No More Learning

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. 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.