nals. The Church was not finally strong enough to effect full recognition of its law in secular Courts. II: The second phase in the evolution of Italian jurisprudence began in the middle of the thirteenth century when the school of the Glossators was succeeded by the school of the Commentators, which endured for the next two hundred years These are often called the "Post-Glossators," or Bartolists."29 66 The Commentators derived their name from their method of writing lengthy commentaries replete with scholastic distinctions. The method of the Commentators was different from that of the Glossators. The Glossators had written short explanatory notes on the text of the Corpus Juris; the Commentators wrote exhaustive discussions of legal doctrines not having much inner connection with the passage of the Corpus Juris to which they are connected. The Commentators worked differently because their task was unlike that of their predecessors. The Commentators did not address themselves to explaining the Corpus Juris-that task seemed finished to them; but they began the new task of trying to construct a Roman law to fit the actual life of their age. In the fourteenth century the time had come for amalgamating the Lombardic and Roman population into an Italian people. While Dante, Petrarch, and Boccacció created a national literature, Cinus, Bartolus, and Baldus created a national law out of Roman law and Lombardic customs. The law of practical life had consisted of three parts-Roman law, statute law of Italian cities, and Canon law. Roman law, theoretically of universal authority, was combined with the German law actually in force, and with the ecclesiastical law of the Church: the result was that the Commentators Italianized Roman law, making it in its combined and composite shape a living common law of Italy. By their development of a scientific system of law applicable in actual life the Commentators first shewed the late medieval and the rising modern world how to make a national jurisprudence out of Roman law and existing Teutonic customary law by fusing the twothe Roman law becoming the predominant element. This new "Common law," as events proved, was not to be confined to Italy, but was strong enough to exercise a dominant impulse throughout the western world. So successful were the labours of the Commentators that their new amalgamated See Girard. Manuel de droit romain, 5th ed.. p. 85. juridical produce was borrowed all over Europe. Posterity owes an incalculable debt of gratitude to the Italian Commentators for their wonderful success in accomplishing the task to which they addressed themselves. The development of a national jurisprudence was brought about by the Commentators in this way: they introduced scholastic tenets into legal science. Scholasticism consisted in the predominance of abstract conceptions-its essence lay in the predominance of the deductive method. The scholastic position is that science is nothing but what can be deduced from most general conceptions. It is the method of Aristotle applied to law. The Commentators endeavoured by analysis of each rule to trace back the rules of law to general conceptions. Now the Roman jurists never did this: they dealt with definite legal conceptions. But the principal concern of the medieval Commentators was with the making of definitions and distinctions. Not yet has the influence of scholastic methods entirely passed away: it is still to be seen in modern jurisprudence. The Commentators, in transforming Roman law into medieval law, made a sort of philosophical jurisprudence out of law. Reviving the spirit of antiquity, they revived and preached the Greek and Roman doctrine of the Law of Nature as permeating all law whatsoever. The Law of Nature was that there, is an eternal immutable Natural Law, valid at all times and at all places, which can be deduced by a purely intellectual process from the very nature of things. It took the medieval world by storm, and has continued down into modern times, surviving the advent of the nineteenth century historical school of Savigny. Where scholasticism erred was to suppose that logical inferences can take the place of obser vations. The most famous of many renowned Commentators were C'inus, Bartolus and Baldus, all of whom lived in the fourteenth century. Cinus30 was an eminent jurist and law professor. He was associated with the greatest men of his century: Dante was his friend,31 and Petrarch32 and Boccaccio are said to have been his pupils. To another pupil, Bartolus, Cinus gave the impulse for his wonderful labours in the field. of law. Bartolus is the greatest of the Commentators. His creative legal genius was of a very high order. Here are two in 20 Cino da Pistoia (1270-1336). 31 See Colquhoun, Roman law, $168. 32 Id. Petrarch wrote a famous sonnet on Cinus' death. stances: (1) Bartolus discussed the subject of the conflict of laws, and "was the first to point out" that, in determining how far a state should enforce a foreign law, regard must be particularly paid to the question whether the rule of law is real (circa rem), personal (circa personam), or mixed (sallemnitas actus). This distinction of Bartolus is retained to-day in modern private international law. (2) Bartolus discussed the power of a corporation to make binding rules, and "was the first to point out" that there is a distinction between a rule to regulate a political community and a rule to internally regulate a corporation; that while a corporation can make rules of the latter sort, rules of the former sort can be made only by somebody having political authority. Thus Bartolus expressed for the first time the distinctive character of the State's political authority. The great reputation of Bartolus rests on his revival of the exegetical system of teaching law. His best work is his Commentaries on Roman law, which became renowned for their excellence all over Europe.3 36 These actually received at one time statutory authority in Spain and Portugal. In France the opinions of Bartolus were so influential in Courts of justice that their weight gave rise to the proverbial expressions, "plus résolu que Bartole" and "résolu comme un Bartole." The influence of Bartolus was international. He was the central figure of the Middle Ages in legal history. Not only did he create a common law for Italy, but he is to be regarded as "the creator of the common law of Germany which sprang from the reception" of Roman law into the German states.38 37 66 9935 Next in rank to Bartolus is his pupil Baldus." The reputation of Baldus was great in Italy, but he was not so distinguished internationally as Bartolus. When Roman law as embodied in the commentaries of Bartolus was received into Germany, those of Baldus were also received in a secondary degree.. Faculty of Law, Yale University. 34 See Sohm. Roman Law, $27. CHARLES P. SHERMAN. For their description, see Colquhoun. Roman law. $155: Ortolan, Hist. de leg. rom., §629. 36 Other valuable works were his treatises On Procedure and On Evidence. 37 Sohm, Roman law, $28. 38 Sohm. Roman law. $28. 39 Baldeschi (132741406). 40 See Sohm. Roman law, $28. SASKATCHEWAN STATUTES. Whatever unfavourable comment any adverse critic may feel disposed to make upon the legislation of the Province of Saskatchewan, it is quite certain that, if he have the slightest regard for the Eternal Verities, he cannot accuse it of a slavish imitation of the enactments of the older provinces. Indeed, so far is this from the case that it is positively refreshing to witness the breezy boldness and nonchalance with which this vigorous young community has blazed and followed out its own path through the jungle of legal difficulties that confronted it. In some respects this free and easy dealing with the time-honoured traditions of the past reminds one of the antics of a lot of school boys broken loose from the life-long trammels of the old-time teachers, and resolved not only to have a thoroughly good time, but also to shew their utter contempt for everything which they had been compelled to regard with reverence in the days of their innocent youth. LEGISLATIVE NECROMANCY. For instance, no feeling of reverence has prevented them from laying violent hands on even so time-honoured an institution as the English language, and decreeing that certain words, which have heretofore from time immemorial borne a certain meaning, shall henceforward bear an entirely different meaning. It is almost like a conjuring trick and is quite a novel experience in etymology. To come to concrete instances. No word is probably better established in the nomenclature of English and Canadianand we may add, American-law than the familiar word "incumbrancer." Everyone knows what an incumbrancer is. He is one who holds or owns an incumbrance (such, for instance, as a mortgage) on land. How familiar in mortgage actions has ever been the practice which prescribes an enquiry as to subsequent incumbrancers, meaning persons who have charges on the land subsequent to the mortgage in question.. That is all very familiar learning, of course. But in Saskatchewan we find that "by the stroke of a quill" the meaning of the word "incumbrancer" has been turned completely round. In that Province it means not the one who holds an incumbrance but the one who creates it. To indicate the one who holds the incumbrance a new word has been created. That individual is an "incumbrancee." Now, some purists may cavil at the temerity of a youthful community of the English race that does not hesitate to lay sacrilegious hands upon the time-honoured English language, but at least such critics must admit that there is a strong dash of logic in the action of this young Province. For, if one who mortgages, or makes a mortgage, is a mortgagor, and one to whom a mortgage is made, a mortgagee, why should not one who incumbrances, or makes an incumbrance, be an incumbrancer, and one to whom or in whose favour it is made an incumbrancee. Surely that is logical. "Very good," you say, "then let us pursue the argument a little further." If this line of argument is sound and is a sufficient excuse for wrenching well established English words from their recognized meanings and arbitrarily affixing new meanings to them, then it is equally permissible to carry the line of reasoning to its logical conclusion, and to apply it to all words of similar formation. So, for instance, we get rid at one stroke of the great army of pensioners. What a boon to our cousins across the border, could they follow our lead-because it is obvious, by the same chain of reasoning, that a pensioner must be one who pensions, or bestows a pension, and the one who receives it becomes a pensionee. And similarly we rid ourselves at once of the great and objectionable host of "prisoners," because a prisoner is evidently one who prisons or puts in prison some one else, and the person imprisoned is obviously a "prisonee." So we have the curious result of the learned Judge (for it is he who imprisons the malefactor) finding himself suddenly converted into the "prisoner," while the erstwhile prisoner becomes the prisonee. But to pursue this line of argument is too bewildering. It reminds one of Gilbertian comic opera, where one is not surprised to be told that "General John as-private James Fell in, parade upon, And private James by change of names It would in point of fact require the genius of the late lamented Mr. Gilbert to do complete justice to the situation. Some may be inclined to ask, "What was the necessity or what the utility of separating incumbrances into "mortgages " |
