LECTURE III ROMAN LAW IN FRANCE

Authorities : Brachylogus juris civilis ed. Backing, 1829 ; Lo Codi, ed. H. Fitting und II. Sitchier, 1906 ; E. Litten, Ueber lo Codi und Seine Stellung in der Ent­wickelung des Culpa—Problems in the Melanges, Fitting, II, 1908 ; A.

i. T HAVE already had occasion to notice

X several facts which show that Italy was by no means the only country in which signs of a revival of civilisation appeared in the eleventh century. France was also on the way towards new ideals of culture and learning. If Italian life was preparing for the rise of Bologna, French life was gathering strength for the glory of the University of Paris. The course of the latter was dedicated to the arts, divinity, and canon law, but the great scholastic movement, consisting in the concentration of studies, was nowhere more powerful than in Paris, and it could not but react on legal learning. It showed a growth of intellectual power which by itself was bound to benefit indirectly the study of laws. And indeed, we find many products of French scholarship dedicated to law at the same critical period when the Italian school was gradually taking shape. Besides the Exccptiones Petri, already mentioned above, I should like to call attention to the work of Ivo of Chartres (about noo).

The most interesting contribution of France to the revival of Roman Law is the recently discovered summary of Justinian’s Code, com­piled for the use of judges in Provence, the so- called Lo Codi. Like the Exceptions Petri, it originated in the south-eastern corner of France, probably in Arles, which in the twelfth century was a dependency of the Empire. An allusion to the possible capture of Fraga, a fortified town in the March of Barcelona, enables us to fix the date of its composition as about 1149. Certain Provencal expressions occur in the Exceptiones Petri, but Lo Codi was written entirely in the Provencal language, and presents therefore the first treatise on Roman Law composed in a native dialect. The Provencal text lias not been pub­lished yet, but Professor Suchicr of the University of Halle is preparing an edition of it. A Latin translation, made by Ricardos Pisanus some time before 1162, is already in our hands, thanks to the industry of Professor Hermann Fitting, the leading representative of the studv of Roman Law in the Middle Ages.

Lo Codi stands already under the influence of the glossators. It follows closely a summary of the Codex extant in a MS. of Troyes (Summa l'recensis) and attributed by Fitting to Irnerius himself. The authorship of Irnerius cannot be proved, but the Summa Trecensis is, in any case, a fair sample of an early glossator’s work. The compilers of the Codex have also utilised a Summa Cod ids of Rogerits, a glossator of the third genera­tion. It seems, in fact, that Rogerus personally took part in the compilation of the Codi.

The rules as to the responsibility of a person using goods belonging to another greatly exer­cised the ingenuity of Roman lawyers. The borrower was, of course, answerable for fraudulent misuse (dolus), but how far was he answerable for negligence (culpa) ? Xerva, as reported by Celsus, had laid down that gross negligence (culpa latior) is equivalent to fraud, and con­stitutes a breach of good faith. But what is to be taken as the measure of gross negligence ? The Codi points to some palpable absurdities to illustrate the general meaning of gross negligence. It arises when a person thinks that what is noxious to evervone else is innocuous to him, as, for ex­ample, if I leave a book out in the rain and do not consider that it is sure to be damaged, or if I lead a horse, entrusted to inv care, bv places that I know to be the haunts of robbers and thieves. Such acts constitute gross negligence, and T must compensate for any damages resulting from it. But it is not sufficient to point to extreme absurdi­ties. In practice, much will depend on the stand­ard of reasonableness. And although the Codi does not follow the Roman lawyers in tracing minutely the differences between culpa, culpa latior, and dolus, it is very careful to set up a standard of reasonable care and to make it as practical as possible.

Let us take another instance, showing to what extent the abstract doctrines of Roman Law were influenced by customary rules and local condi­tions. In the treatment of damages occasioned to someone by another ] erson’s fraud or deceit (jraude vel inganno, II, io), the Codi follows, in a general way, the doctrine laid down in Justinian’s Code, II, 20. But it introduces variations in point of detail. It starts from an important distinction. If the deceiver induced the ag­grieved party to enter into an unsound trans­action, as, for example, to make a contract on the strength of false information, the contract must be rescinded at the request of the aggrieved party. If I have sold goods to a man who has deceived me as to the price, I may claim the difference be­tween the diminished price and the fair value. If I did not wish to sell at all and have been induced thereto by fraud, the sale is of no effect whatever. Should fraud be employed without any reference to a contract, compensation must be made if the damage done is considerable—not less than two byzantes. In insignificant cases no action is allowed, but there may be important cases in which indemnity ought to be granted.

ance and holds it. This is a case for indemnity, although not connected with any particular contract. The whole setting of the case and of the distinctions is evidently coloured by actual practice, and is not merely copied from Justinian’s Code or from the summaries of the glossators.

2. We have thus in the Provengal Codi an excellent example of the intelligent and practical use of Roman Law in a region where this law was recognised as the principal legal authority. But the influence of Roman sources stretched much further. It affected materially the state of the law in parts of France governed by customary laws derived to a large extent from German tradition. Here the process of trans­formation is especially suggestive. It does not start with the acceptance of an external authority from which all changes in detail should be derived, but from a kind of struggle for existence between concrete rules and institutions of German and of Roman origin.

Naturally the initial move in this case came from the spread of knowledge. It was necessary to study Roman Law before applying it, and it is material from this point of view that the Bolognese school not only attracted foreigners, and, among them, many Frenchmen, but also that it sent forth disciples into France. One of the most brilliant glossators, Placentinus, disgusted with Bologna, became a famous teacher of the law

F 63 school at Montpellier. The legal faculty there was situated in the “-pays de droit ecrit,” in the region dominated by Roman Law, but it also served as an influential centre for the rest of France. There can be no doubt that the rise of this rival of Bologna on French soil greatly con­tributed to the development of jurisprudence, and to the progress of law itself, during the event­ful centuries when both England and France evolved the fundamental institutions of their national law.

The reign of St. Louis is as conspicuous for the progress of legal institutions as for its two crusades and its brilliant feats of chivalry. Trial by battle is relegated to the background in the Royal courts, and the production of evidence takes its place, while the organisation of the Parlement of Paris assumes a systematic and well-developed form. To this juridical revival two principal causes can be assigned—the growth of royal authority and a diligent study of Law. As we are concerned with the latter, let us notice the appearance of the Conseil d itn ami (advice to a friend) of Philip of Fontaines, bailli of Vermandois, 66

His work testifies to an eager interest in, and a very poor understanding of, written law. Fontaines simply copies passages from the Digest and from the Institutes without being able to co-ordinate or interpret them. More curious is a production of the Orleans school, the Book of Justice and Pleading (le livre de justice et de plaid). Of its 342 clauses, 197 are borrowed from Roman sources, while the rest are of customary origin. The unknown author, perhaps a professor of the Orleans school, tries to enliven his dry subject by numerous references to the sayings and doings of the great personages of his time ; but these references turn out to be fictitious—somewhat resembling similar references to King Alfred and Anglo-Saxon judges in the English Mirror of Justices. A passage from Ulpian appears, for examB, under the name of King Louis himself, and quotations attributed to Renaut de Tricot, Geoffrey de la Chapelle, and other worthies, are not more genuine.

Next comes a private compilation which achieved a great reputation and influence under the name of the Etablisscinents de Saint Louis. Only its first nine chapters are drawn from the Ordinances of St. Louis. The other paragraphs f the first book present a statement of a custom of Touraine-Anjou, while the second book consists of a custom of the Orleanais. The compiler has patched these two records of customary law with 67 extracts from Justinian’s Corpus Juris, but even when these are removed, the influence of Roman rules remains distinctly traceable, especially in the Orleans custom.

3. The most interesting document of French juridical revival under the influence of Roman Law is the remarkable Coutume de Beauvaisis, compiled by Philippe de Rcmi, Sire de Beau- manoir, between 1279 and 1283, some ten or fifteen years later than Bracton’s great treatise on the Common Law of England. Beaumanoir had been bailli, that is, judge and deputy governor, of the county of Clermont in Beauvaisis, which belonged to Robert de Clermont, the sixth son of St. Louis. He was a man of extraordinary ability, learning, and varied experience. He had served in England in his early youth and has left not only the juridical tract already mentioned, but poetry, including a poetical romance describing the adventures of a French knight, Jehan, and a fair lady of Oxford, Blonde d’Oxford. His originality of mind did not fail him when he came to treat of legal topics, and his Coutume de Beauvaisis is one of the most refreshing legal treatises in existence. He knew his Roman Law thoroughly, and used it with the freedom and dexterity of one who had mastered its contents and was not a slave to its superior authority.

In order to judge of the influence exerted by Roman Law on the legal usage of Northern France, 68

we can hardly do better than consider in some detail the teaching of Beaumanoir on a few sub­jects of legal doctrine.

Beaumanoir’s prologue * to his work is well worth notice. He does not hope to impress the reader by his personal authority, and even con­ceals his name until the end of the book, so that the good wine he offers may not be left untasted because of its poor “ etiquette.” We need not take the author’s modesty too literally, but this much is certain : he sets himself a carefully restricted and unambitious aim. He wants to give primarily the substance of local custom in his own place—Clermont in Beauvaisis, because he is well acquainted with it, while the further he goes from his district, the less he can vouch for the accuracy of his knowledge. Therefore, if he can base his information on actual judgments or ascertainable custom of Clermont, he will rely first of all on them, and only when doubts arise as to local custom, will he turn to the custom of neighbouring lordships or even to the common law of the kingdom of France. The point of view is characteristic of a French lawyer of a period which may still be called feudal. It is exactly opposed to the method of Bracton, who, strong in the judicial authority of Royal courts, sets out to describe the common law of England and refers to local custom only as a subordinate source * App. VI. of information. This being so, what is the mean­ing attached to the term “common law” by Beaumanoir ? It occurs several times in his treatise, and can only mean legal rules generally accepted throughout the realm of France, for example, the rule that a husband disposes of his wife’s property during their married life. This is not a rule especially expressed in Beauvaisis cus­tom or established in the tribunal of Clermont, nor is it a rule in strict correspondence with Justinian’s law, but is the view generally pre­vailing in France, and, 1 presume, acted upon by­Royal courts such as the Parlement of Paris (cf. § 552 on wardship). From this and other in­stances it is clear that Beaumanoir’s use of the term is a much more lax one than that of Bracton. Whereas for the latter the common law of Eng­land is primarily substantiated and exemplified by the decisions of the Royal courts of justice, the French jurists seem to look more to the comparative evidence of divers customs, amount­ing to what might be termed a law common to all French territories. Some of the MSS. of Beau­manoir have actually expressed as much in the text of the passage in question. An appeal to the decision of Royal courts, of the Parlement of Paris, is not excluded, but is not indicated as necessary (cf. § 374). As for a possible reference to Roman Law, it cannot have been the meaning of the author to speak of it as the general or common law in the same sense as, for instance, Lombard jurists had done. Roman Law as such was not recognised within the territory of customary law. It applied only when it had been accepted by the jurisprudence of local courts, by local custom, or general custom. This seems clearly proved by two considerations ; firstly, by an express declaration that reasonable men ought to follow their own customs and not “ ancient laws ” of which they do not know enough ; and, secondly, by the fact that Beaumanoir’s prologue is con­structed on the same lines as a passage of Julian’s in the Digest, but that he intentionally differs from it as to the decisive point. Where Julian has recourse to the Law of Rome, Beaumanoir says, “common law of the kingdom of France,” or “the customs of France.”

4. I dwell on the analysis of this prologue because it affords the best clue to the interpreta­tion of Beaumanoir’s references to Roman Law. He does not accept them on authority, and yet he draws constantly on Roman rules in so far as they have been already accepted by French legal custom or jurisprudence. Consequently, he never once quotes from Roman books, and yet his expressions frequently follow the exact wording of these same books. To put it shortly, he deals largely, not with written law itself, but with customary law partly derived from Roman origins. A good illustration is provided by his chapters on the so-called renunciations, on clauses inserted in charters for the express purpose of renouncing a possible appeal to some legal rule or expedient of pleading. A number of purely Roman remedies are guarded against, as, for example, the exceplio pecunice non numerate?, or the complaint that a vendor has obtained less than half value for his property. It is evident, however, that Beaumanoir did not compose for himself the list of all these “ renunciations.” He simply took the customary formulae which had made their way into the region of customary law in the North from the region of written law in the South, where they had a much more real mean­ing (§§ 1094-1098). This makes his references to Roman Law only the more interesting; they depend not on his personal taste, but on a process of acceptance or reception effected by the legal custom and jurisprudence of the age.

Some of the principal points worked out by thirteenth-century jurisprudence concerned forms of procedure. It was a matter of importance to settle in what manner and order legal remedies should be granted, claims framed, and defences against them allowed by the courts. Unless these and similar procedural points were definitely worked out, no discussion as to substantive rights could avail. The importance of procedure as a framework for material law was further enhanced by the very complicated mi tore of jurisdiction, the intermixture of feudal justice of various degrees, on the one hand, and of lay courts and courts Christian on the other. These difficulties presented themselves to English law­yers as early as the twelfth century, in the time of Henry If, while in France they only began to be cleared up one hundred years later, under St. Louis and his successors. And it is evident from Beaumanoir’s treatise that an acquaintance with Roman terms and forms of procedure greatly facilitated the task of French lawyers in this respect. The beginning of his exposition on stages in pleading illustrates this point (ch. vi). Our author notices expressly that clerks, learned ecclesiastics, have at their disposal very suitable exjn’essions borrowed from Latin speech, but laymen do not understand these terms when put in French. They have consequently to be ex­plained to the latter, and they may be used in lay courts, as it were, in a vernacular guise. An action begins with a deniande (a bill of petition), corre­sponding to the libcllus of the clerks. The libcllus convcntionis of the libellary process of later Roman Law is alluded to. Beaumanoir does not dwell on the libcllus rcsponsionis of the defendant (Niancc de jail, cf. § 257), but proceeds to point out the pleas which mav be brought forward in answer to the allegations of the plaintiff. These are styled exceptions, as in Roman procedure. The plaintiff may oppose them by replications, again as in a tribunal administering justice accord­ing to the Corpus Juris. But here the similarity ceases. The Romans admitted further pleadings on both sides, duplications, triplications, etc., and the courts Christian followed their example in this. Not so the lay courts. The process was simplified ; each party could plead in bar once only. After that, issue must be joined on ques­tions of fact. The context, in which the doctrine is expounded, makes it probable that the Roman­istic views were passed over to the courts of customary law through the channel of ecclesiastical tribunals. In the same way we find in the Coutume de Beauvaisis (as well as in the Etablisscmcnts de St. Louis) Justinian’s classification of actions into personal, real, and mixed ; the first aiming at enforcing obligations, the second directed towards obtaining ownership of things, and the third starting from an obligation but resulting in claims as to things (§§ 228-230, cf. Inst. IV, 6, §§ 1, 2, 20). In this case there is no need to assume the influence of Canon law. The distinctions were well known and frequently treated in all schools where law was taught.

A subject of much importance to all lawyers, and especially to lawyers of this period, was the very fundamental distinction between ownership and possession, and its effects on legal procedure. In ancient German law, when private ownership of land was greatly restricted, quarrels as to ownership occurred chiefly between clans, town­ships, ecclesiastical institutions, etc., and were treated as fundamentally different from the assertions of individual claims. On the other hand, rights of protected occupation and pos­session arose easily, and were based on the application of labour to a particular plot of land. If a man was suffered to settle on and to cultivate a piece of land for a year and a day, he could claim the protection of the courts for his labour and occupation. This is the origin of the peculiar German “ usucaption ” by a year and a day. It is derived from the effective short-period cultivation of an otherwise unreclaimed plot. This mode of “ usucaption ” is clearly set forth in the custom« of Touraine-Anjou enrolled in the first book of the £tablissements (I, 163), and it occurs also in Beaumanoir’s treatise. “The user of one year and a day is sufficient to acquire seisin (protected possession), as when a man holds ploughed land, or a vineyard, or another piece of inheritance (land) and takes the fruits of it for a year and a day. Should anyone come then and prevent him, the lord ought to remove the obstacle, until he has lost the land in a trial for ownership ’’ (§ 685 ; cf. 955). Apart from the peculiarly short period of “usucaption,” we notice here the definite wish of the authorities to protect seisin as a prima facie ground for occupying and using land. Several distinct actions sprang from

this far - reaching principle. The well - known remedy of the English courts—the action of Novel Disseisin—is not unknown in French law, but it comes into being rather late by a Royal Ordinance of 1277 (§§ 958, 959). Customary procedure admitted also of a plaint, or a complaint, as they said in France, to the lord of the country against violent interruption of peaceful possession, and it was sufficient that this should have lasted for a year and a day. On the other hand, Canon law had borrowed from Roman Law a process which, through the channel of ecclesiastical juris­diction, obtained access into provincial customals, as, for instance, into the Orleans one. In this case an entirely different theory of acquiring pos­session was deemed necessary. A person dis­turbed in the peaceful enjoyment of a plot could bring an action asking for a reintegrande, but the court when deciding the question of possession would require one of at least ten years if reasonable ground for it was shown, and one of thirty years if no specific ground was stated. We find the teaching as to ten and thirty years’ prescription clearly stated by Bcaumanoir, and he advises his readers to try for seisin by prescription before venturing on the much more difficult plea of ownership. First get your seisin, and then prove ownership if you can (§ 199).

From this point of view of the “beatitude of seisin,” {bcati possidcjites) both the Orleans cus- 76

tomal and Beaumanoir lay great stress on a rule which was expressed by the formula—le mart saisit le vif. This does not mean that the dead man clutches the one alive, hut that the seisin of the land or inheritance passes from the dead man, the ancestor, to the living man, the successor. It is a short and more striking way of saying that the heir has no need to prove his title to land : he is protected by the seisin of his predecessor. The question turns on inheritance, and not on title to property. Here again we are on firm Roman ground.

The technical character of these rules must not conceal from us their great social importance. The elaboration of the doctrine of seisin, pro­tected possession, with all its eventualities and ramifications, made it possible to avoid the tangle of feudal claims, and, what is more, to establish a prima jacie legal order where violence and casual appropriation had reigned supreme. The check put on Novel Disseisin was a fair test of the efficiency and social value of the State. When the protection of seisin had been achieved, the disentanglement of fundamental rights could follow. And the part played by Roman distinc­tions and rules in this process was considerable.

5. In matters concerning family law, the in­fluence of Roman conceptions is not so obvious, because some of the latter remained archaic, as, for instance, the patria potestas, even in its

mitigated form. There was little to choose between Germanic and Romance custom in regard to the authority of the father and the privileged position of the male sex in legal ar­rangements of all kinds. On the other hand, special tenacity was evinced in the retaining of ancient native custom in the branch of law that treats of some of the forms of kinship. We find, therefore in the Beauvaisis customal such insti­tutions as the retrait lignager, the right of re­deeming goods alienated by a relative, the German dower—the portion settled on the wife out of the property of the husband’s family, etc.

A very important departure is established by the admission of the mother to the guardian­ship of her child under age (§ 629 ; cf. Nov. 118). This, of course, ran entirely counter to ancient Germanic, and indeed to ancient Roman, ideas. It is not impossible that we have to do here not with a principle borrowed from Justinian’s law, but with an indigenous evolution of legal con­ceptions.

In chapter 640, Beaumanoir discusses the responsibilities of parents for crimes committed by their children. According to this view, the father should pay the fine incurred, if the children are under his patronage (mainbiirnie). Such a child has nothing of his own, whether he be of age or under age. If the father or the mother desire to avoid responsibility, they must place 7S

their children out of their power (main) and patronage (mainburnie), and divide bread and broth with them (pain el pot). This teaching presents a quaint combination of terms—main corresponds to the Roman mantis in the sense of power, authority, while mainburnie is a cor­ruption of the Germanic mitndebtirdis. The vital points of the doctrine are, however, that children dwelling with their parents round the same kettle, even when of age, are not con­sidered independent persons in the sense of having property of their own—a very positive expression of the unity of the joint household. The latter was, of course, very characteristic of Germanic archaic custom, as well as of Roman. The Corpus Juris shows that a person, who had attained full age, remains in the power of the father unless emancipated by him, the separation of the households and property rights being commonly effected by the marriage of the son.

Another department of the law strongly affected by Roman influence was the law of contract. This subject grows in importance with the de­velopment of intercourse, and, naturally enough, Roman rules were greatly in advance in this respect, as compared with the customs of bar­barian communities. Besides, the circumstances under which obligations arise, are enforced, or declared invalid, vary considerably, and give occasion to much casuistry. Barristers and

judges had therefore a greater latitude in bringing forward personal views, and in drawing on Roman juridical sources to support them. The definition of partnership (compagnie), for example, is bor­rowed from Inst. Ill, 25, §§ 1, 2. Beaumanoir especially wanted to impress his readers with the idea that it was by no means necessary for partners to contribute equal pecuniary shares to obtain equal shares in the profits. He could not do better for that purpose than refer to the passage in the Institutes.

In the analysis of contracts created by order (niandalum) a nice point occurs in connection with the personal character of the order. It is not difficult to see that if the person giving the order changes his mind and countermands it in time, the contract does not hold good. It is also clear that if the counter-order does not reach the agent and the latter executes the order in good faith as given to him, the principal is held by it. But what is to happen if the principal dies ? As the agent represents his person, the agreement falls to the ground, and the heir is not bound by the obligation. But one event­uality must in fairness be guarded against. If the heir has obtained some profit by the exe­cution of the order, he cannot repudiate the obligation. Thus" Beaumanoir follows Institutes III, 26, §§9, 10, in all its windings (§§810, 811).

I need not pursue further the examination 80 of the traces of Roman influence in Beaumanoir’s text. What has been said seems more than sufficient to show how great that influence was. It was conditioned by the superiority of Roman legal rules in their struggle with corresponding, but not identical, conceptions of Germanic origin. The influx of Roman doctrine produced neither a haphazard collection of fragments nor wholesale copying and complete subordination in form and contents. It led rather to an in­telligent “ reception,” if I may use this term commonly employed by German scholars. In other cases, Roman views were modified, com­bined with native ideas, or entirely rejected. And when one meets with a personality such as Beaumanoir, one comes to understand better in what way the process took place.

6. But I must not leave the subject without calling attention to one peculiarity in this psy­chological side of “reception.” It happened not unfrequently that the practitioner or the learned judge, who were the chief agents in the process, picked out one or the other doctrine not in its proper and logical sense, but in order to con­firm or to prove some opinion of their own, which possibly did not fit in exactly with the concrete rule brought forward to support it. Take, for instance, the famous maxim, quod principi placuit legis habct vigorem (Inst. I, I, 2, § 6). Beaumanoir quotes it expresslv in his paragraph 1103. But g Si it is certainly not the generally constitutional import of this doctrine that he wishes to ac­climatise in the France of his day. It were odd indeed if he wanted to do so at the end of the thirteenth century, in the time of Philip the Fair, a few years before that King brought together with considerable difficulty the first more or less complete assembly of the estates of his realm. No ; Beaumanoir makes use of this famous maxim to give authority to a statement as to the right of a king, starting on an expedition or a crusade, to suspend the fulfilment of obli­gations for knights joining his army. In this mediaeval guise the saying of Roman jurists is hardly recognisable, but we need not accuse the bailli of Clermont of ignorance or misrepre­sentation ; he simply made use of this Roman plank to build a platform of his own.

Another curious case in point turns on the use made by Beaumanoir of the principle of the res judicata : * when judgment has been delivered in a case, it ought not to be reversed in the same court. In the absence of such a rule litigation would have been endless. The Romans recognised the rule in theory, and con­sistently put it into practice. So does Beaumanoir —he states it in his thirty-first clause, but he gives it a peculiar twist. The one judgment aimed at by the res judicata rule is, for him, the

* App. VII.

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judgment of the court of the lord with its full complement of assessors, peers, or 'prud’honimes, according to mediaeval phraseology. From such decisions are to be distinguished those taken by the bailli himself as sole judge—in cases sufficiently clear and admitting of reference to custom. Such decisions are not judgments. Why should our jurist have recourse to such an ambiguous play with words ? Two reasons may he stated. Firstly, he wanted to enlarge the scope of the personal jurisdiction of the bailli untrammelled by assessors. Secondly, his distinction was made to allow of reconsideration in some cases which the bailli found after all to be too difficult, by bringing them before the full court, without prejudice to the res judicata rule. In any case, we must accustom ourselves not to treat our mediaeval lawyer’s references to Roman texts in too strict and pedantic a manner. His object was not to present us with a faultless commentarv on the Corpus juris, but to make use of some of the Roman doctrines for his own purpose as a wise judge of France.