“Practical Jurisprudence”: Bartolists, Tract-Writers, Consiliatores

In much of Europe the potential of the Bartolist “system”—that is, its capacities as a tool in legal practice—are best seen in the massive activity of the practical jurists.

This was how the jurist protected himself from an increasingly cen­tralized political power that was becoming organized in increasingly authoritarian ways and was stripping many legal operators (the hum­bler run of lawyers, employees in the offices of the nascent bureaucra­cies, court consultants, and so forth) of their autonomy and their free­dom of action. It was also how the jurist guaranteed himself and his class a vital and still prestigious social and political position within the princely order.

The consilium was the genre that best expressed the great (or would-be great) Italian jurist’s sense of his social position. This was a tradition that had originated long before, in the twelfth century, and had given the “commentators” of the fourteenth century matter for study and theoretical elaboration.^[233]

The most significant consilia from the historical point of view were the ones given by the doctores. This is not only because portions of them have been preserved in manuscript codices and printed editions but also because they showed the strict connection between theory and practice more clearly, thanks to the theoretical elaboration called for in teaching, in a focused scholarly output, or in the exercise of practical legal activities on a high level.

This connection is obvious in many instances, but at least two epi­sodes might be recorded here. First, during the first decades of the thirteenth century, Accursius gave a consilium in part derived word for word from a gloss taken from an apparatus of Azo, part of the substance and the form of which Accursius himself later used for a gloss that eventually appeared in XhcMagnaglossa^u Second, toward the end of the 1320s Riccardo Malombra, as we have seen,^{[234] [235] gave a consilium at Bologna that only a few years later (with appropriate modifications and along with other consilia) passed into the com­mentaria ofBartolus of Saxoferrato.}

Consilia were requested and given in a wide variety of forms, but they all documented a strong connection between theory and prac­tice. For instance, a judge or a private citizen formulated a question involving the narration of an event and stating a legal doubt arising from that event; or he might describe an act or event that already had a legal solution and that outlined the litigation that had arisen or was about to arise concerning that solution; or he might formulate a series of legal questions to submit to a jurist for an opinion in the form of a simple affirmative or negative response.

Requests for consilia were written on a sheet of parchment, or in a special register that the jurists kept in their studios for the use of cli­ents, or they might arrive in a letter from distant lands. The responses (the consilia proper) were expressed in a corresponding form, on the same parchment or paper sheet as the request, in the same register, or in a letter.

These acts and the related documents accumulated rapidly between the thirteenth and the fifteenth centuries. At the same time, consilia written not by a single jurist but by various sorts of groups of jurists (more important, by groups of jurists deliberately brought together for that purpose) began to appear. Some consilia were signed by a number of colleagues and fellow-jurists; some were written up and signed by one doctor and then elaborated upon and linked—perhaps with only a brief phrase or the addition of a citation from the Corpus iuris civilis or from canon law—by the doctor’s son (himself a doctor) or by a pupil in his school.

The emperor, the pope, and lesser rulers made use of well-known doctores to arbitrate quarrels or to help avoid foreseeable controver­sies. In such cases there was usually a preliminary exchange of letters in which the terms of the questions were clarified, both as to what had happened and as to what legal rules were involved. At an appro­priate time, the parties gathered together, the necessary proofs were marshalled, the legal problems were discussed, and possible solutions were tested. Finally the jurist, as the arbiter of important and diver­gent interests, made his decision, citing Roman and canon law in the text of his sententia (opinion).

This entire procedure has left only fragmentary traces, because the letters were lost and no accurate and complete minutes of the discus­sions or the testimony of witnesses remain. At best we have references and mentions included in the final act stating the decision. Afterwards the decision might easily have been distorted by being inserted, along with many other fragments of various provenance, into a generic col­lection of consilia and tractatus. This is what happened, for example, with Vatican codex Vat.lat. 10726, where the compiler quite obvi­ously intended to transfer results of practical activity into the theoreti­cal sphere so that the outcome could be of use to practitioners as well as to theorists.

The price for a consilium was always extremely high. Not only did the principal consultant or an entire college of jurists have to have their recompense, but also anyone who had added a signature or a word or two could claim his due. The cost might be as high as the semester’s or year’s stipend for a professor who taught in the famous and wealthy university schools of the age, and it might even be much larger. For example, at a time when a professor of logic and philoso­phy in Florence was paid an annual stipend of forty gold florins and a professor of medicine twenty-five, in Bologna one consilium could cost as much as one hundred florins! Here, quite evidently, economic data cannot escape having a precise significance, since they express the monetary value of the jurist doctors’ power.

There were some nondescript collections made by bundling to­gether the positiones, allegationes, letters, and consultations of a num­ber of jurists, transcribing them in whole or in part, summarizing their texts or abridging only one portion, on occasion simply omit­ting references to persons, names, and dates. There were also better- organized collections that concentrated on one jurist (perhaps adding a scattering of writings of his colleagues and adversaries) or related to one topic or one major sector, such as succession, dowries, or crim­inal law. There were also collections that carefully documented (or attempted to document) the full range of one jurist’s activities. At the turn of the fifteenth century, some famous jurists reworked earlier se­ries of consilia by jurists whose word still bore weight in collective memory, and they took the opportunity to emphasize anew the essen­tial relationship between what was produced for the courtroom and what was elaborated on the level of doctrine for the guidance of that practical legal activity.

On occasion open and bitter polemics arose. The most famous of these was a quarrel that raged between Andrea Alciato and Tiberio Deciani (d. 1582), which seems to have originated in an apparently innocuous question:^[236] Was it useful or harmful that many, perhaps all, jurists published their consilia, either out of a passion for celebrity or because they were persuaded that they were making an appreciable scholarly contribution to practice or offering useful and practical pro­fessional tools?

It was hardly by coincidence that a “humanist” jurist such as An­drea Alciato was hostile to the practice of printing immense sets of consilia. His attack against the rampant tide of consilia that were being turned out by the publishers of his day was in fact perfectly consistent with the central thrust of his work, which aimed at stripping the ius commune of all potential application to practice and relegating it to the realm of history and “antiquity.” With Vico,^[237] Alciato held that it would be better to give Roman law back to the Romans, which would remove it from the hands of jurists who had made it a tren­chant tool in their practice—jurists intent on maintaining their per­sonal position and the prestige of a class that resisted the centraliza­tion of the new and authoritarian princely and monarchical orders that absorbed all power to themselves.

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