CHAPTER XXXIII

MEDIAEVAL APPROPRIATION OF THE ROMAN LAW

I. THE FONTES JURIS CIVILIS.

II. ROMAN AND BARBARIAN CODIFICATION.

III. THE MEDIAEVAL APPROPRIATION.

IV. CHURCH LAW.

V. POLITICAL THEORIZING.

Classical studies, and the gradual development of mediaeval prose and verse, discussed in the preceding chapters, illustrate modes of mediaeval progress. But of all examples of mediaeval intellectual growth through the appropriation of the antique, none is more completely illuminating than the mediaeval use of Roman law. As with patristic theology and antique philosophy, the Roman law was crudely taken and then painfully learned, till in the end, vitally and broadly mastered, it became even a means and mode of mediaeval thinking. Its mediaeval appropriation illustrates the legal capacity of the Middle Ages and their concern with law both as a practical business and an intellectual interest.

I

Primitive law is practical; it develops through the adjustment of social exigencies. Gradually, however, in an intelligent community which is progressing under favouring influences, some definite consciousness of legal propriety, utility, or justice, makes itself articulate in statements of general principles of legal right and in a steady endeavour to adjust legal relationships and adjudicate actual controversies in accordance. This endeavour to formulate just and useful principles, and decide novel questions in accordance with them, and enunciate new rules in harmony with the body of the existing law, is jurisprudence, which thus works always for concord, co-ordination, and system.

There was a jurisprudential element in the early law of Rome. The Twelve Tables are trenchant announcements of rules of procedure and substantial law. They have the form of the general imperative: “Thus let it be; If one summons [another] to court, let him go; As a man shall have appointed by his Will, so let it be; When one makes a bond or purchase,[341] as the tongue shall have pronounced it, so let it be.” These statements of legal rules are far from primitive; they are elastic, inclusive, and suited to form the foundation of a large and free legal development. And the consistency with which the law of debt was carried out to its furthest cruel conclusion, the permitted division of the body of the defaulting debtor among several creditors,[342] gave earnest of the logic which was to shape the Roman law in its humaner periods. Moreover, there is jurisprudence in the arrangement of the Laws of the Twelve Tables. Nevertheless the jurisprudential element is still but inchoate.

The Romans were endowed with a genius for law. Under the later Republic and the Empire, the minds of their jurists were trained and broadened by Greek philosophy and the study of the laws of Mediterranean peoples; Rome was becoming the commercial as well as social and political centre of the world. From this happy combination of causes resulted the most comprehensive body of law and the noblest jurisprudence ever evolved by a people. The great jurisconsults of the Empire, working upon the prior labours of long lines of older praetors and jurists, perfected a body of law of well-nigh universal applicability, and throughout logically consistent with general principles of law and equity, recognized as fundamental. These were in part suggested by Greek philosophy, especially by Stoicism as adapted to the Roman temperament. They represented the best ethics, the best justice of the time. As principles of law, however, they would have hung in the air, had not the practical as well as theorizing genius of the jurisconsults been equal to the task of embodying them in legal propositions, and applying the latter to the decision of cases. Thus was evolved a body of practical rules of law, controlled, co-ordinated, and, as one may say, universalized through the constant logical employment of sound principles of legal justice.[343]

The Roman law, broadly taken, was heterogeneous in origin, and complex in its modes of growth. The great jurisconsults of the Empire recognized its diversity of source, and distinguished its various characteristics accordingly. They assumed (and this was a pure assumption) that every civilized people lived under two kinds of law, the one its own, springing from some recognized law-making source within the community; the other the _jus gentium_, or the law inculcated among all peoples by natural reason or common needs.

The supposed origin of the _jus gentium_ was not simple. Back in the time of the Republic it had become necessary to recognize a law for the many strangers in Rome, who were not entitled to the protection of Rome’s _jus civile_. The edict of the praetor Peregrinus covered their substantial rights, and sanctioned simple modes of sale and lease which did not observe the forms prescribed by the _jus civile_. So this edict became the chief source of the _jus gentium_ so-called, to wit, of those liberal rules of law which ignored the peculiar formalities of the stricter law of Rome. Probably foreign laws, that is to say, the commercial customs of the Mediterranean world, were in fact recognized; and their study led to a perception of elements common to the laws of many peoples. At all events, in course of time the _jus gentium_ came to be regarded as consisting of universal rules of law which all peoples might naturally follow.

The recognition of these simple modes of contracting obligations, and perhaps the knowledge that certain rules of law obtained among many peoples, fostered the conception of common or natural justice, which human reason was supposed to inculcate everywhere. Such a conception could not fail to spring up in the minds of Roman jurists who were educated in Stoical philosophy, the ethics of which had much to say of a common human nature. Indeed the idea _naturalis ratio_ was in the air, and the thought of common elements of law and justice which _naturalis ratio inter omnes homines constituit_, lay so close at hand that it were perhaps a mistake to try to trace it to any single source. Practically the _jus gentium_ became identical with _jus naturale_, which Ulpian imagined as taught by nature to all animals; the _jus gentium_, however, belonged to men alone.[344]

Thus rules which were conceived as those of the _jus gentium_ came to represent the principles of rational law, and impressed themselves upon the development of the _jus civile_. They informed the whole growth and application of Roman law with a breadth of legal reason. And conceptions of a _jus naturale_ and a _jus gentium_ became cognate legal fictions, by the aid of which praetor and jurisconsult might justify the validity of informal modes of contract. In their application, judge and jurist learned how and when to disregard the formal requirements of the older and stricter Roman law, and found a way to the recognition of what was just and convenient. These fictions agreed with the supposed nature and demands of _aequitas_, which is the principle of progressive and discriminating legal justice. Law itself (_jus_) was identical with _aequitas_ conceived (after Celsus’s famous phrase) as the _ars boni et aequi_.

The Roman law proper, the _jus civile_, had multifarious sources. First the _leges_, enacted by the people; then the _plebiscita_, sanctioned by the Plebs; the _senatus consulta_, passed by the Senate; the _constitutiones_ and _rescripta[345] principum_, ordained by the Emperor. Excepting the _rescripta_, these (to cover them with a modern expression) were statutory. They were laws announced at a specific time to meet some definite exigency. Under the Empire, the _constitutiones principum_ became the most important, and then practically the only kind of legal enactment.

Two or three other sources of Roman law remain for mention: first, the _edicta_ of those judicial magistrates, especially the praetors, who had the authority to issue them. In his edict the praetor announced what he held to be the law and how he would apply it. The edict of each successive praetor was a renewal and expansion or modification of that of his predecessor. Papinian calls this source of law the “_jus praetorium_, which the praetors have introduced to aid, supplement, or correct the _jus civile_ for the sake of public utility.”

Next, the _responsa_ or _auctoritas jurisprudentium_, by which were intended the judicial decisions and the authority of the legal writings of the famous jurisconsults. Imperial rescripts recognized these _responsa_ as authoritative for the Roman courts; and some of the emperors embodied portions of them in formally promulgated collections, thereby giving them the force of law. Justinian’s _Digest_ is the great example of this method of codification.[346] One need scarcely add that the authoritative writings and _responsa_ of the jurisconsults extended and applied the _jus gentium_, that is to say, the rules and principles of the best-considered jurisprudence, freed so far as might be from the formal peculiarities of the _jus civile_ strictly speaking. And the same was true of the praetorian edict. The Roman law also gave legal effect to _inveterata consuetudo_, the law which is sanctioned by custom: “for since the laws bind us because established by the decision of the people, those unwritten customs which the people have approved are binding.”[347]

Simply naming the sources of Roman law indicates the ways in which it grew, and the part taken by the jurisconsults in its development as a universal and elastic system. It was due to their labours that legal principles were logically carried out through the mass of enactments and decisions; that is, it was due to their large consideration of the body of existing law, that each novel decision--each case of first impression--should be a true legal deduction, and not a solecism; and that even the new enactments should not create discordant law. And it was due to their labours that as rules of law were called forth, they were stated clearly and in terms of well-nigh universal applicability.

The Laws of the Twelve Tables showed the action of legal intelligence and the result of much experience. They sanctioned a large contractual freedom, if within strict forms; they stated broadly the right of testamentary disposition. Many of their provisions, which commonly were but authoritative recognitions, were expressions of basic legal principles, the application of which might be extended to meet the needs of advancing civic life. And through the enlargement of this fundamental collection of law, or deviating from it in accordance with principles which it implicitly embodied, the jurists of the Republic and the first centuries of the Empire formed and developed a body of private and public law from which the jurisprudence of Europe and America has never even sought to free itself.

Roman jurisprudence was finally incorporated in Justinian’s _Digest_, which opens with a statement of the most general principles, even those which would have hung in the air but for the Roman genius of logical and practical application to the concrete instance. “Jus est ars boni et aequi”--it is better to leave these words untranslated, such is the wealth of significance and connotation which they have acquired. “Justitia est constans et perpetua voluntas jus suum cuique tribuendi. Juris praecepta sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere. Jurisprudentia est divinarum atque humanarum rerum notitia, justi atque injusti scientia.”

The first pregnant phrase is from the older jurist Celsus; the longer passage is by the later Ulpian, and may be taken as an expansion of the first. Both the one and the other expressed the most advanced and philosophic ethics of the ancient world. They are both in the first chapter of the _Digest_, wherein they become enactments. An extract from Paulus follows: “_Jus_ has different meanings; that which is always _aequum ac bonum_ is called _jus_, to wit, the _jus naturale_: _jus_ also means the _jus civile_, that which is expedient (_utile_) for all or most in any state. And in our state we have also the praetorian _jus_.” This passage indicates the course of the development of the Roman law: the fundamental and ceaselessly growing core of specifically Roman law, the _jus civile_; its continual equitable application and enlargement, which was the praetor’s contribution; and the constant application of the _aequum ac bonum_, observed perhaps in legal rules common to many peoples, but more surely existing in the high reasoning of jurists instructed in the best ethics and philosophy of the ancient world, and learned and practised in the law.

Now notice some of the still general, but distinctly legal, rather than ethical, rules collected in the _Digest_: The laws cannot provide specifically for every case that may arise; but when their intent is plain, he who is adjudicating a cause should proceed _ad similia_, and thus declare the law in the case.[348] Here is stated the general and important formative principle, that new cases should be decided consistently and _eleganter_, which means logically and in accordance with established rules. Yet legal solecisms will exist, perhaps in a statute or in some rule of law evoked by a special exigency. Their application is not to be extended. For them the rule is: “What has been accepted _contra rationem juris_, is not to be drawn out (_producendum_) to its consequences,”[349] or again: “What was introduced not by principle, but at first through error, does not obtain in like cases.”[350]

These are true principles making for the consistent development of a body of law. Observe the scope and penetration of some other general rules: “Nuptias non concubitus, sed consensus facit.”[351] This goes to the legal root of the whole conception of matrimony, and is still the recognized starting-point of all law upon that subject. Again: “An agreement to perform what is impossible will not sustain a suit.”[352] This is still everywhere a fundamental principle of the law of contracts. Again: “No one can transfer to another a greater right than he would have himself,”[353] another principle of fundamental validity, but, of course, like all rules of law subject in its application to the qualifying operation of other legal rules.

Roman jurisprudence recognized the danger of definition: “Omnis definitio in jure civili periculosa est.”[354] Yet it could formulate admirable ones; for example: “Inheritance is succession to the sum total (_universum jus_) of the rights of the deceased.”[355] This definition excels in the completeness of its legal view of the matter, and is not injured by the obvious omission to exclude those personal privileges and rights of the deceased which terminate upon his death.

Thus we note the sources and constructive principles of the Roman law. We observe that while certain of the former might be called “statutory,” the chief means and method of development was the declarative edict of the praetor and the trained labour of the jurisconsults. In these appears the consummate genius of Roman jurisprudence, a jurisprudence matchless in its rational conception of principles of justice which were rooted in a philosophic consideration of human life; matchless also in its carrying through of such principles into the body of the law and the decision of every case.

II

The Roman law was the creation of the genius of Rome and also the product of the complex civilization of which Rome was the kinetic centre. As the Roman power crumbled, Teutonic invaders established kingdoms within territories formerly subject to Rome and to her law--a law, however, which commonly had been modified to suit the peoples of the provinces. Those territories retained their population of provincials. The invaders, Burgundians, Visigoths, and Franks, planting themselves in the different parts of Gaul, brought their own law, under which they continued to live, but which they did not force upon the provincial population. On the contrary, Burgundian and Visigothic kings promulgated codes of Roman law for the latter. And these represent the forms in which the Roman law first passed over into modes of acceptance and application no longer fully Roman, but partly Teutonic and incipiently mediaeval. They exemplify, moreover, the fact, so many aspects of which have been already noticed, of transitional and partly barbarized communities drawing from a greater past according to their simpler needs.

One may say that these codes carried on processes of decline from the full creative genius of Roman jurisprudence, which had irrevocably set in under the Empire in the fourth and fifth centuries. The decline lay in a weakening of the intellectual power devoted to the law and its development. The living growth of the praetorian edict had long since come to an end; and now a waning jurisprudential intelligence first ceased to advance the development of law, and then failed to save from desuetude the achieved jurisprudence of the past. So the jurisprudential and juridical elements (_jus_) fell away from the law, and the imperial constitutions (_leges_) remained the sole legal vehicle and means of amendment. The need of codification was felt, and that preserving and eliminating process was entered upon.

Roman codification never became a reformulation. The Roman _Codex_ was a collection of existing constitutions. A certain jurist (“Gregorianus”) made an orderly and comprehensive collection of such as early as the close of Diocletian’s reign; it was supplemented by the work of another jurist (“Hermogenianus”) in the time of Constantine. Each compilation was the work of a private person, who, without authority to restate, could but compile the imperial constitutions. The same method was adopted by the later codifications, which were made and promulgated under imperial decree. There were two which were to be of supreme importance for the legal future of western Europe, the Theodosian Code and the legislation of Justinian. The former was promulgated in 438 by Theodosius II. and Valentinianus. The emperors formally announce that “in imitation (_ad similitudinem_) of the Code of Gregorianus and Hermogenianus we have decreed that all the Constitutions should be collected” which have been promulgated by Constantine and his successors, including ourselves.[356] So the Theodosian Code contains many laws of the emperors who decreed it.[357] It was thus a compilation of imperial constitutions already in existence, or decreed from year to year while the codification was in process (429-438). Every constitution is given in the words of its original announcement, and with the name of the emperor. Evidently this code was not a revision of the law.

The codification of Justinian began with the promulgation of the _Codex_ in 529. That was intended to be a compilation of the constitutions contained in the previous codes and still in force, as well as those which had been decreed since the time of Theodosius. The compilers received authority to omit, abbreviate, and supplement. The _Codex_ was revised and promulgated anew in 534. The constitutions which were decreed during the remainder of Justinian’s long reign were collected after his death and published as _Novellae_. So far there was nothing radically novel. But, under Justinian, life and art seemed to have revived in the East; and Tribonian, with the others who assisted in these labours, had larger views of legal reform and jurisprudential conservation than the men who worked for Theodosius. Justinian and his coadjutors had also serious plans for improving the teaching of the law, in the furtherance of which the famous little book of _Institutes_ was composed after the model, and to some extent in the words, of the _Institutes_ of Gaius. It was published in 533.

The great labour, however, which Justinian and his lawyers were as by Providence inspired to achieve was the encyclopaedic codification of the jurisprudential law. Part of the emperor’s high-sounding command runs thus:

“We therefore command you to read and sift out from the books pertaining to the _jus Romanum_ composed by the ancient learned jurists (_antiqui prudentes_) to whom the most sacred emperors granted authority to indite and interpret the laws, so that the material may all be taken from these writers, and incongruity avoided--for others have written books which have been neither used nor recognized. When by the favour of the Deity this material shall have been collected, it should be reared with toil most beautiful, and consecrated as the own and most holy temple of justice, and the whole law (_totum jus_) should be arranged in fifty books under specific titles.”[358]

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:

“Since for many divers reasons, on account of the great and manifold difficulties in the laws, even the Doctors of the laws cannot without pains reach a certain opinion, we, taking account of both laws, to wit, the _jus civile_ and the _jus naturale_, unfold the solution of controversies under plain and patent heads. Whatever is found in the laws that is useless, void, or contrary to equity, we trample under our feet. Whatever has been added and surely held to, we set forth in its integral meaning so that nothing may appear unjust or provocative of appeal from thy judgments, Odilo;[380] but all may make for the vigour of justice and the praise of God.”

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_.

“The established laws are to be understood benignly, so as to preserve their spirit, and prevent their departure from equity; for the Judge recognizes ordainments as legitimate when they conform to the principles of justice (_ratio equitatis_).... Interpretation is sometimes general and imperative, as when the lawgiver declares it: then it must be applied not only to the matter for which it is announced, but in all like cases. Sometimes an interpretation is imperative, but only for the special case, like the interpretation which is declared by those adjudicating a cause. It is then to be accepted in that cause, but not in like instances; for not by precedents, but by the laws are matters to be adjusted. There is another kind of interpretation which binds no one, that made by teachers explaining an ambiguous law, for although it may be admissible because sound, still it compels no one. For every interpretation should so be made as not to depart from justice, and that all absurdity may be avoided and no door opened to fraud.”[387]

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:

“Now we must discuss the _ratio possessionis_. _Usucapio_ in the _jus civile_ hinges on possession, and ownership by the _jus naturale_ may take its origin in possession. There are many differences in the ways of acquiring possession, which must be considered. And since in the _constitutiones_ and _responsa prudentium_ divers reasons are adduced regarding possession, my associates have begged that I would expound this important and obscure subject in which is mingled the _ratio_ both of the civil and the natural law. So I will do my best. First one must consider what possession is, how it is acquired, maintained, or lost. Possession (here the author follows Paulus and Labeo in the _Digest_) is as when one’s feet are set upon a thing, when body naturally rests on body. To acquire possession is to begin to possess. Herein one considers both the fact and the right. The fact arises through ourselves or our representative. It is understood differently as to movables and as to land; for the movable we take in our hand, but we take possession of a farm by going upon it with this intent and laying hold of a sod. The intent to possess is crucial. Thus a ring put in the hand of a sleeper is not possessed for lack of intent on his part. You possess naturally when with mind and body (yours or another’s who represents you) you hold or sit upon with intent to possess. Corporeal things you properly possess, and acquire possession of, by your own or your agent’s hand. In the same manner you retain. Incorporeal things cannot be possessed properly speaking, but the civil law accords a quasi possession of them.”

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:

“It is one thing when the possession begins with you, and another when it is transferred to you by a prior possessor: for possession begins in three ways, by occupation, accession, and transfer. You occupy the thing that belongs to no one. By accession you acquire possession in two ways. Thus the increment may be possessed, as the fruit of thy handmaid; or the accession consists in the union with a larger thing which is yours, as when alluvium is deposited on your land. Again possession is transferred to you,”

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.

In the unstable fragmentation of secular rule in the ninth century, the Isidorean _Decretals_ presented the truth of the situation as it was to be, although not as it had been in the times of the Church dignitaries whose names were forged for that collection. And thereafter, as the Church recovered from its tenth-century disintegration, it advanced to the pragmatic demonstration of the validity of those false _Decretals_, on through the tempests of the age of Hildebrand to the final triumph of Innocent III. at the opening of the thirteenth century. Evidently the canon law, whatever might be its immediate or remote source, drew its authority from the sanction of the Roman Catholic Church, which enunciated it and made it into a body corresponding to the Church’s functions. It was what the Church promulgated as the law of the ecclesiastical hierarchy and the kingdom of God on earth. It should be the temporal and legal counterpart of the Church’s spiritual purposes. Its general tendency and purpose was the promotion of the Church’s saving aim, which regarded all things in the light of their relationship to life eternal. Therefore the Church’s law could not but define and consider all worldly interests, all personal and property rights and secular authority, with constant regard to men’s need of salvation. The advancement of that must be the final appellate standard of legal right.

Such was the event. The entire canon law might be lodged within those propositions which Hildebrand enunciated and Innocent III. realized. For the salvation of souls, all authority on earth had been entrusted by Christ to Peter and his successors. Theirs was the spiritual sword; secular power, the sword material, was to be exercised under the pope’s mandate and permission. No king or emperor, no layman whatsoever, was exempt from the supreme authority of the pope, who also was the absolute head of the Church, which had become a monarchy. “The Lord entrusted to Peter not only the universal Church, but the government of the whole world,” writes Innocent III., whose pontificate almost made this principle a fact. In private matters no member of the clergy could be brought before a secular court; and the jurisdiction of the ecclesiastical courts over the laity threatened to reduce the secular jurisdiction to narrow functions.[407] The property of the Church might not be taxed or levied on by any temporal ruler or government; nor could the Church’s functions and authority be controlled or limited by any secular decree. Universally throughout every kingdom the Church was a sovereignty, not only in matters spiritual, but with respect to all the personal and material relationships that might be connected in any way with the welfare of souls.[408]

V

The exposition of the _Corpus juris civilis_ in the school of the glossators was of great moment in the evolution of _mediaeval political theory_, which in its turn yields one more example of the mediaeval application of thoughts derived from antique and patristic sources. Political thinking in the Middle Ages sought its surest foundation in theology; then it built itself up with concepts drawn from the philosophy and social theory of the antique world; and lastly it laid hold on jurisprudence, using the substance and reasoning of the Roman and the Canon law.

Mediaeval ideas upon government and the relations between the individual and his earthly sovereign, started from theological premises, of patristic origin: _e.g._ that the universe and man were made by God, a miraculous creation, springing from no other cause, and subject to no other fundamental law, than God’s unsearchable will, which never ceases to direct the whole creation to the Creator’s ends. A further premise was the Scriptural revelation of God’s purpose as to man, with all the contents of that revelation touching the overweening importance of man’s deathless soul.

Unity--the unity of the creation--springs from these premises, or is one of them. The principle of this unity is God’s will. Within the universal whole, mankind also constitutes a unit, a community, specially ordained and ordered. The Middle Ages, following the example of the patristic time, were delivered over to allegory, and to an unbridled recognition of the deductions of allegorical reasoning. Mankind was a community. Mankind was also an organism, the mystical body whereof the head was Christ. Here was an allegory potent for foolishness or wisdom. It was used to symbolize the mystery of the oneness of all mankind in God, and the organic co-ordination of all sorts and conditions of men with one another in the divine commonwealth on earth; it was also drawn out into every detail of banal anthropomorphic comparison. From John of Salisbury to Nicholas Cusanus, Occam and Dante, no point of fancied analogy between the parts and members of the body and the various functions of Church and State was left unexploited.[409]

Mankind then is one community; also an organism. But within the human organism abides the duality of soul and body; and the Community of Mankind on earth is constituted of two orders, the spiritual and temporal, Church and State.[410] There must be either co-ordination between State and Church, body and soul, or subordination of the temporal and material to the eternal and spiritual. To evoke an adjustment of what was felt to be an actually universal opposition, was the chief problem of mediaeval polity, and forms the warp and woof of conflicting theories. The Church asserted a full spiritual supremacy even in things temporal, and, to support the claim, brought sound arguments as well as foolish allegory--allegory pretending to be horror-stricken at the vision of an animal with two heads, a bicephalic monstrosity. But does not the Church comprise all mankind? Did not God found it? Is not Christ its head, and under Him his vicegerent Peter and all the popes? Then shall not the pope who commands the greater, which is the spiritual, much more command the less, the temporal? And all the argumentation of the two swords, delivered to Peter, comes into play. That there are two swords is but a propriety of administration. Secular rulers wield the secular sword at the pope’s command. They are instruments of the Church. Fundamentally the State is an ecclesiastical institution, and the bounds of secular law are set by the law spiritual: the canon law overrides the laws of every State. True, in this division, the State also is ordained of God, but only as subordinate. And divinely ordained though it be, the origin of the State lies in sin; for sin alone made government and law needful for man.[411]

On the other hand, the partisans of the State upheld co-ordination as the true principle.[412] The two swords represent distinct powers, Sacerdotium and Imperium. The latter as well as the former is from God; and the two are co-ordinates, although of course the Church which wields the spiritual sword is the higher. This theory creates no bicephalic monster. God is the universal head. And even as man is body as well as soul, the human community is State as well as Church; and the State needs the emperor for its head, as the Church has the pope. The Roman Dominion, _imperium mundi_, was legitimate, and by divine appointment has passed over to the Roman-German emperor. Other views sustaining the scheme of co-ordination upheld a plurality of states, rather than one universal Imperium. Of course these opposing views of subordination or co-ordination of State and Church took on every shade of diversity.

As to both Church and State, mediaeval political theory was predominantly monarchical. Ideally this flowed from the thought of God as the true monarch of the universe. Practically it comported with mediaeval social conditions. Under Innocent III., if not under Gregory VII., the Church had become a monarchy well-nigh absolute.[413] The pope’s power continued plenary until the great schism and the age of councils evoked by it. For the secular state, the common voice likewise favoured monarchy. The unity of the social organism is best effected by the singleness of its head. Thomas Aquinas authoritatively reasons thus, and Dante maintains that as the unifying principle is Will, the will of one man is the best means to realize it.[414] But monarchy is no absolute right existing for the ruler’s benefit, rather it is an office to be righteously exercised for the good of the community. The monarch’s power is limited, and if his command outrages law or right, it is a nullity; his subjects need not obey, and the principle applies, that it is better to obey God than man. Even when, as in the days of the Hohenstaufen, the civil jurists claimed for the emperor the _plenitudo potestatis_ of a Roman Caesar, the opposite doctrine held strong, which gave him only a limited power, in its nature conditioned on its rightful exercise.

Moreover, rights of the community were not unrecognized, and indeed were supported by elaborate theories as the Middle Ages advanced to their climacteric. The thought of a contract between ruler and people frequently appears, and reference to the contract made at Hebron between David and the people of Israel (2 Sam. v. 3). The civil jurist also looked back to the principle of the _jus gentium_ giving to every free people the right to choose a ruler; also to that famous text of the _Digest_, where, through the _lex regia_, the people were said to have conferred their powers upon the princeps.[415] With such thoughts of the people’s rights came theories of representation and of the monarch as the people’s representative; and Roman corporation law supplied the rules for mediaeval representative assemblies, lay and clerical.[416]

The old Germanic state was a conglomerate of positive law and specific custom, having no existence beyond the laws, which were its formative constituents. Such a conception did not satisfy mediaeval publicists, imbued with antique views of the State’s further aims and potency. Nor were all men satisfied with the State’s divinely ordered origin in human sinfulness. An ultimate ground for its existence was sought, commensurate with its broadest aims. Such was found, not in positive, but in natural law--again an antique conception. That a veritable natural law existed, all men agreed; also that its source lay back of human conventions, somehow in the nature of God. All admitted its absolute supremacy, binding alike upon popes and secular monarchs, and rendering void all acts and positive laws contravening it. It must be the State’s ultimate constituent ground.

God was the source of natural law. Some argued that it proceeded from His will, as a command, others that its source was eternal Reason announcing her necessary and unalterable dictates; again its source was held to lie more definitely in the Reason that was identical with God the _summa ratio in Deo existens_, as Aquinas puts it. From that springs the _Lex naturalis_, ordained to rest on the participation of man, as a rational creature, in the moral order which he perceives by the light of natural reason. This _lex naturalis_ (or _jus naturale_) is a true promulgated law, since God implants it for recognition in the minds of men.[417] Absolute unconditional supremacy was ascribed to it, and also to the _jus divinum_, which God revealed supernaturally for a supramundane end. A cognate supremacy was ascribed to the _jus commune gentium_, which was composed of rules of the _jus naturale_ adapted to the conditions of fallen human nature.

Such law was above the State, to which, on the other hand, positive law was subject. Whenever the ruler was conceived as sovereign or absolute, he likewise was deemed above positive law, but bound by these higher laws. They were the source and sanction of the innate and indestructible rights of the individual, to property and liberty and life as they were formulated at a later period. It is evident how the recognition of such rights fell in with the Christian revelation of the absolute value of every individual in and for himself and his immortal life. On the other hand, certain rights of the State, or the community, were also indestructible and inalienable by virtue of the nature of their source in natural law.[418]

This abstract of political theory has been stated in terms generalized to vagueness, and with no attempt to follow the details or trace the historical development. The purpose has been to give the general flavour of mediaeval thought concerning Church and State, and the Individual as a member of them both. One observes how the patristic and mediaeval Christian thought mingles with the antique; and one may assume the intellectual acumen applied by legist, canonist, and scholastic theologian to the discussion and formulation of these high arguments. The mediaeval genius for abstractions is evident, and the mediaeval faculty of linking them to the affairs of life; clear also is the baneful effect of mediaeval allegory. Even as men now-a-days are disposed to rest in the apparent reality of the tangible phenomenon, so the mediaeval man just as commonly sought for his reality in what the phenomenon might be conceived to symbolize. Therefore in the higher political controversies, even as in other interests of the human spirit, argument through allegory was accepted as legitimate, if not convincing; and a proper sequence of thought was deemed to lie from one symbolical meaning to another, with even a deeper validity than from one palpable fact to that which followed from it.