Their glosses. 69. A gloss, γλωσσα, properly meant a word from a foreign language, or an obsolete or poetical word, or whatever requires interpretation. It was afterwards used for the interpretation itself; and this sense, which is not strictly classical, maybe found in Isidore, though some have imagined Irnerius himself to have first employed it.[123] In the twelfth century, it was extended from a single word to an entire expository sentence. The first glosses were interlinear; they were afterwards placed in the margin, and extended finally in some instances to a sort of running commentary on an entire book. These were called an Apparatus.[124]
[123] Alcuim defines glossa, “unius verbi vel nominis interpretatio.” Ducange, præfat. in Glossar., p. 38.
[124] Savigny, iii. 519.
Abridgments of laws. Accursius’s Corpus Glossatum. 70. Besides these glosses on obscure passages, some lawyers attempted to abridge the body of the law. Placentinus wrote a summary of the Code and Institutes. But this was held inferior to that of Azo, which appeared before 1220. Hugolinus gave a similar abridgment of the Pandects. About the same time, or a little after, a scholar of Azo, Accursius of Florence, undertook his celebrated work, a collection of the glosses, which, in the century that had elapsed since the time of Irnerius, had grown to an enormous extent, and were of course not always consistent. He has inserted little, probably, of his own, but exercised a judgment, not perhaps a very enlightened one, in the selection of his authorities. Thus was compiled his Corpus Juris Glossatum, commonly called Glossa, or Glossa Ordinaria: a work, says Eichhorn, as remarkable for its barbarous style and gross mistakes in history as for the solidity of its judgments and practical distinctions. Gravina, after extolling the conciseness, acuteness, skill, and diligence in comparing remote passages, and in reconciling apparent inconsistencies, which distinguished Accursius, remarks the injustice of some moderns, who reproach his work with the ignorance inevitable in his age, and seem to think the chance of birth which has thrown them into more enlightened times, a part of their personal merit.[125]
[125] Origines Juris, p. 184.
Character of early jurists. 71. Savigny has taken still higher ground in his admiration, as we may call it, of the early jurists, those from the appearance of Irnerius to the publication of the Accursian body of glosses. For the execution of this work indeed he testifies no very high respect; Accursius did not sufficient justice to his predecessors; and many of the most valuable glosses are still buried in the dust of unpublished manuscripts.[126] But the men themselves deserve our highest praise. The school of Irnerius rose suddenly; for in earlier writers we find no intelligent use, or critical interpretation, of the passages they cite. To reflect upon every text, to compare it with every clause or word that might illustrate its meaning in the somewhat chaotic mass of the Pandects and Code, was reserved for these acute and diligent investigators. “Interpretation,” says Savigny, “was considered the first and most important object of glossers, as it was of oral instructors. By an unintermitting use of the original law-books, they obtained that full and lively acquaintance with their contents, which enabled them to compare different passages with the utmost acuteness, and with much success. It may be reckoned a characteristic merit of many glossers, that they keep the attention always fixed on the immediate subject of explanation, and, in the richest display of comparisons with other passages of the law, never deviate from their point into anything too indefinite and general; superior often in this to the most learned interpreters of the French and Dutch schools, and capable of giving a lesson even to ourselves. Nor did the glossers by any means slight the importance of laying a sound critical basis for interpretation, but on the contrary, laboured earnestly in the recension and correction of the text.”[127]
[126] Vol. v. pp. 258-267.
[127] Vol. v. pp. 199-211.
72. These warm eulogies afford us an instance, to which there are many parallels, of such vicissitudes in literary reputation, that the wheel of fame, like that of fortune, seems never to be at rest. For a long time, it had been the fashion to speak in slighting terms of these early jurists; and the passage above quoted from Gravina is in a much more candid tone than was usual in his age. Their trifling verbal explanations of etsi by quamvis, or admodum by valde; their strange ignorance in deriving the name of the Tiber from the Emperor Tiberius, in supposing that Ulpian and Justinian lived before Christ, in asserting that Papinian was put to death by Mark Antony, and even in interpreting pontifex by papa or episcopus, were the topics of ridicule to those whom Gravina has so well reproved.[128] Savigny, who makes a similar remark, that we learn, without perceiving it, and without any personal merit, a multitude of things which it was impossible to know in the twelfth century, defends his favourite glossers in the best manner he can, by laying part of the blame on the bad selection of Accursius, and by extolling the mental vigour which struggled through so many difficulties.[129] Yet he has the candour to own, that this rather enhances the respect due to the men, than the value of their writings; and, without much acquaintance with the ancient glossers, one may presume to think, that in explaining the Pandects, a book requiring, beyond any other that has descended to us, an extensive knowledge of the language and antiquities of Rome, their deficiencies, if to be measured by the instances we have given, or by the general character of their age, must require a perpetual exercise of our lenity and patience.
[128] Gennari, author of Respublica Jurisconsultorum, a work of the last century, who under colour of a fiction, gives rather an entertaining account of the principal jurists, exhibits some curious specimens of the ignorance of the Accursian interpreters, such as those in the text. See too the article Accursius in Bayle.