No More Learning

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. 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.