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chapter 11: Medieval Law in Europe - John Maxcy Zane, The Story of the Law 
The Story of Law, 2nd ed., Introduction by James M. Beck. New Foreword, Annotations, and Bibliographies by Charles J. Reid, Jr. (Indianapolis: Liberty Fund 1998).
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Medieval Law in Europe
Hadrian, who ruled the Roman Empire from 117 to 138 A. D., was a man of great cultivation and learning. He spent ten years of his reign in traveling from end to end of his wide realm, not only that he might become acquainted with the needs of the Empire, but that he might carefully investigate all governmental matters. His suite of jurists, secretaries and military staff put together the results. He penetrated lands even the most remote from Rome, such as Egypt and Britain. He built the fortified wall across Britain as a protection against the rude savages of the north. He corrected whatsoever he could find to correct, and to him more than any one else is due the perfected machinery of the Roman system.
The fine results of the long Roman peace were visible to Hadrian everywhere. Life was civilized, easy, and comfortable, prosperity abounded in all the different lands. Commerce and trade were safe and moved easily across land and sea. He found in the provinces humanity on as high a level as that of Italy. He found the courts functioning and the law well administered. Schools of law where thousands of students were trained in the Roman law existed in the various provinces. All classes and conditions of men dwelt secure under a system of equitable legality.
He did not forget to adorn the old cities with many handsome buildings. When he returned to Rome he caused the body of praetorian law to be arranged and reëdited by a great jurisconsult in the form of the Perpetual Edict. After a well spent life, when he felt that death was soon to be upon him, with the pagan fearless realization of death that was afterwards to be replaced by terror, he wrote to his own soul the graceful little elegy that has baffled so many gifted translators. It begins, translated literally, but without any approach to the beauty of the original:
But it would have been a bitter experience for that gracious and elevated spirit to revisit the earth seven hundred and fifty years after his death. Instead of the improvement that he would have hoped for, he would have been appalled at the ruin of the social order. Constant war and continuous barbarous inroads had destroyed the costly fabric of civilization in all the western lands of his former empire. Italy, Africa, Spain, Gaul, and Britain had become a pillage and a prey. The population was decimated, the cities depopulated. The arts of building were almost forgotten. Everywhere he would have found half-civilized men ruling the Roman lands as cruel and brutal overlords. He would have heard that for a few years a great Frankish empire of Charlemagne had promised some improvement, but it had been followed by an even worse condition. The offices of schools, arts, and letters were forgotten. Ignorance was dominant. Trade and commerce were gone. Travel was everywhere unsafe. Instead of the great orderly Roman administration, lawless counts and barons levied tribute on their weaker neighbors. The organization resulting from social cohesion had passed into the disorganization of the feudal condition.
Especially would he have been astonished at the eclipse of all forms of respectable legal administration. The general courts were not even a tradition. The fine structure of Roman law that had cost so many centuries of patient effort had fallen before the onslaughts of the barbarians. All kinds of law were debased and mixed up in hopeless confusion. In the same city or county the barbarian was governed by his law, the former Roman citizens by a bastard sort of Roman legal tradition. Written law was practically useless in populations where few knew how to write or to read. All the law was unsettled, and definiteness was lost in warring customs. Every little sway of a feudal lord had its own law administered by the lord’s own court. The men of the Church alone had any knowledge of law or of letters. A black night of lawlessness and disorder seemed to have settled down in every one of these once prosperous lands.
Hadrian had departed from a world where the social virtues of kindliness, justice, charity, philanthropy, and mercy had tempered humanity, where there was ease and grace and comfort in life, where increasing division of labor and constant contact among men had taught the social classes toleration of one another. He would have returned to a world whose whole tone was that of cruelty. Even the Church, a wholly new organization to him, had become in the centuries disorganized and corrupt. Men of virtue and of any little learning had chosen the unsocial course of retiring into monasteries. He would have been required to go far out into Ireland to find remnants of classical learning. The Church in its canon law had kept alive some parts of the Roman law, but learned lawyers and jurisconsults had left the earth. The best kind of law can live only in the best conditions and must have material circumstances to which it may be applied.
The tone of society was not only one of deep ignorance, but of bitter, harsh intolerance. The religious idea that all the knowledge necessary to men was to be found in the revealed wisdom of the Bible and that all goodness in this world and all chance of inheriting the world to come were annexed to a particular faith had produced the usual results. The pagan world had cared little about beliefs. Every kind of religion and every sort of god had been welcome there. But the intolerance of the western Christians had cut them off from all communion with even the Christians of the East. Men were ready to butcher each other over mere words in the expression of a mystical creed. While the career of a churchman was the only career for those who desired knowledge, the bitter prejudice of the sixth and seventh century Christians against the pagan books and education had proscribed the masterpieces of Latin literature as heretical. This feeling was a living force. Intolerance in religion fed the fires of human cruelty and oppression, while the native savagery of the ruling barbarians found a congenial atmosphere in the savagery of a proscriptive creed.
The doctrine of revealed truth had had an unhappy effect upon scientific knowledge. Even the recognition of the spheroidal form of the earth, which is fundamental for any correct knowledge of the earth, was found to be contrary to revealed religion. Lactantius, one of the great early writers of the Church, discoursed in this fashion on the question: “Is it possible that men can be so absurd as to believe that there are crops and trees on the other side of the earth that hang downward, and that men have their feet higher than their heads? If you ask them how they defend these monstrosities, why things do not fall away from the earth on that side, they reply that the nature of things is such that heavy bodies tend toward the center like the spokes of a wheel, while light bodies, as clouds, smoke, and fire, tend from the center to the heavens on all sides. Now I am really at a loss what to say of those who, when they have once gone wrong, steadily persevere in their folly and defend one absurd opinion by another.”
This extract shows, of course, that Lactantius knew the better teaching and that there were yet some men who had not yielded to the ignorance of superstition. If this Christian Father, an enlightened man for his age, with access to correct knowledge, was sunk in this self-satisfied stupidity, what must have been the Stygian darkness of the degraded and bigoted multitude? Historical knowledge had ceased. One absurd creature, seeing the Temple of Janus, asserted that Janus was a son of Noah and founded Rome. An English judge as late as the reign of Queen Mary, in an opinion from the bench, said that Janus was Noah himself, and was pictured with two heads (bifrons), one looking back to the flood and the other looking forward from the work of the flood. Lord Chief Justice Coke’s prefaces to his Institutes, written under James I, show an ignorance of history almost as deep as his innate cruelty of disposition. Even to-day the world has not entirely recovered from the Dark Ages. In that medieval age the most imbecile credulity had replaced all scientific knowledge. A belief in evil spirits, good and bad angels, witchcraft, enchantments, all the old primitive machinery of fear, had returned to men.
Miracles were so numerous as to have become ordinary happenings. The Pope himself, quite an intelligent man for that age, had seen, after a successful defense of the papal part of Rome, the archangel Michael sheathing his flaming sword as the spirit stood upon Hadrian’s tomb. From that day in remembrance of the archangel’s appearance, the tomb, disfigured and debased, has remained the Castel Sant’ Angelo, the Castle of the Holy Angel. The early Romans had their tale of the great Twin Brethren, Castor and Pollux, leading the Romans at Lake Regillus. The same kind of angels that the devout Pope saw led the Mormon prophet Joseph Smith to the hill of Cumorah and there discovered to him the golden plates of the Book of Mormon. Miracles of all sorts abounded and a saint who could not achieve the miraculous was no saint at all. Perhaps we should not wonder at that age, for there are yet people who read the Lives of the Saints with entire belief and edification.
But, ignorant, degraded, and superstitious as even the ablest men had become, the sentiment for law and justice is so ingrained in mankind that a constant demand had been voiced through these Dark Ages for a reign of law. St. Augustine, who had seen the devastating descent of the Vandals upon his native city in Africa, insisted in his book, The City of God, that “where there is not true justice, law cannot exist,” and that “without justice an association of men in the bond of law cannot possibly continue.” The Roman conception of a state bound and governed by the rules of law was a living belief. Augustine also said: “If justice be taken away, what are governments but great bands of robbers, and, if justice is not necessary to a state, a band of robbers is a small state.” As to the temporal laws, he said, “Although men decided as to them, when they were made, yet when they are once made and published it is not permissible to judge otherwise than according to them.”
When the Emperor Theodosius, in spite of a solemn engagement, put to the sword thousands of citizens when he took the revolted city of Salonica, the Bishop of Milan, St. Ambrose, as a rebuke to such cruelty, refused him communion, and said to him: “Have you not given laws, and is it permissible for any one to judge otherwise than by them? What you have commanded to others you have commanded even to yourself, for the Emperor makes the laws and he must be the first to observe them.”
In the wreck of the Empire and during the invasions of the hordes from the north, law became more and more an institution of the past. The Church strove to convert the barbarians from their heathenish religions and savage, primitive notions, and it kept insisting that these barbarous rulers must observe the law. St. Isidore of Seville laid it down: “It is just that the prince should obey his own laws. For the authority of his voice is just only if he is not permitted to do what he has forbidden to the people.” He added: “He does not rule who does not rule rightly; therefore the name of king is held on condition of doing right and is lost by wrongdoing.” The great Archbishop of Rheims, Hincmar, relying upon St. Ambrose, said in one of his works: “Therefore the just laws promulgated either by the people or the prince are to be vindicated justly and reasonably in every case whatever.” He repeats the idea: “Kings and ministers of the state have laws by which they ought to rule in every province; they have the laws of Christian kings, their ancestors, which have been promulgated by the general consent of their faithful subjects to bind all equally.” Finally Charles the Bald of France, grandson of Charlemagne, was compelled to recognize that laws are made “by the consent of the people upon the institution of the king.”
Out of the wreck of the ancient world had been saved the idea of the equality of the law and its naturalness. Cicero’s famous saying, “Nothing certainly is more ennobling than for us to plainly understand that we are born to justice, and that law is instituted not by opinion but by nature,” was supported by his words that are a commonplace with us: “If the fortunes of all cannot be equal, if the mental capacities of all cannot be the same, at least the legal rights of all those who are citizens of the same state ought to be equal.” The great ecclesiastics insisted upon the Roman idea of natural law as a sort of divine law. The Roman Digest had asserted: “By natural law all men are born free,” and “By natural law all men are equal,” and “Liberty is the power given to every one to do whatsoever is not prohibited by law.” St. Gregory the Great, a Pope who, in spite of his own bad Latin, and his distrust of good Latin, was ready to accept the Digest, lays it down that “by nature all men are equal,” and Ambrosiaster asserts it as divine law that “God did not make slaves and free men, but all of us are born free.” St. Isidore, improving on Ulpian, says: “Things required by natural law are marriage, succession to property, bringing up of children, one common security for all, one liberty for all, and the right to acquire those things which are capable of possession in air, earth, and sea.” This good old saint, the man of widest learning of his time, comes very near to stating the basis of all sound law.
But such utterances as these had little power to save. The laws at last reached a condition of inextricable confusion. The barbarians demanded their own savage and primitive customs for themselves. Certain rulers had caused to be compiled in a poor and inferior way the Roman laws as they could obtain them prior to the compilation of Justinian, of which they knew nothing. Charlemagne had reduced to writing the primitive laws of the barbarians, except the one paramount law of the barbarian not in writing, the good old barbarian rule, that they shall take who have the power, and they shall keep, who can. The conflicting laws side by side, governing different classes in the same community were an insuperable obstacle to any general rule of law. The great ecclesiastics had in mind a general, equal law, according to the Roman conception. The important maxim to them was controlling: “Justice is the constant and perpetual willingness to render to every one his right,” and the further maxim that “the precepts of justice are to live uprightly, not to injure another, and to render to every one his right.” The difficulty was, in the confused condition, to find any place for the maxims. One old law book asserted that “if anything is found in the laws that is useless, unobserved, or contrary to equity, we stamp it under our feet.” Ivo of Chartres, an early and a very great canonist, said as to this difficulty of deciding whether a law applied: “A law must be honest, just, possible, according to nature and the custom of the country, convenient to the time and place, plain, written not for some private advantage but for the common benefit of the citizens.” In the welter and wreck of the destruction of the Western Empire and of the consequent Dark Ages, it is worth while to notice that the idea of a rule of law was not lost.
But a rule of law was impossible except as the Church in her ecclesiastical tribunals could lay down one law to be observed everywhere for every one who sought the courts of the Church. In all the lay tribunals law was whatever superior force pronounced to be law in any particular case. This arose from the rapidly growing feudal system. Imagine a condition of society where every one in order to live must seek a protector and put himself wholly under his control, where every one must become the liegeman of another more powerful. Since all sorts of property that could be carried away were wholly in the power of the stronger, all that was left for the mass of men to cling to was the land. The land could not be stolen, carried, led or driven away. Whoever expected to live must live by means of the land. He needed no title if some one would protect his occupancy. The barbarian conquerors claimed to own all the land, but it was of little use to them unless there were men to work and cultivate it. All those who lived upon it, serf or free, must recognize the conqueror’s title.
But it was not enough to be a conqueror. Some of the conquerors were more powerful than others, and the more powerful took property wherever they found it. It naturally turned out that every man became either willingly or unwillingly the man of some overlord. The world became composed wholly of lords and tenants. The tenant did homage to his lord for his land and the lord invested him with a title derived from himself. The serf took an oath of fealty to his superior and was allowed to occupy his little portion of land. Everywhere except where the old Roman law of ownership and title survived, the governing rule was “No land without a lord.”
At the bottom were the serfs; they held their land from the immediate occupant above them. The serf was protected by local custom as long as he performed the services, often very onerous, due to his lord, such as working upon the lord’s land so many days, or rendering to the lord certain produce of the land. But the serf, or villanus, was protected not from any recognition of justice but because his service and labor were valuable property. Next above the serfs were the free tenants. The lowest of them held by the rendition of service or rents of various kinds. Still higher were those who held their land on military service to be rendered to their immediate lord. And so the gradations went on up to the ruler of the state. Much of this situation arose from the voluntary act of the vassals seeking protection. On the other hand a lord desired followers and men. They were the source of his power. He would grant land upon all kinds of service: military service, menial service, the rendition of rent or provisions or anything else that he required. Sometimes the favored follower or vassal would be given an estate upon a merely nominal service, such as a rose or a glove.
The estate of the lord in the land was called a fief, and the one who held it from the king was called the tenant in chief; then came mesne (in between) tenants down to the terre tenants, who actually had possession. The terre tenant would grant or recognize rights of occupancy in his underlings. In feudal law the lord would hold the direct dominion or ownership of the land and the vassal would hold the right to use the land, the ownership in use. Various other incidental rights connected with fiefs such as wardship, marriage, reliefs, and aids can best be noticed under the law of England, where the feudal system was most symmetrical. It is not here necessary to consider how fiefs first granted for life became inheritable, nor is it necessary to point out the tendency of such an organization to split up the state into separate sovereignties.
The two elements of feudal law that are of especial importance are, first, the return to a state of private war between the holders of fiefs, who had no common judge or arbiter, and the right that came to be conceded to every lord of a fief to hold a court to judge all controversies between his tenants whether bond or free.
The general effect of the right to resort to private war, conceded by even so great a king as Louis IX of France, necessarily put an end to all law as between the holders of fiefs. In the Dark Ages the Church strove by every means in its power to put an end to this condition. The Truce of God was an agreement to abolish private war. The time from Thursday night to Monday morning was made a truce in memory of the Saviour’s crucifixion and resurrection. But the peculiar outgrowth of this condition was the barbarous survival of the right of trial by battle, which by a sort of common-law imbecility survived in England and was claimed and conceded as a right in the year of our Lord, 1819. It must be plain that when rights can be decided by the event of a fight, law ceases to exist.
The other feature of feudality by which a lord had the right to judge his tenants and was the fountain of justice to them led directly to the destruction or, what is the same thing, caused the prevention of, any rule of general law. Each fief depended for justice on the will of the lord or upon the decision of some one to whom the lord confided the jurisdiction. Generally, however, the lord was interested only in the fees resulting and in the profits of justice. He left the court to his free tenants, who pronounced the judgment of the court. Wherever such courts exist, a rule of law is, of course, more impossible than it was in the Greek popular courts.
But these baronial or manorial jurisdictions could not decide controversies between the lords of fees. One of the parties could not in such disputes give law for himself. There were crimes also of such importance that they were considered the subject of general justice. As to them, in France the right to judge was confided to superior lords. Thus it came about in France that general courts for a province or county would be held, and thus it resulted in after times, that the law changed as often as a county border was passed. This result could be removed only by some enactment of general law for the whole of France. It was not reached until the Code Napoléon made one system of law for the whole French nation.
While the feudal system was growing and destroying all chance for a general law in France, events were happening elsewhere that were of advantage to the recreation of law. In Italy the Lombards had been unable to root out the Roman law, for they could not work out any system without using portions of the Roman law. These parvenus were like others. They tried to ape the manners of the established and better bred. After the barbarous Lombard rule had met its fate at the hands of the Franks, the Italian cities were growing up again to some position of power and influence. They were gradually uprooting the rule of the nobles who were generally an inheritance of barbarian overlords. Commerce and trade, which are the result simply of a widespread desire to accumulate property, and which are, practically speaking, the only active instruments for civilizing men, were springing into life, and manufacturing was again reviving in the Italian cities. Soon wealth was to accumulate, the banking interest was to revive, and the extension of trade was to carry the operations of Italian banking houses throughout northern Europe.
As a natural result of the dominance of the Goths and of the continuous fighting in Italy of Justinian’s armies under Belisarius and Narses, and at last of the withdrawal of the armies of the Eastern Empire and the undisturbed rule of the Lombards, nothing was left of schools of law. The tradition of law was kept alive by notaries. It is not necessary to note any study of the Lombard law. It is ridiculous to call the legal study at Pavia anything approaching a liberal study of Roman law. But in some way manuscripts of the compilation of Justinian came into the hands of a teacher of law at Bologna. This teacher Irnerius dates from 1100 to 1150 A. D.1 A great advance had been made since 850 A. D. Certainly the time was long enough to have accomplished something. Other teachers succeeded Irnerius and some of them went out to teach law in other lands. They had the full collection of Justinian’s law: the Code, the Digest, the Institutes, and the Novels. Their method of exposition was by glossing or explanations on the side of the manuscript page. A practical reason, the cost of vellum, made this the usual course as to all manuscripts. The trouble with such a plan is that a teacher without his manuscript glossed is perfectly helpless. But gloss multiplied upon gloss with cross references to other passages in the Corpus Juris, until the mass of matter became unmanageable. Thereupon the elder Accursius compiled the glosses into the Great Gloss. Azo, the greatest of the school, devised a summa, or summary, which repeated and arranged the Institutes with some part of the Code. This Summa of Azo is of importance because Bracton, the first great writer in English law, obtained from Azo what equipment he had for writing the general theory and classification of law.
Any one who has read a part even of the work of these Glossators ought to be able to judge their jejune work. They had no sufficient equipment of knowledge. They knew nothing of history and could not locate themselves in the law. They fumbled their material so much that they could not use it. They had in their hands the finest products of the finest minds of the Roman world, and they could not use it for any purpose that was valuable. But, as usual, those who do not read these writings have exaggerated notions of their value. The Great Gloss of Accursius is inconceivably dreary reading. It is now of value only as indicating diverse readings of manuscripts. The Glossators did attempt to deduce now and then a general maxim, called a “brocard,” but that work is accurately described by an old lawyer as “cartloads of brocards to obscure the holiness of knowledge and the sacrosanctitude of truth.” Even Hallam says that Irnerius made the translation of the Novels called the Authenticum. There could be no greater error. Justinian’s Novels were written and published as laws in Greek, not in Latin. Justinian sent to the western lands reconquered by his generals a Latin version of his New Laws called the Authenticum. It went to Ravenna and from there passed to Bologna. The fortune of time has placed a very fine copy of it that was made for the Emperor Frederick II in the library of the University of Chicago. Any one who cursorily reads it can know at once that Irnerius was incapable of making such a translation.
The Glossators did not revive the juristic method, an achievement with which they are credited. As a matter of fact they were teachers of the law, but they were at the same time practical lawyers open to employment. It ought not to be necessary to say that generally speaking the most competent lawyers are found employed where the most money is forthcoming. Hence one who has any practical sense would know that these men, who knew more law than others, were generally in the employ of the German emperors or of some royal personage. Philip the Fair of France in his contest with Pope Boniface VIII had accomplished Romanist lawyers in his pay. The chronicler tells us that Henry II of England kept in his pay a gang of “bellowing legists” (Roman civil lawyers) whom he turned loose whenever he desired any particular legal result. These Bologna lawyers produced the kind of law that was needed. Similar phenomena we have seen in our own times in the case of those who can afford to pay.
Probably the real reason that caused the revival of the study of the Roman Digest and the Code, was that parts of that law could be used primarily to support the emperors in their struggle for Italy. There was a demand for that kind of law. At any rate these men versed in the Roman law figured an imperial law presiding over all local law. The Pope had crowned and anointed Charlemagne as the Roman Emperor. This empire had descended to the Ottos of Germany and their successors. The Bologna lawyers supplied the legal conceptions and wrote the language of the medieval emperors, by which they claimed to be the successors of the divine Augustus, Trajan, Constantine, and Justinian. The lawyers had little historical knowledge to trouble them, and they were acquainted with Italian conditions. For Italy the Bologna lawyers and their successors almost produced in theory a federated empire. They showed that all the north Italian cities owed fealty to the emperors, and that the imperial law of Rome presided over the various local laws. The poet Dante, more of a poet than statesman, was a warm supporter of the imperial claim of an empire, where the Italian cities should be a portion of the subject lands. There can be no question that if these lawyers could have had their way, the great Roman empire would have been restored.
But the growing separate and distinct nationalities of France, Spain, and England were too strong. The real struggle was masked by the fact that the papacy claimed that it was the representative of God on earth and superior to all earthly rulers. This claim had always to meet the opposition of the medieval lawyers. Innocent II, Gregory VII, Boniface VIII, and Innocent III carried the pretensions of the papacy very far, for they, in an age of superstition and fear, held the weapons of interdict and excommunication, but they failed. Could the popes have forgotten that they were priests and put themselves at the head of a national movement for Italy, the result would have been otherwise. But this was practically impossible, for the revenues of the papacy came from many lands. Italy for centuries paid the penalty of the lesson taught by these Italian doctors of the law that Italy could have no separate nationality. Its lands were harried, its wealth sacrificed, its institutions destroyed by the marching and countermarching of German, French, Spanish, and Austrian armies, mingled with the mercenaries of small Italian states. In all that sad and dreary history but one Italian emerged who could have been, had he not died so early, a medieval Cavour for Italy.
These Italian lawyers, called the Glossators, were bound down by their historical ignorance. They assumed that the Roman pope was the lineal successor of the Pontifex Maximus, head of a college of pagan hierophants. They struggled hard to reconcile the Roman law with the local law. They, in some ways, spoke the language of independence. Azo, the greatest doctor of them all, “the master of all the masters of law,” and Pope Gregory IX agreed that custom can make, abrogate, and interpret legislation. The whole school recognized that the function of making as well as of interpreting law belongs to the State. These legists asserted that as the people had given to the Emperor the power of legislation, they could resume it again. Irnerius, the first of them, was decided upon the question that the people had the duty of law-making in order to provide for individuals as members of society. Equality before the law was to them a necessity. They repeat the phrases of Cicero and expound in that sense the language of the Code and Digest. They are plainly hostile to any royal pretension that the ruler is not bound by the law. Irnerius had reached the conception of vested rights and due process of law. He asserts that the Emperor cannot annul a sale, a will, or a donation, he cannot confer a monopoly, he cannot do anything contrary to the written or the unwritten law, nor can he give judgment without hearing both sides. Azo asserts that the Emperor could not make laws without the consent of his chief officers and senate. These men understood what the Digest meant by the statement that whatever pleased the Emperor had the force of law. He had the power because he was given it by the people. They met trouble in the phrase that the Emperor is freed from the laws. This meant the ordinary police and private laws that could not apply to him. They quoted, however, the Code in the famous Digna Vox rescript:
It is a saying worthy of the majesty of the ruler that the Emperor should acknowledge that he is bound by the laws, for upon the authority of the law his authority depends, and in truth it is more advantageous to the commonwealth that the principate should be subject to the laws.
But the search of the writings of the Glossators, their dry comments and mistaken applications of the literal sense while they missed the juristic method, will not produce much that is valuable. They were not able to devise even a proper method of citation. The unilluminating matter has no relief of any kind. There is a tendency to run out into fine-spun distinctions, so general in that age, and much of the writing is rendered worthless. Late writers seem to think that these Glossators performed a great work in what it has become fashionable to call the legal renaissance of the twelfth century. As a penalty for this remarkable statement they should be compelled to read page after page of the Gloss in connection with the text of the law, and they would soon have an ennuied sense of the triviality, often departing into absurdity, of most of the Gloss. The truth is that these people had no sufficient legal atmosphere, and the curse laid upon them of utter sterility is the curse that afterwards made the ruin of the English common law. They lacked information sufficient to teach them the meaning of the things with which they were dealing. The tendency of lawyers to degenerate into mere technicians, when they have, as is often the case, no proper aid from general information, has always made the greater part of the profession lineal descendants of these Glossators.
A man is talking pure rhetoric and not fact who can say that “the works of these men are the only productions of medieval learning to which one can turn with some possibility of finding a solution of the doubts, difficulties, and problems which still beset the modern student.” Their main value to-day for a student is to teach him how far men can go astray when they talk of a subject of which they know little. If he cannot see how far these Glossators fail adequately to explain the writers in the Digest, he may be certain that to him apply Dryden’s caustic lines:
The thirteenth century continues with the futilities of the Glossators. The transition to the fourteenth century offers more relief. Civilians of a new sort have come upon the scene, who are called the Commentators. They gave up the gloss style of writing for actual comment and disquisition. They certainly had more knowledge. Men were gradually growing away from conditions of barbarism. The greater knowledge from the East was teaching many new things. Legal conditions were becoming more settled. The personal law that followed men had been as much a necessity as is to-day extraterritoriality of law in certain countries. But this personal law had given way to a territorial law. The territorial law was taking on more of the Roman law. The effects of the growing cities, expanding trade, and increasing wealth were having their effect in making conditions for the application of better law. But feudality and the lack of intercourse between men, the splitting up of the country into small jurisdictions, had created numberless bodies of local law. The Commentators threw themselves mainly upon propositions of the conflict of laws in trying to find rules to govern a particular transaction, where it was contended that different laws could be applied. This law has always continued to have a very great value, although the Commentators carried finespun distinctions to an inordinate thinness.
The conflict of laws is yet a great head in the law. Especially in the United States, composed of federated states, has this question of what law should govern had an immense importance. The courts of law of various states were open to all. A contract might be made in one state by citizens of another state to be performed in a third state, and might be sued upon in a fourth state. In the time of the Commentators the Medici bankers, Florentine subjects, at their branch house in the Netherlands might enter into a contract to be performed in Venice, and suit might be brought upon it in a court of the Visconti Duke at Milan. The laws of these different local divisions, states, cities, or provinces might differ greatly, and very troublesome questions might arise both in the application and in the proof of foreign law. In this particular subject the medieval law is the basis for the modern law, and this law may truly be said to have a value for the modern student. It does show a sense of juristic method and when we read it Astraea seems to be again on earth.
The great man of this school of Commentators was Bartolus of Sassoferrato. He was not only a teacher, but he had actual experience as a judge and as a jurisconsult giving responsa, or answers, upon legal questions. He wrote a number of legal tractates and in them we can find the general theory of the law in this conflicting condition. They still theorized the situation that the Roman law was the ruling law of the Empire, that the Italian states were parts of the Empire, that each Italian state had its own body of customary laws and its own legislation over which presided the imperial law of the Digest and the Code. Thus the federated state was roughly prefigured. The rule applicable under the feudal system of private war between societies enjoying different laws and no common arbiter was applicable. Bartolus did not rise to the level of law that the Emperor could compel these subjects to implead each other in an imperial court, for no machinery existed, but he did hold that in such a contest neither of the contending parties could rely upon his own law, and in instituting private war each was governed by the power of a superior authority. He said: “All the doctors of the law incline to the opinion that against the man or people, who neglects to do justice and to render what is due, resort can be had to a superior who may permit reprisals to the two litigants. First is required the authority of a superior for it is not lawful for any one by his own authority to give law unto himself. Second, it is required that the authority of the superior should interpose itself upon just cause.”
This law is applicable now to disputes between states of this Union. They may implead each other in the superior’s court, the Supreme Court of the United States. The machinery exists, and the contest is not to be governed by the law of either litigant, but by the law of the superior. Our Supreme Court says that “it must follow and apply the rules of general law even if legislation of one or both of the States seems to stand in the way.”2 It is rather a pity that the judge writing this opinion did not cite Bartolus, especially when in another connection he had ascribed to a phrase of Bartolus, a meaning exactly contrary to the meaning of Bartolus.
The authority of Bartolus could also be cited for further adaptations of the idea of an imperial or federal law in this country of ours. One may take those many instances where our Federal Courts, under the authority of the Supreme Court, refuse to recognize a rule of state law where it conflicts with a general law considered to be better and more just. Doubtless the Supreme Court did not know that it was following the example of the Roman praetors in being guided by general rules of law rather than the local law of the Roman city-state, or that it was following Bartolus in his conception of an overruling imperial law.
These Commentators did very able work upon the law, but they were entirely eclipsed by the great Romanists of the Renaissance, the true Renaissance of the fifteenth and sixteenth centuries. The ablest of those scholars was Cujas, and it is worth a trip to the heart of the old, sleepy French province of Berry to find the place from which Cujas sent forth his flood of light upon the Corpus Juris of Justinian. Modern Romanist scholars like Savigny have simply quarried into the wealthy deposit of material left by Cujas.
It is necessary now to turn to a system of law which had been growing in the tribunals of the Church. As a matter of necessity the Church kept to the Roman law, for the legal rights of the Christians and the power of the Church and its officers were defined by the compiled rescripts of the Christian emperors. Matters of marriage and divorce and matters of intestate succession were naturally left to the Church tribunals. Marriage was a sacrament and not to be touched by unholy hands. The Church courts had in their hands all the matters affecting last wills and testaments. This may seem strange, but it is not. Land was for ages the only wealth. No will could be made of land. The feudal system had fixed its descent, and land had practically reverted to the condition of the inalienable holding under the primitive law. Even when the right to alienate land became recognized, after a requirement, for a time, that the lord’s assent was necessary, no corresponding power to leave it by will was created. The small amount of property originally passing by will or upon an intestate’s death gave no great opportunity for governmental fees and charges, and we may be very sure that if there had been such a chance, the officers of a ruler would never have omitted an opportunity for more revenue, any more than a modern taxing body or legislature would omit to take advantage of any new means of squeezing out of the taxpayer a greater governmental revenue.
In those days the ordinary ruler thought that his poor subject might gain a chance for heaven by letting the priests have a part of the little personal property that he had left. They let the priests have a sort of inheritance tax. Every one believed that prayers for the dead were efficacious, and should be paid for. So what could be done except to take the cost of the prayers out of the decedent’s estate? This belief had come down, as we have seen, from primitive times. The Church very properly for that time taught that a deceased whose debts were not paid could never get out of purgatory. This is the reason why a testator in his will always begins with the injunction to pay all his just debts and liabilities. It is a wholly unnecessary clause. The debts must be paid under the law. But it is the irony of life that the most hardened atheistical lawyer when he comes to write a will slavishly inserts a clause dictated by the priests.
Naturally the Church claimed jurisdiction over all questions involving any of the clergy, even over crimes committed by them, and over all questions of Church property and Church discipline. Some unusually religious rulers were willing to leave to the Church tribunals a dispute between a layman and the Church as to whether land was ecclesiastical or not, but no English king was ever willing to do so. The Church was not permitted to obtain jurisdiction over private disputes of any other kind, although from very early days there are left descriptions of how the early Christians, taking a Biblical injunction literally, carried all their disputes to the bishop and how the bishop, assisted by elders, judged the various controversies. These decisions, it is needless to say, make an extraordinary travesty of the law. A contract was enforcible or not enforcible as the bishop’s court would decide whether it would, in accordance with Christian charity, be equitable to enforce it.
The profits of private litigation were too great for any feudal ruler to allow them to the Church. Certain matters of contract, involving good faith, were allowed to the Church tribunals, for the civil courts refused to recognize such contracts. All the petty offenses like adultery, fornication or other sinful lapses including, of course, heretical utterances or blasphemy, were confided to the Church authorities. The jurisdiction over perjury was originally a matter for the Church tribunals.
The ecclesiastical courts were the bishop’s courts, but the archdeacon of a diocese was given some jurisdiction mainly over petty offenses. He had his priestly summoners who pried into the private lives of the parishioners to enable the venerable archdeacon to levy fines on gay ladies and fast men. The minutiae of these courts are not important. Appeals lay, however, in ecclesiastical cases to the Pope at Rome, sitting in his curia. The practice, of course, in the ecclesiastical courts was in the hands of ecclesiastical lawyers, and the multiplication of cases and appeals made the profession of much importance in that law. The lawyers tended to make the practice uniform, while the one presiding appeal court made the substantive ecclesiastical law uniform. These tribunals produced a body of law culled from the decisions. The Pope promulgated additional matters by exercising the function of legislation. The Church Councils legislated. Finally came the elements of divine law introduced into the canon law. No churchman questioned that Moses had received the body of law in the first five books of the Old Testament directly from on high. All of it that seemed capable of incorporation in the canon law was inserted. The proof by two necessary witnesses came into the law in this way.
In the English chancery court this rule of the Hebrew law furnished the basis for the practice in chancery courts that the sworn answer must be overcome by the testimony of two witnesses or by one witness corroborated by other evidence. In the English law of treason the rule of the Hebrew law as to two witnesses was always recognized. The piety of chancellors caused them to refer in their opinions to the Scriptures. As late as decisions by Lord Chancellor Ellesmere under James I, his opinions will be found to be adorned by references to the Bible. Exodus was an unanswerable authority. Such references were notable during the Puritan domination, while the Anglican churchmen based their dogma of the divine character of the kingly office upon the text that “the powers that be are ordained of God.” James I believed that such texts gave him the right to dispense justice in his courts.
This whole collection of decisions, legislation human and divine, with rules of practice was called the canon law, wholly Roman except in the Hebrew elements. This body of law was collected in various books whose names are of no importance here. The fact that is of importance is that these courts followed the rules and the practice of the Roman law. This was not a fact of so much importance on the Continent, but in England, as we shall see, it became a matter of transcendent influence on the law. This situation explains why the practice of our chancery courts, the substance of our law of marriage and divorce, the law regarding wills, bequests, legacies, advancements, the practice and rules applied in our admiralty courts from the very beginning have all been openly dictated by the Roman law. The influence of Roman law on our common law has been more hidden.
The greatest effect of the canon law was to introduce into English law the conception of the Roman theory of contract, as being a question of agreement and intention. It will be seen that for centuries in England it was in the court of the chancellor that informal contracts were recognized and enforced. If a question of good faith were involved the ecclesiastical courts originally would take jurisdiction, but this jurisdiction was lost. The chancellor, however, retained his jurisdiction and it was from the chancery court that the general doctrines of the Roman law on the subject of contract gradually passed to the courts of common law.
This description of legal conditions on the continent of Europe has reached the point where the development of English law can be explained under the influence of the Roman and Canon law. For us the story of the law now turns to that English race to which we owe all our legal institutions. It would be far off the plan of this book to show how the Roman law finally supplanted every local system in the continental western lands that had been provinces of the Empire.
It is not a pleasant task to review the destruction of civilization in medieval times. Romances and tales of chivalry can never make that arid waste of cruelty and oppression other than what it was. We may whitewash our ancestors in all imaginable ways, but we cannot change the fact that they did their brutal worst to destroy all civilizing tendencies in the law. But there is some relief to the darkness. The ideal of kindness, compassion, and pity did not leave the earth. In the cloisters were many men of saintly lives. When Otto III of Germany tore out the tongue and blinded a priest at Rome who had opposed his course, an aged monk named Nilus, then over eighty years old, took a long journey to Rome to comfort the sufferer and rebuke the cruelty of the Emperor. It was just at the close of this darkened time that the founder of the Franciscan Friars created a new order to alleviate the sufferings of mankind, just as the order of the Dominicans was being founded to disseminate knowledge by becoming the preachers and instructors of Europe. The finest devotional book in literature, the Imitation of Christ, followed in the fourteenth century.
Perhaps we ought not to be too censorious of an age which believed in the legal theory that in a trial by battle God would give the victory to the one in the right, and in a trial by the ordeal God would intervene to protect an innocent person from conviction, for probably the majority of men whom we call civilized still persist in such beliefs.3 The fact that men can so quickly relapse to primitive notions under adverse conditions tends to prove, as many other human traits tend to prove, that the veneer with which civilization can cover the original animal is never so thick as our self-flattery would make us believe. It was in 1204 that the gang of pirates and freebooters calling themselves Crusaders for the Sepulcher of Christ captured and sacked the capital and ruined the empire of the Eastern Christians. The looting of Rome by pious sons of the Church far surpassed in its savagery the work of Alaric and Genseric. It was not many years ago that the troops of powers supposed to be civilized were looting, pillaging, and outraging helpless noncombatants in the city of Peking.
[1. ]Irnerius is now thought by many to have begun his career in the 1080s. He probably died by 1130. —C. J. R., Jr.
[2. ]Missouri v. Illinois and the Sanitary District of Chicago, 200 U.S. 496, 520 (1906). —C. J. R., Jr.
[3. ]Zane here paints with too broad a brush. The judicial ordeal became the subject of consistent clerical attack in the twelfth century, and clerical participation in ordeals was outlawed in 1215, thus effectively putting an end to the practice. See John W. Baldwin, “The Intellectual Preparation for the Canon of 1215 Against Ordeals,” Speculum 36 (1961): 613–36. —C. J. R., Jr.