ROMAN LAW AND NATIONAL LAWS

In 1653 there appeared a book by the English civilian Arthur Duck on the use and authority of the Roman civil law in the realms of Christian princes (De usu et authoritate iuris civilis Romanorum in dominiis principum Christianorum).

The exact extent of the civil law component varied from country to country. Court practice (usus fori), as evidenced by collections of deci­sions, had for long reflected the particular amalgam of Roman civil law and customary law of the country or region. University teaching, on the other hand, had always remained tied to the civil law and ignored the customary element. By the middle of the seventeenth century the uni­versities had to come to terms with the civil law as it was understood locally, and law faculties recognised national compounds of Roman and local law. In 1650 Michael Wexionius, professor in the university of Abo (Turku) in Finland, then part of the Swedish kingdom, published an introduction to the study of Roman-Swedish civil law (iuris civilis Sveco­Romani). It was, however, as we have seen, the Dutch professors who most intensively developed a national law. In van Leeuwen's book of 1664, that was called Roman-Dutch law, since it was based partly on Roman and partly on Dutch sources.

In German countries, as in the Netherlands, seventeenth-century scholars also began to identify a particular German version of Roman law.

One of the most widely read German jurists was Johann Gottlieb Heineccius (1681-1741). He was a Romanist, who was influenced by the later Roman-Dutch writers, but rejected their synthetic treatment in favour of a purely antiquarian approach to Roman law. His Antiquitatum Romanarum syntagma, first published in 1719, went through twenty edi­tions. It illustrated, with much curious detail from ancient sources, the working of the various institutions of Roman law, according to the order of Justinian's Institutes, but it did not seek to show how those institutions had developed after Justinian or how they related to contemporary law. This was not because Heineccius had no interest in contemporary law, since he also published separate elementary accounts of modern civil law, German law and natural law. Each had become a distinct system of law.

In France, partly because of the distinction between the regions of the customary law and those of the written law, customary law had tradi­tionally been kept separate from Roman law. The movement to provide a written record of the various distinct customs had fossilised them and efforts were made to identify a common core of customary law, based on the custom of Paris, which was distinct from the romanised customs of the south. In 1679 Louis XIV established in the universities royal pro­fessors of French law, who had to teach in the vernacular rather than in Latin.

Between 1667 and 1681, Jean Baptiste Colbert, chancellor of Louis XIV, ordered the compilation of a series of mini-codes, in the form of Royal Ordinances, which applied to the whole kingdom and so served to offset the centrifugal effect of the different customs. They were con­cerned with the least Roman parts of the law: with civil procedure, which Donellus had shown to be distinct from substantive law, with crim­inal law and criminal procedure, and with mercantile law.

Criminal law was dealt with to a limited extent in Books 47 and 48 of the Digest, which Justinian called libri terribiles, but the seventeenth­century version was badly in need of reform. Mercantile law figured significantly in the Roman texts, but had not been much developed in the middle ages. Merchants preferred to have their disputes settled not by local courts but by informal panels of their fellow merchants, which were set up at the periodical fairs, held in various towns, and in seaport towns where merchants congregated. So the mercantile community had developed a body of commercial custom which transcended national frontiers. Colbert engaged a successful businessman, Jacques Savary, to draft the Ordonnance de commerce (1673), an almost complete statement of rules for the conduct of business between merchants, based on these tra­ditional customs. It was supplemented by a companion ordinance dealing with maritime commerce (1681). Thereafter French merchants, in whatever region they lived, followed a uniform law, which came to be accepted as an authoritative statement of commercial practice not only in France but also elsewhere in Europe, including England.

The Royal Ordinances did not significantly affect the core civil law, the subjects treated in Justinian's Institutes, and left the customs largely intact, but it defined their limits.

In Spain the individual territories still retained their own laws and until the eighteenth century a national law was only a dream. Just as in France the custom of Paris gained ascendancy over other regional customs, so the law of Castille, based on the Siete partidas and the Recopilacion of 1567, gradually became a national law (derecho patrio) for the whole of Spain. In i7i3 the Council of Castille ordered that the uni­versities should cease to teach Roman law and replace it with national law but the professors refused to implement the decree. In 1741 the Council issued a new decree allowing Roman law, in view of its great value, to be taught together with national law.

The standard textbook was Vinnius's Commentary on the Institutes, which was modified in two ways; first, references which were held to be offensive by the Inquisition, such as part of the treatment of marriage,

The mature natural law

107 were excluded, and secondly, references to Spanish law were inserted. Juan Sala produced for Spanish students an edition of Vinnius castigatus (Valencia, 1767), which claimed to achieve both aims. The frontispiece depicts Justice handing Justinian's Institutes to the emperor with her left hand and the Sietepartidas to the King of Spain with her right hand.

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