Jurisprudence.
Jurisprudence confined to Roman law. 46. Under the name of jurisprudence, we are not yet to seek for writings on that high department of moral philosophy, which treats of the rules of universal justice, by which positive legislation and the courts of judicature ought to be directed. Whatever of this kind may appear in works of this period, arises incidentally out of their subject, and does not constitute their essence. According to the primary and established sense of the word, especially on the Continent, jurisprudence is the science of the Roman law, and is seldom applied to any other positive system, but least of all to the law of nature. Yet the application of this study has been too extensive in Europe, and the renown of its chief writers too high, to admit of our passing wholly over this department of literature, as we do some technical and professional subjects.
The laws not well arranged. 47. The civil or Roman law is comprehended in four leading divisions (besides some later than the time of Justinian), very unequal in length, but altogether forming that multifarious collection usually styled the Corpus Juris Civilis. As this has sometimes been published in a single, though a vast and closely printed volume, it may seem extraordinary, that by means of arranged indexes, marginal references, and similar resources, it was not, soon after it came into use as a standard authority, or, at least, soon after the invention of printing, reduced into a less disorderly state than its present disposition exhibits. But the labours of the oldest jurists, in accumulating glosses or short marginal interpretations, were more calculated to multiply than to disentangle the intricacies of the Pandects.
Adoption of the entire system. 48. It is at first sight more wonderful, that many nations of Europe, instead of selecting the most valuable portion of the civil law, as directory to their own tribunals, should have bestowed decisive authority on that entire unwieldy body which bore the name of Justinian; laws, which they could not understand, and which, in great measure, must, if understood, have been perceived to clash with the new order of human society. But the homage paid to the Roman name, the previous reception of the Theodosian code in the same countries, the vague notion of the Italians, artfully encouraged by one party, that the Conrads and Frederics were really successors of the Theodosii and Justinians, the frequent clearness, acuteness, and reasonableness of the decisions of the old lawyers which fill the Pandects, the immense difficulty of separating the less useful portion, and of obtaining public authority for a new system, the deference, above all, to great names, which cramped every effort of the human mind in the middle ages, will sufficiently account for the adoption of a jurisprudence so complicated, uncertain, unintelligible, and ill-fitted to the times.
Utility of general learning to lawyers. 49. The portentous ignorance of the earlier jurists in everything that could aid their textual explanations has been noticed in the first chapter of this volume. This could not hold out long after the revival of learning. Budæus, in his Observations on the Pandects, was the first to furnish better verbal interpretations; but his philological erudition was not sustained by that knowledge of the laws themselves which nothing but long labour could impart.[762] Such a knowledge of the Latin language as even after the revival of letters was given in the schools, or we may add, as is now obtained by those who are counted learned among us, serves but little towards the understanding those Roman lawyers, whose short decisions, or, as we should call them, opinions, occupy the fifty books of the Pandects. They had not only a technical terminology, as is perhaps necessary in professional usage, but many words and phrases not merely technical occur, as to the names and notions of things, which the classical authors, especially such as are commonly read, do not contain. Yet these writers of antiquity, when diligently pursued, throw much light upon jurisprudence; they assist conjecture, if they do not afford proof, as to the meaning of words; they explain allusions, they connect the laws with their temporary causes or general principles; and if they seem a little to lead us astray from the great object of jurisprudence, the adjudication of right, it was still highly important, in the conditions that Europe had imposed upon herself, to ascertain what it was that she had chosen to obey.
[762] Gravina, Origines Jur. Civ. p. 211.
Alciati; his reform of law. 50. Ulric Zasias, a professor at Friburg, and Garcia d’Erzilla, whose commentaries were printed in 1515, should have the credit, according to Andrès, of leading the way to a more elegant jurisprudence.[763] The former of these is known, in some measure, as a scholar and a correspondent of Erasmus; for the latter I have to depend on the testimony of his countrymen. But the general voice of Europe has always named Andrew Alciati of Milan as the restorer of the Roman law. He taught, from the year 1518 to his death in 1550, in the universities of Avignon, Milan, Bourges, Paris, and Bologna. Literature became with him the handmaid of law; the historians of Rome, her antiquaries, her orators and poets, were called upon to elucidate the obsolete words and obscure allusions of the Pandects; to which, the earlier as well as the most valuable and extensive portion of the civil law, this method of classical interpretation is chiefly applicable. Alciati had another advantage, denied to his predecessors of the middle ages, in the possession of the Byzantine jurists, with whom, says Gravina, the learning of Roman law had been preserved in a more perfect state amidst other vestiges of the empire, and while almost extinguished in Italy by the barbarians, had been in daily usage at Constantinople down to its capture. Alciati was the first who taught the lawyers to write with purity and elegance. Erasmus has applied to him the eulogy of Cicero on Scævola, that he was the most jurisprudent of orators, and the most eloquent of lawyers. But he deserved also the higher praise of sweeping away the rubbish of conflicting glosses, which had so confounded the students by their contrary subtilties, that it had become a practice to count, instead of weighing, their authorities. It has been regretted that he made little use of philosophy in the exposition of law; but this could not have been attempted in the sixteenth century without the utmost danger of misleading the interpreter.[764]
[763] Andrès, xvi. 143. Savigny agrees with Andrès as to the merits of Zasius, and observes that the revival of the study of the laws in their original sources, instead of the commentators, had been announced by several signs before the sixteenth century. Ambrogio Traversari had recommended this, and Lebrixa wrote against the errors of Accursius, though in a superficial manner. Gesch. des Römischen Rechts,vi. 364.
[764] Bayle, art. Alciati. Gravina, p. 206. Tiraboschi, ix. 115. Corniani, v. 57.