been a distinctive feature of Roman rule. The political character and relationship of the several towns had always varied much, but there was always a certain amount of self-government present which would tend to keep alive, and to guard against foreign influences, the local laws. These laws, of course, largely related to contracts, sales, marriages, guardianship, Wills, and succession; and it is just this part of the Roman law which reappeared in the least mutilated form at the foundation of such of the modern States of Europe as did not entirely succumb to feudalism and its institutions. It is, indeed, more extraordinary how little reference, even of an unconscious kind, there is to Roman law in the capitularies of Charlemagne, in the Salic law, and in the Anglo-Saxon laws, than that in the towns of Southern France and Northern Italy the memory of Roman ideas and institutions should have been preserved by an unbroken tradition.

Another important mode in which the memory of Roman law was protected and handed down to a later age by the Barbarian sovereigns themselves was the institution of "personal law." Savigny, in his "History of Roman Laws in the Middle Ages," has cleared up the real nature of this institution, which had been misapprehended by most other writers, from Montesquieu to Hallam. At the period of the barbarian conquests, especially during the fifth, sixth, and seventh centuries, the law applicable even to the conquerors themselves was personal rather than territorial. The Lombard, the Goth, the Frank, the Burgundian, the Saxon, and the Roman, if casually residing in the same district, all enjoyed their separate laws. "It constantly happens," says Archbishop Agobard* in a letter to Louis le Debonnaire, "that of five persons, who are walking or sitting together, not one is subject to the same law as another." It was somewhat the same as at Alexandria at this day,

*

Agobardi Epistolæ ap. Bonquet, "Recueil des Historiens," tom. vi. p. 356, Ed. Paris, 1749. "Nam plerumque contigit ut simul eant aut sedeant quinque homines, et nullus eorum communem legem cum altero habeat exteriùs in rebus transitoriis, cùm interiùs in rebus perennibus una Christi lege teneantur."

where, for many purposes, English, French, Italians, Germans, Austrians, Greeks, and Egyptians are severally subject to their own laws, which, however, are, in this case, administered in separate consular tribunals.

The personal law of each was determined by certain. fixed rules. Generally speaking, a man inherited the law of the nation from which he was descended on his father's side; but there were exceptions. The Roman law was the law of the Church and of all ecclesiastics; but if a person who had children entered the service of the Church, the alteration of his law did not affect his descendants. Even in the case of ecclesiastics, however, the change of law was not imperative. It was only illegitimate children who could choose their own law. A married woman could, if she liked, assume the law of her husband; if she became a widow, she returned to the law of her father. A freedman, among the Burgundians, enjoyed his paternal law; among the Lombards, he was subject to the law of his patron. The Ripuarians recognized two forms of manumission, a Ripuarian and a Roman, each of which conferred upon the freedman the corresponding law; and it rested with the master to determine which of these forms should be used. For the purpose of administering the various systems of law, it seems that assessors of different nationalities were employed. An instance occurs in the account which has been handed down of an imperial decision given in a court sitting at Ravenna in A.D. 967, which was composed of Romans, Franks, Lombards, Saxons, and others.* In applying the different laws, the composition for crimes was determined by the law of the aggrieved party. In civil matters, the law of the defendant regulated the decision. In later times, the judgment appears to have been pronounced upon a comparison of the respective laws of the parties. The validity of all judicial acts and of

* Fantuzzi. "Monumenti Ravennati de' Secoli di Mezzo." Venice, 1802, vol. ii. p. 28.

+ "Collatis Justinianiæ et Langobardorum Capitulis legis -dederunt sententiam." Mabillon. Annales ordinis St. Benedicti, Paris, 1707. Appendix to vol. iv. No. 32.

caths, bonds, and wills was determined by the law of the person performing the act. The Burgundians, however, had the option of employing either the Roman or the Burgundian form in the execution of wills and grants. In a law of the Lombard King Luitprand,* notaries are strictly enjoined to frame all documents either according to the Lombard or the Roman law.

These notices of the actual administration of Roman law under barbarian rulers, the full import of which was first brought to light by Savigny, are indeed extremely minute, and impress the common-place imagination far less vividly than the notion of a sudden re-discovery of Roman law through the finding of a copy of the Digest at Amalphi, when the city was taken by the Pisans, in 1135. But the facts above adverted to, which are worked out at length by Savigny, sufficiently show that such a discovery, even if historical, was wholly superfluous for the purpose of the diffusion and knowledge of Roman law. In town life, in the transactions of commerce and trade everywhere, and in every court of justice in which any one of Roman parentage could be a suitor, Roman law was ceaselessly obeyed and practised. In the meantime, the Barbarian Codes and the compilations of Justinian, which were in actual force in parts of Italy up to the ninth century, and had been extensively circulated in the sixth and seventh, must have kept the authoritative text of the imperial law in its best and latest forms contantly before the eyes of those concerned to know and study it.

§ 2.—The Middle-Age Universities and the Glossarists.

The next distinct stage in the history of the civil law in Europe is marked by the practice of the public teaching of law in some of the cities of North Italy, especially Ravenna, Pavia, and Bologna. Peter Damianus, bishop of Ostia, born at Ravenna in 988, has left behind him a treatise, De parentele gradibus, in which he cites five passages of

Leges Longobard. i. 29, 2.

the Institutes of Justinian, and refers his opponents to the codes-ad vestros codices, ad Instituta vestra recurrite. He also says that when he came to Ravenna he found much discussion going on on the degrees of consanguinity. There are also scattered notices in early records of Archbishop Lanfranc, and of Bishop Pepo of Bologna, of the teaching of law in Pavia and in Bologna in the course of the eleventh century.

It is Irnerius who is usually reputed to have been the founder of the great law school of Bologna, at the beginning of the twelfth century.

Irnerius is known as the first of the "Glossators," a school of critical commentators on the manuscripts of Justinian's compilations, whose works had a considerable influence on the mode in which the law was studied in Europe for some centuries afterwards, so much so that it came to be held that an unglossed passage had no validity. The process of "glossing" included readjustment of the text, and interlined or marginal notes, first short, and afterwards long, for the purpose of explaining difficulties and reconciling contradictions. The first phase of the school of glossators lasted during the whole of the twelfth century. It continued during part of the thirteenth, and closed with Accursius, who died about 1260. It was from Bologna that, in 1144, Vacarius, one of the chief glossators, was brought to Oxford by Archbishop Theobald, for the purpose of founding a law school there. When there he published-so far as the notion of publication is applicable to those times-his book of briefly annotated extracts from Justinian's works, so as to spare students the expense of rare manuscripts. His work was called "Liber ex universo enucleato jure exceptus et pauperibus præsertim destinatus." It is said that from this book the name of Pauperists was given to the Oxford students.

The University of Bologua presents a brilliant spectacle at this time. Whatever "darkness" there was in these Middle Ages came from the obscurity and limitation of the subjects of study, and not from the want of illumination in the students and their teachers. It is said that at one

time there were as many as ten thousand students gathered at Bologna from different countries, of all ages and of all professions, clerical as well as lay.

Besides reconstructing the text and adding marginal explanations, the glossators commented in four other distinct ways, that is to say, by what were called apparatus, summæ, casus, and brocarda. Apparatus were continuous and connected comments of an expository and paraphrastical kind. Summa were brief and summary accounts of the text to be given afterwards, like the heading in italics prefixed to an English law report. Casus were illustrative varieties of circumstances for the purpose of showing the purport and detailed application of a law. Brocarda were general rules of law drawn from comparison and reconciliation of texts.

In the middle of the twelfth century that curious rivalry sprang up between the Roman civil law and the laws of the Church which gave rise to the creation of a separate code of Canon law for the government of the Church and its members, which, as will shortly be seen, became itself an important instrument in the preservation of the form and some of the notions of the old Roman law.

It was Bernard, the accuser of Abelard, who made an outcry against the devotion shown by ecclesiastics to the study of the secular law. Addressing himself to Pope Eugenius III. (between 1145 and 1153) he says, "Quando oramus? Quando docemus populos? Quando ædificamus ecclesiam? Quando meditamus in lege? Et quidem perstrepunt in palatio leges, sed Justiniani non Domini." *

Successive Councils held in France forbade ecclesiastics to study secular law. Thus the Council at Tours in 1162, presided over by Pope Alexander III., prohibited any one who had vowed a religious profession from studying physics or secular law (leges mundana). At the beginning of the next century, in 1220, Honorius III. republished this decree, and forbade the teaching of Roman law in Paris

* "De Consideratione," ad Eng. iii., lib. 1, ed. 4, ton 2. p. 410 of the edition of 1690.