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the domination of legal life by the Roman and Canon laws; and, by altering the religious and ecclesiastical map of Europe, the Reformation also altered its legal map, restricting within narrower limits the field of influence of the Canon Law. The rise of national territorial states into ascendency introduced, moreover, one of the most potent of all the forces that were making for a decline of legal Romanism; for, in order to meet the needs of nationalism in political growth, the law was based more and more on those native elements which had their origin in the customs and legislation of the national past.

This story of the fate of Roman and Canon Law in modern times is absorbing in its interest; and it is also of great practical importance to those who study and administer the legal systems of Europe in their present state. But, in order to understand, in its true historical perspective, this diminished authority of the two Romanic laws in modern times, it is necessary for us to grasp, in our mental gaze, a range of time far wider than the epoch of the Renaissance. We ought, in fact, to take into account the movements in legal thought and legal growth which marked the centuries of the middle age; and, at the same moment, we ought to hold in remembrance not only the immediate effects of the epoch of Renaissance and Reformation, but also its later influences on the development of the European laws of our own time. If, in this fashion, we cast our minds over the whole of our Christian era, we can understand far better the true significance of the spread of Roman and Canon laws as one of the dominant factors in legal history; and, at the same time, we are enabled to behold that Romanic factor in its relationship to another equally vital force in Western history. That second factor consists, fundamentally, in the diffusion and development of Germanic and other non-Romanic laws and customs. In its broadest

aspect European legal history is, in fact, the struggle of these Romanic and non-Romanic elements for ascendency; and only by an understanding of that struggle can we unravel the tangled threads of Western Law. More and more, as historical knowledge increases, scholars are coming to see with greater clearness than before that the legal systems of our own time are the outgrowth of vast and complicated processes of combination and fusion, and that these processes have marched, and marched ceaselessly, from the days of the ancient Roman Empire. The elements that have been combined or fused by this long historical evolution are primarily Romanic and Germanic in character; and yet other elements, elements that are not properly to be classed as either Romanic or Germanic, have worked themselves into the several bodies of law as the result of the spread of feudalism, the rise of towns, the extension of commerce, the increase in royal power, the development of nationalities, the progress of democracy, and other similar historical movements.


In the earlier medieval centuries the pre-Justinianean legal sources, including the Theodosian Code, were the leading documentary factors in a slow process of Romanisation; and in the course of this contact with Germanic custom the Roman Law, as embodied in the Roman sources, itself suffered decay. By the middle of the eleventh century this historical tendency towards the amalgamation of Germanic and Roman and other elements, a tendency illustrated in a striking way by the composite nature of the leges romanae and the leges barbarorum of the Germanic kingdoms, had already given to the medieval laws and customs of the communities of Europe some of their most distinctive characteristics. While those laws and customs were still predominantly

Germanic, they were nevertheless marked at many points by the Romanic influences that had played upon them. Nor is it without interest to observe that in the school of Lombard Law at Pavia1 the jurists were divided into the antiqui and the moderni : the former devoted themselves chiefly to the native Lombardic Law, while the latter, better versed in the Roman Law, sought to use it as a means for the practical improvement of the native system. Among the antiqui were Valcausus and Bonifilius; Guglielmus and Lanfranc, the Lanfranc who was the most famous of the Pavese jurists and who later played a great role in England, were both of the moderni. Thus, in the controversies of the jurists at Pavia we may see the beginnings of that long, and at times bitter, struggle between the Germanists and the Romanists, a struggle which, even in our own day, is still a force in legal development.

With the eleventh-century revival of studies in Roman and Canon laws at Bologna, a revival which owed much to the example of the school of Lombard Law at Pavia, the law books of Justinian, awakened to new life, began to displace the earlier Roman sources as factors in legal growth2; they spread the influence of their rules and principles far and wide throughout Europe and stamped a Romanism upon the laws and customs of the later middle age which had been unknown in the previous centuries. The Justinianean codification, which thus entered in the

1 During last year, 1925, the Pavese Law School celebrated its eleventh centenary. Two essays by Professor Solmi, which have just appeared, throw new light on the history of the school in the middle


2 Sir Paul Vinogradoff reminds us, in his Roman Law in Mediaval Europe (p. 36), that there was in the eleventh century, in the south of France, a marked revival in the study and application of the law of Justinian, probably in close connection with Italy "; and, as he justly observes, the existence of this French centre of the legal revival helps to show that the more powerful and influential revival of Bologna was an event arising out of the spontaneous growth of ideas and requirements in different localities of the more civilised regions of Europe."

eleventh century upon a new epoch of its history, was a Byzantine compilation of Roman Law, with an admixture of much that was Greek, suited to the needs of Eastern society in the sixth century. It was this Graeco-Roman Law of the Later Roman Empire, therefore, which the glossators and postglossators not only interpreted and explained, but which they adapted in their writings to the needs of Western medieval society, and which they thus, in fact, transformed into a body of Romano-Italian Law. While the basis of this law was the Justinianean text, it was the glosses and commentaries of the jurists, because they embodied the living Italian Law, which soon came to hold in the practice of the courts an authority even greater than the original text itself. The "Justinianean Law" of medieval Italy, therefore, was only partly ancient and Roman; one half of it was composed of medieval and Germanic elements, drawn by the jurists from the Lombard and Canon laws as well as from Italian city statutes and medieval thought.1 If we bear this significant fact in mind, it should occasion us no surprise to find that this medievalised Roman Law spread from Italy to many other European communities where social conditions were not dissimilar to those in the Peninsula.

Moreover, the Canon Law, in its origin and development an off-shoot from the main stock of Roman Law, became the object of study by glossators and commentators; and more and more it also spread, together with the Romano-Italian Law, to the farthest parts of Europe. Not only was it everywhere enforced as the law of the Church in the ecclesiastical

1 The revival of the Justinianean Law as the basis of the medieval law of the West is comparable, in some respects, to the restoration of the Justinianean Law in the East by the famous Baσiλiká of Basil I and his son Leo the Philosopher, at the end of the ninth and beginning of the tenth centuries. Both in the East and in the West the Justinianean texts were adapted by the jurists to the social needs of the time.

courts, but many of its substantive rules and procedural features were embodied in the secular laws of nearly all the European medieval communities. The canonical system embodied many principles of private law; and, wherever these were at variance with principles of Roman Law, they rested for the most part on Germanic conceptions. Thus the spread of the Canon Law, not less than that of the "Justinianean Law," meant the diffusion of many legal ideas that were non-Romanic in character.


If, then, we hold in mind the bold outlines of the history of European Law from Roman times to our own day, and especially if we compare the later medieval with the early modern processes of legal growth, the later middle age, the age which stretches from the middle of the eleventh to the end of the fifteenth century, emerges into clear historical perspective as the great creative epoch of the spread, or "Reception," of the two Romanic laws in Europe. Within that epoch of four and a half centuries, an epoch even longer than the one which extends from the Discovery of the Americas to the present time, a masterful, and an all-pervasive, stream of Romanic influence, emanating from the juristic schools of Italy, displaced or modified the native laws and customs of many scattered regions. Particularly within those parts of Europe which had been materially Romanised in ancient times, and which had experienced Romanic legal influences in the early middle age, this medieval reception of the Justinianean and Canon laws, in their medieval form, was a potent force in legal development; and even in countries remote from Italy, such as England, where native legal institutions were more firmly planted, this influence was felt in ways which left upon the law a permanent Romanic imprint. In medieval Italy

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