LECTURE II THE REVIVAL OF JURISPRUDENCE

Authorities: Savigny, Geschichte des romischen Rechts im Mittelalter, II,III,IV; J.Ficker, Forschungen zur Reichs und Rechtsgeschichte Italiens, 1868-74 ; A'. Tamntassia, Lanfranc arcivescovo di Canterbury e la Scuola Pavese in the Melanges Fitting, II ; H.

i. ^/npHE aspect of legal studies begins to

X change in a remarkable manner about the eleventh century. This epoch witnessed several new departures in the history of Furo- pean civilisation. The papacy achieved a de­cisive concentration of power during the pon­tificate of Gregory VII. Feudalism becomes crystallised into a complete and consistent system. The Norman states arise with the promise of efficient administration and political order.

The most striking evidence of the awakening of jurisprudence in Southern France is afforded by a tract on Roman Law, called Exceptions Petri, “Excerpts by Peter,’’ composed some time in the latter half of the eleventh century and dedicated by the unknown author to Odilo, a ‘ vicarius ’ (vigiiier) of Valence in Dauphine. The opening passages of its prologue explain the scope of the work. “ As it is not possible, even for scholars most learned in the knowledge of laws (etiam juris sapientissimis doctoribus) to come to a definite conclusion in regard to many and different kinds of cases on account of the large number of various scruples, let us unravel the results of juridical decisions and controversies by examining the reason of natural and civil law. If anything in the law be disused, abolished, or contrary to equity (inutile ruptum sequitative contrarium), let us tread it under foot (pedibus concalcamus). Let us reveal to you, Odilo, magnificent master of the most splendid city of Valence, whatever has been dis­covered anew or tenaciously preserved. So that in the examination of your tribunal and in the terms of your acts there should not appear anything unjust or subject to provocation. But, that all corruption being removed, everything should be resplendent for the sake of the power of justice, of the glory of your dignity, and of the praise of supreme majesty.”

You will notice that this introduction, though couched in sounding language, is by no means a flight of empty rhetoric.

The author claims great power and responsi­bility with characteristic self-reliance. He does not scruple to “ tread under foot ” enactments, which, according to his view, have fallen into disuse, or are contrary to equity, and his only authority for such an act is that of a jurisconsult, of a learned exponent of legal doctrine.

The execution of the work is not unworthy of the design. The “ Exceptiones ” form a short

manual of rules for practical use. Their materials are drawn from the Corpus Juris, and not from the Breviarium Alaricianum. As the Provencal surroundings of the author cannot be called in question, we must infer 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.

fall into two divisions, according to their relation to Roman written, and to customary, law. On one occasion he opposes the districts in which the ‘ most sacred laws ’ are in force, that is, where the authority of Imperial law is recognised, to territories where the Codes are unknown (II, 31). Another time he distinguishes between laws, that is, written laws, and the custom of the country as far as it can be discovered (se­cundum patriae probabilem consuetudinem, IV, 3). We thus find in the south-east of France a dis­tinct centre of knowledge and reflection on the subject of Roman Law, characterised by a prac­tical tendency and developing on its own lines, although evidently influenced by intercourse with Italy. We shall remember this when we come to speak of the future development of Ro­man legal studies in France. 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.

2. There is a second centre, as 1 have said, in the cities of Lombardy. The legislation of the Lombard kings, Rothari, Grimoald, Liut- prand, Rachis, Ahistulf, was not abolished by the Frankish conquest of 774. Lombard Italy continued to a great extent to develop on its

own lines, although merged in the Carolingian Empire and subjected to a certain amount of Frankish legislation. When, in the eleventh century, Northern Italy advanced to prosperity and political importance, due partly to the eco­nomic progress of its cities, and partly to the activity of Emperors and Popes, the interpre­tation of Lombard laws in tribunals made rapid progress, and assumed the character of systematic and reflective study. We hear not only of in­genious barristers (causidici) and of learned judges, but of actual schools, in which rival teachers gathered pupils and expounded the materials of Lombard and Franco-Lombard law. A mine of information is supplied by the inter­pretation of these enactments in the school of Pavia. This interpretation finds expression, to begin with, in questions and glosses, which not only employ the comparison of texts and reasoning, but also refer more and more frequently to Roman Law. Our texts show that one of the exponents of this method of interpretation was a certain Walcausus, whom we are able to identify in charters as a judge of the Imperial court, who held office in Verona about the middle of the eleventh century. It is worth noticing that the collections of glosses on Lombard law often oppose his explanations to those of the older group of interpreters of the law. The opinions of the latter were marked with the ab- 38

breviation a, meaning antiqui, but often ex­tended as amentes (the madmen), or even as asini (donkeys), while in the abbreviation for Walcausus, v is read valcntcs—the prevailing, those who get the better of it. The best insight into the method of Lombard jurisconsults is afforded by the so-called Exposition to the book of Pavia, a compilation of laws obtaining in Lombardy.

The authorities on the old school of Pavia, antiqui, antiqui jiulices, antiqui causidici, are re­ferred to on seventy-two occasions. Among them, the most prominent were Bonifilius, an assessor of the Imperial courts mentioned in charters from a.d. 1014 to 1055, and Lanfranc, the famous Archbishop of Canterbury, who, in his younger days, was a conspicuous light of the school of Pavia. He left it in 1042 for Normandy, where he became a monk and later abbot of Bee, before following William the Conqueror to England. As has been shown by a careful investigation of his later theological writings, he did not con­sign his juridical training to oblivion even in the time of his greatness in England. Of the younger Lombard jurisconsults, the most prominent were Gualcausus (Walcausus), mentioned above, Guilel- mus, and L’go. To give you some idea of the way in which legal questions were put and contro­versies conducted by the Lombard doctors, 1 will just refer to two of these disputes in which Lanfranc took part. Guido of Spolcto, elected emperor in 889, had enacted that in case a charter was impugned as a forgery, the notary who had drawn it up, or, if the notary were dead, the per­son producing the charter, should defend it by calling up witnesses and swearing to its genuine­ness with twelve oath-helpers. Lanfranc is reported to have had the following encounter with Bonifilius about this enactment. He asked the latter what was to be done if the notary and the witnesses were dead. Bonifilius answered, “ The party producing the charter can clear it with twelve oath-helpers and two other charters (required for the verification of the notary’s handwriting).” To this Lanfranc said, “ Is there no other custom but this ? ” Bonifilius : “ No.” Lanfranc : “ In this case the custom is against the law, as is shown by the prologue to Otto’s laws, where it says that a detestable and dishonest custom, which ought not to be followed, has obtained currency in Italy.” After this Bonifilius left with shame in his face and a bowed head. But Willelmus defined the meaning of the change with considerable ingenuity in the following manner. Otto’s prologue had in view that some persons, greedy after other men’s goods, acquired them by perjury. Therefore King Otto enacted that the plaintiff had the right to require the contention to be decided by battle. If he did not do so, the defendant, who had produced the charter, was left free to defend himself by oath-helpers. It appears from this narrative that Lanfranc considered Otto’s prologue to contain a general condemnation of the procedure of swearing oaths, and Bonifilius did not know how to meet the argument drawn from the later enactment of Otto. Willelmus, however, found a way out of the difficulty by applying the words “ detestable custom ” (mos deleslabilis), not to the swearing of the oath, but to the practice of perjury, so that Otto’s enactment was under­stood as completing, and not as abolishing that of Guido. The plaintiff had the option of choosing trial by battle, but if he did not do so, the older rule about the oath held good. In an amusing exposition to Grimowald, c. 8, Lanfranc is repre­sented as making fools of the disciples of Bonifilius by propounding to them the thorny question which of two wives had the right to a fourth part of their husband’s inheritance after his death, if he had constrained his first wife to enter a monas­tery and married a second. The dialectician leads his interlocutors astray by putting before them six arguments of different kinds. They agree with him (bene dixisti) each time he brings for­ward one of these, and no sooner have they done so than he reproves them (imnio male}, and tacks on the opposite course, until at last he arrives at the conclusion that the second wife cannot be considered a lawful one, and has there­fore no right to the fourth part. The windings of this dialectic exercise give rise to lengthy de­velopments, which I cannot report here, but let us notice that in the course of the argument, Lanfranc not only draws on Lombard enact­ments, which he characteristically styles jus gentium, but also juggles with a direct quotation from the Institutes : on the strength of the law in the Institutes, which runs “ Roman citizens contract lawful marriage,” she cannot acquire the fourth part of her husband’s property. This suggests the conclusion that the Lombard doctors considered Roman Law as the general or common law to which recourse must be made in all cases where Lombard enactments provided no ground of appeal. The rule is stated in so many words in the Exposition to Guido, c. 4; the ancients said that as the law did not contain any precepts on certain questions, such cases must be decided according to Roman Law, which is the general law of all (qua; omnium est generalis). This principle, exemplified in particular cases, is, of course, of primary importance. It shows that Lombard, barbarian, judges and jurisconsults had been led by the exercise of juridical dialectics to look to Roman Law for instruction and direc­tion. The controversies reported by the Ex­position are doubly interesting, inasmuch as they stand in close touch with the practice of tribunals, and at the same time manifest the beginnings of systematic teaching in law. We cannot say where and how these disputations were conducted, but the reports show that they were not simply encounters between barristers in pleading or differences of opinion between judges, but the outcome of school organisation. For this reason I do not think the designation— “ Lombard doctors ”—an inappropriate one. The principal place where these juridical studies were organised was Pavia, although the claims of Verona and Nonantula have also been urged.

3. As against the mixed characters of these studies in Lombardy, where Roman and Germanic Law were blended, a legal school on purely Romance ground arose in Ravenna. There arc some indications as to legal studies also in Rome, but it is impossible to discover whether the legal teaching there was carried on as a special faculty. As to Ravenna, definite evidence proves that a school of jurists took an active part in the struggle between Pope Gregory VII and the Emperor Henry IV. It stood on the Emperor’s side, and supported Wibert of Ravenna (Clement III), the anti-pope raised by Henry against his for­midable opponent. From Ravenna, Petrus Crassus launched against Gregory VII a violent pamphlet, armed with quotations from Roman legal sources. On the other side, the fiery Cardinal Peter Damiani inveighed against the iniquitous lawyers of Ravenna. One of Damiani’s writings, composed between 1061 and 1073, is especially characteristic. It treats of the introduction into legal practice of the Roman computation of relationship. The Florentines consulted the lawyers of Ravenna, who assembled in corpore and pronounced in favour of the Roman computation. Damiani reproves them angrily, and speaks with scorn of the wise men of Ravenna in congregation (Sapientes civitatis Ravennce in unum con­venientes), of their books (the Corpus Juris) and their Justinian. This passage and other indications substantiate a famous account of the rise of the Bolognese school, given by Odofre- dus, a thirteenth-century Bolognese. According to him, the centre of legal studies was originally at Rome, but, in consequence of wars, it was transferred to Ravenna, and from Ravenna it came to Bologna.

4. The immediate occasion for the creation of the great Bolognese school was provided by the endeavours of the famous Marchioness Matilda. As a staunch supporter of Gregory VII, she wanted to counterbalance the influence of the Imperialistic school in Ravenna by establish­ing a centre of studies in Roman Law that would act on the papal side. The first exponent of laws in Bologna had been a certain Pepo, who taught in the last quarter of the eleventh century. He is mentioned as a doctor of laws in a notable judgment delivered in the court of Beatrice, Duchess of Tuscany, in 1076, in which the Digest was referred to and utilised for the decision. But the man with whose literary activities the rise of the Bologna law school has been traditionally connected, is, of course, Irnerius or Guarnerius. Originally a teacher of arts, he went to Rome at the instigation of the Marchioness Matilda, and, after having studied there for some time, began to lecture on law in Bologna. This happened towards the end of the eleventh century, perhaps about 1088.

I need not dwell on the brilliant success of this teaching, and on the external circumstances attending the development of the Bologna school. It is well known that it soon became the leading university of the Middle Ages for the study of law, and that it attracted thousands of under­graduates from all countries of Europe.

I should like to characterise briefly the spirit of this revival of legal studies. It presents at bottom an application to law of the method which was employed by the new scholarship of Western Europe for the treatment of all problems of theology and science—the so-called scholastic method. The dark centuries preceding the year 1000 A.D., when learning meant merely the sal­vage of fragments of ancient knowledge, were followed by a period when organisation again appeared. The great instrument for the advancc- ment of learning at that time was the dialectical process by which formal and universal logic analyses conceptions and constructs syllogisms. The permeation of the insufficient, fragmentary, classical texts by overwhelming logic was, in a sense, a masterly achievement, and the lawyers had more than their fair share in this work. While their fellows in the school of Divinity operated on Scripture and Canonic tradition, and the masters of arts struggled, by the help of distorted versions of Aristotle, with the rudiments of metaphysics, politics, and natural science, the lawyers exercised their dialectical acumen on a material really worthy of the name, namely, on the contents of the Corpus Juris. And as legal reasoning largely consists of dialectical analysis and co-ordination, they were able to produce remarkable results even at this early stage.

It is not a matter of pure chance that the text of the Corpus Juris received critical attention, and was restored to completeness. For the doctors of the new study, the books of Justinian were sacred books, the sources of authority from which all deductions must proceed. It is not to be wondered that they were not content with casual fragments, but made researches into its com­ponent elements, and considered it as a whole. The use of the Pisa MS. of the Digest (now in Florence) was certainly of the utmost importance for the reconstitution of a good text of the most valuable part of the Corpus Juris. But even apart from the studj⁷ of that MS., the different elements of Justinian’s codification were gradually saved from oblivion, and the Bolognese Vulgate, the version made up for use in the schools, is historically of no less interest than the Littera Pisana. Irnerius himself took a prominent part in the collection of Justinian’s texts by replacing the fragments of the Novellae, hitherto quoted from Julian’s Epitome, by the so-called Authenticum, a more complete Latin compilation of later date. Alto­gether, the critical examination of the state of the text was one of the chief preoccupations of the Bolognese scholars.

The next was literal interpretation, and in this respect the Bolognese followed in the foot­steps of early mediaeval literary students. They became glossators par excellence, although the gloss is certainly not a weapon peculiar to them. But their glosses could not well remain between the lines as explanations of single words or short remarks. They naturally spread out on the margin, where there was more room for notes, that were not merely transliterations. With Azo and Accursius they grew to be consecutive commentaries, and at that stage, the period of glossators proper comes to an end (about 1250). It covered roughly 150 years.

One of the ways in which the gloss was ma® to illustrate the text was to summarise its con­tents in short sentences. Compilers of ancient glosses called such summaries notabilia. With the Bolognese they assumed a more distinct character as statements of juridical rules, and were nicknamed Brocardica. A collection of such brocardica was made in the school of Azo.

Another common expedient, employed to give a systematic view of the divisions of an intricate subject, was the distinctio. Starting with a general term or wide conception, it indicated the different species subordinated to it, splitting each up into its subdivisions, and following these ramifications of sense and terminology into the most minute details. To take a very simple instance, it was done in this manner :

f alias electus, major, ordinarius.

Index J alias. alias.

j alias compromis- minor, delegatus.

\ sarius, -

This method had already been much in favour in the school of Pavia.

All these simple processes of study were sub­ordinated to the dialectical analyses of texts, in which these were shown either to complete and support each other, or to contain gaps and contradictions. The latter case offered oppor­tunities for the exercise of the reputed scholastic ingenuity. And here it must be noticed that the earlier doctors, though most keen and clever in their operations, generally contrive to explain the texts, while, later on, especially after Accursius, the construction of artificial arguments for its own sake begins to attract schoolmen.

In any case the dialectical analysis of texts was the great work of the school of Bologna, and in this respect it attained an excellence which we cannot refrain from admiring even now. In its first period, that of the glossators, it de­veloped the theoretical side of teaching. It strove, according to its lights, to present as pure, clear, and complete a statement of Roman legal doctrine as possible. The mixture of Roman and barbarian elements, characteristic of the school of Pavia, and even of that of Provence, disap­pears. Irnerius, Placentinus, Azo, Accursius, reason as if the Lord Justinian was still holding­sway over Italy, and all disputes were to be decided in his courts. The academic standpoint imposed limitations, but at the same time was a source of intellectual strength. It enabled the glossators to master thoroughly and in all direc­tions the materials of the Corpus Juris. A slight but significant sign of the extent to which these scholars became familiar with the texts is shown in their manner of quoting them. Instead of referring to chapter and verse, that is quoting book, title, law, and clause, as we do now, and as was done in earlier times, the glossators, following the lead of the school of Pavia, referred to a passage by the rubric of the title, and some­times a reference to a book. For instance, in support of the rule that no one can reclaim his property by the procedure of condictio from anyone but a thief, they referred to Digest, usufructuarius quemadmodum, last law, which, according to the modern mode of reference, would be Digest VII, 9, 12. This means, of course, that a doctor of Bologna was expected to have the entire mass of chapters’ rubrics in the Corpus at his fingers’ ends. Besides mastering the material and expounding it in a rational way, these jurists were fond of putting different cases for solution, as is done, for instance, in a tract entitled, Quastiones de juris subtilitatibus, attributed to Irnerius. As in the Lombard school, they delighted in controversies, and the trend of the more important disputes has been preserved to us, notably in a work on the Dis­sensiones dominorum, and in the great sum­marising glosses of Azo and Accursius.

5. The school did not identify itself with any of the great political parties of the time. Though Irnerius began under the protection of the Mar­chioness Matilda, he changed sides after attaining success, and in the later part of his life was a palatine judge under Henry V. His successors, the four doctors — Bulgarus, Martinus, Jacobus, and Ugo — made the memorable declaration at the Roncaglia Diet of 1158 in favour of the Emperor Barbarossa’s right to tax the cities of Lombardy. In this case, however, they seem to have been actuated not so much by Ghibelline zeal as by their natural inclination to interpret the sources of Roman Law in a literal sense, and to attribute to them an actual bearing on the controversies of the twelfth century. These very doctors, however, were by no means agreed as to the limits of Imperial authority, and an anecdote of the schools tells us that when the Emperor Frederic was riding one day with Bulgarus on his right hand and Martinus on the left, he asked them whether the Emperor was not by right lord (dominus) of everything held by his subjects. One of the doctors, Bulgarus, had the courage to answer that he was lord in the political sense, but not in the sense of an owner. Some of the Bolognese jurists held staunchly to the Guelf party, as did, for instance, one of the most brilliant among them, Placentinus. But, of course, the natural bent of these men schooled in the law of the later empire inclined to the monarchical point of view. In any case they stood for a central authority as against feudal disruption, and although some of them made a study of feudal law, they treated it as a development of the Roman doctrine of emphyteusis.

6. The best way to obtain some insight into the intellectual work of the glossators is, I think, to examine the teaching of one of them in some concrete cases. I should like from this point of view to dwell somewhat on the doctrine of Vacarius, who, although by no means the most brilliant or influential representative of the school, deserves our special attention as a pioneer of the new learning in England. The external facts of his career arc sufficiently known. He studied Lombard and canon as well as civil law, and has written on all three branches of contemporary jurisprudence, but he was princi­pally concerned with the teaching of Roman Law, and may be considered a fair representative of the earlier Bolognese jurists. He was attracted to England by Archbishop Theobald, taught in Canterbury and, according to Gcrvasc’s testi­mony, in Oxford. He was silenced for some time by Stephen, cither because his teaching was considered dangerous to the authority of native legal custom, or because Stephen was jealous of the success obtained by a clerk of Archbishop Theobald, who maintained a hostile attitude towards him. Vacarius must have resumed his professional activity after an interruption of some years, and, in any case, his doctrinal in­fluence left a deep trace in Oxford, where the students of law came to be styled fraufrerista·, because their principal text-book was Vacarms’ Book of Poor Scholars (Liber fraiifreruni}.

No complete edition of this work has over been made, but it is sufficients known, as several MSS. of it have conic down to us, and some ex­tracts from his glosses have been published by Wenck and Stòlzel. The Liber paupcrum is a compilation of the Codex and of the Digest arranged for students who had not the means to acquire costly books, nor the time to make a prolonged study of Roman sources. The glosses are brief remarks inserted between the lines and on the margins. One of the earliest shows our author grappling with a difficulty in the applica­tion of the privileges of the Church concerning prescription. According to enactments of Justinian, ecclesiastical institutions were not debarred from asserting claims concerning property by the usual prescription of thirty years ; that common law­period was extended for them to forty years, and the canonists asserted that the Church of Rome had a right to even a greater extension, namely, one hundred years. There was a lively con­troversy on the latter point among civilians, in which Vacariua did not take part, however. The Worcester MS. of his book simply gives an extract from Nov. g as to the hundred years’ privilege of the Church of Rome, and does not go into the question how- far it was abrogated by Nov. in. But our author docs not fail to notice a question as to the juridical application of the privilege. Was it possible to plead the thirty years’ prescription against the Church if it had acquired property from a private person who had not asserted his right within the thii ty years allowed by common law ? One set of lawyers, as Vacarius’ gloss tells us, replied in the negative, because no one can pass a right he does not possess. But our glossator notices also another opinion— that the privilege of the Church is derived from its own peculiar position, and was not to be made dependent on the passing of a right by an out­sider. This is how I understand the short re­mark in Vacarius’ Liber pauperum, and it may serve as an example of the juridical queries which constantly presented themselves to the attentive student of Roman legal authorities.

The next section, devoted to a commentary on D. i, 3, intituled “on laws, enactments, decrees of the senate and long custom ”—dclegibus, consti­tutionibus, senatus consultis el longa consuetudine), is of greater general interest ; it treats, according to an explanatory gloss, of laws about laws, which are contrasted with laws about business matters (leges legum—leges negociorum). Vacarius treads here on ground occupied by the most vital prob­lems of jurisprudence. The glossators were greatly exercised by the fundamental question of the relation between law and equity. I have already had occasion to notice the radical point of view of the Exceptions Petri. The author of this Provencal text-book docs not scruple to tread under foot positive rules of law which seem to him obsolete or contrary to equity. And he is by no means alone in taking up such a position. The author of a tract on subtle questions of law of Irnerius describes graphically in his prologue a wall on which are engraved texts of law. Honourable men in great numbers frequently approach this wall and study the texts diligently, so that enactments which do not conform with equity may be taken as can­celled. In the manual of a MS. of Troyes {Summa Trcccusis),* representing one of the first steps in the jurisprudence of the epoch of glossators, we are told that laws have to be interpreted in a humane way, so that their meaning may be preserved, and there should be no discrepancy with equity; the precepts of laws should be admitted only if they tally with equity {Summa Trecensis, I, 14, §§ 6, 7). On the other hand, Irnerius himself, as a genuine gloss of his testifies, saw a danger in such a wide power to modify law on the part of the judge.f He considers equity as the mere enunciation of a principle of justice, whereas law propounds the same principle as the expression of a will, that is, with a certain admixture of authority. Both differ considerably through the weakness of human nature ; law contains partly more and partly less than is ordained by equity. They differ also in many other ways, and the interpretation of their dis­crepancies, if it is to have force of law, appertains

* Fitting attributes it to Irnerius. f App. ^ · to sovereigns only. From what we learn of the teaching of Bulgarus, he stood up for a stricter interwetation of law, while plartinus and his pupil, Placcntinus, inclined towards more lax interpretation.

It is interesting to see that Vacarius’ position in this controversy is indicated by a short but interesting gloss.* He starts from the doctrine that the Emperor is the only originator and in­terpreter of law. In his case lawgiving is the out­come of his will, while others, that is, subordinate magistrates and judges, may have to lay down the law from necessity. This being so, one need not wonder at the maxim that the sovereign is not bound by the law (legibus solitlits) ; law itself is the creation of his will. And further, when a judge interprets law, his interpretation holds good merely in the case of litigants before him, and in so far as they have no legal remedy at hand against his decision. Thus interpretation modifying the legal rule itself is reserved to the action of the legislator, and not conceded to the judge. Any discrepancy between equity and law has therefore to be removed by legislative means, while the power of the judge does not reach further than the dispute immediately in hand.

The same reverential attitude towards sovereign authority underlies the teaching of Vacarius on legal custom. The glossators were again divided * App. V. on this point. According to one view the people, having surrendered its legislative power to the Emperor, custom is subordinated to law, and the latter cannot be repealed even by disuse. From another point of view, popular custom appears as the survival of the legislative authority of the people, and this justifies the modification of express laws by custom. A gloss of Vacarius bears on this difference of opinion. His contention is that things are generally dissolved by the same process by which they have been created. An enactment may be made, and will hold good even against the wish and protest of the people. Therefore it cannot be abrogated by custom, unless the people has resumed Imperial authority and power by depriving the sovereign of them. The last words contemplate a possible resumption of power by the people—an interesting conception by no means uncommon during the Middle Ages. But this part of the doctrine is not developed further, whereas the initial remarks are in com­plete harmony with the part assigned by Vacarius to the legislative omnipotence of the sovereign.

The above-mentioned passages may be suf­ficient to show what a lively intercourse of ideas was taking place among these twelfth-century scholars. Their discussions were conducted very much on academic lines, but it is clear that the interests of actual life were by no means without influence on the setting and solution of their problems. Judicial interpretation, the influence of custom, the part played by the idea of sove­reignty, in the formation of law—all these ques­tions had, besides their intrinsic jurisprudential value, a special interest for men who were moving in a society where the elements of law and political order had to be, as it were, discovered anew. The theorists framed their definitions and dis­tinctions in too rigid a manner ; yet they helped materially to disentangle the general conceptions of law from the chaotic uncertainty of a blind struggle for existence.