The jurists
themselves
thus came
to be known as the Glossators; and it was they who gave to the school
its earlier tendency and character.
to be known as the Glossators; and it was they who gave to the school
its earlier tendency and character.
Cambridge Medieval History - v5 - Contest of Empire and the Papacy
Inasmuch as it was
not possible to give either one of the codes legal validity for the whole
population, in the reigns of Chindaswinth(641-652) and Receswinth(649–
672) the two codes were fused into one, to meet the new social needs.
Receswinth abolished Alaric's Breviary of Roman Law; but he preserved
parts of the Antiqua in the new Leges Visigothorum. Promulgated in
654 and made binding on Visigoths and Romans alike, the new code
## p. 727 (#773) ############################################
The Frankish Capitularies
727
became law throughout the Visigothic kingdom of Spain and southern
France. Both in arrangement and in substance the code of Leges Visi-
gothorum was strongly influenced by the Roman system, including the
Justinianean codification ; and this was likewise one of the main features
of the later Visigothic compilation which was attributed to King Erwig
(680-687) and known as the Lex Visigothorum Ervigiana. This latter
code of the Visigoths, superior to most if not all of the other Germanic
codes and taken as a model in other Germanic kingdoms, followed closely,
in many ways, the Roman Law and the canons of the Church.
Many of the other leges barbarorum of the Gothic, Frankish, Saxon,
Swabian, and Lombardic groups, even the laws of the Anglo-Saxons,
displayed the influence of the laws of Rome and the Church in varying
degrees of intensity; and this influence tended to increase with the
progress of time. The full story of the permeation of the Germanic
leges with Roman and canonical legal elements is fascinating and of
fundamental importance, but it is at the same time long and complex ;
it cannot be recounted in this chapter.
Let us, however, take note of the fact that the rise of the Frankish
Empire as the resurrected Roman Empire in the West meant a vast
increase in the influence of the doctrines and rules of Roman and Canon
Law throughout Europe. The many peoples united under the single
sway of the Franks continued in general to live under their own laws
on the Frankish principle of the personality of laws. Charlemagne,
indeed, decreed in 802 at Aix-la-Chapelle that all the Germanic customs
should be put in writing; and the survival of personal laws was a
salient feature of Frankish policy. But over these systems of tribal
personal law stood the Empire itself, claiming the prerogative of law-
making. The imperial power was in large measure based both on the
Roman principle that the Emperor was the source of law and also
on the ecclesiastical doctrine that imperial authority was divinely be-
stowed. Founded thus upon Roman and Christian ideas, the Emperor's
authority opened the way for a new and vigorous imprint of Roman and
canonical principles upon the law of Europe. Imperial legislation reached
to the farthest corners of the Empire, and assisted in moulding the laws
of many peoples into forms that fitted them to be the basis of the
systems of national territorial law which ultimately developed in the
several parts of Europe. The main instruments of the imperial law-
making power were the Capitularies ; and these were general laws which
had application to all subjects of the Empire and which possessed terri-
torial as distinct from personal validity, cutting across and modifying
the many systems of personal laws in force throughout the imperial
domain. To this there was one important exception. Although on the
imperial theory the Frankish Emperor succeeded to the authority of the
ancient Roman Emperor, no Capitularies of the Frankish Emperor
supplemented the Roman Law as a system of personal law; the reason of
CH. XXI.
## p. 728 (#774) ############################################
728
German and Roman legal foundations
the legislators themselves being that no one could imagine the Roman
Law capable of improvement. In many directions, however, the Capitu-
laries as general territorial law for the Empire embodied principles of
Roman and Canon Law; and these principles the imperial judges applied
in their decisions. Judicial power is ever a potent factor in the spread
of a legal system. It was potent in the time of the Frankish Empire.
It was potent at a later age in the process of the Reception of Roman
and Canon Law in Germany. In our own day it has been, and still is,
a potent factor in the introduction of English Law into Roman-Dutch
and other legal systems within the British Imperial Commonwealth. Not
supplanting the pre-existing systems of personal laws, the leges romanae
and the leges barbarorum, but standing beside them, and in a sense over
them, the Capitularies as applied by the judges nevertheless aided the
development of these laws and produced a certain unity of legal evolution
throughout Europe, the effects of which were not fully manifest till later
times. Like the Constitutions of the Roman Emperors, the Capitularies
of the Frankish Emperors were a civilising and unifying force in which
Roman and Canon Law played a rôle of high significance.
The history we have here so briefly sketched is the history of the
foundations of the several legal systems of modern Western Europe.
These foundations were Germanic customs and Romanic ideas and prin-
ciples of civil and canonical law. In the period of the Germanic kingdoms
these two main legal elements—the Germanic and the Romanic-were
partly combined, partly fused. But everywhere, in all the many parts
of Europe, the fusions differed one from another in form and scope;
everywhere legal growth meant particularism and diversity. Unity there
was of a sort, the unity based on the commingling and combination of
Germanic and Romanic elements. But within this general scheme of
unity there were almost countless detailed combinations, variations, types;
and throughout Europe almost innumerable new growths, arising out of
economic and social life, added theniselves to the luxuriant garden of
Germano-Roman stocks.
Another historical factor tended also to produce variety in legal
growths. The gradual spread of feudal institutions turned personal laws
into territorial laws; the principle of the personality of law gave place
to the principle of the territoriality of law. Feudalism meant that law
was no longer to be carried about by the members of tribes wherever they
might wander; that law was now in a sense affixed to the soil, that it
governed the affairs of all the men in a region, a territory. The fact
that in the feudal age Europe was composed of a vast number of terri-
torial lordships, large and small, involved the existence of an equal
number of feudal systems of law and custom. Feudalism, no less than
tribalism, thus led to particularism, multiplicity, and diversity in the
domain of law. But in the territorial systems of law that arose as a
result of feudalism much of the substance of the supplanted personal
## p. 729 (#775) ############################################
Roman Law in Italy
729
systems, including both Germanic and Romanic elements, was incor-
porated
Still another important feature of the early Middle Age should be
noticed. On the map of this age the national lines of modern Europe
were nowhere to be seen ; but social and political conditions of the time
were slowly preparing the way for them. In the course of the eleventh,
twelfth, and thirteenth centuries modern geographical and political
boundaries were gradually forming themselves; Europe was slowly
passing from the age of Germanic kingdoms to the age of the national
states of later medieval and of modern times. In our history of Roman
and Canon Law we must now take cognizance of these new frontiers in
Western Europe; we must deal separately with Italy, Spain, France,
Germany (with Switzerland and the Netherlands), and England. In the
history of cach one of these countries we must, however, go back to the
early Middle Age to study the laying of the foundations of the law.
Nor shall we find that in any one of these regions of Europe there
was much of legal unity. Within each country particularism in legal
growth--the particularism of feudal regions, of political divisions and
sub-divisions of territories, of towns, of different legislatures and courts
—was one of the main features of the time. Only slowly, and in some
cases only in modern times, was unity in law attained in the different
countries. England, with her centralised and unified system of medieval
common law, was the first to attain it.
VI.
Maitland has taught us that “Italy was to be for a while the focus of
the whole world's legal history. " It is to Italy, then, that we must first
direct our thoughts.
From the fall of the Western Empire to the end of the Middle Age-
throughout the periods of domination by Ostrogoth, Greek, Lombard,
Saracen, Norman, and Frank-the Roman Law never ceased to be in force
in the Italian peninsula. Although this continuity in the history of
Roman Law in Italy was at one time disputed, it has long since been
established by the researches of Muratori, Donati D'Asti, Guido Grandi,
and, finally, by von Savigny's great work on the history of Roman
Law in the Middle Ages. Despite the decay of Roman political power,
Roman civilisation preserved a stronger hold upon Italy, the very centre
of Roman history, than upon the other provinces. Roman Law was a vital
part of that civilisation, and it persisted tenaciously in the face of all the
1 An interesting illustration is furnished by the history of Catalonian feudalism.
The Usatges, which Raymond Berengar I put forth in 1064–69, are the earliest known
feudal code. They were modified by later monarchs and supplemented by the
introduction of Roman jurisprudence. See Merriman, Rise of the Spanish Empire,
Vol. 1, p. 476. On law under the feudal system, see General Survey of Events, Sources,
Persons and Movements (Continental Legal History Series, edited by J. H. Wigmore
and others, Vol. 1), pp. 71-83.
CH. XXI.
## p. 730 (#776) ############################################
730
Roman influence on Lombard law
foreign invasions. Already entrenched in the life of the peninsula before
the fall of the Empire, the Theodosian Code long retained a certain
primacy among the sources of the Roman Law in Italy. The Church
itself had an interest in maintaining the Code of Theodosius, the
ecclesiastical constitution and privileges having been founded under
Roman governments prior to the time of Justinian. Likewise the books
in use at the bar and in the schools were based on this Code. Neverthe-
less, the codification of Justinian was put into force in Italy by the
enactments of the Emperor himself; and, although it did not supplant
at once the earlier Code, making indeed but slow progress in this
direction, it ultimately acquired a leading place in the legal life of parts
of the peninsula. In the regions that were governed from Byzantium the
· Graeco-Roman or Byzantine Law-particularly in the form of its elabora-
tion by the legislative reforms of the Eastern Emperors, such as Leo the
Isaurian (ob. 740), Basil the Macedonian (ob. 886), and Leo the Philo-
sopher (ob. 912)—was also extensively applied in practice.
Under Lombard rule Roman Law persisted and even influenced the
Germanic Lombard Law itself. The legal history of the Lombard kingdom
possesses indeed many features of special interest to the student of
medieval Roman Law; and certain of these features are brought into
clear light only through an understanding of the main characteristics of
Lombard civilisation and Lombard law. The Ostrogoths had been mere
military adventurers in Italy; and under the Byzantine Empire's recon-
quest they disappeared both as a national and as a legal influence. Wholly
different is the story of the Lombards. When, in the sixth century, they
entered Italy, they were in point of civilisation far behind the Roman
population. But they were so strong in body and mind and so aggressive
in temperament that they soon conquered a large part of Italy and held
it tenaciously. Hostile both to the Empire and to the Church, they were
determined to control all Italy and to hold fast to their own ancient
civilisation and customs.
Our interest for the moment centres in these ancient Lombard
customs. Their history in Italy is like that of other bodies of Germanic
law in one fundamental particular: contact with the Romans brought
about their reduction to writing and their modification in form and
substance. Seventy-five years after the entry of the Lombards into Italy,
Rothari gave their customary law its written form in his famous Edict of
643. Later kings made supplements to the Edict: Grimoald in 668,
Liutprand between 713 and 735, Ratchis in 746, and Aistulf from 750
to 754. What, now, were the Roman influences that played upon this code
of Lombard Law? Not only was the idea of a written code derived from
the Romans; the designation of the code as an “edict” was a result of
Roman conceptions still prevalent in Italy. The very language of the
code was that of the conquered people; and it is possible that Romans,
more particularly Roman ecclesiastics, took some part in the framing of
## p. 731 (#777) ############################################
Ecclesiastical influence on secular law
731
the Edict and its supplements. The text of the Edict, especially that of
the supplements, bears abundant evidences of the incorporation of Roman
and Canon Law. In his preamble Rothari transcribes expressions used in
the Gothic and Roman codes. The Edict or its supplements contain, in
identical or nearly identical words, texts of the imperial decrees, the
Bible, the canons, and the Fathers of the Church. Roman and Canonical
legal influence tends to increase as the Lombard code is amended and
enlarged by the supplements to Rothari's work. This tendency is
strikingly illustrated by the supplements of Liutprand (713–735). The
influence of Roman Law may be seen in Liutprand's imitation of its ideas
and terms and in many points of substantive law; thus, Liutprand
introduces reforms, based on Roman Law, in respect of wills, women's
rights of succession, the guardianship of minors, prescription, and
mortgages. Even more significant is the influence of Canon Law on
Liutprand's legislation. During his reign the influence of the Church
grew steadily; and he was the Church's main agent in the moulding
of Lombard Law in conformity with the Church's law. Many provisions of
Canon Law were thus purposely incorporated in the code of the Lombards;
for example, canonical doctrines as to impediments to marriage, the
privileges of ecclesiastics, the recognition of the pontifical primacy, and
penalties upon the pagan practices still surviving. Ratchis and Aistulf
followed in Liutprand's footsteps.
Strong ecclesiastical influence on the legislation of Germanic rulers is
characteristic of legal growth throughout many parts of the West in this
period; but it is especially striking in the case of Lombardic legislation.
The permeation of the code of Rothari and his successors by the rules and
principles of Canon Law shews us clearly how the Church, as the framer
and interpreter of divine law, inspires the modification of secular law to
suit the precepts of divine law. Comparisons between legal growth in the
West and legal growth in the East, in the successive periods of medieval
history, are ever enlightening. Let us not forget, then, that, at the very
time when the Church is moulding the Lombardic Law along Latin-
Christian lines in the reigns of Liutprand and Ratchis, the same Church
influence is effecting a profound change in the law of the East. In the
West, Liutprand supplements in 713–735, and Ratchis supplements in
746, the Edict of Rothari; while in the East, Leo the Isaurian's famous
’Exloyn, an abstract of the Justinianean codification so coloured by
Greek ecclesiastical ideas and principles that it may be described as
a Christian law-book, appears in 740. Not only in this period does
Canon Law exert a moulding influence on secular law throughout the
world. Throughout the whole of the Middle Age that influence is
continually shaping the form and content of Graeco-Roman Law in the
East and Germanic-Roman Law in the West. In some periods the
ecclesiastical influence on secular law is stronger than in others; but at all
times there is a steady tendency in that direction.
CH. XXI.
## p. 732 (#778) ############################################
732
Legal studies in the West
Let us now turn to another aspect of the history of Roman and
Canon Law in the Italian Middle Age. Great schools of law arose in Italy
in which these two closely related legal systems were studied and taught by
scholars. In one sense an account of the rise and the work of these
schools belongs to Italian history. But when we contemplate the far-
reaching influence of these seats of learning and instruction in Roman and
in Canon Law, particularly when we observe Bologna's world-wide effect
on constitutional and legal development and on political and juridical
thought, we can see at once that we are dealing with one of the most vital
aspects of the general history of civilisation. In law, as in art, letters,
and other features of culture, Italian history is at the same time world
history.
Throughout the darkest period of the Middle Age—from the fifth to
the tenth century-legal studies in the West were never entirely
interrupted. Although there seem to have been no organised law
schools and no juristic studies of the highest order, there was neverthe-
less, as a part of the general culture of the times, a partial salvage of
Roman legal materials and some scholarly attention to their form and
content. Monks and ecclesiastics made transcripts and abstracts from
the juristic fragments which had survived from antiquity; and these
formed the basis of study in the schools of arts. In the curriculum above
the rudiments law found its place under dialectic at the end of the
trivium of grammar, rhetoric, and dialectic. For a long time legal
instruction in Italy was for the most part in the keeping of the practi-
tioners of the law; judges and notaries taught their successors and thus
preserved from generation to generation the traditions of the profession.
The Frankish period marks, however, the beginning of a far-reaching move-
ment. Law gradually came to be regarded more and more as a science. Books
were written dealing with the practice, the theory, and the history of the
law. The methods of legal education were steadily improved. There
arose in Italy great schools or universities of law. The legal renaissance
spread from Italy to all parts of Europe.
The Italian law schools of the early Middle Age were of two kinds.
There were schools of Lombard Law at Milan, Mantua, Verona, and
Pavia; while, apart from schools kept by bishops and monks, the chief
schools of Roman Law were at Ravenna and Bologna. The emphasis
placed either on Lombard or on Roman Law in each one of these several
schools corresponded to the legal conditions prevailing in the localities
where the schools were situate. Legal conditions were constantly
changing, however, as a result of the struggle between Lombardic and
Roman Law in the practice of the courts; and this struggle in legal life
was reflected in the work of the schools.
The chief of the schools of Lombard Law was at Pavia, the capital of
the Lombard kingdom; and by the close of the tenth century the Pavese
school had risen into fame. There had been at Pavia a grammar school,
## p. 733 (#779) ############################################
The Italian law schools
733
in which law was of course included in the curriculum from an early time;
but, chiefly owing to the fact that the Palace Court, the supreme tribunal,
was located at Pavia, legal studies were in general in the charge of the
judges and practitioners. Out of this system of apprenticeship university
instruction in law slowly developed; and, although the precise date of the
founding of the Pavese school is no better known than that of the other early
Italian schools of law, we learn much of its history from an “Exposition
of Lombard Laws" written towards the close of the eleventh century, at
a time when the Pavese school of Lombard Law was declining and when
the Roman Law was already being cited as the lex generalis. From this
book it is clear that the Pavese jurists belonged to two distinct schools
of thought. The antiqui or veteres devoted their time and thought to the
national Lombardic Law and its interpretation; and these jurists flourished
down to the beginning of the eleventh century. The moderni, on the other
hand, were the jurists learned in the Roman Law and interested in it as
the source of rules and principles for the development and improvement
of the national Lombardic Law; and in the second half of the eleventh
century this modernist school of thought was in the ascendency. The
most prominent of the Pavese lawyers belonged to one or other of
these two groups. Thus, Valcausus and Bonifilius were among the anti-
qui, while Gulielmus and Lanfranc belonged to the moderni. Lanfranc,
the son of a judge, early rose to a place of eminence among the Pavese
jurists; and, later in life, not only did he found a school at the abbey of
Bec, where students flocked to his lectures, but he became adviser to
William the Conqueror and Archbishop of Canterbury. The best of the
moderni were expert Roman lawyers, deriving their knowledge not from
mere practice-books, but from the Roman legal sources themselves. In its
later period, before its decline towards the end of the eleventh century,
Pavia could be reckoned, therefore, among the schools of Roman as well
as of Lombard Law.
At Rome itself the teaching of Roman Law, which in the time of the
classical jurists had been a voluntary and private undertaking, appears
to have continued down at least to the end of the eleventh century.
Theodosius seems, however, to have given the Roman schools an official
organisation. Certainly before the fall of the Western Empire the teachers
at Rome were in receipt of official salaries; and this arrangement was
continued by the Ostrogothic kings and by Justinian. By his decree
Omnem (533) Justinian assigned official schools to Rome and Constanti-
nople, and by his Pragmatic Sanction (554) he decreed that the salaries
of law teachers should continue, so that the youth might not fail of good
instruction. When the Empire's authority yielded to the Church's au-
thority at Rome, studies in Roman Law suffered a change. Ecclesiastical
authorities maintained a thorough acquaintance with Justinian's law-
books and an interest in Roman legal science, but by giving to Roman
legal studies a purely ecclesiastical tone they deprived the Roman Law of
CH. XXI.
## p. 734 (#780) ############################################
734
Rise of the Bolognese school
its former Roman spirit and independence of thought. By the end of the
eleventh century Rome itself was in a state of decadence, owing to its
sack by the Normans in 1084; and Odofred, the Bolognese jurist, tells
us that, in consequence, Roman legal studies were transferred from Rome
to Ravenna. The origin of the Ravennese school may well go back to
the period of the Exarchate, a time when Ravenna was the only seat of
Roman authority in Italy; but certain it is that at the close of the
eleventh century it was a well-organised and flourishing centre of Roman
legal study. Odofred asserts that Ravenna's success as a school was due
to the taking of the manuscripts of Justinian's law-books from Rome,
and that at a later time Bologna's success was equally caused by carrying
them there from Ravennal.
Various other causes contributed, however, to the rise of Bologna as
the most illustrious of all the Italian law schools of the Middle Ages-
the very centre of juristic learning and of its diffusion throughout the
civilised world. Bologna's central geographical position and its judicial
and commercial importance, the political favour shown to the law school,
and the genius of its teachers, were among the leading factors in estab-
lishing the fame of the school. But of special importance were the qualities
which early distinguished its teaching. The school assimilated and united
all of the legal elements derived from the past, and took a broad and
independent attitude towards the various divergent tendencies in juridical
thought. It adopted and combined the features of legal science already
evolved in the schools of Constantinople, Pavia, and Ravenna ; and it
enjoyed the favouring influences of Pisa and the adjacent Tuscan regions,
such as their Renaissance spirit. Byzantine juristic studies formed a back-
ground. The method of glosses and of parallel passages already applied
by Pavese jurists to the texts of Lombard Law was none other than the
method chosen by the early Bolognese glossators. Pisa was long in
possession of the most complete and most famous of all the manuscript
texts of Justinian's Digest, the manuscript now in the Laurentian Library
at Florence; and distinguished Tuscan jurists, such as Pepo and Gratian,
the founder of the new school of Canon Law, taught at Bologna. Finally,
owing to the political conditions of the time, Bologna possessed the
exceptional advantage of being the one city in Italy where Roman legal
study could best establish itself afresh, with every prospect of great
success, under its traditional imperial patron.
The revival of Roman legal studies at Bologna resulted in a return
to the treatment of law as a science which had characterised the work of
the classical jurists eight centuries before. The popular Roman Law which
1 On the Pisan (later the Florentine) MS. of the Digest and the other MSS. of the
Justinianean law at the disposal of the Bolognese jurists, see Kriger, Geschichte der
Quellen und Litteratur des römischen Rechts, $ 52; Bruns-Pernice-Lenel, Geschichte
und Quellen des römischen Rechts, $ 77 (Holtzendorff, Encyklopüdie der Rechtswissen-
schaft, 6th edu, by Kohler, Vol. 1).
## p. 735 (#781) ############################################
Manuscripts of Justinian's law-books
735
had been evolved in practice, in response to the social needs of the inter-
vening feudal epoch, was disregarded by the jurists, their sole aim being
to know the texts of the Justinianean codification and to expound them
scientifically. Not only was law separated from dialectic and other
branches of study and given its own separate place in education, but it
was also deprived of its character as a mere handmaid to the practitioners.
These methods and purposes of legal study spread outwards from Bologna.
In the course of the thirteenth and fourteenth centuries old law schools
were given fresh life and new schools were established. From Bologna
there were migrations of teachers to other places where schools were set
up; and some of these, such as the schools at Padua, Siena, and Pisa,
became permanent and influential seats of legal learning. Rulers also
restored or founded schools on the Bologna pattern, this being the origin
of the State schools, such as those at Naples and Rome. In many schools
Canon Law was added to Roman Law as one of the important branches of
study. As the universities grew they sought the support of the Emperor
or the Pope ; and nearly all of them obtained the privileges and pro-
tection afforded by papal bull or imperial charter.
The Bolognese jurists possessed manuscripts of all parts of Justinian's
codification-Digest, Institutes, Code, and Novels; and the peculiar
state or form of the manuscripts largely controlled the course of their
study. Thus, there were several texts or readings of the Digest known
as literae. The text of manuscripts which were earlier than the Pisan
manuscript, or which differed from it, was known as litera vetus (litera
communis, litera antiqua); the Pisan manuscript was designated as the
litera Pisana ; while a composite text, formed by a collation of all the
other texts for school use at Bologna, was called the litera vulgata.
Likewise there was a peculiar three-fold division of the contents of the
Digest. That part of the Digest which extended from the beginning to
Book XXIV, title 2, was known as Digestum Vetus; the part onwards to
the end of Book XXXVIII was designated as the Infortiatum ; while
the remainder, from Book XXXIX to Book L, was called the Digestum
Novum. This very remarkable classification of the parts of the Digest,
which long persisted in European scholarship, has been explained, on
the basis of the traditional views of the glossators, as the result of the
transfer of the Justinianean manuscripts from Ravenna to Bologna.
Irnerius, when he began to work on the manuscripts at Bologna, did not
have the full text of the Digest ; and, when he afterwards became familiar
with the missing portion in the middle of the manuscripts, he named it
the Infortiatum (the “fortification” or “fortifying addition "). What-
ever may be the value of this traditional view, reported by Odofred, one
of the Bolognese glossators, and now generally accepted by scholars, it
clearly points to the fact, as Calisse, in his Storia del diritto italiano,
has pointed out, that this triple division of the Digest's contents must
have been made at Ravenna before the time of Irnerius. It was but
CH. XXI.
## p. 736 (#782) ############################################
736
Methods of the Glossators
natural that a long manuscript, such as that of the Digest, should have
been physically divided into parts for the scholar's or student's con-
venience; but, as remarked by Calisse, “why the division should have
fallen at those particular books is the unexplainable feature; unless we
regard it as a reminiscence of Justinian's own instructions (persisting
into the Middle Ages), for the study of his law-books. "ı
The Glossators treated the several parts of Justinian's codification as
an entirety and as forming, together with certain other legal sources, the
Corpus iuris civilis. They distributed the matters of the Corpus iuris
civilis into five volumes (volumina). The three parts of the Digesta,
formed in the manner already explained, they placed in the first three
volumes ; while in the fourth volume they put the first nine books of
the Coder. The fifth volume embraced all the rest of the subject-matter
of the Corpus iuris civilis, namely, the Institutiones, one hundred and
thirty-four of the Novellae in Latin (known as the Authenticum), and
the remaining three books of the Codex (tres libri). In addition to all
these Justinianean materials the Glossators also inserted in the fifth book
of the Corpus iuris civilis—immediately after the Authenticum—the text
of the Lombard feudal law (libri feudorum) and several laws of the
Emperors Frederick I, Frederick II, and Conrad. Inasmuch as
the fifth volume, with its miscellaneous contents, could not be
referred to by its general character, as in the case of the first four
volumes, it was known by the Glossators as Volumen simply, or, by reason
of the fact that it was much smaller than the other volumes, as Volumen
Parvum.
The method adopted by the jurists who established the fame of the
Bologna law school was that of the gloss (ywooa, equivalent to verbum,
lingua, vox), or textual interpretation.
The jurists themselves thus came
to be known as the Glossators; and it was they who gave to the school
its earlier tendency and character. Glosses were not a new thing ; within
the field of law they had already been employed in the study of medieval
Lombard and Roman Law. The new feature of the Bolognese school, the
one which gives it its unique position, was the application of the glossa-
torial method for the first time to the texts of the law-books of Justinian.
The adoption of this method at Bologna came about quite naturally,
inasmuch as the law school was itself an outgrowth of the grammar
school; and there was also the additional reason to be found in the
persistent tradition of Justinian's order that his laws should not be
altered in sense by a liberal as distinct from a literal interpretation.
Literal interpretation, moreover, was particularly needful as a means of
arriving at a correct text of the Justinianean codification. Although at
first, therefore, the gloss was but a short explanation or interpretation
of a difficult single word in terms of an equivalent, it soon became also,
1 Constitutio Omnem, prefixed to the Digest. See Buckland, Roman Law from
Augustus to Justinian, p. 49.
## p. 737 (#783) ############################################
The Glossators and their works
737
in the hands of the jurists, an explanation of a passage or of an entire
lex or even of a legal principle embodied in the text. These two forms
of the gloss became known respectively as the “interlinear” and the
“ marginal. ” The explanation of a single word was placed above it,
between the lines (" interlinear"), while the explanation of a passage was
placed beside it on the margin of the text (" marginal ”); and to each
gloss the glossator affixed his initials or some other mark or indication
of his identity. As the work of the school advanced, the gloss became
more and more elaborate and lost its original signification. It became,
in fact, the means of embodying the results of the master's legal re-
searches. “It included,” says Calisse', “ critical notes on the variant
readings (variantia) of different manuscripts. It brought together loci
paralleli, which helped to elucidate the point. When these passages were
in conflict (antinomia), it sought to reconcile them or to decide on
the preferable one. Thus, finally, we find the gloss developing into a
genuine commentary, with all its proper appurtenances—the summary
(summa), the putting of illustrative cases (casus), the deduction of a
genuine maxim (brocardus), and the discussion of concrete legal problems
(quaestiones). "
The creative work of the Glossators falls within the period from the
early part of the twelfth to the middle of the thirteenth century. Pepo,
the Pisan jurist who migrated to Bologna, was the one who first taught
by the new method, but the real establisher of the glossatorial school,
the lucerna iuris, was Irnerius. His glosses covered the whole range of
the Justinianean texts, and, inasmuch as he had practised at the bar and
had close touch with the actualities of legal life, his teaching combined
in a striking manner both theory and practice. The work of Irnerius was
followed by that of the famous “Four Doctors”—Bulgarus, Martinus,
Jacobus, and Hugo-the activities of these four Glossators constituting
perhaps the most illustrious period in the whole history of the Bologna
school. Two pupils of Bulgarus—Johannes and Rogerus—were at the
same time the teachers of Azo and Hugolinus. Azo's greatest work was
his Summa of the Institutes and the Codex, a work which superseded,
within its field, all previous productions of the school. At the bar there
was a proverb that “who has not Azo, goes not to court (chi non ha Azzo,
non vada a palazzo). ” In the study of Roman Law Azo's Summa was
regarded as essential as the very text of the Corpus iuris civilis itself;
and a knowledge of it was necessary to one who would enter the gild of
judges. To the school of Glossators belonged also other distinguished
jurists, among them being Placentinus, Vacarius, Burgundio, Carolus of
Tocco, and Roffredus of Benevento. Accursius, the last of the pro-
minent Glossators, is also the most famous of them all. He was born near
Florence in 1182. After a period of study at Bologna, he taught there
1 See General Survey of Events, Sources, Persons and Movements in Continental
Legal History (Continental Legal History Series, Vol. 1), p. 137.
47
C. MET). H. VOL. V. CH. XXI.
## p. 738 (#784) ############################################
738
The Accursiana
for over forty years, retired in order to finish his gloss, and died about
1260. The gloss of Accursius was marked off from those of all the other
Glossators as the Accursiana or ordinaria. Accursius and his gloss soon
came to represent everything that the Bologna school meant in juris-
prudence. His work embodied the results of all his predecessors; and, in
a way, he supplanted all of them. The accumulated glossatorial learning
of a century and a half was confusing, in the wealth of its details and in
the variety of juridical opinions, to the practitioners in the courts. They
found it difficult or even impossible to make their way through the maze
which the Glossators had gradually erected. To the practitioners, there-
fore, the comprehensive and orderly collection of Accursius was the new,
the up-to-date luminary of the law which the work of Irnerius had
been at an earlier time. In the schools the Accursiana supplanted all the
other glosses and even the Justinianean text itself. In the practice of the
courts the saying, Quidquid non agnoscit glossa nec agnoscit curia, a
variant of the proverb chi non ha Azzo non vada a palazzo, was pre-
valent"; the gloss of Accursius, that is, was held by the courts to be the
law. This very saying in the courts shews us, however, that the school
of the Glossators was already in rapid process of decay. For a time
Accursius was followed by other Glossators, such as Odofred; but, on
the whole, it is fair to say that the great gloss of Accursius virtually
terminated the work of the school of Glossators. The Accursiana was
itself the main symptom of decadence in the school. The original intent
of the Glossators, in the days of Pepo and Irnerius, had been to focus
attention upon the texts of Justinian's codification as the primary and
pure sources of the law. To the early Glossators the revival of the
Justinianean law meant that the texts themselves should be the basis of
study and practice alike. The discarding of the text for the gloss, the
mechanical following of the Accursiana, indicated that the science of the
pure Roman Law had yielded place to practice; for it was the gloss which
adapted and applied the sixth-century texts to the practical course of
thirteenth-century judicature. What society in the fourteenth century
needed, therefore, was a new juristic method in place of the stereotyped
mechanism of the Accursiana represented by the maxim Quidquid non
agnoscit glossa nec agnoscit curia. The time was ripe for the emergence
of a method of jurisprudence which should base itself upon contemporary
Roman Law, and not upon the Roman Law of the classical jurists and of
Justinian in times gone by. The method which was developed to supply
this social need of medieval Italy and Europe was the method of the Post-
Glossators—the "Commentators. "
The method of the Commentators—the one which had its rise in the
latter part of the thirteenth century at a time when Accursius was still
in his ascendency-represented a reaction against the gloss. The path
1 On the history of this saying in Germany, see Dernburg, Pandekten, 6th edn,
$$ 3, 4.
## p. 739 (#785) ############################################
The Commentators and their methods
739
chosen by the jurists of the newer tendency was the well-worn path of
scholasticism as distinct from the route marked out for them by the
fourteenth-century literary writers of the Renaissance, such as Dante,
Petrarch, and Boccaccio. To the claims of this great intellectual
awakening the lawyers, bound as they were by tradition and narrowed
by the practice of courts, did not respond until, at a much later period,
they turned from the narrow path of scholasticism into the broader ways
of the humanists. Calisse remarks that, when the system of the Commen-
tators “after a formative period was finally developed, it stood forth as
the apotheosis of a painstaking logic. The jurist's ideal now was to
divide and subdivide; to state premises and then to draw the inferences;
to test the conclusion by extreme cases sometimes insoluble and always
sophistical; to raise objections and then to make a parade of over-
throwing them—in short, to solve all problems by a fine-spun logic. He
who nearest reached this ideal was accorded the highest fame in his
science. ” Although already antiquated by the time of the Commentators,
the dialectic method as followed by them no doubt put new life into
juristic studies. But decay set in rapidly. Prolixity upon easy topics and
silence upon difficult ones became the rule. Cujas justly passes this
sentence upon the Commentators as a school: Verbosi in re facili, in
difficili muti, in angusta diffusi. A copious mass of books, written in a
crude harsh style, poured forth: a mass which, it is said, would have
made multorum camelorum onus. Once more the original texts of the
Justinianean law were lost to view in the intricacies of the dialectic exer-
cises of the Commentators. The worship of authorities followed as a
necessary consequence; it is said that lecturers, practitioners, and judges
did hardly more than cite authorities by name and treatise. Ultimately
came the doctrine of communis opinio, the doctrine that the juristic view
which had the greater number of supporters in the books was the sound
view; and thus, after the lapse of nearly ten centuries, there was
practically a return to the famous Law of Citations of Theodosius II and
Valentinian III (426). Judged by the standards of the classical jurists of
Rome, or by those of the Glossators in their period of brilliance, the
Commentators stand on a far lower plane in respect of originality and
fruitfulness of juristic thought. One of the main reasons is that they
stood aloof from the spirit and purpose of the Renaissance. It is, however,
generally agreed by scholars that the school of the Commentators had
merits as well as faults. Although their modes of thought and their
methods were of the past, their gaze was upon the present. The Glossators
sought only to know the Roman Law of Justinian's time; the Commen-
tators endeavoured to know the Roman Law of their own day. The real
achievement of the Commentators consisted in their adaptation of the
older law of Justinian to the legal conditions of their time, their har-
monising of the Justinianean texts with the other legal sources invoked
by the courts, notably the city statutes, feudal and Germanic customs,
CH. XXI.
47—2
## p. 740 (#786) ############################################
740
Bartolus of Sassoferrato
the rules and principles of Canon Law. In the words of Calisse, “the
old science was made over into a new one; and Roman law was trans-
formed into an Italian law. ” The special talent of the Commentators
created a literature-a body of commentaries on Romano-Italian Law
—which acquired the force of binding law and played a rôle of great
importance in legal life. Their method—known as the mos Italicus or
Italian method—was itself destined to have a far-reaching influence;
for it was adopted in other European countries, chiefly in France and
Germany.
To the school of the Commentators belonged the poet Cino of
Pistoia (1270–1336), Albericus of Rosate (ob. 1354), Bartolus of Sasso-
ferrato (1314-1357), Baldus of the Ubaldi (1327-1400), Luke of Penna
(lecturer in 1345), Bartholomew Salicetus (1330-1412), Raphael Ful-
gosius (1367-1471), Paul of Castro (ob. 1441), Marian and Bartholomew
Socinus of Siena, Philip Decius, and Jason Mainus. Of all the Com-
mentators, Bartolus of Sassoferrato, who died at the age of forty-
three in his early prime, stands out as the greatest and most in-
fluential. He studied under Cino at Perugia and also under Raniero of
Forlì; at the age of twenty he became a lecturer at Bologna, later
moving to Pisa and finally to Perugia ; and, among his public appoint-
ments, he held the post of councillor to the Emperor. His writings,
which cover nearly the whole range of the law and are of a higher
quality than those of the other Commentators, include lectures at
Bologna, commentaries on all the titles of the Digest, legal opinions
(consilia), and many treatises or essays on various branches of public and
private law. The chief title of Bartolus to fame rests upon his great
contribution to the work of his school in transforming the legal growths
of the past into the law of the fourteenth century. The lawyers of his
school came to be known simply as “Bartolists. ” The eminence of
Bartolus is also strikingly manifest in the professional maxim that no one
is a jurist who is not a Bartolist (Nemo iurista nisi sit Bartolista).
many parts of Europe the opinions of the great Commentator were held
to be the law itself. The most distinguished of all the successors of
Bartolus was his own pupil, Baldus of the Ubaldi, who was a Canonist
as well as a Romanist; he taught not only at Bologna, but also at Pisa,
Florence, Padua, and Pavia.
The school of the Commentators long held dominance in Italy. Even
the attacks of Dante, Petrarch, and Boccaccio, and the great movement
of humanism in the fifteenth century, did not turn the jurists to freer
and more enlightened methods of legal science. Boccaccio's remark, that
law had ceased to be a science at all, summarised the antipathy of the
new scholarship to the communis opinio, the casuistry, the mos Italicus, of
the Commentators. The attack of the fifteenth-century humanists re-
sulted in a protest against the Corpus iuris civilis itself. Tribonian was
reproached for mutilating the writings of the classical jurists; and even
In
## p. 741 (#787) ############################################
Influence of humanism on legal studies
741
the fragments of those writings embodied in the Digest were now, declared
the humanists, buried beneath a mass of crude medieval commentaries.
These attacks, however, did not turn into new channels the main current
of professional thought and activity. Even into the sixteenth and seven-
teenth centuries the lawyers proceeded on the lines marked out by Bartolus.
The “practical jurists” continued the work of the Commentators by
adapting the mass of Roman legal materials to the needs of daily practice
in the courts. For them practice, as distinct from legal science or the
theory and the history of the law, was the main thing. Despite the
defects of the school of practical jurists, their work was nevertheless of
real value; for it brought prominently to view the fact that the law was
changing day by day, and that the Roman element in the law must be
shaped and adapted to social needs. Only in modern times has this view-
point of the Commentators and the practical jurists been fully recognised
as a true contribution to the science of law.
Humanism was not without its effects upon Italian legal studies in
the fifteenth century; but, on the whole, the new movement was
represented, within the domain of law, by the work of classical scholars
and poets and not by that of professionally-trained lawyers. Lorenzo
Valla (ob. 1457), Pomponius Leto (1428-1498), and Angelo Politian
(1454-1496), were among the leaders of the new humanist school of legal
science; and to the enthusiastic study of the Roman legal texts-not
only the Justinianean codification but more especially the earlier materials,
such as the fragments of the classical jurists and the Theodosian Code-
these scholars turned their learning and their skill. Their aim was to
restore the Roman Law of the classical jurists as the basis of Justinian's
law-books and of later legal growth; they sought to establish legal
science on the broad foundations of history and philosophy. Legal
research, both in textual criticism and in methods of dealing with the
substantive law embodied in the texts, was thus given new and more
advanced tendencies. While preserving contempt for the Commentators,
these early Italian humanists in law always recognised the soundness of
the methods of the Glossators. Their full sympathy with the general
movement of humanism, however, enabled Valla, Leto, Politian, and their
successors to disregard the limitations which bound the Glossators; and
it is the general view of scholars that their work meant indeed a real
advance in Romanist legal studies. The work of these earlier humanists
was carried on by Andrew Alciat (1492-1552), whose legal writings and
career have given him a deserved place of fame among Italian jurists and
have caused him to stand out as the personification of the new school of
legal thought. His main work, however, was done abroad; for, in 1518,
he proceeded to Avignon and transplanted to France the methods of the
science he had learned in Italy.
Let us for a moment retrace our steps to consider the study and
teaching of Canon Law in the Italian Middle Age.
CH. XXI.
## p. 742 (#788) ############################################
742
Study and teaching of Canon Law
We have already seen that Gratian himself taught Canon Law in the
convent of St Felix at Bologna, and that in many of the schools influenced
by the great law school of Bologna the Canon Law, no less than the
Civil Law, formed a part of the curriculum. The schools or universities
made doctores decretorum as well as doctores legum. In the teaching of the
Canon Law the magistri gave oral lessons (lecturae) based directly on the
text; and it was the short remarks, originally written in the margin of
the text, in explanation of its words, which became the glosses of the
masters. The glosses, constantly increased by additions, took permanent
form. They were reproduced in later copies of the manuscripts and finally
included in the printed editions of the Corpus iuris canonici, notably in
the official Roman edition of 1582 prepared by the correctores romani in
the pontificate of Gregory XIII. The Italian school of Glossators was
not, therefore, confined to the civilians, embracing as it did the magistri
who glossed the canonical texts; and this is a feature of the revival of
juristic studies, at Bologna and other Italian schools, of far more than
ordinary interest.
Among the chief glossators of the Decretum were Paucapalea,
Gratian's first disciple, Rufinus (1160–1170), John of Faenza (c. 1170),
Joannes Teutonicus (c. 1210). The gloss of Teutonicus, as revised and
completed by Bartholomeus Brixiensis (of Brescia), became the glossa
ordinaria decreti. Vincent the Spaniard and Bernard of Botone (Ber-
nardus Parmensis, who died in 1263) wrote glosses on the Decretals,
that of the latter being the glossa ordinaria. The well-known Joannes
Andreae (c. 1340) was the author of the glossa ordinaria on the Liber
Sextus. That on the Clementinae, begun by Andreae, was finished by
Cardinal Zabarella (ob. 1417).
Apart from the glosses, the writings of the canonists, like those of the
civilians, fall into several groups. Thus, the canonistic literature consists
chiefly of Apparatus, Summue, Quaestiones, and Consilia. But while,
owing to differences in method, different schools of the civilians may be
distinguished, the canonists are not in general divided into schools, except
upon questions as to the relations of the Papacy to the national Churches
and the secular powers. The systematic Canon Law of the Middle Age is
embodied very largely in the Summae. Some of the early disciples of
Gratian wrote Summae, including Paucapalea (1150), Roland Bandinelli
(later Alexander III, c. 1150), Rufinus (c. 1165), Étienne of Tournai
(Stephanus Tornacensis, c. 1168), John of Faenza (c. 1170), Sicard, Bishop
of Cremona (c. 1180), and, perhaps more important than all, Huguccio
or Hugucius (c. 1180). Writers of Summae of the Decretals include
Bernard of Pavia (c. 1195), Sinibaldo Fieschi (Innocent IV, c. 1240),
Wilhelmus Durantis (Durandus), Joannes Andreae, and Nicholas de
Tudeschis. The Summa Aurea or Summa Hostiensis, written by Henry
of Susa (ob. 1271), who was Cardinal-bishop of Ostia, is a work of
the highest value. The numerous treatises dealing with canonical pro-
1
## p. 743 (#789) ############################################
Roman and Canon Law in Spain
743
cedure, which form a special branch of canonistic literature, are called
Ordines Iudiciarii and are to be compared with the similar treatises of the
legistae or civilians. The Ordo Iudiciarius of Tancred (1214-1216)
largely displaced the works of earlier canonists on this subject". The
fifteenth century, although it is identified with the Spaniard John of
Torquemada and the Italian Panormitanus, is not as rich in canonistic
literature as the earlier ones. In the period after the Council of Trent
many distinguished canonists wrote commentaries on the Corpus iuris
canonici.
VII.
It is time to glance at the history of the spread of Roman and Canon
Law in medieval Spain.
The mixture of racial elements in the peninsula from the very
beginning of its history gives to Spanish legal history a complexity which
distinguishes it from the history of most of the other bodies of European
Law. Even to-day Spanish Law reflects the historical movements and
changes which finally produced the Spanish nation and gave it political
unity and imperial dominion. Of all the factors which have created the
Spanish legal system in a long process of evolution Roman influence has
been predominant; back to the law of Rome, Spain, of all the nations of
Western Europe, traces her law in most direct descent. Numerous legal
sources survive to prove that Roman legal influence was profound and
that it left an indelible imprint on the law of succeeding ages. In many
ways the history of peninsular law under the domination of the Romans
constitutes one of the most enlightening chapters in the history of the
spread of Roman Law to the provinces before the disappearance of the
Western Empire. Profound as was the Romanisation of law in Spain, it
was nevertheless not absolute. In Spain, as in other provinces of the
Empire, the Roman Law came into contact with native (here Ibero-
Celtic) customs and possibly also with Phoenician and Greek Law intro-
duced by the early colonists from the East. Native law persisted, at least
in some regions, after the coming of the Romans; though there is no
evidence that it still persisted in the latest period of the Western Empire.
Apart from the place filled by pre-Roman Law in the Roman period, there
was also the opportunity for the growth of indigenous legal institutions;
and it is clear from the evidence that down to the last the mos provincialis
was recognised. Hybrid legal institutions were created by the contact
of native and Roman legal types, and indigenous variants were either
juxtaposed or fused with the legal forms of the Roman province. Some
of these indigenous legal growths survived the Roman period; thus, the
betrothal custom of Cordova as to kisses—the penalty of lessened
i Pollock and Maitland, History of English Law, 2nd edn, Vol. 1, p. 207: Bracton
" levied contributions from the canonist Tancred. ”
CH. XXI.
## p. 744 (#790) ############################################
744
Roman and Visigothic times
inheritance for kissing the bride, before marriage, except in the presence
of eight relatives or neighbours – was adopted as general law by a
constitution of Constantine in 336, included in the Lex Romana Visigo-
thorum, and embodied in Castilian codes of medieval and modern times.
Indeed, at many points native peninsular law influenced the Roman Law;
and this influence was one of the main factors in the growth of Roman
provincial law in Spain. Roman Law, both public and private, was in fact
introduced into the peninsula and there moulded, under the political and
social influences of the time, into that Roman provincial law, partly
customary and partly regional written law, which was revealed in some
measure, a century after the fall of Rome, in the Lex Romana Visigothorum
of the Germanic conquerors. The stages in the evolution of this
provincial Roman Law in Spain follow in general the main lines of the
development of provincial law throughout the Empire: two of these
stages are marked by the growth of the jus gentium and the grant
of citizenship to the inhabitants of the provinces. In divers ways, indeed,
the introduction of Roman Law materially affected the growth of law in
Spain. It meant, in the first place, that the legal institutions and
doctrines of the Romans in respect to persons, things, and obligations
were to serve as one of the fundamental bases of future legal development;
and, in general, it led to the substitution of individualism for the
communistic ideas which had formerly permeated the law of the
peninsula. But the Germanic invasions and the fall of the Western
Empire interrupted this evolution. The stream of Roman Law still
continued to flow under Visigothic rule: it now flowed, however, partly in
the old and partly in new channels:
In this period of the Germanic invasions and Visigothic dominion
(400-700) the outstanding feature of Spanish legal history is the in-
troduction of the Germanic Law of the Visigoths into regions long
governed, in the main, by the peninsular system of Roman Law. The
meeting of these two different bodies of law produced results of the
highest importance and gave to the Spanish Law of later times some of its
characteristic features. There was an influence of the Roman Law on the
Visigothic and of the Visigothic Law on the Roman. One of the ultimate
effects of these influences and counter-influences was the growth of hybrid
legal institutions-a feature of legal evolution which was characteristic of
the Romano-Germanic civilisation of Europe in general. A striking
example of these hybrid growths is furnished by the Formulas Visigoticas
(615-620), the formularies or models of public documents.
Until the time of Chindaswinth (642-653) the Spanish population--
composed of the Hispano-Romans and the Visigoths—lived under a legal
system based on the principle of the personality of law. The first king
who gave law to the Visigoths was Euric (467-485), whose code, although
largely a written statement of Germanic custom, displayed nevertheless
some traces of Roman influence. Euric's code was applied to the Visigoths;
1
1
## p. 745 (#791) ############################################
The Fuero Juzgo
745
and such of its parts as embodied public in contrast with private law were
also applied to the whole population generally. In respect of their own
inter-relations the Hispano-Romans continued to live under Roman
private law, modified somewhat by Germanic custom. Alaric's Breviary
—the Lex Romana Visigothorum (506), based on the Gregorian, Hermo-
genian, and Theodosian Codes, as well as upon other imperial sources
--solemnly confirmed to the Roman population their own code of
personal law. Private relations between the Hispano-Romans and the
Visigoths were governed, however, by the code of Euric.
With Chindaswinth (642-653) an important change took place. The
Lex Romana Visigothorum was abrogated. A common code--the Fuero
Juzgo (Forum Judicum)—was promulgated for both peoples, a code
which harmonised and fused the Germanic and Roman legal rules and
ideas. Some of these rules and ideas of the Fuero Juzgo shew a
preponderance of Visigothic Law, as in the case of the law of marriage
and of persons. Others are especially marked by Roman influence, as in
matters of inheritance, prescription, and contract. On the whole,
Chindaswinth's code represents the firm establishment of Germanic legal
institutions within a region which had been highly Romanised in the
pre-Visigothic period.
not possible to give either one of the codes legal validity for the whole
population, in the reigns of Chindaswinth(641-652) and Receswinth(649–
672) the two codes were fused into one, to meet the new social needs.
Receswinth abolished Alaric's Breviary of Roman Law; but he preserved
parts of the Antiqua in the new Leges Visigothorum. Promulgated in
654 and made binding on Visigoths and Romans alike, the new code
## p. 727 (#773) ############################################
The Frankish Capitularies
727
became law throughout the Visigothic kingdom of Spain and southern
France. Both in arrangement and in substance the code of Leges Visi-
gothorum was strongly influenced by the Roman system, including the
Justinianean codification ; and this was likewise one of the main features
of the later Visigothic compilation which was attributed to King Erwig
(680-687) and known as the Lex Visigothorum Ervigiana. This latter
code of the Visigoths, superior to most if not all of the other Germanic
codes and taken as a model in other Germanic kingdoms, followed closely,
in many ways, the Roman Law and the canons of the Church.
Many of the other leges barbarorum of the Gothic, Frankish, Saxon,
Swabian, and Lombardic groups, even the laws of the Anglo-Saxons,
displayed the influence of the laws of Rome and the Church in varying
degrees of intensity; and this influence tended to increase with the
progress of time. The full story of the permeation of the Germanic
leges with Roman and canonical legal elements is fascinating and of
fundamental importance, but it is at the same time long and complex ;
it cannot be recounted in this chapter.
Let us, however, take note of the fact that the rise of the Frankish
Empire as the resurrected Roman Empire in the West meant a vast
increase in the influence of the doctrines and rules of Roman and Canon
Law throughout Europe. The many peoples united under the single
sway of the Franks continued in general to live under their own laws
on the Frankish principle of the personality of laws. Charlemagne,
indeed, decreed in 802 at Aix-la-Chapelle that all the Germanic customs
should be put in writing; and the survival of personal laws was a
salient feature of Frankish policy. But over these systems of tribal
personal law stood the Empire itself, claiming the prerogative of law-
making. The imperial power was in large measure based both on the
Roman principle that the Emperor was the source of law and also
on the ecclesiastical doctrine that imperial authority was divinely be-
stowed. Founded thus upon Roman and Christian ideas, the Emperor's
authority opened the way for a new and vigorous imprint of Roman and
canonical principles upon the law of Europe. Imperial legislation reached
to the farthest corners of the Empire, and assisted in moulding the laws
of many peoples into forms that fitted them to be the basis of the
systems of national territorial law which ultimately developed in the
several parts of Europe. The main instruments of the imperial law-
making power were the Capitularies ; and these were general laws which
had application to all subjects of the Empire and which possessed terri-
torial as distinct from personal validity, cutting across and modifying
the many systems of personal laws in force throughout the imperial
domain. To this there was one important exception. Although on the
imperial theory the Frankish Emperor succeeded to the authority of the
ancient Roman Emperor, no Capitularies of the Frankish Emperor
supplemented the Roman Law as a system of personal law; the reason of
CH. XXI.
## p. 728 (#774) ############################################
728
German and Roman legal foundations
the legislators themselves being that no one could imagine the Roman
Law capable of improvement. In many directions, however, the Capitu-
laries as general territorial law for the Empire embodied principles of
Roman and Canon Law; and these principles the imperial judges applied
in their decisions. Judicial power is ever a potent factor in the spread
of a legal system. It was potent in the time of the Frankish Empire.
It was potent at a later age in the process of the Reception of Roman
and Canon Law in Germany. In our own day it has been, and still is,
a potent factor in the introduction of English Law into Roman-Dutch
and other legal systems within the British Imperial Commonwealth. Not
supplanting the pre-existing systems of personal laws, the leges romanae
and the leges barbarorum, but standing beside them, and in a sense over
them, the Capitularies as applied by the judges nevertheless aided the
development of these laws and produced a certain unity of legal evolution
throughout Europe, the effects of which were not fully manifest till later
times. Like the Constitutions of the Roman Emperors, the Capitularies
of the Frankish Emperors were a civilising and unifying force in which
Roman and Canon Law played a rôle of high significance.
The history we have here so briefly sketched is the history of the
foundations of the several legal systems of modern Western Europe.
These foundations were Germanic customs and Romanic ideas and prin-
ciples of civil and canonical law. In the period of the Germanic kingdoms
these two main legal elements—the Germanic and the Romanic-were
partly combined, partly fused. But everywhere, in all the many parts
of Europe, the fusions differed one from another in form and scope;
everywhere legal growth meant particularism and diversity. Unity there
was of a sort, the unity based on the commingling and combination of
Germanic and Romanic elements. But within this general scheme of
unity there were almost countless detailed combinations, variations, types;
and throughout Europe almost innumerable new growths, arising out of
economic and social life, added theniselves to the luxuriant garden of
Germano-Roman stocks.
Another historical factor tended also to produce variety in legal
growths. The gradual spread of feudal institutions turned personal laws
into territorial laws; the principle of the personality of law gave place
to the principle of the territoriality of law. Feudalism meant that law
was no longer to be carried about by the members of tribes wherever they
might wander; that law was now in a sense affixed to the soil, that it
governed the affairs of all the men in a region, a territory. The fact
that in the feudal age Europe was composed of a vast number of terri-
torial lordships, large and small, involved the existence of an equal
number of feudal systems of law and custom. Feudalism, no less than
tribalism, thus led to particularism, multiplicity, and diversity in the
domain of law. But in the territorial systems of law that arose as a
result of feudalism much of the substance of the supplanted personal
## p. 729 (#775) ############################################
Roman Law in Italy
729
systems, including both Germanic and Romanic elements, was incor-
porated
Still another important feature of the early Middle Age should be
noticed. On the map of this age the national lines of modern Europe
were nowhere to be seen ; but social and political conditions of the time
were slowly preparing the way for them. In the course of the eleventh,
twelfth, and thirteenth centuries modern geographical and political
boundaries were gradually forming themselves; Europe was slowly
passing from the age of Germanic kingdoms to the age of the national
states of later medieval and of modern times. In our history of Roman
and Canon Law we must now take cognizance of these new frontiers in
Western Europe; we must deal separately with Italy, Spain, France,
Germany (with Switzerland and the Netherlands), and England. In the
history of cach one of these countries we must, however, go back to the
early Middle Age to study the laying of the foundations of the law.
Nor shall we find that in any one of these regions of Europe there
was much of legal unity. Within each country particularism in legal
growth--the particularism of feudal regions, of political divisions and
sub-divisions of territories, of towns, of different legislatures and courts
—was one of the main features of the time. Only slowly, and in some
cases only in modern times, was unity in law attained in the different
countries. England, with her centralised and unified system of medieval
common law, was the first to attain it.
VI.
Maitland has taught us that “Italy was to be for a while the focus of
the whole world's legal history. " It is to Italy, then, that we must first
direct our thoughts.
From the fall of the Western Empire to the end of the Middle Age-
throughout the periods of domination by Ostrogoth, Greek, Lombard,
Saracen, Norman, and Frank-the Roman Law never ceased to be in force
in the Italian peninsula. Although this continuity in the history of
Roman Law in Italy was at one time disputed, it has long since been
established by the researches of Muratori, Donati D'Asti, Guido Grandi,
and, finally, by von Savigny's great work on the history of Roman
Law in the Middle Ages. Despite the decay of Roman political power,
Roman civilisation preserved a stronger hold upon Italy, the very centre
of Roman history, than upon the other provinces. Roman Law was a vital
part of that civilisation, and it persisted tenaciously in the face of all the
1 An interesting illustration is furnished by the history of Catalonian feudalism.
The Usatges, which Raymond Berengar I put forth in 1064–69, are the earliest known
feudal code. They were modified by later monarchs and supplemented by the
introduction of Roman jurisprudence. See Merriman, Rise of the Spanish Empire,
Vol. 1, p. 476. On law under the feudal system, see General Survey of Events, Sources,
Persons and Movements (Continental Legal History Series, edited by J. H. Wigmore
and others, Vol. 1), pp. 71-83.
CH. XXI.
## p. 730 (#776) ############################################
730
Roman influence on Lombard law
foreign invasions. Already entrenched in the life of the peninsula before
the fall of the Empire, the Theodosian Code long retained a certain
primacy among the sources of the Roman Law in Italy. The Church
itself had an interest in maintaining the Code of Theodosius, the
ecclesiastical constitution and privileges having been founded under
Roman governments prior to the time of Justinian. Likewise the books
in use at the bar and in the schools were based on this Code. Neverthe-
less, the codification of Justinian was put into force in Italy by the
enactments of the Emperor himself; and, although it did not supplant
at once the earlier Code, making indeed but slow progress in this
direction, it ultimately acquired a leading place in the legal life of parts
of the peninsula. In the regions that were governed from Byzantium the
· Graeco-Roman or Byzantine Law-particularly in the form of its elabora-
tion by the legislative reforms of the Eastern Emperors, such as Leo the
Isaurian (ob. 740), Basil the Macedonian (ob. 886), and Leo the Philo-
sopher (ob. 912)—was also extensively applied in practice.
Under Lombard rule Roman Law persisted and even influenced the
Germanic Lombard Law itself. The legal history of the Lombard kingdom
possesses indeed many features of special interest to the student of
medieval Roman Law; and certain of these features are brought into
clear light only through an understanding of the main characteristics of
Lombard civilisation and Lombard law. The Ostrogoths had been mere
military adventurers in Italy; and under the Byzantine Empire's recon-
quest they disappeared both as a national and as a legal influence. Wholly
different is the story of the Lombards. When, in the sixth century, they
entered Italy, they were in point of civilisation far behind the Roman
population. But they were so strong in body and mind and so aggressive
in temperament that they soon conquered a large part of Italy and held
it tenaciously. Hostile both to the Empire and to the Church, they were
determined to control all Italy and to hold fast to their own ancient
civilisation and customs.
Our interest for the moment centres in these ancient Lombard
customs. Their history in Italy is like that of other bodies of Germanic
law in one fundamental particular: contact with the Romans brought
about their reduction to writing and their modification in form and
substance. Seventy-five years after the entry of the Lombards into Italy,
Rothari gave their customary law its written form in his famous Edict of
643. Later kings made supplements to the Edict: Grimoald in 668,
Liutprand between 713 and 735, Ratchis in 746, and Aistulf from 750
to 754. What, now, were the Roman influences that played upon this code
of Lombard Law? Not only was the idea of a written code derived from
the Romans; the designation of the code as an “edict” was a result of
Roman conceptions still prevalent in Italy. The very language of the
code was that of the conquered people; and it is possible that Romans,
more particularly Roman ecclesiastics, took some part in the framing of
## p. 731 (#777) ############################################
Ecclesiastical influence on secular law
731
the Edict and its supplements. The text of the Edict, especially that of
the supplements, bears abundant evidences of the incorporation of Roman
and Canon Law. In his preamble Rothari transcribes expressions used in
the Gothic and Roman codes. The Edict or its supplements contain, in
identical or nearly identical words, texts of the imperial decrees, the
Bible, the canons, and the Fathers of the Church. Roman and Canonical
legal influence tends to increase as the Lombard code is amended and
enlarged by the supplements to Rothari's work. This tendency is
strikingly illustrated by the supplements of Liutprand (713–735). The
influence of Roman Law may be seen in Liutprand's imitation of its ideas
and terms and in many points of substantive law; thus, Liutprand
introduces reforms, based on Roman Law, in respect of wills, women's
rights of succession, the guardianship of minors, prescription, and
mortgages. Even more significant is the influence of Canon Law on
Liutprand's legislation. During his reign the influence of the Church
grew steadily; and he was the Church's main agent in the moulding
of Lombard Law in conformity with the Church's law. Many provisions of
Canon Law were thus purposely incorporated in the code of the Lombards;
for example, canonical doctrines as to impediments to marriage, the
privileges of ecclesiastics, the recognition of the pontifical primacy, and
penalties upon the pagan practices still surviving. Ratchis and Aistulf
followed in Liutprand's footsteps.
Strong ecclesiastical influence on the legislation of Germanic rulers is
characteristic of legal growth throughout many parts of the West in this
period; but it is especially striking in the case of Lombardic legislation.
The permeation of the code of Rothari and his successors by the rules and
principles of Canon Law shews us clearly how the Church, as the framer
and interpreter of divine law, inspires the modification of secular law to
suit the precepts of divine law. Comparisons between legal growth in the
West and legal growth in the East, in the successive periods of medieval
history, are ever enlightening. Let us not forget, then, that, at the very
time when the Church is moulding the Lombardic Law along Latin-
Christian lines in the reigns of Liutprand and Ratchis, the same Church
influence is effecting a profound change in the law of the East. In the
West, Liutprand supplements in 713–735, and Ratchis supplements in
746, the Edict of Rothari; while in the East, Leo the Isaurian's famous
’Exloyn, an abstract of the Justinianean codification so coloured by
Greek ecclesiastical ideas and principles that it may be described as
a Christian law-book, appears in 740. Not only in this period does
Canon Law exert a moulding influence on secular law throughout the
world. Throughout the whole of the Middle Age that influence is
continually shaping the form and content of Graeco-Roman Law in the
East and Germanic-Roman Law in the West. In some periods the
ecclesiastical influence on secular law is stronger than in others; but at all
times there is a steady tendency in that direction.
CH. XXI.
## p. 732 (#778) ############################################
732
Legal studies in the West
Let us now turn to another aspect of the history of Roman and
Canon Law in the Italian Middle Age. Great schools of law arose in Italy
in which these two closely related legal systems were studied and taught by
scholars. In one sense an account of the rise and the work of these
schools belongs to Italian history. But when we contemplate the far-
reaching influence of these seats of learning and instruction in Roman and
in Canon Law, particularly when we observe Bologna's world-wide effect
on constitutional and legal development and on political and juridical
thought, we can see at once that we are dealing with one of the most vital
aspects of the general history of civilisation. In law, as in art, letters,
and other features of culture, Italian history is at the same time world
history.
Throughout the darkest period of the Middle Age—from the fifth to
the tenth century-legal studies in the West were never entirely
interrupted. Although there seem to have been no organised law
schools and no juristic studies of the highest order, there was neverthe-
less, as a part of the general culture of the times, a partial salvage of
Roman legal materials and some scholarly attention to their form and
content. Monks and ecclesiastics made transcripts and abstracts from
the juristic fragments which had survived from antiquity; and these
formed the basis of study in the schools of arts. In the curriculum above
the rudiments law found its place under dialectic at the end of the
trivium of grammar, rhetoric, and dialectic. For a long time legal
instruction in Italy was for the most part in the keeping of the practi-
tioners of the law; judges and notaries taught their successors and thus
preserved from generation to generation the traditions of the profession.
The Frankish period marks, however, the beginning of a far-reaching move-
ment. Law gradually came to be regarded more and more as a science. Books
were written dealing with the practice, the theory, and the history of the
law. The methods of legal education were steadily improved. There
arose in Italy great schools or universities of law. The legal renaissance
spread from Italy to all parts of Europe.
The Italian law schools of the early Middle Age were of two kinds.
There were schools of Lombard Law at Milan, Mantua, Verona, and
Pavia; while, apart from schools kept by bishops and monks, the chief
schools of Roman Law were at Ravenna and Bologna. The emphasis
placed either on Lombard or on Roman Law in each one of these several
schools corresponded to the legal conditions prevailing in the localities
where the schools were situate. Legal conditions were constantly
changing, however, as a result of the struggle between Lombardic and
Roman Law in the practice of the courts; and this struggle in legal life
was reflected in the work of the schools.
The chief of the schools of Lombard Law was at Pavia, the capital of
the Lombard kingdom; and by the close of the tenth century the Pavese
school had risen into fame. There had been at Pavia a grammar school,
## p. 733 (#779) ############################################
The Italian law schools
733
in which law was of course included in the curriculum from an early time;
but, chiefly owing to the fact that the Palace Court, the supreme tribunal,
was located at Pavia, legal studies were in general in the charge of the
judges and practitioners. Out of this system of apprenticeship university
instruction in law slowly developed; and, although the precise date of the
founding of the Pavese school is no better known than that of the other early
Italian schools of law, we learn much of its history from an “Exposition
of Lombard Laws" written towards the close of the eleventh century, at
a time when the Pavese school of Lombard Law was declining and when
the Roman Law was already being cited as the lex generalis. From this
book it is clear that the Pavese jurists belonged to two distinct schools
of thought. The antiqui or veteres devoted their time and thought to the
national Lombardic Law and its interpretation; and these jurists flourished
down to the beginning of the eleventh century. The moderni, on the other
hand, were the jurists learned in the Roman Law and interested in it as
the source of rules and principles for the development and improvement
of the national Lombardic Law; and in the second half of the eleventh
century this modernist school of thought was in the ascendency. The
most prominent of the Pavese lawyers belonged to one or other of
these two groups. Thus, Valcausus and Bonifilius were among the anti-
qui, while Gulielmus and Lanfranc belonged to the moderni. Lanfranc,
the son of a judge, early rose to a place of eminence among the Pavese
jurists; and, later in life, not only did he found a school at the abbey of
Bec, where students flocked to his lectures, but he became adviser to
William the Conqueror and Archbishop of Canterbury. The best of the
moderni were expert Roman lawyers, deriving their knowledge not from
mere practice-books, but from the Roman legal sources themselves. In its
later period, before its decline towards the end of the eleventh century,
Pavia could be reckoned, therefore, among the schools of Roman as well
as of Lombard Law.
At Rome itself the teaching of Roman Law, which in the time of the
classical jurists had been a voluntary and private undertaking, appears
to have continued down at least to the end of the eleventh century.
Theodosius seems, however, to have given the Roman schools an official
organisation. Certainly before the fall of the Western Empire the teachers
at Rome were in receipt of official salaries; and this arrangement was
continued by the Ostrogothic kings and by Justinian. By his decree
Omnem (533) Justinian assigned official schools to Rome and Constanti-
nople, and by his Pragmatic Sanction (554) he decreed that the salaries
of law teachers should continue, so that the youth might not fail of good
instruction. When the Empire's authority yielded to the Church's au-
thority at Rome, studies in Roman Law suffered a change. Ecclesiastical
authorities maintained a thorough acquaintance with Justinian's law-
books and an interest in Roman legal science, but by giving to Roman
legal studies a purely ecclesiastical tone they deprived the Roman Law of
CH. XXI.
## p. 734 (#780) ############################################
734
Rise of the Bolognese school
its former Roman spirit and independence of thought. By the end of the
eleventh century Rome itself was in a state of decadence, owing to its
sack by the Normans in 1084; and Odofred, the Bolognese jurist, tells
us that, in consequence, Roman legal studies were transferred from Rome
to Ravenna. The origin of the Ravennese school may well go back to
the period of the Exarchate, a time when Ravenna was the only seat of
Roman authority in Italy; but certain it is that at the close of the
eleventh century it was a well-organised and flourishing centre of Roman
legal study. Odofred asserts that Ravenna's success as a school was due
to the taking of the manuscripts of Justinian's law-books from Rome,
and that at a later time Bologna's success was equally caused by carrying
them there from Ravennal.
Various other causes contributed, however, to the rise of Bologna as
the most illustrious of all the Italian law schools of the Middle Ages-
the very centre of juristic learning and of its diffusion throughout the
civilised world. Bologna's central geographical position and its judicial
and commercial importance, the political favour shown to the law school,
and the genius of its teachers, were among the leading factors in estab-
lishing the fame of the school. But of special importance were the qualities
which early distinguished its teaching. The school assimilated and united
all of the legal elements derived from the past, and took a broad and
independent attitude towards the various divergent tendencies in juridical
thought. It adopted and combined the features of legal science already
evolved in the schools of Constantinople, Pavia, and Ravenna ; and it
enjoyed the favouring influences of Pisa and the adjacent Tuscan regions,
such as their Renaissance spirit. Byzantine juristic studies formed a back-
ground. The method of glosses and of parallel passages already applied
by Pavese jurists to the texts of Lombard Law was none other than the
method chosen by the early Bolognese glossators. Pisa was long in
possession of the most complete and most famous of all the manuscript
texts of Justinian's Digest, the manuscript now in the Laurentian Library
at Florence; and distinguished Tuscan jurists, such as Pepo and Gratian,
the founder of the new school of Canon Law, taught at Bologna. Finally,
owing to the political conditions of the time, Bologna possessed the
exceptional advantage of being the one city in Italy where Roman legal
study could best establish itself afresh, with every prospect of great
success, under its traditional imperial patron.
The revival of Roman legal studies at Bologna resulted in a return
to the treatment of law as a science which had characterised the work of
the classical jurists eight centuries before. The popular Roman Law which
1 On the Pisan (later the Florentine) MS. of the Digest and the other MSS. of the
Justinianean law at the disposal of the Bolognese jurists, see Kriger, Geschichte der
Quellen und Litteratur des römischen Rechts, $ 52; Bruns-Pernice-Lenel, Geschichte
und Quellen des römischen Rechts, $ 77 (Holtzendorff, Encyklopüdie der Rechtswissen-
schaft, 6th edu, by Kohler, Vol. 1).
## p. 735 (#781) ############################################
Manuscripts of Justinian's law-books
735
had been evolved in practice, in response to the social needs of the inter-
vening feudal epoch, was disregarded by the jurists, their sole aim being
to know the texts of the Justinianean codification and to expound them
scientifically. Not only was law separated from dialectic and other
branches of study and given its own separate place in education, but it
was also deprived of its character as a mere handmaid to the practitioners.
These methods and purposes of legal study spread outwards from Bologna.
In the course of the thirteenth and fourteenth centuries old law schools
were given fresh life and new schools were established. From Bologna
there were migrations of teachers to other places where schools were set
up; and some of these, such as the schools at Padua, Siena, and Pisa,
became permanent and influential seats of legal learning. Rulers also
restored or founded schools on the Bologna pattern, this being the origin
of the State schools, such as those at Naples and Rome. In many schools
Canon Law was added to Roman Law as one of the important branches of
study. As the universities grew they sought the support of the Emperor
or the Pope ; and nearly all of them obtained the privileges and pro-
tection afforded by papal bull or imperial charter.
The Bolognese jurists possessed manuscripts of all parts of Justinian's
codification-Digest, Institutes, Code, and Novels; and the peculiar
state or form of the manuscripts largely controlled the course of their
study. Thus, there were several texts or readings of the Digest known
as literae. The text of manuscripts which were earlier than the Pisan
manuscript, or which differed from it, was known as litera vetus (litera
communis, litera antiqua); the Pisan manuscript was designated as the
litera Pisana ; while a composite text, formed by a collation of all the
other texts for school use at Bologna, was called the litera vulgata.
Likewise there was a peculiar three-fold division of the contents of the
Digest. That part of the Digest which extended from the beginning to
Book XXIV, title 2, was known as Digestum Vetus; the part onwards to
the end of Book XXXVIII was designated as the Infortiatum ; while
the remainder, from Book XXXIX to Book L, was called the Digestum
Novum. This very remarkable classification of the parts of the Digest,
which long persisted in European scholarship, has been explained, on
the basis of the traditional views of the glossators, as the result of the
transfer of the Justinianean manuscripts from Ravenna to Bologna.
Irnerius, when he began to work on the manuscripts at Bologna, did not
have the full text of the Digest ; and, when he afterwards became familiar
with the missing portion in the middle of the manuscripts, he named it
the Infortiatum (the “fortification” or “fortifying addition "). What-
ever may be the value of this traditional view, reported by Odofred, one
of the Bolognese glossators, and now generally accepted by scholars, it
clearly points to the fact, as Calisse, in his Storia del diritto italiano,
has pointed out, that this triple division of the Digest's contents must
have been made at Ravenna before the time of Irnerius. It was but
CH. XXI.
## p. 736 (#782) ############################################
736
Methods of the Glossators
natural that a long manuscript, such as that of the Digest, should have
been physically divided into parts for the scholar's or student's con-
venience; but, as remarked by Calisse, “why the division should have
fallen at those particular books is the unexplainable feature; unless we
regard it as a reminiscence of Justinian's own instructions (persisting
into the Middle Ages), for the study of his law-books. "ı
The Glossators treated the several parts of Justinian's codification as
an entirety and as forming, together with certain other legal sources, the
Corpus iuris civilis. They distributed the matters of the Corpus iuris
civilis into five volumes (volumina). The three parts of the Digesta,
formed in the manner already explained, they placed in the first three
volumes ; while in the fourth volume they put the first nine books of
the Coder. The fifth volume embraced all the rest of the subject-matter
of the Corpus iuris civilis, namely, the Institutiones, one hundred and
thirty-four of the Novellae in Latin (known as the Authenticum), and
the remaining three books of the Codex (tres libri). In addition to all
these Justinianean materials the Glossators also inserted in the fifth book
of the Corpus iuris civilis—immediately after the Authenticum—the text
of the Lombard feudal law (libri feudorum) and several laws of the
Emperors Frederick I, Frederick II, and Conrad. Inasmuch as
the fifth volume, with its miscellaneous contents, could not be
referred to by its general character, as in the case of the first four
volumes, it was known by the Glossators as Volumen simply, or, by reason
of the fact that it was much smaller than the other volumes, as Volumen
Parvum.
The method adopted by the jurists who established the fame of the
Bologna law school was that of the gloss (ywooa, equivalent to verbum,
lingua, vox), or textual interpretation.
The jurists themselves thus came
to be known as the Glossators; and it was they who gave to the school
its earlier tendency and character. Glosses were not a new thing ; within
the field of law they had already been employed in the study of medieval
Lombard and Roman Law. The new feature of the Bolognese school, the
one which gives it its unique position, was the application of the glossa-
torial method for the first time to the texts of the law-books of Justinian.
The adoption of this method at Bologna came about quite naturally,
inasmuch as the law school was itself an outgrowth of the grammar
school; and there was also the additional reason to be found in the
persistent tradition of Justinian's order that his laws should not be
altered in sense by a liberal as distinct from a literal interpretation.
Literal interpretation, moreover, was particularly needful as a means of
arriving at a correct text of the Justinianean codification. Although at
first, therefore, the gloss was but a short explanation or interpretation
of a difficult single word in terms of an equivalent, it soon became also,
1 Constitutio Omnem, prefixed to the Digest. See Buckland, Roman Law from
Augustus to Justinian, p. 49.
## p. 737 (#783) ############################################
The Glossators and their works
737
in the hands of the jurists, an explanation of a passage or of an entire
lex or even of a legal principle embodied in the text. These two forms
of the gloss became known respectively as the “interlinear” and the
“ marginal. ” The explanation of a single word was placed above it,
between the lines (" interlinear"), while the explanation of a passage was
placed beside it on the margin of the text (" marginal ”); and to each
gloss the glossator affixed his initials or some other mark or indication
of his identity. As the work of the school advanced, the gloss became
more and more elaborate and lost its original signification. It became,
in fact, the means of embodying the results of the master's legal re-
searches. “It included,” says Calisse', “ critical notes on the variant
readings (variantia) of different manuscripts. It brought together loci
paralleli, which helped to elucidate the point. When these passages were
in conflict (antinomia), it sought to reconcile them or to decide on
the preferable one. Thus, finally, we find the gloss developing into a
genuine commentary, with all its proper appurtenances—the summary
(summa), the putting of illustrative cases (casus), the deduction of a
genuine maxim (brocardus), and the discussion of concrete legal problems
(quaestiones). "
The creative work of the Glossators falls within the period from the
early part of the twelfth to the middle of the thirteenth century. Pepo,
the Pisan jurist who migrated to Bologna, was the one who first taught
by the new method, but the real establisher of the glossatorial school,
the lucerna iuris, was Irnerius. His glosses covered the whole range of
the Justinianean texts, and, inasmuch as he had practised at the bar and
had close touch with the actualities of legal life, his teaching combined
in a striking manner both theory and practice. The work of Irnerius was
followed by that of the famous “Four Doctors”—Bulgarus, Martinus,
Jacobus, and Hugo-the activities of these four Glossators constituting
perhaps the most illustrious period in the whole history of the Bologna
school. Two pupils of Bulgarus—Johannes and Rogerus—were at the
same time the teachers of Azo and Hugolinus. Azo's greatest work was
his Summa of the Institutes and the Codex, a work which superseded,
within its field, all previous productions of the school. At the bar there
was a proverb that “who has not Azo, goes not to court (chi non ha Azzo,
non vada a palazzo). ” In the study of Roman Law Azo's Summa was
regarded as essential as the very text of the Corpus iuris civilis itself;
and a knowledge of it was necessary to one who would enter the gild of
judges. To the school of Glossators belonged also other distinguished
jurists, among them being Placentinus, Vacarius, Burgundio, Carolus of
Tocco, and Roffredus of Benevento. Accursius, the last of the pro-
minent Glossators, is also the most famous of them all. He was born near
Florence in 1182. After a period of study at Bologna, he taught there
1 See General Survey of Events, Sources, Persons and Movements in Continental
Legal History (Continental Legal History Series, Vol. 1), p. 137.
47
C. MET). H. VOL. V. CH. XXI.
## p. 738 (#784) ############################################
738
The Accursiana
for over forty years, retired in order to finish his gloss, and died about
1260. The gloss of Accursius was marked off from those of all the other
Glossators as the Accursiana or ordinaria. Accursius and his gloss soon
came to represent everything that the Bologna school meant in juris-
prudence. His work embodied the results of all his predecessors; and, in
a way, he supplanted all of them. The accumulated glossatorial learning
of a century and a half was confusing, in the wealth of its details and in
the variety of juridical opinions, to the practitioners in the courts. They
found it difficult or even impossible to make their way through the maze
which the Glossators had gradually erected. To the practitioners, there-
fore, the comprehensive and orderly collection of Accursius was the new,
the up-to-date luminary of the law which the work of Irnerius had
been at an earlier time. In the schools the Accursiana supplanted all the
other glosses and even the Justinianean text itself. In the practice of the
courts the saying, Quidquid non agnoscit glossa nec agnoscit curia, a
variant of the proverb chi non ha Azzo non vada a palazzo, was pre-
valent"; the gloss of Accursius, that is, was held by the courts to be the
law. This very saying in the courts shews us, however, that the school
of the Glossators was already in rapid process of decay. For a time
Accursius was followed by other Glossators, such as Odofred; but, on
the whole, it is fair to say that the great gloss of Accursius virtually
terminated the work of the school of Glossators. The Accursiana was
itself the main symptom of decadence in the school. The original intent
of the Glossators, in the days of Pepo and Irnerius, had been to focus
attention upon the texts of Justinian's codification as the primary and
pure sources of the law. To the early Glossators the revival of the
Justinianean law meant that the texts themselves should be the basis of
study and practice alike. The discarding of the text for the gloss, the
mechanical following of the Accursiana, indicated that the science of the
pure Roman Law had yielded place to practice; for it was the gloss which
adapted and applied the sixth-century texts to the practical course of
thirteenth-century judicature. What society in the fourteenth century
needed, therefore, was a new juristic method in place of the stereotyped
mechanism of the Accursiana represented by the maxim Quidquid non
agnoscit glossa nec agnoscit curia. The time was ripe for the emergence
of a method of jurisprudence which should base itself upon contemporary
Roman Law, and not upon the Roman Law of the classical jurists and of
Justinian in times gone by. The method which was developed to supply
this social need of medieval Italy and Europe was the method of the Post-
Glossators—the "Commentators. "
The method of the Commentators—the one which had its rise in the
latter part of the thirteenth century at a time when Accursius was still
in his ascendency-represented a reaction against the gloss. The path
1 On the history of this saying in Germany, see Dernburg, Pandekten, 6th edn,
$$ 3, 4.
## p. 739 (#785) ############################################
The Commentators and their methods
739
chosen by the jurists of the newer tendency was the well-worn path of
scholasticism as distinct from the route marked out for them by the
fourteenth-century literary writers of the Renaissance, such as Dante,
Petrarch, and Boccaccio. To the claims of this great intellectual
awakening the lawyers, bound as they were by tradition and narrowed
by the practice of courts, did not respond until, at a much later period,
they turned from the narrow path of scholasticism into the broader ways
of the humanists. Calisse remarks that, when the system of the Commen-
tators “after a formative period was finally developed, it stood forth as
the apotheosis of a painstaking logic. The jurist's ideal now was to
divide and subdivide; to state premises and then to draw the inferences;
to test the conclusion by extreme cases sometimes insoluble and always
sophistical; to raise objections and then to make a parade of over-
throwing them—in short, to solve all problems by a fine-spun logic. He
who nearest reached this ideal was accorded the highest fame in his
science. ” Although already antiquated by the time of the Commentators,
the dialectic method as followed by them no doubt put new life into
juristic studies. But decay set in rapidly. Prolixity upon easy topics and
silence upon difficult ones became the rule. Cujas justly passes this
sentence upon the Commentators as a school: Verbosi in re facili, in
difficili muti, in angusta diffusi. A copious mass of books, written in a
crude harsh style, poured forth: a mass which, it is said, would have
made multorum camelorum onus. Once more the original texts of the
Justinianean law were lost to view in the intricacies of the dialectic exer-
cises of the Commentators. The worship of authorities followed as a
necessary consequence; it is said that lecturers, practitioners, and judges
did hardly more than cite authorities by name and treatise. Ultimately
came the doctrine of communis opinio, the doctrine that the juristic view
which had the greater number of supporters in the books was the sound
view; and thus, after the lapse of nearly ten centuries, there was
practically a return to the famous Law of Citations of Theodosius II and
Valentinian III (426). Judged by the standards of the classical jurists of
Rome, or by those of the Glossators in their period of brilliance, the
Commentators stand on a far lower plane in respect of originality and
fruitfulness of juristic thought. One of the main reasons is that they
stood aloof from the spirit and purpose of the Renaissance. It is, however,
generally agreed by scholars that the school of the Commentators had
merits as well as faults. Although their modes of thought and their
methods were of the past, their gaze was upon the present. The Glossators
sought only to know the Roman Law of Justinian's time; the Commen-
tators endeavoured to know the Roman Law of their own day. The real
achievement of the Commentators consisted in their adaptation of the
older law of Justinian to the legal conditions of their time, their har-
monising of the Justinianean texts with the other legal sources invoked
by the courts, notably the city statutes, feudal and Germanic customs,
CH. XXI.
47—2
## p. 740 (#786) ############################################
740
Bartolus of Sassoferrato
the rules and principles of Canon Law. In the words of Calisse, “the
old science was made over into a new one; and Roman law was trans-
formed into an Italian law. ” The special talent of the Commentators
created a literature-a body of commentaries on Romano-Italian Law
—which acquired the force of binding law and played a rôle of great
importance in legal life. Their method—known as the mos Italicus or
Italian method—was itself destined to have a far-reaching influence;
for it was adopted in other European countries, chiefly in France and
Germany.
To the school of the Commentators belonged the poet Cino of
Pistoia (1270–1336), Albericus of Rosate (ob. 1354), Bartolus of Sasso-
ferrato (1314-1357), Baldus of the Ubaldi (1327-1400), Luke of Penna
(lecturer in 1345), Bartholomew Salicetus (1330-1412), Raphael Ful-
gosius (1367-1471), Paul of Castro (ob. 1441), Marian and Bartholomew
Socinus of Siena, Philip Decius, and Jason Mainus. Of all the Com-
mentators, Bartolus of Sassoferrato, who died at the age of forty-
three in his early prime, stands out as the greatest and most in-
fluential. He studied under Cino at Perugia and also under Raniero of
Forlì; at the age of twenty he became a lecturer at Bologna, later
moving to Pisa and finally to Perugia ; and, among his public appoint-
ments, he held the post of councillor to the Emperor. His writings,
which cover nearly the whole range of the law and are of a higher
quality than those of the other Commentators, include lectures at
Bologna, commentaries on all the titles of the Digest, legal opinions
(consilia), and many treatises or essays on various branches of public and
private law. The chief title of Bartolus to fame rests upon his great
contribution to the work of his school in transforming the legal growths
of the past into the law of the fourteenth century. The lawyers of his
school came to be known simply as “Bartolists. ” The eminence of
Bartolus is also strikingly manifest in the professional maxim that no one
is a jurist who is not a Bartolist (Nemo iurista nisi sit Bartolista).
many parts of Europe the opinions of the great Commentator were held
to be the law itself. The most distinguished of all the successors of
Bartolus was his own pupil, Baldus of the Ubaldi, who was a Canonist
as well as a Romanist; he taught not only at Bologna, but also at Pisa,
Florence, Padua, and Pavia.
The school of the Commentators long held dominance in Italy. Even
the attacks of Dante, Petrarch, and Boccaccio, and the great movement
of humanism in the fifteenth century, did not turn the jurists to freer
and more enlightened methods of legal science. Boccaccio's remark, that
law had ceased to be a science at all, summarised the antipathy of the
new scholarship to the communis opinio, the casuistry, the mos Italicus, of
the Commentators. The attack of the fifteenth-century humanists re-
sulted in a protest against the Corpus iuris civilis itself. Tribonian was
reproached for mutilating the writings of the classical jurists; and even
In
## p. 741 (#787) ############################################
Influence of humanism on legal studies
741
the fragments of those writings embodied in the Digest were now, declared
the humanists, buried beneath a mass of crude medieval commentaries.
These attacks, however, did not turn into new channels the main current
of professional thought and activity. Even into the sixteenth and seven-
teenth centuries the lawyers proceeded on the lines marked out by Bartolus.
The “practical jurists” continued the work of the Commentators by
adapting the mass of Roman legal materials to the needs of daily practice
in the courts. For them practice, as distinct from legal science or the
theory and the history of the law, was the main thing. Despite the
defects of the school of practical jurists, their work was nevertheless of
real value; for it brought prominently to view the fact that the law was
changing day by day, and that the Roman element in the law must be
shaped and adapted to social needs. Only in modern times has this view-
point of the Commentators and the practical jurists been fully recognised
as a true contribution to the science of law.
Humanism was not without its effects upon Italian legal studies in
the fifteenth century; but, on the whole, the new movement was
represented, within the domain of law, by the work of classical scholars
and poets and not by that of professionally-trained lawyers. Lorenzo
Valla (ob. 1457), Pomponius Leto (1428-1498), and Angelo Politian
(1454-1496), were among the leaders of the new humanist school of legal
science; and to the enthusiastic study of the Roman legal texts-not
only the Justinianean codification but more especially the earlier materials,
such as the fragments of the classical jurists and the Theodosian Code-
these scholars turned their learning and their skill. Their aim was to
restore the Roman Law of the classical jurists as the basis of Justinian's
law-books and of later legal growth; they sought to establish legal
science on the broad foundations of history and philosophy. Legal
research, both in textual criticism and in methods of dealing with the
substantive law embodied in the texts, was thus given new and more
advanced tendencies. While preserving contempt for the Commentators,
these early Italian humanists in law always recognised the soundness of
the methods of the Glossators. Their full sympathy with the general
movement of humanism, however, enabled Valla, Leto, Politian, and their
successors to disregard the limitations which bound the Glossators; and
it is the general view of scholars that their work meant indeed a real
advance in Romanist legal studies. The work of these earlier humanists
was carried on by Andrew Alciat (1492-1552), whose legal writings and
career have given him a deserved place of fame among Italian jurists and
have caused him to stand out as the personification of the new school of
legal thought. His main work, however, was done abroad; for, in 1518,
he proceeded to Avignon and transplanted to France the methods of the
science he had learned in Italy.
Let us for a moment retrace our steps to consider the study and
teaching of Canon Law in the Italian Middle Age.
CH. XXI.
## p. 742 (#788) ############################################
742
Study and teaching of Canon Law
We have already seen that Gratian himself taught Canon Law in the
convent of St Felix at Bologna, and that in many of the schools influenced
by the great law school of Bologna the Canon Law, no less than the
Civil Law, formed a part of the curriculum. The schools or universities
made doctores decretorum as well as doctores legum. In the teaching of the
Canon Law the magistri gave oral lessons (lecturae) based directly on the
text; and it was the short remarks, originally written in the margin of
the text, in explanation of its words, which became the glosses of the
masters. The glosses, constantly increased by additions, took permanent
form. They were reproduced in later copies of the manuscripts and finally
included in the printed editions of the Corpus iuris canonici, notably in
the official Roman edition of 1582 prepared by the correctores romani in
the pontificate of Gregory XIII. The Italian school of Glossators was
not, therefore, confined to the civilians, embracing as it did the magistri
who glossed the canonical texts; and this is a feature of the revival of
juristic studies, at Bologna and other Italian schools, of far more than
ordinary interest.
Among the chief glossators of the Decretum were Paucapalea,
Gratian's first disciple, Rufinus (1160–1170), John of Faenza (c. 1170),
Joannes Teutonicus (c. 1210). The gloss of Teutonicus, as revised and
completed by Bartholomeus Brixiensis (of Brescia), became the glossa
ordinaria decreti. Vincent the Spaniard and Bernard of Botone (Ber-
nardus Parmensis, who died in 1263) wrote glosses on the Decretals,
that of the latter being the glossa ordinaria. The well-known Joannes
Andreae (c. 1340) was the author of the glossa ordinaria on the Liber
Sextus. That on the Clementinae, begun by Andreae, was finished by
Cardinal Zabarella (ob. 1417).
Apart from the glosses, the writings of the canonists, like those of the
civilians, fall into several groups. Thus, the canonistic literature consists
chiefly of Apparatus, Summue, Quaestiones, and Consilia. But while,
owing to differences in method, different schools of the civilians may be
distinguished, the canonists are not in general divided into schools, except
upon questions as to the relations of the Papacy to the national Churches
and the secular powers. The systematic Canon Law of the Middle Age is
embodied very largely in the Summae. Some of the early disciples of
Gratian wrote Summae, including Paucapalea (1150), Roland Bandinelli
(later Alexander III, c. 1150), Rufinus (c. 1165), Étienne of Tournai
(Stephanus Tornacensis, c. 1168), John of Faenza (c. 1170), Sicard, Bishop
of Cremona (c. 1180), and, perhaps more important than all, Huguccio
or Hugucius (c. 1180). Writers of Summae of the Decretals include
Bernard of Pavia (c. 1195), Sinibaldo Fieschi (Innocent IV, c. 1240),
Wilhelmus Durantis (Durandus), Joannes Andreae, and Nicholas de
Tudeschis. The Summa Aurea or Summa Hostiensis, written by Henry
of Susa (ob. 1271), who was Cardinal-bishop of Ostia, is a work of
the highest value. The numerous treatises dealing with canonical pro-
1
## p. 743 (#789) ############################################
Roman and Canon Law in Spain
743
cedure, which form a special branch of canonistic literature, are called
Ordines Iudiciarii and are to be compared with the similar treatises of the
legistae or civilians. The Ordo Iudiciarius of Tancred (1214-1216)
largely displaced the works of earlier canonists on this subject". The
fifteenth century, although it is identified with the Spaniard John of
Torquemada and the Italian Panormitanus, is not as rich in canonistic
literature as the earlier ones. In the period after the Council of Trent
many distinguished canonists wrote commentaries on the Corpus iuris
canonici.
VII.
It is time to glance at the history of the spread of Roman and Canon
Law in medieval Spain.
The mixture of racial elements in the peninsula from the very
beginning of its history gives to Spanish legal history a complexity which
distinguishes it from the history of most of the other bodies of European
Law. Even to-day Spanish Law reflects the historical movements and
changes which finally produced the Spanish nation and gave it political
unity and imperial dominion. Of all the factors which have created the
Spanish legal system in a long process of evolution Roman influence has
been predominant; back to the law of Rome, Spain, of all the nations of
Western Europe, traces her law in most direct descent. Numerous legal
sources survive to prove that Roman legal influence was profound and
that it left an indelible imprint on the law of succeeding ages. In many
ways the history of peninsular law under the domination of the Romans
constitutes one of the most enlightening chapters in the history of the
spread of Roman Law to the provinces before the disappearance of the
Western Empire. Profound as was the Romanisation of law in Spain, it
was nevertheless not absolute. In Spain, as in other provinces of the
Empire, the Roman Law came into contact with native (here Ibero-
Celtic) customs and possibly also with Phoenician and Greek Law intro-
duced by the early colonists from the East. Native law persisted, at least
in some regions, after the coming of the Romans; though there is no
evidence that it still persisted in the latest period of the Western Empire.
Apart from the place filled by pre-Roman Law in the Roman period, there
was also the opportunity for the growth of indigenous legal institutions;
and it is clear from the evidence that down to the last the mos provincialis
was recognised. Hybrid legal institutions were created by the contact
of native and Roman legal types, and indigenous variants were either
juxtaposed or fused with the legal forms of the Roman province. Some
of these indigenous legal growths survived the Roman period; thus, the
betrothal custom of Cordova as to kisses—the penalty of lessened
i Pollock and Maitland, History of English Law, 2nd edn, Vol. 1, p. 207: Bracton
" levied contributions from the canonist Tancred. ”
CH. XXI.
## p. 744 (#790) ############################################
744
Roman and Visigothic times
inheritance for kissing the bride, before marriage, except in the presence
of eight relatives or neighbours – was adopted as general law by a
constitution of Constantine in 336, included in the Lex Romana Visigo-
thorum, and embodied in Castilian codes of medieval and modern times.
Indeed, at many points native peninsular law influenced the Roman Law;
and this influence was one of the main factors in the growth of Roman
provincial law in Spain. Roman Law, both public and private, was in fact
introduced into the peninsula and there moulded, under the political and
social influences of the time, into that Roman provincial law, partly
customary and partly regional written law, which was revealed in some
measure, a century after the fall of Rome, in the Lex Romana Visigothorum
of the Germanic conquerors. The stages in the evolution of this
provincial Roman Law in Spain follow in general the main lines of the
development of provincial law throughout the Empire: two of these
stages are marked by the growth of the jus gentium and the grant
of citizenship to the inhabitants of the provinces. In divers ways, indeed,
the introduction of Roman Law materially affected the growth of law in
Spain. It meant, in the first place, that the legal institutions and
doctrines of the Romans in respect to persons, things, and obligations
were to serve as one of the fundamental bases of future legal development;
and, in general, it led to the substitution of individualism for the
communistic ideas which had formerly permeated the law of the
peninsula. But the Germanic invasions and the fall of the Western
Empire interrupted this evolution. The stream of Roman Law still
continued to flow under Visigothic rule: it now flowed, however, partly in
the old and partly in new channels:
In this period of the Germanic invasions and Visigothic dominion
(400-700) the outstanding feature of Spanish legal history is the in-
troduction of the Germanic Law of the Visigoths into regions long
governed, in the main, by the peninsular system of Roman Law. The
meeting of these two different bodies of law produced results of the
highest importance and gave to the Spanish Law of later times some of its
characteristic features. There was an influence of the Roman Law on the
Visigothic and of the Visigothic Law on the Roman. One of the ultimate
effects of these influences and counter-influences was the growth of hybrid
legal institutions-a feature of legal evolution which was characteristic of
the Romano-Germanic civilisation of Europe in general. A striking
example of these hybrid growths is furnished by the Formulas Visigoticas
(615-620), the formularies or models of public documents.
Until the time of Chindaswinth (642-653) the Spanish population--
composed of the Hispano-Romans and the Visigoths—lived under a legal
system based on the principle of the personality of law. The first king
who gave law to the Visigoths was Euric (467-485), whose code, although
largely a written statement of Germanic custom, displayed nevertheless
some traces of Roman influence. Euric's code was applied to the Visigoths;
1
1
## p. 745 (#791) ############################################
The Fuero Juzgo
745
and such of its parts as embodied public in contrast with private law were
also applied to the whole population generally. In respect of their own
inter-relations the Hispano-Romans continued to live under Roman
private law, modified somewhat by Germanic custom. Alaric's Breviary
—the Lex Romana Visigothorum (506), based on the Gregorian, Hermo-
genian, and Theodosian Codes, as well as upon other imperial sources
--solemnly confirmed to the Roman population their own code of
personal law. Private relations between the Hispano-Romans and the
Visigoths were governed, however, by the code of Euric.
With Chindaswinth (642-653) an important change took place. The
Lex Romana Visigothorum was abrogated. A common code--the Fuero
Juzgo (Forum Judicum)—was promulgated for both peoples, a code
which harmonised and fused the Germanic and Roman legal rules and
ideas. Some of these rules and ideas of the Fuero Juzgo shew a
preponderance of Visigothic Law, as in the case of the law of marriage
and of persons. Others are especially marked by Roman influence, as in
matters of inheritance, prescription, and contract. On the whole,
Chindaswinth's code represents the firm establishment of Germanic legal
institutions within a region which had been highly Romanised in the
pre-Visigothic period.
