No More Learning

1180), and, perhaps more important than all, Huguccio
or Hugucius (c. 1180). Writers of Summae of the Decretals include
Bernard of Pavia (c. 1195), Sinibaldo Fieschi (Innocent IV, c. 1240),
Wilhelmus Durantis (Durandus), Joannes Andreae, and Nicholas de
Tudeschis. The Summa Aurea or Summa Hostiensis, written by Henry
of Susa (ob. 1271), who was Cardinal-bishop of Ostia, is a work of
the highest value. The numerous treatises dealing with canonical pro-
1


## p. 743 (#789) ############################################

Roman and Canon Law in Spain
743
cedure, which form a special branch of canonistic literature, are called
Ordines Iudiciarii and are to be compared with the similar treatises of the
legistae or civilians. The Ordo Iudiciarius of Tancred (1214-1216)
largely displaced the works of earlier canonists on this subject". The
fifteenth century, although it is identified with the Spaniard John of
Torquemada and the Italian Panormitanus, is not as rich in canonistic
literature as the earlier ones. In the period after the Council of Trent
many distinguished canonists wrote commentaries on the Corpus iuris
canonici.
VII.
It is time to glance at the history of the spread of Roman and Canon
Law in medieval Spain.
The mixture of racial elements in the peninsula from the very
beginning of its history gives to Spanish legal history a complexity which
distinguishes it from the history of most of the other bodies of European
Law. Even to-day Spanish Law reflects the historical movements and
changes which finally produced the Spanish nation and gave it political
unity and imperial dominion. Of all the factors which have created the
Spanish legal system in a long process of evolution Roman influence has
been predominant; back to the law of Rome, Spain, of all the nations of
Western Europe, traces her law in most direct descent. Numerous legal
sources survive to prove that Roman legal influence was profound and
that it left an indelible imprint on the law of succeeding ages. In many
ways the history of peninsular law under the domination of the Romans
constitutes one of the most enlightening chapters in the history of the
spread of Roman Law to the provinces before the disappearance of the
Western Empire. Profound as was the Romanisation of law in Spain, it
was nevertheless not absolute. In Spain, as in other provinces of the
Empire, the Roman Law came into contact with native (here Ibero-
Celtic) customs and possibly also with Phoenician and Greek Law intro-
duced by the early colonists from the East. Native law persisted, at least
in some regions, after the coming of the Romans; though there is no
evidence that it still persisted in the latest period of the Western Empire.
Apart from the place filled by pre-Roman Law in the Roman period, there
was also the opportunity for the growth of indigenous legal institutions;
and it is clear from the evidence that down to the last the mos provincialis
was recognised. Hybrid legal institutions were created by the contact
of native and Roman legal types, and indigenous variants were either
juxtaposed or fused with the legal forms of the Roman province. Some
of these indigenous legal growths survived the Roman period; thus, the
betrothal custom of Cordova as to kisses—the penalty of lessened
i Pollock and Maitland, History of English Law, 2nd edn, Vol. 1, p. 207: Bracton
" levied contributions from the canonist Tancred. ”
CH. XXI.


## p. 744 (#790) ############################################

744
Roman and Visigothic times
inheritance for kissing the bride, before marriage, except in the presence
of eight relatives or neighbours – was adopted as general law by a
constitution of Constantine in 336, included in the Lex Romana Visigo-
thorum, and embodied in Castilian codes of medieval and modern times.
Indeed, at many points native peninsular law influenced the Roman Law;
and this influence was one of the main factors in the growth of Roman
provincial law in Spain. Roman Law, both public and private, was in fact
introduced into the peninsula and there moulded, under the political and
social influences of the time, into that Roman provincial law, partly
customary and partly regional written law, which was revealed in some
measure, a century after the fall of Rome, in the Lex Romana Visigothorum
of the Germanic conquerors. The stages in the evolution of this
provincial Roman Law in Spain follow in general the main lines of the
development of provincial law throughout the Empire: two of these
stages are marked by the growth of the jus gentium and the grant
of citizenship to the inhabitants of the provinces. In divers ways, indeed,
the introduction of Roman Law materially affected the growth of law in
Spain. It meant, in the first place, that the legal institutions and
doctrines of the Romans in respect to persons, things, and obligations
were to serve as one of the fundamental bases of future legal development;
and, in general, it led to the substitution of individualism for the
communistic ideas which had formerly permeated the law of the
peninsula. But the Germanic invasions and the fall of the Western
Empire interrupted this evolution. The stream of Roman Law still
continued to flow under Visigothic rule: it now flowed, however, partly in
the old and partly in new channels:
In this period of the Germanic invasions and Visigothic dominion
(400-700) the outstanding feature of Spanish legal history is the in-
troduction of the Germanic Law of the Visigoths into regions long
governed, in the main, by the peninsular system of Roman Law. The
meeting of these two different bodies of law produced results of the
highest importance and gave to the Spanish Law of later times some of its
characteristic features. There was an influence of the Roman Law on the
Visigothic and of the Visigothic Law on the Roman. One of the ultimate
effects of these influences and counter-influences was the growth of hybrid
legal institutions-a feature of legal evolution which was characteristic of
the Romano-Germanic civilisation of Europe in general. A striking
example of these hybrid growths is furnished by the Formulas Visigoticas
(615-620), the formularies or models of public documents.
Until the time of Chindaswinth (642-653) the Spanish population--
composed of the Hispano-Romans and the Visigoths—lived under a legal
system based on the principle of the personality of law. The first king
who gave law to the Visigoths was Euric (467-485), whose code, although
largely a written statement of Germanic custom, displayed nevertheless
some traces of Roman influence. Euric's code was applied to the Visigoths;
1
1


## p. 745 (#791) ############################################

The Fuero Juzgo
745
and such of its parts as embodied public in contrast with private law were
also applied to the whole population generally. In respect of their own
inter-relations the Hispano-Romans continued to live under Roman
private law, modified somewhat by Germanic custom. Alaric's Breviary
—the Lex Romana Visigothorum (506), based on the Gregorian, Hermo-
genian, and Theodosian Codes, as well as upon other imperial sources
--solemnly confirmed to the Roman population their own code of
personal law. Private relations between the Hispano-Romans and the
Visigoths were governed, however, by the code of Euric.
With Chindaswinth (642-653) an important change took place. The
Lex Romana Visigothorum was abrogated. A common code--the Fuero
Juzgo (Forum Judicum)—was promulgated for both peoples, a code
which harmonised and fused the Germanic and Roman legal rules and
ideas. Some of these rules and ideas of the Fuero Juzgo shew a
preponderance of Visigothic Law, as in the case of the law of marriage
and of persons. Others are especially marked by Roman influence, as in
matters of inheritance, prescription, and contract. On the whole,
Chindaswinth's code represents the firm establishment of Germanic legal
institutions within a region which had been highly Romanised in the
pre-Visigothic period. The tide of Romanist influence was to flow more
freely and with greater force in later times.
In the period of the Christian and Moorish kingdoms (700–1300)
vast transforming processes were at work in the law of the several regions
of Spain; but many of the details and even some of the main tendencies
of this development are as yet but imperfectly understood. The history
of the Fuero Juzgo in this period has not yet been written. But we
know in a general way that this code, compounded of Germanic and
Roman elements, remained as one of the principal bases of practice in the
several kingdoms. Apart from the prevalence of the Romanic features of
this code, a code which in some regions at least was a sort of common law,
Roman influence—although it may be detected in the municipal fueros,
the charters, the acts of councils and cortes, and the judgments of
courts--appears to have been, on the whole, slight. The Church exerted
an influence upon the growth of the law; but, in its general character,
this was more a moral than a legal influence. Not until the period of
the Christian reconquest were ecclesiastical legal tendencies marked. Cer-
tain features of Spanish Law, such as partnership, are said to be derived
from Muslim legal culture. French Law was indubitably influential, not
only in the Pyrenean regions but also in other parts of the peninsula.
One of the outstanding features of the legal history of Spain in this
period, and especially from the early part of the eleventh century
onwards, is the firm establishment of four distinct and different legal
regions—the Castilian, the Aragonese, the Catalan (including in its
infuence Valentia and the Balearic Isles), and the Navarro-Basque, the
latter of which was in large measure a mingling of Castilian and Aragonese
CH. XXI.


## p. 746 (#792) ############################################

746
Spread of Justinianean and Canon Law
1
!
origins. This fourfold differentiation, based on many social, economic,
and legal causes, it is well for us to remember; for, when we come to
the next period of Spanish legal history (1252–1511), we shall see that
the Justinianean and Canon Laws were worked into the legal systems
of these four regions in varying degrees of intensity and effect. The way
for this renaissance of Romanism in the later Middle Age was partly
prepared during our present period (700-1300) by the study of Roman
and Canon Law in the several kingdoms, and by the establishment,
notably in Aragon, of right reason and equity as supplementary sources
of the law. But, although Romanism during the period from the middle
of the thirteenth century to the end of the Middle Age came into Spain
as a unifying force, it had in fact differing effects in the four several legal
regions-effects which corresponded to the reaction opposed to Romanism
on the part of each one of the indigenous legal systems.
We must remember, indeed, that the dominant characteristic of legal
growth in this period of the Christian reconquest and the political
unification of the peninsula (1252–1511) is the spread of the Justi-
nianean and the Canon Laws in the several kingdoms. The whole period
was rich in legal sources, more particularly in legislative acts; and
one of the chief tasks of the legal historian is to describe the process by
which this mass of legal materials was influenced by the legislation of
Justinian and the Canon Law. In periods prior to the one now under
review, Roman and Canonical institutions and principles of law had
exerted a notable influence on the law of Spain. So far as Roman Law
is concerned, indeed, this influence was in large measure an influence of
the pre-Justinianean law. Even before the thirteenth century, however,
the law of Justinian had not been without its influence in Spain'; and it
is possible that it was introduced into the Spanish territories ruled by
the Byzantines. But from the end of the eleventh century onwards the
western European re-birth of the codification of Justinian, due in large
measure to the work of Italian and French jurists, produced clear and
unmistakable effects in the peninsula. In the twelfth and thirteenth
centuries Roman Law was studied by Spanish jurists. The texts of
Justinian were diffused throughout the kingdoms. Works inspired by
the legal system of Justinian were written in Spain by Spanish lawyers.
Indeed, the thirteenth century may be taken as the time when the Roman
Law, in the form given to it by the great legislator at Constantinople,
acquired real importance in the Spanish kingdoms; and from that time
onwards the influence of the Justinianean law upon Spanish Law steadily
increased. Coincident with this Romanising process there was also a
steady diffusion of the Canon Law. Not only was the Canon Law enforced
in the ecclesiastical courts of the peninsula, it was also employed as an
instrument for the modification of the secular law.
The details of this development in the several kingdoms-during the
period from 1252 to 1511- are of absorbing interest. The temptation
1


## p. 747 (#793) ############################################

The Fuero Real. Las Partidas
747
to sketch the main features of the Romanising process, as it penetrated
into all parts of the peninsula, must, however, be resisted. We
may
but
glance for a moment at Castile and Leon in the thirteenth century.
The Fuero Real, issued by Alfonso X in 1254, is the only legal work
of a truly legislative character that was inspired by the Justinianean law
during the thirteenth century in Castile. The elements which compose
the Fuero Real are, however, predominantly indigenous. The code has
as its basis the earlier fueros, including the Fuero Juzgo, but with
additions; and it preserves, with some changes, the general character
of the Visigothic, Castilian, and Leonese law evolved during the first
centuries of the period of reconquest. While the Roman element in the
Fuero Real is thus in part due to Roman influence upon the earlier
sources taken up into it, it is also, in part, the result of direct borrowings
by the compilers from the Roman and Canonical legal systems. Among
the novelties introduced in this way into Castilian law from the Roman
Law a considerable part of the theory of contracts, the accession of insula
nata, certain of the rules of intestate succession and testamentary
executors, may be mentioned. Likewise in the matter of adoption, the
compilers of the Fuero Real adjusted the indigenous law to the system
of Justinian.
In the history of Roman and Canon Law in Castile and Leon the
reign of Alfonso X is also notable by reason of the compilation of the
Libro de las Leges, a great legal encyclopedia, which, owing to its
division into seven parts, came to be known in the fourteenth century
as the Leges de Partidas or Las Partidas, names which are still used to
designate it. The jurists who compiled the Partidas under the super-
vision of the king, between the years 1256 and 1265, drew upon three
classes of sources: the customs and fueros of Castile and Leon, including
the Fuero Juzgo, the Fuero Real, and the fueros of Cuenca and Cordova;
the accepted Canon Law (the Decretals); and the writings of the Roman
jurists included in the Digest, together with the works of Italian jurists
dealing with the law of Justinian. The main materials drawn upon by
the compilers were the sources of the Roman and Canon Laws. Indeed, Las
Partidas may best be described as a systematic compendium of these two
legal systems, modified in some particulars by Alfonso's jurists in order
to adapt them to Spanish conditions. In the legal history of Castile the
Partidas is of supreme importance; for it not only adds new elements to
the law, but also modifies materially the earlier Visigothic and indigenous
foundations of the Castilian system. In fact, it seems to have been the
king's purpose to express in his compilation the new influences of Roman
and Canon Law, to impose the code as a common law upon all his subjects,
and thus to annul the municipal fueros, the Fuero Juzgo, and even the
Fuero Real itself. Although this latter purpose was not effected, the fieros
retaining their force, the Partidas-embodying many fundamental features
of the Roman and Canon systems-steadily gained ground. Among
CH. XXI.


## p. 748 (#794) ############################################

748
Spanish legal science
lawyers and students Alfonso's work was used as a reference and text-
book; and ultimately it was confirmed both in the practice of the courts
and by act of the Cortes. The compilation of Las Partidas thus marks
an important stage in the gradual adoption of Roman and ecclesiastical
legal rules and principles, a process which by the close of the Middle Age
had given a dominant stamp to the legal system of Castile.
The permeation of the legal systems of Spain by Roman and Canon
Law in the later Middle Age furthered the growth of Spanish legal science.
The Spanish jurists of the period include civilians and canonists of great
ability. They were teachers in Spanish, Italian, and French schools of
law; they were writers of legal treatises ; they were editors of legal texts.
Among them may be mentioned Juan Garcia el Hispano, who lectured
on Civil and Canon Law at Bologna and wrote learned works; Cardinal
Torquemada, who lectured at Paris and wrote commentaries on Gratian's
Decretum ; Raymond de Peñafort, professor at Bologna and compiler,
by order of Pope Gregory IX, of the Decretals in the Liber Extra; and
Antonio de Nebrija (1444-1522), who revised the glosses of Accursius
and wrote Observaciones sobre las Pandectas and a Lexicon Juris Civilis.
By the close of the Middle Age Spanish Law, in its several regional
growths, had assumed its main permanent features.
VIII.
The main characteristic of legal growth in France before the twelfth
century, as it was also the central feature of the history of law in other
parts of Europe during the same period, was the meeting and the
mingling of Germanic law and the Roman and Canon Laws. Under the
system of the personality of law the leges romance and the leges bar-
barorum were both in force within their respective spheres. While under
this system the Church as an institution lived by the Roman Law, the
evolution of the Canon Law meant that in France, as elsewhere, the
Church courts, within their own province, enforced this newer or secondary
body of Roman legal doctrine. The process of feudalisation furthered
the growth of the notion that law was territorial ; and the Capitularies
of the Frankish rulers introduced a body of imperial law, applicable to
all subjects, which embodied Roman and Canonical principles and had
territorial validity as law in contrast with the various systems of per-
sonal law.
In time, as Esmein has pointed out', the personal laws and the
Capitularies fell into desuetude. In their place many territorial customs
gradually developed. The Roman Law, in certain regions at least, ceased
to be invoked as written law, its rules being regarded as a part of
unwritten custom. This process—developing during the chaotic period
of the tenth and eleventh centuries and coming to a definite result in
1 Histoire du Droit Français, 7th edn, pp. 705-707.


## p. 749 (#795) ############################################

Roman and Canon Law in France
749
the course of the twelfth century-determined in many ways the whole
future history of law in France. In the second part of the eleventh
century, however, the Roman written law emerged once more as with
a re-birth; and during the next two centuries it played a highly important
rôle. It either had validity alongside custom or it shaped and modified
custom itself. Down to the very end of the ancien régime the Roman
Law remained in force as binding law, but in a measure which varied
with subject-matter and locality. In the course of the twelfth century
a new and vigorous source of law appeared in the form of royal legis-
lative power. From the fourteenth century onwards the ordonnances of
the kings evolved a body of public and private law of very great im-
portance; and during the course of the sixteenth century they trans-
formed most of the important coûtumes into true lois.
Meanwhile, during the centuries when this long process of develop-
ment was taking its course, the Canon Law, profoundly influenced by the
renaissance of Roman Law, had slowly taken its place as a world-wide
system of jurisprudence. In France the canonical system not only exerted
on many parts of the secular law a remarkable influence, but, down to
the close of the ancien régime, it also retained, up to a certain point, the
character of a body of laws binding the State as well as the Church.
The period from 1100 to 1500 is of special interest. The gradual
adoption of the principle that law was territorial and not personal, an
evolution due in large measure, as we have seen, to the establishment of
feudalism, led to the division of France into two parts, the regions of
written law (pays de droit écrit) and the regions of customary law (pays
de coûtumes). The pays de droit écrit is the southern part of France, about
one-third of the entire country; while north of an irregular line of
boundary, running from the Ile d'Oléron to the Lake of Geneva, lies the
pays de coûtumes. The place of Roman Law in each one of these two
distinct parts of France forms one of the most instructive chapters in the
history of French medieval law.
In the south the Roman population greatly exceeded in numbers the
Germanic population. Under the system of the personality of laws the
Roman Law had been applied to the Romans, and when the principle of
the territoriality of laws was established the Roman Law, being the law
of the majority, was applied to all persons, Roman and Germanic, as the
customary and common law of the southern regions. The point that
Roman Law was applied as the Custom of the South is worthy of special
note. The authority of the Roman Law in the pays de droit écrit was
not derived from any official promulgation in the Roman or Germanic
periods of French history; it was derived from its character as local
custom, and as such it was recognised as binding by the rulers of the
southern regions. The fact that the Roman Law was applied as custom
helps us to understand why it varied, in respect of its scope and force,
from province to province and from century to century, and why, from
CH. XXI.


## p. 750 (#796) ############################################

750
Pays de droit écrit. Pays de coûtumes
time to time, one set of Roman legal sources supplanted another as the
guide to the nature of legal rules and principles. For the very reason
that the Roman Law in those regions was treated as custom, the earlier
sources of that law were easily abandoned for the later ones as repositories
of custom; and we find indeed that the gradual spread of the Justinianean
compilations displaced not only the Theodosian Code but also the
Breviary of Alaric and the Lex Romana Burgundionum. For the same
reason we find that the customary Roman Law was modified by local
statutes.
In the north-the pays de coûtumes—the place of the Roman legal
system was different. In these regions the customary law was composed
of diverse elements: mixed remnants of Germanic and Roman Law, Canon
Law, the Capitularies which had not fallen into desuetude, and local
usages. From an early time the Roman Law—the common law of all
Christian peoples-possessed, even in the pays de coûtumes, a very great
authority as the embodiment of juristic theory. From the universities
came the lawyers; and in the universities the Roman and Canon Laws
were the only subjects of legal study. At an early period the texts of
the Digest and the writings of the Bolognese jurists were translated into
French. In the interpretation and application of the coûtumes, courts
and legal writers alike employed the Roman Law as a kind of universal
legal logic and as the fountain of supplementary rules, helpful analogies,
and principles of interpretation. During the sixteenth century Roman
Law played so important a rôle in legal education, in the practice of the
courts, and in the literature of the law, that jurists raised the question
whether the Roman Law was not, after all, the common law of the pays
de coûtumes. The question thus raised has been the subject of learned
dispute from that day to this; and French lawyers have never really
reached full accord. The better view seems to be, however, that in the
regions of the coûtumes the Roman Law did not become, as it did in the
regions of the droit écrit, the common law. In the north, as distinct
from the south, Roman Law possessed a theoretical or juristic authority.
This authority, although it was not absolutely binding, had persuasive
power, influencing judges, practitioners, and legislators. The authority
exerted was the authority of legal reason; and as legal reason the Roman
Law spread throughout the regions of the coûtumes and influenced them,
ultimately colouring them when they were reduced to writing.
In the manner and with the effect thus briefly indicated the Roman
Law established itself in both parts of medieval France—the pays
de
droit écrit and the pays de coûtumes. Transmitted in this form to later
ages, the Roman Law was ultimately embodied, as one of its fundamental
elements, in the codified Civil Law of modern France.
The influence of the Roman and Canon Laws on the development of
medieval law in France is to be observed in the legal literature of the
time. Thus, in his compilation of the customs and usages of Vermandois,


## p. 751 (#797) ############################################

Legal literature and legal education
751
Pierre de Fontaines, one of the councillors of St Louis, translates passages
from Justinian's Digest and Code. The private work known as the
Anciens Usages d'Artois (1283-1302) has citations from Roman and
Canonical legal sources; while the Livre de Jostice et de Plet, a work con-
cerned with the usages of Orléans and probably written shortly after 1259,
is for the most part a translation of Roman texts. Philip de Rémy, lord
of Beaumanoir (1246 or 1247-1296), employs as the sources of his
Coûtumes de Beauvaisis not only the settled usages and the judgments of
courts, but also the Roman Law, “the law which is common to the whole
of France. ” Jehan Boutillier, who died about 1395, gives us in his Somme
Rural—which is a sort of encyclopedia of the whole of the French Law at
the close of the fourteenth century—the picture of a confused mingling
of Roman and Canon Law with the customary law. At an early time the
writings of Bolognese jurists, including the Summa of Azo, were translated
into French.
In the Middle Ages the Civil and Canon Laws were both taught in the
French universities; but not until modern times was French Law added
to the curriculum. A break in the continuity of teaching Roman Law
occurred, however, in the thirteenth century. Honorius III in 1219, by
the papal decretal Super specula, expressly forbade the teaching of
Roman Law at Paris ; and a century later, in 1312, Philip the Fair con-
firmed the decretal in a royal ordinance. Down to 1679, when it was
brought back once more into the official curriculum, Roman Law could be
taught at Paris only privatim; Cujas, the great Romanist of the sixteenth
century, was obliged to secure the express authority of the Parlement in
order that he might teach it. It is not difficult to see that the Church
had an interest in strengthening the position of Canon Law, at the expense
of Civil Law, in the very centre of European theological studies. Inasmuch
as the Ile de France, with Paris as its capital, was a region of custom as
distinct from written law, there was of course less practical need for the
teaching of Roman Law at Paris than at other French universities.
Nevertheless, the prohibition of the King of France seems at first sight
surprising. The explanation may well lie, as Brissaud suggests, in a fear
of the political influence of the civilians of Bologna, who were at that
time teaching the doctrine that the King of France was a subject of the
Holy Roman Emperor.
Instruction in Roman Law at medieval French universities other
than Paris was encouraged by the Church. In the period of the person-
ality of laws the Church had lived by the Roman Law (ecclesia vivit lege
Romana); and the Roman Law had contributed much to the formation
of the Church's system of Canon Law. These features of the legal history
of the Church seem to have played a part in leading the ecclesiastics to
take a favourable view of the teaching of Roman Law at all the French
universities except theological Paris. Furthermore, many jurists of the
Middle Age were canonists as well as civilians; and a considerable number
CH. XXI.


## p. 752 (#798) ############################################

752
Influence of Italian jurists
of them seem to have supported the Papacy's ultramontane doctrines.
This factor in the situation may also have influenced Church policy as to
Roman Law teaching.
The medieval civilians and canonists of France were greatly influenced,
as were civilians and canonists in all European countries, by the methods
of the Italian jurists—the Glossators and the Commentators. A little
later, humanistic learning spread from Italy to France: it was Alciat, the
Milanese, who carried to France the new jurisprudential methods of the
humanists in the early part of the sixteenth century. In France—at
famous Bourges and also at other universities—a flourishing school of
humanistic legal thought soon came into being, which included such great
Romanists as Cujas, Baudouin, Doneau, Douaren, and Hotman. Pothier,
in the middle of the eighteenth century, summed up the work of the
school in his Pandectae Justinianeae in nor'um ordinem redactae (1748). It
was the work of this school which prepared the way for the great Code
Civil and the many codes of civil law in other countries that have
drawn their inspiration and much of their form and substance from
Napoleon's.
IX.
In the early periods of the history of law in the regions now mostly
within the German Republic—the Germanic epoch and the age of
Frankish ascendency- the basis of the law was a great variety of
Germanic customs. In the course of time the customs had been some-
what modified by the Roman and Canon Laws as they slowly penetrated,
by direct or indirect channels, into the regions held by the various
Germanic peoples; and in the days of the Frankish Empire these foreign
influences were more marked than in the earlier centuries. But, looking
at Germany as a whole at the close of the tenth century, we can see that,
save for the natural modifications due to the progress of the several
peoples in the scale of civilisation, their laws still retained, in most
fundamental features, their original Germanic character.
From the eleventh to the fifteenth centuries the main characteristics
of legal growth in Germany were particularism and diversity. The
written laws of the earlier period—the laws of the Saxons, Franks, and
other Germanic peoples, and the Capitularies of Charlemagne and his
successors—had gradually fallen into a state of disuse in German territories;
for in Germany, in contrast with Italy, Germanic legal sources had not
been made constantly the subject of legal instruction, nor had they formed
the basis of a legal literature. Political and social changes vitally affected
legal development. The principle of the personality of law was displaced,
largely as the result of the rise of feudalism, by the notion that law was
territorial and that it applied to every inhabitant. The old tribal laws
were transformed, therefore, into the unwritten customary laws of localities.


## p. 753 (#799) ############################################

Legal growth in Germany. The Sachsenspiegel 753
It is true that there were royal courts and even royal-enacted laws; but
there was no coherent central judicial organisation of sufficient strength
to combat particularistic tendencies.
German territories were covered by
a network of special courts, such as the courts of feudal lords and of
towns, and in these courts German Law was enforced. In Germany
as a whole there was no legal unity, no common law. Legal particu-
larism and diversity split the law into many laws enforced by many
courts.
When we remember these legal conditions, we need not be surprised
to find that German jurists endeavoured to produce orderly and consistent
treatises of German Law out of the complex and diverse materials which
they collected. Nor need it be a source of surprise to discover that these
juristic efforts failed to achieve their main purpose of German legal unity
ere the rising tide of foreign legal influence submerged large portions of
the native law by the introduction or reception of Roman, Canon, and
Lombard feudal Law. One of these native juristic attempts to produce
order out of the chaos of German legal conditions deserves special notice.
At a time when the Italian Glossators were reaching the end of their
labours and Gregory IX's collection of decretals (1234) was added to the
corpus of Canon Law, Eike von Repkow, a German knight who had long
served as a lay-judge, seems to have realised the danger to the native law
of his race from the foreign and rival systems. In the Sachsenspiegel,
composed between 1198 and 1235, and probably in the third decade of
the thirteenth century, Eike brought together the principles of Saxon
customary law and gave them coherence and systematic order; and upon
Eike's famous work some of the most important of the later treatises on
German Law were based. A comparison of the Sachsenspiegel with the
contemporary treatise of Bracton on the law of England shews us that
Eike's work is distinguished from Bracton's by its originality and its
freedom from the influence of the Glossators! Eike's book of Saxon native
jurisprudence and the works of other German lawyers helped for a time
indeed to stem in some fashion the rising influence of Roman Law in
northern Germany. But the conflict between German Law and the foreign
laws was an unequal one from the beginning. The Sachsenspiegel marks,
in fact, the end of the creative period in the evolution of German national
law. Most of the main factors which determine legal growth in a period
of conflict between competing laws—the fact, for example, that the
Roman law-books contained a systematic corpus of general principles
suitable to an advancing civilisation—were on the side of the foreign
laws. Their reception in Germany turned—and turned permanently-
the whole current of legal evolution into new channels. Even to-day the
law of Germany is still flowing in the channels cut deep down into the
i It is possible, however, that the Sachsenspiegel owes something to the writings
of Italian canonists. See K. Zeumer's essays cited in the bibliography appended to
this chapter.
C. MED. H. VOL. V. CH. XXI.
48


## p. 754 (#800) ############################################

754
Reception of Roman and Canon Law
soil of German life and civilisation by this vast process of adopting the
extraneous laws. The Bürgerliches Gesetzbuch of 1900 is a code of German
private law-but at the same time it is a code of German private law in
which Romanistic legal traditions form a constituent element as pervasive
and important as the Germanic.
The “Reception" of foreign laws in Germany means the adoption of
three systems-Roman Law, Canon Law, and the Lombard feudal law. Of
the reception of the Lombard feudal law nothing need here be said ; and
of the Reception of Roman and Canon Law only the barest sketch can be
given. First of all, let two things be specially noted. The reception of
these two bodies of foreign law formed a long historical process extending
through several centuries; it was not accomplished by a single sovereign
fiat. Furthermore, although the reception of the two Romanic systems
constituted, in a sense, but one single process, yet this process embraced
two movements which differed one from the other in respect of their
causes and their course. Scholars still dispute in regard to the matter of
chronological priority as between these two movements. Brunner regards
the Reception of Roman Law as first in point of time and of influence, and
treats the Reception of Canon Law as its consequence, while Stintzing holds
that the Canon Law came first into Germany, and, preparing the way,
drew the Roman Law after it. When Brunner and Stintzing have spoken
and have disagreed, other doctores iuris utriusque may be tempted to
exercise the scholar's prerogative of silence.
In the history of the Reception of Roman Law two stages are to be
distinguished—the stage of the theoretical and the stage of the practical
Reception. The one consists of the gradual rooting of the conviction in
the minds of German rulers, statesmen, and jurists that Roman Law may
rightfully claim to be the law of Germany; the other consists of the
actual embodiment of Roman Law in German judge-made law.
The theoretical Reception has its beginnings in the notion that
the Roman Empire of the German nation was a continuation of the
Roman Empire of ancient times, and that, in consequence, the Roman
Law of the ancient Empire possessed subsidiary force in the medieval
Empire. This notion gained ground in proportion as the native German
Law became more and more enmeshed in the complex web of particularism.
The spread of the knowledge of Roman Law by the many German
students who obtained their legal education in the Italian law schools
also furthered the growth of the idea. German legal literature—for
example, the Schwabenspiegel, probably written about 1275, the glosses
on the Sachsenspiegel, and the works of Nikolaus Wurms and Johannes
von Brünn-shewed an influence of the Roman Law. German kings in-
terpolated certain of their own laws into the Corpus iuris civilis.
The practical Reception of Roman Law has its beginnings with the
appointment of judges who were trained in the foreign law. In the first
instance jurists learned in the Roman Law were appointed by the king


## p. 755 (#801) ############################################

Switzerland and the Netherlands
755
to advise him as to the law in cases which he personally decided ; later
they were appointed to his Kammergericht. After the establishment of the
Reichskammergericht in 1495 Roman Law gained entry into this highest
imperial court of justice itself. One half its members were required to be
men learned in the law, and all its members were obliged to swear that
they would judge cases in accordance with the “common laws of the
Empire,” Roman Law being included within this formula. Courts of lower
instance-the territorial and city courts-followed the example of the
imperial tribunals; but the village courts long kept themselves free from
Roman influence, preserving the native law of the people. The struggle
between the native and the Roman laws thus centred in the tribunals of
justice. Step by step, however, Roman Law was adopted by the courts in
their decisions; and it was thus incorporated in the German Law as one
of its most vital elements. By the first half of the sixteenth century the
Roman Law was decisive in the practice of the courts.
By the beginning of the twelfth century ecclesiastical jurisdiction had
acquired an importance in Germany at least equal to that of the civil
tribunals, and in the ecclesiastical courts the Canon Law was of course
enforced. From the twelfth century onwards many German clerics
proceeded to Bologna, Padua, Paris, and other foreign universities to
study the Roman and Canon Laws; and this was one of several main
factors making for the spread or reception of the Canon Law in the
homeland of the students. Not only was the Canon Law administered in
the courts of the Church; it also permeated the secular law. In many
ways Roman Law and Canon Law went hand in hand in the work of
modifying and shaping the laws of the German medieval communities.
In Switzerland during the pre-Confederation period (up to 1300)
the various Germanic racial branches who dwelt there lived under their
own folk-laws, which included the Leges Alemannorum and the Lex
Burgundionum. Small communities grew rapidly from the eleventh
century onwards, and each one of them developed a special law based
on the old Germanic folk-law, Germanic medieval law being thus pre-
served in Switzerland in purer form than elsewhere in the German
Empire. In Switzerland there was no “Reception” of Roman Law in
the sense in which there was a Reception of Roman Law in Germany.
In the period of the Old Confederation (1300-1800) there was indeed a
Reception of Roman Law in the cantons; but it stopped short of the
wholesale adoption of Roman rules and principles which marked the
usual course of events in Germany. In fact in 1499 was signed the
treaty by which for practical purposes Switzerland was severed from the
Empire. In Catholic Swiss regions the Canon Law-in cases of mar-
riage, usury, unchastity, and, in some jurisdictions, in cases of testa-
mentary dispositions-retained its validity down to modern times.
The Roman Law influenced the laws of the Netherlands from a very
CH. XXI.
48-2


## p. 756 (#802) ############################################

756
Roman and Canon Law in England
early time. This influence increased, as time went on; but it cannot be
said that there was ever a formal practical Reception in the sense in
which this term is applied elsewhere in Germany. The truth of the
matter seems to be that, owing to the decentralised conditions of political
and legal evolution, an opening was made for the entry of the Roman
Law as one of the important subsidiary legal sources, and that this
influence of the Roman system was not equally strong in all the pro-
vinces. At an early time the Coder Theodosianus (A. D. 438) left its
mark on tribal customs; and, similarly, the Frankish Law, which had
been in contact with the Roman Law, influenced the customary law. The
renaissance of Roman Law in the Italian law schools had important results
in the Netherlands as in the rest of Germany. What, too, has been
said of the influence of the Canon Law in Germany generally, also holds
true in the provinces of the Netherlands.
X.
Law travels by sea as well as by land. Separated from the Continent
by the intervening narrow seas, the British Isles came nevertheless within
the reach of the influences of Roman and Canon Law. Of these influences
one may not speak in detail. Nor is it possible to describe the spread
of the Romanic Laws to Scotland, Ireland, and Wales? . Our attention
for the moment must be restricted to England.
The law of England before the Norman Conquest was fundamentally
Germanic in character, even though Celtic custom may here and there
have left its trace on the customs and written laws of the Angles, Saxons,
and Danes. Roman legal institutions do not appear to have survived the
abandonment of Britain by the Romans; at least they do not appear to
have contributed materially to the formation of the laws of the pre-
Norman period of English history. “We speak of law,” declares Maitland,
" and within the sphere of law everything that is Roman or Romanized
can be accounted for by later importation. . . . And, in point of fact, there
is no trace of the laws and jurisprudence of imperial Rome, as distinct
from the precepts and traditions of the Roman Church, in the earliest
Anglo-Saxon documents. Whatever is Roman in them is ecclesiastical.
. . . This inroad of the Roman ecclesiastical tradition, in other words, of
the system which in course of time was organized as the Canon Law,
was the first and by no means the least important of the Roman in-
vasions, if we may so call them, of our Germanic polity. ” The Franks
1 “The canon law of Scotland before the 16th century was generally that of the
continent of Europe. The usages of the church were similar to those in France, and
had not the insular character of those in England and Ireland. The canon law
regulating marriage, legitimacy and succession was taken over by the Scottish secular
courts and survived as part of the common law of the land almost unimpaired. ”
Lord Phillimore's article on “Canon Law in England and in the Anglican Com-
munion” (Encyclopaedia Britannica, 11th edn, 8. v. Canon Law).


## p. 757 (#803) ############################################

Civilians and canonists
757
had, however, taken over Roman legal materials and embodied them in
their own system ; and, through English intercourse with the Franks,
some of these Roman materials were imported into England. Roman
influence of this character seems to have played upon the form and
content of the Latin charters or land-books of the Anglo-Saxons.
Roman legal elements assimilated by the Franks had been adopted
by the Normans in Normandy as a part of the Frankish legal system
which they made their own. The Norman Conquest brought many of
these elements into England, where they were to exert an important
influence upon the growth of English Law, more especially perhaps the
law of procedure. Nor, when we consider the Frankish-Roman influence,
must we forget that Lanfranc, the Pavese lawyer, was William the
Norman's counsellor. The fashion thus set by the Conqueror was followed
by later kings. Many of the Roman legal influences that affected the
growth of the prerogative and other features of England's constitutional
and legal system were due to the advice and the work of royal legal
counsellors trained in Roman and Canon Law. Henry III had Henry of
Susa by his side, Edward I had Franciscus Accursii, the son of the great
Glossator. Archbishops no less than kings imported foreign jurists trained
in the Civil and Canon Laws. Archbishop Theobald brought from Italy
a jurist who left his mark on English legal education and English civilian
literature. Vacarius not only taught Roman Law in England-almost
certainly at Oxford, where a law school was just then developing—and
gathered round him a group of disciples, but he also wrote both the
Liber Pauperum, which was a book on Roman Law for poor students who
had not the means to acquire the Roman texts, and a tract on the law
of marriage. There are other evidences that the Roman and Canon Laws
were being more and more studied in England. The disciples of Vacarius
glossed his glosses. Manuscripts were copied. John of Salisbury gave
a sketch of civil procedure in his Polycraticus. A manual of procedure
is attributed to William Longchamp, King Richard's chancellor. William
of Drogheda, law teacher at Oxford, wrote a Summa Aurea. In the
fourteenth century an English canonist, John de Athona, wrote a gloss
on the legatine constitutions which displays knowledge of Justinian's
law-books. William of Lyndwood, still one of the leading English
authorities on Canon Law, finished in 1430 his commentary on the pro-
vincial constitutions of the Archbishops of Canterbury.
English students early proceeded to Bologna to acquire knowledge
of the Civil and the Canon Laws at the fountain-head. Schools of the
two laws grew up at both Oxford and Cambridge, where degrees in each
one of the laws were conferred. Some English lawyers were trained in
both laws; and in various ways it was an advantage to them to be versed
in Civil and Canon Law alike. The civilian, if he knew little or no Canon
Law, might be employed as a teacher or as a servant of the king in the
council or the chancery or in diplomacy, and he might also engage in
CH. XXI.


## p. 758 (#804) ############################################

758
Azo and Bracton
practice in the courts of admiralty and the courts of the universities.
But, on the whole, the civilian found less to do than the canonist.
Canonists were not only required for the work of the ecclesiastical courts;
they were also given employment in the royal service as clerks, as
justices in the courts, and as chancellors.
The great law school at Bologna, which spread its influence through-
out Europe, left its permanent mark on English juridical thought and
on English law and procedure. What one may call the Bolognese factor
in English medieval legal history worked subtly in two ways; for it
meant the importation into England of Canon no less than of Roman
legal ideas, rules, and processes. Closely related upon the Continent,
these two legal systems were also closely related in England. Their
separate influences flowed through many channels, but oft-times the two
streams of influence united and flowed in one and the same channel.
Only by a detailed and penetrating survey would it be possible to per-
ceive and distinguish all the currents that were Roman and all the currents
that were canonical. The revival of the ancient Roman Law as embodied
in Justinian's books was the work of the Bolognese Glossators, and that
work fell within the period from the early part of the twelfth to the
middle of the thirteenth century. Tidings of the legal revival were not
slow in reaching England, and for a full century-from the middle of
the twelfth to the middle of the thirteenth century—the new learning
materially affected the evolution of the English Law. Italian influence is
to be seen in Glanvill's law-book ; but it is chiefly noticeable in Bracton's
great treatise, the main part of which appears to have been written
between 1250 and 1258. The names of Azo and Bracton will always be
linked together in legal literature. In the writing of his treatise on
English law and procedure, Bracton, the ecclesiastic and the royal justice,
while depending chiefly on the cases in the plea rolls, also made use of
various Roman and Canonical legal materials, and among them, first and
foremost, the writings of the great Glossator Azo. From these sources
of the Romano-canonical jurisprudence of the Middle Age, and chiefly
from Azo, Bracton derived his general notions as to what a law-book
should be and how it should be written; and from them he also obtained
specific legal rules and maxims. His main indebtedness to the civilians
and canonists is to be found, however, in the form and arrangement of
his book, for in its substance the De Legibus et Consuetudinibus Angliae,
the book which Pollock and Maitland describe as 6 the flower and crown
of English medieval jurisprudence,” is fundamentally English in character.
In the matter of civil procedure, however, there was a noticeable influence
of the canonical system, and this influence may be studied in Glanvill's
and Bracton's books. English civil procedure was rationalised under
canonical influence; and, in some instances, it became indebted to the
foreign system for direct borrowings. It borrowed from the exceptions
against witnesses in the ecclesiastical courts the “exceptions,” or “chal-


## p. 759 (#805) ############################################

Romanic influences on English Law
759
lenges,” that can be made against jurors; it borrowed much of the science
of pleading from the civilians and canonists. The actio spolii of canonical
legal procedure was suggestive to English lawyers in the framing of their
own action of Novel Disseisin. But, even though the main substantive
features of Bracton's book represent English as distinct from Romano-
canonical jurisprudence, we may nevertheless agree with Sir Paul Vino-
gradoff when he says that “the most important English contribution to
Romanesque jurisprudence” in the Middle Age was made by Bracton'.
Down through the centuries this Romanesque learning of Bracton, even
though it was not very profound, has continually influenced not only
English juridical thought, but also English legal rules and principles.
In its origin and its essential features the foreign influence handed down
by Bracton has been the influence of Azo and the other Italian Glossators.
Great schools of law always live through the ages and continuously
radiate waves of thought to places near and remote in the ever-changing
world. Such a school of law was founded by the Glossators at Bologna.
As Pollock and Maitland, in the History of English Law, have
pointed out, “ the rapid and, to a first glance, overwhelming How of
Romanic learning," from the middle of the twelfth to the middle of the
thirteenth century, “ was followed in this country by an equally rapid
ebb. ” From Bracton's day onwards the English Common Law developed
on its own lines as a system distinct and different from both of the
foreign systems now the object of our study. Some of the foreign
elements which the Common Law had already assimilated it preserved;
but, on the whole, the Common Law of post-Bractonian centuries seems
to have adopted but little from either the Civil or the Canon Law. In
the age of the Renaissance there was, indeed, the danger of a “Reception”
of the foreign laws. But, as Maitland has taught us in his brilliant essay
on English Law and the Renaissance, although English Law did not form
a part of university education until modern times, it was nevertheless
academically taught in the Inns of Court during the later Middle Age;
and it was this teaching of English Law to the profession which "saved
English law in the age of the Renaissance. ” In the words of Lord Justice
Scrutton, in his Influence of the Roman Law on the Law of England,
“the working out of an Equitable Jurisdiction, and the decisions of the
Ecclesiastical and Admiralty Courts were building up systems largely of
Civilian origin, but in the Common Law, the influence of Roman Law
has rather retrograded than advanced since the time of Bracton. "
Equity, as a distinct system of justice supplementary to the Common
Law, has its beginnings in the later Middle Age; although not until
modern times does it acquire many of its present-day features. The chief
moulders of medieval Equity were the king's council and chancery; and
many of the men who sat in these tribunals were ecclesiastics. Some of
the ideas and principles applied by these courts, and certain of the
1 Roman Law in Mediaeval Europe, p. 88.
OH. XXI.


## p. 760 (#806) ############################################

760
Canon Law and ecclesiastical courts
features of their procedure, were unquestionably borrowed from the civil
and canonical systems. But the extent of this foreign influence, both in
medieval and in modern times, has long been a matter of dispute. Spence
maintains that Equity's debt to Civil and Canon Law is very great; Mait-
land and Mr Justice Holmes contend that the chancellors had no intent
to Romanise English Law and that indeed Equity does not in any way
consist of wholesale borrowings from the foreign systems. The recent
investigations of scholars seem to confirm the latter view. So far as the
medieval period is concerned, the chief indebtedness of the council and
chancery seems to have been to ecclesiastical procedure. Various im-
portant features of the procedure of the Courts Christian were taken
over and adapted to the purposes of procedure in Equity.
In the English ecclesiastical courts, from the time of William the
Conqueror to the Reformation, canonical jurisprudence had a wide field
of application. In accordance with the older view, the English Church
was always an independent national church, and, although it was subject
to the general principles of the ius commune ecclesiasticum, it was not
bound by particular constitutions of the Councils or of the Pope unless
such constitutions had been “received” in England as part of English
ecclesiastical law. Contrary to this view, which has persisted down to
our own day, and is still held by some scholars, Maitland holds—basing
his view on a study of Lyndwood's Provinciale and other authoritative
sources—that the law enforced in the English Church courts in the pre-
Reformation period is none other than the Canon Law of the Western
Church, of which the English Church forms an integral part; and that
the papal decretals were, therefore, as binding on the English ecclesiastical
courts as they were on any other courts of the Western Church as a whole.
“Whereas the English State was an independent whole,” declares Mait-
land, “ the English Church was in the eyes of its own judges a dependent
fragment whose laws had been imposed on it from without. "1
Without pursuing this controversy further, and remarking only that
Maitland's view has been adopted by many scholars of eminence, let us
take note of the fact that in the medieval struggle between State and
Church in England the delimitation of the respective spheres of lay and
ecclesiastical jurisdiction, and hence of the respective spheres of Common
Law and Canon Law, played a rôle of the greatest importance. This
contest between lay courts and laws and ecclesiastical courts and laws
was not peculiar to England; it was a contest waged in nearly every
country of medieval Europe. But in each one of these countries the
struggle possessed its own local features; and the struggle in England
was no exception to this. The claims of the English Church courts to
wide jurisdiction were growing at the very time when Henry II was bent
on the centralisation of justice in his realm, the strengthening of his own
royal courts, and the expansion of their jurisdiction. The struggle
1 English Historical Review, July, 1896, p. 475.


## p. 761 (#807) ############################################

Lay and ecclesiastical jurisdiction
761
reached its climax in the dispute between Henry and Becket. Out of
that dispute the king emerged the victor, and also in future disputes
between the champions of the two jurisdictions the champions of the lay
courts and of the Common Law were generally the victors. The victory
of Henry VIII and his Church settlement marked the end of the long
medieval struggle and the beginning of a new epoch'.
Much of the subject-matter of the jurisdiction claimed by English
Church courts in the Middle Age was purely ecclesiastical and spiritual.
These matters were not claimed by the State as matters which fell within
the proper competence of the royal tribunals; they were left to the
Courts Christian. Apart from such matters, however, there was a wide
field of law which the courts of the Common Law, with the greatest
propriety, might well have occupied exclusively. It is, indeed, a striking
feature of English legal history that, from the middle of the twelfth
century onwards, the ecclesiastical courts exercised jurisdiction over many
matters which can hardly be termed ecclesiastical in any true sense?
Thus, the ecclesiastical courts claimed jurisdiction in matrimonial causes
-marriage, divorce, and legitimacy; and these claims neither Henry II
nor his successors disputed. The claim to exercise jurisdiction in testa-
mentary causes was likewise successfully asserted by the Church courts;
they pronounced on the validity of wills and interpreted them, they
regulated the acts of the Church's own creature, the testamentary execu-
tor, they decided all cases of succession to moveable property ab intestato.
Despite prohibitions issued by the royal courts, ecclesiastical tribunals
long enforced contractual promises made by oath or by pledge of faith.
The jurisdiction of the ecclesiastical courts over most of these matters
was retained by them down to 1857.
In one direction the Civil Law exerted an influence on the growth of
English Law which is worthy of special notice. In the course of the four-
teenth century the Court of Admiralty acquired a jurisdiction to punish
crimes, including piracy, committed at sea, and it also assumed a civil
jurisdiction over shipping and commercial matters. While the law ad-
ministered by the Admiralty was embodied in the great maritime codes of
the Middle Age, as a supplementary law the Civil Law was also enforced;
and the procedure of the Court was modelled on that of the Civil Law
system. In the Admiralty, therefore, civilians found the opportunity to
practise and to sit as judges. Although the criminal jurisdiction of the
Court of Admiralty was transferred to the Common Law courts over three
hundred years ago, its civil jurisdiction was retained down to our own
1 See Tanner, Tudor Constitutional Documents, 1922, pp. 13-98, 357–374.
? It is not to be forgotten, however, that medieval views as to the nature of some
of these matters differed widely from modern views.
3 Compare the scope of the jurisdiction of French ecclesiastical courts in the
Middle Age. See Brissaud, History of French Public Law (in Continental Legal
History Series, edited by J. H. Wigmore and others, Boston), 1915, pp.