LECTURE II.

THE ROMAN LAW SINCE JUSTINIAN.

THE Germanic tribes which became masters of Gaul, Spain, and Italy, in the fifth century, kept their Germanic law-customs for themselves, but suffered the conquered populations to remain under the old Roman law. Hence a system of personal, rather than territorial law. Persons were sometimes allowed to choose their own law by a professio. The multiplicity of systems was increased by the growth of an ecclesiastical law, founded on the Roman, but with features peculiar to itself, for ecclesiastical persons and relations.

In Britain, on the contrary, the Saxons and Angles, driving out the native inhabitants, became sole occupants of the conquered districts, and thus had no Roman law existing with and acting upon their own.

Some of the Germanic chiefs (Alaric the Visigoth, Theodoric the Ostrogoth, Sigismund the Burgundian) issued, for the use of their native subjects, summaries of the Roman law, drawn from the Theodosian code and other earlier sources. These appeared shortly before the Corpus Juris of Justinian, and were vastly inferior to it in extent and value.

It was formerly believed that the knowledge of the Corpus Juris in Western Europe began with the discovery of a copy (the Florentine MS. of the Digest, said to have been found by the Emperor Lothar II. at the taking of Amalfi in 1136. But Savigny has shown that the Corpus Juris, introduced into Italy during the reign of Justinian, never ceased to be known and used in parts of that country. But about 1100 (opening era of the Crusades) we find a greatly revived and extended study of the Roman law, carried on especially at Bologna, by a series of acute and profound law teachers, called glossators, from the marginal glosses or comments which they wrote on their copies of the Corpus Juris. A voluminous collection of these glosses, made by Accursius, one of the last glossators (died 1260), is printed in old editions of the Corpus Juris.

As the effect of these studies, the Corpus Juris came to be received as law, as the main (though not exclusive) source of private law, first in

Italy, then in Southern France (pays de droit écrit), and at length (from the close of the thirteenth century) in Germany. In the last, it was favored by sovereigns who claimed to be chiefs of a Roman Empire, successors of Augustus, Constantine, and Justinian.

In Northern France (pays de coutume), the old customary law of the provinces-an unwritten body of Germanic usages, mixed with Roman elements and many things of later origin—maintained its leading position; but with this, to supply its deficiencies, the Corpus Juris was received as auxiliary law. In Spain, too, it was received in much the same way.

In England, the Roman law has never been received, even as auxiliary law. The common law (mainly an unwritten customary system, founded ultimately on Germanic usages) claims to supply its own needs by the extension of its own principles and analogies. Some of its expositors, as Blackstone, have shown an unreasonable jealousy of the Roman law. Yet the common law has been largely influenced by the Roman, in various ways: 1. Through the ecclesiastical courts, their canon law being founded on the Roman. 2. Through the court of chancery, all the early chancellors being ecclesiastics, and therefore familiar with the canon law, if not with the Roman system. 3. Through the development of commercial law in its various departments. The old common law was mainly a (feudal) law of real estate. When personal property rose into greater importance, and complex relations of business and trade had to be provided for, it was natural to adopt principles from the civil law as developed and applied on the continent of Europe.-(Early borrowing from Roman law sources seen in Bracton.)

The position of the Roman law in some countries has been lowered in appearance by the formation of new codes. A general code for the states of Prussia, projected by Frederick the Great in 1746, was prepared many years later, 1784-'88, and went into effect in 1794. In France, the changes caused by the Revolution seemed to call for a new code, but not much was done toward it until Napoleon became head of the state. The Code Napoleon, prepared in little more than two years, was proclaimed in 1804. It was followed in 1811 by a code for the German hereditary states of the Austrian monarchy. Yet, in all these countries, a knowledge of the Roman law is still regarded as essential to a proper understanding of their legal systems, and therefore as the necessary basis of a legal education.

THERE is a wide difference in the effects of a conquest, according as the conquerors are superior in civ

ilization to the conquered, or inferior. When the Romans, under the lead of Cæsar, had become masters of Gaul, the old Celtic language of the country soon disappeared, and with it the old customs, laws, and institutions of the people. The language, laws, and institutions of the Romans took their place. In the course of a few generations, Gaul was thoroughly Romanized. Against a superior civilization armed with the force of political and military ascendency, the inferior had no chance of maintaining itself. But when the political and military ascendency is on one side, and the superior civilization on the other, the contest is more evenly balanced. When Romanized Gaul was overrun and subjugated by Germanic tribes in the fifth century, the conquerors did not impose either their language or their laws on the conquered people. In communicating with one another they continued for a considerable length of time to use their German mother-tongue : even Charlemagne, three centuries after Clovis, habitually spoke German. But in time they gave up their old language, and adopted the corrupt Roman of the country. Their laws they retained for their own use, as might have been expected, with much greater tenacity; but even these they did not attempt to impose upon the native population. Though naturally attached to their own long-established usages, and unwilling to abandon them, they seem to have felt that these usages were suited only to themselves; that the

requirements of civilized society, of settled and peaceful life, were better fulfilled by the highly-developed, complex jurisprudence of the Romans. Hence arose a very curious state of things, a system of personal, rather than territorial, law: the law to which a man was subject depended not so much on the place where he lived, as the race to which he belonged. The principle was, "German law for the Germans (i. e., the Franks, Burgundians, etc.), and Roman law for the Romans (i. e., the descendants of Romanized Gauls)." Thus two neighbors living side by side would be subject to wholly different systems, because one was of Gallic origin and the other of Germanic. Indeed, the principle was carried even further. The Franks were divided into two great sections, each of which had its own system of legal rules and customs, the Salian, or Western, and the Ripuarian, or Eastern, Franks. Now a Salian, wherever he might be, in whatever part of France, was judged by the Salic law; and in like manner a Ripuarian by the Ripuaric. In the case of a married woman, however, the law was determined, not by her nationality, but by her husband's, her legal existence and personality being regarded as merged in his. Where the parties to a lawsuit were of different nationalities, the law to be applied by the court was determined, sometimes by the person of the plaintiff who could claim that rights given him by his law had not been respected by the other party, and sometimes by the

person of the defendant who could maintain that in all his dealings with the other party he had only exercised rights conferred upon him by his law. In some cases a person had the privilege of making a professio, as it was called, i. e., of declaring publicly by what law he would live and be judged. Of the confused and motley character of such a system (if the word system thus applied is not a misnomer) it is difficult to form an adequate conception. The complication was further increased by the separate position of the clergy; all clerical persons, of whatever nationality, being subject to an ecclesiastical law, which, though in the main derived from the Roman, had many elements and features peculiar to itself.

The state of things here described, as subsisting in Gaul under the Franks, was not confined to that prov ince. It prevailed with little difference in Spain under the Visigoths, and in Italy under the Lombards. The condition of Britain was essentially different. That remote dependency of the empire, among the last to be gained, among the first to be abandoned, had never been but very partially Romanized. And its conquest by the Germanic invaders, unlike that of the continental provinces, was a very slow and gradual one, proceeding from step to step for a hundred and fifty years. As one district after another became untenable, it was deserted by the old inhabitants, who by a journey of one or two days could escape from the detested