No More Learning

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. 182–191.
CH. XXI.


## p. 762 (#808) ############################################

762
“Inner” history of the two laws
times. In the course of the centuries English maritime law lost much of
its international character. But it still retains, even to-day, certain
features which it derived from the Roman system.
XI.
Difficult as it is to sketch in outline the history of the general de-
velopment, the spread, and the sources of Roman and Canon Laws in the
Middle Age, it is more difficult still to give, in a short compass, any clear
conception of the medieval history of the rules and principles embodied
in those systems. This difficulty in sketching the “inner,” as distinct
from the “external,” history of Roman and Canon Laws arises in part
from the fact that the historian is concerned with the several branches
of each one of two extensive bodies of public and private law, and that
he must study the rules and principles of each system in their relation
to those of the other system. Nor is it sufficient to study these two
Romanic systems in isolation. Not only their relations to each other,
but also their relations to other bodies of law, such as the Greek and
Germanic systems, feudal custom, town laws, and territorial legislation,
must be taken into account. There are legal influences and counter-
influences, in all the many parts of Europe, which produce modifications
of older rules and doctrines and which lead to the introduction of new
ones, the general result being an almost infinite variety of legal types.
The difficulty of sketching the history of the rules and principles of the
Roman and Canon Laws is increased by the further fact that these laws
are never at rest; at all times and in all places they are subject to change
in response to the pressure of the many forces at work in society. The
words of Mr G. W. Cable, the novelist, are not inappropriate as an ex-
pression of legal change: for law is constantly "shifting like the fragments
of colored glass in the kaleidoscope. ” The true picture of the law in its
development is not obtained by methods similar to those of the older
photography; it is obtained only by using methods that produce the im-
pression of life and movement-methods comparable to those which now
create the living and moving picture shewn upon the screen.
To the student of the inner history of Roman and Canon Laws in the
Middle Age the vast range of the subject, both in time and place, is
forbidding. An evolution—or, rather, a whole complex of diverse but
related evolutions-extending through many centuries is spread over the
entire surface of the Eastern and Western parts of the European world;
and everywhere, in all the regions of the world, this evolution is
intertwined with the other features of the history of medieval civilisation.
How enlightening this inner history of the two laws may be made is
evident to any reader of Zachariä von Lingenthal's Geschichte des
griechisch-römischen Rechts and of the writings of other modern scholars
dealing with the rules and principles of Roman and Canon Laws in their


## p. 763 (#809) ############################################

Graeco-Roman and Romano-Germanic Law
763
medieval environments. The history of patria potestas in the East after the
time of Justinian may be taken as an illustration. This distinctive
feature of the older Roman Law, this power or bundle of powers so
intensive in the period of its full vigour that it was sometimes referred to
as patria maiestas, was slowly modified in the course of Roman legal
history, especially in the time of the Empire. Shorn of many of its
older and harsher features it was given a place in Justinian's system': and
as a part of his great codification it played a role in the development of
Graeco-Roman Law. Zachariä von Lingenthal has shewn? how the
fortunes of the Justinianean patria potestas fluctuated in later Eastern
history, how the rules of Justinian in regard to it were displaced,
modified, allowed to fall into disuse, or revised, in accordance with the
varying fortunes of Justinian's codification as a whole, two of the im-
portant stages in this development being marked by the appearance of
the 'Εκλογή των νόμων and Tα βασιλικά 3.
Many illustrations of the importance of studying the inner history
of the two laws in the Middle Age may be drawn from the leges romanae
and the leges barbarorum of the West. Rules of the ancient Roman
Law, either in their original form or in modifications adapted to the
needs of Germanic societies, were incorporated in these codes. The leges
barbarorum are even more interesting than the leges romanae as embodi-
ments of Roman legal rules; they are more interesting because they shew
us more clearly the inroads of Romanic rules upon Germanic custom.
Thus, the laws of Euric, the most ancient of all the written laws of the
Visigoths, contain rules of Roman Law, some of which run counter to
Visigothic custom. Sir Paul Vinogradoff has drawn special attention to
the declaration in Euric's laws that donations extorted by force or in-
timidation (vi aut metu) are to be null and void; and he cites this as a
rule which breaks through the purely formalistic treatment of obliga-
tions natural to barbaric law.
When the student of the inner history of the two laws reaches the
period of the revival of juristic studies in the West, he is appalled at the
mass of the materials which lie to his hand. The very bulk of the Corpus
iuris civilis and the Corpus iuris canonici is forbidding. Each one of
these bodies of law is an extensive and complicated system, in which
many branches are included; each system has its constitutional law, its
law of persons, property, inheritance, contracts, and delicts, its law of
procedure. In addition, each one of these two huge bodies of law is
enveloped by a vast medieval literature: there are the glosses, the
1 See Buckland, Roman Law from Augustus to Justinian, pp. 103-105.
2 Geschichte des griechisch-römischen Rechts, 2nd edn, $$ 17-24.
3 An instructive comparison of patria potestas in Byzantine law with its influence
on Western secular law may be made by reading the works of Brissaud, Brunner,
and other historians of European legal systems.
4 Roman Law in Mediaeval Europe, p. 20.
CH. XXI.


## p. 764 (#810) ############################################

764
The two cosmopolitan legal systems
summae, and all the other writings of the medieval civilians and canonists.
The writing of a history of the rules and principles of these two great
legal systems involves the tracing of origins and development, the setting
forth of the relations of the several parts of each system one to another,
the statement and criticism of the doctrines elaborated by the civilians
and canonists', the recounting of the part played by each system in the
legal history of many countries of the world in later medieval and in
modern times? . It is clear that no adequate picture of the inner history
of these two cosmopolitan legal systems can be given in a few words; any
attempt to give such a picture at the end of the present chapter would be
a grandiose project destined to failure.
1 Gierke's Staats- und Korporationslehre des Alterthums und des Mittelalters und ihre
Aufnahme in Deutschland (Das deutsche Genossenschaftsrecht, Vol. 1) is one of the
most brilliant of all the modern studies of the doctrines of medieval civilians and
canonists. See also Maitland's illuminating Introduction to his translation of a small
part of Gierke's volume (Political Theories of the Middle Age, pp. vii-xlv).
2 For the influence of Canon Law on the several branches of secular law, see
Brissaud's Histoire du Droit Français and Hinschius' essay on the history and sources
of Canon Law in Holtzendorff's Encyklopädie der Rechtswissenschaft, 5th edition, 1890.


## p. 765 (#811) ############################################

765
CHAPTER XXII.
MEDIEVAL SCHOOLS TO c. 1300.
The schools of medieval Europe owed their curriculum of secular
studies to the imperial rhetoric schools of Rome. For some centuries
after the barbarian invasions Christian bishops kept alight the lamp of
learning in schools where much “chant” and “doctrine” and but a meagre
fragment of the old Roman studies were afforded, but the whole cur-
riculum was eventually reclaimed for Christian schools. The imperial
schools were “public schools,” in the sense that access to them was open
to all who could pay the fees, often small through the subvention of the
State, to the rhetor or grammarian; when the expression "scholae publicae
is found, rarely enough, in early medieval documents, it always looks back
to a school of this type-either one largely maintained by the State, or
the school of a private master teaching for fees—in distinction to epis-
copal schools, where the pupil might be maintained and taught without
payment, but where the bishop or his deputy settled questions of admission.
The curriculum of the imperial schools, viewed by medieval scholars
through the writings of Martianus Capella, consisted of the seven liberal
arts: grammar, rhetoric, dialectic, geometry, arithmetic, astronomy, music.
The classification was retained by Boethius (ob. 524), who was the first to
divide the subjects into two groups, the “trivium” and “quadrivium. ”
Cassiodorus noted the appropriateness of the sevenfold distinction and
its connexion with the perfect number of scripture, and Isidore of Seville
preserved it in his Origines. The seven liberal arts fell into line with the
general predilection for “seven” divisions in the medieval world, with
the seven grades of the clerical militia, the seven articles of the creed,
and the seven deadly sins. Under grammar was included the study of the
Latin classics, under rhetoric the schemata, tropes, and figures so useful
for the interpretation of Christian scriptures, under dialectic the logic
of Porphyry and, after the twelfth-century renaissance, of Aristotle.
Geometry included geography and such slender conceptions of a Ptolemaic
universe as survived; arithmetic was for long represented chiefly by the
“computus," or tables for establishing the date of Easter and the move-
able feasts; and the last two subjects found for some time few professors,
the study of Greek music not being necessary for the chant.
The question of the persistence of the rhetoric schools is of great
interest. In Britain they perished with the withdrawal of the legions,
though the tradition of classical learning survived in the British
monasteries of Wales, Armorica, and Ireland. In Gaul in the fourth
CH, XXII.


## p. 766 (#812) ############################################

766
Schools of rhetoric
century masters were still numerous and schools flourishing, to judge from
the information about his colleagues given by the rhetor Ausonius, and
from other evidence. The continuity of schools in particular towns de-
pended on the presence of celebrated professors; but during the century
the existence of schools of several masters is to be inferred at Autun,
Marseilles (where Greek was taught as well as Latin), Lyons, Bordeaux,
Besançon, Toulouse, Narbonne, Poitiers, Angoulême, Saintes, and Auch.
The fifth century brought to Gaul the shock of the Burgundian, Visi-
gothic, and Frankish invasions, and the raid of Attila; the public schools
were no longer supported by the State, and Sidonius Apollinaris witnesses
to the willingness of the Roman provincial nobles to settle down under
barbarian rule. The schools were no longer assured of a clientèle pre-
paring for an imperial career, and, except at Lyons, there were no
longer groups of masters, though individual rhetors are known to have
taught at Marseilles, Arles, Agen, Perigueux, Bordeaux, and possibly at
Narbonne and Clermont. In the sixth century the ruin of the schools
was completed; the liberal arts were no longer taught; Gregory of Tours
wrote that “the culture of liberal letters is declining, or rather perishing,
in the towns of Gaul. . . one would not know how to find a single man
instructed in dialectic or grammar"; Fortunatus, the great man of letters
of the period, had been brought up in Ravenna. When schools were
again founded in Gaul, they were schools of a different type.
In Italy, however, the rhetoric schools never perished--a fact vital
to the survival of European civilisation, law, and politics. The Ostrogoths
Theodoric (ob. 526) and Athalaric (ob. 534)protected them, and the genera-
tion which included Ennodius, Boethius, and Cassiodorus profited by the
brief spell of peace. Schools were numerous, treatises on grammar were
multiplied, and Cassiodorus planned with Pope Agapetus the foundation
of a Christian rhetoric school at Rome for the teaching of the liberal
arts--a scheme narrowed later to the foundation of his learned monastery
at Vivarium. The Lombard invasion proved far more dangerous to the
schools than that of the Ostrogoths; but the strength of local tradition,
the nearness of the vernacular language to Latin, the contact with By-
zantine learning by means of the Greek cities of the South, prevented
their disappearance, and produced important results. First, up to and
during the Carolingian renaissance, Italy supplied Europe, if not with
great scholars, at least with grammar masters trained on the old classical
lines. Bethar (ob. 623), an early scholasticus and Bishop of Chartres, who
was for some time in charge of the Merovingian palace school (where his
teaching was no doubt more religious than literary) came from Italy;
as did Hadrian and Theodore, Paulus Diaconus and Peter of Pisa, Lan-
franc and Anselm, and many others. Secondly, the tradition of lay
scholarship persisted in Italy. Whereas elsewhere in Europe schools were
maintained by ecclesiastics, and masters and scholars were clerks, in Italy
the rhetoric masters and their scholars were not clerks, though they


## p. 767 (#813) ############################################

Clerkship and the tonsure
767
irritated the bishops by claiming benefit of clergy. Thirdly, the lay
character of the Italian rhetoric schools, and the ecclesiastical character
of other European schools, account for the fact that when, later, groups
of schools Howered into universities, Italy took the lead in the secular
studies of law and medicine, while Paris was mistress of theology.
The connexion between the other type of early medieval school, the
episcopal or monastic school, and the minor orders of the clergy, was
so close that some reference must be made to it. Those who taught in
such schools before 1300, and, with the few exceptions of the children of
princes and nobles, those who attended them also, were either clerks or
probationers for the “clericatus”: they received the tonsure and wore
the clerical dress. The shearing of the hair (not at first the shaving of
the top of the head, leaving a corona or fringe of hair all round) was a
sacred rite administered by the abbot to the postulant whom he received,
and who did not necessarily proceed afterwards to any of the seven orders
of the Church; or by the bishop! before the administration of the first
minor order. The idea in each case was the same-adoption into the
abbot's or bishop's familia. The non-monastic tonsure was not an order,
but (according to John de Burgh in the Pupilla Oculi of 1385) “a dis-
position towards an order. ” The seven orders (ostiarius, exorcista, lector,
acolita, sub- (or hypo-) diaconus, diaconus, presbyter) were all, at first,
given separately, but by the sixth century the first and second, or the
first, second, and third, were conferred on the same day, and the candidate
was ordained exorcist, or, more usually, lector. In England in Archbishop
Ecgbert's time candidates would still seem to have been ordained to each
order separately; but Peckham allowed the first three minor orders to
be conferred together, and the Pupilla Oculi states that all four might
be so conferred. The non-monastic tonsure (it is inexact to call it the
"clerical tonsure" since monks were clerks) has always, in the Greek
Church, accompanied ordination to the first minor order. In the Latin
Church it was first allowed to be given separately, to those who had no
intention of proceeding to orders, by Gregory the Great, in the case of
the Sicilian actionarii employed in administering the papal patrimony.
It was also given separately, after the Carolingian renaissance, to children
of seven or over who were received into bishops' households to be trained
as their diocesan clergy; before this, such children appear to have been
ordained lectors at once. •In pre-Conquest England, evidence that the
(non-monastic) tonsure was given separately from the conferment of a
minor order is lacking. In any case, in Europe generally, the number of
those who received the (non-monastic) tonsure without proceeding then
or later to minor orders was not great before the rise of the universities
in the late twelfth century; afterwards, it was considerable. The recep-
tion of the tonsure, like the admission to minor orders, did not entail
celibacy, though those who received them usually practised it for a time
Cardinal-priests and a few others had also the right to administer it.
1
CH. XXII.


## p. 768 (#814) ############################################

768
Child lectors
as living a community life, either, in the earlier centuries, in some bishop's
familia, or, later, in some college of the university or provincial hostel.
Episcopal statutes frequently reiterated that none could claim benefit of
clergy who scorned to wear the tonsure and the clerical dress. Clerkship
was proved by the production of letters of clerkship granted by the bishop
at the time of conferment, or failing this, in France, by the production
of barbers to swear that the tonsure had been properly made. It was
only later than 1300 that English law allowed clerkship to be proved by the
reading of certain psalm verses; and even then the verses usually chosen
were from the sixteenth psalm: “The Lord himself is the portion of mine
inheritance. . . thou shalt maintain my lot. The lot is fallen unto me in a
fair ground” (lot, klñpos, clerk), which the candidate would have recited in
alternate verses with the bishop who was shearing him. Clerkship before
1300 implied a definite ecclesiastical status and duties, and not merely
ability to read or write; nor should clerks be confounded with those who
were, for various reasons, entitled to benefit of clergy-a larger number.
By far the most important pre-Carolingian schools were the bishops
schools-small groups of lectors living in their households. The bishops
formed the "ordo doctorum,” and in this conception the teaching of the
diocesan clergy personally in their own household seems to have been an
equally important element with the teaching of the laity by means of
sermons. Throughout the middle ages, “cathedra,” of course, meant
equally a “cathedral” or a professor's “chair. ” In the early Middle Ages,
except for periods of confusion due to the barbarian invasions, bishops
were ideally supposed to live a communal life with the clergy of their
familia. References to this familia, and the ecclesiastical training afforded
in it, are frequent in papal letters and conciliar decrees, and shew that
the adoption of children of seven into it preceded even the fall of the
public rhetoric schools. It was the disappearance of these, however, which
made such episcopal schools vital. As long as the rhetoric schools existed,
the lives of the more learned bishops shew them to have been taught in
such schools; but, after their disappearance, the biographies of even the
most learned bishops shew them to have been received (usually as children)
and trained in some bishop's household. Pope Siricius wrote in 385 to
Bishop Himerius of Tarragona that “Whoever vows himself to the service
of the Church from his infancy (i. e. seven years old) ought to be baptized
. . . and joined to the ministry of the lectors. ”. Certain Statuta Antiqua!
mentioned these child lectors, who read in church, and laid down interesting
rules for the regulation of the bishop's familia of clerks, “widows," and
pilgrims. Pope Zosimus wrote (c. 418) to Esychius of these lectors: “If he
shall have given his name from infancy to ecclesiastical ministries, let him
remain until his twentieth year with continual observance among the
lectors. ” Leo I wrote to the African bishops about the choice of suitable
candidates for the priesthood: “The venerable sanctions of the holy
1 Used by Caesarius of Arles, see Hefele, 11, i, 104.


## p. 769 (#815) ############################################

Episcopal schools
769
fathers justly adjudged those to be suitable for sacred functions whose
whole life, from childhood to more advanced (provectior) age, has been
passed by means of the stipends of ecclesiastical discipline. ” A stipend,
an allowance sufficient to support life, could hardly have been made to
children otherwise than by maintenance in the bishop's familia: and this
is actually stated by the Council of Toledo in 531.
The first conciliar decree expressly dealing with familial schools
came from sixth century Gaul, where the rhetoric schools had just perished.
The Council of Vaison in 529 enacted that “all priests (presbyteri) who
are appointed to parochiae shall, according to the custom which we have
learned is wisely observed throughout all Italy, receive to live with
them, in their house where they themselves dwell, young lectors (as many
as have taken no wife); and, spiritually nourishing them like good fathers,
they shall strive to prepare psalms, to persist in readings of Scripture
(divinae lectiones), and in teaching the law of the Lord; so that they may
provide for themselves worthy successors, and receive from the Lord the
reward of eternal life. But when they shall come to full age, if any of
them through the frailty of the flesh wishes to marry, he shall not be denied
power to marry. ” The school of a “mater ecclesia” in a “rural diocese”
is clearly here indicated; no chaplain of a rural “oratorium” could have
nourished an indefinite number of young lectors. The cost of the main-
tenance and education of these ordinands is clearly the cause of the
frequent enactments that no bishop should ordain the scholar of another.
The Council of Toledo in 531 said expressly that it was unfair to the
bishop who had taken the child “from rustic and mean surroundings. ”
that he should later, "when imbued with such an education,” transfer
himself to another church. This council also echoed the decree of Vaison,
applying it to bishops' schools: “Of those whom the will of their parents
sets free from the years of their first infancy for the clerical office, we
decree that immediately they have received the tonsure they shall be
handed over to the ministry of the lectors; they ought to be taught in
1 This decree has sometimes been taken to refer to “parish schools” in the
modern sense, though this “parochia” actually corresponded far more to a modern
archdeaconry or rural deanery than to a modern parish: the bishop had usually no
more than two or three in his “rus” or “territorium. ” “Parochia,” till post-
Carolingian times, meant the sphere of a “mater ecclesia,” metropolitan, epis-
copal, or collegiate. There were besides priests and clerks serving chapels or oratories,
but these had no "parochia”; the Rule of Chrodegang of Metz, as revised by the
Council of Aix-la-Chapelle in 817, enacted that both the laity and priests who
served such oratories were to attend Sunday mass in the mater ecclesia. The spheres
of such rural, presbyteral-collegiate, churches as existed in Gaul between c. 450 and
c. 600 are referred to as “ dioceses,” and rarely, as at this council of Vaison, as
“ parochiae. ” While these rural dioceses, or rural parishes, were few, and served
by a comparatively large familia, councils provided that the presbyter in charge
should nourish lectors like a bishop; but when they became more numerous, smaller,
and poorer, the requirement was dropped as impossible: the maintenance of a single
clerk only was required from the ninth century.
49
C. MED. H. VOL. V. CH. XXII.


## p. 770 (#816) ############################################

770
The Dark Ages
the house of the church, in the bishop's presence, by his deputy. But,
when they shall have completed their eighteenth year, their wishes con-
cerning the taking of a wife ought to be scrutinised by the bishop in the
presence of clerks and laity. ” It was doubtless to this formal choice of
the young lectors trained in the familia of Augustine at Christ Church,
Canterbury, that Gregory the Great looked forward, when he advised
Augustine to live the apostolic (communal) life with his clergy, allowing
such lectors as wished at this stage to marry to do so, and to receive their
stipends (maintenance) outside the community, while attending its offices.
The training of the Canterbury (and Rochester) child lectors by “masters
and pedagogues” is independently attested. Gregory the Great himself
founded a “schola cantorum” at Rome of a similar nature: he built, that
is, two new houses for the school in the papal household which had
already existed. The functions of “lectors" and "cantors” run into one
another in medieval documents; the cantor or psalmista was not neces-
sarily episcopally “blessed,” the cantorate not being one of the seven
orders in the Western Church, although it was in the Eastern. In St
Ambrose's church at Milan (and in other instances), we find that it was
the lectors who did the singing (“Lectores ecclesiae pondus portantes,
docti cantu, lectioni. . . ").
In these episcopal schools the teaching depended on the learning of the
bishop, or after the seventh century his deputy, the magister scholarum,
scholasticus, or capischola. Latin and the computus were taught as
necessary for ecclesiastical equipment, but the seven liberal arts were not
usually so taught before the Carolingian renaissance. Paganism was still
too real a danger in Italy for ecclesiastics, even those who like Gregory
the Great had been taught in rhetoric schools themselves, to wish that
classical learning should be sought for its own sake by clerks; hence
Ireland, where Roman paganism had never been a danger, became for a
time the nursery of classical scholarship. The Irish schools, however, were
rather monastic than episcopal. The teaching of Hadrian and Theodore
at Canterbury included the liberal arts and the study of Roman Law;
but this far surpassed the teaching given in an average episcopal household
between 529 and 800. Grammar masters were hard to obtain, as is shewn
by the story told of Bishop Aitherius of Lisieux by Gregory of Tours.
Aitherius rescued from prison, he says, a clerk, from the city of Sens, of
extremely bad character. But the clerk “professed himself to be a doctor
of letters, and promised the priest that, if he would commend the children
to him, he would make them perfect in letters. ” Aitherius already had
a “praeceptor,” presumably for his household lectors, but he at once
“rejoiced, and collected the children of the city, and commended them to
him to teach. ” The clerk was presented with a vineyard by way of
salary, and invited to the homes of the boys he taught. He tried to
seduce one of the mothers, and complaints were made; but the bishop
could not believe evil of a man so learned, and dismissed them. The


## p. 771 (#817) ############################################

Early Frankish schools
771
wicked clerk then tried to induce the archdeacon to conspire to murder
the bishop, and, failing, crept after the bishop, who was walking in a
wood, with an axe. The bishop, however, turned and saw him; whereat he
explained that the archdeacon had hired him to murder his benefactor, but
that he had never intended to do the deed. The good bishop believed him,
wept, and made himn promise silence. Aitherius then returned to his house
for supper, and afterwards “he rested upon his couch, having around his
bed the many little beds of his clerks. ” The clerk approached in the
night and raised an alarm, saying that he had seen a woman coming
from the bishop; but the slander was apparent to all, for the bishop was
over seventy, and was sleeping surrounded by his clerks. Aitherius' eyes
were opened, and he got rid of him.
The lives of pre-Carolingian bishops and abbots refer frequently to
these household schools, and shew that pupils were also taken for training
by other priests; though in some cases the priest was probably, though it
is not directly stated, the scholasticus of a bishop. Thus St Lomer (ob. 590),
born of noble parents near Chartres, was confided by them to live with
a priest Chirmirus and be imbued with sacred letters. Chirmirus, who
was also the master of another Chartrain priest, Lancegesil, lived within
the city of Chartres, “Domino militans": a member, that is, of the
“clerical militia” or bishop's household, and probably his deputy in
training the young lectors. St Rigomer was thus “trained from infancy
by a certain religious priest"; many others, like Gregory of Tours, were
thus “nutriti" by some bishop. St Germain de Granval (ob. 667) was
delivered as an “infantulus” to Bishop Modoald of Tours; St Leger,
Bishop of Autun, was confided to the Bishop of Poitiers and was “strenue
enutritus. ” Acca was “nutritus atque eruditus” by Archbishop Bosa, the
predecessor of John of Beverley at York; Headda (ob. 790) left a bequest
to the cathedral of Worcester, “quia alumnus sum illius familiae, et iuxta
limites ecclesiae disciplinatus et nutritus fui. "
Even when, after the Frankish settlements in Gaul and during the
fighting of the early Merovingian kings, the practice of the communal
life of bishops with their households was relaxed, the familia still lived
normally near the cathedra, and in the society of the bishop. The Council
of Tours in 567 wrote: “Let the bishop have his wife as his sister, and
so let him govern all his house, both his ecclesiastical and his own house,
in holy conversation, that no suspicion. . . arise. And although by God's
help he shall live chastely by the testimony of his clerks, because they
dwell with him both in his cella and wherever he is, and thus the
priests and deacons, or at least the crowd of young clerks, keep him safe:
yet nevertheless, for zeal to God, let them be divided and sufficiently
distant from his mansio, that those who are being nourished in the hope
of being received into the clerical servitude be not polluted by the near
contagion of the women (famulae). ” When the reform of the Frankish
Church was in progress under the influence of Boniface, the chief instru-
CH. XXII.
4942


## p. 772 (#818) ############################################

772
Early monastic schools
ment of reform was the rule drawn up by Chrodegang, Bishop of Metz,
in 754, to ensure a return to communal life on the part of the bishop and
his familia. His own edition of the rule has no reference to the cathedral
school, though young clerks were no doubt in his day received for training.
Monastic schools before the Carolingian renaissance were internal
schools, and dealt almost solely with the training of oblate children, who
might be received from seven years old, or even younger, like the young
lectors in bishops' households. The children of princes and nobles
were received for training by abbots both Benedictine and Celtic, but
naturally not in large numbers; they would seem to have been received
rather as pages into the abbots' households than strictly into the monastic
school, though they were no doubt taught letters. In addition, where
missionary houses, Benedictine or Celtic, occupied the whole ground, two
other needs seem to have been met: that of teaching the outside peasantry
the Creed, the Lord's Prayer, and the Ten Commandments by heart,
and that of training internally boys for the clerical militia.