no /il3 (^nxmW Slaui ^t\\m\ Kthrarg IL K 170.Ml3°™""'"''«^*»yUbrary ,. Great i 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/cu31924017097035 THE CO]N^TINENTAL LEGAL HISTOEY SERIES Volume Two GREAT JURISTS OF THE WORLD The Continental Legal History Series Published wider the auspices of the Association of American Law Schools I. A GENERAL SURVEY OF EVENTS, SOURCES, PERSONS, AND MOVEMENTS IN CONTINENTAL LEGAL HISTORY. By Vabiotts Authors. Translated by Rapeud Howell, F. S. PmLBRicK, John Walqren, and John H. Wigmore. |6.00 net. II. GREAT JURISTS OF THE WORLD, FROM GAIUS TO VON IHERING. By Various Authors. Illustrated. (Extra volume. By arrangement with John Murray, London.) $5.00 net. III. HISTORY OF FRENCH PRIVATE LAW. By J. Brissaud, late of the University of Toulouse. Translated by Rapelje 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 PROCEDURE. By A. EsMEiN, late of the University of Paris, with chapters by Francois Gabraud, of the University of Lyon, and C. J. A. Mittermaier, 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 Ludwiq VON Bar, late of the University of Gottingen. Translated by Thomas S. Bell, of the Pasadena, Cal., Bar. $4;00 net. VII. HISTORY OF CONTINENTAL CIVIL PROCEDURE. Bv Arthur Engelmann, late Chief Justice of the Court of Appeals at Breslau, with a chapter by E. Glasson, late of the University of Paris. Translated by Robert W. Millar, of Northwestern Universitv $4.00 net. ^ Vm. HISTORY OF ITALIAN LAW. By Carlo Calisse, of the Italian Council of State. Translated by John Lisle, of the Philadelphia Bar. $5.00 Tiet. IX. HISTORY OF FRENCH PUBLIC LAW. By J. Brissaud, late of the University of Toulouse. Translated by James W. Garner of the University of Illinois. $4.50 net. ' X. HISTORY OF CONTINENTAL COMMERCIAL LAW. By Paul HuvBLiN, 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 ' BARTOLUS Frontispiece THE CONTINENTAL LEGAL HISTORY SERIES Published under the auspices of the ASSOCIATION OF AMERICAN LAW SCHOOLS GREAT JURISTS OP THE WORLD EDITED BY SIR JOHN MACDONELL FELLOW OP THE BRITISH ACADEMY AND EDWARD MANSON SECRETARY OP THE SOCIETY OP COMPARATIVE LEGISLATION WITH AN INTRODUCTION BY VAN VECHTEN VEEDER JUDGE OP THE UNITED STATES DISTRICT COURT, NEW YORK WITH PORTRAITS BOSTON LITTLE, BROWN, AND COMPANY 1914 /^A^OSS EDITORIAL COMMITTEE OF THE ASSOCIATION OF AMERICAN LAW SCHOOLS Ernst Freund, Professor of Law in the University of Chicago. Ernest G. Lokenzen, Professor of Law in the University of Wisconsin. Wm. E. Mikell, Professor of Law in the University of Penn- sylvania. MuNEGE Smith, Professor of Jurisprudence in Columbia Uni- versity. John H. Wigmore, Chairman, Professor of Law in Northwestern University. LIST OF TRANSLATORS Thomas S. Bell, of the Los Angeles 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, of the Chicago Bar, Lecturer in Nbrthwest- ern University. Francis S. Philbrick, of the New York Bar. John Simpson, of New York. 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 syllabarum." But there have been lawyers that were orators, philoso- phers, historians: there have been Bacons and Clarendons. There wiU be none such any more, tOl 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 chmb- 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 aU the little arts of chicane. Till 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 climb, 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., Th^ 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 all 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 famifiar theatre of cooperative effort m 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 structure 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 sm'vive 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 conunoh 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- ix CONTINENTAL LEGAL HISTOET SEEIES 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 and ourselves. For the sake of legal science, this story should now become a famihar one to all who are studious to know the history of our own law. The time is ripe. During the last thu^y years Euro- pean scholars have placed the history of their 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 English 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 beUeve that a better acquaintance with the results of modern scholarship in 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 weU 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 believe 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: CONTINENTAL LEGAL HISTORY SEEIES "That a committee of five be appointed, on Translations of Conti- nental Legal History, with authority to arrange for the translation and pubUcation 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 medieval periods; for in usefulness and importance they were not less imperative in their claim upon our attention. Each volimie, 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 Procedure, were allotted each a volume; in this volume the basis was to be the general European history of early and medieval 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 volimie covering all five parts of the field. For Pubhc 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, three volumes were allotted to general surveys indispensable for viewing the connec- xi CONTINENTAL LEGAL HISTORY 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 1 ") ; another sets forth the historic parts played by the great jurists ; and a final volume analyzes the specific features, 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 Conmaittee hopes that due allowance will be made for the diffi- 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 European 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 Citj-, 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 hterature 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 CONTINENTAL LEGAL HISTORY SERIES authors. The Committee, on behalf of our profession, acknowl- 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 EDITOELA.L Committee. xui GREAT JURISTS OF THE WORLD CONTENTS Page V Editorial Committee and List of Translators General Introduction to the Continental Legal History Series ix Editorial Preface. By Sir John Macdonell xxi Introduction. By Van Vechten Veeder xxvii GAIUS. By James Crawford Ledlie . . 1 PAPINIAN. By E. C. Clark . . 17 DOMITIUS ULPIAN. By Jambs Crawford Ledlie 32 BARTOLUS. By the late Sir William Rattigan . 45 ANDREA ALCIATI AND HIS PREDECESSORS. By Cole- man Phillipson . 58 JACQUES CUJAS. By Coleman Phillipson 83 ALBERICUS GENTILIS. By Coleman Phillipson . 109 FRANCIS BACON, Baron VERULAM. By Jambs E. G. db Montmorency 144 HUGO GROTIUS. By the late Sir William Rattigan 169 JOHN SELDEN. By Edward Manson . 185 THOMAS HOBBES. By Jambs E. G. de Montmorency 195 RICHARD ZOUCHE. By Coleman Phillipson 220 JEAN BAPTISTE COLBERT. By H. A. de Colyar . 248 GOTTFRIED WILHELM von LEIBNITZ. By Sir John Macdonell 283 SAMUEL VON PUFENDORF. By Coleman Phillipson 305 GIOVANNI BATTISTA VICO. By Michael Raffbety . 345 XVm CONTENTS Page CORNELIUS VAN BYNKERSHOEK. By Coleman Phillip- son 390 CHARLES LOUIS de SECONDAT, Baeon db la BREDE ET DE MONTESQUIEU. By Sie Couetbnay Ilbeet 417 ROBERT JOSEPH POTHIER. By James E. G. de Mont- moeency . . . 447 EMERICH DE VATTEL. By Coleman Phillipson . . 477 C^SAR BONESANA, Maequis di BECCARIA. BtT.Bridg- watee . 505 WILLIAM SCOTT, Loed STOWELL. By Noeman Bentwick 517 JEREMY BENTHAM. By John Maxcy Zane 532 CARL JOSEPH ANTON MITTERMAIER. By Levin Gold- SCHMIDT . . 544 FRIEDRICH CARL von SAVIGNY. By James E. G. de MONTMOEENCY . 561 RUDOLPH VON IHERING. By Sie John Macdonell . . . 590 INDEX 601 LIST OF ILLUSTRATIONS BAETOLUS Frontispiece TO FACE PAGE ALCIATI 58 CUJAS . . ... 83 BACON ... 144 GROTIUS 169 SELDEN 185 HOBBES 195 COLBERT 248 LEIBNITZ . . . 2*3 PUFENDORF 305 BYNKERSHOEK 390 MONTESQUIEU 416 POTHIER . . . . 447 BECCARIA 505 STOWELL . . . 517 BENTHAM. ■ 532 MITTERMAIER 544 SAVIGNY 560 IHERING 590 EDITORIAL PREFACE In his Nova Methodus discendce docendceque Jurisprudentiw Leibnitz describes a catalogue of Desiderata, and mentions among them the publication of lives of the great jurists.^ More than two centuries have passed without the suggestion bearing fruit. Only Leibnitz, with his encyclopaedic knowledge, could have adequately carried out his proposal; but it appeared to me that an attempt might be made by several writers to give effect in some form to the long-neglected suggestion. The result was this book, most of the contents of which appeared in a series of articles published in the Journal of Comparative Legislation. I have been asked to add to this collection of lives of emi- nent jurists a brief introduction or prefatory note. Perhaps no preface is needed; the book explains and, I hope, justifies itself. I do not claim that it carries out strictly a precise plan. Each writer has been, within certain wide limits, free to deal with his subject as he deemed fit, and in his own way; each is, conse- quently, responsible for his own contribution. Complete unity in the mode of treatment there is not. Not only the lives of the jurists, but their chief works are described; and the book, though not a history of jurisprudence, may be a help to a de- scription of the great movements of jurisprudence which form no small part of the life of every people. Some of the biographies are based upon materials either new. or little used; none of them are mere summaries of existing works. Not a few points of importance are for the first time elucidated. I might refer, for example, to the lives of Gaius, Papinian, Alciati, Cujas, Hobbes, and Bacon. It has been usual in writing the history of jurisprudence to omit the jurists. The book will have fulfilled one of its purposes if it helps somewhat to correct the habit of describing doctrines apart from their historical setting and the time in which their expounders lived. The Zeitgeist is • Dutens, Opera, iv., 217. Leibnitz's Desiderata were to some extent suggested by Bacon's Desiderata mentioned in the Increase of Learning. xxii EDITORIAL PREFACE much; so also is the personality of jurists. We know how partic- ular judges in our own times have influenced the development of certain branches of law. That is true of the past. The develop- ment of English law would not have been the same as it has been if there had been no Coke or Mansfield, or if Bacon instead of the former, BuUer instead of the latter, had at momentous periods presided over the King's Bench. To know what manner of man was Cujas, or Grotius, or Ihering, is a help to understand his teaching. The volume, beginning with Gains and Papinian, and ending with Ihering, ranges over a period of nearly two thousand years, and the collection includes accounts of the representatives of four great periods of jurisprudence: (1) The period in which Roman law was fully developed; (2) that in which it was re- garded as the common law of Continental countries; (3) the period of the supremacy of natural law in its many forms; (4) the age of codes and legislation. The collection includes jiu-ists who were innovators, such as Grotius; distinguished practising lawyers, such as Zouche and Bynkershoek; reformers, such as Mittermaier and Bentham; philosophic jurists, such as Leibnitz and Vico. Many jurists of influence and importance are necessarily omitted for lack of space ; but the omissions may some day be supplied in an additional volume. My hope would be that, supplemented by a brief narra- tive connecting the various lives, this book would form the out- lines of a history of jurisprudence. As it is, it attempts to do what has not been done before. The volume tells of a score of men of different ages who looked at jurisprudence from different points of view, and had very different conceptions of its provisions. Some readers, noting •these difl^erences, and observing the contrast between the lofty pretensions of the earlier jurists and those of the modern, will perhaps ask the question: "Is the history of jurisprudence in substance a history of disillusion? Has it any lesson to com- municate? Has it outlived its work? Have we got much be- yond the opening words of the Institutes: 'Juris preecepta sunt heec: honeste vivere, alterum non Isedere, suum cuique tribuere'? " Compare the definition of Ulpian with that, say, of Austin, and we see a remarkable change. Perhaps the jurist who once held a place second only to that of the theologian must retire with the latter to a lower position. Jurisprudence cannot in a literal EDITORIAL PREFACE Xxiii sense be "divinarum atque humanarum rerum notitia, justi atque injusti scientia." Some may think it merits the gibes of Mephistopheles in Faust} Jurists cannot again occupy the position enjoyed by Bar- tolus and Cujas, to the former of whom was given the privilege that he and his descendants who were professors of law should "have the power of legitimizing their pupils in case of bastardy or of reheving them from the disabilities of minority" (p. 50). Their teaching cannot, for many reasons, be what it once was. Their functions have changed and are changing, and in these ways among others: in the first place there is a division of mat- ters once dealt with under jurisprudence.^ It is no longer, after the manner of Leibnitz and Vico, inextricably mixed with ethics and philosophy. The latter taught tutto scibile, and called it jurisprudence. He made it a reproach that Grotius had severed jurisprudence from theology. Modern jurisprudence is secu- larized — i.e., separated from theology, and to a certain extent from ethics. Then, too — and it is the second great change — the wide extent and activity of legislation have narrowed the field of the jurist. Where he was permitted to be a sub-legislator he is reduced to the position of an interpreter — often an in- terpreter working in fetters — subject always to this: that if the legislature has the power, the jurist has, as to much, the knowledge. There is a further class of changes in operation. Jurisprudence has to adjust itself to psychology; by which I mean that all the roots of law have to be investigated, and not, as in the past, only a few; that its origin is not to be found solely or perhaps chiefly in the commands of a superior; that we must look to the motives which urge people without pressure to adopt certain rules and to carry them out, and note the impulse of the civilised man to conform to law and order. Further, jurisprudence must adjust itself to sociology; no purely legal analysis of social relations is complete; they are not wholly explicable by juristic methods or to be all included in juristic categories, such as contracts, express or implied.^ Society consists of men living together and co-operating in many ways and from many motives, selfish and sympathetic, with ties ethical, economic, traditional; and sociology, not jurisprudence, must give the explanation of this 1 See Kirchmann's Kritik der Rechtswissenschaft, 568. 2 Wundt, Logik, iii. 1. ' Wundt, Logik, iii. 533. XXIV EDITORIAL PEEFACE consensus and harmony. The former science (if such it be at present) may help us to explain how all the social forces are connected and co-operate. Jurisprudence has also to tell that which until lately, owing to the absence of the necessary data, was wrapt in obscurity — ^the process of evolution of law. It must explain the various stages through which law passes — e.g., continue the work of Maine, Bastian, and Post; the stage in which symbolism is universal; that in which form and the letter are all powerful; the stage at which law is in the main customary.^ It must explain the sepa- ration of jurisprudence from religion and ethics, and their true relation; it must show how international law was no happy accident or clever invention, but an inevitable growth. A further difficult task awaits the jurist. Several legal cate- gories and conceptions must be reshaped to meet new facts and new ideas. Thus, the conception of property is no longer what it was. It is subject to many new limitations — so many in the case of land that one may say that the rights of the first occupier and those acquired through him are now everywhere limited by the rights of the last-comer.^ The jurist is called upon to de- fine, if he can, "a fair rent," "a fair wage," "a minimum wage," and "a reasonable length of working day." Read the test of monopolies which, according to English common law, are lawful as distinguished from those which, being unreasonably in re- straint of trade, are unlawful; then turn to an analysis in a modern book of political economy of the various forms of monop- oly and their detrimental and beneficial effects, and it will be seen that the jurist is working with antiquated definitions. Juris- prudence has to find a firmer basis for criminal law, a more satisfac- tory theory of punishment, a better definition of such kinds of insanity as are incompatible with responsibility. Here, too, the jurist is working with obsolete or imperfect tools. The latest form of social order is not necessarily the final or the best, and the jurist has to help in the process of transition and reconstruction. He has spoken much of the past; he is now called upon to solve problems hitherto unknown. Even as to the humble function of interpretation of enactments a change seems imminent, and jurists must carry it out. The 1 See as to the domination of forms, Ihering, Geist des romischen, Rechts ii. 470. ' 2 The expression is used by Fouillee, La propriite soHale, p. 15. EDITORIAL PREFACE XXV rules of construction employed by English lawyers and those of Continental lawyers for ascertaining the intention of the legisla- ture — ^the former keeping to the letter of the statute, and apply- ing certain technical rules; the latter seeking light in collateral documents or proceedings at which the former would not look — cannot both be right, and one day a choice must be made.^ Still the great task of jurists remains what it was — to help, with the assistance of ethics, to answer, when the law is silent or ambiguous, the question: "What is justice?" That answer cannot be expressed in terms of power or volition. The con- science of man, working in ever-changing circumstances, de- mands another solution — a demand which cannot be explained away. At all times there exists a sense of justice which approves of some kinds of legislation and condemns others, which seeks to create a Rechtsordnung. In some societies and at certain times it is more exigent than at others. It does not always speak alike, but at all times it has to be reckoned with. A law which con- demned the accused without hearing him, which took away prop- erty from one person and gave it to another selected capriciously, or which made laws retrospective — such a measure might con- form to all statutory requirements; it would not seem the less unjust. Out of astrology grew astronomy; out of alchemy, chem- istry; in the false conception of a universal immutable law may be the root of a new form of jurisprudence. There is a sense in which Ulpian's famous description of natural law may still be true.^ Regarding "the great jurists of the world" as all engaged, each in his own way and time, in one task, we see in the different persons whose lives are told in this volume a certain unity of purpose carried on for nearly two thousand years, to be continued while men distinguish between good and evil. JOHN MACDONELL. ' There is said to be a tendency to adopt English methods (G6ny, MMhode d'interpritation, p. 257). ^ See Mr. Ledlie's lAfe of Ulpian; also Rumelin, Beden, Neue Folge, 337; Stammler, Die Kvltur der Gegenwart, 2. viii., p. xliii. INTRODUCTION A STTRVEY of the course of development of European jurisprudence necessarily presents methods and points of view somewhat remote from Anglo-American experience. This selection of great jurists of the world has been made with particular reference to inter- national repute. But an international reputation as a jurist does not necessarily signify a conspicuous influence upon the actual development of any national system of law, and a selec- tion made on such a basis passes over jurists who, upon all other grounds, are unquestionably pre-eminent. Lord Mansfield was one of the greatest jurists known to legal history, although his influence was exclusively national. The selection may also seem to lend' undue prominence to doctrinal and institutional writers as compared with jurists whose distinction was attained in the practical administration of justice. In countries where the formu- lation of legal principles has been mainly the work of judges, and largely embodied in judicial opinions, the conspicuous type of jurist is the judge. On the continent of Europe, however, legal development took another course, and legal literature, systemati- cally pursued as a branch of University study, obtained a direct and controlling influence upon the decisions of the courts. In jurisprudence, as in theology, all roads lead to Rome. The imposing fabric of Roman law received the impress of those qualities which have given it such enduring vitality during the early period of the Empire, when the Roman jurists were at once the makers, the expounders, and the administrators of law for the civiUzed world. Roman civil law had already been liberal- ized and vitalized by the jus gentium. The appointment of a prcetor peregrinus in 246 B.C. was designed to mitigate the exclu- siveness of the jus civile; it established a law for the alien, as such. But in the course of time the praetorian edict changed the form and spirit of the jus civile itself. Being in fact only that part of xxviii INTRODUCTION the Roman law which was in accord with the private law of other peoples, the jus gentium came to be regarded as the universal law of mankind, resting upon the nature of things and the general sense of equity which obtains among all men. The jurists who carried on the development of Roman law in succession to the praetorian edict had always occupied a unique position. While they gave advice to those who chose to consult them, and deUvered opinions on the issues involved in pending litigation, they neither prepared nor argued cases, and they served without compensa- tion. Controversies were decided at Rome by private citizens called jicdices, who were instructed in the law by the jurists, as jurors are instructed by judges in our tribunals. WTien at length the Emperor conferred upon certain jurists the right of respond- ing, these authorized jurists approached nearly to the functions of a modern judge. Still, although jurists occasionally acted as judices, their influence, prior to the second centmy, was indirect. With the estabhshment of a supreme court of appellate jurisdic- tion in the Imperial Auditory in the second century, jurists desig- nated by the Emperor to act in his name performed the duties of a judge in the modern sense. The resulting juristic literature continued to exert a controlling influence upon the development of the law until the Emperors began to interfere with the general effect of rescripts issued in particular cases. The last vestige of respect for judicial precedent was destroyed by Justinian's enactment that no judge should consider himself bound to follow any decision which he believed to be erroneous, for, it was an- nounced, justice must be administered according to law, not according to examples. The final form of Roman legislation, which gave to the civil law the shape in which it descended to the modern world, was the imperial ordinance. The number of leges and senatus con- sulfa was slight in comparison with the surviving body of law enacted by the Emperor as decisions or opinions in particular cases, as instructions to officials, and as public ordinances or proclamations . These vast legislative and judicial functions were discharged mainly by a council, called in Diocletian's time the Consistorium, composed largely of jurists, who acted as assessors to the Emperor in the hearing of causes and advised him in legis- lation. For centui-ies after the death of Justinian the Corpus Juris was ahnost lost to sight. Of the Gothic codes, which borrowed much INTRODUCTION Xxix of Roman law, but neglected its real spirit as f oimd in the Digest, Alaric's Breviary alone exerted wide influence. In the twelfth century the study of Roman law was revived by Irnerius. The Glossators aimed to explain difficult passages, and their work, as collected by Accursius in 1260, constituted the staple of legal learning for centuries. The Glossators were animated by the belief in authority characteristic of the Middle Ages, and their work is therefore without historical perspective ; but they ren- dered a service of great value in collecting and preserving the text of the great monuments of Roman law. The post-Glossators, or Bartolists, applied to the law the methods of the Schoolmen, developing the comparatively simple methods of their predecessors into a highly artificial system. While they contributed little of importance to the knowledge of Roman law, they undoubtedly aided in adapting it to a later age. To Alciati and Cujas we are indebted for the methodical presenta- tion of Roman law as a portion of classical antiquity. By direct- ing their attention to the sources, and studying them in their historical perspective, they contributed materially to a real understanding of the subject. The influence of Alciati and Cujas in the direction of historical and positive jurisprudence soon gave way, however, to the philosophical conception of natural law. Natural law is the term apphed to the Stoic conception of Nature as the embodiment of imiversal law. The development of the jus gentium brought Roman jurists in contact Avith Greek philosophy, and when at length, under Roman dominion, universal law and universal citizenship became established facts, there was a close approach in actual conditions to the Stoic theory. The conception of a law of Nature common to all men became a real influence in the hands of Papinian and Ulpian, whose opinions had the force of law throughout the civilized world. But in com- parison with the practical aim of the Roman jurists the philo- sophical imphcation was vague. In the Institutes jus naturale, as used by Ulpian, means the elementary instincts common to man and animals ; in another passage it is identified with the jus gentium, although elsewhere the two are contrasted. The jurists generally mean by jus naturale, not a positive law or custom, but a conception of ideal justice with which positive law should approximately harmonize. Its influence upon the civil law was, therefore, not so much in suppl5dng specific principles of adjudication as in the direction of simplifying and harmonizing XXX INTRODUCTION those principles.,.. It was not regarded as something superior to the jus civile, for it was founded upon the jus gentium and became vaUd and effective only when adopted as part of the jus civile. When, about the middle of the sixteenth century, the whole western part of continental Europe recognized Roman law, con- ditions were again favourable to the philosophical doctrine of natural law. The prevalence and power of Roman law was not derived from the sanction of any distinct authority. It was a common groundwork of ideas and method, standing towards the positive law of particular countries somewhat in the same rela- tion as the Roman doctrine of jus gentium to jus civile ; for, although Roman law was said to be the common law of the Empire, its actual application was subject to modification by the custom of the country. This supremacy of Roman law, not as a system actually in force, but as a type assumed by actual systems as their exemplar, although without correspondence in detail to any of them, inevitably led to reasoning from an ideal fitness of things and to the depreciation of positive authority. At length the distinction between positive law and theoretical rules evolved from assumed principles was almost lost to sight, and the idea, always latent in the theory, that human law which is not in har- mony \vith natural law is of no authority was \altimately employed in support of revolution. A positive conception of natural law, as distinguished from the purely negative conception of natural right, involves some demonstrable and authoritative source. The Stoics and the ancients generally derived natural law from the universal nature, Aquinas and the mediaeval theologians from the Divine nature, Kant and other modern philosophers from human natiu'e. Modern thought has rejected these bases, but the term survives. The fundamental idea which underlies the variety and apparent diversity of the applications of natural law is doubtless that of conformity with the nature of man as a rational and social being. This principle, which is the justification of every form of positive law, is fully recognized in English law under the name of reason. The process of constructing a system of jurisprudence which ought to be in force everywhere, but was not necessarily so any- where, was most fruitful when applied to a subject like inter- national law, which had no existing positive law. Finding that large parts of the field of international relations were not covered INTRODTJCTIOISr XXXI by existing custom, Grotius and his successors, seeking a basis for a system of international law, recurred to the law of nature as a law grounded in reason and valid for all mankind. Meanwhile, an entirely independent system of law had developed in England along lines which had nothing in common with Con- tinental methods. In England, the early development of a strong central authority impressed the law with a distinctive form and character. From an early time a powerful legislature made statutes binding on the whole realm, and the judgments of the King's judges were accepted not only as a decision of the case in hand, but as a declaration of the law. Hence, English law was eminently national, positive, and practical. Juristic speculation hardly existed in England before Bentham. Such approaches to it as might be discovered in the earlier literature belong rather to political theory than to jurisprudence proper, and even in the domain of public law rehance was placed upon precedents rather than upon abstract principles. The practical maxim that the test of law is to be found in its recognition by the courts coloured Enghsh juristic philosophy, and limited the conception of law to a definite set of rules administered by tangible authorities. The EngMsh school of jurisprudence, as stated by Hobbes and applied by Bentham and Austin, is the direct descendant of the empiricism of Bacon. The historical theory of law formulated by Savigny was one of the results of the reaction against the French Revolution. In opposition to the revolutionary tendencies of the natural law theory it set up, not the will of the sovereign, but the authority of the past. Law is not made consciously ; it is a growth, a creation of the collective national mind, interwoven with the national life and character, and is no more the creation of an arbitrary will than language or religion. With the historical jurists the type of law is custom, and historical continuity is an essential concEtion of healthy growth. The historical theory also represents a reaction against the analytical school, which regards legislation as the normal source of law. Later jurists, under the leadership of Ihering, have attempted a synthesis of the foregoing theories, at the same time pointing to the merits of a comparative method. Law is the product of conscious and increasingly determinate human mil. While it is undoubtedly an historical phenomenon, it is by no means exclu- sively a national product. Its history, like that of civilization in XXXU INTRODUCTION general, is a history of borrowings and assimilation. The justifi- cation of law as a human institution is expediency. Law is made for society, and must meet its actual needs. The prevalence at a given time of one or another school of jurisprudence is the outcome of historical conditions. But con- ditions change, and theories once regarded as final are found to be illusory or inadequate. Each of the theories of law — the philosophical, the analytical, the historical, the comparative — embodies a partial truth, and, as methods, each is in its place legitimate and necessary. All methods were used to some extent by the Romans without the formulation of any theory. Long ago Bacon pointed out the danger from merety Scholastic con- ceptions of law. On the other hand, a merely practical atten- tion degrades the science into a dry and unfruitful routine. The study of the philosophical and ethical foundations of law is of vital importance, but the ideal should be pursued, not as an abstraction leading to empty generalities, but for the purpose of realizing it in practice. The illuminating effect of the historical method is well shown in some of the judicial opinions of the late Lord Bowen, but in other hands it too often leads to mere anti- quarianism. The analytical method is essential to all clear juristic thinking, yet, pursued to the exclusion of other points of view, it begets abstract and mechanical formalism. The main- tenance of general principles is essential to the uniformity, cer- tainty, and impartiality of the administration of justice, but logical deduction from estabUshed rules is not always adequate to meet changed conditions. The rigidity and formalism which constitute the greatest defects of a system of case law can only be overcome by constant reconsideration of principles vnth refer- ence to the ends subserved. Legal conceptions should be re- garded as working hypotheses rather than as final truths. VAN VECHTEN VEEDER. THE GREAT JURISTS OF THE WORLD GAIUS If the traveller iii Northern Italy should feel a wish to escape for a moment from the atmosphere of ever-expectant attention that besets the eager sightseer on every side, he may, if he choose, have his way when he comes to Verona. Quitting the Cathedral by the west entrance, he may cross the little Piazza del Duomo to the Palazzo dei Canonici, the home of the Chapter library^ — a modest enough home, for all its grand name — and there, if he likes, he may leave the glare and noise of the streets, and the push- fulness of touts, behind him, and pass for a while into the dim, peaceful sanctum of scholarship . He will be received with kindly dignity by the courteous librarian — he will probably be the only visitor — and, on stating his wish to see the palimpsest of Gains, he will be shown, without further ado — it lies ready to hand — a strange-looking, time-stained, much-mauled bit of parch- ment. This curious document, with its words (a great many of them contractions) aU joined together and innocent of pimc- tuation, will probably convey little meaning to him, unless he happens to be an expert palaeographer. Nevertheless, it has a strange, eventful history to tell, and our traveller might do worse than listen for a few moments to its story in the peace of the old library, while without, on the one side, the sounds of the modern town's life pass muffled by, and on the other, not many yards away, the Adige — Virgil's "Athesis amoenus " — rushes joyously on its impetuous course, just as it did some 1,750 years ago, when Gains wrote law-books and taught law (we know not where), and when, some 300 years later, an industrious scribe made 1 2 2 GAIUS (we know not where) this copy of Gains 's most widely known work. Who, then, was Gains ? We know next to nothing about him personally. Where data are few, guesses are many. The very dearth of our inf orniation has produced an overwhelming volume of literature, a perfect riot of conjecture. We do not even know his name, or his birthplace, or where he Uved. Was Gains his nomen, or his cognomen, or merely his prsenomen ? The last is the most generally accepted view, but authorities have been found to champion each of the other alternatives. And if " Gains " was a prsenomen, what was his complete name, and how came he to be universally called by his prsenomen only ? Here, again, the guesses are numerous, and some of them utterly fantastic. Among the names proposed are Gains Pomponius, Titus Gains, Gains Bassus, Gaius Noster (as though "noster " were a proper name), Gaius LseUus Felix. Another conjecture is that his full name was G. Cassius Longinus, and that he was identical with the famous lawyer of that name who was Consul in a.d. 30, and succeeded Masurius Sabinus in the leadership of the Sabinian, or Cassian, school. In support of this theory it is pointed out that Gaius was admittedly a prominent adherent of the school mentioned, and, further, that of the only four passages in the Digest in which an author is cited simply by the name of " Gaius," three — one (Dig. 24, 3, 59) from Julian, and two (Dig. 35, 1, 54, and 46, 3, 78)from Julian's "prseceptor," Javolenus — prefer almost certainly to C. Cassius Longinus, while the fourth (from Pompo- nius, Dig. 45, 3, 39) probably does so too.^ From this it is argued that Gaius must have been the short name by which C. Cassius Longinus was generally known in the profession. This theory, however, cannot be reconciled with the evidence furnished by Gaius 's works as to the dates at which he lived. From that evidence it is abundantly clear that the author of the Institutes must have lived much later than a.d. 30. In order to get over this difficulty, it has been suggested that our Gaius, if not iden- tical with the leader of the Cassiani, was , at any rate, a descendant and namesake of his . But this theory is little more than a random guess, and is merely an attempt to explain why Gaius was called by his praenomen only— the idea, apparently, being that he was 1 There is stiU some doubt (assuming C. Cassius Longinus and our Gaius to be diiferent persons) to whioh of the two writers Pomponius's " Gaius noster, m Dig. 45, 3, 39, refers (see Roby, Introduction to the Study of Jus- tinian s Digest, p. olxxv ; Muirhead, Roman Law, second edition, p. 301 note 6) GAitrs 3 so called for short, in order to distinguish him from his supposed ancestor. Buschke has conjectured that Gaius may have been one of two jurists bearing the same nomen and cognomen, and differing only in their prsenomen, and that, in order to differen- tiate them, it became customary to call oUr Gaius by his prse- nomen. He offers, however, no surmise as to who Gaius's mys- terious namesake may have been. Dernburg has put forward a theory that Grains was simply an affectionate nickname given by students to a popular lecturer, and that the name studk to him ever after, both among members of the legal profession and in the book trade. Other writers, abandoning the search for the full name, have turned the single name to account in support of some theory concerning his personal history. Plain Gaius, it is said, must have been a man of humble position — a freedman, perhaps ; certainly he could not have held any important oi3fice. Mommsen uses the single name as an argument for his view (below, p. 5) that Gaius was a Greek provincial, the practice of caUing a man by his prsenomen being peculiar to Greek districts . The mystery is still further deepened by the curious fact — one of the many curious facts in the story of Gaius — that (apart from the doubtful passage from Pomponius in Dig. 45, 3, 39, above re- ferred to) not a single mention of his name occurs in any legal writer or historian, whether contemporary or other, during a period of some 250 years from his death — not even in Ulpian's Liher singularis regularum, where the resemblances with Gaius's works are numerous, and where one would naturally have ex- pected some allusions to the ear her writer . And yet, during those 250 years, Gaius's literary reputationwas steadily on the increase, and his name was becoming a household word wherever law was taught. Diomedes the grammarian, indeed, who lived towards the close of the fourth century, mentions him once ; but, as far as the law is concerned, the earliest references to him occur in Valentinian III.'s Law of Citations, of a.d. 426 (see below, p. 8), and in the Mosaicarum et Romanarum Legum Oollatio} Nowhere, however, is he spoken of otherwise than as " Gaius," and the riddle of his fuU name (if he had one) remains unsolved.^ 1 The date of the Oollatio is uncertain. Huschke assigns it to the end of the fourth century ; others think that it was later than the Law of Citations. Tit. xvi. 2 of the Oollatio contains an extract from Gaius's Institutes (book iii., 1-17). 2 On the whole question, see Professor Goudy s Appendix to the second edition of Muirhead's Roman Law, pp. 431-3. 4 GAitrS When we come to the question of Gaius's dates, we are on much firmer ground. The evidence on this point is ahnost entirely derived from his extant writings — his Institutes, and the ex- cerpts from his other works in the Digest — but, such as it is, it is sufficient to produce substantial agreement among the authori- ties. We are able, for example, to infer from a passage in his book on Trusts, which is preserved to us in Dig. 34, 5, 7, pr. — " nostra quidem setate Serapias, Alexandrina muher, ad divum Hadrianum perducta est cum quinque liberis quos uno fetu enixa est " — that he lived in the reign of Hadrian, and that at the time when this passage was written Hadrian was probably no longer ahve, it being the general, though not the invariable, practice of Gaius to prefix the word divus to the names of deceased Emperors only, and to describe a living ruler (if he gave Mm any adjective at all) by some such term as optimus or sacratissimus. We derive much assistance, again, from the various references in Gaius to contemporary senatusconsulta and Imperial laws, the dates of which we are able to determine from other sources. And whenever Gaius, in deahiig in extenso with a particular sub- ject, faUs to mention a recent alteration in the law — e.g. in his discussion of the law of cretio in Institutes ii. 177, he makes no mention of the change by Marcus AureUus referred to in Ulpian's Fragmenta (xxii. 34) — ^we have some reason for assuming that the alteration was made too late for him to take it into account. Of course, such facts as the absence of any reference in the Institutes to well-known enactments like the Senatusconsultum TertuUianum, Vellseanum, or Maeedonianum, can be explained on other grounds, and, in any event, allowance has always to be made for the many lacunae which stUl, unfortunately, mar the text of the Institutes. But, on the whole, the evidence for filing Gaius's dates is fairly satisfactory, and, accordingly, it is generally held that he lived in the reigns of Hadrian (a.d. 117-138), Anto- ninus Pius (a.d. 138-161), and Marcus Aurelius (a.d. 161-180)^ ; 1 One of these lacunae occurs in the very part of the manuscript where a discussion of the SCum TertuUianum might have been expected. The absence of any notice of these senatusconsulta and of other matters of importance to students, such as oommodatum, depositum, pignus, dos, is pointed to by Dernburg as evidence in favour of his theory that the Institutes were not published as a complete book, but were merely a collection of notes for lectures (Die Institutionen des Oaius ein KoUegienheft aus dem Jahre 161 nach Christi Geburt). 2 It is doubtful whether he survived into the reign of Commodus. A.D. 180 is the last date traceable in his life. GAITJS 5 that is, in the Golden Age of the Roman Empire, the age when its material prosperity and the efficiency of its administration were at their highest, and when the rapid growth and spread of Greek influences — ^which, as Huschke says, borrowing a simile from Cicero, from a tenuis rivuLus had become an abwndantissv mus amnis — -had produced a remarkable rise in the level of general culture, and a keen interest in art, poetry, and philosophy. Within the domain of law, the age in question covers a period of the most briUiant and fruitful literary activity that the world has ever seen. Midway in this period stands Gains. The great names of Celsus, Africanus, Pomponius, and, above aU, Salvius Julianus (the last jurist cited by Gains), already belong to the past. The bearers of stiU, more illustrious names — Papinian, Ulpian, Paul — had yet to come. The next question — ^the question where Gains lived, and what his precise vocation was — raises difficulties of a formidable kind. There are two main theories in the field, associated with the honoured names of Theodor Mommsen and Eduard Huschke respectively,^ and each of these theories has its variations in matters of detail. According to Mommsen, Gaius was by birth a Greek, and by profession a jurist, who wrote and lectured on law at Troas, an important town in the Province of Asia (though nothing is known of any law-school there), and one of the three places "iuris Italici " mentioned by Gaius himself in Dig. 50, 15, 7. The fact that he was called by his prsenomen only is pointed to as evidence of his Greek origin (above, p. 3). He was, obviously, also familiar with the Greek language and with Greek Uterature and history, for he quotes Homer and Xenophon and the laws of Solon. He always shows a keen interest in the laws of foreigners — he wrote a commentary in thirty books on the Edictum Provinciale,^ the only book of its kind that is known to us — and makes specific mention of the laws of the ^ The arguments in favour of Mommsen's theory, and Husohke's grounds of objection, are conveniently summarized by Dr. Roby {op. cit., p. clxxv ^.). 2 What this Edictum Provinciale precisely was is a highly controver.sial question, as to which reference may be made to Dr. Koby (op. cit., p. olxrviii f.). Some hold that it was the traditional common part of the several provincial edicts. Mommsen, however, maintains that a general edict applicable to all the provinces was an impossibility, and that each provincial edict was only valid in the province for which it was promulgated, though he agrees that the substance of the various edicts may have been, to a large extent, the same. The edict commented on by Gaius must, he thinks, nave been the Edictum Asiaticum. Huschke, however, points with much force to the great improbability of any jurist composing a work in thirty books on the edict of a single province. GAITTS Galatians (Inst. i. 55) and the Bithynians (i. 193), both of them peoples living in Asia Minor. He was not, according to this theory, a practising lawyer, but devoted himself entirely to literary work and lecturing. A large number of his works have undoubtedly a definitely educational aim. It is almost certain— and here Mommsen has the great weight of authority on his side that he never had the ius respondendi, the right, that is, to pronounce binding legal opinions ex auctoritate principis. This explains why, among his numerous works, there is no trace of any collection of responsa (authoritative opinions) or of qucestiones (practical cases), the liber de casilus (from which there are seven extracts in the Digest) being apparently concerned, not with actual cases, but with hypothetical points and examples. If Gaius had ever enjoyed the ius respondendi, and the prestige which such a privilege would naturally have conferred upon him, the fact (already adverted to) that he is not mentioned by a single legal writer for some 250 years after his death would be simply unaccountable, especially if, as some think, he Hved and practised at Rome. If, on the other hand, the true view is that he was a professor of law in a provincial town in Asia Minor, not possessing any recognized status among the law-making agencies of his time, and cut off from the main current of contemporary legal life, the fact in question — though still somewhat remarkable in view of the immense popularity that subsequently fell to his share — becomes, at any rate, explicable.^ True, he took a vigorous part in the controversial warfare of the schools, and frequently, in the Institutes, ranges himself on the side of the Sabinians (nostri prceceptores), in opposition to the Prcculians, the diver see scholce audores. But he was the last eminent jurist in whom this antagonism of the schools appears, and it is quite possible that the controversial spirit lingered for some time in the provincial law-schools long after it had become, in M. Girard's words, "une habitude demodee " in the capital. As against Mommsen's theory, Buschke and others point out, with regard to Gaius's name, that there are many instances of undoubted Romans being called by their prsenomen only — e.g., Appius (Claudius), Servius (Sulpicius), and Sextus (Pomponius), 1 The language used by Gaius in a passage from his commentaries on ' Edictum Provinciale (Dig. xi., 7, 9) — "miror quare constare videat the videatur, neque heredi neque in heredem dandam hano actionem" — is certainly, as Puohta points out. suggestive of the attitude of a man who considers himself as standing outside a charmed circle, and ventures, " with deference," to criticize a ruling of the official authorities. GAITJS 7 and some Emperors, such as Titus and Marcus — and, furthei', that there were other Greek writers who did not limit themselves to a Roman prsenomen. And as for Gaius's references to the Greek language and Greek literature, Huschke, while not con- cerned to deny that Gaius may have been a Greek born in a Roman colony in the East, urges with some force that, in view of the very general spread of Greek culture at that time, it would be rash to draw any such conclusion from those references alone. Unlike Papinian and Modestinus in a later age, Gaius never wrote any of his works in Greek. The Greek quotations (e.g. the passage from the Iliad vii. 472-5, quoted in Inst. iii. 141) were, it is suggested, for the most part the merest commonplaces of the legal controversies of the time. As for foreign laws, they had received attention from other jurists besides Gaius, and the spread of Greek influences and the increased intercommunication between the different parts of the Empire — Hadrian, the " travel- ling Emperor," was nicknamed " Grseculus " by his contempor- aries — ^had produced a very widespread interest in what we should call comparative law. Up to this point the criticisms of Huschke are effective enough, but when he comes to the construc- tive part of his argument the result is less satisfactory. In two passages of the Digest Gaius gives as an example of a "condition " "si navis ex Asia venerit " ; in another, "si ex Africa venerit." In Dig. 45, 1, 74, he mentions, by way of illustration, "fundus Tusculanus " and "vinum Campanum." In Dig. 45, 1, 141, 4, he has " si inter eos qui Romse [not Troade] sunt, talis fiat stipu- latio : hodie Carthagine dare spondes 1" It is suggested that examples like these — -and there are others — would never occur to a writer not living in Rome. Huschke is fain to admit that this is a somewhat frail argument. "These things," he says, " taken by themselves, prove little," though he ventures to think that, "taken together," the points urged by him "have great weight in refuting " the rival theory. His conclusion is that a lawyer so well abreast of the legal Imowledge of his time, and so ' keenly interested in the controversies of the schools, could not possibly have lived "in aliquo provinciarum angulo abditus," but must have exercised his profession at the centre of the legal world. Of the two theories, Mommsen's is perhaps the more plausible and ingenious, but, after hearing the advocates on each side, it is difficult to gainsay the conclusion of Mr. Roby (op. cit.. 8 GAnjs p. clxxvii) that neither party has proved his case, and that the problem as to where Gaius lived and wrought still remains unsolved. Gaius was a proUfic -rn-iter. The Florentine Index (which Mill be found prefixed to Mommsen's edition of the Digest) enumerates thirteen works, but the list is not exhaustive. In the Digest he is represented by 535 excerpts, as compared with 601 from Papinian, 2,081 from Paul, and 2,464 from Ulpian. Only the most important of his works need be specifically mentioned here. Besides the commentary on the Edictum Provinciaie already referred to (p. 5), Gaius wrote a commentary on the Edictum Urbicum (of which, according to the Index, only ten boolis were found) ; six books on the Twelve Tables (he was the only post- Augustan jurist who was sufficiently interested in this ancient statute to write a commentary on it) ; fifteen books on the Leges Julia et Papia (representing the modern ius civile) ; a book de casibus (above, p. 6) ; and several monographs. The most famous of his works was probably the Rerum cottidianarum, sive aureorum, libri vii., in which he discussed — more fuUy than in the Institutes, but on similar lines — a number of " everyday " fundamental legal truths. The sub-title of the work — awea, the golden book (which was no part of the name given by the author himself) — bears testimony to the admiration which sub- sequent generations felt for the book. But of all Gaius's works, the one that possesses the greatest interest for us is, of course, the Institutes, or, to give it its fuU title, Institutionwm iuris civilis commentarii quatuor, and it is with the romantic history of this work that the story of Gaius is, for us, inseparably bound up . Its success was remarkable . It gr aduallj^ established itseH as the standard textbook for students of Roman law, and maintamed that position for upwards of 300 years. Other eminent jurists wrote Institutiones — CaUistratus, Marcianus, Florentinus, even Paul and Ulpian — ^but none of them was able to dethrone Gaius's work from the proud place it had secured for itself. The Institutes and Res coUidiance were perhaps the first of Gaius's writings to achieve definite recognition among lawyers ; but as his reputation grew, his other works came to enjoy an equal authority. Accordingly, when Valentinian III., in A.D. 426, enacted his Law of Citations — thereby, most prob- ably, giving effect to a recognized practice of the coiirts and the legal profession — he included Gaius among the five select jurists GAIUS 9 all of whose writings were to have binding authority (universa scripta firmarmis), adding, in regard to Gains (so as to remove any doubt that might arise from the fact of his never having had the ius respondendi), "ita ut Gaium quae Paulum, Ulpianum, et cunctos comitetur auctoritas, lectionesque [ = passages] ex omni eius opere recitentur." Thus it came to pass that Gains, the unpatented jurist, the humble professor of law and writer of books, the theoretical lawyer — a mere provincial, maybe — ^whose works no contemporary or subsequent legal writer or historian deemed worthy of citation, was ranged side by side with the illustrious names of Papinian, Ulpian, and Paul, and firmly established among the coryphaei of the law . And when, about a century later , Justinian, a few years after his accession in a.d. 527, took his great work of codification in hand, and decided to preface his Code with an introductory treatise of an elementary character, it was to the Institutes and Res cottidiance of Gains that he looked for a model of what such a treatise ought to be. Justinian's Insti- tutes, composed, as he teUs tos (Constitutio Imperatoriam), "ex. omxdbus antiquorum institutionibus et prsecipue ex commen- tariis Gaii nostri tam institutionum quam rerum cottidianarum aliisque multis commentariis," follow very closely the order and arrangement of Gaius's work, and are, indeed, to a large extent a transcript of it, the obsolete and historical portions being omitted, and account being, of course, taken of the changes that had occurred in the law. A glance at Gneist's Syntagma, in which the two Institutes are printed in parallel columns, wiU satisfy anyone as to the heavy debt which Justinian's compilers owed to the older writer. The Institutes of Justinian — in other words, the revised Institutes of Gaius — ^were officially promulgated on November 21, a.d. 533, with statutory force for the Eastern Empire as from December 30 of that year.^ Meanwhile a different fate had befallen Gaius in the West. The Western Empire, shattered by the German tribes, had for- mally come to an end in a.d. 476. In the German kingdoms which were founded on its ruins the system of personal laws prevailed. The Roman section of the population thus continued to be governed by Roman law. But Roman law had become * The Eastern Empire did not at that time include Italy itself. The Code was not introduced into Italy till after the reconquest of that country by Justinian in 553, but it maintained itself there even after the further separation from the Byzantine Empire which took place not long after Justinian's death. 10 GAitrs obscured and corrupted during the turmoil of the preceding half- century, and some authoritative statement of its provisions was urgently called for. As in the East, so in the West, the spirit of codification was in the air ; hence the various Leges Romanm Barbarorum (i.e., records of Roman law for the use of the Roman population in the German kingdoms) that came into being early in the sixth century, or, roughly, about a generation before Justinian's legislation. Of these by far the most important, both on its own account and by reason of its connexion with Gains, is the Lex Romana Visigothorwm, or Breviarium Alarici, compiled m a.d. 506 by order of Alaric II., King of the Visigoths, for the large Roman population of France and Spain. Like Justinian at a later date, the German King decided to introduce his code with a short elementary treatise ; and, like Justinian again, he pressed Gaius's Institutes into his service. The first three booli of Gaius were condensed into two , and the fourth (on actions ) was omitted altogether . The historical and controversial parts were struck out. This is the so-called "West-Gothic Epitome of Gaius." As edited by Alaric's commissioners, it was thought intelligible enough without the aid of an interpretatio such as the other parts of the Breviarium were supposed to re- quire. As a statement of Roman law, Alaric's code isall not bear comparison with Justinian's. The Roman law there set forth is a rude, fragmentary, barbarized Roman law. The writings of the great jurists, out of which the Digest, the most valuable part of Justinian's Code, was composed, were beyond the comprehension of Alaric's compilers. Such as it was, how- ever, it became the standard source of Roman law for Western Europe, and maintained that position all through the first half of the Middle Ages. In the East, during the same period, Jus- tinian's Code, enacted twenty-seven years later, held undisputed sway. During the twelve centuries and more that followed the reign of Justinian, the history of Gaius and his works is merely part of the history of Roman law in general. The first five centuries of this period were years of more or less complete legal stagnation. In the East an age of ste dy decay set in. Justinian's Code was continuously pruned down and attenuated into a series of ' ' epitomes of epitomes ." In the most successful work of this class — the Hexabiblos of Harmenopulus, of a.d. 1345 — a queer jumble of a compilation that managed, somehow, to survive the wreck GATcrs 1 1 of the Eastern Empire, and actually to obtain statutory force for the kingdom of Greece in 1835 — Gaius is jauntily referred to as " the chief of the wise men who added other laws and actions [to the laws of the Twelre Tables]." In the West the period in ques- tion was one of dire disorder and confusion. Triie, the study of Roman law never completely died out, and in Italy itself the traditions of Roman law showed a marked vitahty. Neverthe- less, for a long period Roman law, imperfectly apprehended as it was, led a precarious existence, and was increasingly exposed to the risks of corruption and mutilation.^ When at last the clouds lifted ; when Western Europe, confronted with the task of dis- covering afresh the very elements of law and political order, was beginning to find herself again ; then it was that the immense intellectual force of Roman law — the Roman law, however, of Justinian's Code, not the barbarized versions of the Leges Romance — asserted itself with such striking results During the eleventh century the great revival of the study of Roman law took place, and the fruitful epoch of the Glossators commenced. Roman law was now launched on its triumphant career in Conti- nental Europe, and in this triumph Gaius bore no inconsiderable part — ^not, indeed, through the Institutes directly (for they, in their original form, still lay buried in an obscure library), but, in the main, through such parts of his works as Justinian's Code had preserved. So far as any distinct influence can be assigned to Gaius among all the great names that figm-e in the Digest, such influence is all in favour of orderly classification and system. It may, perhaps, be putting Gaius's claims a little too high to say that he has " supphed the ground-plan for all modern Emopean codes " (Ilbert, Legislative Methods, p. 15) ; but it is quite true that, thanks to his keen sense of order and method, he has exer- cised a very definite influence on the shape which some of the most successful modern codes have assumed, notably the French Civil Code of 1804, itself the model for a number of subsequent codes. And it was just some twelve years after the enactment of the ^ A striking illustration of the low intellectual capacities of the ^e is furnished by the Lex Romana Curiensis, which at the same time affords us a very quaint glimpse of our author. The Lex Curiensis was a statement of legal custom drawn up by certain judges and ecclesiastics of the Grisons for the Romance population of the district. In the course of their labours the compilers were rash enough to attempt to quote Valentinian's Law of Citations. The result was lamentable. The law itself was misunderstood, and mutilated beyond recognition, and among the jurists named at the head of the quotation Gaius figures as " Gagius," in company with Scajvola disguised as " Soifola " (Vinogradoff, Roman Law in Medimval Europe, p. 13). 12 GAIUS Napoleonic Code that the strangest of the many strange inci- dents in the story of Gaius occurred, and the original text of the Institutes came to hght agaia. Thus we come back to Verona, and the Palazzo dei Canonici, and the queer, tarnished document before us. Somewhere in the early Middle Ages a pious scribe, being miiaded to record the epistulcB of St. Jerome, and being unable or unwilling to pur- chase the necessary clean parchment for the purpose, succeeded in getting hold of a piece of parchment containing some writing which to him, if he could read it at all, seemed doubtless of trifling value compared with the epistles of his saint. Having procured his parchment, he set to work to prepare it for receiving the new writing. The first thing to do was to expunge the old writing, which happened to be the text of Gaius 's Institutes. Our scribe seems to have tried washing and bleaching, and, where the old characters were too stubborn, pumice-stone, or a fUe, or a knife, was resorted to. Having cleared the ground satisfactorily to himself, he proceeded to superpose the new writing directly on the old, and so precious was the parchment that 60 out of a total of 251 pages had to be written over twice (codex bis rescriptus). By some accident one leaf — pp. 235 and 236, containing §§ 134- 144 of the Institutes — became detached from the rest, and thus escaped the attentions of our scribe. This leaf was discovered at Verona by Scipio MafEei, the Itahan author and scholar, who published its contents in his Istoria teologica in 1740. Ma£fei recognized the likeness of the fragment (which is mainly concerned mth interdicts) to Justinian's Institutes iv. 15, but he thought it was merely a compendium of the latter work by some later jurist. He did not suspect its connexion with our palimpsest, though he had noticed that the manuscript of St. Jerome's letters was a codex rescriptus. The first to identify Gaius as the author of the writing on the stray leaf was Haubold, in his Notitia Fragmenti Veronensis de Interdictis, published in 1816. It so happened that in the very same year, but before the pubhcation of Haubold's Notitia, Niebuhr, while on his way to Rome as Prussian Minister to the Apostolic See, spent a couple of davs at the library in Verona, dxuring which he examined some manu- scripts, including om- palimpsest. He evidently suspected that something of interest might be formd under the letters of the saint. An infusion of nut-galls which he was allowed to apply to the ninety-seventh leaf of the obUterated writing enabled him to GAitrs 13 decipher the contents of that leaf, which he took to be part of a work of Ulpian's. He communicated the result of his examina- tion to Savigny, who at once recognized the manuscript as a work of Gains. The whole story was told by Savigny in the Zeitschrift fur geschichtliche Bechtsmssenschaft, vol. iii., p. 129 ff., where that learned writer put forward the conjecture, fully verified later on, that the text was that of Gaius's Institutes, and that the detached leaf had formerly been part of the manuscript. The subsequent story of the manuscript, which probably dates from the fifth century, will be found in Professor Muirhead's Roman Law (pp. 308-10), and in the Introduction to Mr. Poste's edition of the Institutes (fourth edition, pp. Iii, liii), and it is not neces- sary to repeat it here. It may not, however, be out of place to pay a tribute of admiration, on the one hand, to the patience and single-minded devotion with which a number of learned men apphed themselves to the infinitely laborious task of deciphering this obscure and mutilated text } and, on the other hand, to the pubhc-spirited action of the Royal Prussian Academy of Sciences in first despatching its commissioners to prepare a transcript of the manuscript, and in publishing the first edition of the Insti- tutes in 1820, and subsequently, after the appearance of many intervening editions,^ in enabling Studemund to produce in 1874 his magnificent facsimile of the text {Apographum). If we can now pride ourselves on possessing a fairly complete text of the Institutes — a completer text, in fact, than that of any other work by an ancient legal writer^ — ^it is to the efforts of these able scholars and to the enterprise of the Prussian Academy that we owe so splendid a result."* The Institutes, as is well known, are an elementary textbook of Roman private law, dealing partly with legal doctrine and partly (and, fortunately for us, fairly liberally) with legal history. ^ May an amnesty be accorded even to the over-zealous Blume, whose disastrous chemicals destroyed more than they saved 1 2 See Muirhead {op. cit., p. 310, note 6). ^ About one-thirteenth still remains undeciphered, haU of which belongs to book iv. In the original manuscript three leaves are missing in the middle. The first of these can be to some extent supplied from the West-Gothic Epitome. A kind fate has preserved the contents of the second in the Collatio (above, p. 3). The loss of the third is most regrettable, as it probably contained some much-needed additional information about legis actiones. * A palimpsest discovered by M. Chatelain at Autun in 1898 (the so-called " Autun MS. of Gaius ") was at first thought to be another copy of Gaius's Institutes, but proved, on closer examination, to be merely a para- phrase of that work (Girard, Manuel elementaire de Droit Eomain, third edition, p. 66, note 1). 14 GAITJS The term Institutio was apparently borrowed from the writers on rhetoric, who used it to describe a book designed for the instruction of students [cf. QuintUian's Institutio Oratorio). Gaius's work was, so far as we know, the first to appear under this name, and, indeed the first of its Mnd generally, in the history of Roman legal literature. It exhibits very clearly our author's two most sahent characteristics — lucidity of expression and orderliness of arrangement. The style throughout is neat, vigorous, precise. The points are stated tersely and accurately. There is no rhetoric, no redundancy. And the whole scheme of the work is carefully thought out and skDfuUy executed. With Gaius the love of systematic arrangement and definite classifica- tion was almost a passion. It seems to pervade the whole range of his work. He sought, as Cicero said of his friend S. Sulpicius Rufus, to treat law " with the hand and mind of an artist." It was his constant endeavour to reduce the whole domain of law and its several provinces to an orderly system. It was character- istic of him that, when he wanted to write on case law, he did not foUow the prevailing habit of compiling an imdigested collection of qucEstiones (p. 6) of the type of the various books Ad Sabinum — deliramenta Masuriana, as Pronto, the orator, contemptu- ously called them — but elected to proceed by way of critical notes on Q. Mucins Sceevola, the famous contemporary of Cicero, whose glory it was to be the first methodizer of Roman law, the man who "ius civile primus constituit generatim." It may well be that the main lines on which the Institutes were planned were not altogether of Gaius's invention, but rested largely on the tradi- tions of the schools. That could hardly be otherwise. A treatise that holds its own as a standard legal textbook for several cen- turies does not spring complete from the brain of any one man : it necessarily presupposes a great deal of detailed preliminary work. But whatever the extent of Gaius's indebtedness to his predecessors may have been, to him belongs the credit of having, by a wise and discriminating use of his materials, and by a keen sense of proportion in the ordering of them, presented the world with a textbook of law to which, in the words of Mr. Bryce {Studies in History and Jurisprudence, vol. ii., p. 512), "we have nothing comparable." The persistence with which the praises of Gaius have been simg, and the undiscruninating admiration with which his virtues have been extoUed, have produced in recent years a certain amount of GAitrs 15 depreciatory reaction. It may be true, too, that the curious and dramatic circumstances in which the Institutes came to life again (at the very moment when the historical school of law was rising into prominence) have "led to Gains 's elevation to a higher pin- nacle of fame than his actual merits altogether warrant " (Muir- head, p. 302). But there is no reason why his virtues should be exaggerated or his shortcomings denied. Gains cannot be said to be a great creative lawyer of the type of Julian or Papinian, though it is only fair, in this connexion, to remember that we do not possess any large work of his in a complete form that would give him an opportunity of displaying wider constructive powers. It may be that he is not a profound or erudite writer. Some of his classifications may be open to objections. His historical state- ments may not always bear the test of modern scientific criticism, as Kvmtze, his chief assailant, seems to think they ought to do. His etymologies are as naive as most of those of his age. Even his lucidity may be an overrated quality ; for has not lucidity been described as the negative virtue of mediocre minds ? But all this means nothing more than that he had the defects of his qualities and some of the defects of his time. Even after every deduction has been made, there remains a solid residuum of sterling merit which entitles his Institutes to take rank as one of the most valuable and important works in the whole range of legal literature. The discovery of the Veronese palimpsest may not have opened " a new epoch in the study of Roman law," and the "revolutionary " effects of the discovery may not have been so far-reaching as some writers have alleged. Nevertheless, it would be chm-hsh indeed to refuse our meed of gratitude to Gaius, both for what he has done for us, and for the way he has done it — that is to say, both for the wealth of legal and historical material he has opened up to us, and the flood of light he has thrown on so many dark places in the history, not only of Roman law, but of human institutions in general (and more particularly on the obscure early history of legal procedure) ; and also for the masterly simplicity, the deftness and finish, the "intellectual urbanity,'"- with which he has accomplished his task. Ihering teUs us {Scherz und Ernst in der Jurisprudenz, ninth edition, p. 139 ;^.) how once, when he was pondering the problem of v^ucapio pro herede lucrativa, it occurred to him that it might be useful if he could cross-examine Gaius on a few passages from 1 Bryce, op. cit., p. 198. 16 GAurs his Institutes bearing on the subject (ii. 52-58; iii. £01). Be accordingly probeeded, there and then, to summon the ghost of Gaius from Orcus. In the midst of the clouds of cigar-smoke that enveloped the professor there appeared a strange figure of a man, taU, shrivelled, slightly bow-legged, with freckled brow, and the general air of a schoolmaster. This was Gaius. It may well be that many a student of Roman law, worried by what appears to him the author's inordinate deUght in the antiquities of law, in the laws of Latins and foreigners, in subtle distinctions between different kinds of legacies, in the cretionum scrupidosa solemnitas, has, in his first struggle with the Institutes, uncon- sciously formed a similar image of Gaius in his own mind, just as many a student of English law, repelled in his first wrestlings with the Lectures on JurisprudeTwe by the merciless iteration and the hammer-Hke irresponsiveness of Austin's style, may have gleefully recognized the aptness of Carlyle's thumbnail sketch of the "lean, grey-headed, painful-looking man, with large, earnest, timid eyes, and a clanging, metallic voice " (Eroude's Life of Carlyle, 1795-1835, vol. ii., p. 194). But in one case, as in the other, further study may lead to a revision of the first impression. The reader of Austin will come to recognize that there is more in the Jurisprixdence than a tiresome dogmatism and a parched style of writing. In the same way, if the student of Roman law carries his labours a little farther, he may find that there is a good deal more in the Institutes of Gaius than a mere dryasdust antiquarianism. When he comes to the Digest, it may happen that, after a hard struggle with a passage from Julian or Afri- canus (" Africani lex, ergo difficilis ") or Papinian, he will greet with no small pleasure the sight of the plain five-lettered name at the head of the next excerpt, weU knowing that, whatever the point to be dealt with, he Avill be siure to find a model of terse and lucid exposition. He may then, perhaps, form a different pictvue of our author — -the picture of a kindly, alert, keen-faced man, neat and tidy in his person (was it not he who condenmed the practice of plunging into one's subject without orderly introduc- tion, "iUotis, ut ita dixerim, manibus " 1 Dig. 1, 2, 1), quickly responsive in his sympathies, readily appreciative of others' difficulties — the picture, in a word, of a born teacher. May it not perhaps be that this is a truer likeness of " Gaius noster " than the whimsical figure of Ihering's smoke-dimmed vision ? PAPINIAN Connection with Septimius Severus. — ^The full name of this jurist appears in Justinian's Code, and in a quotation (from Paulus) in the same emperor's Digest, as ^milius Papinianus. In the time to which he belonged no trustworthy inference as to ancestry can be drawn from these two words. There is sufficient evidence to show that he was a Ufelong friend of the Emperor Septimius Severus, with whom, according to one story, he was connected by marriage, through Severus' second wife. An interesting connection, if true : for this was that famous Julia on whom Gibbon passes such a warm, and questionable, encomium at the beginning of his sixth chapter. For the scandalous part there seems to be little authority but a cock-and-bull story retailed by the omnivorous Dio ; of her strange haK-Jewish beauty and imperious ambition we have some record, in the likeness on the empress's coins and the newly assumed title " Domna " — best explained, it would seem, by the literal " Lady." Papinian, therefore, may quite possibly have been a native of Syria — ^the empress was from Emesa — and come as a provincial to the study of Roman law. To this effect his omission of the regular style — divus — ^for deceased emperors has been remarked, in his earlier Qucestiones. It has been suggested that he may have been at one time a lecturer at Berytus ; and on his whole career, Mommsen dubs him "in thought and speech the least Roman of the Roman jurists." Possibly we may credit his Syrian origin with the greater kindliness and the wider humanity which he certainly does seem to introduce into the strait-laced logic of his predecessors — such, for instance, as his "leader," the difficult Cervidius Scaevola. Whether actually pupils of Scsevola or not, Severus and Papinian are stated to have made their debut as coasulting counsel and teachers of law (professio) iinder the auspices of this jurist, who is a connecting-link between those of the Antonine period and the last great group — Papinian, Ulpian, and Paulus. 17 3 18 PApmiAK The above statement (of Spartianus) is the earliest historical notice of Papinian, whom we may infer, if contemporary with his friend the future emperor, to have been born about A.D. 146. For a late fabrication about his parentage see below (p. 21). He succeeded Severus, as we learn from the same authority, in the office of counsel to the Piscus — sometimes, I think rather inaccurately, translated Privy Purse. It is not, however, my business here to investigate the constitutional position of the Fiscus and its gradual approximation to, or absorption of, the State Treasury. The specific office of advo- catus fisci, which probably originated under Hadrian, must have had a large and increasing sphere of operation in the way of claims to bona damnatorum, vacantia, and cadvxxi. We next find Papinian appearing — ^probably, as Karlowa suggests, by appointment of his friend Severus, who became emperor in a.d. 193 — ^in the position of magister libdlorum or a libellis. This office had no doubt very largely to do, as Momm- sen shows, with petitions for admission to equestrian or sena- torial rank, and the investigation of sufficiency of means in the appUcant. One is tempted to translate its style "Master of Petitions," and to think of our own old Court of Requests. But it must be remembered that the word Ubdltis was one of very wide signification, covering, it would seem, almost any apphcation to the emperor either from private persons or magistrates. Drafting of the Imperial Rescripts: "Prsefectus Prsetorio." — Dr. Roby, who uses the style " Master of Petitions," indicates, however, the probable influence of this officer upon what was practically legislation, in adding that the Imperial rescripts were framed by him. The one which is actually stated to have been dehvered " under Papinian's management of the libdli " (Dig. 20, 5, 12 pr.) is really an equitable decision, or rather rule, in contract law. And we should probably not be far out in attribut- ing to the magister Ubellorum a considerable part of the functions of our early chancellors and keepers of the Privy Seal, with a practical power of direct legislation which those officers did not possess. 1 Finally— perhaps, to adopt another suggestion of Karlowa, upon the fall of Plautianus, a.d. 203 — Papinian was raised to the position of Prcefectus Prcetorio (General of the Guard), which he retained tiU his death, or at least till the accession of Caracalla in 211. Whether his predecessor shared this office with col- PAPESriAN 19 leagues or not, Papinian would seem to have held it alone. Its original military character, though stUl subsisting, had un- doubtedly by this time become subordinate or overshadowed by a supreme civil and criminal jurisdiction, which its holder had acquired as the personal representative or delegate of the emperor. With the criminal law of the Roman Empire I am not now so much concerned as with the civil law and its various methods of development. One of these is to be found in the judicial de- cisions of the emperor or his delegate, and the general rules often coupled with them. A good instance of this supreme jurisdiction — or practically of legislation (for the case seems to be a hypo- thetical one, of the John Doe and Richard Roe kind) — -occars in the interpretation of a draft bond brought before Papinian in his Court as Praefect of the Prsetorium (Dig. 12, 1, 40). The " Qusestiones " and " Responsa." — But a more remark- able feature in the development of Roman civil law, and one with which Papinian was particularly connected, consists of the opinions given by licensed or 'patented jurists, whether in the consulting-chamber, the lecture-room, or the textbook. It is of this mode of development that I propose to speak more especially in what follows. The works of Papinian coming under this head are mainly his Qucestiones and Besponsa. The Qucestiones show in the first book some sign of that early, perhaps provincial, style above referred to, and may have been written before Severus' accession ; but the greater part of the work — e.g., Books 17-37 — obviously belongs to the sole reign of that emperor (a.d. 193-198). The Besponsa possibly begin under the joint reign of Severus and CaracaUa (198-211), but from Book 4 onward they are later than A.D. 206, a constitution of which year is therein discussed (Dig. 24, 1, 32 pr., 16) ; and the last five books (15-19) may have been written in the period between the death of Severus (Feb- ruary 4th, 211) and that of Papinian himself in the early part of the following year. Murder of Papinian by CaracaUa. — ^A certain amount of somewhat contradictory legend seems to have collected round the execution, or rather murder, of Papinian by CaracaUa, but the main facts are fairly established. He accompanied Severus to Britain, where he evidently became aware of an attempt made by CaracaUa to murder the emperor his father, though the 20 PAPINIAN language used by the latter does not, as I agree with Dr. Roby, amount to any imputation on the loyalty of Papioian himseM. I need not give Dio's story (1. 76, c. 14), in which the aged SeTerus is made to play the part of the Admirable Crichton to his un- worthy son, who does not, however, copy or anticipate the young Mantuan prince. It is perhaps worth remarking, by the way, that Zonaras, in his version of the story of Dio (1. 12, c. 10), written in the tweKth century a.d., gives the name of the Prsefect as Papianvs, thus furnishing a confirmation, which I do not remember to have seen noticed before, of the view now generally taken, upon the style of the Burgundian law-book, Papiani Liber Besponsorum (see Savigny, Gesch., ii., chap. vii. ; Brunner, Deutsche Bechtsgesch., i. 356-357, etc.). Severus died and was bm-ied, as Yorkshiremen hold, at York, in that mound which I have had pointed out to me, when a boy, under the odd title of Saint Severus' (sic) hiU. Then broke out at once the hatred of the brothers, or perhaps half-brothers (Spartianus, Severus, 20, 21 ; Geta, 1) — -at any rate, the hatred of CaracaUa for Geta — against which their father had uttered his last warning (Dio, 1. 76, c. 21), and which had been suppressed or ignored under the wise management of the empress (see the interesting coins in Cohen's Monnaies, iv. 100). For the pictur- esque details of their return to Rome, I must refer again to the sixth chapter of Gibbon, who gives them in fuU from Herodianus. The end of the story is the murder of Greta in his mother Julia's arms (Dio, 1. 77, cc. 1, 2), shortly followed by that of Papinian, who had been dismissed at the beginning of the reign, and was despatched by the blow of an axe. According to one account, after a hypocritical show of friendship towards him by Caracalla (Spartianus, CaracaUa, c. 3), Papioian's son, a Quaestor, was put to death at the same time, a fact which may possibly have con- tributed some part of PanciroUi's story, given below. Whether the great jurist was killed as an adherent of G«ta, or because he refused to defend the fratricide ; whether he met his fate as one would expect, in silence, or, as Spartianus says, forecasting a similar end to his murderer ; what truth or point there is in Caracalla's reported speech that the sword, not the axe, had been the proper instrument of execution — all this is matter of little concern to the present inquiry (Spartianus, Severus, c. 21 ; CaracaUa, cc. 4, 8 ; Dio, 1. 77, c. 4). It may, how- ever, be worth note to remark that the famous constitution of PAPINIAN 21 Caracalla, by which all freeborn persons in the orbis Bomanus were made Roman citizens (wrongly attributed in Nov. 78, 5, to Antoninus Pius), appears from Dio (I. 77, c. 9) to belong to this year, and not to be due to the foresight of any jurist or pohtieian, but to the craft of a tyrant, wishful partly to palliate his evil deeds by an ostensibly popular measure, partly to increase his revenue by the subjection of a large number of people to taxation from which they were previously free. PanciroUi (De Claris Legum Interpretibus, i. 55) gives a strange story of a silver urn found in the early part of the fifteenth cen- tury at Rome, purporting to contain the ashes of Papinian, and to have been dedicated to his memory by his father and mother, Papinianus HostDius and Eugenia GraciUs — ^the old, contrary to the natural order, mourning for the yoimg. Papinian is accordingly made to die at the age of thirty-six — -an age abso- lutely irreconcilable with the facts of his life as preserved by contemporary, or almost contemporary, historians. The story, therefore, is not even ben trovata, and only shows the special interest felt at the Renaissance in this great jurist. A forged urn may quite possibly exist in some collection, but I have not had leisure to trace it. The names of the parents are most probably pure invention. For the possible suggestion of part of this story by the death of the younger Papinian, see above. Papinian's Pre-eminence as a Jurist. — The encomiums passed on Papinian by historians of the time are very high, and not quite so vague as in other cases. He is the "asylum of right and treasury of legal learning " (Spartianus, Severus, c. 21) ; the one who " for knowledge and exposition of the laws surpassed aU Roman legislators {sic i/o/tto^era?) before him or after him (Zosimus, 1, 9). The repeated recognitions of his superiority over his peers by Justinian are, no doubt, attributable partly to the pre-eminence accorded Papinian in the Law of Citations (see below) : this latter is, however, in itself the strongest testi- mony. Modem writers on jurisprudence and legal history echo his praises, from the early times of the Renaissance to the present day. But I only wish here to call attention to one particular characteristic of Papinian, which is especially remarked by some of the latest authorities {e.g. Karlowa, Eechtsgesch., i. 736 ; Kriiger, Sources, French translation, 265 ; Sohm, Enghsh trans- lation, 2nd ed., p. 103). Papinian's special greatness, it is observed.Ues in his apphcation 22 PAPINIAN of theory. He teaches largely by concrete cases, but he ever strives to view the individual case with reference to its governing principle. His conclusions are, comparatively, very httle en- cumbered with particular circumstances, but are stated, as far as possible, in an abstract and general form, etc., etc. Now, this characteristic, though pre-eminent in Papinian, is more or less shared by all the great jurists of the Digest. It has to do with a peculiar, and, to my mind, a very advantageous, mode of development in Roman civil law — a mode of develop- ment which, as it is distinctly connected with the authoritative licensing or patenting of certain jurists, is best considered by a brief view of that difficult and interesting subject. It is not impossible that a system to which the Roman law owed much of its merit might have some lesson for us even at the present day. And although many points in its earher history are, and wiU probably continue to be, matter of dispute, that to which I particularly wish to draw attention is an ascertained fact, for at least as early as the time of Papinian.^ The " Prudentes " and their Hypothetical Cases. — ^The prudens of Roman law does not exactly correspond with any one of our recognized professional men. He was not a pleader, but rather combined the character of solicitor with that of equity draughtsman and conveyancing counsel, being consulted at his own house both by cHents directly and by their patroni, or pubhc pleaders. To these functions many, probably among the most active and able prudentes, added that of giving public instruction in law. They offered their services and leisure, to quote Pom- ponius' expression, as much to learners as to cUents. Thus, although their responsa were no doubt originally dehvered with regard to points actually in litigation, there naturally arose that framing or putting of hypothetical cases to which Sir Heru-y IMaine justly attributed, as a consequence, a special development of general rules or principles (see the latter part of chap. ii. in Ancient Law). This form of development may also be inferred on other grounds, partly philological, partly based on what we know of early prac- tice, and partly on the sadly scanty accoimts given by Pomponius 1 On the authorities for much of the following matter I must refer to Part II. chap. ix. of my own work, Practical Jurisprvdence, from which most of this matter is taken, with such revision as has been suggested by later reading. Reference is also made from time to time to the sections of Pom- ponius' Enchiridium, Digest, 1, 2, 2, which is our main authority on the subject. PAPnsriA^r 23 and Gaius, writing iinder Hadrian or shortly after, of a very im- portant accession of influence to some, at least, among the body of prudentes. During the republic the prudentes were simply teachers, textbook writers, or chamber counsel, without the necessity of any " call " or diploma. The profession was open to aU who had confidence in their acquirements ; they had no official position, and their opinions, in actual cases, were not binding on the judge, to whom they were communicated by the prvdens or quoted by the Htigant. These communications had the practical weight of their author's reputation — ^no more. Such, at least, was the state of things in the later republican Roman law. At an earlier time, it is held by some that the Pontiffs, or one of their number appointed for the year, had the power of dehvering opinions which were binding on the judex. But this is extremely doubtful, and it is more in accordance, both with a priori probability and the general testimony of our only authority, Pomponius, to regard the measure of which I have next to speak as no revival of an old principle, but the introduction of a new one by Augustus. The Emperor Augustus and Licensed "Prudentes."— It was by no means to the interest of that astute sovereign to leave entirely out of his own hands the influence exercised by leading prudentes upon the development of Roman civil law. Such influence was undoubtedly very great, operating through the current administration of justice, and its resultant rules of practice crystallized from time to time in the Praetor's edict ; although, as has been said, the opinion of the prudens on an actual case was not binding on the judex. It was most probably with a view of exercising some control over this influence that Augustus, ostensibly "in order to enhance the influence of the unwritten law," directed "that prudentes should give responsa on his (the emperor's) authority or guarantee " — which naturally became a subject of petition, as matter of privilege (Pomponius, § 49). Much question has been raised as to whether the intention was henceforth to prohibit unofficial responsa (that is, in actual cases) or merely to give special weight — most probably a binding character on the judex — ^to official ones. The latter is my own view, which seems to me somewhat confirmed by the subse- quently professed intention of the despot CaKgula to prohibit anyone from giving a responsum but himself (see below. I have adopted what I believe to be the better reading, in 24 PAPINIAN Suetonius, Cal. c. 34, "ne qui respondere possint prsster eum "). After the institution of these Ucensed or patented jurists, their responsa were regularly delivered under their seal, not, of course, to conceal the opinion from their consulter — I avoid the word client, more properly expressing the relation to a patronus — ^but to accredit it as coming from the particular counsel. On the manner of quoting counsel's opinion which previously obtained there is some difficulty in the interpretation of Pomponius (§ 49). I stiU venture to hold, as against Dr. Roby (Introduction to Digest, 102), that the ipsi spoken of are the consulters, not the prvdentes ; but, whoever it was that originally communicated the opinion to the judex, it is clear that he received it from the patented counsel under the latter's official seal. Whether, again, the celebrated Masurius Sabinus was the very first, or the first of equestrian rank, to receive the new distinc- tion, and at what exact time he received it, are matters immaterial to the present subject. I retain my opinion, in spite of Momm- sen's suggested emendation of Digest, 1, 2, 2, 48, that Sabinus was the actual first, and that the difficulties about his appoint- ment by Tiberius may be solved by supposing the appointment to have taken place about a.d. 12-14 (see Practical Jurisprudence, p. 295). For some time it would not appear that the privilege respondendi ex auctcn-itate princi-pis was granted very widely. The threat of the Emperor Caligula seems to refer to a class, but the class is probably that of consulting counsel in general. The Authority of the "Responsa": Hadrian's Rescript. — In the reign of Hadrian, however, the number of the hcensed prudentes was most probably increased and the authority of their responsa more clearly defined. The former point seems to me fairly deducible from the somewhat obscure jocosity of the emperor's reply, to a request by men who had held the office of Prsetor, that they might be allowed the right of response. This must clearly mean the licensed or patented position, whether that excluded the old practice or not. The reply, as reported by Pomponius (§ 49), was " that the position of adviser was not generally asked for, but volunteered, and that the emperor was only too well pleased if anyone had sufficient confidence in his own powers to train himseM to advise the pubHc." Whatever may be the precise meaning of this speech, a plurality PAPmiAN 25 of licensed counsel is clearly postulated in an actual rescript of Hadrian cited by Gaius (i. 7) as to the juridical effect of opinions delivered by jurists to whom the emperor has granted the /tis respondendi. If they all agree, such common opinion is to have the force of statute ; if they differ, the judex may foUow which he pleases. We have not, unfortunately, the ipsissima verba of this rescript, and it is quite allowable, on our information, to maintain that the powers which Hadrian originally intended to confer, or con- firm, were simply judicative, or practically judicative, on actual cases for which the licensed jurists had been consulted. The Testimony of Gaius. — On the other hand we have, in the first book of Gaius, written after the death (a.d. 138) of Hadrian (who is called divus in the passage referred to), and possibly, as some think, pubhshed after the death of Pius (a.d. 161), other testimony, of rather a significant character, as to the ultimate effect and the probable form of the responsa in question. Here we are told that they are among the permanent rules of law of the Roman people ; they are the sententice et opiniones of men who had a definite permission jura condere (Gaius, 1. 2, 7). This curious phrase is often explained with reference simply to the time of Hadrian (of whose rescript it probably formed no part) or that of Gaius. As a matter of fact it descended from repubhcan times. We find it, for instance, in Plautus' Epidicm (3, 4, 89, 90), written shortly after 195 B.C. The second old man of the play — a wise- acre after the style of our own Polonius — -has the name of being omnium legum atque jurum fictor (et) conditor." Condere " leges " is, of course, predicated only in joke, of a private individual ; condere jura was, as we shall see from another passage of Gaius (4, 30), a recognized function of the prudent in the system of the legis adiones. It is clear, not only from the natural meaning of the words, but from the manner in which they are used, by Plautus here and elsewhere, and by Gaius, that the phrase does not mean, as Austin and many later and better authorities take it to mean, judicial decision, but some work of non-judicial prudentes. It would also appear that jura must mean something more than an isolated opinion dehvered on, and confined to, a particular case. I adhere, therefore, to my view, previously ex- pressed in my Practical Jurisprudence, that the prudens spoken of as jurum conditor is so spoken of as framing statements or maxims of nonrstatutary law — ^law, that is, of custom or practice. 26 PAPINIAN The stage of legal proceedings at which these jura were employed, and their authority when so employed, varied for the time of the legis actiones, for that of the formulary system, and for that of the later empire, but their matter and form were probably determined by their earHest usage. The "Legis Actiones": Statement of General Principles. — There are, as is well known, such deplorable lacunae in our frag- mentary information as to the legis actiones, that some stages of the procedure must be matter of inference, to be based, of course, on common sense and what seems obvious necessity. As one of these inferences, I myself hold, with a fair number of good authorities, that under the old system, except in the legis actio per condictionem, there may have been in all, and must have been in some cases, a brief statement as to the specific kind or ground of claim, made before the magistrate {in jure), partly to enable him to decide broadly whether this claim came within the law or not, partly to constitute some degree of definiteness in the reference to the judex, arbiter, or centumviri. These state- ments I take to be the jura, or rather the raison d'etre of the jura, spoken of by Gains in i, 30, where he speaks of the nimia subtilitas eorum qui tunc jura condiderunt. They were brief allegations of legal principle, based, no doubt, as far as possible upon a statutory text, but also often, no doubt, including state- ments of law never embodied in statute, and sometimes infer- ences or generahzations entirely new. These were the subject- matter of legis actiones meaning what Muirhead terms " specific actions," as distinguished from legis actiones meaning generic modes of pleading — ^those specific actiones which Sex. jEHus, in his Tripertita (Pomponius, § 38), and other conditores jurum endeavoured, by more and more ingenious refinements, to adapt to new requirements less and less capable of being brought vmder the rigid old law. How hazardous became these subtle statements of law, as the opening claim, made oraUy and irrevocably by the party or his patronus, before the Magistrate ; how they came to be superseded by special statements of the case [verba concepta), capable oi amendment and mutual settlement in jure in the Magistrates' Court before they were sent down to the judex ; how, in fine, the legis actiones were replaced by the formulary system, it is not my business here to teU. My object is simply to point out a natural meaning of condere jura, which is accountable for in PAPINljm 27 the early system of procedure, and was presumably retained in the later. For there is no reason to beHeve that this " statement of general principles," which is properly indicated by the phrase, ceased to be employed by prudentes under the formulary system, whether in the building up of the reference to the judex or in the opinion read to him at the hearing ; while it was equally or more applicable, as we see from the evidence of extant writings, to the practice of the legal teacher instructing his pupils. Dual Capacity of the " Prudens " : Counsel and Teacher. — In fact, when considering their answers or opinions, we must never lose sight of the double capacity filled by almost every pritdens of eminence in the later republican and early imperial times. At first perhaps only a consulting counsel, he gradually became, almost more conspicuously, a teacher of law. His opinions were delivered, not only upon cases coming before the Courts, but upon questions raised in the Schools. And from this double position we find, as we might expect, in aU his dicta, even where opinions are given on a case and in no way systematized into an educational work, a generality and an endeavour to lay down principles which is as far as possible removed from the guarded barrenness of some EngHsh judgments (of all good judgments as represented by Austin) or a modern coimsel's opinion. This characteristic has been specially remarked, as we saw above, in the instance of Papinian ; but the same treatment, by other leading jurists, of cases whether actual or hypothetical, is very obvious in the numerous Responsa, Opiniones, Disputa- tiones, Qucestiones, etc., of the Digest — ^where, of course, the fact that all were ultimately turned into so many leges by Justinian makes no difference in the original character of the extracts themselves. Form of "Responsa" as General Maxims: Their Growing Authority. — ^With regard, then, to form, it is probable that the views even of contemporary jurists, consulted on an actual case sub judice, were stated rather in the shape of general maxims. With regard to ultimate e^ect, it seems likely that, even in Gaius's time, the conflict contemplated by him was possibly one between maxims dehvered at different times and cited to the judex for some case to which they had no original reference. The sententice et opiniones had assumed, in practice if not by legislative sanc- tion, a persistent authority, which in time communicated itself to other sententice and opiniones, never connected with actual 28 PAPINIAN cases at all. For, by the date of Constantine, it is certaia that such authority was enjoyed, not only by responsa to consultations or inquiries, but by the works in general of some at least among the hcensed jurists, that order having ceased to exist for nigh upon a hundred years. Hence it is that we find, in Justinian's Digest, so large an amount of matter quoted from treatises — - dogmatical, institutional, or exegetical — ^which are pure text- book law : general propositions not in the least resembling individual precedents, whether actual or hypothetical, nor hke answers to particular questions. I need not do more than refer to the unreasonable manner in which these general propositions are questioned or condemned by Austin (Lect. 37 ; see Practical Jurisprudence, p. 299), who forces them into his hidebound con- ception of case law. It is not my purpose, either, to enter here into the subject of precedents proper, in Roman law — into the influence, that is, which a particular judgment has, as in our law, upon similar subsequent cases. In spite of the oft-quoted passage in Cicero's Topica (5, 28), I venture to question whether res judicata had ever the exact meaning of an individual precedent. In the case of decisions, indeed, by the emperor, or the person to whom his supreme jurisdiction was delegated, a special principle of prece- dents ivas recognized, but with considerable variation, during the legislative period from Hadrian- — -possibly from the beginning of the empire — to Justinian. It was distinctly abandoned in a constitution of Arcadius and Honorius, a.d. 398 (Cod. Theod. 1, 2, 11), but finally recognized by Justinian in his Code (1, 14, l2pr.)A.T>. 529. Conflicts of Opinion and the " Lex Citationum " of Theo- dosius. — The remaining history of the sententice et opiniones prudentium is short and fairly clear : it contains, moreover, an interesting recognition of the superior merits of Papiuian. The unanimity of opinions which had been required by Hadrian, for bmding effect, naturally became more and more rare as the num- ber of such opinions increased. Accordingly, we find Constantme (in A.D. 321, 327) complaining of the never-ending contentimies prudentium — ^the authors mentioned being long dead — abrogating the notes of Paulus and Ulpian upon Papinian, but subsequently confirming all the writings of Paulus. These constitutions of Constantine were followed a hundred years later by the so-called Lex Citaiionum (a late designation) of Theodosius II. and Valen- PAPESriAN 29 tinian III. (a.d. 426). I give the main upshot of this enactment, avoiding its special diffictdties. It confirms the entire writings of Papinian, Paulus, Ulpian, Modestinus, and Gains, expressly giving the last-named author equal authority with the others. Vahdity is, at the same time, conferred upon the writings of a number of authors habitually quoted by aU the above-named five — among whom, we may remark, is included Sabinus, the first licensed prvdens. In case of a divergency or conflict, Papinian's view is to prevail over that of any one, but not two of the other writers ; the comments upon him being again formally deprived of weight, though an absolute authority is given to the " Sentences " of Paulus. Where two jurists equal in the scale conflict, the judge is, of course, to choose. This law is specially valuable as explaining difficulties which arise out of the list of authors quoted in Justinian's Digest. The collection purports to be made from the books of those old prudentes to whom previous emperors had given authority for compiling and interpreting laws (conscribendarum interpre- tandarumque legum, Const. Deo Auctore, § 4). Whatever condere jura originally meant, these words certainly indicate, for the subject-matter spoken of, generality of form and subsisting authority. The authors cited ought at first sight to be confined to the authorized or hcensed prudentes. They are, in fact, quoted as early as Q. Mucins Scsevola, who died 82 B.C., before Augustus was born. The presence, then, of this and other jurists who wrote before the licensing system is ac- counted for by their quotation in the writings of the five principal or, as they are sometimes called, academic authorities specified in the Laws of Citations. The same statute, it was remarked, expressly includes Sabinus, whom we should have expected to appear in his own right. This gives a strong reason for thinking that the opinions, even of the licensed jurists, were not intended to have a binding force as precedents or general rules before the time of Hadrian's rescript, if then. We may also infer from the language of the Lex Citationum that Papinian, Paulus, Ulpian, and Modestinus most probably did, and Gaius did not, belong to the privileged class. The " Digest " of Justinian. — The objections are obvious to such a mechanical or arithmetical estimate of opinions as that above described. Justinian accordingly converted all the passages which he embodied in his Digest into some many leges. 30 PAPINIAN and placed them on an indiscriminate level (Const. Deo Auctore, § 6). As this was to be henceforth the sole book of reference, contradictions were, of course, not to be admitted, nor obsolete matter (ibid., §§ 8, 10) — a direction only imperfectly carried out. There are, it must be admitted, irreconcilable contradictions in the Digest, which can by no sophistry be explained away ; which, on the other hand, give us, as marshalled by the date of their cited authors, many interesting examples of the gradual develop- ment which takes place in principles of practical law. The " Feast " of Papinian. — One last word as to Papinian. In the old course of legal study which obtained down to the time of Justinian, who remodelled it in accordance with his own codification, the students were first introduced to the special reading of Papinian's Res'ponsa in their third year, whence these third-year men were called Papinianistce, and kept a feast or high day in honour of their author (Const. Omnem, § 4). Justinian, in order to retain in part the old study of this year, and to keep ahve the respect due to that great name, contrived a somewhat artificial order and composition of the Books 20, 21, and 22, with which the Umbilicus, or central part, of his Digest begins. These books are accordingly called by certain anonymous annotators of the twelfth and foiu-t«enth centuries (as being instead of Papinian) Antipapian or Antipapin. The former curious cor- ruption of the name has been mentioned above (p. 20). It is just conceivable that the further one, of Papin, may have given rise to an honoured name in French natural science. Of any calembour suggested by Denys Papin's best-known invention I am innocent. The Work of the " Prudentes " : Its Juristic Value. — The institution of licensed prvdentes is often regarded as the mere estabhshment of a high court of civil justice, and their opinions as practically judgments on appeal or on reserved cases, which no doubt they often were. But, if I am right in the view here taken, the work of the prudentes from an earher period than that of the imperial hcence, and the work of the Mcensed 'prudentes afterwards, was something more. It habitually included- — on principle, not as a mere obiter dictum — some amount of generaK- zation, much wider than Austin's ratio decidendi, and, moreover, directly expressed by its author — not requiring to be inferred or extracted by the laborious processes described in Austin's thirty-seventh and thirty-ninth lectures. PAPESriAN 31 The advantage, or rather the necessity, for generahzation is only too apparent for ourselves, with our enormous and increasing mass of case law. This is no doubt done, and very ably done, to some extent in the headings of our yearly Law Reports, in reviews, and from time to time in textbooks — ^the increasing consideration for the last being a noticeable feature in our Courts. Nor are our judges now, I think, so averse from laying down general rules or delivering themselves of general maxims as they used to be, and as they are, according to Austin, in duty bound to be. But the reduction of that most important branch of law which is continually growing out of the practice of the Courts, to an amount cognoscible, to use Austin's expression, even by the pro- fession, becomes daily farther off than ever. With all due appreciation of the gradual building up of our legal principles and the historic value of the process, one cannot but look with envy, in the interest of general utihty, on Justinian's heroic remedy — ^to secure once for all, at whatever cost, an authoritative Digest of our present case law and make a clean sweep of the past cases. Of course, case law must continue to go on, but it could be with ease subjected to a periodic authori- tative revision and reduction to the form of general rules. This, far more than the mere consolidation of Statutes, seems to me the one chance which has any hopefulness about it, of the much-talked-of Codification of EngHsh Law (see generally Practical Jurisprvdence, Part II., chap. xvi.). ULPIAJSr Political Conditions of Ulpian's Age. — The social and political conditions of the age in which Ulpian Hved seem ill adapted to the growth and development of a great legal talent. A period of stabUity and tranquillity, in which the supremacy of the law is secure and the search for truth undistracted by the play of violent, elemental passions, would appear indispensable for the fruitful pursuit of legal as of other kinds of knowledge. Con- cerned as he is at every point with questions of right and wrong in human conduct, the student of law is not unlikely, when passions run high, to swerve from the strait path of single- minded, unbiassed truth-seeking. It happens often enough, in- deed — as our own history shows — ^that great lawyers rise to eminence in periods of storm and stress, when the reign of the law itself is imperilled. But the truth seems to be that the forces of human character which are evoked on such occasions as these are the forces of political rather than of specifically legal instinct. The period covered by the last part of the second and the early years of the third century of our era was certainly not a period of tranquUUty, though, on the other hand, it cannot be said that the supremacy of the law was seriously in danger. It is true there was a great deal of lawlessness " in high places," and within the sphere of high pohtical intrigue human hfe was held very cheap, and the claims of justice and morahty were frequently and flagrantly ignored. Nevertheless, as far as the great mass of mankind was concerned, the strong legal machinery of the Roman Empire worked, in aU probabihty, smoothly and efficiently. Men bargained and sold, let and hired, managed their property and made their wills, under the full protection of the law, and of a law to the development and shaping of which some of the wisest minds of aU ages had contributed, and were, at that very moment, still contributing. 32 TJLPIAN 33 On the other hand, no period ever had less claim to be ranked as tranquil. While Ulpian was growing to manhood (the exact year of his birth is micertain, but we shall probably not be very wide of the mark if we assume it to have been about a.d. 180), Septimius Severus was Emperor of Rome (a.d. 193-211). He had " waded through slaughter to a throne," and for some twenty years he succeeded in maintaining his supremacy by that sinister combination of shrewdness and cruelty which, in such times as his, is apt to take the place of statesmanship. During aU these years the law was inflexibly upheld, and justice was wisely and impartially administered. But when Severus died, the chaos which he had foreseen set in. The hatred which had smouldered for some years between his two sons CaracaUa and Geta burst into full flame. In the short, fierce struggle which ensued, Cara- caUa is reported to have caused no less than twenty thousand persons to be put to death on the ground that they were partisans of Geta. Such was the reign of terror that no one (we are told by Dion Cassius) ventured to utter the hated name of Geta in the presence of the Emperor and his friends, and the very estates of those who introduced it into their wills were ordered to be con- fiscated. Nor did the murder of Geta and the extirpation of his adherents appease the fury of CaracaUa. From the capital he turned his mad frenzy against the provinces . ' ' Every province, ' ' Gibbon teUs us (cap. 6), " was by turns the scene of his rapine and cruelty. The senators, compeUed by fear to attend his capricious motions, were obHged to provide daily entertainments at an immense expense, which he abandoned with contempt to his guards. . . . The most wealthy families were ruined by partial fines and confiscations, and the great body of his subjects oppressed by ingenious and aggravated taxes. In the midst of peace, and upon the sHghtest provocation, he issued his com- mands at Alexandria in Egypt for a general massacre. From a secure post in the temple of Serapis he viewed and directed the slaughter of many thousand citizens, as weU as strangers, with- out distinguishing either the number or the crime of the sufferers." Ulpian's Literary Activity. — It was while events such as these were taking place, while " a monster whose life disgraced himian nature" was at the head of the Roman Empire, that Ulpian composed the greater part of his legal works. Whether (as Mommsen thinks) the larger portion of his great treatise Ad 4 34 ULPIAN Edictum (in eighty-three books) was written before the reign of Caracalla, or whether the whole of it was written during that reign, ^ it is certain that his Kterary output during this period was enormous. Besides the treatise Ad Edictum, we should probably assign to this reign, not only the elaborate commentary on the ius civile (in fifty-one books) known as the Lihri ad Sabinum,^ but also a number of monographs on sundry statutes, treatises on the functions of the different magistrates,^ two books of Institutes, and other works.* Early Career.- — -There would be nothing very exceptional in the spectacle of Ulpian's quietly composing lengthy treatises on legal subjects while Rome was (figuratively speaking) burning, if he had been by temperament a student. But such was very far from being the case. Throughout his Kfe he was in close touch with political affairs, either as an actual participator or, at any rate, as a keenly interested and vigUant observer. He appears for the first time in public Mfe at a comparatively early age. In 1 This is the work the excerpts from which in the Digest are stated to be more numerous than the excerpts from all the works of any other single jurist. ^ The Sabinus referred to is, of course, the famous jurist Masurius Sabinus (the author of the Ubri tres iuris civilis), who lived in the reign of Tiberius. Lampridius, one of those " wretched, untrustworthy writers " (as Puohta calls them) on whom we have to fall back, for want of any better, for much of our information concerning this whole period, confuses him with a friond of Alexander Severus called Sabinus — a characteristic piece of ignorance and shpshodness. 2 One of these, De officio Proconsulis lihri X. — which was a treatise on the criminal law — dealt, amongst other things, with the penal laws then in force against the Christians. It is extremely unlikely that Ulpian, whose only business was to present a complete account of the existing criminal law, expressed either approval or disapproval of the penal statutes in question. Most probably he " cared for none of those things," apart from their legal aspect. Nevertheless he came to be regarded in the Middle Ages as a vehement enemy of the Christians. The charge probably originated in a passage in the Institutiones Divinm of Lactantius (V. 11) : " Domitius de officio Proconsulis libris VII. (sic) rescripta principum nefaria coUegit, ut doceret quibus poenis affioi oporteret eos qui se cultores Dei confiterentur ;" and elsewhere Lactantius speaks of the ' constitutiones sacrilegaj et disputationes iurisperitorum iniustos " directed " contra pies." To which statements an old commentator adds the quaint remark that he had hitherto borne a certain grudge against Justinian for abolishing the writings of the old jiirists with a view to compiling his Pandects ; " nunc vero prasterea etiam hominem laudo qui incestas illas et, ut (Lactantius) noster vocat, saorilegas (constitutionesl sustulit." ' * A complete list of Ulpian's works will be found in Rudorff's liomische Edchtsgeschichte, vol. i., pp. 190, 191. See also Dr. Roby's Introduction to the Study of Justinian's Digest, pp. 199, 200. There is much uncertainty as to the dates when many of his books (e.g. the two books of Besponsa, the Liber singularis Regularum) were composed. Much of his work was done in the reign of Heliogabalus. The treatise De aduUeriis was certainly written after Caracalla's reign. DLPiAisr 35 the reign of Septimius Severus lie was an assessor in the audi- torium of Papinian, and served as a member of the Imperial Council. There are some stories afloat as to the existence of a certain rivalry between him and Papinian, and, according to Kudorff (Bechtsgeschichte, i., p. 189), he was even impKcated in the fall of his great predecessor. But the evidence for aU such allegations is extremely untrustworthy . Under CaracaUa he held the post of scriniorum magister (Master of the Records), Paul being at the same time ad libellos (Master of Petitions). Heliogabalus : Ulpian's Tyrian Extraction. — Under HeHoga- balus, the High Priest of the Syrian Sun-Giod, who succeeded CaracaUa after the brief but sanguinary interlude of Macritius' reign, Ulpian appears to have suffered a check in his career. He was deprived of aU his dignities,^ banished from Rome, and e ven threatened with execution. During the five years of Oriental effeminacy and despotism which marked the Syrian's reign (A.D. 218-222), Ulpian appears to have devoted himself, in the main, to literary work, though he doubtless kept a watchful eye on pubhc affairs. There were indeed good reasons why Ulpian should feel a kind of special, personal interest in the pohtics of tho Court at that time. Heliogabalus (whose mother, Sosemias, was a first cousin of CaracaUa and Geta, and a sister of Julia Mamsea, the mother of the future Emperor Alexander Severus) was the first Roman Emperor of Asiatic extraction. Now, Ulpian — as he teUs us himself in a passage which has been preserved to us in the Digest^ — ^was of Tyrian origin. Strong as was the sohdarity of the Roman Empire, and powerful as were the ten- dencies of the time towards an elimination of the smaUer local 1 According to soma accounts these dignities included tho highest post of an, that of Prcefectus Prcetorio, with whion Heliogabalus had invested him. According to other accounts ho did not become PrcBfectiLS Prcetorio till the reign of Alexander Severus. 2 50, 15, 1 pr. " Sciendum est esse quasdam colonias iuris ItaUci, ut est in SjTia Phcenice splendidissima Tyriorum colonia, unde mihi origo est, nobiUs regionibus, serie seoulorum antiquisaima, armipotens, foederis quod cum Romanis porcussit tenacissima." The words "unde mihi origo est" soem to indicate that Tyre was not his actual birthplace. Bremer (Bechts- lehrer u. Rechteachulen im romischen Kaiserreich, p. 87) suggests that he may, at any rate, have resided at Tyro for some time, and may have been, tem- porarily, professor at the University of Berytus. It is remarkable how prominently Syria and Syrians figure in this period of Roman history. It is quite possible that Papinian was a Syrian (see p. 17 of this volume). Julia Domna, the wife of Severus, was a Syrian. Ulpian, the Emperor Heliogabalus, and JuUa Mamsea (see the text above) were all Syrians. The Emperor Maerinus held a Court at Antioch, and a battle fought in Syria put an end to his short reign. 36 TJLPIAN patriotisms in favour of a wider Imperial unity, nevertheless it is clear that Ulpian retained throughout his life a keen personal interest in Tyre and things Syrian.^ The accession of the priest of Emesa as the first emperor of Asiatic extraction — Emesa was, like Tyre and Berytus, an important Syrian town- — ^naturally, therefore, added a stimulus to Ulpian's interest in pubhc afEairs, and inspired him with the hope of rising to a stiU higher eminence than any to which he had previously attained.^ Julia Mamsea, a clever and ambitious woman, had probably foreseen that the eccentric rule of HeMogabalus would inevitably be short-hved, and had been quietly preparing the way for the proclamation of her son Alexander as Emperor. Ulpian appears to have gained the full confidence of Mamsea, and may have assisted her with advice in carrying her designs into execution. About A.D, 222, at any rate, he held the post of prcefecttis anncmcB (Commissioner of Corn Supply), and no sooner had the dagger put an end to the tragi-comedy of the Sun-Priest's rule, than we find Ulpian forthwith installed as the gxiide, philosopher, and friend of the sixteen-year-old Emperor. Friendship of Alexander Severus. — ^For the rest of his life Ulpian retained the complete confidence of his Imperial master and (what was perhaps more important) his Imperial mistress. In one place Alexander speaks of him as ' ' amicus mens, ' ' in another as " parens mens," and several passages in the historians bear testi- mony to the close personal relationship which existed between Emperor and jmrist.^ Ulpian was now, and remained for some six years, the virtual Regent of the Empire, " a partner " (to use 1 Thus in the passage already quoted from the Digest in the last note, there is a pleasant ring of pride ia the antiquity and natural beauty of Tyre, though at the same time its obligations as a city of no mean Empire are emphasized. In other passages Ulpian mentions Syria, and Asia, and the Punic language. Thus in Dig. 32, 11 pr., after stating that fideicommissa could be expressed in any language, he adds, " non solum Latina vel Grseca, sed etiam Punica vel GaUicana vel alterius ouiuscumque gentis." Again in Dig. 45, 1, 1, 6, after stating the rule that a stipulatio is valid, if the question is put in Latin and the answer given in Greek, or vice versa, " dimimodo congruenter respondeatur," he proceeds to ask whether this rule is limited to Greek, or whether it is equally applicable to other languages, " Poenimi forte vel Assyrium vel emus alterius Unguaj," and he decides that any language will serve, " ita tamen ut uterque alterius linguam intelligat " — a characteristic piece of minute comment on a matter of growing practical importance. 2 It is assumed here that Ulpian did not become Prcefectus Prcetorio till the reign of Alexander. But see p. 35, note 1. 3 Thus we are told that Ulpian was one of the only two people whom Alexander would see alone, and was a constant guest at the Emperor's table. ULPIAJiT 37 the words of Zosimus) " in the Imperial power." His actual posi- tion is variously described. According to some reports the oflfice of Prcefectus Prcetorio^ was, so to speak, held in commission by Ulpian and two other persons, Flavianus and Chrestus, though it would seem that the latter were soon removed, Ulpian thus becoming sole Prcefect. According to another account, Ulpian was President of a Coimcil of sixteen Senators specially selected by the Emperor to discuss pubHc matters of moment and to advise the Emperor thereon. Anyhow, his duties were of a most exacting character, and he found no leistire for literary activity. Alexander's attention to the judicial duties of the Emperor is stated to have been most assiduous, and it is probable that Ulpian bore the largest share in hghtening the heavy burden of work which devolved on the Emperor as the supreme fountain of justice throughout the Empire. We are told that Alexander devoted the greater part of the mornings and a large part of the afternoons to the consideration of letters and petitions ; and in exercising that " patience and discretion above his years " which, as Gibbon says, he showed in the determination of private causes, he was presumably largely guided by the wide knowledge, ripe experi- ence, and shrewd wisdom of Ulpian.^ Military Opposition to Ulpian : his Death. — But the difficulties of Ulpian were not merely those of a very hard-worked official. Strong as he was in the favour of the Emperor and his mother, his position was far from secure. His promotion excited a con- siderable amount of jealousy which gradually developed into open hostility, and ultimately led to his destruction. It is not easy at the present day to determine the exact nature of the dis- pute between Ulpian and his foes. His steady opposition to the increasing influence of the military caste is probably rightly assigned as the main cause of the quarrel, though it is not un- likely that a certain amount of his unpopularity was due to personal reasons. Ulpian was not only a clever lawyer, but also an adroit courtier, and we are perhaps not doing him any in- 1 The Prcefectus Prcetorio, who was originaUy merely the Captain of the Guards, had gradually become the first officer of the State, the direct repre- sentative of the Emperor not only in military, but also in legal and financial 2 " Wise " is the favourite adjective applied by Gibbon to Ulpian. In Novel 97, 6, Justinian calls him rdv iliTaTov ; in Cod. 6, 51, 9, ho is referred to as " summi ingenii vir," and elsewhere (by Diocletian, Cod. 9, 41, 11), as " vir prudentissmiua." Such adjectives are bandied about pretty freely in connection with the great jurists, tut they are certainly appropriate in the case of Ulpian. 38 ULPIAN justice if we assume that he was no more averse to intrigue than most of the Court officials of the time. By temperament he was probably out of sjonpathy with the military class, and indeed the influence and unbridled hcence of the praetorian guards must have been wellnigh intolerable to any one to whom the supremacy of the law and orderly administration were matters of prime con- cern. The Emperor himself was, in a large measiu-e, at the mercy of his soldiers. He could only maintaia Ms authority by keeping the praetorian guards in a good humour. Firmness and discipline had to be tempered with a hberal admixture of flattery and indulgence. In Severus's time the praetorian guards — originally the flower of Itahan youth ("Itahae alumni et Romana vere inventus ": Tacitus, Hist. i. 84) — ^were largely recruited from other parts of the Empire, e.g. Macedonia and Spain. The bonds of discipline, which an honourable tradition of close associa- tion with the ancient centre of the Empire had helped to main- tain, were thus gradually relaxed. The praetorians, having long enjoyed a virtual immunity for their excesses, had grown im- patient of restraint. It is probable that Alexander's efforts to abridge the privileges of the praetorians were strongly backed by Ulpian, whose influence at Court since the removal of Elavianus and Chrestus^ was almost unchallenged. After a lengthy period of plotting and counter-plotting and smouldering hatred, some accident precipitated the catastrophe in the year 228. A formid- able riot broke out in Rome and lasted three days. Knowing his life to be in danger, Ulpian took refuge in the Imperial palace, but the angry soldiery forced their way in and slew him in the very presence of Alexander and Mamaea.^ So powerful was the influence of Ulpian's enemies that Alexander did not venture openly to punish the ringleader of the riot, who was removed to a nominal post of honour in Egypt, and subsequently transferred to Crete. There he was quietly put out of the way some time afterwards, when the excitement caused by the riot had subsided. Ulpian's Special Excellence as a Jurist. — Such was the life of this remarkable Roman, who, thanks to the hberal extent to 1 See above, p. 37. It is probable that Plaviauus and Chrestus wore opposed to the influence of Mamsea and to the curtailment of the privileges of the piKtorians. An epitomator of Dion Cassius says they were removed by foul means to which Ulpian was privy, but there is no evidence to support this allegation. Plavianus and Chrestus are sometimes spoken of as Ulpian's predecessors, elsewhere as holding office for a time jointly with him. 2 The whole story of the death of Ulpian is passed over by the writer of the lite of Alexander Severus in the Augustan Histories— another example of the untnistworthiness of much of our material for the history of this period. ULPIAN 39 which Justinian's compilers drew on his works in composing the Digest, has probably exercised a larger influence over European jurisprudence than any other jurist . To say this is not equivalent to saying that he was one of the very greatest jurists. Ulpian was not a lawyer of the strong, originative type like Labeo, Salvius Juhanus, and Papinian, the type that may be said to create — or, rather, to discover — ^the law. Ulpian's powers did not lie in the direction of arduous pioneer-work. Has was rather the faculty of lucid, orderly exposition. Having mastered the whole domain of law as it then existed, he proceeded to apply a mind of singular shrewdness and perspicacity to a restatement, in his own terms, of the rules of law on a large variety of topics. In his works the hard- won achievements of his great predecessors are set forth in a clear and agreeable style. Not that he was a mere compiler, a purveyor of other men's goods. It is true that the opinions of others figure rather prominently in his writings. But Ulpian did not simply reproduce other men's views. What- ever he took in was, so to speak, dissolved and recrystaUized. He had a keen appreciation of what was of permanent value in the literature before him. This he subjected to a criticism at once acute and practical. Rejecting what he deemed unim- portant, he tested what remained with minute care, and expounded it afresh in his own clear way, pointing out the quahfications and limitations which the practical requirements of the law seemed to him to impose on the legal propositions under review. Lucidity of Ms Style. — ^As regards style, Ulpian is a consum- mate master of lucid expression— indeed, with Gaius, the greatest master of clear exposition among the Roman jurists.^ In his writings there is no mannerism, no affectation, no turgid rhetoric.^ The language, as Dr. Roby points out,^ is " the ordinary language of daily life and business among educated persons " of the time. In other words, it is simple and straightforward.^ Such a stylo 1 We do not possess very raucli of Ulpian's work in its original form, but, such as it is, it amply justifies the praise that has been bestowed on it. Even as " edited " in the Digest, he exhibits a remarkable power of lucid exposition. 2 As to this, see below, p. 43, the observations of Austin. 3 Introduction, p. 209. Dr. Roby is speaking of the classical jurists generally, but his remarks are particularly applicable to Ulpian. ^^ * Of course it was not the language of Cicero, the " Latm pure, discreet demanded by the fastidious scholarship of Browning's Bishop when ordermg an inscription for his " Tomb at St. Praxed's Church " : " Aha, ' elucescebat,' quoth our friend ? No Tully, said I, Ulpian at) the best 1" 40 TTLPIAN is not indeed without its drawbacks. True, we are spared the pedantries and artificialities of the lawyers of some other ages, but, on the other hand, there is an occasional looseness of ex- pression, and in the flow of facile utterance^ the real difficulties of legal problems are often in danger of being hidden out of sight. For us, however, the very faults of Ulpian's style have proved an almost unmixed advantage. The extraordinary readiness of his pen enabled him to enrich juristic literature with an astonish- ing abimdance of legal matter of the utmost value. His very diffuseness has helped us — as it helped the generations which succeeded him in the Eoman Empire — ^to understand much that is difficult and obscure in his predecessors. Accordingly, when Justinian's compilers came to compose the Digest, the writings of Ulpian were more liberally drawn upon than those of any other jurist. They supply, indeed, the groundwork of the Digest. The excerpts from Ulpian (2,462 in number, as com- pared with 2,080 from Paul and 595 from Papinian) form about one-third of the whole body of the Digest. Long as some of these excerpts are, they are very much shorter than the originals from which they were taken. For it was the business of the compilers "from vain excess to clear the encumber'd laws,"^ and in per- forming their task they subjected Ulpian's writings to a very liberal process of pruning. A comparison of the Vatican Frag- ments 75 to 83 (containing the full text of Ulpian) with Digest 7, 2, 1, 2 to 4 and 7, 2, 2 and 3 (where the " vain excess " has disappeared) wiU illustrate the extent to which the process was carried.^ Alleged Decline of Eoman Jurisprudence. — It is said that the decline of Roman jurisprudence commences with Ulpian and Paul.* It is true that neither Ulpian nor any of his successors ever attained to the same eminence as Juhan or Papinian, and it 1 In Cod. 0, 25, 10, the term " disertissimus " is applied both to Papinian and Ulpian. It seems far more appropriate to Ulpian than to Papinian. ^ " Son Giustiniano Che . . . Dentro aUe leggi trassi il troppo e 'I vano." Dante : Paradiso vi. 10-12. 3 The two passages are set out, in a most instructive waj% in parallel columns in Dr. Eoby s Introduction, p. 73 S. It is, however, hardly necessary to say that what the compilers rejected was not therefore necessarily " vain excess." The nature of their task compelled them to exclude all obsolete matter, and also much that was vahiable, and even essential, from a literary point of view. It would be most unfair to appraise the literary quality of the jurists' writing by reference to the excerpts in the Digest alone. * F. Ilofman, Kritische Studien zvm romischen Rechfe (1885), p. 3 ff. 0LPIAN 41 is further true that the work of his successors shows signs of failing power. Nevertheless, the theory is apt to do some injustice to Ulpian. It would be difficult to find any definite symptom of decadence in his writings, any relaxing of the intel- lectual grip, any blurring of the clear, legal vision, any idle circumlocution doing duty for thought. The mere fact that Ulpian's powers lay in the particular direction we have tried to indicate (p. 39) is not enough to stamp him as a " decadent." A man of his special type might just as well have flourished, and done useful work, before as after Papinian. Among his con- temporaries and successors he enjoyed an immense prestige, and, indeed, it was largely due to the influence of Ulpian's writings that the great tradition of Roman jurisprudence was so suc- cessfully upheld during the following centuries, when the faculty for fully appreciating the grand achievements of the classical age was slowly but steadily dwiadling. Ulpian's pupil Mode- stinus (" studiosus mens," Ulpian calls him in Dig. 47, 2, 52, 20), himself no mean judge of juristic capacity, ranks Ulpian with ScsBvola and Paul as one of the Kopv(f>aioi t&v vofiiKmv, thus passing over Papinian altogether. And during the ensuing centuries the authority enjoyed by Ulpian in the Courts — especially in the Eastern half of the Empire — was second only to that of Papinian, a fact to which formal expression was given in Valentioian's Law of Citations, 426 a.d. (see Professor Clark's article, loc. cit., p. 4, note 2). Ulpian's lus Naturals. — ^A brief reference may here be allowed to Ulpian's famous triple division of law into ius civile, ius gentium, and iiis naturale, or law peculiar to the Romans, law common to all nations, and law common to human beings and animals. This division is not, as is sometimes suggested, peculiar to Ulpian. We cannot, of course, say how far it was adopted by the numerous other jurists whose writings have not been preserved to us. But as far as the Digest is concerned, it appears not only in the well-known passages from Ulpian in the first title of the first book, but also in two other passages, in one (from Tryphoninus, Dig. 12, 6, 64) explicitly, in the other (from Hermogenianus, Dig. 1, 1, 5) by necessary implication. Never- theless, it is true (as Savigny has conclusively shown^) that the doctrine in question exercised no perceptible influence on the rules of Roman law, and cannot indeed be made to serve as a 1 System des heuiigen romischen Mechts, i., Beiiago I. 42 XJLPIAN basis of legal classification. To admit this is not, however, equivalent to saying that the whole doctrine is as meaningless and absurd as Austin's unfortunate strictures might lead one to suppose. Savigny himseK — adopting in its essentials the defence of Ulpian by DoneUus (I. 6)— points out the true significance and value of Ulpian's theory. He reminds us of the important con- sideration that in every relation we must distinguish the matter and the form, and that the matter of a legal relation can be con- ceived of apart from its form. In the great majority of legal relations, such as ownership or obligation, the matter is arbitrary, in the sense that the human race could conceivably continue to exist without it. But what differentiates the relations men- tioned by Ulpian — -"maris atque feminae coniunctio, hberorum procreatio, educatio "■ — -is just the fact that their matter is not arbitrary, consisting, as it does, of natural relations, common to human beings and animals, without which the human race could not continue to exist. Ulpian's reference to " ius " (" videmus etenim cetera quoque animaha, feras etiam, istius iuris peritia censeri ") is somewhat fanciful and bizarre, but it is ridiculous to suppose that he really imagined legal relations to subsist as between animals. All he wished to point out was that that which constitutes the matter (as distinct from the form) of certain fundamental legal relations between men, has its almost exact counterpart in the animal world. Nor is this a mere "foolish conceit " or " inept speculation " (Austin's Jurisprvdence, 5th ed., pp. 209, 210, 552). Ulpian's view, understood in the sense indi- cated, is, as Savigny says {loc. cit.), " not only true, but important and deserving of consideration," and, though useless as a basis of legal classification, its infiuence on legal thought in other directions — ^not only in Ulpian's time, but also centuries after- wards — ^was considerable. Savigny's treatment of Ulpian's theory affords an admii-able model of the temper and spirit in which such questions must be approached if the discussion is to yield fruitful results. For what is the position ? A lawj^er of vast knowledge and experience, a man steeped in the tra- ditions of a great legal and philosophical past, and worldng in an atmosphere of strenuous juristic endeavour, deliberately enunciates a particular theory. This theory is adjudged worthy of preservation three hundred years later by a body of lawyers of far more than average attainments. Centuries afterwards the theory is stiU found to exercise a strong influence over minds TILPIAN 43 of the most different oast.^ And, finally, in our own age, it is deemed worthy of patient examination by the greatest jurist of modern times. In face of such facts as these an attitude of half-petulant, half-supercilious contempt such as marks so much of Austin's criticism — an attitude which finds expression (un- conscious expression, perhaps) in references to the " good " Ulpian and "this legal oracle" — ^is, we venture to submit, entirely futile and barren. Ulpian's Idealism. — ^When Austin complained of Ulpian's Latin being " too declamatory " for his taste (loc. cit., p. 563), he may have been thinking of such passages as the one just dis- cussed, and those dealing with the nature of jurisprudence (Dig. 1, 1, 10, 2), and the functions of the jurist (1, 1, 1, 2). The term " declamatory " cannot, however (as we have endeavoured to show), be fitly apphed to Ulpian's style, so that Austin's objection may have been intended for the matter rather than the form of Ulpian's statements. Of the passage on the ius naturale nothing more need be said. As to the other two passages, though they obviously have no claim to scientific precision, they are very far indeed from being mere " declamatory " rhetoric. They present, it is true, a somewhat exalted ideal of the nature of jurisprudence^ and the functions of the true jurist.^ But 1 Austin himBelf mentions two — ^Hooker and Montesquieu. " A fustian descrij)tion of law " is his urbane reference (loc. cit, p. 211) to the definition of law in Hooker's Ecclesiastical Polity (I., o. 18). As for Montesquieu — whose robust sanity has earned for him the title of " the father of the modern historical method " — it is perhaps enough to say that it would be difficult to name a thinker less prone to " foolish conceits " and " inept speculations." ^ We take Ulpian's meaning to be somewhat as follows : The business of the jurist is to ascertain the legal truth, either by teetins existing rules of law, or by seeking to discover new rules. In doing this, he must keep two considerations — corresponding to two aspects of law — steadily in view. In the first place, he must consider the requirements of justice, which is tho life-principle of law — i.e., he must a/pply an ideal standard, a standard which, in ite idtimate origin, passes beyond the limits of purely human tilings. This is the standard implied (though not always acknowledged) in the frequent appeals to a "higher justice," "equity," "the reason of mankind," and so forth. In the second place, he must consider the requirements of utiMty — i.e., he must apply a 'practical standard, for the rules of positive law are intended to regulate human acts and human affairs. The greatest lawyer — be he judge or jurist — is he who combines a firm grasp of the material reaUties of life with a clear vision of the ideal beyond." lurisprudentia est divinarum atque humanarum rerum notitia, iusti atque iniusti scientia." 3 " Cuius (artis) merito quia nos sacerdotes appellet : iustitiam namque colimus et boni et sequi notitiam profitemur, aequum ab iniquo separantes, Mcitum ab iUicito discernentes, bonos non solum metu pcenarum, verum etiam praemiorum quoque exhortatione efficere cupientes ; veram, nisi fallor, philosophiam, non simulatam affectantes." Ulpian is speaking, of course, of tho jurists of his own time. The peculiar bent of the national genius of the Romans tended to make the jurists regard their science as the " true philosophy." But Ulpian's remarks are not without value even for us. 44 ULPIAN even if they did nothing more than that, the fault, if fault it be, is surely on the right side. The law is continually beset with temptations from outside which tend to lower it from the proud dignity of a free science to the level of a smart trade. Our thanks are due to those who keep the higher ideal steadily before our eyes. Within the sphere of jurisprudence, as elsewhere, there is much to learn from the man who, in Emerson's phrase, " hitches his waggon to a star." BARTOLUSi Bartolus compared with XJlpian. — In some respects the great jurist of the Middle Ages whose name stands at the head of this article bears a somewhat close resemblance to Ulpian, the most famous jurist of the decadent Roman Empire of the West, from which the animating health and vigour of the Augustan age had already fled^ or was fast fleeing. Like Ulpian, Bartolus was not distinguished by originaUty of thought or exposition, but he had Ulpian's faculty of clearness and perspicacity of vision, to which he mainly owed the high reputation he acquired in the course of a comparatively brief career, and which his writings continued to maintain for at least two centuries after his death. He could also on occasion play the part of an adroit courtier, as we shall see in connection with his mission to the Emperor Charles IV. Their Eespeetive Periods contrasted. — It is interesting, moreover, to notice that while Ulpian flourished in a period which witnessed the grant of citizenship to aU Roman subjects, involving, as Gibbon says,^ the vain title and real obUgations of Roman citizens, thereby proclaiming to the world the univer- sality and unity of the Roman sovereignty, and elevating the Roman Law into a great system of territorial jurisprudence which displaced every other, Bartolus saw the light of day under very changed circumstances. Unity had then given place to diversity, the Empire of the Caesars had long since ceased to represent a living pohtical force in the west of Europe, and under 1 The following authorities have been mostly consulted : Savigny's Qeschichte des Rbmischen Bechts im Mittelalter, vol. vi., 122-163 ; La Orande Encycltypedie, vol. v., p. 524 et seq. ; Lain6, Introduction au droit International Prive, tome i., 115-163 ; Weiss, Traite theorique et pratique de droit Inter- national Prive, vol. i., s. 2, p. 15 et seq.; Rivier, Introduction Historique au Droit Romaine, ss. 214-215, p. 568 et seq. ; Laurent, Le droit civil International chap, iii., p. 273 et seq. ; Fiore, Diritto Internazionale Privato, vol. i., cap. iy. p. 43 et seq. ; Laghi, II diritto Internazionale Privato, vol. i., bk. i., cap. i., p. 39 et seq. ; Holtzendorff's Encyklopddie der Rechtswissenschaft, i., p. 155 etseq. 2 Gibbon, Decline and Fall of the Roman Empire, vol. i., chap, vii., p. 194, Bury's edition. 3 Ibid., p. 164. 45 46 BABTOLTJS the influence of barbarian individualism man, and not the citizen, had become the true juridical being and the subject of rights. The invasions of the barbarian hordes, under Attila the Hun, Alaric the Goth, and Genseric the Vandal, had abeady broken to a large extent the spell olE Roman universaKty. Even so early as a.d. 476 the greater part of the lands which had formerly composed the Roman Empire of the West, had been divided into six large Teutonic kingdoms. Italy and Noricum formed the kingdom of Odoacer ; North Africa constituted the dominion of Genseric or Gaiseric the Vandal ; from the Loire to the Straits of Gibraltar was ruled by Euric ; the valleys of the Rhone and Saone belonged to Gungobad, the Burgundian ; the Frankish princes reigned on the Meuse, Moselle, and Lower Rhine ; and the Suevi carved out a kingdom which would corre- spond with North Portugal and Gahcia. Under the influence of this general disruption and partition of the former Roman Empire, a new order of things now took the place of the older system, and henceforth we find that the independence of the individual, which, as Guizot rightly says, is the dominant char- acter of barbarism, furnishes also the keynote for a right under- standing of that march of progress in the history of the develop- ment of legal ideas which evolves gradually between the opposite poles of juridical thovight, marked by the principle of Roman territoriahty on the one hand, and by that of personahty of the later European jurisprudence on the other. Each Him, Goth, or Frank cherished his own free and independent personahty, and aclinowledged no law but that of the folk-right of his own tribe, which he had brought with him. Therefore, just as it is in the pristine forests of Germany that Montesquieu tells us we must seek to find the roots of liberty, so it is amongst the barbarian hordes who invaded Italy that we must look for the first germs of that fundamental notion which consecrated the supreme authority of personal laws, and which was destined to exercise so large and dominating an influence upon the develop- ment of Private International Law in Continental Europe. Commerce of Free Burghal Cities in Italy favours Notion of Personality. — ^As we advance towards the twelfth and thir- teenth centuries the growth of commerce in the free burghal cities of Italy had no small influence in confirming the notion that a man carried his personahty with hitn, and did not lose it by mere temporary residence for the purposes of trade or the like BABTOLTJS 47 in a city other than that iq which he was born. Nay, even in the same city it was no uncommon experience to find conflicting laws prevaihng in different quarters of it, much in the same way as local customs in India regulating the right of pre-emption are found to vary at the present day in different muhallas or sub- divisions of the same city. Study of Roman Law. — But although the Middle Ages as a period were distinguished by the growth of a vast body of per- sonal laws, the study of the Roman Law had never actually ceased to attract the attention of the best intellects of each suc- ceeding century. It may be, and is no doubt true, that Rome, which was the proper seat of legal education in Ulpian's time, ceased to be so some time (probably four centuries) after the reign of Justinian, who, himself, on his conquest of Italy, had confirmed the Roman School of Law in its privileges, and con- tributed to its upkeep by supplying funds for the payment of its teachers. But with the dismemberment of the Western Empire law-schools as public endowments were no longer maintained. The Roman Law was, nevertheless, taught in the ordinary secular schools as a branch of old literature, and an instance of this at Toul is quoted by Savigny from a contemporary accoimt of Pope Leo IX., who died in a.d. 1054. About the same time we have undeniable traces of a school of law at Ravenna, and, according to Odofredus, who wrote in the thirteenth century, this was the same school which had formerly existed at Rome. In Bartolus's time we know that law was taught in Italy, at Pisa, Perugia, Padua, and Bologna ; so that while a new world of legal ideas had been called into existence, it was more by way of supplement {in subsidium) than in substitution of that system which the genius of Rome had estabhshed for the perpetual instruction and guidance of civihzed humanity. And this ten- dency was materially strengthened by the attitude of the Roman Cathohc Church. By its very constitution the Church of Rome stood forth as the embodiment of unity and universahty ; and while the priesthood represented the people in the abstract, the papacy was the symbol of the State and sovereignty. Accord- ingly, from the seventh century onwards, the principle Ecclesia vivit lege romana was one which was constantly recognized by ecclesiastical writers. The School of Glossators. — But it is from the end of the eleventh century that a systematic study of the Roman Law 48 BAETOLTJS can be said to have been revived. This was the work of the Jurist Irnerius, who was the founder of the School of Glossators which flourished down to the middle of the thirteenth century, but of whose personal history we know very Httle, except that he died about a.d. 1188, and, according to Odofredus, stvduit per se, sicut potuit. It was this school which was the precursor of that of Bartolus, and which derived its name from the fact that its teaching consisted in brief glosses on the text of the original Roman law-books. Its chief ornament was Accursius (1182-1260), whose masterly ghssa ordinaria fittingly closed this era. This work obtained such general repute that it practically superseded the original sources of the law, to such an extent, indeed, that it became a recognized rule qiwd rwn agnoscit ghssa, non agnoscit curia. Followed by that of the Commentators and Post- Glossators. — -This era was followed by that of the Commentators and Post- Glossators, who abandoned the form of glosses upon texts, and adopted instead the more comprehensive and more scientific method of deaUng separately with particular branches of law, and grouping together all the principles governing the same. These rules were, perhaps, not always very clearly expressed nor arranged in the most convenient order, while the Latin which the commentators employed was described, but perhaps by too captious a critic — Rabelais- — ^as that of the cuisinier et marmiteux, non de Jurisconsulte. Among the earliest jurists of this school were Oldradus (1335), who was a professor of law at Padua, Siena, MontpeUier, Perugia, and Bologna, and among his disciples were Bartolus and Alberic ; Pierre de BeUeperche or Petrus de Bellapertica, who died in 1308 ; Joaimes Andreae' (Jean d' Andre), the most celebrated authority on procedure in the Middle Ages, who died in 1348 ; and Cinus, the pupil of Dinus, a Florentine and former professor at Bologna, who died in 1303, the friend of Dante and the master of Bartolus and Petrarch, a poet himself (whose soimet in memory of Selvaggia and the canzone to Dante are fine examples of his style at best) as well as a jurist of considerable eminence, who inter alia is distinguished for having maintained, contrary to the then prevailing opinion in favour of the lex rei sitce, that the form of a testament was to be regulated by the lex loci actvs. Bartolus : Personal History. — It was in this era in the history of jurisprudence, and in the midst of such surroundings, that we BAETOLTTS 49 reach the name of Bartolus. Of his birth and early years we have little rehable knowledge. He was a native of Sassoferrato, a town in the province of Ancona, on the River Sentino, which was also the birthplace of Perroti (died 1480), a leading scholar of the fifteenth century, who was celebrated for his commentaries on Statins and Martial, and who also translated five books of Polybius into Latin. The year of Bartolus's birth is variously stated between 1309-14, but as he tells us himself (Dig. Novum. L. quidam cum filium 132, de V.O.) that he was promoted to the degree of Doctor of Laws at the age of twenty-one, and as this event occurred on November 10th, 1334, we may safely accept the suggestion of Savigny,^ that Bartolus must have been born between November 10th, 1313, and November 10th, 1314. His father's name is given in his doctor's diploma (a copy of which is given by LanceUotus) as Franciscus, son of Bonaccursius, and his mother's name, we are told by his biographer LanceUotus, who pubhshed his Life in 1576, was 8ancia, which seems to effectually dispose of the story that he was a foundling. He had two brothers, Bonaccursius (called after his grandfather) and Peter. His first tutor was the grammarian Peter of Assisi, a man of whom he speaks with earnest gratitude, as learned without hypocrisy, and of wonderful piety. At the age of fourteen he began the study of law at Perugia, and his principal tutor was the Cinus already mentioned, whose lectures, he told Baldus, had exercised most influence upon his legal training. He subse- quently removed to Bologna, and there he studied under four distinguished jurists, Buttigarius, Rainerius, Oldradus, a,nd Belvisio. He seems also to have apphed himseK to the study of geometry under Guido of Perugia, a m^gnus Theologus, as Bartolus calls him, and of the Hebrew language. He held the office of judicial assessor at Todi and Pisa, and it is said by Diplovataccius that he was banished for four years for an unjust sentence of death he had passed while exercising one of these offices. But the story is disbeheved by Savigny,^ and there is no contemporary proof in support of it. In the autumn of 1339 we find him appointed as a colleague of his former master Rainerius at Pisa on a salary of one hundred and fifty florins, at which time he teUs us he was twenty-six years of age, and the house in which he lived in Pisa was still preserved in Savigny's time with an ^ OescMchte des r'amischen Bechts im Mittdalter, bd. vi., p. 125, n. 5. 2 Vol. vi., p.|:.129. 50 BARTOLUS inscription upon it commemorating the fact. In 1343 lie re- moved to Perugia, where he soon established a widespread repu- tation as a law teacher, and pupils from aU parts of Italy flocked to his lectures, two of the most famous being Baldus and his brother Angelus. Five years afterwards Perugia, in grateful remembrance of his eminent services, conferred upon him and his brother Bonaccursius the right of citizenship, and in 1355 this city had still greater cause to revere his memory, for, being sent on a mission to the Emperor Charles IV., who was then at Pisa, Bartolus obtained for it many privileges as well as a con- firmatory charter for its University. Nor did he return without personal honours for himself, for the Emperor ennobled him, and appointed him a councillor, besides conferring upon him other marks of imperial favour. Among these was the singular privilege that he and all his descendants who should be pro- fessors of law should have the power of legitimizing their pupils in cases of bastardy, or of reheving them from the disadvantages of minority. Bartolus was twice married : his first wife was a native of Ancona, but beyond this fact and that the union did not last long, we know httle else about her ; his second wife was Pellina di Bovarello of Perugia, of the Alfani family, who sur- vived him, and by whom he had a family of two sons and four daughters. He died at Perugia in July, 1357, at the age of forty-four, and was buried in the Church of St. Francesco, where a monument was erected to his memory with the inscription so eloquent in its brevity, Ossa Bartoli. By his will, executed on May lith, 1356, Bartolus designated his two sons as his principal heirs, but he gave each of his daughters a legacy of four hundred and fifty florins, and he also made a suitable provision for his wife. He bequeathed his modest library, which consisted of thirty juristical and thirty-four theological volumes, indicating in which direction his tastes lay, to a monastery in Perugia, from whence it is said a monk stole the volumes and carried them to Naples. He belonged to the moderate clerical party more by reason that he lived, as he says, in terris amicis ecclesice than from strong conviction, and as a rule he avoided midng himself up in the pohtics of the day arising out of the Guelf and GhibeUine feud. His Great Authority.- — Such are the few particulars of his private hfe which have come down to us ; and considering that his pubHc career was confined within the brief period of eighteen or twenty years, it is astonishing what a reputation he succeeded BARTOLTJS 51 in building up for himself at an age when most men are only beginning to lay the foiuidations of their future fame. No jurist of the Middle Ages ever acquired such a reputation as was imiversaUy conceded to him. His authority as an. expounder of the Eoman Law was unquestioned in his lifetime, and revered for centuries after his death. He was called lucerna or pater juris^ and dux jurisconsuUorum, and he exercised for a long time in Italy, Spain, and Portugal the authority of a legislator. At Padua a Chair was even created for the exposition of the opinions of Bartolus. If his reputation was subsequently overshadowed in France and Italy by the historical school represented by Cujas, Alciati (6. 1492, d. 1550 a.d.), and others, it conttaued more or less imimpaired in Germany from the " reception " of the Roman Law as the " Common Law " in the fifteenth century down to modern times ; and even at this date we must admit that there were solid grounds for the pre-eminent respect that was originally accorded to him. He was above all things a practical lawyer, and his strong practical common sense conviaced him of the necessity of evolving from the chaos of conflicting Statutes, customs, and feudal laws which prevailed in his day some prin- ciples of general application which were suitable to the age in which he lived. This was the great aim of his life, mihappily cut short by an untimely death while he was still in the vigour of manhood. He wished to draw from the Roman Law, the Canon Law, the Feudal Law, and Customary Law, a sort of Common Law which would avoid the technicaUties of the one, the narrow- ness of another, the harshness of a third, and the defects and deficiencies of a fourth ; and if he had been spared to run the average age allotted to man, he would probably have left behind him more imperishable work as the fruit of his labours. But, as we shaU see presently, there are still to be found in his works the materials for the construction of many of the leading doctrines of Private International Law. His Distinctive Teaching. — In their original shape his writings for the most part took the form of lectures, which were delivered by him as part of his University courses ; but these were subse- quently ampKfied from notes and manuscript comments, and published in the collected edition of his works, which first ap- peared in Venice in 1475 in five volumes, and finally in eleven volumes in 1615. This circumstance, no doubt, accounts for the 1 Laurent, Le Droit Civil International, i., p. 299. 52 BABTOLTJS fact that in their published form his writings do not reveal that strong personality of the man which was so impressed upon his students in the lecture-room. Many of his critics, therefore, have been unable to account for the superior reputation he enjoyed over his predecessors and contemporaries, and have attempted to account for it in various ways. But the truth is that his exegetical teaching of the law was carried out in a new spirit, with a freshness and energy, combined with a judicial calmness and soberness of judgment, which were wanting in others. So, again, if he employed the dialectical method which was so much in vogue in the previous century, and to an extent which rendered the works of his predecessors tiresome and un- profitable to read, he never abused it. To us, however, he is chiefly interesting for the influence he exercised in developing the theory of Statutes, which can only be compared with that of d'Argentre at a much later period. That he was not the originator of this celebrated theory, as was once claimed for him, is now well established, for it is certain that both his own masters, Cinus and Oldrodus (to mention no others), directed their attention to the subject of the conflict of laws, and proposed certain rules for its solution. But if Bartolus cannot claim to have originated the above theory, it is certainly equally undeniable that he gave such an extended application to it, and so amplified the work of his predecessors that, while their names have more or less ceased to be connected with it, his own has been imperishably associated with its history. As Weiss says, if he was not the creator of this theory, he was at least one of its ancestors.^ If, however, he has received in this connection more credit for originality than he deserved, he has, on the other hand, suffered from a want of true appreciation of his actual teachiag. It has been said, for instance, that the fundamental notion imderlying his theory was the general division of aU laws into real and personal Statutes. But such a dual division is completely foreign to the whole school of Itahan writers of the period and equally to his own,^ and is really characteristic since the sixteenth century of the French school under the teaching of d'Argentre, who was responsible for 1 Traite theorique et pratique de droit International Prive i. p. 16 Paris 1898. ' ' f , - The modem Italian school regards all rules of law as being in principle personal Statutes, and holds that in territorial and international operatwn they have no other limit than the so-called laws of pubUc order.— Fon Bar ? IS (c) ; Laurent, i., p. 307. ' BAETOLTJS 53 it.^ It is true that Bartolus incidentally affirms that a disposition of the law is to be regarded as real or personal, according as its terms may relate to things or persons. But that is only in the nature of a passing observation by way of illustration, and by no means embodies what may be termed the kernel of his own teaching, as many writers have affected to beheve. • In substance the doctrine of Statutes, as taught by the Post- Glossators, may be summarized in this way : (1) The Eoman Law is universal, and therefore common to strangers also ; (2) the Statutory Law, as an exception to the former, is restricted to those persons and things which are subject to the sovereignty which enacted it. From these leading principles the following consequences resulted : (a) that a Statute which affected persons only did not operate against strangers {Statuta in non subditos jurisdictioni statuentem disponere non possunt) ; (6) that a Statute which referred to things operated against strangers as weU as natives, because things were supposed to be under the power of the legislating authority {Statuta quce afficiunt res ligant foren^es) ; and (c) that a Statute which affected the person foUows the citizen wherever he goes {Givis ligatur etiam extra territorium statuto patrice).^ As illustrating the application of these general principles, Bartolus taught that a Statute which either permitted a son of the family {fllius familias) to execute a testament, or prohibited a husband from instituting his wife as his heir, did not affect strangers who were mere residents of the city where such a law prevailed. Conversely, a Statute which prohibited a husband from alienating his wife's estate without her consent is one that has an extra-territorial effect, and the like rule prevails, speaking generally, in dealing with other Statutes affecting the incapacity of a person. But Bartolus not imfrequently found himself confronted with complex cases (as in the matter of succession) which compelled him to devise special regulations and even to resort to ingenious constructions of a text to get over difficulties . It is here that the heel of Achilles is apparent in his armoury, and his vulnerable points were eagerly laid hold of by his later critics to subject him to merciless ridicule. Thus d'Argentre says, ridere vulgo solent cum dicitur Jus atetjm aut ATEUM Jus diversa dicere volenti. Dumoulin (1500-66) is equally severe upon him for deciding ^ Laine, Introduction au droit International Prive, i., p. 132, Paris, 1888. 2 Laghi, II diritto Internazionale Privato, i., p. 50, s. 46. 54 BAETOLirS the controversy as to whether a Statute which provided that the eldest son should succeed to his father's whole estate applied to natives extrarterritorially or was confined to persons within its own territory, by inquiring whether the law said primogenitus succedat in omnibus bonis or bona decedentium veniant in primo- genitum : in the former case, according to Bartolus, the Statute was to be held to be one that dealt with persons ; in the latter, one that dealt with things. Very naturally his critic says : Tamen rejicitur hcec distinctio quce verbalis est et communiter reprobatur. But advocates of this distinction, puerile as it now seems to us, were nevertheless to be found as late as the eighteenth century, and it must not be forgotten that a very eminent French writer saw a distinction between Jus vert and vert Jus} Bar- tolus was, in fact, trying to discover some way of distinguishing between Statutes which fell under one or the other of the above categories, and he begins the passage already quoted by saying : Mihi videtur, quod verba statuti seu consuetudinis sunt diligenter intuenda, an observation to which no possible objection could be taken. He then proceeds to say : Aut ilia disponunt circa res, as, for instance, by the words. Bona decedentis, or that the verba statuti seu consuetudinis disponunt circa personas ; and by way of illustration he adds : ut per hcec verba : Primogenitus succedat. It is clear, therefore, that the main object of Bartolus was to lay down the rule that the actual words of a Statute or custom must furnish the true key to its purport and intent, which is a rule well recognized at the present day. His particular illustra- tion of that rule may have been well or iU chosen, but that is quite a secondary matter, and does not afEect the soundness of the rule itself. Nor have his critics, d'Argentre and others, been any more successful in their own definitions, and they in turn have been criticized by later jurists. Besides, it must be remembered, in justice to Bartolus, that in the age in which he lived it was usual in the solution of every question to base one's opinions upon some definite text of the Roman Law, and as he had to deal with new conditions and necessities unknown to the Roman jurists, it is not surprising that his interpretations were occasionally of a forced and arbitrary character. As Contuzzi aptly says : II pensiero era dei Glossatori, la formola era del Diritto Romano.^ When due allowance is made for this 1 Laurent, vol. i., p. 299. 2 Diritto Internazionale Privato, Milan, 1890, p. 42. BARTOLirS S5 circumstance, we need not dwell too much upon the more or less pardonable defects which are alleged against him. It is more generous to recognize that in him we have a jurist who, so early as the first half of the fourteenth century, was capable of laying down the principle, which has served as the foundation of all modern juristic science (e forma e sem'pre formera la base di ogni futuro sistema, as Fusinato says), that there are certain laws which have an extra-territorial effect, and others which have not ;^ and, in further illustrating this broad principle by estab- lishing the following important rules : (1) that juridical Acts, such as contracts and testaments, are valid as to form if they comply with the extrinsic requirements of the law of the place where they are made {vbi est celehratus contractv^) ; (2) that the natural and presimaably intended consequences of a convention are to be judged according to the law of the place of contract (locus contractus) ; (3) that accidental consequences which arise ex post facto by reason of neglect or delay [propter negligentiam vel moram) are, on the contrary, to be judged by the law of the place of performance (j,n illo loco, in quern est collata solutio), or, if no such place is fixed, or an alternative of many places is provided involving an election, then in that place vbi petitur ; and (4) that rules of procedure and everything relating ad litis ordinationem are to be regulated by the lex fori — ^that is to say, the law of the locus judicii. The legists of later centuries have done little more than to elaborate these rules by a further process of development, and posterity, as Laurent^ rightly contends ought to be more indulgent and just to the memory of a man who, after all, has the glory of being a pioneer of the juristic science of to-day. It is easy to criticize the defects and errors of our predecessors, but if men like Bartolus had not paved the way for later writers, no science would ever be perfected. His Principal Works. — Bartolus has left behind him a con- siderable literature on a variety of legal subjects. But amongst his principal works may be mentioned the following : 1. Commentarius in tria Digesta, first pubhshed in Venice in A.D. 1470. 2. Commentarius in libros IX. Codices priores, 1478. 3. Commentarius Super libris III. posterioribus Codicis, pub- 1 Of. Fiore, Diritto Internazionale Privato, 3rd ed., vol. i., p. 48, Torino, 1888 ; Guide Fiisinato, II principio ddla Senola Italiana, p. 23, Bologna, 1885. 2 Vol. i., p. 301. 56 BAKTOLirS lished in Naples in 1470. In the preface to this work he tells us that he undertook it after a severe iUness which prevented him from pursuing his ordinary avocations, in order to occupy his mind with a useful study 4. Lectura Super Authenticis (1477), which is an attempt to compile an additional (eleventh) book of novels from the ordi- nances of the Emperor Henry VII. from the year 1312. 5. Processus Satance contra Divam Virginem Coram Judice Jesu, a mock trial between the DevU and the Virgin Mother of our Lord, in which the former claims the human race as his property, invoking his long possession in support of his claim, to which the Virgin repKes that his possession has been mala fide, and therefore of no avail. It is needless to add that the claim is eventuahy defeated. The treatise is intended as a practical lesson on judicial procedure, and has been frequently printed and translated from the Latin into other languages. It has also suggested many similar works by other writers, such as the lAber Belial, $. processus Luciferi- contra Christum. Savigny calls it a pedantic and extravagant jest,^ but Bartolus certainly did not mean it to be accepted otherwise than as a serious contri- bution to the practical study of the rules of procedure. Their Value at the Present Day. — Except as a coimecting- link between the older system of law prevailing in the period preceding the break-up of the Eoman Empire of the West and that of the system adopted by the modern nations of Europe, the works of Bartolus offer httle attraction to the ordinary student of the present day. They are now scarcely consulted, and lie neglected — at least in this country — on the shelves of public libraries. Nor is it hkely that they will ever again regain much attention. But to those who are interested in discovering how the jurisprudence of modern times has arisen, by mere development and progressive change, from earher systems, the influence which Bartolus exercised in the latter part of the Middle Ages is fuU of abiding interest. This period of history is par- ticularly distinguished by examples of awakened energy and restless enterprise, and it is only by a knowledge of the part it played in the development of scientific law that we can hope to be able to appreciate the march of progress in subsequent cen- turies, or to understand the striking divergence of legal thought in different parts of Western Europe which even now distinguishes 1 vi. 160. BAETOLTTS 57 the Italian, French, and German schools of jurisprudence. EngHsh law, of course, stands apart from the laws of the rest of the European nations in its relation to Roman Law, for here that law never acquired the same degree of influence which it naturally obtained on the continent of Europe. Insular isolation has here served to mould our laws, our constitution, and our customs according to ideals suitable to the peculiar conditions under which we Mve. But even here expansion of trade and increasing intercourse with foreign nations have brought us face to face with the intricate problems arising out of a conflict of laws with which foreign jurists of the thirteenth and later centuries had to deal. No one who is interested in the solution of these problems, which are constantly becoming more and more complex in character, can be indifEerent to, or fail to derive advantage from, a study of the principal works of those earMer thinkers in this department of jurisprudence ; and it is from this point of view that Bartolus still deserves attention in this country. There was a time when it was usual to brand the Middle Ages as a dark and barbarous period distinguished only by Faiostrecht or Kolbenrecht. But an age that could produce a Dante and a Petrarch can never be said to be uniHuminated by genius, and among the jurists of the same age Bartolus can never be denied a pre-eminent position. It has been said that there is even a poetry in law ; but, as Von Ihering has eloquently observed, die wahre Poesie des Rechts liegt in der Erhabenheit seines Prob- lems und in seiner an Majestat und Gesetzmdssigkeit dem Laufe der Gestirne vergleichbaren Bewegung} And a man like Bartolus, who took a leading part in this evolutionary movement, and initiated some of those lofty problems, deserves a niche in any gallery of great jurists of the world. 1 Oeist des riimischen Eechts, i. 62. AM)REA ALCIATI AND HIS PREDECESSORS Law may be investigated from various points of view — its historical evolution and its organic relation to its age, the syn- thesis of its dogmatic content, or the philosophical significanoe of its fundamental priaciples . Of the second and third categories there are several notable representatives in the present series of Great Jurists ; the great importance and fruitfuJness of the comparative and historic method will be exemplified in this and the following essays devoted to two jurists who were pre-eminent pioneers in the apphcation of that method to the study of Roman- istic jurisprudence. Alciati, kindled by the humanist movement in Italy, was the veritable inaugurator ; then followed Cujas, his great disciple, who elaborated and perfected this method, and indeed surpassed his predecessor in many respects. To them is largely due the subsequent rational study of Roman law, the more accurate restoration and interpretation of its numerous texts, its scientific development generally, and its influence on national legislations.^ Roman Law before Alciati — In the East. — ^During the half- century following Justinian, in the Eastern Empire, there ap- peared, with his sanction, numerous Greek translations and epitomes of his legal compilations, and also — ^though prohibited by him — commentaries and interpretations. The century after was a period of stagnation and neglect ; the pubHc law school of Constantinople was closed in 717. Then came, between 740 and 911, a brief succession of Graeco-Roman codes or manuals issued by the authority of the Byzantine Emperors . Thus we find the Ecloga Legum (740), the Prochiron (c. 878), the Epanagoge Legis (884-6), and, most important of all, the Basilica (or Basilicae) (906-11). Ostensibly these works were based on the Justinian ^ As the subjects of this essay and the following partly overlap, and the periods to some extent synchronize, the two studies are presented with the hope that they will be taken as supplementing each other ; otherwise it would have been impossible to avoid a considerable amount of repetition. 58 ANDREA ALCIATI ANDEEA ALCIATI AND HIS PRBDECBSSOES 59 codes ; in reality they were drawn from translations, epitomes, and commentaries which ultimately superseded the original texts. Thus by the end of the eleventh century the great Roman jurisprudence fell into abeyance owing to the prevalence and usurped authority of these compilations, the substitution of the Greek language for the Latin, and the ever-growing influence of the canon law. In the West.^ — In order to appreciate duly the position and reformative influence of Alciati and the other humanists, it is essential to bear in mind the fortunes of Roman law in the West from the time of Justinian to the sixteenth century. This long period may be subdivided into more or less defined stages : Roman law to the middle of the eleventh century ; revival in the second half of the eleventh century mainly connected with Irnerius at Bologna ; the glossators ; the Bartolists, or com- mentators ; the fifteenth-century preparation for humanist JTirisprudence, and the sixteenth-century humanism. An ade- quate treatment of this evolution would obviously demand many volumes ; but for the purposes of the present study, its charac- teristic features may be very concisely indicated, so as to enable us to discern in truer perspective the bearing and significance of the main subject imder consideration. (a) Homan Law to the Middle of the Eleventh Century. — The epoch of the last struggle between the Western Empire and the barbarians was marked by " the romanization of the provinces and the barbarization of lElome.''^ The imperial courts and the Roman law exercised supreme authority ; but the principle of personality, in view of racial differences and conflicting legal systems, had already begun to assert itself. In the provinces, Roman law assumed, in the hands of the barbarians, a debased and distorted form. Before the publication of the Corpiis luris we find various complications, e.g. the edicts of the Ostgothic Kings, the Lex Bomana Burgundionum, the Lex Bomana Visi- gothorum (the Breviarium Alaricianum, drawn up in 506, as an 1 Cf. for the history of Roman law in the Middle Ages, P. Vinogradoff, Roman Law in Mediaeval Europe (London, 1909), where the chief authorities are conveniently given. Special reference may be made to the various works of H. Pitting, and to that of M. Conrat [Oeschichte der Qudlen und Literatur des romischen Bechts im friiheren Mittdalter, Leipzig, 1889-91). For the entire subject, however, previous to Alciati, the great work of Savigny (Oes- chichte des romischen Rechts im Mittdalter) stiU remains unsurpassed, though later contributions have in many respects amended some of his views. ^ Vinogradoff, op. cit., p. 4. 60 ANDREA ALCIATI AND HIS PRBDECBSSOKS abridgment of the Theodosian Code, by Alaric II.), the last of which, serving as a whole body of law for the Roman population of France and Spain, long exercised a great influence in Western Europe. The compilation of Justinian, some three decades later, was accepted only in the East, and in those parts of Italy which that legislator had retaken, and for several centuries was practi- cally dead in the West. Further decay is shown in the barbarous Lex Romana Curiensis (end of the eighth century), a statement of legal custom based on an imperfect abstract of Alaric 's Breviary, which was used in East Switzerland, North Italy, and the Tyrol ; and again in the Romano-Germanic Lex legum, which embodies a miscellany of rules taken from the Edict of Theodoric, the law of the Visigoths, the Justinian Code, and barbarian law. In the early Middle Ages, the barbarian governments could not avoid the various inconsistent mixtures in their legal systems ; and even imder the Carohngian sovereigns, who effected therein some harmony and imity, racial differences were emphasized, the apphcation of law became personal and local, and legislative conflicts hence obtained. Nor was the principle of personahty entirely eradicated by the rise and operation of local customs, which naturally assumed a Roman, Lombard, or Frankish character, according as one or other race predominated in the region concerned. And Roman law supphed the basis of such customs in several districts, e.g. in Central Italy the Jus- tinian Code prevailed, in South Italy the Corpus Juris as well as the law of Justinian's successors, in South France and North Spain Alaric 's Breviary apphed ; further Roman influence was clearly manifested also in Germany, in North France, and in England. Moreover, the compilations that were drawn up for ecclesiastical use show a great indebtedness to Roman jiuris- prudence : thus the Lex romana canonice compta, a Lombard work of the ninth century, is a collection of Roman rules for the use of the clergy, the Collectio Anselmo dictata is a mixture of Roman and canon law. The popes and the pontifical courts consistently maintained the authority of a good deal of the Roman civil law, and esteemed it only a little lower than the canon law. In the meantime other classes of works helped to preserve the life of Roman law ; amongst these are productions like the Etymologies or Origins of Isidore of Seville, which contains extracts from classical literature, enactments, and from the writings of juris- consults ; and — what is much more important — ^the numerous ANDREA ALCIATI AND HIS PREDECESSORS 61 Epitomes, Summae {e.g. the Perugian Swmma of the Code), and Glosses^ — which were often less juridical than grammatical — on the Code and the Institutes {e.g. the Pistoian Gloss on the Code, the Turin Gloss on the Institutes). Thus it is seen that Roman law, though here and there in a more or less debased, adulterated, or garbled form, persisted in practice throughout the momentous vicissitudes of the five centuries after Justinian ; neither territorial conquests nor the development and supremacy of the feudal system could entirely crush it. As a science it preserved less vitahty ; the earher example of the law schools of Rome, Constantinople, and Berytus proved then of no avail ; such theoretical teaching and systematic study of Roman law as obtained were mainly confined to the schools of the clerical and monastic orders, and even then commonly re- garded as supplementary to the study of rhetoric and preparatory to that of canon law. (6) A Revival in the Second Half of the Eleventh Century. — The eleventh century was a period of transition. The religious, social, and political organization of Europe imderwent considerable change. The papacy had made continual encroachments on the hierarchy and on civil governments, and now in Gregory VII. we see the great representative of its temporal claims, and the opponent of the secularization of the Church. The feudal system was perfected. Scholastic philosophy, with its dialectics, its theological and metaphysical speculations, was established in the age of Lanfranc and Anselm, and further developed by Abelard and Peter Lombard. A juridical renaissance — preceding the revival of letters — was witnessed, and bore lasting fruit in certain locaUties — in South Prance, Lombardy, Ravenna, and Bologna. About the middle of the eleventh century a know- ledge of the Pandects spread in France ; and by the side of Glosses and abstracts appeared more systematic treatises, e.g. Petri exceptiones legum Bomanorum ("Excerpts by Peter "), a manual designed for the use of magistrates, which is drawn from the Corpus luris and refers also to the laws and customs of the barbarians ; the Brachylogvs iuris civilis, a compendium of the ^ A gloss (glossa, y\ua-cra) meant originally (for example, in Greek and Latin writers) an archaic, or poetical, or foreign word requiring interpretation. Later it was referred to the explanation itself ; thus Isidore of Seville uses the word in this sense, and Alouin defines it accordingly: " unius verbi vel nominis interpretatio." With the glossators the gloss was extended from single words to entire sentences and passages, and sometimes became a running commentary. 02 ANDREA ALCIATI AND HIS PKEDECESSORS Justinian law made on the model of the Institutes, and taken from the Code, JuUan's Epitome (middle of sixth century), and Alaric's Breviary ; and the recently discovered Lo Godi (c. 1149), a summary of the Code, for the use of magistrates, written in the Proven§al language, is mainly remarkable as being the first work on Roman law in a vernacular tongue.^ As to the Lombard cities, they had grown in population, power, and wealth ; the organization of their coromunes, their love of Hberty and inde- pendence gave to civil and political Hfe a new activity and new needs ; increasing commercial and private relationships demanded a civil law much more developed and consistent than that which was suppKed by the various Germanic tribes. Glosses on Ger- manic law made more and more reference to Roman law ; and about 1070 appeared the Liber Papiensis, a compilation of edicts and capitularies passed by the magistrates of Pavia, which presents a mixture of Roman and Lombard law. The law school of Ravenna became conspicuous for its support of Henry IV.- and Clement III. against Gregory VII., but it was soon trans- cended by the school of Bologna, founded by the Marchioness Matilda in order to counteract the influence of Ravenna. Pepo lectured in Bologna about 1076 ; but the most illustrious professor of the time was Irnerius,^ who was designated by the subsequent glossators the "lucerna iuris." His lectures on the Code and the Institutes were a great stimulus to the study of Roman juris- prudence. His works embrace numerous glosses, summae (sum- maries, compendiums) of Lombard law and the Code, treatises on legal formulae and interpretation. He was in some respects a creator ; he was the first systematically to collate and compare texts, and estabhsh consistent conclusions therefrom. Under him Bologna became supreme in law studies ; and thence began a continual flow of distinguished Romanists to the universities of Italy, Erance, and other parts of Europe ; thus Placentinus did pioneer work at Montpellier, Vacarius at Oxford. (c) The Glossators (about 1100 to 1250). — The immediate successors of Irnerius were the "four doctors," Bulgarus, Mar- tinus. Jacobus, and Ugo, who made the famous declaration at ^ See Vinogradoff, op. cit., pp. 60 seq. ^ Irnerius (Guamerius or Warnerius) first taught the " artes liberales," and probably began teaching law about 1088. He died after 1125. — On this part of the subject, the chief authority is H. Fitting, Die Anfdnge d^er Jtechts- schule zii, Bologna (Leipzig, 1888). Cf. also G. Pescatorc, Die Olossen des Irnerius (Greifswald, 1888). ANDBEA ALCIATI AND HIS PREDECESSORS 63 the Roncaglia Diet (1158) in favoiir of the Emperor Frederick Barbarossa's right to tax the Lombard cities. Though their leaning was to monarchical centrahzation as against feudal dis- integration, yet their decision was due to the way they inter- preted certain texts of Roman law rather than to any spirit of pohtical partisanship. Theyregardedfeudal law as a development of the doctrine of emjihyteusis} A distinguished pupil of Martinus was Placentinus, who taught at Mantua, Bologna, and then at MontpeUier, where he died in 1192. The teaching of Bulgarus, the Chrysostom of jurisprudence, was transmitted by disciples like Rogerius and Bassianus to Hugolinus and Azo, and by these to Accursius, the head of the Bolognese glossators. Azo (died c. 1230) lectured at Bologna and MontpeUier ; and his gloss and Summa of the Institutes and Code enjoyed such great authority, especially in the Courts, that a knowledge of these works was considered indispensable to those who aspired to sit on the bench — "chi non ha Azzo, non vada a palazzo." In England he was followed by Bracton, whose work De legibus et consuetudinibus Angliae is the most important British contribution to Romanistic jurisprudence. It was intended for practitioners, and was based largely on the case law of Henry III.'s age and on Roman materials derived from Azo. Similarly, in Germany appeared manuals of customary law, e.g. Eike von Repgow's Sachsenspiegel (Saxon Mirror), a compilation of the law of the Saxons ; this was soon followed by kindred productions, showing the rising influence of Roman conceptions. The GlossaOrdinariaoi Accursius [c. 1182 — 1260) is a comprehensive collection of many previous glosses and extracts from numerous manuscripts, most of which are no longer extant ; it is thus an epitome of the entire school, and as such it brings together and compares diverse scattered texts and opinions, and endeavours skiKuUy and acutely to reconcile seeming inconsistencies. In general the work of the glossators was of a practical character, designed mainly for consultative and magisterial purposes. In some quarters the Courts attached thereto such high authority that it became a current maxim that the bench recognized only what the gloss laid down : " Quod non agnoscit glossa non agnoscit curia." The Glossae offered elucidations and interpretations of individual texts, and were at first interUnear, then marginal : sometimes they even amounted to a running commentary {ap- 1 Cf. VinogradofE, op. cit., p. 51. 64 ANDREA AlCIATI AND HIS PEEDECESSOES paratus) on an entire book. They dealt with various matters, from mere grammatical notes to important juridical theories. The Summae attempted a more systematic treatment of par- ticular titles or whole books of the Justinian compilation. In the earUer legal writings the scholastic method with its dialectical argumentation is in the ascendancy ; but afterwards in the more characteristic work of this school, a more or less literal inter- pretation, couched in concise terms, and a marshaUing of texts and opinions constitute the general mode of treatment, though the formal method is stiU apphed in the developing of conclusions. How could it well be otherwise in an age which produced such pre-eminent masters of scholastic philosophy as Albertus Magnus, Thomas Aquinas, and Dims Scotus ? However, Justinian gradually became to the new order of lawyers what Aristotle was to the old. Jurisprudence did not become, like philosophy, the servile handmaid of theology. Further, the law of procedure (ordo iudicarius) was set forth, and collections of controversies {dissetisiones) and investigations {quaestiones) on this and other subjects were produced. All these works show their authors' knowledge of the whole Justinian body of law, except the Novels in Greek. But the writings of Gaius, the fragments of the classical jurisconsults Mke Ulpian, and the Basilica seem to have been unknown to them, nor did they take account of the Theo- dosian Code or Alaric's Breviary ; they made use, however, of the Lombard canon, and feudal law, and of the statutes of the Itahan cities. To them is due that strange division of the Digest which is usually adopted in the sixteenth-century editions — Digestum vetus (Bk. I. — Bk. XXIV. t. 2), Infortiatum (Bk. XXIV. t. 3— Bk. XXXVIII.), Digestum novum (Bk. XXXIX. — Bk. L.). They were not infrequently on the right Une in comparing and critically examining (as Accursius in particular does) various texts, in order to arrive at the correct source. But their glaring defects, in spite of much good and useful work, were soon to bring the whole school into discredit. In the first place, trivial verbal meanings were too commonly offered, e.g. quamvis as an equivalent for etsi, absurd explanations were sometimes propounded, as in deriving the lex Furia Ganinia from canis, Tiber from Tiberius, and in interpreting pontifex simply by episcopus or papa ; secondly, superabimdant exegesis tended to overwhelm the intrinsic content of the text ; finally, historic perspective was wanting, alike in numerous details as in attribu- ANDREA ALCIATI AND HIS PREDECESSORS 65 ting to Ulpian and even Justinian a date prior to the Christian era, confusing Caracalla (Antoninus) with Marcus Antonius, and in more fundamental assumptions, e.g. that the Empire under the Grerman rulers was a regular continuation of the Roman, and therefore subject to similar law and polity. A good many of the erroneous interpretations advanced are due to a failure to reaUze the historical relationships of the constituent parts of the Corpus luris. (d) The Commentators, or Post- Glossators. — The glossators had done much to restore the Justinian law, but with the con- densation of their work by Accursius and the almost exclusive attention paid to the latter by courts and schools, the progressive movement was checked. Texts and sources were disregarded in favour of the gloss. It was said that some even went to the length of glossing the gloss of the gloss. The school of the fourteenth and fifteenth centuries — variously designated the post- glossators, the commentators, the Scribentes, or Bartolists — ^rcse against the tyranny of the gloss. Some of the earliest representa- tives were found in France, e.g. Jacques de Revigny (Jacobus a Ravanis, d. 1296), who proved himseK a formidable opponent and skilful dialectician, and his pupil, Pierre de BeUeperche (Petrus a Bellapertica, d. 1308), who became Chancellor of Prance ; in Italy we find the jurist-poet Cinus a Pistoia, friend of Dante, model of Petrarch, and master of Bartolus. Cinus severely condemned the bhnd devotees of the gloss, and declared that "glossa iUa est diaboMca et non vera."^ The ItaHan Bartolus^ (1314-1357), who taught at Pisa arid Perugia, was the acknow- ledged head of this school ; the reactionaries regarded his authority with the utmost veneration, styled him the "monarcha iuris,'' and some, like Jason, spoke of him as a terrestrial deity. Even Alciati considered him in some respects the first of jurisconsults ; but Cujas had a higher opinion of Accursius. The works of Bar- tolus include pommentaries (or ledurae) on the Digest and Code, treatises on pubhc law, private law, and on procedure {e.g. Ordo iudicii, De testibus), some controversial writings (quaestiones), and professional consultations [consilia). In many quarters these writings enjoyed the force of law. At Padua a chair was estab- lished to expound the law, the gloss, and Bartolus ("lectura 1 Comment in Cod., viii. 45. Cf. ibid., vi. 15 : " Ita dixerunt doctores et glossa . . . et quotquot fuerint etiamsi mille hoc dixissent, omnes erraverunt." ^ See the preceding essay. 6 66 ANDREA ALCIATI AND HIS PEEDECESSOES textus, glossae, et Bartoli ")^ ; as a French writer remarks, one had ahnost said the law and the prophets. ^ Other prominent members of the school were— in Italy, Baldus (1327-1406), who taught at Perugia and Pa via, and often acted in a judicial and diplomatic capacity, P. de Castro (d. 1438), P. de Imola, Jason de Mayno, B. CaepoUa, P. Decius (1454-1535) ; in France, G. de Cuneo, who became a bishop, J. Faber {d. 1340), a seigniorial judge who was, through his practical works, called "pater practicae." Their juristic productions, Hke those of Bartolus, include exegetical works, manuals of practice and procedure, casuist works consisting of casiis, quaestiones, consilia, and systematic treatises.^ The -aim of the Bartohsts was to unite practical apphcations with theoretical disquisitions, to draw from Roman jurisprudence a law that would meet the needs of their time. The original sense of texts was thus often perverted ; Roman elements were made to serve in the construction of doctrines which in their entirety were foreign to ancient civil lav/. And in this process the dialectic method of the scholastic philosophy was adopted, not indeed for the first time, but with greater thoroughness and subtlety. Paris had become, through the influence of Abelard, the leading centre of scholasticism ; and, as Savigny has shown,^ this method was first consistently appUed to law by French legists in the second half of the thirteenth century, and soon after Cinus introduced into Italy the doctrine of these "moderni " (as they were called, in contradistinction to the earher glossators, the "doctores antiqui"). Thus, while the' attitude of the glossators was to some extent "humanistic " and their Roman law was more or less divorced from actual hfe, in the hands of the commentators there was usually a co-ordination of life and law, together with scholasticism. They correlated Roman law, though in isolated texts, with canon law and the ordinances and statutes of the Lombard cities, and in such correlation they were always mindful of actual forensic causes. The glossators had deemed the Corpus luris an embodiment of the ius commune, the universal law of civihzed mankind ; but this was so on theoretical gromids . Their "■ Cf. Savigny, op. cit., vol. vi., p. 154. ^ J. Plach, Cujas, les Olossateurs et les Bartolistes, in Nouv. Bev. Hist, de dr. fran. et Stranger (Paris, 1883), vol. vii., pp. 2IJ5-27, at p. 217. 3 Cf. J. Brissaud, Cours d'histoire generate de droit franrais, 2 vols. (Paris, 1904), vol. i., pp. 219-20. * Op. cit., v., pp. 603 seq. ANDREA ALCIATI AND HIS FEEDECESSOHS 67 successors went further and imported it, in an adulterated form, in to the actual legislative construction and the practical ad- ministration of justice ; and so they estabhshed, as it were, a "usus modernus Pandectarum." Practitioners paid more heed to the "communis opinio " than to theory and cogent reasoning from first principles ; thus the citation of authorities was pre- ferred to the •propounding of reasons. Subtle distinctions, how- ever, as well as arguments fro and contra abound. Though the Bartohsts were contemporaries of, sometimes intimate with, some of the greatest Uterary masters the world has ever seen, as, for example, Dante, Petrarch, Boccaccio, yet their style is marked by tedious diffuseness, prohxity, commonplace ; the observation of Cujas is fully merited — " verbosi in re facih, in difficih muti, in angusta diffusi." In Italy and France their influence remained tiU the coming of men like Alciati and Cujas, and here and there persisted even for some time after ; in Germany it lasted much longer, indeed till the time of Savigny. In the latter country the definitive " recep- tion " of Roman law took place in the fifteenth century ; but it was an impure, glossed, Bartohzed Roman law; the "heutiges romisches Recht " was more Roman in name than in sub- stance. (e) The Beuaissauce of Roman Jurisprudence. — The fifteenth century brought forth no predominating jurist like Irnerius, or Accursius, or Bartolus of the preceding centrales. Circumstances were at first not favourable to legists. Intestine dissensions and the strife of pohtical parties were frequent. The excesses of un- restrained democratic power accelerated the downfall of the Italian repubhcs. Professors of law were not always honoured in their own countries ; and so they were obhged to adopt the wandering life of peripatetic teachers, now appearing in one imiversity, now in another. Their method of holding "dis- putationes," substantially borrowed from their predecessors, saved professorial activity from absolute barrenness. They com- bined practice with teaching ; and in their consultations they largely used principles of Roman law. Roman law had come to be regarded as a kind of "common " law, or as a subsidiary law useful for fihing up gaps in local legislations. Amidst the multi- phcity of customs and statutes, varying from place to place, producing, through their frequent incompatibihty, conflicts and confusion, the Roman body of law offered principles that might 68 ANDREA ALCIATl AND HIS PEEDECESSOES be universally recognized and adapted to promote greater unity and harmony. Moreover, it was looked upon with favour by the clergy, to whose interests it was not antagonistic, and also by sovereigns, whose aggrandizement it did not oppose. Fiu'ther, the century was fruitful in momentous events, which prepared the way for a vigorous revival of Roman jurisprudence. Con- stantinople fell. Printing was invented, and great improvements in paper-making were effected. Libraries, manuscripts, and books multiphed. Exploration of new lands was undertaken. A deep interest in ancient oivihzation was aroTosed ; the study of classical history, hterature, antiquities, institutions was more thoroughly cultivated. In Italy the literary renaissance had already estab- lisned itself in the previous century. And now we find not so much jurists proper, but humanists Uke Ambrogio Traversari {d. 1439), who translated many Greek manuscripts into Latin, and recommended the study of the laws in their original sources and not in the compilations of the commentators ; Laurentius VaUa (1405-1457), who, in the com'se of his classical and philo- logical studies, sometimes threw hght on the language and phrase- ology of the ancient jurisconsults ; and Angelo PoUtian (1454- 1494), poet and scholar, who regarded the texts of Roman law as an invaluable product of antiquity — ^not only intrinsically, but also as an aid to solve problems of Latin philology — and who was one of the very earUest to apply the results of scholarship to juridical investigations, in his comparison of an edition of the Digest printed at Venice, 1485, with the famous Florentine manuscript. And now Avith the approach of the sixteenth century and the ever-increasing humanistic fermentation mani- fested in all branches of intellectual activity, and fast spreading from Italy to other coimtries, there appeared three men — Alciati in Italy, Uhich Zasius [d. 1535) in Germany, and Bude^ (Budaeus, 1467-1540) in France — who showed the world the grave defects of the glossators, the commentators and their legal predecessors in general, and inaugurated with greater thoroughness, con- sistency, and systematic apphcation a more rational and scientific method for the study and true comprehension of Roman law. And of these men, Alciati was the greatest. Estienne Pasquier, who commenced in 1561 the publication of his Becherches de la France, classified the jurists fi-om the twelfth to the sixteenth century into three schools, viz. the 1 His work relating to law is Annotationes ad Pandectas. ANDREA ALCIATI AND HIS PREDECESSORS 69 Glossators, the Scribentes (so called, as lie says, by scholars, and whom he terms "Docteurs de droict "), and the "Humanistes," so called " pour avou" mesle en beau langage latin les Lettres Humaines avec le Droict." He goes on to say that the sixteenth century brought forth "une nouveUe estude de Loix, qui fut de faire un mariage de I'estude du Droict avecques les Lettres Humaines, par un langage latin net et poly."^ Life of Alciati.^ — Andrea Alciati or Alciato (Andreas Alciatus) was born May 8, 1492, in Alzate near Como in the Milanese. He was an only son, and his father, Ambrogio, a wealthy mer- chant, was a decurion (municipal magistrate or councillor) in Milan, and had acted as envoy to Venice ; his mother, Margherita, was a woman of high nobihty. Among his ancestors were men distinguished in Church and State and in learning. Prom his early youth he was devoted to studies. He received his first education in Milan, an important centre of the Hellenic renais- sance. One of his masters there was Janus Parrhasius, a Nea- politan, to whom he was largely indebted for his knowledge of the classical languages, especially Latin ; and among his school friends was Franciscus Calvus. About 1508 Alciati proceeded, with a view to study law, to the university of Pa via, where he attended the lectures of professors like Jason Maynus (de Mayno), who adhered for the most part to the traditional method of exposition by deahng with the "commimis opinio " rather than with the legal text itself, but whose taste for ancient literature greatly influenced Alciati ; Philippus Decius, who showed great skill in his vigorous disputations with Maynus ; and Paulus Picus a Monte Pico, whose discourse, as Alciati wrote in 1522, was marked by labyrinthine confusedness and obscurity.® It appears, from an observation made at Basel University by his friend, Bonifacius Amerbach, in 1 526, that Alciati recognized the futility of his three years' legal course as soon as he directed his attention to Justinian's Institutes, instead of glosses and com- ^ Liv. ix. c. 39. — The term " humanitas " as applied to the classical culture of the Renaissance is found much earlier. Thus in a medallion (made by Pigano before 1450) of Pier Candido Decembrio (1399-1477), the latter is described as " studiorum humanitatis deous." Gf. L. Geiger, Renaissance und Humanismus in Italien und DeutscMand (1882), p. 167. 2 This section of the paper is much indebted to E. von Moeller, Andreas Aleiat (Breslau, 1907). 3 Emblemata, ed. 1599, p. 115, No. 96 : " Obscurus et confusus, ut Picus fuit, Labyrinthus appeUabitur." 70 ANDREA ALCIATI AND HIS PREDBCESSOES mentaries.^ In 1511, owing perhaps to war disturbances, Alciati removed to Bologna, and became a pupil of Carolus Ruinus. Two years afterwards, whilst stiU a student, he published his first work — written, as he himself says, in a fortnight— a commentary (Annotationes) in tres libros Codicis (the last three books of the Justinian Code), which filled a gap. The first nine books were well known in the Middle Ages, and were often referred to as the Codex ; but the remaining portion, dealing mainly with pubhc law and possessing greater historical than practical interest, was much neglected. This work not only showed the young author's knowledge of ancient literatm-e, but — what was of more vital importance — contained, in brilliant style, definitely formulated demands for a new method of jurisprudence, in harmony with humanist conceptions.^ The following year the doctor's degree was conferred on him. Alciati now returned to Milan, and became a member of the College of Jurists (" Collegium imrisconsultorum ") with a view to practising at the bar. He was mindful of the proverbial saying — " Esto advocatus iuvenis et medicus senex " — that whereas long experience is necessary in a doctor, energy, ardour, ambition, untiring handhng of authorities would stand a young advocate in good stead ; moreover, as Accursius had said, " Quanto imiiores tanto perspicaciores."^ The first case in which his opinion was asked was one of witchcraft. The accusation had first been brought before the Ecclesiastical Court, and the presiding bishop before dehvering judgment submitted the question to Alciati. The inquisitor's allegations were parried by Alciati -^lith urbane good-humour ; yet the young lawj'er does not appear to have differed fundamentally on this matter from his contemporaries.'* In 1518 he was appointed professor extraordinary ("regens extraordinarius ") at Avignon, for a period of two years, at a stipend of 300 ducats (about £105) . At the same time Franciscus a Ripa entered the law faculty, and both of them obtained the ight to confer certain degrees. Henceforth began Alciati's series of writings — his Dispunctiones, Praetermissa and Paradoxa — and his great influence on the new movement in France. On 1 Cf. T. Burokhardt-Biedermann, Bonifacius Amerlach und die Reformation Basel, 1894), pp. 193 seq. (cited by Moeller, p. 17, n. 1). 2 On this see further infra. 3 Cf. what Alciati says in his Parerga, x. c. 21 ; in Opera, 4 vols., folio, ed. v. Alciatus (Francofurti, 1617), in vol. iv. col. 465. ^ Parerga, viii. c. 22 {Opera, iv. col. 424). ANDREA ALCIATI AND HIS PREDECESSORS 71 the completion of his term, he was about to return to Italy owing mainly to the inadequacy of his salary ; but the authorities secured a renewal of the engagement for two years more at an increase of a hundred ducats. His fame now spread rapidly throughout Europe. At this time he had an audience of some 700, including old as well as young students, lay and ecclesiastical, noblemen, abbots, and other dignitaries of Church and State. ^ In the winter term, 1520-1, he lectured on the title " De verborum significatione," and by his learning and style roused universal admiration. Sympathetic hearers reahzed that Alciati invested with flesh and blood what had really been dry bones, and imparted to it fresh hfe and sprit. From many coimtries scholars sent him warm greetings and commendatory epistles. Ulrich Zasius,^ struck by the brilliance, erudition, and penetration of the Para- doxa, which seemed to the eminent German jurist literally true rather than presumedly paradoxical, wrote to Bonifacius Amer- bach^ that a mighty reformer of the study of Roman law had arisen, and expressed his readiness to fight under Alciati 's flag. Amerbach at once went to Avignon to continue his legal studies. At this time (1520) Alciati also met Budaeus, and soon after began to correspond with Zasius. Thus was estabHshed that remarkable triumvirate — already designated " triumviratus con- stituendae rei pandectariae," and so recognized by Erasmus, the very prince of humanists — ^which exercised such a profound influence on the subsequent development of scholarship and jurisprudence. " Zasius, Budaeus, and Alciat sind das Dreiges- tirn das damals am Himmel der Jurisprudenz leuchtete."* Shortly afterwards Amerbach introduced Erasmus and Alciati to each other, and many letters thereafter passed between them. Nevertheless the Italian jurist was not without opponents both in France and Italy. In 1521, owing to an outbreak of plague, the university of Avignon was closed, and Alciati returned to ^ MoeUer, p. 34. 2 Zasius was born in Constance, 1461, and died in 1534 ; he was thus much older than Alciati. He was appointed a notary of the episcopal Court in his native town and the highest functions were afterwards entrusted to him. In 1500 he became a professor in the university of Friburg. He agreed with Alciati, as he himself avowed, on the main points, and differed only on minor details. In one respect, however, he was quite unlike his Italian friend — he was not a migratory, wandering professor, but adhered to his own univer- sity. — Cf. R. von Stintzing, Vlrich Zasius. Bin Beitrag zur GescJiichte der Reehtsmssemehaft im Zeilalter der Refcrmation (Basel, 1857). 3 U. Zasii Epistolae, ed. J. A. S. von Riegger (1774), ii., pp. 12 seq. * MoeUer, p. 38. 72 ANDREA ALCIATI AND HIS PREDECESSORS Milan, where he resumed his practice; but learning that the danger in Avignon was over, he went back in November. In the following spring the plague reappeared ; but meanwhile his engagement terminated. A renewal was proposed to him, with the condition that his stipend should be proportionately reduced if the plague again suspended teaching. He rejected this offer and left for Milan, where he pubUshed the first edition of his celebrated book of Emblems (Emblematum Ubdlus). His practice grew fast ; but his restless disposition got the better of him, and he became anxious to obtain a professorship in an Itahan imi varsity, preferably in Padua. In 1523 he suffered great loss through the prevaihng wars and tumuUs ; his house was burnt down, and everyi.hing in it destroyed. In spite of his increasing clientela (which in a letter he jestingly describes as "clitellae," a pack-saddle for beasts of burden), he found time for pursuing his Uterary activities, and for cultivating various branches of knowledge — ^philology as well as jurisprudence, theology, and history, cookery by the side of medicine, and several other subjects. As a humanist he loved the "bonae literae " as much'as the Corpus luris ; he translated into Latin plays from the Greek (for example, the Clouds of Aristophanes) wTote epigrams, completed his Emblemata, and even produced a comedy (entitled " Philargyrus, " i.e. the lover of money). He followed with keen interest the momentous events of the time, and es- pscially those relating to the kindred movements, the Renaissance and the Reformation. His German friends kept him in touch with the happenings in Germany ; in his correspondence we find frequent references to Luther's burning of the papal bull (1520), and to the burning of his own writings ; and he states that Luther's p3rsonality made a deep impression on him, though he did not admire the great reformer's invective and rough manners. Alciati never abandoned Catholicism (in which respect he was imhke a good many of the humanists and legists of the time) ; neverthe- less he was adverse to the licence of the papal court, as weU as to any belief of a superstitious character and to violent assertion of authority wherever found. But knowledge, not rehgion, was his element.^ Early in 1528, fresh war disorders breaking out suddenly in Milan, he went back to Avignon. His succeeding professorship in Bourges (1529-1533) marks an important psriod in his career, and in the development of human- 1 Moeller, p. 48. ANDREA ALCIATI AND HIS PREDECESSOES 73 ist jurisprudence, particularly in France. In the Renaissance movement the dechne of Italy was followed by the ascendancy of France. At the beginning of the sixteenth century Italian culture was fast passing over to the latter country ; and this transference was accelerated by the intercourse and circum- stances incidental to the French wars in Italy. Francis I. was a great admirer and patron of Italian art and learning ; Italian artists, linguists, and scholars found a ready welcome in his court. Thus Alciati, feeMng that he was already highly appreciated in France, that his new doctrines might meet there with wider sjmipathy and acceptance, and that the sovereign's protection might further his cause, therefore assented to the offer of a two years' engagement (the usual period) in Bourges — in succession to the Portuguese Salvator de Ferrandina — at a salary of 600 ducats, together with travelling allowance, etc. Here Alciati soon took part in numerous controversies with eminent men, for example, with Pierre de I'Estoile (Petrus Stella), a famous pro- fessor of law in the university of Orleans, and with Budaeus, particularly in regard to ancient weights and measures (on which subject Alciati had already produced his treatise, De ponderihus et mensuris). His lectures, inaugurated by a public disputatio, " De quinque pedum praescriptione " (which was afterwards pubUshed together with the replies of his six opponents) ,^ consisted of expositions and interpretations of certain titles of the Digest and Code, e.g. "De verborum obhgationibus " and "De pactis." Alciati now added to the number of his distinguished friends some of the leading lights of the French Renaissance, such as Mon- taigne ; and he met with a great reception from his students, who flocked to him from aU parts of Europe, especially France, Italy, and Germany, and many of whom were already distin- guished, or were destined to become so. The mere mention of the names of some of them show what a remarkable concourse of men of intellect, energy, and genius hstened to his lectures. There were John Calvin, Viglius von Zuichem, Karl Sucquet (the latter two having been recommended to Alciati by Erasmus, who urged them to combine Uterature with jurisprudence). Fran9ois Connan, a friend of Calvin, Theodore Beza, J. Amyot, M. Wohnar, C. Gessner, J. Canaye, Ausonius Hoxvir, and others.^ Other notable personages came occasionally to hear his discourses, e.g. the Dauphin, and even Francis I. himself. On the occasion 1 Opera, iii. col. 339 seq. ^ Moeller, p. 59. 74 ANDREA ALCIATI AND HIS PBEDECESSOES of the latter's visit Alciati adorned his introductory address with apt citations ;^ he emphasized the greatness and magnificence of Roman jurisprudence, the high respect due to it, and pointed out that even the peoples who demolished the Roman Empire gladly preserved the Roman law ("hbentissime ius Romanum servaverunt "), and by way of an elegant compliment to the king ended with the lines of Ausonius addressed to the Emperor Theodosius.^ Alciati's fame continued to extend ; the number of his hearers increased from term to term. So he applied for an increase in his stipend. At the same time, however, he was thinking of Itahan universities like Padua and Siena, and was negotiating with the secretary to the Duke of Milan. To the latter he wrote that teaching was more agreeable in France than in Italy, where there were among the students hostile chques who turned up their noses at humanistic culture.^ In March, 1531, his appointment at Bourges was extended for two years more at double the previous stipend. (His negotiations with the ItaUan authorities had had the desired effect.) Now pubhcations— lectures, disser- tations, translations, poems — appeared in rapid succession. The climate of the locality, however, proved uncongenial to him, and in 1532 he suffered several months' illness. This circumstance, together with disputes which arose between him and the university as well as with the municipal authorities, induced him to leave Bourges. He was urged by Bembo (then secretary to Leo X., afterwards cardinal) to go to Padua, but was not satisfied as to the amount and security of the stipend. Aurehus Albucius, a delegate from Pavia, came to him from Francis Sforza, Duke of Milan, with promises of dignities and honours {e.g. that of senator) and an offer of 1,500 ducats. On the conclusion of his engage- ment, Alciati left for Pavia. At the Italian university his expectations were not fully reaUzed. Thus in his letters to Bembo he complained of the effrontery of the " scholastic!," and regretted that, whereas the French and the Germans accepted his ideas with favour, the Italians received them with mockery and derision. The year 1535 is described as a most brilliant one for the universitj- of 1 Cf. Opera, iv. col. 870 seq. 2 " Non habeo ingenium ; Princeps sed iussit : habeo. Cur me posse negem, posse quod ille putat." 3 Hoynck van Papendrecht, Analecia Bdgica, i. 1 (1743), pp. 73 seq. (Cited Moeller, p. 61, n. 2). ANDREA ALOIATI AND HIS PREDECESSORS 75 Pa via, both as regards the lustre of the professorial chairs and the numbers of students. At this time Alciati suffered great loss through the death of illustrious friends. Zasius died in 1535. Sir Thomas More, who, like many other great humanists of the Renaissance, had exchanged letters with the Itahan juristic pioneeer, was executed in the same year. And in 1536 Erasmus died, of whom Alciati wrote, " cuius fama frequens totum circum- volat orbem." In the latter year appeared the first part of the Pa/rerga; and also Processus ivdicarius, a work which the pubUsher falsely ascribed to Alciati, as he knew too well the value of the name when placed on the title-page. Owing to the outbreak of war between the Emperor Charles V. and Francis I., Alciati's activity in Pa via was interrupted ; many students left the town ; and Alciati wrote to Amerbach that only his sohcitude for his mother prevented his abandoning professorship, cHents and property. At the end of 1537, however, he accepted for three years a chair at Bologna ; the reduced sum of 1,200 ducats shows that on this occasion his bargaining capacity failed him. Here the unruly students, by their tricks played on him as well as on other professors, caused him much annoyance. Alciati discerned in this academic hostihty or indifference a certain sign of the lamentable dechne of Itahan humanism. As Paolo Giovio (Paulus Jovius) said,^ ahnost in Alciati's words, the flame of knowledge was extinguished in Italy about the middle of the sixteenth century, and passed over to France and Germany. In 1538, in consequence of a rumoiu" that Alciati was thinking of leaving Bologna before the due expiration of his engagement, the Bolognese threatened to confiscate his property, and also made an appeal to the pope. However, he made new friendships, hke that of Vasari (then a young painter), and so agreed to remain a fourth year at the university. At the instance of Charles V. he was then recalled to Pa via ; but hostihties having arisen again (1542) between the Emperor and Francis (notwithstanding the ten years' truce agreed upon in 1538 between them and the pope), he migrated to Ferrara at the invitation of Hercules d'Este, and was there treated with great hberahty and con- sideration. The pope, Paul III., conferred on him the title of apostoHc protonotary, though it appears that Alciati had expected a cardinalate. In a letter to a friend written at this time he offers an apology for his wandering life : what with the commands ^ In his Historiae sui temporis (Plorence, 1550-1552). 76 ANDREA ALCIATI AND HIS PEBDECESSOBS of sovereigns and the tumults of war he is, he says, driven about hither and thither, and is deprived of rest and tranquillity ; he thinks a book might some day be written on the peregrinations of jurisconsults and especially of himself.^ In spite of his feehng unsettled he continued with his Parerga, and in 1543 added eight new books. Tliree years later he was back again in Pa via. For some time he suffered great physical pain ; and his restless career was brought to an end on January 12, 1550. He was buried in the church of S. Epifanio. His death was universally lamented. Alessandro Grimaldi expressed the feding of all when he said at the fimeral oration that the passing away of their eminent jurist laid a great sorrow on Pavia, on Italy, on France, on the whole world. It was said that with his death law itself was dead, that the muses perished. His epitaph, more modest, shows the great esteem in which he was held and the recognition of his pioneer services in restoring the study of jurisprudence to its ancient glory : " Qui omnium doctrinarum orbem absolvit, primus legum studia antiquo resti- tuitdecori."2 Alciati was a man of vigorous constitution, of over medium height, broad-chested, inclined somewhat to corpulence ; his complexion was swarthy brown, and he had big, wide-open prominent eyes,^ thick lips, a long nose, and large ears. All these characteristics gave him a striking appearance, which could not fail to attract notice ; and his speech, accompanied (as Cardano says) by a smile which ever played about his lips, commanded the attention of his hearers. Aleiati's Writings and their Character. — Alciati's writings do not present a dogmatic or systematic treatment of law or of anj' other subject. They are more or less — and necessarily so, having regard to the time and circumstances of their production — of a fragmentary character, and as such they represent the hfe-long strivings of an ardent explorer, and the results attained by Mm. His aim was to demonstrate the intrinsic significance of the Roman law, to clear it from the spurious additions made by alien hands, to set it forth in the condition in which it left the classical jurisconsults, and interpret its meaning and application not through the vision of subsequent glossators and commentators, but from the point of view of the time and place of its elaboration. * Opera, iv. col. 861 seq. 2 F. Argellati, Bibliotheca. scriptorum Mediolanensium (Mediolani, 1745), vol. i. col. 23. 3 /jjy_^ i_ (joi_ 24. AU'DKEA ALCtAT?! ASTD HIS PBEiDECESSOfeS 77 For this purpose Alciati did not adopt a regular, definite method either in his professorial lectures or in his hterary productions. This is seen in the very titles of his writings — " Paradoxa " (paradoxes, seemingly incredible views), " Praetermissa " (things overlooked or omitted), " Parerga " {obiter dicta, appendices), " Dispunctiones " (examinations, investigations, revisions), " Annotationes " (annotations, remarks), and so on. Besides his voluminous commentaries on various titles of the Digest and the Code, he wrote miscellaneous treatises and contributions, such as De magistratibus, De praesumptionibus, De ponderibus et mensuris, De verborum significatione, etc. His legal opinions (BespoTisa), comprised in a posthumous pubHcation the fourth edition of which, issued at Basel in 1582, contains some eight hmidred decisions, relate to municipal law, canon law, feudal law, criminal law, wills, contracts, privilegia, and civil procedure. Some of these opinions throw Mght on important controversies of contemporary history, as, for example, the conflict between Duke Uh-ich of Wiirtemberg and Ferdinand of Austria,^ and that between Duke Henry the younger of Brunswick and Goslar.^ Alciati's interest in history is shown apart from his devotion to ancient life and institutions, by his Encomium historiae (1530), though already in 1519, in his dedicatory epistle to his Notes on Tacitus, he emphasized the value and importance of historical science. In the latter work he skiKully compares and contrasts Livy and Tacitus, and, being the sound judge that he is, he has no hesitation in awarding to the latter a much higher rank.^ He began also a history of Milan, which reaches to the fifteenth century ; in this work, however, he does not manifest a very great critical power in the handling of the sources, but shows too strong a leaning to roam in curious interesting by-paths. " Er besass in hohem Masse . . . den Sinn fiir das Interessante."^ But his collection of inscriptions has a much greater value, and has been utilized by later researchers. No less a writer than Mommsen, whose authority in this category of historical documents is supreme, has declared that not only did Alciati reform juris- prudence, but he also laid the foundations of the science of epi- graphy.^ As a humanist he had a deep love for classical htera- 1 Besponsa, col. 354 seq. ^ Ibid., col. 694 seq. 3 Opera, iv. col. 876. * Moeller, p. 125. 8 Corpus Inscriptionum Laiinarum, vol. v. pt. 2 (Berlin, 1877), pp. 624 seq. ; at p. 624, col. 2 : " . . . Non solum iufis prudentiam reformavit, sed etiam epigraphiam ita fundavit, ut primus corpus conderet inscriptionum patriarum itaque viam aperiret." 78 ANDREA ALCIATl AND HIS PEEDECESSOBS ture ; he issued several Latin translations from the Greek, e.g. a version of Aristophanes' Clouds, and also a compilation of epi- grams (Selecta epigrammata graeca latine versa, 1529). He wrote also an original comedy which. has aheadybeen mentioned, and a number of Latin poems, the most important of which are his Emblems, which were widely appreciated : indeed numerous editions were pubhshed in many countries, and translations into most European languages were made in course of time. Finally he wrote a treatise on dueUing (De singulari certamine), and the various questions arising he discusses not merely as a skiKul lawyer, but as a luminous writer possessing both classical and modern cultiure. His works are written in a clear fluent style, free from tedious circumlocutions, pedantic heaviness, and pompous display of scholarship. This is aU the more noteworthy as he wrote in an age not yet Uberated from the influence of the scholastics and their overloaded citations. His object is to give pleasure to his readers as well as to impart instruction. As his recent biographer says : " Er wiU seine Leser nicht nur belehren, er will sie zugleich unterhalten."^ He mingles illustrations taken from the Middle Ages and from contemporary history with those culled from antiquity ; and here and there he reheves the seriousness of his disquisitions by interspersing personal anecdotes and autobio- graphical reflections. Thus he was perhaps the first of lawyers in whose writings we find purity and elegance of diction, and that marked personal note, that indefinable charm which characterizes the cultured humanist and the true artist. Alciati as Reformer. — ^Alciatitook a keen interest in all branches of learning, and notably in such as were ancillary to law, e.g. history, philology. He followed with dehght the new discoveries of ancient writings, whether of a purely Hterary or technical character, as, for example, those relating to medical questions. To the literature of his age as well as to that of the Middle Ages, he was a zealous adherent. He had a wide knowledge of Roman authors in general, and was especially attached to Cicero, whom he regarded as the very begetter of eloquence, "parens elo- quentiae " ; Uke Erasmus he cultivated a pure, terse, flexible Latin style, and, like Erasmus^ — though urflike so many other writers of the time — he refused to pay homage to the prevailing fetish of factitious Ciceronianism. What was a rarer acquisition, - Moeller, p. 111. andkea alciati and his predecessors 79 especially so in the case of the majority of preceding and con- temporary jurists, he possessed an excellent knowledge of Greek, though he was not, of course, a consummate Hellenist like Budaeus ; in any case he made fruitful use of his acquaintance with Greek authors and texts of Romanistic jurisprudence. He was one of the leaders of the humanist movement, and he cherished all the aspirations and made all the high claims of his illustrious fellow-workers. To these high claims regarding the many-sided knowledge and accompUshments necessary to the making of a sound lawyer, there were not wanting rephes and reproaches of opponents, who restricted their attention to the subject-matter of jurisprudence proper and had httle time or aptitude for cultivating classical Uterature. Thus Albericus Gentilis maintained that the presumptuous humanists or " Alcia- tists " ("Alciatei," as he called them) were scarcely entitled to the name of jurists at all, and that jurists could get on well enough without devoting themselves to Greek and Latin letters.-' How- ever, Alciati throughout insisted on independence and cultiure as against the shackles of blind faith and tj^annous authority. He emphasized that conviction based on right and adequate knowledge, and sound judgment founded on the actual materials concerned (as the ultimate data from which vaHd conclusions may be drawn), are of greater import than a passive acceptance of the conclusions of scholastic exegesis, and still more so than acquiescence in the accumulated opinions of commentators merely repeating each other.^ Truth, inviolable, immutable, is alone the all-compelling authority. Though he was near to be- coming a cardinal, yet he denied the large claims of the pope, and even refused to accept the Bible as finally decisive. The new method introduced in the sixteenth century into the science of Roman law is not the result of an isolated manifesta- tion, but is at one with the general revolt of the human mind against the burdens of tradition and its accompanying abuses ; it is part of the gradual efflorescence of the human intellect in all the regions of thought and behef . Thus it has a close affinity with the religious insurrection of Luther and Calvin, with the philosophic doubt of Descartes, with the scepticism of Rabelais and Montaigne, with the pioneer work of scholars hke Scahger and Lipsius, with the general literary revolt in Europe, with the * A. Gentilis, De iuris interpretihus dialogi sex (Londini, 1582) 2 Cf. Optra, iv. col. 860. 80 ANDEEA ALClAtI AlJD SlS PREDECESSORS efforts to reintroduce classical types of architecture, and with many other phenomena of a Hke tendency. In a word, it indi- cates the passing away from medievaUsm with its dogma and authority and stifled individuahty, to modernism with its freedom, expansion of personahty, and demand for the actual and real. Already in the first of his pubhshed writings, the Commentary on the last three books of the Code, Alciati proclaims defiantly in his prefatory dedication the demands of the new method in jurisprudence, and the necessity to bring it into hne with human- ism. He reaUzes that before him some effort had here or there been made to bring about an emancipation from the old incubus by appealing to the Corpus luris and taking refuge in it. But no one had as yet clearly indicated the desired goal and cleared the way thereto. And so Alciati, though scarcely more than a youth, comes with his call to arms ; he exclaims that the old traditions are going and must go, and he wiU show the world how to estabhsh a new condition of things ; he expects opposition, he imagines the subtle retorts of the old doctors and the noise of those who would demohsh with their invective what they are too stupid to understand ; he will not, however, turn from his purpose, he is courageous and hopeful in his enterprise.-^ In this undertaking Alciati was supported by Zasius in Grermany, and Budaeus in France ; and Erasmus declares (in a letter to Karl Sucquet) that they were the three who were instrumental in remedying the lamentable conditions of the hitherto existing jurisprudence, by pointing out the corrupt and mutilated charac- ter of the texts and restoring to them their original form and meaning.^ Alciati did not ehminate from his consideration canon law, customary and local law, German, Lombard, French, or Itahan ; as an advocate he had frequent occasion to refer thereto. But when he speaks of jurisprudence he means, of course, Roman law ; and in his view it would be the highest glory of a modern jurist to grasp it and expound it as forcibly and acutely as a Papinian or a Scaevola. Times and seasons, he says, come and go ; but the Roman system remains in aU its splendour and greatness,— as the ancients said, it is a work of the eternal gods.^ A great jurist is only a priest in the service of Justice. The theoretical 1 Cf. Opera, in. col. 479-80. 2 Erasmus, Epistolae (Lond. 1642), col. 1262-G3. * Opera, iv. col. 849. ANDKEA ALCIATI AND HIS PEEDECESSORS 81 work of explanation and construction is in many respects of greater importance than the practical work of the advocate ; theory represents the captain, practice the men. And to do that work efficiently it is indispensable to go to the sources, and not to the glosses and labyrinthine commentaries of the glossators and the Bartohsts (though sometimes to consult Bartolus himself might prove profitable) ;^ in order rightly to interpret a lex it is fatal both to one's own understanding and to that of others to offer the inextricable maze of opinions on opinions and explanations of explanations.^ At best the system of exegesis may succeed in elaborating some rules and formulas, but a harmonious unified system can never result therefrom.^ One perusal of the Corpus luris itself is far more profitable than a whole life given to inter- pretationes, repetitiones, and disputationes. What would Jus- tinian have said of the dialectical proceedings concerned, as they were, more with words than with things, more with dogmatic asseverations than with unprejudiced searching for truth 1* Return, then, to the method of Justinian if you woiold find your way out of the existing confusion. And again, besides going to the veritable sources, we must effect a constant alliance of the study of law with that of other relative subjects, so that the results of the latter wiU help to explain or reinforce, or if need be modify, the conclusions of the former. On account of the unity of knowledge and essential correlation of its branches, the sub- sidiary subjects in question will be numerous ; but some are of especial importance, e.g. history, philology, literature ("bonae literae "). And, reciprocally, sound conceptions of law will prove an invaluable aid to the attaining of a fuUer and more rational understanding of each of these subjects. Hence the philologists, the "grammatici " who confine themselves to verbal constructions, very rarely discern the right meaning of legal passages, and the fundamental import of the law set forth f thus AngelusPohtianuswas once laughed at by Socinus for not knowing the real meaning of " suus heres."^ As to the glossators and com- mentators, Accursius, Bartolus, and their associates, not once did they even sip of non-juristic knowledge.'' True jurispru- dence, indeed, necessarily embraces, or is closely related to, all other sciences : " Haec ars ceteras omnes in se continet,"^ and so 1 Opera, col. 868. ^ /jj^;.^ ool. 73 (Paradoxa, iv. prooemium). 3 Ibid., col. 866. * Ibid., col. 860. » Ibid., col. 275. » Ibid., col. 191. ' Ibid., col. 753. * Ibid., ool. 852. 7 82 ANDREA ALCIATI AND HIS PEEDBCBSSOES is, in a sense, pre-eminent. The comparative method, therefore, of Alciati aims at reveahng the indissoluble connection of the Corpus luris with the entire ancient culture, by making syste- matic use of mutual illustration and exemphfication ; and the soimd application of this method consequently demands many- sided knowledge. The exaction of such high qualifications is perhaps not so imreasonable in an age which produced men of universal genius hke Leonardo da Vinci, Leo Baptista Alberti, Michaelangelo. As to the history of Roman law, however, Alciati thought there was then little prospect of successful results ; in the earher period more particularly only suppositions and conjectures are possible ; for that part of the subject is clouded in obscurity, and what there is of it is but a feeble shadow.^ He was but little concerned with pre-Justinian soiirces, and scarcely reaUzed how much early Roman law is embodied in the Corpus luris. In conclusion it may be said that Alciati certainly did not accomphsh as much as his methods and projects promised. He was one of those — hke our own Coleridge, for example — ^who design much, but leave only a few fragments — ^fragments, however, destined to prove of the greatest influence and a vital inspiration to his contemporaries and successors. He restored texts, showed how they were to be interpreted, from what point of viev/ thej^ were to be regarded, how they were to be related to the Hfe and thought of the time which brought them into being. No doubt he committed mistakes, some of them the errors of an explorer, others inherited from inveterate tradition ; but his fundamental intention, namely, the establishment of a rational scientific method, was fulfilled. He more than any other jirrist has a right to the title of f oimder of the humanist method ; to him is due the rise of the great French school of jurisprudence in the sixteenth century, with, on the one hand, systematizers hke the eminent Doneau, and, on the other, humanist investigators and restorers like Cujas, the real juristic coryphaeus of the century. ' Opera, col. 443 seq. JACQUES CUJAS JACQUES CUJAS Law in France before Cujas. — ^Already in the eleventh century the wave of learning and culture was felt in France as well as in Italy. The curriculum of the university of Paris included legal instruction (that is, canon law which however contained Roman elements), as well as theology and the arts. With the influence of men like Abelard, as was pointed out in the preceding essay, Paris became the leading centre of scholasticism ; and the scholastic method and spirit at once had a great effect both on the study of jurisprudence and on legal practice. Various com- pilations were made of the usages and customs of France ; thus we find at the very beginning of the eleventh century a collection entitled Assises de Jerusalem. Numerous manuals and epitomes were also composed, incorporating a large body of Roman law ; such were the Decretum and Panormita of Ivo of Chartres, the Exceptiones Petri, the Brachylogus iuris civilis, and Lo Codi, aU of which have previously been mentioned.^ Two rival schools of law contributed much to the advance of jurisprudence, both native and Roman : one was that of MontpeUier, which was greatly indebted to Placentinus, and established itself as the leading representative of law teaching in the "pays de droit ecrit," the other was that of Orleans, which was organized by Phihp the Fair, and became the authoritative guide for legal exposition in the "pays de droit coutumier." Besides, under the French monarchy jurisprudence was from early times apphed to the affairs of government and the State. Philip Augustus (who in 1190 established royal courts of justice presided over by officers designated baiUffs or seneschals), St. Louis (who ex- tended the organization of parlements in the French provinces), 1 Many observations which would have been necessary are omitted in the present essay, because its subject-matter is meant to be supplementary to, and not a repetition of, that set forth in the study of Alciati. The reader is once and for all referred thereto. 83 84 JACQUES CirjAS and Philip the Fair gathered legists round them. With the gradual development of Roman doctriaes, the influence of these lawyers rapidly increased ; and they were entrusted by their sovereigns to draw up coUeetions of ordinance^ — ^those "Eta- bUssements " which were destined to undermine the feudal regime, and to restrain the advancing power of the papacy. The enlargement of the royal power and the spread of law teaching gave greater importance to the parlements, whose magistrates, being able jurisconsults, decided cases in accordance with the evidence brought, instead of by the obsolescent trial by battle. The Etahlissements de Saint Louis (about 1270), drawn from that monarch's ordinances, from the customs of Touraine-Anjou and of the Orleanais, and also from the Corpus luris of Justinian, estabhshed a great code of rules of civil and criminal procedure, and principles formulated from a large variety of legal decisions. In 1283 appeared the Goutume de -Beawwsms.compiled by Phihppe de Remi, sire de Beamnanoir. This work shows what a great influence Roman law exercised on the usages of Northern Prance, and how in the hands of the judge the rules of the ancient juris- prudence often triumphed when brought into conflict with Germanic conceptions. At about the same time were pro- duced Durand's Speculum iuris and Foucaud's two works on Roman law, viz. Quaestiones iuris and Recipiendarum actianum rationes. At the beginning of the fourteenth century, France possessed an original school of Romanistic legists, of whom the most prominent were Jacques de Revigny, Pierre de BeUeperche, GuiHaume de Cuneo, Petrus Jacobi, and Johannes Faber. They were professors and advocates at Orleans, MontpeUier, or Tou- louse, and became distinguished in Church and State. Their writings have an eminently practical character, and endeavoured to impart to the customary institutions and pohtical organization of their time a new vigour and vitahty by ingrafting therein principles of Roman law. This aim is shown more particularly in the works of Faber — Breviarium in Codicem and Commemtarius ad Instituta. Other practical manuals were issued, hke G. du Breuil's Stylus parlamenti, which set forth the usages and formulae incidental to the procedure of the Royal Court of Justice. In the fifteenth century various projects were set on foot by Charles VII., Louis XI., and Charles VIII. Thus Charles VII. devoted himself to the reorganization of French government, JACQUES CTTJAS 85 issued an ordinance (1453) for the reform of justice, and ordered the preparation of materials for a code. Similarly Charles VIII. 's ordinance (1493) provided for the amendment of judicial ad- ministration ; and in his reign also compilations of local customs were made. In the meantime the BartoHst current was gaining ground in France, though it never penetrated as deeply as it had done in Italy. The French doctors were never addicted to the scholastic subtleties and vagaries as much as the Itahans were. As a recent writer says : " L'esprit frangais est trop logique pour accepter sans resistance une creation aussi batarde que ceUe des Bartohstes."! Nevertheless, in the dechne of the study of jurisprudence during the fifteenth century, the influence of the Bartohsts reached several schools in Prance, and predominated till the following century. Thus Forcadel, the rival of Cujas, owed to this circumstance his favour at Toulouse.^ The Sixteenth-Century Movement. — No century was more blemished than the sixteenth ; but no century achieved a more glorious distinction. At its opening, it formd in the West (ex- cluding Italy — as was shown in the previous essay) practically a medieval world ; at its close it witnessed a definitive trans- figuration. Modernism, heralded by Renaissance and Reforma- tion, came to displace once and for aU old beUefs, old institutions, the old attitude to Hfe and thought. The universal, more or less homogeneous consciousness of the West developed into the particular, individual consciousness of States — each working out, on its own hnes, its own polity, its vernacular literature, its national reUgion, its native art. The Teutonic Renaissance was inaugurated, like the Latin, by an insurrection against the supre- macy of scholastic Aristotehanism ; but its spirit was more democratic, more reHgious, more theological ; its bulwarks were St. Paul, representing BibHcal authority, and St. Augustine, conducing to neo-Platonism, mystic philosophy. As to the Latin movement, the French Renaissance was distinguished from its progenitor, the Italian, in that it was more specifically educa- tional, literary, and juristic, whilst the latter was more philoso- phical.^ For a short time, however, the French Renaissance had assumed a distinctively Italian colour ; this was specially 1 J. Flaoh, Oujas, lea Glossateurs et les BartoUstes, in Nouvdle revue Mstorique de droit francais et etranger (Paris, 1883), vii., pp. 205-27, at p. 224. ^ See further infra. 3 Of. Rev. A. M. Fairbaim, Tendencies of European Thought in the Age of the Reformation, in Cambridge Modern History, ii. ch. xix. 86 JACQUES CTJJAS marked in the second quarter of the century, when there was so great an influx of Itahans into France after the fall of Florence (1530), and the marriage of Francis I.'s second son to Catharine de' Medici. There was not always a clear line of demarcation between the Renaissance and the Reformation ; though on the whole it may be said that the first was of a more secular, the second of a more rehgious character. But in France the Refor- mation never became an entirely national movement. The Cathohcs constituted the great majority of the population, and detested the Protestants more for their schismatic and separatist attitude than for their heretical behef s . This antagonism brought about over thirty years of rehgious wars, culminating in the massacre of St. Bartholomew — wars which had an injurious effect on the free intellectual work of scholars and jurists (most of whom were amongst the Reformers), and on French humanism tu general.^ France had just before then contributed a great deal to the classical and legal erudition of Europe. The CoUege de France was supreme in classical philology, the university of Bourges was unrivalled in jurisprudence. French literature had received a great impulse and a fecundating force from humanism. There were eminent professors of Greek and masters of Latin who continued the great work of Budaeus ; e.g. Jacques Toussain (Tusanus), a favourite pupil of the latter, and Adrien Turnebe (Turnebus), who issued Greek editions, translations, and com- mentaries on Latin authors ; Denys Lambin (Lambinus), whose Latin editions enjoyed great fame ; Jean Dorat (Auratus), the Aeschylean critic and inspirer of the Pleiade ; Marc Antoine Muret (Muretus), that master of Latinity who struggled against the superstition of Ciceronianism ; Henri Estienne (Stephanus), who issued from his press a large number of Greek and Latin editions nearly all edited by him, and in his Thesaurus Graecae Linguae (1572) bequeathed a rich legacy to scholarship ; Jacques Amyot, one of the few translators of genius, and an inspirer of the French spirit ; Pierre Pithou, a man of versatile activity ; Joseph Scahger, the greatest name in the history of French classical learning ; and finally Isaac Casaubon, whose aim was "to revive the picture of the ancient world." To these names may be added that of Pierre de la Ramee (Ramus), whose famous treatise on logic {Dialecticae Institutiones, Paris, 1543, translated into French 1555) was a reaction against Aristotelian autJiority, 1 See infra, under life of Cujas. JACQUES CUJAS 87 and was welcomed in Protestant universities (with the notable exception of Oxford). As to humanist jurisprudence, though the real foimder was Alciati, we may regard as a pioneer Pierre de I'Estoile (Stella), who began to lecture at Orleans in 1512. In Prance more than elsewhere was systematic opposition manifested to the subtleties and dogmatic methods of the BartoKsts, and to the bewildering accumulation of glosses of their predecessors. Though the glossators merited, in some respects, niore indulgence than their scholastic successors, men of the Renaissance like Rabelais treated them all ahke with contempt. Thus Pantagruel says to the doctors of Paris : " Au cas que leur controverse etait patente et facile a juger, vous I'avez obscurcie par sottes et deraisonnables raisons et ineptes opinions de Accurse, Balde, Bartole, de Castro . . . et ces aultres vieulx mastins qui jamais n'entendirent la moindre loy des Pandectes, et n'estoyent que gros veaulx de disme, ignorans de tout ce qui est necessaire k I'intelligence des loix ; car (comme il est tout certain), ils n'avoyent cognoissance de langue ny grecque, ny latine. . . "^ And comparing the glosses of the Accursians with the text of the Digest itself, he observes : "Au monde n'y a livres tant beaux, tant ornes, tant elegants comme sont les textes des Pandectes, mais la brodure d'iceux, c'est assavoir la glose d'Accurse est tant infame, tant sale, tant punaise, que ce n'est qu'ordure et vilenie."^ Rabelais demanded that jurisprudence should be reinforced by humanist culture ; he, like the others of the new school, maintained that philology, history, science in general are indispensable to a true jurisconsult. Similarly, Douaren, one of the most eminent of the humanist jurists, derided the Bartohsts for their barbarous language, absence of method, and scholastic procedure ; he com- plained that they gave themselves entirely to logic, chopping and attacking the opinions of others rather than to seeking the truth in the sources themselves. Without devotion to letters, claimed he, no one could become either a jurist or a statesman, but only a cavilling pettifogger.^ The bad Latin and wretched style of the post-gl6ssators were attacked by formidable critics and consummate masters like Muret, who said their compositions were a hotchpotch ("farrago"), a confused mass ("aeervus perturbatus "), a vile medley of barbarous, foreign, unheard-of 1 Pantagrud (1533), ii. o. 10. ^ Ibid., ii. o. 5. 3 Cf. his letter to Andre Gaillard, in his Opera (Franoofurti, 1592), p. 1100. 88 JACQUES CUJAS expressions ("foedissima barbararum, peregrinarum, inauditarum vocum coUuvio ").^ Other notable assailants of the "mos italicus " of the BartoHsts were, besides Cujas himself, E. Baron,^ F. Hotman,^ and Baudouin.* The aim of the new French school of Romanists was, in the first place, to restore, by means of every collateral aid furnished by a thorough and comprehensive humanist culture, the true sources and texts of Roman jurisprudence, to indicate the original significance and apphcabihty of its laws ; secondly, to effect a synthesis and a coherent systematic structure of these re-estab- Hshed elements, and make manifest the spirit and philosophy of the entire body. This aim was not only part of the general revolt impUed in the Renaissance, the revival of classical anti- quity, but was also stimulated by the widely felt desire to remedy the abuses of judicial administration f for it was felt that a more rational knowledge of Roman law would conduce to the amehora- tion of existing practice by introducing classical conceptions and principles. Noteworthy appeals on this ground were made in France by Hotman {Antitribonianus, 1567), and in Germany by that great reformer and accomphshed humanist, Melanchthon {Oratio de legibus, Haguenau, 1530), and by Oldendorp (Disjmtatio forensis de iure et aequitate, Cologne, 1541). The latter em- ■ phaticaUy insists that the reform of the administration of justice must begin by reforming the teaching of law. The chief French representatives of the hiimanist method of jurisprudence issued critical editions of old or newly discovered texts ; e.g. D. Godefroy (Gothofredus, 1549-1622), Corpus iuris civilis ; J. Godefroy (1582-1652), belongs to the sixteenth-century school more by the nature of his work than by date, Quatuor fontes iuris civilis (ante-Justinian texts) ; J. du TiUet {d. 1570) and Cujas (1522-1590), Theodosian Code; P. Pithou (1539-1596), Lex Dei, and the post-Theodosian novdlae ; F. Pithou (1544- 1621), Julian's Epitome and the laws of the Visigoths ; J. du TiUet, 1 Oraiio de doctoris officio deque modo iurispnidentiam studendi. His orations were published in 1576. ^ De ratione dicendi discendique ivris civilis ad studiosam legum iuventutem commonefactio (1546). •* lurisconsultus sive de optima genere iuris interpretandi. ^ De optima iuris docendi discendique ratione. ^ Cf. Plach, loc. cit., p. 221, n. (1) : "La procedure etait devenue on beaucoup de pays un vain simulacre qui ne servait qu'a eterniser les prooes, k en rendre la solution arbitraire ou aleatoire, et le juge meme instruit, laborieux et in- tdgre, ne pouvait se reconnaitre au milieu des oommentaires amonceles depuis des sieoles." JACQUES CUJAS 89 Ulpian's Begulae; A. Bouchard, Institutes of Gaius and the Smtentiae of Paul ; E. Bomiefoi (Bonefidius, d. 1574), Juris orientalis I. Hi; Cujas and A. Augustin, the Basilica; other sources of Graeco-Roman law were issued by Baudouin, Labbe, Bosquet, and others > Then there were other eminent French jurists of the century who did not devote themselves entirely to Roman law; e.g. Charles Dumouhn (1500-1566), surnamed by some of his contemporaries the " French Papinian " ; F. Hotman (1524-1590); Douaren (1509-1559); Doneau (1527-1591), the great systematizer ; Baudouin (1520-1573), eminent theologian as well as jurist ; Ranconnet {d. 1559) ; Govea (1505-1566) ; Connan (1508-1551), who began the general classification con- tinued afterwards by Domat and other systematizers ; B. Brisson (1531-1591), A. Le Conte (d. 1586), P. Faber (1540-1600), and others.^ This assembly of names certainly gives France, with regard to sixteenth-century jurisprudence, the foremost place in the world f and in this magnificent concom-se Cujas stands out supreme. Life of Cujas.'* — Jacques Cujas (Jacobus Cujacius)— whose real name was Cujaus, which was changed for reasons of euphony — was born, the son of a fuller, in Toulouse, 1522. He first studied law in his native town under Arnaud Ferrier, who was a disciple of Alciati, and who subsequently attained high distinction as president of the Parlement of Paris, then French ambassador to the Council of Trent and to Venice, and afterwards as chan- cellor to the King of Navarre. Cujas, imlike Alciati, was for- tunate in his first instructor ; indeed, he ever after regarded him as the ablest professor he had known. At Toulouse he read all the known expounders of law, and frequently took part in public disputations with his fellow-pupils. But he applied himself also ^ Cf. Brissaud, op. cit., vol. i., p. 357 ; A. Tardif, Histoire des sources du droit frangais : Origines romaines (Paris, 1890), p. 467. ^ Of. infra, on the relation between Cujas and his chief contemporaries. ^ Cf. the opinion of the English civilian, Sir Arthur Duck, De usu et authori- tate iuris civilis Romanorum (London, 1653), 1. ii. c. 5 : " lurisprudentia romana, si apud ahas gentes extincta esset, apud solos Gallos repiriri posset." ^ An adequate life of Cujas is greatly to be desired. The best account, short as it is, is still that of Berriat Saint-Prix, Histoire du droit romain, suivie de VUsUnre de Cujas (1821), pp. 373-454, and notes, pp. 455-611.— The German translation of E. Spangenberg, Jacob Cujas und seine Zeitgenossen (Leipzig, 1822), contains a few additions and notes of not very great consequence ; it is mainly useful for the convenient chronological list of Cujas' works. — Savigny's brief article in Themis, iv. (1822), pp. 194-207, gives a little supple- mentary matter. 90 JACQUES CTJJAS to the ancient languages, espscially Greek, to history, rhetoric, philosophy, ethics, philology, and poetry. In 1547 he began a private course of lectures on the Institutes ; and this venture was so successful that soon the sons of eminent men were sent to him from distant regions. Some seven years later he left Toulouse never to return, because, as it is averred, he failed in his apphca- tion for a chair of Roman law. It is certain that he was a candi- date, and that Forcadel, his Bartohst opponent, obtained the professorship in 1556. But it is doubtful whether Cujas took part in the actual test proposed by the authorities, as the records of the university for this epoch no longer exist .-^ In any case Forcadel's selection was influenced by the fact that Toulouse was stiU a stronghold of Bartohsm, and that the majority of the students — ^who had a voice in the appointment — voted for him, owing to the persuasions of Jean Bodin (an adversary of Cujas), and to the long experience, good presence, and witty, rhetorical speech of Forcadel. Gravina observes that in preferring the latter to Cujas the imiversity preferred an ape to a man. After the departure of Cujas, one of his pupils, Jean Amariton, pubhshed the former's notes on Ulpian, and dedicated the work to him. In November, 1554, Cujas received a chair at the neighbouring town, Cahors, in succession to the Portuguese professor, Antoine de Govea, who had spent nearly all his life in France, and estab- Ushed his position as a distinguished Romanist. About six months afterwards, however, Cujas was called to the university of Bourges (then pre-eminent for civil law — in Hotman's phrase, "le grand marche de la science ") to fill the chair of Baudouin, who left for Germany owing to his rehgious opinions. This invitation was made by the Duchess of Berry, Marguerite of France, daughter of Francis I., on the advice of her chancellor, Michel de I'Hospital. She was, like her father, a patron of art and learm'ng. Bourges then possessed several distinguished pro- fessors, e.g. Le Conte, a pupil of Alciati and editor of the Corpus Iiiris, Douaren, and Doneau, a great representative of the historical school. The two latter, seeing in Cujas a formidable rival, created all kinds of difficulties for him, and in his absence 1 Papyie Masson in his Vie de Cujas, written in the year of Cujas' death (1590), asserts that he really suffered defeat in the competition, and many others repeated this statement. This was denied in 1671 by Bernard Mcdon, in his Histoire de Maran, who maintained that the report was not in accord- ance with the university records, which, however, he did not quote. Berriat Saint-Prix accepts the traditional opinion. — For other references to this controversy, see Brissaud, op. cit., i., p. 350, n. 2. JACQUES CUJAS 91 instigated the students against him ; at their instance also Pulvaeus afterwards pubhshed a violent satire against him, to which his pupil Antoine Foquelin of Orleans replied. In spite of the support of Le Conte and the sympathy of his auditors (amongst whom were pupils like Pierre du Paur de Saint-Jory (P. Faber), Loysel, Pierre Ayrault, Fran9ois Ragueau, Nicolas Cisner, and Pierre Pithou), he left Bourges in August, 1557, and in November was called to Valence. During his stay at Bourges he had begun the pubhcation of the great works — ^Notes on the Institutes and on Paul's Sententiae, Commentaries on certain titles of the Digest, and the Observationes, — which assured him the position of the leading jurist of the day, and procured him the friendship of eminent men like Etienne Pasquier. Several pupils accompanied him to Valence. At this time he married the daughter of a doctor of Avignon. He soon pubhshed a second edition of the above works, and issued a further portion of the Commentaries and the Observationes, of which the former was dedicated to Jean de Montluc, Bishop of Valence, whose friend- ship he enjoyed. His reputation was now so great that a legist, M. Vertranius Maurus, stated^ that there was no need to quote passages from the writings of Cujas, as they were in everybody's hands. In June, 1559, Douaren died, and the Duchess of Berry recalled Cujas to Bourges, where he was generous enough to pronounce a eulogy on his late opponent. During the next few years further pubhcations appeared, e.g. his commentaries on the last three books of the Code, on the title " De verborum obhgationibus " which he dedicated to Marguerite and to I'Hospital. When the former became Duchess of Savoy, she and her husband were desirous of restoring to the university of Turin its former renown ; and so, on the death of Antoine de Grovea (whom they had brought from Grenoble), they persuaded Cujas to accept the vacant chair (September, 1566). During his residence in Italy, he paid visits to various imiversities to see the methods of teaching and to examine manuscripts ; he tried TmsuccessfuUy to obtain the loan of the famous Florentine manuscript of the Digest. It appears that Cujas was not able to habituate himself to the climate of Turin or to ItaUan manners ; hence in August, 1567, he returned to Valence imiversity, which had greatly increased in importance by its union with the university of Grenoble. Very soon took 1 De jure liberorum (Ludguni, 1558), c. 27. 92 JACQTTES CUJAS place a general rising of Protestants, and Valence was seized ; teaching was in consequence suspended until the conclusion of peace in the following year . On the resumption of his professional work, his fame was at its height, and his lectures were attended by large numbers of pupils, many of whom came from distant places abroad, notwithstanding the pohtical and rehgious dis- turbances in Prance. Again in 1 570 he was compelled to withdraw to Lyons, where he wrote new works and revised some of the old ones for new editions. He now received invitations from several other universities, e.g. Avignon, Besan9on and Bourges, but after the peace of St. Germain (in July) he was back in Valence. His students continued to increase in numbers, and amongst them were the prince of scholars, Joseph Scaliger, and one of the greatest of French historians, Jacques Auguste de Thou. In the autumn of 1571 he feU iU, but none the less continued his lectures, and begged the indulgence of his audience when he was carried into the lecture-room. On the fateful day of St. Bartholomew (August 24, 1572) he saved the hfe of ScaUger, and of his colleague, E. Bonnefoi. Later Charles IX. recognized the high position of Cujas by making him honorary councillor of the Parlement of Grenoble (May, 1573). In June, 1575, hoping to obtain more tranquiUity, he proceeded to Bourges, which was then almost entirely Catholic and was situated in a peaceful province. But he was not more fortunate there, and the civil dissension compelled him to remove to Paris. At the instance of the procureur-general of the King, the parle- ment, by a decree of April 2, 1576, suspended in Cujas' favour the ordinances prohibiting the pubhc teaching of civil law in the university, and even authorized him to confer degrees — " d'autant que le dit Cujas est, coimne la cour sgait, persoimage de grande et singuhere doctrine et condition."^ Some three months later, on the restoration of peace, he went back to Bourges, and never left it again. He was granted a pension by the Due d'Alengon. The greater part of the rest of his life was embittered by civil and religious disturbances, as well as by grief and sadness from other causes. In 1581 he lost his wife and onlj- son, and for a time was overwhelmed with grief. He said in a letter that the friendship of Scaliger stayed his tears and saved him from a 1 Of. G. P6ri6s, La facvite de droit dans Vuniversite de Paris, p. 173. (Re- ferred to by Brissaud, op. cit., i., p. .354.) JACQUES CUJAS 93 wretched grave. To another friend he wrote that he was pining to see him, that the sight of him would help to remove the sadness which was bearing him down in his loneUness. At this time offers reached him from Italy. Gregory XIII. himself wrote to him offering a large stipend and high honours if he accepted a professorship at Bologna ; but various circumstances induced him to remain in Boiu-ges. He deeply felt the need of domestic companionship and of an heir ; and so, though over sixty years old, he married a young wife. But the only issue was a daughter (born in 1587). The following year he went to Paris to ask leave to retire, but Henry III. refused. The last two years of his life were still more troubled. After the assassination of the King (August 1, 1589), the leaguers proclaimed King, under the title of Charles X., the Cardinal de Bourbon, imcle of Henry IV. Cujas was asked, with promises of magnificent rewards, to write in favour of the Cardinal ; the promises were followed by threats, and fanatics in Bourges were roused against him. But nothing, not even a riot in which he nearly lost his life, could shake his refusal. Civil war continued, especially in Berry, and affected him deeply till his death, which took place on October 4, 1590, and was followed by a pubMc funeral. Like Alciati, Cujas led a restless, wandering life : the incessant disturbances and menacing circumstances of the time, together with the intriguing hostility of rival professors and of those adhering to the older schools, made it impossible for him to enjoy peace and tranquiUity. This kind of life was then shared by many ardent spirits who ventured to strike out new paths for them- selves. Amongst these we find — ^to mention only legists or publi- cists — men Hke Dumouhn, Baudouin, Doneau, and Hotman. After the massacre of St. Bartholomew, the position of professors in Prance who were suspected of heresy or of sympathy with the reform movement became still more intolerable. Ramus, as- sailed by the doctors of the Sorbonne, by the scholastic contro- versiaUsts, and, after he turned Protestant, by the orthodox avengers, perished in the massacre. The classical critic and scholar, Lambinus, died of shock almost immediately after. Scahger, like Doneau and Hotman, was compelled to seek a temporary refuge in Gteneva. Cujas, however, did not assume such an uncompromising or decisive attitude towards rehgion. He perhaps belonged, with Erasmus and Montaigne, to that party which was characterized by a mild scepticism or by the broadest 94 JACQUES CUJAS toleration, and detested fanaticism of any kind. This point of view was not due to lack of courage or vacillation ; when necessity arose, he was ready to risk his Mfe rather than surrender his con- victions to the seditious clamours of a threatening crowd of leaguers. He practised Catholicism, but it is significant that in his wiU he made no declaration in its favour, forbade the sale of his books to the Jesuits, and recommended his wife and daughter simply to abide by the precepts of the Holy Scripture. It was thought that he had openly embraced the reformed faith, for we find Hotman accusing him of deserting it again. However, in his discussions, whenever legal matters were confronted by religious arguments, he was wont to observe: "Nihil hoc ad edictum praetoris," and thus constantly emphasized that the spheres of law and rehgion were separate, affirmed the secular character of jurisprudence, and declared that it could no longer be the humble servant of theology. Cujas does not appear to have possessed a marked professorial aptitude, in so far as secondary accompHshments are concerned. It is said that in his lectures his exordium was too precipitate, his general deUvery rather rapid, his voice unequal ; that he did not answer immediately ("ex abrupto," as Alexander Scot, one of his pupils, says) the difiicult questions put to him. He in- variably avoided talking law at table or when he was in the society of his friends ; and when they suggested problems to him he re- ferred them to his lectures. There is no doubt that he lacked readiness of retort and rhetorical flourish, and other controversial attributes which were then so much appreciated ; indeed, he seems to have had a deep contempt for the art of declamation, and forensic eloquence without true insight and deep knowledge he disdained above all. He carefully prepared his pubhc discoiirses, which were always characterized by lucid expression, exact and pentrating analysis. Under his scrutiny, backed up as it was by scientific method, immense erudition, and new suggestive ideas, the most obscure passages yielded their meaning. He always took a personal interest in his students, and they were attached to him. He admitted them to his table and to his library, and often helped them pecuniarily. Before and after lectures they formed a procession and escorted him to and from his house. Many accompanied him in his frequent peregrina- tions, and when they left him still kept up the most friendly relations. JACQUES CTJJAS 95 Works^ and their Character. — The works of Cujas, like those of Alciati, do not set forth an elaborate, systematic account of Roman jurisprudence as a whole. The time was not yet ripe for such an imdertaking. But Cujas, more than any other single investigator, contributed to the realization of this object. His voluminous publications — a magnificent array of mighty tomes — ^were nearly aU devoted to the exegetic study of the sources. . The most important of these writings are the Commentaries on Papinian (issued after his death), and above aU the Ohservationum et emendationum libri XXVIII., which, originally designed to extend to forty books, appeared at intervals from 1556 to his death, except the last four books posthumously pubHshed by Pithou. The latter work, described by eminent Romanists like Heineccius as an " opus incomparable," and " opus divinum," presents with but Mttle order a rich harvest of restorations of texts or suggestive conjectures, of corrections and interpretations. Other writings, representing for the most part the substance of his lectures, hke the Tractatus ad Africanum, and the Becitationes soUemnes on Paul, Ulpian, Modestinus, MarceUus, Juhan, Scaevola, and others, seek to re-estabhsh in their original form and restore to their original meaning the contributions of the classical juris- consults comprised in the Justinian compilations. His Paratitla on the Digest — a small book which his opponent Hotman advised his son always to carry about with him. — offers a concise exposition of the titles of that collection. He also issued learned and con- siderably amended editions of texts which had before been pubHshed with greater or lesser defects, and, what is much more noteworthy, he gave to the world for the first time numerous texts based on collated manuscripts, which he searched out in every promising quarter. In addition to these writings on Roman law, we find in his volumes a few inaugural discourses, which academic duties demanded of him, two polemical compo- sitions (the Notata Antonii Mercatoris, i.e. written under the pseudonym of "Antonius Mercator," and the defence of Bishop Montluc against the attack of Doneau), also a work relating to * The collected works were edited by 0. A. Fabrot — OTpera Omnia, 10 vols., folio (Paris, 1668). There is also an eleventh volume under the title of Appendix, which contains, besides other matter, his Notata Antonii Mercatoris. — The editions of Naples (1722-27) and Venice (1758-83) in 11 vols, are prac- tically mere reprints ; but they are more convenient as there is an index to them, entitled Promptuarium operum Jac. Cujacii, 2 vols., 1763 (2nd ed. 1795). 96 JACQUES CUJAS feudal law (Treatise on Fiefs), and one on ecclesiastical law (a commentary on three books of the Decretals of Pope Gregory IX.) . As for the important constituents of French national law, viz. customs, royal ordinances, judgments and orders of the parle- ments, he did not make any of them the subject of a separate work, but he utiUzed his knowledge of them in the illustrations and comparisons which enrich his works, and necessarily so in his professional consultations. In consideration of the manuscripts discovered or published by Cujas, he occupies the foremost place in the history of Roman law. His zeal in the search of these documents was inexhaustible. To procure them he spared no toil, no expense. One of the chief reasons for his going to Italy was to examine manuscripts. In 1571 he made a journey to Provence for the same purpose. In the preceding year he kept several persons occupied in the hke quest ; in 1572 he obtained the services of a friend in Italy to make investigations ; in 1575 a nobleman came expressly from Padua to Bourges with a collection of Sententiae of the ancient jurisconsults. All this indefatigable enthusiasm was not that of a bibUomaniac, but that of a true explorer and scholar ; he was indeed ever ready to lend his precious acquisitions to students who might desire to consult them, and gave some to friends and pubUshers, and lost many which had been temporarily borrowed and never returned.-^ It appears from a catalogue drawn up by one of his pupils, about 1574, that there were some two hundred manuscripts in his Ubrary ; and according to a later list, copied from an inventory made after his death and pubhshed quite recently,^ there were actually about four hundred. And these numerous documents of his own were but a small part of those he consulted during his hterary labours. The greater portion of his correspondence is concerned with this subject. The manu- scripts of which he took cognizance and of which many are no longer extant related to the three periods of Roman jurisprudence — ante-Justinian, Jiistinian, and post-Justinian. For example, he pubhshed in 1566 the Lex Romana Burgundionum, probably after a manuscript belonging to Pierre Pithou, but he was mis- taken in considering it the work of a jurist named Papian.^ He 1 Cf. B. Saint-Prix, op. cit, pp. 421-22. ^ Of. M. Omont, in Nouvdle revue historique de droit, 1885, pp. 233-7 ; and 1888, pp. 632-41. ^ See the title of his edition of 1586 : Biirgvndionis mrisconsulti, qui Papiani responsorum titulum praefert, liber. JACQUES CUJAS 97 also issued for the first time the ConsuUatio veteris iurisconsulii, after a manuscript now lost, of which fragments appeared in 1564 and 1566, then the text itself in 1577, and more completely in 1586. This was prefixed to his collection of sixty consulta- tions ; and in his dedicatory epistle he says he did not himself discover the manuscript, but that his knowledge of it was due to Antoine Loysel. The book De asse et ponderibics, attributed generally to Volusius Moecianus, a jurisconsult of the time of Antoninus Pius, though held by others to have been written after the Theodosian Code (438), was pubhshed for the first time by Cujas in 1586, together with various other texts of ante- Justinian law. He was the first to issue Books VI. to VIII. of the Theodosian Code, after the Charpin manuscript ; and this work, incomplete though it was, proved of great assistance to Jacques Godefroy in the preparation of his superior edition which appeared, several years after his death, in 1665. Modern students are indebted to him for numerous portions of Paul's Sententiae presented (1585) in Book XXI. of his Observationes, and taken from the Besan9on manuscript. Of the post- Justinian collections, he was the first to bring to hght many books of the Basilica, for which he consulted more complete manuscripts than those now in existence, e.g. those which were in the library of Catharine de' Medici, and others acquired by himseK during his stay in Italy .^ His labours were afterwards utiUzed for the great edition of the Basilica pubhshed by Pabrot. As for the Justinian compilations themselves, he did much towards the restoration of the Code ; and nearly aU the Greek constitutions were re-estabhshed by him and by Antonius Augustinius. He also revised, by collating old manuscripts, the text of the Insti- tutes, and brought out an edition in 1585. Further, in many cases Cujas offered encoiu-agement and coimsel to other researchers in their handling of juristic documents : thus Juhan's Epitome (already pubhshed several times in the sixteenth century) was issued by the brothers Pithou, by his advice and imder his patron- age ; and Le Conte's edition of the Novdlae was revised by him. Finally, he sometimes supphed valuable materials even for non- legal pubhcations : thus to him was mainly due the Latin transla- tion of the letters of the ancient Greeks found in the hbrary of Pierre Pithou, and pubhshed at Geneva, 1606. The style of Cujas is marked by extreme conciseness, which 1 Of. the letter of Cujas, dated August 7, 1567, to be found in Themis, i., p. 94. 8 98 JACQUES OtrjAS makes the reading of his works difficult to all but students of experience ; apart from this striking quality we find an elegance of language, a clearness of expression, and rational sequence in the argimient, backed up by apt citations, comparisons, and a controlled erudition, aU of which combine to distinguish his diction and his whole manner from the dull, heavy, un-Roman Latin of the majority of his contemporaries, especially of the jurists. He does not possess the power of fehcitous construction and classical propriety of a Muret ; but his prose is certainly a very effective medium for conducting critical investigation with force, directness, and precision. Method of Cujas. — ^Alciati was the principal founder of the humanist school of jurisprudence ; but in his time his ideas and methods were accepted by a very small minority, and opposed by a multitude of formidable adversaries attached to old ways and conceptions. With the coming of Cujas the new method v.-as once and for all estabhshed, opposition was gradually over- come, and unanimitj' secured amongst most of the enhghtened and unprejudiced students. The course of the new school, more or less undecided before, was now definitively determined ; its aim was marked out with greater precision. Before, the Bartohst adherents might weU have maintained their authority, perhaps they might with some success have re-asserted their pre-emin- ence ; now, their methods were shown to be hopelessly bad and their point of view fallacious . The work of Cujas, more than that of any other jurist of the time, conduced to the repudiation of the earher juristic heritage, and brought about the triumphant victory of the historical school. As a humanist he was well versed in the classical literature, and used this knowledge with remarkable efficacy in the comparison of legal and historical texts with the purely hterarj^. He laicized the study of law. He liberated it from the custom of heaping up conunentaries on isolated enactments, and from that of spinning out scholastic subtleties and endless artificial distinctions. Accursius and the glossators, however, he held in far less disesteem than Bartolus and the commentators with their futile " fictions and iU imagin- ings."^ Of the latter he tersely — and truly — observes : " Verbosi in re facih, in difficiU muti, in angusta diffusi "- whilst Accm'sius * Ohservationum, xii. o. 16 : " . . . Accursimn longe magis corona donaverim, a quo quidquid aberrat Bartolus, vanae fictiones et aegri somuia videntur." ^ Bespons. Papin., lib. v. leg. 17 (De iniusto rupto). JACQUES CXTJAS 99 he places high amongst juristic interpreters.^ His main reason for holding the glossators in higher favour is that they had made an effort to examine the texts. He incessantly tirged his students to study the sources, rather than the verbose and obscure com- mentaries of the doctors.2 Similarly, in his endeavours to make of law a rational science, he assailed the ignorant practitioners and their accredited decisions in the courts — decisions based on prejudice, personal considerations, narrow views, erroneous con- ceptions, shifting fundamentals. No doubt he held theory in higher regard than practice — and necessarily so, in view of the nature of his work and the circumstances of the time ; but he by no means despised practice, as his consultations show.^ As to his immediate predecessor Alciati, whilst recognizing the indis- putable merit of the Itahan jurist in having been the first to apply systematically the historical and comparative method to juristic investigations, Cujas none the less holds that he was only a msdiocre interpreter, inexact in his citations, incomplete and superficial in his exegetic expositions .•* The method of Cujas, then, is comparative, critical, historical. The constituent elements of Roman jurisprudence — as repre- sented, for example, in the Justinian compilation — are derived from various sources which were afterwards lost ; and the only guidance we have as to its intrinsic composition is solely an indication of the place those elements occupied in the original works. Hence the study of the ancient civil law may be ap- proached in three ways : firstly, by accepting the classification so found, making the best of it, and pointing out how discovered defects might have been avoided by a prior modification of the plan ; or secondly, by disregarding the original sequence of the subject-matter, and substituting therefor an arbitrary order, more general, coherent, and logical ; or thirdly, by restoring, as far as is possible, the indicated sources in the Ught of every suggestion obtained from the original materials, and by the aid of conceptions and results ftirnished by cognate subjects. The first method of procedure would give best the legislation of Justinian in its purely juridical aspect ; the second is more in accordance with the exigencies of universal reason, and would ■■ Observat. iii. c. 11 : " Accuisius noster, quern ego et Latinis et Graecis omnibus interpretibus iuris facile antepono. . . ." * Oratio de ratione docendi iuris. * See, for example, his 23rd consultation. * Cf. Notata Antonii Mercatoris, ii. c. 29. 100 JACQUES CTJJAS present the legislative product in its philosophical significance ; the third is the historic method, and would set forth, with regard to time, place, and circumstance, the intrinsic sense and relative force of the respective elements composing the whole. This latter method was that of Cujas and the new school.^ In his hands, therefore, the Corjms Juris was not treated as a homo- geneous body of laws (for such it had been frequently assumed before him), but a complex mass which could not weU be under- stood without decomposing it again and examining all its parts. It was his bold design to re-create what Tribonian, that versatile and remarkable minister of Justinian, had altered or consigned to obhvion, to restore the piu:ity of Roman traditions which had been adulterated by the pretentious barbarism of Byzantium, to resuscitate the work of the classical jurisconsults by uniting scattered fragments, to set forth the very principles of Roman jurisprudence as they had been in the minds of those who con- ceived them, to show the magnificent Roman heritage in its most favourable, that is, in its true, Hght. Cujas brought to bear on his work the disinterested judicial view of an historian, the imagination of a creative artist, and the exact learning of a scholar. Whenever he proposed a new interpretation he did not fail to refute or criticize the one previously accepted ; and he showed that his method, apphed by one who possessed a mastery over details and a dispassionate judgment, would demolish the false and confirm the true. In pursuance of his design he inquired into and annotated the Begulae of Ulpian, the Sententiae of Paul ; he wrote a commentary on Africanus ; and restored the work of Papinian, that profound legal genius and victim of CaracaUa. This supreme jurist's works had reached us only in mutilated fragments ; but Cujas apphed himself to these sacred remains, and with dihgence and penetration brought them to hfe, and extracted their secret, hitherto unascertained. In the fragments of the contributors to the Justinian compilation, he saw more than groups of legal dispositions conceived in a re- stricted sense and adopted fortuitously ; he recognized that these colourless fragments represented a certain crystallization of the past, and in his handling of them the past was made to hve again. He took the isolated texts, restored them with fehcitous effect, replaced them in the work of the respective jurisconsults, set the ^ C/. L. Cabantous, in Revue de legislation et de jurisprudence (Paris), x., (1839), pp. 32 seq. JACQtTBS CTTJAS \x