The language of the ancient jurists was to be preserved even critically, that is to say, the compilers were directed to emend apparent errors and restore what seemed “verum et optimum et quasi ab initio scriptum.” It was not the least of the providential mercies connected with the compilation of this great body of jurisprudential law, that Justinian and his commission did not abandon the phrasing of the old jurisconsults, and restate their opinions in such language as we have a sample of in the constitution from which the above extract is taken. This jurisprudential part of Justinian’s Codification was named the Digest or Pandects.[359]

Inasmuch as Justinian’s brief reconquest of western portions of the Roman Empire did not extend north of the Alps, his codification was not promulgated in Gaul or Germany. Even in Italy his legislation did not maintain itself in general dominance, especially in the north where the Lombard law narrowed its application. Moreover, throughout the peninsula, the Pandects quickly became as if they were not, and fell into desuetude, if that can be said of a work which had not come into use. This body of jurisprudential law was beyond the legal sense of those monarchically-minded and barbarizing centuries, which knew law only as the command of a royal lawgiver. The Codex and the Novellae were of this nature. They, and not the Digest, represent the influence upon Italy of Justinian’s legislation until the renewed interest in jurisprudence brought the Pandects to the front at the close of the eleventh century. But Codex and Novellae were too bulky for a period that needed to have its intellectual labours made easy. From the first, the Novellae were chiefly known and used in the condensed form given them in the excellent Epitome of Julianus, apparently a Byzantine of the last part of Justinian’s reign.[360] The cutting down and epitomizing of the Codex is more obscure; probably it began at once; the incomplete or condensed forms were those in common use.[361]

It is, however, with the Theodosian Code and certain survivals of the works of the great jurists that we have immediately to do. For these were the sources of the codes enacted by Gothic and Burgundian kings for their Roman or Gallo-Roman subjects. Apparently the earliest of them was prepared soon after the year 502, at the command of Gondebaud, King of the Burgundians. This, which later was dubbed the Papianus,[362] was the work of a skilled Roman lawyer, and seems quite as much a text-book as a code. It set forth the law of the topics important for the Roman provincials living in the Burgundian kingdom, not merely making extracts from its sources, but stating their contents and referring to them as authorities. These sources were substantially the same as those used by the Visigothic Breviarium, which was soon to supersede the Papianus even in Burgundy.

Breviarium was the popular name of the code enacted by the Visigothic king Alaric II. about the year 506 for his provinciales in the south of Gaul.[363] It preserved the integrity of its sources, giving the texts in the same order, and with the same rubrics, as in the original. The principal source was the Theodosian Code; next in importance the collections of Novellae of Theodosius and succeeding emperors: a few texts were taken from the Codes of “Gregorianus” and “Hermogenianus.” These parts of the Breviarium consisted of leges, that is, of constitutions of the emperors. Two sources of quite a different character were also drawn upon. One was the Institutes of Gaius, or rather an old epitome which had been made from it. The other was the Sententiae of Paulus, the famous “Five Books of Sentences ad filium.” This work of elementary jurisprudence deserved its great repute; yet its use in the Breviarium may have been due to the special sanction which had been given it in one of the constitutions of the Theodosian Code, also taken over into the Breviarium: “Pauli quoque sententias semper valere praecipimus.”[364] The same constitution confirmed the Institutes of Gaius, among other great jurisconsults. Presumably these two works were the most commonly known as well as the clearest and best of elementary jurisprudential compositions.

An interesting feature of the Breviarium, and destined to be of great importance, was the Interpretatio accompanying all its texts, except those drawn from the epitome of Gaius. This was not the work of Alaric’s compilers, but probably represents the approved exposition of the leges, with the exposition of the already archaic Sentences of Paulus, current in the law schools of southern Gaul in the fifth century. The Interpretatio thus taken into the Breviarium had, like the texts, the force of royal law, and soon was to surpass them in practice by reason of its perspicuity and modernity. Many manuscripts contain only the Interpretatio and omit the texts.

The Breviarium became the source of Roman law, indeed the Roman law par excellence, for the Merovingian and then the Carolingian realm, outside of Italy. It was soon subjected to the epitomizing process, and its epitomes exist, dating from the eighth to the tenth century: they reduced it in bulk, and did away with the practical inconvenience of lex and interpretatio. Further, the Breviarium, and even the epitomes, were glossed with numerous marginal or interlinear notes made by transcribers or students. These range from definitions of words, sometimes taken from Isidore’s Etymologiae, to brief explanations of difficulties in the text.[365] In like manner in Italy, the Codex and Novellae of Justinian were, as has been said, reduced to epitomes, and also equipped with glosses.

These barbaric codes of Roman law mark the passage of Roman law into incipiently mediaeval stages. On the other hand, certain Latin codes of barbarian law present the laws of the Teutons touched with Roman conceptions, and likewise becoming inchoately mediaeval.

Freedom, the efficient freedom of the individual, belongs to civilization rather than to barbarism. The actual as well as imaginary perils surrounding the lives of men who do not dwell in a safe society, entail a state of close mutual dependence rather than of liberty. Law in a civilized community has the twofold purpose of preserving the freedom of the individual and of maintaining peace. With each advance in human progress, the latter purpose, at least in the field of private civil law, recedes a little farther, while the importance of private law, as compared with penal law, constantly increases.

The law of uncivilized peoples lacks the first of these purposes. Its sole conscious object is to maintain, or at least provide a method of maintaining peace; it is scarcely aware that in maintaining peace it is enhancing the freedom of every individual.

The distinct and conscious purpose of early Teutonic law was to promote peace within the tribe, or among the members of a warband. Thus was law regarded by the people—as a means of peace. Its communication or ordainment might be ascribed to a God or a divine King. But in reality its chief source lay in slowly growing regulative custom.[366] The force of law, or more technically speaking the legal sanction, lay in the power of the tribe to uphold its realized purpose as a tribe; for the power to maintain its solidarity and organization was the final test of its law-upholding strength.

Primarily the old Teutonic law looked to the tribe and its sub-units, and scarcely regarded the special claims of an individual, or noticed mitigating or aggravating elements in his culpability—answerability rather. It prescribed for his peace and protection as a member of a family, or as one included within the bands of Sippe (blood relationship); or as one of a warband or a chief’s close follower, one of his comitatus. On the other hand, the law was stiff, narrow, and ungeneralized in its recognized rules. The first Latin codifications of Teutonic law are not to be compared for breadth and elasticity of statement to the Law of the Twelve Tables. And their substance was more primitive.[367]

The earliest of these first codifications was the Lex Salica, codified under Clovis near the year 500. Unquestionably, contact with Roman institutions suggested the idea, even as the Latin language was the vehicle, of this code. Otherwise the Lex Salica is un-Christian and un-Roman, although probably it was put together after Clovis’s baptism. It was not a comprehensive codification, and omitted much that was common knowledge at the time; which now makes it somewhat enigmatical. One finds in it lists of thefts of every sort of object that might be stolen, and of the various injuries to the person that might be done, and the sum of money to be paid in each case as atonement or compensation. Such schedules did not set light store on life and property. On the contrary, they were earnestly intended as the most available protection of elemental human rights, and as the best method of peaceful redress. The sums awarded as Wergeld were large, and were reckoned according to the slain man’s rank. By committing a homicide, a man might ruin himself and even his blood relatives (Sippe) and of course on failure to atone might incur servitude or death or outlawry.

The Salic law is scarcely touched by the law of Rome. From this piece of intact Teutonism the codes of other Teuton peoples shade off into bodies of law partially Romanized, that is, affected by the provincialized Roman law current in the locality where the Teutonic tribe found a home. The codes of the Burgundians and the Visigoths in southern France are examples of this Teutonic-Romanesque commingling. On the other hand, the Lombard codes, though later in time, held themselves even harshly Teutonic, as opposed to any influence from the law of the conquered Italian population, for whom the Lombards had less regard than Burgundians and Visigoths had for their subject provincials. Moreover, as the Frankish realm extended its power over other Gallo-Teuton states, the various Teuton laws modified each other and tended toward uniformity. Naturally the law of the Franks, first the Salic and then the partly derivative Ribuarian code, exerted a dominating influence.[368]

These Teuton peoples regarded law as pertaining to the tribe. There was little conscious intention on their part of forcing their laws on the conquered. When the Visigoths established their kingdom in southern France they had no idea of changing the law of the Gallo-Roman provincials living within the Visigothic rule; and shortly afterwards, when the Franks extended their power over the still Roman parts of Gaul, and then over Alemanni, Burgundians, and Visigoths, they likewise had no thought of forcing their laws either upon Gallo-Romans or upon the Teuton people previously dominant within a given territory. This remained true even of the later Frankish period, when the Carolingians conquered the Lombard kingdom in upper Italy.

Indeed, to all these Teutons and to the Roman provincials as well, it seemed as a matter of course that tribal or local laws should be permitted to endure among the peoples they belonged to. These assumptions and the conditions of the growing Frankish Empire evoked, as it were, a more acute mobilization of the principle that to each people belonged its law. For provincials and Teuton peoples were mingling throughout the Frankish realm, and the first obvious solution of the legal problems arising was to hold that provincials and Teutons everywhere should remain amenable and entitled to their own law, which was assumed to attend them as a personal appurtenance. Of course this solution became intolerable as tribal blood and delimitations were obscured, and men moved about through the territories of one great realm. Archbishop Agobard of Lyons remarks that one might see five men sitting together, each amenable to a different law.[369] The escape from this legal confusion was to revert to the idea of law and custom as applying to every one within a given territory. The personal principle gradually gave way to this conception in the course of the ninth, tenth, and eleventh centuries.[370] In the meanwhile during the Merovingian, and more potently in the Carolingian period, king’s law, as distinguished from people’s law, had been an influence making for legal uniformity throughout that wide conglomerate empire which acknowledged the authority of the Frankish king or emperor. The king’s law might emanate from the delegated authority, and arise from the practices, of royal functionaries; it was most formally promulgated in Capitularies, which with Charlemagne reach such volume and importance. Some of these royal ordinances related to a town or district only. Others were for the realm, and the latter not only were instances of law applying universally, but also tended to promote, or suggest, the harmonizing of laws which they did not modify directly.

III

The Roman law always existed in the Middle Ages. Provincialized and changed, it was interwoven in the law and custom of the land of the langue d’oc and even in the customary law of the lands where the langue d’oil was spoken. Through the same territory it existed also in the Breviarium and its epitomes. There was very little of it in England, and scarcely a trace in the Germany east of the Rhine. In Italy it was applied when not superseded by the Lombard codes, and was drawn from works based on the Codex and Novels of Justinian. But the jurisprudential law contained in Justinian’s Digest was as well forgotten in Italy as in any land north of the Alps, where the Codification of Justinian had never been promulgated. The extent to which the classic forms of Roman law were known or unknown, unforgotten or forgotten, was no accident as of codices or other writings lost accidentally. It hung upon larger conditions—whether society had reached that stage of civilized exigency demanding the application of an advanced commercial law, and whether there were men capable of understanding and applying it. This need and the capacity to understand would be closely joined.[371]

The history of the knowledge and understanding of Roman law in the Middle Ages might be resolved into a consideration of the sources drawn upon, and the extent and manner of their use, from century to century. In the fifth century, when the Theodosian Code was promulgated, law was thought of chiefly as the mandate of a ruler. The Theodosian Code was composed of constitutiones principum. Likewise the Breviarium, based upon it, and other barbarian codes of Roman law, were ordained by kings; and so were the codes of Teutonic law. For law, men looked directly to the visible ruler. The jus, reasoned out by the wisdom of trained jurists, had lost authority and interest. To be sure, a hundred years later Justinian’s Commission put together in the Digest the body of jurisprudential law; but even in Italy where his codification was promulgated, the Digest fell still-born. Never was an official compilation of less effect upon its own time, or of such mighty import for times to come.

The Breviarium became par excellence the code of Roman law for the countries included in the present France. With its accompanying Interpretatio it was a work indicating intelligence on the part of its compilers, whose chief care was as to arrangement and explanation. But the time was not progressive, and a gathering mental decadence was shown by the manner in which the Breviarium was treated and used, to wit, epitomized in many epitomes, and practically superseded by them. Here was double evidence of decay; for the supersession of such a work by such epitomes indicates a diminishing legal knowledge in the epitomizers, and also a narrowing of social and commercial needs in the community, for which the original work contained much that was no longer useful.

There were, of course, epitomes and epitomes. Such a work as the Epitome Juliani, in which a good Byzantine lawyer of Justinian’s time presented the substance of the Novellae, was an excellent compendium, and deserved the fame it won. Of a lower order were the later manipulations of Justinian’s Codex, by which apparently the Codex was superseded in Italy. One of these was the Summa Perusina of the ninth or tenth century, a wretched work, and one of the blindest.[372]

Justinian’s Codex and Julian’s Epitome were equipped with glosses, some of which are as early as Justinian’s time; but the greater part are later. The glosses to Justinian’s legislation resemble those of the Breviarium before referred to. That is to say, as the centuries pass downward toward the tenth, the glosses answer to cruder needs: they become largely translations of words, often taken from Isidore’s Etymologiae.[373] Indeed many of them appear to have had merely a grammatical interest, as if the text was used as an aid in the study of the Latin language.

The last remark indicates a way in which a very superficial acquaintance with the Roman law was kept up through the centuries prior to the twelfth: it was commonly taught in the schools devoted to elementary instruction, that is to say, to the Seven Liberal Arts. In many instances the instructors had only such knowledge as they derived from Isidore, that friend of every man. That is, they had no special knowledge of law, but imparted various definitions to their pupils, just as they might teach them the names of diseases and remedies, a list of which (and nothing more) they would also find in Isidore. It was all just as one might have expected. Elementary mediaeval education was encyclopaedic in its childish way; and, in accordance with the methods and traditions of the transition centuries, all branches of instruction were apt to be turned to grammar and rhetoric, and made linguistic, so to speak—mere subjects for curious definition. Thus it happened to law as well as medicine. Yet some of the teachers may have had a practical acquaintance with legal matters, with an understanding for legal documents and skill to draw them up.

The assertion also is warranted that at certain centres of learning substantial legal instruction was given; one may even speak of schools of law. Scattered information touching all the early mediaeval periods shows that there was no time when instruction in Roman law could not be obtained somewhere in western Europe. To refer to France, the Roman law was very early taught at Narbonne; at Orleans it was taught from the time of Bishop Theodulphus, Charlemagne’s contemporary, and probably the teaching of it long continued. One may speak in the same way of Lyons; and in the eleventh century Angers was famed for the study of law.

Our information is less broken as to an Italy where through the early Middle Ages more general opportunities offered for elementary education, and where the Roman law, with Justinian’s Codification as a base, made in general the law of the land. There is no reason to suppose that it was not taught. Contemporary allusions bear witness to the existence of a school of law in Rome in the time of Cassiodorus and afterwards, which is confirmed by a statement of the jurist Odofredus in the thirteenth century. At Pavia there was a school of law in the time of Rothari, the legislating Lombard king; this reached the zenith of its repute in the eleventh century. Legal studies also flourished at Ravenna, and succumbed before the rising star of the Bologna school at the beginning of the twelfth century.[374] In these and doubtless many other cities[375] students were instructed in legal practices and formulae, and some substance of the Roman law was taught. Extant legal documents of various kinds afford, especially for Italy, ample evidence of the continuous application of the Roman law.[376]

As for the merits and deficiencies of legal instruction in Italy and in France, an idea may be gained from the various manuals that were prepared either for use in the schools of law or for the practitioner. Because of the uncertainty, however, of their age and provenance, it is difficult to connect them with a definite foyer of instruction.

Until the opening of the twelfth century, or at all events until the last quarter of the eleventh, the legal literature evinces scarcely any originality or critical capacity. There are glosses, epitomes, and collections of extracts, more or less condensed or confused from whatever text the compiler had before him. Little jurisprudential intelligence appears in any writings which are known to precede the close of the eleventh century; none, for instance, in the epitomes of the Breviarium and the glosses relating to that code; none in those works of Italian origin the material for which was drawn directly or indirectly from the Codex or Novels of Justinian, for instance the Summa Perusina and the Lex Romana canonice compta, both of which probably belong to the ninth century. Such compilations were put together for practical use, or perhaps as aids to teaching.

Thus, so far as inference may be drawn from the extant writings, the legal teaching in any school during this long period hardly rose above an uncritical and unenlightened explanation of Roman law somewhat mediaevalized and deflected from its classic form and substance. There was also practical instruction in current legal forms and customs. Interest in the law had not risen above practical needs, nor was capacity shown for anything above a mechanical handling of the matter. Legal study was on a level with the other intellectual phenomena of the period.

In an opusculum[377] written shortly after the middle of the eleventh century, Peter Damiani bears unequivocal, if somewhat hostile, witness to the study of law at Ravenna; and it is clear that in his time legal studies were progressing in both France and Italy. It is unsafe to speak more definitely, because of the difficulty in fixing the time and place of certain rather famous pieces of legal literature, which show a marked advance upon the productions to be ascribed with certainty to an earlier time. The reference is to the Petri exceptiones and the Brachylogus. The critical questions relating to the former are too complex even to outline here. Both its time and place are in dispute. The ascribed dates range from the third quarter of the eleventh century to the first quarter of the twelfth, a matter of importance, since the opening of the twelfth century is marked by the rise of the Bologna school. As for the place, some scholars still adhere to the south of France, while others look to Pavia or Ravenna. On the whole, the weight of argument seems to favour Italy and a date not far from 1075.[378]

The Petrus, as it is familiarly called, is drawn from immediately prior and still extant compilations. The compiler wished to give a compendious if not systematic presentation of law as accepted and approved in his time, that is to say, of Roman law somewhat mediaevalized in tone, and with certain extraneous elements from the Lombard codes. The ultimate Roman sources were the Codification of Justinian, and indeed all of it, Digest, Codex, and Novels, the last in the form to which they had been brought in Julian’s Epitome. The purpose of the compilation is given in the Prologue,[379] which in substance is as follows:

The arrangement of topics in the Petrus hardly evinces any clear design. The substance, however, is well presented. If there be a question to be solved, it is plainly stated, and the solution arrived at may be interesting. For example, a case seems to have arisen where the son of one who died intestate had seized the whole property to the exclusion of the children of two deceased daughters. The sons of one daughter acquiesced. The sons of the other per placitum et guerram forced their uncle to give up their share. Thereupon the supine cousins demanded to share in what had so been won. The former contestants resisted on the plea that the latter had borne no aid in the contest and that they had obtained only their own portion. The decision was that the supine cousins might claim their heritage from whoever held it, and should receive their share in what the successful contestants had won; but that the latter could by counter-actions compel them to pay their share of the necessary expenses of the prior contest.[381]

Sometimes the Petrus seems to draw a general rule of law from the apparent instances of its application in Justinian’s Codification. Therein certain formalities were prescribed in making a testament, in adopting a son, or emancipating a slave. The Petrus draws from them the general principle that where the law prescribes formalities, the transaction is not valid if they are omitted.[382] In fine, unsystematized as is the arrangement of topics, the work presents an advance in legal intelligence over mediaeval law-writings earlier than the middle of the eleventh century.

If the Petrus was adapted for use in practice, the Brachylogus, on the other hand, was plainly a book of elementary instruction, formed on the model of Justinian’s Institutes. But it made use of his entire codification, the Novels, however, only as condensed in Julian’s Epitome. The influence of the Breviarium is also noticeable; which might lead one to think that the treatise was written in Orleans or the neighbourhood, since the Breviarium was not in use in Italy, while the Codification of Justinian was known in France by the end of the eleventh century. The beginning of the twelfth is the date usually given to the Brachylogus. It does not belong to the Bologna school of glossators, but rather immediately precedes them, wherever it was composed.[383]

The Brachylogus, as a book of Institutes, compares favourably with its model, from the language of which it departed at will. Both works are divided into four libri; but the libri of the Brachylogus correspond better to the logical divisions of the law. Again, frequently the author of the Brachylogus breaks up the chapters of Justinian’s Institutes and gives the subject-matter under more pertinent headings. Sometimes the statements of the older work are improved by rearrangement. The definitions of the Brachylogus are pithy and concise, even to a fault. Often the exposition is well adapted to the purposes of an elementary text-book,[384] which was meant to be supplemented by oral instruction. On the whole, the work shows that the author is no longer encumbered by the mass or by the advanced character of his sources. He restates their substance intelligently, and thinks for himself. He is no compiler, and his work has reached the rank of a treatise.

The merits of the Brachylogus as an elementary text-book are surpassed by those of the so-called Summa Codicis Irnerii, a book which may mark the beginning of the Bologna school of law, and may even be the composition of its founder. Many arguments are adduced for this authorship.[385] The book has otherwise been deemed a production of the last days of the school of law at Rome just before the school was broken up by some catastrophe as to which there is little information. In that case the work would belong to the closing years of the eleventh century, whereas the authorship of Irnerius would bring it to the beginning of the twelfth. At all events, its lucid jurisprudential reasoning precludes the likelihood of an earlier origin.

This Summa is an exposition of Roman law, following the arrangement and titles of Justinian’s Codex, but making extensive use of the Digest. It thus contains Roman jurisprudential law, and may be regarded as a compendious text-book for law students, forming apparently the basis of a course of lectures which treated the topics more at length.[386] The author’s command of his material is admirable, and his presentation masterly. Whether he was Irnerius or some one else, he was a great teacher. His work may be also called academic, in that his standpoint is always that of the Justinianean law, although he limits his exposition to those topics which had living interest for the twelfth century. Private substantial law forms the chief matter, but procedure is set forth and penal law touched upon. The author appreciates the historical development of the Roman law and the character of its various sources—praetorian law, constitutiones principum, and responsa prudentium. He also shows independence, and a regard for legal reasoning and the demands of justice. While he sets forth the jus civile, his exposition and approval follow the dictates of the jus naturale.

One must suppose that such concise statements were explained and qualified in the author’s lectures. But even as they stand, they afford an exposition of Roman principles of interpretation. Not only under the Roman Empire, but subsequently in mediaeval times, the Roman lawyer or the canonist did not pay the deference to adjudicated precedent which is felt by the English or American judge. The passage in the Codex which “Irnerius” was expounding commands that the judge, in deciding a case, shall follow the laws and the reasoning of the great jurists, rather than the decision of a like controversy.

Since the author of this Summa weighs the justice, the reason, and the convenience of the laws, and compares them with each other, his book is a work of jurisprudence. Its qualities may be observed in its discussion of possession and the rights arising therefrom. The writer has just been expounding the usucapio, an institution of the jus civile strictly speaking, whereby the law of Rome in certain instances protected and, after three years, perfected, the title to property which one had in good faith acquired from a vendor who was not the owner:

Then follows a discussion of the persons through whom another may have possession, and of the various modes of possessing longa manu without actual touch:

voluntarily or otherwise. He now discusses the various modes in which possession is acquired by transfer, then the nature of the justa or injusta causa with which possession may begin, and the effect on the rights of the possessor, and then some matters more peculiar to the time of Justinian. After which he passes to the loss of possession, and concludes with saying that he has endeavoured to go over the whole subject, and whatever is omitted or insufficiently treated, he begs that it be laid to the fault of humanae imbecillitatis. The discussion reads like a carefully drawn outline which his lecture should expand.[388]

The knowledge and understanding of the Roman law in the mediaeval centuries should be viewed in conjunction with the general progress of intellectual aptitude during the same periods. The growth of legal knowledge will then show itself as a part of mediaeval development, as one phase of the flowering of the mediaeval intellect. For the treatment of Roman law presents stages essentially analogous to those by which the Middle Ages reached their understanding and appropriation of other portions of their great inheritance from classical antiquity and the Christianity of the Fathers. Let us recapitulate: the Roman law, adapted, or corrupted if one will, epitomized and known chiefly in its later enacted forms, was never unapplied nor the study of it quite abandoned. It constituted a great part of the law of Italy and southern France; in these two regions likewise was its study least neglected. We have observed the superficial and mainly linguistic nature of the glosses which this early mediaeval period interlined or wrote on the margins of the source-books drawn upon, also the rude and barbarous nature of the earlier summaries and compilations. They were helps to a crude practical knowledge of the law. Gradually the treatment seems to become more intelligent, a little nearer the level of the matter excerpted or made use of. Through the eleventh century it is evident that social conditions were demanding and also facilitating an increase in legal knowledge; and at that century’s close a by no means stupid compilation appears, the Petri exceptiones, and perhaps such a fairly intelligent manual for elementary instruction as the Brachylogus. These works indicate that the instruction in the law was improving. We have also the sparse references to schools of law, at Rome, at Ravenna, at Orleans. Then we come upon the Summa Codicis called of Irnerius, of uncertain provenance, like the Petrus and Brachylogus. But there is no need to be informed specifically of its place and date in order to recognize its advance in legal intelligence, in veritable jurisprudence. The writer was a master of the law, an adept in its exposition, and his oral teaching must have been of a high order. With this book we have unquestionably touched the level of the strong beginnings of the greatest of mediaeval schools of Roman law.

Its seat was Bologna, one of the chief centres of the civic and commercial life of Lombardy. The Lombards themselves had shown a persistent legal genius: their own Teutonic codes, enacted in Italy, had maintained themselves in that land of Roman law and custom. Lombard codification had almost reached a jurisprudence of its own, at Pavia, the juridical centre of Lombardy. The provisions of various codes had been compared and put together in a sort of Concordia, as early as the ninth century.[389] Possibly the rivalry of Lombard law might stimulate those learned in the law of Rome to sharper efforts to expound it and prove its superiority. Moreover, all sides of civic life and culture were flourishing in that region where novel commercial relations were calling for a corresponding progress in the law, and especially for a better knowledge of the Roman law which alone afforded provision for their regulation.

As some long course of human development approaches its climax, the advance apparently becomes so rapid as to give the impression of something suddenly happening, a sudden leap upward of the human spirit. The velocity of the movement seems to quicken as the summit is neared. One easily finds examples, for instance the fifth century before Christ in Greek art, or the fourth century in Greek philosophy, or again the excellence so quickly reached apparently by the Middle High German poetry just about the year 1200. But may not the seeming suddenness of the phenomenon be due to lack of information as to antecedents? and the flare of the final achievement even darken what went before? Yet, in fact, as a movement nears its climax, it may become more rapid. For, as the promoting energies and favouring conditions meet in conjunction, their joint action becomes more effective. Forces free themselves from cumbrances and draw aid from one another. Thus when the gradual growth of intellectual faculty effects a conjunction with circumstances which offer a fair field, and the prizes of life as a reward, a rapid increase of power may evince itself in novel and timely productivity.

This may suggest the manner of the apparently sudden rise of the Bologna school of Roman law, which, be it noted, took place but a little before the time of Gratian’s achievement in the Canon law, itself contemporaneous with the appearance of Peter Lombard’s novel Books of Sentences.[390] The preparation, although obscure, existed; and the school after its commencement passed onward through stages of development, to its best accomplishment, and then into a condition of stasis, if not decline. Irnerius apparently was its first master; and of his life little is known. He was a native of Bologna. His name as causidicus is attached to a State paper of the year 1113. Thereafter he appears in the service of the German emperor Henry V. We have no sure trace of him after 1118, though there is no reason to suppose that he did not live and labour for some further years. He had taught the Arts at Ravenna and Bologna before teaching, or perhaps seriously studying, the law. But his career as a teacher of the law doubtless began before the year 1113, when he is first met with as a man of affairs. Accounts agree in ascribing to him the foundation of the school.

Unless the Summa Codicis already mentioned, and a book of Quaestiones, be really his, his glosses upon Justinian’s Digest, Codex, and Novels, are all we have of him;[391] of the rest we know by report. The glosses themselves indicate that this jurist had been a grammarian, and used the learning of his former profession in his exposition of the law. His interlinear glosses are explanations of words, and would seem to represent his earlier, more tentative, work when he was himself learning the meaning of the law. But the marginal glosses are short expositions of the passages to which they are attached, and perhaps belong to the time of his fuller command over the legal material. They indicate, besides, a critical consideration of the text, and even of the original connection which the passage in the Digest held in the work of the jurisconsult from which it had been taken. Some of them show an understanding of the chronological sequence of the sources of the Roman law, e.g. that the law-making power had existed in the people and then passed to the emperors. These glosses of Irnerius represent a clear advance in jurisprudence over any previous legal comment subsequent to the Interpretatio attached to the Breviarium. It was also part of his plan to equip his manuscripts of the Codex with extracts taken from the text of the Novels, and not from the Epitome of Julian. He appears also as a lawyer versed in the practice of the law. For he wrote a book of forms for notaries and a treatise on procedure, neither of which is extant.[392]

The accomplishment of the Bologna school may be judged more fully from the works, still extant, of some of its chief representatives in the generations following Irnerius. A worthy one was Placentinus, a native of Piacenza. The year of his birth is unknown, but he died in 1192, after a presumably full span of life, passed chiefly as a student and teacher of the law. He taught in Mantua and Montpellier, as well as in Bologna. He was an accomplished jurist and a lover of the classic literature. His work entitled De varietate actionum was apparently the first attempt to set forth the Roman law in an arrangement and form that did not follow the sources.[393] He opens his treatise with an allegory of a noble dame, hight Jurisprudentia, within the circle of whose sweet and honied utterances many eager youths were thronging. Placentinus drew near, and received from her the book which he now gives to others.[394] This little allegory savours of the De consolatione of Boëthius, or, if one will, of Capella’s De nuptiis Philologiae.

The most admirable surviving work of Placentinus is his Summa of the Codex of Justinian. His autobiographical proemium shows him not lacking in self-esteem, and tells why he undertook the work. He had thought at first to complete the Summa of Rogerius, an older glossator, but then decided to put that book to sleep, and compose a full Summa of the Codex himself, from the beginning to the end. This by the favour of God he has done; it is the work of his own hands, from head to heel, and all the matter is his own—not borrowed. Next he wrote for beginners a Summa of the Institutes. After which he returned to his own town, and shortly proceeded thence to Bologna, whither he had been called. “There in the citadel (in castello) for two years I expounded the laws to students; I brought the other teachers to the threshold of envy; I emptied their benches of students. The hidden places of the law I laid open, I reconciled the conflicts of enactments, I unlocked the secrets most potently.” His success was great, and he was besought to continue his course of lectures. He complied, and remained two years more, and then returned to Montpellier, in order to compose a Summa of the Digest.[395] If indeed Placentinus speaks bombastically of his work, its excellence excuses him. His well-earned reputation as a jurist and scholar long endured.

Quaestiones, Distinctiones, Libri disputationum, Summae of the Codex or the Institutions, and other legal writings, are extant in goodly bulk and number from the Bologna school. The names of the men are almost legion, and many were of great repute in their day both as jurists and as men of affairs. We may mention Azo and Accursius, of a little later time. Azo’s name appears in public documents from the year 1190 to 1220—and he may have survived the latter date by some years. His works were of such compass and excellence as to supersede those of his predecessors. His glosses still survive, and his Lectura on the Codex, his Summae of the Codex and the Institutes, and his Quaestiones, and Brocarda, the last a sort of work stating general legal propositions and those contradicting them. Azo’s glosses were so complete as to constitute a continuous exposition of the entire legislation of Justinian. His Summae of the Codex and Institutes drove those of Placentinus out of use, which we note with a smile.[396]

None of the glossators is better known than Accursius. He comes before us as a Florentine, and apparently a peasant’s son. He died an old man rich and famous, about the year 1260. Azo was his teacher. In 1252 he was Podesta of Bologna, which indicates the respect in which men held him. Villani, the Florentine historian, describes him as of martial form, grave, thoughtful, even melancholy in aspect, as if always meditating; a man of brilliant talents and extraordinary memory, sober and chaste in life, but delighting in noble vesture. His hearers drank in the laws of living from his mien and manners no less than from the dissertations of his mouth.[397] Late in life he retired to his villa, and there in quiet worked on his great Glossa till he died.

This famous, perhaps all too famous, Glossa ordinaria was a digest and, as it proved, a final one, of the glosses of his predecessors and contemporaries. He drew not only from their glosses, but also on their Summae and other writings. He added a good deal of his own. Great as was the feat, the somewhat deadened talent of a compiler shows in the result, which flattened out the individual labours of so many jurists. It came at once into general use in the courts and outside of them; for it was a complete commentary on the Justinianean law, so compendious and convenient that there was no further need of the glosses of earlier men. This book marked the turning-point of the Bologna school, after which its productivity lessened. Its work was done: Codex, Novels, and above all the Pandects were rescued from oblivion, and fully expounded, so far as the matter in them was still of interest. When the labours of the school had been conveniently heaped together in one huge Glossa, there was no vital inducement to do this work again. The school of the glossators was functus officio. Naturally with the lessening of the call, productivity diminished. Little was left to do save to gloss the glosses, an epigonic labour which would not attract men of talent. Moreover, treating the older glosses, instead of the original text, as the matter to be interpreted was unfavourable to progress in the understanding of the latter.

Yet, for a little, the breath of life was still to stir in the school of the glossators. There was a man of fame, a humanist indeed, named Cino, whose beautiful tomb still draws the lover of things lovely to Pistoia. Cino was also a jurist, and it came to him to be the teacher of one whose name is second to none among the legists of the Middle Ages. This was Bartolus, born probably in the year 1314 at Sassoferrato in the duchy of Urbino. He was a scholar, learned in geometry and Hebrew, also a man of affairs. He taught the law at Pisa and Perugia, and in the last-named town he died in 1357, not yet forty-four years old. Bartolus wrote and compiled full commentaries on the entire Corpus juris civilis; and yet he produced no work differing in kind from works of his predecessors. Moreover, between him and the body of the law rose the great mass of gloss and comment already in existence, through which he did not always penetrate to the veritable Corpus. Yet his labours were inspired with the energy of a vigorous nature, and he put fresh thoughts into his commentaries.[398]

The school of glossators presented the full Roman law to Europe. The careful and critical interpretation of the text of Justinian’s Codification, of the Digest above all, was their great service. In performing it, these jurists also had educated themselves and developed their own intelligence. They had also put together in Summae the results of their own education in the law. These works facilitated legal study and sharpened the faculties of students and professors. Books of Quaestiones, legal disputations, works upon legal process and formulae, served the same ends.[399] These men were deficient in historical knowledge. Yet they compared Digest, Codex, and Novels; they tried to re-establish the purity of the text; they weighed and they expounded. Theirs was an intellectual effort to master the jurisprudence of Rome: their labours constituted a renaissance of jurisprudence; and the fact that they were often men of affairs as well as professors, kept them from ignoring the practical bearings of the matters which they taught.

The work of the glossators may be compared with that of the theologian philosophers of the thirteenth century—Alexander of Hales, Albertus Magnus, Thomas Aquinas—who were winning for the world a new and comprehensive knowledge of Aristotle. Both jurists and philosophers, in their different spheres, carried through a more profound study, and reached a more comprehensive knowledge, of a great store of antique thought, than previous mediaeval centuries conceived of. Moreover, the interpretation of the Corpus juris was quite as successful as the interpretation of Aristotle. It was in fact surer, because freer from the deflections of religious motive. No consideration of agreement or disagreement with Scripture troubled the glossators’ interpretation of the Digest, though indeed they may have been interested in finding support for whatever political views they held upon the claims of emperor and pope. But this did not disturb them as much as Aristotle’s opinion that the universe was eternal, worried Albertus and Aquinas.

IV

The Church, from the time of its first recognition by the Roman Empire, lived under the Roman law;[400] and the constitutions safeguarding its authority were large and ample before the Empire fell. Constantine, to be sure, never dreamed of the famous “Donation of Constantine” forged by a later time, yet his enactments fairly launched the great mediaeval Catholic Church upon the career which was to bring it more domination than was granted in this pseudo-charter of its power. A number of Constantine’s enactments were preserved by the Theodosian Code, in which the powers and privileges of Church and clergy were portentously set forth.

The Theodosian Code freed the property of the Church from most fiscal burdens, and the clergy from taxes, from public and military service, and from many other obligations which sometimes the Code groups under the head of sordida munera. The Church might receive all manner of bequests, and it inherited the property of such of its clergy as did not leave near relatives surviving them. Its property generally was inalienable; and the clergy were accorded many special safeguards. Slaves might be manumitted in a church. The church edifices were declared asylums of refuge from pursuers, a privilege which had passed to the churches from the heathen fanes and the statues of the emperors. Constitution after constitution was hurled against the Church’s enemies. The Theodosian Code has one chapter containing sixty-six constitutions directed against heretics, the combined result of which was to deprive them, if not of life and property, at least of protected legal existence.

Of enormous import was the sweeping recognition on the Empire’s part of the validity of episcopal jurisdiction. No bishop might be summoned before a secular court as a defendant, or compelled to give testimony. Falsely to accuse one of the clergy rendered the accuser infamous. All matters pertaining to religion and church discipline might be brought only before the bishop’s court, which likewise had plenary jurisdiction over controversies among the clergy. It was also open to the laity for the settlement of civil disputes. The command not to go to law before the heathen came down from Paul (1 Cor. vi.), and together with the severed and persecuted condition of the early Christian communities, may be regarded as the far source of the episcopal jurisdiction, which thus divinely sanctioned tended to extend its arbitrament to all manner of legal controversies.[401] To be sure, under the Christian Roman Empire the authority of the Church as well as its privileges rested upon imperial law. Yet the emperors recognized, rather than actually created, the ecclesiastical authority. And when the Empire was shattered, there stood the Church erect amid the downfall of the imperial government, and capable of supporting itself in the new Teutonic kingdoms.

The constitutions of Christian emperors did not from their own force and validity become Ecclesiastical or Canon law—the law relating to Christians as such, and especially to the Church and its functions. The source of that law was God; the Church was its declarative organ. Acceptance on the Church’s part was requisite before any secular law could become a law of the Church.

Canon law may be taken to include theology, or may be limited to the law of the organization and functions of the Church taken in a large sense as inclusive of the laity in their relations to the religion of Christ.[402] Obviously part comes from Christ directly, through the Old Testament as well as New. The other part, and in bulk far greater, emanates from His foundation, the Church, under the guidance of His Spirit, and may be added to and modified by the Church from age to age. It is expressed in custom, universal and established, and it is found in written form in the works of the Fathers, in the decrees of Councils, in the decretals of the popes, and in the concordats and conventions with secular sovereignties. From the beginning, canon law tacitly or expressly adopted the constitutions of the Christian emperors relating to the Church, as well as the Roman law generally, under which the Church lived in its civil relations.

The Church arose within the Roman Empire, and who shall say that its wonderfully efficient and complete organization at the close of the patristic period was not the final creation of the legal and constructive genius of Rome, newly inspired by the spirit of Christianity? But the centre of interest had been transferred from earth to heaven, and human aims had been recast by the Gospel and the understanding of it reached by Christian doctors. Evidently since the ideals of the Church were to be other than those of the Roman Empire, the law which it accepted or evolved would have ideals different from those of the Roman law. If the great Roman jurists created a legal formulation and rendering of justice adequate for the highly developed social and commercial needs of Roman citizens, the law of the Church, while it might borrow phrases, rules, and even general principles, from that system, could not fail to put new meaning in them. For example, the constant will to render each his due, which was justitia in the Roman law, might involve different considerations where the soul’s salvation, and not the just allotment of the goods of this world, was the law’s chief aim. Again, what new meaning might attach to the honeste vivere and the alterum non laedere of pagan legal ethics. Honeste vivere might mean to do no sin imperilling the soul; alterum non laedere would acquire the meaning of doing nothing to another which might impede his progress toward salvation. Injuries to a man in his temporalities were less important.

Further, Christianity although conceived as a religion for all mankind, was founded on a definite code and revelation. The primary statement was contained in the canonical books of the Old and New Testaments. These were for all men, universal in application and of irrefragable validity and truth. Here was some correspondence to the conception of the jus gentium as representative of universal principles of justice and expediency, and therefore as equivalent to the jus naturale. There was something of logical necessity in the transference of this conception to the law of Christ. Says Gratian at the beginning of his Decretum: “It is jus naturae which is contained in the Law and the Gospel, by which every one is commanded to do to another as he would be done by, and forbidden to inflict on him what he does not wish to happen to himself.” Since the Law and the Gospel represent the final law of life for all men, they are par excellence the jus naturae, as well as lex divina. Gratian quotes from Augustine: “Divinum jus in scripturis divinis habemus, humanum in legibus regum.”[403] And then adds: “By its authority the jus naturale prevails over custom and constitution. Whatever in customs or writings is contrary to the jus naturale is to be held vain and invalid.” Again he says more explicitly: “Since therefore nothing is commanded by natural law other than what God wills to be, and nothing is forbidden except what God prohibits, and since nothing may be found in the canonical Scripture except what is in the divine laws, the laws will rest divinely in nature (divine leges natura consistent). It is evident, that whatever is proved to be contrary to the divine will or canonical Scripture, is likewise opposed to natural law. Wherefore whatever should give way before divine will or Scripture or the divine laws, over that ought the jus naturale to prevail. Therefore whatever ecclesiastical or secular constitutions are contrary to natural law are to be shut out.”[404]

The canon law is a vast sea. Its growth, its age-long agglomerate accretion, the systematization of its huge contents, have long been subjects for controversialists and scholars. Its sources were as multifarious as those of the Roman law. First the Scriptures and the early quasi-apostolic and pseudo-apostolic writings; then the traditions of primitive Christianity and also the writings of the Fathers; likewise ecclesiastical customs, long accepted and legitimate, and finally the two great written sources, the decretals or decisions of the popes and the decrees of councils. From patristic times collections were made of the last. These collections from a chronological gradually acquired a topical and more systemic arrangement, which the compilers followed more completely after the opening of the tenth century. The decisions of the popes also had been collected, and then were joined to conciliar compilations and arranged after the same topical plan.

In all of them there was unauthentic matter, accepted as if its pseudo-authorship or pseudo-source were genuine. But in the stormy times of the ninth century following the death of Charlemagne, the method of argument through forged authority was exceptionally creative. It produced two masterpieces which won universal acceptance. The first was a collection of false Capitularies ascribed to Charlemagne and Louis the Pious, and ostensibly the work of a certain Benedictus Levita, deacon of the Church of Mainz, who worked in the middle of the century. Far more famous and important was the book of False Decretals, put together and largely written, that is forged, about the same time, probably in the diocese of Rheims, and appearing as the work of Saint Isidore of Seville. This contained many forged letters of the early popes and other forged matter, including the Epistle or “Donation” of Constantine; also genuine papal letters and conciliar decrees. These false collections were accepted by councils and popes, and formed part of subsequent compilations.

From the tenth century onward many such compilations were made, all of them uncritical as to the genuineness of the matter taken, and frequently ill-arranged and discordant. They were destined to be superseded by the great work in which appears the better methods and more highly trained intelligence developing at the Bologna School in the first part of the twelfth century. Its author was Gratianus, a monk of the monastery of St. Felix at Bologna. He was a younger contemporary of Irnerius and of Peter Lombard. Legend made him the latter’s brother, with some propriety; for the compiler of those epoch-making Sentences represents the same stage in the appropriation of the patristic theological heritage of the Middle Ages, that Gratian represents in the handling of the canon law. The Lombard’s Sentences made a systematic and even harmonizing presentation of the theology of the Fathers in their own language; and the equally immortal Decretum of Gratian accomplished a like work for the canon law. This is the name by which his work is known, but not the name he gave it. That appears to have been Concordia discordantium canonum, which indicates his methodical presentation of his matter and his endeavour to reconcile conflicting propositions.

The first part of the Decretum was entitled “De jure naturae et constitutionis.” It presents the sources of the law, the Church’s organization and administration, the ordination and ranking of the clergy, the election and consecration of bishops, the authority of legates and primates. The second part treats of the procedure of ecclesiastical courts, also the law regulating the property of the Church, the law of monks and the contract of marriage. The third part is devoted to the Sacraments and the Liturgy.

Gratian’s usual method is as follows: He will open with an authoritative proposition. If he finds it universally accepted, it stands as valid. But if there are opposing statements, he tries to reconcile them, either pointing out the difference in date (for the law of the Church may be progressive), or showing that one of the discordant rules had but local or otherwise limited application, or that the first proposition is the rule, while the others make the exceptions. If he still fails to establish concord, he searches to find which rule had been followed in the Roman Church, and accepts that as authoritative. A rule being thus made certain, he proceeds with subdivisions and distinctions, treating them as deductions from the main rule and adjusting the supporting texts. Or he will suppose a controversy (causa) and discuss its main and secondary issues. Throughout he accompanies his authoritative matter with his own commentary—commonly cited as the Dicta Gratiani.[405] The Decretum was characterized by sagacity of interpretation and reconcilement, by vast learning, and clear ordering of the matter. Only it was uncritical as to the genuineness of its materials; and a number of Gratian’s own statements were subsequently disapproved in papal decretals. The Dicta Gratiani never received such formal sanction by pope or council as the writings of Roman jurists received by being taken into Justinian’s Digest.

The papal decretals had become the great source of canonical law. Gratian’s work was soon supplemented by various compilations known as Appendices ad Decretum or Decretales extravagantes, to wit, those which the Decretum did not contain. These, however, were superseded by the collection, or rather codification, made at the command of the great canonist Gregory IX. and completed in the year 1234. This authoritative work preserved Gratian’s Decretum intact, but suppressed, or abridged and reordered, the decretals contained in subsequent collections. Arranged in five books, it forms the second part of the Corpus juris canonici. In 1298 Boniface VIII. promulgated a supplementary book known as the Sextus of Boniface. This with a new collection promulgated under the authority of Clement V. in 1313, called the Clementinae, and the Extravagantes of his successor John XXII. and certain other popes, constitute the last portions of the Corpus juris canonici.[406]

According to the law of the Empire the emperor’s authority extended over the Church, its doctrine, its discipline, and its property. Such authority was exercised by the emperors from Constantine to Justinian. But the Church had always stood upon the principle that it was better to obey God rather than man. This had been maintained against the power of the pagan Empire, and was not to be sunned out of existence by imperial favour. It was still better to obey God rather than the emperor. The Church still should say who were its members and entitled to participate in the salvation which it mediated. Ecclesiastical authorities could excommunicate; that was their engine of coercion. These principles were incarnate in Ambrose, Bishop of Milan, withstanding and prohibiting Theodosius from Christian fellowship until he had done penance for the massacre at Thessalonica. Of necessity they inhered in the Church; they were of the essence of its strength to fulfil its purpose; they stood for the duly constituted power of Christian resolution to uphold and advance the peremptory truth of Christ.

So such principles persisted through the time of the hostile and then the favouring Roman Empire. And when the Empire in fact crumbled and fell, what de facto and de jure authority was best fitted to take the place of the imperial supremacy? The Empire represented a universal secular dominion; the Church was also universal, and with a universality now reaching out beyond the Empire’s shrinking boundaries. In the midst of political fragments otherwise disjoined, the Church endured as the universal unity. The power of each Teutonic king was great in fact and law within his realm. Yet he was but a local potency, while the Church existed through his and other realms. And when the power of one Teutonic line (the Carolingian) reached something like universal sway, the Church was also there within and without. It held the learning of the time, and the culture which large-minded seculars respected; and quite as much as the empire of Charlemagne, it held the prestige of Rome. Witness the attitude of Charles Martel and Pippin toward Boniface the great apostle, and the attitude of Boniface toward the Gregories whose legate he proclaimed himself, and upon whose central authority he based his claims to be obeyed. Through the reforms of the Frankish Church, carried out by him with the support of Charles Martel and Pippin, the ecclesiastical supremacy of Rome was established. Charlemagne, indeed, from the nature and necessities of his own transcendent power, possessed in fact the ecclesiastical authority of the Roman emperors, whom men deemed his predecessors. But after him the secular power fell again into fragments scarcely locally efficient, while the Church’s universality of authority endured.