No More Learning

H. Wigmore and others), Vol. 1, (1912), p. 710. Several recent
1


## p. 711 (#757) ############################################

The False Decretals
711
The collection contains as many canons of councils as papal decretals;
and the decretals in it are not all forgeries. It is best described as an
amplification of the genuine Hispana by the interpolation of spurious
decretals. Of the three parts of the collection, the first is completely
spurious. It contains, after introductory matter, seventy spurious letters
attributed to Popes before the Council of Nicaea (325), all of these letters
being the forgery of the false Isidore except two spurious letters of
Clement which were already in circulation. The second part of the
collection contains the canons of Councils. Most of these are genuine, the
few forgeries, including the famous Donation of Constantine, being
already known. The third part is a continuation of the series of
decretals—which in the first part of the collection had ended with the
date of the Nicene Council-down to St Gregory the Great (ob. 604);
but it contains also one letter of Gregory II (715-731). The authentic
decretals of the Popes begin only with Siricius (385), and these the
Pseudo-Isidore includes in his collection; but he adds also spurious
decretals both for the time before and the time after 385. Most of the
forged decretals are not composed entirely of freshly fabricated material.
The author draws upon the Liber Pontificalis and ecclesiastical writings
for some of his matter. Thus, the genuine Councils and decretals, and
even this genuine matter falsely put into the mouths of the Popes, served
to cloak the skilfully fabricated stuff of the forger and to give it credence.
Blended thus of genuine and spurious matter, the collection rapidly
circulated throughout the West and long passed as a valuable source of
Canon Law. All the later collections drew materials, genuine and false
indiscriminately, from the Pseudo-Isidore? Not until the fifteenth
century were suspicions aroused as to the true character of the collection :
Cardinal Nicholas of Cusa (ob. 1464) and Juan Torquemada (ob. 1468)
expressed in no uncertain terms their doubts as to its authenticity. In
the sixteenth century Erasmus, as well as Dumoulin (ob. 1568) and
Le Conte (ob. 1577), the two editors of Gratian's Decretum, decisively re-
fused to accept the Pseudo-Isidore. Gradually the history of the forgery
has been pieced together by scholars; and the false character of parts of
the collection is now universally admitted.
authors have, however, suggested the province of Tours as the home of the collection.
See the article on the “Decretals, False” by Boudinhon in the Encyclopaedia Brit-
tannica, 11th edn, Vol. vii, and the authorities there cited; and Tardif, Histoire
des Sources du Droit Canonique, Paris, 1887, pp. 140-158.
1 While the Pseudo-Isidore quickly spread its influence from France to Italy and
other European countries, including England, it found a very slow reception at Rome
itself. It has been pointed out by M. Fournier and other scholars that, while the
collection exerted a slight literary influence on papal letters of the ninth and tenth
centuries, the use of the forged material of the False Decretals did not become
prominent at Rome until about the middle of the eleventh century. This ultimate
reception at Rome was due in large measure to the circulation of the canonical
collections in which the False Decretals held a place, no doubt at that time being
cast upon the authenticity of the forged documents.
CH, XXI.


## p. 712 (#758) ############################################

712
Canonical collections before Gratian
The object of the forger appears to have been the reform, or better
application, of the Canon Law. He desired to prevent bishops from being
unjustly accused or deprived of their sees, and to protect the property
and persons of the clergy against the encroachments of bishops and
nobles. He desired also to increase the strength and cohesion of the
Churches; and he made the Papacy the very centre of his ecclesiastical
edifice. These objects the wide acceptance of the False Decretals no doubt
furthered. Certainly they served as a powerful factor in the movement,
within the Frankish territories, towards the centralisation of power in
the see of Rome.
Opinions differ as to the extent of the modification and corruption of
Canon Law itself occasioned by the influence of the False Decretals.
However this may be, there is no doubt that by furthering the tendency
towards its unification the False Decretals mark an important stage in
the history of the law. In yet another respect the Pseudo-Isidore is note-
worthy; for it is the last of the long series of chronologically arranged
collections of the texts of Canon Law. From this time onwards the
canonists arranged the conciliar and papal canons in systematic order
according to subject matter and not according to time; and thus they
gradually prepared the way for the systematic codification of the ius
commune in the Decretum of Gratian and the other integral parts of the
Corpus iuris canonici. Furthermore, from the time of the False Decretals
onwards the canonists not only arranged and systematised the materials,
gradually bringing local canons into the general mass of the common law;
they also added to the bare texts their own conclusions and discussions,
thus clothing the texts with canonist learning and theory.
During the three centuries between the appearance of the False
Decretals and the time of Gratian about forty canonical collections were
made. Among the most important of them are the Decretorum libri XX
of Burchard, Bishop of Worms, written between the years 1012 and
1023, and the three works—the Panormia, the Decretum, and the
Tripartite Collection-attributed to Ivo of Chartres, who studied under
Lanfranc at Bec and was the last of the great canonists of the period of
the ius antiquum. Although many of these collections dating from the
middle of the ninth to the middle of the twelfth century were of practical
and theoretical value, no one of them rose into eminence as the standard
or classical collection which embodied in the most orderly and concordant
form the whole mass of the materials of Canon Law that had grown up
in the centuries of Christendom. Gratian, garnering the rich harvest
which he found in the canonical works of his predecessors, finally provided
this standard collection at the very centre of the revival of juristic
studies. With Gratian and his monumental Decretum the period of the
ius novum had its beginnings, the period which was to see the completion
of the Corpus iuris canonici.
The gradual formation of the Corpus iuris canonici covers a period of


## p. 713 (#759) ############################################

Gratian's Decretum
713
over three hundred years. As finally completed it consists of five separate
parts.
(1) Gratian's Decretum forms the first and in many ways the most
important part: it constitutes in truth the basic part of the entire Corpus
iuris canonici. It is known that Gratian was a Camaldulensian monk of
the convent of St Felix at Bologna, where he taught Canon Law;
although only a few details of his life have come down to us. His
great work-dated between 1141 and 1150, or, as it is now thought,
between 1139 and 1141_bears in the older manuscripts the title
Concordia discordantium canonum, but is better known as the Decretum.
The Decretum is based on earlier collections, including the works of Ivo
of Chartres, but is much more than a compilation or collection. So
skilfully has Gratian ordered and treated his materials that his work
is essentially a treatise on the Canon Law in which the authorities them-
selves are included. There are three parts or divisions of the work. The
first part deals with the sources of the law and with ecclesiastical persons;
the second with ecclesiastical jurisdiction, procedure, property, and
marriage; the third with consecration, sacrament, and liturgy. The
portions of these parts that are Gratian's own personal contribution are
known as the Dicta Gratiani, while the notes by Paucapalea, a twelfth-
century disciple of Gratian, as well as those of a few other scholars, are
called Paleae. Very soon after its appearance Gratian's Decretum was
treated as if it were official; while in the law schools it was used as the
foundation of teaching in Canon Law. Like the texts of the Justinianean
codification in the hands of the Glossators, the Decretum Gratiani was
soon provided with glosses. Before 1215 glosses were written by Johannes
Teutonicus, and about the year 1236 by Bartholomew of Brescia. It is
difficult to overestimate the vast influence which Gratian's work exerted
for centuries upon the study and spread of Canon Law throughout the
Christian world. No other single book of Canon Law can vie with it in
importance and influence.
(2) To complete Gratian's Decretum, five compilations-known as the
Quinque Compilationes Antiquae—were made before the time of Gregory
IX. The first of these, compiled by Bernard of Pavia about 1190, was divided
into five books, as follows: (1) ecclesiastical hierarchy; (2) procedure;
(3) functions and duties of the clergy; (4) marriage; (5) penal law. This
order of subjects adopted by Bernard became the accepted order in future
compilations of Canon Law. Later scholars have summed it up in the
well-known verse: “Judex, Judicium, Clerus, Connubia, Crimen. ” The
last of the remaining four compilations of this group—the Quinque Com-
pilationes Antiquae-was an official collection of the decretals of Honorius
III, 1216 to 1226.
By the Bull Rex pacificus (1234) Gregory IX sent to the Universities
1 On the date of the Decretum, see Schulte, Geschichte der Quellen und Literatur
des canonischen Rechts von Gratian bis auf die Gegenwart, Vol. 1, p. 48.
CH. XXI.


## p. 714 (#760) ############################################

714
The Corpus iuris canonici
of Bologna and Paris a compilation of the decretals of Popes since the
completion of the Decretum of Gratian. This official compilation, known
as the Decretals of Gregory IX, or “Extra” (that is, “Decretales extra
Decretum vagantes”), and abbreviated as “X” (meaning "extra"), was in
reality a continuation of Gratian's Decretum, which now became in law
what it had always been in fact-an official Code of Canon Law. The
author of the Extra was Gregory IX's confessor, Raymond de Peñafort,
a Spaniard, who, following the arrangement of Justinian's Code, divided
the compilation into books, titles, and canons. Bernard of Parma, who
died in 1263, added glosses.
The Quinque Compilationes Antiquae were superseded by Gregory's
collection and by it deprived of all their authority.
(3) Boniface VIII collected in 1298 the decretals subsequent to the
Extra; and he published the new compilation in the manner adopted
previously by Gregory IX in the case of the Extra—by sending it to the
Universities of Bologna and Paris. Boniface VIII's collection constituted
the Sextus or Liber Sextus Decretalium, the five earlier books being those
embodied in the Extra. In 1348 the Sextus was glossed by Jean André.
(4) In 1313 Clement V published another collection of decretals,
including his own, which is known as the “Clementinae. " John XXII,
Clement's successor, recast the collection and sent it to the Universities
in 1317.
(5) The “Extravagantes", or the decretals omitted from the above-
mentioned compilation (“extra-vagantes”), are of two groups: (a) the
Extravagantes of John XXII (twenty constitutions), (b) the “Extra-
vagantes Communes,” including the decretals issued by various Popes, since
the publication of the Sextus, from Boniface VIII to Sextus IV (1484). The
collection of Extravagantes differs from the earlier ones just mentioned in
not being an official compilation. But it found its place in editions of the
Corpus iuris canonici; and, inasmuch as all its documents were authentic,
it was treated as if it were official.
As completed and closed by the Extravagantes, the Corpus iuris
canonici is thus composed of: (1) the Decretum Gratiani ; (2) the Decretals
of Gregory IX (Liber Extra); (3) Boniface VIII's Liber Sextus Decre-
talium; (4) the Clementinae; (5) the Extravagantes.
The term Corpus iuris canonici, used as the antithesis of the term
Corpus iuris civilis when applied to the whole of the Roman Law, is to
be met as early as the twelfth century. In the sixteenth century the term
acquired, however, a technical sense, being used to denote the entirety of
the five sets of texts already described. From 1563 to 1580 the correctores
romani, a commission of cardinals and scholars, worked at Rome in order
to form a better text than that of the manuscripts and publications
then in use. The results of the labours of the commission appeared in
1582, under the pontificate and by the orders of Gregory XIII, as the
official edition. Thus formed and completed under the direction of the


## p. 715 (#761) ############################################

Eastern and Western legal history
715
Church, the Corpus iuris canonici constitutes the ius novum as distinct from
the ius antiquum; and it is still the foundation of the Canon Law. The
complete body of Canon Law to-day includes also the ius novissimum, the
law that has been evolved since the Council of Trent (1545); but the ius
novissimum forms no part of the Corpus iuris canonici in its technical sense.
The gradual evolution of the law embodied in the Corpus iuris
canonici, a development extending through more than fifteen centuries of
the Christian era, is one of the outstanding features of ancient and
medieval history. It is an evolution comparable in many ways to the
slow growth of the law contained in Justinian's great codification and
later in the Corpus iuris civilis. With certain aspects of the medieval
history of the Canon Law we shall be concerned in later portions of this
chapter. We shall see how the Canon Law, as the law of the Church,
spread throughout the medieval world, how it influenced secular law and
juridical and political theory, how in short it became an integral and vital
part of medieval civilisation.
IV.
The history of Roman and Canon Law in the Middle Age falls
naturally into two main geographical divisions: the dividing line is
formed by the boundary between the East and the West. Although these
two parts of our history are closely related to each other—there are legal
influences and counter-influences that play back and forth between the
two vast provinces of Christendom—we must nevertheless study each part
singly ere we can see these relations in their true perspective and gain a
complete picture of the vast process of legal evolution in medieval Europe
as a whole. First of all, then, let us briefly survey the history of the
Roman and Canon Laws in their eastern home within the Later Roman
Empire.
Two events of the reign of Constantine the Great mark the definite
beginnings of the division of European legal history into its eastern and
its western parts. Each one of these events produced far-reaching and
lasting results within the domain of law; each one of them shaped and
transformed laws and customs in all parts of the world; each one of them
was a factor of the highest importance in the history of Roman and
Canon Law both in the East and in the West. The first of these two
events was Constantine's adoption of Christianity. Henceforth a new
order of ideas was given full play in all parts of the ancient world; and
these ideas moulded many of the processes of legal growth not only in
the period from Constantine to Justinian but throughout the medieval
era. The history of Roman and Canon Law among the Hellenised peoples
of the East and among the Germanic societies of the West displays in
many striking ways the after-influence of the recognition of Christianity
in the days of Constantine; and yet these after-influences in the East
differ markedly from those in the West. A second event of almost equal
CH. XXI.


## p. 716 (#762) ############################################

716
Roman and Canon Law in the East
significance in the history of law was the making of Byzantium a second
capital of the Roman Empire. The centre of gravity in the Empire had
been slowly shifting to the East for a considerable time before Constantine;
the establishment of Constantinople accelerated this process and gave to
the Eastern half of the world-wide imperial domain a definite preponder-
ance. With the loss of the Western provinces, caused by the expansion
of the Germanic peoples, the ancient Roman Empire persisted only in the
East. Until it finally succumbed to the power of the Ottoman Turks in
1453, this Later Roman Empire—this “Greek” or “Byzantine” Empire
-was the true Roman Empire, its Emperors being the legitimate
successors of Augustus in an unbroken line of continuity; and down at
least to the beginning of its decline in the middle of the eleventh century,
except in the lifetime of Charlemagne, it was the first political power in
Europe. This transference of the Roman Empire from the West to the
East led to legal as well as political results of the highest moment; some
of them are to be seen by a comparison of the history of Roman and Canon
Laws in their Eastern and in their Western environments.
As the heir of antiquity the Later Roman Empire became the true
guardian of the legal traditions of the ancient Empire. In the first half
of the sixth century these traditions were, in certain respects, maintained.
Justinian, the great codifier of the accumulated mass of Roman legal
materials derived from the past, was an Eastern Emperor; his codification
was made and promulgated in the East. What, it should now be asked,
was the fate of the law of Justinian in its Eastern home? Were the
ancient Roman legal traditions still further preserved ? Did the law
continue to develop in the spirit of the classical jurists? Was the East to
inherit the legal genius of the West? The answers to these questions are
of far more than ordinary historical interest.
Three main characteristics of the Later Roman Empire determined
the future course of legal history and gave to medieval Roman and Canon
Laws in this part of the world certain of their marked characteristics.
Whereas, throughout the greater part of its history, the ancient Empire
had been predominantly Western, Pagan, and Roman, the Later Roman
Empire down to its fall in 1453 was fundamentally Eastern, Christian, and
Greek. Here we may find the main key to the legal history of the East.
The general geographical situation of the Later Roman Empire, particu-
larly its proximity to the Slavs and Eastern peoples, and the social,
economic, and religious conditions of its several parts, were determining
factors in the evolution of the Roman and Canon Law within the imperial
frontiers. But this is only expressing in different terms the same cardinal
fact: the Empire was Eastern, Christian, and Greek, and its law evolved
along the lines of imperial development.
The history of the Justinianean law in the East may be sketched by
a brief consideration of the legal sources in the successive periods of
imperial history.


## p. 717 (#763) ############################################

Juristic studies. The 'Exloyń
717
Justinian declared that his codification was to be the sole statement
of the law; nothing outside it was to be regarded. In case of need, resort
could be had only to the Emperor himself, inasmuch as he was the sole
source of the law. The Emperor authorised literal translations into
Greek, indexes, and mapátitra or summaries of parallel passages or
titles; the writing of commentaries and general summaries, as an inter-
ference with the Emperor's prerogative of interpretation, was sternly
forbidden. But despite these prohibitions-prohibitions designed to
restrict the law to the imperial law-books—notes, abridgments, excerpts,
general summaries, and commentaries appeared even in Justinian's own
lifetime and for half a century thereafter. These writings appear to have
been intended chiefly for use in the law schools; most of them were
prepared by professors (antecessores). Soon, however, they were in the
hands of practitioners and judges; and they thus came into general use.
One of the best known of these writings is the Greek Paraphrase of
the Institutes, which has survived in various manuscripts. It is usually
attributed to Theophilus, one of Justinian's commissioners and a
professor in the law school of Constantinople; but Ferrini, its latest
editor, holds that the authorship of Theophilus rests on inadequate
evidence. He contends that the work is a reproduction of Gaius in Greek,
that it was originally drawn up at Beyrout, that it was remodelled at a
later time on the plan, and with some of the matter, of Justinian's
Institutes. The Paraphrase of the Institutes formed the subject matter
of commentaries by Dorotheus and Stephanus; while commentaries on
Justinian's Digest, Code, and Novels, written by various Eastern jurists,
also appeared.
This period of the jurists' study of Justinian's codification soon came
to an end. The codification itself had been rendered into Greek and had
formed the basis of scholarly, literary treatment; but, once that had been
accomplished, juristic studies rapidly decayed. During the profound social
disturbances of the seventh century the law-books of Justinian seem to
have been hardly understood. The practice of the courts was largely
influenced by Greek Christian ideas and ecclesiastical canons; and, with
the decline of Roman traditions, these influences shaped legal growth and
gave character to the period of legislative activity in the eighth century.
Within the domain of legislation the outstanding feature of the century
was the appearance of the 'Exhoyń of Leo the Isaurian (740), an abstract
of the whole codification of Justinian as amended and rearranged in
accordance with Greek and Christian ideas of the time. The legislation
of Leo represents indeed a wide departure from the Justinianean rules and
principles in nearly every branch of the law, a departure so coloured by
ecclesiastical notions of justice that the 'Eklyn itself has been called a
Christian law-book. Thus, for example, while Justinian treated marriage
as a contract, dissoluble at the will of the parties, Leo III introduced the
Church's doctrine that marriage was an indissoluble bond. The period of
CH. XXI.


## p. 718 (#764) ############################################

718
The Basilics
the Isaurian (Syrian) and Phrygian (Amorian) Emperors (717-867) was
a time in which the law was developed through practice away from the
Justinianean model and little or no thought was given to scientific legal
studies.
At the beginning of the period of the Macedonian dynasty (867–1057)
a great change took place. Basil I (867-886) and his son Leo the
Philosopher (886-912), at the end of the ninth and beginning of the
tenth centuries, pursued the policy of a return to Justinian's law and a
revival of legal studies. Basil repealed the 'Exhoryń of Leo the Isaurian as
a departure from Justinian's law which it professed to summarise; and he
set himself to the task of producing an authoritative Greek version of the
whole of the Justinianean codification, but with the omission of obsolete
matter and the introduction of the most desirable parts of the legislation
enacted since the death of Justinian. The legal materials were subjected
to a treatment somewhat similar to that accorded by Justinian and his
commissioners in their day to the writings of the classical jurists and the
other accumulated sources. The first result of the new legislative policy
was Basil's issue in 879 of a kind of institutional work entitled ó apóxelpos
vóuos (“the law as it is "), composed of extracts from Justinian's Institutes,
Digest, and Code. This handbook was revised and republished by Leo
under the title 'Etavaywyn toù vópou. The main work of the Emperors,
however, was the famous Basilics (Tà Baoiliká), a collection of all the
laws of the Empire, prepared by legal commissioners. They were begun
in the time of Basil and completed under Leo.
The Basilics are composed of sixty books, subdivided into titles, in
accordance with the general plan of Justinian's Codex. Within this
framework the law on any particular subject, whether derived from
Justinian's Institutes, Digest, Code, or Novels, is arranged consecutively.
The so-called mapaypapai TÔV Talaiw is an addition to the Basilics,
consisting of an official commentary collected from the writings of the
sixth-century jurists, published by Leo's son, Constantinus Porphyro-
genitus. This work, now referred to as the scholia to the Basilics, has
proved of great value to modern civilians in their work of reconstructing
the Roman legal texts. Annotations by jurists of the tenth, eleventh, and
twelfth centuries, also referred to as scholia, are of less value. In many
points of civil as distinct from criminal law the Basilics discard the rules
of the Ecloga in favour of those to be found in the Justinianean codifica-
tion. An example of this tendency of the Basilics is to be found in their
revival of Justinian's law of divorce, with the result that in the East there
thus arose in respect of this matter a contradiction between the Civil and
the Canon Law. Although the Basilics retained their statutory authority
down to the fall of the Byzantine Empire in 1453, they had long before
that time been neglected in practice.
The Basilics were in fact the one really great codification of Graeco-
Roman Law in the Later Roman Empire after the time of Justinian; the


## p. 719 (#765) ############################################

Graeco-Roman Law
719
successors of Basil the Macedonian and Leo the Philosopher did not
legislate on a grand scale. Somewhat more than a century after Leo there
was, however, a marked revival of juristic studies under Constantine IX
(1042–1054), who founded a new law-school. Many jurists continued
down to the fall of the Empire to write commentaries, epitomes, and
compendia; but of these jurists only John Xiphilin, Theodore Balsamon,
and Constantinus Harmenopulus, of the eleventh, twelfth, and fourteenth
centuries respectively, need be mentioned here. The decadence of juristic
studies is represented in a striking way by the 'Exáßißros of Harmeno-
pulus, a work which appeared about 1345, and which Bruns has
characterised as “a miserable epitome of the epitomes of epitomes. ”
The inner history of the Byzantine or Graeco-Roman Law—the
history, that is, of its rules and principles, as distinct from the history of
its sources and general development—is of more than usual interest to
the student of the medieval history of Roman Law in central and western
Europe. It shews him how the Justinianean law, as embodied in the
Institutes, Digest, Code, and Novels, further developed under Eastern
conditions; and it thus gives him an opportunity to compare contem-
porary development in the Germanic West. By means of comparison he
is enabled to see clearly the similarities and the differences between the
two evolutionary processes, and to study the underlying social, economic,
religious, and political causes which produce divergence and convergence
in legal growths. Of special interest is a comparison of legal medievalism
in East and in West; for the Byzantine regions, no less than the
Romano-Germanic regions of the West, passed through corresponding
stages of medieval growth in the domain of law. The medieval legal
development of the East, from the sixth to the ninth century, is
interrupted by a restoration of the Justinianean law which corresponds in
some ways to the revival of the study and influence of that law in Italy
and Western Europe from the time of the Glossators to the Reception.
Only by bringing into our studies both the Eastern and the Western
modes and processes of legal growth, decay, and revival, together with
their background of racial, social, and political conditions, ever changing
and ever acquiring new colours drawn from the life of civilisation itself,
can we hope fully to grasp the nature and significance of the vaster
movements in medieval legal history.
In certain parts of Eastern Europe, Graeco-Roman Law survived
the fall of the Byzantine Empire and the vicissitudes of the following
centuries. The civil code of Moldavia, published in 1816-17, is a
codification of Byzantine Law. The civil law of modern Greece is also
largely indebted to it. The Basilics were sanctioned as law in 1822, but
were displaced in 1835 in favour of the epitome of Harmenopulus;
although in framing her civil code Greece followed the Napoleonic code
as her model, she professes nevertheless to base the law in theory upon
the edicts of the Emperors as embodied in this “miserable epitome of the
CH. XXI.


## p. 720 (#766) ############################################

720
Greek Canon Law
epitomes of epitomes” written by Harmenopulus. In his Geschichte des
griechisch-römischen Rechts Zachariä von Lingenthal expresses a most
favourable opinion of the Moldavian code of Byzantine law; and he
regrets that Greece did not adopt it as the basis of her own codification.
In an earlier part of this chapter reference has already been made
to the growth of Greek Canon Law during the Middle Ages. Here it is
only necessary to observe that the relation between Graeco-Roman Civil
Law and Greek Canon Law was very close. Under ecclesiastical influence
many of the texts of the Civil Law—the 'Exhoyń, for example—were
permeated with the principles of canonical jurisprudence. The evolution
of the ecclesiastical law itself was due in large measure to the work of
the Emperors. The two bodies of law developed side by side as two
aspects of the same historical process. The so-called Nomocanons
illustrate this. In these great compilations the imperial civil laws and
the ecclesiastical canons on each subject were placed side by side and
contrasted. Jurists abridged these compilations and also recast them in
systematic treatises (syntagmata).
The Nouokaváv of John of Antioch,
a learned priest made Patriarch of Constantinople by Justinian in 564,
was revised and enlarged by Photius and published under Basil in 883.
Many of the jurists were as good canonists as civilians. Among the
most distinguished canonists were John Zonaras and Theodore Balsamon,
both of the twelfth century.
V.
Let us turn our attention from the East to the West. In this part
of the medieval world the background of the history of Roman and
Canon Law is formed by three vast processes : the decay and fall of the
Western Roman Empire; the expansion of the Germanic peoples and
the establishment of their several kingdoms; the growth of the Church
and of its law. With the history of the Canon Law itself in the Germanic
era—the history of its sources and constituent elements—we are not now
immediately concerned; but it should be noted that, as the Church
developed, its law also developed and that the ecclesiastical courts of
Western Christendom everywhere enforced it. Our present object of study
is the part played by the Roman and the Canon Law in the life of the
Germanic kingdoms during the period of the decay and fall of the
Western Roman Empire. What was the influence of those laws on the
legislation of the barbarians ?
The establishment of the Germanic kingdoms within the Western
provinces of the Empire brought Roman Law and Germanic Law face to
face. The problem as to which of these two bodies of law should govern
was solved by the Germanic rulers on the principle which had already
been followed by Rome in meeting a similar problem raised by the spread
of Roman power and Roman Law to regions inhabited by non-Roman


## p. 721 (#767) ############################################

Leges romanae and leges barbarorum
721
peoples. On the principle of the personality of lawl the Germanic rulers
allowed the Roman population to live under Roman Law and the Ger-
manic population to live under their own native laws and customs. There
were exceptions to this principle, as we shall see; but, in general, it long
governed Germanic legislative policy and judicial practice.
Owing to the personality of law the written laws of the Germanic
kingdoms were of two main kinds: the so-called leges romanae, intended
for the Roman population; and the so-called leges barbarorum, de-
signed for the Germanic population. Apart from these there were the
Capitularies of the Fraukish imperial rulers. Our study must now be
directed to a brief consideration of these three sorts of Germanic legis-
lation.
In 506 Alaric II, King of the West Goths, gave his Roman subjects
their own code of laws, the Lex Romana Visigothorum, known also as the
Breviarium Alaricianum; and this proved to be the most important of
all the leges romanae of the Germanic realms. Alaric's purpose was to
epitomise the leading rules of practice and thus to remove the prevailing
confusion and uncertainty due to the many texts of Roman Law then in
use. The commission of jurists appointed by the king for the execution
of this purpose proceeded upon a plan similar to that adopted by the
lawyers of Justinian's commission at a later time. Unlike the compilers
of the Justinianean legislation, however, Alaric's commissioners neither
altered nor mutilated the passages of the texts which they chose; they
simply deleted those portions of the texts which were no longer appro-
priate to the social conditions then existing. In selecting texts they drew
upon both the ius and the lex of the Roman system. From the ius they
adopted the liber Gai, a condensed re-statement or compendium of the
Institutes of Gaius which had been designed for employment in court
practice and much used in Roman schools of the fourth and fifth cen-
turies; and they also selected portions of the Sententiae of Paulus as well
as a passage from the Responsa of Papinian. From the lex the com-
missioners took over by far the greater part of the Codex Theodosianus,
as well as the Novels of Theodosius, Valentinian III, Marcian, Majo-
rian, and Severus, and some constitutions from the private compilations
known as the Codex Gregorianus and the Codex Hermogenianus. The
compilers also incorporated in Alaric's Breviary an official but worthless
interpretatio of all its parts except the liber Gai; the latter text, having
been originally adapted to practical use, needed no further commentary.
The interpretatio was not composed, as sometimes thought, by the Gothic
compilers of the Breviary; it was drawn from writings of Roman Law
teachers of the later period of the Empire in which the earlier texts had
been adapted to the conditions then prevailing. When the commissioners
But compare Bruns-Pernice-Lenel, Geschichte und Quellen des römischen
Rechts, $ 73 (Holtzeudorff, Encyklopädie der Rechtswissenschaft, 6th edn, by Kohler,
Vol. 1).
1
C. MED, H. VOL. V. CH. XXI.
46


## p. 722 (#768) ############################################

722 Alaric's Breviary. Lex Romana Burgundionum
had completed their task, the Breviary was approved by the popular
assembly at Aire in Gascony in the year 506; and it was then pro-
mulgated by the king as the sole code for his Roman subjects. Hence-
forth all other Roman laws were to be ignored.
Alaric's Breviary represents in a striking manner the decay of Roman
Law in the West? At best it is a crude and incomplete compilation if
we compare it with the codification prepared in the East by Justinian's
commission a short time afterwards. But we must not forget that it was
the work of a barbarian king and as such a rather remarkable achieve-
ment; and it certainly possessed the merit of being adapted to the social
needs of the debased Roman population of Alaric's kingdom. Besides,
it helped to preserve some of the texts of Roman Law in a part of the
old Roman world largely submerged by Germanic barbarians; and it
also exerted an influence on the later development of Roman Law in the
West which entitles it to a conspicuous place in European legal history.
In many parts of Western Europe the Breviary maintained a high
authority throughout the Middle Age.
Attention should also be drawn to the lex romana of the Burgundians.
Gundobad, King of the Burgundians (474–516), promulgated two law-
books for his subjects. The so-called Lex Gundobada was a collection of
royal ordinances, issued about the year 495, applicable to the Burgundians
and intended also to govern the legal relations between the Burgundians
and the Romans. But by issuing the Lex Gundobada the king did not
deprive his Roman subjects of the privilege of living under the Roman
Law; in fact he promised and gave them a Roman code of their own.
This code, the so-called Lex Romana Burgundionum, embraces criminal,
private, and procedural law. It was intended as an instruction to judges
and not as a complete codification of the Roman Law; Roman Law not
included in the Lex Romana Burgundionum continued to have validity.
The sources upon which the code is based are the three Codices”, the
Sententiae of Paul, a writing by Gaius (apparently the Institutes), and
school interpretations. After the Frankish conquest the Breviarium
Alaricianum was used to enlarge or supplement the Lex Romana Bur-
gundionum. Owing to the fact that Alaric's Breviary and the Lex Romana
Burgundionum were often placed together in manuscripts, a stupid mis-
take arose as early as the ninth century. A short passage from Papinian's
Responsa formed the conclusion of the Breviary. Hence it was thought
that the Lex Romana Burgundionum, which immediately followed the
Breviary in the manuscripts, was merely a continuation of the passage
from Papinian. The Lex Romana Burgundionum itself thus came to be
known as the “ Papian," an abbreviation for Papinian: a designation
which, despite the fact that it had and has no meaning, still persists in
legal literature.
1 Cf. Vinogradoff, Roman Law in Mediaeval Europe, pp. 6–12.
Gregorianus, Hermogenianus, and Theodosianus.
2


## p. 723 (#769) ############################################

Edictum Theoderici
723
The Edictum Theoderici holds a special place among the Germanic
leges which we are studying. In establishing his Ostrogothic kingdom
in Italy (493) Theodoric had no intention of obliterating the Roman Law.
He differed indeed from other Germanic rulers in making the preservation
of the unity of the Roman Empire a cardinal feature of his policy; and
many of his constitutional and legal arrangements were based on this
conception. The Goths lived in accordance with their own laws, the
Romans by Roman Law; while disputes between Goths and Romans
were settled in accordance with Roman Law. The Edictum Theoderici,
promulgated probably between the years 511 and 515, arose out of these
conditions. It was based on Roman legal materials, chiefly the three
Codices, the writings of Paul, and interpretations; but it contained also
new rules. It was designed as a means of preventing or settling dis-
putes between Goths and Romans, and was applied to both peoples
alike.
The Lombards differed from the Ostrogoths in their determination
to preserve intact their own Germanic institutions. When they became
masters of northern Italy (568), they treated the Romans as a conquered
people and completely set aside Roman administrative arrangements. To
the Romans as well as to the Lombards Germanic constitutional law was
applied; Germanic law also governed the relations of Romans with
Lombards. To the relations of Roman with Roman, as well as to matters
of Roman family relationship and inheritance, the Roman Law seems,
however, to have been applied. The Lombard Law itself was preserved in
its Germanic purity, free from Roman legal influence, down to the middle
of the seventh century (Edictum Rotharis). Not until the extension and
strengthening of the Empire was Roman influence noticeable: as, for
instance, in documents. After Charlemagne, in alliance with the Pope,
had succeeded in subjugating the Lombards, the Frankish principle of
the personality of law—the principle that each people should live under
its own laws—was applied; and the Roman Law thus came into full force
for Romans in Lombardy.
Although no special code or law-book was promulgated for the Romans
within the Frankish realm in northern France, they lived, nevertheless,
under Roman Law. From the sixth to the tenth century the Visigothic
Breviary of Alaric was used in practice within this region as the general
source of the Roman Law; but it was never given real statutory authority.
In the north the Roman population seems indeed to have been of far
smaller proportions than that of southern France. As a result, the
Germanic customary law was of predoniinant importance in the north,
while in the more Romanised south it played a lesser rôle, Roman Law
being more generally applied. This early difference lies at the foundation
of the later distinction between northern and southern France as the
pays du droit coutumier and the pays du droit écrit'.
1 See pp. 749-50, infra.
CH. XXI.
46-2


## p. 724 (#770) ############################################

724
Lex Romana canonice compta
It is to be observed, finally, that the Church as a juristic person or
institution—although not the clergy as individuals—was judged by
Roman Law in accordance with the principle ecclesia vivit lege Romana.
This principle was embodied in the earliest Germanic folk-laws; and the
reason for its firm establishment among the Germanic peoples is that
the Catholic Church had been derived from the Roman Empire and
hence had been maintained as a Roman institution. In the legal writings
and decisions, as well as in the collections of ecclesiastical law, the
validity of Roman Law seems to have been at all times assumed; the
principle ecclesia vivit lege Romana seems indeed never to have been
contested. In the earlier medieval period the chief source of the Roman
Law as applied to the Church was Alaric's Breviary ; while from the ninth
century onwards Justinian's Institutiones, Codex, and Novellae were also
in use. Not until the eleventh century were the Pandectae of Justinian
similarly applied to the Church.
Especially illuminating as one of the main sources of Roman Law in
the early Middle Age is the Lex Romana canonice compta, a collection
of Justinianean materials for ecclesiastical use dating from the ninth
century and originating, to all seeming, in Italy? The chief materials
upon which the compiler has drawn are Justinian's Institutiones and
Codex and the collection of Novels known as Iuliani epitome Novellarum? .
These materials the compiler has arranged, in general, according to their
subject-matter; but it is difficult, as Maassen points out, to find in the
collection a systematic plan consistently carried out. Materials of hete-
rogeneous content are sometimes thrown in at places where one would
least expect to find them. The Lex Romana canonice compta not only
served a practical purpose in providing ecclesiastics with rules of Roman
Law that might be useful to them, but it also helped to preserve the
texts of the Justinianean law for the employment of future generations.
Furthermore, it was one of the many Roman legal materials of the
Middle Age which influenced the growth of the Canon Law. Towards
the end of the ninth century it was drawn upon by the compiler of the
collection of canons that was dedicated to Archbishop Anselm of
Milan.
The leges romanae of the Germanic kingdoms hold a special place of
their own in the history of Roman Law in the Middle Ages. They repre-
sent the decay and barbarisation of the law in the West ; but at the
same time they represent the salvage of a part of the ancient legal culture
1 See the account given by Maassen, Geschichte der Quellen und der Literatur des
canonischen Rechts, Vol. 1, pp. 888–896.
? See Krüger, Geschichte der Quellen und Litteratur des römischen Rechts, pp. 355,
384.
3 On other collections of Roman Law for ecclesiastical use, notably the Mosaïcarum
et Romanorum legum Collatio and the Excerpta of Bobbio, see Tardif, Histoire des
Sources du Droit Canonique, pp. 266-269.


## p. 725 (#771) ############################################

The Germanic codes
725
of the Romans in the midst of the vast disturbance and transformation
of European society in the early medieval centuries. The leges romanae
were themselves teachers of Roman legal ideas to the Germanic peoples ;
they helped to prepare the way for the fusion of Roman and Ger-
manic laws in the legal systems of later times throughout many parts of
Europe.
More significant still, from the point of view of Roman and Canonical
legal influence on Germanic law, are the so-called leges barbarorum.
During the period from the fall of the Western Roman Empire to
the beginning of the ninth century the various Germanic peoples who
settled within the former provinces of the Empire put their ancient tribal
customs, or at least a part of them, into writing juxta exemplum Roman-
orum. It seems to have been feared that unless the customs were reduced
to writing they would suffer in their competition with the more highly
developed system of Roman Law. Thus, in addition to the leges romanae,
the codes for the Romans in the various Germanic states, there arose
many Germanic popular codes, the so-called leges barbarorum. Many of
these codes of Germanic law bear marks of Roman and ecclesiastical legal
influence, not alone in their form but also in their substance. Although
originally the enactments of popular assemblies, they shew an increasing
influence of Rome in that the king acquires more and more power in
legislation ; his share in the making of the codes tends ever to increase.
Some of the terms applied to the codes, such as edictum and decretum,
are merely copied from the phraseology of Roman Law; but certain of
the codes, particularly those in which the people took but a slight share
as compared with that of the king, shew distinct Roman influence in
their subject-matter. Apart from the laws of the Anglo-Saxons, which
are in the native language of the folk, all of the leges barbarorum are in
Latin-not the classical, but the low Latin from which in due time the
Romance languages developed ; and this use of Latin is a testimony to
the influence of Rome upon Germanic law. Many of the codes shew a
mixture not only of Germanic and Roman elements, but also a mingling
of two or more Germanic systems due to migrations and various counter-
influences.
It is usual to classify the codes in four groups; but this and all other
classifications, particularly those based on resemblances and differences,
must be treated with some caution. On the four-fold classification, the
Gothic group includes the Visigothic and the Burgundian codes; the
Frankish group embraces the Salic, Ripuarian, Chamavian, and Thurin-
gian codes; the Saxon codes include the Saxon, the Anglo-Saxon, and
the Frisian; in the Swabian group are the Alemannic code and its off-
shoot the Bavarian code. The Lombard code is sometimes classed with
those of the Saxon group; but in many ways it occupies a distinct place
of its own.
The codes of the Burgundians and the Visigoths are of special interest
CH. XXI.


## p. 726 (#772) ############################################

726
Burgundian and Visigothic codes
from the point of view of Roman influence. Both the Burgundians and
the Visigoths had formed kingdoms under the Roman Empire before its
fall; and both peoples were deeply Latinised and under the strong in-
fluence of the Roman Law. The result is to be seen in their codes, which
are attempts to formulate complete systems covering both public and
private law, after the Roman fashion, in contrast with the usual Germanic
compilation of a limited number of the most important rules. In sub-
stance, also, the codes of the Burgundians and the Visigoths shew marked
features of Roman origin. The deep imprint of Roman Law on these
codes in large measure explains the distinct characteristics of later legal
growth in the southern provinces of Gaul—lower France and upper Italy;
for, in contrast with the Germanic character of legal growth in the
northern part of Gaul, the law in the southern parts was, in a very
marked degree, of Roman derivation.
It has already been observed that the Burgundian code of King
Gundobad (474-516), known as the Lex Gundobada, was applicable to
Burgundians and Romans alike in their inter-relations, the Roman Law
being left in force for the Romans as their personal law. Roman influence
upon Gundobad and his successors is to be seen in various ways, not least
in the fact that, like the Roman Emperors, they issued decrees supple-
mentary to the Lex Gundobada which were known in Roman fashion as
novellae. Even after the fall of the Burgundian kingdom (534), the code
still possessed validity under Frankish rule as the personal law of the
Burgundians.
The Visigothic code, more important than that of the Burgundians,
passed through two distinct stages of evolution. As the so-called Antiqua,
the code contained laws of King Euric (466-483), the first of the Ger-
manic rulers to give written laws to his people, with revisions and
enlargements by Leovigild (569–586) and Recared (586-601). The
Antiqua influenced the Salic, Burgundian, Lombard, and Bavarian codes;
and it continued to be the fundamental law of the Visigothic kingdom
until changed social conditions necessitated a radical legal reform, re-
sulting in the second Visigothic code, the one known as the Leges
Visigothorum. Two main factors produced this code: the ever-increasing
power of the Church and the slow but well-nigh complete fusion of the
Germanic and Roman populations into one people. Owing especially to
the latter fact, the existence of two distinct legal systems-the Antiqua
for the Visigoths and the Lex Romana Visigothorum (Breviarium Alari-
cianum) for the Romans—became an anachronism. 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.