Opponents of the Roman law. 80. These “ministers of ancient jurisprudence” seemed to have no other office than to display the excellences of the old masters in their original purity. Ulpian and Papinian were to them what Aristotle and Aquinas were to another class of worshippers. But the jurists of the age of Severus have come down to us through a compilation in that of Justinian; and Alciat himself had begun to discover the interpolations of Tribonian, and the corruption which, through ignorance or design, had penetrated the vast reservoir of the Pandects. Augustinus, Cujacius, and other French lawyers of the school of Bourges followed in this track, and endeavoured not only to restore the text from errors introduced by the carelessness of transcribers, a necessary and arduous labour, but from those springing out of the presumptuousness of the lawgiver himself, or of those whom he had employed. This excited a vehement opposition, led by some of the chief lawyers of France, jealous of the fame of Cujacius. But while they pretended to rescue the orthodox vulgate from the innovations of its great interpreter, another sect rose up, far bolder than either, which assailed the law itself. Of these the most determined were Faber and Hottoman.
Faber of Savoy. 81. Antony Faber, or Fabre, a lawyer of Savoy, who became president of the court of Chamberi in 1610, acquired his reputation in the sixteenth century. He waged war against the whole body of commentators, and even treated the civil law itself as so mutilated and corrupt, so inapplicable to modern times, that it would be better to lay it altogether aside. Gennari says, that he would have been the greatest of lawyers, if he had not been too desirous to appear such;[1133] his temerity and self-confidence diminished the effect of his ability. His mind was ardent and unappalled by difficulties; no one had more enlarged views of jurisprudence, but in his interpretations he was prone to make the laws rather what they ought to have been than what they were. His love of paradox is hardly a greater fault than the perpetual carping at his own master Cujacius, as if he thought the reform of jurisprudence should have been reserved for himself.[1134]
[1133] P. 97.
[1134] Heineccius, p. 236. Fabre, says Ferriere, as quoted by Terrasson, Hist. de la Jurisprudence, est celui des jurisconsultes modernes qui a porté le plus loin les idées sur le droit. C’etoit un esprit vaste que ne se rebutoit par de plus grandes difficultés. Mais on l’accuse avec raison d’avoir decidé un peu trop hardiment contre les opinions communes, et de s’être donné souvent trop de liberté de retrancher ou d’ajouter dans les loix. See too the article Favre, in Biographie Universelle.
Anti-Tribonianus of Hottoman. 82. But the most celebrated production of this party is the Anti-Tribonianus of Hottoman. This was written in 1567, and though not published in French till 1609, nor in the original till 1647, seems properly to belong to the sixteenth century. He begins by acknowledging the merit of the Romans in jurisprudence, but denies that the compilation of Justinian is to be confounded with the Roman law. He divides his inquiry into two questions: first, whether the study of these laws is useful in France; and secondly, what are their deficiencies. These laws, he observes by the way, contain very little instruction about Roman history or antiquities, so that in books on those subjects we rarely find them cited. He then adverts to particular branches of the civil law, and shows that numberless doctrines are now obsolete, such as the state of servitude, the right of arrogation, the ceremonies of marriage, the peculiar law of guardianship, while for matters of daily occurrence they give us no assistance. He points out the useless distinctions between things mancipi and non mancipi, between the dominium quiritarium and bonitarium; the modes of acquiring property by mancipation, cessio in jure, usucapio, and the like, the unprofitable doctrines about fidei commissa and the jus accrescendi. He dwells on the folly of keeping up the old forms of stipulation in contracts, and those of legal process, from which no one can depart a syllable without losing his suit. And on the whole he concludes, that not a twentieth part of the Roman law survives, and of that not one tenth can be of any utility. In the second part, Hottoman attacks Tribonian himself, for suppressing the genuine works of great lawyers, for barbarous language, for perpetually mutilating, transposing and interpolating the passages which he inserts, so that no cohesion or consistency is to be found in these fragments of materials, nor is it possible to restore them. The evil has been increased by the herd of commentators and interpreters since the twelfth century; those who have lately appeared and applied more erudition rarely agreeing in their conjectural emendations of the text, which yet frequently varies in different manuscripts, so as to give rise to endless disputes. He ends by recommending that some jurisconsults and advocates should be called together, in order to compile a good code of laws; taking whatever is valuable in the Roman system, and adding whatever from other sources may seem worthy of reception, drawing them up in plain language, without too much subtlety, and attending chiefly to the principles of equity. He thinks that a year or two would suffice for the instruction of students in such a code of laws, which would be completed afterwards, as was the case at Rome, by forensic practice.
Civil law not countenanced in France. 83. These opinions of Hottoman, so reasonable in themselves, as to the inapplicability of much of the Roman law to the actual state of society, were congenial to the prejudices of many lawyers in France. That law had in fact to struggle against a system already received, the feudal customs which had governed the greater part of the kingdom. And this party so much prevailed, that by the ordinance of Blois, in 1579, the university of Paris was forbidden to give lectures or degrees in civil law. This was not wholly regarded; but it was not till a century afterwards, that public lectures in that science were re-established in the university, on account of the uncertainty, which the neglect of the civil law was alleged to have produced.
Turamini. 84. France now stood far pre-eminent in her lawyers. But Italy was not wanting in men once conspicuous, whom we cannot afford time to mention. One of them, Turamini, professor at Ferrara, though his name is not found in Tiraboschi, or even in Gravina, seems to have had a more luminous conception of the relation which should subsist between positive laws and those of nature, as well as of their distinctive provinces, than was common in the great jurists of that generation. His commentary on the title De Legibus, in the first book of the Pandects, gave him an opportunity for philosophical illustration. An account of his writings will be found in Corniani.[1135]
[1135] Vol. vi. p. 197.
Canon law. 85. The canon law, though by no means a province sterile in the quantity of its produce, has not deserved to arrest our attention. It was studied conjointly with that of Rome, from which it borrows many of its principles and rules of proceeding, though not servilely, nor without such variations as the independence of its tribunals and the different nature of its authorities might be expected to produce. Covarruvias and other Spaniards were the most eminent canonists; Spain was distinguished in this line of jurisprudence.
Law of nations. Its early state. 86. But it is of more importance to observe, that in this period we find a foundation laid for the great science of international law, the determining authority in questions of right between independent states. Whatever had been delivered in books on this subject, had rested too much on theological casuistry, or on the analogies of positive and local law, or on the loose practice of nations, and precedents rather of arms than of reason. The fecial law, or rights of ambassadors, was that which had been most respected. The customary code of Europe, in military and maritime questions, as well as in some others, to which no state could apply its particular jurisprudence with any hope of reciprocity, grew up by degrees to be administered, if not upon solid principles, yet with some uniformity. The civil jurists, as being conversant with a system more widely diffused, and of which the equity was more generally recognised than any other, took into their hands the adjudication of all these cases. In the fifteenth and sixteenth centuries, the progress of international relations, and, we may add, the frequency of wars, though it did not at once create a common standard, showed how much it was required. War itself, it was perceived, even for the advantage of the belligerents, had its rules; an enemy had his rights; the study of ancient history furnished precedents of magnanimity and justice, which put the more recent examples of Christendom to shame; the spirit of the gospel could not be wholly suppressed, at least in theory; the strictness of casuistry was applied to the duties of sovereigns; and perhaps the scandal given by the writings of Machiavel was not without its influence in dictating a nobler tone to the morality of international law.