THE COMMENTATORS

Bartolus, who gave his name to the school which dominated the study of the civil law during the fourteenth and fifteenth centuries, was born in 1313 or 1314 in Sassoferrato, a small village in the Marches, and died in 1357.

True, much of the material consisted of citation of his predecessors but Bartolus always added something of his own, usually a clear path through the thickets of earlier debates, indicating a practical solution to a problem. Under his influence the study of the civil law became less purely academic and more orientated towards the legal problems of the day. He and his followers continued to expound the texts in the form in which they were transmitted but their aim was no longer to explain the meaning of those texts as they stood. Rather they sought to find in them rules which would be appropriate for late medieval society but would still carry the authority of imperial law.

Bartolus realised that the law had to be accommodated to the facts. On the question of the emperor's power over the Italian cities, he was able to build on Azo's views. Although in law the emperor was lord of the world, Bartolus observed that in practice many peoples did not obey him. In the Italian city-states, the people recognised no superior, they made laws as they chose and so, he concluded, they possessed imperium, with as much power within their territories as the emperor had gener­ally.

Bartolus's practical tendency can be illustrated from his approach to the problems that arose where different laws came into conflict: between civil law and local law, between one local law and another and between civil law and canon law.

Bartolus confronted the issue of a conflict between civil law and local law in a discussion of a custom of Venice. This custom accorded valid­ity to a will if it had three witnesses, which was directly contradictory of the Roman rule that required a minimum of five witnesses (C.6.23.31). Bartolus sought the reason for holding a local custom to be void, if it conflicted with imperial law, and concluded that it must be that it was thereby presumed to be a bad custom. The Roman emperors, however, are known to have allowed conflicting local customs to exist by way of privilege. It follows that it must have been possible to rebut the presump­tion that a conflicting custom is necessarily a bad custom. Justinian's law could only invalidate customs already in existence in his time. It is pos­sible to prove that a later custom is good, even if it conflicts with Justinian's law. The Venetians knew their own needs best. If they thought it unreasonable to expect five merchants to interrupt their business activ­ities in order to witness a will, a rule according validity to a will with only three witnesses should be valid or else testators' last wishes would be frus­trated. In this way Bartolus used Roman arguments to stand Justinian's rule on its head.

Although Bartolus had to justify the existence of a particular law (ius proprium) alongside the ius commune, he gained acceptance for the notion that local statutes must be interpreted according to the methods estab­lished by the ius commune and in such a way as to derogate as little as pos­sible from the ius commune.

The Commentators

Bartolus took specific cases reported in the Corpus iuris and general­ised their rulings, producing a coherent set of convenient rules, nowhere expressly stated in the Corpus iuris but claiming the authority of that law. The procedure in a civil action must always be governed by the law of the court in which the action is brought. As to the rules to be applied, however, the form of the contract must be governed by the law of the place where it was made, whereas any issue concerning the performance of the contract must be ruled by the law of the place where it should have been carried out.

The conflicts between civil law and canon law had to be dealt with by conciliatory methods. One problem, in which the two laws came into conflict, was that involving a will that the testator had confirmed by an oath, in which he swore not to change its terms in a subsequent will. The canonists considered the vital element to be the oath. For Durandus, for example, there was no problem. Every oath, which could be carried out without prejudice to one's immortal soul, had to be observed. The civil­ians emphasised the principle of freedom of testation. A testator must be free to change his mind and revoke the earlier will, by making a new will, at any time before he dies. The oath is not binding on him since, by purporting to limit this freedom, it is contrary to the law.

Later jurists, particularly the Orleans masters, made valiant efforts to reconcile the two positions, by allowing validity to a later will under certain conditions.

By making explicit the rationale that seemed to lie behind the spare rulings of the Roman texts, Bartolus was able to produce a set of new rules, which could claim to enjoy the authority of imperial law. Jurists were agreed that henceforth no one could be a lawyer who was not a Bartolist (nemo jurista nisiBartolista). His methods were followed by a whole school, known as Commentators, of whom the most distinguished was his pupil Baldus de Ubaldis.

Baldus dominated the second half of the fourteenth century, dying in 1400. He commented not only in the civil law but also canon law and

feudal law and perfected the opinion (consilium), a discussion of the legal issues raised by a particular case. This form of legal literature completed the adaptation of the civil law to contemporary problems.

By the fourteenth century the ius commune consolidated its position as part of a common Christian culture of Europe. It is this unity of culture which explains why law and religion were so closely related in late med­ieval writing. At times the intermingling of Roman law and theology produced a result that, to modern eyes accustomed to the separation of each discipline, seems bizarre. The spate of fourteenth-century popular tracts dealing with the trial of Satan provide an example. Their aim was twofold: first, to show that by the sacrifice of Christ hell had lost its power over mankind and that men could claim the atonement as a matter of justice as well as of grace, and secondly, to spread an understanding of the elements of legal procedure, by which justice was put into effect.

Satan appears before the court of Christ to bring an action against mankind. It is an actio spolii for depriving hell of its rightful possessions. The defendant fails to appear on the assigned day and Satan asks for judg­ment by default. Christ grants an adjournment on the ground of equity and by virtue of the judge's discretionary powers. The next day the Virgin Mary appears as an advocate for mankind. Satan objects to her, first, on the ground that she is a woman and unfit to be an advocate, and secondly, on the ground of her relationship with the judge. Christ overrules the objection. The Virgin argues that Satan is only entitled to possession in God's interest and Christ dismisses the actio spolii. Satan then seeks to bring a property action, claiming that he is entitled to mankind on the ground of man's original sin and God's words to Adam that he would die when he ate the forbidden fruit. The Virgin makes an exception (defence) that Satan himself was the cause of the fall of man and that no party is entitled to benefit from his own fraud. Satan makes a replication (reply to a defence) to the effect that, even if this were correct, mankind should be condemned by intervention of the judge (officio iudicis), since justice should not allow a crime to go unpunished. The Virgin protests that this amounts to an illegal change of plea by the plaintiff and produces her decisive argument, that Christ's voluntary suffering for mankind has satisfied justice. Satan's claims are therefore dismissed.

This treatment of a theological topic in terms of legal procedure seemed natural enough to an age that regarded theology and law as twin aspects of the same European Christian culture.

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