made oath to observe its statutes.^ Among these gilds, those of the merchants had attained the ' For bibliographies of the statutes in specific localities, see Schupfer, "Manuale," p. 328. General lists are as follows : Bonaini, " Alcuni appunti per servire ad una bibliografia degli statuti Italiam" (Annuario delle Universita Tosoane, II, 1851); Berlan, "Saggio bibliografieo degli statuti Italiam," Venezia, 1858; Manzoni, "Bibliografia statutaria," Bologna, 1876-1879; La Mantia, "Edizioniestudi di statuti Italiani nel secolo XIX," Torino, 1888. 2 For a copious bibliography of the arts statutes, as well as the rural statutes, see Schupfer, "Manuale," sect. II, tit. I, c. 4, §2 ; c. 5, § 1. 165 § 65] ITALY [Part II greatest position and power.^ Their strength went back for be- ginnings to Roman days. The invading Germans had esteemed no career save those of arms and the king's service ; and merchandis- ing had thus continued to remain in the hands of the conquered Roman population. Aheady in the Prankish period the Em- peror's court was suppHed from the oriental markets by great traffic routes through Venice and the other northern cities. The Crusades showered a mercantile prosperity on Italy; and it was this very prosperity which helped the cities to establish their political independence. We find commercial interests enjoying the highest honors and the most extensive privileges. Thus the statutes of the merchant gilds came to exceed all others in im- portance. They were something more than mere rules of the gild ; they had the status of a special law for all, forming an ex- ception from the common law in matters of commerce. The number and scope of these bodies of mercantile statutes in the various cities gave them a wide influence in forming the com- mercial law of Italy ; and this influence was seen in that universal commercial law which Italy helped so much to form", even in times long after the period of city independence. § 65. But it was in maritime commercial law that the deepest impress was left by the city statutes. The carrying trade on the Mediterranean was the basis of the commercial prosperity of the great cities ; and the maritime ports of Amalfi, Pisa, Genoa, Trani, An'cona, and Venice developed codes of maritime law which have always been recognized as prime historic elements in later maritime law. These statutes of the maritime cities owed more or less to the continuous traditions of Roman commerce and law ; the titles " de nautico foenore," " de exercitoria actione," and others in the Digest, particularly the famous one on the Rhodian law, served as a nucleus for the vast process of development which now en- sued among the varied populations merchandising on the Medi- terranean and its coasts. Amalfi, on the southwest coast of Italy, near Naples, had main- tained its independence, through a variety of circumstances ; and by means of close commercial relations with Constantinople it had reached a maritime importance which, at an early date, gave its '■Fertile, "Storia," §§ 66-68; Salvioli, "Manuale,"' part II, c. 13; Schupfer, "Manuale," sect. II, tit. I, c. 5; Wagner, "Handbuch des See- rechts," I, 1884; Goldschmidt, " Universalgesohichte des Handelsreohts," I, 1891 ; Laties, "II diritto commerciale nella legislazione statutaria Itali- ana," 1884; Oonetta, "Bibliografia statutaria delle corporazione di arte e mestieri in Italia," 1891. 166 Chap. II] ITALY DURING THE RENASCENCE ]§ 65 statutes an especial influence. The " Capitula et ordinationes curiae maritimae nobilis civitatis Amalphee," usually known as the " Tabula Amalfitana," was a famous code, which figured as valid in the sea law of that region as late as the 1600 s ; its original compilation is variously dated (by modern research) between the 1100 s and 1300 s.^ The city of Trani, on the Adriatic, had also a code of sea ordinances, the " Ordinamento et consuetudo maris," dating somewhere between 1063 and 1453, and probably from the earlier period.^ But Venice dominated on the Adriatic, in maritime custom as well as in politics. Its earliest code, the " Capitulare nauticmn," dates from 1255, and was revised from time to time under the title " Statuta et ordinamenta super navibus et aliis lignis." ' Ancona had a maritime code in the 1300 s and carried on a famous controversy with Venice as to the liberty of the high seas. Pisa and Genoa had long had maritime rules, but they were not reduced to writing till the 1100 s and later. The codes of Pisa (" Constitutum usus Pisani " and others) extended their in- fluence to Sardinia and Corsica and along the coast to Marseilles ; while Genoa's influence, resting on its colonial possessions in the Levant, was dominant along the eastern shores of the Mediter- ranean. But the codes of maritime commerce, unlike the ordinary city ordinances, represented the customs of trade among diverse peoples. Various elements, national and international, were thus fused into these codes, and the tendency was to develop a single uniform body of maritime customary law for all the Mediterranean peoples. Such a code was the " Consolato del Mare," or Sea Consular Rules, which was first reduced to writing (in the Romance language) prob- ' Essays and Treatises: Laband, "Das Seereoht voa Amalfl," 1864; Alianelli, "La tavola di Amalfi," Naples, 1871 ; Racioppi, "La tabula e le consuetudini marittime d' Amalfi," 1879; Schupfer, "Trani ed Amalfl," 1892; LaMdoii, "La tabula de Amalfi," Bari, 1894. Texts: Alianelli, "Antiohe consuetudini e legge marittimi deUe pro- vinze Napoletani," Naples, 1871; Pardessus, "Collection des lois mari- times," 1828-1845, vol. V. The manuscript of the Tabula was first discovered at Vienna, in 1843, by E. Gar, who published it in the R.S.I., Append. II, 8, p. 253. There are other reprints, notably by Camera, in "Memorie storiohe politiohe d' Amalfi," 1876, vol. I. 2 Essays and Treatises : Volpicella, " Degli antichi ordinamenti marit- timi di Trani," Naples, 1871; Alianelli, "Su la data degli ordinamenti marittimi di Trani," Naples, 1866; Beltrami, "Sugli ordinamenti marit- timi della citta di Trani," Barletta, 1873; Racioppi, "Ordinamenti et consuetudini marittimi di Trani," Naples, 1879. Texts : Pardessus and Alianelli, ubi su-pra. ' Predelli and Sacerdoti, " Statu ti marittimi Veneziani fino al 1255," in " Nuovo Archivio Veneto," 1902, new ser., 1. 167 § 66] ITALY [Part II ably in the 1300 s, at Barcelona, in Spain. It became almost the common law of the ^Mediterranean by the 1500 s, and was translated into Italian and other languages.^ § 66. Commercial Institutions. — The consuls of commerce, whose name gave the title to the Consolato del Mare, were one of the many commercial institutions whose origin can be traced mainly to the practices of the Italian mercantile cities. The trade among nations brought their peoples into constantly moi*e intimate contact, not only by the journeyings of ships, but by the settlement of colonies of foreign merchants in the important sea- ports. These colonies lived in a compound or quarter of the town set apart for them, and enjoyed an exemption from the local juris- diction, being governed by their own laws and magistrates or " consuls." The Italian cities, with their leadership in foreign trade, were the first to establish these consulates for their colonies abroad (usually by treaty between the two peoples) ; and the modern consul of international law derives his origin from this commercial custom. So, too, may be traced back to Italian origin or influence various other institutions of modern commercial laiv and custom. The bill of exchange is found in its earliest form in Italian documents. The insurance policy appears first in Genoese records. The mercantile corporation was typified in the famous company of the Lombards, which was organized in Italy, but trafficked all over Europe and had branches in every chief city.^ Banks arose first in Italy; the Bank of Venice appears in the 1100 s ; the Bank of St. George, in Genoa, controlled the city's finances and politics, and was in its day the most powerful institution of its kind ; and the bankers of Florence had as their debtors the crowned heads of Europe. Thus the intense and independent city life, which had given rise to a vast body of local law, had served also to contribute far and wide a national influence, and to form institutions of international importance and permanence. As popular independence ebbed, the formation of popular custom and law declined. Political con- ' Schaube, "Das Consulat des Meeres in Genua," in GoldschmidVs "Zeitschrift fiir Handelsreoht," XXXII ; id., "Das Consulat des Meeres in Pisa," Leipzig, 1888; id., "Neue Aufschusse iiber die Anfange des Consulats des Meeres," 1893 ; Salvioli, "Consolato di mare," in "Digesto ItaUano " ; Desjardins, "Introduction historique a I'etude du droit com- mercial maritime," 1890, p. 60; Goldschmidt, " Universalgesohichte des Handelsrechts," p. 208; Zeller, in Ms "Sammlung alterer Seerechts- queUen," Mainz, begun in 1906, has not yet reached the Consolato. ^ [Its quarters in London have left the name of Lombard Street ; see Martin's " History of Marine Insurance " (1876). — Transl.] 168 Chap. II] ITALY during the renascence [§ 67 ditions had again changed, and a period of monarchical govern- ment and legislation was gradually taking its place. 2. THE MONARCHICAL PERIOD § 67. Imperial Leg:isIation. — The cities, of course, had always been parts of some greater political entity, — of the Empire, if of no other. In the city period, strictly so called, there were a few lesser States to which some of the cities were tributary, — the Sicilian kingdom, for example, and the Papacy. Later there arose various principalities and foreign dynasties. Thus there were always some other sources of legislation than the cities themselves, during the Renascence and down to the general codification move- ment which began with the 1700 s. These sources were the Empire, on the one hand, and the various semi-sovereign princi- palities on the other. The legislation of the former lessened con- stantly, in scope and authority; that of the latter increased in proportion. After the time of Frederic II, the imperial authority waned rapidly. The efforts of Henry VII to restore it were futile ; some of his decrees of the 1300 s were not even inserted in the Novels of the Code until after his death, when Bartolus used his prestige to do so, in the 11th Appendix published by him {ante, § 48). From that time onwards, no imperial legislation affected Italy, except in a few rare instances, such as the Golden Bull of Charles IV in 1356 (which gave to seven German princes the election of the Emperor) and the " Constitutio Carolina " of Charles V (which as a code of criminal procedure had force in the regions of northern Italy) .^ And it is interesting to note that this practical termination, in the 1300 s, of the imperial law-giving for Italy, marks also the closing of the text of the Corpus Juris as it has come down to us. Up to that time, the legislation of the later medieval empire had used a method of promulgation radically different from Charle- magne's earlier method, i.e. of sending copies of the Capitularies throughout the Empire to be read to the people in the assemblies and churches {ante, Part I, § 30) . After the rise of the schools of law and of the authority of the jurists, an imperial decree was promulgated by sending it to thefaculties of law, to be taught from the chair and included in the manuscript texts of the Corpus. And, following the analogy of Justinian's Novels (or New Laws > Schupfer, "Manuale," sect. II, tit. I, o. 2, §3 ; Brunner, " Grundziige," §§ 27, 62; Weiland, " Constitutiones et acta publica imperatorum et regum," 1893, 1896. 169 § 69] ITALY [Part II since the Code), which already formed nine books, these later Novels were collected in two more books, — a tenth, by Ugolino {ante, § 43), and an eleventh, by Bartolus {ante, § 48). Some of them, however, were inserted in the Code itself, at the place where they modified it, not literally, but in a summary note, after the fashion of the Glossators {ante, § 40) ; the note was then termed "_Authentica." 1 After Henry VII (in the early 1300 s), no fur- ther insertions or collections were made. The era of the Com- mentators had arrived {ante, § 45) ; and the growth of the text of the Roman law was forever ended.^ § 68. Legislation of the Italian States.^ — The legislation of the various Italian States differed widely in different regions, just as the political conditions varied also. Sometimes its source of au- thority was an imperial grant ; sometimes it was a power extorted or absorbed from the cities or feudal lords. The process of acquir- ing it was a gradual one. But parliaments, assemblies, councils, and other forms of popular participation ultimately gave way to absolutism; and the powers of legislation were deeemd to be exclusively in the sovereign ruler. Much of this law was naturally directed to fixing the new politi- cal conditions. But much of it also was concerned with coordinat- ing and restating the mass of law which had originated in so many diverse sources. To substitute general laws for local customs and special privileges; to eliminate ancient and contradictory pro- visions ; to give orderly arrangement and certainty of rule, — this process, it will be seen, was in one sense a forecast and prelude of the codifying movement of the 1700 s. But in its day it went on only slowly and incompletely. The State legislation did not sup- plant or absorb the city statutes, the feudal customs, the jurists' Roman law, and the Canon law; it merely cleared the ground, established its own domination, and fixed the mutual relations of the various bodies of law. § 69. In the kingdoms of Naples and Sicily, an historical ka- leidoscope shows us a rapid succession of political dynasties of different races ; and this variety of rule is reflected in its legisla- tion.^ The Lombards had had their day there {ante, Part I, § 26). 1 The novel itself, in the earlier Latin, would be an "authentica." 2 [This section has been in part condensed. — Transl.] ' [These §§ 68-74 are much abbreviated. — Transl.] ' Fertile, "Storia," § 6.5; Salvioli, "Manuale," part II, sect. II, e. 12; Schupfer, "Manuale," sect. II, tit. I, c. 3, § 1 ; Grimaldi, "Istoria delle leggi e magistrati dello regno di Napoli," 1749-1752; Giannone, "Istoria civile del regno di Napoli," 1S23 ; Pecchia, "Storia civile e politica del 170 Chap. II] Italy dubing the benascence [§ 69 The Normans, who succeeded them, enacted the " Assisise regum regni Sicilise," towards the end of the 1100 s.^ The ensuing rule of the Swabian emperors is represented by Frederic II's " Constitu- tiones regni Sicilse," in 1231 ; and their merits and duration gave rise to commentaries by celebrated jurists like Andrew Bonellus and others.^ On Sicily's separation from Naples, in 1282, the Angevin dynasty at Naples introduced its " Capitula " for its French subjects there ; ^ other Neapolitan codes of that period, covering procedure, were the " Rites of the Great Vicarial Court,"* and the " Rites of the Masters of Justice." ^ By this time the dynasty of Aragon governed in Sicily;* its "Pragmatica" were the laws of royal initiative,' and its " Capituli " represented the rem- regno di Napoli," 1777-1796; Capone, "Discorso sopra la storia delle leggi patrie," 1854; La Mantia, "Storia della legislazione civile e orimi- nale di SiciUa," 1866-1874; Busacca, "Storia deUa legislazione di Sicilia dai primi tempi fine all' epoea nostra," 1876. 1 Orlando, "II potere legislative al tempo dei Normanni," 1844; Mer- hel, " Commentatio qua juris Siculi sive Assisarum regum regni Siciliae fragmenta proponuntur," 1856; Capasso, "Le leggi promulgate dai re Norm^anni nell' Italia meridionale," 1862; Perla, "Le Assise dei re di Sicilia," 1881; Ciotto-Grasso, "Del diritto pubblico Siculo al tempo dei Normanni," 1883 ; Brandileone, "II diritto Romano neUe leggi Normanne e Sveve del regno di Sicilia," 1884; id., "Frammenta di legislazione Normanna e di giurisprudenza Bizantina nell' Italia meridionale," 1886. Texts: Merkel, ubi sujira; Brandileone, uhi supra; Carcani, "Con- stitutiones regum. regni utriusque Sicilise," 1786. " Raumer, "Die Gesetzgebung Friedriehs II in Neapel," 1857 ; Winckel- mann, "De regni Siculi administratione qualis fuit regnante Frid. II," 1859 ; Capasso, "Sulla storia esterna delle costituzioni del regno di Sicilia," 1869; Del Vecchio, "La legislazione di Fed. II imperatore," 1874; Cic- caglione, "Le chiose di Andrea Bonello da Barletta alle costituzioni Sicule," 1888. Texts : Carcani, ubi supra, note 2 ; Huillard-Breholles, ' ' Historia diplo- matica Frid. II," vol. IV. ' "Capitula regni utriusque Siciliae, ritus magnse curise vicarise et prag- matieag, commentariis iUustrata," Naples, 1773. ■■ P. CaravitcB, "Commentaria super ritibus magnse curiae vicarise regni Neapolis," Venice, 1601. ^ Later called "summary chamber." "Ritus regise cameree summarise regni Neapolis, nunc primum in lucem editi," Naples, 1689. ^ Gregorio, " Introduzione alio studio del diritto pubblico Siciliano," Palermo, 1830; Clarenza, "Storia del diritto Siculo," Catania, 1840 ; Or- lando, "I capitoli del regno di Sicilia," Palermo, 1866. Texts: Muta, "Capitula regum regni Sicilise," Palermo, 1608-1618; Testa, "Capitula regni Sicilise," Palermo, 1741. ' For Naples : De Jorio, "Introduzione alio studio delle prammatiche del regno di Napoli," 1777; Vario, " Pragmaticse, edicta, etc.," Naples, 1777. Texts: P. Caravitoe, "Pragmaticse, etc., in unum congestse," 1575; Giustiniani, Naples, 1803-1806, XV vols. For Sicily: Scibecca, "Costituzioni prammatichi del regno di Sicilia fatte sotto, etc., Colonna," 1583, continued to 1800 by Nicastro, 5 vols. ; DeBlasi, " R-agmatiese sanctiones regni Sicilise, etc.," Palermo, 1791-1793 (includes them to 1579). 171 § 70] ITALY [Part II nant of popular government.^ Sicily and Naples were finally united under the Bourbon dynasty in 1503; and as absolutism reached its height, the " pragmatica " became the more numerous, and other forms of unlimited monarchical legislation (" dispacci," " sanctiones ") were developed.^ But these multiple layers of superimposed law formed a confused mass, almost incapable of intelligent application or amendment. The Lombard law had never been formally abolished ; Roman and Canon law were " com- mon law " ; Xorman, Swabian, Angevin, and Aragonese statutes were interspersed with Spanish, Austrian, and Bourbon decrees, and legislation of a dozen varieties competed with judicial decisions, treatises, and local customs. Though Charles III, in the first half of the 1700 s, sought to reform this unendurable state of the law, it was not until the dawn of modern times that any real success was attained. § 70. In the Papal States,^ the Roman law and the Canon law were naturally the chief sources. For a long period the local autonomy of the cities and the baronies was left without inter- ference from the suzerain; though it was expected not to violate the Church's principles. But after the cities' independence de- clined, the papacy legislated directly for each locality. The Roman State was also divided into provinces, with a governor and parliament, — Romagna, the Marches, etc., — and the provincial legislation was an important body of law. Under Cardinal Al- bornoz, a leader in the restoration of the papacy from its exile at Avignon, a commission of jurists made a notable revision of the law of the Marches, published in 1357, with the title " Liber con- stitutionum sancti matris ecclesise," — more commonly known as " Constitutiones Marchiae Anconitae," or " Collectio Aegidiana " (after the Cardinal's name) ; and this continued for two centuries as the basis of the law of the ISIarches.^ The only other local law of note was that of the duchy of Urbino (the scene of Castiglione's '■ For Naples: A. de Bottis, "Capitula, etc.," 1588; and another edi- tion, "Capitula, etc.," Naples, 1773. For Sicily : Raimondeita, "Regni capitula, etc.," Venice, 1573; Testa, "Capitula regni Sicilise, etc.," Palermo, 1741. 2 D. Gatta, "Regali dispacci, etc.," Naples, mi-Vm, XI vols. ; Ger- vasi, "Siculffi sanctiones," Palermo, 1750-1755, VI vols. ' Perlile, "Storia," § 65; Salvioli, "Manuale," part II, sect. II, e. 28; Schupfer, "Manuale," sect. II, tit. I, e. 3, § 4; La Mantia, "Storia deUa legislazione Italiana, I, Roma e stato Romano," Turin, 1884. ' Brandi, " Le Constitutiones, etc., del card. E. Albornoz," 1888; Wurm, "Card. Albornoz der zweite Begriinder des Kirchenstaates," Paderborn, 1892 ; Ermini, "Gli ordinamenti politici ed anministrativi nelle Constitu- tiones ^gidianae," 1893. Text: "jEgidianae Constitutiones recognitse, etc.," Rome, 1543. 172 Chap. II] italy DURING the renascence [§ 71 famous book, " The Perfect Courtier ").^ The central legislation of the Church, for the governance of its own regions, formed, of course, an immense and heterogeneous mass ; the collections known as " bullaria " are arranged merely in chronological order. § 71. The later monarchy of the house of Savoy ^ was formed from a number of -smaller principalities gradually united, — Piedmont, Savoy, Montferrat, Saluzzo, Sardinia, and others. Amadeus VIII was here the great legislator who first succeeded in bringing order out of chaos. His " Decreti," a revision com- piled by a commission of lay jurists and churchmen, was published at Chambery, in 1430.' His successors labored in the same direc- tion.^ But the crowning work was accomplished by Victor Amadeus II, who, after erecting into a monarchy the State which had been so enlarged by his long wars, caused to be prepared by a commission a most radical and comprehensive code, the " Con- stitutiones," published in 1723. This legislation was still in force when the great epoch of reform arrived at the end of that century. Sardinia, however, though then under the house of Savoy, was not included in this legislation. The peculiar legal status of that island kept its individuality even down to the time of the modern codes of united Italy. Local chieftains, known as " judices," had there maintained themselves, as the arbiters of justice, throughout all the Pisan and Genoan rule ; and a code of law in 198 articles, known as the " Carta de logu," was published in 1395, by the " judex " Eleanora (who was herein carrying out the uncompleted work of her father Mariano IV). ^ This " Carta de logu " was of such merit that it continued long in force under the succeeding * S. de Campello, " Constitutiones ducatus Urbini," etc., Rome, 1709. See Schupfer, "Manuale," sect. II, p. 545, n. 72. 2 Fertile, "Storia," § 65; Salvioli, "Manuale," part II, sect. II, o. 26; Schupfer, "Manuale," sect. II, tit. II, c. 3, § 2 ; Sclopis, "Storia dell' antica legislazione del Piemonte," Turin, 1833. ' Nani, "Gli statuti di Pietro II, conte di Savoia," Turin, 1880; id., "Statuto deU' anno 1379 di Amedeo IV," Turin, 1881 ; Cibrario, "Degli statuti di Amedeo VIII," Florence, 1856. ^ Borelli, "Editti antiche e nuovi dei sovrani principi della reale casa di Savoia, etc.," Turin, 1680 ; later editions by Bailly and by Jolly; then by Duboin, " Raccolta per ordine di materie delle leggi, editti, etc.," Turin, 1818-1873, with, continuations by Muzio and by Cottin. Sola, "Com- mentaria ad, etc., deereta," Turin, 1625. For Montferrat: "Deereta civilia et criminaUa antiqua et nova mar- chiae Montisferrati," Turin, 1571 ; Saletia, "Decreti anticMe nuovi civili e misti del Monferrato," 1675. For Saluzzo : " Stylus marehionalis, seu leges in tribunalibus marchiae Saluciarum observandse, etc.," Turin, 1598. * G. E. Del Vecchio, "Eleanora d' Arborea e la sua legislazione," Milan, 1872 ; Mameli de' Mannelli, " Le costituzioni di Eleonora giudicessa d' Arborea intitolate Carta de' Logu," Rome, 1805. 173 § 74] ITALY [Part II foreign dominations of Aragon and of Savoy, and the "pragmatica," " capitula," and " ordinamenta " of these later rulers were only supplementary.^ § 72. In Lombardy,^ the flourishing life of its important cities made the local " statuto " a source of continued importance, even under the despotic rule of the Visconti aYid the Sforza. The " decreti " or " constitutiones " of the rulers were first compiled, under Charles V, in 1541, as " Constitutiones dominii Mediolanen- sis." These, with the new legislation of the Spanish and Austrian dynasties, including the ordinances of the Senate, continued in force until the French Revolution. § 73. In Venice, the individuality of its local law set it apart from the rest of Italy, and had never been lost amidst all the mutations of government and vicissitudes of Italian fate. The fugitives, who, in the Germanic period, first entrenched themselves on the islands of the lagoon, brought with them a Roman-Byzantine law. The first attempt to compile in writing the mixture of cus- toms, Roman law, and ordinances which had gradually accumu- lated, was the criminal ordinance of 1181 ^ — called " promissione dei maleficii," because sworn to by the magistrate on taking office {ante, § 58) ; revised in 1195 by the doge Eurico Dandolo.^ § 74. The doge lacopo Tiepolo was the great legislator of Venice ; in 1232 he revised the criminal code ; in 1242 he compiled the civil statutes, and in 1244 a code of procedure (" statuti dei giudici delle petizioni ")• Tiepolo's work remained as the foundation of all subsequent legislation. Of the numerous revisions, the last general one was in 1729 ; ^ after 1751 the criminal code was pub- 1 Dexart, "Capitula sive acta euriarum regni Sardinise," Cagliari, 1645 ; Vico, "Leyes y Pragmaticas reales del Reyno de Sardejaa, etc.," Cagliari, 1680; Sanna, "Editti, pregoni, etc.," Cagliari, 1775. 2 Fertile, "Storia," § 68 ; Salvioli, "Manuale," part II, sect. II, cc. 27, 28; Schupifer, "Manuale," sect. II, tit. II, e. 3, pp. 363. 541; Sclopis, "Storia dell' antica legisla^ione del Piemonte," II, part 2 o, e. 6 ; Verri, "De ortu et progressu juris Mediolanensis," MUaa, 1747; Bonetto and Bracherio, "In regio palatio apud fratres Malatesta;" Marbio, "Codice visconteo sforzesoo," Milan, 1846; "Compendio di tutte le gride ed or- dini, etc.," Milan, 1609; "Gridario generale delle gride, etc.," Milan, 1648. ' Edited by E. Teza, "Promissione dei maleflcii," Bologna, 1863. * Texts : edited by Lazzari, in A.S.I., IX, 1853 ; Foucard, Venice, 1853; Romanin, "Storia di Venezia," II, 430. Essays: Musatii, "Storia della promissione ducale,'' Venice, 1888. The last "promissione" was that of L. Manin in 1789. ' "Novissimum statutorum et venetarum legum nolumen," Venice, 1729; Besta and Predelli, "Statuti civili di Venezia anteriori al 1242," Venice, 1901 ; Griffii, " Volumen statutorum, legum, et jurium d. d. Vene- torum," Venice, 1678 and 1709; Valsecchi, "BibKografia analitioa della legislazione della repubblicadi Venezia," 1871-1877; Boberti, "Le magis- 174 Chap. II] ITALY DURING THE RENASCENCE [§ 75 lished separately. One peculiarity of Venetian law was that cases not expressly covered by its own enactments were solved by resort- ing, not (as elsewhere) to the Roman law, but to natural equity ; so that the magistrate's discretion was an important feature, and Venetian justice (as Bartolus remarked) was administered " manu regia et arbitrio suo." And a consequence was that they never yielded to the dominant worship of precedent, in the days of the Bartolists; and glosses and commentaries were forbidden. An- other marked feature was the absence of any Germanic principles, for their territory had remained unconquered. And their intensely individual history developed numerous other peculiar principles, especially in public law ; among which may be noted the rigor of their suppression of ecclesiastical power and their refusal to rec- ognize the " dead hand " in church property. § 75. In the remaining north-central regions — Tuscany (in- cluding Florence), Modena, Parma, Piacenza, and Liguria (includ- ing Genoa), the city statutes continued to form the basis of the law, with a mixture of " decreta," " capitula," " bandi," " gride," " ordinanze," mingled and superimposed by the various ducal rulers and foreign dynasties which succeeded from period to period.^ In spite of occasional compilations and revisions, the mass of law re- mained confused and complicated, awaiting the arrival of an era of genuine codification. trature giudiziarie Veneziane e i loro capitolari fino al 1300," 3 vols., 1906- 1910, Venice (Deputazione di Storia Patria). ' Flobencb : " Legislazione Toscana raecolta e illustrata," Florence, 1800-1808 ; "Codice della Toscana legislazione, etc.," 1736 to 1786, Siena, 1788 ; "Leggi e bandi deUa Toscana," Florence, 1765-1860. Genoa: "Leges novse reipublicsa GenusB, etc.," 1617; "Statutorum civilium reip. Genuensis nuper reformatorum libri VI," 1633 ; "Crimina- lium jurium reip. G. libri duo," 1669 ; Traversa, " Magistrature ed official! deUa republica di Genova; studio storico-giuridico," Genoa, 1910. 175 7Q] ITALY [Pakt II Chapter III. Thied Period: a.d. 1700-1900 ITALY IN MODERN TIMES ^ §76. The Transition Topic 1. Schools of Legal Thought ! 77-80. , The Natural Law School. | §§ 81-83. The Historical School. Topic 2. The Codification Movement §§ 84, 85. The Italian Codes of the 1700 s. §§ 86-88. The French Codes in Italy. §§ 89-92. The Italian Codification of the 1800 s. Topic 3. Recent Times §§ 93, 94. Codification and the I § 95. Other Schools of Thought. Historical School. | § 96. Conclusions. § 76. The Transition. — The transition stage between the de- cline of the Renascence Period and the opening of the Modern Period is represented by the last half of the 1700 s, when the Euro- pean Revolution was preparing. In its relation to legal sources, it has much similarity to the period in ancient Rome when the ex- uberance of production had ceased and the need for revision, coordination, and simplification had begun to be felt. The intricate mass of edicts, decrees, opinions, statutes, and customs which en- cumbered the Roman law found its counterpart in the commen- taries, city statutes, royal ordinances, judicial decisions, and local customs, which burdened Italy. Practice was embarrassed, judges were in doubt, rights were uncertain, legal science had lost all originality. And the same remedies, now as then, were sought. A prime evil was the doctrine of " communis opinio," or weight of authority by. numbers {ante, § 46) ; and just as at Rome the law of Citations had tried to solve this by giving to the works of five selected jurists an 1 [§§ 76-96 = Calisse, part IV, §§ 163-188, pp. 332-379. — Transl.] 176 Chap. Ill] ITALY IN MODERN TIMES [§ 76 exclusive authority, so now it was sought in some of the Italian States ^ to forbid the judges and the lawyers to cite any work of the jurists. Another remedy was sought by the compilation of syste- matic digests of all the law ; and this expedient, begun by private hands and continued ofBcially, prepared the way for a genuine movement of codification. Three periods may here be distinguished. The first is the period of private compilations, which alleviated the evils, but did not pre- vent their gradual renewal. The second was the period of ofBcial compilation, — not a genuine codification, because it still left the " common law " and the local statutes in force ; codes of this sort are typified in the Piedmont Constitutions of 1723 {ante, § 71). The third period, one of codification in the fullest sense, sees the law reduced to a single systematic form, exclusive in its dominion, and totally supplanting all special diversities of locality, status, jurisdiction, or privilege. Justinian, too, had indeed codified in the same manner, and had hoped (but in vain) that his work would " in seternum valiturum." But there was a vital difference between his method and that of the Italian legislators. The former had merely rescued and collated the results of the past, and had expected with those materials alone to build a permanent monument for all future times. But the modern codifiers looked on the past merely as providing in- struction for the future ; they deliberately cut loose from the old, so far as it served no useful purpose in building for a new era. This spirit (next to that which inspired the Declaration of the Rights of Man) is the greatest feature in the modern period of social reconstruction. The lack of it was the cause of the failure of all prior attempts at codification. The community had not been adequately prepared. It had lacked the consciousness of aim to realize its own needs ; and it had been shackled by the bonds which thwarted such a purpose. The first was supplied by the labors of the great philosophers of the 1700 s, the moral authors of the Rev- olution. The second was removed by the Revolution itself, which vindicated the rights of man against the abuses of absolutism and privilege, and secured freedom to legislate in harmony with social needs. Legal Philosophy and Revision of the Law thus become the two topics for consideration in this period. " E.g. by Victor Amadeus of Savoy and by Ferdinand Bourbon (Stat. 1774, Costituzioni Piemontesi, book III, tit. 22, § 9). 177 § 77] ITALY [Part II Topic 1. Schools of Legal Thought'* § 77. The Natural Law School. — The conception of a Natural Law is an old one, — a law, that is, founded in the very nature of man, common to all men, and alike for all times and places. The Romans, alongside of their municipal law (" jus civile ") recognized another, " quod naturalis ratio inter omnes homines constituit." They sometimes based directly on it a rule of positive law, — occu- pation, for example, was " naturali ratione " a mode of acquisition of ownership. Sometimes they contrasted it with positive law; slavery, they said, was " contra naturam," for by nature all men are equal. And sometimes the natural law was invoked to amend and give ethical value to the positive law ; it was not lawful, for example, to infringe upon a good custom. But their conception of natural law never went so far as to see in it an entire system of principles independent of and superior to the various positive or national laws. Positive law, based on State policies, was the essential means of a State's preservation and development; natural law was merely a principle of the philosophers, of which occasional use was made. And the influence of philosophy grew less and less as the State became decadent, despotism increased, and individual liberty and energy faded. The Middle Ages, too, had known a Law of Nature. Under the influence of the Church, natural law underwent a profound trans- formation. No longer philosophy, but Christian theology and morals, supplied its basis. It now came to serve as the support and justification of all positive law. " Rex a recte agendo vocatur," says Isidore of Seville (ante, Part I, § 32), otherwise he is merely a tyrant and may be deposed or even killed. Every rule of human law, says Thomas Aquinas, in order to be just, must coincide with the law of nature ; a custom, to be valid, must be " bona " ; and these laws of nature take form and are revealed in the laws of God and the Church (ante, Part I, § 65) ; for human reason alone can- not supply them. Thus the subordination of positive law to natural law is a logical consequence of the latter's origin in Divine authority superior to all human society. In Dante's "Monarchia" it is laid down that law is only a manifestation of the Divine will ; when it varies from that, it is but injustice and tyranny. 1 Salvioli, "Manuale," part II, c. 23; Schupfer, "Manuale," book II, tit. II, e. 2 ; Lerminier, "De I'influence de la pMlosophie du XVIII'= siSole sur la legislation et la sociabilite du XIX^," Paris, 1833; Joyau, "La philosophie en Prance pendant la revolution, son influence sur les institu- tions politiques et juridiques," Paris, 1892; Rivalla, "Diritto naturals e positive," Bologna, 1898. 178 Chap. Ill] ITALY IN MODERN TIMES [§ 78 This conception, which dominated through the Middle Ages, did indeed later serve in its turn to fortify the authority of despotism ; for, on the postulate that sovereignty was delegated from God and that its exercise was to be judged by Divine standards, the logical consequence was built that the sovereign person was responsible for his acts to God alone and not to man or any set of men. In Vico's maxim, " Respublica uni Deo, prseterea reddit rationem nemini," Absolutism found its strongest expression and support. But in due season came a reaction. Law was given a new philosophic basis ; and this was the work of the school of thought characteris- tically known as the school of Natural Law. § 78. The period of preparation was a lengthy one, and goes back as far as the Renascence ; but the later thinkers, by new inferences and gradual additions of principle, ended in reaching results radi- cally opposed to the earlier ones. Among the earlier ones, Gian Battista Vico (1670-1740) stands out as an original and independent intellect ; though he was not in touch with his own time and country, nor was he then appreciated.^ In his " De universi juris uno principio et fine," knd his " Principii di scienza nuova intorno alia comune natura delle nazioni," he develops the idea of an eternal and ideal law, superior to human vicissitudes, and persisting through the recurring cycles of history, by virtue of a power which rules all human things. Thus in Vico's work we find the germ idea of a natural law which could serve as a universal justice. When that school came to develop its position, it turned enthusiastically to the works of Vico for support, and bestowed upon him a posthumous fame which had been denied him in his lifetime. But Vico was in general attitude far removed from the genuine idea of natural law. His thought was still fettered by the Middle Ages' view of a Divine Providence which established the starting-point and the recurrent goal of the human mind; which coincides with human reason, when the latter does not stray from the Divine dictates ; and which unites in itself all men and all nations in their entire life from the origin of the world down through the immutable paths of history until the final judgment day. It was in the realm of public law, and particularly international law, that the ultimate doctrines of the new school received clear and definite statement. The aim of these writers was to lead the 1 [Vico's philosophy is fully expounded by Miraglia, in his "Compara- tive Legal Philosophy " (1912), vol. Ill, of the "Modern Legal Philosophy Series." — Transl.] 179 I 78] ITALY [Part II public conscience and the law to disfavor the bloody wars into which Europe was then constantly plunged as a consequence of religious and dynastic quarrels. The principle was advanced that war was unjust unless undertaken as a lawful means of defending a right or redressing a wrong ; and this standard of lawfulness was sought in natural justice, i.e. those rules which had their basis in the nature of mankind and must therefore inherently furnish for all men the supreme rule of conduct. Foremost among these writers was Albericxjs Gentilis, of San Ginnesio (1550-1608). The religious dissensions in Italy drove him to seek liberty of thought in foreign lands ; and he became a professor at Oxford University.^ In his " De Jure Belh," he treats of the causes which justify a war and the permissible means of con- ducting it. This work paved the way for a more famous book, the " De Jure Belli et Pads," of Hugo Grotitjs, of Holland (1583- 1645). Grotius is regarded as the real founder of the new school of Natural Law. With the object of lessening the frequency of un- just wars, he seeks to determine the principles of natural law. These he finds in' the dictates of right reason, which tells whether men's actions conform to justice; God, being the author of our nature, sanctions the principles of right reason, which controls our nature. Positive (or civil law) derives its validity from natural law, i.e. from that principle of natural law which binds us to ob- serve the obligation of a contract ; human beings living in organized society have entered into a contract, expressly or impliedly, to obey such officers and such laws as may be recognized to be neces- sary to preserve the existence of society. This theory marks the transition from the medieval to the modern point of view. The medieval view is seen in the postulate that God is the source of natural law ; the new view is seen in the interposition of human reason as the basis of the laws and institutions of human society. The significance of the new view is seen in Grotius' own admission that his theory would have been equally valid even if the existence of God were not conceded. From Grotius' principles (whether or not he was aware of the consequences), it was merely a matter of logic to deduce that human reason must take the place of divine revelation in the field of law ; that human reason must supply the specific rules of natural law, which being founded on the essential nature of man, would be universal and immutable in their validity ; that no institution of society ought to be conserved except so far as it was in accord ' [See note 3, § 52, ante. — Tkansl.] 180 Chap. Ill] italt in modern times [§ 80 with that law ; and that any institution, when not in such accord, ought to be extirpated, even by revolution if necessary. Such were the consequences which Grotius' successors set themselves to draw, especially the philsophers of the 1700 s. § 79. Philosophy, having thus established its dominion in the field of law, proceeded to reconstruct the law (as it was aiming to reconstruct all human society) on the basis of a universal Nature, — that is, taking as its type the primitive man (reconstructed in imagination), free from all the artificial trappings of human society, and seeking to analyze his sentiments and needs. For this process, a criterion was sought in the observation of facts. Man as he appears in all times, places, and conditions was studied. The abnormal or accidental traits of the individual man or society were discarded; the object was to detach, collate, and compare only that which was permanent and common to all, and thus to ascertain the essential nature of man. Corresponding to this nature there would be found certain laws of conduct necessary for its conservation and development; and these laws, united into a system, would be that natural law, to which all other laws must yield. The novelty of this conception lay here : Preceding systems had based the notion of man's nature solely on the operations of his reason or conscience, as contrasted with the divine reason inter- preted by the Church; but now his nature was studied in itself alone, without regard to its supernatural relations, and solely with the aid of logical reasoning and scientific observation. The Middle Ages viewed man from the standpoint of his destiny beyond the grave ; the new school observed him solely as a member of human society. Theology had treated him as part of the scheme of salva- tion; human science was now to treat him as a phenomenon of nature, of a piece with all the other facts of nature. These new views diffused themselves rapidly. They reached the people, and penetrated popular thought. The treatises were published in popular forms, and the themes were universally dis- cussed. Of all this, France was the chief centre ; but Italy was also active in the work. The advocates of the new philosophy welcomed this progress of its ideas ; for it gave them the dominant influence at the crucial period when radical changes were impend- ing and the ancient order of things was already tottering. § 80. The consequences of this new thought in the field of law may be summed up under three heads : (1) In the first place, revelation being abandoned as a basis of 181 § 80] ITALY [Part II right, human reason took its place, and the system of thought known as Rationalism came into control. Its principal champion was Immanuel Kant. In Kant's system, the universal and immu- table rules of reason protect against every violation of those rights with which nature has vested man ; law is merely the sum of those conditions which insure that the liberty of one man shall not in- terfere with the exercise of corresponding liberty by another man. This principle belongs, as effect to cause, with the principle of the social contract, — the characteristic of this school. Men have organized society by consent, with the object of attaining ends not attainable by individual powers alone ; but they have not and could not have surrendered those individual rights which essentially inhere in man's nature, and which must therefore be respected and guaranteed by society. The final result of this principle, in practice, was the proclamation of the Rights of Man. (2) In the political field, the new thought led naturally to the abolition of almost all the institutions inherited from the Middle Ages. Feudalism, privilege, primogeniture and entailed estates,^ absolutism, and Church interference in the State, — on all these things a ruthless war was now waged. Whether founded on divine authority, or on conquest, or on class domination, they were de- clared to violate the law of nature, and therefore to be doomed to extinction. The State was founded by men, therefore it had no superior right, but existed solely for the good of its members. Its aim must be to remove all obstacles to men's pursuit of their natural happiness and the development of their natural powers. And since, in the removal of these obstacles, there must be a discarding of existing institutions and a transformation of the State, the re- sistance offered by all opposing interests must be overcome. In short, by sheer logic, these theories led to Revolution. (3) Finally, in respect to the laws themselves they must be made to conform to the law of nature, and this meant that they must be adapted to attain the social ends of man's existence. Here, first, was challenged the domination of the Roman law as the " common" law of the various countries. Outside of Italy, it had the status of an imported law, — a law imposed by conquest and foreign au- thority ; a law suppressing the people's own natural law ; an anti- quated law, handed down through twelve centuries of bookish learning, and constantly deviating more and more, in its subtilties, M" ' Fideicommissum' is not exactly an entail, but it is a species of trust estate, which, as used for family settlements, represented the correspond- ing thing in modern Europe. — Tbansl.] 182 Chap. Ill] italy in modern times [§ 81 from the principles of nature. The Canon law was likewise at- tacked, as representing the influences most alien to the new thought ; for the Church sought its inspiration in the supernatural, not in the needs of society as it existed. And, finally, the laws must be purified of all that rested on the false and discarded theories of government ; they must be adapted to a society founded on equality, not on privilege. The entire law, in short, must be reformed, — must be con- formed, that is, to the precepts of nature. And since these pre- cepts are immutable, the law, when thus recast in a system, could be and should be framed into a single permanent body of rules, known and accessible to all. And so the demand arose for the Codification of the Law, — a codification, that is, in the most rigid sense, as then conceived and believed in. §81. The Historical School.^ — All these practical principles, which formed the logical outcome of the school of Natural Law, called forth opposition. In time, a reaction set in, though not a permanent one at all points. In spite of the proclamation of the intrinsic rights of man, social inequalities persisted. In spite of the political changes made by the Revolution, the old European States and governmental systems were once more restored. And over against the theory of law and the movement of codification, there arose a new school of thought, which denied the former and gave a new turn to the latter. The activities of the Historical School, after the fall of the Napoleonic empire, in 1814, raised in Germany a vigorous debate as to the propriety and feasibility of a national codification. The opposing sides in this debate were led by two celebrated champions, — Savigny, opposing the code, and Thibaut favoring it. Thibatot made use of the patriotic sentiment of Germany, in support of his natural law principles, to advocate the final libera- tion of that nation from foreign oppression and foreign law. In the name of both causes, he called for the compilation of a single code for all the Germanic communities. His views were put forth in a pamphlet entitled " The Necessity for a Common Civil Law for Germany," published at Heidelberg in 1814. His plan was to construct this code on the general principles of justice and right reason, adapting them to Germanic custom, and eliminating all foreign law, and therefore rejecting the Roman law, which he 1 Vanni, " I giuristi della scuola storica," in Rivista di filosofla sqien- tifioa, 1885; Brugi, "I romanisti della scuola storica," in Circolo Giuri- dico, 1883. 183 § 81] ITALY [Part II declared was uncongenial to the character and sentiments of German people. To this slogan Sa-sigxy replied, with his famous pamphlet, " The Vocation of our Times for Legislation and Jurisprudence," pub- lished also at Heidelberg in 1814. In this pamphlet was set forth the programme of the Historical School. Its fundamental principle was that law is not abstract nor absolute in its nature, nor a product of immutable principles superior to the changing vicissi- tudes of human society ; but that it is intimately related — as effect to cause — with the definite character of each individual people, and that it is a product of the various conditions which from time to time arise. Each people, inevitably and almost un- consciously, develops its own language and its own customs, suited to its own beliefs and interests ; so, too, it develops its own law. There are indeed three distinguishable elements in that law. The natural element, arising out of the popular conscience, is found in the customs based on their conditions of life ; and the formal (or political) element, the work of the legislator, is that which gives positive form and efficacy to the law, after the jurists have prepared the way. The technical element is the work of the jurists, which rescues the law from the disorder of merely popular custom and gives it a scientific basis, — just as the philologists and grammarians do for the language. Hence, according to the Historical School, a people's law is first to be sought in its history ; because it is in that history that we discover the reasons for its particular details and the conditions which have caused it to change and develop as it has. These three elements are inherently and closely related. The first reveals to us the needs to be provided for, and also furnishes the materials to be employed in systematizing the positive law. The second and the third, complementing each other by turns, are always to be kept in close touch with the first, i.e. with the beliefs and interests of the community, whence alone arise the efficacy and the justice of the law. The proportion, to be sure, in which these three elements contribute to the whole varies much at different times and places. Sometimes custom predominates, — as in the primitive Germanic epoch. Sometimes the function of the jurist and the judge rises to greatest importance, — as at the beginnings of the Renascence. And sometimes legislation, the direct work of the political authorities, occupies the foremost place, — as in the period after the reconstruction of the European States, But, throughout all, the law is essentially an historic fact, not only in 184 Chap. Ill] ITALY IN MODERN TIMES [§ 83 its earliest stage, but also in all the variety of its later mani- festations. § 82. With such opposite views of the nature of law, there could be no conciliation between the two schools of thought. On every point they were bound to arrive at opposite results. The one viewed law as something universal, abstract, and immutable. The other made it out to be different for every people, dependent on external conditions, ceaseless in its changes as each new cause produced a new effect. The one assumed law to arise from a con- dition preceding all human society; the other made each human society the cause of its own law and the guarantee of its efficacy. The one assumed that law could be molded into a single rational system, common to all peoples, and therefore advocated codifica- tion. The other could not conceive this as possible, and therefore opposed codification. Savigny, on this practical problem, took issue radically with Thibaut. If a people's law (he maintained) is always in the proc- ess of historical development, to codify it is merely to arrest its life, to impede its natural modification in the course of events. A codified law could never correspond to the reality of things ; for, as law inevitably continues to progress, the code never repre- sents anything more than the law of a particular moment, which has already become the past. Nor does it attain any purpose of justice; because every code-rule remains to be applied by the judges to new cases, and thus the new cases (created by new conditions) are made to be governed by a rule representing only the past of the community, — and a past which is more and more rapidly retreating. Moreover (and apart from these objections), Savigny contended that in any event the time for codification was then 'premature; the necessary historical knowledge and scientific studies were totally lacking ; any code that could then be made was bound to be erroneous and imperfect (and he cited as examples the Code Napoleon and those founded on it) ; so that nothing but harm could come thereby to legal science. And, as his final argument against Thibaut's proposal, he pointed out that, if a code should be made at all, it would have to be based mostly on the Roman law, inasmuch as that law (though once foreign) had by centuries of use become nationaUzed in Germany. § 83. The Historical school had a brilliant vogue, not at all limited to German scholars. But its views have not remained unchallenged by modern criticism. It exaggerates, and to some extent, mistakes, the part played by custom. Historically, it is not 185 § 83] ITALY [Part II correct to say that law is always formed by a process originating in custom. Xor can legislation be regarded as merely the law's form, giving completion and efficacy to custom or to the dictates of legal science ; sometimes it is ; but sometimes, and perhaps com- monly, it is not. History shows that law has often been imposed upon a people, even in conflict with the popular wish and customs, — either by a conqueror, or by a dominant class, or by a despotic ruler. Such facts do not disturb the adherents of the Natural Law theory; for that school treated all human circumstances merely as elements disturbing the original purity of the law. But they cannot be consistently accounted for by the theory of the'His- torical school, which regarded human conditions as the eSicient cause of all law, and is thus inadequate to explain such contradic- tions. Furthermore, its fundamental notion of a common or popular conscience or consciousness, producing the rules of custom and law, is but vaguely formulated. It was in fact merely an abstraction serving as a link of development between the Historical school and its predecessor, the school of Natural Law. The latter, in developing from the still earlier modes of thought, and though seeking to cut loose from every assumption incapable of positive demonstration, had come to conceive of human nature as a com- plete abstraction, and had laid down the famous postulate of the social contract, — undemonstrated and quite undemonstrable. So, too, its successor, the Historical school, though starting from the opposite direction, ended also by positing, as the source of law, its dogma of the common consciousness, — which was in essence nothing more than that same abstraction of a human nature; differing only in that it was supposed to take different forms accord- ing to time and place, instead of being a general nature independent of the varied facts of human society. Besides these shortcomings of theory, the Historical school felt also the handicap of political conditions, which were far from permitting (even in Italy) a re- pudiation of all the legislative results of the Revolution. And the codification of the law had been one of those results which was more and more demonstrating its value. And so the opposing voices of the Historical school were not listened to. On this issue they were defeated. The Codification movement spread more or less rapidly into every country. A new epoch was marked off in the external history of the law, — the epoch of modern times, which gave to the law in almost every country its latest systematization in the form of codes. And here France's example was followed with alacrity by Italy, where the 186 Chap. Ill] ITALY IN MODERN TIMES [§ 84 need was perhaps even greater than in the other countries which had taken the same step. Topic 2. The Codification Movement § 84. The Italian Codes of the 1700 s. — Italy, though it had not been the centre of expansion for the new philosophical move- ments already described, had not failed to share in the results. The new principles overcame all those obstacles interposed by the political conditions of the country and by reactionary influences. Not" a few famous names are recorded among its champions of universal reform. Cesare Beccaria (1735-1793), in his work en- titled " Crimes and Punishments " (1764), sought to turn the crim- inal law into the paths of the new principles. His aim was to divest it of its prejudices, its cruelties, its judicial arbitrariness, its inequalities of rule, — evils which had grown out of a blind ad- herence to the tradition of Roman law, the despotism of sovereigns, the ignorance of the common people, and the meddlesome regula- tion of personal conduct by the judiciary. Filangieri (1752-1788) , in his " Science of Legislation," set for himself the task of recon- structing that science throughout. Starting from the principle that there should be in legislation, as its objective, an absolute good, constant and immutable, over and above the relatively good {i.e. relative to time and place), he built up a complete and ra- tionalized system of legislation, directed to procure for the people a happiness based on political equality, economic reform, universal education, family governance, and legal supervision. Spedalieri, who wrote his " Rights of Man " at the behest of Pius VI, accepted and defended the philosophical beliefs of his times as to a state of nature and the social contract. On the one hand, he maintained that men had the right to regulate society to their own best ad- vantage, and that therefore any power which obstructed this would be tyrannous, and might be resisted even by rebellion. On the other hand, he sought to harmonize these doctrines with the prin- ciples of religion and the traditions of the Church. Romagnosi (1761-1835), a follower of the French Encyclopsedists, and endowed with a mind of vast scope, undertook to epitomize and coordinate the entire body of the social sciences regarded as the common principles of man's nature. The people at large did not remain unaffected by the new in- fluences. They were called upon for participation, not only by the social reformers, but by those of the rulers who were more or 187 § 85] ITALY [Part II less disposed to experiment with the new ideas. In fact, the latter half of the 1700 s witnessed a widespread tendency in governments to reform statecraft on the principles of the legal and social thinkers. In some regions these reforms were bold enough, — more radical in fact than the times were then capable of receiving, and destined therefore to be neither practical nor enduring. One of the principal objects of reform throughout this new move- ment was the condition of the complex mass of legislation. The ideal aimed at was a clear and complete compilation of the laws, which would then be equally enjoyed and equally obeyed by all classes of people. Accordingly, the latter half of the 1700 s in Italy is marked by numerous tentative measures of codification. § 85. In Southern Italy, where the Bourbons then held sway, and the mass of legal sources was especially complicated (ante, § 68), the drafts of Carlo Tapia (known as " Jus regni," or " Codice Filippino," after Philip III), and of Charles Ill's commission (1751- 1789) were abortive ; and the Revolution overtook this kingdom while it was still planning and drafting. In the Papal States, no general compilation had been seriously thought of. In Tuscany, however, the work was undertaken with ardor, — though here too with little result. Duke Francis of Lorraine began in 1745 to carry out large plans; but their only fruit was a penal code in 1786. In the duchy of Modena, under Francis III of Este, a code of five books was enacted in 1771, which accomplished much for simplicity. In Lomhardy (under the Austrian Maria Teresa and Joseph II) the sole result was a code of practice in 1786. In Venice, the mass of materials was in special confusion; and during the half century a partial codification emerged, — a criminal code (1751), a feudal code (1770), and a maritime code (1786). In Piedmont the early compilations of 1723 {ante, § 71) lasted, with revisions, throughout the century, and were so highly esteemed that they served as models for the usually fruitless undertakings of the 1700 s in the other Italian States. \Yith the extraordinary convulsion of the French Revolution, all the bonds of past traditions were broken and a new era began. First the army, later the ideas of the Revolution, overran Italy. Its mistakes and its excesses, no less here than elsewhere, did harm by interrupting that process of progress which had been steadily, though slowly, maturing. But the Revolution's benefits also were felt; for the fruitless attempts of the later 1700s showed that nothing short of a revolution could have availed to eradicate the inveterate evils of Italy's legal system. 188 Chap. Ill] ITALY IN MODERN TIMES [§ 87 § 86. The French Codes in Italy. — For the full achievement of the task of codification, two great principles had first to be accepted. One was the abandonment of an idea which would make fruit- less any reforms, however intrinsically good (and there were not a few of these, under the benevolent rulers of the late 1700 s), — the idea, namely, that they were a concession from the ruler; for this implied that their continuance rested entirely in the ruler's discretion. What a man is entitled to get, as of right, will never be accepted by him as a gift, even from the sovereign. The sovereign must give positive guarantees that the new rights would be respected. But this proposition obviously could never have been recognized under the old political conditions, where divine right was the foundation-theory of the rulers' status. This theory, however, had been totally cast out by the Revolution. That the rights of the people were sacred and indestructible could now be fully recognized ; and so the first great step had been taken. The other principle, for the lack of which no general codification had been possible, was that of civic equality before the law. As long as the population remained separated into castes or classes unequal in their rights and privileges, — ecclesiastics, nobles, towns- people, etc., — it was useless to talk of unifying the law. The Revolution brought to all an equality before the law, and thus supplied the second prerequisite for a real codification. And yet the Revolution, apt as it was for the task of destruction, did not prove itself equally so for that of reconstruction. And the task of codification was indeed no less difficult than important. Centuries of legal materials were to be compassed and collated, purging them of the antiquated rubbish, and fitting them to the new social conditions. The first code was the work, not of the Revolution, but of that man who arose amidst the universal de- struction and appeared on the scene as Destiny's instrument for restoring law and order and rebuilding the social edifice. Napoleon went about his task, not in any blind adherence to the new social theories, but with an eye always on the actual needs of the com- munity. Adjusting theories to actualities, and thus giving new life to each, he produced a work of permanent and world-wide usefulness ; for his Civil Code has been taken as the basis in al- most all modern legislations. § 87. When the Revolution broke out, French law still con- tained plentiful traces of the early Germanic invasions. In the north, where the first settlements were made, these settlements had been more dense and more destructive of the original popu- 189 § 87] ITALY [Part II lation than in the south, where the Romanic element predomi- nated. Thus it came about under the medieval system of per- sonal law (ante, Part I, § 48) that Roman law prevailed in the south, while Germanic law was most copious in the north. When, therefore, in the course of time, the territorial system of law (ante, Part I, § 67) replaced the personal, Germanic law was the type represented in the northern territories, and Roman law in the southern. The Roman law, earlier developed, had been and re- mained a written law, with little or no change or local variety. The Germanic law, however, being an unwritten law, lost its unity in the course of social changes, and was broken up into bodies of local custom. These so-called " Coutumes " prevailed for cen- turies in a large part of France. Neither the harmonizing influence of the jurists, using the Roman doctrines as a common law, nor the multiplicity of royal ordinances, valid in all regions, had ever suc- ceeded in producing unity for French law. And so, amidst the varieties of sources there ran this broad line, dividing the country into two general systems, the region of the " Coutumes " and the region of the Written Law (" pays du droit ecrit "). Not until Napoleon's time was this distinction effaced. He alone wielded the absolute power requisite for imposing unity upon these conflicting elements. Like Justinian who, in compiling his Digest, settled summarily, with sovereign decisiveness, all the dis- puted questions of the classic jurists, so Napoleon set himself, with vigorous directness, to bring order out of this chaos of French law. Much of the old he retained. The "Coutumes " furnished several institutions of Germanic type, — marital authority, marital com- munity-property, testamentary executors, and others. Roman law (which now lost its status as a common law) supplied numerous rules of property, easements, mortgage, obligations, and contracts. In the royal ordinances he found the regulations for transactions affecting civic status and other special matters. From the jurists he also drew much in the way of general principles, especially from Pothier; indeed, Pothier's great treatises were virtually one of the principal sources for the Code, and hence rose, even in Italy, to great authority, which had not disappeared even by our own times. Moreover, Napoleon was skilful in grafting upon this tradi- tional stock the new ideas, — those which had been proclaimed by the Revolution as fundamental, and especially the principle of equality for all before the law. Since equality is opposed to re- ligious privilege, the State became a temporal power only ; Church and State were separated ; and marriage was now for the first time 190 Chap. Ill] Italy in modern times [§ 88 put on the footing of a civil contract. Caste was abolished, as well as hereditary rights in public offices and other occupations. Special privilege was destroyed in all its forms, — whether of primo- geniture, or male relationship, or of judicial jurisdiction. Prop- erty was released from the chains of family and other hindrahces. Every man, within the limits of the law, could freely follow his own career, and enjoyed his rights, under the guarantee of the State.^ The Code Napoleon was published in France in 1804. Thence it was extended to all the Italian States in succession, as they came under the French domination. It went into force in Piedmont in 1804 ; in Parma and Liguria, in 1805 ; in 1806, in Lucca and the newly formed Kingdom of Italy ; in 1808, in Tuscany (which had become the Kingdom of Etruria) ; and in 1809 it arrived at Rome and the Kingdom of Naples. Imported product though it was, the people received it with acclamation ; for it fulfilled their long pent-up aspirations, and they saw in it a relief from the confusion and uncertainty which had hitherto reigned in their law. § 88. But Italy did not on this account lose either its desire or its capacity to construct a legislative system of its own. In crim- inal law especially (where indeed Italy had been the home of the reform ideas) this tendency was marked. In the new kingdom of Italy, a commission prepared a new code of crimes and criminal procedure, on the advanced lines of Beccaria's principles, and it was to have been promulgated in 1807 ; when suddenly the illusion of legislative independence was shattered, and a decree from Paris (Dec. 8, 1810) introduced the French criminal law into the king- dom. At Naples (which from 1808 to 1812 had its own criminal laws) the same measure followed. Similarly, codes of civil pro- cedure and of commercial law, merely translations of the French codes, were now enacted for Italy, — at Naples in 1809, in the Kingdom of Italy in 1808 and 1810, and in the Roman States in 1811. Thus the Napoleonic Empire had extended its law over all Italy. And its law met with a better and more lasting fortune than its sovereignty ; for when Napoleon was overthrown and the old dy- nasties were restored, his legislation survived, — as the law of Rome outlived the Roman empire. And as Roman law remained the 1 [For this subject of the materials used by Napoleon, and the legal changes made by the Code, see the detailed studies in the master work en- titled "Le Centenaire du Code Civil," by M. Saleilles and others (Paris, 1904), and the chapter from M. Planiol in part III of the present volume. — Tkansl.] 191 § 90] ITALY [Part II guide and inspiration of all succeeding legislators, so the Code of Napoleon, triumphant over political change and national jealousies, even where it had ceased itself to be law, remained a model for other codes, which indeed owed to it their very existence. It was the notable example and brilliant success of the Code Napoleon which brought about a universal demand for codification, — a demand which even the most reactionary governments were fain to satisfy. §89. The Italian Codification of the 1800 s.^ — The dynasties restored to thrones by the Congress of Vienna were powerless (how- e^-er strong their desire) to repudiate the reforms instituted during the French rule. Some of these, and especially the codifications,., had filled real needs, and were thoroughly popular, in spite of their foreign origin. In Italy the restored governments made the cause of codification one of their first cares. No longer, of course, was legislative unity feasible; for there were several petty States. But the same model served for all their codes ; and some at least of the general principles of the Revolution were embodied in them. Their enactment only increased the popular aspiration for a national law, and prepared the way for that real and durable political unity M^hich was now not far off. § 90. In Sicily and Naples (now known as the Kingdom of the Two Sicilies) a royal commission was set to work in 1815, and in 1819 was enacted its Code — divided into five books (civil, criminal, civil procedure, criminal procedure, and commercial), after the traditional fashion. This Code was modeled on the French Code. But the spirit of the restored reactionaries was visible enough in many details. The purely civic status of marriage was abandoned, and its chief rules were once more supplied by the Canon law. The old family-inheritance system was restored ; the only French innovations retained were the children's inalienable share (" legi- time ") and the surviving spouse's life estate. Copyhold tenure (emphyteusis) was restored, in spite of the feudal abuses which had led to its abolition. To the Church was given once more the power to own land in perpetuity. In criminal law the same features of partial reaction were met. Treason to king and Church took a large place once more in the list of crimes. The death penalty was more lavishly imposed, and was made to vary in degrees of cruelty. Yet, by way of reforms retained, the code recognized the abolition of attaints, the liberal theory of accessories, the oral delivery of 1 [The account of tte local legislation lias been abridged at some points. ■ — Transl.] 192 Chap. Ill] ITALY IN modern times [§ 91 testimony, and the publicity of trials. Thus, in spite of some backward steps, the Neapolitan Code on the whole was a progres- sive one, compared to the others in Italy and even in the rest of Europe. And the country might have benefited much from it, had it not been for obstructive conditions — the confused mass of other reactionary laws, the lack of competent persons to administer the Code, the people's reluctance to abandon fixed traditions, and, above all, the constant agitation of political changes. § 91. In the Papal States, Pius VII undertook a policy of moderate reform. But codes of civil procedure (1817) and of commerce (1821 ; a reenactment of the French code) were the only ones actually carried into effect. Under Leo XII and Gregory XVI, sympathizers of reaction, there followed codes of crimes (1832) and of criminal procedure (1831). But Pius VII's code of civil procedure, in its various revisions, was the only important pro- gressive legislation of the papal government, until the time of Pius IX, who did much to modernize the civil law. In the Grand Duchy of Tuscany, Ferdinand Ill's first task was to restore all the former laws, including the Roman and the Canon law and the Tuscan legislation. The only fruits of the Revolution retained by Ferdinand's code commission were the French code of commerce, the mortgage statute, and the law of evidence. None of the later rulers accomplished anything substantial, except a progressive criminal code in 1853. In the Duchy of Modena, also, the ancient laws were Immediately restored by Francis IV. Forty years later, the slow labors of the code commissions produced a civil code (1852), a civil procedure code (1852), and a fairly progressive criminal code (1855). In the Duchy of Parma, the French Civil Code was temporarily preserved, and the Austrian emperor Francis I (regent for his daughter Maria Louisa) appointed a code commission. The civil code thus produced in 1820 (after revision of the draft by three successive commissions) proved to be the best of all the codes so far framed in Italy. It was founded in part on Roman law ; but took also due account of the French code and of all the improve- ments which an enlightened view of existing local conditions could be expected to recommend. In the same year a code of civil pro- cedure was put in force, and in 1821 codes of criminal law and procedure. All Lombardy and Venice were under Austrian rule ; and in 1816 the Austrian Code of 1811 was here put into force. This code differed from the other Italian codes not only in substance {i.e. 193 § 92] ITALY [Part II in repudiating the French code as a basis), but also in those matters of form which were pecuHarly Germanic. It lacked the severe conciseness, inherited by the Latin nations from Roman tradi- tions. It followed German tradition in coupling to each rule a statement of its purpose and " motives," and added definitions and various auxiliary regulations. On the whole, it represented moderate reform, — equality before the law, guarantees of per- sonal liberty, the rights of illegitimate children, religious equality, and the rights of resident aliens. The Austrian criminal code of 1804, however, which was put into effect in Lombardy-Venice in 1815, was reactionary, and adhered to the practice of secret trials and harsh penalties. Unlike the civil code, it never found popular support ; and by 1852 it was displaced by a new one, which aban- doned the illiberal features of criminal procedure. The French Code of Commerce had been retained from the beginning, with some modifications of Germanic origin. In the Kingdom of Sardinia (including Genoa and Piedmont) the reaction under Victor Emanuel I was at first a radical one. The entire body of the old law was restored.^ But later, under Charles Albert, a comprehensive system of four codes was planned, on liberal principles; and, after six years of labor by the com- missions, a civil code was promulgated in 1837; then a criminal code in 1839, a commercial code in 1842, and codes of criminal and civil procedure in 1848 and 1854. All of these were modeled more or less after the French codes. § 92. Thus, as the time arrived for the complete political unity of the Italian people, the various States had already succeeded in reducing their local law to something like system. In law, as in government, separatism was bound to disappear in Italy ; and the country now girded itself up for this task, as soon as its political reconstruction (beginning with 1861) had been achieved. The first steps were of course provisional only. In some provinces the old civil law was left for a while untouched, — notably in Tuscany, in Lombardy, and in Naples and Sicily. In others — Emilia, Romagna, and the ^Marches (including Parma, ]\Iodena, etc.) — the government immediately introduced Charles Albert's Sardinian civil code and the commercial code of 1842. The criminal law, too, could hardly be made entirely uniform at the outset ; and so the Sardinian code was introduced in Upper Italy and the Roman 1 Except in Liguria (Genoa), which had, until now, been independent of the Savoyan dynasty, and therefore was left in possession of the French Code ; and except in Liguria, for the opposite reason, i.e. that here the ancient government had persisted and the laws had never been changed. 194 Chap. Ill] ITALY IN MODEBN TIMES [§ 93 States, but only partly in the southern provinces, and not at all in Tuscany. But the preparations for ultimate unity were undertaken with- out delay. The commissions began their labors in 1860, and by 1865 the greater part of their enterprise was completed. In that year were promulgated, for all Italy, a Civil Code, a Code of Civil Procedure, a Code of Criminal Procedure, and a Code of Commerce (replaced in 1882 by a new one). In criminal law alone, unity was not finally reached until the Code of 1890. Topic 3. Recent Times § 93. Codification and the Historical School. — If the codifica- tion movement, now become universal on the Continent, signalized the defeat of the Historical School, which had had its origin in the opposition to that movement, still the doctrines of that School had in one respect triumphed ; for it left the indelible impress of its ideas on legal science. The doctrine that law was subject, like all human life, to the process of evolution, was no new discovery, to be sure, of the Historical School. It had often been anticipated by earlier jurists, — by Vico, for example, who embodied it in his system. But the legal philosophy of the 1700 s had quite re- pudiated it. And the merit of the Historical School lay not merely in recalling it to life, but in verifying it in the realm of positive fact and in applying it to practical results. In the phenomenon of history two ideas stand out prominently. One is that of the continual transformations of law, modified by conditions of time and place; the other is the unbroken growth of law, each form growing directly out of the prior one, and at the same time pre- paring for the next to come. These principles gave a powerful impulse — which has continued even till our own day — to the scientific study of legal history. The methods of comparative law were enriched and inspired; and these led in their turn to the sociologic methods, which studied the law amidst the facts of sur- rounding life and established ultimately the modern conception that law is merely a branch or aspect of general social science. To these results the Historical School contributed, not only by its principle of the evolution of law, but also by its doctrine of the social conscience or consciousness as a generating force of law (ante, § 82). That this social conscience is something real, not imaginary, may be seen in the fact that law can never depend entirely on the physical power of the lawgiver who formulates it. 195 § 94] ITALY [Part II Force is necessary, to coerce those who might resist ; but if law is to be really law, the rebelliously inclined must be only a minority ; and the majority, including the strongest and the wisest, must be willing to support the law for some other reason than mere fear of penalties. This much at any rate is true, that some parts of the law would be completely denatured if their sole sanction was a punishment. Since, therefore, force is needed only exceptionally, and the community for the most part observes the law from its own choice, the law's main support must consist in some other element, i.e. the consent of the majority, and this consent is a manifestation of the so-called popular conscience (or, public opinion). § 94. Precisely where this is to be found, the Historical School did not tell us. But it offered a criterion for ascertaining it, — namely, that it was not to be sought in abstract speculations, but in the facts of social life in different periods and communities. This criterion is confirmed by historical science. In the first place, this public opinion or conscience is dominated by a sentiment observable from time to time in religion. The primitive Germans obeyed their customs as an inherited duty ; in the rule of law they heard the voice of the ancestor, now in the lapse of time become a divine command ; and thus the worship of the dead and the bonds of family relationship supplied the sanction for the law. The medieval peoples conceived of law as a reflection (in some sense) of the law of God ; in obeying human authority, they obeyed God; and when afterwards rulers had attained ab- solute power, the power is regarded as delegated to them by the hand of God, and therefore as requiring the subjects' submission. In all these instances, the legal conscience of the people is merged in their religious conscience ; and to disobey the law is to commit sin. At another period of history, of which the 1700 s are typical, the religious principle gives place to a philosophical notion, instilled into the masses by numerous able thinkers ; the legislator is con- ceived of as the agent of the people, carrying out the mandate vested in him. The people should obey his law, because they have authorized him to make it, and because otherwise they would fail in the very end for which they have joined together, and human society could not exist. The social conscience here rests on a sup- posed voluntary contract, which implies a consent to the law. If this social contract was merely a utopianism of philosophy, still there was reality enough in its products, — the dogma of popular sovereignty and the principle that the State could not abolish the rights of man. , 196 Chap. Ill] ITALY IN MODERN TIMES [§ 95 That principle of delegated authority is now, in its turn, being abandoned. As times change, the popular conscience, too, alters its standpoint. The content of the law, and not its origin, now supplies the standard. Respect for law is rested on the degree in which that law is felt to be adapted to satisfy the community's needs and interests, public and private. The dictum of the His- torical School was that social conditions caused those changes which form the life and growth of the law. This necessity for the law to satisfy the changing needs of social welfare serves to induce and inspire men to submit to the law; and in the perception of the welfare thus achievable is formed and strengthened the popular conscience. § 95. Other Schools of Thought. — The Historical School did not progress beyond these general principles. Their detailed de- velopment has fallen to the task of modern times, proceeding with the methods of objective research. Under these methods, two aspects of law have come to be emphasized and contrasted. The one regards man as an individual ; the other, as a member of society. There is no necessary conflict; for society is made by men, and each man finds in social life the means of improving his own. Never- theless, the two sets of facts may be considered separately. Hence, according to the relative importance of one or the other, we are led to different conceptions of the nature of law and its adaptation to man's nature. Out of this difference arise the two schools of thought which divide the field in modern times, — the Positivist (or Biological) and the Economic. The Positivist School (taking a biologic standpoint) looks upon man as subject (because a living being) to the common principle governing all life ; this principle containing three forces or elements, ■ — evolution, adaptation to the environment, and the survival of those who are fittest to evolve or adapt themselves. The same principle governs social phenomena also, including the law. Hence the law will be right and just, and will have the support of the popular conscience or opinion, just in the degree that it shows itself capable, by evolution and adaptation, of supplying the needs and vital forces both of the individual and of society. It would be easy to criticise a doctrine propounded so uncon- ditionally. The laws of biology are not adequate, merely because they are common to all living beings, to explain and control all social facts whatsoever; for those facts themselves are not com- mon to all living beings, but are peculiar to man. There must therefore be some special principle (not necessarily in conflict with 197 § 95] ITALY [Part II general biological ones) which explains the special characteristics manifested by man in social life. From this point of view, the Economic School looks upon the fact of economic activity as the exclusive attribute of man. This consists in the appropriation which he makes, by his labor, of the forces and products of nature, towards serving his various needs. The first command which man traditionally received was to work in order to live. Without labor there is no production; without production there is no means of human progress ; and without hu- man progress, there is no society, or none that is worth while. Hence, the principle which controls economic facts is adapted to govern social life; social facts are its manifestations or conse- quences; and since law is one of those facts, law also must be regarded as a product of that social substratum which consists in economic interests and needs. These it is which have been the cause and therefore the true explanation of those historical changes which include changes of law. In its adaptation to those interests and needs, law finds its justification, — harmonizing them with popular opinion and securing its obedience ; for the popular con- science is nothing else but the sense general of approval for that which has been founded to be useful towards attaining man's ends in society. These doctrines, also, in their extreme form, offer an easy target for criticism. In the first place, if history shows us continually rules of law evolving from economic causes, still, it affords also plenty of instances where this has not been the case. Slavery, for example, in early society, was a legal institution plainly growing out of economic interests and upheld by them; yet the popular conscience by no means acquiesced entirely in it, and that protest itself ultimately became law, in the name of human nature and its equal rights for all. Furthermore, economic interests (regarded as the sole generative force for law) tend to resolve themselves into the notion of utility as a standard; now utility is a purely relative term (differing for different persons), and social utility signifies little more than the welfare of the dominant class for the time being. The struggle between classes, and the success of the class having most numbers or wealth or other power, is after all a mere manifestation of force ; this force hardly represents the general popular conscience, but at most that of the class that profited by it. This is amply illustrated in the law of feudal times, in the medi- eval city laws at some periods, and in the laws of the absolute monarchies. 198 Chap. Ill] ITALY IN MODERN TIMES [§ 96 These two objections (chosen from several) show that the Eco- nomic School is no better able than the Biologic School to explain the law as emanating from the conscience or nature of man. The theory has still to be revised and improved upon. § 96. Conclusion. — But, for us, the history of these doctrines here ends ; for they are still struggling for supremacy in the field of social science. It remains to note only that the effect of these new ideas is bound to be felt in positive legislation ; for the codes are merely the latest, not the last, form of law. In these days of rapid change and progress, the truth of the Historical School's assertion, that fitxed codes cannot keep up with social progress, is plain to be seen. A mass of special legislation supplements and encircles the codes; and the jurists, whose labors inevitably pre- cede in the process of adapting the law to social" needs, are now preparing for an entire recasting of the codified law. History (as we may profitably remind ourselves) shows that no real opposition exists between law and public opinion. The two are always in a process of adjustment, through the combined action of legisla- tive authority and the community's requirements, — the former giving shape and the latter giving support. It may be affirmed that, after all, law and public opinion are merely two aspects of the same general fact ; the successive shapes and attitudes of public opinion are reflected in legal ideas ; and the latter serve as indices of the changes of the former. History shows us this in times past ; and predicts it for time to come. Law is the companion of man's progress, not merely in that it follows the changes in his material conditions, but also in that it follows and marks the de- velopment of his thought and of his continual aspiration towards the true and the good. 199 Part III FRANCE First Period (A.D. 1000-1500) : The Roman Law and the Regional Customs Second Period (A.D. 1500-1789) : National Jurists and Royal Legislation Third Period (since A.D. 1789) : The Revolution and the Codes Chap. I] THE ROMAN LAW AND THE REGIONAL CUSTOMS [§ 1 Chapter I. First Period: a.d. 1100-1500 THE ROMAN LAW AND THE REGIONAL CUSTOMS i Topic 1. The Territoriality of Law i 1. Origin of the Principle. I 2. Division of France into Coun- try of Written Law and Country of Customs. § 3. Some of the Differences be- tween the Written Law and the Customary Law. Topic 2. The Roman Law § 4. Authority of the Roman Law in the Regions of Written Law. § 5. The Roman Law in the Re- gions of Customs during the 1200 s and 1300 s. § 6. Same ; In and After the 1500 s. § 7. Teaching of Roman Law at the Universities. § 8. Propagation of the Roman Law in other Countries. Topic 3. The Customs § 9. TerritoriaUty of Customs. § 10. General Features of Law under the Customs. §11. Municipal Charters of Privi- leges. § 12. Books of Customs, and Trea- tises on the Law. Topic 4. Other Sources of Law § 13. Judicial Decisions. § 14. Deeds, Cartularies, Form- Books, and Land- Registers. § 15. Commercial and Maritime Law. § 16. Public Law,, and the Legal Philosophies. §§17-19. Royal Legislation before the 1500s. Topic 1. The Territoriality of Law * § 1. Origin of the Principle. — With feudalism, the new prin- ciple of the territoriality of law makes its appearance. In each lord's domain, within the jurisdiction of each justice, the local Custom, and only the local Custom is applied. Everybody, with- out distinction of race, whether domiciled therein or not, permanent 1 §§ 1-16 = Brissaud, section I, chaps. II-XIV, pp. 150-345, extracted and condensed. For the citation of this work, and an account of the author, see the Editorial Preface. This chapter takes up the story for France where part I of this volume breaks off. — Transl.] 203 § 2] FRANCE [Part III resident or transient, is absolutely subject to it. It was about the _9QQs that this system came to supplant that of the personality law. The first traces of it are to be found in the Edict of Pistoia, 867; in the 1000 s it seems to be recognized in the " Petrus " (" Exceptiones ") . It can therefore be dated from about the time of the accession of the third French dynasty. It_coincides with the establishment of the feudal system. Nor is this a pure acci- dent ; for the feudal system is a parcelling of the sovereignty and the territoriality of the law, i.e. a parcelling of the law. Seigniorial jurisdiction is dependent upon the local ruler; both judges and parties know nothing of any law save the local law. The feudal form of government thus led, through a natural inclination, to legislative particularism. But other causes had already brought about a tendency of this same nature. The " consuetudo loci " rounded out the laws of the barbarian period. In the criminal law there was a tendency to- wards territoriality, even during the period when the laws were personal. Distinctions of race were being blotted out; one no longer knew whether he was of Prankish or of Roman origin ; there were no longer any Salians, Ripuarians, Burgundians, or Visigoths ; instead there were Bretons and Pfoven9als, Poitevins and Gascons, — pending the arrival of that final epoch when there should be none but Frenchmen. The territoriality of the laws led to : 1st, The division of France into two parts, countries (or regions) of Written Law, and countries (or regions) of Customs, a division which lasted uiitil the publi- cation of the Civil Code ; 2d, the feudal rule that " all customs are real." § 2. Division of France into Country of Written Law and Country of Customs. — In the South the Roman population greatly outnumbered the Germanic population ; therefore the Roman law, which ^was the law of the majority, was applied to everybody, as the Custom of the region. In the North, on the other hand, the mixed remnants of Germanic and Roman law, the Capitularies which had not yet fallen into disuse, the Canon law, and the local usages, went to make up the. Customary law. These Customs varied as to details, but had a certain amount of unity in principles and along general lines. The Line of Demarcation between the regions of Written Law and the regions of Customs coincides approximately with that which to-day still separates the language of Oc (Southern France) from the language of Oil (Northern France). It is far from being 204 Chap. I] the ROMAN LAW AND THE REGIONAL CUSTOMS [§ 3 marked exactly by the course of the Loire, as sometimes said. In reahty, the regions of Customs extend to the basin of the Ga- ronne, and include two-thirds of France. They unite Angoumois, Marche, Auvergne, Bourbonnais, Burgundy, and Franche-Comte ; to the regions of Written Law belong Saintonge, P6rigord, Limou- sin, lower Auvergne, Gevaudan, Velay, Forez, Lyons, Bresse, and the region of Gex. Thus the actual boundary between the systems is an irregular line running from the island of Ol^ron to the lake of Geneva, more often above than below the central mountain mass. Moreover, parts of Auvergne were under Written Law, and the northern part of Saintonge and Saint-Jean-d'Ang^ly were under Customs. In another way the distinction is less absolute than one would think. There are a great number of local Customs in the regions of Written Law, and the Roman law is not stripped of all authority in the regions of Customs. § 3. Some of the Difierences between the Written Law and the Customs. — In regions of Customs, the ■paternal -power is not found in its strict sense (that is, that it lasts only until the children attain their majority) ; in the South, the father's authority ceases only at his death (or when they are emancipated). — The power of the husband over his wife is very strongly developed in the North, where the spouses are the joint owners of their possessions ; but it is on the other hand very much weakened intheSouth,where the mar- riage-portion system, with separate maintenance and inalienability of the wife's land, allows the wife a great deal of independence. — Custody and Lease in the North take the place of the Roman guardianship (" tutor ") ; and wherever the latter is found, the rule applies that : " All guardianships are dative " {i.e. arise by grant, not by right of relationship). In the South there was, furthermore, a guardianship by will and a guardianship by right of law. — On the subject of successions, the principle of the Cus- toms, "the dead seises .the living," under which the heir- was in- vested, by operation of law, from the mere fact of the death , with the ownership and even with the possession of the inherited prop- erty, is contrary to the Roman law. — The reserve of four-fifths, or Customary reserve, which affected the personal belongings (that is, the immovables which the deceased had acquired by inheritance from his relatives), differs on principle from the Roman legal share. The latter is based on the affection which relatives owe one another, the " ofEcium pietatis " which forbids them to enrich strangers while leaving the kindred in poverty ; the former is due 205 § 4] FHANCE [Part III to the old ideas of the joint-ownership of immovables or inheri- tances by the family ; every relative, even collaterals, has a right to it. In the North, there is no appointment of an heir; " solus Deus heredem facere potest, non homo " (Loysel, " Inst, cout." 2, 4, 5) ; this is another application of the idea of family joint ownership. There is no heir in the absolute sense of the word, that is, one who carries on the personality of the deceased, having the same rights and obligations as the latter, and bound to pay the latter's debts out of his own possessions. By will one can only make legatees, successors to one's possessions ; they take the pos- sessions which one leaves, but only pay one's debts up to the amount of their emolument. The Roman law, on the other hand, places the testamentary heir upon the same footing as the heir at law. Topic 2. The Roman Law § 4. Authority of the Roman Law in the Regions of Written Law. — In regions of Written Law, there is no village, however small, which does not possess Municipal Statutes. But these differ from the great Customs of the North in that they are not in derogation of the Roman law, except to a slight extent and upon special points; they are generally administrative and police reg- ulations. The Roman law is none the less the Custom of the South. I say " Custom," and I do so intentionally, for it is under this designation that the Roman law is applied. It derives its authority, not from some forgotten promulgation of the Roman or Germanic period, but from its character as a local usage, a secular custom. It is on this footing that it is recognized by the rulers of the regions over which their sovereignty extends. So true is this that Justinian's compilations are easily sub- stituted for the Breviary of Alaric and the Papian ; the Theodosian law is abandoned after the 1100 s. So true is this that, like usage and custom (though less than they), it varies from province to province and century to century. The legal decisions of the four great Parliaments of the South, those of Toulouse, Aix, Grenoble, and Bordeaux, are far from being uniform. At Toulouse they accept the " lex Assiduis," by which Justinian gives the wife a lien prior to that of creditors of her husband, even though the rights of these creditors existed previous to the date of marriage ; the other Parliaments reject it. The local statutes in their turn modify the Roman law ; there is none, until the great Ordinances, which does not contain its 206 Chap. I] THE ROMAN LAW AND THE REGIONAL CUSTOMS [§ 6 element of diversity. The Edict of 1606, not to cite many others, abolishes the Velleianum Decree of the Senate (that women could not bind themselves on behalf of another person) ; a Declaration of 1664 to the same effect was published ; these laws were only applied in the provinces of Written Law within the jurisdiction of the Parliament of Paris, such as Lyons and Beaujolais. § 5. The Roman Law in the Regions of Customs During the 1200s and 1300s. — The Roman law (which was the common law of all Christian peoples) always had a very great authority from the juristic or theoretical point of view, even in regions of Customs. At an early period the texts of the Digest were translated into French {e.g. by P. de Fontaines and the author of the " Livre de Jostice "), as also the writings of the jurists of Bologna (for example the " Summa " of Azo). Legal authors as well as courts employ the Roman law in the interpretation and the application of the Customs ; it is (in the phrase of Klimrath) a sort of universal logic applied to the law ; it furnishes fruitful analogies, supplementary rules, and interpretative principles. With the Canon law it forms the only law taught in the Universities ; and it is from these Uni- versities that the lawyers come. Apart from the Decretal " Super specula " and the Ordinance of 1312 {infra, § 7) the question of the authority of the Written Law in the regions of Customs is scarcely raised before the l500s. No one asks whether or not in general it has the force of law; the place accorded it is more or less ex- tensive, according to individual tendencies, but it is always a more or less important one. § 6. The Roman Law in the Regions of Customs in and after the 1600 s. — During the 1500 s, the Roman law is so brilliantly taught, it has become so firmly established in the courts and in practice, it is cited so lavishly by every author, that one begins to ask whether it is not the common law even of the regions of Customs. Is it applied as the law in cases not provided for by the Customs? Are the Customs exceptional rules, which the person using them should take care to restrict, while allotting an ever increasing place to the " common law " ? At the time of the compilation of the Customs {post, § 23) was it necessary to conform local usage as far as possible in the direction of the Roman system ? Or, on the other hand, ought one to draw upon the com- mon elements of the Customs, in order to fill in the gaps in each one when applying them, or reducing them to writing ? Had the Roman law no other authority than that which was derived from its merits, its own intrinsic value, or its status as written reason ? 207 § 6] FRANCE [Pabt III The question was an important one ; for, if one made the Roman law the common law in the regions of Customs, as it was already for the regions of Written Law, the radical difference which separated the South from the North was effaced, or at least be- came greatly lessened. This problem was disputed until the very end, without coming to any accord. There were two tendencies, neither one of which triumphed en- tirely. As a matter of fact, the Roman law was used extensively. It was referred to at every turn, even when irrelevant. From its principles, combined with the Customary law, came a mixture, — our civil law of to-day. But it is an exaggeration to say that it was the "common law " of France. In regions of Customs it was not applied as law ; it only had a juristic or theoretical authority, — a very great authority, it is true. But, in the compilation of the Customs, equal account was taken of the general principles of the Customary law, and, in their application, the Customs of Paris, rather than the Roman law, as the source whence enlightenment is sought. " The Roman Civil Law," says Guy Coquille, " is not our common law, and has not the force of law in France, but should merely be regarded as Reason. The laws made by the Romans we should call upon to help us when the constitutions and the Ordinances of our Kings or the unwritten general law of France or our Customs fail us. 'To help us,' I say, for convenience and for its Reason, and not because of necessity. In this respect two great personages of our time, who have been successively First President of the Parliament of Paris, Maitre Pierre Lizet and Maitre Chris- tophe de Thou, were of different opinions. The aforesaid Lizet held that the Roman law was our common law and as far as possible conformed our French law to it, and was reputed to be narrow in his interpretation of the law and to restrain that which is contrary to the Roman law. And the aforesaid de Thou was of the opinion that the Customs and the law of France were our common law, and called the Roman law only written reason." ^ In the 1700 s, President Bouhier said the same thing. Breton- nier, in his preface to the works of Henrys, 1708, champions the theory of Lizet, while making certain distinctions. In Burgundy and in Franche-Comte, in Flanders, and in the Netherlands, at ]Metz, Toul, Cerdun, and Thionville, the Roman law, he says, is recognized as the common law by the official texts. There are ' The general French law which Guy Coquille speaks of is similar to the English ."common law" and the "gemeine deutsche Gewohnheits- recht.'! 208 Chap. I] THE ROMAN LAW AND THE EEGIONAL CUSTOMS [§ 7 even Customs within the jurisdiction of the Parliament of Paris to which this rule can equally well be applied : Auvergne, Marche, Bourbonnais, Berry, and Nivernais. No difficulty really exists except for the others. And some of them, in certain of their articles, refer to the civil law (Orleans, Tours, Anjou, Reims, Vermandois, etc.). The conflict thus reduces itself to a rivalry for influence between the Custom of Paris and the Roman law, in cases where these other Customs are silent. In certain very important topics, such as the theory of obligations, the Roman law prevailed without dispute. § 7. Teaching of Roman Law at the Universities.'^ — The Uni- versities of the Middle Ages had an importance entirely different from that of the Universities of our day. The latter have rivals : (a) the other establishments for teaching, from the public schools (" Lycee ") to the great special schools, such as our School of Political Science ; (6) above all, books in general, and the scientific press, which place the works of learned men within the reach of everybody. During the Middle Ages there was neither higher education nor science, outside of the Universities. This twofold monopoly made them veritable powers with which the State and the Church had to reckon ; the University of Paris, " the eldest daughter of the Kings of France," played an important part in politics. (1) Ediccation was either Public or Private. The latter sort was rare except in the colleges; for the Universities, having the monopoly of teaching, were opposed to the giving of free lectures independently of themselves. The University itself arranged its curriculum. The academic course consisted of lectures C'ledurce"), " repetitiones," and " disputationes." A distinction was made between Ordinary lectures, given during the morning, by the re- gent doctors, and the Extraordinary lessons of the afternoon, mostly 'References: SaOT^rej/, "Droit romain au moyen &ge," III; Denifle, "Die Universitaten des Mittelalters bis 1400," 1885 (vol. I, the preface contains a bibliography of the subject) ; G. Kaufmann, "Die Geschichte der deutsohen Universitaten," I (1888), and II (1896) ; M. Fournier, "Hist, de la science du droit en France," III, 1892; id., "Les statuts et privilSges des Universites fran^aises depuis leur fondation jusqu'en 1789," 1890-1892 ; various works by the same author enumerated in the "Hist, de la science du droit"; Denifle, "Les Universites frangaises au moyen age," 1892; Denifle and Chdtelain, " Chartularium Universitatis Parisien- sis," vols. I to IV, 1889-1897; Tardif, op. cit., p. 280 et seq.; G. Peries, "La Faculte de droit dans I'aneienne Universite de Paris," 1890; L. v. Savigny, "Die franzosischen Rechtsfakultaten," 1891 ; Luchaire, "Manuel des Institutions fran^aises" (direct Capetians), 1892, p. 126 ; Hinschius, "Kirchenrecht," IV, 640, 1888. iJosMaZZ, " The Universities of Europe in the Middle Ages," 1895. 209 § 7] FRANCE [Part III given by mere doctors or bachelors. The morning lectures in law were called " ordinary " because they took up the ordinary books, i.e. " Digestum Vetus," Codex, Decretum, and Decretales. The " Repetitiones " consisted of detailed explanations of a text already dealt with in a lecture ; they were the complement of the latter. Each professor, at least if he read " ordinariae," had to observe the " puncta taxata," i.e. points required to be taken up, pur- suant to an annual regulation made by the rector, who was assisted by a commission ; the course must continue for a certain period of time, generally a fortnight. A ringing of bells announced the beginning and the end of the lectures ; the professor had to stop at once under penalty of a fine. The " Disputationes," or public discussions of a text selected beforehand, were given by a student (in Paris, only at the time of taking the doctor's degree), and con- sisted in maintaining some " thesis " against those present who might wish to attack his propositions. The Statutes of Padua required two masters who were called " concurrentes " to come each day to dispute for one hour before the Faculty. The Vacation originally lasted only a month; later there were added leaves of absence, supplementary holidays, days following holidays or " crastines " (" dies legibiles " and " dies non legi- biles ") ; the cessation of university work, caused by these holidays, was an abuse which later called for reforms. (2) Conferring of Degrees. — University degrees were conferred in Paris by the Chancellor (at Bologna, by the doctors, under the control of the Archdeacon). The three University degrees were, as in our own day, the bachelor's, the licentiate's, and the doctor's. But originally there were (properly speaking) no degrees; the doctor's degree, or right to teach, gave rise to the two other degrees (while in turn distinguished from the office of professor). The licentiate's degree was at first only an incomplete doctor's degree ; the bachelor's degree was only the right to pursue the studies necessary for the doctor's degree. 1st. The Bachelor's Degree was conferred by the Chancellor upon the simple presentation of the candidate by a doctor, without any examination, provided that he could show that he had completed the required number of years of residence in study (sometimes as high as seven), that he possessed the books ordinarily required, and that he took an oath. 2d. The Licentiate's Degree {" licentia docendi," license to teach) also assumed a presentation, a residence, and an oath ; but besides this it was necessary that the candidate should have pursued his studies as a bachelor (by the end of the 210 Chap. I] THE ROMAN LAW AND THE REGIONAL CUSTOMS [§ 7 1300 s these no longer were required), and that he should have passed two tests, one " privatim " before the doctors (" examen "), the other public before the Chancellor (" conventus "). This last test was usually reserved for the doctor's degree, to which the licentiate's degree gave one a right (" licentia doctoratus "), and which was now reduced to a ceremony of investiture, especially sought for by those who intended to devote themselves to teaching. 3d. The candidate for the Doctor's Degree made a recitation and upheld an argument before the doctors, assembled together under the presidency of the Bishop. His patron presented him with the insignia of the doctor's degree : cap, book, and ring, installed him in his chair, and the new doctor gave a short lecture in the presence of those who had conferred his title. At first, all the doctors taught, the words " doctor " and " master" being synonymous. But towards the middle of the 1100 s the doctor's degree became a degree merely. There are doctors who teach, and these are termed (at least from the beginning of the 1300 s) Regent Doctors, " actu regentes." There are others who do not teach, but merely have the title, with the right to vote at promotions, and (after passing more tests) the right to become a member of the body of teachers. The name of " master " was given only to those who taught the liberal arts; the teachers of Roman law (" legists," called " legum doctores " from the earliest times, or "domini"), the canonists (at least after 1213), and the professors of medicine (in course of time), reserved for themselves the title of " doctors." (3) The Teaching of Roman Law at the Universities went on everywhere and in all periods, from their very beginning. The only break of continuity was that which occurred at Paris in the 1200 s. The papal Decretal of Honorius III, " Super Specula " (lib. X, 3, 50, 10, and 5, 33, 28), in 1219, which forbade monks and priests (not ordinary clerics) to study law and medicine, also for- bade expressly the teaching of Roman law at Paris. Philip the Handsome, a century later, in 1312, confirmed the Decretal of Honorius in a royal ordinance. It is easy to see how much interest the Church had in preventing a competition which might weaken the following of theology and Canon law in Paris. Paris was in the Middle Ages the centre of Europe's theological studies, as Bologna was of legal studies. Moreover, the Isle of France (of which Paris was the capital) was a district of Custom, and there was little ^eal need for Roman law learning ; Philip, indeed, in the above-named ordinance, speaks of " our kingdom " as " gov- 211 § 7] FRANCE [Part III erned chiefly by custom and usage, and not by the written law." But it is not so easy to perceive, at first sight, why the Idng of France should have sanctioned the prohibition of Roman law instruction at Paris. The explanation doubtless lies in a jealous fear of the political influence of that rising system. The doctors at Bologna were teaching their pupils that the king of France was a subject of the Holy Roman Emperor, a German. Philip Augus- tus could hardly be well affected towards the teachers of such a system. His own interest thus coincided with the canonists' fear of competition ; and the prohibition became natural enough.^ In the other Universities, the Church, far from disapproving of the teaching of the Roman law, was the first to encourage it. It could not forget the fact that the Roman law had played a very important part in the formation of the Canon law ; the time was not so long ago when it was said that the Church lived by the Roman law. The writers on the Civil law, it is true, seem to us to-day, at this distance, rather adversaries than friends of the Church. Their enthusiasm for a profane learning, their desire to resuscitate the Roman Empire for the benefit of the German Caesars, their religion of State, would naturally make them sus- picious characters to the Church. But it was not in their ranks alone that defenders of the imperial Ghibelline theories were found ; the theologians themselves placed their sacred learning at the dis- posal of the Emperors; conversely, many legists, who might be canonists at the same time that they were Romanists, upheld the ultramontane doctrines of the papacy. From the 1200 s, then, the Roman law could not be taught in Paris except " privatim " ; it was excluded from the official in- struction. In the 1500 s, the Ordinance of Blois (1579, Art. 69) renewed the prohibition ; three years before, it had been necessary for the greatest Romanist of the 1500 s, Cujas, to receive an express authorization from the Parliament in order that he might teach it in Paris. After another century, the Edict of April, 1679, repeal- ing this article of the Ordinance of Blois, brought once more the Roman law into the curriculum officially prescribed in Paris. At the same time the Edict instituted the teaching of French 1 Digard, "La papaute et I'etude du droit romain " (Bibl. Ch., vol. 50, 1890, p. 381), has shown that the false bull (Potthast No. 15570) was an English fabrication. In it Innocent IV purported to exclude from church benefices all professors of the civil (Roman) law, and to forbid the teaching of Roman law, except by special license, in Prance, in England, and the regions of Custom. In fact, England was the only country in which the Roman law encountered systematic hostility. [See Pollock and Mailland, "Hist, of English Law," 1, 103, where this question is examined. — Transl.] 212 Chap. I] THE ROMAN LAW AND THE REGIONAL CUSTOMS [§ 9 Law. Before then, the student, after finishing his course in Ronaan law, became familiar with practice in the best way he could ; for example, by going to work in the office of an attorney. This change led to another. Latin had up to that time been the lan- guage of the schools. But now the first professor of French law in Paris, de Launay, gave his lectures in the French language. From the 1600 s until the Revolution, the Universities were in France State institutions, national establishments. This was for them a period of decadence, which closed with the Decree of Sept. 15, 1793, pronouncing the suppression of all the French Faculties and schools of lectures. § 8. Propagation of the Roman Law in other Countries. — - Europe, like France, has its countries of Customs and countries of Written Law. Italy and Spain, like the south of France, are governed by the Roman law; England and the Scandinavian countries have mainly Customs, and in them the authority of the Roman law is very small. In Germany, up to the 1300 s, the Roman influence was not much felt; from that time on it pre- ponderated ; then, by another reaction, the Roman law began to lose ground. Among the people of the North, therefore, — the Germanic races, — the Roman law had more difficulty in making its way. The Latin races, on the other hand, received everything from Rome, — religion, language, and laws. In Italy the Greek conquest led to the compilations of Justinian. In Portugal the Codes of Em- manuel and of Philip II are half Roman. The same is true of Spain with regard to the " Fuero Juzgo " and the " Siete Parti- das " ; the many local " fueros " (like the statutes of the Italian towns) did not prevent the basis of the law as a whole from being Roman. It was from Constantinople and from the Greeks that the Slavs of the South, even the Russians themselves (though not to a great extent), derived a portion of their old law. But in Dalmatia and in Croatia the influence of the Italian cities is once more to be found; the LIniversities of Warsaw and of Prague carried Justinian's law into Poland, Bohemia, and Moravia, and made of it that general law which is subsidiary to the local law. Topic 3. The Customs § 9. Territoriality of Customs. — (1) " All Customs are Real," said Loysel in the 1500 s. At the time when Loysel wrote, this meant that each Custom applied within its territorial limits to all 213 § 9] FRANCE [Pabt III lands without distinction, whether or not the owner were domiciled within its Hmits. But, during the early part of the feudal period, the maxim had a wider meaning. It meant that within a given territory there could be but one Custom; not only property, of whatever nature, whether movables or immovables, but persons themselves, whether domiciled therein or not, were subject to it. And, conversely, the Custom never applied outside of its own territorial limits (" Unaquseque . consuetude suo loco clauditur "). The result was that, in passing from one territory to another, a legitimate son might become illegitimate; a person who had reached majority might become a minor; and a married woman might escape from the power of her husband. " Intrasti urbem, ambula juxta ritum ejus." That the chances of a journey should decide the status and the capacity of a person was a fact calculated to be detrimental to some persons, by imposing upon them a law not made for them, and to be serviceable to others, who might seek to escape from rules which interfered with them. But such in- equities were hardly felt ; for a removal from place to place was a rare thing and a difficult one during this period. This rule as to the " reality " of customs had the advantage of cutting short all uncertainties ; for the judge had but one law to apply, the only one which he knew anything about (ordinarily), that is, the local usage. The rule was a natural result both of the customary nature of law and of the feudal grouping together of persons, (a) The Custom, being formed by the indefinite repeti- tion of the same practice, affected all the inhabitants of a particular locality, and affected only them ; just as a local dialect is only com- prehensible where it has grown up. (6) According to pure feudal principles, the lord, who was at once sovereign and owner, would have looked upon the application, within his domain, of a usage obtaining outside of his domain as an attempt to infringe upon his rights. Each barony is a little State; the lord is the sovereign therein ; outside of it he has absolutely no power. The Customs, which were an expression of this local sovereignty, could not be valid outside of the territory which had given them birth. (2) Italian Doctrine. — This principle of the territoriality of laws has in England been preserved until our own time, together with many other rules of feudal origin. On the Continent, it was bound to be abandoned at an early period. It is already disparaged in an early gloss, of unknown authorship, but reported by Accursius and dating from at least the 1200 s (because Accursius lived at that time), — the gloss upon the law " Cunctos populos," under the 214 Chap. I] THE ROMAN LAW AND THE REGIONAL CUSTOMS [§ 9 title of " Summa Trinitate " in the Code of Justinian : " Quod si Bononiensis conveniatur Mutinse, non debet judicari secundum statuta Mutinse, quibus non subest." Theory of Bartolus. — Conflicts between the statutes of the various ItaHan towns early brought about the formation of an intermunicipal law. The theory of it was developed by Bartolus and his disciples during the 1300 s and 1400 s. These are the broad principles of this theory as well as they can be detected amid much obscurity and controversy: (a) In real matters (that is, immovables), the law of the place where the immovable is situated is always applied, whatever may be the domicile of the parties litigant {Real Statute). The rule of the reality of the Customs reduces itself to this. (6) In personal matters (that is, in whatever concerns the status and capacity of persons), in each person's case the law of his town, his fatherland, or his domicile is followed, if the same city has several laws valid in its territory (Personal Statute), (c) In matters which affect the form of a document the law of the place where the document is executed is followed ("locus regit actum ")• In many cases one could not do otherwise, even if desired ; for example, how can one apply to a notary in a place where there is none?. (Loysel, " Inst. Cout.," 302.) (d) On the subject of offenses, the law of the place where the offense was committed is applied, as local good order requires. Other laws may either not punish this particular act or else only inflict a lesser penalty. This theory (known as the theory of the "Statutes," because the conflicts which it solved arose between different municipal laws or statutes) accorded in many of its solutions with the early system of the reality of the Customs. But even in cases where the solutions resembled one another, the reasons supporting them were not the same. Neither feudal ideas nor the nature of the Custom was the starting-point. It rested rather on the needs of commerce, and of the community of interests existing between the Italian cities, which, though independent in fact, were looked upon by the law as parts of the Empire. (3) French School of the 1500 s. — The French jurisconsults of the 1500 s, who were pupils of the Italians (such men as Dumoulin and Argentr6), limited themselves to giving orthodox standing to the theory of the statutes, and to making certain alterations in it, — sometimes not very happy ones, such as the recognition by Argentrl of a class of mixed statutes, which were real and personal at one and the same time. Froland, Bouhier, and BouUenois in 215 § 10] FKANCE [Part III the 1700 s added little to the work of their predecessors. By this theory all conflicts between the various French Customs were regulated. Persons domiciled in one province and litigating in another were conceded their personal local " statute " ; nor did the sovereign common to all the provinces see in this application of difEerent laws an attempt to curtail his rights. To-day Article 3 of "the Civil Code applies this same theory to conflicts between French and foreign laws. Under the Old Regime that sort of con- flict was rare; for the foreigner was under serious disabilities, having no rights at all, and would have scant opportunity to in- voke the law of his own nation. (4) Modern Private International Law. — It has been left for our own century to found a true international private law, that is, to found upon ideas of justice the solution of conflicts between the laws of the various nations. Civilized States now treat one an- other as the Italian republics of the Middle Ages were wont to do ; their laws are like the Customs of the provinces of France as they formerly existed ; they form a great Republic, as Boullenois used to say, in which peace and common sense must be upheld. Hence, 1st. Foreigners are no longer under the disabilities which formerly burdened them; they are given (or there is a tendency to give them) the same civil rights as natives. 2d. They are allowed, so far as public order allows or justice requires, the benefit of their own native law ; each time they invoke the latter, outside of their own country, it is sought to ascertain what a prudent legislator would do in deciding some litigation of an international character, while at the same time taking into account the various interests brought into play. This was the very just and lofty point of view taken by Savigny. IMancini and the Italian school which follows him exaggerate its tendencies to such an extent as to distort them ; they go so far as to hold that the foreigner has a right, on principle, to invoke the law of his own nation. They have thus taken a point of view exactly the opposite of the old rule that " all customs are real." § 10. General Features of Law under the Customs. — (1) Va- rious Sorts of Ciistoms. — In society during feudal times each class of persons had its own law and its own judges, — clergy, nobles, peasants, townspeople, merchants, and artisans. In each one of these classes, usage becomes diversified; it suits itself to their manner of life. The Church is under its Canon law, and is judged by its ecclesiastical judges. The nobles have their feudal courts and their feudal law, — much the same throughout Europe 216 Chap. I] THE ROMAN LAW AND THE REGIONAL CUSTOMS [§ 10 (" Lehnrecht "), sufficiently complex to have its own special juris- consults, the " feudists." The citizens of the towns have their " Stadtrecht," their statutes, and their municipal judges. Among these citizens, the merchants later develop enough Customs of their own to constitute a " jus mercatorum," a commercial law and a maritime law ; special courts ( like the judge-consuls) ad- minister this. The artisans, grouped in corporations, have also their own special statutes and judges. The peasants, in their turn, in their colonists' courts, apply the " Hofrecht," the " jus curtis," that is, the usage of the lord's domain, which fixes the quit-rents and services (customs, " consuetudines," as they are often called) that they owe the lord. In England, the copyholders hold their lands in accordance with the custom of the manor (" custom is the life of copyholders "). (2) Racial Character of the French Customary Law. — The Cus- tomary law is a^ombination (in very varied proportions, depend- ing on regions and periods) of Germanic_ruleSrJB.oman law. Canon la w, and , local usage. Contemplating it as a whole, in France, it Tias a rather pronounced Germanic character. Zoepfl was able to say that the Code Napoleon is more German than many of the German laws. This is even more true of our old Customs. The Code Napoleon has borrowed a great deal from them, no doubt ; but it has not reproduced the rules in their entirety and in the complexity of their details. (3) When has Custom the Force of Lawf — The Custom should be based upon facts of a public^ nature, multiple, and ancient. 1st. Public, for, if they are not, nothing proves that the Custom has the force of law in general opinion (" opinio necessitatis ") ; if they are clandestine, their whole effect is lost. 2d. Multiple, that is, repeated. " Once is not a custom," says Loysel. Neither does the force of law exist in a single isolated fact. 3d. Ancient (" longa," " inveterata consuetudo "). Recent facts may be the starting-point of a Custom, but they do not prove that there is any thought in them of a rule of law. They do not bear witness to a suflScient consciousness in the community of the binding character of the Custom. Notoriety, multiplicity, and antiquity are susceptible of a greater or a lesser degree. It was for the judge to decide whether the facts from which the Custom is inferred are sufficiently notorious, numerous, and ancient. Upon these last two points, however, exactness was attempted. Thus, two precedents, at least, were required in order that the Custom should be taken as proved. 217 § 10] FRANCE [Part III The Canon law required the Custom to be " legitime prsescripta " ; that is, it must have been in existence, without interruption, during jthe period required for prescription — ten years if it supplemented the previously existing law, forty if it were " contra jus." Forty years was the period of prescription against the Church in the law of the Lower-Empire. The " Grand Coutumier de France " also required a period of forty years before the Custom could be- come binding. There is sometimes a mention even of an im- memorial usage (" cujus memoria non extat "), which applies especially in matters of public law. Needless to observe, the Custom may be abrogated by another and contrary Custom or by a law. (4) Restrictions upon the Authority of the Custom. — Custom has many foes, — the Roman law, the Canon law, natural law, and positive law. From day to day its domain shrinks. The canonist required it to be praiseworthy, reasonable, and in accord with good morals, natural law, divine law, and even the positive law ; at least the abrogation of the latter by non-user was conceded only on condition of the reasonable character and a forty years' or immemorial duration of the Custom. In the Roman law was found the doctrine by which a law derives its authority from the " judicium populi." In the Middle Ages the people were no longer sovereign, as they had been in republican Rome ; they had transferred their powers to the king. From this it was concluded that Custom derived its authority from the tacit approval of the sovereign; next they proceeded to require that it should expressly approve of it. Thus a valid Custom came to be almost identical with a law. The sovereign was, if not its author, at least the person responsible for its publication ; he had the right and the duty to cause the Customs of the kingdom to be respected, even upon the lands of the feudal lords when the latter violated them or allowed them to be violated. According to the extent of the territory where they apply. Customs are either General or Special; the Custom of a province is general, that of a town is special. In case the local Custom is silent, the general Custom resumes its force ; thus the question whether or not to have recourse to the Roman law will come up only if the general Custom itself is silent. In Spain the General " Fueros," such as the General " Fuero " of Navarre, were con- trasted with the special " Fueros " (for example the " Fuero " of La Guardia or that of Viana). The " Landrechte," or German provin- cial laws, were ordinarily nothing more than general Customs. In 218 Chap. I] THE ROMAN LAW AND THE REGIONAL CUSTOMS [§ 10 England, the general Customs of the kingdom formed the Com- mon Law; this was an instance of immemorial, usage. A few special Customs were in derogation of this common law, — such as that of Gavelkind in the county of Kent, or the Custom of Borough English, by virtue of which the younger son succeeds to the inheritance in preference to his elder brothers. Not only do such special Customs have to be proved (whereas the common law is known by the judges), but in order to be invoked they must be " good," that is, reasonable, immemorial, uninterrupted, and binding. (5) Proof of the Custom. — The French Books of Customs of the 1200s and 1300s distinguish (as do the Canonists and the Civilians) between the following varieties of proof : 1st. Notorious Customs, practised from time immemorial (Beaumanoir) or for forty years (" Grand Coutumier de France "). The parties had neither to allege nor to prove these, especially when they were general ; their very notoriety established their existence. Blackstone says of the English law that it is a general and immemorial custom, confirmed from time to time by the decisions of the courts of justice ; the judges, who know it as a part of their profession, will apply a notorious custom "ex officio." 2d. Customs acknowledged in Court in the course of a lawsuit (Beaumanoir). Judicial precedent is of itself a sufficient proof of the Custom. In England this became an essential feature in the formation of the Common Law. The immemorial usage which forms the latter is augmented by means of judgments which prove it, interpret it, and modify it under pre- text of stating it. The decisions of the courts were there kept in public registers (" Records "), set forth in books of reports, and discussed in the writings of the jurists. 3d. Customs Approved by the king or the lords (" Grand Coutumier de France," " Con- stitutions du Chatelet," Boutillier). The proof then results from the act of approval. 4th. Private Customs; parties who alleged them had to demonstrate their existence, like any ordinary fact. The Italian doctrine (and, following it, German practice) authorized in this case all the methods of proof ; the French law and the Eng- lish law had a special system (infra). 5th. Style signified the judicial usage, the procedure followed by each tribunal in its ad- ministration of justice (" style " of the Parliament, " style " of the Chatelet) ; it was sometimes applied to the usage of notaries. (6) Anglo-French System of Proof; Examination by a" Turba." — According to the Gloss and the Italian theory, Custom was proved by witnesses, like any ordinary fact; two witnesses sufficed to 219 § 10] FRANCE [PakT III establish its existence. All other methods of proof, however, were admissible : judicial precedents, notarial deeds, and writings of jurisconsults. But in France the procedure was different. It consisted in an inquest by a " turba " (troop, company). This was derived (like the English Jury), from an institution of the Carolingian period, the " inquisitio " by " pagenses," — an exami- nation of thejnhabitants of the locality required by law in certain cases, such as suits concerning the immovables of the Treasury. The right to have recourse to this exceptional method of proof was a privilege belonging to the king, or to those to whom he granted it. In England, the proof of a special Custom was made (says Black- stone) to the twelve jurors, and not to the judges; except that proof of the Customs of London was made by the Lord Mayor and Aldermen certifying by the hand of their clerk. The Anglo-French system was a system of " legal proof " (i.e. requiring credit, under fixed rules) in the following sense, that the judge was not at liberty to admit or reject the proof furnished by the jury or the " turba." According to the Italian jurists, on the other hand, it was a matter of convincing the mind of the judge ; the witnesses deposed to the facts; the judge remained free to weigh them as he saw fit, and to deduce the existence or non-exist- ence of the Custom. The " Turba " was a sort of jury. One of the witnesses (or ex- perts in Customs) who compose it, was elected, like our foreman of the jury, as the chairman {Reporter) of the "Turba," and he an- swered in the name of all. They were not questioned one by one, but as a group. Their answer (which might have been called a " verdict " in the etymological meaning of the word, " vere- dictum ") is collective ; whereas in the ordinary examination of witnesses it is individual. As the " turba " constitutes but a unit, it has but one voice ; the witnesses must " accord upon the same utterance." So also the English jury must be unanimous ; their decision is not given (as in France) by the majority. Thus, in case of a disagreement between the members of a " turba," the proof of the Custom was not made ; for the chairman of the " turba " cannot speak for all. But, as the " turba " only gives one answer, in later times it came to be counted as only one witness (Ordinance of !March, 1489, Article 13) ; thus, under the rule " testis unus testis nullus," it was held that the Custom had to be estabUshed by at least two " turba," that is, by twenty persons. The number of witnesses of which the " turba " was composed, or " turbiers," was at first unsettled (twelve, fourteen, rarely less, 220 Chap. I] THE ROMAN LAW AND THE REGIONAL CUSTOMS [§ 10 sometimes more; thirty at the most, according to Rebuff e). It finally came to be fixed at a minimum of ten ; whereas the ordinary jury of the Norman law had twelve members (" jurea duodecim legalium hominium in visineto ")■ Was this due to the influence of the Roman law, according to which " decem aut quindecim turba dicuntur," and of the Canon law, which held that a " peuple " is composed of ten persons ? This is what our old pleaders say. The pleaders- were in the habit of bringing more than ten witnesses to the examination, for fear that challenges might reduce the " turba " below the legal minimum. Defects of this System. — Like ordinary witnesses, and for the same reasons, the members of a " turba " were looked upon with suspicion. They were reproached with not daring, or not being willing, -to tell the truth : " He is foolish who puts himself upon an inquest; for he who best supplies drink best proves." Apart from the defects common to all inquests by jury, the inquests by " turba " had their own special disadvantages. They caused a great deal of expense, because of the large number of witnesses who had to be summoned ; they were often useless, for the witnesses of each " turba " might not come to any agreement, or one " turba " might bring in a finding contrary to that of another. The official compilation of the Customs during the 1500 s (post, § 23) rendered the inquest by " turba " useless ; and thereafter it survived only in exceptional cases. Finally, the Ordinance of April, 1667 (Title XIII, Article 1), abolished inquests by the " turba," and substituted for them Certificates of Notoriety, given out by the judges of a locality, on order of a superior judge. These were official certificates based upon the report of the officers of the Attorney-General, after consultation with the advocates and attorneys of the district, or with other practitioners if there were no lawful advocates and attorneys therein. (7) The " Weistiimer " of the German Law. The German Cus- toms, and especially the rural Customs, were proved, during the whole of the Middle Ages, by declarations made each year, at fixed times, by^thejelders^or_aldexmen in the village assemblies. These declarations are termed "Weistiimer," "Offnungen" ; when put in writing, they are called "rolls" ("Rotel" or "Rotuh "). These declarations have no feature of a judicial finding ; they are no more than official statements of usages which the aldermen have observed to be practised. (8) Sources of the Customary Law. — We cannot here attempt either a complete enumeration or a methodical classification of the 221 § 11] FRANCE [Part III sources of Customary law. But we can study the principal memorials of that law, by grouping them according to their natural affinities, in the following order. 1st. Charters of Privileges or Municipal Statutes. Alongside of legislative provisions there are ordinarily to be found many old usages. 2d. Collections of Cus- toms, compiled by jurisconsults upon their own authority, some- times in the form of treatises ; in France, some call these Custum- als (although this word "coutumiers" was not accepted in that technical meaning in the ^Middle Ages), to contrast them with the Customs (" coutumes ") which were officially drawn up in the 1500 s.. In Germany they are called " Rechtsbiicher." 3d. Judicial Decisions. The compilations of decisions, judicial regis- ters, form a class by themselves, although there are to be found in the Customals many judicial decisions. 4th. Deeds, Formulas, Cartularies, and private registers supplement all the foregoing sources. 5th. Commercial Law. * § 11. Municipal Charters of Privileges. — Origin of Municipal Charters. — Municipal statutes existed under the Roman State ; such were the laws of Salpensa and of ]\Ialaga (a.d. 81-84), and the law of the colony of Genitiva Julia (Roman year 710). But there is no connecting link between these ancient " leges munici- pales " and the charters of the 1100 s. It is true that both of them assume a certain amount of communal autonomy ; but there the resemblance ceases. The charters of the Middle Ages are due to the same causes that led to the emancipation of the communes. The institutions of peaceful life contributed to bring them into existence. The cities increased in size and became once more populous; their inhabitants, enriched by commerce, grouped themselves into corporations, and became a force which the feudal lord himself must often respect. At the same time new centres of population were being formed; the abbeys founded asylums and refuges; kings and lords created new towns endowed with such privileges that their growth was assured. Among these old and new towns, certain ones succeeded in freeing themselves from the authority of their overlord ; these were the communes in the North and the consular towns in the South. Others acquired a semi-liberty; they continued to be governed by a provost, but the latter found his powers limited by charters of privileges which the lord granted to his subjects. Date. — Before the 1000 s, charters are rarely found in France or elsewhere. The Customs of La Reole (Gironde), which have been supposed to date from 997, seem not to have been in existence 222 Chap. I] THE ROMAN LAW AND THE REGIONAL CUSTOMS [§11 until the end of the 1100s (1187 or 1188). The Customs of Stras- bourg, instead of dating from 980 as has been claimed, date only from the 1100 s. Object. — These municipal charters, drafted without any system, a pellmell of rules of diverse origins and dates, are both very in- complete and very extensive. They deal with the respective rights of the lord and the inhabitants, the attributes of the local authori- ties, the criminal law and police, and to some extent with the civil and feudal law and with procedure. They are at one and the same time compilations of constitutional laws and brief criminal and civil codes. Contents. — Their contents include old local usages, far earlier in date than the time of their reduction to writing; privileges granted by the lord ; rights arising out of contracts or transactions between towns and lords; statutes; and regulations or laws enacted by the town itself. The reduction to writing has ordinarily an official character. It was done after some important event, such as a change of the lordship, a dispute, a revolt, or a lawsuit between the lord and the inhabitants. The latter, feeling their rights endangered, sought to create a formal title for them. Charters of Franchise granted by the King or the Lords. — As early as the 1000 s the lords were wont to grant privileges to their towns as safeguards of the freedom of the individual; free ownership; abolition of arbitrary or onerous taxes ; fixing of rents and labor services ; exemptions in the interests of commerce ; impartial justice ; abolition of confiscation and of the wager of battle. Sometimes they went further, and allowed the towns to govern themselves. Lorris had only civil liberties ; Beaumont had a free government. Charters of Communes are to be distinguished from the char- ters mentioned above, inasmuch as they recognize in towns the right of self-government, the rights of having a budget, troops, statutes and judges. They make independent domains of these towns. Moreover, whereas mere charters of privilege are often uni- lateral deeds, communal charters have rather the character of contracts between the lord and the citizens, — contracts upon which royalty sets its seal of approval. Usually the town buys its freedom. Sometimes an insurrection is needed, in order that this freedom may be recognized and respected. Statutes of Trade Bodies, of Guilds, Hanses, Charitable Societies, and Brotherhoods, reveal to us the organization of the working classes and of the merchants. The supervision of associations of 223 § 12] FRANCE [Part III merchants and of trades, the approval and the revision of their statutes, belonged to the municipal authorities in the free towns, communes, and consular towns ; elsewhere, to the provost of the king or of the lord. It was in his capacity of Provost of Paris that Etienne Boileau caused to be reduced to writing, in the 1200 s, the old regxilations of the arts and crafts of Paris (" li establisse- ments des mestiers de Paris") (1252 to 1271). He was not, as has been said by some, the legislator of the industries of Paris. He was satisfied with having the usages of the trades registered and ratified, after eliminating what was contrary to good laws. The corporations of artizans, represented by their sworn masters, appeared before him at the Chatelet, stated what their Customs were, and a clerk took them down before the Provost. These statutes, known as the " Livre des Metiers " of Etienne Boileau, give one some idea of the manner in which the working classes were organized in France ; and countries other than France (such as England, Germany, and Italy) have statutes analogous to these. § 12. Books of Customs, and Treatises on the Law. — It is not difficult to explain why private editions of the Customs and treatises on the law were made. Naturally enough, it was done j_n imitation of the compilations of the Roman law. But it was due especially to the necessity of making known the local usages, of giving them some degree of fixity, and by this means of limiting the despotism of the judges. These reasons led the jurisconsults to take the initiative ; for public authority showed no interest. The embarrassments of the judges, forced as they were to deal with a mass of inconsistent customs, about this same period were being emphasized throughout western Europe. In the 1200 s there grew up in England, in France, and in Germany, a legal customal literature, whose chief works are sufficiently analogous to serve to interpret and explain one another. Two tendencies come to light : in some of these works the Roman law predominates ; in others it plays scarcely any part at all and the Customary law is set forth in all its purity. The Romanist tendency is found (in France) in Pierre de Fontaines, in the " Livre de Jostice," in Bou- tillier, and (in Germany) in the "Schwabenspiegel" ; the Custom- ary tendency, on the other hand, is more pronoimced in Beau- manoir, the Norman Books of Customs, Glanvill (in England), and the " Sachsenspiegel " (in Germany). (1) Anglo-Norman Texts. Normandy} — 1st. The " Tres ' Cf. as to the connection with Scandinavian law, V. Amira, "Sybel's Hist. Geitschr.," N.F., III. 241. 224 Chap. I] THE ROMAN LAW AND THE REGIONAL CUSTOMS [§ 12 Ancien Coutumier de Normandie " ^ is not an official redaction of the Norman law made under the orders of Philip Augustus a short while after the conquest of Normandy ; it is a private work written in two distinct treatises, one drawn up about 1200, the other about 1220.^ The French text is only a translation of the Latin text, which must be regarded as the original. 2d. The " Grand Coutumier de Normandie " has come down to us in three forms, — in Latin, in French prose, and in French verse. — (a) In Latin ; " Summa de legibus Normannie," this is the early form.^ (6) The translation into French prose, the " Grand Cou- tumier de Normandie," is but little later in date.^ (c) The trans- lation in verse by Richard Dourbault was made in 1280.^ The original itself is thus earlier than 1280 ; it is earlier than the Ordi- nance of 1275 dealing with amortizations, to which it makes no allusion (Chap. XXX) ; it belongs between 1254 and 1258 or 1260, and perhaps is even older than this.^ It is one of the most re- ' Editions: Warnkcenig, "Franz. Staats- u. Rechtsg.," II ("Statuta et Consuet. Normannie"); E.-J. Tardif . 1881 (" Coutumiers de Nor- mandie, textes critiques," 1st part ; the "Tres ancien Coutumier de Nor- mandie," Latin text, 1881) ; French text, which is almost contemporary with the Latin text, in Marnier, "Etabliss. et Coutumes, assises et arrets de r Echiquier de Normandie," 1839. BiBLioGKAPHY : Introduction by Tardif; Brunner, "Das anglonorm. Erbfolgsyst.," 1869; "Sehwurgericht," 1871, and HoUzendorff, "Ency- clopasd.," p. 300. 2 The first treatise (up to " Jurea regalis," c. 66) is concerned with pri- vate law, procedure, the penal law, and the competence of the seigniorial courts : cf. Glanvill. The second one describes the progress of a suit involving title to property : c/. Braciore, part 2 (procedure). ' Gothic editions of the sixteenth century ; Ludewig, " ReliquisB mss.," 1720-1740, VII, 149; E.-J. Tardif, "Coutumiers de Normandie, textes critiques," vol. II ; "La SumffiaTde legibus Normannise in curia laieali," 1896 (bibl., p. vi) (chapters 113-124, § 8 were added before 1275 ; chap- ters 124, § 9, and 125, before 1278 ; other amendments took place before 1293). * Gothic editions : Text brought up to date by Bourdot de Bichebourg, "Nouv. Coutumier general," vol. IV. — W. Laurence de Gruchy, "L'an^- cienne ooutume de Normandie" (French and Latin text)., * Houard, "Diet, de la cout. de Norm.," IV, 1782. " According to /. Tardif; the "Summa" does not make any mention of the Ordinance of 1258 or that of 1260 which abolished the duel, nor does it refer to the restrictions brought to bear upon the right of tavernage in Normandy in 1258. Chapter VI, 7, assumes St. Louis to be still alive. Chapter IV and chapter VI seem to have been inspired by the Ordinance of December, 1254, dealing with the reform of morals inLanguedoc {Tardif, p. clxxxvii). Esmein, "Cours d'hist. du dr. fr.," 3d ed., p. 728, n. 2, dis- putes this last point; he regards the "Summa" as being a little later in date than 1234, a time when Gregory IX published his compilation of Decretals ; for the second prologue of the "Summa" contains a few lines borrowed from the bull of publication "Rex paeiflcus." "Chapter cxi, 13, recalls the crude process by which the prescription of thirty years used to be reckoned. Some event known to everybody, and dating back about thirty years, was selected, and all deeds previous to that date were de- clared to be covered by the prescription. When the date selected had 225 § 12] FBANCE [Part III markable legal works of the Middle Ages. " The author is not satisfied with setting forth the Customs of his country, he codifies them. The method employed by him gives his work a scientific character which distinguishes it from other treatises composed in France at about the same time. The influence of the Roman and Canon law is not noticeable. The Norman law is so faith- fully portrayed that, though it was but the work of a private person, it acquired before long the authority of a regular Code; Philip the Handsome cited it and ratified it in 1302. It did not cease to be applied until 1583, the date of the official redaction of the ' Coutume de Normandie,' — and even at the present time, it forms the common law in Jersey^ and the Chaimel Islands." ^ England. — The " Tractatus de Legibus et Consuetudinibus Regni Anglise," compiled between 1187 and 1189, and attributed to Ranulphe of Glanvill, chief justice of England under Henry II, who died at St. John of Acre in 1190, sets forth the procedure fol- lowed in the King's Court, and at the same time describes the matters coming within that jurisdiction. This work, by reason of its date, its merits, and its subjects, is of great importance. This was so generally recognized that an edition of it was made for use in Scotland, under the title " Regiam majestatem " (the words with which the prologue begins) . About seventy years after Glanvill's time, Bracton's great treatise was written, " De legibus et consuetudinibus Anglise " become too remote, another was fixed by a decision of the Exchequer. The last event so chosen, according to the 'Summa,' was the crowning of Richard Coeur de Lion in 1189; 'but the King,' it went on to say, ' ought to fix another, for more time has expired since then than is neces- sary for prescription.' This manner of speaking is readily understood if the author of the 'Summa' wrote about 1234. Forty-five years had passed since 1189. It is hard to conceive that a prescription which nor- mally was of thirty years, should be allowed to extend to a period exceeding eighty years, which one would have to admit if this passage were written after the death of St. Louis." ' W. Laurence de Oruchy, "L'ancienne coutume de Normandie," 1881 ; cf. /. Havet, "Les cours royales des lies normandes," BCh., 1870-1878. 2 Other texts of Norman law : (A) Judgments of the Exchequer : "Recueilde . . . au XIII siecle," by L. DeZisZe, 1864 ; LSchandi d'Anisy, "Mems. de la Soc. de Antiq. de Norm.," XV, 150; Warnkcenig, "Franz. Staats- u. Reohtsg. Urk.," II, 120. After the 1300s they are not published. — (B) Compilation of the Assizes, decisions rendered at Caen, Bayeaux, etc., from 1234 to 1237. (a) Latin : L. d'Anisy, op. cit., p. 144; Warnkoenig, p. 46. (6) French: Marnier, "Etabl. et Cout.," 1839, p. 89. — (C) Styles, (a) Valroger, "M6m, de la Soc. des Antiq. de Normandie"; XVIII (" Coustume, stille et usage au temps des Echiquiers de Normandie," first half of the fifteenth century). (6) "Le stille de proceder en pays de Normandie," a little later, in the style of the "grand Coutumier" in the Gothic editions. — (D) "Coutumier de la vicomtg de I'eau de Rouen," a compilation of maritime and commercial law, 1200s: Ch. de Beaurepaire, "De la vicomte de I'eau de Rouen," 1856. 226 Chap. I] the homan law and the regional customs [§ 12 (1250-1258), — Roman in appearance, but at bottom essentially English. It was compiled especially with the aid of the rolls of the cases before the judges of the King's Courts. Its borrowings from the " Summa " of the Italian legist Azo and from the canonist Tancred are entirely superficial and play but an unimportant part in it, without altering the character of the work ; it is an exposition of the procedure and the law followed in the royal courts. Bracton was hostile to the feudal lords and the Church, and a parti- san of the authority of the king, yet did not go so far as to support absolutism. His correct name was Henry de Bratton. He was an itinerant justice from 1245 on, and from 1248 until his death in 1268 he held assizes in the southwest. From 1248 until 1257, he was a judge in the Court of King's Bench. He received various benefices ; and in 1264 he was appointed Chancellor of the Cathe- dral of Exeter. Bracton's book became the basis of the legal literature of England in the time of Edward I. Gilbert Thornton, presiding justice of the King's Bench, made an abridgment of it. Two treatises written about 1290 are little more than reproductions of it, — Fleta (from " Fleet," or " flotte," a prison in London where the author was imprisoned (?) and which appeared to be afloat because it was on the river Thames) and Britton, a French book which puts all the rules of law into the King's mouth (" we will," " we grant ") . Let us add to these important works a little treatise on procedure, the " Summa " of Ralph Hengham, Chief Justice under Edward I, and the worthless essay of Andrew Home, the " Mirror of Justices." Although the English law was far from remaining unchanged, yet the Customs of the 1200 s reappear in the writings of later times, the most noteworthy of which it would be well to mention here. The " Tenures " of Littleton (1482) had almost the force of law until the time of Blackstone (1723-1780) ; and the first book of the " Institutes of the Laws of England " by Sir Edward Coke (1628) is no more than a commentary upon them. Fortescue's treatise, "De laudibus legum Angliae" (1463-1471) drew a parallel between English and Roman law, to demonstrate the superiority of the former. The classic " Commentaries on" the Laws of Eng- land," by Sir William Blackstone (1765), afterwards superseded these old treatises. It was through Blackstone that Europe made its acquaintance with English law. (2) France {1200 s). — " The Advice of Pierre de Fontaines " or " Advice to a Friend " (1253-1258). This title is a conventional literary phrase (like that of the book of Philip of Navarre) given 227 § 12] FEANCE [Part III to a compilation of usages and Customs of Vermandois, written by one of the best kno-rni Councillors of King St. Louis, Pierre de Fontaines. His knowledge of the Customary law seems to pin short, so he ends by substituting an almost literal translation of passages from Justinian's Digest and the Code. The " Advice " contains chiefly rules of procedure, occasionally some rules of private law. The " Anciens Usages D'Artois " or " Coutumier D'Artois " (1283 to 1302) has extensive borrowings from P. de Fontaines, and perhaps even from the " Etablissements de Saint Louis," as well as citations from the Roman and Canon law. Nevertheless, it is the personal work of an author (a lawyer of Arras ? a sheriff ?) who has used to good advantage his own experiences. The " Livre de Jostice et de Plet," like the book of Pierre de Fontaines, is for the most part a translation of the Roman texts, except that the " Advice " is concerned with the usages of Ver- mandois, the " Jostice " with those of Orleans. Neither date nor author are known ; it probably belongs shortly after 1259. Some have thought that it represents a student's notes of lectures at the University of Orleans; the teaching was there in French, as early as the beginning of the 1300 s, contrary to the general usage ; and the professors there used great liberty with the Roman texts. But however this may have been, no lectures on Customary law were then given at Orleans or anywhere else ; and the " Jostice " must be the work of an experienced practitioner. "Etablissements de Saint Louis." — The word " stabilimentum," establishments, in the 1200 s meant the Royal Ordinances. It was in fact for a long time (and naturally) thought that the Book of Customs which bears the name of " Etablissements de Saint Louis " was an official compilation of the Ordinances of this King. Du Cange, Lauriere, and Beugnot thought so. But VioUet has demonstrated the fallacy of this view. It is scarcely possible that Saint Louis had any thought of giving a uniform civil legislation to his whole kingdom ; the historians of his doings make no men- tion of a plan of this nature, and he was too much opposed to the constitution of feudal society to have conformed to its point of view as accepted in this book. Nevertheless, the influence of the " Etablissements " was great ; it was felt even in distant provinces, such as Brittany, Poitou, and Champagne, where an abridgment of it was made, Beauvaisis, Artois, and even Hainaut. Ctistoms of Beauvaisis. — Philip de Remy, lord of Beaumanoir (1246 or 1247-1296), spent a part of his youth in England. After 228 Chap. I] THE ROMAN LAW AND THE REGIONAL CUSTOMS [§ 12 his return to France he became sheriff of Clermont in Beauvaisis (or Beauvoisis) ; it was during his tenure of this office that he wrote the Cust(|pas of Beauvaisis (" H Uvres des Coustumes et des Usages de Biauvoizins ")• This book of Beaumanoir's is at once a com- pilation of the Customs and a treatise on Customary law. The author himself points out in his Prologue the sources from which he has drawn; they are judgments rendered in his own day in the County of Clermont, settled usages shown by the judgments of neighboring baronies ; and, finally, " the law which is common to the whole kingdom of France," that is, the Roman law. It is, as a legal work, much superior to most treatises of the Middle Ages. In spite of its great worth, — or perhaps because of its very qual- . ities, because it had too much of its author's personality, — his book passed unnoticed. No one imitated it; ho one made use of it. In the 1600 s, Du Cange and La Thaumassiere resuscitated it to some extent. (3) France (continued) ; 1300s and IJflOs; West. — In Brittany we have certain fragmentary Assizes of 1185 and 1301 ; and then the "Very Old Custom of Brittany," dating 1312-1325. In Anjou, Maine, Poitou, and Berry there are compilations of Cus- toms starting as early as the 1200 s. North of France and Belgium. — For this region, besides various Books of Customs, there is a learned treatise, giving a statement of the whole of the French law at the end of the 1300 s, — a sort of encyclopedia, in which the Roman and the Canon law mingle in a disordered and confused stream with the Customary law, — the " Somme Rural" of Jehan Botjtilliee, lieutenant of the sheriff of Tournay (died about 1395) . The sources from which Boutillier has drawn, outside of the decisions of the tribunals in which he attended, are Customs of the North of France, of Flanders, of Artois, of Vermandois, of Normandy, the " Etablissements de Saint Louis," and the "Styles" (noticed below). Although it leaves much to be desired in method and in compilation, the " Somme Rural " met with great success among the practitioners of the time. Charon- das le Caron, as late as the 1600 s, reedited it (1602-1611) ; and the following distich, in spite of its exaggeration, was not far from being regarded a simple statement of the truth : " Quse tibi dat Codex, quae dant Digesta, quod usus, Ruralis paucis haec tibi Summa dabit." (Godefroy.) In our own day, it possesses this great interest, that it gives us an outline of the evolution which the Customary law was undergoing 229 § 12] FRANCE [Part III at the end of the 1300 s. Perhaps the changes in it are too much accentuated, and are more in conformity with the Romanist ten- dencies of the author than with the truth. « Central Region. — The "Stylus Curiae Parliamenti," or "Style dii Parlement," is the work of an advocate of the Parliament of Paris, WiLLL-LM du Breuil, a native of Figeac. It was written about 1329 or 1330, and is a treatise on civil procedure, — the first to be produced in France. The author was a skilled practi- tioner, of doubtful morality, but of very accurate knowledge. His work is methodical, precise, and modern in style ; and repro- duces the practice of the Parliament of Paris at the beginning of the 1300 s, at a time when the influence of the Roman and the Canon law had already made itself felt to a great extent. The " Grand Coutumier de France " (or " Coutumier de Cl^arles VI "). This misleading title is given to a private com- pilation made at the end of the 1300s (between 1385 and 1388), whose author, Jacques d'Ableiges, was successively sheriff of Chartres and of Evreux. " That which is in it," he himself says, speaking of his work, " I have found and received from others and acquired in other ways." He here brings together ordinances, rules of practice, and rules from the "Coutume de Paris." In this composite work, which has no originality, procedure (especially the practice of the Chatelet of Paris) and forms occupy much space. The feudal law of the Ile-de-France is set forth in some detail. The " Grand Coutumier " was extensively used by our old practitioners, and was still being studied in the 1500 s. (4) Books of Practice. — The " Practica forensis " of Jean Masuer (a student at Orleans and an advocate at Riom, died 1450) is one of a sort of writings which had begun to appear as early as the 1100 s, and d[id not cease to have great vogue until the period when our old law was superseded. A Practice-Book is primarily a book of procedure, an " Ordo Judiciarius " ; it is contrasted with the books of theory, the " doctrine." Masuer's Practice-Book deals with the districts of Auvergne and Bourbonnais, where the fusion between Roman and Customary law was then going on. The last notable Practice-Books were those of Imbert (1552) and Lange (prior to 1667). The Netherlander Damhouder (died 1581) wrote a " Practica rerum criminalium " which had an ex- tensive vogue.^ 1 [The foregoing account of the sources of Customary law has been much abbreviated from the original. — Tbansl.] 230 Chap. I] THE ROMAN LAW AND THE REGIONAL CUSTOMS [§ 13 Topic 4. Other Sources op Law § 13. Judicial Decisions. — (1) The Court Record. — From what period do the official records of the courts date ? They did not exist at the opening of feudalism, when procedure was public and oral. Were the fact or the tenor of a judgment contested, resort was had to the memory of the judges {memory, " record," of the Court). This method would have been of some value if the judges could actually have retained an exact memory of all their judgments, — and if they did not die in the meantime ! In the kingdom of the Orient, they were often rediiced to having the advo- cates plead all over again. The "Abr^ge de la Cour des bourgeois " (Assizes of Jerusalem) tells us that, at a combined session of the two courts, in 1250, it was decided that each branch should have a scribe, charged with keeping a book wherein he should set forth the " claims and replies, allegations, reasons, and statements^" that is, the complaints and answers and all the proofs of the parties. In the Occident, the Court's " memory-record " system was not abolished ; but reforms were introduced, and little by little it fell into disuse. According to Beaumanoir (in the 1200 s), in the lay courts, they still "remembered" whenever the parties came before the court a second time ; but the judge was bound to keep a brief written finding of the facts and the parties' proofs so as to make up for the lapses in his memory. From these summary notes, made at the trial, there developed the system of embodying the entire pleadings and judgments in rolls or scrolls of parchment.^ (2) Normandy. — As early as the end of the llOOs^ the services of the clerk of the court were regularly used in the highest Norman court, that of the Exchequer.^ The judges had their judgments 1 Stouff, "R61e dela ville de Saint-Ursanne " (N.R.H., 1890, p. 121), states that minutes or rolls of the pleas ("dingrcBdel") were kept, from the beginning of the 1200s, in the Jura region; Trouillat, I'Monum. de I'hist. de I'ancien evfiche de Bale," I, 296. ^ L. Delisle, op. cit., p. 353. ' The Exchequer had two sorts of members, — the barons, and the " justitiarii," lawyers chosen by the king, who soon took precedence over the former. Since the time of Henry II, this Court had held two sessions annually, one at the feast of St. Michael, the other at Easter, in the town of Caen. Afterwards Rouen became the place where the Exchequer or- dinarily sat ; there were still, however, sessions at Caen and Falaise. The conquest of Normandy by Philip Augustus, in 1204, did not do away with the Exchequer ; but it was the commissioners of the king who came to hold the sessions. The prelates and the barons continued to take part in them, and, with them, all the followers of the king ; these came there to uphold the judgments which had been rendered by them and had been appea,led from, to hear the reading of the Ordinances, and to render their accounts. All other jurisdiction was suspended while the Exchequer 231 § 13] FRANCE [PabT III inscribed " in rotulis scaccarii." Before long, the practice de- veloped of taking important judgments from the rolls or scrolls and copying them into registers, more convenient for reference.-' The Exchequer had such a register at least as early as 1225.^ Under the name of " Assises de Normandie " (" Assisise Normannise ") we possess a collection of decisions rendered by the judges of the King at the assizes held in various towns, — Caen, Bayeux, Falaise, etc. (1234-1237). 3 (3) England.* — The English judicial documents are even older than those of Normandy. They are of three kinds. 1st. Writs ("brevia ") issued bytheKing in each case, permitting an exceptional procedure, the result of which was to do away with the wager of battle and the wager of law (or trial by oath). After the time of Henry II, the Chancery would give these writs to the parties according to certain common forms and on conditions fixed by custom ; so that they ceased to be exceptional and dependent on special favor, and became one of the regular forms of procedure. These writs were used for varied purposes. The Writ of "praecipe " (derived from the Prankish " indiculus commonitorius ") gave authority to bring the parties before the King's Court ; an order was issued to the Viscount (sheriff) to command the defendant to restore the subject of the suit, under penalty of being brought was in session. The Exchequer, thus organizjed, was, as it were, an am- bulatory branch of the Parliament of Paris ; the king's commissioners were ordinarily chosen from the members of the court of Parliament. In 1499, a permanent Parliament was substituted for it. — The name "Exchequer " given this Court is said to be derived from the fact that the table around which its members met was covered with a cloth having black and white squares; just as, in France, later on, the name of "Marble Table" was given to certain tribunals. — The English Exchequer is found under Henry I ; but the Norman Exchequer only made its appearance under Henry II: Langlois, "De monum.,"9; T.A.C., Norm., ed. J. Tardif, p. 35; Stapleton, "Magni rotuli scaccarii Normannie," 1840 (rolls of the finances) ; "Rotuli Normannie," ed. Th. Duffus Hardy. '■ Three jurisconsults were charged with this duty. 2 L. Delisle, "Recueil des jugements de I'Echiquier de Normandie au xiii sigcle," 1200-1270 (printed from copies of the lost original com- pilation), 1864; "Notices et Extraits des mss.," 1862, XX, 2d part, p. 138; "Mem. Acad. Inscr.," 1864, XXIV, 2d part, p. 343; Auvray, B.Ch., 1888, p. 635. Prom the death of Saint Louis until the 1.300s: Lechaude d'Anisy, "Mem. Antiq. Norm.," XV, 150 ; Warnkoenig, "Franz. Rechtsg.," II, V, 120. — Beginning with the 1300s these judgments are still unpublished. ' This is a private work. The Latin text was published by Lechaud6 d'Anisy, op. cit., p. 144, and by Warnkoenig, op. and loc. cit.; the French text by Marnier, " Etablissements et Coutumes, assises et arrets de 1' Echiquier de Normandie," 1839. L. Delisle states that there were rolls or registers in each jurisdiction in 1248 and 1253 ("Mem. Ac. Inscr.," XXIV, 357, 3.59, 362). < "Encyclop. d. Rechtswiss." by Holtzendorff, p. 308; Glasson, "Inst. del'Anglet." 232 Chap. I] the ROMAN LAW AND THE REGIONAL CUSTOMS [§ 13 before the King. The " Breve recognitionis " commanded the Viscount to summon a jury, which was to decide the question of proof raised by the pleadings. The " Breve de recto " was in- dispensable in any litigation affecting immovable property; even before the seigniorial courts ; it was derived from the " indiculus de justitia " of the Prankish period. The forms of these writs show a striking analogy to the forms of action of the Roman law. Their effect was to give each action a distinct individuality : "tot for- mulae brevium, quot genera actionum." A distinction was made between the " brevia originalia," by which an action was begun, and the " brevia judicialia," used during the course of an action. "Brevia formata" were distinguished from "brevia magistralia" ; ^ the former corresponding to the direct actions of the Roman law, and the latter to the " utiles " (or equitable) actions, for they were issued by the Chancery " in consimili casu," i.e. for a case similar to one for which some other writ had been created.^ 2d. Records, or official minutes of the decision of the court and of the trial which precedes it.^ They were entered upon rolls and registers, like the decisions of the Exchequer of Normandy. The Exchequer of England (the equivalent of our Court of Accounts, but forming at the same time a court of Justice), had its " Pipe Rolls " (rolls in the form of a tube or pipe) since the reign of Henry I (1100-1135).^ One cah still see in London judgment rolls of the time of Richard Coeur de Lion (1189-1199). 3d. Reports, kept officially^ since the end of the reign of Ed- ' Statute of Westminster, 13 Ed. I, o. 24. 2 See forms of writs in Glanvill, and in the " Statu tum Walli»," 1284, which introduced EngKsh procedure into Wales. Collections of writs : " Old ' Natura brevium ' " under Edward I ; " Registrum brevium omnium " (official collection), 1531 ; "New 'Natura brevium'" of Fiizherbert, 1534 (ed. of 1794 with commentary). Cf. T.A.C., Norm.; Brunner, "Ent- stehung der Schwurg.," 404. ' Bigelow, "Placita Anglo-Normannica," 1879 (from William I to Richard I); Palgrave, "Rotuli curiae regis," 1835 (from Richard I to John) ; "Plaoitorum in domo capit. Westmonast. ass. abbreviatio" (Richard I to Edward II), compiled under Elizabeth and published by the State in 1811. The Record Commission has ptiblished a great number of them : Pollock and Maitland, I, xvii. — French was the law language of England until 1362 : Pollock, "First Book of Jurisp.," 299. * Cf. "Dialogus de Soaecario" in the "Select Charters" of Stubbs, 1884. The minutes and records of the Court of Chancery each day increased in importance. A special officer, the Master of the Rolls, "elericus et custos rotulorum," was appointed to have this custody in the twentieth year of the reign of Edward II. Like the Chancellor, he was chosen among the clergy, and had to take the former's place when he was prevented from appearing. ' [At the time of the learned author's death, he could hardly have known of the now accepted opinion of English scholars that the Year- Books were not "official." — Transl.] 233 § 13] FRANCE [Part III ward I. The reports contain chiefly the arguments of the parties and the reasons for the judgment ; the -detailed facts of each case are not found in them, as they are in the records, — the latter being mainly intended to preserve the judicial decisions in order that they may be applied, if need be, " inter partes." (4) " Le Parlement de Paris." ^ — As early as the twelfth century the proceedings in the King's Court were not entirely oral. There was need of various written documents,^ written proofs, inquests ; clerks made a note of the judgments, in order to furnish copies, etc. Once a lawsuit was ended, these documents were no doubt preserved in some secure place,^ and we know that under Philip III and PhiUp the Handsome this was the " Palais de Justice." * ' Editions: Beugnot, "Les Olim," 1839-1848 (collection of unpub- lished documents dealing with the history of France) ; restoration of the "Liber Inquestarum " of Nicolas de Chartres which had been lost since the 1500s ; L. Delisle in the " Actes du Parlement de Paris," I, 315-464, and in the "Notices et Extraits des mss. de la Bibl. Nat.," XXIII, 2d part; Ch.-V. Langlois in the B.Ch., 1885, pp. 440—447; extracts from the Memorial of the court clerk attached to the third " Olim " ; Klimratk, "Travaux," I, 73; Beugnot, "Olim," II, 880; Grun, "Notice sur les Archives du Pari, de Paris," p. Ixxviii ("Actes du Parlement") ; inven- tory of the Orders of the Parliament by Boutaric, very useful for Orders after the unpublished "Olim" (II, 294), but it ceased in 1328; in the "Actes du Pari, de Paris" ("Coll. des Archives nationales") ; Ch.-V. Langlois, B.Ch., 1887, 177 and 535 (rolls containing Orders of the King's Court in the thirteenth centuVy). — *rhe registers and the minutes of the 1300 s and the 1400 s have been published in part only. C/. Tuetey, ' ' Journal de Nicolas de Baye ' ' (court clerk, 1400-1410) , 1885, and ' ' Testa- ments enreg. au Pari, de Paris sous Charles VI," 1880. — Prior to the 1200s, see Luchaire, "Hist, des instit. de la France sous les premiers capetiens," II, 308, app. no. 12 (cases from 1137 to 1180) ; Boutaric, "Actes du Pari.," I, p. ccxcii (Orders of the King's Court from the ac- cession of Philip Augustus until 1254, which is the date of the oldest reg- ister of the Parliament); Ch.-V. Langlois, "Textes relatifs a I'hist. du Pari, depuis les origines jusqu'en 1314," 1888 ; Guilhiermoz, "Enqu^tes," p. 378 (Orders from 1313 to 1370). Bibliography : Beugnot, "Olim," preface aid notes; Klimralh, "Travaux," 1842; H. Lot, "Essai sur I'authenticite et le earactere officiel des Olim," 1863; Ch.-V. Langlois, "De monumentis ad priorem eurise regis judioiarise historiam pertinentibus," 1887 ; Viollet, 161 ; Glas- son, IV, 172 ; A. Tardif, "La procedure aux xiii et xiv s.," 1885, p. 122 ; P. Fournier, "Les Officialites," 1880; Auhert, "Le Pari, de Paris" (N.R.H., 1884, p. 452 on the court clerk) ; "Hist, du Pari, de Paris de I'origine a Francois I," 1894, I, 229. ' Luchaire, "Inst. mon. sous les premiers capetiens," I, 319; Lang- lois, "De monum.," 8. The national archives contain some dating for the beginning of the 1200s: Langlois, "Textes," VII. \At the Treasury of Charters (the Sainte-Chapelle under Saint Louis) ; for there are legal documents in the Supplementary Treasury where they must have been forgotten, when the court clerk of the Parlia^ ment, on its separation from the royal Archives, was transferred to the Palais de la Cite : Langlois, "Textes," ihid. * In two documents called "camera" or "gardaroba," perhaps the session room ("camera placitorum") and the cloak-room of the Court ("gardaroba") ; Langlois, ihid., VIII, ix. 234 Chap. I] THE ROMAN LAW AND THE REGIONAL CUSTOMS [§ 13 The Session Rolls and the Sacks. — The judgments of each session were inscribed upon a roll (after 1254 at the latest), as had for a long time been customary in the Exchequer of Normandy.^ Each session had not only its " roll," but its " sack," in which the clerks of the courts classified the documents of the proceeding.^ These included : 1st, " petitiones," or initial documents of claim (the " libelli " of the Canon law) ; 2d, " articuli " (or " rubricse "),^ summary and detailed statements of the facts which the parties were required to prove (another thing borrowed from the Canon law) ; 3d, inqufests, extrajudicial information, views of lands, and " processus " (in case of an appeal, documents of the proceeding before the inferior court) ; 4th, " protestationes " or matters reserved ; 5th, " decreta," or adjudications of property on which a distraint and its public announcement had been executed; 6th, " concordiae," or transactions ratified by the Parliament.* The Registers. — Up to 1263, the decisions of the Parliament of Paris were only entered on the rolls. In that year, the court clerk, John de Montlufon or de Montluc (" Johannes de Monte- lucio ") copied into pamphlets (" cahiers "Y (whether of his own initiative or obeying an order of the Parliament is not known) the most important of the judgments. He filled out these " pam- phlets " by the use of extracts from the rolls previously made up by him from 1254 to 1257. His successor, Nicolas de Chartres, 1273, finished the task by making a very brief summary of the judgments from 1257 to 1263,® of course while continuing to copy out the new judgments. After 1298 his place was taken by Peter de Bourges. The pamphlets or books made by these men make up what are called the "Olim," or " Olim " registers. This name was ' As to the note "Inferius" whicli is found in the "Olim," the inter- pretation of which is difficult, c/. Griin, p. Ixxi, and Langlois, "De monum.," 13. It is probable that after 1263 Jean de Montlugon left to clerks of inferior rank the care of keeping the session rolls. As soon as the Auditorium of Written Law had been created, he played a special part, " rotulus auditorii " : "Olim," IV, passim; Langlois, "De monum," 21; ','Olim," II, 46, cf. Index, see "Rotulus." These rolls were de- stroyed at the time of the burning of the Palais de Justice in 1618 : Griin, p. ccxlix. ^ In the end, they were regrouped into bundles, each one of which sometimes contained more than one hundred rolls. In the 1700 s, the Archives of the Parliament consisted of not less than 7000 to 8000 bundles. About one quarter of them still remain in existence : Beugnot, "Olim," I, 995. ' Beaumanoir, I, 108 ; II, 129. * These were not copied into the registers. ' At this time registers were not a novelty. The Exchequer of Nor- mandy had them, and the Treasury as well. « Beugnot, "Olim," I, 440. 235 § 13] FRANCE [Part III at first given to the second register/ which begins with the words " Ohm homines de Baiona," ^ and it was extended about the 1500 s to include four older registers of the Parliament. The "Olim" in- clude : 1st, " Inquestce," which means, not the minutes of hearing,^ but judgments rendered after hearing, and called " Jxiges," " judi- cia," " judicata " ; * 2d, " Arresta," " arrestaciones," decisions ren- dered upon the pleadings, following an argument and trial by both sides; 3d, " Consilia," preliminary decisions, interlocutory judg- ments, not final in character (for example those by which further time was granted the parties, " dies consilii assignata est taU")-^ Beugnot, the editor of the " Olim," considered them as a private work, mere notes taken down by the clerks of the court for their own personal use. But to this view we cannot accede. After 1286 at least, the " Olim " are always cited as official documents. Lloreover it would have been surprising had the highest Court in the realm not had official registers, when, for a half century at least, the lowest ecclesiastical tribunal had had its own.® The Certification of Copies of Parliament's Judgments was done in 1200s: 1st, by means of " cedules " (memoranda), or mere extracts from the session rolls; they had the effect of a formal ' " In libro qui incipit Olim," said Nicolas de Baye in 1400. 2 The document which begins with these words deals with certain acts of violence committed by the people of Bayonne against the Nor- man merchants, with the assistance of the English. This document and the few others which are placed at the beginning of this book differ greatly from those which are to be found in the other registers ; these are letters or Ordinances relating to very high personages, the King of England, the Count of Flanders, etc. From this, perhaps, is derived the exceptional value which has been given to this second register. — It has also been said that the word "olim" was merely an allusion to the antiquity of these registers. The first crim.inal register of the Parliament is of the year 1312 : Grun, ccxxii. ' Some are to be found in the Treasury of Charters. Example in ."Olim," I, 959. ' The ' ' processus ' ' mentioned with the inquests are written instruments upon which a lawsuit was decided, and especially the instruments apper- taining to cases which had been appealed (" visis proeessibus et inquestis") ; and, by extension, judgments pronounced upon written pleadings : See, "De judiciariis inquestis xiii saeculo agente," 1890; Guilhiermoz, "En- quetes et proces," p. 29.3. * The first "Olim," book by Jean de Montlugon, Examinations and Orders, 1254 to 1273 (ed. Beugnot, vol. I); the second "Olim," book by Nicolas de Chartres, Orders, 1274 to 1298 (vol. II); the third "Olim," book by Pierre de Bourges, Orders, 1299 to 1318 (vol. II) ; the fourth "Olim," P. de Bourges, Examinations, 1299 to 1318 (vol. Ill, 1st and 2d part). ^ During the last centuries of the monarchy the Parliament looked upon the "Olim " as the charter of its liberties and refused access to their contents, excepting to a few learned men such as Du Cange and Lenain de Tillemont. The historical writer Moreau had to bribe the court clerk of the Parliament in order to obtain a copy (1777). 236 Chap. I] THE ROMAN LAW AND THE REGIONAL CUSTOMS [§ 13 judgment ; 2d, by " diplomes," or letters patent, sealed in the Chancery and drawn up by the notaries of the clerk of the Court, — sometimes according to the accounts of them in the " Olim " registers, and sometimes before the court clerk had entered any- thing on his register; in the latter case it included only a sum- mary ; 3d, by " mandates," sent to the sheriffs or seneschals, 4th, by " rolls," delivered especially to sheriffs and seneschals, and containing the decisions upon the matters coming from their jurisdiction. "\j Development of the Archives of the Parliament. — The session rolls disappeared in 1319. The text, or the summary of the judg- ments entered upon the rolls, were to be found in the " Olim," and in the so-called " Juges," registers which follow the " Olim " after 1319.^ The rolls thus served no further purpose except for interlocutory decisions not entered in the registers; in 1319 the " Registres du greffe " (clerk) were established, in which these were placed.^ This provision removed all reason for the exist- ence of the rolls. As the Parliament became divided into several Chambers, so the records of Parliament, which at first consisted only in a series of roUs, came to be split up into a series of registers ; and these grew more and more numerous, — " Registers of the Letters," " Registers of the Council " (1364-1790), " Memorials " (inventories or tables, 1372), " Registers of the Ordinances " (1337-1790), of " Real Distraints " (1375-1790), etc.' (5) The "Chaielet" of Paris.^ — The Provost of Paris admin- istered justice for the commoners ; he held his court in a "chatelet," or little castle, upon the right bank of the Seine, at the end of the Pont-au-Change. His court was, next to the Parliament, the most important one in the kingdom ; ^ the law which he applied there consisted in a great measure of the " Ancienne Coutume de Paris." ® 1 This series of registers really includes three sorts of document, — the " Jugfis," or decisions of the Chamber of Inquests, which are the most numerous and have given it its name; "Letters" (of the king, letters of pardon, mandates of execution, etc.) ; " Arrets," or decisions of the Great Chamber (and very rarely of the Chamber of Inquests). 2 These registers also contain "statutes," so called because of the State Letters, a great number of which are connected with them, and "roles de baiUiages," appointing days upon which the eases in each sheriff's court should be pleaded before the Parliament, and upon which, therefore, the sheriif had to attend the hearings. ^ Langlois, "Textes," XIII; "De monum," II, p. 22. *Batiffol,"Le Chatelet de Paris vers 1400" ("R. hist.," 1896, LXI, p. 225). * At the time of the Revolution there were no less than sixty-four councillors. 6 Tanon, ."L'ordre du proc6s civil au xiv siecle au Chatelet de Paris," 237 § 13] FKANCE [Part III It is known to us through various sources already mentioned, — the Registers of Parliament (the court of appeal for the " Chate- let "), the " Grand Coutumier " of Jacques d'Albeiges (3d book), the " Decisions " of Jean des IMares, and other special works which remain to be noticed. The " Anciennes Constitutions du Chdtelet," ^ at once a manual ^nd a book of forms, containing eighty-six very short articles, arranged in no sort of order, are the work of a prac- titioner. He gives us not only the rules of decision for the " Chatelet," but also the principal rules of the Customary law and of procedure followed at the end of the 1200 s in the "pays (dis- trict) de France," before the seigniorial as well as the Royal Courts (about 1282). The "Coutumes Notoires du Chatelet," consis ingof one hundred and eighty-six articles, give summary of the decisions rendered by the " Chatelet," from 1300 to 1387, upon the doubtful points of the " Coutume de Paris." Sometimes the Provost of Paris gives an opinion after having consulted the Committee of Burgesses (" Parloir aux bourgeois "), a body which gave its opinion only after consultation with the chief citizens. Sometimes he holds an in- quest by " turba" (ante, § 10), or applies to the magistrates of his court (lieutenant and councillors), to the advocates, examining magistrates, and attorneys connected with it, or to gentlemen, burgesses, and artisans of Paris. In one or another of these ways he finally proves and settles the usage as followed in Paris ; the decision by which he judicially settles the notoriety of the Custom becomes the law of his court ; parties who afterwards rely upon this usage need not prove its existence. To these sources we may add the manuscript "Styles" (ante, par. 3) of the " Chatelet," and the Criminal Register of the "Chdtelet" of Paris from September 6, 1389, to May 18, 1892. (6) The "Parloir aux Bourgeois" (Committee of Burgesses) was the place where the water merchants met, — a brotherhood which recalls the old " nautae parisienses " of the early times of the Roman Empire. It had, at least in the 1200s, a Provost and Aldermen. In the 1300s it was the civic body. This powerful brotherhood constituted a legal person, a sort of barony, and, as such, possessed a very extensive jurisdiction, — right of admin- istering justice over certain streets, a commercial jurisdiction over 1886, p. 80 : "The Chatelet was the tribunal of the kingdom in which the surest, the least dilatory, and the simplest procedure was followed." ' Ed. Lauriere, following the "Coutumes de Paris," 1696, and his Com- mentary upon these Customs, ed. 17/7, 205; Ch. Morlet, "Le livre des Constitucions demenees el Chastelet de Paris," 1883 (with a learned in- troduction). 238 Chap. I] THE BOMAN LAW AND THE REGIONAL CUSTOMS [§ 14 the other corporations, a non-contentious jurisdiction over the deeds which individuals presented for its seal of authentication. § 14. Deeds, Cartularies, Form-Books, Ecclesiastical and Feudal Land-Registers. — Individual Deeds, and collections or Cartu- laries, become so numerous that we must give up any attempt even to indicate the chief sources where they are to be found. There is no local history which does not contain a large number of them. In making use of them, we must not lose sight of the fact that they were drawn up to regulate the relations of individuals, and that they deal with matters entirely local in their character. To come to conclusions which can apply over an extensive region, one must compare a sufficiently large number of local documents. They must be studied almost domain by domain, at any rate cartu- lary by cartulary, after which one must pass on to the provincial compilations, documents accompanying the history of provinces and towns, and compilations of documents made with a view to these histories (especially by the Benedictine monks) and pre- served in manuscript form at the National Library, and finally the texts of the " Gallia christiana." Then will come the compilations covering vast regions, such as those of Dom Housseau for Anjou, Touraine and Maine, of Dom Fonteneau for Aquitaine, and the collections of charters for frontier regions such as those of Mireeus, TrouUIat, and Lacomblet. The whole will be completed by general collections of charters and diplomas, such as those of Dom Bouquet, the " Spicilegium " of D'Achery, the " Miscellanea " of Baluze, and the manuscript collections of Duchesne, Baluze, Dupuy, etc., documents taken from departmental archives and especially from the collection by Moreau. These charters should be interpreted by means of chronicles, histories, the lives of saints, miracles, and collections of letters (Gerbert, Yves de Chartres, etc.). (1) Public and Private Deeds. — The deeds of the feudal period which have come down to us individually, and not as a part of a cartulary, are, for the most part, judicial deeds, notarial deeds, or deeds of some public officer. Further on we will deal with the last of these when speaking of the Royal Ordinances. We have already dealt with judicial deeds in speaking of the memorials of decisions. As to notarial deeds (the main rules for their execution have been already noticed) it remains to mention some variant practices. (2) In the south of France, in imitation of the Itahan practice, " tabellions," or Notaries Public, gave authenticity to the deeds drawn up by them. They sat in the public square in booths which must have very much resembled the stalls of the public scribes 239 § 1-i] FRANCE [Part HI of our day. There, in the presence of the parties and the witnesses, they took down the transaction — first writing notes in a register, and then in another register the draft as finally developed. The oldest of these registers now preserved date from the 1200 s. They were called Cartularies or Protocols. The parties received a copy of this, the " instrumentum publicum " or " carta in forma pub- lica," delivered to them by the notary; this was the " grosse " (engrossed copy). In order to confer upon it " authenticity" {i.e. an official form and consequently self-executory and probative force), the notary had to add his subscription, that is, his name, a mention of the authority (king, lord, etc.) from whom he held his title, a mention that he was acting at the request of the parties, recital of the affixing of his sign manual (or distinctive personal scroll), and this sign manual itself. Towards the end of the 1300s there appeared at the foot of the deed only the recital of the sign manual ; the other recitals had been placed at the beginning, where the notary set forth his names and qualifications. In the South, the subscription and the notary's sign manual gave the deed the effect of an official document. But in the North the notarial deed was not " authentic " until the seal of a court had been placed upon it ; the notary had ho authority of his own, he was only an assistant of the lay or ecclesiastical court. After the time of Philip the Handsome, he no longer entered anything except the minute of the transaction upon his register or protocol ; the royal " tabellion " (there was one at the seat of every royal court) delivered engrossed copies taken from this draft; another officer, the Keeper of the Seal, affixed the royal Seal to them. In Paris, there was only a Keeper of the Seal ; there was no " tabellion " ; the corporation of notaries of the " Chatelet " made both drafts and engrossed copies. Charles \T placed them under the franchise of the King ; thenceforth they were authorized to place the royal escutcheon upon their houses ; and this is the origin of the escutch- eons which still serve to indicate the offices of notaries. After the time of Philip the Handsome, the sovereign sought to restrict the discretionary jurisdiction of the lords, and to reserve the ap- pointments of " tabellion " and notary for the royal prerogative. It succeeded to the extent of giving to deeds of seigniorial notaries a rank far inferior to deeds of the royal notaries. The royal " tabellions " and notaries could draw deeds only within the limits of the jurisdiction of that royal court from which they held their authority (excepting those of the " Chatelet," who could draw deeds anywhere within the entire kingdom) ; but their deeds had 240 Chap. I] the eoman law and the eegional customs [§ 14 executory force throughout the realm, and were accepted in every court. Deeds acknowledged before seignorial notaries were " authentic " only if made between persons domiciled within the lord's domain and amenable to the justice of the lord. Even when authentic, they had executory force only within the lord's domain ; for outside of its limits the lord's seal was not recognized. Deeds under private seal, or private deeds " sensu stricto," had to be acknowledged before a court, in order to be given credit as genuine and to have executory force. They are especially fre- quent during the monarchic period, when the use of writing was becoming widespread.^ (3) Formularies. — We cannot here enumerate the collections of forms; they are too numerous. Treatises upon the office of notary and upon procedure for the most part contain forms ; they occur in the Books of Customs, almost everywhere. Notaries, court clerks, and scribes make current use of them, as in the mo- narchic period or in our own day.^ (4) Feudal Registers. — " Polyptyques " (a term inherited from the Theodosian Code), or registers of lands and feudal duties, continued to be drawn up during the feudal period; but those which are entirely ecclesiastic take the name of " Pouilles," in the common tongue ; the others are seigniorial " Terriers." " Pouilles " are registers containing the list of the ecclesiastical benefices of a province, a diocese, or an abbey. The clergy them- selves entered in them a summary of their title-deeds ; they were not looked upon as proofs in case of litigation, but they furnished information often deemed sufficient when title-deeds were lacking. " Terriers." " Acknowledgments," " enumerations," " feudal recognizances " (documents in which vassals furnished proof of their obligations to their lords), were recorded in writing at an early period. They are often found in the feudal cartularies of the 1200 s. The lords were not satisfied with making collections ' On the foregoing subject, see Bauby, " Responsabilite civile des notaires," 1894 ; Pappafava, " Gsschichte des Notariats," 1895 ; Giry, " Diplomatique" ; Bresslau, "Urkundenlehre." ' The bibUography of these formularies has not been made. There are a great many forms in the " Formul. Tabellionum" of Tenerius and the "Arsnotaria"of Raineriusof Pirouse, "Bibl. jurid. med. SBvi," published by Gaudenzi; Giry, "Diplom.," p. 764 (note). Cf. for the monarchic period, "Le nouveau et parfait notaire," by De Visme, 1749; "La science par- faite des notaires ou le Parfait notaire," by CI.- J. de Ferrikre 1741 (new edition). In the 1400s, Metz had forms to be used by the municipal magistrates, the "Style du Palais," and, for the notaries, the "Style de r Amandellerie " (1408 to 1431): Bonvalot, "Hist, du dr. de la Lorraine," p. 213. 241 § 15] FHANCE [Part III of indi^'idual deeds; they proceeded to compile a census or general enumeration of their fiefs. In 1171, the King of England, Henry II, caused one of the great " recognitiones feudorum " to be made in Normandy, and its result was to double his revenues; for not only were previously existing rights settled thereby, but the lord took advantage of the opportunity to annex all lands the status of which was not settled, fiefs whose tenure was uncertain, and freeholds which their timorous owners converted into fiefs. Under pretext of settling their rights the powerful lords extended them. The, census of Aquitaine, in 1272, was made by issuing letters of convocation addressed to the residents of the Duchy, even to those who owed nothing to the King of England and held nothing from him; they were questioned by commissioners in the presence of witnesses; they made their declarations under oath, stating that they held such a piece of land from the King charged with the rendering of homage or rents, and the notary drew up a deed to that effect. The registers which contained these censuses or recognizances were given the name of " Terriers " or " papiers terriers." They are seigniorial cadastral surveys. Their com- pilation was regulated during the monarchic period, in which they were defined to be registers containing the declarations of the individuals who held of a lord's domain (vassals or copyholders), with the details of the dues, quit-rents, and rent-charges. § 15. Commercial and Maritime Law.^ — The uniformity of commercial and maritime Customs is in contrast with the extreme variety of civil Customs. The maritime law especially had, in the Middle Ages, become international, whereas the land usages varied from one parish to the next. In the 1200 s the " Consulat de la Mer " on the Mediterranean, and the " Roles d'Oleron " on the Atlantic Ocean, form the common law of maritime commerce. This was due to the fact that the conditions of this commerce were everywhere uniform ; whereas local customs and the political and economic status which is the basis of civil law varied from country to country and from one lord's domain to another. Commercial law on land is found especially in municipal charters, the by-laws of 'Editions: Pardessus, "Collection des lois maritimes anterieures au xviii sieole," 1828-1845; Travers Twiss, "TheBlaokBookof the Admiralty," 1871-1876. Bibliography: GoWsc/i?rei(i«, " Handbook des Handelsrechts," vol. 1, " Universalgeschichte des Handelsrechts," 1891 (3d. ed.), gives a detailed bibliography upon the subject; Lyon-Caen and Renault, "Cours de droit commercial," 1889; Pigeonneau, "Hist, du commerce de la France," 1885-89; Brunner, "Encyclop." of Hollzendorff, 5th ed., 1889, p. 305; Arthur Desjardins, "Introduction historique i, I'etude du droit commercial maritime," 1890 ; Sc'hupfer, p. 301. 242 Chap. I] THE ROMAN LAW AND THE EEGIONAL CUSTOMS [§ 15 associations, and the regular Books of Customs. But there are special documents about fairs, where the merchants of all countries met together and had their own special judges; for example, the " Privileges et Coustumes des foires " (1200 s) and the " Coustumes stille et usaige de la court et chancellerye des foires de Champaigne et Brye" (1400 s).i The maritime legislation of the inhabitants of Rhodes ^ was so celebrated among the ancients, that its name has been given to a private compilation of nautical usages, made in the 1000 s ("Droit maritime des Rhodiens")-^ Book 53 of the Grseco- Roman " Basilica " was a true maritime Code; but it has not come down to us. As it was in Italy that commerce flourished especially, so it was in that country that during the Middle Ages the first collections of commercial law were compiled. The Statute of Trani (" Ordinamenta et consuetudo maris edita per consules civitatis Trani ") is the oldest of them, if it dates, as is stated at the beginning of it, from the year 1063.^ The Table of Amalfi ("Capitula et ordinationes curiae maritime nobilis civitatis Amalfae"), a manuscript of which was discovered in 1844, seems also to date back to the 1000 s.^ Venice had her statutes (1205-29-55; 1302 -46), the influence of which was felt in the usages of Dalmatia. Pisa had her " Constitutum usus," 1160, her " Breve curiee maris," 1289 and 1305, which had an influence over the laws of her trib- utary cities ("Breve portus kalaretani," 1318); and Genoa likewise (statutes of Bonifacio, of Savona, etc.). But it was not very long before these local laws were, if not supplanted, at least strongly affected by a very great work which eclipsed them, the " Consulat de la Mer." The " Consulat de la Mer," * containing ^ Bourquelot, "Etudes sur les foires de Champagne," 1865 (Memorial presented to the Academy of Inscriptions, series II, vol. 5). Cf. details and bibl. in Goldschmidt, p. 224. 2 Digest, "De lege Rhodia de jactu," 14, 2. ' Pardessus, "Coll. des lois maritimes," I, 208. « Pardessus, "Coll.," vol. V ; De Rozihre, "R. h. de dr.," 1855, p. 189; Travers Twiss, "Black Book," IV, 521. — Detailed bibl. in Schupfer, p. 309 (with discussion as to the date). ^ Ed. Volpicella, "Consuet. d. Napoli," 1844; De la Primaudaie, "Et. sur le commerce au moyen age," 1848 ; Alianelli, " Antiche consuet. e leggi maritime delle provincie napoletane," 1871 ; Travers Twiss, "Black Book," IV; bibl. in Schupfer, p. 318; Pardessus, "Coll.," I, 142; V, 223; La- band, "Z. f. Handelsr.," 1864. — In the i400s it is called "Tabula pro- thontina." * Editions: Pardessus, "Coll. des lois maritimes" (after the edition of 1494) ; Capmany, "Cddigo de las costumbres maritimas de Barcelona," 1791 (after the edition of 1502) ; Travers Twiss, "Black Book," III (on the edition of 1694 and the Mss. of Paris, which, however, were not sufficiently studied). — A critical edition is needed. 243 § 16] FRANCE [Part III the rules which were to be followed by the commercial judges or judge-consuls, M-as the Book of Customs of the entire Mediterranean. In its existing form it does not date back farther than 1370; but there were earlier editions; probably the original edition dates from the end of the 1000 s or the beginning of the 1100 s. It was at that time that the progress made by commerce led to the codification of the customs and traditions which flourished along the shores of the Alediterranean. It is also very probable that the original text (which was in the Catalonian language) saw the light at Barcelona. It is not a legislative work, emanating from the kings of Aragon; it is a Book of Customs (far more extensive than the " Holes d'Oleron "), a treatise with explanations of the text, rather than a Code. It maintained its authority almost up to modern times; in the 1700 s the Italian jurisconsult Casaregis was still taking it as the basis of his " Discursus legales de commercio " (1718), and adding thereto the decisions of the Rota of Genoa, a tribunal very renowned in maritime matters during the 1500 s and 1600 s. The " Roles d'Oleron," a compilation of decisions rendered (it is said) by the sea-judges of the island of Oleron, date, in their oldest form, from the 1000 s or 1100 s. Before long they became the com- mon law of the Western Ocean, as the " Consulat de la mer " was the Code of the Levant. To so great an extent did they become the common law that their French origin was and still is disputed. In the Netherlands they are called " Jugements de Damme " or " Lois de Westcapelle "; they form a part of the " Black Book of the English Admiralty," and they are found once again in the " Ordinantie " of Holland (1400 s), in the maritime law of " Wisby," an island of Gothland (1400 s), in the " Recessa " of the Hanseatic league, and in the " Siete Partidas " of Castile. In the 1500 s, the " Guidon de la ]\Ier," drawn up at Rouen by an unknown author, is primarily a treatise upon maritime insurance; it was regarded as a good guide upon this subject for the f ramers of the Ordinance of 1681. § 16. Public Law, and the Legal Philosophies. — Public law belongs rather to the domain of theology than to that of private justice. It is in the works of the theologians especially that we must seek to find the theocratic and ultramontane theories, the imperialist or monarchic systems of the divine law, and the heterodox doctrines of the social contract and national sov- ereignty. (1) The Scholastic Philosophy. — In the 1100 s, Saint Bernard 244 Chap. I] THE ROMAN LAW AND THE REGIONAL CUSTOMS [§16 (1153), and Peter Lombard, the " Maitre de sentences " (1160), do not concern themselves in general with the political problems. But this ceases to be so with the scholastics of the following period. Under the influence of Aristotle, they gave up the theological con- ception of the State, and substituted for it a purely rational con- ception, according to which the State is not the direct work of God, but that of human reason, — a secondary cause through which as an intermediary the first cause acts. With this concep- tion as a basis, theology maintained its position in the quarrel between the priesthood and the Empire. Apparently it could defend it even better; for obviously the Church, the image of the city of God, is above the city of men, which is all too' often erected in sin and iniquity. But it also follows that the system of the latter is found to be open to discussion, as everything is which comes within the domain of reason; it may depart, and does in fact depart, from the early theocratic type in order that it may give way to political theories of a more modern character. This is noticeable especially in the works of the "Angel of the School," Saint Thomas Aquinas (1225-1274), in his " Summa theologica," the "Com- mentary on the Sentences " and the " De Regimine principium "; his political system is a combination of the liberal theories of Aris- totle and the theocratic principles of the Middle Ages. (2) The Emyire and the Legists. — The rights of the Empire were defended by Henry IV and his partisans against Gregory VII, in letters, and even in a great treatise, " De unitate Ecclesise con- servandse," written a short time after the death of Gregory VII. But the special partisans of the Empire are the Legists (or civil jurists), with their idea of a universal monarchy which should be a continuation of the Roman Empire. The independence of the Emperor with regard to the Church, in matters concerning the tem- poral power, is one 'of their essential dogmas. Dante and Occam are in these ranks. Marsilius of Padua (1270-1342 or 1343), another partisan of Louis of Bavaria, was a dangerous ally for the Empire; he comments uporr Aristotle in his " Defensor pads " (finished before July 11th, 1324), and, starting with the principle of the sovereignty of the people, he gives the people the right of appointing, of judging, and of deposing kings. This democrat is at the same time a decided champion of the liberty of conscience, ■ — something never before seen at that period. He had as his collaborator a Frenchman, Jean de Jandun. (3) The Gallican Doctrines were formulated and defined in the documents bearing upon the quarrel between Boniface VIII and 245 § 17] FRANCE [Part III Philip the Handsome. They were upheld at the Conference of Vincennes, in 1329. The Virgin's Dream ("Somnium viridarii "), a treatise of 1376, has been termed the " Grand Coutumier " of the liberties of the Galilean church. With the schism in the West (1378-1431), the Holy See found that it had an opponent even upon spiritual grounds. The most eminent personages of the Church, Gerson, Chancellor of the University of Paris (1429), P. d'Ailly (1420), and Nicholas of Clemangis, were seen up- holding the superiority of the Council over the Pope, and at the same time the independence of the State against the Church. (4) England. — Liberal ideas had already made their appearance in the writings of Bracton. The famous maxim " Quidquid principi placuit legis habet vigorem," so often invoked by the partisans of absolute power, is interpreted by him to mean that the force of law must be given, not to everything that the king may will in his own pleasure, but to what he does upon the advice of his magistrates who deUberate and decide. The " Compendium morale" (a commentary of the 1300s), by Roger of Waltham, Canon of St. Paul's, a treatise dealing with the virtues and duties of the sovereign, has a tendency to exaggerate the ecclesiastical power. Wyclifle, as early as 1368, maintained his bold theses calculated to overthrow all authority. The great political theorist of England was Sir John Fortescue (about 1476), author of " De laudibus legum Anglise " (1468-1470) ; in this he shows the advantages of limited monarchy over despotic monarchy. In " The Governance of England," he contrasts the "dominium regale," or absolute monarchy, of France with the constitutional system of England, which he calls " dominium politicum et reale," a monarchy with a certain amount of republican government thrown in. The power of the king is there derived from the people; he cannot make any laws nor levy any taxes without the consent of the nation through its representatives in Parliament. In France the representative system had be€#i abandoned; ownership on a large scale prevailed, whereas England was covered with small holdings; the peasant in France was wretched, while in England he enjoyed a comparative well-being; the French were lacking in courage, which prevented them from rebelling; France had none of those bold bandits to be found in England, where there were more men hanged for robbery and murder in one year than in France in seven years. § 17. Eoyal Legislation. — (1) Form. — The main legal materials 246 Chap. I] THE ROMAN LAW AND THE REGIONAL CUSTOMS [§ 17 of the feudal period in Europe consisted in the Customs and the Roman law. Nevertheless, the royal ordinances, both in France and in other countries, were one of its important elements, espe- cially in matters which concerned public law. How have the Royal Enactments come down to us? — For brevity's sake we shall treat together the royal enactments of the monarchic period as well as those of the feudal period. They have come down to us sometimes in the originals, sometimes in the form of copies, and especially in the form of copies made in registers. (A) Reg- isters of the Royal Chancery. " The Treasury of Charters (about 1194) was divided into two parts: the 'Layettes' (boxes, coffers), which contained the political and domanfel documents, and the Registers, into which were copied enactments emanating from the King." These registers were kept up from 1302 until 1568,^ though not all the royal enactments were transcribed. (B) Registration by the Parliament, etc. Enactments of general interest, such as the Ordinances, were sent to the royal Courts, such as the Parliament, the Chamber of Accounts, the Court of Finance, the Court of Aids, to the sheriffs, and the various bodies who were to enforce them.^ Here they were copied upon their registers. As is well known, this usage, introduced for the sake of form, afterwards permitted the court of Parliament to play an obstructive part in politics.' (1) Form of the Royal Enactments.* — From the point of view of form, the enactments of the Kings of the third dynasty may be divided into diplomas, letters patent, and sealed letters.^ The Diploma {" carta ") was the most formal enactment which could issue out of the Royal Chancery, and was used for proving ordi- ' Registration in the Courts of Justice caused the registers of the Chancery to fall into disuse. In England the Chancery transcribed royal enactments upon long rolls; there were "rotuU Normannise " or "Vas- coniae," or "Francise," containing a copy of enactments relating to Nor- mandy, Aquitaine, or France : F. Michel, " Roles gaseous " (1242-1254), 1885 (unpublished documents). 2 Ordinance, VII, 112. The text of the Ordinance was "written in big letters and posted up " in the bailiwicks and seneschals' jurisdiction in order that it might be brought to the knowledge of everybody (1396). C}. ibid., I, 105, 484. ' The clerk mentioned this formality in the original : " lecta et publicata " (publicly read in audience) "requirente procuratore generali regis, Pari- sius in Parlamento " (with the date and the signature). They added "de expresso mandate regis," when the Parliament had refused to register and had only been compelled to do so by a "lit de justice" or letter of com- mand. ' See especially Giry, "Diplomat," p. 705. * The documents of the English kings are divided into "charters " (less complicated than diplomas, which ceased to be used after the time of Henry III), "letters patent," and "sealed letters" ; Giry, p. 797. 247 § 17] FRANCE [Part III nances, important judgments, etc. Already becoming rare under Saint Louis, diplomas ceased to be used under his successors, mere letters being deemed sufficient. Royal Letters were in more simple form than diplomas; once the latter had been abandoned, by Royal Letters ^vere understood all enactments of the King, whether they emanated from the Chancery (Letters Patent) or from the sovereign himself (Sealed Letters). Letters Patent had a seal as the only indication of their validity. Afterwards certain forms of Letters Patent came to resemble Diplomas and to be re- served for the more important enactments. Letters with Stamped Seal were open, bore at the beginning the statement " De par le Roy" (on behalf of the King), and at the end the date and the year, the signature of the King, and the stamp of the Privy Seal. Sealed Letters, closed and sealed with the Privy Seal or the King's signet (" cachet "), formed his private corre- spondence, and served at the same time to transmit his secret orders, and to deal with affairs of a confidential nature. The customary Final Clattse (at least after the 1400s) was: " Quoniam sic fieri volumus," " for so do we will," " for this pleases us and we will it to be done," " for such is our pleasure." This last formula prevailed under Louis XIV, and is a translation of the Roman principle "Quidquid principi placuit legishabet vigorem."^ After the time of Francis I the King's signature was a guarantee of authenticity, as well as the seal. It was not always an autograph signature, but it had the appearance of one; for the secretaries who were authorized to reproduce it had to imitate the royal signature; thus they were called " secretaries of the hand." Dur- ing the 1300 s, the signature of the notaries of the Royal Chancery (clerks of the Privy Seal, notaries and secretaries of the King) served to prove the authenticity of royal enactments, as the signa- ture of ordinary notaries did for the deeds of individuals. Some of these clerks acquired a prominent position, and in the middle of the 1500 s became Secretaries of State. No Letters Patent could be delivered thenceforth without having been signed by the King and countersigned by the Secretary of State for the department. Such is the origin of the ministerial Counter -signing, — a mere 1 The usual formula was not ' ' car tel est notre bon plaisir," but as early as tlie 1400 s, the expression "le bon plaisir du roi " was used in current speech, and the Old Regime has often been called the regime of "bon plaisir." "Plaisir " and "bon plaisir," moreover, both mean the will of the king: J. Papon, "Les secrets du troisieme notaire," p. 334; De Mas Latrie, B. Ch., XLII, 1881, 560; G. Demante, ibid., LIV, 1893, 86; Giry, ''Diplom.," p. 769; CI. Joly, "Maximes p. I'instit. du roy," 1652, p. 401. 248 Chap. 1] THE ROMAN LAW AND THE BEGIONAL CUSTOMS [§ 18 official form at first, later a certificate attesting that the deed was indeed an expression of the wishes of the King, and to-day in our modern constitutions an important restriction upon the royal authority. § 18. Royal Legislation. — (2) Character and Object of the Royal Enactments. — The royal enactments applicable to the whole kingdom (still exceptional under Saint Louis) only became fairiy frequent after the time of Philip the Handsome. This sort of enactment is called " prseceptum," " auctoritas," " constitutio," "decretum," "edictum," and " pragmatica sanctio," and especially " stabilimentum," " ordinatio " ("establishments," "ordinances"). Enactments which deal with private interests are merely called " Letters." For a long time, however, the terminology was uncertain. (a) Ordinances signified general legislative enactments affecting the whole kingdom or at least the royal domain, — at least since the time of Philip the Handsome, (b) Edicts were only Ordinances restricted to one subject or applicable to a part of the kingdom '{e.g. the "Edict of Second Marriages," 1560). (c) Declarations were enactments interpreting the Ordinances or Edicts, but often altering while extending or restricting them. They may be com- pared with our Regulations of Public Administration, (d) Letters Patent (" sensu stricto") were divided into "Letters of the Great Seal " (sealed in the Great Chancery) and " Letters of the Small Seal " (sealed in the local Chanceries). There was also a distinc- tion between "Letters of Grace," granted as a mere favor, and " Letters of Justice," granted less as a favor than by reason of some equity, (e) Personal Orders of the King were, at first, given by means of commands in the form of Letters Patent, later by letters called " Letters of Stamped Seal," and still later, by means of " Sealed Letters." (/) Lettres de Cachet (letters under the King's Privy Seal) were but a variety of these personal orders. The Ordinance of January, 1560, used the expression for the first time. Complaint was already being made of the abuses to which they gave rise. The employment of "Letters de cachet" became general only in the time of Richelieu, and rose by that period to the rank of a regular institution. They were the means of executing some " reason of State." They were used to summon the political and judicial bodies ; to order them to debate certain questions ; to regulate public ceremonies; and to exile or to incarcerate, as an administrative measure, persons who were looked upon with suspicion by those in power, or who had been guilty of disgraceful 249 § 19] FRANCE [Part III conduct, thus allowing their families to avoid the disgrace of a pubhc condemnation.* § 19. Royal Legislation. — (3) — Principal Ordinances Previous to the 1500 s.^ — Neither the last Carolingians nor the first Capetians enacted any laws. Their Charters contain grants of privileges to religious establishments, to towns, and to corporations. Under St. Louis the progress of the royal authority was evidenced by Ordinances upon the reform of morals {e.g. Ordinance of 1254) which dealt with everything, — administration, justice, finances, and general policing of the kingdom. The famous Ordinance which abolished the wager of battle within the royal domain, and sub- stituted for it the inquest, revolutionized procedure; it is generally dated in the year 1260, but probably it really dated back to 1258. On the whole, the striking feature of this period is that the legislation contained in the Ordinances has practically never dealt with private law; it formed essentially a political and ad- ministrative body of laws. ^ The name was also given to orders of arrest lacking the king's signet, and bearing only the signature and counter-signature of a secretary of State. See Mirabeau, "Lettres de cachet et prisons d'Etat," 1782. - Editions : No complete compilation and no good edition of the Ordinances exist. Consult the following : 1st, the " Ordonnanoes des rois de France de la troisieme race," 1723-1847 (called "Collection du Louvre," the first volumes having come from the royal printing establishment of the Louvre) ; this compilation was begun by Eusebe de Lauriere, and carried on by Secousse, VillevauU, Brequigny, Camus, and Pastoret, and finished by Pardessus, to whom the Academy of Inscriptions confided this task. The Academy of Inscriptions is at the present time engaged in complet- ing the " Collection du Louvre." With this object in view it has had drawn up the "Catalogue des Actes de Francois I," 1887-1898, 7 vols. 2d, "Reoueil general des anciennes lois franeaises de 420 a 1789," pub- lished by Jourdan, Decrusy, and Isambert, 1823-1830 (cited by the name of the latter). 3d, Fontanon, " Edits et Ord. des rois de France," 1580. 4th, Neron and Girard, "Recueil d'Edits et Ordonnances royaux," 1720. 5th, "Conference des Ordonnances" by Guenois, 1660. These various compilations are very inadequate; cf. Laboulaye, "Note de quelques ordonnances" ("Acad. Inscr.," 1853); Aucoc, "Mem. sur les collections des lois ant. a 1789 " ("Acad. so. morales," 1882, vol. 120, p. 43) and the "Institut de France," p. iv. — Cf. bibl. in Camus, p. 204; Viollet, p. 152; Ginoulhiac, -p. 603. For Belgium : "Collection des anciennes Cou- tumes et Ordonnances de la Belgique," 1860 et seq. 250 Chap. II] NATIONAL JURISTS AND KOYAL LEGISLATION [§ 20 Chapter II. Second Period: a.d. 1500-1789 NATIONAL JURISTS AND ROYAL LEGISLATION § 20. Introductory. Topic 1. The Roman Law Jurists § 21. The Humanists. I Baudouin, Doneau, Hot- § 22. The French School ; Cujas, I man. Topic 2. The Official Compilation of the Customs § 23. Reasons and Methods of the I § 24. Results of the Redaction. Redaction. | Topic 3. The Royal Legislation § 25. Introductory. § 26. Ordinances of the 1500 s and early 1600 s. § 27. Ordinances of Louis XIV. § 28. Ordinances of Louis XV. Topic 4. The National Jurists § 29. The Courts and the Bar. § 30. National Jurists of the 1500 s. § 31. National Jurists of the 1600s and 1700 s. Topic 5. Political Philosophy §32. Philosophies of the 1500s I §33. Philosophies of the 1700s. and 1600 s. I § 20. Introductory.^ — In this period the Roman Law kept its position in the south, and reacted upon the interpretation of the Customs in the north. The Customary Law underwent an official compilation. But what distinguishes this period, more than anything else, from those which precede it, is the expansion of legislation, in the form of Ordinances. This is an entirely natural consequence of the expansion of the power of the crown, and of the progress made by the scientific elaboration of the law in the decisions of the courts ^ [§§ 20-33 = Brissattd, section III, pp. 346-414, extracted and con- densed. — Transl.] ':■ 251 § 21] ' FRANCE [Part III and the writings of the jurisconsults. The Ordinances brought about a legislative unity (except that in the field of civil law they left it to the Revolution and the Consulate to complete the work, by wiping out the distinction between regions of Customs and regions of Written Law). These Ordinances were in their day true Codes; they entered the domain which up to that time had been reserved for Custom or the Roman law. They were supplemented by a body of Judicial Decisions, emanating from the Courts of the Parlia- ments and the King's Council, which served to interpret these various sources. It was aided by Juristic Treatises, which beconie more and more profuse and learned. Historical Writings and treatises on public law lead the story quite naturally up to the Revolutionary period. Topic 1. The Roman Law Jurists §21. The Humanists. — The century following the year 1500 (says Pasquier, in his " Recherches de la France ") brought us a new method of studying the law which consisted in wedding the study of law to the humanities, with the aid of a precise and polished Latin. He names as the three earliest " patres familias " of this novel marriage: William Bude, a Frenchman, a child of Paris; Andreas Alciat, a Milanese Italian ; and Udaric Zasius, a German, born in the city of Constance. This scientific and literary revival, the great movement which led to a reformation even of religion, was felt in the study of the law. The Universities were at one time divided between the Bartolists and the innovators. Pasquier also says: "There are to be seen two sorts of legists, of which some are called ' chaffourreurs,' bartholists, and barbarians, and the others pure humanists and grammarians." In France, at least, it was not long before the latter of these prevailed; by the middle of the 1500 s the triumph of the School was absolute. It justified itself both by the excellence of the new method and by the superiority of the men who directed it. Their Method. — The revived worship of the classic era had led to a direct study of sources. Texts which men already possessed were criticised; new ones were discovered, old texts long since forgotten were rediscovered : the " lex Dei," the Theodosian Code, the Basilica, and the commentaries upon them. The number of editions of the Roman laws increased, and became more and more accurate. Until the work of the modern German school, the texts established by the jurisconsults of the 1500 s continued to be almost 252 Chap. II] NATIONAL JURISTS AND ROYAL LEGISLATION [§21 exclusively used. Douaren, who was one of the new men, re- proached the Bartolists for their barbarous language, their lack of method, and their barren scholasticism ; instead of seeking for the truth, they quibbled, and applied themselves merely to. com- bating the opinions of others. Of those who studied under the old school, he maintained, " One can say that they are doctors the first year, licentiates the second, and bachelors the third; by the time they have reached their fourth year they are no longer good for anything. As for me, if I am told to teach a young man law, I begin by making sure that he has that literary tincture without which there can be neither jurisconsults nor statesmen, but only charlatans.". This return to the sources, the literary renascence, led to the abandonment of the manner and the style of the Barto- lists. The new school was an " elegant " or Humanist school. The finished expositions of its most illustrious representatives are in contrast with the prolixity, the dulness, the pettiness, and the interminable digressions of the writers of the 1400 s. The new works differ still more by reason of their use of the Historical Method. The true successors of Bartolus were Dumou- lin and the practitioners. A marked divorce took place between practice, as represented by the latter, and the historical science of the Roman law, as cultivated by such men as Cujas and Doneau. Hotman was well aware of this; in his " Antitribonianus" he shows that the new direction taken by the study of the Roman law was bound to result in a revision of the civil law of France; he asks for a Code; he proposes to amalgamate the Roman law, the Cus- tomary law, and the decisions, reduced to one or two good-sized volumes, in ordinary and intelligible language; it would cut short chicanery (he asserts) and save a great deal of time for the young men in the Universities. " The Roman laws " (said he) " are in- applicable on innumerable points. And even where they could be applied practically, their text, once confidently accepted, is to-day the subject of a critical revision. The Roman law of such men as Gaius, Julian, and Papinian, is not included in the compilation of Justinian, unless it be in fragments, in morsels cut out hap- hazard and placed end to end, without any regard for order and full of interpolations. Under such conditions the Roman law, as studied in the new School, loses all practical mportance." And it was not so absurd to find pleaders resorting to the books of Socin (it is Pasquier who speaks thus of an Italian doctor, Marian Socin the younger) for this reason alone, that he had not lost time in the study of humane literature as Alciat had. 253 § 22] I F.AXCE [Part III ^^'hat can in fact be less practical than the erudite researches of such men as Hotman and Cujas? They and the other adepts of the new School discriminated the strata of various ages in the enormous mass of the Roman law; they discovered, as our geolo- gists did, by digging in the earth, a primary level, median strata, and others of more recent date. They perceived that here was a legal world to be reconstructed, — a world whose formation had required no less than ten centuries. They set to work, using an extraordinary energy, by attacking the law from without, using the aid of philology, literature, and history. Their aim was to unearth, from beneath its Byzantine covering, the classic law in all its pureness. For the first time the importance of these auxiliary sciences, hitherto so neglected by jurists, began to be understood. " Sine historia caecam esse jurisprudentiam," Baudouin was wont to say. Here we have the password of the new school. Rabe- lais does no more than paraphrase it in his "Pantagruel," II, 10 : " Inasmuch as the laws are weeded out from the midst of moral and natural philosophy, how can those fools understand them who (God knows) have made less study of philosophy than my mule? As to the humanities and the knowledge of antiquities and history, they were about as much burdened with them as a toad is with feathers, although the law is full of them and without them cannot be understood." § 22. The French School; Cujas, Baudouin, Doneau, Hotman. — The initiator of the new method was, first and foremost, the Mila- nese Alciat, who taught at Bourges from 1527 to 1532. But after him the greatest names belong to France. " Jurisprudentia romana, si apud alias gentes extincta esset, apud solos Gallos reperiri posset," said the Englishman, Arthur Duck. Muret also assures us that one can only learn the civil law in France, and he adds (which is an exaggeration) only with Cujas. If Cujas does indeed come first, he is closely followed by Doneau, Douarex, Baudouin, and Hotman. With them we should include the learned Archbishop of Taragon, Antoine Augustin, and the German \'an Giffen ("Giphaxius"). In the 1600 s, such men as Godefroy, Denys (died 1622), the editor of the " Corpus juris civilis," and his son Jacques (died 1652), who worked twenty years upon the re- construction of the text and on a Commentary on the Theodosian Code, Axtoixe Favre, president of the Senate of Chambery (died 1624), author of the " Rationalia ad Pandectas," and of the " Codex Fabrianus," Fabrot of Aix (died 1659), editor of " Theo- phileus " arid the " Basilica," carried on with brilliancy the work 254 Chap. II] NATIONAL JUBISTS AND ROYAL LEGISLATION [§ 22 begun by Cujas and the Doneaus. In the 1700 s, Pothier sums up the labors of the School (and especially of Cujas) in his "Pan- dectse Justinianese in novum ordinem redactse " (1748) ; in it he kept the general division of the "Pandects" into books and titles, but in each of these the subdivisions, instead of following one an- other without any order, are methodically arranged and connected. A sketch of the life and the work of Cujas will give one an idea of this school, which was one of the glories of our old France. Jacques Cujas (Cujacius), the son of a fuller, was born at Toulouse in 1522, and died at Bourges on October 4, 1590. A pupil of Arnaud Ferrier, one of the teachers won over to the method of Alciat, he opened at Toulouse, as early as 1547, a free course of lectures on the Institutes. In 1554 he left this town, and, if we may believe a tradition which has been much disputed, it was because of a defeat sustained by him in an open competition for the attain- ment of a chair in Roman law. It is said that Etienne Forcadel (of Beziers) was preferred to him, — which amounted to the same thing (according to Gravina) as preferring a monkey to a man. The reason why Forcadel succeeded (assuming him to have beaten Cujas) is twofold. The University of Toulouse was at this time still very much attached to the Bartolist school, and Forcadel belonged to this school (as witness the following utterance of his, "Patricios appelloeos qui sunt de Bartoli familia,reliquosplebios") ; this was a prime reason for conferring upon him the chair to which he aspired. Besides this, Forcadel had some claim to this chair, for he had had a long career as a teacher and was a man of gifted appearance, facility of speech, a skilful rhetoric (a -bad style, to be sure, but one very highly esteemed at that time), many traces of which are disclosed in his books. Dumoulin seems to have pro- fessed to have some esteem for this jurisconsult, whose rivalry with Cujas has immortalized him. In November, 1554, Cujas, attracted perhaps- by the offer of better treatment, replaced at Cahors the Portuguese Antony of Govea. In July, 1555, we find him at Bourges, succeeding Baudouin. Douaren and Baudouin, followers of the same method, seeing in Cujas a dangerous rival, aroused so many enemies against him, both among the students and in the municipality of Bourges, that before long he left the town. In 1557 he withdrew himself to Paris ; until Valence offered him a stipend of 600 livres to occupy a chair at that University, which he accepted. So great was his reputa- tion already that the professors of Valence gave him their highest appointment, though some of them had had as much as forty 255 § 22] FEANCE [Part III years' experience. The death of Douaren, which took place in 1559, allowed him to return to BourgeSj his patroness the Duchess of Berry at once recalling him. He was sufficiently generous to avenge himself upon Douaren by delivering a eulogy upon him to his patroness. When the latter became Duchess of Savoy, she offered him Govea's chair at Turin; whether to show his gratitude, or to study the manuscripts in the Italian libraries, or to escape from the troubles which threatened France, Cujas accepted it (1566). But his stay in Italy was not long. Italian life was un- congenial. As early as 1567 he had determined to return to France. But he could not go back to Bourges, where his chair was filled by Francois Hotman. So once more to Valence he went, yielding to the entreaties of its inhabitants and of the Bishop John de Montluc, his friend. But again he left Valence, this time for good and all, in 1575, and now returned to Bourges. Here he was no happier than he had been at Valence, for within a year he left and settled at Paris. The Parliament of Paris, by Order of April 2, 1567, gave him authority to teach Roman law publicly, thus making in his favor a notable exception to the rule {ante, § 7) which forbade this teaching at the University of Paris. In 1577 he once more took up his abode at Bourges, nor again left it untU his death in 1590. As a Man. — This nomadic life of Cujas was no less that of such men as Baudouin, Doneau, Hotman, and Dumoulin. In this respect Cujas was quite in keeping with the times. So also his violent criticisms of his adversaries; they too treated him badly. To-day such amenities are exchanged only between intimates; in those days they were printed in great works, to lend more spice to the argument. In the furious conflict of minds of that time, many jurisconsults were noted for their harshness and extreme language. Hotman and Doneau risked their lives in the cause of reform; President Favre was an ardent Catholic; Dumoulin a most im- placable Galilean. As a Teacher. — It has been asserted that Cujas had not all the gifts of the teacher; " his delivery was hasty, his voice uneven, his pronunciation indistinct. But these defects were compensated for by an authoritativeness, a methodical treatment, an immense amount of learning, an abundance of ideas, and the animation con- ferred by keen thought." He prepared his lessons with a con- scientiousness rarely seen. He also had the first of all good qualities which should be possessed by one who teaches, — he endeared him- self to his scholars. " He lived upon terms of intimacy with them, 256 Chap. II] NATIONAL JURISTS AND ROYAL LEGISLATION [§ 22 often invited them to come to see him, received them at his table, had excursions for them in the country, took some of them to board in his house, placed his Hbrary at their disposal, lent them books, and even advanced them money." ^ As a Jurisconsult. — The most famous of his writings are his " Commentaries upon Papinian " (published after his death), and his " Observationum et emendationum libri XXVIII " (published from 1566 until his death, except the last four books, which were edited by Pithou after his death) . His style of work was analytical, whereas his rival for fame, Hugues Doneau, adopted the synthetic method in his " Commentarii de jure civili," termed " on the whole about the best systematic exposition of the Roman law " until our own century. The German jurisconsults followed his model; the French on the other hand have preferred to adhere, with Cujas, to the exegetic method. Bourges, in those days, was famous for other professors than Cujas. Francois Baudouin (Balduinus), born at Arras in 1520 (died 1573), after having been secretary to Dumoulin, opened a course of free lectures in Paris in 1546. He afterwards taught at Bourges, Strasbourg, Heidelberg, Paris, and Angers. His fluctuat- ing religious opinions and more than suspicious orthodoxy led him to leave France, to go and teach in Germany. He had been sum- moned to the University of Bourges, then the most celebrated of French schools (" the great market for science," in the phrase of Hotman), by the Duchess of Berry, Marguerite of France, daughter of Francis I, in her capacity of protector of science and literature, upon the advice of her Chancellor Michel de L'Hospital. He has been reproached for his versatile character; he changed his religion seven times, Beze tells us. This is not accurate; his reli- gion was tolerance and freedom of conscience; upon this point he never varied, but it was enough to draw down upon him the general hatred. He must be ranked with liberals like L'Hospital and de Thou, who desired reform (for they could not conceal from them- selves the abuses under which the Church was suffering), but reform 1 [" The learned Cujas had, in spite of his sedentary pursuits, led a very wandering life ; he died at Bourges in the year 1590. ' Sedentary ' pursuits is perhaps not exactly what I should call them, having read in the ' Bio- graphie Universelle' (sole source of my knowledge of the renowned Cujacius) that his usual manner of study was to spread himself on his belly on the floor. He did not sit down, he lay down ; and the ' Biographie Universelle ' has (for so grave a work) an amusing picture of the short, fat, untidy scholar dragging himself ' a plat ventre ' across his room, from one pile of books to another." (Henry James, "A Little Tour in France," XII, "Bourges.") —Ed.] 257 § 22] FRANCE [Part III without violence and without schism. Would an apostate have hesitated about justifying the massacre of Saint Bartholomew upon the demand of the Court? Baudouin had sufficient courage to refuse. As a jurisconsult he is one who did most towards intro- ducing the historical method into the study of the Roman law. DouAREN (Duarenus), born at ^Nloncontour, C6tes-du-Nord, 1509, died at Bourges, 1559. He gave up teaching in 1548 for the bar, but he was offered such appointments that before long he came back to teach at Bourges, and there brilliantly expounded the doctrines of his master Alciat. Hugues Doneatj (Donellus), born in 1527 at Chalons-sur-Saone, a pupil of Coras and of Arnaud Ferrier at Toulouse, of Baron and of Douaren at Bourges, left France in 1572, and died at Altdorf in 1591. He was one of the most bitter adversaries of Cujas. He is the only Romanist of the 1500 s one can think of comparing -wdth Cujas. Though some have erroneously attempted to classify him as a Bartolist, he belongs clearly to the Humanist school. Doneau was compelled to leave France, because of his connection with the reformed religion, and taught afterwards at Heidelberg, at Leyden, and at Altdorf (near Nuremberg) . Francois Hotman, born in Paris, August 23, 1524, belonged to a family which had originally lived in Silesia. His father was a Councillor of the Parliament. He studied law at the University of Orleans, "where still resounded the glory of P. de I'Estoile, the keenest jurisconsult of all the doctors of France." After practising at the bar for a time, he came back to pure science, and in 1546 opened a course in Roman law at the Faculty of Paris. The Reformed religion, which was rapidly spreading, especially in circles of culture, made a convert of Hotman, and he became one of the most notable Huguenot adherents. But this change of religion cost him dear; he broke with his family, and forfeited his property and at last his native country. In 1555 he settled at Strasbourg, where his fame soon became international. Prussia, Saxony, and England made him offers. Finally, enabled to return to France, he went to the University of Valence, and in 1566, to that of Bourges. The massacre of Saint Bartholomew drove him thence, as it did Doneau; thereafter he taught in Switzerland, at Geneva, and at Bale. He died in 1590 in the latter town, broken down with illness and poverty, but preserving to the end and through a thousand trials the enthusiasm of his younger years. His " Franco-Gallia " (1573), one of the manifestoes of the Prot- estant cause, is a screed in favor of political freedom; for he was 258 Chap. II] NATIONAL JURISTS AND ROYAL LEGISLATION [§ 23 ever a champion of free thought and action in both political and religious matters. In his " Antitribonianus " (1567), he pleads the cause of unity of civil legislation. Politics, theology, feudal law, Roman law, were all in his mastery; and throughout he reaches those heights which are attained only by the greatest minds. No doubt, if he had been content to be only a Romanist, he would have equalled Cujas and Doneau. But he was too much a man of action also. His career was so interrupted by political turmoil that we stand amazed at the vast learning to which his writings testify.^ Topic 2. The Official Compilation of the Customs § 23. Reasons and Methods of the Redaction. — Towards the middle of the 1400 s many of the Customs had been put into writing. But official compilations were rare; their need could not be filled by the private Books of Customs; these were inadequate, and were too much encumbered by Roman doctrines and their authors' personal opinions. The tenor of the Customs was uncertain; and the limits of their several jurisdictions were not well defined. Jiidges were forced to resort to the expensive, dilatory, and crude inquest by " turba " (ante, § 10). There was urgent demand to remedy these two great evils, the uncertainty of the law, and the slowness of justice. Charles VII proposed to attain this twofold object by ordering the official compilation of the Customs of the kingdom (Art. 125 of the Ordinance of Montils-les-Tours, April, 1453). When did this Compilation take place f — The Ordinance of 1453 was not put into effect immediately; Charles' successors had to repeat his orders. It was not until towards the end of the 1400 s that the work was begun (Custom of Ponthieu, 1494, etc.). The compilation and the publication took place almost entirely during the 1500 s. Many important Revisions of the Customs were like- wise made during the 1500 s. The Custom of Paris, compiled in 1510, was revised in 1580; that of Orleans, compiled in 1509, was revised in 1583; that of Brittany, published in 1539, was revised in 1580. That such revisions became necessary so very shortly after the first compilation was due largely to the study of the new texts by jurists and judges, and the defects and anachronisms thus disclosed. 1 [On these great French jurists, compare the comments of Professor Maitland, in his "English Law and the Renaissance" (reprinted in "Select Essays in Anglo-American Legal History," vol. I) — Tbansl.] 259 § 24] FRANCE [Part III How ivere the Com'pilations and the Revisions Made ? — The method used was intended to settle beyond a doubt the usages in force and to give them the double sanction of the Provincial Estates and the royal authority. Thus the Custom, even after being codified, preserved its popular character, while receiving the authority of a perpetual and irrevocable law. The five steps in the process were as follows: 1st. Under Letters Patent of the King, ordering the compilation of the Customs of a certain province, the sheriff commanded the various officers, court clerks, mayors, and aldermen, to draft memorials upon the local usages; these formed the preliminary materials for the future Code. 2d. At the same time the Provincial Estates assembled at the capital of the jurisdic- tion. The memorials of the experts were turned over to a com- mission of members of the Estates, who were to compile therefrom a single draft. 3d. The formal draft, thus being recommended, was read in the assembly of the Estates, presided over by members of the Court of Parliament delegated by the King as commissioners for the purpose. The draft articles of the Custom were voted upon by the Estates; if no agreement could be reached, if the majority or the weightier party did not accept them, the disagreement was settled by the Court of Parliament. The part played by the royal commissioners was more subordinate than one would have supposed ; the text of the Customs was primarily the work of the practical men of each locahty. One could not expect from them either polish or method (says Fleury), and so there is little order in their work, and the language is by no means precise. 4th. The final text of the Custom was then read in the formal assembly of the Estates. This was the ofiBcial Publication, and was accompanied by a royal decree by which the King's commissioners enjoined that the Cus- tom should be observed as an inviolable law. Minutes of the whole proceedings were drawn up and were registered, with the official report of the Customs, at the clerk's ofiice of the county or barony. 5th. Finally the text of the Custom was certified by the royal com- missioners and deposited with the clerk of the Parliament; but it was neither verified nor ratified by that Court, excepting those articles upon which the Provincial Estates had not been able to agree. § 24. Results of the Redaction. — (A) Proof. — Each province had thenceforth its local Code; Customs which had been officially settled no longer had to be proved in court. Inquests by " turba " {ante, § 10) became useless and were prohibited (upon subjects pro\ided for in the Custom). 260 Chap. II] NATIONAL JURISTS AND ROYAL LEGISLATION [§ 24 (B) Reforms. — The chief aim was to settle the existing usage " ne varietur "; we must be careful not to regard the compilation of the Customs as a recasting of private law. Nevertheless, the opportunity of making alterations and corrections Vas naturally taken advantage of; the Letters Patent of March 15, 1497, invited the officers, practitioners, and members of the three Estates to give their opinion as to what ought to be corrected, added, diminished, or interpreted. The idea of revision came to light especially at the time of the reformation of the great Customs. Here a double tendency was felt, sometimes in moulding the local usage towards the Roman law, and sometimes in adhering to the fundamental principles of the Customary law. The principal representative of the Romanist tendency was President Lizet (of Berry), and of the opposite tendency President Christophe de Thou, father of the historian. " Lizet," said Guy Coquille, ' held that the Roman law was our common law, and conformed our French law to it as much as possible by putting narrow limits on all that was contrary to Roman law. Master de Thou was of the opinion that the Customs and the French law were our common law, and called the Roman law merely written reason." (C) The Authority of the Custom was no longer the same as of old. Because of its origin and its subject, it preserved its character of a usage; but at the same time the sanction of the King, now added, gave it the form and the force of a Written Law. It must be observed as a statute, a perpetual and irrevocable edict. Hence, (a) to allege and prove any other Custom in opposition to the official Custom was forbidden; (6) it could only be modified by taking the same steps as in the original compilation. (D) Progress toivard Uniformity of the Civil Law. — (a) Reduc- tion of the Number of Customs. Not as many Customs were com- piled as there were lords' domains. Many bodies of local usages were absorbed in the general Customs of the barony, or county, or the province, simply because the interested parties did not make them known; in default of which the usage became void. Al- though France was not yet to have a single Civil Code, still, at least, by these official Customs Provincial Codes were created; of which the minor local Customs were merely the complement. It is generally said that there were at this period in old France sixty General Customs and three hundred Special Customs. This of course was far from being unity of law; but it was a great step in advance, as compared with the earlier days when each petty barony had its own Custom. For the achievement of a uniform 261 § 24] FRANCE [Part III Civil Code, destiny was still to need two centuries of centralization, numerous general ordinances, and a body of decisions and law- books which should accentuate analogies and eliminate diver- gencies between the Customs. At this period of the 1500 s, no doubt, a single Code would have remained a dead letter; ingrained tradition would have been stronger than the law. In Germany, the " Landrechte," or provincial laws, corresponded to our General Customs, with this difference, that they were exclusively the work of the ruler, and that they did not exclude the application of the Roman law as a subsidiary rule. It was only towards the end of the 1700 s that powerful States such as Prussia and Austria ob- tained true Codes, in the modern sense of the word, dispensing with any need for amplication from the Roman or Canon law. (b) Legal Science. The official compilation of the Customs was the beginning of a great scientific movement. The text, being published, was easy to obtain and study. Comparisons were made between the various Customs; lectures were given upon their various articles. By this means, out of the extreme detailed di- versity of rules, there arose general principles, an identical basis, the Common Customary Law of France. These principles now became the special subject of study. Thus unity of legislation was first of all realized' in legal treatises. The most noteworthy of these books were, in t'le 1500 s, the " Institution au droit fran^ais," by Guy Coquille, and the " Institutes Coutumieres " of Loysel, in which the essentia] rules of the Customary law are laid down in the form of proverbs. In the 1600 s we have the " Institution au droit franpais " by Argoxj (1692), a simple and concise exposition of the Customary legislation. The numerous treatises on civil law by PoTHiER, in the 1700 s, were written from the same point of view; Pothier seems to ha\e worked upon a Code, of which there are several editions, representing preferred and variant texts. The Civil Code of 1804 is itself nothing more than the general law or common law of the Customs, rounded out and modified by the aid of the revolutionary law and cleared of its feudal elements. (c) Judicial Decisions, in their turn, followed the impulse given by the treatise writers. The Courts simplified and unified the Cus- tomary law, — giving the Custom of Paris a preponderance, which would have been still more marked had not this Custom had a formidable competitor in the Roman law. This preponderance of the " Coutume de Paris" over the other Customs was due to various causes. 1st. The attraction which the capital already 262 Chap. II] NATIONAL JURISTS AND ROYAL LEGISLATION [§ 25 exercised over the rest of the kingdom. 2d. The tendency of the Court of Parliament to give it preference, a natural tendency be- cause Parliament sat in Paris. 3d. The excellence of its compila- tion (at least in the revision of 1580), and the fact that it represented a well-balanced middle course between Customs which were most opposed to one another. But this Custom was far from covering private law in its entirety, as one may see from a list of its titles : fiefs, copyholds, seigniorial dues, kinds of property, possession, mortgages, rent-charges, prescription, repurchase by the same lineage, judgments, distraint and seizure, servitudes, marital com- munity, dower, guardianship, gifts, wills, succession, public sale. These same subjects are to be found again in most of the other ^Customs. But certificates of civil status, marriage, paternity, and filiation, as well as obligations and contracts, are not dealt with, these matters being regulated by the Ordinances, the Canon law, and the Roman law. Topic 3. The Royal Legislation § 25. Introductory. — The Monarchic Period is naturally the one during which royal Ordinances and enactments predominate in the sources of the law. They increase, expand, and become transformed into Codes, whereas the other sources of the law be- come less abundant. They are rounded out by means of the Regulating Judgments issued by the Parliament and the other supreme Courts, and especially by the Judgments of the Council which, particularly during the 1700 s become a more and more important part of the law. The Regulating Judgments of the sovereign Courts were decisions of these Courts to be observed as laws within the limits of their jurisdiction; they are on the boundary line between statutes and judicial decisions. Our archives contain almost eight hundred thousand Judgments of the Council, covering the last two centuries of the monarchy. This shows us what an important place these enactments had taken in our old legislation. The King's Council was the great political organ of the monarchy; it played a part which may in some respects be compared with that of the English Parhament. Political development had been just the opposite in France to what it had been in England; in England the King's Privy Council, in France the States-General (that is, the body which corresponded to the English Parliament), had become atrophied. Not only did 263 § 27] FRANCE [Part III the King's Council issue Judgments, but Ordinances and Edicts were submitted to it. § 26. Ordinances of the 1500s and early 1600s. — The great Ordinances of the 1300 s and 1400 s reforming the State had often been enacted in sequence to a session of the States-General or similar assemblies. They were often nothing more than the incorporation of the grievances of the deputies of the States-General into a single document; they affected most of the branches of administration, and were a pellmell of the most varied provisions. The Ordinances of the 1500 s retain the same characteristics. Of this sort was the celebrated Ordinance of Villers-Cotterets (August, 1539), under Francis I, dealing with the administration of justice. It restricted the jurisdiction of the Ecclesiastical Courts, required the regis- tration of gifts, on the example of the Roman law, regulated the functions of notaries, and provided for registration of civil status. But its principal reform was in criminal procedure. It substituted the inquisitorial system of the Courts of the Church for the old feudal procedure. Complaint by the injured person and publicity of trial were now supplanted by ex officio prosecution and secrecy of trial. The Ordinance of Moulins (1566) substituted written proof for oral witnesses in civil procedure. The Ordinance of Blois (1579) regulated the form of marriage. A dozen other important Ordi- nances covered between them a large field of private law. About 1580, a celebrated jurisconsult, Barnabt Brisson (Brissonius), Advocate-General of the Parliament of Paris, and author of a widely used dictionary of law (" De verborum significatione "), compiled a systematic collection of the principal provisions con- tained in the Ordinances in force under Henry III. This prince, ambitious, it was said, to rival the glory of such men as Theodosius and Justinian, was about to give it royal sanction; but his death in 1589 prevented this. Brisson's work was published after his death under the title of " Code Henri III, Basilica." § 27. Ordinances of Louis XIV. — The reign of Louis XIV was marked by the codification of numerous branches of law. To Colbert's initiative we owe these great Ordinances, of which the Codes of to-day are scarcely more than revised editions. Like most of the royal enactments, these Ordinances were pre- pared by councillors of State; but associated with them were le ^al and commercial experts, and (contrary to the usual practice) the Court of Parliament took part in drafting two of the most in por- tant, on civil procedure and crimes. The Civil Procedure Jrdi- nnnce of April, 1667, sought to reduce delays and expense and t o give 264 Chap. II] NATIONAL JURISTS AND ROYAL LEGISLATION [§ 28 precision of rules, and at the same time to limit the discretion of judges. The two most prominent in its drafting were Pussort, a Privy Councillor, and Guillaume de Lamoignon, Chief President of the Court of Parliament, a liberal, of noble mind, who stood for the authority of Parliament against the enlightened despotism championed by Pussort. The Criminal Ordinance of 1670 had much merit, but it was marred by numerous features, — the torture ; the "monitories," or warnings (to be given by the clergy to the faithful, inculcating the disclosure of their knowledge under penalty of excommunication, and, in reality, says Voltaire, an in- ducement to the dregs of the people to accuse from mere jealousy the rich and the nobles) ; the system of numerical proofs obligatory on the judge ; lawsuits against corpses, compulsory self-incrimina- tion, and the like. Lamoignon in vain championed the cause of liberalism. It remained for the philosophers of the 1700 s and their disciple Beccaria to revolutionize the penal law by insisting that repression of crime should not ignore the dictates of humanity and the rights of the defence. The Ordinance of 1670 is in fact nothing more than a Code of Criminal Practice; it is not a Penal Code. The Old Regime never had one, and that was not among the least of its shortcomings. The Ordinance of Commerce, March, 1673 (" Code Marchand," " Code Savary " ) , codified the commercial law (on land). Its chief draftsman was a Parisian merchant, Jacques Savary, author of the " Parfait negociant," a book of European fame in its day. The Ordinance of the Marine, August, 1681, codified the maritime law. That law had at an early period ac- quired an international character; and this Ordinance, founded on a careful study of international usage, preserved that character. § 28. Ordinances of Louis XV. — Colbert's work of codification was continued under Louis XV by the efforts of D'Aguesseau {-post, § 31) in various branches. Even the civil lawwas now under- taken. The illustrious Chancellor at one time contemplated uni- fying the entire civil law of the kingdom. But he recoiled before the difliculties of such an undertaking, and was content with a partial codification upon certain topics, such as gifts, wills, entails, and mortmain. 265 § 29] FRANCE [Pabt III Topic 4. The National Jurists ^ § 29. The Courts and the Bar. — The lofty figure of Michel de L'HosPiTAL (died 1573) dominates the pleiad of the jurisconsults of the 1500 s who devoted themselves to the Customs. Brantome calls him "another Cato, sent to rebuke a corrupt world." As a legislator, he put on the statute-book many progressive rules ; as a magistrate, he was one of the first of a long line of illustrious names whose integrity, strictness of morals, learning, and civic courage have placed so high the fame of our judicial body in the Old Regime. Among the chancellors and keepers of the seal, the best known of his successors are P. Seguier (in 1635) and D'Aguesseau (in 1717). Among the chief presidents of the Court of Parliament at Paris may be mentioned Christophe de Thou (died 1582), Achille de Harlay (died 1616), Mathieu Mole (died 1636), and Guillaume de Lamoignon (died 1677). Among the advocates-general of the Parliament the best known are Barnaby Brisson (1570), Jerome Bignon (1626), Omer Talon (1632) and Denis Talon (1698), Joly de Fleury (four of this name held oflice in the 1700 s), and Gilbert des Voisins (1718- 1739). At the Bar the most famous names in the 1500 s are those of Etienne Pasquier (mentioned later) ; Simon Marion (died 1605), whose daughter married Antoine Arnauld and " was the mother of twenty celebrated children "; Michel Servin (died 1626), of whom it was said: " Servinum una dies pro libertate loquentem vidit et oppressa pro libertate cadentem." ^ In the 1600s we note Olivier Patru (died 1681), the Boileau of the bar, who gave to forensic eloquence a classic tone and raised the standards of ora- torical taste, though his speeches seem to us very cold; Antoine Lemaistre, who, in the midst of a most brilUant career, retired to 1 Bibliography : Camus and Dupin, "Profession d'avoeat," 5tli ed., 1832. An alphabetical list of the old jurisconsults is to be found in the "Instit. de Loysel," ed. Dupin and Laboulaye, 1846, vol. I, p. xxxi. — Papire Masson, " Eloges des jurisc," 1638; Mornac, "Feriae Forenses," 1619; Tisand, "Vies des plus cflebres jurisc.,"ed. 1737; Terrasson, "Vies des jurisc. franc, qui ont ecrit sur le dr. rem.," 1750; Blanchard, "Eloges des premiers presid. au Pari, de Paris;" Bretonnier, "Vie des jurisc. les plus celebres de Prance" (excepting those of Paris); P. Niceron, "Mem. p. servir a la vie des hommes illustres," 1786; Holtzendorff, "Bncyclop. d. Rechtsw.," 1886; Dictionaries and biographies, for example, Haifer; Bardoux, "Les Legistes," 1877; Rodiere, "Les grands jurisconsultes," 1874. 2 As he was presenting to Louis XIII a remonstrance, at a " bed of justice," the king interrupted him with threats. Servin (the story goes) fell dead at the feet of the king. 266 Chap. II] NATIONAL JURISTS AND ROYAL LEGISLATION [§ 30 Port-Royal, where he died in 1658. In the 1700 s eminent names are Cochin (died 1747), Loyseau de Mauleon (died 1771), Geebier (died 1788), and Servan (died 1807). §30. National Jurists of the 1500 s. — Though this was the century of the great Romanists (Cujas, Baudouin, Doneau, Hot- man), yet the jurisconsults who labored upon the Customary law were not inferior. Foremost among them (in his own opinion, as well as in that of his contemporaries) was Charles Dumoulin (" MoUnffius "), born in Paris in 1500, died in 1566, December 27. As a barrister he met with but little success. President De Thou, tired of listening to him, treated him as he would an ignorant lawyer and ordered him to be silent. This drew down upon the President's head a protest from the dean of the bar and association of barristers such as would not be tolerated to-day, even in favor of a Dumoulin. " You have insulted," he was told, " a man more learned than you yourself could ever hope to be;" and De Thou acknowledged his error. This anecdote (obviously open to doubt) at least explains how it was that Dumoulin came to abandon the bar and to con- fine himself to composition and consultations. Dumoylin did not limit himself, 'as did Cujas, to the law alone; his emotional character here felt itself confined within too narrow a sphere. He plunged with ardor into the religious disputes of his time. It was said that he could not with composure hear the words " right," " usurpation," and " abuse "; he was bound to express his feelings. It was easy enough to raise up enemies, in that epoch; and Dumou- lin had plenty. Using little diplomacy, employing violent invective in his arguments, his life was threatened, his house plundered, and he was compelled to flee to Germany. He taught for some time at Tubingen, was driven out by a rival, gave lessons at Stras- bourg, Dole, and Besan9on, attracting numerous listeners by his reputation. At last he returned to France. When the Count of Montbeliard, on asking an opinion, was refused, because Dumou- lin found his cause an unjust one, the Count threw him into prison. But Dumoulin, none the less, refused to give the opinion. In Italy, his books were placed on the Church's Index of prohibited works. Dumoulin's fame was only equalled by his self-conceit. At the caption of his opinions, he wrote: "Ego, qui nemini cedo et a nemine doceri possum." Did his abilities justify his own opinion? He had indeed great talents. His ideas were broad. He dreamed of amalgamating the Customs into a single Code ("Oratio de concordia et unione consuetudinum Francise"). 267 § 31] FRANCE [PabT III He annotated them, on the basis of the Custom of Paris, " caput omnium hujus regni et totius etiam Gallise Belgicae consuetudi- nimi." He upheldj the lawfulness of lending at interest, then contrary to the teachings of the Church. He took a stand against the theory by which the King was not only the sovereign but also the proprietor of the . kingdom. Feudal charges were odious to him; and whene^'er he encountered an iniquitous custom, he attacked it with violence until he overthrew it. He fought against the narrow-minded feudists with a disdainful roughness and rigor. He was the champion of the new ideas and of the germinating thoughts of the Third Estate. With his modern conception of the rights of the State, and with the theory of natural law, he took up arms against the two great powers of the Middle Ages, the Church and Feudalism. His writings gave direction to French judicial practice, and mapped out its future course. With Guy Coquille, Loysel, Pasquier, and Pithou, we reach a more peaceful region. They were all men of amiable disposition, " elegant " jurists, humanists while also practitioners, collaborat- ing withPasserat in the " Satire Menippee," diplomatic, moderate, Galileans. They had all the good qualities, save one, — that power- ful and rough-shod genius of a Dumoulin, by which a man stirs his century. Guy Coquille (1523-1603) was in the States-General three times, but is best known by his "Institution au droit fran^ais " and similar works. Antoine Loysel (1536-1617), who had studied under Cujas, became famous in his " Institutions cou- tmnieres," a sort of code in the form of maxims, and his " Pasquier, or Dialogue des Avocats." Etienne Pasquier (1529-1615) was eminent chiefly as an advocate. He stood out against Henry Ill's claims of legislative power, ^^^len in a celebrated lawsuit by the University of Paris against the Jesuits it was sought to exclude the latter from chairs of secular instruction, Pasquier espoused the cause of the University, which finally triumphed. § 31. National Jurists of the 1600s and 1700s. — The century of Louis XIV is not the great century of French legal science. Nor is it a period of decadence, excepting for the Roman law. But with the exception of Domat and Lamoignon, there are no prominent names; at the most one can but mention the civilians Duplessis, Lebrun, Ricard, the erudite La Thaumassiere, and Clement Fleury (1640-1723), author of a " Histoire du droit francais," and under-tutor of the children of France. The classical spirit of the 1600 s in law had a brilliant exponent in Domat (of Clermont-Ferrand, 1625-1696), a fellow-country- 268 Chap. II] national jurists and royal legislation [§ 31 man and friend of Pascal, like him a Jansenist (though brought up by a Jesuit, his great-uncle Sirmond), and a magistrate vigilant, upright, and absolutely disinterested. His great work, " Les lois civiles dans leur ordre naturel " was written at Paris, whither he came in 1681, on a royal pension. It is distinguished by its lofti- ness of thought and philosophic spirit. " Domat," said Portalis, " is the first man to deal in generahties." His work has been called the preface to the Civil Code, but (we must add) it was a pref- ace not very well known; it was confidently admired, but very little read. Guillatjme de Lamoignon (1617-1677) had no rival as a jurisconsult. Besides his participation in the draft of the Ordinances of 1667 and 1670, his great work is the " Arretes, ou Lois projetees," in which, carrying out the plans of such men as Dumoulin and Loysel, he laid down the principles of the Customary law in the form of a Code. Louis XIV, when appointing him Chief President of the Court of Parliament, said: " If I had known a worthier man, I should have given him your place." In the 1700 s we find the learned historian Eusebius de Lauriere, (died 1728), preparing the compilation of the Ordinances, the Chancellor D'Aguesseau and Pothier, bringing the spirit of Lamoi- gnon and Domat into the law, and Montesquieu, standing as the representative of the philosophic spirit. H. Fr. D'Aguesseau (of Limoges, 1668-1751), the great Chancel- lor, was a legislator like L'Hospital, and a magistrate like Lamoi- gnon. He was highly esteemed at Court for his learning and his uprightness; his stubbornness hurt his career all the more in that it did not prevent his sometimes changing his mind, for example, with regard to the Bull " Unigenitus." He began by opposing with the utmost energy the ratification of this Bull; neither entreaties nor threats from Louis XIV could make him yield. Despite his failings, D'Aguesseau remains a great man. He gives an exalted idea of the magistracy of the 1700s. In his "Ordi- nances" he takes up in detail, but with less boldness in its execution, the splendid draft of I^amoignon. Upon the topics which they covered — wills, gifts, and entails — he virtually wrote in advance entire chapters of the future Civil Code of Napoleon. His Memoirs reveal his fine talents as a practitioner, and can still be consulted with profit. R. J. Pothier (1690-1772), professor at the University of Orleans and counsellor to the Inferior Court of that town, was a true sage, a lay saint. His biographers show him to us as modest, disin- terested, obliging, and charitable, fulfilling his double duties with 269 § 31] FRANCE [Part III a conscientiousness rarely seen, at work from four o'clock in the morning to nine at night, without any sort of recreation or social diversions. His life is summed up in his works. These extensive writings consisted mainly of two series: 1st, the " Pandectse in novum ordinem digestae " (1748), a systematic treatise upon each title of the Digest, the texts being rearranged, so as to bring together those which were related, and the whole rounded out with definitions, distinctions, rules, and exceptions; 2d, numerous treatises on the civil law (notably the " Traite des Obligations "), which are models of clarity, of exactness, and of method. They extraordinarily simplified the work to be done by the framers of the Civil Code; it has been said of them that they were an ad- vance Commentary upon the Code. Still, Pothier had neither the originality nor the genius of Cujas and Dumoulin; it is as a popularizer that he has no equal. To read the treatises of the civilians (the works of Pothier, for example), one would never suspect that they were of the 1700s. Nothing therein betrays the great movement of ideas then stir- ring. No breeze of the new spirit can be felt within their realm. But around the old cloistered edifice of the law, Montesquieu was already building his boldest of new scaffoldings. He is the first to conceive of the law as a true science, to identify its method with that of the natural sciences, to discover the laws of the growth of law, and to subsume all its facts within the boundaries of general formulae. His scheme may have since been perfected as to detail; but the conception has remained the same; it has never been improved upon. And besides propounding this broad truth, in his " Esprit des lois " (1748) he touched upon the essential points, and suggested the concrete solutions of the future. No more entails (for they hamper economic progress) ; no more mortmains (for the clergy is a family which should not multiply) ; fewer rent- charges and more money-loans, — such was his program for property- law. For the law of persons, no more serfdom (for agriculture depends less on fertility of soil than on liberty of its occupants). For family law, no more indissoluble marriages. The law of succes- sions should be preserved, on grounds of political welfare. For procedure, he advocates less of formality, more of conciseness and simplicity. Such was his enlightened forecast. 270 Chap. II] NATIONAL JUEISTS AND ROYAL LEGISLATION [§ 32 Topic 5. Political Philosophy §32. Philosophies of the 1500s and 1600s. — (1) The IJfiOs. The Renascence was a return to paganism, a reaction against asceticism and scholasticism. Macchiavelli (1469-1527) was a good exponent of it, with his reaUstic and positivist policy, having no standard other than the reasons of State, and no principles save that the end justifies the means. His work, "The Prince," had so enduring an influence that Frederick the Great (before he was king) wrote a book against it. Its merit was to have broken completely with the theologic principles of the Middle Ages. He freed public law from the yoke of scholasticism, and introduced the spirit of utilitarianism. (2) The 1500 s. The Reformation, like the Renascence, had its policy; but a very different one, and in the beginning one very far from being as liberal. The death of Michel Servet divided the Calvinist faction; Sebastien Castellion was the first to write in favor of the freedom of conscience. The wiser among the politicians — L'Hospital, Pithou, Pasquier — were also won over to this prin- ciple. Thus arose one of the most essential of public liberties. At the same time the vicissitudes of the struggle between Catholics and Protestants gave rise to a school hostile to the theocratic theories, or theories of the divine law which predominated in the Middle Ages. The ideas of the social contract and of popular sovereignty passed from the school and from books into the full light of public life. The monarchic system of the Church, which had served as a model for the State, was abandoned; instead of the Cathohc Church as a balance for the Empire, there arose National Churches with an episcopal system, ■ — sometimes with an aristo- cratic constitution (England, Germany), sometimes with a demo- cratic constitution, laymen participating in the government of the Church (Calvinists, Presbyterians). These changes had their effect upon the political organization. One of the movements was represented in the Monarchomaques. The Protestants, who in France suffered under the absolute authority of the monarch, aimed to limit this authority. Such was the purpose of the " -Franco-Gallia " (1573) of the jurisconsult Frederic Hotman, an apology for the limited monarchy tempered by the historical point of view. The Scotchman Buchanan was among the most radical of this School. But absolutist and liberal tendencies were mingled in varying degrees in the authors of the 1500 s. Pierre Pithou's little book, 271 § 33] FRANCE [Part III " Libertes de I'eglise gallicane," was like a Code for the Church and State up to the end of the Old Regime. Among the political writers the most illustrious is Jeax Bodin (1530-1596), with his six books, "DelaRepublique." The monarchic centralization in France, the omnipotence of the Pope in the Catholic Church, and the writings of the legists on the Empire furnished Bodin the ele- ments of his system, which was at once monastic and juridical. Hobbes was to draw from it the absolutist system of his " Levi- athan." To Montesquieu, Bodin was to furnish the theory of climates (which to be sure can be found in its germ among the ancients). (3) The 1600 s. — England was the chief battle-ground, during the 1600 s, between liberal and absolutist ideas. The former had their roots as far back as Bracton in the 1200 s and Fortescue in the 1400 s. The cause of absolute monarchy, no less old, was defended not only by Hobbes, in his " De Cive " (1642) and " Leviathan " (1651), but by King James I and by Filmer. The opposite array was led by Milton, Harrington, Sidney, and, chief among all, by Locke (1632-1704). Natural law had had a place in the writings of the theologians of the Middle Ages, in those of Suarez in the 1500 s, and (for inter- national relations) in those of Victoria, Ayala, and Albericus Gentilis. But it becomes far more extensive and far more impor- tant from the 1600 s onwards, with the German Althusius (1557- 1638), and especially with the Dutchman Grotius (1583-1645), founder of the modern law of nations. §33. Philosophies of the 1700 s. — The jurists of this period attach themselves, some to Montesquieu, and some to Jean- Jacques Rousseau. Montesquieu's great work, " L'Esprit des Lois " (1748), suggested as a model for the States of the Con- tinent the English Constitution, with its representative system, its separation of powers (in which he saw a valuable safeguard of the freedom of the individual), and its bodies intervening between the sovereign and the people — Nobility, Clergy, and Parliament, — to deaden as it were the impact between them, and to prevent abuse of power on the one hand and rebellion on the other. He realized that our complex societies, far more than the simple city- state of olden times, had need of a complex constitution. The simple terms to which the forms of government were commonly reduced — monarchy, aristocracy, democracy, — were no longer consistent (according to him) with our times. His merit lay, not only in possessing a superior political sense, but in subjecting public 272 Chap. II] NATIONAL JURISTS AND ROYAL LEGISLATION [§ 33 law and the legal system in general to the experimental method, — the only one which is capable of bringing some certainty into it. Auguste Comte rightly considers him as the creator of social science. Jean-Jacques Rousseau (1712-1778) was more a man of books, a theorist. He owed a great deal to the school of natural law, and much to Locke ; personal observation furnished him with but little, excepting in those parts of his political system which are the counterpart of the Old Regime. He strives in his " Contrat Social " (1764) to portray the rational organization of society. His ideas upon the state of nature, upon the social contract (by which men agree to form a society), upon popular sovereignty, and upon the relation of the delegated executive power to the nation which creates it, have in themselves nothing new, save the eloquent and animated form and the radical logic with which he places them before us. Rousseau has little sympathy for the English Con- stitution; upon this point he reacts against the school of Mon- tesquieu, through his disposition to equality and democracy; thus, he admits neither the separation of powers nor representative govermnent. But he agrees with Montesquieu and Voltaire (and with most of the writers of his century) in his protests against the abuses of the Old R6gime. Almost all of them champion what the Revolution was to call " the Rights of Man and of the Citizen." Rousseau is perhaps the least liberal of them; although a great individualist by temperament, he did not declare for tolerance in religious matters ; we know how little he favored private ownership ; in his view this right is the creature of the State. He is at one and the same time individualist and collectivist. And this twofold tendency he stamps upon the Revolution, so soon impending. 273 34] FRANCE [Paet in Chapter III. Third Period: a.d. 1789-1904 THE REVOLUTION AND THE CODES i Topic 1. The Renovation and Unification of the Law 34. The Intermediate Work of the Revolution. 35. The Preparation and Enact- ment of the Code Napoleon. § 36. Character and Contents of the Code Napoleon. § 37. The Empire and the Other Codes Topic 2. The Civil Law since the Codification § 38. Legislation. § 40. Legal Science. § 39. Judicial Decisions. Topic 3. The Code Napoleon in other Countries § 41. Prior Codifications. | § 42. The Extension of the Code Napoleon. Topic 1. The Renovation and Unification of the Law § 34. The Work of the Revolution. — (1) In general, the legis- lative work of the Revolution, which was considerable, formed a transitional stage between the old and the new law, and is usually termed " intermediate law " or " intermediate period." As a general thing but little studied, authors are apt either to admire it too implicitly, or to disparage it too vehemently. It has been studied in its entirety by M. Sagnac, in his " Legislation Civile de la Revolution Fran9aise." ^ This period can be given exact limits: it began with the 17th of June, 1789, the day on which the States-General were changed into a National Assembly and assumed the sovereign power; it ended on 30 Ventose, year XII (March 21, 1804), the day of the pubUca- tion of the Civil Code, which opens the modern period. The Dominant Characteristic of the Revolution was a hatred • [§§ 34r-42 = Planiol, §§ 59-141, pp. 23-52, with omissions. For the citation of this work, and an account of the author, see the Editorial Preface. — Transl.] ' Paris, 1898. 274 Chap. Ill] THE EEVOLUTION AND THE CODES [§ 34 of feudalism, — not of political feudalism (which had been de- stroyed by the King long before), but of civil feudalism. This signifies the mass of rights and usages, arising out of feudalism and affecting individual relations, which had survived the political system out of which they had sprung. Of the feudal organization itself, there no longer remained anything excepting special privileges benefiting certain lands and certain persons. There were only a few of these in the nation; there was no longer any reason for the recognition of these privileges; consequently they offended that sentiment of equality which is so strongly developed among the French.^ The abolition of Feudal dues was thus the first under- taking of the Revolution; this was enacted on the night of August 4. Enough laws were afterwards passed to insure the effect of the fundamental principle enacted on this celebrated night. It is worth while here to point out the blindness of those French states- men who, a few years before the Revolution, instigated the Parlia- ment of Paris to condemn to the pyre Boncerf's brochure on the " Inconveniences of the Feudal Privileges " (1776); at that very moment a neighboring monarch, the King of Sardinia, was peacefully instituting reforms which, had they been systematically under- taken in France, could have saved royalty. The Results of the Revolution were mainly changes in public and political law. In private law, the chief progress realized by the intermediate law was the freedom of the individual and a regard for individual ownership, both of which were made more secure than they had been under the Old Regime; yet it is only: fair to add that the occasions upon which these rights used formerly to be violated were more sensational than numerous, and,ihatithe safe- guards which are to-day provided are more apparerit 'than real. Another principle gained by the Revolution was'' tiieeg-waK^!/ of persons, and therefore the equality of lands. Every itfrace of special privilege disappeared; since 1789 all Frenchmen are merged in a single class under the name of citizens. (2) The successive labors of the various Assembles may now be noticed more in detail. 1 It is most remarkable that the hatred of medieval institutions should have resulted in an outburst in France of all places. France was a country in which feudalism had already been three-quarters destroyed ; there were other countries (Germany and England) where these institutions, better preserved, still made their severity felt by the people. Tocqueville had noticed this fact ("L'ancien regime et la Revolution," 2d ed., p. 57). For an explanation of so singular a fact, see Robert Beudant, "La trans- formation de la propriete foneigre dans le droit intermediaire," p. 125 et seq. 275 § 34] FRANCE [Part III 1st. The Constituent Assembly (June 17, 1789-Sept. 30, 1791). This Assembly was actively occupied with the new administrative system to be put into effect. In public law, the reform which served as a basis for the others was the suppression of the old terri- torial divisions, made for administratiA'e, judiciary, or financial purposes. The "provinces," " bailliages," and " generalites " were replaced by the division into departments (Law of Dec. 22, 1789, Feb. 26-March 4, 1790). The judiciary reforms were radical. The old magistracy was destroyed. The Parliaments were ' ' sent on a vacation " ; but these vacations were " indefinite," and they have never come back from them. In their stead, "district tribunals" were created; these have since become our civil tribunals of the wards (" arrondisse- ment "). The institution of the criminal jury was decreed on April 30, 1790. The formation of the Court of Cassation (review) was voted Aug. 12, 1790; its organization dates from Nov. 27- Dec. 1, 1790. At this time the office of magistrate was still elective (Decree of May 5, 1790). The reorganization of the judiciary then became the subject of the great law of Aug. 16-24, 1790, based on the principle of the separation of powers. This principle, upon which are founded the constitutions of every free people, was formulated in the 1700 s by JNIontesquieu : "In order that there may be no possibility of an abuse of power, it is necessary, in the very nature of things, that power should check power" ("Esprit des Lois," book XI, Chap. IV). Here are the words of the law of Aug. 24, 1790: " The functions of the judiciary are distinct and shall always remain separate from the administrative functions. The judges shall not, under penalty of forfeiture, interfere, in any manner whatsoever, with the acts of the administrative staff, nor cite before them any administrator for any exercise of his office" (Tit. II, art. 13). Thus understood, the separation of powers amounts to freeing the executive from the control of the authority of the judiciary, — a result, however, which is the best protection for the rights of the citizens. The Constituent Assembly enacted the first written constitution of France, that of Sept. 3-14, 1791, preceded by the Declara- tion of the Rights of ]\Ian and of the Citizen. Let us also recall, merely to note it, the civil constitution of the clergy, which came to nothing (Law of July 12-Aug. 24, 1790). Besides these, the Assembly passed a great number of acts bearing on public law, dealing with the greatest variety of subjects. In the field of private law, the Assembly legislated only on 276 Chap. Ill] THE REVOLUTION AND THE CODES [§ 34 particular topics, almost all of which can be connected with two principal reforms. The first is the enfranchisement of the soil and the reorganization of property-rights. Feudalism had overburdened the land with all sorts of dues, rent-charges, quit-rents, tithes, etc. ; the right of ownership, originally simple and undivided, had been separated into the beneficial ownership and the direct or superior ownership; rights inalienable and irredeemable were everywhere met with; powers of repurchase by relatives hindered the transmission of property. All this mass of confused rights the Constituent Assembly entirely wiped out; ownership, now eman- cipated and disencumbered, became once more absolute and complete, like the Roman " dominium "; and this simple idea has so firmly entered our minds that to-day we have some difliculty in conceiving the state of affairs prior to 1789. The second reform was the introduction of the principle of equality in the regulation of inheritances. The manner in which the inheritance of individuals is regulated has a direct influence upon the political condition of a people. The spirit of nobility and aristocracy in old France rested fundamentally on the law of succession. The noble houses, supported neither by trade nor by industry, preserved their fortune only by means of the privileges of the male line and of primo- geniture, which compelled the younger sons to enter holy orders or to embark upon a military career. The Constituent Assembly, to effect the parcelling of the great estates, did away with the right of primogeniture and all other privileges of succession, and pro- claimed the principle of equal partition among children (Decree of April 8, 1791). Among the other reforms effected by the Con- stitutent Assembly may be noted the liberty of lending at interest (Oct. 3-12, 1789); liberty of the right of hunting, now given to owners over their own lands (April 28-30, 1790) ; abolition of the State's right to the property of a deceased alien (Aug. 6-18, 1790); letters patent for industrial inventions (Dec. 31, 1790- Jan. 7, 1791); and finally the Rural Code (Sept. 28-Oct. 6, 1791). 2d. The Legislative Assembly (Sept. 30, 1791-Sept. 21, 1792). When the Assembly was dissolved (Sept. 21, 1792), it had not sat quite a year, but had passed some noteworthy laws : the institution of adoption (Jan. 18, 1792); the abolition of entails (Aug. 25, 1792); the fixing of majority at the age of twenty-one years, and the suppression of the paternal power over children who had come of age (Sept. 20, 1792) ; the creation of " civil status " for all persons, — a reform which " secularized " mar- 277 § 34] FRANCE [Part III riage and made it thenceforth a mere contract under the civil law; the institution of divorce (Sept. 20, 1792). 3d. The Convention (Sept. 21, 1792-Oct. 26, 1795). Amidst the storms which encompassed it and in spite of its disorder and violence, the Convention found time to pass a number of measures dealing with private law. We may mention among the most im- portant : a. A law of 17 Nivose, year II (Jan. 6, 1794), upon suc- cessions. By this celebrated law the members of the Convention sought primarily to attach future generations to the order of things created by the Revolution. This they accomplished by en- acting that the family property should descend by preference to the youngest members of those families. The law of succession was also affected by the Decree of 5 Brumaire, year II (Oct. 26, 1793), dealing with the illegal clauses inserted in gifts and legacies, and the Decree of 12 Brumaire, year II (Nov. 2, 1793), dealing with the succession of illegitimate children, who were placed upon the same footing as legitimate children, b. A law dealing with mort- gages, 9 Messidor, year III (June 27, 1795), called " Code hypo- thecaire." Though poorly planned as to details and defective in its system, which paralyzed legal distraint and execution, this law is a very remarkable one ; it contained some excellent ideas on the system of mortgages, and its boldest innovation, the acknowl- edgments of mortgages, has been taken up again and imitated in our own time in various countries, c. The law of 3 Brumaire, year IV, called "Code of Offences and Punishments," a long text of over six hundred articles, took the place of the two Codes on the same subject passed by the Constituent Assembly in 1791. 4th. The Directory (Oct. 27, 1796-Nov. 9, 1799). In spite of its corruptness and its impotence, the Directory exercised a fortunate influence upon civil legislation. It amended several of the extreme or vexatious provisions of the Legislative Assembly and the Con- vention. Thus, divorce, which the Legislative Assembly had per- mitted with too great ease, was more strictly regulated (Law of the 1st complementary day, year V, Sept. 17, 1797); arrest was restored as a measure to compel the payment of debts (24 Ventose, year IV; 4 Germinal and 4 Floreal, year IV); the rights of suc- cession of illegitimate children were restricted, and retroactive effect was taken from the law which had conferred these rights upon them (15 Thermidor, year V; Aug. 5, 1796); the complica- tions which had been caused by the Convention's laws on succession were settled and lessened (18 Pluviose, year V; Feb. 6, 1797). The Directory also undertook several original reforms. The two 278 Chap. Ill] THE REVOLUTION AND THE CODES [§ 35 principal ones are: 1. The law of 11 Brumaire, which provided for publicly recording transfers of immovables, — an excellent provision, which was misguidedly abandoned in the Civil Code and had to be restored in our own day (Law of March 23, 1855). 2d. The law of 22 Frimaire, year VII, on registration and the tax on transfer of rights, which is still in force. § 35. The Preparation and Enactment of the Code Napoleon. — The Code Napoleon was the final realization of a dream which had many times inspired the jurists of the prior centuries. (1) Prior Plans for the Unification of the Law. — Louis XI is said to have planned a uniform code for all France; Charles Dumou- lin had advocated one. The States-General of 1560 had voted, and the king then promised, to compile one; but nothing came of it. Brisson's work, published in 1603 {ante, § 30) never received official sanction. The States-General had again twice recom- mended a code, in 1576, and in 1614, but to no purpose. Under Louis XIV, Colbert had large plans; but the Ordinances of Civil Procedure, Criminal Procedure, Waters and Forests, Commerce, and Maritime Law (1667-1681) were the extent of his achievements. Chief President Lamoignon, in 1672, compiled an incomplete and unofficial work. Chancellor D'Aguesseau drafted three Ordinances (ante, § 31) in 1731-1747, which were thorough codifications, on the topics covered, and were in large part adopted by the drafts of the Code Napoleon; but D'Aguesseau's larger dream of a com- plete code never matured. Except for the Ordinances above named, the private law of France was still in the 1700 s what it had been in the 1400 s, — a bundle of small parcels of law independent of each other. In Voltaire's phrase, the traveler changed his law as often as he changed horses. No vigorous effort had ever been made, under the Old Regime, to unify the law. Royalty had little interest in the subject ; chancellors and ministers had not time or energy to spare, adequate for success in such an undertaking. The great obstruction was the tradition of local independence and the spirit of opposition in the provinces. Laurent has pointed out, with truth, that their very lack of political independence and liberty made the provinces cling to their Customs as precious privileges. Every attempt at innovation was repulsed by the provincial Parliaments, the natural guardians of local law; in certain districts (Brittany, for example) the least proposal of re- form was treated as a violation of the original compact by which they had become united to the crown of France. Nothing could avail, short of violence to the Parliaments themselves. When the 279 § 35] FKANCE [Pakt III Revolution swept them away, with all the other institutions of the monarchy, the path to unification was clear, and for the first time. The first national political assembly under the Revolution, the Constituent Assembly, planned a codification of all the law of France. On Oct. 5, 1790, it voted that a general code should be made, and in the Constitution of 1791 the promise was renewed. But the Assembly never had the time to undertake the task. The next body, the Legislative Assembly (1791), took some inchoate steps; but its brief and troubled career permitted nothing further. Then came the Convention (1792-1795) with a plan for a Civil Code. It gave to its committee on legislation the remarkable order to present a draft within one month, and (still more remarkable) this order was obeyed. In August, 1793, Cambaceees, in the name of the committee, presented the convention with a plan for a Civil Code. This plan was remarkable for its excessive brevity; there was only one article for certificates of civil status, only one for domicile, and the rest in proportion; the whole consisted of six hundred and ninety-five articles. Such a Code would have been very dangerous, for many important points were not touched upon, and judges would have found themselves without guidance and without control. This feature of it, however, was deliberately adopted by its drafters. The Convention professed a profound contempt for the Roman law and the Customary law, which they looked upon as barbarian and degenerate systems. They aimed (says Barrere) to realize the dream of philosophers — to make the laws simple, democratic, and accessible to every citizen. Besides this defect in form, Cambaceres' draft was too much inspired by the revolutionary ideas of the day. However, the Convention did not find it revolutionary enough to suit its taste; it rejected the draft and voted to appoint a commission of philosophers, charged with drawing up a new draft, more in conformity with its own spirit (Decree of Nov. 3, 1793). Fortunately other events distracted its attention, and nothing further was heard of this project. During the second period of the Convention, after the downfall of Robespierre, Cambaceres brought in a second draft (23 Fructidor, year II), which came up for debate; a few articles were passed, but it got no farther. This second draft was even shorter than the first one; it had only two hundred and ninety- seven articles, all worded very briefly. Finally the Directory, in its turn, set its hand to a Civil Code. A draft was reported by Cambaceres to the Council of Five Hundred (24 Prairial, year VI; 280 Chap. Ill] THE KEVOLUTION AND THE CODES [§ 35 1798) ; but it never came up for discussion, because of the partisan dissensions in the two AssembHes. (2) The Drafting of the Civil Code, under the Consulate. — ^What neither the Old Monarchy nor the Revolution had been able to do the ambition of a single man achieved. Bonaparte, now First Consul and the all-powerful ruler of the State, formed the plan of giving to France that Civil Code which had so long and so fruitlessly been promised. And he was a man who knew how to succeed. As early as 24 Thermidor, year VIII (Aug. 13, 1800), he appointed a commission of four members to prepare a draft. These four members were: Tronchet, president of the Court of Cassation; Bigot du Preameneux, government commissioner in that court; Portalis, government commissioner in the Prize Court; Malleville, a judge of the Court of Cassation. The commission met at the house of President Tronchet; it divided up the various subjects among its members, each one to draft a portion ; at the end of four months the draft was finished. This is the draft known as the " Draft of Year VIII," and was printed by Fenet. It differs considerably from the final plan which was submitted to the Tribunate of 1801. This draft was submitted to the Court of Cassation and the Court of Appeal, whose comments were often noteworthy (especially those of the Court of Cassation), and were a useful contribution towards the preparation of the text. The courts quickly sent in their comments; it was well known that ■; Bonaparte wished despatch; to please him they made haste, so much so that the debates on the Code in the public bodies began that same year. In order to understand what then took place a few details are here necessary. The Constitution then in force was that of 22 Frimaire, year VIII (Dec. 13, 1799), enacted by the Consulate and continued (except for a few modifications) during the whole time of the Empire. By it, the legislative power was distributed among four different bodies : the Council of State, the Tribunate, the Legislative Body, and the Conservatory Senate. 1st. The Council of State, consisting of eighty members appointed by the First Consul, and divided into five sections, legislation, interior, finance, war, and navy, was charged with the discussion of all legislative bills. These were first drafted by the appropriate section (ordi- narily the section on legislation), and were then studied in the general session of the Council, which could be convoked only by the First Consul and was usually presided over by him. The Council of State did not enact a law; its draft was sent to the 281 § 35] FRANCE [PaET III First Consul, who could either introduce it for legislation or else abandon it ; i.e. he alone had the initiative in laws. ^Mien he wished thus to have a bill introduced, the First Consul appointed three councillors of State, as commissione.rs to support it in the Legislative body; the commissioner first appointed drew up a " Statement of Reasons." 2d. The Tribunate was composed of one hundred members, appointed by the Senate. It debated the bills prepared by the Council of State and introduced by the govern- ment, but it could neither enact them nor even amend them; it was limited to passing a resolution on the whole bill, either for or against; and the Tribunate then appointed three commissioners to uphold its opinion before the Legislative Body. 3d. The Legislative Body had three hundred members, chosen by the Senate from lists proposed by a special and separate electoral body. It was this Legislative Body which enacted the laws; yet it did not debate them. They were debated in its presence by the three government commissioners (Councillors of State) and the three Tribunate delegates. This peculiar part played by this body led to a nickname, the " Body of Mutes." Moreover, it had no right whatever of amendment; it could only adopt or reject as a whole the bill presented to it. 4th. The Conservatory Senate was composed of irremovable members elected by their own number. It took no part in the making of a law; it was merely to see that the Con- stitution was observed, by annulling any unconstitutional acts which might be submitted to it by the Tribunate. Such was the complicated machinery by which the Civil Code was enacted. But not without struggle; for serious difficulties arose which nearly put an end to the whole project. The Tri- bunate numbered in its ranks many partisans of the Revolution, who made parliamentary war on all the plans of the First Consul. Naturally, when the draft of the Code was submitted to this body, there arose a chorus of criticism. It was argued that this draft was merely a servile imitation of the Roman and Customary law; that it was a vapid compilation, devoid of originality and fatu- ously decorated with the title " Civil Code of the French." Porta- lis very soundly retorted that this was a matter not requiring originality, but rather clearness; for the contemplated legislation did not apply to a new people, but to a society more than ten cen- turies old and still preserving, in spite of the Revolution, many of its habits and much of its old character. The republicans in the Tribunate opposed the Civil Code with the view of being as dis- agreeable as possible to the First Consul. The Legislative Body 282 Chap. Ill] THE REVOLUTION AND THE CODES [§ 35 had already rejected the first title, and, at the request of the Tribunate, was about to reject the second also, when after a stormy debate there arrived a message from the First Consul, couched in the following terms : " Legislators, the government has decided to withdraw the legal drafts of the Civil Code. It regretfully finds itself compelled to defer until another time the laws which the nation awaits with interest, but is convinced that the time has not yet arrived when that calmness and unity of purpose which they require can be employed in these important discussions " (13 Nivose, year X, Jan. 3, 1802). In withdrawing its draft the government aim was, as Portalis said, " to put the Tribunate on a diet." The debate was suspended. This was what the Tri- bunate desired, but it did not satisfy Bonaparte. To gain his end and to renew the debate with the certainty of success, he resorted to a sort of " coup d'etat." He made the Tribunate impotent to harm his projects by eliminating those of its members who were hostile to himself; a Senate Decree of 16 Thermidor, year X, reduced the Tribunate to fifty members, and naturally those who were thus left out were not his friends. Further to weaken this body, it was divided into three sections : legislation, internal affairs, and finances. In this way it became an easy matter to obtain a favorable vote. As a further precaution, measures were taken to ascertain the opinion of the Tribunate before the public debate took place; the Council of State communicated to the Tribunate " semiofficially and confidentially " the draft elaborated by itself; the Tribunate studied it, gave its opinion, and then the draft went back to the Council of State to consider the criticisms of the Tribunate. If necessary, the legislative section of the Council conferred directly with the Tribunate's committee until an agree- ment should be reached. This was called the " semiofficial communication." When the Council of State and the Tribunate had come to an understanding, the draft was sent by the Council of State to the Legislative Body, who transmitted it to the Trib- unate, in conformity with the Constitution: this was the "offi- cial communication." Under these conditions the public debate before the Legislative Body, by the speakers of the Council of State and of the Tribunate, was no longer a test to be feared; it was nothing but a formality. (3) The Enactment of the Code. — The Civil Code draft consisted of thirty-six laws; these were voted and put into force, one after another, from March, 1803, to March, 1804. They were then united into a single Code of twenty-two hundred and eighty-one 283 § 35] FRANCE [Part III Articles, under the name of " Civil Code of the French," by the law of 30 Ventose, year XII (:Mar. 21, 1804), the definitive date of the final enactment of the Code. (4) Repeal of the Old Law. — The law of 30 Ventose, year XII, which united the thirty-six laws of the Civil Code into a single text, contains in Article 7 this provision: "From the day when these laws go into effect, the Roman laws, the Ordinances, the local or general Customs, the Statutes, and the Regulations shall cease to have the force of either general or special laws, on the matters dealt with in the aforesaid laws composing the Civil Code." \Miat was the meaning of this provision? Without this Article, the old law would be by implication repealed, but only in those cases where the text of the Code disagreed with it; it would con- tinue on all the points upon which the old rules should be reconcil- able with the new law. These points might perhaps be many, and consequently we should still find, partly preserved until our own period, the diversity which existed in the old provinces. Now it was this very diversity which they were anxious to do away with, that unity of law might be established. Hence this Article 7 de- creed expressly the repeal of the old law as a whole. We must not, however, exaggerate its effect. Two limitations must be pointed out. 1st. Article 7 only applies to the old lair, not to the intermediate lata which had been in force since June, 1789. The latter continued to exist on principle, except naturally where specific provisions were inconsistent with those of the Code. Thus a large number of the rules of the intermediate law disap- peared, more especially the system of succession and that of mort- gages. On the other hand, to make up for this, certain provisions of the Rural Code of 1791 were embodied in the Civil Code. 2d. The old law itself was repealed only for subjects with which the Civil Code dealt. Hence, on any subject in private law not dealt with in the Civil Code, one might still resort to the old law (unless there were in the intermediate law some rule on that subject); while the old rules not reconcilable with the general provisions of the Code would be impliedly repealed.^ ' Bibliography op the Draft Work : The two collections ordinarily used are that of Fenet, "Reoueil complet des travaux preparatoires " (1827- 1828, 15 vols), and Locre, "Legislation civile, commerciale, et criminelle de la France " (1827-1832, 31 vols). In the latter collection the first sixteen volumes deal with the Code Xapoleon ; Locre has omitted the comments by the Coiu'ts, which are included by Fenet. One may also consult Malleville, "Analyse raisoneg de la discussion du droit civil " (4 vols. 1804-1805; 3d ed. 1822), and Portalis, "Discours, rapports, et travaux inedits sur le Code civil," pubhshed by his grandson in 1845. 2*4 Chap. Ill] THE REVOLUTION AND THE CODES [§ 36 (5) Various Names borne by the Code. — The Civil Code has had its name changed several times. It was first published under the name " Code civil des Fran^ais." The law of Sept. 3, 1807 gave it the title " Code Napoleon." The Charters of 1814 and 1830 restored its original name. A Decree of March 27, 1852, re- established the title of " Code Napoleon," " in order to defer to the historic truth," said the framer of the Decree. However, since the year 1870, universal usage (following that of the govern- ment) terms it merely " Code civil." To-day the term " Code Napoleon " is more suitably used to designate the original form of the Code, in contrast with its existing form, which is appreciably different. § 36. Character and Contents of the Code Napoleon. — (1) Its Plan. Following an old custom which dates back to the Roman Codes, modern Codes are divided into " books," and the books are subdivided into "titles "; each title deals with a special subject, marriage, paternal power, successions, sale, etc. The French Code consists of a preliminary title and three books. The preliminary title has only six articles. They are general provisions as to the time of taking effect and the application of laws. These six articles are the remains of a much greater number which Portalis had placed there, — an entire book consisting of six titles. This preliminary title was almost entirely cut out, only six out of its thirty-nine articles being preserved; most of them embodied doctrinal opinions or philosophical assertions rather than enact- ments of a legislative nature. Book I is entitled " Persons," and contains Articles 7 to 515. It deals with the distinction be- tween Frenchmen and foreigners, the status of foreigners residing in France; with certificates of civil status, and domicile. There follow marriage, divorce and separation, filiation, the paternal power, guardianship, emancipation, incapacities, and the family council. Book II, Articles 516 to 710, concerns " Property," with its various sorts, ownership, usufruct, and servitudes. Book III is more than twice as long as the others put together (Articles 711 to 2281). Its title is somewhat vague: "Of the Various Methods of acquiring Ownership." In reality, it covers seven broad subjects : successions, gifts and wills, general theory of obligations, rules for particular kinds of contracts, matrimonial property-sys- The " Proees-verbaux du Conseil d'Etaf'had been published officially but incompletely (Paris, year X-XII, 5 vols). Another publication, less complete than those of Fenet and Locre, had been made under the Empire by Favard de Langlade (10 vols. 1804^1820 ; 4th ed., 1838). 285 § 36] FRANCE . [Part III terns, liens and mortgages, and prescription. The massing of all these diverse subjects in a single book is scarcely logical. 'Move- over, the division into books is itself inapt ; a single series of titles would have been more simple and would have allowed of making any addition which might become necessary. (2) Its Sources. The sources made use of in the compilation of the Civil Code were very diverse. The principal ones were: the Customs (especially the " Coutume de Paris "), the Roman law, the Royal Ordinances, and the Revolutionary Laws. The Customary law furnished most of the pro\4sions dealing with the disabilities of married women, the community of posses- sions between spouses, and a number of the rules as to succession. The Roman laio served especially for the system of ownership, the general rules for obligations, the rules for particular kinds of con- tracts, and the marriage-portion system. The Royal Ordinances were preserved especially in the articles concerning certificates of civil status (Ord. of April, 1667), gifts, wills, and entails (Ord. of D'Aguesseau, 1731, 1735, and 1747), evidence (Ord. of Moulins, of 1566, and Ord. of April, 1667), and redemption of mortgages (Edict of 1771). The Revolutionary Laws were preserved chiefly for the time of majority, marriage, and the system of mortgages. To these four sources, the most abundant, we must add two other secondary ones. The decisions of the old Parliaments furnished the entire parts dealing vrith absence; this affected materially certain parts based on the Roman law, for example, the marriage-portion system, modified by the addition of a partnership in acquests. The Canon law supplied several of the rules upon marriage and legiti- mation.^ Predominance of the Customary Sources. — There were two general currents of law at the time of the unification of the French law : the Roman spirit and the Customary traditions. It was the latter that prevailed. The Code was drafted in Paris, in the very centre of the countries of Customs; most of the Councillors of State came from the provinces of the North; the Parliament of Paris had played a preponderating part in the old law. There is therefore nothing astonishing in the predominance of the spirit of the Customs; the opposite would have been an historical anomaly. Yet the Customary character of the Code is materially weakened by the Roman law, on the one hand, and by the Revolutionary 'For further details, see : Dard, "Conference du Code cml aveo les lois anciennes," 4th ed. 1827; Dufour, "Code civil avec les sources ou toutes ses dispositions ont ete puisees," Paris, 1806, 4 vols, in 8vo. 286 Chap. Ill] THE REVOLUTION AND THE CODES [§ 36 Ideas, on the other. On only one important point did the Roman law prevail, and even here not without difficulty; this was the marriage-portion system, which was not only preserved, but ex- tended to include the whole of France. (3) The Authors of the Code. — The two principal authors were PoRTALis and Tronchet. Portalis was the philosopher of the commission. He it was who inspired the principal doctrines of the Civil Code, and was chosen to draw up the " Preliminary Discourse "; his comments may be considered as the best. Pos- sibly he has been too highly praised. As a philosopher, he cer- tainly did not possess an original mind ; he attained only the heights of mediocrity; and his style, filled with the phraseology of the period, was soon antiquated. But he was not a mere jurist; he was an enlightened man, with an open mind, and a marked modera- tion; and it is for this that we should especially thank him. He and Malleville championed the Roman ideas, but without success, against the traditions of the Customs, represented by Tronchet and Bigot du Preameneu. Tronchet was a man of an entirely different kind. He was twenty years older than Portalis (born in Paris in 1726). He was first and foremost a lawyer; he had long practised before the Parliamentary Court of Paris, and was experienced in practical affairs; he had been one of the counsel defending Louis XVI. His influence in the draft, though less traceable and less brilliant than that of Portalis, was none the less profound. The First Consul used to say of him that he had been the soul of the debates in the Council of State. Alongside of these two men, one or two other names must be mentioned : Cambaceres, who had made a specialty of the prepa- ration of drafts under the Convention and the Directory; his rank of Second Consul alone prevented him from being a member of Napoleon's Drafting Commission; Treilhard, Councillor of State, who played an exceptional part in the debates; and, finally, Bonaparte himself, whose personal share is deserving of more particular mention.^ The Part played by Bonaparte. — The First Consul was now only thirty-two years old, much the youngest of the collaborators; furthermore, he was a soldier and not a lawyer. But he wished to show himself the master, in this as in everything else. He had ' For further details as to the personnel of the Legislature during this period, see : Gustave Bressolles, " Etude sur les redaoteurs du Code civil" ("Revue Wolowski," 1852, XLIII, 357); Edmond de Beauverger, "Etude historique comparative sur la legislation civile de la France" ("Acad. des sciences morales," "Comptes rendus," 1861, LXI and LXII). 287 § 36] FRANCE [Part III books lent him which he hastily ran through; he made speeches, which Tronchet and others helped him to prepare. His role as a jurist was naturally a minor one; but he reestablished his pri- macy when it came to the debates, which he directed and led vigorously. He excelled in the ability to settle with a single word a discussion which was going astraj' or becoming obscure. His phrases, his jokes, were often keen, always those of a soldier. The official minutes have eliminated all these eccentricities of speech, and give him a colorless style, almost academic; but his actual language has been preserved to us (in fragments) in certain contemporary memoirs of the Councillor of State Thi- baudeau.^ The personal influence of Bonaparte is found in several parts of the Code. 1st. He introduced into it a set of detailed regulations on the civil status of soldiers (Arts. 93-98), certainly out of place in a Civil Code. But he had noticed during his campaigns the de- ficiencies of the law on that subject, and he seized the first chance to remedy them. 2d. He showed himself hostile to foreigners, whom he disliked; as a soldier, he saw in them only enemies. Under his influence, the Civil Code in its final form showed them extreme harshness, — refusing them in general the enjoyment of civil rights (Art. 11), declaring them incapable of inheriting (Art. 726) and of receiving gifts or legacies (Art. 912). The extremeness of these provisions served the purposes of the hostile faction in the Tribu- nate; and it was Article 11 which caused the failure of the first title before the Legislative Body. Though Bonaparte succeeded in having it adopted (at what cost and by what means has been seen above), we have since then had to revoke our course, and to return approximately to the original " Draft of the Year VHI." 3d. And finally, to Bonaparte was due the insertion of the two in- stitutions of adoption and divorce by mutual ccmsent. He did this on grounds of policy; without children by Josephine Beauharnais, yet already contemplating a dynasty, he placed in our laws (as it were, in reserve) this double means of obtaining an heir, by either another marriage, or an adoption. His own divorce, followed by his marriage to Marie-Louise and the birth of the King of Rome, relieved him from resorting to the second means. It is said that he even suppressed the minutes of debate on adoption, that no one '"Mgmoires sur le Consulat," 1826, a work now scarce. Compare also in the "Archives," by Goenner, a dissertation upon the personal part played by Napoleon in the preparation of the Code. See also Thiers, "Histoire du Consulat et de I'Empire," vol. Ill; E. Jac, "Bonaparte et le Code civil," 1898. 288 Chap. Ill] THE revolution and the codes [§ 36 might ever learn what he had there uttered. On some points his influence may seem to have been unfortunate. But how small a price for the rest? His all-powerful will was the lever removing all obstacles. His energy and (why ignore it?) his ambition were the instruments to which we owe the achievement of the great task, — a task which had been unfulfilled for centuries, and, but for him, might still in our own day have remained undone. And he greatly valued his title of legislator. At St. flelena, he wrote : " My true glory is not in having won forty battles; Waterloo will blot out the memory of those victories. But nothing can blot out my Civil Code. That will live eternally " (De MontHolon, " Recit de la captivite de I'emp^reur Napoleon," I, 401). (4) General Character of the Civil Code. — The Code Napoleon had the good fortune to be enacted at just the right moment. Had it been made sooner, during the Revolution, it would have yielded too much to revolutionary passions, to political vagaries. Had it been made later, no doubt it would have felt the rigors of the military rule and of the increasing reactionary spirit. The period of its legislators' labors happened to be one of calm and quiet ; after so many excesses and crises of every kind, men's minds were in a state of relaxation. Those few years of the Consulate were thus an exceptionally favorable time for a temperate consideration of the civil law. The Revolution had thrown France into a state of inconceivable unrest and confusion; and this was due quite as much to the weakness of the Directory as to the violence of the Convention. Uncertainty was everywhere; security of the person and of property were gone; commerce had almost come to a stand- still; legal transactions were reduced to a minimum. A civic lassi- tude was universal. When the First Consul took the power into his own hands, he said (and everybody else believed with him) that the Revolution was "finished" (Proclamation of 24 Frimaire, year VIII) ; and later he expressed the belief that, after Marengo and the peace of Amiens, war had ended and peace was assured. Nothing remained, therefore, but to gather the long wished-for fruits of the Revolution, — better laws for a society now rejuvenated in a sort of springtide (such as Germany experienced after 1871). It is this happy concurrence of circumstances which gave to the Civil Code its dominant merit — that spirit of moderation and of wisdom which has secured its permanence for a century. The most varied political systems have been able to accommodate themselves to it ; no one has dared to destroy it, — no one has even thought of such a thing. The Code Napoleon is in fact a settlement 289 § 36] FRANCE [Part III by way of compromise. It arose out of the Revolution ; it kept the spirit of equahty, and did not seek to restore the principles of the Old Regime; and this has endeared it to the great body of the French people. At the same time, it abandoned all the chimerical ideas, all the violent measures, of the Revolutionary Assemblies. It is thus neither reactionary nor revolutionary. For all these reasons, it must not be lightly tampered vrith. A sort of tacit understanding now prevails, in enlightened public opinion, to maintain it, and to make the fewest possible alterations. Xo doubt it should not be made a fetich. Xor need we refer to it in tones of dithyrambic rhapsody as was the fashion under the second Empire, — an admiration simulated for political motives. But it is to be feared that in a general revision of the Code the same moderation and the spirit of wisdom which prevailed under the Consulate might not again be manifested.^ (5) Merits of the Code. Besides the merits due to its general spirit, the Code possesses certain technical qualities, due to ex- cellent draftsmanship. These qualities are unity, system, precision, and clearness. Its unity is due to its being framed by a few men, dominated by one preponderating will. The system adopted by the authors of the Code, sometimes criticised as not scientific, is nevertheless sound. A scientific arrangement of topics, appro- priate for lectures or books, is not necessary or even practicable in a code. Legal instruction is an initiation, and calls for a special method ; a code is for practitioners who have already a knowledge of the law. Hence it suflSces if the distribution of topics be clear and convenient. The precision and the clearness of detail, in the phraseology of the articles, reached a grade which has never been surpassed and very rarely equalled. Certainly the laws passed in France since 1804 cannot bear comparison with the Code from this point of view; in contrast, the limpidity of the Code Napoleon becomes striking. — For all these exceptional merits, however, our applause is due, not only to the men who drafted it, but just as much, and perhaps more, to their predecessors who furnished models for them, especially to Domat, a man of systematic and truly logical mind; to D'Aguesseau, a conscientious worker ; and finally to Pothier, good, worthy Pothier, a mind of no pretensions to brilliancy, but one ever sincere and a lover of clearness. (6) Defects of the Code. — With all its good qualities, the Code Napoleon is not without defects.^ The imperfections of draft- ' [Passage here omitted. — Thansl.] ' I am here speaking only of real defects. The Code Napoleon was 290 Chap. Ill] THE REVOLUTION AND THE CODES [§ 36 ing, to be sure, — the articles useless, obscure, or inconsistent, — are so few as to be a negligible quantity in a total of almost twenty- three hundred articles; not a single other text, French or foreign, has fewer such faults than the Code. But certain topics were faultily dealt with in their substance. 1st, the status of foreigners, who were treated with excessive severity (ante, par. 3). This had to be amended, as early as 1819. 2d, the marriage-portion system. The spouses could adopt this without public notice, — a rule unfair to third parties, because of the inalienability of the wife's possessions. This defect was remedied in 1850. 3d, the transfer of immovables. The Revolution had initiated a system of publicity by registration. This the Code mistakenly abandoned ; a few years later it was partly restored, by articles 834-835 of the Code of Civil Procedure. But only in 1855 did registration become once more compulsory. 4th, the mortgage system. This was the weakest spot in the Code; and the shortcomings of its framers were the less excusable as they had before their eyes (as also for land reg- istration) superior models in the laws of the Revolution. The mortgage system of the Civil Code has been amended several times, but is still far from being beyond criticism. It should be thoroughly brought up to date; for it is in this branch of civil law that the greatest progress has been made during the 1800 s. 5th, further- more, the lack of protection for the ownership of movables is one of the defects of the Code. Upon this point, however, its framers are to be excused; wealth in movables was still in its infancy, and none could foresee the growth which it would attain under the form of corporate securities and other commercial instruments. There were, besides this, certain topics, modern for the most part, and needing a place in civil laws, but omitted from the Code ; and yet these gaps can hardly be charged to its framers' discredit, because of the modern origin of most of these principles. These include the names of persons, which give rise to numerous dijBfi- attacked with fury, even in France, by certain political parties blinded by hatred of the Empire. Those whose ideals were the Decrees of the Convention could not help looking upon this Code with disdain ; they felt it their duty to restore its original name of Code Napoleon and affect to call it "the Napoleonic compBation." This is a matter of taste and of partisan feeling. Abroad, also, the French Code was at one time much dis- paraged. The German jurist Savigny, in his brochure, " Sur la vocation de notre temps," etc., took satisfaction in emphasizing the historical errors in certain of the debates by the Council of State ; the framers of the Code, he said, talked and wrote hke "dilettanti" (see the "Revue critique," 1886, vol. IX, p. 349, n. 1). His patriotism carried him too far. What if the framers of our laws were not learned historians like him? They were statesmen wise and enlightened, jurists and practitioners well versed in affairs, and it was fortunate for France that they were. 291 § 37] FRANCE [Part III culties; artificial or legal persons, a sort of fictitious entity, whose existence the Code assumes, but whose nature and attributes are nowhere settled, except for a few isolated and fragmentary pro- visions, hard to reconcile; the long-term lease (emphyteusis), which the Code had passed over in sUence, — perhaps intending to abolish it, the Courts had preserved it, and a special law of 1902 regulated it; literary and artistic property, etc., now covered by special laws; the bankruptcy of persons not traders, which was entirely left out, except for some inadequate provisions for the death of the insolvent; ministerial offices, a sort of special property, established in 1816; bills to bearer, a form of paper often used for non-commercial claims; the insurance contract; syndicates, though mentioned for purposes of administrative supervision, were left unregulated as to the ex- ercise of their powers, their relations with their members and with third parties, their responsibility, etc. § 37. The Empire and the Other Codes. — The great effort for codification, culminating under the Consulate in its most important work, the Civil Code, was continued under the Empire. Napoleon gave us four other codes in all. The Code of Civil Procedure was put into force Jan. 1, 1807 (Art. 1047). The Commercial Code was finished Aug. 29, 1807, and went into effect Jan. 1, 1808. The Code of Criminal Procedure was passed in 1808, and the Penal Code in 1810; both going into effect Jan. 1, 1811, after the reorgani- zation of the magistracy by the law of April 20, 1810."^ Their Relative Inferiority. — These four Codes are very inferior to the Civil Code. Of the two Criminal Codes, one is as faulty as the other. Our criminal trial system, much out of date, is open to many criticisms; and there is some question of recasting it from top to bottom. Pending this vast undertaking, it has already been amended in important respects. The system of penalties estab- lished under the Empire was far too severe and inflexible, and has been improved on several occasions, especially in 1832 and 1863. The Code of Civil Procedure also calls for numerous reforms; the practice is too costly, the delays are too long, the forms are out of date; only the lawyers are satisfied with it. As to the Commercial Code, it was entirely inadequate. On most points the legislators had limited themselves to a reproduction of the Ordinance of 1673 (on commerce) and that of 1681 (on maritime commerce). Only 'As to these Codes, see: Seruzier, "Precis historique de la legislation frangaise," 1845. As to the Code of Procedure in particular : Albert Tissier, "Le centenaire du Code de procedure et des projets de rgforme" ("Revue trimestrielle," 1906). 292 Chap. Ill] THE REVOLUTION AND THE CODES [§ 38 its provisions upon bankruptcy were new; but these were poorly drafted, and had to be recast in 1838. Many important laws have since been enacted on commerce, independently of the Code, on topics such as commercial partnerships, checks, warehouses, maritime mortgage, collisions, etc. In spite of these, our com- mercial law is very much behind the times. Colbert's laws, more than two centuries old, still form its basis, and yet since then commercial methods have made rapid strides and have altered to an extent as complete as it was unforeseen. Causes of this Inferiority. — Thus, between the Civil Code and the other Napoleonic Codes, we find a great difference of value. How is this to be accounted for ? The truth is that the drafting of the Civil Code was done in advance. Tronchet, Portalis, and the other drafting commissioners and councillors were not its only authors; long before them, our best jurists formed a host of illustrious collaborators who had already facilitated the task in an extraor- dinary degree. The drafting of a good code, like the Code Napoleon, is indeed only the result of the accumulated labors of several generations. On the other hand, for the other Imperial Codes there were few models to follow, or none at all; and the few were either incomplete or antiquated — quite unsuited to the needs of the new era. Furthermore, critical legal science had given no help, for there were no texts to work upon. Finally, the other codes were not drafted by competent persons, as was the Civil Code, nor were they prepared with the same care; the Commercial Code especially was a hasty piece of work. These circumstances should inspire hesitation in reformers who would improvise laws in a few hours. Good legislation is the work of time. Topic 2. The Civil Law since the Codification Formation of a New Body of Law. — The life of the law never ceases. All legislators mistakenly believe that their codifications will arrest its changes; perhaps this delusion was Napoleon's as well as Justinian's. Nevertheless, year by year, and almost day by day, the law changes ; the Code Napoleon has in the course of time been covered by a fresh vegetation (so to speak), which is little by little transforming its nature. In reviewing the effects of this incessant process of modification, we must take up separately the work of the legislature, of the courts, and of the jurists. § 38. Legislation since 1804. — The Influence of Political Changes. 293 § 38] FRANCE [Part III — The trend of legislation keeps pace, naturally and directly, with the changes occurring in the State's organization and its political orientation. Our civil legislation, studied in its development since 1804, would enable us to reconstruct the political history of France from a special and interesting point of view. We may now examine the influence of each of the successive political systems upon our civil law. (A) The Empire. — The great efPort at codification, producing five codes in less than six years, seems to have exhausted the legis- lative fertility of the Imperial system. Of the few special laws on civil topics we note only the important Concordat of 26 Messidor, year IX (July 15, 1801), concluded between Bonaparte and Pope Pius VII, followed by a law of 18 Germinal, year X (April 8, 1802), on religious sects; and the law on the organization of the judiciary (April 20, 1810). (B) The Restoration. — This was for France, exhausted by so many wars and defeats, a period of rest and calm, almost sterile in legislation. Among the few reactionary statutes, the two most noteworthy were the Sunday observance law (Nov. 18, 1814), due to the new status, under the Charter of 1814, of Roman Catholicism as the State religion; and the law (May 8, 1819), abolishing divorce as contrary to the precepts of the Catholic religion. During the final years of this period, the aristocratic spirit which led the monarchy to its ultimate downfall produced the law (May 17, 1826) for entails, intended to preserve the wealth of the great families, and the bill (which came to nothing) for the reestablishment of the right of primogeniture. (C) Louis-Philippe. — The Revolution of 1830 led to a great change in the world of politics. To the aristocracy of family, which had dominated under the "legitimist " jMonarchy, there now succeeded a rich bourgeoisie; the great landowners, living upon incomes derived from agriculture, were replaced by great capitalists belonging to the world of commerce and industry. As a con- sequence, industrial interests took first place and supplanted agrarian interests. Their triumph was assured by the development of industrial enterprises organized on a large scale, dating from this period especially, and lea\ing its legal traces in the remarkable development of commercial corporations. The Monarchy of July was thus a reign of manufacturers, a little industrial oligarchy, ser\ang as a transition from the absolute monarchy, in which the aristocracy had preponderated, to the Revolution of 1848, which handed power to the mass of small farmers and workingmen. 294 Chap. Ill] the revolution and the codes [§ 38 Nothing better reveals this characteristic of Louis-PhiUppe's reign than its legislation. The laws become much more numerous, — an increase due especially to two causes. The first was a greater political freedom for the press and the Legislative Cham- bers. Questions of every sort Avere discussed; the attention of the general public began to be aroused by the newspapers upon topics which formerly were indifferent to them. The second cause was an entirely new development of economic activity. The Revolution and the Empire had almost ruined France. Commerce and in- dustry, flourishing under Louis XVI, had seriously fallen off. From 1789 to 1815, riots, disorders, and wars had brought every- thing to a standstill. At sea, we no longer existed, so to speak ; the continental blockade, the loss of our colonies, the battle of Trafalgar, had wiped out our navy. On land the men were all away with the army, and this accounts for the apparent economic con- tradiction that under the Empire, in spite of the industrial and commercial downfall of France, wages remained at a very high rate; the reason for this was simple: not enough workmen could be found to do even the necessary work; the war had emptied every occupation. Under the Restoration, work was revived, but slowly; France was too weakened to recover quickly. Its recupera- tion finally arrived under Louis-Philippe; and steam machinery and railroads transformed and developed commerce and industry in an altogether unforeseen manner. — These great causes thus contributed to increase the activity of the legislative power, — the liberal movement in politics and the economic progress. (D) The Second Republic. — This short period (Feb. 24, 1848, to Dec. 2, 1851) marks a decisive epoch in our history, with the introduction of universal suffrage, which has entirely shifted political power and changed the objects of legislation. The con- sequences of this great event are still unfolding before our eyes, and we cannot yet foresee where they will end. The Revolution had been achieved by the workingmen of Paris ; overnight they found themselves masters of the situation. For the first year or two, questions bearing on industrial labor chiefly occupied the legis- lator. Then came the reactionary Assembly of 1849-1851, followed by the Prince President's " coup d'etat " of December, and (E) The Second Empire. — Nothing is more curious than the political evolution of the Second Empire. It was a system at once autocratic and democratic; it depended for its support upon the army, because it owed its power to a military " coup d'etat " ; 295 § 38] FRANCE [Part III and it rested also upon universal suffrage, for the imperial system found a firm support in the rural districts. Various economic conditions favored it. Some were accidental, such as the abun- dance of gold coming from California, and the completion of the great network of railways. Others were the work of the govern- ment, such as the letting down of tariff barriers by commercial treaties. Grain and cattle could find a ready market; small agricultm-al products (fruits, vegetables, poultry, and eggs), which formerly had no outlet, were distributed by the railroads to the large cities, and gave prosperity to the country. But this rehef did not reach the workingmen. At a very early period, the Imperial government sought to reconcile to itself the sentiments of the working classes by all sorts of small favors; in this effort it failed; that portion of the population remained " irreconcilable," a word which became the fashion. Towards the end, a series of legislative measures changed the political system, originally entirely military, into one of semi-liberty. This pohtical change in the Empire is clearly marked in its legislation; for everything depends upon the general trend of ideas, and the law, even in its most abstract parts, shares in the general life of the country. During its first years, the imperial govern- ment pursued a course of radical hostility to the workingmen (Laws of June 1, 1853, June 22, 1854). But after 1855, a great change in opinion took place. Numerous writers devoted them- selves to the labor question, — notably Le Play (1854) and Jules Simon (1859-1866); and the penny newspapers, an innovation of the times, carried their ideas to the masses. The Empire was com- pelled to follow this movement, and to relaxits severity. Markedly after 1868, it became a Liberal Empire (Law of May 11, 1868, on the press; Law of June 6, 1868, on the right of meetings) ; and it now began to tolerate workingmen's associations in every form. The general civil legislation is represented by a small number of important laws, — principally the law (Alarch 23, 1855) for land-transfer registration, the final result of a thorough investiga- tion undertaken in 1841 but a far more restricted reform than the one originally hoped for. (F) The Third Republic. (1) General Tendencies. — Proclaimed at Paris, September 4, 1870, the day after the disaster of Sedan, the Republic was resisted until 1875 ; for the monarchic party hoped to restore royalty, especially after the " fusion," or recon- ciliation, between the Orleans family and the Comte de Chambord ; but the check given to their attempt led to the Constitution of 296 Chap. Ill] THE REVOLUTION AND THE CODES [§ 38 February, 1875. Under the Republic two periods may be dis- tinguished. The first lasted about ten years, from 1871 to 1880. The majority in the Legislatures belonged still to the different monarchic and conservative parties, united against the Republican party. Not until after the senatorial elections of 1879 did the Republican party obtain a majority in both Senate and Chamber of Deputies. This event reacted directly upon legislation. From 1870 to 1880 the new laws were not very numerous, the reforms were moderate, almost timid. In 1880 things changed in aspect; the legislative power entered upon an era of almost excessive production, such as it had never known since the period from 1789 to 1793; the year 1898 was especially fertile. But in the laws passed since 1880 what is especially noticeable is less their number than their spirit. The tendency of a legisla- tive power based on universal suffrage is necessarily to favor the masses at the expense of the old governing classes. This tendency (much more marked since 1889, and especially in 1899, when Waldeck-Rousseau for the first time placed the Socialistic party in power through Millerand) is especially apparent in labor questions (syndicates, insurance, pensions, passbooks, cheap dwell- ings) and in fiscal questions (for certain political parties look upon taxation as an instrument of spoliation); but it makes itself felt even in matters of pure civil law, where so-called " labor laws " frequently derogate from the traditional rules. Principles which legal science may deem to rest upon the most solid foundations cannot resist these proposals of reform, and the new statutes modify the law in its lowest depths. One more thing remains to be pointed out. Dominant opinion in France believes that it is carrying out the tradition of the Revolution and drawing its inspiration from the Constituent Assembly. Yet, in reality, our modern legislation departs day by day from the most essential one of these ideas. The Con- stituent Assembly destroyed a social organization arising from the most remote depths of our national history, and based chiefly upon the ideas of local independence and the coexistence of separate powers. In place of this system, the Constituent Assembly estab- lished a purely individualist system; it sought to assure men's liberties by their isolation. Its principal work was the destruction of all the old bodies, communities, and associations of every kind, under whose protection flourished so many abuses. It was for this reason that the most liberal Assembly which France has ever had refused to give her what nowadays is regarded as the principal 297 § 38] FRANCE [Paht III liberty: the liberty of association. Now, since 1848, we have seen going on in France one of the most remarkable movements. The local collective forces, which the Revolution had proscribed, are being reconstructed on every hand. Some are due to individual initiative, occupational syndicates, partnerships of every kind, which the State not only tolerates but encourages. Others are created by the government itself. The modern State, over- burdened with powers and duties, weighed down by its financial burdens, gets rid of them, as far as it can, by imposing them upon local groups; it leaves to themselves the departments, towns, universities, chambers of commerce, etc.; there is even talk of reestablishing (under the name of "regions") districts larger than our departments, to be the equivalents of our old provinces, done away with by the Constituent Assembly. Thus (unless to recon- struct old France is to attempt the impossible) the abandonment of the guiding principles of the Revolution could not be more absolute by those who profess to be the continuers of them. The new conception of the State is no longer the omnipotence of a central power (as the Constituent Assembly intended it), standing alone in contrast with the individual citizens, — at once disarming and protecting them, but sharing its powers with no rival. — Naturally this great change is affecting mostly administrative and economic matters; but the civil law itself is feeling the effects; the spirit of collectivity, of mutuality, and of association, which is awakening and sweeping everything before it, is penetrating deep into the law and custom of contracts, of ownership, and of suc- cession. (2) Plans for revising the Civil Code. — In spite of the numerous statutes since 1804, the Code Napoleon still represents the greater portion of our civil law. Its entire revision was demanded at an early period; but this movement found little response until, in 1904, at the celebration of the centennial of the Civil Code, the Minister of Justice appointed a special commission to prepare a first draft of a revision. Up to the present time the idea of a general revision seems to find but a cool reception in the world of business.^ We must hope that the method of partial amendments 1 See Planiol, "Livre du oentenaire," II, 953, and Thaller, "Rapport sur la revision du Code civil" ("Bulletin dela Society d'etudes legislatives," 1904, p. 472; ibid., 1905, p. 24). The second volume of the "Livre du centenaire " contains various studies on the desirability of a re^dsion of the Code. As to the celebration in Paris, see the various Law Reviews, and especially the "Bulletins" of the two Societies "d'etudes legislatives" and "de legislation comparee" for 1904. 298 Chap. HI] THE EEVOLXJTION AND THE CODES [§ 39 will suffice for a long time to come. In truth, the modern method of drafting^laws in large legislatures has an irremediable defect (as every one admits), namely, that the cross-currents of factional majorities destroy the consistency of the texts; and (more often than not) the legislative draftsmen lack in technical compe- tency.^ The Revision of the Codes is to be welcomed only if a legislative procedure is adopted which insures an adequate method of achievement — a method such as Spain and Germany employ. § 39. Judicial Decisions. — What we call " jurisprudence " is the interpretation and application of the law by the Courts. As compared with the legislator, the judge's part is in appearance a modest one; in reality, it is almost an equal one. Practically, no law has any value unless it is appUed and then only to the extent that it is applied. One fact is universally recognized and inevitable, namely, that the application of the law by the judiciary furnishes a thousand opportunities to modify the rule of law, and that some- times the judge even succeeds in paralyzing the will of the legislator. Judicial law has characteristics peculiar to itself. It does not work like writers or teachers, who set forth their ideas in synthetic and coordinated form, constructing systems out of collections of topics. The Courts pass, from day to day, on sundry points sub- mitted to them, — always matters of detail, or at least distinct from one another. Moreover, one of the chief rules of our judiciary requires that a court shall never be bound by the decisions it has previously handed down; it may always change its mind. All the more is it not bound by the decisions of other courts, even of higher courts (except that in certain cases the decisions of the Court of Cassation are binding). The result of all this is that there are great variances; judicial decisions are often contradictory to one another. Nevertheless, in the end, judicial law always arrives at certain fixed rules, and this for two reasons. 1st. In case of a conflict between two courts, the Supreme Court (" Cour de Cassation ") has the last word. When a question of new and doubtful law arises upon which there are divergent opinions, the case can always be taken to the Supreme Court, and the latter may impose its view upon the other tribunals. 2d. The judicial bodies, whatever they may be, have a tendency to create a tradition for themselves, to 1 See Varagnac; "Le Conseil d'Etat et les projets de reforme," "Revue des Deux-Mondes," Sept. 15, 1892; Em. Tarboureich, "Du Conseil d'Etat comme organe ISgislatif," " Revue de droit public," Sept.-Oet., 1894 ; Louis Michon, "L'initiative parlementaire et la reforme du travail legislatif," Paris, 1898. 299 § 40] FRANCE [Part III decide always in the same may, when they have once adopted an opinion. Under these two influences (the one of fact, the other of law), we see veritable streams of judicial law, which can be neither resisted nor turned aside. The judicial rule is then said to be " fixed," or " made." This general phenomenon, well known to men of the law, leads the advocates at the " Palais de Justice " always carefully to search for prior decisions in their favor; the more they find, the more sure are they of winning. And so (it is said) at the " Palais de Justice " the decisions are counted, whereas at the Law School they are weighed. As to the general results of modern judicial law, we can here only offer an estimate of its work as a whole. And in general it may be said that judicial law has held a very uneven course in its in- terpretation of the texts. It has shown itself, by turns, very bold and very timid. It has sometimes believed itself so rigidly bound that it has ignored its powers for more useful or equitable de- cisions. At other times, it has succeeded, by roundabout means, in paralyzing legislative rules which it regarded bad; some have even maintained that in boldness it has not yielded the palm to the vaunted reforms of the Roman Pretor.^ Another part of its task has been to regulate various matters which legislation had not expressly provided for, — the insurance of land, the relations between employers and workmen, the long- term lease, the publisher's contract, and the like. § 40. Legal Science. — Legal treatises and essays (" doctrine ") in the science of law play approximately the same part as public opinion in politics, and an important one. Legal science gives direction to the law; its teachings prepare the way for changes in legislation and decisions. But even when it reaches settled views, legal science is not (like judicial decisions) a source of the law, for the commentators possess no means of constraint. Nevertheless, their books and their oral teaching formulate scientific principles which dominate judges and legislators ; this body of principles is known as " tradition." In the course of the 1800 s, legal science has undergone many * Tarboureich, "Du Conseil d'Etat comme organe legislatif," p. 3. Cf. Celice, "Du pouvoir legislatif de la Cour de cassation ou de la permanence du droit honoraire," speech on entering, Aix, 1888. One of the most striking examples has been its gradual evolution of the rule that State securities may be distrained upon, in spite of the laws of the year VI and the year VII which declared that they could not be ("Cass.," July 2 and 16, 1894, note by M. Glasson, "Dalloz," 94, 1. 497). One may also cite its progress on the subject of trust-entails as ably set forth by M. Lambert ("De I'exhfiredation," p. 593, et seq.). 300 Chap. Ill] THE REVOLUTION AND THE CODES [§ 40 changes both of tendency and of method. During the 1600 s and 1700 s, the treatise writers, whether professors or magistrates, had not (as a general rule) elaborate texts to comment upon. The Customs were for the most part very short; the principal one, the " Coutume de Paris," contained but three hundred and sixty- two articles. Furthermore, they dealt with only a few subjects ; the longest Title in the " Coutume de Paris " treated of fiefs ; suc- cession was given forty-six articles, gifts seventeen, wills ten; while on these last three the Civil Code alone numbers almost four hundred articles. Many articles in the Customs dealt with details of secondary importance, questions of form or of procedure. Hence arose a special method for the study of legal principles. A writer who aimed at something more than a mere summary of the decisions, and aspired to expound a system of principles, sought for these principles in the Roman law; for the Roman law alone possessed a scientific method and value. This necessary method of the old treatises becomes more apparent as one passes from the mere compilations to the great works of the Dumoulins, the Argentres, and the Domats, — all of them Romanists. After the Civil Code appeared, things changed. Thenceforth jurists possessed a text uniting within itself every quality which had up to that time belonged exclusively to the Roman legal system. It was complete and self-sufficient; it was clear and well drafted in true legislative style, — exact, concise, imperious, in contrast to the loose style of the old French in the Customs. And, finally, it contained a legal system, new principles; it had its own peculiar spirit, its own particular tendencies. Moreover, the materials prior to it cotild no longer be made use of; the decisions of the old courts had lost their authority. Hence arose an entirely new method, for commentators upon the Civil Code; and their books have no resemblance to their predecessors'. They set themselves to a study of the specific terms of the Civil Code. The text took on an enormous importance, — one which that of the Ordinances and the Customs had never had. As its articles were numerous, various correlations of them began to be made ; by interpretation they were sometimes restricted, sometimes extended. A whole system of close, clever, and ingenious reasoning arose; around the Code was constructed a scaffolding of complicated and unforeseen theories. This state of legal science had never been known, apart from the texts of the Digest and Code of Justinian. — Besides all this, the first generation of commentators, men who had witnessed the downfall of the Old Regime and the renascence which followed, 301 § 41] FRANCE [Part III were the victims of a perfectly natural delusion. They looked upon the Code as something entirely new, having no connection with the past; they commented upon it by isolating it from every- thing else, as though it had fallen from the sky. Thus the new legal science, absorbed in the Code alone, and obsessed by a sort of superstitious belief in its text, came to apply in the study of the law a process entirely artificial and a method purely dogmatic. This school of jurists, nevertheless, produced some remarkable works; it succeeded in drawing from the Code everything it could possibly give. Napoleon, indeed, jealous for his own work, would gladly have seen the commentators refrain from meddling with his Code. When he saw the first commentary (that of Malleville), he exclaimed: " My Code is lost! " But commentaries soon became numerous. Among them may be noted that of TouLLiER, Professor at Rennes, the first commentator upon the Civil Code (1811-1848); of Duranton, Professor at Paris (1825- 1844), a great success, the first long and complete work upon the Code Napoleon;' of Troplong, undertaken in 1833 to continue that of TouUier, a performance more brilliant than solid, and once termed " the law's romance" ; and of Mar cade and Paul Pont (1842 + ), a remarkable work, but marred by its polemic spirit. Among the general treatises of later vogue (not including recent works) were those of Atjbrt and Rau, of Demolombe, of Demante and CoLMET de Santerre, and of Laurent. Topic 3. The Code Napoleon in other Countries § 41. Prior Codifications. — Most other European States, until the 1800 s, had remained in about the same condition as France ; they lived under national customs, of obscure and early origin, for the most part antiquated and complicated, and possess- ing on the whole no scientific principles save those of the Roman law. The first principal codifications took place in Germany. The Prussian Code was undertaken by Frederick II in 1749. Its draft was prepared, in 1749-1751, by the High Chancellor Samuel Von Cocceij, and published in three volumes. But Cocceij died in 1755, and the Seven Years' War put a stop to the work, which was not resumed till 1780, and was completed in 1793. The Code was published Feb. 5, 1794 and went into effect June 1, in the reign of Frederick William, with the title: "Allgemeines Land- recht fiir die preussischen Staaten." The French government had an oflScial translation made in 1801 by the bureau of foreign 302 Chap. Ill] THE REVOLUTION AND THE CODES [§ 42 legislation. Then came the Bavarian Code (" Codex Maximili- aneus bavaricus civilis "), published in 1756, and drafted by Baron Kreitmeyer. In Austria, the preparation for a Code had covered a still longer period than in Prussia. Maria Theresa had commanded it, following the example of her neighbor Frederick. But the first draft, prepared by Professor Azzoni, was laid aside in 1767 ; and the next one could not be completed until 1810, going into effect Jan. 1, 1812. Its authors were Kees (1786), Mar- tini, and (at the end) Zeiller. We may also here note the Vic- torian Code, published in the Sardinian States in 1723 and revised in 1770. The Code Napoleon was thus not the first one undertaken in Europe. But not one of its predecessors could be compared with it, even remotely. Not one of them has been, as that was, a great enterprise of reform and unification; not one of them pos- sesses the merits of thoroughness and form by which it is dis- tinguished. The Bavarian Code was no more than a summary of the decisions, a sort of table of contents to the Roman law as then practised. The Prussian Code was too long, its topics poorly distributed, and its text overburdened with details; the principles in it are smothered under rules for concrete cases. Furthermore, none of these Codes became the general law of the country; they all left in force the local Regulations and the provincial Customs; and thus they had scarcely more status than that of a subsidiary law. As to the Austrian Code, its consummation postdated the Code . Napoleon ; and as it markedly showed the influence of the latter, it should be considered less a predecessor than a derivative. § 42. The Ertension of the Code Napoleon. — The countries which received the French Code form three groups. (1) The territories which were united with the French Republic before the Peace of Amiens (1802) received the Code at the time of its publica- tion in the same way as France proper. This first category in- cludes Belgium, Luxemburg, the Palatinate, and all that portion of Rhenish Prussia and of Hesse-Darmstadt lying on the right bank of the Rhine, together with Geneva, Savoy, Piedmont, and the Duchies of Parma and Plaisance in the South. (2) Later, as Napoleon's conquests become more extensive; he introduced his Code in certain other countries: in Italy (March 30, 1806), in Holland (Oct. 18, 1810), in the Hanseatie Departments (Dec. 13, 1810), and in the Grand Duchy of Berg (Dec. 17, 1811). (3) Certain countries voluntarily adopted the French Code. Such were the kingdom of Westphalia (Jan. 1, 1808), Hanover, united 303 § 42] FRANCE [Part III to Westphalia in 1810, the Grand Duchies of Baden, Frankfort, and Xa^sau, several of the Swiss Cantons, the free city of Dantzig, the Grand Duchy of Warsaw, the Illyrian Provinces, which became the kingdom of lUyria in 1819, the kingdom of Naples (Jan. 1, 1808). Reaction against French Influence. — The Code Napoleon thus enjoyed an authority and an expansion which only the Roman Codes have known. Translated into almost every language, supported by the power of a mighty army, and endowed with an indisputable superiority, it seemed destined to give to Germany a uniform legal system. But the reverses of Napoleon in 1812 and 1813 checked its fortunes. Then Germany, led by Savigny, began an intellectual onslaught upon it. From that time on, its power waned. Some of the States repudiated it, others made changes in it. In the Netherlands, the revision of the imported laws, though undertaken immediately upon the fall of the Empire, was not accomplished until 1837. In Switzerland, on the other hand, the French legislation was deliberately preserved, and was even imitated. And the same course was taken (surprising as it seems) in the German countries, which had so eagerly given the signal for the supreme struggle against the rule of Napoleon. It was notably in Italy that the reaction burst out with violence. The Bourbons, who succeeded Murat in the kingdom of Naples, were almost the only ones willing to preserve the French law; and under their orders was enacted a fairly faithful copy of it. But in other parts of Italy it was so promptly attacked that its very opponents came to regret their haste, and were compelled, after restoring the original laws, to return to a legislation based on ours. Such was the result in the Duchies of Parma, Plaisance, and Guastalla, where a Civil Code was published as early as 1820, in the reign of the ex-Empress Marie-Louise. In the kingdom of Sardinia, a Civil Code, called the " Code of Albertin," published in 1837, was put into effect Jan. 1, 1838. This Code greatly re- sembled the Code Napoleon in its external form and the distri- bution of its topics, though in reality it restored upon many points the Roman traditions which the Code Napoleon had abandoned. In Tuscany only the title on Liens and Mortgages was preserved. Return to Favor. — This reactionary movement soon subsided, and the Code Napoleon once more came into favor. This was seen first in America, where our former possessions of Louisiana and Haiti in 1825 and 1826 imitated the French laws in their Codes. Next, in 1827, Greece, just freed from the yoke of the Turks, at- tempted to provide itself with a Code similar to ours. The South 304 Chap. Ill] the REVOLUTION AND THE CODES [§ 42 American republics, especially Bolivia, Uruguay, and Argentina, copied it; later on, Spain, Roumania, and even Italy herself, one by one, came to feel the ascendency of its influence. The Final Results. — To-day the final judgment of history may be passed upon our Code. It gave the signal for an enormous movement towards codification, which filled the entire nineteenth century and has extended over the whole world. Nothing in prior times can be compared to its propagation. It acted directly in a great number of countries, scattered over the four quarters of the globe, even upon the precise mode of codification as well as upon the spirit of the work. In others, it has at least served as the example and the stimulus to bring about the result.^ Only the Anglo-Saxon countries have preserved their law in the condition of a body of customs and a series of scattered statutes. 1 Volume II of the "Livre du eentenaire" contains interesting studies upon the influence of the French Code abroad (Germany, Messrs. Crome- Kohler and Muller; Belgium, Van Biervliet and Hanssens; Canada, Mignault; Egypt, Armijon; Italy, Chironi; Japan, Gobai; Luxemburg, Ruppert; Monaco, De Rolland; Netherlands, Lasser; Roumania, Disses- cou; Romanic Switzerland, A. Martin). 305 THE JCDICIABY PKOVIJTCES OF . THE GERMAN EMPIRE UNDER THE IMPERIAL CHAMBER OF JUSTICE _ / I [ Commoo { RoiniD ) L»» I 1 pTO»Bl«ti G«nil TetritorUl ^ r.J* I I Ebioh Cl»n Code I 1 Baden Terrllorial Coda I ] PiKwh Cod. CWil ] I Auililan CIyH Code I I Dutch CItO Code X£GAL MAP OF GERMANY IN THE 1500 S AND THE 1800 S, CFromJl. Schroder.'s "German Legal .HiBtory", Veil it Co.. Lcipiig,) Pakt IV GERMANY First Pkriod (A.D. 1000-1400) : Feudalism and the People's Law-books. Second Period (A.D. 1400-1600) : The Reception of Roman Law. Third Period (A.D. 1600-1806) : Natural Law, Legal Rationalism and German Nationalism. Fourth Period (A.D. 1806-1908) : National Unification and Codification. LIST OF ABBREVIATIONS OF CITATIONS IN PART IV Periodicals and Current Series A.B.A. = Abhandlungen der Berliner Akademie. Allg. d. Biog. = Allegemeine deutsche Biographie. A.K.O.G.Q.= Arehiv fiir Kunde Osterreiehischer Geschichtsquellen. O.Gierke (editor), " Untersuchungen " = Untersuchungen zur deutschen Staats- und Reehtsgeschichte (since 1878) . Hans.G.B. = Hansische Geschichtsblatter. Hildebrand's J. N. O. = Jahrbueh fur Nationalokonomie. H.Vj.S. = Historisehe Vierteljahrsehrift fiir Gesetzgebung und Reehts- wissenschaft (since 1859). K.Vj.S. = Kritische Vierteljahrsehrift (since 1898, continuing the D. Z. G. W. = Deutsche Zeitschrift fur Geschichtswissenschaft, 1889-1898). H.Z. = (von Sybel's) Historisehe Zeitschrift (since 1859). K.Z. = Kritische Zeitschrift. M.O.G.F. = Mitteilungen des Instituts ftir osterreichische Geschichts- forsehung (since 1880). N.B.Rg.W. = Nieuwe Bijdragen voor Regtsgeleerdheid en Wetgeving. Preuss. J.B. = (Treitsehke's) Preussiche Jahrbiicher. Wiener S.B. = Sitzungsberichte der kaiserlichen Akademie der Wissen- schaften zu Wien, philosophisch-historische Klasse. Z.D.R. = Zeitschrift fiir deutsches Recht (1839-1861). Z.G.R.W. = Zeitchrift fiir gesohidhtliehe Rechtswissenschaft (1815-1850). Z. H.V.N. S. = Zeitschrift des historischen Vereins Nieder Sachsens. Z. Preus. G.L.K. = Zeitschrift ftir preussische Geschichte und Landes- kunde. Z.Pr.Off.R. = Zeitschrift fiir deutsches Privat- und Offentliches Reoht. Z.iR.G. = (Rudorff Bohlau et al) Zeitschrift fiir Reehtsgeschichte. Z^.R.G. = Zeitschrift der Savigny-Stiftung ftir Reehtsgeschichte, ger- manistische Abteilung (unless "roman. Abt." = romanische Ab- teilung, be added ; 1880 fg.). Z.R.W. = Zeitschrift fiir Rechtswissenschaft (1859 fg.). Abbreviated Titles used in the Footnotes op Part IV H. Brunner, " Grundztige " = " Gr. der deutschen Reehtsgeschichte " (4"" ed., Leipzig, 1910). Bluntschli, " Geschichte " = " G. des allgemeinen Staatsrecht und der Politik" (Munich and Leipzig, 1864). Bethmann-Hollweg, " Civil-process " = " Der germaniseh-romanische Civil- process im Mittelalter " (6 vols., 1868 fg.) ; also entitled " Der Civil- process des gemeinen Rechts in geschichtlicher Entwicklung." 309 LIST OF ABBREVIATIONS OF CITATIONS IN PABT IV Below, " Ursachen " = " Ursachen der Rezeption des romiselien Reehts in Deutsehland" (1905). Daniels, " Handbuch " = "Handbuch der deutschen Reichs- vmd Staaten- geschiehte" (4 vols., 1859-1863). Eichhorn, ' ' Reehtsgeschiohte " = " Deutsche Staats- und Rechtsgeschichte ' ' (5th ed., 4 vols., 1843-1844). Franklin, " Beitrage " = " B. zur Geschiehte der Rezeption des romischen Reehts" (1863). O. Gierke, " Grenossenschaftsrecht " = " Rechtsgeschichte der deutschen Genossenschaft " (3 vols., 1868+). Lehmann, " Quellen ." = " Q. zur deutschen Reichs- und Rechtsge- schichte" (1891). Muther, " Rom.-kanon. Prozess " = " Zur Geschiehte des romisch-kanon- ischen Prozesses in Deutsehland " (Rostock, 1872). Muther, " Universitatsleben " = " Aus dem Universitats- und Gelehrten- leben im Zeitalter der Reformation " (1866). Muther, " Reehtswissenschaf t " = "Zur Geschiehte der Rechtswissensehaft und der Universitaten in Deutsehland," in his " Gesammelte Auf satze" (1876). il/w/Aer, " Neue Sammlung " = " Neue und vollstandige Sanunlung der Reichsabschiede " (1747 fg., — Senckenberg, Schmauss, Olenschlager, editors) . Ott, " Beitrage " = " B. zur Receptionsgeschichte des romischen Reehts in den bohmischen Landern " (1879). Roscher, " Geschiehte " = " G. der Nationalokonomie in Deutsehland." Savigny, " Geschiehte " = " G. des romischen Reehts im Mittelalter " (2d ed., 7 vols., 1834-1851). R. Schroder, " Lehrbuch " = " L. der deutschen Rechtsgeschichte " (5th ed., Leipzig, 1907). Schulte, " Quellen '' = " Geschiehte der Quellen und Literatur des kanon- ischen Reehts" (vol. I, 1875). 0. Stobbe, " ReohtsqueUen " = "Geschiehte der deutschen RechtsqueUen " (2 vols., Leipzig, 1860-1864). Stolzel, " Richterthum " = " Entwioklung des gelehrten Richterthums in den deutschen Territorien " (2 vols., 1872). Stintzing, " Pop. Lit." = " Geschiehte der popularen Literatur des romischen und kanonischen Reehts in Deutsehland " (1867). Stintzing, " Geschiehte " = " G. der deutschen Rechtswissensehaft" (2 vols., Munich and Leipzig, 1880-1884). Stintzing-Landsberg, " Geschiehte " = vol. 3 of the same work, by E. Landsberg (1898), with an accompanying volume of notes. Wegele, " Geschiehte " = " G. der deutschen Historiographie " (Munich and Leipzig, 1885). Zeumer, " QueUen sammlung " = " Q. zur Geschiehte der deutschen Reichsverfassung im Mittelalter, und Neuzcit " (1904). H. Zopfl, " Rechtsgeschichte " = " Deutsche Rechtsgeschichte ." (4th ed., 3 vols., Braunschweig, 1871-1872). 310 Chap. I] FEXTOALISM AND THE PEOPLE'S LAW-BOOKS [§1 Part IV: GERMANY ^ Chapter I. First Period: a.d. 1000-1400 FEUDALISM AND THE PEOPLE'S LAW-BOOKS = § 1 . The Various Forms of the Law. § 2. Imperial Law. § 3. Compilations of Terriorial and Feudal Law. § 4. Territorial and Local Law. § 5. Manorial Law. § 6. Town Law. § 7. Documents and Formularies. § 1. The Various Forms of the Law.^ — [At the period in which we now take up the thread of Germanic history] the written law of ^ [The general object of the translator has been to give rather a meta- phrase than a paraphrase. The original texts have been much condensed. Such condensation has consisted almost exclusively in the omission of entire sentences or larger units of the original. At the beginning of each chapter the sources of its several sections are indicated, and also what parts of the sources have been reproduced in full (footnotes aside) or only in pa.rt. Brackets are used in places where other words than those of the original were necessary in order to make a transition ; also in a few cases where the insertion of an explanatory word or two seemed imperative ; and, finally, in a very few cases where the original was preserved in abbre- viated form, because essential to the argument, but seemed more effective in the text than in a footnote. In the exceedingly few cases where omis- sions and joinders could involve by any possibility the ethics of quotation marks, dots appear in the text (. . .). Lastly, in rearranging the material slight liberties have occasionally been taken, — such as those necessary in order to secure consistent cross-references, and like matters, — which are not indicated in the text. The authors' notes, aside from mere references to authorities, have been for the most part omitted. Nor has there been exact adhesion to their form, so far as used, when mere notes of citation. Explanatory notes have been treated, when used, with the same respect as the text itself. The editions to which the references are made can be identified (when necessary) by the reference to the date of the works here translated. A list of abbreviations of the titles of journals, and of books often cited, is given at the beginning of this Part ; the latter are then cited by an abbre- viated title in the footnotes ; " op. cit." (or an equivalent term) is used sometimes, but in this case the title appears always in the same section. — Teansl.] 2 [§§ 1-7= §§ 26-32, of HeinrichBrunnbk's" Grundziigeder deutschen Rechtsgeschichte " (4th ed., Leipzig, 1910). For this author, see the Edi- torial Preface. The notes are generally omitted ; the bibliographies are only partially reproduced ; and a few words are omitted in a few sections. — Tbansl.] ^ Repehences : O. Stohbe, "Gesohiohte der deutschen Reehtsquellen," I, p. 266 et seq^; Schroder, " Ein Worterbuch der alteren deutschen Rechtssprache " (Festschrift, of the 26th Deutscher Juristentag, 1902), p. 118 et seq. ; Boeppell, " Uber die Verbreitung des Magdeburger Stadt- rechts im Gebiete des alten polnischen Rechts ostwarts der Weichsel" (1857); Halban, "Zur Geschiehte des deutschen Rechtes in Podolien, Wolhynien, und der Ukraine" (1886); Frensdorf, ' "DskS Alter nieder- deutscher Reehtsaufzeiehnungen " (Hans. G. B. VI, p. 97 et seq.). 311 § 1] GERMANY [Part IV the earlier period had gradually fallen into disuse in German lands. The Leges [of Saxons, Franks, etc.] and the Capitularies of Char- lemagne and his successors were forgotten; for here they had not been, as in Italy, the object of constant legal instruction and of a legal literature. Their principles, even when these had taken firm root in customary law, were gradually invalidated by funda- mental changes in the constitutional bases of the Empire, by new distinctions of class, and by the changes in legal conceptions in- duced by changing cultural conditions. The contrast between popular tribal law and that of royal officials disappeared after the dissolution of the Frankish empire. The principle of the person- ality of law was so far weakened in favor of the territorial prin- ciple that tribal law was transformed, practically, into a terri- torial law binding upon every inhabitant. Until into the 1200 s the law is still normally an unwritten law: it is developed by the findings of lay-judges (" Schoffen ") ; in doubtful cases it is settled by the adoption of a doom, i.e. by a declaration of what is law in virtue of custom, such declaration being pronounced by local worthies, learned in the law, upon official inquiry. Legal development, like political development, followed the course of dismemberment and particularism; a phenomenon that is explainable, for the most part, by the absence of a coherent judicial organization and by the upgrowth of numerous special courts. In addition to the peculiarity, which had come down from the earlier time, of laws of different racial branches, new jurisdictions now split off for certain classes of the population, for certain territories, and for one and another legal status, these jurisdictions being connected with the formation of the special courts. Litigation over feudal relations, as well between lord and vassal as between the vassals themselves, went to the feudal court, in which the lord presided and the feudatories acted as the judg- ment-finders. The law thus developed was feudal law, and was complementary to the territorial law enforced in the folkmoots of the county and the hundred. Certain disputes between villein- tenants were settled in the manorial court of the lord. The manorial official — steward, bailiff, or the reeve of the vill — held the court; the members of the manorial community found the judgment according to manorial law, which took forms ex- ceedingly diverse in different manors. The household servants of the manor were subject (in a court which was also called manorial) to the jurisdiction of the lord they served. With the increasing 312 Chap. I] feudalism and the people's law-books [§ 1 importance of the manor's administrative service this class threw off the restraint of a special law (" Dienstrecht "), becoming sub- ject in their tenures to the general feudal law and in other matters to the territorial law. The dty was not originally the district of a separate court or law ; the different classes of its population lacked a common court and a common law. The freemen lived under territorial law, the " servientes " under servitary law, the serfs under manorial law. With the development of the town economy, however, there arose a special city court for all the citizens in commercial matters, based upon the immunity enjoyed by or specially conceded to the city's lord; and there thus arose a law peculiar to the cities. In northern and middle Germany this city law has been known since the second half of the 1100 s as " Weichbild." Only in a few cities was there an independent development of a town law : such pos- sessed primitive laws. On the other hand, many cities received their law by adoption, i.e. secured the conferment upon themselves of the town law worked out in another city. Through such adoption there arose extensive groups of town law, among which the Magdeburg and Liibeck groups were the most notable. The city of the mother law ordinarily remained in permanent connec- tion, as an appellate court, with that of the filial law. When- ever the lay-judges of the latter were uncertain of the law, they sought instruction from those of the other as a higher tribunal, or else laid the case directly before these for decision. Liibeck, Magdeburg, Eisenach, and Frankfort o/M were the most celebrated of such higher courts. German town law penetrated also beyond the borders of the Empire into the neighboring Slavic and Hungarian lands. The numerous colonies which were there founded by Germans retained for themselves the German law. In Poland, Magdeburg law became an essential characteristic of a city, and spread as a general city law into regions of wholly un-Germanic population. When, with the development of national sovereignty, independ- ent territories had taken form within the regions occupied by the different Germanic racial branches, there was developed in some of them a territorial law, distinct from the general racial law, which the court of the territorial sovereign served to precipitate and constitute. Thus, for example, in Bavaria, where the dis- integration of the racial law went farthest, separate systems of territorial law were developed for Austria, Salzburg, Upper Ba- varia, and Styria. And many a smaller district besides, many an 313 § 2] GERMANY [ParT IV isolated hundred, shire, or earldom, produced its individual law. The German royal court, which was the sole organ of centralized legal growth, could only imperfectly combat the various forces working for legal differentiation. It did not enjoy, as the Frankish court had enjoyed, a dominating position. While the declaration of the law at the traditional seats of popular courts was left gener- ally (in the courts for minor causes) to permanent lay-judges, whose lifelong ofSce was often heritable, the judgments rendered at any temporary royal camp and residence were not found by such permanent law-finders, but by the nobles and the officers of the royal household who happened to be present. In the struggle between the forces working for legal unity and legal diversity the organs of local legal growth had in their favor, therefore, from the beginning, the advantage of a firmer organization. Among the bodies of racial law, the Saxon, as depicted in the extant legal literature devoted to it, shows the greatest consistency and most coherent development. The laws of the Swabians, Bavarians, and Thuringians reflect the dominant influence of the Frankish law, whose institutions, in consequence of a heavy Frankish colonization, took root also, in part, within the domain of the Saxon law. The law of the Bavarians disintegrated into a number of independent territorial laws. No attempt at a sys- tematic presentation of this law like that of Saxon, Swabian, and Frankish law was ever made. The development of the Frisian law went on in relative isolation within a small domain of in- fluence; its legal sources are distinguished by the extreme archaism of their provisions. r From the 1200 s onward, written law appears in Germany in quantities. According to its origin, it takes the form of either statutes, or simple memorandum-books, or books of legal exposition (law-books). In the 1200s German takes place with Latin as the language of the legal sources, and from the middle of the century onward it predominates. Side by side with the written law, un- written customary law retained ascendency throughout an ex- tensive domain. § 2. Sources of Imperial Law.' — For imperial law down to the ' The statutes and other sources of imperial law down to 1313 are avail- able in Periz, "Mon. Germ, hist., Leges," vol. II. A better and fuller collection is afforded by the quarto edition of the "Leges " under the title, " Constitutiones et acta publiea imperatorum et regum," edited by Weiland (vol. I, 1893, covering 911-1197), Weiland (II, 1896; 1198-1272), Schwalm (III, 1904-1906; 1273-1298), Schwalm (IV, pts. 1 and 2, 190&- 314 Chap. I] FEUDALISM AND THE PEOPLE'S LAW-BOOKS [§ 2 middle of the 1100 s there are only scanty sources. Royal legis-"] lation became more active under the jjohenstaufen, who inter- I polated in the " Corpus Juris Civilis " a number of their own laws, in order to procure for them a wider currency and higher credit. Imperial statutes were enacted by the Emperor with the concur- rence of the great nobles, which he secured in the imperial diets. Among such statutes we must particularly distinguish, by their content, two groups: 1st. Public peaces, " eonstitutionespsicis." With the ascendency of chivalry private war had become so common among the knights, and the abuses of self-help had so increased the insecurity of the laws, that the State was no longer capable of repressing the fre- quent disturbances of the peace in a normal way, by the ordinary administration of justice, and on the penal principles of the cus- tomary law. Thus the king found himself compelled to establish from time to time by statute a king's peace, subjecting those who broke it (usually) to the severer penalties appointed for the punish- ment of crimes. The establishment of such a peace of the king generally took the form of a covenant ; it was sworn first between the king and the great lords with whom he joined, and these then caused it to be sworn locally throughout the land. These statutes of public peace either prohibited the feud outright or subjected its use to certain legal preconditions and limitations. They were either promulgated as permanent law or proclaimed a peace for only a definite number of years, estabhshing for this period a sort of summary and covenanted justice. The provisions respecting breaches of the peace constituted only the nucleus of the laws, which contained various other criminal, procedural, and police provisions. Numero^ peace covenants limited to particular provinces preceded or accompanied the imperial peaces. Public peaces proclaimed for the whole Empire go back as far as the time of Henry IV. In 1 103 a peace of four years was sworn at Mainz. Frederick I issued in 1152 a peace statute which, among other things, regulated the price of grain and prescribed a summary 1908; 1298-1313), Schwalm (V, pt. 1, 1909; 1313-1320). More modern statutes are found in the collection of "recesses" (Reichsabschiede) of the Diets (in the later and more complete edition of Senckenberg ana Koch, 1747). Better texts of the more important documents m Zeumer, ' ' Quellensammlung. ' ' Further, the ' ' Deutsche Reichstagsakten ' ' pubhshed by the Miinchener Historische Kommission, ed. Weizsdcker, Kerler, and others, covering (up to the end of 1909) the period 1376-1437 in 12 volumes. — Wyneken, "Die Landfrieden in Deutsohland von Rudolf I bis Heinrioh VII (1886) ; Schwalm, " Landfrieden in Deutschland unter Lud^g dem Baiern" (1889) ; von Zallinger, "Kampf um den Landfrieden (M.O.Or.i ., suppl. vol. IV, 443 et seq.). 315 § 2] GERMANY [Pakt IV process for trying law cases involving issues of feudal tenure. From the same ruler we have also the Roncaglia " constitutio pacis " of November 1158, and the Nuremberg peace of December 29, 1186, directed against incendiaries ("constitutio pacis contra incendiarios ")■ Of Henry VII, the son of Frederick II, we have the renewal, voted at Frankfort o/M in 1223 (or 1221), of an older Saxon peace; also the " Treuga Henrici," which probably originated in 1224 at Wurzburg; and the Frankfort peace of 1234. The most important and celebrated of these statutes is Frederick II's " Constitutio Moguntina " (Mainz) of August 15, 1235, which, in addition to feuds and breaches of the peace, regulated many other matters, such as customs duties, coinage, safe-conduct, ecclesiasti- cal stewardships, and the organization of the manorial court. Drafted in German, it was promulgated in an official German version in a diet at Mainz, and also recorded by the chancery in a Latin text. About 1400 the jurist Nikolaus Wurm wrote a gloss upon it. Upon this peace statute rest, in the main, the public peaces declared after the interregnum by Rudolf I and his immediate successors. An attempt to take a new and independent course is seen in the statute of 1438 drafted by Albert II, which undertook to abolish the right of private war completely, and proposed, for the administration of its provisions, a division of the Empire into four (according to an earlier draft, six) circles. On the other hand, a limited right of feud is still recognized in the Frankfort revision of Frederick III, of 1442, which treats also of the law of pledge, of safe-conducts, coinage, and Vehmic courts. A public peace of five years was proclaimed by Frederick III in 1467, and one of ten years in 1474. Finally, in 1495 a permanent peace was realized. In later Diets this was several times republished, revised, and provided with supplements. 2d. Constitutioiial Statutes. As such are to be named, including the Concordats, the following eight: (1) the Worms Concordat of September 23, 1122, which ended the struggle over investitures; (2) the " Sententia de regalibus " of Frederick I, of 1158, relative to the imperial regalia in Italy, but later adopted for Germany also on the strength of their embodiment in the " Libri Feudorum "; further, two laws important in the growth of national sovereignties, — (3) the " Privilegium " of 1220 that granted immunities to ecclesiastical princes, and (4) the " Statutum in favorem princi- pium," resolved upon by King Henry in 1231 in a diet at Worms, and confirmed, with some modifications, by King Frederick II in 1232 at Cividale; (5) the law of Ludwig of Bavaria of August 6, 316 Chap. I] FEUDALISM AND THE PEOPLE'S LAW-BOOKS [§ 3 1338, beginning "Licet iuris," passed in a Frankfort diet; (6) Charles IV's Golden Bull, the fundamental law of the Empire for the imperial election and the constitutional status of the electoral princes, and containing also provisions regarding the national peace, grants of municipal citizenship to rural residents, and other matters, — the first part (ch. 1-23) published at Nuremberg, January 20, 1356, the second (ch. 24-31) at Metz, December 25, 1356; ^ (7) the Concordat of Constance of 1418; and (8) the so- called Vienna Concordat (between Frederick III and Nicholas V) of February 17, 1448. The edicts issued and the immunities granted by the Kings must be counted, as well as the statutes, among the sources of imperial law; and likewise the decisions of the royal court, particularly be- cause, in doubtful questions, they stood as rules for like cases in the future. To the activity of the royal court was also due the origin of the " maxims " of imperial law declared by the princes as dooms, which embody general pronouncements upon legal questions. § 3. Compilations of Territorial and Feudal Law.^ — In the 1 The Golden Bull (so called only since the late 1300 s) utilizes in some passages the so-called " Schwabenspiegel." ^ References : Homeyer, " Die deutschen Reehtsbiicher des Mittel- alters und ihre Handsohriften" (1856) ; supplements available in the Z.R.G. ; a new edition of the work is in prospect. — Steffenhagen, ' ' Deutsche Rechtsquellen in Preussen vom 13 '^° bis zum 16 "^^ Jahrhundert ' ', (1875). " S ACHSENSPiBGEL ' ' : Homeyer, editor, ' ' Des Sachsenspiegels erster Theil : Landreeht" (3d ed., 1861) ; "Des Sachsenspiegels zweiter Theil nebst den verwandten Rechtsbiichern " (I, 1842, II, 1844); Weiske, editor, "Sach- senspiegel Landreeht " (8th ed., 1905). — Of the abundant literature see Homeyer, "Die SteUung des Sachsenspiegels zum Schwabenspiegel" (1853); Ficher, "tJber die Entstehungszeit des Sachsenspiegels und die Ableitung des Sohwabenspiegels aus dem Deutschenspiegel " (1859) ; Frens- dorff, "Tiber das Alter niederdeutscher Rechtsaufzeichnungen " (Hans. G.B., VI 97 et seq.). — The basis for critical edition of the glosses, which we still lack, was prepared by Steffenhagen, "Die Entwicklung der Land- rechtsglosse des Sachsenspiegels" (Wiener S.B., vols. 98-129). "Spiegel der detttschen Leute" : Picker, "tJber einen Spiegel deutscher Leute und dessen SteUung zum Sachsenspiegel und Schwaben- spiegel" (1857) ; "Der Spiegel der deutschen Leute" (text,_ 1859). — E. von Mailer, "Der Deutschenspiegel in seinem spraohlich-stilistischen Ver- haltnis zum Ssp. und zum Swsp." (1908). — Editions of the so-called "Schwabenspiegel" by Freiherr von Lassberg (1840); von Wackernagel (the Landreeht alone, 1840), von Gengler (Landreeht alone, 2d ed., 1875), and von Daniels (in the " Rechtsdenlnnaler des deutschen Mittelalters"), this last synoptically with the "Ssp." and the French "Swsp."; Matile, "Le Miroir de Souabe" (1843). A critical edition of the "Swsp." is lack- ing, but is in preparation hy von Rockinger upon the basis of an exhaustive study of the MSS. (See his reports in the Wiener S.B., vols. 73-122). The "GoRLiTZ Rechtsbtjch" in Homeyer, "Sachsenspiegel," II, 2. — /. /. Smits, editor, "De Spiegel von Sassen of zoogenaamde Hollandsche Sachsenspiegel" (N.B.Rg.W., pt. XXII, 1872, based upon the single 317 I 3] GERMANY [ParT IV " Sachsenspiegel" {" Speculum Saxonum," " Miroir de Saxe ") we possess an epoch-making record of Saxon law, which marks the beginning of the working over of the law into a legal literature. It was probably composed in the third decade of the 1200 s, cer- tainly between 1198 and 1235, by a Saxon knight and lay-judge, EiivE VON Repkow. His name, appears in documents of 1209, 1215, 1218, 1219, 1224, and 1233. He was a member ef the class from which the lay-judges of the manorial minor courts were exclusively recruited, and entered that other class of personal servants and administrative officers who managed the court and manor of a medieval lord. He wrote his work first in Latin, afterward work- ing it over into German, probably of the low-Saxon dialect, at the instance of Court Hoyer von Falkenstein, steward of the abbey of Quedlinburg. Four prefaces precede the text of the law-book. Of the first, the so-called " prefatio rhythmica," the second part was written by Eike himself, who gives us in it information re- garding the origin of his work. Of the dated manuscripts of the " Sachsenspiegel," the oldest is of the year 1295. The " Sachsenspiegel " includes a law-book of territorial and one of feudal law. The presentation of servitary, manorial, and town law is wholly excluded by the author from his task. We lack the Latin original.^ Though Eike von Repkow undertakes, it is true, a general presentation of Saxon law, the appHcability of the legal principles of the " Sachsenspiegel " is often limited to the Ostphalian portion of the territory occupied by the Saxons. Special attention is given to conditions in the Saxon marches, and to the special law of the North Swabians. Legal practice in the bishoprics of Magdeburg and Halberstadt was the chief source of Eike's legal knowledge. He probably made use of the Frankfort peace statute for Saxony of Henry VII, or else of some unknown MS. known). — Fidicin, editor, "Berliner Stadtbuch" (" Historiscli- diplomatische Beitrage zur Geschichte der Stadt Berlin," pt. I, with index and glossary in pt. Ill, 1837, — reprint by P. Clauswitz, 1883). — "Der LivLANDiscHE Spieqel" in Bunge, "Altlivlands Reohtsbiieher " (1879). — L. von Maurer, editor, "Das Stadt- und das Landrechtsbueli Ruprechts VON Freysing" (1839). — Endemann, editor, "Das Kaiserrecht nach der Handschrift von 1372." - — C. 0. Homeyer, editor, "Der Richts- TEiG Landrechts nebst Cautela und Premis" (1857) ; the "Richtsteig Lbhnrechts" in Homeyer, "Sachsenspiegel," II, 1. — On the "Vehm- RECHTSBiJCHER," See von Wachter, "Beitrage zur deutschen Geschichte, insbesondere zur Geschichte des deutschen Strafrechts" (1845) ; Lindner, "Die Verne" (1888), pp. 264 et seq. — Homeyer, "Uber die Informatio bo Speculo Saxonum" (1856). — Bohlau, "Theodorich von Bockdorffs Gerichtspormbln, (Z.iR.G., II, 415). 1 The relation of the "Vetus Auctor de Beneficiis" to the "Sachsen- spiegel " still demands an exhaustive study ; it can hardly be an original text; c/. Ernsl in "Neues Archiv," XXVI, 207. 318 Chap. I] feudalism and the people's law-books [§ 3 peace statute nearly related to it. The treatment of the truce of God (II, 66, § 2) rests directly or indirectly upon the " Summa Decretalium " of Bernardus of Pavia, written toward the end of the 1100 s. The legal doctrine laid down regarding the election and coronation of the German king reflects the opinions which men had been led to form, in Saxony, by the disputes between Otto IV and Philip of Swabia with Frederick II over the succession. With the conservative spirit of a low-Saxon, Eike (as he tell us in his rhymed preface) pursues the end of presenting the law handed down from his forefathers. In a few places, however, a certain fondness for arithmancy dims the clearness of his vision. On the other hand, in his strongly marked legal sense and juristic logic he appears as an epoch-making reformer, formulating with bold originality legal principles which only subsequently, and on the strength of his authority, became an actual part of the law. The " Sachsenspiegel " quickly acquired great prestige. Al- though the work of a layman, it was given the authority of a statute-book in the Saxon courts. In the 1300 s it was already believed to be in fact a statement of imperial legislation, the book of territorial law being ascribed, in its greater part, to Charlemagne, and the book of feudal law to Frederick I. It was translated not only into various Germanic dialects, notably into high German and Dutch, but several times into Latin and also into Polish. The medieval art of illustration lent itself also to the service of the law-book, providing the text with a continuous series of illumi- nated pen drawings in pictorial representation of its content. Of such illustrated manuscripts there have been preserved to us, from the 1300 s, those of Heidelberg (1300-1315), Oldenburg (1336), Dresden (circa 1530), and Wolfenbiittel. All rest, directly or in- directly, upon a lost manuscript of Meissen of the late 1200 s. In the 1300 s the " Sachsenspiegel " was furnished with a gloss. The oldest gloss on the territorial law we owe to Johann von BuCH, a knight of the march, who had studied in 1305 at Bologna; it was written after 1325 and probably before 1335. It was later worked over and enlarged by Nikolaus Wurm, still in the 1300 s, and by Brand von Tzerstede and also by the brothers Bocksdorf in the 1400 s. About the middle of the 1300 s the " Sachsenspiegel " feudal law was provided, after the pattern of the Buch gloss, first with a short and then, in amplification of this, with a longer com- mentary, the latter being revised in 1386 by Nikolaus Wurm. About half a century later than the Buch gloss there originated at Stendal an independent commentary glossing both the territorial 319 § 3] GEHMANY [Pakt IV and the feudal law. The author shows acquaintance, not only with the Saxon law-books and the Buch gloss, but also with practice in the minor popular courts of Magdeburg and Stendal, the "Lombarda," and legal systems wholly foreign, and with their literature; but he is less free than Buch from the influence of the foreign law, making of its principles and those of the native law a motley mixture. — Several articles of the " Sachsenspiegel " were attacked as unchristian and heretical by a Saxon Augustine monk, Johannes Klenkok. A polemic tractate against it which he transmitted to the Pope in 1372 resulted in the bull "Salvator generis humani," by which Gregory XI, in 1374, reprobated fourteen articles of the law-book and forbade their enforcement. The " Spiegel der deutschen Leute " (or " Deutschenspiegel ") originated about the middle of the 1200 s in South Germany, pre- sumably in Augsburg. It is based upon the " Sachsenspiegel "; but, instead of confining itself to the law of a single Germanic racial branch, undertakes to present Germanic " common " law. In this work the territorial law of the " Sachsenspiegel " as far as II, 12, § 13 is so revised, with the aid of various German and foreign legal sources, as to represent South-German conditions. From II, 12, § 13 onward it is translated with few changes into a South-German dialect. The last is true also of the feudal law. For the rest, this " Deutschenspiegel " was soon displaced by the " Kaiserliches Land-und Lehnrecht," — wrongly known since in the 1600 s as the " Schwabenspiegel," — whose unknown author, a churchman, carried to completion the work left unfinished in the " Deutschenspiegel," working over the erfKre " Sachsenspiegel " (as known to him in a version of the former woi;k) into a presenta- tion of all Germanic law. In addition to a motley lot of diverse sources he used especially a German version of the sermons of Berthold von Regensburg. In the territorial law of this so-called "Schwabenspiegel" three parts must be distinguished: a first, which is based directly upon the revision already completed in the "Deutschenspiegel"; a second, which works over and am- plifies the translation given in that work of the " Sachsenspiegel "; and, finally, as the third part, a collection (not quite critically made) of legal materials, — among others, passages from the " Lex Alemannorum," the " Lex Baiuwariorum," and the Epitome " Aegidii." The time and the place of origin of the law-book are disputed. According to an older view (maintained by Julius Fischer, and justly predominant), it dates from 1274-1275, and probably had its origin in Augsburg. On the other hand, Rockin- 320 Chap. I] FEUDALISM AND THE PEOPLE'S LAW-BOOKS [§ 3 ger (who has for many years been preparing a critical edition of the " Kaiserliches Land-und Lehnrecht ") has sought to prove that it was written first in preliminary form at Bamberg in East Francia, in 1259, and then revised the same year in Wiirzburg. While the history of the " Sachsenspiegel " manuscript was such as to compel an enlargement of the original text, that of the so-called " Schwabenspiegel " led to its abridgment. Like the " Sachsen- spiegel " the " Kaiserliches Land-und Lehnrecht " attained a wide dissemination in manuscript, and an enduring reputation. It was translated into Latin, French, and Czech. Both law-books were revised to meet the needs of particular districts. Such revisions of the "Sachsenspiegel" are: (1) the " Gorlitz Lawbook " (of territorial and feudal law) of the begin- ning of the 1300s; (2) the " Breslau Territorial Law," to be further referred to below; (3) the so-called " Dutch Sachsenspiegel," a law-book written by a churchman in the Netherlands, perhaps within the bishopric of Utrecht, which makes use (in rather an independent way) of the " Sachsenspiegel "audits glosses, contain- ing also Mosaic law and the customary law of northern France; (4) the law of the minor popular courts included in the " Town- book " of Berlin of 1397 (Book III), which is a revision, with re- gard to Brandenburg law, of the " Sachsenspiegel," the Buch gloss, and the " Pathway through the Territorial Law " (§ 12, below) ; (5) the "Livonian Mirror," written probably in the 1300 s, a selec- tion from the "Sachsenspiegel" which ignores such of its principles as are impracticable for Livonia. A union of the Livonian Mirror with a book of Livonian feudal law (the so-called " Oldest Livonian Feudal Law ") produced the " Feudal Law of Middle Livonia." A union of the Livonian Mirror with a peasant law intended for Oesel and with the Oldest Livonian feudal Law pro- duced the so-called " Wiek-Oesel Feudal Law." A book of feudal law adapted to the bishopric of Freiburg rests upon a revision of the " Schwabenspiegel " ; its author was presumably Ruprecht von Freising, who in 1328 also worked out, with the aid of that work, a book of city law for Freiburg. Both works were united in the 1400 s into one law-book for the town and territory of Freiburg. In the last years of the 1200 s or in the first half of the 1300 s an author to us unknown, but probably of Franconian Hesse, wrote a law-book known as the " Kleines Kaiserrecht." It aims to present common law as fixed by Charlemagne for the whole of Christendom, and as the source for its different principles usually adduces the command of the Emperor. In the majority of the 321 I 4] GERMANY [Part IV manuscripts the work is divided into four books, which treat of judicature, of private and criminal law, of the empire's administra- tive service, and of town law. Special attention is given to the imperial administrative under o£Bcers and to the free (imperial) villages. The " Pathway through the Territorial Law," written by the Johann von Buch already named, presumably in 1335, affords a supplement to the " Sachsenspiegel," namely, a record of the procedure of the Saxon territorial courts. A complement to this law-book, the " Pathway through the Feudal Law," was prepared before the end of the 1300 s by an unknown author. For Saxon legal procedure one must take note, further, of two smaller works of the middle of the 1300 s, the " Cautela " and the " Premis " of Hermann von Osfeld, which contain precautionary rules of con- duct for one's guidance in court. Also of the " True Custumal of feudal Law," a little book on feudal procedure; the books of the Vehmic courts of Westphalia (of origin since 1437) ; and the " Informatio ex Speculo Saxonum," a work which probably origi- nated in the second half of the 1400 s in Westphalia, and which criticises the deviations from the "Sachsenspiegel " in the practice of the courts of its time. And, finally, a collection of practice rules by Dietrich von Bocksdorf of the middle of the 1400 s. In the field of Prankish law mention must be made of a "Formulary of Procedure against Pernicious People" ("wie man richtet vber ainen mentschen "), which originated in Nuremberg in the late 1200 s or the early 1300 s; also of a Frankfort book of legal pro- cedure of the 1300 s the "Baculus Judicii," which was utilized by Fichard in preparing the Frankfort "Reformation'';^ and finally, a collection of practice rules for the courts of Mainz of the 1400 s. § 4. Territorial and Local Law. ^ — Of enactments affecting the 1 [That is, the revision of municipal law — such as many cities under- took — after the Reception, for the purpose of harmonizing the old town law with the new Romanistic elements. The Frankfort revisions were of 1509, 1578. — Transl.] 2 References : Merkel, editor, " Constitutiones Henriei duels Rans- hofenses" (in "Mon. Germ, hist.. Leges," III, 484); K. von Bichthofen, editor, "Friesische Reohtsquellen " (1840), also an old-Frisian dictionary (1840) ;..De Haan Hettema, editor, "Oude friesche Wetten" (1846-1847). The "Uberkiiren" and the Latin text of the "Vetus Jus Frisicum," also the "Leges Upstalsbomioae " are found in better form in von Richthofen, "Untersuehungen iiber friesische Reohtsgeschiehte " (I, 1880). The low- German legal sources of East Friesland edited by von Borchling, "I: Die Rechte der Einzellandsehaf ten " (1908). The north-Frisian sources are in von Richthofen, "Friesische Reohtsquellen," p. 561. The Dietmarsch territorial law is in Michelsen, ' ' Sammlung altdithmarscher Reohtsquellen " 322 Chap. I] FEUDALISM AND THE PEOPLE'S LAW-BOOKS [§ 4 entire territory of a racial branch but few examples have come down to us. An example of a ducal ordinance, from the end of the 900 s, is afforded by the Ranshof " Constitutions " of the Bavarian duke Henry II. The effect of such a racial statute law is approached in impor- tance by the Frisian "Elections" ("kiiren," " keuren "), which belong to the oldest and most archaic sources of this period. The Frisian districts (" gau ") between the Zuyder Zee and the Weser, which were parceled out among different earldoms, concluded an aUiance for the maintenance of peace among themselves and with outside powers; thus supplementing rather than repudiating the authority of their earls, whose inability to meet the task had been proved, while no superior ducal authority that could have done it justice existed in Friesland. The allied districts held meetings of their sworn plenipotentiaries (" iurati," " deputati ") at XJp- stalsbom, in Asterga, not far from Aurich. Among the purposes of these assemblies was that of consultation regarding the law that the Frisians should observe. The activities of these assemblies at Upstalsbom, in fixing and improving the Frisian Law, have furnished us some of the older sources of the Frisian " common " law. To such belong: (1) the Seventeen Elections ("kesta," " petitiones," " electiones "), a compilation of legal principles due to the pen of a scholar, presumably some ecclesiastic, which Charle- magne is represented as having guaranteed the Frisians upon their petition; (2) the Twenty-four Territorial Laws (" londriuchta," " constitutiones "), dooms of the contemporary Frisian law, in part textually identical with the Seventeen Elections; (3) the Seven Greater-Elections, of which the first three relate to the constitution of the confederation; (4) the general " B6t-tariff," which was primarily a catalogue of compositions paid for wounds. (1842). Bavarian territorial law in Freyberg, "Sammlung historisoher Schriften und Urkunden" (1827-1836), IV, 381; J. Fischer, "Das altere Rechtsbuch Ludwigs des Bayem" (1908). The Drent territorial law in von Richthofen, "Friesische Rechtsquellen" ; in better form in Magnin, " Overzigt van de Besturen in Drenthe," II, 2, pp. 229 et seq. (1842). The so-called "Rheingauer Landrecht" in Bodmann, " Rheingauisohe Alter- thtimer," p. 624 (1819) ; followed by Grimm,- "Weisthiimer," 1,539 et seq.; cf. Z.2R.G., Ill, 87 (Brunner), XXIV, 309 {H. Meyer). Austrian terri- torial law in A.K.O.G.Q., vol. X, ed. by Meiller; Victor Hasenohrl, "Osterreichisohes Landesrecht im 13. und 14. Jahrhundert" (1867); and von Schwind and Dopsch, "Ausgewahlte Urkunden zur Verfassungsge- sohiohte der deutsch-osterreiohischen Erblande," pp. 55 et seq., 101 et seq. (1895). Of the abundant literature, see Hasenohrl, "Beitrage zur Ge- sohiehte der Rechtsbildung und der Rechtsquellen in den osterreichischen Alpenlandern " (1905); F. Bischoff, editor, " Steirmarkisches Landrecht des Mittelalters" (1875). On the Berg "Landesrecht," Lacomblet, in A.G.N.R., I, 79 (1832). 323 § 4] GERMANY [Pabt IV The legal sources just enumerated have all been preserved to us in the Frisian language and also (save the Greater-Elections) in a Latin text; and further (excepting the B6t-tariff) in later texts of a low-German dialect. The time of origin of these older sources of Frisian common law is disputable and uncertain. The Elections, Provincial Laws, and Greater-Elections contain legal principles whose origin implies a time when the Frisian courts were frequented by heathen Northmen; this would indicate the 1000s as the time of their composition. At all events they were recorded before the beginning of the 1200 s. The Assembly of Upstalsbom broke up after 1231, but was re- newed in 1323 in a somewhat altered character. While the older peace confederation did not affect the relation of the individual districts to their earls, the alliance of 1323, whose compact bears the name of the " Leges Upstalsbomicse," was directed against the Count of Holland, the lord of the Westergoo, whose conduct had furnished the motive for the renewal of the Confederation. The new confederation itself was dissolved after four years. A compact drafted at Groningen in 1361 owed its origin to an attempt by that city (which, with the aid of Frisian country districts, was trying to throw off the sovereignty of the bishops of Utrecht) to renew under its headship the confederation of the Frisian gau-s. Besides the sources of Frisian " common " law, we possess special statutes and unofficial records of the law of individual " gau-s " and districts, — such as the taxation law of Westerloo, the Hunsing elections of 1252, the Riistring statutes (of the 1100 s and 1200 s) — " true pearls of ancient Frisian legal poetry," — and the com- prehensive Brokmannen law, rich in materials, of the period 1276- 1345. The " voluntary agreements " (" BeUebungen ") of the north Frisians, of the 1400 s, the Ditmarsch territorial law, — which was first recorded in consequence of a resolve of the territorial Diet in 1448, with supplements down to 1467, — and the statutes or public books of some districts of Switzerland, were products of independent legal development. Within those territories in which the ruler's power attained any considerable development toward sovereignty, the princes exercised the right of granting privileges and franchises, of establishing public peaces, and of issuing, with the assent of the great nobles of the land, general and binding rules of law. Examples of such territorial ordinances originating as enactments are the Kulm Guarantees (" Handfeste ") of the Grandmaster Hermann von 324 Chap. I] FEUDALISM AND THE PEOPLE'S LAW-BOOKS [§ 5 Salza, of 1233, for the territory of the Teutonic Order; the Salz- burg Ordinance of 1328 of the Archbishop Frederick III; the Territorial Law of the Emperor Ludwig for Upper Bavaria, of 1336, revised and enlarged in 1346; and the Territorial Law of 1356 prepared for the principality of Breslau, an ofHcial recast of the " Sachsenspiegel." Mention must be made also of the Terri- torial Law of Drent of 1412, a canon of the Bishop of Utrecht, Friederich von Blankenheim, not very comprehensive, which con- firms the customary law of the district of Drent. This appears also in a pretended legal monument which was published as the territorial law of the Rheingau, and whose first part is in fact a translation or an abstract, in a south-German dialect, of the Drent law, while the second part of the compilation consists of legal principles bor- rowed from various Dutch legal sources. The older formulation of Austrian territorial law appears to be a mere record of current unwritten law, composed in the winter of 1236-1237, in the endeavor to perpetuate the legal conditions of the time of Duke Leopold VI and secure a confirmation of the same by the Emperor Frederick II; whereas the law in its later version is presumably a statute of King Ottokar of Bohemia, then the suzerain of Austria, worked out in 1266 upon the basis of the older version. Other records of territorial law are the feudal and territorial law of the earldom of Berg, of the years 1355-1397; and a Styrian territorial law of the middle of the 1300 s, which was also adopted in Carinthia. § 5. Manorial and Servitary Law.^ — Servitary law took shape on the manors of different lords in great variety, because for the manorial administrative service there lacked such a single head as the feudal system possessed in the kingship. The necessity of recording the rights and duties of the administrative class was first felt in the chapter-houses, where the class first attained a con- spicuous position. The oldest bodies of servitary law still treat 'References: Dienstrecht : Ficfcer, " Uber die Entstehungsverhalt- nisse der Constitutio de expeditione Romana" (Wiener S.B., vol. LXXIII, p. 173). For the other forms of servitary law mentioned : von Fiirth, " Ministerialen " (1836). — "Weisttjmer" : see the collection of /. Grimm, continued after his death by Schroder (6 vols., 1840-1869, and an index vol. by Schroder, 1878); Hardt, editor, "Luxemburger Weis- thiimer als Nachlese zu J. Grimm's Weisthiimern " (1870); Rochholz, editor, "Aargauer Weisthiimer" (1876); ffabeis, "Limburgsche Wijs- dommen, Dorpscostumen en Gewoonten" (1891); Loersch, "Die Weis- tiimer der Rheinprovinz (1, 1 ; 1900). An exhaustive collection of Austrian dooms (in progress since 1870) has been arranged for by the Vienna Akademie der Wissensehaften, including Gmilr : "Die Rechtsquellen des Kantons St. Gallen, Erster Teil : Offnungen und Hofrechte" (I, II, 1903-1906). 325 § 5] GEEMANY [Pabt IV these administrative servants as a special group of the landholding community, or of the " family " of the church, whereas the later ones treat them as a wholly distinct class in society. Of the records of servitary law, many assume the form of or- dinances. The reason is that in the course of the 1100 s the attempt was made in ecclesiastical establishments, especially in imperial abbeys, to settle (with the aid of forged documents) the rights and duties of the officials, who threatened to grow beyond the control of the church. In Reichenau there originated about 1150 the so-called " Constitutio de Expeditione Romana," a body of servitary law forged in the name of Charlemagne. A manorial and servitary law for three manors of the Strassbourg cathedral goes under the name of Dagobert II; a law of the cloister of Ebersheim, in Alsace, in the name of Lewis the Pious. The servi- tary law of Erstein, in Alsace, is forged in the name of the Empress Irmgard (853); that of St. Maximin (in Trier) in the name of Henry III (1056). Records of servitary law which remained wholly free of forgeries are those of Bamberg (of the 1000 s) Cologne (1154-1176), Basel (in German, of the second half of the 1200s), Magdeburg, and Hildesheim (both the last of the 1200s). The so-called " Leges Feudales Teklenburgicse," an ordinance of Count Otto von Teklenburg of the end of the 1200 s, are servitary law of secular lords. The manorial laws, in by far their greatest part, originated and developed as customary law. Enactments of manorial law are rare. One of the oldest and most important is the " Lex Familiae Wormatiensis Ecclesiae," an enactment of Bishop Burchard von Worms of the years 1023-1025, inspired by an endeavor to protect the serfs of the church against oppression by the stewards, the bailiffs, and other administrative officers. The majority of the manorial laws which we possess in written form can be traced back to dooms. The reason lies in the practice of manorial communities to settle the current law every year on definite days, upon the basis of an official " inquisitio." The manorial official (steward or bailiff) asked in the assembly (" halimot ") what might be the law in a given case: the members of the manorial community, under oath, gave the answer. By exchange of question and answer, the topics of the customary law were more or less com- pletely exhausted. Communities of the mark, of free villages, and of rural peasantry imitated this custom of fixed inquests upon the law. In course of time, owing either to particular causes or to the general consideration that writing is after all more durable 326 Chap. I] FEUDALISM AND THE PEOPLE'S LAW-BOOKS [§ 6 than human memory, these dooms were written down. The records, hke that which they preserve, are known variously as " wisdoms " or dooms, " disclosures," " taidinge," " Bantaidinge," or " Ehehafttaidinge." ^ § 6. Sources of Town Law.^ — Written town law presents as its oldest source privileges ("Handfesten ") conferred by the king or the town lord, particularly with a view to the town's founda- tion. From the 1200 s onward the cities acquired, either by actual prescription or express grant, the right of independent enact- ment, — the so-called " elective right." From this time on, the " self-governing rules " (" Willkuren," " Schraen ") of the cities — ordinances of councils or declarations of law by the lay-judges — became a part of the sources of town law. Not infrequently a ' ["Weistiiiner" ; "Ofinungen" — i.e. that which is "eroffnet" (dis- covered, found) in the popular court; "Taiding" — "Ding" being the old name for the popular court, and ' ' Tai-ding ' ' an uncommon variant ; ' ' Ban- taiding," the "ungebotenes (or, echtes) Ding" to which the suitors came without summons to try " oaussB maiores," and which were held under bann ; "Ehehafttaidinge," — i.e. "Eh(e)haft," legitimate or "echte Dinge." — Tkansl.] 2 Rbpekencbs : A succinct review of the most important sources of town law is given in Kraut-Frensdorff, "Grundriss zu Vorlesungen liber das deutsche Privatrecht" (6th ed.), § 8, pp. 25 et seq.; Gengler, "Deutsche Stadtrechte des Mittelalters, teils voUstandig oder in Probe- ausziigen" (1852); Gaupp, "Deutsche Stadtrechte des Mittelalters mit rechtsgeschiohyiohen Erlauterungen " (1851). — " Oberrheinische Stadt- rechte": I, "Frankische Reohte" (in progress; 8 parts, 1895-1.909), II, "Schwabische Rechte" (in progress, 2 parts for Villingen and tjber- lingen, 1905-1908), III, "Elsassisohe Rechte" (in progress since 1902). — Telling, " De friesche Stadrechten " (1883). — " Westfalische Stadtrechte :" 1:1, Lippstadt {Overmann, editor, 1901), — Keutgen, "Urkunden zur stadtisohen Verf assungsgeschichte " (1901); Gaupp, "Das alte magde- burgisohe und hallische Recht" (1826); Laband, editor, "Magdeburger RechtsqueUen zum akademischen Gebrauch" (1869); Theodor Neumann, "Magdeburger Weisthtimer aus den Originalen des Gorlitzer Rathsar- chivs" (1852). — Schoffen-judgments in Wasserschlehen, "Sammlung deutscher RechtsqueUen" (1860), "Deutsche RechtsqueUen des Mittel- alters" (1892) ; Siobbe, "Beitrage zur Geschichte des deutschen Rechts" (1865); Friese and Liesegang, editors, "Magdeburger Schoffenspriiche " (I, 1901). — For town law-books Thiingen, editor, "Das sachsische Weichbild" (1837); Walther, editor, the same after a MS of 1381, with glossary (1871); Ortlof, editor, "Das Rechtsbuch nach Distinetionen nebst einem Eisenachischen Rechtsbuch" (1836); Boehlau, editor, "Die Blume von Magdeburg" (1868); Behrend, editor, "Die Magdeburger Fragen" (1865); cf. von Martitz, "Die Magdeburger Fragen kritisch untersueht" (Z.iR.G., XI, 401); alphabetical collection of Magdeburg Schoffen-judgments in Wasserschlehen, "Deutsche RechtsqueUen des Mittelalters," p. 1 (1892). — The "Neun Biicher Magdeburger Rechts" are available only in old prints ; the oldest edition is of 1574 ; cf. Stef- fenhagen, "Die Neun Bticher Magdeburger Rechts" (1865); Toppen, editor, "Das Danziger Schoflenbuch" (1878); H. Ermisch, editor, "Das Freiberger Stadtrecht " (1889) ; Schuster, editor, "Das Wiener Stadtrechts- oder Weichbildbuch " (1873) ; /. A. Fruin en Pols, "Het rechtsboek van den Briel" (1880). 327 § 6] GERMANY [PaHT IV solicitation of the grant of one city's law to another gave direct incitement for the recording of its customary law. Thus our knowledge of Magdeburg law is derived in large part from the legal notices that were forwarded from Magdeburg to Duke Henry I of Silesia at the beginning of the 1200 s (the so-called Magde- burg-Goldberg law) ; from the city of Halle (endowed with Magde- burg law) to Neumarkt in 1235; from Magdeburg in 1261 and 1295 to Breslau, in 1304 to Gorlitz, in 1338 to Kulm, in 1363 to Schweidnitz, in 1364 to Halle. Similarly the law of Liibeck is preserved for us in notices of its law forwarded to Tondern (1243), Reval (1257, 1282), Danzig (1263), Elbing (1270), and Kolberg (1297) . In some cities, to meet the need of the local administration of justice, the council ordered the recording of the existing cus- tomary law. To such an order, for example, we owe the origin of the detailed ordinances of Goslar, at the end of the 1200 s or beginning of the 1300s. Here and there "judgment books" were opened; elsewhere "town books," whose purpose might be various : either they were designed to compile the law peculiar to the city (like the town book of Augsburg opened with the approval of Rudolf I in 1276, and the " magnus civitatis liber " of Dort- mund); or to be records of different branches of the city's ad- ministration (as the town book of Quedlinburg) ; or to be registers of penalties decreed (" Wettebiicher," wager books) ; or of sen- tences of imprisonment (as the prison book of Stralsund, 1310- 1472) ; or, finally, they were instituted — as, the so-called " ground books," " cabinet books," " surety books," " court books," or " Schoffen-books " — and with a continually increasing specializa- tion of record, to give official authentication to the legal transac- tions of the citizens. Among unofficial contributions to city law there must be named (in addition to mere memorandum records) treatises on city law, as well as private compilations and editions of the judgments of the lay-judges in the town courts. The legal literature of city law (like that of territorial and feudal law) had its beginning in Saxony. The oldest are editions of Magdeburg law. Of these the following are the most important : (1) The " Sckhsische Weichhild," ("Town Law "). At the end of the 1200s or beginning of the 1300s the so-called " Schoffen-law " (by the lay-judges) of Magdeburg was worked out on the basis of Alagdeburg dooms that had been sent from jNIagdeburg to Breslau. Before 1269 an unknown author wrote an instructive work upon the organization of the courts, which was subsequently provided with a few additions. The two 328 Chap. I] feudalism and the people's law-books [§ 6 works were united without any effort to reconcile their content, and the result of this union was the much-used Saxon Town Law; it was translated into Latin, Polish, and Czech, and was glossed with reference to the Roman and the Canon law. (2) The " Law book of Meissen " or the " Rechtsbuch nach Distinktionen," a book of Silesian territorial law and an amplified " Sachsenspiegel," so called because of its division into " distinctions." The author undertakes to present the town law of Saxony generally, and strives to make clear the differences between territorial law, city customary law, and city law based upon imperial immunities. For the first, he utilizes the " Sachsenspiegel " ; for the second, the Magdeburg law; for the third, the city law of Goslar. This comprehensive law-book originated after the middle of the 1300 s within the " mark " of Meissen. In the first half of the 1400 s it was recast by Johannes Roth (died 1434), town clerk of Eisenach, with the assistance of other sources to fit the conditions of Eisenach, into a " Law-book of Eisenach." This same Johannes Roth also com- posed for Eisenach the so-called "Law-book of Johann Purgoldt." (3) The " Blume (Flower) von Magdeburg." About 1386 Niko- laus Wurm of Neu-Ruppin, a jurist of the Romanist school and an author alike productive and tasteless, wrote a law-book under the above title, which purports to be a product of the bench of " Schof- fen " of Magdeburg. Wurm himself rehashed it later into a new work which he called the " Blume des Sachsenspiegels." (4) The " Systematisches Schoffenrecht," of the middle of the 1300 s, resting upon charters of the town law of Magdeburg and Breslau and the judgments of the lay-judges of Breslau. Its systematic arrange- ment is of interest because made in complete independence of the Roman and Canon law. (5) The "Glogau Law-book" of 1386, which utilizes very freely the " Systematic Schoffen-law," (6) The " Alter Kulm," the old lawbook of Kulm, a recast of the " Systematic Schoffen-law " (brought to Kulm toward the end of the 1300 s), was adopted in the Prussian courts, and amplified with supplements from the " Schwabenspiegel." The work was fitted out with a gloss that cites parallel passages from the " Sachsen- spiegel " and various books of Saxon city law. (7) The " Magde- burger Fragen" a compilation and discussion of inquiries directed to Magdeburg as an appellate court, with the decisions given upon them. The work exists in three versions, an unsystematic, a systematic, and an alphabetic. The first is the oldest; it draws upon a judgment book compiled in Krakau from Magdeburg decisions, upon Magdeburg judgments forwarded to Thorn, and 329 § 6] GERMANY [PaeT IV upon the Alter Kulm; it originated in Prussia, presumably in Thorn, between 1386 and 1400. The author of the systematic compilation was probably the same as that of the unsystematic, from which it is distinguished by its arrangement and also by a considerable addition of matter; it originated before 1400, likewise in Prussia. The alphabetic version, which adds, among other things, Pomeranian law findings, was written in Pomerania, pre- sumably in Stettin, in the 1400 s, on the basis of the unsystematic version. (8) The " Neun Biicher Magdeburger Rechts," or the " Distinctions of Walther," were begun in 1400 and completed in 1402 by Walther Ekhardi, town clerk of Thorn, who worked into them the " Sachsenspiegel " and its glosses, the " Lawbook of Meissen," the " Magdeburg Questions," the " Saxon Weichbild," and the " Alter Kulm." An abbreviated recast, probably ex- ecuted by Walther himself before 1409, was first published by a notary of Konigsberg, Albert Polman, and is named after him as the " Polman Distinctions." (9) The " Danziger Schoffenbuch." About the middle of the 1400 s there originated at Danzig (without any provable utilization of other legal sources), an independent law-book, which bears the title, " The Customary Law of Kulm." It embodies a record of legal principles which were in current practice in Prussia under the influence of Kulm as an appellate court. This law-book, together with ordinances of the lay-judges of Danzig, Danzig self-governing ordinances, and a few passages from the "Pollman Distinctions" and the "Law-book of Meissen," were united before the close of the 1400 s in a compilation pub- lished as the " Danzig Schoffen-book." Independent of the Magdeburg law was the town law-book of the city of Freiberg in the mark of Meissen. It is a private work, notable for its detailed consideration of legal procedure, which originated between 1296 and 1307, and acquired official authority. Of the city law-books of southern Germany, in addition to that of Ruprecht von Freising, already named, there should be mentioned the " Vienna Lawbook," of the middle of the 1300 s (subsequently enlarged by interpolations from the " Sachsenspiegel ") ; and the " SchofFen-Book of Briinn," one of the better legal works of the ^Middle Ages, compiled in Latin about the middle of the 1300 s out of immunity grants, town ordinances, and " Schoffen-judgments " of Briinn, together with original commentaries of the compiler, all arranged alphabetically under rubrics by one Johannes (von Gelnhausen?), a town clerk of Briinn who was well versed in Roman and Canon law. The town law of Wiener-Neustadt, of Chap. I] feudalism and the people's LAW-BOOKS [§ 7 the second half of the 1300 s, is a private work which assumes the guise of an ordinance of one Duke Leopold of Austria. Among the sources of the town law of middle Germany, the law-book of the Thuringian city of Miihlhausen, which originated about the middle 1200 s, is conspicuous for its suggestiveness for legal history ; and among those of the Netherlands the law-book of the city of Briel, written early in the 1400 s by the clerk Johannes Mathiee (Jan Matthijssen). § 7. Documents and Formularies.' — The documents of the royal chancery (of which only the more important charters were still made out in the elaborate form of diplomata) followed for two centuries their Carolingian models. An essential innovation, which brought about a complete change in the personnel of the chancery, began under Henry IV, and became under Lothar III the rule: a document of the royal chancery lost its original and peculiar character in contrast with private deeds, as an indisputable and self-authenticating document. The transition was facilitated by the custom (which began to appear under Henry IV) of naming as witnesses of the royal act the persons whose advice or presence was, in the former practice, mentioned in the text of the document. In the end, the witnesses came to be regarded as a means of attest- ing the formal genuineness of the royal document, equally with the signature and the seal. Until in the 1100 s the seal was pressed upon the document. After Konrad III attached seals make their appearance, becoming the rule for franchises. In the 1200 s the practice begins of causing royal documents to be jointly sealed by the princes, as proof of their concurrence. In more important cases it becomes customary to express that concurrence, not by such joint sealing, but in a supplementary document (a " Willebrief "). From the 1300 s onward chancery usage distinguishes letters as " litterse patentes " (patents), upon which the seal is stamped or hung, and " litterse clausse," which are locked with the seal. As regards private documents, a retrogression began after the dissolution of the Prankish monarchy. The formal " carta " dis- appeared, where it had come into use, and is replaced by the in- formal " notitia," or by wholly unauthenticated documents. The ' References : Jul. Picker, "Beitrage zur Urkundenlehre" (1877- 1878); Bresslau, "Handbuoh der Urkundenlehre" (I, 1889); Posse, " Lehre von den Privaturkunden " (1887); Rockinger, "tjber die Formel- buoher vom 13.'™ bis zum 16.'™ Jahrhundert als reohtshistorische Quellen" (1855), and "Brief steller und Pormelbucher des 11.'™ bis 14.'*° Jahr- hundert, in "Quellen und Erorterungen zur bayrisohen und deutschen Geschiohte," IX (1863). 331 § 7] GERMANY [Part IV explanation of this deterioration in the usage for private documents is to be found in the [Germanic traditional preference for proof by witnesses and the] disregard for the self-authenticating effect of a document. But the rise and extension of the use of the seal [from the 1000 s to the 1200 s] led to a new stage in the usages for private documents. The seal had originally [in Roman and post-Roman times] served merely to fasten or identify the documents. But it now became, first for royal documents, then for those of clerical and secular magnates, one means of authenticating the document, and eventually the exclusive means. The legal probative value of signature and seal gained complete acceptance almost everywhere in the course of the 1200 s. The party executing the document might append to the document his own seal, if he possessed one. Persons in authority — the king, princes, lords, dignitaries of the church, city officers, and courts — enjoyed also the right to au- thenticate with their seals the deeds of others. In Italy, where a professional class of notaries existed, notarial documents attained the status of public [self-proving and indisputable] documents. From the 1100 s onward, it became a general custom that the notary should enter in a register the substance of a document executed by him. These entries were known as " imbreviaturse." The system spread into the German part of South Tyrol. Legally chartered notaries are here found first in Bozen (half-way over the Alps from Italy), where Bavarian law was current. From a notary of Bozen, Jakob Haas, has come down a book of " im- breviaturse " of 1237, the oldest preserved to us on true German soil. With the decline of conveyancing and drafting methods, the preparation of formularies (books of document forms) had also been discontinued in the post-Frankish period. Not until the 1100 s and 1200 s did this species of literature revive in Germany. Along- side of mere collections of document forms, there now appeared formularies adding to their forms some theoretical comments on documents generally or particular classes of such, — as, for ex- ample, the Baumbartenberg " Formularius de Modo Prosandi," of the early 1300 s; or else offering exclusively such theoretical expositions of conveyancing methods, e.g. the " Summa de Arte Prosand " of Konrad von Mure, of Zurich, of the years 1275-1276. 332 Chap. II] THE EECEPTION OF ROMAN LAW [§8 Chapter II. Second Period: a.d. 1400-1600 THE RECEPTION OF ROMAN LAW' § 8. The Reception of Roman Law in General. Topic 1. The Rise of Learning in Roman Law § 9. Eike von Repkow and the " Sachsenspiegel." § 10. The Clergy and the Canon Law. § 11. The Conception of an Impe- rial Law. §12. The "Deutschenspiegel" and the ' ' Schwabenspiegel. ' ' § 13. Literature of the Canon and Roman Law down to 1500. §14. " Summae Confessorum " and Related Literature. § 15. Canon and Roman Law in German Universities. Topic 2. The Victory of Roman Law §16. §17. §18. §19. §20. Basic Conditions that made possible the Authority of Roman Law. The Superior Technic of the Roman Law. The "Klagspiegel." Decay of the Popular Courts. Transformations in the Ad- ministration of Justice. § 21. Political Importance of the Reception. § 22. The Legal Profession : Uni- versity Professors and Practitioners. § 23. Complaints against the Lawyers. § 24. Legal Training ; Smatterers and Popular Literature. Topic 3. Italian Humanism and the Reformation § 25. Theology and Legal Science in the Middle Ages. § 26. Early Humanism. §27. §28. Later Influence of Humanism. The Reformation. ' [This chapter is translated from the following three works : H. Brun- NEB, " Grundzuge der deutsehen Rechtsgesehiehte " (4th ed., Leipzig, 1910) ; vol. I of R. Stintzing, "Geschichte der deutsehen Rechtswissensehaf t " (2 vols., Munich and Leipzig, 1880-1884); R. Schkoder, "Lehrbuch der deutsehen Rechtsgesehiehte" (5th ed., Leipzig, 1907). For these authors, see the Editorial Preface. The source of the thirty sections of the present chapter is as follows : § 8 is a mosaic, as detailed below, of § 61 of Brunner and § 1, ch. 2 of Stintzing; §§ 9-12 = Stintzing, ch. 1, §§ 1-4 ; §§ 13-15 = lUd., ch. 1, §§ 6-8 ; §§ 16-24 = Ihid., ch. 2, §§ 2-10 ; §§ 25-28 = IhU., ch. 3, §§ 1, 2-3, 4, 5 ; §§ 29-37 = lUd., ch. 4, 1-9 ; § 38 = Schroder, §§ 83-84. Of these materials, §§ 1-4 of ch. 1, §§ 1-3 and 5 of ch. 2, and § 1 of ch. 3 of Stintzing, and §§ 83-84 of Schroder (part of the last being utilized in §44 of this chapter) are the only portions of the originals translated without omissions. — Tbansl.] 333 § 8] GERMANY [PaeT IV Topic 4. Methods of Jurists in the 1500s § 29. General Character of Medi- eval Science. §30. Legal Science: the "Mos Italicus." §31. Effects of the "Mos Italicus. ' ' §32. "Loci" and "Topica." § 33. The Period of Unshaken Au- thority of the "Mos Itali- cus.'! § 34. Opposition, and the Begin- ning of Reform. § 35. Unofficial Academic Courses : Seminars and Disputations. § 36. Attitude of humanism toward the "Mos Italicus" and the New "Methodus." § 37. The Ramists and their Doc- trines. Topic 5. Legislation § 38. Imperial and Territorial Legislation of the 1500 s. § 8. The Reception of Roman Law,^ in General.^ — When we speak of the Reception, in Germany, of the foreign laws, what 1 [Schroder's references upon the Reception are~(omitting a very few) as follows ("Lehrbuch," § 66) : Arnold, "Studien zur deutschen Kultur- geschichte" (1882), pp. 301 et seq.; Below, "Ursachen" (cf. Schroder in Z.2R.G., XL, 462 et seq., and Stolzel in K.Vj.S., XLVII, 1 et seq.) ; Bohlau in K.Vj.S., XXIII, 525 et seq., XXVI, 1 et seq. and his " Mechlenburgisches Landrecht," I, 80 et seq.; Brie, "Stellung der deutschen Reohtsgelehrten der Rezeptions-Zeit zum Gewohnheitsrecht " (Breslauer Festgabe for Dahn, 1905, vol. I) ; Brunner, "Der Anteil des deutschen Rechts an der Entwieklung der Universitaten " (rectoral address, Berlin, 1896); Carle- bach, "Badisehe Rechtsgeschichte," I (1906), 43 et seq.; Dahn, "Deutsch- reohtliche Arbeiten" (1877), 57 et seq.; Eichhorn, "Rechtsgeschichte," vol. Ill, §§ 440-444; Franklin, "Beitrage;" Frensdorff in Z.^R.G., XXXIX, 237 et seq.; Gierke, "Genossenschaftsreoht," II, 21 et seq.. Ill, 645 et seq., and " Deutsches Privatreoht," l,8et seq. ; Karlowa, " Reception des romisehen Rechts mit besonderer Riioksicht auf Kurpfalz" (rec- toral address, Heidelberg, 1878); Kaufmann, "Geschichte der deut- schen Universitaten." I, 75 et seg., II, 478 ; Kohler and Liesegang, "Bei- trage zur Geschichte des romisehen Rechts in Deutschland " (2 vols., 1896- 1898); Krusch, "Eintritt gelehrter Rate in der braunschweig Staatsver- waltung," in Z.H.V.N.S., XCI, 60 et seq. Kuhlmann, " Romanisierung der Zivil-Prozess in Bremen" {Gierke's "Untersuchungen," no. 36); "Statuta Reformata und der Codex Glossatus," p. 97 et seq.; Laband, " Bedeutung der Rezeption des romisehen Rechts fijr das deutsche Staatsrecht" (Strassburg, 1880); Merkel, "Der Kampf des Fremdrechts mit dem einheimischen in Braunschweig-Luneburg " (1904) and in "Quel- len und Darstellungen zur Geschichte Niedersachsen," vol. XIX (cf. Moller in Z.m.G.,XXX.IX, 310); Moddermann (and K. Schulz), "He- zeption des romisehen Rechts" (1875); Muther, "Rom.-kanon. Prozess" (Rostock, 1872), " Romisches und kanonisches Recht im deutschen Mittel- alter" (1871), "Zur Quellengeschichte des deutschen Rechts" in Z.'R.G., IV, 380 et seq., IX, 50 el seq., " Rechtswissenschaf t " (1876); Rosenthal, "Geschichte des Gerichtswesens und der Verwaltungsorganisation Baierns," I, 139, 422 et se^.; W. Roth in Z.^R.G., XXXV, 359 et seq.; Sartori- Montecroce, "Beitrage zur osterreichischen Reichs-und Rechtsgeschichte," I (1895); Schaffner, "Das romische Recht in Deutschland wahrend des 12. und 13. Jahrhundert" (1859); C. A. Schmidt, "Rezeption des ro- misehen Rechts" (1868); Schum in Z.^R.G., roman. Abt., XXIV, 304 et seq. ; J. C. ScAwar^z," VierhundertJahredeutscher Zivil-prozess Gesetz- gebung" (1898); Seckel, "Beitrage zur Geschichte beider Rechte im Mittelalter," I (1898) ; Sohm, "Frankisches Recht und romisches Recht"^ 334 Chap. II] THE reception of ROMAN LAW ' [§ 8 is meant thereby is the Roman law, the Canon law, and the Lom- bard feudal law. The historical fact which we call the " Recep- tion " ^ of the Roman law was a slow process, extending through several centuries. Its course and eventual completion were in- fluenced not only by the relations of Germany to the Latin nations, but also by causes grounded most diversely in the social conditions of Germany itself. It is usual to regard this development in con- nection with the invasion of the Canon law; and, in truth, the reception of the two bodies of law not only took place (in a certain sense) synchronously, but the Canon law, as will be shown below (§ 10), though such result was not contemplated in its adoption, prepared the way for the Roman and drew this after it. Never- theless, the two movements must be described independently, because they were wholly different in their causes and in their course. One cannot speak of a " reception " of the Canon law in at all the same sense as that of the Roman; because, so long as there had existed any Canon law, there was accorded to it, in Germany, from the beginning, an undisputed, definite sphere of authority and application. For the entire field of the church's dominance it was always a practical, authoritative, statutory law; and only the enlargement of this domain — not, as in the case of the Roman law, the original establishment of its statutory force in Z.2R.G., XIV, 70 et seq.; "Deutsche Reehtsgesehielite und die Kodi- fioationsfrage " in Z.Pr.Off.R., I, 245 et seq.; Stammler, "Recht des Breidenbaoher Grundes" {Gierke's "Untersuchungen," no. 12); Siintzing, " Gesehichte," vol. 1, passim," Pop. Lit." (1867), "Zur Geschichte des romischen Rechts in Deutschland " in H.Z., XXIX, 408 et seq., and in K.Vj.S., VI, 557 et seq.; Stobbe, "Reohtsquellen," I, 609-655, II, 1- 142; Stolzel, " Riohterthum "(cf. Franklin in Z.Pr.Off.R., I, 236 et seq.), "Entwioklung der gelehrten Rechtsprechung des Brandenburger Schop- penstuMs," I (1891), " Brandenburg-Preussens Rechtsverwaltung," I, 30 et seq.; " Urkundliches Material aus den Brandenburger Schoppens- tuMsakten" (4 vols. 1901; cf. Amira in Z.^R.G., XXXVI, 288-294, XXXVIII, 427 et seq.; Bietschel in H.Vj.S., VI, 405 et seq.; Zeumer in " Forschungen zur brandenbtlrgischen und preussischen Geschichte," XVI, 255 et seq.) and in last named journal XVI, 345 et seq., also in K.Vj.S., XLVII, 1 et seq.; Hassenpflug, "Die erste Kammergeriohts- ordnung Kurbrandenburgs " (1895); Laspeyres in Z.D.R., VI, 1 et seq.; Maitland, "English law and the Renaissance" (Cambridge, 1901); Ott, "Beitrage" ; Reyscher in Z.D.R., IX, 337 et seq.] ^ [The first sentence is from Brunner, the rest of the first two para- graphs and also the last one from Stintzing, and all the rest from Brunner. In a portion of the latter's text which is omitted he differs from Stintzing (§ 10 below) in regarding the Reception of the canon law as a consequence of that of the Roman. — Tbansl.] ^Stintzing, "U.Zasius" (1857),p.30eiseg.; Franklin, "Beitihge" (1863); Stobbe, "Reohtsquellen," I, 609 et seq., II, 9-110 ; Schmidt, "Die Reception des romischen Rechts in Deutschland" (1868); Stolzel, "Riohterthum"; Moddermann, ."Die Reception des romischen Rechts" (1875) ; Ott, "Beit- rage." 335 § 8] GERMANY [Part IV and practical enforcement — was the object of a historical evolu- tion. The authority of the Canon law will be discussed below (§ 15). We shall also see how Roman legal learning was carried into Germany as early as the 1200 s. We see the increasing attention gi\en it in legal literature and practice. The idea that the au- thority of the Justinian law-books is one current for the entire Empire becomes a historical force; the conception of an imperial common law takes form and hold. Progressing slowly from this beginning, the actual naturalization of the alien law is realized under difficulties and amid contradictions, — unequally in dif- ferent places, among different classes, and for different social re- lations, unequally also as between different branches and institutes of the law. Here, progress is due to study and spontaneous assimi- lation; there, to the unreflecting pressure of those whose profession is bound up with the foreign law. And if the advance is unequal and wavering, the goal also is unclear toward which the move- ment is tending. So that, although we can regard the Reception as consummated by the first half of the 1500 s, in so far as the predominance of the new law is thenceforth decisive in the practice of the courts, nevertheless one could not earlier nor could one then have exactly determined the extent of its validity, the measure of authority of its written sources, or its relation to the native law. The absolute, unlimited, and exclusive enforcement of all principles contained in the " Corpus Juris " was never seriously asserted; but neither the reasons for nor the limits of its authority were critically investigated, nor distinction made between the formal force of its laws " qua " laws and the rational authority of its content. [In the process of the Reception] we can distinguish the stage of the theoretical from that of the practical Reception. The theo- retical Reception consists in the growth of the conviction that Roman law possessed a claim to validity in Germany; the practi- cal consists in the penetration of Roman law into the German judicial law. The former goes back into the 1100 s, and has its root in the idea that the Roman Empire of the German Nation constituted a continuation of the ancient Roman Empire, so that the laws of the Roman emperors were laws of the forbears of the German kings, and as such had subsidiary force. The relation in which the kings of the house of Hohenstaufen stood to the teachers of the Roman law in Italy afforded abundant support for the spread and firmer rooting of this idea. It gained vitality 336 Chap. II] THE RECEPTION OF ROMAN LAW [§ 8 and strength the more pronounced grew the particularism of the Middle Ages, and the more widespread the local frittering of the native law. It is, indeed, an oft-recurring trait in the history of the German people that the most flagrant particularism has sought and found its cure in the complement of an unrestricted univer- salism. The Plohenstaufen kings Frederick I and Frederick II had had certain of their own laws interpolated into the " Corpus Juris Civilis." Henry VII gave an order for the interpolation of a law of 1312 against heretics (which, however, remained un- executed). A lively Romanistic activity was developed by the kings of the house of Luxemburg, — particularly Charles IV, who, among other things, extended to the electoral princes the provisions of the Roman law relative to the " crimen Jsesse maie- statis." A knowledge of the foreign law was spread among the people by the law schools of Italy, whose world-repute drew many students from Germany, ■ — if only for the reason that the Canon law, then grasping jurisdiction over so many questions of practical life, rested in maay parts upon the Roman law. The influence of the alien law manifested itself first in German legal literature. The " Schwabenspiegel " itself adopted a few Roman legal prin- ciples. In the glosses on the " Sachsenspiegel " the attempt was made to prepare a concordance between the Saxon law on one hand and the " leges " and " canones " on the other. The knowl- edge of the foreign law had a still greater influence upon the works of Nikolaus Wurms and the town clerk Johannes Von Briinn. The practical Reception had its root in the appearance of judges learned in the law. Jurists schooled in the foreign law — to whom this was only too often the law — came to be employed in Germany, though at first only in administrative affairs. They first gained the opportunity of determining the law at the court of the king, who referred to them cases which he personally de- cided, particularly arbitration cases. Afterwards the king came to choose in part from the class of jurisprudents the councillors he appointed to his Chamber of Justice (" Kammergericht "). When the Imperial Chamber of Justice (" Reichskammergericht ") was established in 1495, its members, half of whom were required to be men learned in the law, had to swear to judge according to the " common laws of the Empire," — a formula within which the Roman law was included. After the highest court of the Empire had thus led the way, the territorial and the city courts were bound, as courts of lower instance, to follow. In Switzerland and in Schleswig, where the " Reichskammergericht " did not 337 § 8] GEBMANY [ParT IV have jurisdiction, a reception of Roman law took place only to a very limited extent. In most of the Territories, however, a de- ■\elopment similar to that which took place at the royal court had preceded this; for it often happened that litigants, at the instance of counsel trained in the new law, withdrew their controversies from the moribund " Schoffen "-courts and carried them for set- tlement to the administrative officers of the territorial sovereign, men likewise learned in the alien law. The law enforced in the village courts kept itself longest free from any intermixture of alien elements; its sources, the dooms, still affording for a long time a rich mine of popular legal ideas. In the struggle between the native and alien laws the latter found powerful support in the universities that had arisen in Germany since the middle of the 1300 s. University instruction in law was devoted to the foreign law alone, — at first to the Canon law, after the beginning of the 1400 s to the Roman also. Upon the foreign law, again, was based the arbitration practice (§ 22) of the university faculties of law, by which these partially took the place of the old, popular appellate courts (§ 20). In favor of the foreign law, finally, there was the influence of a popular legal literature, immense in extent, written for the purpose of making accessible to the unlearned the doctrines of the Roman and the canon books. This literature consisted in part of alphabetic com- pends; they began in the 1300 s and ended with the often-printed " Vocabularius luris Utriusque " of Joducus of 1452. There were also systematic presentations, among which should be mentioned, as the oldest, the " Summa Legum " of Raymxjnd von Wiener- Xeust,\dt; a text-book of private and criminal law, composed for the benefit of the author's sons in the 1300 s (probably 1340-1348) upon the basis of Italian-Romanist literature, but taking account of Germanic legal institutions.^ Among the works of this popular literature, composed in German dialects, two in particular attained the greatest influence upon legal practice: (1) the " Clag, antwort und ausgesprochene urteyl gezogen aus geystlichen und weltlichen rechten " (Plaints, Answers and Judgments drawn from Ecclesi- astical and Secular Law), which was written about 1425 by a city scribe in Hall (Swabia), and published in 1516 by Sebastian Brant under the title " Klagspiegel " (^Mirror of Plaints) ; and (2) the " Laienspiegel " (Laymen's Mirror), written by Ulrich Tengler (1509), an encyclopaedic presentation of private, criminal, 'This work exercised a decisive influence upon legal development in Austria, Hungary, and Poland. 338 Chap. II] THE RECEPTION OF ROMAN LAW [§ 8 and procedural law, which, in addition to foreign legal literature, made use of German legal sources. There were, then, " received " in Germany: (1) the Roman law, in the sense indicated below; (2) the " Corpus luris Canonici Clausum," i.e. its content, so far as this had always been bind- ing in the ecclesiastical courts, became henceforth a norm govern- ing decisions in the secular courts; (3) the Lombard feudal law, embodied in the customaries or " Libri Feudorum," a compilation of pieces of different dates, which originated in part at Pavia, in part at Milan, upon the basis of the feudal statutes of Konrad II, Lothar III, and Frederick I, and of the Milanese feudal practice. The most modern version of this collection was incorporated by the jurist Hugolinus de Presbttero, as the " decima collatio novellarum," into the " Corpus Juris Civilis," and was received with this into Germany. As for the most important of the foreign laws, namely the Roman, the theoretical and the practical Receptions are distin- guishable with regard to their respective materials, extent, and effects. The theoretical reception had as its materials the pure Roman law of Justinian's law-books: the Institutes, Pandects, Code, and Novels. It was not a reception of individual legal principles and institutes, but comprised the " Corpus Juris Civilis " "in complexu"; this was received, however, only as subsidiary law. On the other hand, the practical Reception rested upon the judicial law that had been elaborated in Italy, based upon the " Corpus Juris Civilis," but with manifold modernizations and transformations of its doctrines. Moreover, while its materials were the Roman laws as transmitted through Italian judicial prac- tice, it extended also to the pure Roman law, — not, however, " in complexu," but only to individual principles and institutes thereof, albeit numerous and fundamental; moreover, it attributed to these an absolute validity, instead of limiting them, as alien law, to a subsidiary character. This contrast between the theoretical and the practical Recep- tions remained in part undefined ; and, indeed, men were hardly conscious of it. This is shown, for example, by the fact that the advocates of Romanistic theory and practice, down to the most recent times, could not realize the indubitably correct idea that the result of the practical Reception, even though this rested upon a misunderstanding of Roman legal sources, made impossible the application of pure Roman law. For the rest, it is true that the sharpest contrasts between the two forms of the Reception 339 ij 8] GERMANY [Part IV s disappeared even during its progress. For this there were three reasons. Firstly, the authority of the " Corpus Juris Civihs " was restricted to those passages which the Italian jurists had adopted and glossed, — this in order to explain the fact that the " Corpus Juris Civilis " contained legal principles which were un- applied. Secondly, resort was had to the conception of a modern Roman practice" (" usus hodiernus pandectarum "), in order to get around the fact that principles were applied which the " Corpus Juris Civilis " did not contain. Thirdly, the absolute authority of the alien law, as against the native law, was cloaked by attributing to the former a fictitious " fundatum intentionem," whereas the rules of the nati^-e law were subjected as facts to the requirements of judicial proof, and further by establishing as a condition for the validity of the customary law a necessary period of usage. Thus it came about that Germanic law was shoved aside and disdain- fully neglected by the learned jurists and the smatterers who filled the courts. Only in the lands of the Saxon law, where the tradi- tional legal ideas were more firmly clung to, were the conditions more favorable to the native element. In these, a knowledge of the common Saxon law, as it had been developed upon the basis of the " Sachsenspiegel " and its commentaries, was regarded as the duty of a judge; so that (after the territorial and the local ordinances) enforcement was given in the first place to the Saxon common law; and only then did the Romanesque common law receive a subsidiary application. The Reception cannot, in itself, be impugned. It requires no defence, if one grants at the outset that all progress in human culture has as its precondition the adoption and assimilation of culture gone before. Its explanation is found in the then state of German law. The increasing development of trade demanded a coherent law. The need of this is reflected in the appear- ance of works like the " Deutschenspiegel," the " Schwaben- spiegel," and the " Kaiserrecht," which were endeavors to con- stitute such a coherent law, although they did not even distantly approach its realization. It is seen also in the effort to widen the vogue of one or another body of law, — for example, in the group- ing of extensive families of city law. The consciousness of the same need led (so late as in the 1400 s, not long before the practical Reception) to deliberate proposals for a reform, in a unitary sense, of the native law. Thus, in the year 143.3, Xikolaus Cusanus presented to the Council of Basel a memorial in which he demanded an official inquest and digest of territorial customs, with the con- 340 Chap. II] THE reception of eoman law [§ 8 currence of the provincial judges. This proposal, not being directed to authorities friendly to such ideas, unfortunately remained with- out results. Its realization would have essentially strengthened Germanic customary law in the struggle against its Roman rival; it would have given the measure a significance (for Germany at least) equal to that occupied, in the history of French law, by the official redaction of the " coutumes " that had then recently been undertaken in various districts of France, and was soon afterward ordained for the whole country by Charles VII, in an ordinance of Montilz-les-Tours (1454). Since, thus, the native legal development did not rise above provincialism, Roman law attained supremacy as the common written law of Germany. It was about this same period that a common literary language grew up and dominated over the dif- ferent Germanic dialects.'^ To the craving for a common law there was added, in the time of the humanistic period of the Renascence, and of the increasing culture of the upper classes of the German folk, the desire for a scientific law. German law, however, as it then existed [in a generalized and written form, post, §§ 9, 11, 12], lacked a scientific method of treatment such as the Roman law had received from the Roman jurists and Italian practitioners. Now this German law itself was just then involved in a transfor- mation which found points of contact, in many fields, in the " Corpus Juris Civilis "; so that the adoption of the latter appears, to that extent, as merely the conclusion of a development already begun in the native law. Such an approximation necessarily facilitated the Reception; whereas the customary laws, just be- cause of their greater unlikeness to the Roman law, had held their ground against this. In England and France, where the partial adoption of Roman legal ideas had taken place earlier, it acted as a sort of inoculation, rendering the native law, thus impregnated, capable of resisting a more extreme doctrinal infection. In Ger- many the Reception took place at a time when medieval forms of life were already matured to a degree approaching either dis- solution or petrification ; a time when the frittering of legal organiza- tion and the enfeeblement of the imperial power had already gone ' The supposed poverty of the German law and superiority of the Roman law were the real causes of the Reception ; this is shown by the strong resistance to the intrusion of the foreign law offered by precisely those cities which were economically most important and politically most independent, such as Lfibeck, Bremen, Hamburg, Magdeburg and Brunswick {von Below, "Die Ursachen der Reception des romischen Rechts in Deutschland," 1905, pp. 93 et seq. _[Cf. herewith Stinizing's views in § 19 below ; the latter being the usual view. — Tkansl.] 341 § 9] GERMANY [PabT IV too far. The Reception worked so intensively, therefore, because it took place so late. [But a further reason is to be found in the fact that] the German jurists were unmindful of their duties to the native law, and there- fore unequal to their task. The constitution of the German royal court, as well as of the Germanic purely popular and " Schof- fen-courts," had not been favorable to the development of a learned legal profession. It was in the school of the alien law (already a unified system) that such a profession first arose; and perforce it established its own right of existence by battling for the recognition of the foreign law. The manner, however, in which it effected the Reception will always call for criticism and reproach. Its small-minded disdain for the native law, the stupid and wholly superficial way in which it grafted Roman principles upon rules of Germanic growth, its unconsciousness of the contrast between the native and the Roman law, making it blind to the truth that no folk can live again in the spirit of another, — these traits were a national catastrophe. When one reflects that the Germans, in consequence of this blunder, have never fully assimilated the Roman law, one can estimate the confusion created in German legal life at the time of the Reception under the lead of an unspeak- ably illiberal profession. In the following account we shall first consider the Reception on its inward, technical side; and then, in connection with the transformation of legal practice, shall endeavor to make evident its significance for social and political relations. Topic 1. The Rise of Learning in Roman Law § 9. Eike von Repkow and the Sachsenspiegel." — About the same time when the contributions of the Italian Glossators to the Romanesque judicial law were approaching their end in Accursius, and Canon law was receiving fixed form in Gregory IX's collection of decretals (12.34), a German knight, from the country of the Hartz ■Mountains, Eike von Repkow, gathered together the legal principles of his race in the " Sachsenspiegel " (Mirror of the Saxons). This name he gave to his book, following a favored Uterary usage, because in it the free Saxons might behold their law. He had no predecessors in such a statement of the law; he drew his matter directly from legal practices known to him through many years activity as a lay-judge. He describes and lays down the traditional law as then in force, giving to it a felicitous ex- 342 Chap. II] THE RECEPTION OF ROMAN LAW [§ 9 pression and a form which it retained down to much later times. The German people had then passed the freshness of youth. In its jural evolution, which had been isolated and peculiar, the " Sachsenspiegel " marks the culmination; for no work of later times can be named that rivals it in wealth of original material, — no other so purely popular, so unaffected by foreign influence. This originality distinguishes it in noteworthy manner from the con- temporary work of the Englishman, Henry Bracton, " De Legibus et Consuetudinibus Anglise," in which, under the influence of the method of the Glossarists, the native law is presented in union with the Roman. In Germany also, however, the power of Roman and ecclesiasti- cal legal learning, cultivated in Italy and patronized by emperors and popes, was beginning to be perceptible. As the downfall of the Hohenstaufen marks a turning-point in the nation's cultural development, so the " Sachsenspiegel " marks the close of the creative period in the national law. Indeed, we cannot well err if we assume that Eike was impelled to the recording of the Saxon law by the rising authority of the written foreign law, in which he recognized a danger to the native system.. This enables us to understand why his book on Germanic law was composed £rst in Latin, in order to give it a form equal in dignity to that of the rival foreign law which it confronted. It is significant that the " Sachsenspiegel " (which after all only set forth the law of one racial branch) neither directly stimulated nor was imitated by similar work for other Germanic branches, but itself spread over Germany, being either accepted by others without change or worked over into other law-books and city ordinances. Wherever we find, in the period immediately follow- ing, records of Germanic law in literary form, they rest upon Eike's work. At the same time, the currency and influence of the foreign legal learning becomes more or less plainly visible.^ A typical complement to the worthy form of Eike, the knightly lay- judge, has been preserved to us, in the satire of the " Occultus Erfordensis " (1282-1283), in the " Carmen Historicum " of Nikolaus von Bibra.^ It pictures for us the life of one Heinrich von Kirchberg, who returns to Germany, after many years of study in universities abroad, as a " doctor decretorum," and adorned with the halo of foreign legal learning, to take up the exciting and bus- 1 Stobbe, "Reehtsquellen," I, 609 et seg.; Muther, "Rechtwissenschaft," pp. 1 et seq. ^ Muther, op. cit., pp. 38 et seq. 343 § 10] GERMANY [Part IV I tling life of an attorney and counselor. The poem shows us that, so early as the middle of the 1200 s the doctors of law had assumed a role so important in the social life of Germany that the doings of a pedantic pettifogger could be profitably chosen as the subject of satire. We should err, however, if from such a satire we should form our opinion of the significance and the importance of the doctors. Witnesses are not lacking who present to us men of jurisprudential training as the objects of confidence and profound respect, occupy- ing influential positions. From the 1100 s onward, German clerics flocked in great numbers toward Paris, Bologna, Padua, and other universities to study foreign law.^ Among the " nations " into which the students at Bologna and Padua were organized, the German " nation " was vested with special privileges. Many of them found permanent occupation in Italy; but the majority doubtless returned to Germany, where a learned preparation in the law, and especially a doctoral degree, secured influential posi- tions with lay and ecclesiastical lords, while important cities were at pains to draw learned jurists into their service. § 10. The Clergy and the Canon Law. — It was the clergy that carried this branch of science — as they carried others — into Germany, in order to utilize it in the Church's law and administra- tion.^ Once the Church had completely assumed (as it had in the 1200 s) the character of an establishment outwardly organized in juristic forms, and a purely formal and juristic doctrine had come to dominate the entire life of the Church, so that its law was elaborated to the smallest details, the complicated ecclesiastical administration could be conducted only by clerics thoroughly familiar with the Canon law. An exceptional knowledge of Canon law, the taking of academic degrees, not only insured entry to in- fluential lay positions, but was also a pathway to the higher ecclesiastical dignities and benefices. The range of ecclesiastical jurisdiction was more and more extended over the clergy and the domain of the Church's interests; and the Canon law, far trans- gressing these limits, had interfered markedly in purely lay con- cerns. Thus the elastic conception of " res ecclesiasticse " made it possible to draw within the jurisdiction of the clerical courts not only lay cases really involving an interest of the Church, but ' Muther, op. cit., pp. 399 et seq., has compiled a list of German law students in foreign universities down to 1500; c/. also Stolzel, "Riehter- thum," pp. 43, 78; Ott, "Beitriige," pp. 33 et seq. ^ With the following cf. von Schulte, "Quellen, " II, pp. 26 et seq., pp. 456 et seq. For Bohemia, Ott, "Beitrage," pp. 7-30. 344 Chap. II] THE RECEPTION OF ROMAN LAW , [§ 10 I every civil transaction whatever. It was enough to treat the point of law from the standpoint of human sinfulness, and this stamped any case as proper for ecclesiastical cognizance. " One may safely say that there was no legal relation, no aspect of social and public life, which was not subjected under one pretext or another to the jurisdiction of the clergy." And this extension was generally welcomed by laymen, impelled as they were by the general spirit of the times and by their own interests. Even in cases in which the jurisdiction of an ecclesi- astical court was doubtful or was maintainable by neither of the parties, a basis for it was often made by their consent, because the ecclesiastical court promised an orderly procedure and often a more efficient execution of judgment than the civil judge could offer. Thus by the beginning of the 1200 s the ecclesiastical jurisdiction had acquired an importance in Germany which certainly equalled, if it did not exceed, that of the civil tribunals. It goes without saying that in the ecclesiastical courts the Canon law was applied; and it thus not only permeated with its conse- quences the mighty organism of the Church, but also subjected to its regulations the civic life. Attendance at foreign universities was not necessary in order to acquire it, for it was taught in the cloisters; ^ and its execution was insured by the rigorous discipline of the clergy. The superiors of the Church, however, in every way favored the attendance of the clergy at foreign schools for the purpose of acquiring a deeper knowledge and the additional prestige of an academic degree. Now the Canon law presupposed the legal force of the Roman law. The ecclesiastical judge applied the latter so far as variant doctrines were not prescribed by the former, which in large portions must be regarded as a development and modification of the Roman law under the influence of Germanic and ecclesiastical principles. The old maxim, "ecclesia Romana vivit secundum legem Ro- manam, ' ' — thanks to which it was precisely and preeminently within the Church that the Justinian law had been handed down through the dark centuries of the early Middle Ages, — was still true; and the rivalry which now arose between Roman and Canon law ended in the unchallenged dominance of the former's authority. The Roman remained the civil law of the Church; yet only in so far as the Church had not altered it, had decreed no laws of its own.^ For this reason the decrees of Church councils and the decretals, ' References in Ott, "Beitrage," pp. 32 et seq. 'Schulte, "Quellen," I, 98. 345 § 11] GERMANY [Pabt IV which since the 1100 s had opposed the study of the Roman law by the clergy, did indeed avail to promote the study of Canon law and to raise its authority; but could not effectively discourage the clergy from busying themselves with the Roman law within the limits of their calling and of the implications of the Canon law itself.^ ^^^lat is more, those inhibitions were so weakened by dispensations and licenses that even a scholarly knowledge of Roman law was by no means a rare exception.^ Thus the Canon law drew after it the Roman. Carried by the clergy, the knowledge and authority of both systems, though embodied in foreign tongues, made headway among the laity. Even though the authorities vested with the supreme worldly and the supreme spiritual power repeatedly combated one another, still, in medieval theory they blended in a higher unity ordained by God; and both bodies of law mutually supported each other's authority, inasmuch as they formed together the " jus utrumque." § 11. The Conception of the Imperial Law. — The old idea of the Holy Roman Empire — the theory that the Roman Empire, providentially constituted as a permanent institution for the pro- tection of Christendom, continued to live in the imperial dignity of German kings, the idea that the Empire of the German nation was simply a continuance of the old Roman Empire — led directly to the conclusion that the persistent authority of a world law was immanent in the Justinian books. From the time that Otto III revived this idea, his successors, whenever political conditions were favorable and incitement offered, repeatedly insisted upon the authority of that law and appealed to its particular principles. The Hohenstaufen only followed the way already marked for them when they furthered the splendor of the Bologna law school, in order that it should serve their own political theory of the " do- minium mundi." It was, indeed, notably these relations of the emperor to the great jurists which worked so efficiently for the dissemination and establishment of the belief and authority of the Roman law; and this behef attained the status of a political and constitutional dogma. Under its influence the notion of an imperial law took shape. This was generally made to include all the written law resting upon imperial authority. It enjoyed, for that very reason, a ^ Savigny, "Geschichte." Ill, 364 et sea.; Schulte, "Quellen," I, 105; Stobbe in K.Vj.S., XI (1869), 13-14. 2 See proofs in Stobbe, "Rechtsquellen," I, 628 ; K.Vj.S., XI, 13 et seq. 346 Chap. II] THE RECEPTION OF ROMAN LAW [§ 12 general authority throughout the empire ; and it was distinguished on the one hand from the papal law, then in rivalry with it for preeminence, and on the other hand from the subordinate law of the different races and territories of the empire. Although the range of the sources that were reputed imperial law was never exactly defined, and the meaning of the word therefore varied, there was, nevertheless, a predominant tendency to include in it the law-books of Justinian as Well as the statutes of the German Empire. §12. The " Deutschenspiegel ' and the " Schwabenspiegel." — Thus by the 1200 s the theory had made itself at home in Germany that above the laws of the individual races there stood another double legislation, resting on the two supreme authorities of Christendom. Traces of its influence were soon visible, and there- with began its friction with the native law. Johann von Buch tells us in his gloss (written after 1325) of the " Sachsenspiegel " that this book was contemned in the ecclesiastical courts because it was only " jus unius populi." It wa;s attempted to sustain it by showing its concord with the two bodies of universal law, and by reviving the legend that the " Sachsenspiegel " rested on a charter of Charles the Great and the Saxon feudal law rested on statutes of Frederick Barbarossa. Hardly a generation after the composition of the "Sachsenspiegel," we already see the beginning of a literary movement directed to preparing, through expositions fusing the native law with the foreign, law-books that could claim a common authority throughout all Germany. About the time of the Interregnum, the " Sachsenspiegel " was translated into high German; its unknown translator, from south- ern Germany, attempted by interpolations to give it the form of a source valid for all the Germanic racial branches. He called his work the Mirror of the German People (" Spiegel deutscher Leute ") . The author lays claim to scientific training ; he does not (he says) content himself with his personal legal experience, but presents the law for Germany as the kings have conferred it and the masters of the law (namely, the Roman jurists) have taught it. Of Roman law there is, indeed, only little to be found in the work; but it is significant to find here, so early and so clearly expressed, the idea that the Roman law is a part of that which is valid throughout Germany. This " Deutschenspiegel " seems to have attained but slight currency, and has come down to us in but one manuscript. But the path marked by it was followed, in the early years of the reign 347 § 12] GERMANY [Part IV of Rudolf I (in 1275?), by the unknown author of the Swabian ^Mirror (" Schwabenspiegel ")• He made use of the earlier work, increasing the range of the written sources utilized in it. The appli- cation made of the Roman and the Canon laws shows the hand of one who had been more strongly influenced by the doctrine of the Glossarists; the scholarship, and the clerical animus (which leads him to derive the emperor's worldly power from the pope), betray the churchman. He did not, however, like Eike, draw his materials from legal practice, but from written sources; and among them the primitive popular codes and the imperial capitularies had long since fallen into desuetude, and the books of the Roman and Canon law had scarcely begun to be known in Germany, — so that he does not present to us the law as it was, but as, in his opinion, it ought to be. His inadequate mastery of his material prevents him from making his work a unity ; he succeeds only in making a disorderly compilation full of contradictions and misunderstandings.-' But in this book we have still only the token and the prelude of a beginning change. The popular law still remains in its integrity a possession of the people and of the lay-judges; and when a bold attack upon the " Sachenspiegel " is made in the middle of the following century (1300 s) by the churchmen, it broke before the resistance of popular protest that it excited. An Augustinian friar, JoHANN Klenkok,^ born at Buke (near Hoj'a) in the beginning of the 1300 s and professor of theology at Erfurt, wrote a treatise (" Decadicon ") about the middle of the century at the instance of Walther Kerlinger, a doctor of theology who was invested with the "officium inquisitionis hsereticae"; in this work he impugned ten articles of the " Sachsenspiegel " as unchristian, and repugnant to the Canon law. Irritated by opposition and persecution, he sharpened his attacks in repeated new editions of the " Decadicon," enlarging it finally (about 1365) to include twenty-one articles of the " Sachsenspiegel " ; and, as a result, Gregory IX in 1372 con- demned fourteen of these in a bull directed to six archbishops and the Emperor Charles V. This attack by the Church, however, aside from provoking a few more tracts upon the " articuli repro- bati," remained without important consequences. For a long period after this the " Sachsenspiegel " remained the center and the basis of legal literature. The Latin translations of it (which begin as early as the 1200 s); the systematic revisions of it; the Saxon municipal law (" Weichbild ") designed to suit ^Stobbe, "Reehtsquellen," 1, 342. 2 Homey er, " Johann Klenkok," A.B.A., vol. LV. 348 Chap. II] the RECEPTION OF ROMAN LAW [§ 13 the needs of the Saxon towns, which appeared In the early 1300 s, and wasdue to its influence; the "RechtsbuchijachDistinctionen," which belongs to the second half of the same century; finally, the " Richtsteige " through the territorial and feudal law of Johann VON Bucii, — these are the most notable evidences of the national literature that grew out of the "Sachsenspiegel." If we add to these the " Kleines Kaiserrecht" (Little Book of Imperial Law) which appeared in central Germany and belongs to the beginning of the 1300 s, the slightly later law-books of Rupeecht von Freysing, composed under the influence of the " Schwabenspiegel, and finally the systematic collections and compends of the decisions of the lay-judges, we get the impression, as regards the 1300 s, of a flourishing literature, resting directly upon the living law, in- tended for practical use, and lacking only a scientific method and finish in order to attain an independent maturity. It was the need of remedying these defects that led German legal scholars to the study of an exotic system. Thus they fell under the influence of the alien school; and the Roman-Canon concepts which they thus artificially borrowed stunted gradually the plastic powers of the decaying native law. § 13. Literature of the Canon and Roman Law down to 1500. — In the literature thus far described, native law was predominant, while foreign law was drawn upon only as a supplementary aid. But beside this literature there was another which had as its special subject the foreign and particularly the Canon law.^ Its begin- nings go back before the time of the " Sachsenspiegel " and reveal the juristic studies among the German clergy which began with Gratian's " Decretum." As the administration of the secular and the ecclesiastical law went on side by side throughout the empire, so for a time there flowed parallel two currents of legal literature, the one teaching of the Germanic customary law, the other of the Canon law and (more incidentally) the Roman law; until finally the first dried up, and the latter, unresisted, broke like undammed waters over Germany. It was probably as early as the first half of the 1100s that the celebrated " Ordo Judiciarius " was composed in Germany. Later, under the name of Johannes Andrea it attained extremely wide circulation.^ This attribution to the celebrated Italian author •■ Ott, "Beitrage," pp. 101 et seq. ' Rockinger, "tjber einen Ordo Judiciarius" (Munich, 1855) ; Stintzing, "Pop. Lit.," pp. 202 et seq.; Bethmann-Hollweg, "Civil-proceas," VI, 144 et seq.; Muther, "Rechtswissenschaft," pp. 179 et seq. 349 § 14] GEKMANY [Part IV (a common occurrence) was groundless; the book does not even show the influence, of an Italian model. In its Latin form, nu- merous manuscript versions of its text (some of them with variants and supplements) and many manuscript commentaries attest the wide use made of this little text-book of Roman-Canon procedure; while more than twenty printed editions, down to the beginning of the 1600 s, prove that even to a relatively late period it remained one of the most popular of manuals. The Latin original was early recast in German with additions. This " Ordnung des Gerichts " was also widely circulated in manuscript and later in printed editions. The "Speculum Abbreviatum," assigned in a printed edition of 1151 to Johannes de Stynna [a doctor of theology of Paris, and an abbot, who served his order of the Cistercians in numerous offices and lawsuits], is a work of comprehensive scholarship. Thorough investigations ^ have shown that this was written in Germany in the first half of the 1300 s. Its basis is the "Speculum Juris " of Durantis (died 1296), a work which could not well have been known at that time to more than a few in Germany. Since he could not always have with him on his professional excursions this voluminous work and other helps, he prepared (as he him- self tells us) for his own use excerpts and compilations, and these he was accustomed to take with him as a " viaticum " ; out of them was composed his text-book of the Canon law, a handbook of legal practice. In its first part it treats of lawsuits in general ; in the second, of pleadings and legal documents; in its third, of the " regulse iuris," — following Durantis in the first two, and excerpt- ing in the third the commentaries of Dynus and other canonists upon the corresponding title of the sixth book of the " Corpus Juris Canonici." His compilations are discerningly made, and much that is new is added to them out of the special knowledge of the experienced practitioner. As formularies he uses largely (besides those found in Durantis) original documents of his own branch of the law. To the " Clementinus saepe contingit " he devotes a particularly independent commentary. § 14. Suminss Confessorum " and Related Literature. — Be- sides this literature designed essentially for actual legal practice, there developed within the circle of the clergy, beginning with the late 1200 s, another literature, which originated and had its reason ^ Stintzing, "Vop. Lit." Tpp.229 et seg. ; a,nd (excellent) Muther, "Rom.- kanon. Prozess," pp. 1 et seq.; Beihmann-Hollweg, "Civil-process," VI- 234 et seg. 350 Chap. II] THE BECEPTION OF EOMAN LAW [§ 14 in the administration of the sacrament of the confession.^ As special cases of conscience (" casus conscientiae ") were often in- timately involved with cases of law, occasions were thus offered to the clergy for forming principles and expressing judgments in such cases. The more that ethics and dogmatics were developed, under the influence of the hierarchy, into a system of rules outside men's consciences and binding upon them, the more the limits that divided this system from positive law tended to disappear. In a time when the ecclesiastic alone was regarded as the bearer of culture the layman quite naturally resorted to him as an adviser; and, moreover, the endeavor of the hierarchy to assure its influence upon civil life induced it not only to meet this need of the confessional, but also to undertake from that basis to secure pre- dominance within the field of law. The Dominican order (to which, along with the Franciscans, had been conceded the privilege throughout Christendom of ad- ministering the sacrament in equal right with the parochial clergy) was the first to grasp in a practical way the importance of juristic training to the confessor. While the Cistercians (as seen above) were writing legal works upon the " jurisdictio contentiosa " and " voluntaria," there began with the " Summa de Poenitentia " of Raimundo de Penafort (died 1275) — the celebrated compiler of the Decretals of Gregory IX and general of the Dominican order — a literature designed to provide the confessor not only with all matters worthy of knowledge for the administration of his office, but particularly to instruct him in the law. The chief content of the " Summa Raymundi " is a popular presentation, in easy style, of the legal system of Church and State, including (after the manner of the scholastics) criminal and private law. Canon law is of course put in the foreground; but Roman law also has its place. The Dominican order provided zealously for the cir- culation of this important work. Numerous such compendiums, mostly of considerable compass, appeared in the course of the 1300 s and 1400 s; the Franciscan order, in this literature, rivalled the Dominican in authority and influence; the German clergy, however, had in all this but a scanty share. Too great prominence cannot be given to the influence of the " Summse " upon the organization of the confessional. And their significance in the diffusion of the Roman and Canon law through ^Stintzing, "Pop. Lit.," ch. 10. Cf. von Schulte, "Quellen," II, 408- 455, 512-526. 351 § 15] . GERMANY [Pabt IV Germany was not less ; for they equipped with the necessary special- ized knowledge that class which ruled, from the confessional, the conscience and the intellective standards of the time. Among these the "Summa Angelica" ^ of Angelus Carletus de Clavasio (died 1495), a jNIinorite from Chiavasso, gained in the course of the 1400 s the greatest prestige, by its fulness and its suitable arrangement. This book, the chief prop of the Catholic doctrine of the confessional and of good works, was one of the first objects of attack in the Reformation. Luther declared, " it ought not to be called angelica, but diabolica, for the knavery and sophistry in it " ; and he burned it, with the papal bann and the books of the Canon law, on December 20, 1520, at Wittenberg. In the course of the Middle Ages, the Church had contrived to subject to her supreme surveillance the entire legal order of things. The doctrine of usury, with its casuistic elaboration, reprehending as sinful not only interest on money but all speculative gain what- ever, was the prime instrument which gradually drew within the Church's cognizance all forms of trade. The sentence of the New Testament, " Mutuum dati, nihil inde sperantes," uttered merely as a commandment of charity, was developed (consistently with the general course of the Church's growth) into a system of coercive legal principles, by which she controlled men's outward lives. Only the Jews remained free of this constraint; they could therefore devote themselves (all the more profitably) to the money dealings with which men could not dispense.^ Everywhere the natural interests of trade struggled painfully against the fetters of the canonistic doctrine, contriving from time to time new legal forms that seemed free of its inhibitions; while in the " Summse " the Church obstinately pursued each new evasion, seeking to define the point where mercantile profit passes over into usury. Toward the end of the 1300 s there appears a parallel literature of casuistic tracts, which discuss interest, money-changing, commerce, and indeed all economic transactions.' § 15. Canon and Roman Law in German Universities. — The study of law assumed a secure place in the German Universities ^ Stintzing, "Pop. Lit.," pp. 539 et sej. ^ Endemann, "Studien in der romamsclien-kanonistisolien Wirtseliafts- und Rechtslelire bis gegen Bnde des 17 Jahrhunderts," vol. I (1874), and on "Die national-okonomischen Grundsatze der kanonistischen Lehre" in Hildebrand'sJ.'N.O.,! (1863); iJosc^ier, "Geschichte," pp. 5-12; Stobbe, ."Die Juden in Deutschland," p. 192. ' Stintzing, "Pop. Lit.," pp. 539 et seq.; Boscher, "Gesohichte," pp. 18 et seq.; Schulte, ."Quellen," II, 432. 352 Chap. II] THE BECEPTION OF ROMAN LAW [§ 15 at their very foundation, and this law was the same as that which had been cultivated in Italy and France for centuries. The law- books of Rome and of the Church constituted therefore, as a matter of course, its only material; the voluminous literature of those . countries dominated it. German law lay wholly outside the circle of academic interests. Even if the universities had been dependent in a lesser degree upon academic tradition, insuperable difficulties existed in the way of any university treatment of German law. For nowhere was this to be found in unified form; it existed only in local sources; to abstract from them any common principles presumed a power of scientific analysis, a training in juristic thought, and especially a faculty of synthesis, which were not yet even remotely realized. To this add that the native law was regarded (with good reason) as a " jus incertum," a law in constant mutation, whose content was determined by the opinions of the lay-judges in each individual case, and accordingly seemed to defy a scientific formulation. Finally, the prevailing method, which was exclusively exegetic, appeared inapplicable to a law that was uncodified. It would indeed have been possible to subject the records of local law to a glossarial exposition, as Johann von Buch had already done with the " Sachenspiegel." But, for one thing, a commentary upon a lawbook already intelligible to the people seemed super- fluous, so that none appeared either worthy or needful of scientific treatment; and, furthermore, the native law did not lie within the interests of that class which controlled the universities. These were founded as clerical establishments; they had remained under clerical influence, and most of the professors were churchmen; the education of the clergy was the paramount purpose ; and the preparation for the administration of the Church's polity and of her administration of justice was the preferred end of legal study.^ This is why even the Roman law, until toward the end of the 1400 s, took a minor place in German universities. Instruction was given mainly in the Canon law, although the faculties of " jus utrumque " counted among their numbers (beside the " doctores decretorum ") many "doctores legum" and " doctores juris utrius- que," and conferred degrees in both laws. The papal legislation and discipline were opposed on principle to the study of the Roman law. At the same time, as an auxiliary science it was indispensable to •■ On the following cf. SHntzing,." U. Zasius," pp. 85 et seq., pp. 323-344 ; Stobbe, "Rechtsquellen," I, 630, II, 12 et seq.; Muther, Z.R.G., IV, 382 et seq., IX, 50 et seq. ; Stolzel, "Richterthum," 1,79-124; Muther, "Reehts- wissenschaft," p. 107; Ott, "Beitrage," pp. 52 et seq. 353 § 15] GERMANY [Part IV an understanding of the Canon law; moreover, papal charters, granted to individuals and to universities, and a tolerant practice as well, permitted a more particular devotion to its study. On the whole, however, it remained in a subordinate position. Only in the second half of the 1400 s, when it began to make its way into the civil courts, and the lajTuen interspersed through the academic body increased in numbers, did the " Leges " (i.e. Roman law) attain a secure place in the curriculum, — one equal to that held by the ' Canon law. The long-continued predominance of the canonistic studies is reflected in the fact that until the end of the 1400 s but few editions of Roman legal sources and their com- mentaries were prepared in German publishing houses, while different portions of the " Corpus Juris Canonici " and canonistic writings were marketed in considerable numbers. The idea still existed, far more as regarded the Roman than the Canon law, — and it was not an ungrounded prejudice, — that a complete training in that law could be obtained only in foreign universities, and that the calling of foreign doctors lent a special lustre to the German schools. [At Heidelberg (1387), Basel (1460), Ingolstadt (1472), Tubingen (1477),Freiburg (1479), Vienna (1493), and Greifswald (1498) the first chairs in Roman law were filled by Spanish, French, and particularly Italian legists]. These foreign doctors were, however, for the most part but transient ornaments; and the professorships were soon taken possession of by Germans. The majority of them received their degrees abroad, and it happened not infrequently that on the first appointment of a professor a condition was made that he should take his doc- torate within a certain time at an Italian university. Throughout the entire 1500 s a foreign degree was regarded as more respectable than a German; not exactly, perhaps, merely because a prejudice existed in favor of the foreign schools, but principally because the possession of the foreign doctor's cap was evidence that one had not sought one's culture wholly at home, but had acquired a knowledge of other lands. And then, too, though the occupancy of the professorships by native Germans soon became the general rule, there were nevertheless later instances in which foreigners were called. Af the end of the 1400 s Roman law had won a secure place in the German universities; and it is indicative of its prestige that even outside of the universities men were mindful of its teachings. It was not alone practical legal needs that induced the recourse to Roman sources; for the Humanists also sought them as an element 354 Chap. II] THE RECEPTION OF ROMAN LAW [§ 15 in general culture. [An imperial charter was secured in 1471 to teach Roman Law in an academy at Liineburg; in 1529, instruction in it was introduced into the schools of Hamburg; in 1532, into the gymnasium of Strassburg. In Ulm, Altdorf, Dillingen, Lauingen, Herborn, Brieg, Steinfurt, Rinteln, and Bremen, it was introduced as a humanistic study (in some, as a companion of territorial law) into academies, some of which later became uni- versities.] But the union in which we find the Roman and the Canon law in the German universities was wholly superficial, notwithstanding that neither one alone covered the whole field of law, and that the " jus commune " was a growth out of the " jus utrumque." For the exegetic method of instruction prevented the jurists of that day from treating their science systematically, and confined them to the topics respectively dealt with in Canon and Roman sources. In Italy the legists (Roman law) and the decretists (Canon law) had formed separate schools. In Germany they were united, to be sure, in one faculty, but for a long time formed two separate divi- sions, each of which bestowed its own degree. We see " doctores legum " and" doctores c^cretorum." "From the early 1500 s on- ward this distinction tends to disappear, the " doctores utriusque juris " becoming ever more numerous, until they are at last the rule; but there was no fusion of the two bodies of law into one subject of university instruction. And this instructional sepa- ration was not limited to the two general bodies of law; it ex- tended even to the main subdivisions of their respective sources. In Canon law there were separate professorships for the Decre- tum, the Decretals, the " Liber Sextus," and the " Clementinae." In Roman law, there were separate chairs for the Institutes, the Code, and the Pandects (Digest); and the old traditional threefold division of the Pandects into a " Digestum vetus," " infortiatum," and " novum," not infrequently gave excuse for a still further subdivision of the professorate. Among these pro- fessorships, those of the Decretum and the Code ranked as the most distinguished in academic tradition and ordinances, — the Code because it dealt with the imperial laws (in the narrow sense) and represented (inclusive of the Authenticse) the latest and con- clusive form of the Justinian law. Only gradually did the greater scientific valiTe of the Pandects receive recognition, a recognition which explains the later predominance of the courses upon that branch. The Institutes enjoyed the least degree of esteem. A systematic distinction based on the nature of the material, 355 § 16] GERMANY [Part IV such as to us to-day seems self-e^•ideIltly necessary, did not yet exist at the beginning of the 1500 s; and only slowly did certain subjects based upon such separation attain later to independent treatment. It is true, however, that the legist was primarily con- cerned with private law and the canonist with ecclesiastical law, because such was the predominant content of their law-books. Feudal law fell to the legist, because it rested upon the emperor's sanction; and accordingly the " Libri Feudorum " were customarily appended to the Novels as a tenth Collation. So also the criminal law, -which the legist treated in his exposition of the " libri terribilis" (Dig. I, 47-48). On the other hand, procedure — and be it noted criminal in union with civil procedure — was primarily a subject for the canonist, which he treated in his exegesis of the second book (" Judicium ") of the Decretals; and the importance of this portion of the Decretals, as the embodiment of the rules of procedure, made possible its continued authority even at times and places where the authority of the Canon law was in general combated (as at Wittenberg and Marburg during the Reformation). The course was regarded as one in legal procedure, — and thus appears as the first division of the law according to its subjects. Only after the middle of the 1500s.^ do we find here and there (as at Tiibingen and Jena) a separate chair in criminal and feudal law; in the establishment of these the encroaching legislation of the empire in the domain of criminal law doubtless had particular influence. Feudal law seems to have been added merely to give a sufficient task to the professor. The leading centers of legal science in the 1400 s were Cologne, Erfurt, and Leipzig. Topic 2. The Victory of Roman Law § 16. Basic Conditions making Possible the Authority of Roman Law. — Though the inveterate belief in the authority of the im- perial and papal law was a precondition of its application, yet its " de facto " naturalization is only to be understood by bearing in mind the general status of written law in the administration of justice in Germany. It was inherent in the nature of the popular courts that the source of the law, in the last resort, was the personal conviction of the judgment-giver, who felt bound by no external authority. The 'Wachter, "Gemeines Recht," pp. 95 et seq. 356 Chap. II] THE RECEPTION OF ROMAN LAW [§ 16 conception of a binding statute, to which personal opinions must unconditionally submit, receives in such a system no recognition. Records of the law, of whatever kind, are not laws that bind the lay-judge, but merely aids to knowledge, instruction which helps him to form, his opinion. Even tradition, custom, is to him no formally binding sanction; it is only a motive, a ground of con- viction: he judges in accordance with it because he allows him- self to be persuaded by it; for he is inclined to hold that to be law which has always been so held, and because it has been so held.^ Given such an attitude of legal practice toward all law in thfe ob- jective sense, it was natural that questions regarding the formal basis and extent of validity of traditionary legal records were scarcely raised, still less were closely examined. It was enough that men believed in their essential value, in the wisdom and supereminence of their authors. These authors, to be sure, often supported themselves by legendary traditions of their treatises' origin and outward authority. Between the reverence paid to the law-book and the growth of legends touching its origin there was evidently a mutual reaction. The authority, to all appearances statutory, attained by German law-books of private authorship, as well as their migrations from place to place and people to people, are to be thus explained. Fable had earlier derived the " Sachsenspiegel " from Charle- magne; and fable now taught men that the Emperor Lothar II had commanded by statute the theory and the enforcement of the Roman law, — stories in which the already existent belief in the great importance of those written sources merely found expression, yet also sought support. This nimbus of credent rev- erence put the Roman law-books into a like position with the German ; in any individual case the only question was whether the opinion of the lay-judge would be determined by the one or the other. If the parties or their advocates sought to urge upon him the principles of the alien law, their pretension was not in this less justified than if they had appealed to any principle of the German law that had originated outside the field of jurisdiction of the deciding court; for it was not the law's binding authority that was in question, but the rational force of its doctrine, which shaped the conviction of the " Schoffe." ' Martitz, "Eheliehes Giiterreoht des Sachsenspiegels,'' pp. 57 et seq.; Bohlau, "Aus der Praxis des Magdeburger Sehoffenstuhls," Z.'R.G., IX, 24^36; Planck, "Das deutsche Gerichtsverfahren im Mittelalter,". I, 311 et seq. 357 § 17] GERMANY [Pakt IV Here, then, made itself felt another element which promised victory to the Roman law, — namely, the superior intellectual power it embodied, the effect of which was bound to increase in the same measure as the old force of the " Schoffen "-system decayed. § 17. The Superior Technic of the Roman Law. — There was, certainly, an almost incalculable abundance in Germany of legal records; for beside the law-books before referred to, the multifari- ously membered empire possessed, in the statute law of its terri- tories, cities, and other political divisions, written rules in the fields of constitutional, penal, procedural, property, and family law. In this abundance of individual legal principles, however, there lacked coherent statement, unity of principle, technical finish, and even capability of attaining this. Even the Romans with their special gift of lawmaking could never have attained to perfection in this respect, if they themselves had not from the very beginning been subjected to a unitary organization. Rome was and remained the centre in which the forces shaping the law were concentrated; every necessity felt in the wide range of the empire, every opinion that agitated society, found expression in Rome. Concentrated in this one focus, the powers of the whole nation worked in unison; whereas the German spirit frittered itself in party-colored diversity of effort. And this dispersion of tendency extended down to in- dividuals. For the German lay-judge, the living organ through which the law continued to develop, gave his judgment, or doom, for the particular case only, — often shaping it solely according to his personal convictions, without taking account of reasons, the interdependence of different legal principles, or of higher and controlling doctrines. He acted as a living source of law, recogniz- ing no higher authority than a science immanent in his own consciousness. Totally in contrast to this was the generative intel- lectual process in the Roman administration of justice, a pro- cess controlled by the external authority of the "jus" and the "jurisdictio," and thereby unified. This process began with the " interpretatio " of the law of the XII Tables; and even in the freer shaping of the praetor's edict it sought in the first instance at least the formal support of the " verba legis." Wherever we observe the beginning of a reformation in the law we see an en- deavor to fit it into some gap in the reading of the written statute, be that the " lex " or the edict. In this endeavor, juristic technic and consistent thinking found development; in this subjection to the written law was rooted the continuity of its evolution, the 358 Chap. II] THE RECEPTION OF ROMAN LAW [§18 maintenance of its inner coherence, and therewith its harmony of principles. In the difference between the Roman "actio " and the German plaint (" Klage ") we see most palpably the contrast of the two legal systems. The latter is only a complaint of some objective wrong, already done and continuing, to remove which the appeal is made to the court; it is left to the lay-judges to " find," in their conscience, what the law may be. But the Roman " actio " is a weapon with which the citizen comes forward in combat to enforce his right. Two express authorities support him, the " lex " and the edict; upon the basis of these he can demand that the praetor grant him the " actio." Once granted, the ques- tion for the judge is no longer one of " finding " the law, but merely of deciding whether the presupposed facts, upon whose existence the validity of the " actio " depends, are actually present in the given case. The legists of the Middle Ages were not conscious of the his- torical difference that distinguished the Roman " actio " from the German plaint ; and just because the specific Roman peculiarities were not recognized, it was possible to " receive " the " actio." It was of course not received in its true Roman character, but in that which remained after stripping off its specifically national qualities. In this altered meaning the " actio " is the subjective right armed for combat, the right of a person formulated as the basis of his legal demand. In this sense the Glossarist Placenti- nus (died 1192) had already explained the nature of the " actio." ^ In the " actiones," subjective rights are formulated for use before the courts, and the superiority lent to the Roman law by this product of legal technic was bound to strike immediately the German practitioner. For here lay, elaborated in fixed types, what the German law could show only in blurred outline. They embodied legal conceptions in sharp distinction, and at the same time in the form adjusted to the procedure of the court. A broad path, marked by practical considerations, for the introduction of the Roman law, which had first appeared as a sporadic application of individual principles of law, was thus afforded by the " actio "; which was now transformed into plaint-formulas ("Klagformeln "), forms for legal actions. § 18. The " Klagspiegel." — As the Glossators, three centuries earlier, in their endeavor to confirm the practical introduction ^ Bethmann-Hollweg, "Civil-pTOcess," V, 22 et seq. 359 § 18] GERMANY [PaRT IV of the Roman law, had devoted themselves first and foremost to commentaries upon the " actiones," so in Germany there appeared at the beginning of the 1400 s a comprehensive work, the first and the most influential lawbook on procedure; it was later given the striking name of " Der richterliche Klagspiegel " (The Mirror of Judicial Plaints).^ The author (an unknown person, from Hall in Swabia) is thoroughly conversant with civil affairs and a learned practitioner, particularly familiar with city organization and cus- toms, but acquainted also at first hand with the open country. He is deeply impressed by the mischief of the uncertainty and arbitrariness prevalent in the courts. He invokes the application of the written imperial and Canon law; still he does not claim its exclusive authority, but freely grants the force of good customs and of city statutes. His only object, he says, is " to give useful instructions how a party must conduct himself in court, so necessary in the practice of the day, to the end that the darkness of un- certainty may be dissipated, and the common law become clear." His work, a moderate folio, falls into two tractates, of which the first and more important treats of civil law, and the second of criminal law and criminal procedure. He writes for an unlearned public, for whom he seeks to make an easily intelligible handbook for practical use. Accordingly he adds to his pleading forms elementary instruction; partly borrowed from the Institutes; omits the difficult commentaries of the Italian jurist he copies from; and on points of detail and subtle questions refers to the literature or the advice of experts. The author's whole bent is to teach Roman legal procedure, and therefore little account is taken of the German law. Its law-books are not once mentioned; yet place is made for the authority of Germanic custom and statute, and many principles of Roman law are characterized as inappli- cable. The limits of its authority are, however, shifting and ob- scurely stated. Starting from the idea of the binding force of the imperial law, he is prone to find again in Germanic society the Roman institute; and the effacement of their differences is made easier by the trouble he gives himself, in his translations, to find German words to correspond to the Roman principle; fot with a likeness of name there seems to be a likeness of thing. He also gives us information of the procedure of his time, especially in crimi- nal law, sometimes accepting it as good, sometimes combating it as unreasonable and irreconcilable with sound justice. ^ Bethmann-Hollweg, "Civil process," V, 18 et seq. * Details in Stinlzing, "Pop. Lit.," oh. 6. 360 Chap. II] the reception of roman law [§ 19 The influence of the " Klagspiegel " upon the introduction of Roman law into the legal practice of the 1400 s cannot be proved with details, but it can in a general way be inferred. For whoever appeared in court with a complaint based on its directions, and could appeal to the authority of the written law, enjoyed through that alone an advantage, — one which the lay-judge could with- stand only when the case clearly involved some incontestable princi- ple of the native law. Where there was obsciu-ity and doubt, the lay-judge doubtless conformed to the superior foreign law, taking his lesson from the arguments of the advocates or the learned clerk of the court. And if it was a part of the art of counsel to bring him to this state of mental vacillation, still the increasing inade- quacy of the popular courts was no mere appearance thus arti- ficially created, but a symptom of their inner decay, ascribable to historical causes. § 19. The Decay of the Popular Courts. — So long ^as the sys- tem administered by the " Schoffen " (lay-judges) continued in unweakened force, it could repel foreign influences. There were no gaps in the Germanic law, for its matter was in a continual flux; the judgment of the lay-judge in every case sought (really created) the principle adequate to the case. But the time came when the vital force of the " Schoffen "-system was exhausted. The creative impulse generally dies out quickly in all fields so soon as it finds ready-made patterns through imitation of which it can cover its own poverty; and just so the power that was inherent in the " Schoffen "-system slowly wasted. The records of Germanic law had attained such importance that some degree of book-learn- ing was necessarily attributed even to the lay-judges; besides these, there were the alien laws ready with counsel. Moreover, the increasing complexity of social relations presented problems whose mastery would have been possible only to a " Schoffen "-system of increasing creative power. Just here, and in the natural course of events, the institution had reached the limits of efficiency in the task history had assigned it; for it is simply a truth of experience that an advanced civilization involves complicated social rela- tions whose apprehension, thorough investigation, and critical judgment are beyond the knowledge and conception of an un- schooled mind. Such a civilization develops questions which a subjective sense of justice cannot answer at all, or at best only with biassed narrow-mindedness. Even in the " Schoffen "-guild of Magdeburg, which by tradition was preeminent, there is evident in the 1400 » an inability to satisfy the demands of advancing 361 § 19] GERMANY [PaET IV economic development.^ The literature from the 1300 s onward shows the symptoms of approaching decay and prepares the change. The works of Johann von Buch, Nickolaus Wurm, Johann von Briinn, Theodorich von Bocksdorf, are directed to giving consist- ence to the " Schoffen "-law, and to helping out with supplements from the Roman law. They evidence the conviction of practi- tioners that the wisdom of the lay-judges was inadequate; they encouraged these to form their practice upon the written law; and this furthered (because presenting the law in finished form) the paralysis of the creative function. The 1400 s is filled with the struggle between the rules of the Corpus Juris and the oracular dooms of the lay-judges. One may call this a struggle between the native and the foreign law. But that misses the essence of the matter. For one reason (as already remarked), the adoption of foreign legal rules was in large part spontaneous. But, most of all, the Middle Ages knew not in the field of law a national German consciousness (in a modern sense) nor perceived so sharp a contrast as the one assumed. The au- thorities of the Roman-Canon law were not looked upon as alien; they were closely bound up in European historical traditions; they were elements of civilization and of political existence. Germanic law did not stand in contrast with the other as a unified national product. It rested only in local consciousness, in partic- ularistic practice. What was valid in one locality was foreign in the next, and not less foreign than the law laid down by those authorities who stood in acknowledged sovereignty over all society, secular and spiritual. The lay-judge saw no essential difference; and as he adapted himself to the conveniences of the imperial law, so also we see him declining to enforce the local customs and statutes of other jurisdictions.^ And finally, it must not be forgotten that in the Reception there was no question of the pure Roman law, but only of that form of it which had been shaped in Italian theory and practice. In fact, the Corpus Juris itself was not received, but the fruits of the literature of the post-Glossators, in which Jus- tinian's law had been worked over into a law half modern. The sharpest contrasts with Germanic law were therein re- ^ Martitz, "Eheliches Giiterrecht des Sachsenspiegels," pp. 67,372; Bohlau in Z.iR.G., IX, 24-36; Stobbe in K.Vj.S., XI, 21 et seq. The general truth of the view here expressed is not afiected by the fact that in some places, as e.g. in Lilbeck {von Duhn, " Deutseh-rechtliohe Arbeiten," pt. 2), men succeeded in getting along very well with the city law. [Cf. above, §8, note 6]. ^Stobbe, "Rechtsquellen," II, 67, and in K.Vj.S., XI, 22; Bohlau, Z.iR.G., IX, 14 et seq. ^ 362 Chap. II] the reception of roman law [§ 20 moved or masked; the whole appeared as a living system of legal practice. § 20. Transformations in the Administration of Justice. — Other contrasts issued from the conflict between the foreign and the native law. (1) The historical change that took place lies not merely in the fact that new and alien legal rules were given application in the courts, but also in the fact that the manner of declaring the law was radically transformed. Outwardly this was manifested in the invasion of the courts by legal experts. A legal profession takes form and replaces the lay-judges. The inner and essential change lay, however, not in this change of personnel, but in the fact that the decay of the " Schoffen "-system signified the extinction of the principle of the autonomic " finding" of the law. A law "found" in subjective convictions was replaced by the formal authority of a written system.^ ' The learned judge is distinguished from the lay-judge not only by the tag of academic training, but also by the fact that the latter proceeds upon a legal principle lying in his' own consciousness and experience, while the former applies a law that exists independently of him and has entered into his knowledge.^ When the lay-judge declares the law, he at the same time creates it; he shapes the law to his convictions : but the judgment of the learned judge is purely an application of given rules; he shapes his convictions to the law. Therefore the change signified the victory of a new principle, namely, subordination to a formal, binding, legal authority external to the judge. This principle had long since been carried through in the ecclesi- astical jurisdiction. The organic theory and discipline of the Church had early robbed the judge of his free hand in declaring the law, and had bound him by the statement of the canons. Even the field of morals, the " forum conscientije " of the con- fessional, was subjected to extrinsic statutes, following the prog- ress of formal authority. The extension of this principle into the secular courts had long been prepared for by the ever increas- ing records of the principles of Germanic law; these became (if not formally, at least in fact) binding norms, especially in the appellate courts. And so, here too, in the transition to the modern form of legal practice there was no break. But its final ' On this process, which repeats itself analogously in the legal history of all peoples, every-where exciting the same complaints, in part justifiable, in part unjustifiable, compare Ihering, "Geist des romischen Rechts,'' II, 34 et seq. 2 Planck, "Das deutsche Gerichtsverfahren im Mittelalter," 1, 315 et seq. 363 § 20] GERMANY [ParT IV stage was reached only when (as a part of larger political changes) radical transformation took place in the organization of the courts. To this we may now proceed. (2) In the old Germanic judicature, the judge-president (" Richter ") was not the judgment-finder, but the one who held the court (in his own right or under some lord); the lay-judges (" Schoffen "), and not the judge-president, found the judgment. With the rise in power of the territorial rulers, the officials whom they appointed as judges gradually engrossed the function of judgment-finders, becoming judges in the modern Continental sense of the word; thus the lay-judges were superseded by the body of trained civil officials that was now forming.^ In the rural districts of the territories we find generally three classes of officials: a provincial governor or superintendent (" Amtmann," " Landvogt," " Drost "), who, as representative of the territorial ruler, had the general administration within his district; a treasurer (" Rentmeister," " Kastner," " Keller "), who collected taxes, kept accounts, and was deputy of the " Amt- mann "; and finally, the magistrate (" Schultheiss ")> named by the ruler as chairman of the court. The court is indeed still com- posed of the lay-judges, but these too, by the beginning of the 1500 s, are often named by the ruler through his officials. This system of offices was not brought about uniformly, but in a variety of degrees and forms. We find them now united, now separated, here all of them, there only some of them; but everywhere, the fact repeats itself that the judicial function is exercised by civil officials. Ulrich Tengler, a trustworthy witness for the practice of his time, in his " Mirror for Laymen " (" Laienspiegel," ed. 1511), treats the law-judges as assessors of the judge, aiding him in the finding of the judgment, which is pronounced by him after consultation with them, his opinion prevailing in case of differences of opinion. In many territories {e.g. Hesse) this participation of the judge-presideiat in the judgment was first developed in the early 1600 s. Similar conditions came about in the towns : jurisdiction belongs to the territorial ruler or, in the free cities, to the council; the " Richter " is the magistrate named by the one or the other. The court consists of the lay-judges, who may either be members of the council or constitute a bench distinct from it. In the town ^ Stolzel, " Richterthum ;" Isaacsohn, "GescMchte des preussisehen Beam ten thums," vol. I (1874) ; Stintzing, in H.Z., XXIX (1873), 409 et seq., on the history of Roman law in Germany. 361 Chap. II] THE RECEPTION OF ROMAN LAW [§ 20 courts the same transformation takes place as that attested by the " Laienspiegel." The decay of the functions of the lay-judges and the advance of the alien law were reciprocal phenomena. The more the latter was asserted and enforced in the higher courts, and therefore demanded by parties and attorneys in the lower courts, the more uncomfortable must have become the position of the lay-judge. Help was sought in the employment of clerks learned in the law, to aid him with their knowledge, that he might not be sacrificed in uncounselled vacillation to the rabbling advocates. From the end of the 1300 s onward the cities began taking into their service assessors to their councils,' who at the same time acted as assessors of the municipal courts. From the end of the 1400 s probably no considerable German town was with- out such a learned clerk, counsellor, or syndic. And in the rural districts also the same help was sought. The lay-judges in their perplexity gladly took this easy way out of difiiculty. But we find also that they sought advice of foreign jurists or turned for advice to the nearest public authority, the civil official trained in the law; and so soon as the latter took part in the determination of the judgment, it was in fact he who "found" it. And as the function of declaring the law escaped from the hands of the lay-judges, another and companion phenomenon is observable, namely, that the litigants turned their backs upon them; the confidence in the " Schoffen "-courts vanishes. Moreover, their organization made litigation difficult; for they were not permanent functionaries, but were only periodically assembled. The litigants became accustomed to resort to the territorial officials, who were always ready with a certain and prompt decision; the parties voluntarily taking them as arbitrators to avoid the " Schoffen "- court. This arbitral jurisdiction of territorial officials was de- veloped to a great extent ^ and in the most diverse form with the favor of the territorial rulers. And this custom of arbitration, so widely usual in the 1400 s, was often taken advantage of precisely for the purpose of making sure the application of the Roman law, by choosing as arbitrator some learned doctor. As the ordinary man turned to the territorial official, so the more important litigants applied for justice to the lord of the jurisdiction — duke, bishop, city council; who then did not ordinarily render judgment himself, ^ Stobbe, "Rechtsquellen," I, 643 et seq., II, 59 et seq., and in K.Vj.S., XI, 16 et seq. 'Stolzel, "Riehterthum," I, 238 et seq.; Stintzing, in H.Z., XXIX, 416 et seq. ; Ott, "Beitrage," pp. 142 et seq. 365 • § 20] GEEMANY [ParT IV but procured It from some " Schoffen "-bench or university faculty of law.-' (3) The evolution of a learned judiciary is seen most clearly and sharply in the courts of higher instance, and evolved along with the right of appeal. Of most general importance, in this respect, was the Imperial Chamber of Justice (" Kammergericht "), created by vote of the Diet of Worms, in 1495, and opened on October 16 of the same year at Frankfort o/M. This court was one of first instance for immediate imperial vassals, and appellate court for the subjects of the territories and imperial cities. At its head was a judge- president, either prince, earl, or baron; its membership consisted of sixteen " judgment-finders " (assessors or associates), of whom a half must be doctors " worthy for their learning in the law," and the other half at least of some class of the nobility. They were to judge according to " the common laws of the empire " ; but also according to " righteous, honorable, and practised ordinances, statutes, and customs of the principalities, seignories, and courts." The whole position of this court, to which an acquaintance with the various local laws could not be easily accessible, resulted in the Roman-Canon law's predominance in marked degree in its decisions, so that its creation has not unjustly been considered as a decisive influence in the reception of the Roman system. In the territories the appellate system replaced the old custom of submitting the law to the superior popular courts (" Oberhofe "). The appellate system also had long since been established in the ecclesiastical courts. The traditional position of the " Oberhofe," however, and even that of the newly created Imperial Chamber of Justice, were hard to reconcile with the efforts of the princes for territorial partition and independence, which required that every influence of external authorities should be jealously and painfully excluded. Accord- ingly, they sought to secure themselves against the jurisdiction of the Imperial Chamber of Justice by obtaining the " privilegia de non appellando." The submission of law to foreign " Oberhofe," — e.g. from the cities of the electoral principality of Saxony and from the margravate of Brandenburg to the " Schoffen "-guild of Magdeburg — was prohibited by ordinances of the territorial rulers. To assure effect to these defensive measures, it was further necessary to offer a substitute. To this end, rescripts of ^ Bohlau, Z.iR.G., VIII, 193 et seq., IX, 40 et seq.; Ott, ."Beitrage," pp. 135 et seq. ' 366 Chap. II] THE RECEPTION OF ROMAN LAW [§ 21 the princes referred lay-judges and litigants to the sovereign, the princely councils, or the law faculty of the territorial university for counsel and judgment. Still more important, the territorial rulers (from the end of the 1400 s onward), in competition with the imperial courts and the " foreign " " Oberhofe," instituted high courts and superior courts within their territories as courts of higher instance. In part these were only transformations of the old feudal and servitary courts, which were given a membership in half of nobles that they might serve as courts of first instance for the nobility; while their other half was made up of learned assessors, that they might serve as appellate courts for the other estates. Simultaneously there developed in the courts of the principalities the "chancery," or staff of the prince's counsellors, which was attached to the chancellor's office. For as the Emperor had long since had a chancellor, so also the princes found place for this supreme administrative ofiicer. Administrative growth and the accumulation of business made necessary the organization of boards. And here is repeated the same phenomenon observed in the in- ferior courts: as the civil official competed with the lay-judges, so the chancery competed with the high court, and the litigants chose by preference the arbitration of the former, because a con- stantly sitting, and so a more accessible, tribunal; and thus the more bureaucratic triumphed over the more loosely organized and only periodically working court. Finally, we must not forget the jurisdiction of the itinerant judges whom the emperor and the territorial rulers were accustomed to name by commission as needed, following the papal model of ■' judices delegati." In this way, also, the jurisdiction of the learned officials was strengthened. § 21. Political Significance of the Reception. — In the decay of the Germanic " Schoffen "-system is seen again the picture offered by the transformation of the Roman judicature under the influence of the principate. From the " magistratus populi Romani," who merely formulated the " judicium " according to which the " judex privatus " had to give judgment, was developed the imperial offi- cial; and because the exceptional cases in which the magistrate might decide a controversy by decree " extra ordinem " constantly increased in number, the decay of the old " ordo judiciorum pri- vatorum " in the 200 s gave to the official as imperial judge the power of finding the judgment. Just as the contrast in Roman law between " jus dicere " and " judicare " lost its meaning when 367 § 21] GERMANY [Part IV the two things coalesced in one function, — which they did after Hadrian silenced the praetor's " viva vox juris civihs," transforming his edict into codified law, and attributing binding authority to the opinion of the imperial jurists, — so in Germany, out of the atrophy of the old Germanic autonomy, the rising authority of the written law, and the increasing power of the State, there arose the union of the judge-president and the judgment-finder into one person, who was the judge in the present-day Continental sense. The origin of the modern State is therefore involved as a primary implication of this historical process, in which the Roman law was not the cause, although it does appear as an essential contributing factor. For its increased study provided a trained class of officials ; its increased use in legal practice gave this class its dominance in the administration of justice, to which the lay-judges had become unequal and indisposed; its principles of the rights of the princeps afforded the territorial rulers the desired support and impulse for the development of the new political order. That the process of State formation in Germany was territorially particularistic, and was realized at the cost of the imperial au- thority, had its cause, however, in historical conditions in which the nature of the Roman law played no part; for, on the contrary, the authority of this originally rested, in Germany, precisely on the central and imperial power. Those men who in the 1400 s had in theory justified and demanded its enforcement — Peter von Andlau, Sebastian Brant, and others — anticipated from it, as imperial law, the invigoration of the imperial power as the highest legal authority within the empire; and the origin of the conception of the common law actually did create a new legal bond uniting all members of the empire. Had the imperial au- thority possessed the vigor to form one German state, then the reception of the Roman law would have rendered primarily to it the services which the princes and cities now utilized to their own advantage. Exhortations to the empire to reduce this weapon to mastery in its own interest were not lacking. To the complaints of the confusion into which the law had been brought by the schoolmen, there were regularly joined from the beginning of the 1500 s demands that the Emperor should, as a new Justinian, reduce the common law of the empire to simplicity' and clearness by statutory reforms. But even if there had been available an intellectual capacity to prepare a codification of the common law, the central political power would scarcely have been adequate for its practical 368 Chap. II] THE reception of ROMAN LAW. [§ 22 establishment. Only with the painful efforts of many years was it possible to bring to a successful end the contest over the refor- mation of the criminal law and criminal procedure; the publication of a criminal code (the " Constitutio Criminalis Carolina," C.C.C.) was even attended with the proviso that the " ancient, just, and lawful usages of the electoral princes, princes, and estates, handed down by good tradition," should be in no wise infringed on by the new arrangement.^ With much greater firmness would particu- laristic jealousy have resisted a definitive codification of the private law. On the other hand, the princes and cities themselves under- took reformatory legislation, and made use of it as a welcome opportunity of strengthening their own legislative authority and of creating a proper legal constitution, delimiting and binding to- gether their sphere of sovereignty.^ And thus originated, at the end of the 1400 s, the numerous reforms of municipal and territorial laws, which had as their end the definition of the law, supplement- ing it with the principles of the Roman law, and more or less radi- cally recasting it. § 22. The Legal Profession: University Professors and Practis- ing Lawyers. — There has been an inclination to complain — indeed, it has been made a ground of bitter reproach — against the Roman law and its adherents that they smoothed a way for German particularism. But it must not be forgotten that pre- cisely this political particularism involved and insured the intel- lectual emancipation of Germany. A movement of political con- solidation at that time in Germany, in favor of the Emperor, could only have been realized at the expense of the Reformation; while the political organization of the territories, although it be true that the loosening of the bonds within the empire had lamentable consequences, nevertheless signified in still higher degree the emancipation of the State from the supremacy of the Church. There arose also now a secular learning; and the legal profession, which was a part of this, was no longer an instrument of the Church's power, but the representative of lay authority, the serv.ant and oflBcial of the State, which through its agency becomes a firmly articulated organism. The civil service was the institution through which was realized in the field of politics the emancipation of life ' Waditer, "Gemeines Reeht," pp. 30 et seq.; Stobbe, "RechtsqueUen," II, 246 et seq.; Guterbock, "Die Entstehungsgeschichte der Carolina" (1876), pp. 173 et seq. ^Stobbe, "RechtsqueUen," vol. II, part 4; Stintzing, "Geschiolite," I, eh. 13, 14. 369 § 22] GERMANY [PaRT IV from the domination of the hierarchy, the division between modern times and the INIiddle Ages. Under the influence of these fundamental changes legal science was prepared for its historical mission; a lay bar appeared and took from the clergy the leadership. Just as the study of theology and the taking of holy orders had formerly been the only basis for an assured career, so now the study of law opened manifold positions. The theory, developed in Italy, that the doctors in law enjoyed a status of nobility, had found early entry into Germany.^ Nobody denied that as " milites legalis militiae " they stood on a level with the most distinguished and privileged class of knightly descent. We find them in the entourage of emperors and princes as chancellors and councillors; they appear as plenipotentiaries in the imperial Diet; they are employed in political missions for negotiations of all kinds. They were courted by the grandees of the Empire. Well-to-do cities eagerly sought the service of the doctors, and great lords and cities, in order to make sure of such, readily furnished talented young men with ample means for study, if they would obligate themselves to enter their service on comple- tion of their education.^ And in the same way the banking house of Fugger recruited legal counsellors out of the Geizkofler family.' The functions which we find the doctors serving are in part very changeable. The different functions are also variously combined. Besides the councillors proper, who were bound to keep con- tinuous residence at court, princes were accustomed to name in considerable numbers councillors not in residence, who were bound to render service only under special mandates. Many a doctor was non-resident councillor to different princes at the same time, gave his services as needed and demanded, and often kept up besides a continual correspondence in which he advised the prince regarding important political events that came to his knowl- edge. Political embassies, commissions, and legal practice of all kinds compelled the doctors to lead a restless life in travel. A councillor not in residence was bound to be ready to undertake such at. command; and the appointment of municipal syndics generally contained an explicit liability to " travel " and " ride." Doctors, often several of them, accompanied the princes to the imperial Diet, and the representation of the cities therein was ' Fitting, "Das Peculmm Castrense," pp. 583 et seq. 2 Schmidt, "Symbolse ad Vitam Gr. Haloandri" (1866), p. 18; Flechsig, "Gregor Haloander" (1872), pp. 13 et seq. ' Wolf, "Lucas Geizkofler und seine Selbstbiographie " (1873). 370 Chap. II] THE EECEPTION OF ROMAN LAW [§ 22 wholly intrusted to them. They did not, however, confine their activities within the offices with which they were formally invested, but practised as a livelihood the giving of opinions.^ From the end of the 1300 s judges and litigants resorted for advice to jurists of repute. At first it is in the ecclesiastical courts and courts of arbitration; the counsellors are canonists. A century later the practice of such counsellors began to be more general; the lay courts also sought their aid. In the second half of the 1500 s the chamber practice of individual jurists reached its extreme development. Side by side with it there had gradually grown up the practice of resorting for opinions to university faculties. What usage in this way developed, statutes settled and encouraged. Impercep- tibly the change came about that a formulated judgment was em- bodied in or transmitted with the opinion. This was only a means of lightening the court's business. But more important was the second development, by which there was given to the faculty's memorandum not only the significance of counsel, but that of a decision binding upon the litigants and the court; a state of things which could only have arisen under the influence of the above statutes, whose application the courts were inclined from indolence and perplexity to make the widest possible. The faculties not only displaced the old " Oberhofe," but obtained a much more . influential position than these. Only in a few cases, such as in Leipzig and Jena, where they were merged with the faculties, or in the Halle and Koburg, where they were staffed with legal ex- perts, did any " Schoffen "-guilds retain even in name their former prestige. The cumulation of offices, the union of practical work with pedagogical duties, had the pernicious effect that the university courses could only be given with long interruptions.^ Of the extent of the chamber practice, tangible measure is given in the great documentary records of the councils of the 1500 s and 1600 s. On the other hand, the occupation with practical problems, which no professor of law in Germany could avoid, not only had a decisive influence in shaping the administration of justice, an influence in favor of the foreign scientific jurisprudence, but also reacted ^ Stobbe, " Rechtsquellen," II, 75 et seq.; Seeger, "Die strafreehtlichen Consilia Tubingensia " (1877), pp. 20 et seq. ^ Pranil, "Geschiehte der Ludwig-Maximilians-Universitat," I, 73, 310 et seq.; Muther, "Universitatsleben," p. 238; Thomasius, ed. (1717) of Melchior von Ossa's "Testament" (1556), pp. 382, 388; U. Zasius, "Epistolse" {Riegger, ed., 1774), pp. Ill, 116, 146, 158, 171, 461, 507 ; Wesenbeck, "Prolegomena de Finibus et Ratione Studiortim Librisque Juris" (Leipzig, 1563), and "Oratio de Mudseo" (Wittenberg,_1572). 371 § 22] GERMANY [Paet IV upon scientific studies, inasmuch as it forced the foremost scholars into predominantly practical lines. Indubitably there lay in this close connection with practice a gain for legal theory; so far as this can be made more fruitful by a knowledge of practical life, and secured against the aberrations of abstraction. And the practical experience of the teacher was then the more truly indispensable, because it was his duty to prepare the young jurist completely for the practice into which he must enter so soon as he completed his studies. But it was also impossible to escape, in such a union of theory and practice, the inherent danger that theory was bur- dened and restrained by the inferior necessities of practice, and the latter by the necessities and traditions of the schools. Nor can one fail to see that the excess of practical affairs very generally dulled the love of free research among those who were called primarily to the advancement of knowledge, so that German legal science long bore a certain stamp of banality, and in only a few of its representatives is to be observed a higher impulse. It was not, however, merely the doctors, in their prominent positions, who were concerned in the growth of a legal profession, but almost more the widely scattered class of legal practitioners who had failed to attain the " summi honores." The smaller cities, the lower courts, had to content themselves with scribes who made more modest demands of salary and honors; and the per-, sonnel of the government and courts even of the principalities was recruited only for the highest places from among the doctors. Finally, in addition to all these official positions, there were the free professions of notaries, advocates, and attorneys. The notary, as distinguished from the ordinary clerk, exercised his art by virtue of a superior license. However unequally legal attainments may have been diffused among these different classes, such knowledge and its professional employment was still a common element that united its possessors into a legal profession, which from the last quarter of the 1400 s exercised an increasing power of attraction through the honors and pecuniary gain it promised. By that time it was already a custom for members of the highest social classes to take their academic training in the juristic faculty; and the formidable concourse of students reported in the first half of the 1500 s shows that the at- traction of the profession had then extended to the most diverse classes of society.^ ' C. Hegendorfinus, "Oratio de Artibus Futuro Juriseonsulto necessariis et frugiferis comparandis," etc. (The Hague, 1529); J. Apel, "Isagoge 372 Chap. II] the RECEPTION OF HOMAN LAW [§ 23 § 23. Complaints against the Lawyers. — Side by side with the reports of the crowding into the profession go bitter complaints against it.^ Hutten complains of the increasing influence of venal clerks and jurists, mindful only of profit. Zasius pictures their servility and pettifoggery. Equally sharp criticism, of almost identical purport, is to be found in Sichard, Melancthon, Hegen- dorfinus, Apell, and also in the numerous writers who expatiate on legal study in general. The estates of Bavaria and Wiirtemberg protested against the intrusion of alien councillors, alien doctors, and alien law. During the disturbances of the Peasants' War the demand made its appearance that the foreign law and the learned jurists be wholly done away with, — a demand which finds expression in the pamphlets of Erberlin von Giinzburg, in the so- called Reformation of Frederick the Third, and in the twelve articles of the peasants (Articles 4 and 6).^ From these and similar expressions there has been inferred a national opposition to the intrusion of the foreign law, a resistance which the people supposedly offered to the profession of expert lawyers. A closer examination of the complaints shows, however, that they were due to different causes and were directed in part toward inconsistent ends. If we take the " people " to mean the totahty of social classes, .exclusive of the jurists and the official class, any assertion of a general opposition is made impossible by the fact, already noted, that litigants very often resorted to the learned judges of their own free choice, and turned their backs upon the courts of the lay-judges. That the former gave judgment upon a common and written law, everybody knew; and this was in part exactly the reason for resorting to them. We may indeed assert that the application of the written law was felt by the people as a necessity, however little they were conscious of this. For an unwritten law, living only in the consciousness of the judgment-finder, affords a feeling of legal security only so long as it is " found " and ad- ministered by compeers. Just so long does the individual recognize his own judgment in that which appears just and right to the other. But when social solidarity had been weakened by an increasing per dialogum in Quatuor Libros Institutionum D. Justiniani Imperatoris " (Ladislaw, 1540) in Nikolaus Reusner, "Cynosura Juris" (Speier, 1588), I, 180 et seq. '■ Stobbe, "Reehtsquellen," II, 44 et seq.; Stintzing, "Pop. Lit.," pp. xxiii et seq.; Modderman and Schulz, "Rezeption des romischen Rechts". (1875), pp. 96 et seq. 2 [References in Zopfl, "Rechtsgesohichte," I, 226, note 6. — Transl.]. 373 § 23] GERMANY [Part IV separation of class interests and professions and lost from men's consciousness, then legal certainty was no longer to be expected except as coming from a law existing as a formal, external, and binding authority above litigants and judge. And it would be — to use the expression of Justus Moser — the most dangerous in- novation to give " to the judge who was not a class-equal the same power as the community had formerly held." Only where a primitive social fellowship was preserved amid simple conditions did the " Schoffen "-law remain sufficient. Where that had disap- peared, the middle classes in Germany could expect legal certainty from the imperial law, as the Roman plebs hoped it from the written code of the Twelve Tables. It was precisely the popular elements of the nation which were bound to be devoted to a law that knew not the privileges of a turbulent knighthood, which was an equal law for all, and which offered to the aspiring middle trading-class certain and approved rules of commerce. The opposition of the rebellious peasants (which must be dis- cussed below in another connection) had not at all a national but a socialistic signification. It was not directed against the alien law as such, but against all secular law whatsoever; in place of which the " godly and natural " law should enter. It was satura- ted with hatred of authority and the traditional regimen in general. Precisely opposite is the explanation of the opposition of the provincial estates, which was due to particular class interests, to a fear of seeing their privileges and autonomous powers efidangered. After all is said, the fact remains that discontent with the ad- ministration of justice was widely disseminated. Men were learn- ing that the influence of the common man in the courts had been lost; and they saw themselves compelled, in tribute to the alien law, to make use of a professional advocate or attorney for the conduct of their own cause, intrusting to him their fate, however little his interest in the issue. And if the procedure was spread out and dragged out, and a decision was finally given that con- tradicted the traditional views which the lay-judges had upheld as law, it is understandable that men often, in dejection and in- dignation, cursed the whole innovation and all connected with it. Of the deeper causes of the evil we are not left in doubt by the discerning writers of the time. The native law was in many ways sacrificed violently and inconsiderately to the Roman; equity was often overcome by facile pettifoggery. The ambition and greed of the doctors were efficacious allies of the rising demands of the territorial rulers. And in the under strata of the profes- 374 Chap. II] THE RECEPTION OF ROMAN LAW [§ 24 sion there was an unclean company. The proverb " Juristen bose Christen " (lawyers' houses are built on the heads of fools) owed its popular diffusion and significance to the accusations of quibbling, chicanery, and thievery, by which legal practice was universally characterized.^ The moral elevation of those who manipulate the law is the demand placed foremost in the numerous hodegetic writings of this period. But the moral shortcomings are hardly more denounced than the lack of scientific training.^ " Thanks to the stupidity of the judges," writes Melancthon, " the most inane rabulists gain access to the courts as attorneys, draw one cause out into another, flay their clients, plunder cities, and hold the ignorant judges up to ridicule. They have not themselves mastered the law, but have drawn their knowledge from the maxims of tricky practitioners, and are therefore naturally infected with the pest of the most de- praved form of scribbling." And Melchior von Ossa^ writes: " A still greater burden upon the land is that so many untaught and shallow-brained attorneys are suffered alike in the country and in the cities; that craftsmen who want to spoil but not to labor, parish clerks and other petty good-for-naughts that run from work, have the audacity to set up as attorneys, — though they have not only no understanding of the law but often cannot read nor write; they set the simple townsmen and peasants by the ears, hinder fair agreements, and have, too, some of them, their fellows who go around in the inns and beer-houses, and after stirring people up to brawl against their lords or others, direct them to their miserable principals. These are in truth the frogs of whom Origen says that in them there is nothing but futile croaking and brawling, — and yet such fellows draw much money out of the poor sitbjects." Thus the reasons of the existing evils were found as well in the possession of learning as in its lack; the complaints were directed equally against the learned and the untaught. And there was basis for both ; for if the old state of things could have remained un- changed, and had remained so, an expert legal training would have been both unnecessary and an evil; but in the change that had begun it was indispensable. §24. Legal Training: Smatterers and Popular Literature. — ■ 1 [For a further study of the above proverb, see Professor Courtney Kenny's article, " Bonus Jurista Malus Christa," Law Quarterly Review, XIX, 326. Ed.] ^ Stintzing, "Pop. Lit.," pp. xxxii et seq. '"Testament," p. 461 (ed. Thomasius). Cf. von Langenn, "Dootor Melchior von Ossa" (Leipzig, 1858). 375 § 24] GERMANY [Part IV The normal course of legal studies that led to the " summi honores " began at the university with the study of the " artes liberales," particularly dialectic and rhetoric; and only after the baccalaureate and master's honors had been gained did one pass, into jurisprudence, " ad studia altiora, difSciliora, et graviora." For these a period of five years (on the average) was allowed; so that six to eight years of studies, in which was included when possible a fairly long residence at an Italian or a French university, was not uncommon. Such a course of preparation presumed an expenditure of time and money which only a small portion of those who crowded into legal practice could meet. Moreover, university conditions placed the greatest difliculties in the way of a legal train- ing. These lay not only in the irregularity of the lectures (already noted), but still more in their unwieldly and unsystematic method. Of him who wished to secure a complete legal training such inde- pendent exertions were exacted as only few were equal to. The majority, who had only moderate strength and limited time to devote to academic study, were not, as to-day, carried by the power of method to a fair average of legal training, but were inevitably provided with far less.^ And thus it happened that, from the middle of the 1400 s onward, a multitude of half-trained sciolists, untroubled by such restrictions as the State has to-day created through examinations and educa- tional regulations, spread over the land and acquired predominant influence in petty legal practice. With those who left the uni- versities half-educated were joined the self-taught, who had ac- quired a superficial knowledge of the foreign law, and in some sub- ordinate employment about the courts had learned the formal routine of the law. They constituted together a class of the legal profession lying between the learned doctors and the popular lay- judges. We find them in positions for which the high-bred doctor considered himself too good, scribes, advocates, attorneys, notaries, and assessors, everywhere, in the country and the cities, in petty practice. Little as was their personal prestige, great was their actual influence; for it was through them that the alien law was given root in that broad field of civic life to which the doctors remained strangers. An extensive and peculiar species of literature corresponds to this inferior level of legal culture.^ Generated by their necessities, it served also to increase the number of the middle class of lawyers. ^ Siintzing, "Pop. Lit.," pp. xvii et seg.; Oil, "Beitrage," pp. 103 et ieq. ^ Stintzing, "Pop. Lit.," pp. xxxvii el seg. 376 Chap. II] THE RECEPTION OF ROMAN LAW [§ 24 And its historical importance is great, for without it the Reception of the Roman law could scarcely have been perfected; since only through it was the gap filled that existed between the cultured legal science brought from Italy and the social life of Germany. In con- cise rules, summaries, and excerpts, with lists of the divisions and title-headings, the effort was made to convey a mechanical mastery, of the content of the great law-books. With few exceptions we find but slight traces of any attention to the native law. The end was the application and acquirement of the foreign law, and of the canon law of procedure. In comparison with this popular literature, the circulation in Germany of the great commentaries of the Italian legists, and of the sources of the Roman law, was very slight. Conditions were certainly more favorable as regards the sources and the schplarly literature of the canon law; yet these also could stand no comparison. . If one looks at the scientific merits of the majority of these writings, one understands perfectly the laments of Zasius and Melancthon over " the pest of perverted legal scrib- bling; " and these strictures were the better grounded because such writings were, for the most part, published in corrupted texts whose faultiness and even senselessness appear to us unexampled. Life was pressing, and could not wait upon the school. Moreover, a drift of the times, parallel to the humanistic move- ment, stood the popular legal learning in good stead. Through the 1400 s there runs significantly a trait of popular uplift. The lower classes worked their way upward into influence; the cities conquered a sure position within the Empire; the gilds attained equal political rights with the patriciate in the cities. The poetry of court and chivalry declined, relatively to popular poetry. The desire of education took hold of the lower classes of society. Re- spectable but sterile learning was pursued with mordant mockery, but at the same time men labored to improve the schools for the education of the people. With this tendency of the times, which fixed the character of its literature, the necessities of legal practice were intimately allied. As a remarkable representative of this alliance we have Sebastian Brant, in whom were united humanism, popular didactic poetry, and popular romantic jurisprudence. The law-book named by Brant " Der richteriiche Klagspiegel," at once a theoretical com- pendium and practical handbook, is remarkable as the first ex- tensive undertaking to translate the Roman legal system into German. Other writings reproduced in German the text of well- known Latin manuals in literal translations or in revisions. To 377 § 25] GERMANY [PaRT IV all these were now added the German formularies, which embody at once the forms of the German chanceries and the conceptions of the Roman law. Lastly, as the final result of the whole movement, the Mirror for Laymen (" Laienspiegel ") of Ulrich Tengler ^ and translations of the Institutes by Thomas Murner, Fuchs- berger, and Gobler. To all these must finally be added that peculiar class of works already discussed (§ 14) which owed their origin to the promotion of the parochial charge, and which we might call clerical jurisprudence . . . whose jural content bears a predominantly popular impression. Ulrich Tengler was not a " doctor juris," but a man of scholarly attainments and large practical experience. His aim is to instruct the laity so that they might know how to bear themselves as " secular judges, mediators, assessors, judgment-finders, councOlors, clerks, plaintiffs, defend- ants, witnesses, arbitrators, advocates, and other parties in court or council." He brought together in it what was most important in the existing scattered popular literature of legal practice, and to the use of which men had become accustomed. And precisely to this faithful conformity to the usage and the need of his time, we must attribute the extraordinary and undisputed credit which the " Laienspiegel " found among practicians from the very begin- ning. One found in it a popular encyclopaedia of legal science. Beside the " Laienspiegel," which had absorbed so large a part of the popular literature of legal practice, the older writings could not maintain their original importance. Only the most important of the works of the older popular literature offers here a noteworthy exception. For the " Klagspiegel," a new lease of life began with the appearance of the " Laienspiegel," . . . and from this time on the two together form the most usual apparatus requisite in petty practice. Topic 3. Italian Humanism and the Reformation § 25. Theology and Legal Science in the Middle Ages. — Legal science and theology had stood in the closest relation to one an- other throughout the Middle Ages, — for one reason, certainly, because the representatives of the former belonged in their majority to the clergy. But their parallel development was determined still more by an inner kinship, namely that both are devoted to determining the meaning of documents handed down from a far past. Of these documents, one class, those of the ecclesiastical ^ Stintzing, "Pop. Lit.," ch. 7. 378 Chap. II] THE BECEPTION OF ROMAN LAW [§ 25 law, brings the two sciences into direct contact with each other; or rather is common to the two. To this influence was added the fact that the scholastic dialectic shaped equally in both the form of scientific endeavor. Similar phenomena, therefore, appear in the course of their development. What patristics had been to theology, the period of the early Glossators became to legal science; which handed down to later times, as high authorities, its Four Doctors, — the "four lihes of the law " — just as theology rev- erenced its " Quattuor Doctores Ecclesise." Irnerius, the Four Doctors, and their immediate successors, in direct contact with the sources, separated from them by no pedagogical traditions, and having their eyes fixed steadfastly on them, were the first to unlock the riches of the Justinian law-books. Then the creative force of legal science gradually flagged; the " Glossa Ordinaria " of Accursius became authoritative, and assumed the position which the " Libri Sententiarum " of Petrus Lombardus had long since occupied in theology. Scholastic theology had scarcely reached its fullest bloom in Albertus Magnus, Thomas Aquinas, and Duns Scotus, when legal science boasted of the brilliant names of Bartolus and his pupil Baldus. It was, indeed, not given to these, as it was to those great schoolmen, to open up, even though only in form, a new world of thought, nor to erect a grandiose philosophic system; but their works did attain, through a kindred power of scholastic dialectic, finished virtuosity of analysis, and versatile casuistry, a sway that can only be compared with the authority of those great masters. As Thomas Aquinas and Duns Scotus became the chief pillars of dogmatics, so Bartolus and Baldus were enrolled with the Gloss of Accursius as authoritative ; and thus was consummated the last break with the sources. Not what these contained, but what those authorities had thought and said of them, was henceforth decisive in the questionaries and " dis- tinctions " spun out with endless prolixity and dialectic subtlety. In the steady flood of commentaries, the authority of tradition and the plentitude of opinions had raised an insurmountable wall before the sources, and to break through it strength and will were alike lacking. The renascence of classical studies in the 1400 s prepared the way for regeneration in both sciences, albeit the Humanism which sprung from it assumed at first toward them an attitude of polite disdain and even of hostility. The ideas, however, of which Hu- manism was the vehicle — the emancipation of the individual in thought and conscience, in faith and moral judgments, from the 379 § 26] GERMANY [Part IV constraint of traditional bonds, ideas ■which involved a break with the authority of tradition and a reference of men's understanding to pure and original sources, ideas which asserted themselves in all domains of thought, — were bound in time to exercise their quicken- ing influence within the fields of those sciences yet torpid in scholasticism. § 26. Early Humanism. — Humanism budded and grew hardy in Italy about the same time as legal science became enervated and decayed. It used against the latter a contempt and hostility even greater than it showed toward other scholastic studies. The prestige and influence that the jurists enjoyed and (notwith- standing all the hoUowness and tastelessness of their culture) knew how to maintain, provoked attack. The German humanists accepted it as a part of the recognized good tone of their fraternity, to inveigh arrogantly against legal learning and its representatives. " Accursianum absynthium bibere " became the favorite designation among German humanists for legal studies.' " With their Commentaries," says Hutten, " the jurists have involved in mist a subject otherwise intelligible, and made it obscurer than Cimmerian darkness." ^ Nor was Hutten the only one among eminent humanists who had busied himself with legal studies. Reuchlin, Mutian, Coban, Hesse, cultivated legal science.' But its aridity and dreariness repelled them. On the other hand, we find among jurists, from the end of the 1400 s onward, many who in their youth had acquired an excellent training in the humanities, and who had given them- selves up with enthusiasm to the new intellectual movement. Not one of these, however, nor of the other humanists who studied law and (unlike those named above, who abandoned it) made it their life calling, understood or attempted to make fruitful within it the culture he had absorbed from the " poets." Where legal learning began, taste ended. The example of Sebastian Brant shows instructively how hardly the humanistic mixed with the legal training.^ Born in 1457 in Strassburg, he plunged with his fellow- ^ Muther, "Johann Apell," p. 78, and " Universitatsleben," p; 469; Strauss, "Ulrich von Hutten," I, 167, note 1 ; Stintzing, "Ulrich Zasius" (1857), pp. 97, 103. ^Hutten, "Nemo. Praefatio" (1518) and "Priedones" (1520) in his "Opera" (ed. Booking), I, 180, IV, 379 et seq., respectively. 'Strauss, "Ulrich von Hutten," I, 155; Mulher, "Universitatsleben," p. 242; Stobbe, "Rechtsquellen," II, 34. ' Strobel, "Das Narrenschiff von Sebastian Brant" (1839); Zarncke, "Sebastian Brant's Xarrenschiff " (18.54); Stintzing, "Pop. Lit.," pp. 45 et seg., 451-462 ; Vischer, "Geschichte der Universitat Basel," pp. 380 Chap. II] the reception of ROMAN LAW [§ 27 student Reuchlin into classical antiquities at Basel (1475-1477) under the influence of awakening Humanism; was active later as a favorite teacher, and soon gained for himself an esteemed name among Humanists by his editions of classical authors, and still more by his Latin and German poems. From a man who had matured in such a cultural environment, one might justifiably expect that an ennobled taste would be reflected in his legal writings. But the opposite is true. In all these publications there is no trace to be found of the humanistic movement. On the contrary, there runs throughout the trait of didactic effort, directed to purely practical ends. Nor is he an innovator: the Empire in its ancient splendor, the Church in its pristine purity, morality in its primitive simplicity, are his ideals. Naturally therefore he felt no call to be a reformer of the law. § 27. Later Influence of Humanism. — It was, however, in- evitable that the humanistic movement should, in time, exert a positive influence upon legal science. Inasmuch as Roman law itself was an inheritance from classical antiquity, it was merely a question of carrying over into the treatment of legal texts the principles of Humanism, and utilizing in their interpretation the results of classical learning. The first person in Germany to treat seriously the connection between Humanism and legal science was Ulrich Zasitjs, who is accordingly and justly regarded along with Budseus and Alciat as one of the founders of modern legal science. The more Humanism determined general culture, the greater was bound to be the prestige and attractiveness of legal learning; for one could reverence it as a treasure handed down from antiquity. But in equal degree was the prestige of the Canon law and the inclination to its study bound to lessen; and in the same pace, the separation between clerics and laymen, within the profession, to be consummated. Humanism, however, could feel no interest in the law save from the aspect of its classical origin; the law's practical importance was to it indifferent. Its influence led therefore to a schism in legal science, to a contrast of theory and practice, such as had theretofore not existed in Germany. The breach did not, indeed, open so widely as it did in France under the influence of her great scholars; theory did not rise to an equal height of elegant scholarship; the practical ends remained con- trolling, and the theorists did not withdraw from practice. Never- theless the opposition made itself felt between those who held the 188,238; Charles Schmidt, "Histoire litMraire de 1' Alsace" (Paris, 1879), I, 191-333, II, 340-356; AUg. d. Biog., Ill, 266 et seq. 381 § 28] GERMANY [Pabt IV humanistic innovations to be idle and troublesome pranks of the " poets," which served no end of life and endangered the cer- tainty of the law; and those who, without limiting themselves to practical aims, were devoted to making legal studies into a more discerning instrument of science. § 28. The Reformation. — With the inmost thought of the German Reformation, and its first manifestations in the field of faith, legal science had no direct connection. In so far as Humanism had penetrated into law it had created an inner kinship between it and the reformatory movement; since the problem in theology, as in law, was to carry back men's understanding to the purity of the original sources and to break the authority of tra- ditionary errors. But the course of events soon led to a point where the ways parted. For the Reformation was bound, in logic and necessity, to advance from questions of faith to questions of regimen, historically interwoven therewith; from the cham- pioning of theses in conflict with Holy Writ to the negation of papal and conciliar authority; and in so doing it entered a domain where it clashed sharply with positive law. The Leipzig " Disputation," and still more Luther's repudiation of the validity of the Canon law, roused the opposition of the jurists. Many, like Zasius, turned their backs thenceforth on the Reformation, though without finding contentment within the other party. Others, and in particular the younger generation, followed the movement not- withstanding, and held to Luther, so far as their convictions of the law did not in special questions hinder. The majority of well- known jurists we find on this side. A polemic was conducted over the ecclesiastical law as a whole and individual canons. The jurists successfully championed its validity, so far as it did not conflict with the words of the Holy Writ; and where changes were necessary, they fitted the new with cautious hand into the traditional ordinances, guarding against violent innovations. Though the attitude of the jurists in the first stages of the Reformation be thus indicated as generally conciliatory, — such as was naturally implanted in them by their professional training, — individual modifications are of course to be understood. There were not lacking impetuous characters like Oldendorp, with whom the poising of legal questions gave way to the ardor of religious zeal. Others, like H. Goden, remained at heart indifferent to the new ideas that agitated the time, repulsing them alike from science and the Church. There were not lacking, also, those who, while attaching themselves in science to the progressive movement, 382 Chap. II] THE KECEPTION OF ROMAN LAW [§ 28 nevertheless, in theological issues, from conviction or impelled by very diverse motives, entered the lists for tradition and the au- thority of the hierarchy (Zasius, Vigelius von Aytta, Joachim Hopper); or who, vice versa, were devoted to the innovation in the Church, while unwilling to leave the old ways of the law (H. Schiirpf, Melchior von Ossa). At the same time there is still another aspect of the contact be- tween the development of legal science and the reformatory move- ment. We have seen how there was developing, since the 1400 s, under the influence of the growing consequence of imperial law and its administration, a legal profession, which appears, in contrast to the clergy, as the representative of the civil legal order, the State. This divorce of the domains of faith and law, of ethical duty and positive statute, this liberation of the civil regimen from its traditionary hierarchic premises, the general state-building tendency of the time, were manifestations of one intellectual ten- dency, which found its sharpest and most consequent expression in Protestantism. It could not be initiated, much less consum- mated, without exciting the opposition of the clergy. Not with- out jealousy the latter saw the immanent decline of the power and importance of the Canon law; and the essential connection be- tween this turn of events and the movement begun within the Church itself did not escape the quick eye of self-interest. From the standpoint of the ancient Church it might be questioned whether an institution and a science released from her control was still to be considered Christian. Ethical scruples against the study of imperial law so ardently pursued were easy enough to find. Legal science, it was argued, must be a science incompatible with Chris- tianity, since it taught men that they might and should defend their rights, notwithstanding Christ commanded that a man should not seek his own, nor quarrel or litigate with his brothers, but should practise forbearance. From such views men deduced an irreconcilable schism between Christianity and law. This clerical opposition gave a new meaning to the proverb, " Juristen bose Christen." ^ That opposition was directed solely against the imperial law, and contemplated no detraction from the credit of the Canon law. That their arguments overshot the mark and reached Canon as well as Roman law, they could disregard, since professional legal training was based more and more upon the latter. ^ Stintzing, "Das Spriehwort Juristen bose Christen in seinen ge- sehichtliohen Bedeutungen " (1875). [See Professor Kenny's essay above cited in §23.— Ed.] 383 § 29] GERMANY [PaRT IV Last of all, the Reformation exercised, in one respect, an immedi- ate influence upon the subject matter of legal studies. For inas- much as it belittled the importance of Canon law and awakened a widespread antipathy against it (though without destroying its validity, even within Protestant countries, or rendering a knowl- edge of it superfluous), the effect was that the Canon law, though it did not disappear, took a less prominent place as the object of university courses and scientific literature. On the other hand, the reforms within the Church in Protestant countries prepared the ground for, and gave the impulse to, the creation of a Protestant ecclesiastical law as a new subject of instruction. Topic 4. Methods of Jurists in the 1500 s § 29. General Character of Medieval Science. — In the case of a science whose material is handed down in written records it is self-evident that exegesis must be the beginning of its work, and must always remain its foundation. So it was that the scientific revival of the Justinian law by the Glossators began with such work ; indeed, the significance of their labor lies precisely in the fact that they applied for the first time to the Justinian law the exegetic method in its entirety and purity. With all the freshness lent by entry into a newly discovered field of thought, with interest con- centrated upon submersion in their sources, and with no literary medium between them and the object of their study that could hamper, distract, or misguide them, they unlocked the content of the Corpus Juris with a rare power of thought, and made its substance an intellectual possession of succeeding times. When, after more than a century, the decay of legal science began, the cause lay less in a general decline of intellectual force than in the natural law that any method, continued without modifications of tools or mode of application, becomes in time a hollow virtuosity, exhausts its creative energy, and reaches a vertex, beyond which it yields no new results, but expends its labor in mere repetition, analysis, and exposition of the material handed down. But what is more, the method of medieval science carried within itself the seeds of decay, because it consisted in pure analysis, prosecuted with a closed mind. The intellectual life of the Middle Ages was saturated with faith in authority; all deeper observation of things was controlled by the conviction that truth is something given, which it is not necessary first to discover, but only to receive from tradition. Within scholasticism, the authority of Holy Writ in 384 Chap. II] THE EECEPTION OF ROMAN LAW [§ 29 theology and of Aristotle in philosophy stood on an equal plane. To recognize and to prove the harmony of the two was the problem in whose solution scholastic philosophy wore itself out. Where, however, the contradiction was not to be removed, there (they be- lieved) the higher authority of revelation prevailed; for that is the supreme test of truth, and therefore the authority of the Church, as its representative and guardian, is ultimately conclusive. The goal of science can therefore only be, on one hand, to demonstrate the agreement between those metaphysical truths which appear as the content of human reason and revelation; and, on the other hand, to reduce the content of both to knowledge by the instru- ment of analysis, — that is, by a process of investigation which starts with a material ready and complete, and proceeds to dis- member it by the method of syllogistic demonstration. The form in which scholasticism practised this consisted in the statement of " questions," sometimes abstractly formulated, sometimes con- cretely stated in the form of a " casus "; and which are answered by an exposition of pros and cons with constant dragging in of the authorities. In this procedure the contradictions that may appear are overcome either by the subordination of one authority to an- other, or by " distinctions " in which each proposition deduced retains an individual, limited vahdity. Analysis by questions and distinctions involved therefore an inconceivable frittering into details. More even than philosophy, legal science was dominated by the assumption of a given truth and of its inherent consistency. Still more in it than in philosophy, and with better reason, is judgment constrained by the materials and the aims. Its material is firm and settled; its task . . . not directed to the discovery of new truths, but to ascertaining rules objectively declared, and to understanding them in their basis, purposes, and relations. The constraint of legal science was bound to become closer and firmer the more the private legislation with which it dealt should be developed in its details into a perfected system. Add to this that instinct of faith which penetrated the whole intellectual life of the Middle Ages, its credulous reverence of tradition, its willing and habitual subordination of judgment to authority; and it is evident that a beginning of historical criti- cism was quite impossible. And so, for example, in the study of the Justinian legislation no importance whatsoever was attributed to the fact that between it and its medieval commentators there lay more than a thousand years. With naive credulity the Glos- 385 § 30] GERMANY [Pakt IV sators took in hand its interpretation as though it were a question of the enforcement of a contemporary statute, and uncritically assumed for the author of their sources the surrounding conditions and accepted notions of their own day. Their faith in authority did not, indeed, extend to the forin of the text, since this was available in different readings. But their criticism here also was very sparsely exercised, and without any method whatever. A particular form of the text became tra- ditionally fixed as "litera communis" or " vulgata," to which one was considered bound in toto. Still more entrammeling for research was the influence of faith as regards the systematic form and order of the Justinian law-books. Even those works which themselves approached a systematic form, the " Summse," merely give orderly synopses of the content of the corresponding divisions of their sources. Under such conditions legal research was necessarily restricted to pure analysis. The work was there- fore more extensive than intensive, directed rather to dissolution than to concentration. And if the exegetic method in itself involved the danger of not distinguishing the relative value of different passages, of treating all with equal emphasis, thus heap- ing particularities fortuitously together, that method, when manip- ulated in purely analytic fashion, was bound to lead to such a fritter- ing of its materials, and to a dissolution into enormous masses of details. This dismembering tendency made itself felt even where unification was the apparent goal; since contradictions were on principle not merged into higher unities, but so reconciled by distinctions that every proposition and every opinion stood independent within certain limits. § 30. Legal Science : the Mos Italicus." — In the course of time, a fixed type of this analytical exegetic method had been developed, which from the 1500 s onward was called (in contra- distinction to variant methods) instruction " more Italico " or " magistraliter." It was embodied in identical form in legal literature and in academic courses. From the original simplicity and naturalness which we find in the Glossators ^ exegesis had developed into a complicated mechanism. Hieronymus Schiirpf gives the following scheme for the " Vulgaris et usitata sive com- munis interpretandi ratio:" (1) continuatio ad prsecedentia; (2) textus partitio; (3) summarii relatio; (4) casus fictio; (5) dubi- tandi ratio; (6) decidendi ratio; (7) rationis dubitandi confutatio; ' As to this, cf. Savigny, "Gesehichte," III, ch. 23-24; Schulte, "Quel- len," I, 52-53. 386 Chap. II] THE RECEPTION OF ROMAN LAW [§ 30 (8) notabilium coUectio; (9) glossarum diversarum conciliatio; (10) neotericorum judicium; (11) communis opinionis judicatio; (12) ad forum explicatio. A celebrated distich of Matthaus Gribaldus Mopha (which we follow, since it was used from the middle 1500 s onward to characterize the " Mos Italicus " and as a mnemonic aid) summarized the elements of the process more briefly. It runs : " Prsemitto, scindo, summo, casumque figure, Perlego, do causas, connoto, objicio." The commentator begins with an introduction (" prsemitto "), in which he characterizes and delimits in a general way the matters treated of in his texts, defines the terms involved, and adds any other preliminary explanations. On this follows the " partitio," — division of the material into its parts, the indication of the different matters and principles involved in the text, and which are to be separately expanded ("scindo")- After this dismem- berment of the text, its essential content is again briefly recapitu- lated (" summo "), in which process the summaries of Bartolus and others are commented upon. Next follows the statement of the " casus." The assumptions of fact underlying the propositions involved in the passage under discussion are here indicated, being taken from the text so far as this indicates them, or otherwise stated by an example theoretically devised or borrowed from actual practice. Abundant examples of these existed in collec- tions of " casus " that were early formed, and in the Accursian gloss. If the " partitio " has offered opportunity, place has already been found under it for a heaping up of authorities. The text itself is now set out, for the first time, and in this connection are attached critical elucidations of variant readings. The content of the text having by these processes been fixed and elucidated, and the fundamental interpretation thus completed, additional expositions of its content are begun in huge abundance. First, the " causae " are discussed. By these are understood primarily the rationale of the decision and of its legal principle, with refuta- tion of all possible doubts and opposing reasons. This is also the place for the discussion of the four AristoteUan causes employed by the schoolmen: ^ the " causa efficiens," " materialis," " formalis," " finalis; " which (according to the commentator's type of mind) might be dispatched in a purely formal and superficial manner, ^ Ratjen, "Vom Einflusse der PMlosophie auf die Jurisprudenz " (Pro- gramm, Kiel, 1855) ; Stintzing, J'Ulrich Zasius," pp. 112 et seq. 387 § 31] GERMANY [PaeT IV or made the basis for a particular and didactic treatment. (The four causes are, however, treated by many commentators not in this place, but in the introduction ; this is indeed the older practice, to which, for example, Zasius adheres.) Under the " connoto," which follows next, was understood a stringing together of remarks of all sorts in arbitrary order and number. Here belong the colli- gation of the legal principles deduced in the case in hand with other related principles (" cognata et similia "), parallel passages being to this end stated and expounded; comparisons of the same; ex- cursions into other fields of the law; above all, the deduction of certain general maxims, — which had borne since the Glossators the peculiar name of " brocardica," and later came to be known as " regulte," " loci communes," and " axiomata." If the com- mentator is, thus far, drawn off into undue discursiveness, the final operation of the " objicere " offers him an excuse for still wider treatment of controverted questions (" contraria et op- positiones "). In addition to apparently or actually contradictory passages of the text, the variant views of the " Gloss "(i.e. of Accursius) and of the commentators are here gathered together. Their explanation leads to " distinctiones, amplicationes et limi- tationes," in whose elaboration is displayed the virtuosity of the scholastic dialectic. Doubts, objections, and disputes are intro- duced and disposed of, by means of "questiones," for whose solu- tion authorities are cited pro and con. §31. ESects of the " Mos Italicus." — Had this method been applied with simplicity and a sensible moderation, legal science must have profited (though unconsciously) by the benefits of a thorough exegesis. But if one would understand its actual per- nicious influence, one must not forget the formalistic tendencies of legal learning. Men believed they had understood the matter when they had understood the operations of a complicated inter- locking wheelwork, although such operations were often directed to an understanding far less of the matter itself than of the dialectic laws and forms discoverable in it or in its expression. It was a fatal confusion of logical forms with positive knowledge. And if the method itself, with its complicated instructions, gave excuse for discursiveness, so too the personal incUnation to subtility, the general practice of over nice disputation and distinction, and the habit of interweaving continually with one's own argument appeals to authority, were added influences to the same end. Tradition required that he who hved later should take account of the opinions of those who lived earlier; while vanity led him to 388 Chap. II] the reception of Roman law [§ 31 endeavor to shine with a rich and learned apparatus, and to sur- pass his predecessors in propounding finer distinctions or con- triving new "questiones." And thus not only was legal literature swollen to an incomprehensible body of uncorrelated details, but the exegetio method lost sight more and mqre of its own basis. Instead of busying itself with its texts, it dealt primarily with opinions concerning them. As Thomas Aquinas and Duns Scotus became in theology the chief pillars of dogmatics, and were even declared by papal authority to be in part infallible teachers, so legal science came to ground itself upon the Gloss of Accursius and on Bartolus. Even statutory dispositions were issued to strengthen the latter's authority, and to create professorial chairs for instruction in his writings. That legal practice gladly followed this tendency was in the nature of things. When theory renounces independent investigation, practice does the same the more will- ingly. In passing judgment upon these results, modern scholarship is prone to distinguish insufficiently two points of view. From the standpoint of scholarship, one is justified in declaring it a lament- able decline that access to direct understanding of the sources should have been not only shut off but in general no longer sought. But from the more general historical standpoint of the law's de- velopment one must judge otherwise. Consider first the treat- ment of the Roman law. We must not overlook the fact that explanations of the sources which our sharpened eyes recognize as misunderstandings were prompted by and based upon those contemporary legal conceptions with which the minds of the commentators were engrossed. Unconscious of the historical in- consistencies, bent not at all on recognizing them, but on treat- ing the Corpus Juris ingenuously as a binding code for the present, the Roman law was re-formed, in the hands of the medieval jurists, into a half modern law, of Roman mixed with Germanic conceptions. Objectionable as this may be from the standpoint of an uncorrupted exegesis, nevertheless the work done deserves full recognition from the standpoint of legal practice, whose positive needs were thus instinctively recognized and satis- fied.^ Had men been conscious, to the degree we are to-day, of the chasm that separates the present from antiquity, they cer- tainly would have lacked the courage to adopt the inheritance of ' See as to this and the false judgment of similar phenomena of later times, the apposite remarks of Ihering, "Geist des romisehen Rechts," IV, 464 et seq. 389 § 32] GERMANY [Pakt IV the ancient world directly as a binding rule of life. And if they had consciously purposed to put into effect the Roman law in its purity (granting that it could have been understood), the conditions of society would have thrown insuperable obstacles in their way. As regards the treatment of the Canon law/ we must add to these considerations the fact that university professors and law- writers were alike subordinated to a living, active legislative power, whose will, expressed in ecclesiastical ordinances, they were bound in duty and impelled by sentiment to enforce. But whether it be taken that mere misunderstanding or a law- making instinct guided the Commentators, the influence of both elements to such a degree was made possible only through the domi- nance of the analytical method. An individual principle, taken in isolation, can be given by reasoning a signification which is conclusive for a special case but cannot possibly be attributed to it when considered as an organic part of the whole, — i.e. as a consequence of a more general legal concept. § 32. " Loci " and " Topica." — The unity lacking in the scientific treatment of the subject was to be re-created in the student's mind by memory. This is the explanation of the peculiar role played in the scholastic method by the " Locus," — a word with which the most various meanings are associated, but which are all included in the notion of a vantage place, outside of the matter under discussion, whence the details can be objectively surveyed. Such " Loci " scholars were at pains to discover and establish, to the end of securing a firm support for the memory and the judgment; and the memorizing of the " Loci " was one of the first rules of methodology. By " loci ordinarii " the schoolman of the law understood those passages in the " Corpus Juris " to which were attached, by fixed convention, the exhaustive discussion of any given problem of the law. Thus the " locus ordinarius " of the doctrine of " mora " was lex 32, Digesta de usuris, liber 22, titulus 1, later 1. 84, D. de V. 0., 45, 1; of the doctrine of the " statuta," 1. 9, D. de j. et j. 1, 1; the doctrine of " culpa," 1. 32, D. depositi, 16, 3; for the doctrine of the " obligatio naturalis," the " lex damnata," frater a fratre, 1. .38, de cond. ind., 12, 6. " Loci communes " we find in various meanings and applica- tions. In the first place they signified the general conceptions serving as dialectic premises for an exposition, also the analytical ' Cf. Thaner, "Die Summa Magistri Rolandi" (1874), preface ; Schulte, ."Quellen," I, 215. 390 Chap. II] THE BECEPTION OF ROMAN LAW [§ 32 points of view that determine the " partitio et divisio " — in other words, the justifications and divisional links of the subject, or the outline scheme of the analysis. By " locus communis " is also to be understood an (Aristotelian) "topic"; or, as applied to legal science, a general rule of law; so that the expression " locus " supplants the older " brocardica," and later is synonymously used with " regula " and " axioma." To these meanings and applica- tions of the " locus " is to be added, finally, that borrowed from rhetoric, "loci (to'tto?) est sedes argumenti." These "loci" con- stitute the object of the "topica," i.e. "ars ratiocinandi." In fact they are not merely, like a " topic," the premises of a demon- stration, but the basis of the reasoning in general, being deter- mined by all the relations and circumstances involved in a given object of exposition. Legal science made copious use of the " loci." Indeed it was a part of the traditional pedagogic method to start in argumentation from definitely settled " loci." Only that demonstration was reputed certain and conclusive which had as its starting-point a " locus " recognized and approved by the schoolmen. In this respect the syllogistic logic of exegesis and the method of establish- ing proof in legal procedure were much, alike. The " loci " serve at the same time as aids in the formulation of " questiones." Legal scholars were at pains to amass the most ample apparatus of use- ful " loci." Baldus had already brought the number to a hun- dred. Later many more were added whose doctrinal validity was questionable. At the end of the 1400 s, therefore, men began to sift and clarify them. [The two works, " De Modo Ratiocinandi et Disputandi in Jure " (Bologna, 1514) of Petrus Andreas Gam- marus, and " Topicorum seu Locorum Legalium Opus de Inven- tione et Argumentatione " (Louvain, 1516) of Nikolaus Everardus^ were the most famous products of such undertakings.] § 33. The Period of Unshaken Authority of the " Mos Italicus." — In Italy, the land of its nativity, the legal art embodied in the " mos ItaHcus," which afforded such ample play to the racial disposition to rhetoric and dialectic, remained in full bloom not- withstanding the Humanists' arraignments of its corrupted Latin and bad taste. It was the art of the method which still drew Germans in large numbers to the Italian universities so late as the 1500 s. Guido Panzirolus (1599) presents it in detail as the true and the dominant method; though not indeed, without ' [Stintzing, "Geschiehte," I, 119-120, criticises the estimate of Everts (Everardus) given by Savigny in his " GescMchte," VI, 465. — Transl.] 391 § 33] GERMANY [PaET IV criticising its degeneration into a prolix formalism.^ Not less securely did the Bartolists and Accursianists hold sway in France. In Toulouse, Montpellier, Orleans, Avignon, Valence, Grenoble, and Paris, they maintained their ground, despite the quickening of a new spirit by Alciat and Bude, which attained control only in Bourges. JNIatthaus Gribaldi (of Chieri, in Piedmont) pub- lished in 1541 for his students in Toulouse, after his removal to Valence, his " Libri Tres de Methodo ac Ratione Studendi," in which he expounds the " mos legendi Italicus," — highly esteemed, he tells us, in France: though it is true he makes concessions to the Humanists. Great jurists were unable to root out the old forms of scholasticism, whose practical worth Albericus Gentilis still championed in 1582 in his dialogues " De Juris Interpre- tibus." And if, from the middle of the century, the new tendency, represented by Duaren, Donellus (Doneau), Cujas, and others, was what had drawn German students to the French schools, nevertheless we find them still among the auditors of the old method. Germany borrows the methods with the materials of Itahan scholarship; and though at this period there are noticeable in Germany, as in France, radical counter tendencies tending slowly to bring science into other ways, yet the " mos Italicus " is still, notwithstanding, generally regarded as the true juristic method, and is officially maintained. Like Alciat, who reports as much for France and Italy, Zasius complains of the hindrances thrown by the faculties in the way of every deviation from the old path. The statutes and lecture catalogues of the German universities leave no doubt of the sway of this method, even though from the middle of the century there becomes evident in many of them a new tendency, and one not only actually practised, but also recognized by statute (as at Greifswald, 1545, Rostock, 1564). Yet even Bonifacius Amerbach, so late as 1552, finds it an ob- jection to the call extended to Dauren and Balduin to come to Tubingen, that they had " departed from old established methods in profitendo." ^ A deviation from tradition was construed as a lack of scholarship so late as the end of the century, in Altdorf, in the case of Hugo Donellus (Doneau), the greatest of all repre- sentatives of legal synthesis united with complete control of the sources; and we must regard as a concession to the " mos Italicus " the request directed to him by the school inspectors that he might ' Panzirolus, "De Claris Legum Interpretibus," book 2, ch. 4, 6, 8. " Mandry, "Johann Sichardt," pp. 12, 35. 392 Chap. II] THE RECEPTION OF ROMAN LAW [§ 34 be pleased, " in addition to the textual application of his own method to take upon himself to expound for some two hours ' textum in jure.' " Thus the " mos ItaUcus " maintained itself down into the 1600 s; if in the face of opposition and in an enfeebled form, nevertheless as the method prevailing in the officially primary courses. And it was not solely the force of tradition and the halo of ponderous scholarship that supported it, but the advantages it offered as an introduction to legal controversies, received opinions, and casuistics. It was on this account reputed the fittest method to make one an expert and securely seated legal jouster. To the academic in- struction was assigned the task of affording both the theoretical and the practical training; for a practical apprenticeship did not then, as to-day, follow as a matter of course the young lawyer's academic studies. This predominance of the practical tendency, to which the representatives of legal science were led and con- fined by social necessities and their own continual occupation with practical work, had the effect that neither the systematic nor the antiquarian method as received in Germany, perfected its de- velopment or attained undisputed sway. And, for the same rea- son, though Germany can show vigorous efforts and excellent beginnings and a few important achievements, it cannot show one representative of legal learning who can be compared with the great French jurists, or who can be still named (as those can be) as unexcelled models of excellence. From still another point of view was this practical tendency a hindrance to a new method. Because of the fact that the law itself was developed and transformed by the Commentators, though the Justinian law-books were regarded in Germany as au- thoritative, it was nevertheless indisputable that their content was not received without limitations and modifications; these consisted of the traditional " opiniones doctorum," and were only to be determined from legal literature. From this viewpoint it was possible to contest the innovation in scientific method as an unjustified apostasy, and to defend the " mos Itahcus " success- fully, as the only method by which the body of actually existing' law could be truly represented as resting jointly upon the " lex " and the " interpretatio." § 34. Opposition and the Beginning of Reform. — Along with the traditional reverence for the old method, there runs through- out the 1500 s complaints of the prolixity into which it had de- generated. Even five or six years' study led only to a fragmentary 393 § 35] GERMANY [Part IV knowledge of the law.^ Franz Frosch sent his son to Bourges in 1533 because there, under the influence of the Alciatic method, " in one year, at least as many titles of the Pandects would be disposed of as separate leges ' more Italico.' " According to Vigelius two whole years were devoted in Padua, about this time, to the Institutes, and still only a few titles were run through. Alciat, and later Panzirol, report the same, and tell that a whole year was generally devoted to five passages of .the civil or the Canon law. [Late in the century, one German professor boasts of inter- preting the Institutes concisely for mature students, in four years; another (and no friend of the " mos Italicus ") in three. Various university statutes — as at Greifswald, 1545; Vienna, 1554;^ Ingolstadt, 1563; Rostock, 1564; Tiibingen, 1588 — attempted to lessen the period of study, particularly the time devoted to the Institutes. According to the lecture lists of Ingolstadt for 1571, which boast that the curriculum is established exactly according to the Italian model, the Institutes are given " cum apparatu " in two years, " textualiter " in a shorter time, while four years are devoted to the Code and eight to the Pandects. Rostock,* in 1564, preceded by more than half a century any other university in prescribing systematic instruction in the law according to subjects, — the law of persons, contracts, inheritance, feudal law, plaints, procedure, regulse juris.] § 35. Unofficial Academic Courses: Seminars and Disputations. — The reform of pedagogical method is connected with a change in the organization of academic instruction. The official " lecturse " or " lectiones," which were held " publice et gratis," were, in ac- cordance with traditional arrangement, dissertations upon' texts; therefore, however much one might digress from these, their method was essentially exegetic and analytical. Only in unofficial courses was it possible to abandon the norm thus prescribed. The less adapted the " lecturae " were to introduce the beginner into legal science, the more they afforded only a fragmentary knowl- edge of isolated details, so much the more imperatively was the need felt of seeking aid in private instruction. As a consequence, at all the universities we find younger scholars devoted to such activity, and a great number of professors began their academic work in this way. ' Cramer, "Kleine Sehriften," pp. 148 et sea.; Savigny, "Gesohiehte," III, 547. ^ Kink, "Die Reohtslehre an der Wiener Universitat " (1853), pp. 37 et seq. ' Krabbe, I' Die Universitat Rostock," pp. 598 et seq. 394 Chap. II] THE RECEPTION OF ROMAN LAW [§ 35 Thus arose a mode of instruction, which at first seems, to be sure, to have consisted simply in a drill upon the most important matters, so far as suitable for memorizing, — the " summae," " tituli et regulae," and " loci communes " being learned by heart. But a systematizing tendency later made itself evident. We soon observe that the " exercitationes," particularly the disputations of the professors, are held "privatim" (i.e. unofficially); the public ones, everywhere prescribed (for which Saturday was customarily set aside), were indifferently attended to by the professors; not simply from neglect, but through experience that the usefulness of such public exercises, in which only a few auditors could take effective part, was very slight. For the unofficial courses the later hours of the afternoon were left open. These were arranged for by agreement with the student upon a subject and an honorarium, — thus contrasting with the " lecturse." This last name, too, was unsuitable for them, because their method of instruction was conversational. Hence their name " collegia," suggested by the limited number of pupils and their fellowship with the teacher for the purposes of instruction. In time, and increasingly, as the " lecturae publicae " sank in credit, because their methods were becoming antiquated, the full professors did not disdain to conduct such " collegia privata," particularly if they had had success in them as young instructors. Only slowly and against strong opposition did this innovation become settled. The danger threatening the " lecturse pubhcse " was not unap- preciated; it seemed objectionable, even improper, to permit private gain from teaching in the " collegia privata," when the " lecturse " must be given without compensation. By a process of development whose stages cannot here be followed, things went so far that the university instructors transferred the em- phasis of their work from the " lecturse publicse " to the " collegia privata"; and the more the former sank in repute the more their name also fell into obHvion. And so it has come about that the word " collegium " has acquired the meaning of an academic lecture generally, — only that custom of speech which unites it with the verb " lesen " (to read) reminding one of its relationship with " lecturse " and " lectio." From the seminars (" collegia ") there arose a new type of legal literature, which was long cultivated with especial favor: the dis- putations held therein, edited by the professor, were united and published in collections. Inasmuch as a systematic arrangement of the material was attempted, more or less complete manuals 395 § 36] GERMANY [Part IV resulted. And this practice was soon no longer limited to the civil law; for the study of criminal law, feudal law, and even Canon law, " collegia " were likewise formed whose labors appeared later in print. As examples, Wilhelm Valentin Forster's " Justinianese Tractationes ad Institutiones Juris " (1604-1608), and especially the much-used work of Treutler, " Disputationum Selectarum " (1592) deserve especial mention. Treutler's work is so complete and so methodically put together that it could be used as a com- pendium of the Pandects. Next to Treutler's Disputations, the greatest esteem was attained by those published by Borcholten's pupil, Heinrich Bocer, under the title " Disputationes de Universo Jura quo Utimur." They constitute a systematically arranged collection covering the whole field of the law. § 36. Attitude of Humanism toward the Mos " Italicus " and the New " Methodus." — Although, as already explained (§ 27), the emancipatory and fecundant influence of Humanism upon legal science was in truth a mighty one, Humanism has not thus far been mentioned as an opponent of the " mos Italicus," because it is clear that its positive claims stood in no irreconcilable re- pugnance to the " mos Italicus." For they were satisfied if scien- tific work was done in better taste and in purer Latin, — if inde- pendence of judgment was maintained in the face of authority, — if, finally, antiquarian learning found application and dialectic subtilities were moderated. And all this could be reconciled with exegetio methods and fitted into the purely analytical method without essentially altering it. Yet one can understand how those who, like Zasius, first accomplished it, appeared as regenerators of legal science, because their commentaries, though in method not fundamentally different, nevertheless did reveal a freer spirit, more critical and open directly to the sources, and also — thanks to a utilization of historical knowledge — a new substance. The question, however, essential to further development was this : whether synthesis could be elevated into an effective element of legal method; in other words, whether its mass of particularities could be reduced to principles, united in greater unities. This question also was first raised in humanistic circles. Gellius' notice (" Xoctes Ambrosianse," 1, 22) of a lost work of Cicero, " De Jure Civile in Artem Redigendo," the latter's discussion (" De Orat.," 1, 41) of the problem of legal science " In Artem Redigere," raised the question, how far this problem had since then been solved or its solution was feasible. Without consciously realizing the significance of the question, men recognized neverthe- 396 Chap. II] THE RECEPTION OF ROMAN LAW [§ 37 less that the " ars juris " was completely lacking in the traditional legal science. Going further, it was asked whether then the " ars juris " was to be found in the sources; whether Justinian had succeeded in attaining the goal indicated by Cicero. The arrange- ment of the titles in the Codex and the Pandects was examined, the succession of the " Fragmenta " and Constitutions; and when it was found that these were not determined upon systematic grounds,^ the question arose whether it were not justifiable, yea imperative, to present the law in another order. This was the question of the " methodus," as the systematic presentation was customarily called. How busily this question occupied the younger jurists from the second decade of the 1500 s on their letters show us. In this agitation of methodics in Germany the influence was felt of the French jurists.^ In contrast to the "mos Italicus " there was developed the "Mos docendi Gallicus," — distinguished from the former partly by a philological and antiquarian, partly by a synthetic element. And it was precisely those French jurists, like Duaren and Doneau, cultivating with preference this second element, who exercised particular attraction upon German jurists. To this influence was joined that of the allied method represented in the Netherlands by Mudaus and carried into Ger- many by Matthaus Wesenbeck, as well, finally, as the movement inaugurated by Petrus Ramus, whose influence was perceptible in all branches of science. Toward the close of the 1500 s, the synthetic treatment, illustrated in the most varied forms of legal systematization, triumphed, and " methodice," or some similar label, is adopted with partiality in the titles of books as a claim to preference. § 37. The Ramists and their Doctrines. — The Ramistic method ^ is deserving of a more particular notice, as well for its essential historical importance as because of the incorrect opinions current regarding it. In order to understand the movement associated in all fields of science with the appearance of Petrus Ramus, one must recall in what degree all scientific activity was dominated by the tradi- 1 Cj. Bluhme, "Uber die Ordnung der Fragmenta in den Pandekten," Z.G.R.W., IV, 377 et seq. 2 [" Sucli was the renown of Cujas that in the public schools of Ger- many, when his name was mentioned, every one took off his hat" (Hallam, "Literature of Europe in the 15th-17th Centuries," II, 169). — Ed.] ' Tennemann, "Gesehichte der Philosophie," VI, 42(>-440; Ritter, "Geschichte der Philosophie," V, 471 et seq.; Waddington," Ramus" (Paris, 1855). 397 § 37] GEEMANY [PaBT IV tionary Aristotelian-scholastic dialectic. Ramus declared war upon this, denied its correctness, and sought to put another and simpler in its place. In the contest, however, that thus developed, there was not involved merely a schoolmen's question whether the old or the new dialectic was technically more correct and perfect; nor whether a new, perhaps a less burdensome, domination should replace the old and severe. Rather should the deeper significance of the contest be thus formulated: whether the authority of any system whatsoever of tutorial rules should dominate the mind's activity; whether it should not be permitted to men's minds to move freely according to the laws set them by nature, and obeying only these. Ramus starts with the premise that dialectics is and should be only a practical discipline, — the "ars bene disserendi"; its contents should be determined above all by the nature of the human mind : it teaches merely the art of using well man's natural capacity for thought; its perfection is attained through " usus " and " exercitium," through practice in the application of its rules, whereby these become habits. All reflection begins by searching out, in the mind, the reasons and premises which reside in the mind and are there to be found ; one then proceeds to reduce these to expression, unite, and methodically present them. Hence, in accord with this natural process, the " ars bene disserendi " must consist of two parts, the " inventio " and the " judicium." The former supplies the rules by which arguments are found; it is therefore essentially a topic. The latter teaches the correct use of the argu- ments; and may be either a " judicium axiomaticum," when it declares that something is or is not judgment, or " dianoeticum," when it derives one axiom from another; its logical forms are the syllogism and the " methodus," — this last being the highest type of exposition, which brings together into a natural order, advancing from the general to the specific, all congruent axiomata. Upon this simple ground plan was built an equally simple dia- lectic, which to Ramus signified, not an analysis of the thinking process and of its different functions and forms, but a set of pre- cepts for the use of natural rules of conception, judgment, inference, and colligation. It was therefore, as the definition suggests, rather rhetoric than true dialectic, and its opponents reproached it for being neither. For this very reason it was tantamount to the " methodus," i.e. the doctrine and art of clearly presenting to the understanding and memory accordant judgments and con- clusions. It is from this view " dispositio " — collocation, division, colligation — of that which is conceived through " inventio," 398 Chap. II] THE RECEPTION OF ROMAN LAW [§ 37 determined by " axioma," deduced by syllogism; and constitutes therefore the last part and also the highest type of the " ars bene disserendi." Ramus lays down as the general rule of the "methodus," that in presenting truth one should start from the general and proceed to the particular. Only that method was, accordingly, to him a true one, which began with the definition and attached to this the distribution; which last is partly " partitio " (disintegration into parts), to some extent "divisio" (distinction of species). In each descendent part down to the most particular the same procedure is repeated. The different parts are then to be united by " transi- tiones." The goal at which Ramus aimed was, accordingly, a natural synthesis. And his significance in the history of legal science lies in the fact that he supplied the synthetic tendency with a technical apparatus and served to give it scientific support. The simplicity and naturalness of his doctrine, compared with the complicated schematism of the Aristotelians, assured to him success. He strengthened men's courage to follow in science the path of common sense, to trust in one's natural judgment. He is therefore of kin with Humanism and Protestantism. If we thus regard Ramism as a tributary of a general current of the time, then we understand, on one hand, the broad range of its visible influence and the embittered opposition to it; and on the other hand, the fact that there appeared beside, and independent of it, other very similar developments in scientific method. We must not derive from Ramism all that is akin to it. In Germany, questions of methodology were current before anybody knew of Petrus Ramus; and they ran their course in large part unin- fluenced by him. In France, Connanus evolved his system; and Dauren and Doneau, and in Louvain Mudaus, elaborated their natural " syntheses " without guidance by him. And, finally, we find in legal science, as in the field of philosophy proper, half-hearted Ramists and eclectics. Ramus himself dealt with legal science only in passing (a " Cynosura Juris Utriusque " at- tributed to him is apocryphal). He touched directly the problem of legal science only through the appeal he directed to Cujas and L'Hospital to take upon themselves the task of a systematic digest of the existing law.^ One would suppose that Ramism, whose strength lay in the negation of scholastic routinism, should have led to a complete ^Waddington, "Ramus," pp. 355 et seq., 474. 399 § 38] GERMANY [ParT IV shelving of schematics; that a pure naturaHsm should have characterized his genuine followers. But it was not so. The Ramists claimed to be scientific dialecticians: they sought to refute the reproach that Ramus undertook to teach his pupils "to learn to fly before they had wings"; their doctrine should be as good as the old dialectic art. But even if the rules were taken from nature, still the school first brought them into con- sciousness, and methodical practice first taught their skilful use. And so it fell out that among the enlightened followers of Ramus a new formalism was developed, which manifested itself in a forever recurrent utilization of certain methodical instruments and forms, and was all the more unvarying for the fact that Ramus recognized only the one method, namely, the syllogism and the deduction of the particular from the general. For this reason the original historical significance of Ramus has been in later times forgotten, and its character sought in a definite scholastic form. What was originally only a means to an end appeared later to be its essence. And by three characteristics, in particular, it was taken to be dis- tinguished: dichotomy, the application of the " quattuor causae," ^ and tabulation. The method operating with these expedients was called the Ramistic. Practised in pedantic fashion, it survived through the 1600 s,^ another illustration of the phenomenon of a doctrine, once intended for the liberation of inquirers' minds, com- ing to be set in a scholastic formalism and transformed into a new fetter. Topic 5. Legislation §38. Imperial and Territorial Legislation of the 1500 s.' — Since Maximilian I, imperial legislation had shown an extraor- dinary growth, which continued through the religious wars to 1 Stintzing, in K.Z., III, 625 et seq. 2 Thomasius, " Cautete circa prsecognita Jurisprudentise " (1710), eh. 10. ^ Eichhorn, " Rechtsgescliichte," III, 308 et seq., IV, 28i.et seq.; Von Daniels, "Handbuch," IV, 649 et seq.; Lancizolle, "Ubersicht der deutschen Reichstandschaf ts- und Territorialverhaltnisse" (1830) ; Picker, " Reichsfiirstenstand," pp. 264 et seq., 371 et seq.; Moser, "Von den teut- schen Reiohsstanden " (1767) ; Friedenhurg, "Reichstag zu Speier" (1887) ; Domcke, "Virilstimmen im Reichsfurstenrat von 1495-1654" (in Gierke's "Untersuchungen," XI (1882); Erdmannsdorfer, "Deutsche Geschichte von 1648-1740" (2 vols., 1892-1893), I, 160 et seq., 377 et seq., "Graf von Waldeck" (1869), pp. 95 et seq.; Ranch, "Traktat iiber den Reichstag im 16t™ Jahrhundert" (1905, c/. Stutz in Z.^R.G., XXXIX, 382); Stobbe, "Rechtsquellen," II, 183-205. Texts, in Zeumer, " Quellensammlung," nos. 148-181; Gerstlacher, "Handbuch der teutschen Reiohsgesetze " (11 vols. 1786-1794); Em- minghaus, "Corpus Juris German. Academicum" (2 vols., 1844-1856); Lehmann, "Quellen," (1891). 400 Chap. II] THE RECEPTION OP ROMAN LAW [§ 38 1654. The Imperial Diet, which had become permanent, had accomplished nothing more of importance. While the imperial reformative statutes possessed, for the most part, only a transitory importance, one may regard the permanent Public Peace of 1495 ^ and the Augsburg religious Pact of 1555 (which bore also the title of a " General Constitution of the Public Peace ") ^ as, in a way, fundamental laws of the Empire. A true imperial organic statute was the Peace of Westphalia, which was indeed so designated, and commanded the incorporation of its provisions in the next Resolu- tions of the Diet and imperial electoral Capitulations. This provision was confirmed by the last imperial Resolution of 1654, which embodied in its text the treaties of peace of Osnabriick and Miinster, and solemnly declared them " a fundamental law estab- lished for the Holy Empire, an enduring rule of conduct, and per- petual ' norma judicandi.' " ' The imperial electoral Capitula- tions, also, although not imperial statutes if tested by the manner of their creation, actually possessed the importance of organic laws of the Empire. Imperial legislation was very extensive concerning the constitu- tion and procedure of the Imperial Chamber of Justice, coinage, the organization of the imperial circles, an^ of the army; although no lasting regulation of the last was realized. The imperial or- dinances of police of 1530, 1548, and 1577 were extended over certain matters of private law; and this was also true of the no- tarial ordinance of 1512.^ For the rest, imperial legislation within the field of private law was limited to a few provisions establishing a statutory rule of inheritance — and, it may be noted, in a form exclusive of all particularistic variations; ^ whereas in other im- perial statutes affecting the substance of the law more latitude was customarily allowed to territorial legislation.^ The last, imperial Resolution of 1654,^ which was momentous in other respects, included also provisions concerning civil procedure, particularly aimed at shortening it. 1 Altmann and Bernheim, "Ausgewahlte Urkunden zur Erlauterungen der Verfassungsgeschichte Deutschlands im Mittelalter "(3d ed., 1904), p. 254; Zeumer, "Quellensammlung," no. 148; "Neue Sammlung," II, 3. ' Zeumer, op. cit, no. 163, for the imperial resolution of 1555 (of whicli the religious pact constitutes §§ 7-30) ; special ed. of the Recess by Brandi (1896) ; "Neue Sammlung," III, 16 et seq. ' Zeumer, op. cit, p. 383, and "Neue Sammlung," III, 642, §§ 4-6. * "Neue Sammlung," II, 151 et seq. 5 Same, II, 46, § 37; II, 206, §§ 18-20; II, 299, § 31. Cf. Stobbe, "Rechtsquellen," II, 203, and in Z.^R.G., 31, 179 et seq. 6 Stobbe, op. cit., II, 186. ' "Neue Sammlung,': III, 647-660, §§ 34r-103, 107: 401 § 38] GERMANY [Part IV By far the most important statute of the Empire was the so- called " Carohna " (C.C.C, i.e. " Constitutio Carolina Cri- minalis "), the criminal code (H.G.O., " Halsgerichtsordnung ") of Charles V, of 1532.' The reception of the Roman law, in the field of criminal substantive law as in that of legal procedure, had the character, essentially, of a reception of Italian legal science, and at a time when this had already long attained complete as- cendancy in Italian practice. The results of the Italian legal science were designated even by Schwarzenberg as " the imperial " law. The Italian jurists (of whom Gandinus, Angelus Aretinus, and Bartolus were of primary influence in Germany) borrowed from Roman law its emphasis of the element of fault as essential to liability (an element too Httle regarded in earlier Germanic criminal law), with its distinction between " dolus " and " culpa," and its special doctrines of self-defense and of attempt.^ They emphasized also the State's interest in criminal law, and demanded that punishment should be independent of the discretion of the person injured. Otherwise they left unchanged the Germanic classification of crimes and the Germanic penal system. They regarded statutory rights and " consuetudo generalis " as unex- ceptionably valid sousces of law, along with the Roman, and adopted nothing from the Roman statutes which conflicted with the legal consciousness of their own time. The Italian theory of criminal law was made a possession of the people in Germany especially by the " Klagspiegel " {ante, § 18), and was carried over into the Revised Ordinances of Worms of 1499, and into the two criminal codes provided by Maximilian I for Tyrol (1499) and Radolfzell (1506).^ The criminal code prepared for Bishop Georg of Bamberg by Johann von Schwarzen- berg rested principally upon these as sources. This so-called " Bambergensis," of 1507, possessed the character at once of a 'Among the numerous editions is to be preferred that of Zopfl : "Die peinliehe Geriohtsordnung Kaiser Karls V nebst der Bamberger und der Brandenburger Halsgerichtsordnung, mit den Projekten der peinlichen Geriohtsordnung Karls V von 1521 und 1529" (Heidelberg, 1842; based on the "editio princeps" of 1533, the only text used in actual practice). The edition of Kohler and Scheel, "Die Carolina und ihre Vorgangerinnen," I (1900), rests upon a Cologne MS. Von Bar, "Geschichte des deutschen Strafreehts," §§ 40-45 ; Stobbe, " Rechtsquellen," II, 245 et seq. ; Stintzing, "Geschichte," 1,621 etseq.; Kantor-omc2,"GoblersKarolinen Kommentar" (1904; c/. Krammer in Z.^R.G., XXXIX, 342). On the content of the law, cf. Gunther, "Idee der Wiedervergeltung," I, 285 et seq.; Giiterbock, ." Bntstehungsgeschichte der Karolina" (1876). ^ Kohler, "Strafrecht der italienischen Statuten, 12-16 Jahrhunder- ten," in his "Studien aus dem Strafrecht" (1895-1897). ' Wahlberg in Haimerl's Vj.S., IV, 131 et seq. 402 Chap. II] THE reception of eoman law [§ 38 legislative code and an officially prepared text-book of the Italian criminal law.^ Thanks to its essential worth, in which it far surpassed its predecessors, it was soon received in different courts outside the jurisdiction of Bamberg, was included in the " Laien- spiegel," {ante, § 13) and was made the basis of the Brandenburg- Franconian criminal code of 1516. The first draft of the " Caro- lina," prepared in 1521 in accord with a resolution of the Diet of Worms of that year, was also based throughout upon the " Bam- bergensis," and the " Correctorium in der Bamberger Halsge- richtsordnung," a collection of Bamberg decisions and ordinances of the years 1507-1515. Only after the preparation of two more drafts (Nuremberg, 1523, Speyer, 1529) was the fourth submitted to the Augsburg Diet of 1530, and finally adopted by the Diet of Regensburg in 1532. This long delay in legislation was due to the particularistic opposition offered by the estates of the Empire to a centralized criminal legislation until the Emperor consented to add to the statute its so-called saving-clause, according to which "nothing should be thereby taken from ancient, just, and lawful usages " ; the effect being that the statute, save in so far as it embodied (Art. 248) express provisions to the contrary, was given an authority merely subsidiary to the existing territorial laws.^ The " Carolina " was a greatly improved revision of the " Bam- bergensis," and, like that and its older predecessors, was primarily a code of criminal procedure, in which provisions of substantive criminal law (Art. 104-108) were incidentally interpolated.^ It was the first true code, in criminal law and procedure, by which the dualism of the native and the foreign law was reconciled. It dominated in German law through two centuries. Territorial Legislation.'^ — The reception of the aUen law and ^ Kohler and Scheel, op. cit., vol. II (1902); Brunnenmeister, "Quelle der Bambergensis " (1879) ; Stintzing, "GescMohte," I, 608 et seq.; Stobbe, "Rechtsquellen," II, 241 et seq.; Seiz in Z.'R.G., II 435 et seq.; Her- mann, "Johann von Sohwarzenberg " (1841). 2 That the original intent was that later territorial statutes should not take such precedence, cf. Giiterbock, op. cit., 197. ' Schotensack, " Strafprozess der Carolina" (1904). • Eichhorn, "Rechtsgeschichte," §§560, 816, and "Privatrecht," §§ 15- 17; Gierke, "Privatrecht," I, 66 et seq.; Stobbe, "Rechtsquellen," II, 206 et seq., 237 et seq., 256-278, 336-413, 443-463, 476 et seq.; Stintzing, "Geschichte," I, 537 etseq., 551 et. seq.; Landsberg, "Geschichte," III, 214 et seq.; Siegel, "Rechtsgeschichte" (3d ed.), p. 141 et seq.; Kleinfeller, "Deutsche Partikular-Gesetzgebung iiber Zivilprozess" (Miinchener Festgabe fiir Planck, 1887); Luschin von Ebengreuth, " Osterreichischer Reichsgesohichte " (1896), pp. 345-364, 374 et seq.; Maurenbrecher, "Rheinprovinz Landrecht" (2 vols., 1830-1831); A. B.Schmidt, "Ge- schlchtliche Grundlagen des burgerlichen Rechts im Grossherzogtum Hessen" (1893) ; Carlebach, "Badische Rechtsgeschichte," pp. 71 et seq. 403 § 38] . GERMANY [ParT IV the development of the power of territorial rulers into true State sovereignties stimulated in the 1500 s an extraordinarily acti\'e legislation, which took precedence of imperial legislation in all cases where the provisions of the latter were not absolute.-' The end sought was, on one hand and principally, to provide for laymen associated in the administration of justice, through official text- books as it were, that knowledge which was indispensable for them; but also, on the other hand, to protect the native law against excesses of the learned jurists, who were prone to respect only the written law, and to ignore the customary law unless when proved by the party relying upon it. Other reasons were the changes in legal ideas brought about by the Reception, making necessary a revision of existing statements of the law; the countless con- troversies among legal scholars, capable of termination only by means of legislation; and the new-born notion of the police power, which had opened up a field, before unknown, of public and legis- lative concern. In some territories the result went no farther than some few statutes, or a scanty record of a few bodies of customary law; in others a conscientious activity was developed in drafting detailed codes of territorial- law (" Landesrecht ") or in their revision. In many cases " foreign " territorial or city laws were adapted, or were adopted outright. None of these codes attempted to be complete ; only the most important topics were covered. The judges were still bound to give subsidiary force to the common Pandect law, or, if institutes of native law were involved, to the customary law, so far as the terri- torial law did not (as was often the case) explicitly forbid. The chief subject of legislation was the judicature (organization of the courts and civil procedure) and private law; in criminal law and procedure less was done after 1532, since the Carolina sufiiciently provided for these. In many territories the ruler alone exercised the right of legis- lation, without the participation of the Estates, — at least (in other territories) in the case of laws which imposed no burdens upon the land. On the other hand, there were territories in which nothing could be done without the Estates. At times, under the excuse of their inadequate legal knowledge, the latter voluntarily renounced participation in the drafting of the territorial law; the result being generally that the jurists intrusted with the task gave their work an impress of Roman law, and crowded out (more or less) the German law. In drafting the Wiirtemberg ' Eichhorn, op, cit., IV, 292 et seq. 404 Chap. II] THE RECEPTION OF ROMAN LAW [§ 38 code (1555) the excellent material that had been brought together by questionaries submitted to the courts was considered unworthy of regard and thrown aside as an indigestible chaos.^ The provisions for publication of the statutes were faulty to an extreme. It was considered sufficient to print them, and to pro- vide for their proclamation by a herald, or by reading them from the pulpits, in the city halls, or in the markets. Examples occur later of proclamation by public posting. Sometimes (as at the end of the " Landrecht " of Solm) a yearly catechism in the courts was prescribed, after the ancient manner of declaring judicial dooms. In the 1500 s the territorial laws and ordinances (" Landes- ordnungen ") were of greatest importance; the latter were mainly concerned with police, and supplemented or simply reproduced the police ordinances of the empire. There were also issued, how- ever, numerous special laws of the most various concern. Legis- lative activity was also exercised to some extent in seigniorial juris- dictions within the territories, by ordinances of judicature, village law, and the like. Among the special territorial enactments, those on judicature,^ crimes, feudal relations, bills of exchange, dikes, mining, and (in the Protestant territories) church affairs,^ are most notable. The Pact of Tubingen, of 1514, for Wiirtemberg, and the Bavarian Declaration of Independence of 1553, were codifications of constitutional law. Of the great number of territorial laws only the most important can here be mentioned. The territorial codes of Jiilich (1537), Kedingen, Hadeln (1583), Wurst (1611), the Bremen law-of- knights (1577), the New Miinster parish customs and customs of the Bordesholm government,^ are distinguished by the Germanic character of their law. In addition to these, mention may be made of (1) the Revision of the Bavarian territorial codes ("Landrechte " ) of 1518 and 1616, both based upon the "Landrecht" of 1346; (2) the " true-German " Tyrolean ordinances of 1526, 1532, and 1573;^ (3) the "Landrecht" (including a code of judicature) of the 'Notes of the material in Fischer, "Versuch iiber die Geschichte det deutsohen Erbfolge," vol. 2 (1778); Reyscher, " Sammlung altwiirtem- bergischer Statutarreohte " (1834) ; Wcichier, " Wurtembergisehes Privatrecht." ' The Saxon codes of procedure (Stobbe, II, 262 et seq.) are important. ^ Richter, editor, "Die evangelischen Kirchenordnungen des 16'™ Jahrhunderts " (2 vols,, 1846) ; New ed. by Sehling (1902 et seq.). 4 Ed. by Seestern-Pauly (1824). ^ Nevertheless the pure Germanic law could not maintain itself in Tyrol ; Luschin, op. cit., pp. 353 et seq., 382 et seq. 405 § 38] GERMANY [PaET IV county of Solm, prepared by the Frankfort syndic Fichard (1571), at once a code and official text-book, which by reason of its excellence was also adopted as law in many other jurisdictions of Franconia;^ (4) the " Landrecht " of Wiirtemberg of 1555 (revised 1567, and for the last time in 1610), which was prepared mainly by Sichard, a professor of Tubingen, who was the editor of various compila- tions of popular law, but in a thoroughly Romanistic sense, with slight regard for German law, — likewise much used (as e.g. for the code of the Palatinate of 1582-1610) as a model; ^ (5) the Baden regulation of the law of inheritance and guardianship, of 1511, drafted by Ulrich Zasius, and almost wholly Roman;' (6) the exhaustive territorial code of Baden, and the local codes of Baden-Baden (1588) and Baden-Durlach (1654), these last two derived from the law of Wiirtemberg and the Palatinate; (7) the code of judicature of the duchy of Franconia, or Wiirzburg " Land- recht," of 1570 (revisions 1580 and 1618); (8) the Revision of 1538 and " Landrecht " of 1663 of the electorate of Cologne, with interpretations of 1767; (9) the " Landrecht " of Jiilich-Berg (1555-1564), mainly Roman; (10) the East Frisian code of 1515 and the Ditmarsch code of 1567; and finally, (11) the Branden- burg " constitution " of the law of inheritance of Joachim I (hence known as the " Joachimica) of 1527.'* ^ Fuchs in Z.R.G., VIII, 270 et seq.; A. B. Schmidt, op. cit., pp. 72 et seq.; Stintzing, "Geschiehte," I, 586 et seq. ' Stintzing, "Geschiehte," I, 543 et seq. ^ Stobbe, "RechtsqueUen," II, 390 et seq. * Heydemann, "Blemente der Joachimer Konstitution" (1841). 406 Chap. Ill] NATURAL LAW, RATIONALISM, NATIONALISM [§ 39 Chapter III. Third Period : a.d. 1600-1806 NATUEAL LAW, LEGAL RATIONALISM, AND GERMAN NATIONALISM! Topic 1. Natural Law and Legal Rationalism § 39. Rise of the Natural Law i § 40. Grotius, Bacon, Hobbes, Jurists. I I^uffendorf, and Leibnitz. Topic 2. German Nationalism § 41. Rise of the German National Jurists. § 42. Exponents of Nationalism and Realism : Conring, Carpzov, Mevius, Tho- masius, and Beyer. Topic 3. State Building and Legislation § 43. Decline and Fall of the I § 44. Imperial and State Legis- Empire (to 1806). I lation (to 1811). Topic 1. Natural Law and Legal Rationalism § 39. Rise of the Natural Law Jurists.^ — Natural law and nationalism served as the two chief weapons to break the bonds by which the Roman law had too long fettered men's minds. The doctrine of an absolute law, independent, universal, and 1 [The sources from which the sections of the present chapter have been derived are as follows : §§ 39 and 42 from §§53 and 52 respectively (trans- lated in part) of Heinrich Siegel, "Deutsche Rechtsgeschiohte " (3d ed., Berlin, 1895) ; § 40 from ch. 1 (in part) of Ernst Landsberg, "Geschiehte derdeutschen Rechtswissenschaft, Dritte Abtheilung" (Munich, Leipzig, 1898) ; § 41 from §§ 1-2, in part, of oh. 16 of Rudolf von Stintzing, "Geschiehte der deutschen Rechtswissenschaft, Zweite Abtheilung" (Munich,' Leipzig, 1884). For § 42, see note 1 thereto. § 43 is a por- tion of § 58 of Hbinhich Brunner's "Grundziige der deutschen Rechts- geschichte" (4th ed., Leipzig, 1910). § 44 is a combination of portions of §§ 83 and 91 of Richard Schroder, "Lehrbuch der deutschen Rechts- geschiohte" (5th ed. Leipzig, 1910). — Transl.] ^ Hinrichs, " Geschiehte des Natur- und Volkerreohtes'' (3 vols., 1848 -1882) ; von Kaltenborn, " Die Vorlaufer des Hugo Grotius" (1848) ; Hanel, "Melancthon als Jurist" (Z.'R.G., 1869, VIII, 249-270); Stintzing, ,"Geschichte" I, 311-328, esp. 325-329 on Oldendorp; 0. Gierke, "Na- turreeht und deutsches Reoht, Rectoratsrede " (1883), esp. 26-32. 407 § 40] GERMANY [Part IV idealistic in basis, — the law of nature, at once divine and human, — was by no means new; nor had there been lacking, in a way, definite statements of such a conception. Indeed, in the fermen- tative times of the Reformation, isolated groups of thinkers had defined by its means their goal and endeavors. It was -only in the 1600 s, however, that men attained to a consistent presentation of such a law derived from human nature. The epoch-making work " De Jure Pacis ac Belli " of Hugo Geotius, known as the father of natural law, appeared in 1625, when the great war that was to continue thirty years was already in progress. Huig de Groot, who was born in 1583 at Delft, in Holland, and died in 1645, had aimed primarily at a recasting of the law of nations. But in the endeavor to create for this a universal and reasonable basis, and in proceeding from the postulate that there is innate in man, as a reasoning and moral being, an impulse toward an ordered fellowship with his kind, he hit at the same time upon the idea of natural law. On the principle postulated he established all law, even private law; and this application constituted the novelty of his contribution, which had occurred to none of his predecessors, not even Melancthon nor Olddndorp. The doctrine of natural law, long represented by men of commanding talent, exercised down into the 1800 s a dominating influence, especially in legislation. § 40. Grotius, Bacon, Hobbes, Puffendorf, and Leibnitz. — Grotius' book was the source of a new movement in legal science. Natural Law, abandoning its pure abstraction, became juristic, engendered as an offspring international law, saturated itself with positive law, and attained a general dominance in legal con- ceptions. Only in this sense, not absolutely, was Grotius " the father of natural law." ^ Grotius. — (1) The speculative treatment of legal notions had al- ways been assumed as a problem of philosophy; and scholasticism had so intimately associated with philosophy theological norms that it had attained acceptance in extensive philosophical systems, whose results, constantly adopted as something ordained by civilists and canonists, were regarded and applied by them as self-evidently authoritative. The basis laid down is a natural, unchangeable law springing directly from divinity " per se," — existing before 1 Abundant references by Rivier, " Gesehichts-Ubersicht " in F. V. HoUzendorff, "Handbuch des Volkerrechts," 1, 403. See especially BluntschK, "GescMchte," pp. 6.3-74; Halschner in Allg. d. Biog., 9 : 767-784; and perhaps in addition Caix de Saint-Aymour, "Notice sur Hugues de Groot" (Paris, 1884). 408 Chap. Ill] NATURAL LAW, RATIONALISM, NATIONALISM [§ 40 and independent of the divine will, — the " jus naturae primarium." Applied to the economic conditions of a given people and to the local institutions of a given time, it becomes a "jus naturae secund- arium." Supplementary to this is the " jus divinum," explicitly ordained of God to men; needful because of our inability, with visions clouded by original sin, to distinguish the natural law directly. The Ten Commandments serve as chief luminaries in the darkness. These teachings Melancthon had taken from later scholasticism. They were developed by him, and afterward successively by Oldendorp, Hemming, Althusius, and Winder. The " Principia Juris " of the last, of 1615, brings us down al- most to Grotius.^ [The most important of these jurists of the mid-1500 s was JoHANN Oldendorp (1480-1567),' one of those men who because of the varied elements of their education and many-sided contacts with contemporary interests appear as central figures in an epoch. He reflects the influence of both the Reformation, of which he was a zealous and hard-fighting adherent, and Humanism. He was no learned investigator, but of a practical nature, and hence the reform of legal instruction, to the end of freeing it from the " mos Italicus," appealed particularly to him. To this end he reformed the law courses of the university of Marburg. Among his works was an " Elementaria Introductio Juris Naturae Gentium et Givilis " (1539), in which he developed the outlines of a system of legal philosophy or natural law, in which respect priority has therefore been claimed for him over Grotius. [Among the " systematizers " of the 1500 s one of great im- portance was Johannes Althusius (or Althaus; 1557-1638).* His most important works were his " Jurisprudentiae Romanae Libri Duo ad Leges Methodi Rameae Conformati et Tabellis lUustrati " (Basel, 1586) ; his " Dicaeologicae Libri Tres Totum et Universum Jus, quo Utimur INIethodice Complectentes," etc. (Herborn, 1617); and a " Politica Methodice Digesta et Exemplis • Hanel in Z.iR.G., VIII : 249 et seq. ^ Kaltenhorn, "Die Vorlaufer des Hugo Grotius." ' [See Siinizing, "Geschi elite, " vol. I, oh. 8, who cites among other sources Oldendorp's collected writings, "Variarum Lectionum Libri ad Juris Interpretationem " (Cologne, 1540). Also Kaltenhorn, "Die Vor- laufer des Hugo Grotius" (1848), pp. 233 et seq.; Hinrichs, "Geschichte desNatur-und Volkerechts," 1, 19 eiseq. ; Harder, in Zeitsohrift des Vereins fiir Hamburgische Geschichte, vol. II, 436 et seq. And other references in Stintzing. — Transl.] * [See Stintzing, "Geschichte," I, 468-477, and especially 0. Gierke, "Johannes Althusius und die Geschichte der naturrechtlichen Staats- theorien" (Berlin, 2d ed , 1902). —Transl.] 409 § 40] GERMANY [Part IV Sacris et Profanis Illustrata: cui in Fine Adjuncta est Oratio Panegyrica de Utilitate Necessitate et Antiquitate Scholarum " (Herborn, 1603; revised and enlarged, Groningen, 1610; with supplements, Herborn, 1614) . He is distinguished by extraordinary keenness, strength, precision, and logic of thought. In the second work he developed a complete legal system, with special attention to private law, public and criminal law being introduced under the categories and in subordination to the point of view of private law. The third was his most important work, and is remarkable as the first detailed political system devised in Germany, exceptional also for the richness of its content and the originality of its thought. Althusius is important in the history of political theory as a rep- resentative of the doctrines of popular sovereignty and the social compact.] In the interval, however, between these men and Grotius stands Francis Bacon,^ Baron Verulam. How far Grotius drew directly from him must be left undecided, but unquestionably Grotius occupies in essentials the same position. Bacon demanded of legal science, as the great desideratum, one work, " Idea Justitise Universalis sive de Fontibus Juris." He would have sought the sources of justice and of social utility, from which should be formed ideal drafts for all branches of the law; by these every one might test and improve the laws of individual States. This fundamental task, however, should be performed neither by philosophers, who might produce much that was beautiful but impractical, nor by jurists, who would not see beyond their national law; but by a statesman, who should equally consider equity and the common weal. For private law is grounded in the need of the majority for protection against every transgression on the part of an indi- vidual; to maintain the private law the State exists, and therewith public law. But the end of all law is the greatest good of all sub- jects. Thus, natural law with Grotius, as philosophy with Bacon, escapes from any deductive dependence upon theology, which dependence was the link that had chained men theretofore to scholasticism. Grotius, however, not only in the form, but also in the matter of his work, remains frequently bound by that chain, herein taking place inferior to Bacon. Above all, Grotius did not adopt the Englishman's principle of induction. To the Dutch thinker, history and experience were of importance merely to furnish him ' K. Fischer, "Franz Baco von Verulam." 410 Chap. Ill] NATURAL LAW, RATIONALISM, NATIONALISM [§ 40 with examples and confirmations; the principles which were to be tricked out with these embelUshments should be themselves purely deductive, derived by common sense from the maxims of sociality. And in this respect Grotius' attitude proved to be determinant for the whole later development of natural law. This, like con- tinental philosophy later, appropriated from the English critical philosophy only its rationalism; not its empiricism. From the postulate, however, of the common weal, or from any other similar doctrine, rigid principles of law cannot possibly be derived; no more than the means for its realization result directly from any end, — for the simple reason that they are not involved within it. They must always be drawn inductively from experience; and are thereby all the more exposed to the danger of incomplete induction the more unconsciously such induction be made, in the belief that one is deducing them. And so it was with Grotius. The provisions of Roman law floated in his mind as its only material for inductive reasoning; any other he scarcely knew. Prom it he therefore borrows, with a few variations of a routinary and denationalizing tendency, the rules of self-defence, of property, its acquisition and loss, of obligations, contracts, oath, construction, partnership, damages; and not only these, but also such institu- tions of positive law as slavery, prescription, and testamentary forms, all of which he believes he is deriving from his general principle. The fact that what he thus deduced coincided with the Roman law Grotius was pleased to consider as a reciprocal voucher of correctness. Nor did this coincidence, however often it might be remarked, suffice to strike with wonder his followers. To the very end of the school of natural law this procedure was persisted in, only with the possible addition of German legal mat- ter to the material of induction. Of course a reliance upon the Roman law was easiest in the field of private law. For this reason Grotius was able in this respect to go far beyond any of his predecessors. Where they had stopped with general legal principles, he gives us a " natural " private law elaborated to the smallest details, albeit one not yet systematically ordered. Private law is given seventeen chapters, criminal law is crowded into one. Despite this brevity of treatment, however, so much more readily did the latter subject lend itself to philo- sophical treatment, that Grotius' ideas gave immediate promise of a peculiarly independent and fecundant development in this field of legal speculation. In particular, the fundamental prob- lem of criminal law, which immediately emerges, finds in the 411 § 40] GERMANY [PabT IV formula of " malum passionis propter malum actionis " ^ a sig- nificant solution ; to which, since then, so much has been an- nexed. Public law is only incidentally treated; and so far as treated it stands wholly under the dominance of scholasticism, adopting the latter's traditional divisions and speculations. The public law of the Church is not discussed in the " Jus Belli ac Pacis," reference being made for it to another work, " De Imperio Summarum Protestatum circa Sacra " of 1647, which derives from postulates of political particularism Dutch principles of religious tolerance. Grotius did not seek to derive even his law of nations inductively and empirically from the observance of international customs and rielations, — such a law of nations as was vaguely conceived by the Italian Albericus Gentilis, (iVlberico Gentili, 1552-1608) since 1537 professor "regius juris civilis" at Oxford. The latter, in his masterly work " De Jure Belli " of 1598,^ had taken a first and notable step in this direction by a zealous collection and tactful appraisement of contemporary events; whereas Grotius only gives decorative examples from classic authors, and talks indefinitely, in only a general way, of the " consensus gentium." Gentilis' rudiment of a positive law of nations remained uncon- sidered, precisely because of the dominating influence won by Grotius and his deductions. There was also a philosophic, deductive law of nations be- fore Grotius, resting upon the same foundations as the natural law of the schoolmen, and cultivated particularly by the Spanish moralists, especially by Francisco de Vitoria^ and his followers. These writers had, moreover, developed principles far more humane than those of Grotius, notwithstanding his " tempera- menta," with which, as equitable reasons, he mitigated the cruelty of war. But these principles, being based solely upon theological sources, had validity only among States which recognized each other mutually as of the true faith. The original contribution of Grotius is, therefore, again to be found in the fact that he separated law from theological and moralizing speculations, and ' Gunther, "Idee der Wiedervergeltung in Gesehichte und Philosopliie des Rechts," II, 105. 2 Albericus Gentilis, "De lure Belli Libri Tres" (ed. T. E. Holland, 1877). ^ On Vitoria, Suarez, and other Spanish writers : Kaltenborn, op. cit., pp. 124 et seq.; Rivier, "Note sur la litterature du droit des gens avant la publication du Jus Bell ac pacis de Grotius" (Brussels, 1883); also in V. Holtzendorff, "Handbuch des Volkerrechts," vol. I, pt. 4, § 85. [And see Part VIII of the present volume. — Tbansl.] 412 Chap. Ill] NATURAL LAW, EATIONALISM, NATIONALISM [§ 40 placed it upon a purely worldly basis of utilitarianism. And this contribution was . . . especially significant and fruitful be- cause, in last analysis, it was the great idea of a natural com- munity of law embracing all men and peoples as such, and be- cause it made its appearance precisely at the moment when the medieval community of peoples, based upon community of reUgion, had collapsed. Its acceptance in Germany came late and not without resistance. A barbarous war raged in the land and made a dreary waste; in philosophy and theology the Aristotelian scholasticism held sway; in jurisprudence, a Carpzov, — all of these being so many powers hostile to natural law, because an instrument of humanitarianism and enlightenment. To them even the fundamental tenet of natural law was already impious. Before the middle of the century nobody in Germany seems to have paid any attention whatever to Grotius. [In the second half of the century] his acceptance as a figure of the first rank in political and legal science became assured. As the law of nature was taken over from the Roman law with denationalizing simplifications, so it reacted, suffering similar changes, upon positive law. Compared with the freedom of the one, the enchainment of the other to sources in many respects antiquated became even more intolerable. The need of innova- tions of all kinds, born of international and economic friction, secured recognition first in the broad field of natural law, and thence penetrated across the ill-guarded frontier into the practice and the theory of the Pandect law. To this circumstance, to its mediatory utility, natural law owed its ever growing favor. In fact, all those new principles which the empiricism of the second half of the 1600 s established in the field of the civil law ^ were derived from ideas of the law of nature. And in the course of the 1700 s this attained such predominance that the other purely positive and empirical movement [characteristic of German law at the middle of the 1600 s],^ was completely absorbed or forced back when it had hardly come into current. The steadily growing splendor of Grotius' fame was an exact index of this development. (2) Hobbes and Spinoza.^ — In the further course of the 1600 s the law of nature received its next substantial advancement in England. Inasmuch, however, as the incentive to its cultivation came there from the political interests of the times, men were con- ' Enumerated in Stintzing, "Geschiolite," II, 14-16. 2 Stintzing, "Gesohiohte," II, 1 et seq., 162, and other places. ' Berghohm, " Jurisprudenz und Reehtsphilosophie," I, 164, note 18. 413 § 40] GERMANY [Part IV tented solely with the political and constitutional aspect of natural law. Particularly in the case of Hoebes — that mightiest cham- pion of monarchy and most formidable opponent of the Church, the most logical though paradoxical of all thinkers, absolute mathematician and revolutionary absolutist — the Leviathan of State swallowed up the interest even in such of its own functions as were not those of public law. The chapters " de legibus civihbus" (in the "Leviathan") and "de legibus et peccatis" (in the treatise " De Cive ") afford only a few chief maxims. In the following chapters criminal law is somewhat more thoroughly treated, all crime being reduced in essence to an offence against the State.^ The denial of any "jus gentium voluntarium" what- ever (such as was at least given subsidiary value by Grotius), — a denial made in support of a general law of nations abstractly deduced, — was a result in Hobbes' case of English insularity. This denial, as well as his conception of penal punishment, passed from Hobbes to Puffendorf. Among the English followers of Grotius, natural law became ever more separated from strictly juristic concepts. In Spinoza ^ there is no longer any reference to these. In this respect, as other- wise, he was far in advance of his time. His " right " of the big fishes to devour the little is no right within the meaning of natural law (indeed, no right in the ordinary sense of the word) ; and the same is to be said of the State's right to exist, which he bases, in the " Tractatus Theologico-politicus " upon positive power, quite disregarding and losing sight of Hobbes's social- contract basis of sovereignty. And with the rejection of this social-compact Spinoza broke down the bridge which served for Hobbes, and the whole school of natural law, to pass from the pre-State conditions postulated by natural law, to the sharplj^ contrasting conditions of a State organization. For Spinoza the only source of law in a pre-State condition of society is the strength of the individual; the only source under the State is its despotic order; both powers being sovereign, neither dependent upon nor in type influenced by the other. Under these principles there could be no question of the development of a national legal system out of natural law. It is true that it was one of Spinoza's most profound and grandiose ideas to have expressed in this equivalence of " virtus " and " potentia " the idea that it is the ^Hobbes, "Opera Latina" (ed. Molesworth), III, 212. ^Spinosa, "Tractatus Theologico-politicus," ch. 16 (in the "Opera," ed. Giinsberg, III, 167 et seq., especially 171). 414 Chap. Ill] NATURAL LAW, RATIONALISM, NATIONALISM [§ 40 supreme duty of every organism to quicken the powers latent within it, and develop thereby its individuahty. The appHca- tion of this idea to law and State, the construction of both upon a principle of unrestricted self-development, was an achievement to which we must to-day do justice. But it sacrificed that ideal of natural law which aimed at finding a higher unwritten law, above the rule promulgated by the State, to which this rule must accommodate itself so far as it aims to be, not a mere com- mand of force, but an ordinance of justice. For such fine dreams Spinoza has no place: in his State the observance of equity in legislation is not the command of a superior authority, but is essentially a rule of political expediency. If Hobbes was abomi- nated, admired, and followed, Spinoza was doubly abhorred, mis- understood, and shunned, as well for these fundamental theories as for the doctrine of tolerance defended in his " Tractatus Theoretico-Politicus." German legal science in particular held itself far aloof from the ways pointed out by Spinoza. (3) The man who succeeded in turning the philosophical current of natural law into the fields deserted by them since Grotius was Samuel Pitffendorf.^ His works on natural law are three: " Elementorum Jurisprudentise Universalis Libri Duo " (The Hague, 1660) ; " Libri Octo de Jure Naturae et Gentium " (Lund, 1672) ; " De Officiis Hominis et Civis Juxta Legem Naturalem Libri Duo " (Lund, 1673). Of these works the first is an outline study which already embodies the author's entire doctrine,^ but in immature and undeveloped form. The second work is not only by far the strongest, but also the most independent, most systematically ordered, and richest in matter and influence. His general system, — which constitutes one of his most im- portant accompHshments, even though he here leans upon Hobbes' " Tractate de Give," — begins with the assumptions of human nature and capacity, essential for all law, basing upon these the fundamental legal principles, from which in turn all the rest is derived. First therein come naturally the rights of the in- dividual, independent of family and State. These rights rest upon the dogmas of self-preservation, of fair conduct toward others, and performance of contract duties under the social compact; upon the same bases rest the law of things and of obligations. 1 H. Bresslau in the Allg. d. Biog., XXVI, 701 et seq.; Blunischli, ."GesoMchte," pp. 108 et seq.; Wegele, "GescMchte," pp. 500 et seq.; H. von Treitschke, in Preus. J.B., XXXV, 614 et seq. ^ [See Stintzing-Landsberg, "Geschickte," III, 5-7, for a comparative table of its contents and that of the " Jus Naturae et Gentium." — Tbansl.] 415 § 40] GERMANY [Part IV Within the first of these Puffendorf includes rights of inheritance ; and, finally, he seeks to construct even a sort of legal process for this pristine state of social disintegration. From consideration of the individual the system rises in ever ascending range to that of the household community, the State, and, so far as Puffendorf recognizes this, the law of nations. Public law is treated with especial thoroughness; being divided into constitutional law and the sovereign rights of the State against its citizens; and ending with doctrines regarding loss of citizenship, and the extinction, or changes in the form, of the State itself. This system, which became typical for all time to come was a system of rights, not of duties. The development of the school of natural law was determined for a century by the fact that in its first philosophic system it started from this point of view. An unruly emphasis of rights, a subordination of corresponding duties, runs through all the philosophical, political, and polite literature of the 1700s, and the German period of "storm and stress " and the French Declaration of the Rights of Man were nothing more than its culmination. At the same time the con- dition was thereby fulfilled for an ingressive influence of Puffen- dorf's ideas within the fields of positive law. His system, its philosophic basis once disposed of, was thus a system of positive law. The "jura imperfecta" of Grotius, purely moral liabilities, he declined to recognize, as not belonging to the law. His sys- tematizing efforts therefore indicate the resumption of similar endeavors, already indicated, of the late 1500 s and early 1600 s, temporarily abandoned since then under a practical-empiric tendency in legal science. The scope of law has now become broader; for public law, in consequence of political interests and literary achievements of the interim,^ no longer appears, nor is perforce content to be, a mere supplement, tacked on inorganically at the end of the civil law and violently forced into its routinary moulds. On the contrary it has acquired place as a second, co- ordinate part of the law; indeed, with the accession of the law of nations, as the crown and consummation of the entire system, even its details were carefully and independently developed. Accordingly we have in Puffendorf the basis of a universal legal science.^ On one hand is the subject of all rights, man. That 1 SHntzing, "Gesohiehte," vol. I, ch. 11, on systematizing efforts of the late 1500 s and early 1600 s. ^ Cf. Zitelmann, "Die Moglichkeit eines Weltrechts " (lecture before tlie Juristische Gesellschaft of Vienna, March 20, 1888). 416 Chap. Ill] NATURAL LAW, RATIONALISM, NATIONALISM [§ 40 he has understanding, and can therefore calculate the consequences of his acts; that he has free will and can therefore choose his acts; that therefrom results the very possibility of legal precepts, whose imperatives are directed to man's free will and threaten him with punishment for disobedience, — all this is deduced in the clearest way; and the other questions as to the limits of human intelligence and accountability are connected with it in detail. On the other side is the objective, legal norm itself. PufFen- dorf's juristic sense was not here content, like that of Grotius, to rest with the indication that what is in accord with the precept of common sense ought to be law; for, that it may be law and not a mere moral (the " jus imperfectum " of Grotius), a command is necessary. And again, as regards this command, it is not suffi- cient that it issue from any holder whatever of relative power; a despotic command is not law; the power of him who commands must further rest upon a just ground, that we may feel bound in conscience to the obedience outwardly imposed. And upon these two bases, legal science, in its subjective and objective aspects, has really essentially rested to the present. In civil law PufFendorf shows a thorough and nice knowledge of the Roman law, to which he adheres in almost all points, although occasionally citing Germanic legal sources.^ Wherever in Puffen- dorff's natural law the Germanic sense of right is enforced against the principles of the Roman law, this is generally justified by an appeal to greater simplicity, clarity, or naturalness, — criteria which are constantly resorted to in correction of the Roman law, and much more skilfully used than by Grotius. Especially, certain Roman rules of equity, charily introduced under sharp limitations, are immensely expanded in accordance with the " sequitas juris naturalis." Here and there, too, political and economic con- siderations are put forward to determine principles of the law of nature. The result is a motley whole, whose details sometimes seem, to our modern legal sense, contradictory, — as, for example, when a family law quite strictly Roman is set forth, whereas the principles of Roman law are broken with as regards a transfer of property without delivery, and the rule of the vendor's risk. Nevertheless, even from the strict standpoint of the civil law, the whole is a feat that commands respect. Finally, questions oi principle (such as contract, compensation for nominal damage, 1 "Leges Barbarorum " or capitularies are Qited,e.sr.,iiithe "Jus Naturae et Gentium," II, 6, §§ 15, 18; III, 1, § 3; III, 3, § 7; III, 7, § 6 ; IV, 1, §6. 417 § 40] GERMANY [PabT IV the consequences of mistake), make their appearance: the search for some test of principle for legal rights begins with truth, honor, altruism; and in this process, conventional rules conflict sharply with the demands of equity against chicanery and formalism. Puffendorf's chapters on public law rest essentially on Hobbes. But though based wholly upon the absolutistic doctrine of his time, nevertheless, a transition is prepared to those democratic ideas which, a century later, were to lead the law of nature in triumphant conquest. What has often been said of the political practice of the 1700 s was also true from its beginning of the law of nature: that in suppressing all powers between ruler and people, all corporations between the individual and the state, it created first a naked despotism of the individual, and, later, one of the masses. In particular Puffendorf's excessive emphasis of the right of all men to equality^ points in this direction. This same universalism of the later law of nature is shown when he makes the duties of men to their fatherland equal to those one owes to any State in which one has settled and made one's way in life. — For the rest, in discussing the forms of government, he holds closely to the types traditional since Aristotle; but con- siders especially the possibility of uniting separate States in State systems of greater or less coherence.^ The right to punish appears as a part of public power, and there- fore criminal law as a chapter of public law. At its basis is laid a unifying concept strikingly similar — as is well known — to the later so-called psychological theory of restraint. Although this general justification of punishment is also taken bodily from Hobbes, its juristic elaboration remains Puffendorf's contribution. The application to criminal law of the subjective doctrines de- veloped as an introduction to the entire system results here in an extremely fruitful doctrine of guilt, whose adoption by positive law could be a question only of time. A positive law of nations of any kind whatever, whether based on treaties or originating tactily in the practices of civilized nations, PufFendorf rejects far more decidedly than Grotius; all such regulations lack for him a legally binding character, are not precepts of law, but merely matter of agreement. As international law he finds only that valid in a state of nature between individuals; while Grotius, the discoverer of this analogical source of law, ' "Jus Natures et Gentium," bk. 3, eh. 2. ^ "Jus Naturae et Gentium," bk. 8, ch. 9 ; and c/. various essays in his " Dissertationes academicse Selectiores" (Upsala, 1677). 418 Chap. Ill] NATURAL LAW, RATIONALISM, NATIONALISM [§ 40 at least spoke in addition of a second source, " the consensus gentium." Puffendorf s works on natural law pay little attention to ecclesi- astical law. At the same time, he has the merit here, as elsewhere, of having introduced into German legal science Dutch and English ideas, as well those of a political particularism, grounded (not as theretofore, historically, but) in the law of nature, as those of a tendency toward tolerance, — the latter being indeed rather illiberally conceived, but the former with avoidance of Hobbes's most extreme paradoxes. By far his most original work was in the field of positive German public law. His series of tractates on the condition and constitu- tion of the German Empire constituted an epoch-making work for that and later times. They rivalled in brilliancy and keenness of presentation and excelled in profundity and sobriety of judgment the celebrated pamphlet of Hippolithus a Lapide,^ with which they were in origin associated. They appeared first under the title: "Severini de Monzambano Veronensis de Statu Imperii Germanici ad Lselium Fratrem Dominium Trezolani Liber Unus," (Geaeva, — really Amsterdam, — 1667).^ In the preface (in the form of an introductory letter to the brother) there is here expUcitly recommended, as the only method for the study of Ger- man public law, the observation of realities,- in German courts and German chanceries. From a clear conception of actual political relations he drew the definite conclusion that sovereignty really lay in the German territories. Several sovereign States could not, however, within his definition, form one State together: they could only unite in what he called a " Staatensystem," that is, in a confederacy (" Staatenbund"), as the expression is to-day. And since his sight was much too clear to permit of his admitting that conditions in Germany were consistent with the last concep- tion (since he recognizes the prerogatives of the emperor, the powers of the imperial courts, in short the remnants of the old imperial constitution, as being too strong), he was perforce obliged to label the existing constitution of the Empire as one against reason, fitting under no political concept, in short, as " monstrous." In this method of applying to actualities an " a priori " measure we recognize again the traits of one who proceeds upon principles ' Stintzing, "Geschiohte," II, 45 et seq. 2 On this, see Bresslau, preface to his German translation of the work (1870), with bibliography ; Brie, "Gesohichte der Lehre vom Bundesstaat (1874), pp. 21 et seq.; Jastrow, in Z. Preus. G. L.K., 19 (1882). 419 § 40] GERMANY [Part IV of natural law; in the assertion that Germany was a political monster we see brought together, as in a focus, the writer's em- piric and philosophical views. It would be an error to say that German legal science of the 1800 s lay under the dominance of Puffendorf's ideas of natural law; the ideas, essentially taken from Dutchmen and Englishmen, were not original enough to justify the judgment. But one must in truth say that the ideas of natural law which he borrowed he worked over independently, judiciously, and with liberal under- standing, into a juristic system; and that his system settled the union, and therefore the development, of legal philosophy and legal science in the 1700 s. (4) Leibnitz. — Standing on one side from the above movement, upon an eminence overtopping and commanding it, was Leibnitz.^ He identifies completely the science of justice and the science of law; so that this becomes again, for him, truly a " rerum divinarum et humanarum scientia." It comprehends, in his view, not only positive law and natural law, equity and policy, but even morals and theology. The depreciatory estimate which Leibnitz placed upon PufPendorf, both as a jurist and a philosopher, was especially due to the latter's inclination to exclude theological, and so far as possible even ethical, elements from natural law. Leibnitz sets in sharpest contrast with this his own derivation of natural law from divine wisdom. If Puffendorf's principle of sociality thus appears to Leibnitz so wholly inadequate, how completely must the latter have anathematized the later principles of the social compact ! For Leibnitz recognized no power in the individual to dispose of himself and his rights beyond the limits of objective justice; and therefore no absolute binding force of contracts, but only one limited by their legal and equitable content.^ Similarly, in criminal law, he held fast to the principle of absolute requital. 1 Guhrauer, "Gottfried Wilhelm von Leibnitz" (2 vols., 2d ed., 1846) ; Prantl, in AUg. d. Biog., XVIII, 172 et seq. with references. On his re- lations to natural law: K. Fischer, " Geschichte der neueren PMlosophie" (3d ed., 1888), II, 565 et seq.; Bluntschli, " Gesohichte," p. 135 ; Zeller, "Ge- schichte der Philosophie," pp. 122 et seq.; Trendelenburg, "Historische Beitrage zur Philosophie," II, 233 et seq., 257 et seq.; Mollat, "Rechts- philosophisches aus Leibnitzens ungedruokten Schriften" (2d ed., 1885, under the title " Mittheilungen aus, etc.") On his relations to positive law: F. Hecht, "Leibnitz als Jurist" in Preuss. J.B., IV (1879), Heft 1; Zimmermann, "Das Reohtsprinzip bei Leibnitz" (1852); Baron, "Franz Hotmann's Antiribonian" (Berner Festgabe ftir Bologna, 1888). The latest and most thorough account in Gustav Hartmann, " Leibnitz als Jurist und Rechtsphilosoph " (Tubingen, 1892). ^ On this and on criminal law, Hartmann, as just cited, pp. 81 et seq. 109 et seq. 420 Chap. Ill] NATURAL LAW, RATIONALISM, NATIONALISM [§ 40 To his advanced contemporaries such principles, which readily reveal themselves to us as anticipations of a deepening develop- ment, must have appeared as relapses into a scholastic mode of thinking. All the more unmistakable was the progress marked in legal science, in the narrow sense, by the " Nova Methodus Discendse Docendseque Jurisprudentiae " (1667).^ The extreme youth of the author is in many ways evidenced, ■ — in the unconsidered bold- ness of his proposals, in many contradictions of his later and clarified opinions, and in his dependence upon Bacon's " Novum Organum." But the work develops an abundance of original and reformative ideas. It starts with legal instruction, proposing to shorten the duration of this from five to two years, by means of a rigorous methodization of legal science. To this end, and in analogy to theology (which is deemed essentially similar), legal science is divided into four parts: the didactic, historical, exegetic, and polemic. In order perfectly to adapt the Roman law to introductory didactic instruction, for which its material excellence recommends it, it should be subjected to a formal revision, since in the form in which it is preserved in the Justinian compilation it repels study by an orderless mass of details. In place of this chaos, and in abandonment of any fixed " legal " order (the system of the Institutes being also, as regards method, absolutely useless), two systematic textbooks (he asserted) should, in particu- lar, be worked out. one elementary, in lapidary terseness reminis- cent of the Twelve Tables, containing merely " definitiones et prsecepta," proceeding rigorously from the general to the specific, through titles and subtitles; the other a " novum corpus juris," which should include the matter of the Justinian, but newly and systematically arranged. For the historical division special text- books should be written: a "historia mutationum juris," and a " historia irenica." The history of the classic and of modern States and that of the Church should also be drawn upon. Legal exegesis required a special basis; to this end there was needed a " philologia juris," a " grammatica legalis seu lexicon juridicum," an " ethica et politica legalis," a " logica et metaphysica juris," — in short, an encyclopaedia of law. The exegesis itself should then be made according to the " mos Italicus." Knowing thus the words ' Edition of 1748, with an introduction well deserving reading, by Christian Wolf, reprinted in Dutens, " Leibnitii opera," IV, 3, pp. 159-230; Pfleiderer, "G. W. Leibnitz als Patriot, Staatsmann und Bildungstrager," pp. 473 ef seq. 421 § 40] GEEMANT [PabT IV and meaning of the statutes, one would come, finally, to the ocean of polemics. For the mastery of the whole field, yet another great compilation would here be necessary, and this should afford, as a basis for secure objective judgment, the support of the firm structure of natural law. A " syntagma juris universi " should, like a new pandect, constitute this final statement. Such, essen- tially, was the course of the consistent development proposed. At the end, a catalogue of desiderata, analogous to that at the close of Bacon's " Novum Organum," arranges under thirty-one num- bers the works that should accordingly be prepared from the new viewpoints. By commission of the electoral-prince of Mainz, Leibnitz entered immediately upon the preparation of at least one number of this programme, namely a " reconcinnation " ^ of the Justinian books. The plan miscarried, clearly not alone for lack of persistence, but also because essentially impracticable in the existing state of legal science. But is not precisely the same true of Bacon's desiderata of philosophy? And has not Bacon's work, nevertheless, been of the greatest influence? Such writings, in truth, exert influence less through their positive content than through the critical spirit with which they break through the spell of tradition, and through the impulse they give to new research. If Thomasius actually did introduce later a scheme of legal training, encyclopaedic in basis and arranged upon a two-year term; if the " legal " method was increasingly abandoned, and short systematic text-books (so- called compendiums) were made the basis of academic study; if the jurists steadily learned to break the bonds of a purely civilistic method, and fecundate their science with philosophy, history, and politics, — the way to all these results was marked by the " Nova Methodus." Significant in the history of public law is Leibnitz's great docu- mentary work, the " Codex Juris Gentium " of 1693, with its sup- plement (" mantissa ") of 1700. The legal value of these docu- ments, which were assembled primarily for historical purposes, is emphasized in the title, and the prefaces refer to this explicitly in several places. Including German constitutional law as well as positive public and international law in general, room is here made again for the first time since Albericus Gentilis, for the positive precepts of international law, along with the doctrines of natural law deduced from first principles. In this respect Leibnitz 1 Dutens, as cited, IV, 3, p. 230 ; and Guhrauer, "Leibnitzens deutsche Schriften," I, 256 et seq. 422 Chap. Ill] NATURAL LAW, RATIONALISM, NATIONALISM [§ 40 stood, in his time, in complete isolation, opposed to Grotius and, still more, to Puffendorf. On the other hand, these same docu- mentary labors, in so far as they concerned public law, were in fruitful harmony with the tendencies of the time; and notably with the " realistic " movement.^ In estimating Leibnitz's influence upon legal science, one can- not confine one's attention to his ideas of natural law and his juristic writings ; one must consider the totality of his activity, in books, letters, and personal relations. Through all of them runs a characteristic endeavor in favor of codification and legal reform. In a letter written the last year of his life, he counsels that there be formed a new Codex, " short, clear, and adequate," under governmental authority, " out of the Roman statutes, records of German law, and actual legal practice, but above all from ob- vious principles of equity." And since in Leibnitz's time it ap- peared quite hopeless to await the issue of such a code by the Empire, he did not disdain to appeal, for the same end, to territorial legislation. It is especially notable that in Prussia^ the first page of the proceedings preliminary to the Ordinance of the Chamber of Justice, of March 1, 1709, reproduces an essay from his hand, in which he demands, as emphatically as briefly, comprehensive legal reform. But that ordinance was in fact the serious beginning of such reform; and thus Leibnitz is directly connected with the whole movement of legislation and codification which repeatedly dominated Prussia in the 1700 s, until finally it ended in the code of 1794. He stands in precisely similar relation to Austrian codi- fication. Further, in all his activities, — far beyond the occasional op- portunities in the " Corpus Juris Gentium," — Leibnitz gave ex- pression in the most masterly way to a historical conception of law, herein anticipating by at least a century the development of legal science. The significance of certain important isolated facts in legal history could no longer be misjudged since Conring (post, § 42) ; but the first, and for a long time the only, person in Ger- many who grasped in a profound way the meaning of history, and who at least incidentally utilized it in legal science, was Leibnitz. It was from his law of continuity, which penetrates and supports ' Stintzing, "Geschichte," II, 11, and in various later passages. ^Influence upon legislation: in Prussia — Trendelenburg, "Kleine Schriften," I, 245 et seq.; Stolzel, " Brandenburg-Preussens Reohtsver- ■waltung und Rechtsverfassung " (Berlin, 1888), I, 414 et seq., II, 55 et seq.; In Austria — Pfleiderer, cited above, p. 456. In Russia — K. Fischer, cited above, p. 129. 423 § 40] GERMANY [Part IV his entire philosophical system, that he deduced the essence of history.^ As all monads are united in chains of infinitesimal differentiation into a harmonious universe, so all things and every- thing appears as shaped by history and intended for a further his- torical development. And this holds for the growth of law among different peoples. To this idea was due the emphasis of historical instruction in the " Nova Methodus." Leibnitz applied it, indeed, in legal science only in incidental notes. But though such elements might not immediately penetrate into juristic circles, in the long run an influence was here also inevitable. It is true that neither the Halle nor even the Hannoverian school (post, § 42) attained the full meaning of Leibnitz's conception; Savigny was the first who did, — but he is united (through those schools and their last stragglers, J. S. Putter and G. Hugo) in an unbroken chain of tradition, with Leibnitz. Thus Leibnitz, as jurist, mathematician, historian, and phi- losopher united, was active and helpful in all parts of legal science : whether in things that lay near to the understanding and interest of his time — as speculations in natural law, the mathematical treatment of methodology or of isolated civilistic problems, or a documentation of public law; or in things beyond the appre- hension of his contemporaries, — the sketch of a comprehensive doctrine of justice, the derivation from public documents of a positive law of nature, the making of legal codes in accordance with new ideas, or the revelation of the meaning of history. A rich sowing! — although indeed many seeds never sprouted, and many others so late that between him and the ripened harvest the connection is hardly longer provable.^ ' Wegele, "Gesehiohte," pp. 646, 851, with abundant citations ; Dutens op. cit., IV, 2, p. 53; Guhrauer, "Leibnitzens deutsche Schriften," I, 31., 2 [" In Leibnitz' Methodus, the science which of all others had been deemed to require the most protracted labor, the ripest judgment, the most experienced discrimination, was as it were invaded by a boy, but by one who had the genius of an Alexander, and for whom the glories of an Alexander were reserved. This is the first production of Leibnitz ; and it is probably in many points of view the most remarkable work that has prematurely invited erudition and solidity. There was only one man in the world who could have left so noble a science as philosophical juris- prudence for purposes of a still more exalted nature, and for which he was more fitted ; and that man was Leibnitz himself. He passed onward to reap the golden harvests of other fields. Yet the study of law has owed much to him. ... In Germany at least, philology, history, and philosophy have more or less since the time of Leibnitz marched together under the robe of law. ' He did but pass over that kingdom,' says Lerminier, ' and he has reformed and enlarged it.' " (Hallam, " Literature of Europe in the 15th-17th Centuries," IV, 208) . — Ed.] 424 Chap. Ill] natural law, rationalism, nationalism [§ 41 Topic 2. German Nationalism §41. Rise of the German National Jurists. — The historical process, whose course is indicated in the period thus far run through, has been rightly described as that of the naturalization and assimilation of the Roman law in Germany. The legal science of this epoch bears an alien impress; it is an exotic plant in German soil which slowly takes root, and still more slowly is acclimated. Up to this time one might speak only of legal science in Germany ; the 1600 s accomplished the task of establishing a German legal science. Legal science had been alien, not alone in its materials, in which the native element contributed no part, or one scarcely perceptible; it was alien also in its whole tradition and the influences therein grounded. Italian influence dominated casuistics and legal practice; French influence gave form to historical-antiquarian scholarship and the synthetic method. Men taught and wrote "more Italico " or "more Gallico "; nobody spoke of a " mos Germanicus." However, the German mind, after completed schooling, began to bethink itself of these conditions. We have shown how, in the first half of the 1600 s, side by side with the after effects of the traditions theretofore dominant, a new dement made itself felt. Attention was turned to national condi- tions, and efforts were made, by the collection and study of legal sources, to comprehend their extent and historical coherence. The dominance of foreign law had in fact blinded men's sight. It had thrown over the realities of German legal conditions a web of showily specious traditional notions which maintained themselves despite all contradictions with reality. The old belief in the continuity of the Roman imperiality, with all its simulations and consequences, formed the basis of legal theory. The univer- sality of this authority, the " dominium mundi," — long since, to be sure, no more enforced, yet still maintained in thesi, — made it seem self-evident that one and the same imperial law ruled Chris- tendom, and hence that legal science was a unity. And however sharply these notions conflicted with reality, however inadequate they were to explain conditions as they had actually developed, nevertheless they maintained their sway with the power of a hallowed tradition. Legal science had freed itself from the fetters of scholasticism; it had saturated itself with an under- standing of antiquity; it had acquired an insight into the essential unity of the law and a mastery over it as a whole; it had, finally, 425 § 42] GERMANY [PaBT IV endeavored more and more to show regard in details for the ne- cessities of national legal conditions. But the spell of the dream in which it indulged, under the faith of tradition and the enchain- ing power of alien authority, remained to be broken. To accom- plish this were needed the profound shocks and hard experiences brought by the 1600 s. Amid the storms of the Thirty Years' War the generation was born and grew to maturity that was called to complete the movement whose beginning in the first half of the century we have pointed out. The word that broke the ban under which legal science lay enfettered was spoken by Hermann Conring. § 42} Exponents of Nationalism and Realism ; Conring, Carpzov, Mevius, Thomasius, Beyer.' — The first effect of the transformation of legal doctrine and literature involved in the return to original sources, and the application to these of philologi- cal criticism, as begun by Bude in France, Alciat in Italy, and in Germany by Ulrich Zasius, was in a way (as has been noted in § 27) a separation of theory and practice. Between these, so long as legal science was exclusively devoted to the foreign law, there naturally continued a wide chasm. But this was gradually closed, thanks to the extensive arbitral and counsel practice, in which the scholars of that time found themselves involved, both as members of university faculties, through the traditional practice of rendering faculty opinions on submitted cases, and individually by the usage of expert consultation.' This practical activity was ' [TMs section is a mosaic made of the following som-ees : the portion of paragraph 1 after the first sentence, also paragraphs 4, 7, are from Siegel, "Deutsche Rechtsgesohichte " (3d ed., Berlin, 1895), § 52 (in part) ; paragraph 2 is from iS